Opinion
F080852
05-16-2022
THE PEOPLE, Plaintiff and Respondent, v. RUBEN YABET PEREZ, Defendant and Appellant.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant. Matthew Rodriquez, Acting Attorney General, Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Darren K. Indermill, Robert K. Gezi, Lewis A. Martinez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF361905A. Gary L. Paden, Judge.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.
Matthew Rodriquez, Acting Attorney General, Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Darren K. Indermill, Robert K. Gezi, Lewis A. Martinez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
PEÑA, Acting P. J.
INTRODUCTION
Ruben Yabet Perez and three codefendants-Robert Ramos, Francisco Nava, and Stephen Lopez-engaged in a confrontation at a convenience store with E.D. and his 1 girlfriend, C.A. The defendants yelled rival gang slurs at E.D.; Perez and Lopez threw drinks into E.D. and C.A.'s car; and Lopez grabbed E.D.'s shirt and struck him in the back of the head, scratching his neck. Perez also tried to grab E.D. E.D. drove away. E.D. saw a black car speeding toward him, heard two gunshots and glass breaking, and felt an impact on his car. He saw the black car on the left side of his car and the back passenger window rolled down.
The four defendants were charged with multiple offenses in relation to the incident. At trial, the prosecution presented expert testimony on street gangs, evidence of the defendants' prior contacts with the police, and certified records of convictions of Norteño gang members as evidence of a pattern of gang activity to prove the street gang enhancements.
The jury acquitted the four defendants of attempted murder of E.D. and C.A. (counts 1 and 2, respectively) and was deadlocked on the lesser included offense of attempted voluntary manslaughter. The jury convicted all four defendants of shooting into an occupied motor vehicle in violation of Penal Code section 246 (count 3) and found true allegations a principal used a firearm (§ 12022.53, subds. (c) & (e)(1)) and that the offense was committed for the benefit of a criminal street gang (former § 186.22, subd. (b)(1)(C)). The jury was deadlocked as to all four defendants on count 4, criminal street gang conspiracy in violation of section 182.5. The jury convicted Perez and Lopez of battery in violation of section 242 in count 5 and found true an enhancement alleging the offense was committed for the benefit of a criminal street gang (former § 186.22, subd. (b)(1)(C)). The jury convicted Lopez of possession of a firearm by a convicted felon in violation of section 29800, subdivision (a)(1) (count 6). (Undesignated statutory references are to the Penal Code.)
Perez now challenges his convictions for shooting at an occupied vehicle, battery, and the related gang and firearm enhancements. He argues the court erred in permitting the gang expert to testify to inadmissible hearsay to establish the requisite proof for the 2 gang enhancement. He further challenges the validity of the gang enhancement, firearm enhancement, and the underlying convictions under the Legislature's recent passage of Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Assembly Bill 333), which, in part, amended the language of section 186.22 to modify the showing necessary to sustain a gang enhancement. The legislation also added section 1109, which requires bifurcation of the trial of gang enhancements from that of the underlying offense(s) upon a defendant's request. Perez asserts the changes enacted by Assembly Bill 333 are retroactive and, accordingly, his gang-related enhancements should be reversed and retried under the new requirements of section 186.22. He also asserts his convictions for battery and shooting at an occupied motor vehicle must be reversed and retried in a bifurcated proceeding under the requirements of section 1109. Finally, he argues the court erred by staying rather than striking the firearm enhancement and that changes are necessary to the abstract of judgment.
We agree Assembly Bill 333 applies retroactively and Perez is entitled to reversal of his gang enhancement and firearm enhancement on that basis. However, we affirm Perez's convictions for shooting at an occupied motor vehicle and battery. Accordingly, we remand for further proceedings consistent with this opinion.
FACTUALBACKGROUND
February 3, 2018 Incident
In the evening of February 3, 2018, E.D. was at a convenience store with his girlfriend C.A.; E.D. was wearing a navy blue shirt. E.D. testified his car had a Los Angeles Dodgers logo decal on it; he and C.A. denied any gang involvement.
They met E.D.'s parents for dinner. E.D. testified Nava and his codefendant Ramos approached E.D. when E.D. was at the register checking out, though other evidence introduced suggests Ramos did not enter the store. C.A. identified Nava and Lopez as the individuals who approached E.D. inside the store. Officer Michael Elliot, who was tasked with identifying the suspects in the video surveillance footage from the 3 convenience store, identified Nava and Lopez as the individuals seen inside the store on the day of the incident. Nava said, '"What's up Ene?'" E.D. smiled and said, "What's up?"
Officer Elliot also testified the video surveillance footage did not depict Ramos entering the store at any time.
