Opinion
F083273
06-20-2023
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM MATTHEW GREEN, Defendant and Appellant.
Sharon G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County. No. 17CR-01523A Jeanne E. Schechter and Ronald W. Hansen, Judges. [*]
Sharon G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SNAUFFER, J.
John Doe was seated in the front passenger seat of a moving minivan when, without warning, appellant William Matthew Green reached over from behind and twice slashed Doe with a drywall knife - once across each cheek - inflicting long flaying wounds from ear to mouth. In the ensuing struggle, the knife also severed one of Doe's tendons, causing nerve damage to his right arm and partial paralysis.
Green was initially charged in three counts: attempted murder (Pen. Code,§§ 664, 187, subd. (a); count 1), with an enhancing allegation for personal infliction of great bodily injury (§ 12022.7, subd. (a)); aggravated mayhem (§ 205; count 2), with an allegation of use of a deadly and dangerous weapon (§ 12022, subd. (b)(1)); and assault with a deadly weapon (§ 245, subd. (a)(1); count 3), with enhancing allegations under both section 12022, subdivision (b)(1) and section 12022.7, subdivision (a). Additional criminal street gang enhancement allegations were lodged against Green on all three counts. (§ 186.22, subd. (b)(5) (counts 1 and 2) &(b)(1)(B) (count 3).) The attempted murder charge was dismissed on the prosecutor's motion after opening statements but before the evidentiary portion of the trial began.
All undesignated statutory references are to the Penal Code.
The jury convicted Green of aggravated mayhem and found that he personally used a deadly weapon. They found the gang allegations untrue and acquitted Green of the aggravated assault after having been instructed it was only charged in the alternative.
On the aggravated mayhem, Green was sentenced to the statutorily mandated indeterminate term of life with the possibility of parole (§ 205). The one-year weaponuse enhancement sentence (§ 12022, subd. (b)(1)) was imposed and stayed under section 654. The abstract of judgment fails to include the enhancement or its stayed sentence, and we will order the superior court to prepare and serve an amended abstract of judgment upon the issuance of the remittitur.
Green appeals, contending:
(1) Judge Hansen prejudicially erred by denying his new trial motion, which in turn was based on Judge Schechter's allegedly erroneous denial of his pretrial motion to bifurcate the gang enhancement allegations from the substantive counts;
(2) In a corollary claim, the judgment must be reversed and the matter remanded for a new trial because recently enacted section 1109 now requires trial courts to bifurcate gang enhancement allegations upon a defendant's request, and its mandate retroactively applies here;
(3) The trial court prejudicially erred by denying Green's request for a pinpoint jury instruction designed to expand upon the standard instruction regarding aggravated mayhem's requisite specific intent; and
(4) The trial court also prejudicially erred by instructing the jury with CALCRIM No. 3516, telling them that the aggravated mayhem and aggravated assault counts were charged in the alternative and that they could not convict on both offenses.
We affirm.
FACTS
The basic facts are not in dispute, and we need not lay them out in great detail. We instead focus on the facts relevant to the issues Green raises on appeal. Because he does not challenge the sufficiency of the evidence to support his conviction, under well-established appellate standards we recite the facts in the light most favorable to the judgment. (People v. Curl (2009) 46 Cal.4th 339, 342, fn. 3 (Curl).)
In his briefing, Green's rendering of the facts tends to champion the evidence provided by his own self-serving testimony while, in relating the prosecution's case, he repeatedly attacks the prosecution witnesses' inconsistencies and character flaws: e.g., Doe's sometimes bizarre testimony; his co-defendant-turned-prosecution-witness Erika Tolentino's drug use, her gang connections, and her work as an informant; and the fact that both Doe and Tolentino testified under grants of immunity and, in Tolentino's case, after a favorable plea bargain. While impeaching the credibility of prosecution witnesses is a normal criminal trial attorney's tactic, Green's "decision not to attack the judgment as unsupported by substantial evidence amounts to a concession that it is supported by such evidence. Even if he had made a sufficiency claim, it is black letter law that '[c]onflicts and even testimony which is subject to justifiable suspicion do not justify reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.' [Citation.] In other words, the jury resolved these credibility issues against [Green] and we are bound by that resolution. Accordingly, we set forth the evidence without [Green's] extensive commentary regarding its reliability." (Curl, supra, 46 Cal.4th at. p. 342, fn. 3.)
A. The Prosecution's Case:
i. The Substantive Crime(s):
One night in December 2016, John Doe went to Justin B.'s Merced house looking for a way to get drugs. Appellant Green and his "fiancee" Erika Tolentino were at Justin B.'s house when Doe arrived. Green answered the door, said Justin B. was not there, and told Doe to come back in 20 minutes.
Doe testified Justin's surname was "Basham", but Erika Tolentino said it was "Barnett." Because it makes no difference here, we simply refer to him as Justin B.
Tolentino was originally charged as Green's co-defendant in this case. Before trial, she pled guilty as an aider and abettor to an aggravated assault charge and admitted it was done for the benefit of, at the direction of, or in association with the Norteno criminal street gang.
After Doe left, "everybody" talked about how Doe had previously stolen drugs and money, and someone said, "You understand that's the fool that robbed - that's the fool that you are looking for[.]" (Italics added.) It seems that Justin B. had earlier told Green that Doe had stolen from drug dealer Julian "Big Homie" Sotelo. Tolentino later said she also believed Doe had stolen at least $2,800 from Justin B.
When Doe returned, Justin B. was supposedly still not there, but Doe, Green, and Tolentino all left together, ostensibly to go where Doe had said they could buy some Ecstasy. Thinking he was acting as a kind of "middleman," Doe said he had hoped to get some Ecstasy and maybe even a little cash out of the deal.
Presumably the illicit drug 3,4-Methylenedioxymethamphetamine ("MDMA").
Tolentino drove the minivan, Doe sat in the front passenger seat to give her directions, and Green sat in the middle bench seat immediately behind Doe. Perhaps foreshadowing what was to come, Doe said that when he first got in, Tolentino had "giggly" said something like, "[H]ow you going to let someone sit behind you that you hardly know?"
Tolentino testified she expected there would be some kind of "confrontation" once they left Justin B.'s house, but she did not expect a "violent" or "physical" altercation. However, she earlier told police that she actually assumed Green was going to beat up Doe. She admitted that on three similar prior occasions, Green had her stop her minivan so he could beat someone up, although she insisted she had never seen Green use a knife or a gun, only his hands and feet. She eventually acknowledged to police that the reason for her and Green's actions that night was because Doe had "ripped somebody off."
After a few minutes of driving, Doe realized they were going in the wrong direction. He felt a tug on his shoulder belt that "pulled from behind, pulling him back into the seat." He thought he then heard Green call him a "snitch" and said Green began cutting his face. Doe's left side was cut first, from his mouth to his ear. Doe reacted and grabbed and bit Green's knife hand, but Green broke free and slashed Doe's right cheek. At some point after the first slice, Doe said he reached his right arm across his body to protect himself, and the knife punctured his arm instead of further slicing his face. Doe insisted he did not try to retaliate with a pocketknife he was carrying because there was no way he could physically have done so.
Tolentino initially testified that she did not hear Green say anything as he attacked Doe. However, she admitted she told police that Green had said: "You robbed the hood" and "You stole money from some people you shouldn't have fucked with...."
Meanwhile, Doe tried to get out of the van by opening the door and jumping out, but the seatbelt would not unlock. Tolentino testified that when Doe opened the door, she had shoved him out. However, she told police that she actually shoved Green off of Doe, told Green to stop, and then pushed Doe out the door.
Doe fell into the street and ran to several houses, screaming and crying for help. A nearby resident said he watched a person running to several homes in the neighborhood, yelling for help. He then saw a vehicle with its lights turned off "take off pretty fast."
Police quickly responded and found Doe profusely bleeding from the slashes to his face. When paramedics cut off Doe's jacket, they also found large amounts of blood coming from his right arm. As a result of the attack, Doe suffered a severed arm tendon. He was unable to fully extend his right hand to take the oath when he was sworn in as a witness and said he still had physical limitations regarding fine motor skills, including a loss of feeling in some of his fingers.
ii. The Gang Evidence
Fresno Police Department Officer Ramon Ruiz testified as a gang expert. Ruiz was involved in extended wiretap investigations of the Norteno criminal street gang in the Merced area. In 2015 and 2016 there were numerous related subsets of the Nortenos, all of which fell under the larger branch structure of Nuestra Familia, the main Northern California Hispanic prison gang. All these subsets paid monthly dues to Nuestra Familia, and "everything is answered to the higher Nuestra Familia gang, which [is] predominantly a prison gang ... [that] operates both in prison and on the streets...."
