People v. Rios

Full title: THE PEOPLE, Plaintiff and Respondent, v. ANTHONY RIOS et al., Defendants…

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Date published: Dec 20, 2019

No. F074350 (Cal. Ct. App. Dec. 20, 2019)

Opinion

F074350

12-20-2019

THE PEOPLE, Plaintiff and Respondent, v. ANTHONY RIOS et al., Defendants and Appellants.

John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant Anthony Rios. Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and Appellant James Rios. Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant Anthony Alex Sanchez. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.

POOCHIGIAN, J.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTSCalifornia Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Kern Super. Ct. Nos. BF160164A, BF160164B & BF160164C)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. John R. Brownlee, Judge. John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant Anthony Rios. Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and Appellant James Rios. Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant Anthony Alex Sanchez. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

I. Procedural History

This case arises out of a revenge shooting that wounded Mario B., his wife, Adriana B., and their unborn son.¹ Codefendants and coappellants James Rios (James), Anthony Rios (Anthony) and Anthony Sanchez (Sanchez) were charged with three counts of willful, deliberate and premeditated attempted murder (Pen. Code, §§ 664/187, subd. (a), 189)²³ (counts 1-3), with attached gang and firearm enhancements (§§ 186.22, subd. (b)(1), 12022.53, subds. (d), (e)(1)).⁴ Anthony and Sanchez were also charged with active participation in a criminal street gang (§ 186.22, subd. (a)) (count 4) and being a felon in possession of a firearm (§ 29800, subd. (a)(1)) (count 5), with a gang allegation attached to count 5 (§ 186.22, subd. (b)(1)).

1 The victims and some of the witnesses are referred to by their first names, in accordance with California Rules of Court, rule 8.90(b). No disrespect is intended.

2 All further statutory references are to the Penal Code.

3 Effective January 1, 2019, sections 188 and 189 were amended, and section 1170.95 was added, to impose limits on criminal liability under the felony murder rule and, as related to murder, the natural and probable consequences doctrine. (Sen. Bill No. 1437, approved by Governor, Sept. 30, 2018 (2017-2018 Reg. Sess.) ch. 1015, §§ 1-4.) Those changes are not relevant to the issues raised in this appeal.

4 Because James Rios and Anthony Rios share the same last name and Anthony Rios and Anthony Sanchez share the same first name, we will refer to James Rios and Anthony Rios by their first names and Anthony Sanchez by his last name.

At the close of the prosecution's case-in-chief, the trial court granted James's and Anthony's motions to dismiss the attempted murder counts as to Adriana (count 1) and Baby Boy (count 3).⁵ (§ 1118.1.) The jury thereafter convicted James of the attempted murder of Mario (count 2) and found true the allegation that the attempted murder was willful, deliberate and premeditated, but found not true the attached gang and firearm enhancement allegations.

5 Mario's and Adriana's unborn son was delivered after the shooting. He was identified as "Baby Boy B." in the information and we refer to him herein as Baby Boy.

The jury convicted Anthony of the attempted murder of Mario (count 2), active participation in a criminal street gang (count 4), and being a felon in possession of a firearm (count 5). As to the attempted murder of Mario, the jury found true the premeditation allegation, the gang enhancement allegation and the firearm enhancement allegation. The jury also found true the gang enhancement allegation attached to the felon in possession of a firearm count (count 5).

The jury convicted Sanchez of all five counts; found true the premeditation, gang enhancement and firearm enhancement allegations attached to the attempted murder counts; and found true the gang enhancement allegation attached to the felon in possession of a firearm count (count 5). In a bifurcated proceeding, the trial court found true that Sanchez had a prior serious felony conviction within the meaning of the "Three Strikes" law. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).)

II. Sentences Imposed

The trial court sentenced James to an indeterminate term of seven years to life in prison for the attempted murder of Mario (count 2).

Anthony was sentenced to an indeterminate term of seven years to life for the attempted murder of Mario (count 2), plus 25 years to life for the firearm enhancement, for a total term of 32 years to life in prison; the court stayed the gang enhancement for court 2. The court also imposed the upper term of three years for the substantive gang offense (count 4), and the upper term of three years for being a felon in possession of a firearm (count 5) with an additional four years for the gang enhancement and stayed these terms pursuant to section 654.

Finally, Sanchez was sentenced to a total indeterminate term of 105 years to life plus a determinate term of 46 years as follows. As to count 2, the attempted premeditated murder of Mario, the court imposed a term of 15 years to life pursuant to section 186.22, subdivision (b)(5), doubled to 30 years to life for the prior strike conviction, plus 25 years to life for the firearm enhancement and five years for the section 667, subdivision (a)(1) prior serious felony enhancement. For count 1, the attempted murder of Adriana, the court imposed the upper term of nine years, doubled to 18 years for the prior strike conviction, plus an additional 10 years for the gang enhancement, 25 years to life for the firearm enhancement, and five years for the prior serious felony conviction. For count 3, the attempted murder of Baby Boy, the court imposed two years four months (one-third of the middle term), doubled to four years eight months for the prior strike conviction, plus an additional three years four months for the gang enhancement (one-third of the middle term), and 25 years to life for the firearm enhancement, with the terms for counts 1, 2, and 3 to be served consecutively.

For the substantive gang offense (count 4), the court imposed the upper term of three years, doubled to six years for the prior strike conviction; and for being a felon in possession of a firearm (count 5), the court imposed the upper term of three years, doubled to six years for the prior strike conviction, plus an additional four years for the gang enhancement, with these terms stayed under section 654.

As we will explain in part VII, post, the court also ordered each appellant to pay restitution fines, fees, and assessments.

III. Claims on Appeal

With respect to his convictions for the attempted murders of Adriana and Baby Boy, Sanchez claims the trial court erred in instructing the jury on the kill zone theory and the convictions are unsupported by substantial evidence. Sanchez, joined by Anthony, also claims the gang enhancements are unsupported by substantial evidence.

Anthony, joined by Sanchez and James, claims that the trial court erred in its response to the jury's question during deliberations regarding heat of passion and that it erred when it discharged Juror No. 11 for misconduct during deliberations. Anthony also claims that his conviction for being a felon in possession of a firearm is not supported by substantial evidence. Finally, Anthony, who was 22 years old at the time of the crimes, claims that trial counsel rendered ineffective assistance of counsel (IAC) by failing to make a record of age-related factors for his future youthful offender parole hearing and he seeks remand for a hearing under People v. Franklin (2016) 63 Cal.4th 261 (Franklin).⁶

6 James, who was 21 years old at the time of his crime, does not expressly join in Anthony's IAC claim, but in addition to expressly joining in arguments I and II in Anthony's opening brief, he includes in his opening brief a general statement of joinder in his coappellants' arguments as may benefit him. (Cal. Rules of Court, rules 8.200(a)(5).) We agree with the People that such blanket statements of joinder are not viewed with favor, but we elect to exercise our discretion to extend consideration of Anthony's Franklin hearing argument to James. (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 363-364 (Bryant, Smith and Wheeler).) We discourage counsel from pursuing this broad approach in future briefing. (Ibid.)
Sanchez, who was 24 years old at the time of his crimes, is statutorily ineligible for a youthful offender parole hearing due to his prior strike offense. (§ 3051, subd. (h).)

James claims his conviction for the attempted murder of Mario is unsupported by substantial evidence. He also claims, joined by Sanchez, that the trial court erred when it discharged Juror No. 11 during deliberations, and he claims, joined by Sanchez and Anthony, that the discharge of Jurors Nos. 3 and 11 coerced the verdict. Finally, he claims, joined by Sanchez, that the trial court erred when it responded to the jury's questions about heat of passion, and he claims, joined by Anthony, that CALCRIM No. 400 on the general principles of aiding and abetting misstates the law. If we deem his challenge to CALCRIM No. 400 forfeited by failure to object during trial, he claims, also joined by Anthony, that he received IAC.

In supplemental briefing, Anthony and Sanchez seek remand to allow the trial court to exercise its discretion to strike the firearm enhancement, given the amendment to section 12022.53 effective January 1, 2018. (Sen. Bill No. 620, approved by Governor, Oct. 11, 2017 (2017-2018 Reg. Sess.) ch. 682, § 2 (Senate Bill No. 620 or Sen. Bill No. 620).) Sanchez also seeks remand to allow the court to exercise its discretion to strike his prior serious felony conviction enhancement under section 667, subdivision (a), given the recent amendments to sections 667 and 1385, effective January 1, 2019. (Sen. Bill No. 1393, approved by Governor, Sept. 30, 2018 (2017-2018 Reg. Sess.) ch. 1013, §§ 1, 2 (Senate Bill No. 1393 or Sen. Bill No. 1393).)

Finally, in further supplemental briefing, Anthony and James, joined by Sanchez, seek relief from the court fee assessments (§ 1465.8, subd. (a), Gov. Code, § 70373, subd. (a)) and restitution fine (§ 1202.4, subd. (b)) imposed on them without an ability-to-pay hearing, pursuant to the Court of Appeal's decision in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).

The People dispute appellants' entitlement to any relief on their claims.

We conclude that Anthony's conviction for being a felon in possession of a firearm is unsupported by substantial evidence that he constructively possessed the gun used by Sanchez in the crimes and, therefore, we reverse his conviction on count 5. As a result, we will strike the fees imposed by the court that were based on that conviction.

We also agree with Anthony and Sanchez that this matter should be remanded so that the trial court may exercise its discretion to determine whether to strike the firearm enhancements or, limited to Sanchez, the prior serious felony conviction enhancement.

We otherwise reject appellants' claims and affirm the judgments.

FACTUAL SUMMARY

I. Prosecution Case

A. Fight Preceding Shootings

The events underlying the crimes in this case occurred on the afternoon of May 5, 2015. Adriana's 16-year-old son, Rick, was living with his paternal grandparents, Dee B. and Manuel G., at their house on Monterey Street in Bakersfield.⁷ At the time, he was associating with the Colonia Bakers street gang but by the time of trial, he was no longer associating with any gang.

7 At the time of his testimony, Rick was in custody for previously failing to appear in court and he acknowledged he did not want to testify.

James and Anthony, who are brothers, used to live next door to Rick's grandparents and Rick had known them for years. The brothers had a close relationship with Rick, Adriana and Mario; they referred to Adriana and Mario as "[t]ia," or aunt, and "[t]io," or uncle, and Rick would refer to James as his cousin. Although Rick and James argued on occasion, they would make up afterward. At the time of the shootings, however, they had not spoken for approximately a month after Rick stopped hanging out with James and "kind of kicked him to the curb."

On the day of the shootings, James sent Rick a message through Facebook "out of the blue" challenging Rick to a fight for "talking crap about him." Rick agreed. James said he was on his way and told Rick to be out back. Rick did not say anything to anyone at the house and went out to the alleyway behind his grandparents' house to wait for James, who lived 15 to 20 minutes away.

James drove up in his black Scion with his teenage cousin, Vincent, in the car. After getting out, James and Rick started to fight. Rick testified they did not speak. James, who was bigger than Rick, kicked Rick once in the leg, but did not hit him, and Rick kicked James once in the stomach and hit him once in the back of the head.

As Rick and James were fighting in the alleyway, Adriana and Mario drove up to the house. Although they did not live there, they always picked up their children, and sometimes a niece or a nephew, from school and brought them over to Dee and Manuel's house.⁸ As they pulled into the driveway and parked, Mario saw Rick running backward in the alley without his shirt on. Mario ran back to the alley and said, "What the hell is going on?"⁹ James responded that Rick needed to fight like a man and Mario said, "He's only 16. How old are you?"¹⁰ James told Mario that Rick was "talking all that shit on Facebook" and needed to fight like a man. Mario testified Adriana was angry and was yelling, and he tried to settle James down, but James "was getting a little loud with [Adriana]." Mario told James to quiet down and when he failed to do so, Mario hit him once in the jaw to "check" him for being disrespectful.

8 At the time of trial, Mario and Adriana had been together for approximately 10 years and had three children together. Adriana also had five other children, including Rick and his half brother, Joshua. As discussed, post, the house on Monterey Street where the shooting occurred belonged to Adriana's former in-laws.

9 There were some inconsistencies in the evidence regarding who was in the alleyway besides Rick, James, James's cousin, and Mario, and whether Adriana was in the alleyway with them or just outside the back door. Mario also testified that he saw "a whole bunch of little dudes" back there, and Adriana testified she saw "quite a few boys."

10 As previously stated, James was then 21 years old.

James stumbled to the ground, and Mario extended his hands to indicate he did not want to do this. After James got up, he looked like he wanted to hit Mario. Mario testified he said, "Don't do this," and James said, "F[**]k it. I'm out of here." After James got up, Rick heard him say he would be back before driving off. Rick testified that he thought Anthony might show up to fight with Mario for hitting James, but Mario testified he did not expect any problems with Anthony.

B. Shootings

Approximately 15 minutes after the fight in the alleyway, Adriana, who was in her third trimester of pregnancy, was sitting outside in front of the house at a table talking to her doctor's office about her baby's delivery, which was scheduled for the next day. Her back was to the street and she heard a car, identified as Anthony's gray Honda, drive up to the house and stop fast. When Adriana turned around, the car was parked behind her vehicle, which was in the driveway. Anthony was driving, Sanchez was sitting in the front passenger seat, and James and a fourth person Adriana identified as a cousin of Anthony and James, "Junior," were sitting in the back seat.

Anthony, Sanchez and James got out of the car while Junior remained inside. James approached Adriana and said, "You're not so tough now bitch." She saw a black object enclosed in his hand, which she stated was a knife, although she did not see the blade. Adriana asked what was going on, but no one responded. Anthony started calling for Mario, who was not in the front yard at the time.

Mario testified Anthony said, "Where's Guero at? You're going to get your ass kicked. Come on. You're going to get your ass kicked."¹¹ Adriana heard Anthony tell Mario "he was going to f[**]k him up."

11 Mario testified that James and Anthony called him Guero or Tio Guero, which was his childhood nickname.

Anthony waved his arms and moved back like he was trying to draw Mario away from the house and into the street. Sanchez, known as "Mouthy," stood nearby and smirked. Mario asked them if this was what they wanted, and as Sanchez walked toward Anthony, Adriana heard Anthony say, "Not right now G." She then heard Anthony say, "Get this fool now." Mario saw Sanchez pull a gun from the waistband of his pants. He yelled, "Gun," and ran toward Adriana with his arms out in an effort to "build[] a wall" because there were children in the yard.

Adriana heard one gunshot followed by two gunshots and testified that by the time she turned around to run, she had been hit. Mario saw Adriana fall and he ran to her and covered her body with his "like a parachute." Sanchez, who did not say a word, stood over Mario and Adriana and fired three shots at close range.¹² The shots hit Mario once in the shoulder and twice in the same spot in his back. After Mario was hit three times, Adriana heard a clicking noise like there were no more bullets in the gun. As James, Anthony and Sanchez left, Adriana heard someone say, "Oh yeah, that's what you mother f[**]kers get."

12 Adriana testified Sanchez was approximately one foot away from Mario when he fired, and she was looking up the barrel of the gun from her position on the ground.

Adriana got up and saw Mario bleeding. She removed her tank top and stuffed it in the bullet hole in her back to stop the bleeding. She and Rick then helped Mario, who was unable to walk, into their vehicle parked in the driveway. Rick called 911 after the shootings, and Adriana, with Rick in the vehicle, drove Mario to the hospital.

Adriana underwent an emergency C-section to deliver Baby Boy. In addition, one of her kidneys was removed and she had surgery on her bladder. Mario also underwent surgery, and he and Adriana were both hospitalized for eight days. The single bullet that hit Adriana in the back lodged in Baby Boy's brain. After delivery, Baby Boy was admitted to Children's Hospital in Madera, and the bullet was surgically removed approximately six weeks later.¹³

13 The extent of Baby Boy's injuries resulting from the bullet to his brain was not disclosed to the jury.

C. Gang Evidence

1. Officer Shaff

Officer Shane Shaff of the Bakersfield Police Department testified as the prosecution's gang expert. With respect to gang hierarchy, he related to the jury that the Sureños are soldiers for the Mexican Mafia and have the most respect and influence on the streets or in local detention facilities. He identified Varrio, Colonia, Okie, Loma, Eastside, East, Southside and Westside as some of the criminal street gang subsets under the Sureño umbrella, and he opined that at the time of the crimes, James was an associate and Sanchez and Anthony were active members of the Eastside Bakers criminal street gang.¹⁴

14 The jury found the gang enhancement untrue as to James. James had no gang tattoos, Shaff was not aware of any moniker used by James, and the evidence Shaff relied on to support his opinion that James was a gang associate was notably weaker than the evidence of Sanchez's and Anthony's gang membership. As Sanchez and Anthony do not challenge the evidence that the Eastside Bakers is a criminal street gang (People v. Sanchez (2016) 63 Cal.4th 665, 698; People v. Prunty (2015) 62 Cal.4th 59, 71), or that they were active members of the Eastside Bakers at the time of the crimes, we confine our discussion of the evidence to that which is relevant to their sufficiency of the evidence challenge.

Officer Shaff explained that instilling fear in the community and in rival gang members through the commission of violent crimes benefits gang members and their gang by earning them respect and elevating their status. When an older gang member who is respected and influential directs another to commit a crime such as robbery or narcotics sales, and that individual returns with proceeds that allow the gang to buy guns or other things, that crime is at the direction of the gang. Finally, when multiple gang members commit crimes together, it increases the intimidation and they trust one another not to tell. In addition, it demonstrates they are "putting in work for [their] gang" and "shows [their] loyalty to the gang."

Officer Shaff agreed that not every crime committed by a gang member is a gang crime and he identified driving under the influence, spousal abuse and assault tied to infidelity as examples of crimes that were "probably" not gang related. He opined, however, that an assault motivated by infidelity may be elevated to a gang crime if the gang member leaves the scene; returns with a fellow gang member, a plan and a weapon; and commits the assault in concert with the other gang member.

The prosecutor asked Officer Shaff, in offering an opinion on whether a shooting was committed in association with a criminal street gang, to assume the following facts: "There's an argument between an associate Eastside Baker and some prior neighbors. Following that argument the associated gang member contacts an Eastside Baker gang member via telephone. The Eastside Baker associate, his brother, who is also an Eastside Baker gang member, along with the Eastside Baker gang member who had been contacted by phone, enter into a vehicle and drive to the location where the earlier altercation had occurred. [¶] Upon arrival the prior neighbor was called out to fight. Once that prior neighbor was drawn out into the street, one Eastside Baker gang member told the other get him now, fool. Upon which a firearm was immediately produced, multiple shots were fired, striking the prior neighbor and his pregnant wife standing nearby."

Officer Shaff opined that the hypothetical shooting was committed in association with a criminal street gang based on the gathering of multiple gang members to commit the crime and the planning evidenced by drawing the victim out. Shaff explained that a fellow gang member is brought along for intimidation through numbers; because of the shared trust that no one will talk, which is against the gang code; and because it demonstrates loyalty through putting in work or committing crimes together.

On cross-examination, Officer Shaff testified that the house on Monterey Street where the shootings occurred belongs to the father of a founding member of the East Bakers, a separate and older Sureño subset in Bakersfield. He testified that although gang rules would permit a shooting at a fellow gang member's house if an internal disciplinary action was needed, "[i]t would not be good" outside of such an enforcement action. He also testified that shooting a woman does not benefit the gang, but in his opinion, the shooting in this case was done in association with other gang members.

2. Nicholas De La Garza

The prosecution also called a former member of the Eastside Bakers to testify about gangs. Nicholas De La Garza dropped out of the gang several years before trial, but he and Sanchez are from the same neighborhood and knew each other as gang members, although not well. De La Garza testified that there is "[a] little" rivalry between Colonia Bakers and the Eastside Bakers over gang territory and other issues, but he described the Westside as the main rival and the Okie Bakers as not well liked.¹⁵

15 Mario testified he used to associate with the Okie Bakers gang when he was younger and, when he was in prison for three years, he got the number 13 tattooed on his legs and a "Bakers" tattoo on his back to represent Bakersfield. However, he had disassociated with the gang years earlier and had been "straight" since 2007, prior to meeting Adriana.

When De La Garza was in the gang, his focus was making money, taking care of his family and taking care of the neighborhood, which included bailing fellow gang members out of custody. He testified that when committing crimes with another gang member, the expectation is that they will each handle part of the crime, have each other's back, and offer protection. He described respect as "[h]ighly important" and something to earn, one way or another. He stated that the more you took care of your neighborhood and made money, the more respect you earned. He also stated that gang members are not supposed to help law enforcement out, and that the more coldhearted you are, the more respect you get from people.

De La Garza testified that there were no repercussions for street gang violence involving male rival gang members, but violence involving women was very different. He testified that gang members were not supposed to "inflict pain on children or women" and "[y]ou're done" if you do so.

3. Edward Salvador

Finally, the prosecution called a former "shot caller" to testify regarding gang structure and rules. Edward Salvador testified that he was jumped into the Varrio Bakers at the age of 12 and, while in custody as an adult, he became a Sureño and then a validated Mexican Mafia associate. Salvador testified that the Mexican Mafia is at the top of the gang hierarchy, followed, in order, by validated associates, Sureños, and South Siders. Salvador also testified that not every street gang member is a Sureño and only those who have been in prison can become Sureños.

After his release from prison, Salvador was the shot caller for Kern County for approximately four years, which meant he was in control of the southern Hispanic gangs in the county and was obligated to produce, through the street gangs, revenue for the Mexican Mafia prison gang. Salvador testified that street gangs are required to follow Mexican Mafia directives, and that gangs follow a strict set of rules that are enforced through reprimand. Reprimands include acceptance of a cash payment to avoid being beaten, being jumped or "regulated," and, for breaking serious rules, death. Respect is very important in gang culture and when Salvador was disrespected, he addressed it.

In terms of rules gangs abide by, Salvador testified that gang members are not allowed to work with law enforcement and that they are required to treat their "homeboys as family," "put in work" in terms of handling disputes in other neighborhoods, and produce revenue. He also testified that when he was the shot caller, one of the rules in place required gang members who were armed to inform their fellow homeboys that they were "strapped up." Salvador explained that shooting at rival gang members is sanctioned within gang culture, and that gang members commit crimes together because it is useful: they are obligated to follow instructions given and they watch each other's backs.