E.D. walked out of the store toward his car; Perez and Lopez followed him and said, '"Fuck Sur trece.'" E.D. understood the statement to mean "disrespect toward the Southerner gang." E.D. testified all four defendants continued to holler disrespectful Southern gang slurs while E.D. and C.A. walked toward his car. E.D. and C.A. got in the car and reversed; E.D. saw Ramos and Nava talking to E.D.'s mother as she was trying to get in her car. E.D. rolled his window down halfway to tell the defendants he did not want any problems but, before he could, Lopez and Perez threw drinks into E.D.'s car. Lopez then grabbed and scratched E.D.'s neck; Perez tried to grab E.D. too. E.D. drove off. He saw Lopez and Perez running to their car, a black four-door sedan, as he left. He told C.A. to call 911 as he turned onto the road from the driveway. He could see the defendants' car in his rear view mirror as they exited from the same driveway.
E.D. got in the far right lane. The defendants pulled up behind E.D.'s car and then next to it. E.D. then heard glass breaking, tires screeching, and two gunshots. E.D. and C.A. saw the rear passenger side window of the defendants' car rolled down. E.D. drove back to the convenience market and he and C.A. waited for the police. E.D. and C.A. both identified Perez in photographic line-ups following the incident and at the preliminary hearings.
The manager of the convenience market gave the police the surveillance videos from that day. The prosecution introduced footage from multiple cameras. Officer Elliot identified Perez, Ramos, Nava, and Lopez in the videos shown at trial. 4
Gang Expert Testimony
Before trial, Perez moved to bifurcate the gang allegations. The court noted it would treat the objection as a joint challenge by all the defendants. The court considered the motion and tentatively denied it because the gang allegations and underlying charges overlapped. The prosecutor argued the gang evidence was intertwined with the charges, motive, and intent and substantive evidence of it would come in regarding the section 182.5 charge. The court noted it intended to allow the gang expert to testify about the foundational components and opinions regarding the gang allegations and asked for comments from the parties; no objections or comments were made. The court explained to the prosecutor that, with the Sanchez issue [People v. Sanchez (2016) 63 Cal.4th 665], she was going to have to "prove … up individually … with witnesses."
Officer Joel Arjona, who was assigned to the Tulare Area Regional Gang Enforcement Team in February 2018, testified as a gang expert. He discussed his experience working with gangs and how the Norteño and Sureño gangs are structured. He explained both gangs have symbols and signs used to reflect their affiliation. Norteño gang members associate with the number 14 and the color red. They use the huelga bird as a symbol of the gang. Sureño members use the color blue to represent the gang and associate with the number 13. Arjona explained the Norteño gang derives from the prison gang Nuestra Familia. He also explained local street gang members of the Norteño gang report to an individual called a "channel." The "channel" then reports up to a member of Nuestra Familia who oversees the county. He testified Norteño members pay "taxes" that are used for the benefit of the gang. He explained the Norteño gang has different cliques or subsets that all identify with the color red and the number 14. Members of different subsets work together, communicate with one another, commit crimes together, and share information and weapons. He discussed the subset North Side Visa Boyz (or NSVB) and explained the symbols and tattoos they use to identify themselves. He stated all NSVB members are in Tulare County. 5
Officer Arjona explained what he deemed to be "primary activities of the Norteno gang" based on his investigations and reports and from speaking to other officers and gang members. The primary activities are a lot of crimes, 33 of which the Penal Code considers "gang crimes." The list of gang crimes includes, but is not limited to, auto theft, possession of firearms, murder, attempted murder, assault, assault with deadly weapons, kidnappings, burglary, and vandalism.
Officer Arjona testified regarding two specific predicate crimes. He discussed the murder of John Hernandez committed by Norteño gang members Jacob Robles and Julian Gonzalez at the direction of Joe Dominguez, another gang member, on May 19, 2010. Officer Arjona was familiar with the case through his research. Counsel for Nava objected on "foundation" grounds when the prosecutor asked whether Officer Arjona had an opinion as to whether the murder fits "the pattern of Norteno street gang activity … in Tulare County." The court overruled the objection. Based on his training and experience, speaking with other officers, and reading reports, Arjona testified he believed gang member Joe Dominguez directed the two other gang members to kill the victim, who was a gang dropout. The prosecutor then introduced a certified copy of the murder conviction from that case, People v. Julian Gonzalez, No. VCF241993, conviction date May 15, 2012.
Officer Arjona then testified regarding an attempted murder that occurred at the Visalia Mall on January 27, 2012, by Adrian Esquer and Anthony Hanson. Arjona was not on duty at the time, but he researched the incident after the fact and "it was a gang crime." Based on his conversations with the primary detective, study of the case, and review of the contacts of the suspects involved, Arjona concluded the individuals involved were "gang members and that this was an intimidation shooting against a rival gang member. And a person who was caught in crossfire was also struck." He specifically opined Adrian Esquer was a Norteño gang member at the time he committed the offense. He further opined the offense fits within the pattern of Norteño street gang 6 activity in Tulare County. The People then introduced the certified conviction packet for People v. Adrian Esquer, No. VCF263049B for convictions of attempted murder and assault with a firearm, conviction date of January 31, 2014.
