Opinion
F083126
08-03-2023
THE PEOPLE, Plaintiff and Respondent, v. TOKUNBO ARTHUR OKUWOGA, Defendant and Appellant.
David L. Polsky, 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, Julie A. Hokans and Galen N. Farris, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF133935A. John W. Lua, Judge.
David L. Polsky, 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, Julie A. Hokans and Galen N. Farris, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
PENA, J.
INTRODUCTION
Defendant Tokunbo Arthur Okuwoga appeals from his convictions arising out of two separate incidents: the 2009 burglary and assault of R.Z., and the 2010 murders of Felipe Bravo, Jr., Felipe Bravo, Sr., and Daina Caraveo, and attempted murder of A.B. In connection with the charged incidents, a jury convicted defendant of three counts of willful, deliberate and premeditated murder (Pen. Code, § 187, subd. (a); counts 1-3), attempted murder (§§ 664, 187, subd. (a); count 4), two counts of possession of a firearm by a felon (former § 12021, subd. (a)(1); counts 5 &11), possession of ammunition by a felon (former § 12316, subd. (b)(1); count 6), residential burglary (§ 460, subd. (a); count 7), residential robbery (§ 212.5, subd. (a); count 8), assault with a firearm (§ 245, subd. (a)(2); count 9), conspiracy to commit residential robbery (§ 182, subd. (a)(1); count 10), and dissuading a witness from giving testimony (§ 136.1, subd. (a)(1); count 12). (Undesignated statutory references are to the Penal Code.) The jury found true multiple enhancement allegations including that the offenses in counts 5 (illegal possession of a firearm), 6 (illegal possession of ammunition) and 12 (dissuading a witness) were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).
On appeal, defendant asserts insufficient evidence supports the gang enhancements. The People agree the gang enhancements lack sufficient evidentiary support and must be reversed. Defendant also contends his remaining convictions should be reversed based on the admission of prejudicial gang evidence that rendered his trial fundamentally unfair in violation of his due process rights. Relatedly, he argues the other convictions should be reversed based on the failure to bifurcate the gang allegations considering the enactment of section 1109. He also asserts the matter should be remanded for resentencing, in part, to permit him to seek the benefit of new legislation, namely, Assembly Bill No. 518 (2021-2022 Reg. Sess.) (Assembly Bill 518), Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567), and Senate Bill No. 81 (2021-2022 Reg. Sess.) (Senate Bill 81).
We agree the gang enhancements must be reversed due to insufficiency of the evidence but reject defendant's challenges to his other convictions. Because a resentencing hearing will necessarily result based upon our reversal of the gang enhancements during which any new legislation will apply, we do not address defendant's remaining contentions further. Rather, on remand we direct the court to strike the gang enhancements and hold further proceedings consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND 2009 Burglary and Assault of R.Z.
On September 23, 2009, police officers responded to a report of a residential robbery. At the scene, R.Z. was "covered in blood, head to toe," and had open lacerations and wounds to his head. R.Z. explained he had been robbed and assaulted by three people.
R.Z. owned a jewelry store at the time. On the night of the incident, he was alone at his house. He opened the window for some fresh air and fell asleep on the couch around 11:40 p.m. Someone came in and started hitting R.Z. in the head with a gun. R.Z. stood up and saw someone bigger than him trying to punch him; the person repeatedly hit R.Z. hard. R.Z. saw two more people in the house. They ran to R.Z.'s bedroom where they took $1,000 from R.Z.'s wallet. They ransacked the house trying to find something.
At trial, R.Z. identified defendant as the person who was hitting him with a gun. R.Z. explained defendant had a mask on, but it came off and R.Z. could see some of defendant's face. Defendant was also punching R.Z.; R.Z. was struggling and punching back. Defendant said, "I'm gonna kill you, son of a bitch."
Captain Clayton Madden interviewed R.Z. in October 2009 after the incident and R.Z. reported all three people were beating on him. R.Z. told Madden he did not recognize any of the perpetrators or see their features because it was dark; however, he stated the bigger person of the three was the person assaulting him, and R.Z. identified him as a Black man. In September 2010, R.Z. identified a picture of defendant he saw in the newspaper as the bigger suspect.
R.Z. managed to break away and get out of the house. He fainted in the front yard. R.Z.'s neighbor saw what was happening and called the ambulance or the police. R.Z. regained consciousness and saw the ambulance coming. He was taken to the hospital where he got approximately 60 stitches, mostly in his head.
The police found pools of blood and blood spatter on the floor and walls in R.Z.'s house and they discovered a window screen outside the house in a flower bed. The blinds on the window to the right of the front door "were pushed ... into the interior of the residence, and some had . . . fallen off and were on the ground." Several feet inside from the window, there was a single, tan, left-handed work glove on the carpet of the living room that seemed "out of place"; the glove was seized and submitted for DNA testing. The testing ultimately resulted in a match to two persons associated with the glove-defendant and A.B.
On June 7, 2010, Captain Madden and Officer Martin Heredia interviewed defendant and collected a DNA sample from him. They told defendant they needed to speak to him about the glove found at the robbery scene. During the interview, Captain Madden showed defendant a photograph of A.B. Defendant stated he did not know A.B. and asked if A.B. had said defendant committed the crime. Defendant denied knowing anything about the glove found at the robbery scene.
The police contacted A.B. on August 16, 2010, and obtained a DNA reference sample from him. A.B. was arrested in connection with R.Z.'s robbery in September 2010. A.B. testified he entered a plea agreement, and a term of the agreement was that he provide truthful testimony in this case.
A.B. met Felipe Bravo, Jr. (Felipe Jr.), and Daina Caraveo in 2008 or 2009 and they became friends. He also knew Felipe Bravo, Sr. (Felipe Sr.), and Caraveo's mother, Shanette. He met defendant through Felipe Jr. A.B. testified Felipe Jr. called defendant "Poomba" (sometimes spelled as "Pumba" in the record).
According to A.B., the night of September 23, 2009, Felipe Jr. was driving, defendant was in the front passenger seat, and A.B. was in the backseat. Defendant gave A.B. a pair of gloves while they were in the car; A.B. put them on. They got out of the car and went into a home. A.B. held the "victim." A.B., Felipe Jr., and defendant were "hitting the guy." Defendant was striking the victim with a firearm, "pistol-whipping" him. A.B. explained Felipe Jr. told him the victim was a jeweler. A.B. denied providing the police with any information when they interviewed him. He told Felipe Jr. police had come to speak with him about the incident. Felipe Jr. told A.B. defendant was trying to contact A.B. and "'Just don't say nothing and you'll be all right.'"
R.Z. testified he knew Caraveo because she was one of his customers. She would come in to get her jewelry cleaned or polished and R.Z. had had beers with her. R.Z. once met Caraveo's husband, Felipe Jr. R.Z. believed Caraveo told Felipe Jr. to go see him because she knew he had money. Caraveo's mother, Shanette, testified R.Z. was her jeweler and good friend.
2010 Murders of Caraveo, Felipe Jr., and Felipe Sr. and Attempted Murder of A.B.
On September 22, 2010, at 2:30 a.m., police responded to a residence on Bradley Avenue regarding a report of a multiple-victim homicide. Three victims were located in the residence. Felipe Sr. was found nude in the bathroom with gunshot wounds to his head and his wrist. Felipe Jr. was located in a bedroom in a kneeling/seated position with two gunshot wounds to his left side and one to the head. Caraveo was also located in the bedroom, partially covered with a blanket, with a gunshot wound to her head near her ear. There were spent shell casings on the floor and blood and apparent bullet strikes on the wall of the hallway. The blood in the east hallway matched Felipe Jr.'s DNA profile. Police seized one of the nine-millimeter shell casings. When medical personnel arrived, they began treating the older male victim found in the bathroom. There was a marijuana grow area in the two-car garage.
A forensic science consultant testified he was trained in crime scene and firearm trajectory analysis. He opined Felix Jr. received the gunshot wound to his head while crouching or stooping at the door to the bedroom, where he eventually slumped down. The presence of stippling on Felipe Jr.'s head, which results from gunpowder particles striking skin and leaving small hematomas, indicates the muzzle of the firearm was inches to a foot from his skin or head. Caraveo's gunshot wound near her ear reflected it was a result of "a close range shot." There was a very small amount of stippling, suggesting the gun was farther from the side of Caraveo's head than it had been to Felipe Jr.'s.
A.B. testified regarding the September 22 multiple-victim homicide event. That day, he and his friend Andrew G. were at the house-Felipe Jr.'s residence. A.B. and Felipe Jr. were "really close friends." A little past midnight, defendant arrived at the house while A.B. and Andrew were watching television. Felipe Jr. and his wife Caraveo had put the children to sleep and were in their room, and Felipe Sr. was either in the kitchen or getting ready to shower. Defendant asked to speak with Felipe Jr.; he seemed "nervous," "shaky." Felipe Jr. and defendant were talking in the kitchen about R.Z.'s robbery. Defendant told Felipe Jr. law enforcement had spoken to him and A.B. about the robbery and told him a glove was left behind. Felipe Jr. told A.B. defendant thought A.B. or Felipe Jr. had snitched on him. Defendant asked A.B. for a cigarette and went outside to smoke.