On cross-examination, Salvador testified that family matters are not gang matters, crimes that do not benefit the neighborhood do not benefit the gang, and gang members can commit crimes on their own and outside of their association with the gang. Salvador agreed that situations often escalate to include conduct not sanctioned by the gang, and he testified that the reprimand for shooting at a house with children present or shooting at a woman would be determined by the mesa or shot caller.¹⁶

16 Salvador testified that a mesa is a group of people from various neighborhoods responsible for enforcement of prison politics out on the streets.

On redirect, Salvador testified that when he was with the mesa, he had enforcers in the streets, and he described a soldado, or soldier, as someone who would back you up through violence. Salvador stated that gang members on the streets know who the soldiers are. He also stated that a gang member would not bring a soldier to a family matter. II. Defense Case: Anthony¹⁷

17 James rested on the prosecution's evidence.

A. Vincent

James's and Anthony's cousin, Vincent, testified in Anthony's defense. James picked up Vincent at his house before going to meet Rick in the alleyway and he witnessed their fight. Vincent testified that James and Rick both seemed angry and were "talking smack," but Vincent thought they were going to shake hands because things were "still cool at the moment." Instead, they started swinging and kicking at each other. Mario and Adriana both came into the alleyway toward the end of the fight and they appeared very upset. Vincent testified Adriana went "crazy" and was swinging at James. She also kicked his car door and threw his watch, breaking it. After Mario hit James, James and Vincent left in James's car. Vincent testified James dropped him off at his house, and he denied he was in the car when Anthony, James and Sanchez returned to the Monterey Street house.

On cross-examination, Vincent agreed "it was kind of weird" that James was fighting with Rick, who was a teenager. He also testified that after they arrived back at his house, James got out of the car and told Vincent's friend what had just happened. Vincent described James as angry about being punched and angry with "tia." After telling Vincent's friend what happened, James made a phone call.

Vincent also testified that after the shootings, Rick sent him a text message about being in Anthony's car when Mario and Adriana were shot and telling him not to lie. Vincent responded to Rick that he was not there and was smoking marijuana with his friends.

B. Fernando Jara

Fernando Jara, a full-time doctoral student working on his dissertation in gang formation in Kern County, also testified. Jara was born on the south side of Bakersfield and associated with the Varrio Bakers street gang in the late 1980's and early 1990's. He later founded a faith-based, nonprofit program that, in partnership with law enforcement, took in those with gang- or drug-related pasts who were looking to change their lives and taught them how to farm.

Jara testified regarding the structure of gangs. Jara informed the jury that the Sureños can be divided into two groups: those who identify with the Southern California street culture and emulate Sureños and those who are the legitimate soldiers "being groomed for potential admittance into the ... Mexican Mafia." He explained that a legitimate Sureño soldier, also called a soldado or torpedo, is someone who either is willing to or has "put in work" by committing a violent crime or regulating others within the prison system. Jara also explained that Sureños are "monetary gangs," in contrast with those on the streets merely trying to emulate them. The soldiers are part of the Mexican Mafia's income-generating infrastructure; they handle, guard and guarantee the movement of money up the hierarchy. The soldiers are also the ones who "legitimately" wear the markers of a Sureño soldier, commonly tattoos of an "SS" or the word "Sur" for south.

Jara testified that there are "tables of leadership" in prison and in Southern California, but Kern County tends not to have tables setting rules for the street gangs to follow for two reasons: the effectiveness of the gang task force and the prevalence of methamphetamine, which resulted in the elimination of a significant number of "legitimate gang members," or shot callers. Jara testified there is no "rule book" for gangs, and he had not heard of a rule requiring armed gang members to inform other gang members that they were armed. He explained that such a rule would be at a "nuts and bolts" level and, while there are permanent norms within gang culture, gangs in Kern County were too fractured to have hierarchical rules down to a nuts and bolts level.

Jara also testified that the Mexican Mafia took a stand against drive-by shootings because it caused gang wars and disrupted the business of generating income, and it took the position that personal matters should be settled as such. Jara explained that the violation of broader gang rules or norms can result in the violator being "green lighted" by someone higher up for a beating or death, and that shooting at houses or shooting at or injuring children is one such "green lightable offense" that can result in death. He stated that gang issues are considered business matters and are handled separately from family matters. It is possible, however, that someone might take a friend who happens to be a gang member along to settle a family matter. Jara explained that it would be essential for the individual coming along to understand it was a family matter and that settling such matters would not take place in a location with women and children around. For that reason, even if it was merely symbolic, it would be important to create some distance between the participants and the location, which is done by calling the other person out to a different location.

Jara testified that the house on Monterey Street where the shooting took place is associated with "Creeper," a founding member of the East Bakers street gang who is highly respected in prison and on the streets. Jara explained that under such circumstances, a gang member would not fight at a location associated with the family of a reputed gang member; even if the fight was justified, it would be "a death sentence" to do so. However, treating the dispute as a family matter rather than a business matter and calling the person out to the street has the effect of putting some distance between the location and the participants, thereby avoiding disrespect of the location.

On cross-examination, Jara testified that the house on Monterey Street was associated with Creeper through his family's presence, even if he had never been there himself, and general knowledge of that association would exist through persons still associated with Creeper's criminal street gang and through "the social history of that location."¹⁸

18 The prosecutor spent some time challenging the basis for Jara's knowledge that the house on Monterey Street was associated with Creeper. In earlier testimony, however, prosecution witnesses established that the house on Monterey Street is owned by Creeper's parents, and that Creeper was a founding member of the East Bakers.

Jara also testified that despite the rule prohibiting drive-by shootings, such shootings can be sanctioned. With respect to drawing someone away from a location to engage in violence, Jara explained that there is no set distance; drawing a person away from the residence would fall within gang rules. In response to the prosecutor's hypothetical, Jara testified that two gang members and a gang associate who drove somewhere to exact revenge, exited their vehicle and called a man from a different gang out into the street "could be" operating within gang rules. If they hit a woman in their effort to target the man, however, they would be operating outside of the gang rules. The location of the incident might also take them outside of the gang rules, depending on the circumstances.

Jara testified that respect is very important and an act of disrespect would require an accounting. He also testified that not every gang related violent crime is sanctioned, not all gang members acts are based on orders, and that strict structural rules have loosened up over time. Most gang culture now revolves around making money, and most of the violence is related to drug culture rather than Latino or Chicano gang culture. As well, the younger generation of gang members tends to be more reactionary than the older generation and the older members have more respect for the shot callers.

C. Deputies Nelson and Dunbier

Deputy Nelson was present when Deputy Hakker interviewed Adriana at the hospital the day after the shooting, following her surgery. He testified Adriana stated that "they all had guns on them," and James had a bat and a knife in the car. She also stated that Anthony took a gun out of his jersey shorts, shot her and said, "[G]et the other one."

On cross-examination, Nelson testified that Adriana said there were two persons named Anthony involved; Anthony Rios shot her and the other Anthony shot Mario. She also said she knew the other Anthony as "Mouthy."

On direct examination by Sanchez's counsel, Nelson testified that Hakker asked Adriana if she was up to being interviewed and she responded, "I want them in jail. Yes, I am." She also told Hakker that "they shot at the whole house," that they were calling out for Rick and Mario, and that James said to her, "[H]ow come you're not getting loud now?" Adriana said that she did not know Mouthy well, but had met him at a funeral three years before, and that Mouthy had been in and out of jail, had a record, and was in the system.¹⁹

19 During her direct examination in the prosecution's case-in-chief, Adriana addressed her statements to law enforcement. She said she was recovering from major surgery at the time and was "[v]ery emotional," "in shock," and "doing the best that [she] could." She testified she saw a gun in Sanchez's hand and a closed knife in James's hand, but she did not see any weapon in Anthony's hand and the only firearm she saw was in Sanchez's hand. On cross-examination during the prosecution's case-in-chief, Adriana testified that she remembered telling deputies that Anthony and Mouthy did the shooting and that Anthony started it, but she did not remember telling them that "they all had guns on them," that Anthony pulled a gun, that they shot at the whole house, or that Anthony said, "Get the other one."

Deputy Dunbier interviewed Mario the night of the shooting, at which time Mario was in pain. Mario stated he and James squared up, and he did not mention Anthony saying, "[G]et that fool or handle that fool." On cross-examination, Dunbier testified the interview lasted only a few minutes, Mario was having difficulty speaking, and he stated the shooter walked from behind the Rios brothers and fired at him and Adriana.

III. Defense Case: Sanchez

A. Alibi Witnesses

The receptionist at the staffing agency Sanchez worked for testified that he came into the office on May 5, 2015, at 1:30 p.m. to pick up copies of his identification and Social Security card. He had called earlier that day to request copies, stating he had lost his wallet and was planning to job hunt.

Sanchez's father and one of his brothers also testified. Sanchez's father owned a flooring installation business, and his father and brother testified that on May 5, 2015, Sanchez accompanied them to a job site to provide an estimate. Both testified that they went to pick up supplies in the morning, stopped by the staffing agency so Sanchez could pick up his copies, and then drove to Oildale to provide the estimate. Sanchez's father testified they returned to his apartment around 2:30 or 3:00 in the afternoon and Sanchez stayed there until just before 5:00, when he left to pick up his girlfriend. Sanchez's brother testified they returned to the apartment around 3:00 or 3:15, ate lunch, and played on the Xbox until Sanchez left to pick up his girlfriend at 4:55 p.m.

B. Dr. Shomer

Dr. Robert Shomer, a research psychologist with expertise in perception, memory and eye witness identification, also testified on Sanchez's behalf. With respect to factors in eyewitness identification, Shomer explained to the jury that eyewitness identification is less accurate in highly stressful situations, such as those that are sudden, deadly and involve weapons; eyewitness identification is the least reliable means of identification; even a test of an eyewitness's identification can influence the evidence; memory decays with time and through the influence of other sources of information, such as people and the media; and there is a lack of a good relationship between witness confidence and accuracy.

In a hypothetical mirroring the facts of the crime from Adriana's perspective while being shielded by Mario, Shomer testified that the sudden, unexpected and highly stressful event would detract significantly from the accuracy of the witness's perception. In addition, the presence of a weapon would be a visual magnet, commanding the witness's attention; and the fact that a loved one is being wounded and possibly killed diverts the witness's attention as well.

Shomer also testified that even if an eyewitness recognizes a person in a photograph, misidentification can occur through source confusion. While it is possible the source of the familiarity is the crime, it is also possible the source of the familiarity is something else, such as seeing the person around the neighborhood. Shomer testified that research shows people easily confuse the source of their familiarity, and that while it is possible to make an accurate identification under highly stressful circumstances, it is not probable. Shomer described eyewitness identification as a very problematic area of evidence.

IV. Rebuttal

Albert O. testified for the prosecution regarding a note he obtained from Sanchez while both were in custody following Sanchez's arrest for the crimes in this case. Albert knew Sanchez's father and he testified that Sanchez asked him to get a note to Sanchez's dad. After Albert received the note, he turned it over to a detective. In the note, which was introduced into evidence, Sanchez set forth the testimony he needed to establish an alibi, including that he was at the apartment until 4:45 p.m., when he left to pick up his girlfriend, and between 9:00 a.m. and 5:00 p.m., he was not anywhere near the area where the shooting occurred.

DISCUSSION

I. Substantial Evidence Claims

A. Standard of Review

"The Due Process Clause of the Fourteenth Amendment denies States the power to deprive the accused of liberty unless the prosecution proves beyond a reasonable doubt every element of the charged offense" (Carella v. California (1989) 491 U.S. 263, 265, citing In re Winship (1970) 397 U.S. 358, 364), and the verdict must be supported by substantial evidence (People v. Zamudio (2008) 43 Cal.4th 327, 357). 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. Nguyen (2015) 61 Cal.4th 1015, 1055.) "The record must disclose substantial evidence to support the verdict - i.e., evidence that is reasonable, credible, and of solid value - such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Zamudio, supra, at p. 357.)

"In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence." (People v. Zamudio, supra, 43 Cal.4th at p. 357.) " '[I]t is the jury, not the appellate court which must be convinced of the defendant's guilt ....' " (People v. Nguyen, supra, 61 Cal.4th at pp. 1055-1056.) "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support" ' the jury's verdict." (People v. Zamudio, supra, at p. 357.) However, "speculation, supposition and suspicion are patently insufficient to support an inference of fact." (People v. Franklin (2016) 248 Cal.App.4th 938, 951; accord, People v. Marshall (1997) 15 Cal.4th 1, 35; People v. Xiong (2013) 215 Cal.App.4th 1259, 1268.)

B. Sanchez: Attempted Murders of Adriana and Baby Boy

In this case, the prosecutor argued that the evidence supported convictions against Sanchez for the attempted murders of Adriana and Baby Boy either as primary targets or as unintended targets under a "kill zone" theory. (People v. Canizales (2019) 7 Cal.5th 591, 601 (Canizales); People v. Bland (2002) 28 Cal.4th 313, 329-330 (Bland).) Sanchez contends the kill zone theory is inapplicable to the facts in this case and the trial court erred in instructing the jury on the theory. He also contends there is insufficient evidence to support his convictions for the attempted murders of Adriana and Baby Boy. The People dispute Sanchez's entitlement to relief on either claim. We conclude Sanchez's convictions are supported by substantial evidence under either theory, which necessarily renders his instructional error claim moot and we do not separately address it.

1. Legal Standard

Murder is an unlawful killing with express or implied malice aforethought. (§§ 187, subd. (a), 188; accord, People v. Rangel (2016) 62 Cal.4th 1192, 1220.) Attempted murder, in contrast, requires specific intent to kill, or express malice, " 'and the commission of a direct but ineffectual act toward accomplishing the intended killing.' " (People v. Smith (2005) 37 Cal.4th 733, 739 (Smith); accord, People v. Gonzalez (2012) 54 Cal.4th 643, 653-654.) Express malice is shown when the defendant " 'either desires the victim's death, or knows to a substantial certainty that the victim's death will occur.' " (People v. Houston (2012) 54 Cal.4th 1186, 1217; accord, People v. Covarrubias (2016) 1 Cal.5th 838, 890.) "[E]vidence of motive is often probative of intent to kill," but it "is not required to establish intent to kill." (Smith, supra, at p. 741.) Intent "may in many cases be inferred from the defendant's acts and the circumstances of the crime." (Ibid.)

Under California law, a jury may rely on what is known as the kill zone theory as a basis for conviction for the attempted murder of an unintended target. (Canizales, supra, 7 Cal.5th at p. 607; Bland, supra, 28 Cal.4th at p. 329.) "Under the common law doctrine of transferred intent, 'a person maliciously intending to kill is guilty of the murder of all persons actually killed. If the intent is premeditated, the murder or murders are first degree.' [Citation.] The doctrine does not apply to attempted murder. 'To be guilty of attempted murder, the defendant must intend to kill the alleged victim, not someone else.' " (People v. Souza (2012) 54 Cal.4th 90, 120, quoting Bland, supra, at pp. 323-324, 328, italics added.)

In Bland, the California Supreme Court recognized that while transferred intent does not apply to attempted murder, a person who intends to kill a primary target may also be criminally liable for the attempted murder of a nontargeted individual based on concurrent intent. That is, "although the intent to kill a primary target does not transfer to a survivor, the fact the person desires to kill a particular target does not preclude finding that the person also, concurrently, intended to kill others within what it termed the 'kill zone.' 'The intent is concurrent ... when the nature and scope of the attack, while directed at a primary victim, are such that we can conclude the perpetrator intended to ensure harm to the primary victim by harming everyone in that victim's vicinity.... Where the means employed to commit the crime against a primary victim create a zone of harm around that victim, the factfinder can reasonably infer that the defendant intended that harm to all who are in the anticipated zone.' " (Bland, supra, 28 Cal.4th at pp. 329-330, quoting Ford v. State (1993) 625 A.2d 984, 1000-1001, disapproved on another ground in Henry v. State (2011) 19 A.3d 944, 951-952.) The court noted, "This concurrent intent theory is not a legal doctrine requiring special jury instructions, as is the doctrine of transferred intent. Rather, it is simply a reasonable inference the jury may draw in a given case: a primary intent to kill a specific target does not rule out a concurrent intent to kill others." (Bland, supra, at p. 331, fn. 6; accord, Canizales, supra, 7 Cal.5th at p. 602; People v. Stone (2009) 46 Cal.4th 131, 137.)

The California Supreme Court recently revisited the kill zone theory in Canizales and concluded, "[T]he kill zone theory for establishing the specific intent to kill required for conviction of attempted murder may properly be applied only when a jury concludes: (1) the circumstances of the defendant's attack on a primary target, including the type and extent of force the defendant used, are such that the only reasonable inference is that the defendant intended to create a zone of fatal harm - that is, an area in which the defendant intended to kill everyone present to ensure the primary target's death - around the primary target and (2) the alleged attempted murder victim who was not the primary target was located within that zone of harm. Taken together, such evidence will support a finding that the defendant harbored the requisite specific intent to kill both the primary target and everyone within the zone of fatal harm. [¶] In determining the defendant's intent to create a zone of fatal harm and the scope of any such zone, the jury should consider the circumstances of the offense, such as the type of weapon used, the number of shots fired (where a firearm is used), the distance between the defendant and the alleged victims, and the proximity of the alleged victims to the primary target. Evidence that a defendant who intends to kill a primary target acted with only conscious disregard of the risk of serious injury or death for those around a primary target does not satisfy the kill zone theory." (Canizales, supra, 7 Cal.5th at p. 607.)

The court stated further, "We emphasize that going forward trial courts must exercise caution when determining whether to permit the jury to rely upon the kill zone theory. Indeed, we anticipate there will be relatively few cases in which the theory will be applicable and an instruction appropriate. Trial courts should tread carefully when the prosecution proposes to rely on such a theory, and should provide an instruction to the jury only in those cases where the court concludes there is sufficient evidence to support a jury determination that the only reasonable inference from the circumstances of the offense is that a defendant intended to kill everyone in the zone of fatal harm. The use or attempted use of force that merely endangered everyone in the area is insufficient to support a kill zone instruction." (Canizales, supra, 7 Cal.5th at p. 608.)

2. Analysis

a. Adriana and Baby Boy as Primary Targets

We first address Sanchez's claim that the record is devoid of any evidence that he acted with specific intent to kill Adriana and Baby Boy. The evidence shows that Sanchez fired three shots at Mario as he ran toward Adriana. The third shot struck Adriana in the back as she turned to run. Sanchez then fired three more shots into Mario as he shielded Adriana with his body, which the prosecutor argued demonstrated his specific intent to kill not only Mario but Adriana and Baby Boy, with whom she was visibly pregnant.²⁰

20 As to counts 1 and 3, the prosecutor based the attempted murder counts on the shots Sanchez fired while Mario was shielding Adriana with his body.

That Adriana was not struck by any of the bullets fired when she was on the ground under Mario did not preclude the jury from finding he had the specific intent to kill her and Baby Boy when he fired his final three bullets at close range. (People v. Nelson (2011) 51 Cal.4th 198, 212-213.) Although Sanchez argues Adriana and Baby Boy were bystanders unintentionally hit by a stray bullet, this characterization overlooks the shots he fired while standing over Adriana and Mario. Express malice may be established where the defendant " 'knows to a substantial certainty that the victim's death will occur.' " (People v. Houston, supra, 54 Cal.4th at p. 1217.) Cases have recognized that even a single shot that misses a target may be sufficient to support a reasonable inference of intent to kill where it is fired at close range at targets in the line of fire (Smith, supra, 37 Cal.4th at pp. 743-744; see People v. Perez (2010) 50 Cal.4th 222, 230, citing People v. Chinchilla (1997) 52 Cal.App.4th 683, 690 & People v. Villegas (2001) 92 Cal.App.4th 1217, 1224-1225), and "[s]hooting at a group from a distance at which a mortal wound could be inflicted supports an inference of an intent to kill" (People v. Garcia (2012) 204 Cal.App.4th 542, 554).

The crimes in this case took place in the front of a residence. After Adriana was hit in the back with a shot and fell to the ground, Mario covered her with his body. Adriana described looking up the barrel of Sanchez's gun as he fired three shots and hearing a clicking sound after those shots, indicating Sanchez fired until his gun was empty. Based on Adriana's proximity to Sanchez's gun when he fired it and her position behind Mario and in the direct line of fire during the shooting, a reasonable trier of fact could infer that Sanchez intended to kill her and Baby Boy along with Mario. (Smith, supra, 37 Cal.4th at pp. 743-744.)

Sanchez points out that the jury rejected the premeditation allegations, but this merely reflects the jury's determination that as to Adriana and Baby Boy, the shooting did not occur "as the result of reflection rather than unconsidered or rash impulse." (People v. Nelson, supra, 51 Cal.4th at p. 213.) Accordingly, we reject Sanchez's argument that the evidence was insufficient to support a finding that he intended to kill Adriana and Baby Boy.

b. Adriana and Baby Boy as Unintended Targets Under Kill Zone Theory

Sanchez also claims the kill zone theory does not apply on these facts. We do not agree.

Courts have recognized that the kill zone "theory addresses the question of whether a defendant charged with the murder or attempted murder of an intended target can also be convicted of attempting to murder other, nontargeted, persons." (People v. Stone, supra, 46 Cal.4th at p. 138.) Whether the theory is applicable depends on the circumstances of the offense. (Canizales, supra, 7 Cal.5th at p. 607.)

Bland, the California Supreme Court's seminal kill zone theory case, arose out of a gang related shooting. The defendant and the driver of a car were rival gang members. After the defendant ascertained the identity of the man driving the car, he started shooting into the car from outside the driver's side. (Bland, supra, 28 Cal.4th at p. 318.) As the driver pulled away, the defendant and a fellow gang member shot at the departing car. (Ibid.) The driver was killed. (Ibid.) His two passengers, who were not gang members, were also shot but they survived. (Ibid.) The court concluded that although the driver was the primary target of the attack, his passengers - who were hit in a flurry of bullets aimed at the car - were in the kill zone created by the two shooters and, therefore, the jury could have reasonably found a concurrent intent to kill the passengers. (Id. at pp. 330-331.)