Officer Arjona testified he reviewed 15 different gang contacts Perez had with police. He testified regarding various gang validation criteria Perez met, including his admission to being a gang member, his association with gang members, his possession of gang photos, his involvement in a gang-related crime, his gang-associated tattoos, his gang-related clothing, and his possession of gang material. Based on his training, knowledge, experience, and investigation of this case, Arjona opined Perez was a Norteño gang member in November 2018.
Prior Contacts
Several officers testified independently about contacts they personally had with Perez.
Officer Ricardo Cantu testified he had multiple interactions with Perez and knew him to be a part of a gang. Specifically, Perez "hung around the area with Nortenos." Cantu discussed an encounter he had with Perez on January 22, 2010, at a high school. Cantu responded to a verbal altercation involving Perez; Perez admitted yelling gang slurs such as "scraps" at Sureños. On September 27, 2010, Cantu contacted Perez about a dress code violation-Perez had a red bandana in his possession.
On June 3, 2011, Perez had a consensual encounter with Officer Dan Ford during which Perez admitted to being a Norteño and stated he aligned with the North Side Visa Boyz. Ford noted Perez had four dots tattooed on one hand and one dot on the other hand; Perez told Ford he earned his dots by fighting.
On December 5, 2012, Officer Joshua Pena had a consensual encounter with Perez during which Perez admitted he was a Norteño gang member, but he denied being part of a specific clique. Pena observed Perez's tattoos-four dots on his left hand and one dot on his right hand-and documented Perez was wearing a gray Raiders sweatshirt and a 7 hat with the letter "B" on it. Pena testified that, based on his training and experience with the Norteño gang, North Side Visa Boyz gang members would commonly wear hats with the letter "B" on them.
On May 13, 2013, Officer Thomas Higgins encountered Perez wearing all black clothing, a red cross necklace, red earring, a black and red hat, Nike shoes with red Nike "swooshes," and Perez had a red bandana in his rear pocket. Perez admitted to being a Norteño associate.
Officer Pena encountered Perez with gang member Jesse Contreras around 9:30 p.m. on June 6, 2013, during a traffic stop. Perez admitted he associated with Northern gang members. Officer Pena documented the four dots and one dot tattoos.
Officer Michael Elliot conducted a field interview with Perez on February 21, 2017. Elliot observed Perez walking in the roadway with Alex Renteria who is a known Norteño and North Side Visa Boyz gang member. Officer Elliot asked Perez about his gang involvement; Perez did not say he was a gang member.
On December 20, 2017, Officer Sean Schiebelhut contacted Perez outside with Lopez and three other individuals, including John Cortez, a known Visa Boyz and Northern gang member; they had open containers. In addition to Perez's previously documented tattoos, Perez had face tattoos that included "114 percent" above his left eye, four dots under his left eyelid, a teardrop under his right eye, and a large "B" on top of his head.
Officer Randy Lentzner testified he conducted a traffic stop of Perez in the morning of February 6, 2018, during which he ultimately arrested Perez and took his cell phone, turning it over to another officer. Perez's car, a black Chevrolet Impala, was towed to search it for evidence. That same day, Detective James Cummings executed a search warrant on a residence, with Perez as the subject of the warrant. Cummings searched an upstairs bedroom that was identified as Perez's and found ammunition and 8 gang writing there, including an "NSVB" drawing. He also found a Raiders jersey with the number four on it.
On February 20, 2018, Detective Cummings received a data disc with the information downloaded from Perez's cellular phone. The phone appeared to be new and to have been activated on February 5, 2018. Cummings flagged certain gang-related photographs he found on the phone, including but not limited to a picture of Perez, Lopez, Ramos, and another individual holding up their hands in gang signs; another picture of five individuals holding up a gang hand sign; a picture of a subject with a red huelga bird flag in the background; and a picture of a subject in all red making a hand sign indicating the number 14.
Officer Kevin Grant reviewed the search history on Perez's phone, which included searches related to Visalia shootings, gang shootings, and murder for hire. He located an article regarding a prior shooting occurring on August 2, 2017, at the same convenience store where the charged incident began. It was a gang-related Norteño and Sureño shooting. Lopez was a victim in the shooting. During that incident, the Northerners confronted some Sureño gang members inside the convenience store and one of the Norteño gang members was subsequently shot.
The People also introduced testimony about the other codefendants' prior contacts with law enforcement, focusing on incidents that had gang-related circumstances.