A.B. was by the front door, which was slightly opened. He saw a couple people run up with masks on, so he closed and locked the door. Then, defendant hit A.B. in the face. In his interview with police, A.B. reported defendant proceeded to unlock the door. A.B. ran towards the bedrooms in the back of the house and heard "a lot of gunshots." He saw defendant with a silver or chrome gun in his hands. In his interview with police, A.B. stated defendant shot at him.
A.B. went in a bedroom and hid in a closet. He heard gunshots and Caraveo's voice saying "'Poomba, why you gotta do this, my kids are here.'" A.B. heard more gunshots. He stayed in the closet for less than five minutes and then ran out of the house to the backyard and hopped a fence. A.B. saw the bodies of Felipe Jr. and Caraveo in the bedroom and Felipe Sr. in the bathroom on his way out. He saw bullet holes in the hallway. He believed the shots in the hallway were meant for him. When A.B. got outside, he saw Andrew G. running and they ran together before hitching a ride back to
A.B.'s house. A.B. did not call the police, but they found him. A.B. identified defendant in a photographic lineup. He told his girlfriend and his sister what happened afterwards. A.B.'s sister explained she saw A.B. on September 22, 2010, and he was swollen, "like someone had punched him."
Andrew G. also testified regarding that night. Andrew fell asleep on the couch in the house that night and woke up to a commotion at the door. A.B. was fighting with "a bigger black guy" at the door. Andrew identified defendant as the person with whom A.B. was fighting in a photographic lineup after the incident; he wrote "looks like him." Then, someone ran in and hit Andrew with a gun. The person who hit Andrew was in all red clothes with a red bandana on his face; Andrew believed he was Black. Andrew "got dazed and ... fell over." The person kept asking Andrew, "Where's the stuff?" (A.B. acknowledged Felipe Jr. was growing a considerable amount of marijuana in his home for personal use.) Andrew kept responding, "I don't know." Andrew was on the floor and did not see where everyone went. At some point, A.B. appeared from behind the couch and called Andrew. Andrew ran to the backyard, jumped a gate and saw A.B. hiding behind a rock. They walked around the block and hitched a ride.
Shanette, Caraveo's mother, received a call from Felipe Jr.'s phone number in the early morning hours of September 22, 2010. When Shanette answered, S.B., her granddaughter, was on the phone. S.B. told Shanette to come "get her" because someone had killed Caraveo, Felipe Jr., and Felipe Sr. Shanette and her boyfriend drove to the house while Shanette stayed on the phone with S.B. S.B. told Shanette she was in the closet with K.B., her younger sister. When Shanette and her boyfriend arrived, it was dark, just the porch light was on. Shanette went inside the house and saw Felipe Sr.'s body halfway out of the bathroom. She continued to Caraveo's room to find the children. She had to step over Felipe Jr. in the entryway to the bedroom before grabbing the girls out of the closet and running out. They all got in the car and drove away. Shanette called 911. Shanette testified Caraveo had previously told her Felipe Jr., defendant, and A.B. were involved in R.Z.'s robbery, and Caraveo was scared when defendant got out of prison.
S.B., who was 15 years old at the time of trial, testified about the night of the murders. S.B. and her younger sister K.B. were on the floor of a bedroom and their mom, Caraveo, was in the room. S.B. fell asleep while watching a movie. She woke up to her stepdad (Felipe Jr.) yelling from the kitchen/living room area; the bedroom was dark. S.B. heard gunshots. Caraveo opened the bedroom door and told S.B. and K.B. to be quiet. Felipe Jr. ran into the bedroom where he fell.
S.B. heard Caraveo say, "'Don't do this in front of my girls.'" A tall, dark, fairly skinny, African-American man with big eyes shot Caraveo and she fell to the side. S.B. and K.B. were under a blanket and K.B. was crying. S.B. called her grandmother, and she and K.B. stayed under the blanket until Shanette came and got them.
An investigator for the district attorney's office conducted a forensic interview with four-year-old S.B. on September 22, 2010, the day of the homicides. S.B. identified a picture of a semiautomatic pistol as the gun held by the shooter and said it was black. Defendant's Conduct after the Crime and Apprehension
In September 2010, R.B. met defendant, whom she called "Poomba," through defendant's sister, Stacy. R.B. also knew Caraveo and Felipe Jr. Defendant was at R.B.'s house on the evening of September 21, 2010. He left and she did not see him again until 5:00 a.m. the next morning. Defendant arrived and said he needed to go to Stacy's house; he was wearing a solid color T-shirt and white and black K-Swiss shoes. At some point, defendant took his shirt off and R.B. put it on because she was cold. R.B. drove defendant to Stacy's apartment. During the ride, defendant took his shoes off, saying his feet hurt, and left them in R.B.'s car. R.B.'s mother called R.B. and told her about the homicides involving Caraveo. She explained R.B.'s sister had been with Caraveo the day before. When R.B. got back to her apartment, she threw defendant's belongings in the trash, including the shirt and shoes he had worn that morning. She did not want anything of his at her house after hearing he may have been involved in the homicides.
R.B. saw on the news that defendant had been arrested for homicide. After receiving some information, the police recovered a pair of shoes and a black sweatshirt from behind a trash dumpster. R.B. reported defendant called her from jail to wish her happy birthday and to say he was not mad at her for giving the police his shoes; she lied and told him she did not give them anything because she was scared.
R.B. told the police defendant was wearing the shirt and shoes the morning of September 22, 2010. The predominant portion of the DNA profile taken from the neck of the black sweatshirt matched defendant. The DNA from the inside of the left shoe predominantly matched defendant and the right shoe was a mixture of three contributors, including a predominantly female contributor. The defendant, A.B., Caraveo, Andrew G., Felipe Sr. and Felipe Jr. were all excluded as possible contributors to the predominant portion of the profile taken from the inside of the right shoe. DNA from a blood stain on the right shoelace of the shoes matched Felipe Jr. A forensic science consultant testified on behalf of the prosecution that the small stains on the shoelaces were "indicative of ... high-velocity impact spatter," and is typically associated with front or back blood spatter from a gunshot wound. Such spatter cannot travel far so "the shoes were in close proximity when a gunshot event occurred."
Thomas N. was dating defendant's sister Stacy on September 22, 2010. That day, Stacy asked Thomas if she could come over with her children and defendant. They were all acting "perfectly normal." Later, Thomas's best friend called and told Thomas his "girlfriend's brother" killed three of her family members.
Thomas N. returned home and talked to Stacy; she admitted defendant was in trouble and she needed to get him out of state and asked for Thomas's help. Thomas bought defendant a train ticket at the station under Thomas's name; defendant had previously taken Thomas's identification. When defendant got off in Visalia, Thomas told Stacy they needed to call the police and she was going to lose her kids for assisting defendant in evading the authorities. Defendant was going to go to San Diego then Mexico. Thomas called the police and told them defendant was on the train to San Diego. He detailed the time the train departed and was scheduled to stop and what defendant was wearing. The police apprehended defendant as he approached a bus and transported him to the police department. They located Thomas's identification and an Amtrak train ticket in his name on defendant.
Thomas testified he spoke with R.B. after the incident and R.B. told him defendant came to her house with bloody clothes on and defendant told her he had gotten rid of an old gun. R.B. told Thomas she got rid of defendant's clothes.
Conduct Related to Alleged Witness Intimidation on January 5, 2011
S.R. was friends with Shanette; she was very close with Caraveo and considered her like a daughter. S.R. met defendant through Caraveo and they were intimate at one point. At some time prior to Caraveo's homicide, defendant told S.R. he was looking for A.B. because he believed A.B. had snitched on him. Defendant also reported he was back in Kern County to fight that case, which S.R. understood to be the "jewelry robbery." S.R. told this to Caraveo "so [Caraveo] could get herself out of that environment"; S.R. believed someone was going to get hurt or that something was going to happen.
About 30 days before the homicides, defendant told S.R. he was "heated" (enraged) that Felipe Jr. and Caraveo were still "hanging out" with A.B. after A.B. snitched on him; "[h]e felt like their loyalty was betrayed." The prosecution played a police interview with S.R. at trial. S.R. explained she identified A.B. and defendant in photographic lineups in relation to her discussion with law enforcement in which she reported defendant told her A.B. had snitched on him.
While defendant was incarcerated, he sent S.R. a letter. S.R. read the portion of the letter aloud in which defendant stated: "This letter is to inform you that your name has been brought up in a form and area where you never want it to be in." "It is not looking good with the accused statement against you that will bring you such calamity that ... is yet to be soon seen. I wish you to personally come to pay me a visit here in Lerdo for more understanding." S.R. took the letter as a threat. She got scared and reported it to police on January 5, 2011. The letter was booked into evidence.
Defendant's interview with police
Detective Kevin Findley interviewed defendant on September 23, 2010. Defendant was given advisements pursuant to Miranda v. Arizona (1966) 384 U.S. 436 at the outset of the interview. A recording of the interview was played at trial. During the interview, defendant initially stated he was out of state in Washington on September 22, 2010, when the homicides occurred. He claimed he knew Caraveo through his sister but denied knowing Felipe Jr. or A.B. Defendant explained he goes by the name "Pumba." Defendant identified his shoes in a photograph. He stated he heard on the news someone killed Caraveo but denied knowing anything about it or having any involvement. Later in the interview, defendant admitted he "was there" at Caraveo's house but stated he "didn't do shit." He reported he arrived at 1:30 a.m. and Felipe Jr., Felipe Sr., and Caraveo were there, and someone named "Drew" was sleeping on the couch. Defendant was drinking with Felipe Jr.; he denied having any issues with him.