In contrast, in Canizales, the court concluded there was insufficient evidence that the codefendants intended to create a zone of fatal harm, it was therefore error to instruct the jury on the kill zone theory and the error was prejudicial even under the less stringent standard of review applicable to state law claims. (Canizales, supra, 7 Cal.5th at pp. 611-612.) In Canizales, "the evidence at trial showed that [the shooter] attacked his target by firing five bullets from a nine-millimeter handgun at a distance of either 100 or 160 feet away. Moreover, the attack occurred at a block party on a wide city street, not in an alleyway, cul-de-sac, or some other area or structure from which victims would have limited means of escape. As the [unintended target] described it, the bullets were 'going everywhere' and 'tingling through the gates' as he and [the targeted victim] ran down the street away from the gunfire after the first shot was fired." (Id. at p. 611.) The court concluded that "[e]ven accepting as more credible the prosecution's evidence that [the shooter] was 100 feet rather than 160 feet away from the victims when he first fired in their direction, ... a fact finder could not reasonably infer [the] defendants intended to create a zone of fatal harm around the [intended target] based on the record in this case. The evidence presented here showed that from a substantial distance the shooter shot five bullets in the direction of a[n intended] target who immediately ran down a city street after the first shot was fired. This evidence was insufficient to support instruction on the kill zone theory." (Ibid.)

In this case, supported by photographic evidence, the crimes occurred on a residential street in front of a small house with a single-car garage. When Anthony pulled up, Adriana was sitting outside on a bench located next to her and Mario's vehicle, which was parked in a driveway wide enough only to accommodate one vehicle. Anthony parked in the street behind Adriana's and Mario's vehicle, and Mario was thereafter drawn into the street in front of the house. As Sanchez pulled out his gun, Mario ran toward Adriana, who had fallen to the ground after being shot, and he covered her with his body to shield her. Although Mario was the primary target, Sanchez proceeded to fire multiple rounds at Mario while Mario was positioned over Adriana, stopping only when he ran out of bullets.

We find these facts materially distinguishable from those in Canizales and analogous to those in Bland. Adriana's position directly behind Mario on the ground as Sanchez shot multiple times, Sanchez's close proximity to them as he fired, and the fact Sanchez stopped firing only after he ran out of bullets constitute substantial evidence that Sanchez created a kill zone that included Adriana and her unborn son and that he intended to kill those within that zone. We therefore reject Sanchez's contrary claim.

C. Sanchez and Anthony: Gang Enhancements

The jury found true the gang enhancements attached to Sanchez's convictions for the attempted murders of Adriana, Mario and Baby Boy, to Anthony's conviction for the attempted murder of Mario, and to their convictions for being a felon in possession of a firearm.²¹ (§§ 186.22, subd. (b), 29800, subd. (a)(1).) Sanchez, joined by Anthony, claims the jury's findings are not supported by substantial evidence of their "specific intent to promote, further, or assist in any criminal conduct by gang members ...." (§ 186.22, subd. (b)(1).)

21 As discussed post, we find Anthony's challenge to his conviction for being a felon in possession of a firearm meritorious and we reverse the conviction.

1. Background

"In 1988, the Legislature enacted the California Street Terrorism Enforcement and Prevention Act (the STEP Act). (§ 186.20 et seq.)" (People v. Hernandez (2004) 33 Cal.4th 1040, 1047.) " 'Underlying the STEP Act was the Legislature's recognition that "California is in a state of crisis which has been caused by violent street gangs whose members threaten, terrorize, and commit a multitude of crimes against the peaceful citizens of their neighborhoods." (§ 186.21.) The act's express purpose was "to seek the eradication of criminal activity by street gangs." [Citation.]' [Citation.] In pursuit of this goal, the STEP Act focuses upon 'patterns of criminal gang activity and upon the organized nature of street gangs, which together, are the chief source of terror created by street gangs.' (§ 186.21.)" (People v. Rodriguez (2012) 55 Cal.4th 1125, 1129, fn. omitted (Rodriguez).)

In addressing the problem, the STEP Act creates both a substantive offense for active participation in a criminal street gang and a sentence enhancement for committing gang related crimes. (Rodriguez, supra, 55 Cal.4th at p. 1130.) The latter provides for the enhancement to a sentence of "any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members ...." (§ 186.22, subd. (b)(1).)

" '[A] criminal offense is subject to increased punishment under the STEP Act only if the crime is "gang related." ' " (People v. Albillar (2010) 51 Cal.4th 47, 60 (Albillar).) Although gang membership is not an element of the enhancement, gang evidence can nevertheless bolster the prosecution's theory on the elements it is required to prove. (People v. Sanchez, supra, 63 Cal.4th at pp. 698-699; People v. Gutierrez (2009) 45 Cal.4th 789, 820; People v. Hernandez, supra, 33 Cal.4th at pp. 1044-1049; People v. Villa-Gomez (2017) 9 Cal.App.5th 527, 541.) That is, "[g]ang membership is simply circumstantial evidence establishing that the crime was gang related and a motive for why a defendant may have harbored the 'specific intent to promote, further, or assist in any criminal conduct by gang members.' " (People v. Villa-Gomez, supra, at p. 540.)

2. Evidence of Specific Intent

There are two prongs to the gang enhancement under section 186.22, subdivision (b)(1). (Albillar, supra, 51 Cal.4th at p. 59; People v. Franklin, supra, 248 Cal.App.4th at p. 948.) "The first prong requires proof that the underlying felony was 'gang-related,' that is, the defendant committed the charged offense 'for the benefit of, at the direction of, or in association with any criminal street gang.' " (People v. Franklin, supra, at p. 948, quoting § 186.22, subd. (b)(1), italics added; accord, Albillar, supra, at pp. 59-60.) "The second prong ... requires that a defendant commit the gang-related felony 'with the specific intent to promote, further, or assist in any criminal conduct by gang members.' " (Albillar, supra, at p. 64, quoting § 186.22, subd. (b)(1); accord, People v. Franklin, supra, at p. 948.)

Sanchez and Anthony challenge the sufficiency of the evidence as to the second prong: their " 'specific intent to promote, further, or assist in any criminal conduct by gang members." '²² (Albillar, supra, 51 Cal.4th at p. 64.) They cast the shootings as a family matter precipitated by the nongang-related confrontation between James and Mario. They point out that no one threw gang signs, shouted gang names or made any other references to gangs, and that shooting at women and children is prohibited and could lead to reprimand.

22 As to the first prong, the prosecutor's theory was that the crimes were committed in association with the Eastside Bakers. Sanchez and Anthony do not challenge this prong of the gang enhancement and, therefore, we do not address it. Given the evidence that shooting women and children is viewed with disfavor within gangs, however, we note that "a gang enhancement may be imposed without evidence of any benefit to the gang so long as the crime was committed in association with or at the direction of another gang member" (People v. Weddington (2016) 246 Cal.App.4th 468, 484, citing People v. Leon (2008) 161 Cal.App.4th 149, 162 & People v. Morales (2003) 112 Cal.App.4th 1176, 1198, italics added), and evidence that two or more gang members committed the crime together is sufficient to satisfy the first prong unless they were " 'on a frolic and detour unrelated to the gang' " (Albillar, supra, 51 Cal.4th at p. 62, quoting People v. Morales, supra, at p. 1198; accord, People v. Weddington, supra, at pp. 484-485).

We agree that there is no evidence the initial confrontation in the alleyway was gang related and that there is evidence in the record from which a reasonable trier of fact might have concluded that the shooting was a personal matter unrelated to gang activity. However, all reasonable inferences must be drawn in favor of the verdict and "[i]f the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding." (Albillar, supra, 51 Cal.4th at p. 60.)

"[I]f substantial evidence establishes that the defendant intended to and did commit the charged felony with known members of a gang, the jury may fairly infer that the defendant had the specific intent to promote, further, or assist criminal conduct by those gang members." (Albillar, supra, 51 Cal.4th at p. 68; accord, People v. Pettie (2017) 16 Cal.App.5th 23, 50-51; People v. Franklin, supra, 248 Cal.App.4th at p. 949; People v. Weddington, supra, 246 Cal.App.4th at pp. 484-485; People v. McDonald (2015) 238 Cal.App.4th 16, 40.) "[S]pecific intent to benefit the gang is not required." (People v. Morales, supra, 112 Cal.App.4th at p. 1198; accord, People v. Pettie, supra, at pp. 50-51.)

Although Anthony and Sanchez did not yell any gang signs or slurs, this was not a case involving rival gang members or strangers, and although the evidence demonstrated that the involvement of Adriana and Baby Boy in the shooting would not be viewed with favor within gang culture, the prosecutor did not argue the theory that Anthony and Sanchez acted to benefit the Eastside Bakers.

While the initial confrontation between James, Mario, Adriana, and Rick was not gang related, the subsequent shooting was not a crime of opportunity committed by friends out for a drive or running an errand who just happened to be gang members and Anthony and Sanchez are not entitled to a presumption that they had a friendship that predominated over their gang ties. (Albillar, supra, 51 Cal.4th at p. 62.) To the contrary, the evidence supports the inference that Sanchez and Anthony came together as gang members to exact revenge for Mario's and Adriana's actions against James. The evidence shows that James was angry at Mario and Adriana over the altercation in the alleyway and calls from cell phones registered to James were placed to Sanchez's cell phone within an approximately 15-minute window of the shootings.²³ Sanchez and Anthony, both Eastside Bakers gang members, then met up with James and returned to the house on Monterey Street. Anthony's and Sanchez's actions upon arrival evidenced a coordinated plan between the two to locate Mario and draw him toward the street. They stood close by one another, and Adriana testified that Anthony verbally signaled to Sanchez to wait before then giving Sanchez the okay to draw his gun and start shooting.

23 The parties stipulated that Rick called 911 at 3:55 p.m.

As Shaff testified, gang members draw strength from numbers, and they rely on one another for back-up, loyalty and to keep confidences. The argument that the matter was merely a family dispute might have had more force if either Anthony, as James's brother, or Sanchez, as the recipient of phone calls from James, had shown up without the other. (See People v. Morales, supra, 112 Cal.App.4th at p. 1198 ["[T]he typical close case is one in which one gang member, acting alone, commits a crime."].) Instead, however, they arrived together as a team with a plan in place to settle the score and the jury was entitled to find from the totality of the circumstances that they came together with "the specific intent to promote, further, or assist criminal conduct by [Eastside Bakers] gang members." (Albillar, supra, 51 Cal.4th at p. 67, italics omitted; accord, People v. Weddington, supra, 246 Cal.App.4th at pp. 484-485.) We therefore reject Sanchez's and Anthony's challenge to the sufficiency of the evidence supporting the gang enhancements.

D. Anthony: Felon in Possession of a Firearm

1. Summary of Claim

Anthony and Sanchez were both convicted of being a felon in possession of a firearm, in violation of section 29800, subdivision (a)(1), which provides: "Any person who has been convicted of, or has an outstanding warrant for, a felony under the laws of the United States, the State of California, or any other state, government, or country, or of an offense enumerated in subdivision (a), (b), or (d) of Section 23515, or who is addicted to the use of any narcotic drug, and who owns, purchases, receives, or has in possession or under custody or control any firearm is guilty of a felony."²⁴

24 Although not relevant to the issue on appeal, Anthony and Sanchez were convicted and sentenced in 2016 and, effective June 27, 2017, section 29800 was amended to include within its purview individuals with an outstanding warrant. (Assem. Bill No. 103, ch. 17, § 44.)

The evidence shows that only Sanchez was armed with a firearm, which he drew from the waistband of his pants before firing at Mario, Adriana and Baby Boy. Anthony contends that the jury's verdict is not supported by substantial evidence that he had constructive possession of the firearm and, therefore, he is entitled to reversal of his conviction for being a felon in possession of a firearm. The People argue that Anthony knew Sanchez had a gun and he directed Sanchez to use it, which suffices to demonstrate constructive possession.

However, the People cite to no authority for the proposition that constructive possession extends to include contraband actually possessed by another person inside that person's clothing and there is no evidence in this case that might support a reasonable inference that the firearm belonged to Anthony, that Anthony and Sanchez shared the firearm, or that the firearm had been in any location other than tucked inside Sanchez's pants out of sight. As we shall explain, under these circumstances, we agree with Anthony that his conviction for being a felon in possession of a firearm is unsupported by substantial evidence of constructive possession and we reverse his conviction on count 5.

2. Legal Standard

The parties agree on the general legal principles that apply. Criminal possession of a firearm may be established by actual possession or constructive possession. (In re Charles G. (2017) 14 Cal.App.5th 945, 951; People v. Williams (2009) 170 Cal.App.4th 587, 625.) "Actual possession means the object is in the defendant's immediate possession or control.... Constructive possession means the object is not in the defendant's physical possession, but the defendant knowingly exercises control or the right to control the object." (In re Daniel G. (2004) 120 Cal.App.4th 824, 831.) "[M]ore than one person may possess the same contraband" (People v. Miranda (2011) 192 Cal.App.4th 398, 410, citing People v. Williams, supra, at p. 625; accord, People v. Mooring (2017) 15 Cal.App.5th 928, 944-945), but mere proximity to the contraband is not enough to show possession (People v. Sifuentes (2011) 195 Cal.App.4th 1410, 1417, disapproved on another point in People v. Farwell (2018) 5 Cal.5th 295, 304, fn. 6). However, " '[t]he inference of dominion and control is easily made when the contraband is discovered in a place over which the defendant has general dominion and control: his residence [citation], his automobile [citation], or his personal effects [citation].' " (People v. Busch (2010) 187 Cal.App.4th 150, 162, quoting People v. Jenkins (1979) 91 Cal.App.3d 579, 584; accord, In re Charles G., supra, at p. 951 [Possession "encompasses having a weapon in one's bedroom or home or another location under his or her control, even when the individual is not present at the location."].) Further, "[p]ossession may be imputed when the contraband is found in a place which is immediately accessible to the joint dominion and control of the accused and another." (People v. Miranda, supra, at p. 410, italics added; accord, People v. Busch, supra, at p. 162.)

3. Analysis

The cases the People cite in support of their general argument address challenges to contraband located within a residence or a vehicle and those cases are therefore distinguishable. (People v. Williams, supra, 170 Cal.App.4th at pp. 624-625 [contraband located in the defendant's bedroom and the garage of a shared residence]; People v. Pena (1999) 74 Cal.App.4th 1078, 1080-1081 [firearm found in tool box in truck bed]; People v. Mejia (1999) 72 Cal.App.4th 1269, 1271-1272 [the defendant was the driver and sole occupant of his vehicle, and was the only one seen fleeing the vehicle with the firearm, which was later found discarded]; People v. Neese (1969) 272 Cal.App.2d 235, 244-247 [evidence a firearm turned over to police was kept in the residence shared by the defendant and his partner, including in their bedroom]; People v. Hunt (1963) 221 Cal.App.2d 224, 225-226 [the defendant had constructive possession of gun located in vehicle on floor in front of the passenger, where gun was within reach of the defendant, who owned and was driving the vehicle].)

Here, the evidence shows that the firearm was tucked inside the waistband of Sanchez's pants and covered by his shirt. While Anthony's statement supports a reasonable inference that an attack on Mario was planned, assuming he knew the firearm was in Sanchez's pants, his mere knowledge or proximity to the firearm does not suffice to show that he had dominion and control over it.²⁵ (People v. Mooring, supra, 15 Cal.App.4th at pp. 944-945 [sufficient evidence that drugs were jointly possessed by the defendants, notwithstanding evidence "attribute[ing]" drugs to a third party, where one defendant shared the residence with the third party and the other defendant - the third party's son - received the property receipt following the search of the residence and went to collect " 'his pills' " from the police station, and one pill bottle at the residence was in his name]; People v. Sifuentes, supra, 195 Cal.App.4th at pp. 1416-1419 [even if the defendant was aware of the gun's presence, expert's general testimony that gang members share "gang guns" accessible to all members is insufficient to show the defendant possessed gun where the evidence showed only that the defendant and another gang member were sharing a motel room not in gang territory, the defendant was located lying on one bed, and the gun was located under the mattress of the second bed, next to which the other gang member was kneeling].) We conclude there is insufficient evidence that Anthony constructively possessed the firearm in question and, therefore, his conviction on count 5 must be reversed.

25 Salvador testified that when he was the Sureño shot caller in charge of Hispanic gangs in Kern County, the rule was that gang members were obligated to tell the other gang members if they were "strapped" and this rule extended to fellow gang members riding in the same vehicle. He also testified, however, that rules handed down were not recorded and they were disregarded by some gang members. The People contend that this testimony supports an inference that Anthony knew Sanchez was armed. In our view, the evidence that Anthony said, "Not right now G," and then, "Get this fool now" is, by itself, sufficient to support a reasonable inference that Anthony knew Sanchez was armed.

E. James: Attempted Murder of Mario

Finally, James challenges his conviction for the willful, deliberate and premeditated attempted murder of Mario. James was liable for the crime as an aider and abettor. He argues there is no evidence that he knew Sanchez was armed and planning to shoot Mario or that he shared in Sanchez's intent, and he contends that neither his mere presence at the crime scene nor his mere failure to prevent the crime suffices to show he aided and abetted the shooting.

" 'A "person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime." ' (People v. Marshall[, supra,] 15 Cal.4th [at p. ]40.) '[T]o be guilty of attempted murder as an aider and abettor, a person must give aid or encouragement with knowledge of the direct perpetrator's intent to kill and with the purpose of facilitating the direct perpetrator's accomplishment of the intended killing - which means that the person guilty of attempted murder as an aider and abettor must intend to kill.' (People v. Lee (2003) 31 Cal.4th 613, 624.) [¶] 'Whether a person has aided and abetted in the commission of a crime ordinarily is a question of fact.... [¶] ... [¶] Among the factors which may be considered in making the determination of aiding and abetting are: presence at the scene of the crime, companionship, and conduct before and after the offense.'" (People v. Nguyen, supra, 61 Cal.4th at p. 1054.) However, neither mere presence at the crime scene (id. at p. 1055), nor, in general, the failure to intervene suffices to establish criminal liability for aiding and abetting (People v. Ogg (2013) 219 Cal.App.4th 173, 181).

We disagree that in this case James's conviction rests on his mere presence at the scene and failure to intervene. Viewed in the light most favorable to the prosecution, James vowed he would be back after Mario struck him. After leaving, James placed several calls to Sanchez. James's cousin saw him make at least one phone call, at which time he was still angry about what had happened in the alleyway, and the evidence shows that the shootings occurred within approximately 15 minutes of his first phone call to Sanchez. After James called Sanchez, he returned to the Monterey Street house with Sanchez and Anthony. After the three got out of Anthony's car, James, whom Adriana testified had a knife tucked in his hand, taunted her by saying, "You're not so tough now bitch," while Anthony called out for Mario and drew him toward the street. As James stood there, Anthony directed Sanchez first to wait and then to get Mario. When Sanchez pulled out his gun and started shooting, James expressed no surprise or concern and made no attempt to aid the victims, with whom he had up until that point enjoyed a close, familial-like relationship. After Sanchez's gun ran out of bullets, James then jumped in the car and fled the crime scene with Anthony and Sanchez as someone said, "Oh yeah, that's what you mother f[**]kers get." James, Anthony and Sanchez thereafter headed south, with James and Anthony making it to the border.²⁶

26 As the People contend, flight from the crime scene to avoid observation or arrest permits a jury to infer consciousness of guilt. (People v. Cage (2015) 62 Cal.4th 256, 285-286; People v. Bradford (1997) 14 Cal.4th 1005, 1055.) Sanchez was arrested four days after the crimes when his girlfriend's car was pulled over while they were caravanning toward Mexico with Anthony. Anthony and his girlfriend, who were in a separate vehicle, were not stopped, and his girlfriend dropped him off at the border. James crossed into Mexico, but subsequently turned himself in at the border.

Thus, James, angry at Mario and Adriana over the confrontation in the alleyway, directly instigated the second confrontation during which Mario was shot. A reasonable trier of fact could conclude that the evidence of James's conduct beforehand in instigating the confrontation; during, in arming himself with a knife, verbally taunting or threatening Adriana, standing by while Anthony called Mario out to the street, and showing no surprise at the unfolding shootings; and after, in expressing no concern for his seriously wounded "tio" and "tia" and fleeing the area, supports the inference that James knew of and shared Sanchez's intent to kill Mario. (People v. Nguyen, supra, 61 Cal.4th at p. 1055 [the defendant's presence in car and act of staring at occupants of a passing car prior to shooting, viewed in the context of an ongoing gang war, sufficient to support the inference he was aware of the impending shooting and aided it by identifying rival gang members in the other car].) We reject James's claim to the contrary.

II. Discharge of Juror No. 11 During Deliberations

Anthony, joined by Sanchez and James, and James, joined by Sanchez, argue that the trial court erred in discharging Juror No. 11 during deliberations given the absence of good cause. We disagree. As discussed, post, after conducting an inquiry following receipt of a note from the jury, the court discharged Juror No. 11 based on its findings that she had difficulty understanding and following the jury instructions and that she was considering matters not in evidence. We conclude that Juror No. 11's "inability to perform her duty as a juror ... appear[s] in the record as a demonstrable reality" (People v. Armstrong (2016) 1 Cal.5th 432, 451 (Armstrong)), and, therefore, the trial court did not abuse its discretion in discharging her pursuant to section 1089.

A. Standard of Review

Section 1089 provides, in relevant part, "If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty, or if a juror requests a discharge and good cause appears therefor, the court may order the juror to be discharged ...." (Italics added.) A trial court's decision to discharge a juror under section 1089 is reviewed for abuse of discretion. (Armstrong, supra, 1 Cal.5th at p. 450, citing People v. Cleveland (2001) 25 Cal.4th 466, 485-486 (Cleveland).) However, in reviewing the record, we apply the more stringent "demonstrable reality standard" of review rather than the more deferential substantial evidence standard. (Armstrong, supra, at p. 451.) This " 'heightened standard ... more fully reflects an appellate court's obligation to protect a defendant's fundamental rights to due process and to a fair trial by an unbiased jury.' " (Id. at p. 450, quoting People v. Barnwell (2007) 41 Cal.4th 1038, 1052 (Barnwell).)

" 'The demonstrable reality test entails a more comprehensive and less deferential review. It requires a showing that the court as trier of fact did rely on evidence that, in light of the entire record, supports its conclusion that [good cause for removing the juror is] established. It is important to make clear that a reviewing court does not reweigh the evidence under either test. Under the demonstrable reality standard, however, the reviewing court must be confident that the trial court's conclusion is manifestly supported by evidence on which the court actually relied. [¶] In reaching that conclusion, the reviewing panel will consider not just the evidence itself, but also the record of reasons the court provides.' " (Armstrong, supra, 1 Cal.5th at pp. 450-451, quoting Barnwell, supra, 41 Cal.4th at pp. 1052-1053; accord, People v. Perez (2018) 4 Cal.5th 421, 446; People v. Allen and Johnson (2011) 53 Cal.4th 60, 71.)

