People v. Isaacs

Full title: THE PEOPLE, Plaintiff and Respondent, v. JOHNATHAN ALFRED ISAACS et al.…

Court: COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Date published: Jul 14, 2020

No. D076557 (Cal. Ct. App. Jul. 14, 2020)

Opinion

D076557

07-14-2020

THE PEOPLE, Plaintiff and Respondent, v. JOHNATHAN ALFRED ISAACS et al., Defendant and Appellant.

Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant Jonathan Alfred Isaacs. Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant Jayshawn Lamont Davis. Xavier Becerra, Attorney General, Gerald A. Engler, and Julie L. Garland, Assistant Attorneys General, Charles C. Ragland and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.

O'ROURKE, Acting P. J.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. FWV17000309, FWV17000308) APPEALS from judgments of the Superior Court of San Bernardino County, Brigid M. McCann, Judge. Judgments affirmed in part; reversed in part and remanded with directions. Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant Jonathan Alfred Isaacs. Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant Jayshawn Lamont Davis. Xavier Becerra, Attorney General, Gerald A. Engler, and Julie L. Garland, Assistant Attorneys General, Charles C. Ragland and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted Jonathan Alfred Isaacs and Jayshawn Lamont Davis (collectively, defendants) of second degree robbery (Pen. Code¹ § 211; count 1) and actively participating in felonious gang activity (§ 186.22, subd. (a); count 2, commonly known as street terrorism). The jury found true the allegations that both defendants committed the robbery for the benefit of or in association with a criminal street gang (§ 186.22, subd. (b)(1)). As to Isaacs, the jury was unable to reach a verdict on the allegation that he personally used a firearm, and as to Davis, the jury was unable to reach a verdict on the allegation that a principal in the robbery personally used a firearm. In bifurcated proceedings, the court found that Isaacs had a prior serious felony conviction (§ 667, subd. (a)(1)), which also qualified as a prior strike conviction (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)); and that Davis had served a prior prison term (§ 667.5, subd. (b)).

1 All further statutory references are to the Penal Code unless otherwise specified.

The court sentenced Isaacs to a prison term of 25 years, consisting of the upper term of five years for the robbery doubled to 10 years for the prior strike conviction, a consecutive term of five years for the prior serious felony conviction, and a consecutive term of 10 years for the gang enhancement. The court also sentenced Isaacs to the upper term of three years on the street terrorism count doubled to six years for the prior strike conviction to run concurrently with the term for the robbery conviction.

The court sentenced Davis to a prison term of 14 years, consisting of the middle term of three years for the robbery, a consecutive term of 10 years for the gang enhancement, and a consecutive one-year term for the prior prison term enhancement. The court also sentenced Davis to the middle term of two years on the street terrorism count and stayed sentence on that count.

Both defendants contend there was insufficient evidence to support their gang enhancements under section 186.22, subdivision (b)(1) and, alternatively, that the matter must be remanded for reconsideration of their unsuccessful motions to strike the gang enhancements because the court did not recognize its discretion to strike the 10-year enhancement and impose a five-year enhancement instead under sections 186.22, subdivision (g) and 1385.

Isaacs additionally contends (1) his robbery and street terrorism convictions must be reversed because his trial counsel admitted at trial that Isaacs committed the robbery; (2) if the robbery conviction is not reversed, the court must be directed to stay punishment on the street terrorism conviction; (3) the trial court abused its discretion in denying his motion to strike a prior strike conviction; (4) the case must be remanded for resentencing to allow the trial court to exercise its new discretion under Senate Bill No. 1393 to strike the serious felony enhancement imposed under Penal Code section 667, subdivision (a); and (5) the fees imposed at sentencing under Penal Code section 1465.8 and Government Code section 70737 are unconstitutional because the trial court did not make a determination that he has the present ability to pay them, and the restitution fine under section Penal Code 1202.4 must be stayed until the prosecutor proves that he has the ability to pay.

Davis additionally contends that (1) the abstract of judgment must be corrected to reflect the proper amounts of court operations assessments and criminal conviction assessments; and (2) on remand the trial court should strike the one-year prior prison term enhancement under Senate Bill No. 136, which went into effect on January 1, 2020, and amended section 667.5, subdivision (b) to eliminate the one-year prior prison term enhancement, except when the prison term was served for a qualifying sexually-violent offense.

We reverse the judgments as to the sentences, remand for resentencing, and otherwise affirm.

FACTS

On January 7, 2017, at about 11:15 a.m., defendants and DeShawn Miller entered a GameStop store in Montclair. GameStop is a specialty retailer that sells video games and related hardware and software. When defendants and Miller entered the store, there were about six customers in the store and one employee—the store's assistant manager, Michael McMullin.

After the other customers left the store, defendants were standing by the register discussing a game system with McMullin, who was standing behind a counter. Miller walked around the counter, pointed what looked like a revolver at McMullin and ordered him to open the registers. McMullin opened two registers and Miller ordered him to lie down on the floor. McMullin complied. While he was lying on the floor, Miller and Isaacs took all of the cash from the registers and took several game systems and video games from the shelves. Davis removed McMullin's wallet from his pocket and put it back about five seconds later. Nothing was taken from the wallet, which contained a driver's license, credit card, and debit card, but no cash.

Isaacs and Miller left the store and Davis followed them about five seconds later. About five or six seconds after they left, McMullin got up and called 911 on the store phone. As he was making the call, he went to the door to lock it and saw defendants and Miller driving away in a red Jetta.

The entire incident was recorded with video surveillance cameras located inside the store. While the police were investigating the scene, they found Isaacs's cell phone behind the store's counter.

Gang evidence

At trial, Detective Jacob Medina, a Rialto police officer assigned to the gang unit, testified as the prosecution's gang expert. Medina testified that he was familiar with the Rialto gang called No Cutts. He had contacted numerous members of the gang, investigated crimes related to the gang, spoken with officers involved in past investigations of the gang, and seen social media and music videos relating to the gang. The gang's territory in Rialto was primarily the 400 block of West Jackson Street.

Medina testified that based on his background, training, and experience, Isaacs, Davis, and Miller were all members of the No Cutts gang.² The No Cutts gang had approximately 40 members, and its primary activities included the crimes of robbery, burglary, attempted burglary and felon in possession of a firearm. Members of the gang had committed numerous "predicate" offenses, including Isaacs's commission of an attempted residential burglary and Davis's commission of felon in possession of a firearm.³

2 Medina's opinion that Isaacs, Davis, and Miller were members of No Cutts was largely based on photographs on social media sites of them and other gang members throwing gang signs, wearing gang attire, and displaying gang tattoos.

3 To sustain a criminal street gang enhancement, the prosecution has the burden to prove that the gang " 'includes members who either individually or collectively have engaged in a "pattern of criminal gang activity" by committing, attempting to commit, or soliciting two or more of the enumerated offenses (the so-called "predicate offenses") during the statutorily defined period.' " (People v. Sanchez (2016) 63 Cal.4th 665, 698; see § 186.22, subds. (e) & (f).) There is no issue in this appeal regarding predicate offenses, whether the No Cutts gang is a "criminal street gang" within the meaning of section 186.22, or whether defendants and Miller were members of the gang.

The prosecutor gave Medina the following hypothetical based on the facts of the case: "Three gang members of the same gang drive to a store. They come in together. They rob an employee of merchandise and money. They work together in the robbery. One initially has the gun and orders the cashier to empty the register. The other two take merchandise, with one of them even checking . . . the cashier's wallet. One is wearing gang affiliated clothing." After being asked to slow down, the prosecutor continued: "So I mentioned that one is wearing gang affiliated clothing. Another uses a gun. All three leave together carrying merchandise and leave in the same car."

The prosecutor then asked Medina whether, based on that hypothetical, he had an opinion as to whether "their actions in this robbery were done to benefit that gang[.]" Medina testified that the robbery benefited the gang as follows: "By all three subjects going into the store and committing the crime together, it benefits ones [sic] own reputation, due to the fact, also, two other gang members are there witnessing this crime, or this incident being done. [¶] Also, the items that are taken can be used to furnish items that might be valuable to that gang. And as I stated, it bolsters one's reputation within that gang." Medina testified that bolstering individual gang members' reputations affects the whole gang's reputation by showing the gang was not weak and was willing to commit crimes.

Medina later similarly testified: "By the hypothetical, so three subjects from the same gang went into the store and committed the robbery. By all three subjects going in together, and all three being from the same gang, it allows each member to know that there are subjects willing to put in work for that gang. So it benefits them as far as for knowing that subjects are still committed to that gang." When asked how that benefited the gang as a whole, he stated, "By allowing other gang members and the gang as a whole[ to know] that there are members that are willing to put in work."