Both a simple tattoo of four dots and a "Mayan 14" tattoo signify the Nortenos.The latter is illustrated by "two parallel bars with four unconnected dots on top of it," and is meant to represent the number 14. Nuestra Familia and their subordinate Nortenos all "operate under the same general rules, [or] what the Nuestra Familia refers to as 'bonds.'" Notably, there are 14 of these "bonds."
Although he was never formally qualified as an expert witness, Green later testified the "14" tattoo is Aztec, not Mayan. Although which Mesoamerican civilization was the actual historical source of the tattoo is not important, it suggests that Green was no tyro Norteno, let alone a mere functional outsider as he later testified.
Erika Tolentino had said that the "hood" Green was referring to when he said to Doe, "You robbed the hood," was "Dead End." Ruiz explained that one of the "very powerful" subsets of the Nortenos in the city of Merced was the "Dead End Locs." He also said Julian "Big Homie" Sotelo was a Dead End Loc.
Merced Police Department Officer Joseph Opinski also testified as a gang expert. Regarding the Nortenos, Opinski said there were many in Merced County. The color red is their primary color, and the number 14 is significant because "N" is the 14th letter of the alphabet.
Two months before the current incident, Opinski had met with Green and noticed he had four dots tattooed under his left eye and a "Mayan 14" tattoo on the web of his hand. Opinski said that someone bearing a four-dot tattoo who was not actually gang-affiliated "would probably get assaulted," or would at least be "questioned" about it. Moreover, falsely claiming to be a Norteno is considered very serious and disrespectful to the gang and could result in being assaulted or even killed. At that earlier meeting, Green admitted to Opinski that he was in fact an "active Norteno."
Opinski also opined that at some point Doe had stolen drugs and/or money from the gang's drug sales operations. He did not believe either Justin B. or Doe were themselves gang members, and thought Tolentino's gang affiliations varied depending on whom she was with at the time. Nevertheless, Opinski opined the assault in this case was gang-related and that Justin B.'s main supplier, Julian "Big Homie" Sotelo, was the Norteno who had ordered a Norteno assault on Doe. Even conceding on cross-examination that he had no direct evidence of such an order, Opinski still believed that Justin B.'s telling Green that Doe had stolen from Sotelo was enough to conclude there had been one.
When Merced Police Department Detective Jeffrey Horn first identified Green and Tolentino as suspects in Doe's assault, he looked up Tolentino's Facebook page and found a picture of Green wearing a red and black San Francisco 49ers beanie, a red wristwatch, and "209" tattooed on the back of his hand. He said 49ers gear was common with Nortenos because it is red, and that the "209" referred to Merced County's area code. Horn also said Green was depicted squatting in a pose he had seen many times in gang photographs.
Merced County Deputy Sheriff Larry Hudec testified that Green had a reputation for being disruptive, including fights, while in jail. In June 2017, Hudec investigated a jail assault in a jail cellblock where Norteno gang members were segregated that resulted in three inmates being sent to the hospital, including Green. A video of the incident showed Green's cellmate Steven Aguilar assaulting another inmate. Aguilar was not only an active Norteno member, but he also had "a prominent role" in the "Merced County Norteno regiment," and was the highest-ranking member of Vario Livas Norte gang, a Norteno subset. Like Green, Aguilar also had a "209" tattoo. He also had a "Huelga" bird, a sergeant's chevrons, and "Norteno" tattooed on his chest.
Some of Aguilar's prior convictions were entered into evidence as part of the proof necessary to statutorily classify the Nortenos as a criminal street gang for purposes of the charged section 186.22 gang enhancement allegations.
According to the gang experts, Nuestra Familia had long ago expropriated the Huelga bird symbol from the United Farm Workers union in order to distinguish itself from the Mexican Mafia, the other major Hispanic prison gang in California, which is now mainly a Southern California, or "Sureno," organization and from which Nuestra Familia had split in 1968. Sergeant's chevrons were an uncommon tattoo; only a person with "any type of influence or leadership" status in the Norteno gang would have them and they corresponded to a sergeant's rank in the military.
As part of his investigation of the jail assault case, Hudec interviewed Green at a hospital in Modesto. Green told Hudec that anytime he was incarcerated in a county jail, he always asked to be housed with "Northerners." He said, "I am a [N]ortherner," and that he felt safe "programming" with the "Northern Structure" whenever he was incarcerated.
However, Ruiz testified a Norteno is not permitted to be around non-active Nortenos. This could even include brothers, one of whom is an active member and the other a dropout, but who are still prohibited from associating. If they do, "there's going to be a disciplinary action."
Similarly, Opinski said that not just anyone can be in the "Northern Structure;" they have to earn their way in by "putting in work" like "assault, stabbings, narcotic sales." They cannot simply "come into jail and be [N]orthern [S]tructure because they want to associate with [N]ortherners of [Nuestra Familia]. It's not possible." Furthermore, a person cannot just carry the four-dot tattoo; it too must be earned. Opinski explained: "You're going to [have to] put in work to earn those tattoos. They're not just given to you. And they're going to question you if you come in [to jail] with them on how you earn[ed] them on the streets."
When given a hypothetical scenario paralleling the facts of this case, Opinski gave his expert opinion that such a face slashing as was done to Doe would have been "committed for the benefit of, or in association with the Norteno Criminal Street gang for the specific purposes of promoting, furthering, or assisting criminal conduct by the members of that gang."
B. The Defense Case
E.A. testified she knew Doe through a friend. She related her knowledge of Doe's prior drug use, his anger when using drugs, and his threatening behavior when she had once helped to attempt to serve a domestic violence restraining order on him. She said that when Doe was on drugs, he was "very violent," but that when he was not, "he was nice."
Green testified on his own behalf. He said that in December 2016 he was not then involved with the Nortenos on the street nor was he in the "hood or regiment." He claimed he did not know what Julian Sotelo did for a living or that he sold drugs, although he did know Sotelo was a Norteno.
Green said he was at Justin B.'s house that night but claimed he never heard anyone talking about Doe. Doe had told him he had a source for some drugs and Green said he offered to buy them, but Doe needed a ride.
Green claimed the minivan was "a mess," with tools and other items lying all over the back floor. When they left, Tolentino drove, and Doe sat in the front passenger seat at Tolentino's request so Doe could give her directions. Green sat in the bench seat immediately behind Tolentino and Doe. He said Doe and Tolentino started to argue over the directions and that Doe was getting angry, raising his voice, and "becoming rigid" while talking to her.
Green said that even before getting in the van he thought Doe was exhibiting signs of being on meth, including looking around in a "paranoid" manner. He said he noticed Doe was holding a pocketknife in his hand resting on his leg. Tolentino supposedly began to slow down and pull the van over. This angered Doe, Green said, and Doe "flicked open [his] [pocket]knife in a threatening manner[.]"
He did not explain how he could have seen this knife from his vantage point in the rear seat while seated behind Doe.
At this point, Green said he "reverted back" to his military training, and "analyzed the threat." Although he did not have any weapon on him, he noticed an "improvised weapon," a drywall knife - or "a weapon of opportunity" as Green put it - lying on the floor. He did not say anything to Doe, because he believed "[t]here was no time for that." He thought Doe would "engage" Tolentino "at any time at any second" so he "just reacted." He said he extended the blade of the drywall knife with his left hand and stabbed Doe. He claimed not to recall whether he had "restrained" Doe by pulling back on Doe's seat belt or in any other way.
The blade went "acrossed [sic] the right side of [Doe's] face" and it "stabbed him in the right side of his face." (Italics added.) Green said that Doe then "grabbed my wrist and started biting me, and I ripped the blade - or I ripped my wrist out of his mouth, and in doing so, it drug [sic] the blade acrossed [sic] the [left] side of his face, which pulled it back to me....."
It is also unclear how, let alone why, Green would have used his left hand to inflict an initial cutting wound to the right side of Doe's face if Green was supposedly trying to prevent Doe from assaulting Tolentino, who was sitting in the driver's seat to Doe's left. Similarly, how could Doe bite Green's left arm while reaching his right arm across his body and be stabbed in that right arm, if the initial attack had come from the right, and it was only after being bitten that Green said he slashed Doe's left cheek?
Green insisted Doe "tried to reach over the seat and stab me [with Doe's pocketknife]. I grabbed his arm and I stabbed him in the arm that was holding the knife in [an] attempt to get the knife out of his hand, and he ripped his arm back." After "maybe just a quick scuffle," Green said Doe opened the door and Tolentino pushed him out of the minivan onto the street. Green claimed he was somehow sitting in the rear seat throughout the incident because he said it was not until he stabbed Doe's arm and Doe "pulled [his arm] back" that Green "was leaning forward over [Doe's] seat" and then he "got up - yeah - off my seat [a]nd that's when I was attempting to push him out of the car."