On review, "we afford deference to the trial court's credibility determinations, 'based, as they are, on firsthand observations unavailable to us on appeal.' " (Armstrong, supra, 1 Cal.5th at p. 451, quoting Barnwell, supra, 41 Cal.4th at p. 1053; accord, People v. Allen and Johnson, supra, 53 Cal.4th at p. 75.)

B. Summary of Trial Court Proceedings

1. Allegations Concerning Juror No. 11

As discussed in further detail in part III.A., post, the jury began deliberating in the morning and, by late afternoon, it sent the court a note with two questions regarding heat of passion. After discussing the matter with the parties and over defense objections, the court responded the next morning by rereading the applicable heat of passion instruction (CALCRIM No. 603). The day after that, again in the late afternoon, the jury sent the court a second note that stated, "To the Judge, we have a juror that feels the jury is tainted and the defendants are not getting a fair trial." (Some capitalization omitted.) After the parties reviewed the note, the court summoned the foreman, Juror No. 3, for questioning.

Juror No. 3 stated that Juror No. 11, who was later described by the court as an elderly female juror, "seems to have an issue making a connection and understanding the jury instructions," which he said prompted the first jury question regarding heat of passion. He stated the jury instruction was "read to [her] at least six times while [they] were in deliberations and yet she still could not understand the definition."

Juror No. 3 reported that, in his view, Juror No. 11 was "either misinterpreting the instructions or creating scenarios that are not in evidence." He also reported that Juror No. 11 was either unable or unwilling to explain her position "based on the facts or based on any evidence. It's based on feeling or, again, items that aren't introduced as evidence." When the court asked if Juror No. 11 was basing her decision on evidence not produced during trial, Juror No. 3 responded, "Correct." Juror No. 3 stated that Juror No. 11 was actively engaging in deliberations but was "nowhere near on point or on topic." After Juror No. 3 departed, the court determined that it was necessary to question the individual members of the jury. (Barnwell, supra, 41 Cal.4th at p. 1051 ["When a court is informed of allegations which, if proven true, would constitute good cause for a juror's removal, a hearing is required."]; accord, Cleveland, supra, 25 Cal.4th at pp. 477-478.)

2. Jurors' Observations

The court held a hearing during which each of the 12 jurors was questioned separately. At the outset, the court informed each juror it was not inquiring into the deliberations taking place. The court asked each juror for his or her general observations and then asked specifically whether Juror No. 11 was following the jury instructions given, considering evidence outside of that presented at trial, participating in the deliberation process, and understanding the terms and definitions in the instructions. The jurors responded, in relevant part, as follows.

a. Juror No. 1

Juror No. 1 perceived Juror No. 11 as "very intelligent," and as someone who "knows what she's talking about" and was "speaking truthfully and honestly." Juror No. 1 stated that Juror No. 11 was not bringing in matters not presented at trial, was following the instructions and participating in deliberations, and seemed to understand the terms and definitions in the instructions.

b. Juror No. 2

Juror No. 2, in contrast, reported that Juror No. 11 was "having some difficulty understanding and comprehending." Juror No. 2 stated that Juror No. 11 "has her own agenda and is just creating a lot of confusion." When asked for a description, Juror No. 2 said, "[W]hen we're going over the instructions, she seems to understand that but then will just go off in other directions. And it's hard—she's like I said, just creates a lot of confusion." "She's picking out certain things that's not the actual evidence pieces and—from testimony and things we have the evidence pieces, and so she'll try to bring in her own thoughts and opinions instead of sticking to these guidelines you provided for us." Juror No. 2 responded that on some occasions, Juror No. 11 was bringing in facts not presented at trial, and she was trying to follow the instructions given but veered off and became a little defensive when other jurors tried to redirect her. Juror No. 2 stated, "I'm not sure she's understanding the jury system," but also that Juror No. 11 seemed to understand the terms and definitions "for the most part ...."

c. Juror No. 4

Juror No. 4, a nurse, stated, "From my observation and through my experience in my profession, only my opinion though, I think she has a short-term memory problem, like a first stage of Alzheimer's disease. That's my observation. I might be wrong, I might be right, but that's my observation." Juror No. 4 observed that Juror No. 11 took a lot of notes and wrote fast, but would forget what she just said and relied on her notes. Juror No. 11 also appeared to have a "pacing problem," in apparent reference to taking small steps. Juror No. 4 stated Juror No. 11 was following the jury instructions, but was interpreting them differently than what was on paper, was bringing in information that was not presented at trial, and sometimes did not seem to understand the terms and definitions.

d. Juror No. 5

Juror No. 5 described Juror No. 11 as "extremely indecisive" and stated that when she reached a conclusion, "she has no foundation or grounds or at least can't explain how she comes to that conclusion." Juror No. 5 reported that Juror No. 11 veered off rather than followed instructions they were discussing, and that Juror No. 11 said, "[T]he law is not black and white," which Juror No. 5 did not agree with. Juror No. 5 thought that Juror No. 11 was only relying on information presented in court, but that she did not appear to understand the terms and definitions in the instructions and the jury's first question regarding heat of passion was prompted by Juror No. 11's desire for the definition.

e. Juror No. 6

Juror No. 6 stated Juror No. 11 was "very much off task" and "wishy washy in a lot of aspects." Juror No. 6 also stated, "[S]he starts talking about things that I don't feel we heard any evidence on. I don't know that she's actually able to understand your directions as you've given her. We've read it over and over to her. We've given her time. I think this is why we decided to talk about it." When the court asked if Juror No. 11 was having a hard time following the terms and definitions in the jury instructions, Juror No. 6 responded, "Absolutely." Juror No. 6 also said Juror No. 11 was bringing up information that they were asked not to discuss, they had to keep reminding her of things that did not apply, and at times, she was not following the instructions and talked about things that were not pertinent and did not make sense.

f. Juror No. 7

Juror No. 7 stated that when deliberations began, Juror No. 11 "wanted to discuss everything" and the farther they proceeded, "the more she started focusing on smaller and smaller, finer prints of the documents." Juror No. 7 described Juror No. 11 as unable to move on from things and unable to explain her position. Juror No. 7 said, "I believe she thinks she's following the instructions," and "We all have a point of view and that's her point of view. For me, I say she is, but to the rest of us, rules are good to follow but sometimes we just have to move on if we need to move on." When the court asked whether Juror No. 11 seemed to be following the instructions or veering off, Juror No. 7 said, "She gets stuck on the finer print. It's hard to say that she is following the instruction." Juror No. 7 also said that Juror No. 11 was bringing in things that were not allowed and that Juror No. 11 thought she was understanding the terms and definitions "but for the rest of us, I don't think we see it that way."

g. Juror No. 8

Juror No. 8 described Juror No. 11 as a "very sweet lady" with whom Juror No. 8 had enjoyed some conversations with, but stated that Juror No. 11 "has struggled to comprehend or logically explain or be able to communicate correctly with us as a whole." Juror No. 8 thought Juror No. 11 was "relying heavily on an imaginary doubt," such as "emotional or hypothetical examples" and "statements made that are claimed to have not been made," which was making "deliberation very difficult." When asked if Juror No. 11 was following the instructions, or was able to follow the instructions, Juror No. 8 said that throughout the process, it had taken them a lot of time to get Juror No. 11 to follow the rules and, at times, she came close, but "then reverted away from following that rule or following an instruction." Juror No. 8 stated that Juror No. 11 brought in new information and discussed things not raised during trial, and that she appeared to have some difficulty understanding the terms and definitions, and some of the instructions, in that she was relying on "an imaginary doubt or an outside hypothetical to influence what she believes that definition is."

h. Juror No. 9

Juror No. 9 described Juror No. 11 as being on a different page than the rest of them, and, by way of example, stated that Juror No. 11 was focusing on one piece of testimony and ignoring the rest of the evidence. Juror No. 9 stated Juror No. 11 was actively engaged in deliberations and was following the instructions, but Juror No. 9 did not know if Juror No. 11 fully understood. Juror No. 9 stated that Juror No. 11 was bringing up information that was not part of the trial, and that she understood the terms and definitions "[i]n some ways."

i. Juror No. 10

Juror No. 10, an emergency room nurse working toward becoming a family nurse practitioner, reported that Juror No. 11 "has a difficult time putting written instructions together with evidence and correlating all of that. I think it might be beyond her abilities." Juror No. 10 elaborated, "When she tries to state a reason for what she is thinking, it's more like a flight of ideas. There is not a logical progression of thought that leads to a particular conclusion if that makes sense." Juror No. 10 stated that Juror No. 11 was "[c]ertainly" engaged in deliberation, but did not appear able to follow the instructions, did not appear to understand the terms and definitions, and was bringing in information that was not part of the trial. Juror No. 10 concluded by stating, "I work with people a lot being in the emergency room. She's kind of exhibiting some of the things we see with some of our dementia patients."

j. Juror No. 12

Juror No. 12 also stated Juror No. 11 was on a different page than the rest of them and they were "kind of stuck." Juror No. 12 said Juror No. 11 did not seem to comprehend the jury instructions and it was not "clicking" for her even though they tried to break the instructions down to a more basic level. Juror No. 12 also said Juror No. 11 "goes off on a tangent on things that are irrelevant to things in the case in regards to evidence. She doesn't seem to understand how—what can and cannot be used in regards to the evidence." Juror No. 12 observed that Juror No. 11 did not appear able to follow the jury instructions, she was "[d]efinitely" bringing in information not discussed during trial, and was "[d]efinitely not" able to understand the terms and definitions.

k. Juror No. 11

Juror No. 11 was then brought in and questioned, and the record expressly reflects that, at times, the court had to redirect her back to its questions. Juror No. 11 began by reporting that a vote was called for within 45 minutes of beginning deliberations, while they were still looking at the evidence, and she thought some people had already formed opinions. Relying on her notes she had with her, she told the court, "A juror said, '[W]e have been listening to this for two weeks, you should have an opinion already.' " She also stated that a juror made a sarcastic comment to her and when she said the comment was hurtful, the juror said it was meant to be; and that a juror told her she was so frustrating that he could hit her, and he said, apparently sarcastically, that he was going to ask for the whole transcript. Juror No. 11 said she did not take the threats seriously, but they were made red-faced and accompanied by table pounding.

Juror No. 11 said she was only bringing up hypotheticals like other jurors were, and when asked if she understood the terms and definitions in the instructions, she said, "I have two and a half years of college and I think of myself as like highly intelligent. So, yes, I do." She stated she was able to stay on track when one person was talking, but not when six were, and it was hard to stay on track when people were standing up, red faced and pointing.

After a side bar with counsel, the court asked which juror she felt threatened her and she identified the foreman, Juror No. 3. She stated he touched her arm, and he told her that she was so frustrating he wanted to hit her and although he was being sarcastic, he wanted to ask for the entire trial transcript "because that's all that's going to convince you." Juror No. 11 also reported that a juror asked the bailiff for a club, stated they were going to need a mediator, and asked the bailiff a legal question, which the bailiff did not answer.

l. Juror No. 3

The court then brought Juror No. 3 back in and questioned him about his observations of Juror No. 11. Juror No. 3 reported that Juror No. 11 seemed to struggle with remembering testimony and other evidence, and when they have readback, "she tries to write down the entire testimony but yet she's not listening to it.²⁷ She's focusing on writing each word down versus what the reporter was saying or what the witness was saying. [¶] So during deliberation while we're trying to have conversation, she can't remember certain things. So we've went back and everybody has gone through their notes [to] try to fill her in here and there. But she's using certain phrases over and over and over again versus being able to use her own words. [¶] For example, when your Honor [had] given us instructions to use our life experience and common sense during this trial, she focused on those two things, try to use them as evidence for certain stances that she's taken. We've tried to explain to her, look, I need you to use your life experience and your common sense to view the evidence and the evidence only and base your opinion on that. And she has not been able to do that. [¶] Key words, things like that she will focus on but yet I don't feel she's understanding meanings of the words because she continues to either misuse it or misinterpret it one way or the other. [¶] So when we've asked for her to explain her opinion or anything else, she's unable to. She wants to push it off on one of the other jurors and have them just discuss it, but yet when we've tried to form a discussion or push it in a certain direction or dialogue back and forth, she's unable to carry on that dialogue."

27 The jury requested readback of both Mario's and Adriana's testimony.

Juror No. 3 stated Juror No. 11 was able to read the instructions but not understand them, she brought in information that was not introduced at trial, and she had trouble understanding the terms and definitions in the instructions. Juror No. 3 also stated Juror No. 11 had trouble differentiating between what counsel said and what witnesses said. Juror No. 3 conceded things were heated at times but denied anyone was bullying Juror No. 11. He told Juror No. 11 that a number of them were frustrated with her but that none of it was a personal attack. Juror No. 3 denied ever touching or threatening Juror No. 11 and reiterated that no one else had threatened her or bullied her. He stated Juror No. 11 was making completely unfounded comments the day before regarding what other jurors said or did. Juror No. 3 also denied that anyone said anything about needing a club to work things out and he said that only one person, whom he thought was Juror No. 11 herself, asked the bailiff a legal question, but the bailiff responded he could not answer the question.

m. Juror No. 3's Subsequent Actions

After the court excused Juror No. 3 and the parties commenced argument regarding whether Juror No. 11 should be discharged, James's counsel informed the court that he had received a text message from another attorney stating, "Big white fellow outside is telling the others that another juror felt he had threatened her. They seem to be discussing the issues of the conflict inside. People taking sides." Counsel expressed concern that the juror, whom he believed to be Juror No. 3, was failing to heed the court's admonition not to discuss the case outside of the jury room.

Juror No. 3 was summoned back in the courtroom. He denied discussing the case or the proceedings going on inside the courtroom, but he admitted mentioning to another juror that someone had stated he threatened to hit that person. Juror No. 3 apologized to the court and explained that the accusation had caught him off guard.

3. Trial Court's Ruling

Counsel for Anthony, James and Sanchez objected to the discharge of Juror No. 11, while the prosecutor advocated for her discharge from service. After hearing arguments, the trial court decided to discharge her, explaining:

"I asked the same - essentially the same three questions to each of the jurors: Number one, was [Juror No. 11] able to follow instructions; Number two, was she bringing in any new info; and, Number 3, was she able to understand the terms and definitions. [¶] I counted at least - I'm giv[ing] the benefit of the doubt to the answer, at least nine responses of yes to question Number 1, nine responses of yes to question Number 2, and seven responses of yes to question Number 3.

"I am concerned about the fact that two of our medical professionals on the jury, one felt it was early onset dementia and the other one thought it was early onset Alzheimer's on [Juror No. 11], which may play into the fact that she's unable to understand the instructions and unable to follow the instructions. Nonetheless, we have no real basis for relying on their medical diagnosis, so I have to go with the fact that nine jurors are telling me she's having a great deal of difficulty understanding [and] following the instructions.

"The other most important thing to me is that she is discussing the evidence that was not presented during the trial, which you're all aware is a well-known and well-founded reason for finding that a juror has committed misconduct.

"I'm satisfied that she has conducted herself in a manner that falls under the category of serious and willful misconduct under ... Code of [Civil] Procedure[] [section] 233 and People [v.] Daniels [(1991) 52 Cal.3d 815, 863-864]. [¶] I'll find that Juror Number 11 ... will be removed for serious and willful misconduct."²⁸ (Italics added.)

28 In People v. Daniels, the trial court removed a juror who had discussed the case with outsiders and who, prior to deliberations, expressed an opinion on the issue of the defendant's guilt. (People v. Daniels, supra, 52 Cal.3d at pp. 863-864.) The focus of the parties' arguments on review was whether the juror's statements evidenced bias against the prosecution. (Id. at p. 863.) The California Supreme Court, in affirming the ruling, stated, "[W]e conclude that a court may exercise its discretion to remove a juror for serious and wilful misconduct, such as that shown by ... repeated violation of the court's instructions, even if this misconduct is 'neutral' as between the parties and does not suggest bias toward either side. [¶] Penal Code section 1089 and Code of Civil Procedure section 233 (former Pen. Code, § 1123) specify that a juror may be substituted at any time before the jury returns a verdict if upon 'good cause shown to the court [the juror] is found to be unable to perform his duty.' Neither section 1089 nor Code of Civil Procedure section 233 define 'good cause.' It is clear to us, however, that a juror's serious and wllful misconduct is good cause to believe that the juror will not be able to perform his or her duty." (Id. at pp. 863-864, fn. omitted.)

The court also removed Juror No. 3, without objection from the parties, for misconduct based on his failure to comply with the court's instruction not to form or express any opinion or discuss the case. Anthony, James and Sanchez do not challenge his discharge as an abuse of discretion.

C. Analysis

1. Evidence Supporting Trial Court's Determination

Collectively, Anthony, James and Sanchez dispute that Juror No. 11 was unable to understand and follow the court's instructions or that she relied on extrinsic evidence during deliberations. They argue that the record does not support, by a demonstrable reality, the court's finding of misconduct, and, relying on Armstrong and Cleveland, they claim the record reflects that Juror No. 11 actively engaged in deliberations and that the source of her fellow jurors' frustration was her view of the prosecution's case. We do not find Armstrong and Cleveland supportive of the proposition advanced by appellants, however, and we do not agree that the record fails to support the trial court's conclusions.

a. Cleveland Decision

In Cleveland, the trial court dismissed a juror after concluding that the juror was not " 'functionally deliberating with the other jurors ....' " (Cleveland, supra, 25 Cal.4th at p. 473, italics added.) The Court of Appeal then reversed the judgment on the basis that the record did not, by a demonstrable reality, reflect that the dismissed juror failed to deliberate or prejudged the evidence. (Id. at pp. 473-474.)

The California Supreme Court affirmed the Court of Appeal in Cleveland, observing, "The most common application of these statutes permits the removal of a juror who becomes physically or emotionally unable to continue to serve as a juror due to illness or other circumstances. [Citations.] [¶] These statutes also have been applied to permit the removal of a juror who refuses to deliberate, on the theory that such a juror is 'unable to perform his duty' within the meaning of ... section 1089." (Cleveland, supra, 25 Cal.4th at pp. 474-475.) However, "caution must be exercised in determining whether a juror has refused to deliberate." (Id. at p. 475.)

The court explained that "[a] refusal to deliberate consists of a juror's unwillingness to engage in the deliberative process; that is, he or she will not participate in discussions with fellow jurors by listening to their views and by expressing his or her own views. Examples of refusal to deliberate include, but are not limited to, expressing a fixed conclusion at the beginning of deliberations and refusing to consider other points of view, refusing to speak to other jurors, and attempting to separate oneself physically from the remainder of the jury. The circumstance that a juror does not deliberate well or relies upon faulty logic or analysis does not constitute a refusal to deliberate and is not a ground for discharge. Similarly, the circumstance that a juror disagrees with the majority of the jury as to what the evidence shows, or how the law should be applied to the facts, or the manner in which deliberations should be conducted does not constitute a refusal to deliberate and is not a ground for discharge. A juror who has participated in deliberations for a reasonable period of time may not be discharged for refusing to deliberate, simply because the juror expresses the belief that further discussion will not alter his or her views." (Cleveland, supra, 25 Cal.4th at p. 485.) After reviewing the record, the court determined that, contrary to the trial court's finding, the disqualified juror was not refusing to deliberate and instead, the other jurors' issue was with his conclusion. (Id. at pp. 485-486.) The court concluded, "It is possible that Juror No. 1 employed faulty logic and reached an 'incorrect' result, but it cannot properly be said that he refused to deliberate." (Id. at p. 486.)

b. Armstrong Decision

More recently, in Armstrong, the California Supreme Court again disagreed with the trial court's determination and reversed the judgment. (Armstrong, supra, 1 Cal.5th at p. 437.) The trial court in Armstrong concluded that a juror was no longer deliberating and it discharged her. (Id. at p. 449.) In part, the trial court found that the juror was reading a book and using her cell phone, evidencing her lack of participation. (Ibid.) The California Supreme Court reversed the judgment on the ground that the trial court's conclusions were not " 'manifestly supported' by [the] evidence." (Id. at p. 451.)

The high court determined from the record that the trial court relied on the testimony of two jurors in concluding that the disqualified juror was no longer deliberating. (Armstrong, supra, 1 Cal.5th at p. 451.) The court acknowledged that while sitting apart from other jurors, reading a book, or using a cell phone "may reflect a refusal to deliberate," the only evidence supporting the trial court's conclusion regarding use of a book and cell phone was one juror's testimony that the disqualified juror "looked at a book and a cellphone 'one or two times' for 'a few minutes.' " (Id. at p. 452.) The court concluded that "[s]uch de minimis references ... do not support a determination that [the juror] was refusing to deliberate." (Ibid.) As to the second juror's testimony, the court stated, "[S]ignificant evidence in the record shows that the foreperson's testimony regarding the manner in which Juror No. 5 was deliberating amounted to complaints, first, that she was not weighing the evidence in the way that he and the other jurors thought to be objective and, second, that her assessment of the evidence was different from theirs." (Id. at p. 453.)

c. Discharge Not Based on Refusal to Deliberate

We do not find either Cleveland or Armstrong controlling here because none of the jurors alleged that Juror No. 11 was refusing to deliberate and the trial court did not discharge her on that basis. To the contrary, the record reflects the other jurors' recognition that Juror No. 11 was actively engaged in deliberations. In this case, the issue was Juror No. 11's ability to understand and follow the court's instructions, including the terms and definitions, along with her consideration of matters not in evidence. Anthony, James and Sanchez do not argue that these grounds do not constitute good cause for discharge under section 1089, but they characterize the record as lacking support for the trial court's determination. We disagree.

The trial court heard from each juror and, notably, other than Juror No. 11 herself, only Juror No. 1 reported observing no issues relating to Juror No. 11's understanding of the terms and definitions in the instructions, ability to follow the instructions or ability to confine herself to considering only the evidence introduced at trial. Also notably, two jurors, both of whom were nurses and therefore had professional training and experience in the medical field, reported that Juror No. 11 was showing signs that they associated with possible early dementia. One, Juror No. 10, observed that Juror No. 11 had "a difficult time putting written instructions together with evidence and correlating all of that," and that such a task "might be beyond [Juror No. 11's] abilities." The other, Juror No. 4, observed that Juror No. 11 seemed to have a problem with short-term memory and she took a lot of notes, which she appeared to be relying on because she could not remember what she had said. Juror No. 3 also commented on Juror No. 11's reliance on notes, reporting that Juror No. 11 was so focused on writing everything down that she was not really listening to the evidence during the readback of testimony. All three, along with other jurors, also reported that Juror No. 11 was considering as evidence matters not introduced during trial. Juror No. 3 stated Juror No. 11 was having difficulty distinguishing between things the attorneys stated versus things the witnesses stated, and Juror No. 6 stated jurors kept having to remind Juror No. 11 that certain things did not apply.