About an hour after he arrived, six "masked suspects" came into the house and said to get on the ground. Defendant "ran to the back where Felipe" was going; defendant was in front. Defendant went in a room and hid behind a door; he heard gunshots and Caraveo screaming. According to defendant, "they killed Felipe" and Caraveo with a gun. Once he heard the cars leave, he went into the room where Felipe and Caraveo were and saw them "layin' there"; he ran out the front door. Defendant stated he got blood on his shoe when he went to go check on Caraveo and Felipe.
Gang Testimony and Defendant's Prior Contact with Police
The prosecutor asked defense counsel if he was "willing to stipulate related to gang [sic] in this case," noting the predicate offenses are all homicides and an additional witness would need to be added related to a predicate. Defense counsel declined to stipulate.
Detective Peter Beagley testified, on July 25, 2008, he and his partner contacted defendant who was in the front passenger seat of a 1999 GMC Yukon; two people were standing outside of the vehicle. Beagley asked defendant for permission to search his person; defendant agreed and told the detective he had a pistol in his possession. Beagley found a loaded black .22-caliber revolver with a brown handle in the left pocket of defendant's pants. Defendant was arrested and reported he bought the firearm a month earlier for protection. Defendant told Beagley he "used to be cliqued up with the Altadena Crips out of Los Angeles, but then he had moved to Bakersfield." He said he had family from the East Side, which Beagley took to mean "East Side Crips." Defendant told Beagley he went by the name "Poomba." Defendant pleaded guilty to possession of an illegal firearm and gang participation in connection with the incident. The prosecution's gang expert, Officer Jaime Orozco, testified the incident was significant in the gang context in that defendant reported he was an Altadena Crip but had been associating with or had family from the East Side Crips in Bakersfield. Defendant was in rival gang territory in possession of a firearm, a primary activity within the gang. Defendant reported he was wearing the pants of Christopher Miller, a "well-known East Side Crip gang member," showing "his ties to the East Side Crips gang."
Carl R. fathered two children with Stacy, defendant's sister. He and Stacy were in a relationship for 10 years during which Carl came to know defendant. On June 27, 2009, Carl called 911 after defendant threatened him over the phone saying the next time Carl and Stacy "'get into it,'" "'[o]n Gangster Crip, I'm gonna kick down your door and kill your mama. I hope I don't see you, 'cause I'll kill you too.'" Carl was scared as a result of the threat; he left his residence "to let things cool down" and pursued criminal charges against defendant. Carl knew defendant had "some kind of affiliation" with the East Side Crips. Officer Orozco testified it was significant defendant referenced "Gangster Crip" in his statement because it "makes it more credible, and it put [Carl R.] in huge discomfort, fear for his life that he had to move out of his house for the day because he really thought that had he stayed [defendant] would have carried out the threats and killed him." Orozco testified witness intimidation or criminal threats would elevate a gang member's status within the East Side Crips "because one of the key goals is to keep anybody from coming into court and testifying against your behalf or working with law enforcement." "The biggest thing there is to instill fear in them, which the East Side Crips have done by committing several felony acts, including murder, assault with deadly weapons," so the statement "carries some weight to it."
Charles Sherman testified he had had frequent contact with East Side Crips gang members when he worked in the gang unit of the Bakersfield police department from 2005 to 2011. The primary rivals of the East Side Crips in 2005 through 2010 were the Country Boy Crips, West Side Crips, Bloods, and "at times Hispanic gangs, such as the Varrio Bakers."
Sherman was involved in an investigation into Anthony Lee Taylor for the May 7, 2006, homicide of Meko Seward, a well-known Country Boy Crip, and Stacy Pierson. Taylor was convicted of the homicide. Sherman opined Taylor was an active member of the East Side Crips at the time of the crime based on conversations with other East Side Crips and that Taylor committed "a primary criminal activity of the gang" with another East Side Crip. The prosecution introduced the abstract of judgment related to the homicide.
Sherman also investigated Andre Ball related to a December 25, 2005, incident during which a female East Side Crip got into a confrontation with rival West Side Crips gang members. She called Ball; Ball and two other East Side Crips confronted the West Side Crips with a gun. There was a shooting during which one of the West Side Crips, Deondre Marzette, was killed. Ball was convicted of murder in connection with the incident. Sherman opined Ball was "an active member of the East Side Crips based on the investigation, interviews with the other co-defendants[, the female involved,] and East Side Crips that were involved in the homicide." The prosecution introduced the abstract of judgment related to the homicide.
Sherman also investigated Kerry Hastings in relation to two incidents in September 2006. During the first incident, Hastings confronted and shot a homeowner while he and other East Side Crips gang members went to steal marijuana plants. Hastings returned the second day with more East Side Crips gang members to try to steal more marijuana and he was confronted by the homeowner's son. Hastings shot and killed the son and the marijuana was located at Hastings's mother's residence days later. Hastings was convicted of homicide and multiple enhancements related to possession of a firearm during the shooting and theft of marijuana. Sherman opined Hastings was an active member of the East Side Crips at the time and was known as "Canine." He explained Hastings admitted his gang affiliation as well as other criminal activities he had committed in addition to the homicide and theft of marijuana. The prosecution introduced the certified court docket related to the charges.
Officer Orozco testified as a gang expert. He explained he frequently contacted members of the East Side Crips on an almost daily basis. He explained people who live in gang territory tend to not cooperate with law enforcement because "it could be bad for them." He explained "E," "ES," and "ESC" are common signs for the East Side Crips, as well as "LV" for "Lakeview," "SG" for "Spoonie Gang," and "Gorilla Mob." The West Side Crips and Country Boy Crips are the primary rivals of the East Side Crips. Officer Orozco testified there were three or more members in the East Side Crips and their primary activities range from murder to assault with deadly weapons, possession of firearms, witness intimidation, criminal threats, possession of stolen property, and sales of illegal narcotics. Orozco opined the East Side Crips are engaged in an ongoing pattern of criminal activity. He explained, if an East Side Crips member commits a crime, it elevates the member's status within the gang, especially if you are "from another gang trying to get membership into the East Side Crips." Orozco testified, the biggest thing a gang member can do in gang culture is to "keep committing crimes" when they are not incarcerated.
He explained, snitching is "the lowest thing that a gang member can do," meaning talking with law enforcement. And "if you're an active East Side Crip gang member and somebody snitches on you, ... you're the one that has to go take care of the problem. They give you a certain amount of time. If you don't do it, you get disowned by the gang. You get DP'd, which is punished, assaulted, murdered by the gang, and then the gang will eventually take care of your problem, but you can't no longer come around because it shows a sign of weakness."
Orozco testified the "805" tattoo on defendant's chest referred to the "old area code for Bakersfield" and "661" was the new area code for Bakersfield. He explained gang members get such tattoos "so when they went to prison, they knew that they were showing off exactly where they were from." Defendant also had a "Gorilla Mob" tattoo and Orozco explained East Side Crip gang members identify with those words and refer to themselves as "gorillas." Orozco opined defendant was an active participant in the East Side Crips between September 2009 and January 2011 based upon his tattoos, Officer Beagley's testimony, and the types of crimes he was committing at the time, including possession of a firearm in rival gang territory and criminal threats.
Orozco opined a hypothetical in which "[a] known active participant of the East Side Crips is in possession of a firearm, [and] ultimately uses that firearm," benefits the East Side Crips "because it ... bolsters the member's status within the gang" and the status of the East Side Crips by making people aware that East Side Crips are in possession of and willing to use firearms. He also opined a hypothetical act in which "[a] known, active participant of the East Side Crips while incarcerated sends a threatening letter" to someone who provided information to law enforcement about that East Side Crips member benefits the East Side Crips by putting fear in the recipient to make them "think twice before they come to court." And "if the person does not show up the case will ultimately get dropped," which is a positive outcome for the gang member because "he could be released back into population."