Green persisted that his "goal" in attacking Doe was "to stop the threat and protect" Tolentino. He said he may have called Doe a "fucking bitch," but that was all he had said to him. He admitted he had been a Norteno in December 2016 but said he later "dropped out" in June 2017.
We omit an account of the remainder of Green's gang-related testimony because the jury found the gang allegation untrue. Suffice it to say, he admitted his more-than-passing past experiences with the Nortenos but explained he only associated with them while in custody, and only then because he had to associate with someone. The Nortenos were supposedly the most accommodating and the least demanding of him in both his in- and out-of-custody gang-related responsibilities. He denied ever actually "working" for the gang when he was out of custody.
DISCUSSION
I. The Motion for New Trial
Green first contends Judge Hansen erroneously denied his motion for a new trial. We are not persuaded.
A. Additional Factual Background
Defense counsel originally made a motion to "try the gang enhancements alleged in this case separately from the underlying counts." He argued that based on the evidence presented at the preliminary hearing, "much of the gang evidence presented at trial [will be] beyond that which is necessary to prove motive [and] will serve only to unduly inflame the jury and possibly produce a guilty verdict on the underlying offenses that would be tainted by bias."
Judge Schechter denied the pretrial motion, finding "the gang evidence is heavily intertwined" with the substantive evidence and, as a result "[i]t's going to come in anyway." Because "the evidence is too intertwined ... I don't see any legitimate reason to bifurcate at this point. So that motion is denied."
Following his conviction, Green filed a motion for a new trial. He claimed that "the voluminous gang evidence presented to the jury was improperly admitted and was so unduly prejudicial" as to deprive him "of a fair trial and tainted the underlying verdicts." In further support, he argued that the jury's "not true finding on the gang allegations demonstrates that the gang evidence at trial had no probative value and served only to inflame the jury . . .."
The People responded that the gang evidence had been properly admitted for several reasons, including the state of mind of some of the witnesses, Green's motive, and as rebuttal to the bad character evidence Green introduced regarding Doe. Thus, they contended, even if the gang enhancement allegation had been bifurcated, the underlying gang evidence would still have been admissible on those independent grounds.
At the motion hearing, defense counsel added that the jury "could have been on the fence" as to whether this was self-defense or something "short of an aggravated mayhem," but "the vicious nature of the gang" that Green was associated with "could have easily tipped the scale one way or the other" on "simple versus aggravated mayhem." The prosecutor insisted that the evidence was admitted "for witness credibility," not just for John Doe but also for Erika Tolentino, "for their fear, for their recanting [trial testimony], for their knowledge of what was going on, [and] for Ms. Tolentino's state of mind and understanding." The prosecutor reminded the court that because Green had introduced evidence of Doe's past violent character, she was entitled to rebut it with evidence of Green's own character for violence.
In ruling, Judge Hansen viewed the jury's not true finding on the gang enhancement as indicating that the jury "focused on the act, the intent, and the nature of the injury to support their findings." He also remarked that the gang evidence was admitted "because there was a gang enhancement alleged, it was supported at the prelim, addressed in a motion in limine .. [a]nd so .. was properly admitted." He reiterated that the evidence "was also admissible for the issue of motive and the issue of credibility as Mr. Green did testify in this matter." Finally, Judge Hansen also thought the not true finding on the gang enhancement actually "shows that the jury .. was not [un]duly prejudiced by the admission of [the gang] evidence." He concluded no error of law was made and denied the new trial motion.
B. Legal Background
Section 1181 provides in pertinent part that a court "may, upon [the defendant's] application, grant a new trial [¶] .. [¶] [w]hen the court .. has erred in the decision of any question of law arising during the course of the trial...." (§ 1181, subd. 5.) Thus, the court may grant a new trial motion "if and only if the defendant demonstrates the existence of an error or other defect that is reversible." (People v. Clair (1992) 2 Cal.4th 629, 667, italics added.) Green now contends that the underlying "decision of a question of law" that was reversible error here was Judge Schechter's denial of his original bifurcation motion, and therefore Judge Hansen's subsequent denial of the new trial motion was derivatively erroneous under section 1181, subdivision 5.
We review a denial of a motion for a new trial under a deferential abuse of discretion standard. (People v. Hoyt (2020) 8 Cal.5th 892, 957 (Hoyt).) In fact, such a ruling is so completely within the trial court's discretion that we will not disturb the ruling absent a manifest and unmistakable abuse of that discretion. (Ibid., italics added; see People v. McCurdy (2014) 59 Cal.4th 1063, 1108; People v. Lightsey (2012) 54 Cal.4th 668, 729.)
Similarly, we review a trial court's decision not to bifurcate gang enhancements from the underlying substantive charges for an abuse of discretion. (People v. Hernandez (2004) 33 Cal.4th 1040, 1048 (Hernandez).) Moreover, a "trial court's discretion to deny bifurcation of a charged gang enhancement is ... broader than its discretion to admit gang evidence when the gang enhancement is not charged." (Id. at p. 1050.)
Our review is based on the record as it stood at the time of the ruling. (People v. Franklin (2016) 248 Cal.App.4th 938, 952 (Franklin); cf. People v. Catlin (2001) 26 Cal.4th 81, 110-111 [severance motions].) Nevertheless, "even if the trial court's ruling was correct at the time it was made, reversal is required if the defendant shows the failure to bifurcate resulted in' "gross unfairness" amounting to a denial of due process.'" (People v. Burch (2007) 148 Cal.App.4th 862, 867 [bifurcation of prior conviction sentencing enhancements].)
C. Analysis
Before the recent enactment of section 1109 (discussed below), trial courts had the discretion to bifurcate trial on a gang enhancement allegation when the gang evidence is so "extraordinarily prejudicial, and of so little relevance to guilt, that it threatens to sway the jury to convict regardless of the defendant's actual guilt." (Hernandez, supra, 33 Cal.4th at p. 1049, italics added.) However, in contrast to prior conviction allegations that are almost always bifurcated, gang enhancements are specifically attached to the charged substantive offenses and are usually "inextricably intertwined" with them. (Id. at p. 1048.) As a result, "less need for bifurcation generally exists with the gang enhancement than with a prior conviction allegation." (Ibid.)
Moreover, "evidence of gang membership is often relevant to, and admissible regarding, the charged offense." (Hernandez, supra, 33 Cal.4th at p. 1049.) Thus, "[e]vidence of the defendant's gang affiliation- including evidence of the gang's territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like-can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to the guilt of the charged crime." (Ibid.; People v. Tran (2022) 13 Cal.5th 1169, 1208 (Tran) ["gang evidence, even if not admitted to prove a gang enhancement, may still be relevant and admissible to prove other facts related to a crime"].) As a result, "[t]o the extent the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled, and bifurcation would not be necessary." (Hernandez, supra, 33 Cal.4th at pp. 1049-1050.)
As Judge Schechter remarked, much of the gang evidence in this case would still have been admissible in the guilt phase of a bifurcated trial to show the background relationships between Green, Justin B., Julian "Big Homie" Sotelo, and even Erika Tolentino. The gang evidence established Green's motive for committing the crime, demonstrated his intent to mark Doe as a thief of Norteno property, and served to rebut his defense of others claim. "Indeed, gang evidence is 'relevant and admissible when the very reason for the underlying crime, that is the motive, is gang related.' [Citation.]' "[B]ecause a motive is ordinarily the incentive for criminal behavior, its probative value generally exceeds its prejudicial effect, and wide latitude is permitted in admitting evidence of its existence." '" (Franklin, supra, 248 Cal.App.4th at p. 953; see People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550 ["The People are entitled to 'introduce evidence of gang affiliation and activity where such evidence is relevant to an issue of motive or intent.' "]; People v. Martin (1994) 23 Cal.App.4th 76, 81 [gang activity or membership admissible where "important to the motive ... even if prejudicial"]; see also People v. Williams (1997) 16 Cal.4th 153, 193 [motive and identity].)
Thus, it is likely much of the evidence of Green's gang membership and background would have come in at a trial on just the substantive offenses. (People v. Ramos (2022) 77 Cal.App.5th 1116, 1132 (Ramos); see also People v. Samaniego (2009) 172 Cal.App.4th 1148, 1167 ["evidence related to gang membership is not insulated from the general rule that all relevant evidence is admissible if it is relevant to a material issue in the case other than character, is not more prejudicial than probative, and is not cumulative"].)