As the court recognized, there was no basis upon which to diagnose Juror No. 11 with early dementia, nor did any juror or the court purport to, but we must view the court's determination that Juror No. 11 was unable to understand the terms and definitions in the instructions, and was unable to follow the instructions, in the context of the specific information it had before it and that information included observations by medical professionals that Juror No. 11 was exhibiting some behaviors that they associated with early-stage dementia. (Armstrong, supra, 1 Cal.45th at pp. 450-451, citing Barnwell, supra, 41 Cal.4th at pp. 1052-1053.) The court also had before it the observations of the other jurors, all of whom but two - Juror No. 1 and Juror No. 11 - observed some or all of the following issues: Juror No. 11's ability to understand the terms and definitions, her ability to follow the instructions and her ability to limit her consideration to evidence admitted at trial.

Anthony cites Juror No. 11's request for further guidance on heat of passion and contends the record "demonstrates [Juror No. 11] was not unable to understand the instruction ...; rather, the trial court failed to clarify her very astute question about the parameters of the legal concept at issue." This characterization is undermined by the record, though. As discussed in greater detail below, we reject the claim that the trial court erred in its response to the jury question on heat of passion. The record does not suggest that the other jurors required guidance regarding heat of passion. Rather, the record reflects that Juror No. 11 had questions regarding heat of passion and several jurors attempted to assist her in understanding the concepts. When the hearing record is viewed in totality, the assertion that Juror No. 11's question was "astute" and belies any difficulty understanding the terms, definitions and instructions is unpersuasive.

James describes Juror No. 11 as "the lone holdout juror who was being ganged up upon by the rest of the jury" and the trial court's decision as "an act of overreaching into the province of the jury in order to end a deadlock." This characterization of the record also lacks support. We agree the record evidences tension in the jury room between Juror No. 11 and some of the other jurors, and we agree that a juror may not be discharged on the basis of holding out for acquittal or otherwise merely disagreeing with the majority. (Cleveland, supra, 25 Cal.4th at p. 485.) However, the jury in this case did not declare it was deadlocked and we do not interpret the jurors' responses to the court's questions as indicating it was in danger of a deadlock. Rather, the record indicates the jury sent a note to the court after Juror No. 11 commented the jury was tainted and appellants were not getting a fair trial, but despite making those comments, Juror No. 11 wanted to continue deliberating and it was Juror No. 3 who felt the comments were of a nature that required the court be notified. This falls well short of supporting an inference that the jury was deadlocked and Juror No. 11 was the holdout for acquittal.

2. Credibility Determination Regarding Juror No. 3

Anthony acknowledges that we do not reweigh credibility questions on review and asserts that he is not requesting we do so, but he nevertheless claims that Juror No. 3's subsequent discharge for misconduct "eroded [his] credibility, entitling the trial court to give little, if any, credence to [his] allegations." As an initial matter, the express credibility determination Anthony ascribes, in his argument, to the trial court was a point advanced by the prosecutor.²⁹ The court did not make an express determination regarding Juror No. 3's credibility, but, as Anthony recognizes, it was within the province of the trial court to evaluate what impact, if any, Juror No. 3's subsequent actions had on his credibility as it related to his observations of Juror No. 11. (Barnwell, supra, 41 Cal.4th at p. 1053.) It bears mention that Juror No. 3's observation did not play an outsize role in the court's decision in the sense that he was but one of 10 jurors who provided information regarding the three areas of concern relating to Juror No. 11. Moreover, the misconduct committed by Juror No. 3 was confined to comments he made in the hallway outside the courtroom that related to his apparent shock over allegations that he threatened to hit a juror and he laid his hands on a juror. Under these circumstances, we are unpersuaded by Anthony's contention that the misconduct committed by Juror No. 3 bore on the veracity of his observations of Juror No. 11, thereby entitling the observations to little or no weight.

29 The prosecutor stated that he disbelieved Juror No. 11's claim that Juror No. 3 wanted to hit her and sought a club.

3. Support for Determination Juror No. 11 Considered Matters Not in Evidence

Collectively, Anthony, James and Sanchez also criticize the trial court's conclusion, as unsupported by a single example, that Juror No. 11 improperly considered matters not included within the evidence presented at trial. However, the California Supreme Court has cautioned that "a trial court's inquiry into possible grounds for discharge of a deliberating juror should be as limited in scope as possible, to avoid intruding unnecessarily upon the sanctity of the jury's deliberations. The inquiry should focus upon the conduct of the jurors, rather than upon the content of the deliberations." (Cleveland, supra, 25 Cal.4th at p. 485; accord, Barnwell, supra, 41 Cal.4th at p. 1054.)

In our view, the trial court's questioning of jurors in this case reflects a careful probing designed to ensure receipt of sufficient information on which to base its determinations while still maintaining respect for the sanctity of deliberations. In its effort to do so, the court cautioned the jurors at the outset that it did not want to get into the content of their deliberations. It then specifically asked jurors if Juror No. 11 was relying on information not discussed during trial. Two jurors, in addition to Juror No. 11, did not think she was relying on outside information, but nine jurors did and, of those nine, one juror specified that Juror No. 11 was considering information they were asked not to consider and they had to keep reminding her the information did not apply. That the court did not seek out more specific examples regarding Juror No. 11's reliance on matters outside of the evidence introduced at trial reflects the court's awareness of the limited scope of its inquiry, which must be adequate without being overly invasive and which must not cross over into the content of deliberations. (People v. Fuiava (2012) 53 Cal.4th 622, 710; Barnwell, supra, 41 Cal.4th at p. 1054; Cleveland, supra, 25 Cal.4th at p. 485.) We disagree that the court's explicit questions were insufficient to determine whether Juror No. 11 was considering outside evidence or instead was merely relying on hypotheticals to discuss the evidence, as Anthony asserts. With respect to Juror No. 11's use of hypotheticals, the record reflects that Juror No. 8 was discussing the issue in the context of Juror No. 11's difficulty understanding the terms, definitions and instructions. In the context of the evidence being considered, Juror No. 8 expressly and without equivocation stated that Juror No. 11 was relying on information not produced at trial.

4. Conclusion

In sum, we cannot agree with the characterization that the issues involving Juror No. 11 amounted to nothing more than the other jurors' disagreement with her interpretation of the instructions and the evidence. Nor, as we have stated, is this a case in which there is a claim that Juror No. 11 was refusing to deliberate or was unwilling to follow the instructions. The issue was her ability to understand the terms and definitions, to follow the instructions, and to limit herself to consideration of the evidence introduced at trial. As discussed herein, the trial court's decision to discharge Juror No. 11 on these grounds is manifestly supported by the evidence on which it relied and, therefore, no error occurred.³⁰

30 Because the trial court did not err in discharging Juror No. 11, we do not reach the issue of prejudice. However, we note that the People argue any error was harmless and cite to People v. Hall for the proposition that "where an alternate juror, approved by [the] defendant in voir dire, is allowed to deliberate on the jury panel, the defendant bears a heavy burden to demonstrate that he was somehow harmed thereby." (People v. Hall (1979) 95 Cal.App.3d 299, 307.) In that case, however, the Court of Appeal determined that the trial court did not abuse its discretion in discharging a juror under section 1089 due to a scheduling conflict where the trial ran past the estimate and the juror had alerted the court and the parties to the scheduling conflict - his wife's surgery - during voir dire. (People v. Hall, supra, at pp. 305-306.) The defendant did not object in the trial court but then complained on appeal that the dismissal of the juror deprived him of his right to a fair trial. (Id. at p. 306.) In contrast, where the trial court abuses its discretion in removing a juror, the California Supreme Court has found the error prejudicial. (Cleveland, supra, 25 Cal.4th at p. 486, citing People v. Hamilton (1963) 60 Cal.2d 105, 128, overruled on other grounds in People v. Morse (1964) 60 Cal.2d 631, 648-649; accord, Armstrong, supra, 1 Cal.5th at p. 454.)

III. Coercion of the Verdict

Relatedly, James, joined by Anthony and Sanchez, claims that in discharging Juror No. 3 and Juror No. 11 during deliberations, the trial court impermissibly coerced a verdict, in violation of his federal and state rights to due process and a fair trial before an impartial jury. We find no merit to this claim.

A trial court's actions during deliberations must " 'avoid displacing the jury's independent judgment "in favor of considerations of compromise and expediency" ' " and, therefore, " '[a]ny claim that the jury was pressured into reaching a verdict depends on the particular circumstances of the case.' " (People v. Brooks (2017) 3 Cal.5th 1, 88-89.) " '[C]oercive' actions are those involving 'a judicial attempt to inject illegitimate considerations into the jury debates [and] ... appeal to dissenting jurors to abandon their own independent judgment of the case against the accused,' by placing 'excessive pressure on the dissenting jurors to acquiesce in a verdict.' " (Bryant, Smith and Wheeler, supra, 60 Cal.4th at p. 461, quoting People v. Gainer (1977) 19 Cal.3d 835, 849-850, disapproved in part on another ground in People v. Valdez (2012) 55 Cal.4th 82, 163.)

The California Supreme Court has recognized that "[s]ection 1089 explicitly permits the substitution of jurors after deliberations have begun: the substitution can be made 'any time, whether before or after the final submission of the case to the jury.'" (Bryant, Smith and Wheeler, supra, 60 Cal.4th at p. 447.) In this case, appellants do not claim the discharge of Juror No. 3 was error and we have rejected their claim that the discharge of Juror No. 11 was error. The absence of any challenge to the excusal of Juror No. 3 and the absence of any error as to the removal of Juror No. 11 leaves their argument that the court's actions coerced the verdict with little to no remaining force.

Furthermore, we are unpersuaded by their characterization of the record in this case. Appellants describe the reconstituted jury's verdict as speedy and conclude that because the reconstituted jury deliberated for less than a day and a half compared with the three days of deliberations undertaken by the jury as originally constituted, "no meaningful deliberations" occurred. They also assert the court "certainly created an atmosphere where the remaining jurors believed that the court itself disagreed with Juror No. 11's holdout position," and the court's instruction to the jury to begin deliberations anew was insufficient to overcome any prejudicial effect. Appellants cast Juror No. 11 as a holdout juror and contend the trial court's dismissal of her constituted an implied endorsement of the other 11 jurors' views.

Although this case involved three defendants and multiple victims, the events underlying the crimes were relatively straightforward and, to the extent appellants' arguments may be fairly characterized as intimating this was an unduly complicated case, we disagree. Moreover, there is nothing in the record that casts suspicion on the length of time the reconstituted jury deliberated, and, as we have already discussed, appellants' characterization of Juror No. 11 as a holdout is purely speculative. To the contrary, the majority of the jurors' comments reflect they reached sticking points in their deliberations because of Juror No. 11's inability to understand the instructions, including terms and definitions, and her inability to confine herself to the evidence introduced at trial. The jury did not report that it was deadlocked and there is no credible basis for concluding that Juror No. 11 was holding out for acquittal. Instead, the record suggests the jury was stuck not on rendering a verdict but, as a result of Juror No. 11's abilities, on following the instructions and considering only evidence admitted at trial. We also note that the original jury requested readback of both Mario's and Adriana's testimony, which accounted for approximately one of the three days the jury spent deliberating prior to the discharge of Juror No. 3 and Juror No. 11.

The jury's note that ultimately led to the removal of Juror No. 11 reflected a juror's concern that the jury was tainted and appellants were not getting a fair trial, and Juror No. 3 subsequently confirmed those statements were made by Juror No. 11. However, the note must be viewed in context and the record does not suggest that the jury was close to a deadlock or that Juror No. 11 was holding out for acquittal. Jurors were frustrated and most believed that Juror No. 11 was having difficulty understanding and, therefore, following the jury instructions and that she was considering matters not in evidence. Juror No. 11 did not share that viewpoint, but, as a result, she and most of the other jurors found themselves stuck on different pages. Based on the jurors' comments, however, these differences appear confined to following instructions and considering only the evidence admitted at trial rather than opinions formed on guilt.

Finally, we note that in support of their claim the court coerced a verdict, appellants rely on cases pertaining to deadlocked juries. As we have pointed out, the jury in this case did not report a deadlock and the hearing at which the court examined jurors did not concern a deadlock situation. Even if it had, however, California Supreme Court authority is at odds with the argument advanced by appellants. Appellants rely, in part, on State v. Corsaro (1987) 526 A.2d 1046 (Corsaro) for the proposition that it was unrealistic to expect the reconstituted jury to begin deliberations anew. In Corsaro, the jury had already returned a partial verdict when the trial court dismissed a juror who showed up to court late and appeared to be intoxicated. (Id. at pp. 1047-1048.) The reconstituted jury thereafter returned guilty verdicts on the remaining counts. (Id. at p. 1050.) As to the counts decided by the reconstituted jury, the New Jersey Supreme Court reversed the convictions. (Id. at p. 1055.) While it did not decide it was never proper to substitute a juror after a partial verdict, it held that in that case, "substitution of a juror after the return of partial verdicts for the purpose of continuing deliberations in order to reach final verdicts on remaining counts was plain error." (Ibid.)

The court explained, "Here, the loss of one juror from the original jury and the substitution of a new juror made the resultant jury different from the first jury. To the extent that the original individual jurors would inevitably be influenced by their prior determinations, which would carry over into the final verdicts on the open and remaining charges, the final verdict joined in by the new juror could not represent a decision made by the same jury as a result of fresh deliberations on all important aspects of the open charges. [¶] The requirement that juries begin deliberations anew after a juror has been substituted would be rendered nugatory if the reconstituted jury is likely to accept, as conclusively established, facts that could underlie, if not necessarily establish, its verdict on the open charges. While the jury was not technically required to accept the facts underlying the partial verdict, the likelihood that deliberations would truly 'begin anew' was so remote, in our opinion, as to foreclose juror substitution." (Corsaro, supra, 526 A.2d at p. 1055.)

The California Supreme Court expressly disagreed with Corsaro, however, stating, "We do not share the Corsaro court's pessimism regarding the capabilities of jurors. As we have consistently stated in numerous contexts we generally presume that jurors are capable of following, and do follow, the trial court's instructions. We have specifically applied this presumption to an instruction for a reconstituted jury to begin its deliberations anew. [Citation.] For decades we have presumed that jurors follow a court's general instructions to consider each offense and defendant separately, 'as if it were the only accusation before them.' [Citations.] The circumstances of a reconstituted jury's consideration of the remaining charges after the rendering of partial verdicts are not so different that the usual presumption should not apply." (Bryant, Smith and Wheeler, supra, 60 Cal.4th at pp. 447-448.) The court went on to note that "[s]everal jurisdictions, including the federal courts, that had historically prohibited all substitutions of jurors after the start of deliberations, have now revised their statutes or rules to permit this practice. [Citations.] These changes reflect a developing confidence in the ability of jurors to follow a court's instructions to begin deliberations anew." (Id. at p. 448.)

In this case, the jury had not returned any verdicts and it had not reported a deadlock. After Juror No. 3 and Juror No. 11 were discharged, the reconstituted jury was instructed to begin deliberating from the beginning. Nothing in the record suggests that the jury did not do so. (Bryant, Smith and Wheeler, supra, 60 Cal.4th at pp. 447-448.) Under these circumstances, we find the claim that the discharge of the two jurors coerced a verdict without merit.

IV. Instructional Issues

A. Failure to Respond to Jury's Question on Heat of Passion

On the first day of deliberations, the jury sent the trial court a note asking two questions regarding heat of passion. Anthony, joined by James and Sanchez, argues that the trial court erred in its response to the second question. James, joined by Sanchez, argues that the trial court erred in its responses to both questions.

1. Standard of Review

Section 1138 provides that "[a]fter the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called." The statute "imposes a 'mandatory' duty to clear up any instructional confusion expressed by the jury" (People v. Gonzalez (1990) 51 Cal.3d 1179, 1212, superseded by statute on another ground, as stated in In re Steele (2004) 32 Cal.4th 682, 691), but "[w]here ... the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information" (People v. Gonzalez, supra, at p. 1213).

"The court has a primary duty to help the jury understand the legal principles it is asked to apply. [Citation.] This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information. [Citation.] Indeed, comments diverging from the standard are often risky." (People v. Beardslee (1991) 53 Cal.3d 68, 97.) However, the court "must at least consider how it can best aid the jury. It should decide as to each jury question whether further explanation is desirable, or whether it should merely reiterate the instructions already given." (Ibid.; see People v. Thompkins (1987) 195 Cal.App.3d 244, 253 ["[B]oth jurors and the justice system will be well served in the vast majority of cases if the trial judge thoughtfully considers the jury's inquiry, clarifies it if necessary, studies the applicable legal principles, and responds to the jury in as simple and direct a manner as possible."].)

We review for abuse of discretion "any decision by a trial court to instruct, or not to instruct, in its exercise of its supervision over a deliberating jury." (People v. Waidla (2000) 22 Cal.4th 690, 745-746; accord, People v. Fleming (2018) 27 Cal.App.5th 754, 765; People v. Franklin (2018) 21 Cal.App.5th 881, 887.) However, "[w]e review de novo the legal accuracy of any supplemental instructions provided." (People v. Franklin, supra, at p. 887 & fn. 4, citing People v. Posey (2004) 32 Cal.4th 193, 218; accord, People v. Fleming, supra, at pp. 765-766.)

2. Trial Court Proceedings

Pursuant to CALCRIM No. 603, the trial court instructed the jury on heat of passion as follows:

"An attempted killing that would otherwise be attempted murder is reduced to attempted voluntary manslaughter if the defendant attempted to kill someone because of a sudden quarrel or in the heat of passion.

"The defendant attempted to kill someone because of a sudden quarrel or in the heat of passion if:

"One, the defendant took at least one direct but ineffective step toward killing a person; two, the defendant intended to kill that person; three, the defendant attempted the killing because he was provoked; four, the provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment; and, five, the attempted killing was a rash act done under the influence of intense emotion that obscured the defendant's reasoning or judgment.

"Heat of passion does not require anger, rage, or any specific emotion. It can be any violent or intense emotion that causes a person to act without due deliberation and reflection.

"In order for a sudden quarrel or heat of passion to reduce an attempted murder to attempted voluntary manslaughter, the defendant must have acted under the direct and immediate influence of provocation as I have defined it. While no specific type of provocation is required, slight or remote provocation is not sufficient. Sufficient provocation may occur over a short or long period of time.

"It is not enough that the defendant simply was provoked. The defendant is not allowed to set up his own standard of conduct. You must decide whether [the] defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation was sufficient, consider whether [a] person of average disposition, in the same situation and knowing the same facts, would have reacted from passion rather than judgment.

"If enough time passed between the provocation and the attempted killing for [a] person of average disposition to 'cool off' and regain his or her clear reasoning and judgment, then the attempted murder is not reduced to attempted voluntary manslaughter on this basis.

"The People have the burden of proving beyond a reasonable doubt that the defendant attempted to kill someone and was not acting as a result of a sudden quarrel or in the heat of passion. If the People have not met this burden, you must find the defendant not guilty of attempted murder." (Italics added.)

In the late afternoon on the first day of deliberations, the jury sent the court a note with the following questions: "Does 'heat of passion' have to occur within a certain time frame after an aggressive act?" and "Can aggression against a friend or friend's family member be considered or ruled out as 'heat of passion?' " (Some capitalization omitted.) After conferring with counsel, the court stated it was inclined to reread CALCRIM No. 603 on heat of passion because the instruction answered the jury's questions. The court specified that the jury's first question was answered by the portion of the instruction that provided, " 'Sufficient provocation may occur over a short or long period of time,' " and the second question was satisfied by the portion of the instruction that provides, " 'Heat of passion does not require anger, rage, or any specific emotion. It can be any violent or intense emotion that causes a person to act without due deliberation and reflection.' "

Counsel for Anthony and James objected to the rereading of the instruction in lieu of answering the questions. Counsel for Sanchez agreed with the objection, but also stated he had no objection to the rereading of the instruction. The prosecutor sided with rereading the instruction. The court stated, "There's too many variables in the [CALCRIM No.] 603 instruction, in my opinion, to give a simple answer of yes, no. But if you all disagree with me and feel that it would be clearer for the jury, then I'm certainly willing to reconsider." After counsel for Anthony reiterated his position that the jury was seeking guidance and simply rereading the instruction would continue to leave them confused, the court summoned the jury, explained that it thought the best answer was to refer back to the instruction because it contains the answer, and reread CALCRIM No. 603.

3. Analysis

a. No Error

We do not agree that the trial court erred when it reread CALCRIM No. 603 rather than attempting to more specifically answer the jury's questions. After the court reread the instruction, further deliberations, which included readback, continued for approximately two days before the jury sent the second note that led the court to examine the jurors and discharge Juror No. 3 and Juror No. 11. During the course of those proceedings, responses by two jurors revealed that it was Juror No. 11 who wanted clarification on heat of passion. The record does not suggest that any juror other than Juror No. 11 was confused over the concepts; to the contrary, the record indicates that other jurors were not similarly confused. Juror No. 3 reported that he read the instruction to Juror No. 11 at least six times in an effort to assist her in understanding the concept, she reread it herself, and other jurors read it to her and tried to explain it. As we discussed in detail, ante, other jurors expressed concern with Juror No. 11's ability to understand the instructions and confine herself to evidence introduced at trial, and the court ultimately found good cause to excuse her on these bases. That confusion over the concept of heat of passion was confined to Juror No. 11 and must be viewed through the lens of her ability to comprehend the instructions is underscored by the fact that, while the jury was instructed on heat of passion, none of the three appellants focused on heat of passion as a theory of defense.

Moreover, the court did not fail to consider the jury's inquiry thoughtfully. (People v. Beardslee, supra, 53 Cal.3d at p. 97; People v. Thompkins, supra, 195 Cal.App.3d at p. 253.) We agree with the trial court's assessment that the jury instruction addressed the first question directly. The instruction did not address the second question as directly, but the court's hesitation in responding was grounded in its concern that too many variables were at play to provide a simple answer. We cannot find that this was error where there is no claim the instruction misstated the law and neither the jury's questions nor the circumstances surrounding the questions suggest a level of confusion that clearly demanded more. (See People v. Thompkins, supra, at pp. 251-252 [trial court's response to jury question was both legally incorrect and failed to assist the jury, which was seeking guidance on the relationship between premeditation and heat of passion; and the error was prejudicial where the jury had deadlocked prior to the court's response and the prosecution's evidence was not completely consistent with premeditation].)