Verdict and Sentencing
The jury acquitted all four defendants of attempted murder of E.D. and C.A. (counts 1 and 2, respectively) and was deadlocked on the lesser included offense of attempted voluntary manslaughter. The court declared a mistrial on the attempted voluntary manslaughter charge. The jury convicted all four defendants of shooting into an occupied motor vehicle in violation of section 246 (count 3) and found true allegations a principal used a firearm (§ 12022.53, subds. (c) & (e)(1)) and that the offense was committed for the benefit of a criminal street gang (former § 186.22, subd. (b)(1)(C)). 9
The jury was deadlocked as to all four defendants on count 4, criminal street gang conspiracy in violation of section 182.5; accordingly, the court declared a mistrial on this count.
The jury convicted Perez and Lopez of battery in violation of section 242 in count 5 and found the offense was committed for the benefit of a criminal street gang (former § 186.22, subd. (b)(1)(C)). The jury convicted Lopez of possession of a firearm by a convicted felon in violation of section 29800, subdivision (a)(1).
On February 26, 2020, the court sentenced Perez to the aggravated term of three years' imprisonment on count 5 and a consecutive term of 15 years to life in prison for count 3 pursuant to section 186.22, subdivision (b)(4)(B). The court explained it chose the aggravated term "given [Perez]'s history and also his involvement in this case." Perez was ordered to pay a $5,000 restitution fine, $80 operations assessment, and a $60 criminal conviction assessment. The court also imposed a "parole revocation restitution fine in the amount of $5,000" that would be suspended pending his successful completion of parole.
DISCUSSION
I. Assembly Bill 333 Requires Reversal of the Gang Enhancements
In supplemental briefing, Perez argues the imposed criminal street gang enhancements must be reversed pursuant to changes made to section 186.22 by the enactment of Assembly Bill 333. He also contends newly enacted section 1109 (pursuant to Assem. Bill 333) requires reversal and retrial of his convictions for battery and shooting at an occupied vehicle in a bifurcated proceeding. We conclude Perez is entitled to reversal of his gang-related enhancements, but we affirm his convictions for battery and shooting at an occupied vehicle.
A. Assembly Bill 333
While Perez's appeal was pending, the Legislature enacted Assembly Bill 333, the STEP Forward Act of 2021, which, in part, amends section 186.22 to impose new 10 substantive and procedural requirements for gang enhancements. The Legislation went into effect on January 1, 2022.
First, Assembly Bill 333 amended the definition of a "'criminal street gang, '" requiring proof that the gang is an organized association or group of three or more persons, whose members collectively engage in, or have engaged in, a pattern of criminal activity (§ 186.22, subd. (f)). Next, the law created a stricter requirement for proof of "a pattern of criminal gang activity," which is necessary to prove that the group with which the defendant is associated is indeed a criminal street gang. (See § 186.22, subds. (e)- (f).) Previously, the prosecution needed to prove only that those associated with the gang had committed at least two offenses from a list of predicate crimes on separate occasions within three years of one another. (See former § 186.22, subd. (e).) Under the newly amended law, the offense with which the defendant is currently charged cannot be used as one of the two predicate offenses. (§ 186.22, subd. (e)(2).) In addition, the last of the predicate offenses must have "occurred within three years of the prior offense and within three years of the date the current offense is alleged to have been committed." (§ 186.22, subd. (e)(1).) The predicate offenses must have been committed by gang "members," and must have been for the "common[] benefit[] [of] a criminal street gang." (Ibid.) Assembly Bill 333 also narrowed the list of offenses that may be used to establish a pattern of criminal gang activity (compare former § 186.22, subd. (e)(1)-(33) with current § 186.22, subd. (e)(1)(A)-(Z)). Additionally, it defines "to benefit, promote, further, or assist" throughout section 186.22 to mean "to provide a common benefit to members of a gang where the common benefit is more than reputational." (Id., subd. (g).) The legislation notes examples of a common benefit that are more than reputational "may include, but are not limited to, financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a potential current or previous witness or informant." (Ibid.) 11
Finally, Assembly Bill 333 adds section 1109, which requires bifurcation of 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.) Section 1109 also requires the substantive offense of active participation in a criminal street gang (§ 186.22, subd. (a)) to be tried separately from all other counts that do not require gang evidence as an element of the crime. (§ 1109, subd. (b).)
B. The Amendments to Section 186.22 Apply Retroactively and Perez Is Entitled to Reversal of his Gang Enhancement and Firearm Enhancement
First, the parties agree Assembly Bill 333's amendments to section 186.22 altering the substantive requirements necessary to prove a gang enhancement operate retroactively. Because the legislation increased the evidentiary burden necessary to prove a gang-related enhancement, we agree it was an ameliorative change in the law that applies retroactively to cases not yet final on appeal.