Verdict and Sentences
After the People rested, the defense rested, relying on the state of the evidence as presented by the prosecution. The jury convicted defendant of three counts of willful, deliberate and premeditated murder (§ 187, subd. (a); counts 1 (of Felipe Jr.), 2 (of Caraveo) and 3 (of Felipe Sr.)), attempted murder (§§ 664, 187, subd. (a); count 4)), two counts of possession of a firearm by a felon on or about September 22, 2010, and September 23, 2009 (former § 12021, subd. (a)(1); counts 5 and 11, respectively), possession of ammunition by a felon on or about September 22, 2010 (former § 12316, subd. (b)(1); count 6), residential burglary (§ 460, subd. (a); count 7), residential robbery (§ 212.5, subd. (a); count 8), assault with a firearm (§ 245, subd. (a)(2); count 9), conspiracy to commit residential robbery (§ 182, subd. (a)(1); count 10), and dissuading a witness from giving testimony (§ 136.1, subd. (a)(1); count 12). The jury found true a multiple-murder special circumstance (§ 190.2, subd. (a)(3)) and an allegation defendant personally and intentionally discharged a firearm, causing death (§ 12022.53, subd. (d)) during the commission of counts 1, 2, and 3. As to counts 1 and 2, the jury also found true a special circumstance alleging murder of a witness (§ 190.2, subd. (a)(10)). With respect to count 4, the jury found true allegations the attempted murder was willful, deliberate and premeditated (§ 189) and that defendant personally discharged a firearm (§ 12022.53, subd. (d)). The jury also found true allegations the offenses in counts 5 (illegal possession of a firearm on or about Sept. 22, 2010), 6 (illegal possession of ammunition on or about Sept. 22, 2010) and 12 (dissuading a witness) were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), that defendant personally used a firearm during the commission of counts 7 and 9 (§ 12022.5, subd. (a)) and counts 8 and 10 (§ 12022.53, subd. (b)), and that he personally inflicted great bodily injury during the commission of counts 7, 8, 9, and 10 (§ 12022.7, subd. (a)). The jury also found true an allegation defendant had suffered a prior strike conviction (as to counts 16) (§§ 667, subds. (c)-(j); 1170.12, subds. (a)-(e)). The jury found a section 186.22, subdivision (b)(1) gang enhancement alleged in count 11 not true.
In sentencing defendant, the court stated "the evidence alone justifies an upper term to determinate sentencing where appropriate, and the Court is going to exercise its discretion to provide the maximum sentence allowable to [defendant]." The court found no circumstances in mitigation and detailed the circumstances in aggravation: "[D]efendant's prior sustained petitions in juvenile delinquency proceedings are numerous, approximately five. He has served a prior commitment in the California Youth Authority, as well as a prison term. He was on felony probation and parole when these crimes were committed. And his prior performance on probation and parole were unsatisfactory in that he violated terms and reoffended."
The court then sentenced defendant to life without the possibility of parole with each term enhanced 25 years pursuant to section 12022.53, subdivision (d) enhancement on counts 1, 2, and 3, with the terms on counts 2 and 3 to run consecutive to the term on count 1; life with a minimum parole eligibility date of 14 years plus 20 years pursuant to section 12022.53 on count 4, to be served consecutive to the sentence on count 1; the upper term of six years on count 5, enhanced by four years pursuant to section 186.22, subdivision (b)(1), stayed pursuant to section 654; the upper term of six years on count 6, enhanced by four years pursuant to section 186.22, subdivision (b)(1), stayed pursuant to section 654; the upper term of six years on count 7, enhanced by 13 years (10 years pursuant to § 12022.5, subd. (a) and three years pursuant to § 12022.7), stayed pursuant to section 654; the upper term of six years on count 8, enhanced by 13 years (10 years pursuant to § 12022.5, subd. (a) and three years pursuant to § 12022.7), to be served consecutive to the sentence imposed in count 1; the upper term of four years on count 9, enhanced by 13 years (10 years pursuant to § 12022.5, subd. (a) and three years pursuant to § 12022.7), stayed pursuant to section 654; the upper term of six years on count 10, enhanced by 13 years (10 years pursuant to § 12022.5, subd. (a) and three years pursuant to § 12022.7), stayed pursuant to section 654; the upper term of three years on count 11, stayed pursuant to section 654; and life with a minimum parole eligibility of seven years on count 12. Accordingly, defendant's aggregate sentence is a term of life without the possibility of parole, plus 25 years to life, plus life without the possibility of parole, plus 25 years to life, plus life without the possibility of parole, plus 25 years to life, plus life with a minimum parole eligibility date of 14 years, plus life with a minimum parole eligibility date of seven years, plus 19 years.
DISCUSSION
Defendant argues insufficient evidence supports the gang enhancements, and he asserts his other convictions should be reversed because the gang evidence introduced at trial rendered his trial fundamentally unfair and prejudiced him. He also contends he is entitled to resentencing in light of the passage of certain ameliorative legislation. For the reasons that follow, we reverse defendant's gang enhancements and remand for resentencing. We reject defendant's challenges to his other convictions.
I. Insufficient Evidence Supports the Gang Enhancements
Defendant first contends the evidence was insufficient to support the gang enhancements to counts 5, 6, and 12. The People agree. We, too, agree and conclude the gang enhancements must be reversed on this basis.
A. Standard of Review
On appeal, the relevant inquiry governing a challenge to the sufficiency of the evidence is "'"'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'"'" (People v. Navarro (2021) 12 Cal.5th 285, 302.) The reviewing court's task is to review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence-evidence that is reasonable, credible, and of solid value upon which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Johnson (1980) 26 Cal.3d 557, 578.)
"The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence." (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) It is the jury, not the appellate court, which must be convinced of a defendant's guilt beyond a reasonable doubt. (Ibid.) If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. (Ibid.) We "presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence." (People v. Zamudio (2008) 43 Cal.4th 327, 357 .) "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis ... is there sufficient substantial evidence to support"' the jury's verdict." (People v. Zamudio, supra, at p. 357.)
B. Applicable Law
The elements of the gang enhancement are: (1) commission of a felony "for the benefit of, at the direction of, or in association with a criminal street gang," and (2) with "the specific intent to promote, further, or assist in criminal conduct by gang members." (§ 186.22, subd. (b)(1).) "'Not every crime committed by gang members is related to a gang' for purposes of the enhancement [citation], but the enhancement applies 'when a defendant has personally committed a gang-related felony with the specific intent to aid members of that gang' [citation]." (People v. Rivera (2019) 7 Cal.5th 306, 331.)
Recently, in People v. Renteria (2022) 13 Cal.5th 951, the California Supreme Court clarified the showing necessary for the section 186.22, subdivision (b)'s gang enhancement to apply in a "lone actor" case. (Renteria, at pp. 957, 965-969.) There, the defendant was convicted of two counts of shooting at an inhabited dwelling, and the jury found the section 186.22, subdivision (b) gang allegation true for both counts. (13 Cal.5th at p. 959.) It was a "lone-actor case" in that the record did not establish who the defendant was with during the shooting or that he or she was a gang member. (Id. at p. 970.) The court held two features are particularly relevant to prove the requisite specific intent to sustain the gang enhancement in such a case. (Id. at p. 965.) First, the defendant "must at least be aware of the type of criminal activity the gang members pursue; without such awareness, the defendant cannot intend to aid in such activity." (Ibid.) "Second, the statute refers to the intent to promote 'criminal conduct by gang members . . ., which means the promotion of criminal conduct by more than one member of the gang . . . which, in a lone-actor case, necessarily means the promotion of conduct other than the commission of the underlying felony." (Id. at pp. 965-966.)
In Renteria, the court reversed the gang enhancements, concluding, in part, there was no substantial evidence the defendant intended his actions to be attributed to the gang as required for the section 186.22, subdivision (b) gang enhancement to apply. (People v. Renteria, supra, 13 Cal.5th at p. 971 .) Specifically, the court explained, there was no evidence the defendant acted with another gang member in committing the offenses, identified himself or his gang during the shootings, or took credit for it on behalf of his gang afterwards. (Id. at pp. 970-971.) The Renteria court also concluded the record did not support a conclusion the defendant "could have reasonably anticipated the community would perceive a gang connection." (Id. at p. 971.) No witnesses testified they believed the shootings were gang related or that they feared Sureno gang activity, and there was no substantial evidence the defendant "intended the shooting to contribute to his gang's rivalry with Northerners." (Ibid.) And there was no other evidence from which the jury could infer the defendant knew of and thus might have intended to promote the criminal activities of his gang's members; there was no evidence of the degree of his involvement with the gang to suggest his familiarity with the criminal activities of the gang's members, or to identify the criminal conduct his actions might have facilitated. (Id. at p. 972.)
Accordingly, the Renteria court held the evidence was insufficient to support either prong of the gang enhancement statute with respect to either shooting, so the defendant was "not subject to additional punishment prescribed for felonies that have been shown to be gang-related under section 186.22(b)." (People v. Renteria, supra, 13 Cal.5th at p. 973.) In so holding, the Renteria court noted that "[t]o establish the requisite intent in a lone-actor case, the prosecution has often relied on expert opinion about the potential for a gang member's crime to benefit the gang by, among other things, enhancing a gang's reputation for violence among rival gangs or in the community more generally." (Id. at p. 966.) But, "[w]ithout more, generalized expert opinion that commission of a particular crime enhances the gang's power in the community by increasing its reputation for violence falls short . . .." (Ibid.) Rather, "[i]n a case involving a gang member who has acted alone in the commission of a felony, there must be evidence connecting testimony about any general reputational advantage that might accrue to the gang because of its members' crimes to the defendant's commission of a crime on a particular occasion for the benefit of the gang, and with the specific intent to promote criminal activities by the gang's members." (Id. at p. 969.) And "any inference that might otherwise be drawn from testimony that 'particular criminal conduct benefited a gang by enhancing its reputation for viciousness' [citation] must be cabined so that section 186.22(b) prosecutions avoid punishing mere gang membership, as opposed to gang-related conduct." (Ibid.)