Bifurcation here was required only if Green can" 'clearly establish that there [was] a substantial danger of prejudice requiring that the charges be separately tried.'" (Hernandez, supra, 33 Cal.4th at p. 1051.) He summarily asserts as much, but he has not established such a danger. Indeed, we agree with Judge Hansen that the jury's not true finding on the gang enhancement here actually "shows that the jury . was not [un]duly prejudiced by the admission of [the gang] evidence."
In support of his insistence the gang evidence here was especially prejudicial, Green repeatedly relies on People v. Albarran (2007) 149 Cal.App.4th 214, 229 (Albarran) for support. We find Albarran factually distinguishable.
In Albarran, two unidentified men shot at a house during a party. A witness who had been within 10 feet of both gunmen could not identify Albarran. He further testified he knew Albarran from school and would have recognized him had he been one of the shooters. (Albarran, supra, 149 Cal.App.4th at pp. 217-219 &fn. 1.) Nevertheless, the trial court permitted the prosecutor to introduce "a panoply of incriminating gang evidence" against Albarran. A sheriff's deputy testified to Albarran's gang membership, his gang tattoos (including a Mexican Mafia tattoo), the prevalence of Albarran's gang graffiti around his home, the identities and arrests of other members of Albarran's gang, and the other crimes that the gang committed. The deputy also testified that the resident of the targeted house belonged to a different gang. He opined that the shooting was gang related and was intended to benefit Albarran's gang because the two gangs were then engaged in an active gang war. (Id. at pp. 220-221, 227.)
The Albarran court concluded it was error to admit the gang evidence because it was irrelevant, cumulative, and presented a substantial risk of undue prejudice, noting further that the "paramount function of this evidence was to show [Albarran's] criminal disposition[.]" (Albarran, supra, 149 Cal.App.4th at p. 228.) Simply put, the outcome in Albarran was compelled by a complete absence of evidence that the crimes were gang related or, more importantly, that Albarran had any gang-related motivation. (Id. at pp. 217, 222, 227.) Here, in contrast, identity was not an issue, and the underlying gang-related motivations were clear.
Moreover, in Albarran the gang evidence portrayed the defendant as a bad and dangerous person based mainly on the behavior of others with whom he associated. Here, however, Green admitted his gang affiliations and that he had indeed assaulted Doe; Tolentino further established the motive for her and Green's actions; and there was expert testimony of Green's gang affiliation to further show the gang-related motivation for the attack on Doe. Lastly, and most unlike Albarran, most of the gang evidence in this case was signally relevant to prove the mens rea of the underlying offense, and thus would have been presented to the jury even had the trial of the gang enhancement been bifurcated. (Hernandez, supra, 33 Cal.4th at p. 1049.)
We find no abuse of discretion in Judge Schechter's denial of the bifurcation motion. To establish Green's guilt, the prosecutor relied mainly on the testimony and prior statements of the two key percipient witnesses: Doe and Tolentino. The prosecution's theory was that Green's reason for committing his crimes was payback for stealing from Sotelo and the gang and as a further warning - by permanently marking Doe as someone who had stolen - to anyone else not to "rob[] the hood" or to cross "people" you should not: the Nortenos. The gang evidence here was abundantly relevant to the prosecution's theory of motive and thus of Green's intent. That the defense countered with a different theory of defense of others did not diminish the relevance of the gang evidence offered in support of the prosecution's case, nor does the jury's not true finding on the gang allegation mean, as Green argues, that the gang evidence was inadmissible to prove the substantive charges. (See Franklin, supra, 248 Cal.App.4th at p. 953.)
Furthermore, evidence of Green's Norteno membership, and what that entailed for his resultant gang responsibilities, shows that Green was the aggressor from the outset, and that the trio went for a "ride" not to get Ecstasy but to get Doe. As Tolentino admitted, even she assumed Green was going to beat up Doe because he had beaten up others three times before, again demonstrating that Green was not going to be acting to defend her from Doe. (Cf. People v. Kaihea (2021) 70 Cal.App.5th 257, 265-266 ["[E]vidence of gang membership is directly relevant to the genuineness of the belief of the need to defend oneself, because such evidence can demonstrate that a defendant killed because of a gang-related motive as opposed to self-defense."]
Finally, the jury was properly instructed that any evidence of gang activity could only be considered for the limited purpose of deciding whether Green acted with the intent, purpose, and knowledge necessary to prove the gang enhancement allegation, or that he had a motive to commit the charged offenses, but for no other purposes. (See CALCRIM Nos. 303 and 1403.) We presume that the jury followed these limiting instructions, and there is nothing in this record to rebut that presumption. (People v. Krebs (2019) 8 Cal.5th 265, 335; Ramos, supra, 77 Cal.App.5th at p. 1132 ["jury was given a limiting instruction regarding its consideration of the gang evidence, which we presume it followed"]; Franklin, supra, 248 Cal.App.4th at p. 953 ["We presume that the jury followed these limiting instructions [regarding considering gang evidence for a limited purpose], and there is nothing in this record to rebut that presumption."]; see People v. Waidla (2000) 22 Cal.4th 690, 725 (Waidla) ["The presumption is that limiting instructions are followed by the jury."].)
But even assuming arguendo there was error, "the admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair." (People v. Partida (2005) 37 Cal.4th 428, 439 (Partida).) The prosecutor's use of the gang evidence here did not render the trial "fundamentally unfair." To the contrary, Green's guilt was established almost entirely by evidence unrelated to the gang evidence, i.e., by what happened in the van and what the two percipient eyewitnesses, Doe and Tolentino, saw and testified to. The fact that Green committed the physical act, or actus reus, necessary to support a conviction for the offense was entirely undisputed at trial. Similarly, Green's defense was completely unrelated to his gang background. His defense of others testimony was focused on his belief he needed to defend Tolentino from the purportedly menacing and oddly behaving Doe and his small pocketknife. The verdict shows the jury rejected that defense.
Because the prosecutor's use of the gang evidence here did not render the trial "fundamentally unfair," the Chapman standard for federal constitutional error does not apply. (Partida, supra, 37 Cal.4th at p. 439.) Instead, applying the Watson standard for state law error, we find that Green has failed to demonstrate prejudice as to the guilty verdict because it is not reasonably probable that he would have obtained a more favorable verdict had the gang enhancement allegation been bifurcated. Indeed, the jury's not true finding on the gang allegation actually suggests they were not overly impressed with the prosecution's gang evidence in the first place. (Ramos, supra, 77 Cal.App.5th at p. 1131 ["Any inference of prejudice resulting from the gang evidence is dispelled by the fact the jury" found the gang enhancement untrue].)
Chapman v. California (1967) 386 U.S. 18 (Chapman).
People v. Watson (1956) 46 Cal.2d 818 (Watson).
Furthermore, "[a]ny evidence admitted solely to prove the gang enhancement was not so minimally probative on the charged offense, and so inflammatory in comparison, that it threatened to sway the jury to convict regardless of defendant['s] actual guilt." (Hernandez, supra, 33 Cal.4th at p. 1051.) In other words, "[i]t is apparent from this record the jury did not simply rely on the gang evidence to convict" Green of the aggravated mayhem. (Ramos, supra, 77 Cal.App.5th at p. 1132.)
In sum, Judge Schechter acted well within her discretion in denying bifurcation. (Hernandez, supra, 33 Cal.4th at p. 1051.) Consequently, because there was no reversible error on a question of law within the meaning of section 1181, subdivision 5, Judge Hansen's subsequent denial of Green's motion for a new trial also did not constitute a "manifest and unmistakable" abuse of his discretion. (Hoyt, supra, 8 Cal.5th at p. 957.)
II. New Section 1109's Gang-Enhancement Bifurcation Mandate
Green next contends the judgment must still be reversed for a new trial because newly enacted section 1109 now requires trial courts to bifurcate gang enhancement allegations upon a defendant's request and section 1109 retroactively applies to him. He claims we must reverse so that the aggravated mayhem charge and its weapon-use enhancement are retried without the jury being exposed to the gang-enhancement allegations present at his original trial. We disagree.
First, and most obviously, because the jury here found the gang allegation attached to the aggravated mayhem count not true, Green cannot be retried on it, bifurcated or not. (See People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 78, fn. 22 ["The jury's rejection constituted an express acquittal on the [firearm-use] enhancement and forecloses any retrial."]; cf. People v. Santamaria (1994) 8 Cal.4th 903, 913-914 [stating in dicta that both the double jeopardy clause and collateral estoppel principles would preclude a retrial of a weapon-enhancement allegation the first jury found not to be true]; Ashe v. Swenson (1970) 397 U.S. 436, 445 [collateral estoppel principles are "embodied in the Fifth Amendment guarantee against double jeopardy"].) In other words, in any potential retrial, a jury would of necessity not consider a gang enhancement allegation in any event, and all that would be before them would be an aggravated mayhem charge with a weapon use enhancement.