Medina testified that the robbery was committed in association with the No Cutts gang "[b]ecause based on the hypothetical, you have three subjects all from the same gang, participating in that robbery together." When asked whether the fact that in the hypothetical, one of the gang members was wearing gang affiliated clothing had any impact on his opinion that the robbery was done in association with that gang, Medina responded, "As far as in association with, just the apparel alone isn't enough for me." The prosecutor asked, "So for the association, you're saying just the sheer number, the fact that that's three individuals from same gang is, in your opinion, why it's in association with the gang?" Medina responded, "Correct. Based off the hypothetical. Yes."

Medina further testified that assuming facts from the hypothetical, he was of the opinion that defendants and Miller acted with the specific intent to promote, further, or assist in criminal conduct by gang members in committing the robbery. He explained that "they were all assisting one another during this incident. They all went in together[,] they all committed the robbery together[,] and they were all assisting in that crime."

DISCUSSION

I. Isaacs's Counsel's Concession of Guilt of Robbery

Isaacs contends his robbery and street terrorism convictions must be reversed because his trial counsel admitted at trial that he committed the robbery and there is no evidence that he voluntarily and intelligently waived his constitutional trial rights.⁴ Because resolution of this contention in Isaacs's favor would render moot his other contentions, we address it first and conclude that it lacks merit.

4 Davis does not raise this issue, although his counsel conceded Davis's guilt of the robbery charge multiple times during closing argument. Counsel also conceded that Davis was a gang member.

During closing argument, Isaacs's counsel, in trying to persuade the jury not to find true the gang enhancement allegation against Isaacs, stated: "It's not a gang crime. It's a robbery. It may be armed robbery, but it's a robbery pure and simple. Prison is there. It's happening. But don't give everything to them. Don't give them what they haven't earned." Isaacs argues that this concession by his counsel was tantamount to a guilty plea and requires reversal of his convictions under McCoy v. Louisiana (2018) — U.S. — [138 S.Ct. 1500, 200, L.Ed.2d 821] (McCoy) and People v. Farwell (2018) 5 Cal.5th 295 (Farwell). We disagree.

This court has rejected similar contentions that defense counsel improperly conceded guilt in People v. Marsh (2019) 37 Cal.App.5th 474 (Marsh) and People v. Burns (2019) 38 Cal.App.5th 776 (Burns). In Burns, the defendant relied on McCoy and Farwell in arguing that his counsel's concession of his guilt on two counts during opening and closing statements without his express consent violated his constitutional rights to the effective assistance of counsel, jury trial, confrontation, and silence because it was tantamount to a guilty plea to which he never agreed. (Burns, at pp. 779, 781-782.)

The Burns court noted that " '[s]everal federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial.' [Citation.] 'These include the privilege against self-incrimination, the right to trial by jury, and the right to confrontation.' [Citation.] For a plea to be constitutionally valid, the record must demonstrate a defendant's knowing and voluntary waiver of these three constitutional trial rights, now known as a 'Boykin-Tahl waiver';[⁵] waiver cannot be presumed from a silent record." (Burns, supra, 38 Cal.App.5th at p. 782.)

5 Boykin v. Alabama (1969) 395 U.S. 238, 243 and In re Tahl (1969) 1 Cal.3d 122, 132. Under Boykin and Tahl, "a guilty plea is not valid unless the record reflects the defendant had been advised of and waived his right to a jury trial, to confront and cross-examine witnesses, and against self-incrimination." (People v. Marella (1990) 225 Cal.App.3d 381, 385; People v. little (2004) 115 Cal.App.4th 766, 773 & fn. 4.)

"Counsel lacks authority to consent to a guilty plea on a client's behalf, and a client's tacit acquiescence in the decision does not suffice. [Citation.] It follows that 'in the event of a guilty plea or other conduct tantamount to a plea, "the record must demonstrate that the defendant voluntarily and intelligently waived his constitutional trial rights." ' Thus, the threshold question is whether defense counsel's concessions during his opening and closing statements at trial were tantamount to a guilty plea." (Burns, supra, 38 Cal.App.5th at p. 782.)

"On this threshold question, California law has long been settled: '[T]rial counsel's decision not to contest, and even expressly to concede, guilt on one or more charges . . . is not tantamount to a guilty plea requiring a Boykin-Tahl waiver.' [Citations.] The trial court has no duty to inquire whether the defendant agrees with his attorney's concession strategy, at least where there is no explicit indication he disagrees with the approach. [Citation.] Thus in [People v.] Cain [(1995) 10 Cal.4th 1, 30 and footnote 4 (Cain)], the California Supreme Court concluded that defense counsel's concession of his client's guilt as to murder and burglary charges during closing arguments was not equivalent to a guilty plea and did not necessitate a Boykin-Tahl waiver. [Citation.] A decade later, the United States Supreme Court [in Florida v. Nixon (2004) 543 U.S. 175, 188-189 (Nixon)] reached a similar conclusion: An attorney's concession of guilt, to which the defendant neither expressly consented nor objected, was not tantamount to a guilty plea because the defendant 'retained the rights accorded a defendant in a criminal trial.' " (Burns, supra, 38 Cal.App.5th at pp. 782-783.) The same applies here: Isaacs's counsel's concession in closing argument that Isaacs was guilty of robbery was not tantamount to a guilty plea requiring Isaacs's consent and a Boykin-Tahl waiver because Isaacs retained the rights accorded to a defendant in a criminal trial.

McCoy does not help Isaacs. The defendant in McCoy "vociferously insisted that he did not engage in the charged acts and adamantly objected to any admission of guilt. [Citation.] Yet the trial court permitted counsel, at the guilt phase of a capital trial, to tell the jury the defendant 'committed three murders . . . . [H]e's guilty.' " (McCoy, supra, 138 S.Ct. at p. 1505.) The McCoy court held "that a defendant has the right to insist that counsel refrain from admitting guilt, even when counsel's experienced-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty. . . . With individual liberty—and, in capital cases, life—at stake, it is the defendant's prerogative, not counsel's, to decide on the objective of his defense: to admit guilt in the hope of gaining mercy at the sentencing stage, or to maintain his innocence, leaving it to the State to prove his guilt beyond a reasonable doubt." (Ibid.) "If a client declines to participate in his defense, then an attorney may permissibly guide the defense pursuant to the strategy [he or] she believes to be in the defendant's best interest. Presented with express statements of the client's will to maintain innocence, however, counsel may not steer the ship the other way." (Id. at p. 1509, italics added.) That is, "counsel may not admit [his or] her client's guilt of a charged crime over the client's intransigent objection to that admission." (Id. at p. 1510.)

McCoy is inapposite because nothing in the record indicates that Isaacs expressly objected to his counsel's admission of guilt on the robbery charge during closing argument. In People v. Lopez (2019) 31 Cal.App.5th 55 (Lopez), the Court of Appeal concluded defense counsel's concession of defendant's guilt on a hit-and-run charge during closing argument did not violate the defendant's constitutional rights under McCoy because there was no evidence that defendant objected to his counsel's decision to concede guilt. The Lopez court rejected the defendant's argument that McCoy should be extended to cases where the defendant has not expressly objected to defense counsel's concession of guilt, concluding "such an extension is not supported by the controlling authority." (Ibid.)

This court followed Lopez in Marsh and Burns, noting in Burns that "McCoy is . . . predicated on a client's express objection to defense counsel's concession strategy. Writing for the majority, Justice Ginsberg distinguished her earlier opinion in Nixon on this very basis: 'in contrast to Nixon, the defendant [in McCoy] vociferously insisted that he did not engage in the charged acts and adamantly objected to any admission of guilt.' (McCoy, supra, 138 S.Ct. at p. 1505.)" In the present case, as in Burns and in Lopez, "there is nothing in the record to suggest [Isaacs] disagreed with his counsel's concession strategy. [Citation.] McCoy does not apply." (Burns, supra, 38 Cal.App.5th at pp. 784-785, fn. omitted.)⁶

6 In his reply brief, Isaacs notes that Lopez relied solely on death penalty cases in concluding the trial court has no duty to inquire whether the defendant agrees with his counsel's decision to make a concession when there is no explicit indication the defendant disagrees with it. (Lopez, supra, 31 Cal.App.5th at p. 66.) He argues that a defendant should not be required to object to a concession of guilt when his life is not at stake, because he may never imagine his counsel would concede his guilt, and he cannot object to something he does not know may occur. In People v. Flores (2019) 34 Cal.App.5th 270, this court concluded that although the United States Supreme Court in McCoy "discussed the capital nature of the case before it, it did not limit its holding to trials for capital offenses, and several aspects of the majority opinion confirm that the same right to dictate one's trial objective applies outside of trials for capital offenses—and perhaps with even greater strength." (Id. at p. 282.) As a corollary to that conclusion, we conclude McCoy's requirement that a defendant must have expressly objected to a concession of guilt to establish error is likewise not limited to capital cases. We decline to extend McCoy's holding to a case where, as here, the record does not show that the defendant expressly disagreed with his counsel's decision relating to his right to control the objective of his defense. (See Lopez, at p. 66.)