Ordinarily, "a new statute is presumed to operate prospectively absent an express declaration of retrospectivity or a clear indication that the electorate, or the Legislature, intended otherwise." (Tapia v. Superior Court (1991) 53 Cal.3d 282, 287 (Tapia )). However, in In re Estrada (1965) 63 Cal.2d 740 (Estrada), our Supreme Court recognized an exception to this rule. The court explained that "[w]hen the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply. The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final. This intent seems obvious, because to hold otherwise 12 would be to conclude that the Legislature was motivated by a desire for vengeance, a conclusion not permitted in view of modern theories of penology." (Id. at p. 745.)
In subsequent years, the California Supreme Court has applied the Estrada doctrine broadly "to statutes changing the law to the benefit of defendants." (Tapia, supra, 53 Cal.3d at p. 301; see generally People v. Frahs (2020) 9 Cal.5th 618, 631-632 [holding pretrial diversion statute is retroactive because it provides a "possible benefit" to a class of criminal defendants, does not contain express savings clause, and Legislature did not signal its intent to overcome Estrada inference]; People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 309 ["Proposition 57 is an 'ameliorative change[] to the criminal law' that we infer the legislative body intended 'to extend as broadly as possible'"].)
Most relevant here, the Supreme Court in Tapia held the presumption of retroactivity applies to laws changing the substantive requirements for an enhancement in a defendant's favor. (See Tapia, supra, 53 Cal.3d at pp. 300-301.) In Tapia, the electorate had recently passed an initiative requiring proof of intent to kill for certain special circumstance allegations. (Ibid) Because the initiative "redefine[d], to the benefit of defendants, conduct subject to criminal sanctions," the court held the initiative applied retroactively. (Id. at p. 301.)
Like in Tapia, because Assembly Bill 333's substantive changes to section 186.22 "redefine, to the benefit of defendants, conduct subject to criminal sanctions," these changes apply retroactively to all cases-like Perez's-in which the judgment of conviction is not yet final. (Tapia, supra, 53 Cal.3d at pp. 300-301; accord, People v. Sek (2022) 74 Cal.App.5th 657, 667 [concluding Assem. Bill 333's amendments to § 186.22 "'redefine[d], to the benefit of defendants, conduct subject to criminal sanctions' [citation], and it therefore applies retroactively under Estrada"]; People v. E.H. (2022) 75 Cal.App.5th 467, 471 [similar]; see People v. Lopez (2021) 73 Cal.App.5th 327, 344 [concluding substantive changes in Assem. Bill 333 apply retroactively because they "increase[] the threshold for conviction of the section 186.22 13 offense and the imposition of the enhancement"]; People v. Rodriguez (2022) 75 Cal.App.5th 816, 822 [same].)
And here, it is undisputed Perez is entitled to reversal of the gang enhancements on this basis; that is, neither party argues, nor can we conclude, the evidence presented at trial was sufficient to sustain the gang enhancement under the revised requirements of section 186.22. At trial the prosecution introduced evidence of two cases committed in 2010 and 2012 as evidence of the predicate offenses necessary to establish a pattern of criminal gang activity. The last predicate offense did not occur within three years of the date the currently charged offense was committed-February 3, 2018-as required by amended section 186.22. (Stats. 2021, ch. 699, § 3.)
Accordingly, the existing record is insufficient to support the heightened evidentiary requirements set forth by amended section 186.22 following the enactment of Assembly Bill 333. As a result, the criminal gang enhancement applied to Perez's sentence must be reversed.
Additionally, because the imposed section 12022.53 enhancement applied to Perez only because the jury concluded he violated section 186.22, subdivision (b) and because his penalty had been elevated to a life term through application of the alternate penalty provision provided for in section 186.22, the section 12022.53 enhancement is also no longer supported. The People agree this is also the correct result. Accordingly, the imposed firearm enhancement must also be vacated.
However, the People are not foreclosed from retrying Perez on the gang enhancements and gang-related firearm enhancement upon remand under the new requirements of amended section 186.22. Put differently, "'[b]ecause we do not reverse based on the insufficiency of the evidence required to prove a violation of the statute as it read at the time of trial, the double jeopardy clause of the Constitution will not bar a retrial.'" (People v. Sek, supra, 74 Cal.App.5th at p. 669; accord, People v. Figueroa (1993) 20 Cal.App.4th 65, 72 ["Where, as here, evidence is not introduced at trial 14 because the law at that time would have rendered it irrelevant, the remand to prove that element is proper and the reviewing court does not treat the issue as one of sufficiency of the evidence"]; see People v. Eagle (2016) 246 Cal.App.4th 275, 280 ["When a statutory amendment adds an additional element to an offense, the prosecution must be afforded the opportunity to establish the additional element upon remand"].)