Similarly, because the jury acquitted Green on the aggravated assault charge, he could not be retried on that count either. (North Carolina v. Pearce (1969) 395 U.S. 711, 717 [double jeopardy principles "protect[] against a second prosecution for the same offense after acquittal"]; accord People v. Davis (1995) 10 Cal.4th 463, 514, fn. 10.)
Even so, we emphasize at the outset that this does not mean that the gang evidence would not be admissible at such a retrial, and section 1109 does not provide otherwise. (Ramos, supra, 77 Cal.App.5th at p. 1132 ["nothing in [§ 1109] limits the introduction of gang evidence in a bifurcated proceeding where the gang evidence is relevant to the underlying charges"].)
In any event, effective January 1, 2022, Assembly Bill No. 333 added section 1109 to the Penal Code. That section now provides that, upon defense request, a gang enhancement charged under subdivisions (b) or (d) of section 186.22 shall be tried separately and only after the defendant's guilt of the underlying offense is determined. (§ 1109, subd. (a)(1); Stats. 2021, ch. 699, § 5, pp. 11-12.) The question of whether section 1109 applies retroactively to non-final judgments like Green's is currently subject to a split of authority among the Courts of Appeal.
In a 2-1 decision, the Sixth District held that section 1109 is retroactive. (People v. Burgos (2022) 77 Cal.App.5th 550, 564, 568, review granted July 13, 2022, S274743 (Burgos).) Presiding Justice Greenwood's majority opinion, joined by Justice Grover, even questioned "whether or how" a harmless error analysis would or could apply. (Id. at p. 568.) In dissent, Justice Elia argued section 1109 is not retroactive because it is not "an ameliorative statute" and is therefore "subject to the general rule that Penal Code provisions are presumed to be prospective only," and, in addition, that the "legislative history of section 1109 is consistent with this presumption." (Burgos, supra, 77 Cal.App.5th at p. 569 (diss. opn. of Elia, J., original italics).) Justice Elia insisted section 1109 "is a prophylactic rule of criminal procedure expressly intended to employ new procedures aimed at enhancing the fairness of future criminal proceedings. It makes no change to any crime or defense and makes no change to any punishment provision, and it does not create the possibility of lesser punishment or any other 'ameliorative' benefit from which it could be inferred that failing to extend that benefit retroactively must have been motivated by a 'desire for vengeance.'" (Burgos, supra, at p. 572 (diss. opn. of Elia, J.).)
In contrast, in People v. Boukes (2022) 83 Cal.App.5th 937, 948, review granted Dec. 14, 2022, S277103 (Boukes), a decision from Division Two of the Fourth District authored by Justice McKinster and joined by Presiding Justice Ramirez, the court held that section 1109 is not an ameliorative statute that reduces punishment and, accordingly, it does not apply retroactively. In People v. Ramirez (2022) 79 Cal.App.5th 48, 65, review granted Oct. 12, 2022, S275341 (Ramirez), Justice Elia, now joined by Justice Bamattre-Manoukian, re-adopted the analysis of his dissent in Burgos, supra, and concluded section 1109 was not retroactive. (Ramirez, supra, 79 Cal.App.5th at p. 65.)Similarly, in People v. Perez (2022) 78 Cal.App.5th 192, 207 (Perez), review granted Aug. 17, 2022, S275090, a unanimous panel from Division Three of the Second District found that "section 1109 is a procedural statute that ensures a jury will not be prejudiced by the introduction of evidence to support gang enhancement allegations-it does not reduce the punishment imposed," and "therefore conclude[d] that [§ 1109] does not apply retroactively to a trial that has already occurred." (Perez, supra, 78 Cal.App.5th at p. 207.)
Justice Slough concurred in the result but maintained section 1109 was retroactive and joined only because any error was harmless. (Boukes, supra, 83 Cal.App.5th at p. 949 (conc. opn of Slough, J.).)
Justice Wilson concurred in the result because he too found any error was harmless, but opined that section 1109 is retroactive. (Ramirez, supra, 79 Cal.App.5th at pp. 67-68 (conc. opn. of Wilson, J.).)
In Ramos, supra, 77 Cal.App.5th at pp. 1131-1132, another panel of this Court unanimously held that section 1109 was retroactive, but found the failure to bifurcate in that case was harmless, applying a Watson test for prejudicial error. (Id. at p. 1131 ["[W]e cannot conclude it is reasonably probable [the defendant] would have obtained a more favorable verdict in the absence of the gang evidence that would not have been presented had the gang enhancement been bifurcated."].)
In People v. Montano (2022) 80 Cal.App.5th 82, 105, 108, we again held that section 1109 is retroactive to nonfinal cases but found it does not apply to criminal street gang special-circumstance allegations under section 190.2, subdivision (a)(22). (Id. at p. 114.)
In Tran, supra, the issue was before our Supreme Court. The court acknowledged the split of authority but ultimately found it unnecessary to resolve because any error in failing to bifurcate the trial of the gang enhancements in that case was harmless. (Tran, supra, 13 Cal.5th at p. 1208.) However, in doing so, the court rejected the contention that a failure to bifurcate was structural error. (Ibid.) Instead, it held that the state law harmless error standard under Watson would generally apply, although the Chapman federal law standard could potentially apply in those situations where the admission of the gang evidence was such as to render the trial fundamentally unfair. (Tran, supra, 13 Cal.5th at p. 1209.)
Like the defendant in Tran, Green has not shown that the failure to bifurcate the gang enhancements in this case created a fundamentally unfair trial within the meaning of the federal due process clause. (Tran, supra, 13 Cal.5th at p. 1209.) As discussed above, the trial here was not fundamentally unfair because most of the gang evidence presented at trial was also independently admissible to prove the charged substantive offenses, and the amount of evidence relevant only to the gang enhancements was not particularly inflammatory. (See Albarran, supra, 149 Cal.App.4th at p. 229 [" 'Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must "be of such quality as necessarily prevents a fair trial." '" (Italics added.)].)
Thus, as in Tran, and regardless of how the Supreme Court ultimately resolves the retroactivity of section 1109, applying Watson, supra, we conclude the introduction of the gang evidence in this case was harmless. (See People v. E.H. (2022) 75 Cal.App.5th 467, 480 [declining to decide the issue, but "[e]ven if section 1109 applied retroactively to his case ... [E.H.] cannot show it is 'reasonably probable' he would have obtained a more favorable result if his trial had been bifurcated"]; Ramos, supra, 77 Cal.App.5th at p. 1131 ["[W]e affirm .. because we cannot conclude [defendant] was prejudiced by the failure to bifurcate the gang enhancement from the trial on the underlying charges. That is, we cannot conclude it is reasonably probable [defendant] would have obtained a more favorable verdict in the absence of the gang evidence that would not have been presented had the gang enhancement been bifurcated."].)
Simply put, retroactive or not, section 1109 does not require we now reverse the judgment in this case and remand for a new trial.
III. The Pinpoint Instruction on the Intent Element of Aggravated Mayhem
Green next contends the trial court prejudicially erred by refusing his pinpoint instruction designed to expand upon the specific intent element of aggravated mayhem over and above that provided in the standard instruction. We find no error.
A. Additional Background
Defense counsel asked for the standard aggravated mayhem instruction (CALCRIM No. 800) but wanted it supplemented with language taken from People v. Park (2000) 112 Cal.App.4th 61, 64 (Park) so as to "clarify and assist the jury" with the differences between the intent elements of simple and aggravated mayhem. His requested addition read:
"Aggravated mayhem .. requires the specific intent to cause the maiming injury. ... Evidence that shows no more than an 'indiscriminate attack' is insufficient to prove the required intent. . Furthermore, specific intent to maim may not be inferred solely from evidence that the injury inflicted actually constitutes mayhem; instead, there must be other facts and circumstances which support an inference of intent to maim rather than to attack indiscriminately.."
Counsel argued: "[M]ayhem is an assault that happens to cause those injuries, and aggravated mayhem is an assault intended to cause those particular injuries [which is] an accurate layperson's explanation of the difference. That's what I'd like to argue." The prosecutor responded, "[T]hat's in the basic Cal-Crim [sic]," and the court agreed.
The court said it disliked pinpoint instructions because "[i]t's always risky to stray from the regular jury instructions," and ruled that the CALCRIM for aggravated mayhem was sufficient, and that counsel could certainly argue his additional points to the jury as he had requested.