Farwell is also inapposite. In that case, the California Supreme Court held that "[a] stipulation that admits all of the elements of a charged crime necessary for a conviction is tantamount to a guilty plea. [Citations.] Accordingly, the record must demonstrate that the defendant voluntarily and intelligently waived his constitutional trial rights." (Farwell, supra, 5 Cal.5th at pp. 299-300.) Isaacs contends his counsel's concession of guilt on the robbery count was likewise tantamount to a guilty plea that required his voluntary and intelligent waiver of constitutional trial rights because it admitted all of the elements necessary for a conviction and relieved the prosecution of its burden of proof on that count. Like the defendant in Burns, Isaacs "suggests there is no meaningful distinction between stipulating to the elements of a crime and conceding guilt during attorney argument[.]" (Burns, supra, 38 Cal.App.5th at p. 784.) However, as noted in Lopez and Burns, "courts have repeatedly drawn such distinctions." (Ibid.; Lopez, supra, 31 Cal.App.5th at p. 65.)

The Lopez court found Farwell was distinguishable, explaining the defendant in Farwell "was charged with gross vehicular manslaughter and misdemeanor driving with a suspended license. [Citation.] During trial, the parties entered into a stipulation admitting all the elements of the misdemeanor charge; the court later instructed the jury that it must accept the stipulated facts as true. [Citation.] The court did not advise the defendant 'of the constitutional rights implicated by a guilty plea or the stipulation. Nor did it solicit a personal waiver of those rights.' [Citation.] Crucially, the Supreme Court found that a 'stipulation that admits all of the elements of a charged crime necessary for a conviction is tantamount to a guilty plea.' [Citation.] The court reasoned that the defendant's] 'stipulation conclusively established the stipulated facts as true and completely relieved the prosecution of its burden of proof on count 2. While the jury was still required to return a verdict on that count, its limited function did not amount to a jury trial in the constitutional sense.' [Citation.] Thus, because the stipulation conclusively established all of the elements of the misdemeanor, it made 'the guilty verdict a foregone conclusion.' " (Lopez, supra, 31 Cal.App.5th at p. 64.)

The Lopez court noted that unlike in Farwell, "there was no stipulation admitting the elements of the [conceded offense] as an evidentiary matter. Instead, the jury was instructed that the prosecution had to prove guilt on all counts beyond a reasonable doubt and that statements by counsel were not evidence. Thus, the prosecution was still required to present 'competent, admissible evidence establishing the essential elements' of each charge. [Citation.] The prosecutor's remark during closing argument that appellant's guilt on the hit[-]and[-]run was 'obvious' and decision not to argue the evidence on that count did not change the burden of proof, nor did it limit the scope of the jury's role." (Lopez, supra, 31 Cal.App.5th at p. 64; accord, Burns, supra, 38 Cal.App.5th at pp. 783-784 [defense counsel's concession of guilt did not relieve prosecution of its burden to establish the essential elements of each charge with competent evidence, change the prosecution's burden of proof, or limit the scope of the jury's role]; Marsh, supra, 37 Cal.App.5th at pp. 491-492 [same].)

The distinction between Lopez and Farwell applies here. Unlike in Farwell, there was no stipulation by which Isaacs admitted the elements of the robbery charge as an evidentiary matter, and the jury was instructed with CALCRIM No. 220 that the prosecution had to prove guilt beyond a reasonable doubt and with CALCRIM No. 222 that statements made by attorneys were not evidence. The prosecution was still required to present competent, admissible evidence establishing the elements of the robbery charge and defense counsel's concession of guilt did not limit the scope of the jury's role. Thus, Isaacs's counsel's concession of guilt on the robbery count was not tantamount to a guilty plea under Farwell that required his consent and a knowing waiver of his constitutional trial rights. Accordingly, the concession does not require reversal of Isaacs's robbery and street terrorism convictions.

II. Sufficiency of the Evidence to Support the Gang Enhancements

Defendants both contend there was insufficient evidence to support their gang enhancements under section 186.22, subdivision (b)(1).

"We review the sufficiency of the evidence to support an enhancement using the same standard we apply to a conviction." (People v. Wilson (2008) 44 Cal.4th 758, 806.) "In considering a challenge to the sufficiency of the evidence to support an enhancement, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] 'A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' " (People v. Albillar (2010) 51 Cal.4th 47, 59-60 (Albillar).)

Section 186.22, subdivision (b)(1) provides a sentencing enhancement for felonies "committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members."⁷ Thus, to subject a defendant to a gang enhancement under section 186.22, subdivision (b)(1), "the prosecution must prove that the underlying crime was 'committed for the benefit of, at the direction of, or in association with any criminal street gang' (the gang-related prong), 'with the specific intent to promote, further, or assist in any criminal conduct by gang members' (the specific intent prong). (§ 186.22, subd. (b)(1)[.])" (People v. Rios (2013) 222 Cal.App.4th 542, 564.)

7 The term "criminal street gang" is defined in section 186.22, subdivision (f), which provides that the gang must consist of "three or more persons" who have as one of their "primary activities the commission of" certain enumerated criminal acts; who share "a common name or common identifying sign or symbol"; and "whose members individually or collectively engage in, or have engaged in, a pattern of criminal gang activity."

"It is well settled that a trier of fact may rely on expert testimony about gang culture and habits to reach a finding on a gang allegation. [Citation.] California law permits a person with ' "special knowledge, skill, experience, training, or education" in a particular field to qualify as an expert witness (Evid. Code, § 720) and give testimony in the form of an opinion [citation].' [Citation.] However, Evidence Code section 801 limits this testimony to that related to a subject ' "sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." ([Id.,] subd. (a).) The subject matter of the culture and habits of criminal street gangs . . . meets this criterion.' " (In re Frank S. (2006) 141 Cal.App.4th 1192, 1196-1197 (Frank S.).) " ' "Expert opinion that particular criminal conduct benefited a gang" is not only permissible but can be sufficient to support [a] gang enhancement.' " (People v. Weddington (2016) 246 Cal.App.4th 468, 483.) However, "expert testimony that is unsupported by any evidence that the crime was gang related is insufficient to support a gang enhancement." (Id. at pp. 483-484.)

We conclude there was sufficient evidence to support the jury's true findings on the gang enhancement allegations against defendants. Defendants challenge only the sufficiency of the evidence to establish the first "gang-related" prong of section 186.22, subdivision (b)(1)-i.e., that the robbery was committed for the benefit of, at the direction of, or in association with their criminal street gang No Cutts. The People argue defendants' gang enhancements should be upheld because there was substantial evidence the robbery was committed in association with No Cutts. We agree.

"Committing a crime in concert with known gang members can be substantial evidence that the crime was committed in 'association' with a gang. [Citation.] A crime is committed in association with the gang if the 'defendants relied on their common gang membership and the apparatus of the gang' " when they committed the crime. (People v. Garcia (2016) 244 Cal.App.4th 1349, 1367, quoting Albillar, at p. 60.) In Albillar, the California Supreme Court focused on the act of "[c]ommitting a crime with fellow gang members . . . ." (Albillar, at p. 61.) Albillar instructs that when a defendant and others with "common gang membership" come "together as gang members" to commit a crime, the "in association with" element of the gang enhancement is satisfied. (Id. at p. 62.) Here, the jury could reasonably find that defendants and Miller came together as gang members to commit the robbery from the undisputed fact that they were all members of the No Cutts criminal street gang.

In People v. Morales (2003) 112 Cal.App.4th 1176 (Morales), the defendant and two fellow gang members committed a robbery. On appeal, the defendant claimed there was insufficient evidence to support a gang sentence enhancement under section 186.22, subdivision (b)(1) because "reliance on evidence that one gang member committed a crime in association with other gang members is 'circular . . . .' " (Id. at p. 1198.) The Morales court rejected that claim and observed that in determining whether a crime was gang related, "the typical close case is one in which one gang member, acting alone, commits a crime. Admittedly, it is conceivable that several gang members could commit a crime together, yet be on a frolic and detour unrelated to the gang. Here, however, there was no evidence of this. Thus, the jury could reasonably infer the requisite association from the very fact that defendant committed the charged crimes in association with fellow gang members." (Ibid., italics added.)⁸ Other courts have followed this reasoning. (People v. Leon (2016) 243 Cal.App.4th 1003, 1021 ["A trier of fact can rationally infer a crime was committed 'in association' with a criminal street gang within the meaning of section 186.22, subdivision (b) if the defendant committed the offense in concert with gang members."]; People v. Leon (2008) 161 Cal.App.4th 149, 163 [evidence that defendant committed crimes with a fellow gang member was evidence that defendant committed the offenses " 'in association with any criminal street gang' "]; People v. Williams (2009) 170 Cal.App.4th 587, 625 [" 'the jury could reasonably infer the requisite association from the very fact that defendant committed the charged crimes in association with fellow gang members' "]; People v. Martinez (2008) 158 Cal.App.4th 1324, 1332 [evidence supported finding that robbery was committed "in association with" the gang with the intent to assist criminal conduct where the defendant admitted gang membership, committed the robbery with another admitted gang member, and gang expert testified this evidence showed defendant committed the robbery in association with the gang]; In re Daniel C. (2011) 195 Cal.App.4th 1350, 1358-1359 [evidence that appellant committed the crime with another gang member and affiliate and that appellant and his companions wore clothing bearing the gang's color was sufficient to support first prong finding that the crime was committed in association with the gang]; People v. Garcia, supra, 244 Cal.App.4th at p. 1367 ["Committing a crime in concert with known gang members can be substantial evidence that the crime was committed in 'association' with a gang.].)