C. Section 1109 Is Retroactive but Perez Is Not Entitled to Reversal of His Underlying Convictions
Perez also argues newly enacted section 1109 (pursuant to Assem. Bill 333) should apply retroactively to his case and requires reversal of his underlying convictions for shooting at an occupied vehicle and for battery. He asserts the new statute, which, in part, requires bifurcation of the trial on a gang enhancement from the trial on the underlying charge(s) upon a defendant's request, entitles him to a reversal and retrial of his underlying conviction. The People deny section 1109 should apply retroactively because it is a procedural rather than a substantive change in the law. Irrespective, they contend Perez is not entitled to reversal of this conviction because he was not prejudiced by the failure to bifurcate the gang enhancement. We agree with Perez that section 1109 should apply retroactively but conclude he is not entitled to reversal of his convictions for shooting at an occupied vehicle or battery because he was not harmed by the failure to bifurcate. Accordingly, we affirm these convictions.
As discussed, Assembly Bill 333 amends section 186.22 and adds section 1109. (Stats. 2021, ch. 699, §§ 3-5.) Pursuant to section 1109, subdivision (a), upon a defendant's request, a case in which a gang enhancement is charged under section 186.22, subdivision (b) or (d) must be tried in separate phases. Section 1109, subdivision (b) provides that "[i]f a defendant is charged with a violation of subdivision (a) of Section 186.22, this count shall be tried separately from all other counts that do not otherwise require gang evidence as an element of the crime. This charge may be tried in the same 15 proceeding with an allegation of an enhancement under subdivision (b) or (d) of Section 186.22."
On its face, the legislation states, in part, that according to the Committee on Revision of the Penal Code's 2020 report, "Gang enhancement evidence can be unreliable and prejudicial to a jury because it is lumped into evidence of the underlying charges which further perpetuates unfair prejudice in juries and convictions of innocent people." (Stats. 2021, ch. 699, § 2, subd. (d)(6).) The legislation expressly declares:
"(e) California courts have long recognized how prejudicial gang evidence is. (See, e.g., People v. Williams (1997) 16 Cal.4th 153, 193.) Studies suggest that allowing a jury to hear the kind of evidence that supports a gang enhancement before it has decided whether the defendant is guilty or not may lead to wrongful convictions. (Eisen, et al., Examining the Prejudicial Effects of Gang Evidence on Jurors (2013) 13 J. Forensic Psychol. Pract. 1; Eisen, et al., Probative or Prejudicial: Can Gang Evidence Trump Reasonable Doubt? (2014) 62 UCLA L. Rev. disc. 2; see also, 2020 Annual Report, p. 46 ['Studies show that even merely associating an accused person with a gang makes it more likely that a jury will convict them'].) The mere specter of gang enhancements pressures defendants to accept unfavorable plea deals rather than risk a trial filled with prejudicial evidence and a substantially longer sentence.
"(f) Bifurcation of trials where gang evidence is alleged can help reduce its harmful and prejudicial impact." (Stats. 2021, ch. 699, § 2, subds. (e), (f).)
Thus, by its plain language, Assembly Bill 333 is an ameliorative change to the criminal law intended to benefit a class of criminal defendants by reducing the potentially harmful and prejudicial impact of gang evidence through bifurcation. The legislation is geared to address wrongful convictions and mitigate punishment resulting from the admission of irrelevant gang evidence at trial; accordingly, the logic of Estrada applies. (See People v. Frahs, supra, 9 Cal.5th at p. 631; accord, People v. Superior Court (Lara), supra, 4 Cal.5th at p. 309 [Estrada inference of retroactivity applies to ameliorative change in criminal law].) And the Legislature did not include an express savings clause limiting Assembly Bill 333 to prospective-only application or clearly signal its intent for 16 section 1109 to apply prospectively thereby overcoming the Estrada inference. (See Frahs, supra, at p. 634 ["Our prior decisions have … made clear that in order to rebut Estrada's inference of retroactivity concerning ameliorative statutes, the Legislature must 'demonstrate its intention with sufficient clarity that a reviewing court can discern and effectuate it'"].) Because Estrada's inference of retroactivity is not rebutted, we conclude section 1109 must apply retroactively to all cases not yet final on appeal. (See Frahs, at pp. 631-632 [holding diversion statute is retroactive because it provides a possible benefit to a class of criminal defendants, does not contain an express savings clause, and Legislature did not signal its intent to overcome Estrada inference]; People v. Superior Court (Lara), supra, at p. 309 ["Proposition 57 is an 'ameliorative change[] to the criminal law' that we infer the legislative body intended 'to extend as broadly as possible'"]; cf. People v Brown (2012) 54 Cal.4th 314, 325 ["[A] statute increasing the rate at which prisoners may earn credits for good behavior does not represent a judgment about the needs of the criminal law with respect to a particular criminal offense, and thus does not support an analogous inference of retroactive intent"].)