The jury was instructed with CALCRIM No. 800 and told that in order to convict Green of aggravated mayhem, they must find that he "unlawfully and maliciously disabled or disfigured someone permanently," that in doing so "he intended to permanently disable or disfigure the other person," and that "[u]nder the circumstances, [Green's] act showed extreme indifference to the physical or psychological wellbeing of the other person." "Maliciously" was further defined as when a person "intentionally does a wrongful act, or when he or she acts with the unlawful intent to annoy or injure someone else." They were told the People need not prove Green intended to kill Doe. In addition, the jury was instructed with CALCRIM No. 252, and told that in order "to find a person guilty" of aggravated mayhem, "that person must not only intentionally commit the prohibited act, but must do so with a specific intent or mental state" and "[t]he act and the specific intent or mental state required are explained in the instruction for that crime...."
In arguing to the jury, defense counsel argued that specific intent had not been shown because Green could have inflicted even more damage to Doe had he intended to, but did not. He also said, "[T]his was not a deliberate cut from ear to ear," but was instead "consistent with the way Mr. Green told you," and was more consistent with an "indiscriminate assault," using the term taken from his rejected pinpoint instruction.
B. Legal Background
"Whether or not to give any particular instruction in any particular case entails the resolution of a mixed question of law and fact that . is however predominantly legal. As such, it should be examined without deference." (Waidla, supra, 22 Cal.4th at p. 733; People v. Quarles (2018) 25 Cal.App.5th 631, 634 ["We review a trial court's refusal to give a requested instruction de novo."].)
" '[A] trial court must instruct on general principles of law relevant to the issues raised by the evidence and necessary for the jury's understanding of the case.'" (People v. Thomas (2023) 14 Cal.5th 327, 385 (Thomas); People v. Brooks (2017) 3 Cal.5th 1, 73 (Brooks.) This may include providing, upon request, "legally correct and factually warranted pinpoint instructions designed to elaborate and clarify other instructions .." (People v. Hughes (2002) 27 Cal.4th 287, 362 (Hughes).) When considering whether to give a pinpoint instruction, the trial court should consider whether the instruction incorrectly states the law, is argumentative, duplicative, potentially confusing, or is not supported by substantial evidence. (People v. Moon (2005) 37 Cal.4th 1, 30.) The court can also refuse pinpoint instructions that "highlight" specific evidence because this "type of instruction 'invite[s] the jury to draw inferences favorable to one of the parties from specified items of evidence,' [and] is considered 'argumentative' and therefore should not be given." (People v. Earp (1999) 20 Cal.4th 826, 886 (Earp).)
"The California jury instructions approved by the Judicial Council are the official instructions for use in the state of California." (Cal. Rules of Court, rule 2.1050(a); People v. Ramirez (2021) 10 Cal.5th 983, 1008, fn. 5.) The CALCRIMs are such instructions. (See People v. Lucas (2014) 60 Cal.4th 153, 294, disapproved on other grounds in People v. Romero and Self (2015) 62 Cal.4th 1, 53, fn. 19 [CALCRIMs "are now endorsed and viewed as superior" to the old CALJIC instructions by the Judicial Council].)
The language defense counsel took from Park, supra, 112 Cal.App.4th 61, is referenced in the Bench Notes under the "Related Issues" heading of CALCRIM No. 800, although not in the "Instructional Duty" discussion. This implies the passage from Park cannot be read as a requirement that the standard instruction must be modified to add such language. (See Judicial Council of California Criminal Jury Instructions (CALCRIM), "CALCRIM Guide, Using the Instructions, Bench Notes".)
C. Analysis
As he did below, Green again relies on Park, supra, 112 Cal.App.4th 61, to support his argument for giving his pinpoint instruction. However, we find Park distinguishable.
First, Park was a sufficiency of the evidence appeal, not a deficient jury instruction case. (Park, supra, 112 Cal.App.4th at p. 63.) Similarly, because the analysis in Park was focused on the adequacy of the underlying facts to support a specific intent to maim, the discussion and the cases cited in support were also centered on the facts of those other mayhem cases. (Id. at pp. 69-71.) Second, in Park the jury was instructed with CALJIC 9.32 which, like CALCRIM No. 800, had no extra language supplementing the specific intent requirement that Green's pinpoint instruction was aimed to expand upon here. (Id. at p. 66.) Finally, again unlike here, during its deliberations the Park jury had specifically requested "[c]larification of specific intent vs. general intent for aggravated mayhem." The trial court responded by giving what the Park court acknowledged was "the following correct explanation of the law" and instructed them: "The crime of aggravated mayhem requires that the person who inflicted the injury did so with the specific intent permanently to disable, disfigure, or to deprive the other person of a limb, organ, or member of his body. In other words, the defendant must specifically intend to cause a maiming injury." (Id. at p. 67, italics added.) This essentially is how the jury was instructed here, and notably absent is anything like Green's requested pinpoint instruction language regarding "indiscriminate" attacks. Put another way, the Park jury was actually adequately instructed on aggravated mayhem's intent element without the need for such extraneous language. So was the jury here.
Green also cites People v. Ferrell (1990) 218 Cal.App.3d 828 (Ferrell) and People v. Quintero (2006) 135 Cal.App.4th 1152 (Quintero), overruled on other grounds as recognized in People v. Poisson (2016) 246 Cal.App.4th 121, 125. He claims these cases support his contention that the jury should have been told that evidence showing no more than an "indiscriminate" or "random" attack, or an "explosion of violence" (Quintero, 135 Cal.App.4th at p. 1162), is insufficient to prove the required specific intent for aggravated mayhem, and that "specific intent to maim may not be inferred solely from evidence that the injury inflicted actually constitutes mayhem; instead, there must be other facts and circumstances which support an inference of intent to maim rather than to attack indiscriminately." (Ferrell, 218 Cal.App.3d at p. 835.)
However, Quintero and Ferrell were also sufficiency of the evidence cases, not jury instruction cases, and their discussions and analyses were again heavily factdependent. Thus, after emphasizing the rather unique facts of the case, the Ferrell court concluded that "[v]iewed in the light most favorable to the judgment, th[e] evidence established that this bizarre shooting was a cold and deliberate attack," and "not an indiscriminate, random attack on [the victim's] body; instead, the shooting was directed and controlled." (Ferrell, supra, 218 Cal.App.3d at pp. 835-836, italics added.) Similarly, and actually reminiscent of the current case, in Quintero the court found that the defendant's intentional infliction of deep cuts to victim's face was sufficient to show a specific intent to maim. (Quintero, supra, 135 Cal.App.4th at p. 1159.)
By focusing on the facts to supplement the legal definition of the requisite specific intent provided in CALCRIM No. 800, Green's pinpoint instruction here was designed to infuse his account of what happened in the minivan that night into what the court would tell the jury was the law, i.e., using his version of the disputed facts to add to the legal explication of the necessary mens rea. As such, it was argumentative. Indeed, defense counsel's closing arguments used the same terminology: "[T]his was not a deliberate cut from ear to ear," but "consistent with the way Mr. Green told you," it was more consistent with an "indiscriminate assault[.]" (Italics added.)
"A defendant has the right, on request, to instructions that pinpoint the theory of the defense, not specific evidence as such. [Citation.] The trial court properly refuse[s] the requested instruction[], which merely invite[s] the jury to draw inferences favorable to him from selected items of evidence." (People v. Kraft (2000) 23 Cal.4th 978, 1063 (Kraft), italics added; see People v. Mincey (1992) 2 Cal.4th 408, 437 ["In asking the trial court to emphasize to the jury [in a pinpoint instruction] the possibility that the beatings were a 'misguided, irrational and totally unjustifiable attempt at discipline rather than torture,' defendant sought to have the court invite the jury to infer the existence of his version of the facts, rather than his theory of defense. Because of the argumentative nature of the proposed instructions, the trial court properly refused to give them." (Italics added.)]; cf. People v. Wright (1988) 45 Cal.3d 1126, 1135 (Wright) [argumentative instructions "invite the jury to draw inferences favorable to the defendant from specified items of evidence on a disputed question of fact, and therefore properly [belong] not in instructions, but in the arguments of counsel to the jury"].)
Contrary to Green's claims, the jury here was adequately instructed by means of CALCRIM Nos. 800 and 252 that it was required to determine whether Green acted with the specific intent to maim Doe. The instructions were not equivocal or confusing; Green either intended to maim Doe, or he did not. Unlike in Park, supra, 112 Cal.App.4th 61, the jury had no questions about the intent elements of the crimes or the lesser included offenses. The trial court's refusal of Green's requested pinpoint instruction was not error and did not deprive him of due process. (Kraft, supra, 23 Cal.4th at p. 1063.)