8 In Albillar, the majority cited Morales with approval in reaching its conclusion that the three defendant gang members in that case committed rape and other sex crimes against a single female victim in association with their gang because they "came together as gang members to attack [the victim]" (Albillar, supra, 51 Cal.4th at p. 62) and "relied on their common gang membership and the apparatus of the gang" to commit the crimes. (Id. at p. 60.) That reliance was sufficient to establish the defendants committed the crime not simply in association with each other, but in association with the gang itself. (Id. at p. 62.)

Thus, the jury here could reasonably infer defendants committed the robbery in association with their gang from the fact they committed the robbery in association with each other and Miller. Defendants and Miller worked as a team in committing the robbery. Defendants engaged McMullin by discussing a game system with him while Miller walked around the counter and then pointed a gun at McMullin and ordered him to open the registers and lie on the floor. Davis watched over McMullin and removed his wallet from his pocket while Isaacs and Miller stole merchandise. Medina testified that the robbery was committed in association with the No Cutts gang. Robbery was one of the gang's primary activities, and Medina was aware of five other robberies committed by members of No Cutts. He testified that gang members earn trust within the gang by committing crimes with other gang members. They will sometimes commit crimes outside their gang territory where they are less likely to be identified by somebody that lives in the area or by police. Gang members do not always flaunt their gang when committing a crime. As noted, "a trier of fact may rely on expert testimony about gang culture and habits to reach a finding on a gang allegation." (Frank S., supra, 141 Cal.App.4th at p. 1196.) Based on the facts of the robbery and Medina's testimony, the jury could reasonably find the robbery was committed in association with the No Cutts gang.

The People acknowledge that under Morales and cases following it, evidence that two or more gang members committed a crime "on a frolic or detour unrelated to the gang" could support a finding that the crime was not committed in association with the gang.⁹ The People maintain there is no evidence that defendants and Miller were on such a detour. Davis argues it was not defendants' burden to show they were on such a detour; it was the prosecution's burden to prove they were not.

9 The word "frolic" is defined as "1 a playful trick; prank 2 a lively party or game 3 merriment; gaiety; fun[.]" (Webster's New World Dict. (3d college ed. 1989) p. 542.) It is unlikely that any reasonable trier of fact would view an armed robbery as falling within any of these definitions.

In our view, the prosecution was not required to prove a negative-i.e., it was not the prosecution's burden to affirmatively prove that the robbery was not a frolic and detour unrelated to the gang. (See People v. Le (2000) 82 Cal.App.4th 1352, 1362 [" 'To require a prosecutor to prove a negative as an element of an offense defies the grand logic of the law.' "].) The prosecution's burden was to present sufficient evidence that the robbery was committed in association with the gang to support true findings on the gang enhancement allegations, and the prosecution did that here.¹⁰

10 We are not aware of any published California opinion in which a reviewing court has concluded that a gang enhancement finding was insufficiently supported by the evidence because there was evidence that a crime committed by two or more gang members was a frolic and detour unrelated to the gang or because the prosecution failed to prove the crime was not such a frolic and detour.

There is no standard jury instruction that to make a true finding on a gang enhancement allegation under section 186.22, subdivision (b)(1), the jury must find that a crime committed by two or more gang members was not a "frolic and detour" unrelated to the gang, and the jury was not specially instructed on that point here. We believe it was unnecessary to instruct the jury that the robbery was not gang related if defendants were on a frolic and detour unrelated to gang activity because to say that two or more defendants are on a "frolic and detour unrelated to the gang" when they commit a crime is simply another way of saying that the crime is not "gang related,"—i.e., that it was not committed for the benefit of, at the direction of, or in association with the gang. Defense counsel was free to argue to the jury that it should find the robbery was unrelated to the gang, and Davis's counsel did so, including specifically arguing that the robbery was not committed in association with the gang.¹¹

11 Isaacs's closing argument regarding the gang enhancement focused on whether the beanie he wore during the robbery was a University of North Carolina (UNC) beanie that represented the No Cutts gang, as Medina testified. Medina testified that No Cutts gang members wore UNC attire and had "NC" tattoos because "NC" represented No Cutts. On appeal, Isaacs challenges the beanie as being insufficient evidence that the robbery was committed for the benefit of the gang. Davis views the beanie as being a basis for Medina's opinion that the robbery was committed in association with the gang, and argues at length that the beanie was not a UNC beanie, noting Medina's opinion that the beanie represented UNC was based on the fact it had a blue stripe, which Medina believed was UNC Tar Heel blue, and an insignia that he believed represented UNC even though there was no "NC" on the insignia.
We agree with defendants' view that Medina's associating the beanie with UNC was speculation and not substantial evidence that the beanie represented UNC and, accordingly, the No Cutts gang. However, we need not address this issue further because Medina's view that the beanie represented UNC did not go to his opinion that the robbery was committed in association with the gang or was otherwise gang related; it went solely to his opinion that Isaacs was a member of the gang. Although the prosecutor included in his hypothetical that one of the gang members "was wearing gang affiliated clothing," which could only refer to the purported UNC beanie, Medina did not reference the beanie in explaining his opinions that the robbery benefited and was committed in association with the gang. To the contrary, as noted, when the prosecutor asked Medina: "The fact that in the hypothetical, there was gang affiliated clothing, in addition to what you just mentioned with three members total, does the fact that there's gang affiliated clothing have any influence or any impact on your opinion that it was done in association with that gang?" Medina responded: "As far as in association with, just the apparel alone isn't enough for me." (Italics added.) Medina then testified that his opinion that the robbery was committed in association with the gang was based on the fact in the hypothetical that three gang members committed the robbery together. Thus, Medina's view that Isaacs's beanie was a UNC beanie supported his opinion that Isaacs was a member of the No Cutts gang, a fact that is not in dispute in this appeal, but it was not a basis for his opinion that the robbery was committed in association with the gang.

Although it is unnecessary to address whether the jury could reasonably find the robbery was committed for the benefit of the gang in light of our conclusion that substantial evidence supported a finding that the robbery was committed in association with the gang, we conclude the jury could also reasonably find the robbery was committed for the benefit of the gang based on Medina's testimony that the robbery benefited the gang. As noted, Medina testified that robbery was a primary activity of the No Cutts gang and he opined that an individual gang member's reputation in the gang is bolstered by committing a crime with other gang members. When an individual member's reputation is bolstered by committing a crime with other members, it benefits the gang as a whole by showing the gang is willing to commit crimes and is not weak. "Expert opinion that particular criminal conduct benefited a gang by enhancing its reputation for viciousness can be sufficient to raise the inference that the conduct was 'committed for the benefit of . . . a[] criminal street gang' within the meaning of section 186.22[, subdivision ](b)(1)." (Albillar, supra, 51 Cal.4th at p. 63.)

Even if the jury could have reasonably inferred from the evidence that defendants' participation in the robbery was unrelated to their gang membership, it was also reasonable for the jury to find defendants committed the robbery as gang members for the benefit of and in association with the gang. We will not reverse the jury's gang enhancement findings in such circumstances. (See Albillar, supra, 51 Cal.4th at p. 60 ["If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding."]; People v. Vasquez (2015) 239 Cal.App.4th 1512, 1517 ["We must accept logical inferences that the jury might have drawn from the evidence although we would have concluded otherwise."].) The evidence sufficiently supported the jury's true findings on the gang enhancement allegations.

III. The Trial Court Lacked Discretion to Strike the 10-Year Enhancement and Impose a

Five-Year Enhancement

Defendants argue the matter must be remanded for reconsideration of their unsuccessful motions to strike the gang enhancements because the court did not recognize its discretion to strike the 10-year enhancement and impose a five-year enhancement instead under sections 186.22, subdivision (g) and 1385.¹² We conclude the trial court lacked discretion to impose a five-year enhancement in place of the 10-year enhancement.