C. Analysis
Defendant challenges the gang enhancements as to the firearm and ammunition possessions during the 2010 shooting (counts 5 and 6) and the 2011 witness intimidation count related to the letter he sent to S.R. (count 12). He argues there was insufficient evidence to support either prong of the gang enhancement: that the crimes were gang related or done with the requisite specific intent. He contends there was no evidence the crimes were done at the direction of or in association with the gang. In support, he notes there was no evidence he committed any of the crimes with other members of his gang and nothing specific about the nature or circumstances of the crimes that would indicate they benefited the East Side Crips. Rather, the gang expert essentially "testified that anytime a gang member possesses and uses a firearm or sends a threatening letter to a witness, it necessarily and in all cases benefits the gang." He argues the expert testified to personal benefits to defendant from the commission of the crimes and stated "weapon possession 'bolsters the status of the East Side Crips,' putting people 'on notice' that the gang possesses and uses firearms," but this assertion was insufficient on its own to support the enhancements. The People agree with defendant there was insufficient evidence to support the gang enhancements. Specifically, they agree there is no substantial evidence in the record (1) defendant intended his possession of the loaded firearm and witness intimidation to benefit the East Side Crips; (2) he could have reasonably anticipated the community would perceive a gang connection; or (3) that he intended the crimes to contribute to the East Side Crips's rivalry with another gang or otherwise to promote criminal activities by the gang's members. They concede there was no evidence any of the victims or people present at the time of the murders were affiliated with a gang nor any connection between the gun and ammunition and the East Side Crips. Additionally, there was no reference to the East Side Crips in the letter to S.R. or evidence that anyone outside of defendant and S.R. knew the letter had been sent until S.R. reported it to law enforcement.
We agree with the parties that in this case, as in Renteria, insufficient evidence supports the section 186.22, subdivision (b) gang enhancements attached to counts 5, 6, and 12. Such a conclusion follows in part because there is no substantial evidence defendant intended his possession of a firearm or ammunition or his dissuading of a witness to be attributed to a gang. (See People v. Renteria, supra, 13 Cal.5th at pp. 970971.) Specifically, there was no evidence defendant acted with another gang member during the commission of any of these offenses, identified himself or his gang during the September 2010 incident or in the letter to S.R., or took credit for any of the crimes on behalf of his gang afterwards. (See ibid.) Additionally, as in Renteria, the record also does not support a conclusion defendant "could have reasonably anticipated the community would perceive a gang connection." (See id. at p. 971.) No witnesses testified they believed the crimes were gang related or that they feared East Side Crips gang activity. And there was no other evidence from which the jury could infer defendant knew of and thus might have intended to promote the criminal activities of his gang's members by committing these offenses. That is, there was no evidence of the degree of his involvement with the gang to otherwise suggest his familiarity with the criminal activities of the gang's members or to identify the criminal conduct his actions might have facilitated. (Id. at p. 972.)
Accordingly, the evidence was insufficient to support the gang enhancements with respect to counts 5, 6, or 12 and they must be reversed.
Defendant also challenges the section 186.22, subdivision (b) gang enhancements based on the passage of Assembly Bill No. 333 (2021-2022 Reg. Sess.), arguing the showing made at trial was insufficient under the amended law to establish the new requisite elements of the section 186.22, subdivision (b) gang enhancement. Because we conclude the evidence was insufficient to support the enhancements based on the law as it existed at the time of trial, barring potential for a retrial of these allegations, we need not address his contention that the passage of Assembly Bill No. 333 also requires reversal of these enhancements.
II. Defendant Is Not Entitled to Reversal of His Convictions of Counts 1, 2, 3, 4, and 6 Based on the Gang Evidence
Defendant next argues "the presentation of highly prejudicial gang evidence" that was insufficient to support the gang enhancements violated his federal constitutional right to due process, "requiring reversal of the substantive offenses as well" or "at least with respect to the 2010 offenses in counts 1 through 4 and 6." We disagree.
A. Relevant Background
In closing argument, the prosecutor explained the elements of the gang enhancements alleged as to counts 5, 6, 11, and 12. He reiterated the evidence of the existence of the East Side Crips gang, including the common symbol or sign, its primary activities, and evidence of the pattern of gang activity, noting the jury "heard about Andre Ball, Kerry Hastings, Anthony Lee Taylor" and defendant's 2008 convictions for possession of a firearm and active participation in a criminal street gang. The prosecutor then discussed the evidence defendant committed the crimes for the benefit of or in association with a criminal street gang and to support a conclusion defendant intended to assist, further, or promote criminal conduct by gang members.
"Now, the charges that this is applicable to, from September 22nd, 2010, that's felon in possession of a firearm, felon in possession of ammunition. [¶] Back from September 23rd of 2009, again felon in possession of a firearm. [¶] And then January 5th, 2011, that's witness intimidation.
"The gang witnesses in this case related to the East Side Crips, both the East Side Crips' existence and also [defendant]'s involvement, from the Bakersfield Police Department was Peter Beagley, [Carl R.]. From the D.A.'s Office, Charles Sherman. And then also Officer Jaime Orozco.
"Let's start with Officer Peter Beagley. He talked about that arrest June-or July 25th, 2008, pulls up on a vehicle, sees that Yukon in the alleyway. He gets out with his partner, Eric Lantz, goes up to the passenger's side, has [defendant] get out, basically asks if he can search. He searches him, finds in his pocket a .22-caliber pistol in the left pocket. [¶] Of note with this .22-caliber pistol is two of the rounds in there had impressions on the firing pin, meaning it had been fired twice, but it misfired. That item was found in his pants. [¶] He provided a Miranda advisal to [defendant]. He told him, that being [defendant], that he had bought a firearm a month prior for protection. The area they were in was in rival gang territory, the Bloods. He told him that his nickname was Poomba and that his family were East Siders, which Officer Beagley took to mean he was an East Side Crip. [¶] Christopher Mills' wallet was in his possession and he told Officer Beagley that Christopher Mills was an East Sider. [¶] Again, Christopher Mills, according to the officers who testified in this case, is quite well known as an East Side Crip.
"Carl R[.], he's had a ten-year relationship with [defendant's sister], two kids between them. He knew [defendant]. [¶] Now, on June 27th, 2009, he's in an argument on the phone with the mother of his children. What does [defendant] do? He gets on the phone and says to Carl R[.], 'I'm gangster Crip. I'm gonna kick down your door and kill your mama. I'll kill you too.' That's the nature of that phone call. [¶] Now, as to that phone call, he was in sufficient fear of his life that he went and left his home after this was said to him by [defendant].
"Charles Sherman, he was in the Bakersfield Police Department Gang Unit between 2005 and 2010. He's the one that specifically testified to the pattern or predicate offenses, again Andre Ball, 2005, Anthony Lee Taylor, 2006, Kerry Hastings, 2006 as well. [¶] I put the years after, and why that is important is one of the elements or requirements for the gang is that the convictions have to be after 1988. 1988 is when the law went into effect. Not quite as important as it used to be, but it is a requirement. [¶] And then these offenses, the pattern offenses, have to be within three years of each other. So these offenses happened in 2005 for Mr. Ball, 2006 for Mr. Taylor, 2006 for Mr. Hastings, and then 2008 for [defendant]'s offense. That's within three years of each other, but that's an additional requirement within that enhancement.
"Now, Officer Orozco, he testified more in-depth about the East Side Crips itself. [¶] Common signs or symbols, ES, ESC, East Side Crips. That's what you would see out there, tattoos, graffiti, what have you. [¶] Rivals are the West Side Crips or the Country Boy Crips. [¶] Some of the territory, kind of the area where they can be found, is area around Martin Luther King Jr. Park located on California Avenue. [¶] He testified that the East Side Crips has more than three members and that their primary activities are unlawful homicide, assault, illegal weapons possession, and witness intimidation.
"Now, he talked about [defendant] and his contacts. And he was present during the testimony of Officer Beagley, [Carl R.]. [¶] Just in the context of [defendant]'s participation in the gang, the time frame, September 2009 all the way to January of 2011.
"He talked about the July 25th, 2008, incident. On that date [defendant] was in rival gang territory with a firearm. And again, illegal weapons possession is a primary activity of the East Side Crips.
"As for the incident on June 27th, 2009, when someone says, 'On gang' or 'On gangster Crip,' he said that that, in essence, means that they're going to kill you, but what it's used for, it's used for the intimidation, using your gang to intimidate and scare other people. That's the nature of it.
"He talked about the tattoos. The Gorilla Mob that is tattooed across [defendant]'s chest relates to him being an East Side Crip associate.
"His opinion was based on these offenses, based on all that he had heard as it relates to testimony, that [defendant] was an active participant of the East Side Crips from September 2009 to January 2011.
"Now, Officer Orozco also testified about culture, culture within a gang that [defendant] was a part of, and I think it's illustrative of what ultimately happened on September 22nd, 2009 [sic], and it's consistent with the testimony in this case. [¶] He talks about criminal acts-this is Officer Orozco-it elevates your status within the gang. So acting in a violent fashion works to your benefit, accrues to your favor to act violently. It's kind of opposite of what reasonable, normal people do in their everyday life. But gang culture is not based on reasonable action.
"Firearms, they are the most common gang activity, used for offensive and defensive purposes against rivals.