Anthony argues "the jury's question pinpointed the question of heat of passion to the facts of [his] case," and "[t]he failure to answer the jury's question thus left the jury without any guidance as to whether or not they could properly consider" the altercation between Mario and James in determining whether he or Sanchez acted in the heat of passion. Anthony cites numerous cases for the proposition that the jury could consider the altercation between Mario and James in determining whether he or Sanchez acted in the heat of passion, but where, as here, the jury was instructed on heat of passion and there is no claim the instruction misstated the law, the authority cited does not support Anthony's claim that the trial court's response was inadequate and an abuse of discretion.³¹ Moreover, as previously stated, heat of passion did not form the basis of the defense theory for any of appellants.

31 Anthony relies on the following cases: People v. Minifie (1996) 13 Cal.4th 1055, 1060 ("evidence of third party threats is admissible to support a claim of self-defense if there is also evidence from which the jury may find that the defendant reasonably associated the victim with those threats," and the court erred in excluding it); People v. Berry (1976) 18 Cal.3d 509, 515-516 (trial court erred in failing to instruct on voluntary manslaughter based on sudden quarrel or heat of passion); People v. Thomas (2013) 218 Cal.App.4th 630, 633 (trial court's refusal to instruct on voluntary manslaughter based on sudden quarrel or heat of passion was prejudicial error); People v. Ramirez (2010) 189 Cal.App.4th 1483, 1484, 1487 (where there was evidence the defendant was provoked and acted in heat of passion, the court's failure to instruct jury sua sponte on lesser included offense of voluntary manslaughter was prejudicial error); and People v. Brooks (1986) 185 Cal.App.3d 687, 696 (where the defendant shot and killed a man he believed had stabbed his brother to death several hours earlier, there was evidence of provocation and heat of passion and it was error for the court to refuse to instruct on lesser included offense of voluntary manslaughter).

In discussing its response to the jury's question, the trial court mentioned recalling one of the attorneys gave "the standard example of somebody comes home and finds their spouse with another individual. That's not an act essentially done directly against the shooter or the perpetrator, somebody else causes them anger or rage." Anthony argues that the jury's question was not addressed or clarified by counsel's closing argument, and "the argument of counsel, even if it had addressed the jury's question, could not substitute for the trial court's instructions on the law. The force of defense counsel's closing argument is severely diminished without the benefit of jury instructions." However, as we have stated, the trial court did not fail to instruct the jury on voluntary manslaughter based on sudden quarrel or heat of passion, there is no claim the instruction given misstates the law and appellants did not focus on a heat of passion theory in closing argument. As such, the issue here is not a trial court's reliance on argument by counsel as a substitute for instruction to the jury in the first instance. We find the argument to the contrary unpersuasive and the authority cited inapposite. (See Carter v. Kentucky (1981) 450 U.S. 288, 303-304 [trial court erred in refusing to give instruction requested by defense regarding a defendant's failure to testify]; People v. Miller (1996) 46 Cal.App.4th 412, 426, fn. 6 ["While we have no trouble utilizing the argument of counsel to help clear up ambiguities in instructions given, there is no authority which permits us to use argument as a substitute for instructions that should have been given."], disapproved on another ground by People v. Cortez (1998) 18 Cal.4th 1223, 1240 & fn. 8; see also Boyde v. California (1990) 494 U.S. 370, 384-385 [prosecutor's arguments "are not to be judged as having the same force as an instruction from the court"].)

The claim of error advanced by James rests on the premise that the jury was "struggling with the concept of heat of passion" based on the evidence that it was James who was assaulted by Mario while it was Anthony and Sanchez who later confronted and shot Mario, and the court's response to the jury's question misdirected the jury rather than clarifying the concept for them, thereby diluting the prosecutor's burden of proof.³² The foundation for this argument is belied by the record, which reveals that Juror No. 11 had questions regarding heat of passion, the other jurors tried to assist her in understanding the concept without success, and she was subsequently discharged under section 1089 for good cause after the court determined she was having difficulty understanding and following the instructions and was considering evidence not introduced at trial.

32 James describes the instruction as "incomplete," but a so-called pinpoint instruction, which is what we interpret this statement as implicating, " 'relate[s] particular facts to a legal issue in the case or "pinpoint[s]" the crux of a defendant's case, such as mistaken identification or alibi' " (People v. Ward (2005) 36 Cal.4th 186, 214, quoting People v. Saille (1991) 54 Cal.3d 1103, 1119), need not be given sua sponte (People v. Anderson (2011) 51 Cal.4th 989, 996-997, citing People v. Saille, supra, at p. 1119).

Under these circumstances, we reject appellants' collective argument that the jury was struggling over heat of passion and the court's decision to reread CALCRIM No. 603 was an abuse of discretion. The court considered the options and decided that at that juncture, rereading CALCRIM No. 603 was the best response given that the instruction directly answered the first question and it addressed the second question, albeit less directly. This did not constitute an abuse of the court's discretion.³³ (People v. Beardslee, supra, 53 Cal.3d at p. 97.)

33 Because the court did not err, we do not reach the issue of prejudice.

B. CALCRIM No. 400—Aiding and Abetting: General Principles

1. Forfeiture

As discussed below, James, joined by Anthony, claims that CALCRIM No. 400 misstates the law and dilutes the prosecutor's burden of proof. He acknowledges that trial counsel did not object to the instruction, but claims no objection was required because the deficiency affects his substantial rights. (§ 1259; People v. Delgado (2017) 2 Cal.5th 544, 572, fn. 15; People v. Townsel (2016) 63 Cal.4th 25, 59-60.) As argued, a claim that an instruction misstates the law, resulting in a due process violation, does not need to be preserved by an objection. (People v. Smithey (1999) 20 Cal.4th 936, 976-977, fn. 7.) In this case, we reject the claim of error and therefore, we need not decide whether the forfeiture doctrine applies. (People v. Johnson (2016) 62 Cal.4th 600, 639; accord, People v. Covarrubias, supra, 1 Cal.5th at p. 919.) This determination also renders James's related claim of IAC moot.

2. Standard of Review

We review a claim of instructional error review de novo. (People v. Waidla, supra, 22 Cal.4th at p. 733; People v. Martin (2000) 78 Cal.App.4th 1107, 1111.) "In criminal cases, even in the absence of a request, a trial court must instruct on general principles of law relevant to the issues raised by the evidence and necessary for the jury's understanding of the case." (People v. Martinez (2010) 47 Cal.4th 911, 953.) "[I]nstructions are not considered in isolation. Whether instructions are correct and adequate is determined by consideration of the entire charge to the jury." (People v. Holt (1997) 15 Cal.4th 619, 677; accord, People v. Thomas (2011) 52 Cal.4th 336, 356.) "If the charge as a whole is ambiguous, the question is whether there is a ' "reasonable likelihood that the jury has applied the challenged instruction in a way" that violates the Constitution.' " (Middleton v. McNeil (2004) 541 U.S. 433, 437 (per curiam).) Jurors are presumed to have understood and followed the trial court's jury instructions. (People v. Sandoval (2015) 62 Cal.4th 394, 422.)

3. Analysis

a. Summary of Claim

The trial court instructed the jury pursuant to CALCRIM No. 400 as follows: "A person may be guilty of a crime in two ways. One, he or she may have directly committed the crime. I will call that person the perpetrator. Two, he or she may have aided and abetted a perpetrator who directly committed the crime. [¶] A person is guilty of a crime whether he or she committed it personally or aided and abetted the perpetrator."

James and Anthony claim that this instruction was erroneous because it diluted the prosecutor's burden of proof and allowed the jury to find him "equally guilty solely because he aided and abetted the actual perpetrator." We agree with the People that this argument lacks merit.

In People v. Samaniego (2009) 172 Cal.App.4th 1148, 1165 (Samaniego) and People v. Nero (2010) 181 Cal.App.4th 504, 518 (Nero), the Courts of Appeal concluded that an earlier version of CALCRIM No. 400 was erroneous, and James and Anthony rely on these decisions in support of their argument. However, CALCRIM No. 400 was modified as a result of the error identified in Samaniego and Nero, and as James and Anthony concede, the jury in this case was instructed with the modified version. We are unpersuaded by their argument that the revised version suffers from the same deficiency as the prior version at issue in Samaniego and Nero.

b. Samaniego and Nero Decisions

The instruction at issue in Samaniego informed the jury, " 'A person may be guilty of a crime in two ways. One, he or she may have directly committed the crime.... Two, he or she may have aided and abetted a perpetrator, who directly committed the crime. A person is equally guilty of the crime whether he or she committed it personally or aided and abetted the perpetrator who committed it.' " (Samaniego, supra, 172 Cal.App.4th at pp. 1162-1163.)

In Nero, the trial court instructed the jury pursuant to CALJIC No. 3.00, which provided, " 'Persons who are involved in committing or attempting to commit a crime are referred to as principals in that crime. Each principal, regardless of the extent or manner of participation, is equally guilty. Principals include those who directly and actively commit or attempt to commit the acts constituting the crime, or, two, those who aid and abet the commission or attempted commission of a crime.' " (Nero, supra, 181 Cal.App.4th at p. 510.)

In both cases, it was the "equally guilty" language that was problematic. (Nero, supra, 181 Cal.App.4th at pp. 517-518; accord, Samaniego, supra, 172 Cal.App.4th at p. 1165.) In People v. McCoy (2001) 25 Cal.4th 1111 (McCoy), the California Supreme Court addressed "whether an aider and abettor may be guilty of greater homicide-related offenses than those the actual perpetrator committed." (Id. at p. 1114.) The court concluded that "[b]ecause defenses or extenuating circumstances may exist that are personal to the actual perpetrator and do not apply to the aider and abettor, the answer, sometimes, is yes." (Ibid.) Subsequently, in Samaniego, the Court of Appeal explained, "Though McCoy concluded that an aider and abettor could be guilty of a greater offense than the direct perpetrator, its reasoning leads inexorably to the further conclusion that an aider and abettor's guilt may also be less than the perpetrator's, if the aider and abettor has a less culpable mental state. [Citation.] Consequently, CALCRIM No. 400's direction that '[a] person is equally guilty of the crime [of which the perpetrator is guilty] whether he or she committed it personally or aided and abetted the perpetrator who committed it' (CALCRIM No. 400, italics added), while generally correct in all but the most exceptional circumstances, is misleading here and should have been modified." (Samaniego, supra, at pp. 1164-1165; see People v. Johnson, supra, 62 Cal.4th at p. 638 ["[A]n aider and abettor's criminal liability may sometimes be greater than, or lesser than, that of the perpetrator."].) The appellate court concluded the error was harmless, however. (Samaniego, supra, at p. 1165.)

In Nero, the Court of Appeal considered the decisions in McCoy and Samaniego, and concluded that "even in unexceptional circumstances CALJIC No. 3.00 and CALCRIM No. 400 can be misleading." (Nero, supra, 181 Cal.App.4th at p. 518.) In Nero, the direct perpetrator, Bennie Nero, stabbed a man to death and his sister, Lisa Brown, was charged as an aider and abettor. (Id. at pp. 507-508.) The prosecutor's theory was that Brown handed Nero the knife with which he stabbed the victim. (Id. at p. 510.) The crime was caught on surveillance video, but the video was not definitive and there were disputes regarding Nero's actions as he bent over and appeared to grab something, to whom the knife belonged given there was an object strapped to the victim's bicycle that could have been a sheath, and whether Brown handed Nero something, possibly the knife. (Id. at p. 519.) In addition, the prosecutor agreed that in the early stages of the fight between Nero and the victim, Brown tried to break it up. (Ibid.)

The jury in Nero struggled with Brown's liability as an aider and abettor. (Nero, supra, 181 Cal.App.4th at pp. 511-513.) The jury asked, " 'If Brown is an "aid[] + abet" must she [receive] [the] same level of guilt (or innocence) as Mr. Nero? Can she [receive] a higher or lesser degree of murder, manslaughter, or innocence?' " (Id. at p. 511.) This question was followed by an exchange between the trial court and several jurors, leaving no doubt that the jury was concerned with the level of Brown's guilt. (Id. at pp. 511-513.) The trial court then twice reread former CALJIC No. 3.00, which discusses equal guilt. (Id. at p. 512.) Upon review, the Court of Appeal concluded that the error was prejudicial, concluding, "It is ... clear that the jury was considering whether to impose a lesser degree or offense on the aider and abettor. Notwithstanding that other instructions might have given them that option, there is a reasonable possibility that the trial court's response to their questions improperly foreclosed it. Indeed, the trial court's response was incorrect in at least one other respect: the court told the jurors that an aider and abettor 'can bear no greater responsibility as far as the degree.' This, of course, was wrong under McCoy's express holding. The court's misinstruction precluded the jury from finding the aider and abettor guilty of either a greater or a lesser offense." (Nero, supra, at pp. 519-520.)

After Samaniego and Nero, CALCRIM No. 400 was modified to remove the word "equally" from the phrase "equally guilty" and CALJIC No. 3.00 was modified to make the language optional. (People v. Johnson, supra, 62 Cal.4th at p. 640 & fn. 5.) James and Anthony recognize that in this case, the jury was instructed with the modified version of CALCRIM No. 400, but they maintain "its meaning is essentially the same" and it "put[s] [them] in much the same position as the defendants in Nero and Samaniego." As our summary of decisions in Samaniego and Nero illustrates, however, the "equally guilty" language in the prior versions of CALCRIM No. 400 and CALJIC No. 3.00 was the linchpin in both courts' error analyses. As such, the assertion that the modified version of the instruction given here suffers from the same defect is specious; Samaniego and Nero offer no support for the proposition advanced here by James and Anthony.

c. Instructions as a Whole

Furthermore, we evaluate a claim of instructional error in the context of the jury instructions as a whole (People v. Holt, supra, 15 Cal.4th at p. 677; People v. Thomas, supra, 52 Cal.4th at p. 356), and in addition to CALCRIM No. 400, the trial court instructed with CALCRIM Nos. 203 and 401. CALCRIM No. 203 provides, "You must separately consider the evidence as it applies to each defendant. You must decide each charge for each defendant separately."

CALCRIM No. 401 provides:

"To prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that:

"1. The perpetrator committed the crime;

"2. The defendant knew that the perpetrator intended to commit the crime;

"3. Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; AND,

"4. The defendant's words or conduct did in fact aid and abet the perpetrator's commission of that crime.

"Someone aids and abets a crime if he or she knows of the perpetrator's unlawful purpose and he or she specifically intends, to and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator's commission of that crime.

"If all of these requirements are provided, the defendant does not need to actually have been present when the crime was committed to be guilty as an aider and abettor.

"If you conclude that [the] defendant was present at the scene of the crime or failed to prevent the crime, you may consider that fact in determining whether the defendant was an aider and abettor. However, the

fact that a person is present at the scene of a crime or fails to prevent the crime does not, by itself, make him or her an aider or abettor."

James's and Anthony's misplaced reliance on Samaniego and Nero aside, their contention that the jury instructions allowed the jury to find them "equally guilty" of Mario's attempted murder solely based on aiding and abetting Sanchez and without regard for whether they committed a lesser offense than Sanchez is contradicted by a review of the charge to the jury. Accordingly, we reject their claim of error.

V. IAC at Sentencing

Anthony, joined by James, claims that trial counsel rendered IAC during sentencing by failing to make an adequate record for future youthful offender parole hearings.³⁴ (§§ 3051, subd. (b), 4801, subd. (c); Franklin, supra, 63 Cal.4th at pp. 269, 283-284.) They seek remand for a Franklin hearing. The People respond that Anthony and James fail to meet their burden of demonstrating error on direct appeal and have not demonstrated prejudice. We agree.

34 As we stated in footnote 5, ante, we exercise our discretion to consider James's joinder in this claim, notwithstanding our disapproval of his failure to expressly join Anthony's argument. (Bryant, Smith and Wheeler, supra, 60 Cal.4th at pp. 363-364.)

A. Standard of Review

"In order to establish a claim for [IAC], a defendant must show that his or her counsel's performance was deficient and that [the] defendant suffered prejudice as a result of such deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687-692.) To demonstrate deficient performance, the defendant bears the burden of showing that counsel's performance ' " ' "fell below an objective standard of reasonableness ... under prevailing professional norms." ' " ' (People v. Lopez (2008) 42 Cal.4th 960, 966.) To demonstrate prejudice, [the] defendant bears the burden of showing a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different. (Ibid.; In re Harris (1993) 5 Cal.4th 813, 833.)" (People v. Mickel (2016) 2 Cal.5th 181, 198.)

"On appeal, we do not second-guess trial counsel's reasonable tactical decisions." (People v. Lucas (2014) 60 Cal.4th 153, 278, disapproved on another ground in People v. Romero and Self (2015) 62 Cal.4th 1, 53-54, fn. 19.) "[The] defendant's burden [is] 'difficult to carry on direct appeal,' as a reviewing court will reverse a conviction based on [IAC] on direct appeal only if there is affirmative evidence that counsel had ' " 'no rational tactical purpose' " ' for an action or omission." (People v. Mickel, supra, 2 Cal.5th at p. 198, quoting People v. Lucas (1995) 12 Cal.4th 415, 437.)

B. Analysis

1. Background

Effective January 1, 2016, section 3051, subdivision (a)(1), was amended to provide as follows: "A youth offender parole hearing is a hearing by the Board of Parole Hearings for the purpose of reviewing the parole suitability of any prisoner who was under 23 years of age at the time of his or her controlling offense." (Sen. Bill No. 261, approved by Governor, Oct. 3, 2015 (2014-2015 Reg. Sess.) ch. 471, § 1 (Senate Bill No. 261 or Sen. Bill No. 261).) Senate Bill No. 261 also amended section 4801, subdivision (c), to provide: "When a prisoner committed his or her controlling offense, as defined in subdivision (a) of Section 3051, prior to attaining 23 years of age, the board, in reviewing a prisoner's suitability for parole pursuant to Section 3041.5, shall give great weight to the diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner in accordance with relevant case law."³⁵

35 Both statutes were subsequently amended, effective January 1, 2018, to extend their application to those 25 years of age or younger at the time of the controlling offense. (Sen. Bill No. 394, ch. 684, §§ 1.5, 2.5.)

Subsequently, the California Supreme Court issued its decision in Franklin, which involved a defendant who was convicted of a murder committed when he was 16 years old and sentenced to a total indeterminate term of 50 years to life in prison. (Franklin, supra, 63 Cal.4th at p. 268.) Relying on Graham v. Florida (2010) 560 U.S. 48, Miller v. Alabama (2012) 567 U.S. 460, and People v. Caballero (2012) 55 Cal.4th 262, the defendant in Franklin challenged his sentence as unconstitutional under the Eighth Amendment. (Franklin, supra, at p. 268.) The court first determined that the enactment of sections 3051 and 4801 rendered the defendant's constitutional claim moot. (Franklin, supra, at p. 268.) The court then recognized that the defendant raised "colorable concerns as to whether he was given adequate opportunity at sentencing to make a record of mitigating evidence tied to his youth. The criteria for parole suitability set forth in ... sections 3051 and 4801 contemplate that the Board [of Parole Hearings's] decisionmaking at [the defendant's] eventual parole hearing will be informed by youth-related factors, such as his cognitive ability, character, and social and family background at the time of the offense." (Id. at p. 269.) The court therefore remanded the case for the trial court to determine whether the defendant "was given adequate opportunity at sentencing to make a record of mitigating evidence tied to his youth." (Ibid.)

2. Error Not Shown

Here, Anthony was 22 years old and James was 21 years old at the time of their controlling offenses and, therefore, they are eligible for future youthful offender parole hearings.³⁶ (§ 3051, subds. (a), (b).) The relevant changes to sections 3051 and 4801 were effective January 1, 2016, and the decision in Franklin was issued on May 26, 2016. Anthony and James were sentenced on August 22, 2016, and, therefore, the trial court and the parties had the benefit of the relevant changes in the law at the time of sentencing. On appeal, we presume counsel's competence, which encompasses knowledge of the relevant law (People v. Lopez, supra, 42 Cal.4th at p. 966; see People v. Blackburn (2015) 61 Cal.4th 1113, 1124), and Anthony and James bear a heavy burden of demonstrating error. Unlike the defendant in Franklin, Anthony and James were sentenced with the benefit of the changes in the law extending youthful offender parole hearings to offenders under the age of 23 (now 25) at the time of their controlling offenses and it cannot be said that they did not have the opportunity to make a record of the kinds of information that will be relevant at their future youthful offender parole hearings. (People v. Woods (2018) 19 Cal.App.5th 1080, 1088-1089.)

36 There are exclusions to eligibility for a youthful offender parole hearing, but those exclusions do not apply to Anthony or James. (§ 3051, subd. (h).)

Their reliance on People v. Perez (2016) 3 Cal.App.5th 612 does not compel a different conclusion. The defendant in Perez was 20 years old at the time of his crimes and was sentenced in 2014, which was prior to the relevant statutory change to sections 3051 and 4801. Under that circumstance, the Court of Appeal concluded that the defendant "did not have a sufficient opportunity to put on the record the kinds of information that sections 3051 and 4801 deem relevant at a youth offender parole hearing." (People v. Perez, supra, at p. 619.) Here, as we have stated, Anthony and James were sentenced almost nine months after the relevant change to section 3051 extending youthful offender parole hearings to those under 23 years of age at the time of his or her controlling offense.

In this case, the record is silent regarding the issue of future youthful offender parole hearings. Anthony's trial counsel represented he had gone over the probation report with Anthony and submitted the matter on the record. The court found no circumstances in mitigation and multiple circumstances in aggravation, including Anthony's prior adult and juvenile record and the fact he was on probation when the crimes in this case were committed.

As to James, in addressing probation suitability, the probation report stated that while he was convicted of the attempted murder of only one victim, the incident involved multiple injuries to multiple victims. James's counsel disagreed with the inclusion of that information and requested it be stricken. He otherwise submitted the matter. The court found that James's limited prior criminal record was a factor in mitigation, and found as circumstances in aggravation that James engaged in violent conduct and that the victim suffered great bodily injury.