12 Davis filed a written motion to "strike the punishment" for his gang enhancement under section 186.22, subdivision (g), and argues in his opening brief that the motion should be reconsidered because the court did not recognize it had discretion to impose a five-year enhancement instead of the 10-year enhancement. Isaacs filed a supplemental brief joining in and expanding on Davis's argument on appeal. In the trial court, Isaacs did not file a written motion to strike his gang enhancement; he filed a "Romero [m]otion" to dismiss or "strike" the allegation of his prior felony conviction under section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). However, at sentencing Isaacs's counsel asked the trial court to "stay the punishment of the gang allegations" for the same reasons he asked the court to strike Isaacs's prior strike conviction.
The trial court denied Isaacs's Romero motion, and then addressed his request to stay or strike the gang enhancement, stating it was satisfied "beyond a reasonable doubt" that the enhancement allegation was proven, that defendants were in "the classification of individuals that the law was intending to punish more harshly than those who would otherwise . . . commit the offense," and that the court was "going to impose the [section] 186.22 gang enhancement" and was "not going to strike or stay it." The court's written minutes from Issacs's sentencing hearing reflect that the court denied both his Romero motion and his "Motion to Strike [Section] 186.22." Under these circumstances, we deem Isaacs to have moved to strike the punishment for his gang enhancement under section 186.22, subdivision (g), even though he did not file a written motion.

Section 186.22, subdivision (b)(1) provides, in relevant part, that "any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished as follows: [¶] . . . [¶] (B) If the felony is a serious felony, as defined in subdivision (c) of Section 1192.7, the person shall be punished by an additional term of five years. [¶] (C) If the felony is a violent felony, as defined in subdivision (c) of Section 667.5, the person shall be punished by an additional term of 10 years." In count 1 of the second amended information, the prosecution specifically alleged a gang enhancement with a 10-year term under section 186.22, subdivision (b)(1)(C), as to both defendants, and the court imposed that enhancement.

Section 186.22, subdivision (g) provides: "Notwithstanding any other law, the court may strike the additional punishment for the enhancements provided in this section or refuse to impose the minimum jail sentence for misdemeanors in an unusual case where the interests of justice would best be served, if the court specifies on the record and enters into the minutes the circumstances indicating that the interests of justice would best be served by that disposition."

Section 1385 provides, in relevant part: "(a) The judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. The reasons for the dismissal shall be stated orally on the record. . . . [¶] (b)(1) If the court has the authority pursuant to subdivision (a) to strike or dismiss an enhancement, the court may instead strike the additional punishment for that enhancement in the furtherance of justice in compliance with subdivision (a). [¶] (2) This subdivision does not authorize the court to strike the additional punishment for any enhancement that cannot be stricken or dismissed pursuant to subdivision (a)." Although section 186.22, subdivision (g), does not refer to section 1385, the California Supreme Court has held that a court has discretion to strike a gang enhancement under section 1385. (People v. Fuentes (2016) 1 Cal.5th 218, 222, 231.)¹³

13 Davis bases his argument regarding the court's discretion to substitute a lesser enhancement for a greater one on section 186.22, subdivision (g) in his opening brief and raises section 1385 in his reply brief. Isaacs bases his argument on both statutes in his supplemental opening and reply briefs.

Sentencing decisions are generally reviewed for abuse of discretion. (People v. Gibson (2016) 2 Cal.App.5th 315, 325.) However, " 'an erroneous understanding by the trial court of its discretionary power is not a true exercise of discretion.' " (People v. Aubrey (1998) 65 Cal.App.4th 279, 282.) "Failure to exercise a discretion conferred and compelled by law constitutes a denial of a fair hearing and a deprivation of fundamental procedural rights, and thus requires reversal." (People v. Penoli (1996) 46 Cal.App.4th 298, 306.) Defendants' claim presents a question of law subject to de novo review because it is based on their interpretation of the court's power under sections 186.22, subdivision (g), and 1385, and thus raises a question of statutory interpretation (John v. Superior Court (2016) 63 Cal.4th 91, 95), and because it involves the scope of the trial court's discretion, rather than its exercise (People v. Garcia (2020) 46 Cal.App.5th 786, 790 (Garcia)).

Davis filed a posttrial motion to strike the gang enhancement under section 186.22, subdivision (g) and, as noted, Isaacs's counsel unsuccessfully requested the same relief. Davis argued the interests of justice would be served if the court struck the enhancement because (1) he wanted to accept the prosecution's offer of a plea bargain under which he would have served nine years in prison, but the deal was contingent on Isaacs's also accepting a plea bargain and Isaacs refused; and (2) the facts of the robbery were not related to the No Cutts gang, other than the fact that defendants and Miller were all from the gang. Davis also filed a motion for new trial as to the gang enhancement on the ground there was insufficient evidence to support the jury's true finding on the enhancement. The court denied both motions. During the hearing on the motion to strike the enhancement, the court stated, "[T]he [L]egislature was clear on this. It has given the Court a range on other crimes in terms of a gang enhancement. It did not give the Court a range on this. So it's all or nothing."¹⁴

14 The court's reference to "a range on other crimes in terms of a gang enhancement" presumably was a reference to gang enhancements under section 186.22, subdivision (b)(1)(A), for felonies that are not serious or violent. That subdivision provides for "an additional term of two, three, or four years at the court's discretion."

Davis argues that because robbery is both a serious felony (§ 1192.7, subd. (c)(19)) and a violent felony (§ 667.5, subd. (c)(9)), the jury's true finding on the gang enhancement allegation under section 186.22, subdivision (b)(1)(C) necessarily encompassed a true finding under section 186.22, subdivision(b)(1)(B); therefore, the court had discretion to impose the lesser five-year enhancement even though the prosecution did not charge the lesser enhancement. Davis argues the court abused its discretion by denying the motion to strike the enhancement without recognizing that it had discretion to impose the lesser enhancement instead of the greater enhancement.

In supplemental briefing, Isaacs cites case law supporting the principle that a court may impose a " 'lesser included' " enhancement that was not charged in the information when a greater charged enhancement found true by the trier of fact is either legally inapplicable or is insufficiently unsupported by the evidence. (E.g., People v. Fialho (2014) 229 Cal.App.4th 1389, 1395-1396.) In addition, Isaacs relies on People v. Morrison (2019) 34 Cal.App.5th 217 (Morrison) as analogous authority for his claim that the trial court had the discretion to impose the five-year enhancement under section 186.22, subdivision (b)(1)(B) instead of the 10-year enhancement under subdivision (b)(1)(C) even though the information did not allege the subdivision (b)(1)(B) enhancement.

In Morrison, the defendant was sentenced to a prison term of 50 years to life, consisting of 25 years to life for a murder conviction and 25 years to life for a firearm enhancement under section 12022.53, subdivision (d). The defendant moved to recall his sentence based on amendments to section 12022.53 that gave the court the discretion to strike a firearm enhancement. (Morrison, supra, 34 Cal.App.5th at p. 220.)¹⁵ The trial court recalled the sentence but denied defendant's request to strike the firearm enhancement and reimposed defendant's original sentence. (Ibid.) On appeal, the defendant contended the case should be remanded for resentencing because the trial court did not understand the scope of its discretion, which, defendant argued, included the discretion to replace the 25-year-to-life enhancement under section 12022.53, subdivision (d) with a lesser enhancement under subdivision (b) or (c), which carry terms of 10 years or 20 years, respectively. (Id. at p. 221.) The Morrison court agreed. (Id. at pp. 220, 222-223.)

15 Senate Bill No. 620 amended sections 12022.5 and 12022.53 by adding the following language to both statutes: " 'The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law.' " (Stats. 2017, ch. 682, §§ 1(c)-2(h).) (Morrison, supra, 34 Cal.App.5th at pp. 221-222.)

The Morrison court noted that under case law, "the [trial] court could impose [a lesser] uncharged enhancement under section 12022.53, subdivision (b) or (c) in lieu of [a greater] enhancement under section 12022.53, subdivision (d) if [the greater enhancement] was unsupported by substantial evidence or was defective or legally inapplicable in some other respect." (Morrison, supra, 34 Cal.App.5th at p. 222.) The Morrison court saw "no reason a court could not also impose one of these enhancements after striking an enhancement under section 12022.53, subdivision (d), under section 1385." (Id. at pp. 222-223.) The Morrison court believed its conclusion was "buttressed" by People v. Marsh (1984) 36 Cal.3d 134, 143-144 (Marsh), in which the California Supreme Court, in remanding the case for resentencing, held the trial court could strike allegations of ransom and, great bodily harm to make the defendant eligible for a California Youth Authority (YA) commitment.¹⁶ (Morrison, at p. 223.) Morrison quoted the following language in Marsh: " 'In discussing the scope of section 1385, we do not mean to suggest that the court's only choices are to strike both the bodily harm and ransom allegations for YA eligibility or to deny the motion entirely and sentence defendant to prison for life without possibility of parole. Although those were the only alternatives urged at the time of sentencing, we note that there is a broad range of sentencing options between those extremes. For example, the court could strike only the bodily harm allegation, thereby reducing the kidnaping sentence to life with possibility of parole, which carries a minimum parole eligibility term of seven years. [Citation.] . . . [¶] In sum, the court has a wide range of sentencing choices short of imposing life imprisonment without possibility of parole.' " (Ibid., quoting Marsh, at p. 144.)