"Witness intimidation. The goal of it is to stay out of prison. It's to be able to commit acts of violence, commit acts of whatever you need to do, drug sales, but ultimately stay out of prison. That's the ultimate goal. [¶] Witness intimidation is how-part of the way of how you do it. You instill fear in any witnesses. You instill fear in any victims. And what your hope is is that your gang and the fear of your gang will lead people to not participate in criminal prosecution.
"Talked about snitching. This is Officer Orozco. Lowest act possible by a gang member. A lot of things that I could think of that are a lot worse than snitching, but in their world it's the lowest act that you can do. It's not allowed in any shape or form, simply not allowed.
"A gang member is expected to take care of the issue. You're expected. If somebody's snitching on you, you better take care of the issue. And if you're not, you will be disciplined by the gang. And 'taking care of the issue' can mean up to death in the gang context.
"Now, in this case you also see a letter that's in this vein of intimidating witnesses that [defendant] sent to [S.R.]. [¶] Now, this letter, it's not very clear up here, but again, it's in evidence. You'll be able to read it. [¶] It talked about specifically hey, I know that you talked to law enforcement. That's the context of it. [¶] It says, 'It's not looking good with the accused statements against you that bring you such calamity that is yet to be seen.' [¶] These are statements within a report. [S.R.] knew that this was because she had talked to law enforcement about a homicide, but he sends her this letter, 'bring you such calamity that is yet to be seen.' [¶] Again, he's in custody; so who's the calamity? It's his gang. [¶] 'Calamity,' what is that? Tragedy, catastrophe, disaster. That's what he's threatening. He's threatening a tragedy on her. [¶] And what was she concerned about? She was concerned about herself. She was concerned about her children based upon this letter.
"But that's the nature of witness intimidation in a gang context, using what people believe you have behind you, not that they're always going to be behind you in gang context, but people believe that they will be there to support you. That's the nature of the benefit to a criminal street gang in witness intimidation."
The prosecutor again later reiterated, "in gang culture, snitching is not forgivable"; that concept was "in every fiber of [defendant's] being," and that "snitching has to be punished. [¶] Talking to law enforcement is unacceptable, and the consequences of snitching or talking to law enforcement are all the way up to death, which is what we had happen in this case." The prosecutor asserted defendant was angry because he thought A.B. was snitching on him and that his friends, Felipe and Caraveo, were letting A.B. stay at their house. He contended defendant even thought Felipe Jr. was snitching on him and defendant asked Felipe Jr. and A.B. if they told on him to law enforcement. The prosecutor argued defendant went to the Bradley Avenue residence on the night of the murders to discuss the snitching and, ultimately, he decided to end the prospect of them snitching.
Defense counsel argued the "gang got no benefit out of this. This was strictly personal." He asserted "[t]he gang enhancements are wrongly placed here." He contended all the shots fired came from one gun, a nine millimeter black handgun, that was held by "the other guy" that was beating up Andrew G. He asserted defendant did not intend to kill A.B.; if he had, A.B. would have been dead. Rather, the "other guy[,] he's there to rob. He's there to grab all the marijuana" and he "for some reason goes down the hall and shoots three people." The defense did not argue defendant was not at the scene and instead conceded Felipe Jr.'s blood was on defendant's shoes. Defense counsel also asserted, "I'll give you the robbery of [R.Z.]. You got all that. He's done. But for murder, he did not commit nor did he attempt murder." He asked the jury to find defendant not guilty of counts 12, 5, 6, 7, 1, 2, 3, and 4.
In rebuttal, the prosecutor again argued "snitching is punishable in the gang community, up to death." He asked the jury to convict defendant of all the charges and to find him guilty of the gang enhancements, noting the gang enhancements were not alleged as to the murders, they only related to the gun possession and the witness intimidation.
The court instructed the jury it could consider "evidence of gang activity only for the limited purpose of deciding whether the defendant acted with the intent, purpose, and knowledge that are required to prove the gang-related enhancements charged or the defendant had a motive to commit the crimes charged." And it could consider "this evidence when you evaluate the credibility or believability of a witness and when you consider the facts and information relied on by an expert witness in reaching his or her opinion." The jury was further instructed: "You may not conclude from this evidence that the defendant is a person of bad character or that he has a disposition to commit crime."
B. Standard of Review and Applicable Law
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.) Absent fundamental unfairness, state law error in admitting evidence is subject to the traditional People v. Watson (1956) 46 Cal.2d 818 test: The reviewing court must ask whether it is reasonably probable the verdict would have been more favorable to the defendant absent the error. (Partida, at p. 439.)
In People v. Albarran (2007) 149 Cal.App.4th 214, the defendant was charged with attempted murder (count 1), shooting at an inhabited dwelling (count 2), three counts of attempted kidnapping for carjacking (counts 3-5), three counts of attempted carjacking (counts 6-8), and various enhancements including a gang enhancement as to all counts. (Id. at p. 219.) Before trial, the court denied Albarran's motion to exclude evidence of his gang involvement, concluding the proffered gang evidence was relevant to the issues of motive and intent for the underlying charges in addition to the gang enhancement. (Id. at p. 220.) The jury found the defendant guilty of counts 1-5 and not guilty of counts 6-8, which were alternative, lesser offenses of counts 3-5, and found the gang enhancement allegations true. (Id. at p. 222.) During trial, the prosecutor made multiple references during argument to the defendant being a member of a "dangerous" street gang, the 13 Kings, and showed a picture of Albarran's tattoos. (Id. at p. 220.) Two deputies testified "at length" regarding the identities of other 13 Kings members, the wide variety of crimes they had committed, including a piece of graffiti that contained a specific threat to murder police officers, and the defendant's gang involvement. (Albarran, at pp. 220-221, 227-228.) A deputy opined the shooting at issue was gang related, though there was no direct evidence to link the 13 Kings to the crimes. (Id. at pp. 220-221, 227.) In closing argument, the prosecutor made multiple references to defendant's gang involvement, including that the crime was gang-motivated and that because defendant was a gang member, his alibi was unbelievable. (Id. at p. 222.) After trial, Albarran moved for a new trial, asserting insufficient evidence supported the gang allegations, and, absent the gang allegations, the gang evidence was irrelevant and prejudicial, warranting a new trial on all the charges. (Ibid.) The trial court granted Albarran's motion for new trial on his argument that insufficient evidence supported the gang allegations but denied it as to the underlying charges, ruling the gang evidence was relevant to issues of motive and intent and would not have affected the verdict one way or another. (Id. at pp. 225-226.)
The appellate court reversed the remaining charges, noting the People "presented a panoply of incriminating gang evidence, which might have been tangentially relevant to the gang allegations, but had no bearing on the underlying charges." (People v. Albarran, supra, 149 Cal.App.4th at p. 227.) Specifically, the gang expert "testified at length about the identities of other 13 Kings members, the wide variety of crimes they had committed and the numerous contacts between the various gang members (other than Albarran) and the police." (Id. at pp. 227-228, fn. omitted.) His testimony "consumed the better part of an entire trial day (in a six-day trial) and span[ned] 70 pages of the reporter's transcript." (Id. at p. 227, fn. 10.) He also "described a specific threat 13 Kings had made in their graffiti to kill police officers," and "[t]he jury heard references to the Mexican Mafia both during the prosecutor's opening argument and in the [gang expert's] testimony." (Id. at p. 228.)
The Albarran court held: "This case presents one of those rare and unusual occasions where the admission of evidence has violated federal due process and rendered the defendant's trial fundamentally unfair. Given the nature and amount of this gang evidence at issue, the number of witnesses who testified to Albarran's gang affiliations and the role the gang evidence played in the prosecutor's argument, we are not convinced beyond a reasonable doubt that the error did not contribute to the verdict." (People v. Albarran, supra, 149 Cal.App.4th at p. 232.) It reasoned, nothing inherent in the facts of the shooting suggested any specific gang motive; the only evidence to support the prosecution's claimed motive that the shooting was to gain respect was the fact of the defendant's gang affiliation. (Id. at p. 227.) This was insufficient to counterbalance the "other extremely inflammatory gang evidence [that] was admitted, which had no connection to these crimes." (Ibid.) Accordingly, the trial court erred in failing to grant Albarran a new trial on all charges, noting "[e]vidence of Albarran's gang involvement, standing alone, was sufficient proof of gang motive." (149 Cal.App.4th at p. 228.) But "[e]vidence of threats to kill police officers, descriptions of the criminal activities of other gang members, and reference to the Mexican Mafia had little or no bearing on any other material issue relating to Albarran's guilt on the charged crimes and approached being classified as overkill." (Ibid.) The Albarran court concluded the gang evidence "was so extraordinarily prejudicial and of such little relevance that it raised the distinct potential to sway the jury to convict regardless of Albarran's actual guilt" such that it rendered defendant's trial "fundamentally unfair." (Id. at pp. 228, 232.)