The People, however, argue the changes instituted by section 1109 govern trial procedure and do not alter the substantive requirements of the gang allegations; accordingly, they apply prospectively only. In support, they cite our court's decision in People v. Cervantes (2020) 55 Cal.App.5th 927, 940 (Cervantes).
We are not persuaded. In Cervantes, our court considered whether amendments made to section 859.5-which until then only required electronic recording of custodial interrogations of minors but was then amended to apply to custodial interrogations of adults-applied retroactively to render a defendant's confession inadmissible and, accordingly, entitled him to reversal of his convictions. (Cervantes, supra, 55 Cal.App.5th at pp. 936-937.) We noted "our high court has declined to extend the reach of Estrada to legislative action that does not alter or reduce criminal punishment or treatment for past criminal conduct." (Id. at p. 939.) We held the amendments to the 17 statute were not retroactive because they did not "alter the substantive requirements for conviction, nor affect the available punishments in the event of conviction." (Id. at p. 940.) The changes also did not "alter or reduce criminal punishment or treatment." (Ibid) Our court further held the logic of Estrada did not apply because "the amendments [at issue] were not designed to provide a clear and significant benefit to defendants; they were designed to reduce biased interpretation of, and ensure the accuracy of the evidence of, the communication that occurs in an interrogation." (Cervantes, at p. 941.)
Notably, in Cervantes, our court further explained the California Supreme Court did not hold procedural changes are subject only to prospective application in Tapia, supra, 53 Cal.3d 282. (Cervantes, supra, 55 Cal.App.5th at p. 940, fn. 8.) Rather, the Tapia court held statutory changes affecting the conduct of a trial that had not yet taken place did not involve a question of retroactivity. (Tapia, at p. 288.)
In this regard, Cervantes is distinguishable. As discussed, by its express language, Assembly Bill 333 evinces an intent by the Legislature to benefit a certain class of criminal defendants by reducing the potentially harmful and prejudicial impact of gang evidence through bifurcation of the gang allegations. Thus, here, unlike in Cervantes, the logic of Estrada does apply.
The People also cite People v. Sandee (2017) 15 Cal.App.5th 294 in support of their argument. In that case, the Fourth Appellate District, Division One, held the passage of the Electronic Communications Privacy Act (§ 1546 et seq.) related to the prohibition of governmental searches of cellular phones (subject to exceptions), was not retroactive because it did not mitigate the penalty for a crime, decriminalize conduct altogether, or expand defenses. (People v. Sandee, supra, at p. 305, fn. 7.) Accordingly, the Estrada presumption did not apply.
Again, we conclude Sandee is distinguishable. Here, Assembly Bill 333 expressly reflects the Legislature's belief "[t]he mere specter of gang enhancements pressures defendants to accept unfavorable plea deals rather than risk a trial filled with prejudicial 18 evidence and a substantially longer sentence." (Stats. 2021, ch. 699, § 2, subd. (e).) Accordingly, it is apparent from the face of the legislation that it is aimed at mitigating wrongful punishment resulting from the admission of prejudicial and harmful gang evidence; thus, the Estrada presumption is implicated.
Nevertheless, we affirm Perez's convictions for shooting at an occupied vehicle (count 3) and battery (count 5) because we cannot conclude he was prejudiced by the failure to bifurcate the gang enhancement from the trial on the underlying charges. That is, we cannot conclude it is reasonably probable Perez 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 (1956) 46 Cal.2d 818, 836 (Watson)) We apply the Watson standard in reviewing for prejudice because Perez does not argue, nor can we conclude, the failure to bifurcate the gang enhancement from the trial on the substantive charges violated his federal constitutional right to due process such that it rendered his trial fundamentally unfair.