Green tries to couch this instructional error claim in constitutional terms, contending the trial court's ruling on the proposed pinpoint instruction violated his 14th Amendment rights to a fair trial and to present a full defense. However, no constitutional objection was made to the trial court's denial of his request for the pinpoint instruction. "Ordinarily, a criminal defendant who does not challenge an assertedly erroneous ruling of the trial court in that court has forfeited his or her right to raise the claim on appeal. [Citations.] As the United States Supreme Court recognized in United States v. Olano [(1993) 507 U.S. 725, 731]' "[n]o procedural principle is more familiar to this Court than that a constitutional right," or a right of any other sort, "may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it." '" (In re Sheena K. (2007) 40 Cal.4th 875, 880-881.) To that extent, any constitutional claim here was forfeited. Forfeiture notwithstanding, "[n]o separate constitutional discussion is required ... when rejection of a claim on the merits necessarily leads to rejection of any constitutional theory or 'gloss' raised for the first time [on appeal]." (People v. Scott (2011) 52 Cal.4th 452, 487, fn. 29; People v. Scott (2015) 61 Cal.4th 363, 394-395 [" 'Rejection of a claim on its merits necessarily disposes of the additional constitutional "gloss."' "]; People v. Loker (2008) 44 Cal.4th 691, 704, fn. 7; People v. Wallace (2008) 44 Cal.4th 1032, 1050, fn. 4.)
Finally, even if we assume that the trial court erred by not including Green's supplemental language, Green was not prejudiced under the circumstances. Refusal to give pinpoint instructions is harmless under the Watson, supra, 46 Cal.2d 818, standard when defense counsel's argument fully outlines his defense and the instructions as given are sufficient. (Hughes, supra, 27 Cal.4th at p. 363 ["not reasonably probable that the trial court's failure to [pinpoint] instruct affected the ... verdict"; see Earp, supra, 20 Cal.4th at p. 887 ["not reasonably probable that had the jury been given defendant's proposed pinpoint instruction, it would have come to any different conclusion in this case"]; cf. People v. Fudge (1994) 7 Cal.4th 1075, 1111-1112 [harmless error when viewed in light of "the overall strength of the evidence of guilt, the detail in defense counsel's closing argument, and the other jury instructions"].)
A further indication that the refusal to give the proposed pinpoint instruction was not prejudicial is, as noted above, the fact the jury expressed no confusion as to specific intent during its deliberations. (See Wright, supra, 45 Cal.3d at p. 1150 [jury did not "manifest any confusion," "ask[] for clarification of instructions" or "indicate any problem reaching a verdict"].)
We conclude that it is not reasonably probable that had the jury been given defendant's proposed pinpoint instruction, it would have come to any different conclusion in this case. As discussed above, this was no "random" or "indiscriminate" attack; like the defendant in Quintero, supra, Green's infliction of deep cuts specifically to Doe's face was more than sufficient to show a specific intent to maim. (Quintero, supra, 135 Cal.App.4th at p. 1159.) The jury would not likely have reached a different verdict even had they been instructed with Green's pinpoint instruction.
IV. Aggravated Mayhem and Aggravated Assault as Alternative Charges
Lastly, Green contends the trial court prejudicially erred by instructing the jury that the aggravated mayhem and aggravated assault charges in counts 2 and 3 were alternative charges and they could not convict him of both.
He suggests that even though he was acquitted of the assault charge, we should nevertheless reverse the judgment and remand the matter to the trial court for resentencing proceedings on both counts. In a novel and somewhat convoluted argument, he avers that had he instead also been convicted of the assault, the trial court would have been given discretion in the future, under a not-yet-enacted amendment to section 654, to sentence him to a determinate term on the assault count and stay the indeterminate sentence originally imposed on the aggravated mayhem count.
Green offers no authority or legal basis for such hypothetically retrospective sentencing principles, and we decline to create one here.
A. Additional Factual Background
The jury was instructed with CALCRIM No. 3516 as follows: "The defendant is charged in Count 2 with Aggravated Mayhem and in Count 3 with Assault with a Deadly Weapon. These are alternative charges. If you find the defendant guilty of one of these charges, you must find him not guilty of the other. You cannot find the defendant guilty of both."
Although CALCRIM No. 3516 was never specifically identified by title during the jury instruction conference, after Judge Schechter and counsel finished discussing the self-defense instructions, the following somewhat ambiguous conversation ensued:
"The Court: Then you [the prosecutor] said you were - you had charged these actually as alternatives. That was your intent?
"[Prosecutor]: Right.
"The Court: I included [CALCRIM No, 3516], so they convict - and you need to explain this to the jury. They convict [of] one or the other, and it really goes the same for lessers too, either the lesser - if they're going to convict. The lesser to Count One [sic], or the lessers i[n] Count Two [sic].
"[Prosecutor]: It's like Aluizo [sic]. It's in the alternative. I'll explain it in closing." (Italics added.)
We are unable to find an "Aluizo" case that discusses alternate charging, section 954, or CALCRIM No. 3516. We hazard a guess the prosecutor was referring to People v. Allen (1999) 21 Cal.4th 846, where our Supreme Court discussed whether the common law rule against dual convictions for receiving stolen property and the theft of that same property also applied to receiving stolen property and burglary, and in discussing section 954, held it did not. (Id. at pp. 849, 867.)
There was no objection from defense counsel as to the two charges being considered in the alternative or to giving CALCRIM No. 3516.
Consistent with what she had told the court, the prosecutor began her closing argument with this exact point: "As the Court explained [when pre-instructing with CALCRIM No. 3516], they're charged in the alternative. When you find him guilty of aggravated mayhem, you must find him not [guilty] of assault with a deadly weapon. You can't do both." Again, defense counsel did not object to the argument, and in his closing arguments he did not mention the issue at all.
In her final closing statement, the prosecutor once more reminded the jury: "So aggravated mayhem and assault with a deadly weapon - I said this already. Let's reiterate. They're charged in the alternative. If he is guilty of one, he is not guilty of the other." Defense counsel again did not object to her characterization of the offenses as alternatives, and his only complaint was that the prosecutor was reiterating rather than rebutting.
The fact the jury then acquitted Green of the aggravated assault indicates they followed CALCRIM No. 3516, and we assume they did. (People v. Buenrostro (2018) 6 Cal.5th 367, 431 ["We presume jurors understand and follow the instructions they are given . . .." (Italics added.)].)
B. Legal Background
i. Standard of Review
As discussed above, we review claims of instructional error de novo. (People v. Mitchell (2019) 7 Cal.5th 561, 579 (Mitchell); People v. Rivera (2019) 7 Cal.5th 306, 326.) Under this standard, "[t]he question is whether the error resulted in a miscarriage of justice under [Watson, supra, 46 Cal.2d 818]." (People v. Ocegueda (2016) 247 Cal.App.4th 1393, 1407; see People v. Hendrix (2022) 13 Cal.5th 933, 942 (Hendrix) [Watson standard applies to incorrect, ambiguous, conflicting, or wrongly omitted instructions that do not amount to federal constitutional error].)
Also mentioned above, "[u]nder Watson, a reviewing court must reverse if 'it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' [Citation.] '" 'We have made clear that a "probability" in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.'" '" (Hendrix, supra, 13 Cal.5th at p. 944, italics added; cf. People v. Camacho (2022) 14 Cal.5th 77, 109 [Watson standard is whether there is a reasonable probability that the "outcome of trial" would have been "more favorable" to the defendant had the instructional error not occurred (italics added)].)
ii. CALCRIM No. 3516 and Section 954
As relevant here, section 954 provides: "An accusatory pleading may charge two or more different ... statements of the same offense ... under separate counts _. The prosecution is not required to elect between the different offenses or counts set forth in the accusatory pleading, but the defendant may be convicted of any number of the offenses charged...." (§ 954, italics added.) Similarly," 'a defendant properly may be convicted of two offenses if neither offense is necessarily included in the other, even though under section 654 he or she could not be punished for more than one offense arising from the single act or indivisible course of conduct.'" (People v Vidana (2016) 1 Cal.5th 632, 636-637 (Vidana), italics added.)
Under section 654, when a defendant faces convictions for acts "punishable in different ways by different provisions of law," he or she may face punishment under either provision, but not both. Until recently, section 654 required courts to impose a sentence "under the provision that provide[d] for the longest potential term of imprisonment." (Former § 654.) "In 2021, however, the Legislature enacted Assembly Bill No. 518 (Stats. 2021, ch. 441), which removed the requirement to impose the longest prison term." (People v. Sek (2022) 74 Cal.App.5th 657, 673 (Sek).) Thus, a court may now select any provision as the base term, not just the one that imposes the longest sentence. (Ibid.) Assembly Bill No. 518 applies retroactively to cases that were not final on January 1, 2022, including this case. (Sek, supra, 74 Cal.App.5th at p. 673; accord People v. Mani (2022) 74 Cal.App.5th 343, 379.)