16 In a footnote, the Morrison court noted that "[t]he Youth Authority is now known as the Division of Juvenile Facilities, which is part of the Division of Juvenile Justice, which in turn is part of the Department of Corrections and Rehabilitation." (Morrison, supra, 34 Cal.App.5th at p. 223, fn. 3.)

The Morrison court concluded that the trial "court had the discretion to impose an enhancement under section 12022.53, subdivision (b) or (c) as a middle ground to a lifetime enhancement under section 12022.53, subdivision (d), if such an outcome was found to be in the interests of justice under section 1385." (Morrison, supra, 34 Cal.App.5th at p. 223.) Isaacs argues that the present case is analogous to Morrison because the firearm enhancement statute and the gang enhancement statute both "provide for several levels of liability and both allow for the enhancement to be stricken in the interest of justice."

A number of published opinions have disagreed with Morrison and declined to follow it. In People v. Tirado (2019) 38 Cal.App.5th 637, 643, review granted November 13, 2019, No. S257658 (Tirado), the Court of Appeal noted that "[n]othing in the plain language of sections 1385 and 12022.53, subdivision (h) authorizes a trial court to substitute one enhancement for another. Section 12022.53, subdivision (h) uses the verbs 'strike' and 'dismiss,' and section 1385, subdivision (a) states the court may 'order an action to be dismissed.' This language indicates the court's power pursuant to these sections is binary: the court can choose to dismiss a charge or enhancement in the interest of justice, or it can choose to take no action. There is nothing in either statute that conveys the power to change, modify, or substitute a charge or enhancement."

The Tirado court noted its conclusion was "consistent with the well-settled principle that 'prosecuting authorities, exercising executive functions, ordinarily have the sole discretion to determine . . . what charges to bring.' " [Citation.] . . . [Citation.] 'The prosecution's authority in this regard is founded, among other things, on the principle of separation of powers, and generally is not subject to supervision by the judicial branch.' " (Tirado, supra, 38 Cal.App.5th at p. 644.) If the prosecution had alleged all three enhancements under section 12022.53 and the jury had found them all true "the court would have had the discretion to strike the section 12022.53, subdivision (d) enhancement and then either impose one of the other two enhancements or strike them as well. However, because the People exercised their charging discretion to allege only one enhancement, the trial court was limited to either imposing or striking that enhancement." (Tirado, at p. 644.) Although the trial court has authority to impose a lesser included enhancement when the charged enhancement is factually unsupported or legally inapplicable to the offense, the enhancement at issue in Tirado "was neither unsupported by the law nor unsupported by the evidence." (Ibid.) Regarding the contrary holding in Morrison, the Tirado court found the reasoning in Morrison unpersuasive and disagreed with it. (Ibid.)

In Garcia, the Court of Appeal addressed the same issue addressed in Morrison and Tirado, namely, whether a trial court has discretion to substitute a lesser firearm enhancement not presented to the jury for a greater firearm enhancement that the jury found true. (Garcia, supra, 46 Cal.App.5th at p. 788.) The Garcia court noted the disagreement between Morrison and Tirado on that question and that the California Supreme Court had granted review in Tirado. (Ibid.) Garcia explained it was publishing "to provide additional reasons supporting Tirado's position." (Ibid.)

The defendant in Garcia shot and killed the victim and was convicted of second degree murder. (Garcia, supra, 46 Cal.App.5th at p. 789.) Although the prosecution charged all three firearm enhancements under section 12022.53, with the concurrence of the parties the court instructed the jury only on the 25-year-to-life enhancement under section 12022.53, subdivision (d). (Garcia, at p. 789.) The jury convicted the defendant of second degree murder and found the firearm enhancement true. (Ibid.) The court sentenced the defendant to a prison term of 40 years to life, which included the 25-year-to-life firearm enhancement, and denied his motion to strike the firearm enhancement. (Ibid.) On appeal the defendant argued that the court erred by mistakenly believing "it was faced with an all-or-nothing choice between imposing a 25-year enhancement or no enhancement, when the court also had the option of imposing the lesser included 20-year or 10-year enhancements. The court's failure to appreciate its discretion, defendant [argued], constituted an abuse of discretion." (Id. at p. 790.)

The Garcia court "agree[d] with Tirado that section 12022.53, subdivision (h) does not grant a trial court the discretion to substitute lesser included enhancements, at least where the greater enhancement is legally and factually valid." (Garcia, supra, 46 Cal.App.5th at pp. 790-791.) The court articulated three reasons for its conclusion: (1) it is the result dictated by the statute's plain language, which "says nothing about substituting or modifying enhancements" (id. at p. 791); (2) it is the result dictated by the separation of powers absent a legislative override, because the decision of what charges to bring and which sentencing enhancements to allege "ordinarily belongs to the prosecutors who are charged with executing our state's criminal law" (ibid.); and (3) it is the result dictated by the rule that a court may instruct a jury on a lesser included offense or enhancement only if there is substantial evidence from which a rational jury could find that the defendant committed the lesser offense or enhancement and not the greater offense or enhancement (id. at p. 792).¹⁷

17 The Garcia court noted that in that case, "substantial evidence [did] not support instructing the jury on either of the lesser included firearm enhancements because no rational jury could find that defendant engaged in conduct warranting the lesser included enhancements (that is, personally using a firearm or intentionally discharging it but not causing serious bodily injury) but not the greater enhancement (that is, intentionally discharging the firearm and causing serious bodily injury). That is because it was undisputed that the victim was shot in the back of the head and died from that wound." (Garcia, supra, 46 Cal.App.5th at p. 792.)

The Garcia court observed that the Morrison court's contrary conclusion was based on two arguments that "do not withstand scrutiny." (Garcia, supra, 46 Cal.App.5th at p. 793.) "First, Morrison drew upon the well-recognized power of courts to impose a lesser included, but uncharged, enhancement 'when a greater enhancement found true by the trier of fact is either legally inapplicable or unsupported by sufficient evidence.' " (Ibid.) However, Garcia noted "this power is limited to situations where the greater enhancement is defective. That is because this inherent power of courts serves a very specific purpose—that is, to enable courts to salvage as much of the prosecutor's charging decision and the jury's verdict as possible by allowing them to substitute a lesser included enhancement also found by the jury rather than impose no enhancement at all. [Citations.] This line of authority does not provide any basis for extending the language of section 12022.53, subdivision (h) to allow a court to act when the greater enhancement is not defective and thus to substitute [in place of] a perfectly valid greater enhancement . . . a lesser included enhancement. That is because doing so would undercut—rather than effectuate—the prosecutor's charging decision and the jury's verdict." (Ibid.)

Second, Garcia criticized Morrison's reliance on the reference in Marsh to the trial court's broad range of sentencing options under section 1385 between striking or not striking the two enhancements imposed in that case. Garcia noted that "Marsh simply recognized that the trial court had the discretion under section 1385 to strike both of the kidnapping sentencing enhancements at play in that case, to strike only one of them, or to strike neither. [Citation.] Marsh's comment that a court could exercise its power to 'dismiss' individually charged and proven enhancements says nothing about whether the court also has the power to substitute lesser included enhancements for a valid greater enhancement." (Garcia, supra, 46 Cal.App.5th at pp. 793-794.) Garcia "join[ed] Tirado in its holding that section 12022.53, subdivision (h) does not grant trial courts the discretion to substitute lesser included firearm enhancements." (Id. at p. 794; accord, People v. Yanez (2020) 44 Cal.App.5th 452, review granted Apr. 22, 2020.)

The reasoning of Tirado and Garcia applies to the issue of whether the trial court here, in ruling on defendants' motions to strike their gang enhancements, had discretion to impose a lesser enhancement that was not presented to the jury in place of the greater enhancement under section 186.22, subdivision (b)(1)(C) as to which the jury made a true finding. The Tirado and Garcia courts' conclusion that a trial court lacks discretion to substitute a lesser uncharged firearm enhancement for a greater firearm enhancement presented to the jury supports our conclusion that the trial court here had discretion only to strike the gang enhancement presented to the jury or leave it intact; it had no discretion to substitute a lesser enhancement in its place. Like section 12022.53, subdivision (h), section 186.22, subdivision (g) says nothing about substituting or modifying enhancements, and the constitutional doctrine of separation of powers prohibits the judicial branch from supervising or second guessing the prosecution's decisions regarding what sentencing enhancements to charge. Because the trial court lacked discretion to impose a lesser uncharged enhancement, we will not remand for reconsideration of defendants' motions to strike their gang enhancements.