Here, any inference of prejudice from the gang evidence is dispelled by the fact the jury acquitted all the defendants of attempted murder and could not reach a verdict as to attempted voluntary manslaughter. It is apparent from this record the jury did not simply rely on the gang evidence to convict the defendants of all the charged crimes. Also. there was little dispute Perez and his codefendant Lopez committed battery on E.D. Indeed, Perez's counsel conceded as much in closing, stating "I accept the fact that [Perez] threw a drink at someone and hit them. That's fine. That's a battery. I have no argument as to the battery charge, Count 5." Furthermore, nothing in Assembly Bill 333 limits the introduction of gang evidence in a bifurcated proceeding where the gang evidence is relevant to the underlying charges. And here, some of the gang evidence was relevant to motive in that the defendants yelled derogatory gang terms at the victim to imply they associated him with a rival gang, thereby suggesting their criminal conduct was gang motivated. Thus, it is likely some, though not all, of the evidence of Perez's 19 gang membership and the gang rivalry would have come in at a trial on just the substantive offenses. (See People v. Hernandez (2004) 33 Cal.4th 1040, 1049-1050 ["To the extent the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled, and bifurcation would not be necessary"]; People v. Samaniego (2009) 172 Cal.App.4th 1148, 1167 ["evidence related to gang membership is not insulated from the general rule that all relevant evidence is admissible if it is relevant to a material issue in the case other than character, is not more prejudicial than probative, and is not cumulative"]; but see People v. Hernandez, supra, at p. 1049 ["The predicate offenses offered to establish a 'pattern of criminal gang activity' (§ 186.22, subd. (e)) need not be related to the crime, or even the defendant, and evidence of such offenses may be unduly prejudicial, thus warranting bifurcation. Moreover, some of the other gang evidence, even as it relates to the defendant, may be so extraordinarily prejudicial, and of so little relevance to guilt, that it threatens to sway the jury to convict regardless of the defendant's actual guilt"].)
Additionally, the jury was given a limiting instruction regarding its consideration of the gang evidence, which we presume it followed. (See People v. Franklin (2016) 248 Cal.App.4th 938, 953 ["We presume that the jury followed these limiting instructions (regarding considering gang evidence for limited purpose), and there is nothing in this record to rebut that presumption"].) Consequently, on this record, we cannot conclude Perez was prejudiced by the failure to bifurcate the gang enhancement allegations. (See People v. Hernandez, supra, 33 Cal.4th at p. 1051 ["Any evidence admitted solely to prove the gang enhancement was not so minimally probative on the charged offense, and so inflammatory in comparison, that it threatened to sway the jury to convict regardless of defendants' actual guilt"].) Thus, we affirm Perez's convictions for shooting at an occupied vehicle and battery. (See People v. E.H., supra, 75 Cal.App.5th at p. 480 [concluding failure to bifurcate was harmless under Watson standard in light of "overwhelming" evidence in support of the robbery convictions, stating "[e]ven if section 20 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"].)
II. Perez's Remaining Claims Are Moot
In his opening brief, Perez argued the court erred in permitting Officer Arjona, the gang expert, to testify to case-specific facts related to the predicate offenses of which Arjona had no personal knowledge. Perez noted certified records of the convictions related to the predicate offenses were admitted and reflected true findings on gang enhancements in both cases; but, he argues, Officer Arjona's testimony was necessary to establish the gang affiliation of the perpetrators. Perez contends, absent the improper testimony, the jury could not have found a "pattern of criminal activity" as necessary to sustain the gang enhancement and vicarious firearm enhancement. If the issue was deemed forfeited based on his counsel's failure to object, Perez contends his counsel provided ineffective assistance on that basis. The People responded that Perez waived his objection by failing to object to the referenced testimony below. However, as discussed in subsequent briefing, the People concede Perez is entitled to reversal of his gang enhancements and related firearm enhancement under Assembly Bill 333.
Perez also argues the court erred in imposing and staying the firearm enhancement pursuant to section 12022.53, subdivision (e)(2). He argues this section prohibits the imposition of both the firearm enhancement and a gang enhancement unless the defendant was the actual shooter. The People respond the court did not err in imposing and staying the firearm enhancement, relying on People v Gonzalez (2008) 43 Cal.4th 1118, but they agree Perez is entitled to reversal of this enhancement under Assembly Bill 333.
Because we reverse the true findings on Perez's gang enhancements and his vicarious firearm enhancement based on Assembly Bill 333's amendments to section 186.22, we need not address his additional challenges to these enhancements. For the 21 same reason, we need not discuss Perez's contentions regarding alleged necessary changes and deletions to the sentencing minute order and the abstracts of judgment. Rather, because of our conclusion, a new sentencing minute order and abstract(s) of judgment will necessarily result. Thus, Perez's remaining contentions are moot.
DISPOSITION
The section 186.22, subdivision (b) gang enhancements and the section 12022.53 firearm enhancement are reversed. The matter is remanded to the trial court for further proceedings. The People shall have 60 days from the date of the remittitur in which to file an election to retry Perez on these enhancements. If the People elect not to retry him, the trial court shall modify the judgment by striking the enhancements and shall resentence Perez accordingly. Following the conclusion of proceedings, the court shall amend the abstract of judgment in a manner consistent with this disposition and forward copies of the amended abstract to the appropriate law enforcement and custodial officials. In all other respects, the judgment is affirmed.
WE CONCUR: SMITH, J., DE SANTOS, J. 22