C. Analysis
Defendant argues reversal of his convictions for counts 1, 2, 3, 4, and 6 is required because the admission of prejudicial gang evidence that "had no legitimate purpose" rendered his trial fundamentally unfair in violation of his due process rights. Defendant relies heavily on People v. Albarran, supra, 149 Cal.App.4th 214 in support of his contention he was prejudiced by the gang evidence. He contends, as in Albarran, here the evidence included his past criminal conduct, including his threats to kill his sister's boyfriend and the boyfriend's mother, and the criminal conduct of members of his gang, which included the commission of murders. He argues there were no similarities between his 2008 and 2009 uncharged offenses and the 2010 homicide offenses such that the prior conduct would have been admissible on the issues of intent or identity. He also argues the evidence showed he was a member of the Crips gang and the "Crips street gang is every bit as notorious as the Mexican Mafia, with a national presence and reputation for violence." He contends the gang evidence "was so prejudicial that it would impede a fair trial by leading the jury to infer and potentially decide the case based on an assessment of [his] character." He further contends, even if the improper admission of gang evidence did not amount to a due process violation, it was still a violation of state law and prejudicial under People v. Watson, supra, 46 Cal.2d 818. He concedes, unlike in Albarran, here his counsel did not seek a new trial based on insufficient evidence of the gang enhancement allegations and the prejudicial impact the gang evidence had on the substantive counts. He argues his counsel could not be expected to object before or even during trial to evidence offered to prove the gang enhancements, which was ultimately insufficient for its intended purpose and thereby becoming inadmissible. He contends "[t]o hold counsel to that duty would require that both counsel and the trial court be able to predict the future." And, he argues his challenge is rooted in the insufficiency of the evidence to support the gang enhancements, which can be raised for the first time on appeal. Alternatively, he asserts if we decline to consider his claim based on the failure to raise it in a new trial motion, his counsel was ineffective on that basis. In support, he argues there was no satisfactory explanation for his counsel's failure to file a motion for new trial challenging the admission of the gang evidence. The People respond that defendant forfeited his claim by failing to challenge the admission of gang evidence below. Irrespective, they contend defendant's claim fails on its merits. They contend the gang evidence was "at least partially" relevant to defendant's motive for committing the murders and other offenses at the Bradley Avenue house. Specifically, they argue the gang expert's testimony regarding snitching being the "'lowest thing a gang member can do as being an active member of the gang'" and was "'the quickest way to get disowned by the gang, to be punished by the gang, to be even murdered by the gang'" was probative of defendant's motive to commit the murders, "especially when combined with evidence of the extent of [defendant's] membership in the gang" and "this was a permissible inference for the evidence." They further contend the gang enhancements were only alleged and found true on counts 5, 6, and 12 and were not alleged on the other counts; the jury was instructed it could only consider the gang evidence for the limited purpose of deciding whether defendant acted with the intent, purpose, and knowledge required to prove the gang-related enhancements and that he had a motive to commit the crimes charged. They assert the prosecutor limited his argument on the gang evidence during his closing argument to the counts on which gang enhancements had been alleged and never argued the jury should convict defendant of the murder counts because defendant was a gang member. Finally, they contend the evidence of defendant's guilt on counts 1, 2, 3, 4, and 6 was overwhelming. We conclude reversal of defendant's remaining convictions is not required.
It is well-established that "[a] verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion...." (Evid. Code, § 353.) Thus, a "'"defendant's failure to make a timely and specific objection" on the ground asserted on appeal makes that ground not cognizable.'" (People v. Partida, supra, 37 Cal.4th at p. 434.)
The crux of defendant's claim is that the wrongful admission of gang evidence rendered his trial fundamentally unfair and he was prejudiced by the admission of such evidence. As the parties acknowledge, here, unlike in Albarran, defendant never moved for a new trial based on the gang evidence presented at trial or otherwise objected to the admission of gang evidence when it was offered. Before trial, defendant generally moved to bifurcate "enhancements and special allegations if any" in his motions in limine, citing Evidence Code section 352. The court denied the request. Additionally, when the prosecution moved in limine to introduce gang expert testimony, the defense objected without specifying a basis for the objection and submitted. The court granted the prosecution's request to allow the expert testimony involving the gang counts and enhancements on the conditions that an adequate foundation must be laid for the witness to render an opinion consistent with expert testimony in that area and the testimony must comply with People v. Sanchez (2016) 63 Cal.4th 665. The prosecution also requested admission of defendant's prior pattern offenses to show gang membership and knowledge of the primary activities of the East Side Crips. Defense counsel again objected without providing a basis for the objection and submitted. The court granted the request over the defense's objection. The defense moved in limine for an order that the court's rulings on objections to evidence made in the motions in limine be deemed continuing objections when the evidence is offered during trial. The court denied the request and stated it required a timely objection be made during the evidence phase before a jury to preserve an appealable issue.
"The general rule is that 'when an in limine ruling that evidence is admissible has been made, the party seeking exclusion must object at such time as the evidence is actually offered to preserve the issue for appeal'[citation], although a sufficiently definite and express ruling on a motion in limine may also serve to preserve a claim [citation]." (People v. Brown (2003) 31 Cal.4th 518, 547.) Here, defense counsel did not provide any grounds for the objections to the People's motions in limine to introduce gang expert testimony and evidence of defendant's prior offenses, nor did he ever specifically object to the admission of any particular gang evidence during trial on the grounds that it was significantly more prejudicial than probative. Thus, we cannot conclude these general objections sufficiently preserved his challenge to the gang evidence on Evidence Code section 352 or due process grounds, particularly in light of the court's express holding that a timely objection was required during the evidence phase of trial to preserve an appellate issue. (See generally People v. Partida, supra, 37 Cal.4th at pp. 437-438 [argument that constitutional provisions required trial court to exclude evidence for a reason not included in trial objection is forfeited].)
However, even assuming, arguendo, the issue was sufficiently preserved, and because defendant alternatively raises a claim of ineffective assistance of counsel, we also reject this claim on its merits. Defendant fails to establish his trial was rendered fundamentally unfair by the admission of gang evidence or that he was prejudiced as a result of its admission.
Initially, we note, there was evidence from which the jury could conclude defendant's gang affiliation contributed to his motive and specific intent to target the murder and attempted murder victims, and S.R., the named victim of the witness intimidation charge. Specifically, there was evidence defendant was an active member of the East Side Crips gang, and the gang expert explained, if an active East Side Crip gang member is "being snitched on, you're the one that has to go take care of the problem." The gang member is given "a certain amount of time" and if he does not do it, he will "get disowned by the gang." "You get DP'd, which is punished, assaulted, murdered by the gang, and then the gang will eventually take care of your problem, but you can't no longer [sic] come around because it shows a sign of weakness." Accordingly, some of the gang evidence was relevant to the disputed issues at trial other than the gang allegations. (See People v. Pineda (2022) 13 Cal.5th 186, 236 [trial court did not err in permitting evidence of defendant's gang affiliation that was relevant to reason why he was authorized to kill victim-someone who had snitched on a gang member-in jailhouse environment where gangs exerted significant influence of whether, how, and by whom violence could be employed]; see generally People v. Hernandez (2004) 33 Cal.4th 1040, 1049 ["Evidence of the defendant's gang affiliation-including evidence of ... beliefs and practices ...-can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. [Citations.]"].)
And we cannot conclude the gang evidence that was not relevant to the underlying charges was so "extremely and uniquely inflammatory" such that this case presents "one of those rare and unusual occasions where the admission of evidence has violated federal due process and rendered the defendant's trial fundamentally unfair." (People v. Albarran, supra, 149 Cal.App.4th at pp. 230, 231.) Unlike in Albarran, there was not a panoply of extremely prejudicial, irrelevant gang evidence introduced in this trial. There was nothing overly inflammatory about the gang expert's testimony related to gang culture and the East Side Crips. The gang evidence also did not consume an inordinate amount of the lengthy trial. While it is true the gang evidence included evidence of three homicides as the predicate offenses, the expert testified to limited details regarding those offenses that were committed by three other individuals who were not otherwise connected to defendant. Additionally, the gang evidence specifically involved defendant's tattoos and two previous incidents related to his gang affiliation: a 2008 incident during which defendant was in possession of a firearm and defendant's 2009 verbal threat over the phone made to his sister's ex-boyfriend. However, evidence of these activities was significantly less inflammatory than the charged offenses in this case-the first of which involved a brutal beating of R.Z. and the second of which involved multiple murders and an attempted murder of defendant's former friends and their relatives-reducing the potential for prejudice. (See People v. Tran (2011) 51 Cal.4th 1040, 1050.) And the prosecution did not argue the jury should use such evidence for an improper purpose such as to infer defendant had a criminal disposition or propensity for violence.
Additionally, the prejudicial impact is further reduced by the fact the jury was given a limiting instruction providing in part the gang evidence could not be considered as proof of defendant's bad character or criminal disposition. (See People v. Holmes, McClain and Newborn (2022) 12 Cal.5th 719, 771.) We presume the jury followed these instructions, and there is nothing in the record to rebut that presumption. (People v. Franklin (2016) 248 Cal.App.4th 938, 953 ["We presume that the jury followed these limiting instructions" regarding considering the gang evidence for a limited purpose, "and there is nothing in this record to rebut that presumption"].) To the contrary, any inference of prejudice is dispelled by the fact the jury found the gang allegation attached to count 11 not true, suggesting the jury did not simply rely on the gang evidence to convict defendant of all the charges and enhancements.