IV. Denial of Isaacs's Motion to Strike a Prior Strike

Isaacs contends the trial court abused its discretion in denying his motion under section 1385 and Romero to strike his prior strike conviction under the "Three Strikes" law in the furtherance of justice.¹⁸ Isaacs asked the court to dismiss the allegation of his 2012 conviction of attempted burglary (§§ 459, 664), which constitutes a "strike" under California's Three Strikes law.

18 Although a criminal defendant has no right to move to strike a prior felony conviction under section 1385 (People v. Hernandez (2000) 22 Cal.4th 512, 522), the defendant may ask the trial court to exercise its discretion under section 1385. (People v. Gillispie (1997) 60 Cal.App.4th 429, 432, 433, fn. 1 (Gillispie).) Such a request is commonly called a Romero motion.

The trial court's power to dismiss an action in the furtherance of justice under section 1385, subdivision (a), includes the lesser power to strike allegations or vacate findings relevant to sentencing, including allegations or findings that a defendant has prior felony convictions. (People v. Williams (1998) 17 Cal.4th 148, 151 (Williams).) We review a trial court's decision whether to dismiss or strike a sentencing allegation under section 1385 for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 373-374 (Carmony).)

"In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ' "[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve the legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review." ' [Citation.] Second, a ' "decision will not be reversed merely because reasonable people might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.' " ' [Citation.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Carmony, supra, 33 Cal.4th at pp. 376-377.)

In ruling whether to strike or vacate a prior conviction allegation or finding under section 1385 "or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of [the defendant's] present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the . . . spirit [of the Three Strikes law], in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (Williams, supra, 17 Cal.4th at p. 161.)

"Thus, the [T]hree [S]trikes law not only establishes a sentencing norm, it carefully circumscribes the trial court's power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper." (Carmony, supra, 33 Cal.4th at p. 378.) In light of that presumption, a trial court abuses its discretion in failing to strike a prior felony conviction allegation only in limited circumstances, such as where it was unaware of its discretion to strike the allegation, considered impermissible factors in declining to strike the conviction, or where " 'the sentencing norms [established by the Three Strikes law may, as a matter of law,] produce[] an "arbitrary, capricious or patently absurd" result' under the specific facts of a particular case." (Ibid.) Applying these principles, we find no abuse of discretion in the court's decision to deny Isaacs's Romero motion.

Isaacs argued that the following factors supported the court's striking his prior conviction: (1) the lengthy sentence that would be imposed if the court did not strike the prior conviction; (2) the nature of the current offense (robbery), during which he did not discharge a firearm and McMullin was not injured and which, according to him, was fueled not by a desire for violence but by a chemical dependency that required money to feed his addiction; (3) the nature and circumstances of the prior conviction, which occurred over seven years prior when Isaacs was only 18 years old and regrettably was spending a lot of time with a friend who introduced him to gang members; and (4) his background.

Regarding his background, Isaacs disclosed that his parents split up when he was three years old, his father was physically abusive and spent extensive time in jail and prison, and he was raised by a single mother along with four of his siblings. His life lacked stability and an anchor to a community because his family frequently moved due to financial strain, which also caused Isaacs to be uprooted from any friends or school peers. Because he always felt like the "black sheep" in his family, Isaacs started hanging around with the wrong friends, and he turned to drugs to bond with them and as a coping mechanism. His constant "searching" to be accepted led him to make poor choices in life.

In opposition to Isaacs's Romero motion, the prosecution set forth some of Isaacs's criminal history, which Isaacs acknowledges is corroborated by the probation report. In addition to his 2012 conviction for attempted burglary, which resulted in a one-year prison sentence, he was arrested in March 2015 for a warrant on a misdemeanor domestic battery charge under Penal Code section 243, subdivision (e)(1), and was ultimately convicted of a violation of Penal Code section 415, a misdemeanor, and given 36 months summary probation, which was to expire on August 31, 2018. The probation report shows that in April 2015, Isaacs was also charged with driving on a suspended license in violation of Vehicle Code section 14601.1, and in August 2015 was convicted of that offense and given 36 months summary probation.

At the hearing on his Romero motion, the court noted Isaacs's criminal history included an offense from 2011 when he was a juvenile, but the court was "satisfied that that doesn't aggravate the situation enough to where I could not grant a Romero [motion]." (Italics added.) However, the court was concerned about Isaacs's adult history, stating: "The concern the Court has . . . is immediately upon becoming an adult, he picks up that case in 2012. Had nothing happened between 2012 and 2017, the Court might have been more inclined to grant the motion to strike the enhancement. The [section] 1170.12. [¶] Unfortunately, there is a March 5th of 2015 misdemeanor which he was convicted for. As well as a driving on a suspended license from 2015. Which means even after receiving that strike conviction he didn't then modify his behavior. [¶] If the Court looks away at the [section] 415, which is what he pled to, saying it was more of a misunderstanding, it doesn't explain away the driving when you know your license is suspended. [¶] And that's saying, for the conviction, that I knew it was, and I chose to break the law anyway. [¶] And with that and the crime that was committed here and the manner in which it was committed, the Court is going to, for all of those reasons, deny the motion under Romero." (Italics added.)

Isaacs suggests the court abused its discretion by considering only his criminal record and not other factors. He argues the denial of his motion was an abuse of discretion in light of the facts that the jury did not find the gun enhancement true because they were not convinced the gun used in the robbery was a real gun, the prior strike conviction did not involve a gun, and the prior misdemeanor crimes he committed in March and April 2015 were both disposed of on the same day (Aug. 31, 2015), which shows it was a period of aberrant behavior. Isaacs complains that the court did not consider how close in time the prior misdemeanor crimes were, noting that in People v. Garcia (1999) 20 Cal.4th 490, one factor the California Supreme Court considered in upholding the trial court's decision to dismiss a prior strike conviction was that "defendant's prior convictions all arose from a single period of aberrant behavior for which he served a single prison term." (Id. at p. 503.)

Considering the great deference we must accord to a sentencing decision that conforms to the sentencing norms of the Three Strikes law, and the strong presumption that any sentence conforming to these norms is rational and proper, we cannot conclude the trial court's denial of Isaacs's Romero motion was arbitrary, capricious, or patently absurd. The record shows the court considered factors other than Isaacs's criminal record, including the fact that the jury was unable to decide whether the gun used in the robbery was a real gun. At the hearing on Isaacs's motion, the court acknowledged there were "some aspects of [the robbery] that may have made it less dangerous than some other robberies might have been[,]" and assumed the gun "was not a firearm." However, the court added that while that assumption "puts it in a little better of a situation [for Isaacs,] for the victim, it doesn't. They can't tell the difference. And to him it was a firearm. By his testimony." The court also emphasized the fact that Isaacs committed the robbery with two fellow members of the No Cutts gang.

The court indicated that it considered the other factors it was required to consider, including Isaacs's background, character, and prospects, when it stated it had reviewed the probation report and the moving and opposition papers for Isaacs's Romero motion. In addition, the court allowed Isaacs to speak directly to the court on his own behalf in support of his motion and considered a letter his mother wrote to the court. When the court announced its decision to deny the motion, it cited three reasons: Isaacs's criminal history, "the crime that was committed here[,] and the manner in which it was committed . . . ." To the extent the court was silent regarding relevant factors other than criminal history, we presume the court correctly applied the law and took those factors into account. (Carmony, supra, 33 Cal.4th at p. 378, citing Gillispie, supra, 60 Cal.App.4th at p. 434 [Where the record is silent in a post-Romero case the presumption that the trial court correctly applied the law applies.].)

As the California Supreme Court noted in Carmony, "[b]ecause the circumstances must be 'extraordinary . . . by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack' [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary." (Carmony, supra, 33 Cal.4th at p. 378.) No such extraordinary circumstances exist in the present case.

V. Sentence on Isaacs's Street Terrorism Conviction Must Be Stayed Under Section 654

Isaacs contends the trial court must be directed to stay punishment on his street terrorism conviction under section 654 and People v. Mesa (2012) 54 Cal.4th 191 (Mesa). The People concede and we agree.

"[S]ection 186.22, subdivision (a)—what we will call the gang crime [or street terrorism]—applies to '[a]ny person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang.' As the statutory text indicates, the gang crime has three elements: (1) '[a]ctive participation in a criminal street gang . . . ,' (2) ' "knowledge that [the gang's] members engage in or have engaged in a pattern of criminal gang activity," ' and (3) 'the person "willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang." ' " (Mesa, supra, 54 Cal.4th at p. 197.)