Our review of the probation reports reflects that Anthony and James were both born in California. Anthony graduated from high school and although James did not graduate, he reached 12th grade. The probation reports contain no information suggesting any sort of obviously relevant mental, emotional or physical problems. (See People v. Woods, supra, 19 Cal.App.5th at pp. 1084, 1089 [the defendant was intellectually disabled, and the probation report included medical and psychological information, and a summary of an evaluating psychiatrist's report].) The absence of such information is not definitive given the record's silence on the issue of youthful offender parole hearings, but it suggests there may not have been any then-existing age-related factors other than the fact of their ages, which is reflected in their probation reports. (Id. at p. 1088.)

Critically, we cannot say the failure to make an affirmative record on the issue constituted deficient performance. As the People argue, there may have been no information to develop or any such information may have been unfavorable. Trial counsel may have decided that raising the issue at all risked the development of an even more adverse record, to Anthony's and James's future detriment. This tactic would allow Anthony and James the future opportunity to present whatever evidence is then relevant, uninhibited by a trial court record on the matter. Under these circumstances, Anthony and James cannot affirmatively show deficient performance by counsel based on nothing more than a record that is silent with respect to factors that might be relevant at a future youthful offender parole hearing.

" '[A]n appellate court's ability to determine from the record whether an attorney has provided constitutionally deficient legal representation is in the usual case severely hampered by the absence of an explanation of an attorney's strategy.'" (People v. Johnson, supra, 62 Cal.4th at p. 653.) " 'In some cases, ... the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged. In such circumstances, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, these cases are affirmed on appeal.'" (People v. Bell (1989) 49 Cal.3d 502, 546 .) "The merits of such claims are more appropriately resolved, not on the basis of the appellate record, but rather by way of a petition for writ of habeas corpus." (People v. Johnson, supra, at p. 653; accord, People v. Salcido (2008) 44 Cal.4th 93, 172.)

3. Prejudice

Given our conclusion that Anthony and James failed to demonstrate error on direct appeal, we need not reach the prejudice prong. We observe, however, the absence of any argument that the error claimed resulted in prejudice. Anthony and James have the ability, at any time, to begin gathering whatever information they determine will be relevant to their future youthful offender parole hearings and they identify no relevant information that existed at the time of sentencing but was not made part of the record.

In making this observation, we do not dismiss the importance of making a record at the time of the offense. As the court explained, in Franklin:

"In directing the Board to 'give great weight to the diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner' (§ 4801, subd. (c)), the statutes also contemplate that information regarding the juvenile offender's characteristics and circumstances at the time of the offense will be available at a youth offender parole hearing to facilitate the Board [of Parole Hearings's] consideration. For example, section 3051, subdivision (f)(2) provides that '[f]amily members, friends, school personnel, faith leaders, and representatives from community-based organizations with knowledge about the individual before the crime ... may submit statements for review by the board.' Assembling such statements 'about the individual before the crime' is typically a task more easily done at or near the time of the juvenile's offense rather than decades later when memories have faded, records may have been lost or destroyed, or family or community members may have relocated or passed away. [Citation.] In addition, section 3051, subdivision (f)(1) provides that any 'psychological evaluations and risk assessment instruments' used by the Board in assessing

growth and maturity 'shall take into consideration ... any subsequent growth and increased maturity of the individual.' Consideration of 'subsequent growth and increased maturity' implies the availability of information about the offender when he was a juvenile." (Franklin, supra, 63 Cal.4th at pp. 283-284; accord, People v. Perez, supra, 3 Cal.App.5th at pp. 618-619.)

However, Anthony and James were not juveniles when they committed their controlling offenses and the procedural posture of their claim is one of IAC on direct appeal. Although they claim they did not have an adequate opportunity to make a record for future youthful offender parole hearings, their sentencings occurred after the relevant changes to sections 3051 and 4801 and we presume that trial counsel was aware of the law at the time, there has been no showing that counsel overlooked the existence of relevant youth-related factors, and there has been no attempt to demonstrate prejudice. Accordingly, we reject Anthony's and James's claims of IAC on direct appeal.

VI. Discretion to Strike Firearm and Serious Felony Conviction Enhancements

A. Background

Anthony and Sanchez were sentenced on August 22, 2016, at which time the trial court was required to impose the 25-year firearm enhancements under section 12022.53, former subdivision (h), and, limited to Sanchez, the five-year prior serious felony conviction enhancement under section 667, former subdivision (a)(1). However, effective January 1, 2018, section 12022.53, subdivision (h), was amended to permit a trial court, in furtherance of justice, to strike or dismiss an enhancement otherwise required to be imposed under the statute.³⁷ (Sen. Bill No. 620, ch. 682, § 2.) As well, effective January 1, 2019, sections 1385 and 667, subdivision (a)(1), were amended to permit a trial court, in the furtherance of justice, to strike or dismiss a five-year enhancement under subdivision (a)(1) of section 667. (Sen. Bill No. 1393, ch. 1013, §§ 1-2.)

37 Section 12022.53, subdivision (a), was amended effective January 1, 2019, but those amendments are not relevant in this case. (Sen. Bill No. 1494, ch. 423, § 114.)

The parties agree that the statutory amendments apply retroactively in this case. (People v. Garcia (2018) 28 Cal.App.5th 961, 971-973; People v. McDaniels (2018) 22 Cal.App.5th 420, 424-425 (McDaniels).) The focus of their disagreement is whether remand for resentencing is required.

B. Analysis

The People rely on People v. McVey (2018) 24 Cal.App.5th 405 (McVey), McDaniels, supra, 22 Cal.App.5th 420 and People v. Gutierrez (1996) 48 Cal.App.4th 1894 (Gutierrez) for the proposition that remand is not required where "the record shows that the trial court clearly indicated when it originally sentenced the defendant that it would not in any event have stricken [the] ... enhancement." (McDaniels, supra, at p. 425.) As discussed in McVey and McDaniels, the relevant proposition was articulated by the Court of Appeal in Gutierrez, in which the court was tasked with determining whether reconsideration of sentencing was required after the California Supreme Court held in People v. Superior Court (Romero) (1996) 13 Cal.4th 497 that trial courts have the discretion to strike prior convictions (Gutierrez, supra, at p. 1896).

The defendant in Gutierrez was 34 years old, and he attacked two men who were at least 30 years older than he was, resulting in convictions for robbery and attempted robbery. (Gutierrez, supra, 48 Cal.App.4th at p. 1896.) The trial court imposed a total aggregate sentence of 18 years 4 months and, during sentencing, the court stated the defendant "was 'clearly engaged in a pattern of violent conduct, which indicates he is a serious danger to society.'" (Ibid.) Further, in the context of deciding whether to impose two 1-year enhancements under section 667.5, former subdivision (b), the trial court stated, " '[T]here really isn't any good cause to strike it. There are a lot of reasons not to, and this is the kind of individual the law was intended to keep off the street as long as possible.'" (Gutierrez, supra, at p. 1896.)

Years later, in People v. Gutierrez (2014) 58 Cal.4th 1354, the California Supreme Court reiterated that " '[d]efendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that "informed discretion" than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record.' [Citation.] In such circumstances, we have held that the appropriate remedy is to remand for resentencing unless the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion.' " (Id. at p. 1391.)

Post-People v. Gutierrez, most of the published cases considering whether remand is appropriate to allow the trial court to exercise its discretion in the first instance have concluded that remand is appropriate, including McDaniels, cited by the People. (People v. Garcia, supra, 28 Cal.App.5th at p. 973 [Sen. Bill No. 1393]; People v. Almanza (2018) 24 Cal.App.5th 1104, 1110-1111 [Sen. Bill No. 620]; People v. Billingsley (2018) 22 Cal.App.5th 1076, 1081-1082 [Sen. Bill No. 620]; McDaniels, supra, 22 Cal.App.5th at pp. 427-428 [Sen. Bill No. 620]; cf. People v. Jones (2019) 32 Cal.App.5th 267, 274 [concluding trial court would not have dismissed prior serious felony conviction even if it had the discretion to do so and declining to remand matter in light of Sen. Bill No. 620].) In the minority is McVey, also cited by the People.

In that case, the Court of Appeal found that remand "would serve no purpose but to squander scarce judicial resources." (McVey, supra, 24 Cal.App.5th at p. 419, citing People v. Fuhrman (1997) 16 Cal.4th 930, 946 & People v. Gutierrez, supra, 48 Cal.App.4th at p. 1896.) The defendant in McVey shot a homeless man multiple times, killing the victim, and he received an aggregate sentence of 16 years eight months. (McVey, supra, at pp. 409-411.) The Court of Appeal noted that in imposing a 10-year term for the firearm enhancement, the trial court "described [the defendant's] attitude as 'pretty haunting' " and stated, " '[T]his is as aggravated as personal use of a firearm gets,' and 'the high term of 10 years on the enhancement is the only appropriate sentence on the enhancement.'"³⁸ (McVey, supra, at p. 419.)

38 The firearm enhancement at issue in McVey was section 12022.5, subdivision (a), which provides: "Except as provided in subdivision (b), any person who personally uses a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for 3, 4, or 10 years, unless use of a firearm is an element of that offense."

We do not minimize Anthony's and Sanchez's crimes in this case; the trial court described the crimes as "egregious," found no factors in mitigation and imposed the upper terms on the determinate counts. However, the disposition in McVey should not be divorced from its context: the victim was shot to death, the single enhancement imposed comprised the majority of the defendant's 16-year 8-month determinate prison sentence and, unlike in this case, the trial court expressly commented on its imposition of the aggravated firearm enhancement term. (McVey, supra, 24 Cal.App.5th at p. 419.) Notably, in People v. Almanza, the Court of Appeal initially affirmed judgment and declined to remand the matter to the trial court in light of Senate Bill No. 620. It then granted rehearing, concluding, "We are persuaded ... by McDaniels and defense counsel that speculation about what a trial court might do on remand is not 'clearly indicated' by considering only the original sentence. This is the case when there is a retroactive change in the law subsequent to the date of the original sentence that allows the trial court to exercise discretion it did not have at the time of sentence." (People v. Almanza, supra, 24 Cal.App.5th at pp. 1110-1111.) We concur.

Although the record indicates that the trial court was not sympathetic in this case, and not without good reason, it remains that at the time Anthony and Sanchez were sentenced, the court lacked the discretion to strike or stay either the firearm enhancement or, as to Sanchez, the prior serious felony conviction enhancement. Anthony and Sanchez are entitled to be sentenced in the exercise of informed discretion (People v. Gutierrez, supra, 58 Cal.4th at p. 1391), and remand is appropriate so that the trial court may exercise its discretion in the first instance in light of the amendments to section 12022.53 and, limited to Sanchez, sections 1385 and 667. We express no opinion on how the trial court should exercise that discretion on remand. (McDaniels, supra, 22 Cal.App.5th at p. 428.) VII. The Court's Imposition of the Fines, Fees, and Assessments

In supplemental briefing, Anthony and James, joined by Sanchez, seek relief from the court's orders at the sentencing hearing for them to pay restitution fines, fees and assessments.

Appellants argue the court's orders violated their due process rights because it imposed these amounts without determining whether each of them had the ability to pay the fines, fees, and assessments. Appellants acknowledge they did not object to these orders but argue they have not forfeited review because any objection would have been futile under the statutory and case law at that time, and the issue raises a purely legal question.

Appellants' constitutional arguments are based on People v. Dueñas (2019) 30 Cal.App.5th 1157, which was decided after their sentencing hearings and while this appeal was pending. Dueñas held that "due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant's present ability to pay" before it imposes any fines or fees. (Id. at p. 1164.)

As we recently explained in People v. Aviles (2019) 39 Cal.App.5th 1055, (Aviles), we disagree with Dueñas's due process analysis, and instead find it is more appropriate to review a defendant's constitutional challenge under the Eighth Amendment to the United States Constitution, to determine whether the court's imposition of fines, fees, and assessments was "grossly disproportional to the gravity of [the] defendant's offense" and thus "excessive." (United States v. Bajakajian (1998) 524 U.S. 321, 334 (Bajakajian).) As we will also explain, the total amount of the fines, fees, and assessments imposed upon each appellant in this case was not grossly disproportionate.

We also find that, to the extent appellants attempt to rely on Dueñas, the record shows any error is harmless because each of them has the ability to pay the amounts ordered in this case.

A. The Sentencing Hearing

Appellants were convicted and sentenced as follows:

1. James

James was convicted of the attempted premeditated murder of Mario (count 2) and sentenced to an indeterminate term of seven years to life.

The court ordered James to pay the statutory minimum restitution fine of $300 (§ 1202.4, subd. (b)) and imposed and suspended a $300 parole revocation fine (§ 1202.45).³⁹ It reserved an order for victim restitution in an amount to be determined (§ 1202.4, subd. (f)).

39 Section 1202.4, subdivision (b) mandates the court to impose a "separate and additional restitution fine" in "every case where a person is convicted of a crime," unless the court "finds compelling and extraordinary reasons for not doing so and states those reasons on the record." Upon conviction of a felony, the minimum fine is $300, and the maximum fine is $10,000. (§ 1202.4, subd. (b)(1).)
"The court shall impose the restitution fine unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record. A defendant's inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine. Inability to pay may be considered only in increasing the amount of the restitution fine in excess of the minimum fine pursuant to paragraph (1) of subdivision (b)...." (§ 1202.4, subd. (c), italics added.)
If the court sets the restitution fine in excess of the minimum amount, it shall consider "any relevant factors, including, but not limited to, the defendant's inability to pay, the seriousness and gravity of the offense and the circumstances of its commission, any economic gain derived by the defendant as a result of the crime, the extent to which any other person suffered losses as a result of the crime, and the number of victims involved in the crime..... Consideration of a defendant's inability to pay may include his or her future earning capacity. A defendant shall bear the burden of demonstrating his or her inability to pay. Express findings by the court as to the factors bearing on the amount of the fine shall not be required. A separate hearing for the fine shall not be required." (§ 1202.4, subd. (d), italics added.)

The court also ordered James to pay a court operations assessment of $40 (§ 1465.8, subd. (a)(1))⁴⁰, and a court facilities assessment of $30 (Gov. Code, § 70373)⁴¹, for a total of $370 in fines and fees.⁴² He did not object to the court's orders.

40 Section 1465.8, the court operations assessment, requires the court to impose an assessment of $40 on "every conviction for a criminal offense," with certain exceptions, "[t]o assist in funding court operations." (§ 1465.8, subd. (a)(1).) It does not refer to a defendant's ability to pay.

41 Government Code section 70373, the court facilities funding assessment, requires the court to impose an assessment on every criminal conviction, with certain exceptions, "[t]o ensure and maintain adequate funding for court facilities," in the amount of $30 for each misdemeanor or felony, and $35 for each infraction. (Gov. Code, § 70373, subd. (a)(1).) It does not refer to a defendant's ability to pay.

42 We presume James's later representation that the trial court imposed a $10,000 restitution fine against him, which conflicts with both his initial recitation of the fine and the record, is a scrivener's error.

2. Anthony

Anthony was convicted of the attempted premeditated murder of Mario (count 2) with gang and firearm enhancements; active participation in a criminal street gang (count 4); and being a felon in possession of a firearm (count 5) with a gang enhancement.

Anthony was sentenced to an indeterminate term of seven years to life for the attempted murder of Mario (count 2), plus 25 years to life for the firearm enhancement, for a total term of 32 years to life in prison.

The court ordered Anthony to pay the statutory minimum restitution fine of $300 (§ 1202.4, subd. (b)) and imposed and suspended a $300 parole revocation fine (§ 1202.45). The court reserved an order for victim restitution in an amount to be determined (§ 1202.4, subd. (f)). The court also imposed court operations assessments of $120 (§ 1465.8, subd. (a)), and court facilities assessments of $90 (Gov. Code, § 70373), for a total of $510 in fines and fees.⁴³ He did not object to the court's orders.

43 While the court stayed the terms imposed for counts 4 and 5 for Anthony, it was not required to also stay the court operations assessment (§ 1465.8) and the court facilities assessment (Gov. Code, § 70373) because those apply to each count of which a defendant is convicted. (People v. Alford (2007) 42 Cal.4th 749, 755-759; People v. Sencion (2012) 211 Cal.App.4th 480, 483-484; People v. Sharret (2011) 191 Cal.App.4th 859, 867-869.)

3. Sanchez

Sanchez was convicted of the attempted premeditated murder of Mario and the attempted murders of Adrianna and Baby Boy, with gang and firearm enhancements (counts 1-3); active participation in a criminal street gang (count 4); and being a felon in possession of a firearm with a gang enhancement (count 5). The court found he had a prior serious felony enhancement and prior strike conviction.

Sanchez was sentenced to a total indeterminate term of 105 years to life plus a determinate term of 46 years.

The court ordered Sanchez to pay the statutory minimum restitution fine of $300 and suspended the parole revocation fine (§ 1202.45). It reserved an order for victim restitution in an amount to be determined. (§ 1202.4, subd. (f).)

The court also imposed court operations assessments of $200 (§ 1465.8, subd. (a)), and court facilities assessments of $150 (Gov. Code, § 70373), for a total of $650 in fines and fees. He did not object to the court's orders.⁴⁴

44 The People's Supplemental Brief on the Dueñas issue erroneously states that great bodily injury enhancements were found true for Anthony and Sanchez. (Supp.RB 11-12) There were no separate great bodily injury enhancements found true in this case. However, the firearm enhancements found true for both Anthony and Sanchez, attached to their attempted murder convictions, alleged that the discharge of the firearm proximately caused great bodily injury to another person (§ 12022.53, subds. (d), (e)(1))

B. Modification After Reversal of Anthony's Conviction in Count 5

As explained above, we will reverse Anthony's conviction in count 5. The court imposed and stayed the term for count 5.

As a separate matter from appellants' Dueñas arguments, the court's order for Anthony to pay a total of $510 in fines, fees, and assessments must be modified because his conviction in count 5 is being reversed. The statutory calculations for the court operations and facilities assessments were based on Anthony's three felony convictions after the jury trial.

Since Anthony now has two felony convictions, the original court operations assessment of $120, calculated at $40 for each of his three convictions, must be reduced to $80. (§ 1465.8, subd. (a)(1).) The original court facilities assessments of $90, calculated at $30 for each of his three convictions, must be reduced to $60 (Gov. Code, § 70373). Anthony's statutory minimum restitution fine of $300 is not affected.

Thus, independent of any Dueñas arguments, the total amount of fines, fees, and assessments imposed for Anthony must be reduced from $510 to $440.

C. The Eighth Amendment

Appellants rely on Dueñas and People v. Castellano (2019) 33 Cal.App.5th 485 to argue the trial court violated their due process rights when it imposed the statutory minimum restitution fines, and the mandatory fees and assessments, without determining whether each of them had the ability to pay those amounts. Appellants assert this court must reverse and stay all amounts imposed because of the court's failure to make this determination.⁴⁵

45 As noted in Castellano, a bill was introduced in the Legislature after Dueñas was decided that "propose[d] the following factors be considered in determining a defendant's ability to pay: the defendant's present financial circumstances; whether the defendant is receiving any type of government benefits, including means-tested benefits; whether the defendant was represented by court-appointed counsel; the defendant's reasonably discernible future financial circumstances; the likelihood the defendant will be able to obtain employment within a six-month period from the date of the court's consideration of the issue; the amount of victim restitution ordered, if any; and any other factor that may bear upon the defendant's inability to pay. (Assem. Bill No. 927 (2019-2020 Reg. Sess.) § 1.)" (People v. Castellano, supra, 33 Cal.App.5th at p. 490, fn. 5.) While an amended version of the bill was passed by the Legislature, it was vetoed by the Governor on October 9, 2019.

As explained in Aviles, however, we believe Dueñas was wrongly decided when it developed a due process analysis to address the constitutional challenge raised by the defendant in that case. (Aviles, supra, 39 Cal.App.5th at pp. 1059-1060, 1061, 1068-1069.) Instead, we believe a constitutional challenge to the imposition of fines, fees, and assessments should be based on the prohibition against excessive fines contained in the Eighth Amendment to the United States Constitution, as applied to state action in Timbs v. Indiana (2019) ___ U.S. ___ . (Aviles, supra, 39 Cal.App.5th at pp. 1060, 1061, 1069-1070; see also People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1038 (conc. opn. of Benke, J.); People v. Kopp (2019) 38 Cal.App.5th 47, 99-100 (conc. opn. of Benke, J.), petn. for review granted, Nov. 13, 2019 (S0257844); and People v. Santos (2019) 38 Cal.App.5th 923, 936-940 (dis. opn. of Elia, J.).)

"The touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality: The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish. [Citations.] [A] punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant's offense." (Bajakajian, supra, 524 U.S. at p. 334.)

"The California Supreme Court has summarized the factors in Bajakajian to determine if a fine is excessive in violation of the Eighth Amendment: '(1) the defendant's culpability; (2) the relationship between the harm and the penalty; (3) the penalties imposed in similar statutes; and (4) the defendant's ability to pay. [Citations.]' (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. [(2005)] 37 Cal.4th [707,] 728 Gutierrez, supra, 35 Cal.App.5th at p. 1040 (conc. opn. of Benke, J.).) While ability to pay may be part of the proportionality analysis, it is not the only factor.

(Bajakajian, supra, 524 U.S. at pp. 337-338)." (Aviles, supra, 39 Cal.App.5th at p. 1070.)

We may review de novo whether a fine is excessive under the Eighth Amendment. (Bajakajian, supra, 524 U.S. at p. 336, fn. 10.)

Appellants assert that, to the extent the Eighth Amendment applies in this case, the fines and fees constitute punishment and are excessive since they lack the ability to pay these amounts. However, the ability to pay is not the only factor under the Eighth Amendment's proportionality analysis. (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co., supra, 37 Cal.4th at p. 728; Bajakajian, supra, 524 U.S. at pp. 337-338.)

As detailed above, appellants confronted Mario B. and his pregnant wife, and Sanchez opened fire on them at close range in revenge for an incident earlier in the day, when Mario tried to stop James from fighting with Mario's young friend, and Adriana yelled at James. Based on the factors in Bajakajian, we find as to each appellant that the court's imposition of the statutory minimum restitution fines and the mandatory fees and assessments, based on their convictions for attempted premeditated murder and other felonies, was not grossly disproportionate to each man's level of culpability in this case involving senseless violence, and thus not excessive under the Eighth Amendment.⁴⁶

46 As we noted in Aviles, "[i]f the probationer in Dueñas had raised a constitutional challenge based on the Eighth Amendment, it would have surely led to the trial court's conclusion that the fines and fees imposed in that case were grossly disproportionate and excessive given the undisputed facts about the probationer's dire financial circumstances and minimal criminal culpability. (Bajakajian, supra, 524 U.S. at p. 334; People ex rel. Lockyer v. R.J. Reynolds Tobacco Co., supra, 37 Cal.4th at p. 728 ...)." (Aviles, supra, 39 Cal.App.5th at p. 1072, fn. 28.)