Even so, "section 954 does not authorize multiple convictions for different statements of the same offense." (Vidana, supra, 1 Cal.5th at p. 651, italics added.) Just as" 'a defendant cannot be convicted of a greater and a lesser included offense based on the same act or course of conduct, dual convictions for the same offense based on alternate legal theories would necessarily be prohibited.'" (Id. at p. 650, italics added.)
In other words, even though a defendant may have committed a single act, "he or she [may be] charged with, and convicted of, violations of separate statutes. While each statute may represent a different statement of the same offense, it sets out a separate crime, not just ... alternative ways in which the same crime can be committed." (People v. Ryan (2006) 138 Cal.App.4th 360, 368-369, second italics added; see People v. White (2017) 2 Cal.5th 349, 352 [rape of an intoxicated person and rape of an unconscious person describe different offenses, and a defendant may properly be convicted of, although not punished for, both]; People v. Gonzalez (2014) 60 Cal.4th 533, 535 [same for oral copulation of an intoxicated person and an unconscious person]; People v. Benavides (2005) 35 Cal.4th 69, 97 [rape, sodomy and lewd act on a child are all different offenses]; People v. Grabham (2021) 68 Cal.App.5th 549, 558 [DUI under Veh. Code, § 23152, subd. (a) and subd. (b) are different offenses for purposes of § 954]; but see People v. Aguayo (2022) 13 Cal.5th 974, 996 [assault with a deadly weapon (§ 245, subd. (a)(1)) and force likely assault (§ 245, subd. (a)(4)) are different statements of the same offense under section 954 and a defendant may not be convicted of both types of aggravated assault based on the same act or course of conduct]; People v. Shiga (2019) 34 Cal.App.5th 466, 481 [§ 451 criminalizes a single offense of arson so defendant cannot be convicted of both arson of an inhabited structure (§451, subd. (b)) and arson of a structure (§ 451, subd. (c))]; People v. Coyle (2009) 178 Cal.App.4th 209, 211, 217218 [defendant improperly convicted of three counts of murder for killing one person].)
Green argues that aggravated mayhem and assault with a deadly weapon are separate offenses and not "different statements of the same offense" under section 954, that therefore CALCRIM No. 3516 was inapplicable, and that giving it here was error. The People respond only that Green was not prejudiced by the instruction and any error was therefore harmless.
Assuming without deciding that Green is correct in all three of his assertions, we agree with the People that any error in giving the instruction was harmless. As with our review of instructional error, we review the application of section 954 de novo. (People v. Rodriguez (2021) 71 Cal.App.5th 921, 936.)
C. Discussion
i. Forfeiture
"Failure to object to instructional error forfeits the issue on appeal unless the error affects defendant's substantial rights." (People v. Anderson (2007) 152 Cal.App.4th 919, 927; see Mitchell, supra, 7 Cal.5th at p. 579 ["because [defendant] failed to object below, his state law claims asserting error on the instructions have been forfeited" unless his "substantial rights ... [were] affected"]; see § 1259.) As noted, Green did not object to CALCRIM No. 3516, the prosecutor's closing arguments, or (obviously) the jury's acquittal on the assault charge.
Trial in this matter took place in November 2020 but Assembly Bill No. 518 was not introduced until February 10, 2021. (Assembly Bill No. 518 (2021-2022 Reg. Sess.), Assembly Comm. on Pub. Safety, Bill Analysis, March 22, 2021.) Supposing he was not so clairvoyant as to foresee Assembly Bill No. 518's future amendment of section 654, it is inconceivable that trial counsel would ever have objected to an acquittal.
The consequence of giving CALCRIM No. 3516 here was an acquittal on the assault charge. We are aware of no authority, nor does Green provide any, that a defendant has a right to be convicted, substantial or otherwise. Moreover, it is incongruous to suppose a defendant has a substantial right to have future unrealized changes to the sentencing laws affect jury instructions relevant to whether or not section 954 permits multiple convictions on substantive criminal charges. Having not been denied a substantial right, we therefore find Green's CALCRIM No. 3516 instructional error claim was forfeited.
Green claims he "was entitled to a jury determination on each count of [sic] whether he was guilty or not," but that the erroneous instruction "prevented" the jury "from returning verdicts on both counts." Not so. It is true he was so "entitled," but the jury was not "prevented" from reaching its verdicts at all. Instead, the jury returned a "guilty" verdict on the aggravated mayhem charge and a "not guilty" verdict on the assault with a deadly weapon count, thereby returning exactly the two verdicts to which he was "entitled."
ii. Harmless Error
Forfeiture notwithstanding, and assuming instructional error, we find any such error harmless. As discussed above, "prejudicial error is shown where '" 'after an examination of the entire cause, including the evidence,' [the reviewing court] is of the 'opinion' that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.'" '" (Richardson v. Superior Court (2008) 43 Cal.4th 1040, 1050, italics added.)
However, the "more favorable result" on which Green predicates his argument is not a conviction, even were we somehow to stretch the term "favorable" to include a conviction versus an acquittal. Instead, the "favorable result" Green really demands is a lesser sentence under a then-non-existent version of section 654.
iii. "Un-Acquittal"
Finally, there is the troublesome threshold question of how we could even provide the remedy Green seeks. Green was acquitted of the assault. He insists that the acquittal was prejudicial because it denied him the future benefit of an unknown and yet-to-be-enacted amendment to section 654 that might have affected a future resentencing hearing. He asks us to somehow vacate that acquittal, reinstate and "convict" him of the aggravated assault charge, and remand the matter for the trial court to resentence him on both "convictions" under newly amended section 654. Simply put, Green asks us to "unacquit" him.
As authority, Green cites section 1260 for its "broad remedy power" to correct trial court errors. Although section 1260 provides us with wide discretion, it is not unfettered, and nowhere does it even remotely suggest we may vacate a jury's acquittal and reinstate a charge or replace it with a conviction. (See People v. Adams (1990) 220 Cal.App.3d 680, 688 ["While [§] 1260 appears to confer plenary power of modification on a reviewing court, it was not so intended."]; cf. People v. Lagunas (1994) 8 Cal.4th 1030, 1036-1040 [rejecting a claim that principles of due process authorize courts to modify a verdict to reflect a conviction on a lesser related offense].)
Section 1260 does permit us to modify a judgment of conviction and replace it with a lesser included offense in some circumstances. However, as both parties recognize, "the crime of assault with a deadly weapon or by means of force likely to produce great bodily injury is not a lesser included offense of aggravated mayhem...." (Quintero, supra, 135 Cal.App.4th at p. 1168; accord People v. Ausbie (2004) 123 Cal.App.4th 855, 862-863, disapproved on other grounds in People v. Santana (2013) 56 Cal.4th 999, 1011, fn. 6.) Green provides no other authority for such a remedy as he seeks here, nor a statutory mechanism by which we could do so. (See People v. Navarro (2007) 40 Cal.4th 668, 678 ["an appellate court's power to modify a judgment is purely statutory"].)
Alternatively, Green cryptically tells us "the most equitable remedy" is for us to simply remand the matter so the sentencing court would determine if it would have applied section 654 to the aggravated mayhem charge if he had been convicted of the assault, which he was not, and if so, whether it would then somehow "reduce" the aggravated mayhem to an assault with a deadly weapon, and then "make the change in sentencing." Once more, he provides no authority or reasoned argument for any such "equitable" power to vacate a jury's acquittal, nor for how a superior court could "reduce" the mayhem conviction to a non-lesser-included offense, or even entertain this perhaps-futile and uncertain exercise in serial "ifs."
Finally, we have not even mentioned the double jeopardy clauses of the state and federal Constitutions, or the multiple prosecution prohibitions of section 654. In sum, crediting Green's argument here "would call for new rules of criminal procedure," (People v. Lyons (2009) 178 Cal.App.4th 1355, 1359), and we decline to impose them. Giving CALCRIM No. 3516 in this case did not result in a miscarriage of justice.
DISPOSITION
The judgment is affirmed. Upon issuance of the remittitur, the superior court clerk is ordered to prepare an amended indeterminate abstract of judgment that correctly reflects the sentencing court's imposition of a stayed sentence on the section 12022, subdivision (b)(1) enhancement, and forward certified copies to the Department of Corrections and Rehabilitation and any other necessary parties.
WE CONCUR: POOCHIGIAN, Acting P. J., FRANSON, J.
[*] Judge Schechter was the trial judge. Judge Hansen handled the new trial motion and sentencing.