Most importantly, here, without considering the gang evidence, the evidence against defendant as to all the charges was very strong. The DNA evidence and eyewitness testimony connected defendant to both crime scenes. R.Z. identified defendant as the person who attacked him, which A.B.'s testimony corroborated. Defendant's DNA was also found on a glove retrieved from inside R.Z.'s house. Indeed, with regard to defendant's involvement in R.Z.'s robbery and assault, defense counsel all but conceded the overwhelming nature of the evidence tying defendant to those crimes, and defendant does not challenge those convictions on appeal. With regard to the events on September 22, 2010, defendant himself admitted to police that he was present during the crimes. A.B. explained defendant arrived at the house that evening and Felipe Jr. told A.B. defendant believed A.B. or Felipe Jr. had snitched on him about the burglary of R.Z. Separately, about a month earlier, defendant told S.R. that A.B. had "snitched" on him and he was upset Felipe Jr. and Caraveo continued to hang out with A.B., which he felt was a breach of their loyalty. A.B. testified he tried to close and lock the door when he saw masked individuals outside the house, but defendant hit him and unlocked the door. Andrew G. also identified defendant as the person he saw fighting with A.B. A.B. reported he saw defendant with a gun, and A.B. told police defendant shot at him while he ran down the hall before A.B. hid in a closet. A.B. heard Caraveo's voice saying "'Poomba, why you gotta do this, my kids are here,'" before he heard additional gunshots. Felipe Jr.'s blood was found on defendant's shoelace and expert testimony was introduced to explain the nature of the blood spatter and the close range within which each murder victim was shot. Defendant lied to police about his whereabouts after the incident; there was evidence he tried to get rid of his clothing and shoes, leaving them with his girlfriend; and he attempted to flee the city using a train ticket under a different name before he was apprehended by police. (See People v. Garrison (1989) 47 Cal.3d 746, 773 ["evidence of flight supports an inference of consciousness of guilt"].) With regard to the witness intimidation count, there was no evidence or argument to counter the evidence defendant sent S.R. the threatening letter from prison.
On this record, we cannot conclude it is reasonably probable defendant would have achieved a more favorable verdict absent the gang evidence. (People v. Watson, supra, 46 Cal.2d at p. 836; see also People v. Tran (2022) 13 Cal.5th 1169, 1210 [it was not reasonably likely bifurcation of gang evidence would have changed jury's verdict "[g]iven the overwhelming evidence of guilt and lack of any credible defense theory in response"].) Indeed, even applying the Chapman v. California (1967) 386 U.S. 18 standard we are confident beyond a reasonable doubt for the reasons stated that the verdict was not affected by the admission of irrelevant gang evidence. Accordingly, we reject defendant's contention reversal of his substantive convictions including his convictions for counts 1, 2, 3, 4, and 6 is required.
In a separate argument, defendant also seeks reversal of counts 1, 2, 3, 4, and 6 convictions based on the enactment of section 1109 pursuant to Assembly Bill No. 333 (2021-2022 Reg. Sess.), which, in relevant part, now requires gang enhancements charged under section 186.22, subdivision (b) or (d) to be tried separately from the underlying charges upon request from the defense. (Stats. 2021, ch. 699, § 5.) However, we reject this argument for the same reasons stated ante. 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. (See People v. Watson, supra, 46 Cal.2d at p. 836.) Put differently, because we cannot conclude defendant was prejudiced by the gang evidence, the failure to bifurcate the gang enhancements from the trial on the underlying charges was harmless. (See People v. E.H. (2022) 75 Cal.App.5th 467, 480 [failure to bifurcate was harmless under Watson standard in light of "overwhelming" evidence in support of the robbery convictions, stating "[e]ven if section 1109 applied retroactively to his case- an issue we need not and do not decide here-E.H. cannot show it is 'reasonably probable' he would have obtained a more favorable result if his trial had been bifurcated"].)
III. Defendant's Remaining Contentions Can Be Raised at Resentencing
In his remaining issues, defendant argues he is entitled to resentencing considering the passage of ameliorative legislation. Specifically, he contends the matter should be remanded to permit the trial court to exercise its newfound discretion under Assembly Bill 518, effective January 1, 2022. He notes the court imposed sentences on counts 1, 2, 3, 4, 8, and 12 and stayed the sentences on counts 5, 6, 7, 9, 10, and 11 under section 654.
Before the passage of Assembly Bill 518, section 654, subdivision (a) provided that, when the defendant committed an act or omission punishable by two or more provisions of the law, the trial court must impose sentence under the provision providing the longest potential term of imprisonment. (Former § 654, subd. (a); Stats. 1997, ch. 410, § 1.) Assembly Bill 518 amended section 654, subdivision (a) to permit an act or omission punishable under two or more provisions of law to "be punished under either of such provisions." (§ 654, subd. (a); Stats. 2021, ch. 441, § 1.) Thus, under newly amended section 654, a trial court is no longer required to punish the defendant under the longest possible term of imprisonment when multiple offenses are based on the same act or omission. (People v. White (2022) 86 Cal.App.5th 1229, 1236.) Rather, the trial court now has "'discretion to impose and execute the sentence of either term which could result in the trial court imposing and executing the shorter sentence rather than the longer sentence.'" (Ibid.; see People v. Mani (2022) 74 Cal.App.5th 343, 379.)
Defendant also contends the court should reconsider imposition of the upper term on counts 5, 6, 7, 8, 9, and 10 and the firearm enhancements attached to counts 7, 9, and 10 considering the passage of Senate Bill No. 567, which limited the court's discretion to impose upper term sentences. Before Senate Bill 567 became effective, section 1170, subdivision (b) provided that the choice between sentencing a defendant to the lower, middle, or upper term "shall rest within the sound discretion of the court." (Former § 1170, subd. (b), as amended by Stats. 2020, ch. 29, § 14.) Effective January 1, 2022, Senate Bill 567 amended section 1170, subdivision (b) to make the middle term the presumptive term of imprisonment and to require that any fact used to justify an upper term be admitted by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial, though the court may still consider a defendant's prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury. (See § 1170, subd. (b)(2)-(3).)
The People concede the amendments enacted by Assembly Bill 518 and Senate Bill 567 apply retroactively to nonfinal judgments on appeal under In re Estrada (1965) 63 Cal.2d 740. However, they assert we need not determine the merits of whether remand is required under either legislation because we are remanding on other grounds and the trial court may revisit all of its prior sentencing decisions under sections 654 and 1170, subdivision (b). On reply, defendant argues we should still rule on the retroactivity of Assembly Bill 518 and Senate Bill 567 so there is no confusion on remand.
We agree Assembly Bill 518 and Senate Bill 567 are ameliorative changes in the law and there is nothing in them to indicate the Legislature intended the changes to apply only prospectively. Accordingly, because defendant's case was not final when the changes in the law went into effect, he is entitled to retroactive application of the amended statutes. (See In re Estrada, supra, 63 Cal.2d at p. 745.) And we agree with the People that, because we are remanding for resentencing on other grounds, we need not consider whether remand is also necessary on this basis.
Defendant also contends, at resentencing, the court must apply section 1385 as amended by Senate Bill 81. As modified by Senate Bill 81, section 1385, subdivision (c) now provides, in part:
"(1) Notwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute.
"(2) In exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances ... are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety. 'Endanger public safety' means there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others."
The mitigating circumstances courts are to consider and afford great weight to in considering whether to strike an enhancement include, but are not limited to, whether "[m]ultiple enhancements are alleged in a single case" and "[t]he application of an enhancement could result in a sentence of over 20 years." Defendant contends some of the circumstances listed are relevant to his case.
We note Senate Bill 81 initially codified these provisions under section 1385, subdivision (c)(3)(B) and (C), respectively, but section 1385 was further amended pursuant to Assembly Bill No. 200 (2021-2022 Reg. Sess.) (Assembly Bill 200), effective June 30, 2022, and these provisions were amended to fall under subdivision (c)(2)(B) and (C), respectively. (Stats. 2022, ch. 58, § 15.) Pursuant to Senate Bill 81, section 1385, subdivision (c)(7) provided: "This subdivision shall apply to sentencings occurring after the effective date of the act that added this subdivision." (Stats. 2021, ch. 721, § 1.) Thereafter, Assembly Bill 200 modified subdivision (c)(7) of section 1385 to state, "This subdivision shall apply to all sentencing occurring after January 1, 2022." (Stats. 2022, ch. 58, § 15.) Because Senate Bill 81 became effective January 1, 2022, this modification did not result in a substantive change.
As the parties acknowledge, section 1385, subdivision (c), as amended by Senate Bill 81, provides that it shall apply to sentencings occurring after January 1, 2022, the effective date of Senate Bill 81. And the People concede, because defendant will be resentenced after the effective date of the legislation, Senate Bill 81's amendments to section 1385 should apply at the resentencing hearing. We accept the People's concession and conclude defendant may seek the benefit of Senate Bill 81 at resentencing.
DISPOSITION
The section 186.22, subdivision (b) gang enhancements attached to counts 5, 6, and 12 are reversed, and the matter is remanded for a resentencing hearing at which the court is to consider current sentencing requirements. In all other respects the judgment is affirmed.
WE CONCUR: DETJEN, Acting P. J. SNAUFFER, J.