Section 654 provides: "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." " 'Section 654 applies where the 'defendant stands convicted of both (1) a crime that requires, as one of its elements, the intentional commission of an underlying offense, and (2) the underlying offense itself.' " (Mesa, supra, 54 Cal.4th at p. 198.) Accordingly, " 'section 654 precludes multiple punishment for both (1) gang participation, one element of which requires that the defendant have "willfully promote[d], further[ed], or assist[ed] in any felonious criminal conduct by members of th[e] gang," [citation] and (2) the underlying felony that is used to satisfy this element of gang participation.' " (Id. at pp. 197-198.)

At sentencing, the court ordered Isaacs's sentence for the count 2 street terrorism conviction to run concurrently with the sentence on the count 1 robbery conviction. Instead, the court should have stayed the sentence on count 2. We will direct the court on remand to stay Isaacs's sentence on count 2.

VI. Remand Is Required to Allow the Trial Court to Decide Whether to Exercise Its

Discretion to Strike the Five-Year Enhancement for Isaacs's Prior Serious Felony

Conviction

On September 30, 2018, after Isaacs was sentenced, the Legislature enacted Senate Bill No. 1393 (Stats. 2018, ch. 1013, §§ 1-2), which amended section 1385 to give the trial court discretion to strike five-year enhancements for prior serious felony convictions under section 667, subdivision (a). Effective January 1, 2019, Senate Bill No. 1393 amended section 1385 by deleting subdivision (b), which previously stated: "This section does not authorize a judge to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667." Isaacs contends that because his conviction is not yet final, we should remand this matter to allow the trial court to decide whether to exercise its discretion to strike the five-year enhancement imposed under section 667, subdivision (a).

The People agree that the amendment to section 1385 providing the trial court with discretion to strike a five-year enhancement for a prior serious felony conviction applies retroactively to nonfinal cases, and that this case should therefore be remanded. (See People v. Garcia (2018) 28 Cal.App.5th 961, 971-972 [Sen. Bill No. 1393 "applies retroactively to all cases or judgments of conviction in which a five-year term was imposed at sentencing, based on a prior serious felony conviction, provided the judgment of conviction is not final when [it] becomes effective on January 1, 2019."].) Remand is required unless the trial court clearly indicated at sentencing that it would not have stricken the term for the prior serious felony conviction even if it had the discretion. (People v. Jones (2019) 32 Cal.App.5th 267, 273.)

As noted, the trial court imposed a five-year term for Isaacs's prior serious felony conviction to run consecutive to count 1 (robbery). The court did not indicate that it would not have stricken that enhancement if it had the discretion to do so. Consequently, we will remand for the trial court to decide whether to exercise its discretion to strike the five-year enhancement for Isaacs's prior serious felony conviction. We express no opinion as to how the trial court should exercise its discretion.

VII. Isaacs's Ability to Pay Fees and Restitution Fine

Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), Isaacs contends the fees imposed at sentencing under Penal Code section 1465.8 and Government Code section 70737 are unconstitutional because the trial court did not make a determination that he has the present ability to pay them, and the restitution fine under Penal Code section 1202.4 must be stayed until the prosecutor proves that he has the ability to pay.¹⁹ He asks that his case be remanded for a determination of his ability to pay the fines and fees. The People submit that because Isaacs's case must be remanded for resentencing as to his street terrorism conviction and his prior serious felony conviction, he should raise his ability to pay arguments at the resentencing hearing. We agree.

19 Dueñas held that "due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant's present ability to pay before it imposes court facilities and court operations assessments under Penal Code section 1465.8 and Government Code section 70373. [Dueñas further held] that although Penal Code section 1202.4 bars consideration of a defendant's ability to pay unless the judge is considering increasing the fee over the statutory minimum, the execution of any restitution fine imposed under this statute must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine." (Dueñas, supra, 30 Cal.App.5th at p. 1164.)

The trial court on remand must allow Isaacs to present evidence on his ability to pay any fines, fees, or assessments. Our conclusion does not imply an opinion as to how the court should use that information. At the hearing on remand, Isaacs will bear the burden of producing evidence on his ability to pay any of the amounts previously imposed. The court should attempt to determine Isaacs's financial circumstances and his ability to pay some amount within a reasonable period of time. We offer no opinion on the amounts, if any, that should be imposed on the nonpunitive assessments or fees.

VIII. Remand Is Required For the Trial Court to Strike Davis's Prior Prison Term

Enhancement

Davis contends the trial court on remand should strike the one-year prior prison term enhancement because Senate Bill No. 136 (Stats. 2019, ch. 590, § 1) went into effect on January 1, 2020, and amended section 667.5, subdivision (b) to eliminate the one-year prior prison term enhancement, except when the prior prison term was served for a qualifying sexually-violent offense. The People agree and note that because the statutory amendment will apply retroactively to cases, like this one, that were not final when the amendment to section 667.5, subdivision (b), took effect, Davis's prior prison term enhancement will no longer be valid. The People maintain the case should be remanded for resentencing to allow the trial court to strike the prior prison term and restructure the overall sentence within its discretion.

We agree with the People's position. Because the trial court did not impose the maximum possible sentence, it could reassess Davis's total sentence on remand based on the prison prior enhancement being stricken. (See People v. Lopez, supra, 42 Cal.App.5th at p. 342 ["Because the trial court imposed the maximum possible sentence, there is no need for the court to again exercise its sentencing discretion" due to Sen. Bill No. 136].) We therefore conclude remand is appropriate for the trial court to resentence Davis in light of Senate Bill No. 136. (See People v. Jennings (2019) 42 Cal.App.5th 664, 667 [remanding for resentencing in part because defendant was entitled to have enhancements stricken under Sen. Bill No. 136].)

IX. The Abstract of Judgment Must Be Corrected to Reflect the Proper Amounts of Court

Operations Assessments and Criminal Conviction Assessments

Davis points out that the trial court was required to impose a court operations assessment of $40 for each conviction under Penal Code section 1465.8, and a criminal conviction assessment of $30 for each conviction under Government Code section 70373. These assessments must be imposed for each conviction even if the sentence on a conviction is stayed. (People v. Crittle (2007) 154 Cal.App.4th 368, 370-371 [Stay of punishment under Pen. Code, § 654 on a conviction does not stay imposition of a court security fee under Pen. Code, § 1465.8 based on the conviction because the fee is not punishment.].) Accordingly, because Davis has two convictions in this case, the court should have imposed $80 in court operations assessments ($40 for each conviction) and $60 in criminal conviction assessments ($30 for each conviction), for a total of $140. This is presumably what the court intended at the sentencing hearing when it ordered "a 140 dollar CCO fee." The court minutes state "Const./court operations fee of $70 per conviction DOC[,]" indicating the court's imposition of the $40 court operations assessment and the $30 criminal conviction assessment for each of the two convictions. Davis's abstract of judgment, however, incorrectly specifies a "Court Operations Assessment" of $120 under Penal Code section 1465.8, and a "Conviction Assessment" of $90 under Government Code section 70373.

It is important that courts correct errors and omissions in abstracts of judgment, and an abstract of judgment that does not reflect the oral judgment can be corrected at any time. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) When a party to an appeal "identifies an evident discrepancy between the abstract of judgment and the judgment that the reporter's transcript and the trial court's minute order reflect, the appellate court . . . should order the trial court to correct the abstract of judgment." (Id. at p. 188.) Because Davis's case must be remanded for resentencing as we discussed in the preceding section, we will direct the court on remand to prepare an amended abstract of judgment that correctly reflects a court operations assessment of $80 under Penal Code section 1465.8, and a conviction assessment of $60 under Government Code section 70373.

DISPOSITION

Isaacs's judgment is affirmed with respect to his convictions and the true finding on the gang enhancement allegation under section 186.22, subdivision (b)(1). The judgment is reversed with respect to Isaacs's sentence and the matter is remanded for resentencing. The trial court is directed to stay the sentence on the count 2 conviction under section 654 and to conduct a hearing to determine whether to strike the five-year sentence enhancement imposed under section 667, subdivision (a) for the prior serious felony conviction. If the court decides to strike the enhancement, the court should proceed to resentence Isaacs. Isaacs will have the opportunity to present evidence at the hearing of his ability to pay any or all of the amounts of the fines, fees, and assessments to be imposed. The court is directed to make findings regarding Isaacs's ability to pay and reconsider the amounts previously imposed as may be appropriate. After resentencing, the court is directed to issue an amended abstract of judgment and forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.

Davis's judgment is affirmed with respect to his convictions and the true finding on the gang enhancement allegation under Penal Code section 186.22, subdivision (b)(1). The judgment is reversed with respect to Davis's sentence and the matter is remanded for resentencing. The trial court is directed to strike the one-year prior prison term enhancement in accordance with Senate Bill No. 136 and to resentence Davis accordingly. After resentencing, the court is directed to issue an amended abstract of judgment and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. The amended abstract of judgment should reflect a court operations assessment of $80 under Penal Code section 1465.8 and a conviction assessment of $60 under Government Code section 70373.

O'ROURKE, Acting P. J. WE CONCUR: IRION, J. GUERRERO, J.