D. Forfeiture

Turning to appellants' issues based on Dueñas, the People assert that appellants forfeited their appellate arguments about their alleged inability to pay because they failed to object to the court's orders for them to pay the fines, fees, and assessments at their sentencing hearing.

1. Question of Law

Appellants argue they have not forfeited their due process arguments under Dueñas because they are not raising a question of fact but instead a question of law - that the sentencing court issued unauthorized sentences when it imposed the fees and fines without finding each appellant had the ability to pay these amounts, and thus violated their constitutional rights.

An exception to the rule of forfeiture is when a defendant raises constitutional claims on appeal that "involve pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court. [Citations.]" (People v. Welch (1993) 5 Cal.4th 228, 235.) "In the case of an asserted legal error, '[a]ppellate courts are willing to intervene in the first instance because such error is "clear and correctable" independent of any factual issues presented by the record at sentencing.' [Citation.]" (People v. McCullough (2013) 56 Cal.4th 589, 594.)

Appellants have not raised a pure question of law based on undisputed facts, but instead assert the People failed to present evidence of their ability to pay. Appellants request that this court reverse and stay the orders, presumably based on factual determinations of their alleged inability to pay from a silent record. "[F]act-specific errors ... are not readily susceptible of correction on appeal." (People v. Scott (1994) 9 Cal.4th 331, 355.) "Defendant may not 'transform ... a factual claim into a legal one by asserting the record's deficiency as a legal error.' [Citation.] By 'failing to object on the basis of his [ability] to pay,' defendant forfeits both his claim of factual error and the dependent claim challenging 'the adequacy of the record on that point.' [Citations.]" (People v. McCullough, supra, 56 Cal.4th at p. 597; People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153.)

Appellants further assert that since they were each represented by court-appointed attorneys at their trial, their indigency and inability to pay present a question of law. However, an indigent defendant's inability to pay the costs of appointed counsel is based on an entirely separate statutory scheme, which is not applicable or determinative of whether that same defendant has the ability to pay restitution fines and fees. (§ 987.8; People v. Rodriguez (2019) 34 Cal.App.5th 641, 646-647; People v. Douglas (1995) 39 Cal.App.4th 1385, 1397.)

2. Futility

Appellants argue that they did not forfeit review of their due process objections because Dueñas had not been decided at the time of their sentencing hearing and the ruling was not foreseeable. Appellants contend they did not have the statutory right to raise inability to pay objections, and any such objection would have been futile based on the existing law at the time of their sentencing hearing.

The California Supreme Court has repeatedly held that when a court imposes fees and/or fines pursuant to statutes that specifically include ability to pay findings, the defendant must raise an objection at the sentencing hearing or forfeit the appellate claim that the court failed to make such a finding or there was no evidence of the defendant's ability to pay the imposed amounts. (See, e.g., People v. Case (2018) 5 Cal.5th 1, 52-53; People v. Gamache (2010) 48 Cal.4th 347, 409; People v. Avila (2009) 46 Cal.4th 680, 728-729.)

However, "[r]eviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence. [Citations.]" (People v. Welch, supra, 5 Cal.4th at pp. 237-238.)

We find that to the extent Dueñas applies to this case, appellants did not forfeit appellate review of the issue since they lacked the statutory ability to object to the fines, fees, and assessments imposed at the sentencing hearing. Section 1202.4, subdivisions (c) and (d) only permit a party to raise an ability to pay objection when the court imposes a restitution fine above the statutory minimum. The court ordered each appellant to pay the statutory minimum restitution fine of $300 under section 1202.4, subdivision (b). Since the court imposed the minimum restitution fines, appellants lacked the statutory ability to object under the governing law at the time of their sentencing hearing. (Cf. People v. Frandsen, supra, 33 Cal.App.5th at pp. 1153-1154.) In addition, the statutes that authorize the imposition of the court operations and facilities fees and assessments do not permit a party to make any kind of ability to pay objection. (§ 1465.8, subd. (a)(1); Gov. Code, § 70373, subd. (a)(1).)

E. Harmless Error; Ability to Pay

Even if we agreed with Dueñas and Castellano and found appellants did not waive their objections to the court's failure to conduct a hearing on their ability to pay, we would still reject their constitutional claims and find any error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Jones (2019) 36 Cal.App.5th 1028, 1030-1031; People v. Johnson (2019) 35 Cal.App.5th 134, 139-140.)

" 'Ability to pay does not necessarily require existing employment or cash on hand.' [Citation.] '[I]n determining whether a defendant has the ability to pay a restitution fine, the court is not limited to considering a defendant's present ability but may consider a defendant's ability to pay in the future.' [Citation.] This include[s] the defendant's ability to obtain prison wages and to earn money after his release from custody. [Citation.]" (People v. Ramirez (1995) 39 Cal.App.4th 1369, 1377; People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837; People v. Frye (1994) 21 Cal.App.4th 1483, 1487.)

We can infer from the instant record that James, Sanchez, and Anthony each have the ability to pay the aggregate amounts of respectively, $370, $650, and $440 (as modified) from probable future wages, including prison wages. (Aviles, supra, 39 Cal.App.5th at p. 1076; People v. Douglas, supra, 39 Cal.App.4th at p. 1397.) Prison wages range from $12 to $56 per month, depending on the prisoner's skill level. (Cal. Code. Regs., tit. 15, § 3041.2; Cal. Dept. of Corrections and Rehabilitation, Adult Institutions Operations Manual (2019), art. 12 (Inmate Pay), §§ 51120.1, 51120.6, pp. 354-356.) The state may garnish between 20 and 50 percent of those wages to pay the section 1202.4, subdivision (b) restitution fine. (§ 2085.5, subds. (a), (c); People v. Ellis (2019) 31 Cal.App.5th 1090, 1094.)

At the time of the sentencing hearing, James was 22 years old and had previously been employed as a security guard and a delivery driver for a furniture company. Anthony was 23 years old. He had attended barber school and earned money by cutting hair. He had also worked for a trucking company. Sanchez was 25 years old. He had previously been employed as a welder's helper and worked for a flooring company.

There is nothing in the record to show that any of the appellants would be unable to satisfy the fines and fees imposed by the court while they served their prison terms.

Appellants argue that even if they are "lucky enough" to receive jobs in prison, they will be earning minimal wages and the deduction of the court-ordered fines, fees, and assessments from prison wages would constitute additional punishment while in custody. The California Supreme Court has rejected similar arguments based on an inmate's inability to obtain a prison job. In People v. Potts (2019) 6 Cal.5th 1012, the trial court ordered a defendant convicted of capital murder to pay the statutory maximum restitution fine of $10,000, partially based on the probation officer's erroneous statement that a condemned inmate would be assigned a job in prison. Potts clarified that a defendant sentenced to death would not be permitted to work but found the court's error was harmless beyond a reasonable doubt and the court's restitution order was otherwise lawful. (Id. at pp. 1055-1056.) The defendant's alleged inability to pay because he lacked a prison job would be "blunted by the fact that he would retain at least some of the money sent to him" by family and friends. (Id. at p. 1056.) The trial court was "permitted to conclude that the monetary burden the restitution fine imposed on defendant was outweighed by other considerations," such as the seriousness and gravity of the offense, and the circumstances of its commission. (Id. at pp. 1056-1057.)

While it may take appellants some time to pay the amounts imposed in this case, that circumstance does not support their inability to make payments on these amounts from either prison wages or monetary gifts from family and friends during their prison sentences. (See, e.g., People v. Lewis (2009) 46 Cal.4th 1255, 1321; People v. DeFrance (2008) 167 Cal.App.4th 486, 505.)

We thus conclude that based on the record before this court, appellants have the ability to pay the statutory minimum restitution fines and the mandatory fees and assessments they have been ordered to pay. Appellants' circumstances in this case are vastly different from the probationer's situation in Dueñas. Each appellant has showed his past ability to earn income and will have sufficient time to pay the amounts ordered while serving their lengthy sentences.⁴⁷

47 As explained above, we are reversing Anthony's conviction in count 5 for being a felon in possession; his aggregate prison sentence will not change since the term imposed for count 5 was stayed. However, we are also remanding for the court to decide whether to exercise its discretion to strike the firearm enhancements for Anthony and Sanchez; and whether to strike the prior serious felony enhancement for Sanchez.
Even if the court decides to exercise its discretion and strikes one or more of those enhancements, both Anthony and Sanchez still face lengthy prison terms that are sufficient to indicate their ability to pay the amounts ordered in this case.

DISPOSITION

Anthony's conviction for being a felon in possession of a firearm (count 5), violating section 29800, subdivision (a)(1), is reversed and the matter remanded for resentencing. As a result, on remand, the court must reduce the amount of the court operations assessments imposed upon Anthony from $120 to $80 (§ 1465.8, subd. (a)(1)) and the court facilities assessments from $90 to $60 (Gov. Code, § 70373). The restitution fine of $300 remains the same (§ 1202.4, subd. (b)). The total amount of fines, fees, and assessments imposed upon Anthony must be modified from $510 to $440.

As to Anthony and Sanchez, the matter is further remanded to the trial court to exercise its discretion under sections 12022.53, subdivision (h), as amended by Senate Bill No. 620 (Stats. 2017, ch. 682, § 2, eff. Jan. 1, 2018); and as to Sanchez, the matter is remanded to the trial court to exercise its discretion under sections 667, subdivision (a), and 1385, subdivision (b), as amended by Senate Bill No. 1393 (Stats. 2018, ch. 1013, §§ 1, 2, eff. Jan. 1, 2019). Following exercise of that discretion, the trial court shall resentence Anthony and Sanchez accordingly.

The trial court shall issue amended abstracts of judgment as necessitated by its determinations on remand and transmit certified copies to the appropriate authorities.

In all other respects, the judgment is affirmed - including all fines, fees, and assessments imposed by the trial court for James and Sanchez and as modified herein for Anthony.

/s/_________

POOCHIGIAN, J. I CONCUR: /s/_________
LEVY, Acting P.J. MEEHAN, J., Dissenting.

I agree with the majority that because appellants were sentenced prior to the decision in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) and they lacked the statutory ability to object to the fines, fees and assessments, they did not forfeit their claim of inability to pay. (People v. Santos (2019) 38 Cal.App.5th 923, 931-933; People v. Jones (2019) 36 Cal.App.5th 1028, 1031-1034; People v. Johnson (2019) 35 Cal.App.5th 134, 137-138; People v. Castellano (2019) 33 Cal.App.5th 485, 488-489 (Castellano); contra, People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154-1155 [disagreeing Dueñas decision was unforeseeable].) However, I disagree both that appellants are constrained to seek relief under the excessive fines clause of the Eighth Amendment (People v. Aviles (2019) 39 Cal.App.5th 1055, 1069 (Aviles)), and that the record in this case permits the conclusion that any due process error advanced under Dueñas is harmless (id. at pp. 1075-1077; People v. Johnson, supra, at pp. 139-140). As to Anthony and Sanchez, this matter is being remanded for a resentencing hearing and, therefore, I would deny their claim as moot given they will have the opportunity to raise the issue of their ability to pay fines, fees and assessments during resentencing. As to James, given that he did not forfeit this claim, I would remand the matter to permit him to raise the issue of his ability to pay the fees, fines and assessments. Accordingly, I respectfully dissent.

I. Aviles

I agree that the imposition of an allegedly unconstitutional fine may be challenged under the excessive fines clause of both the United States Constitution and the California Constitution, but I do not agree that this necessarily supplants a criminal defendant's due process or equal protection challenge advanced under Dueñas. The majority relies on Aviles, a decision by a different panel of this court, which in turn relied on the concurring opinion in People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1040 (conc. opn. of Benke, J.) (Gutierrez), for the proposition that the inability to pay is more properly analyzed under the Eighth Amendment's excessive fines clause. (Aviles, supra, 39 Cal.App.5th at pp. 1069-1070; contra, People v. Belloso (2019) ___ Cal.App.5th ___, ___ [2019 Cal.App. Lexis 1181, *21-23] [disagreeing with Aviles].)

The Aviles court stated, "The California Supreme Court has summarized the factors in Bajakajian to determine if a fine is excessive in violation of the Eighth Amendment: '(1) the defendant's culpability; (2) the relationship between the harm and the penalty; (3) the penalties imposed in similar statutes; and (4) the defendant's ability to pay.' [Citations.]" (Aviles, supra, 39 Cal.App.5th at p. 1070, quoting People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728; accord, Gutierrez, supra, 35 Cal.App.5th at pp. 1040-1041 (conc. opn. of Benke, J.).) However, United States v. Bajakajian, on which the California Supreme Court expressly relied, did not recognize ability to pay as a factor in its excessive fines clause analysis and instead noted, "Respondent does not argue that his wealth or income are relevant to the proportionality determination or that full forfeiture would deprive him of his livelihood, [citation], and the District Court made no factual findings in this respect." (United States v. Bajakajian (1998) 524 U.S. 321, 339-340, fn. 15 (Bajakajian).) Recently, the United States Supreme Court recognized in Timbs v. Indiana (2019) ___ U.S. ___, ___ [139 S.Ct. 682, 688] that Bajakajian took no position on the issue, and the United States Court of Appeals for the District of Columbia also recently observed, "The Excessive Fines Clause does not make obvious whether a forfeiture is excessive because a defendant is unable to pay, and '[n]either the Supreme Court nor this court has spoken' on that issue." (United States v. Bikundi (2019) 926 F.3d 761, 796, per curiam (Bikundi).)⁴⁸

48 In Bikundi, the court further noted that "most circuits assess proportionality without considering a defendant's ability to pay ...." (Bikundi, supra, 926 F.3d at p. 796, fn. 5; but see United States v. Levesque (2008) 546 F.3d 78, 84-85; United States v. Hines (1996) 88 F.3d 661, 664.)

In Bajakajian, which involved a fine of $5,000 and the forfeiture of $15,000, the court explained that "[t]he touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality: The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish." (Bajakajian, supra, 524 U.S. at p. 334.) Courts "must compare the amount of the forfeiture to the gravity of the defendant's offense. If the amount of the forfeiture is grossly disproportional to the gravity of the defendant's offense, it is unconstitutional." (Id. at pp. 336-337.) Given that many criminal cases involve grave and sometimes heinous offenses, I am unpersuaded that limiting criminal defendants to redress under the excessive fines clause will necessarily suffice to redress the constitutional harm with which Dueñas was concerned: the fundamental unfairness that flows from imposing fees and fines on criminal defendants who are unable to pay. (Dueñas, supra, 30 Cal.App.5th at pp. 1168, 1171.) In light of the state of the law at the time appellants were sentenced, I believe it is more appropriate to permit the parties and the trial court the opportunity to address these issues in the first instance on remand rather than restrict appellants' rights on review on this undeveloped record.

II. Dueñas

A. Background

The defendant in Dueñas was a homeless probationer who suffered from cerebral palsy and was unable to work. (Dueñas, supra, 30 Cal.App.5th at p. 1160.) Her driver's license was suspended after she failed to pay citations she received as a teenager. (Id. at p. 1161.) She was then convicted of a series of misdemeanors for driving with a suspended license and accrued debt from related fees. (Ibid.) Upon her fourth conviction for driving with a suspended license, she argued due process entitled her to a hearing on her ability to pay before the fees were imposed. (Id. at p. 1162.) The trial court held an ability-to-pay hearing and determined Dueñas was indigent and unable to pay public defender attorney fees. (Id. at p. 1163; see Pen. Code, § 987.8, subd. (b)⁴⁹ [requiring court to find present ability to pay before ordering the defendant to pay all or part of the cost of legal assistance].) However, the trial court rejected the argument that due process and equal protection required the court to consider ability to pay in imposing the remaining fines and fees.⁵⁰ (Dueñas, supra, at p. 1163.)

49 Penal Code section 987.8, subdivision (b), provides: "If a defendant is provided legal assistance, either through the public defender or private counsel appointed by the court, upon conclusion of the criminal proceedings in the trial court or upon the withdrawal of the public defender or appointed private counsel, the court may, after notice and a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost thereof. The court may, in its discretion, hold one such additional hearing within six months of the conclusion of the criminal proceedings. The court may, in its discretion, order the defendant to appear before a county officer designated by the court to make an inquiry into the ability of the defendant to pay all or a portion of the legal assistance provided." (Italics added.) The statute specifically defines "ability to pay" to include "[t]he defendant's present financial position" (id., subd. (g)(2)(A)) and "[t]he defendant's reasonably discernible future financial position," but "[i]n no event shall the court consider a period of more than six months from the date of the hearing for purposes of determining the defendant's reasonably discernible future financial position" (id., subd. (g)(2)(B)).

50 In Dueñas, the trial court imposed a $30 court facilities assessment, a $40 court operations assessment and, under the version of Penal Code section 1202.4 in effect at the time of Dueñas's sentencing, a restitution fine in the then-minimum amount of $150. (Dueñas, supra, 30 Cal.App.5th at p. 1162.)

On appeal, Division Seven of the Second District Court of Appeal concluded that due process "requires the trial court to conduct an ability to pay hearing and ascertain a defendant's present ability to pay before it imposes court facilities and court operations assessments under Penal Code section 1465.8 and Government Code section 70373." (Dueñas, supra, 30 Cal.App.5th at p. 1164.) Stating "[w]e interpret statutes to avoid serious constitutional questions when such interpretations are fairly possible" (id. at p. 1172), the panel also held that "although Penal Code section 1202.4 bars consideration of a defendant's ability to pay unless the judge is considering increasing the fee over the statutory minimum, the execution of any restitution fine imposed under this statute must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine" (id. at p. 1164).

The appellate court in Dueñas grounded its decision in longstanding and general principles of equal protection and due process as set forth in Griffin v. Illinois (1956) 351 U.S. 12 (Griffin), In re Antazo (1970) 3 Cal.3d 100 (Antazo) and Bearden v. Georgia (1983) 461 U.S. 660 (Bearden).⁵¹ (Dueñas, supra, 30 Cal.App.5th at pp. 1166-1169; accord, People v. Belloso, supra, ___ Cal.App.5th at p. ___ [2019 Cal. App. Lexis 1181, *14]; contra, People v. Hicks (2019) 40 Cal.App.5th 320, 329, review granted Nov. 26, 2019, No. S258946 [concluding Dueñas wrongly decided].) Dueñas observed that "a state may not inflict punishment on indigent convicted criminal defendants solely on the basis of their poverty" (Dueñas, supra, at p. 1166), and "[i]mposing unpayable fines on indigent defendants is not only unfair, it serves no rational purpose, fails to further the legislative intent, and may be counterproductive" (id. at p. 1167). While some distinctions may be drawn between those cases and the fees and fines at issue in Dueñas, the court rejected the People's argument that Griffin, Antazo and Bearden were inapposite because they involved defendants facing imprisonment. (Dueñas, supra, at pp. 1167-1168.) Citing Mayer v. City of Chicago (1971) 404 U.S. 189, 196-197, the court stated "the principles of Griffin and its progeny are [not] restricted to instances in which a defendant is subject to imprisonment" and pointed out "the People do not dispute that, whether considered as a criminal penalty or as a civil judgment, Dueñas faces significant consequences if she blamelessly fails to pay her assessments." (Dueñas, supra, at p. 1168.) As such, the court concluded, the imposition of court fee assessments or restitution fines on indigent litigants without an ability-to-pay hearing is fundamentally unfair within the meaning of the due process clauses of the federal and state Constitutions.⁵² (Dueñas, supra, at pp. 1168, 1171.)

51 In Griffin, the petitioners were denied appellate review because they could not afford the cost of the transcripts necessary to perfect their appeal of nonconstitutional trial errors. (Griffin, supra, 351 U.S. at pp. 15-16.) The United States Supreme Court held, based on equal protection and due process principles, that indigent litigants are protected from invidious discrimination (id. at p. 18), and "[d]estitute defendants must be afforded as adequate appellate review as defendants who have money enough to buy transcripts" (id. at p. 19).
In Antazo, the California Supreme Court cited Griffin for the proposition that "justice must be administered to all persons equally" (Antazo, supra, 3 Cal.3d at p. 109), but recognized that "the 'concept of the equal protection of the laws compels recognition of the proposition that persons similarly situated with respect to the legitimate purpose of the law receive like treatment'" (id. at p. 110). The defendant in that case was imprisoned solely based upon his inability to pay the fine and penalty assessment that were conditions of probation. (Id. at p. 115.) The court concluded that equal protection requires that "an indigent who would pay his fine if he could, must be given an option comparable to an offender who is not indigent." (Id. at p. 116.)
In Bearden, the United States Supreme Court held that "in revocation proceedings for failure to pay a fine or restitution, a sentencing court must inquire into the reasons for the failure to pay. If the probationer willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay, the court may revoke probation and sentence the defendant to imprisonment within the authorized range of its sentencing authority. If the probationer could not pay despite sufficient bona fide efforts to acquire the resources to do so, the court must consider alternative measures of punishment other than imprisonment. Only if alternative measures are not adequate to meet the State's interests in punishment and deterrence may the court imprison a probationer who has made sufficient bona fide efforts to pay. To do otherwise would deprive the probationer of his conditional freedom simply because, through no fault of his own, he cannot pay the fine. Such a deprivation would be contrary to the fundamental fairness required by the Fourteenth Amendment." (Bearden, supra, 461 U.S. at pp. 672-673, fn. omitted.)

52 The touchstone of due process is fundamental fairness (Bearden, supra, 461 U.S. at p. 666, fn. 7) and, in Bearden, the United States Supreme Court stated, "A due process approach has the advantage in this context of directly confronting the intertwined question of the role that a defendant's financial background can play in determining an appropriate sentence." (Id. at p. 666, fn. 8.)

Subsequently, a different panel of the same court that decided Dueñas rejected the argument that Dueñas places a burden on the People to prove a defendant's ability to pay in the first instance. (Castellano, supra, 33 Cal.App.5th at pp. 489-490 (Castellano).) Castellano clarifies that the defendant in Dueñas had demonstrated her inability to pay in the trial court and, only in that circumstance, had the appellate court concluded fees and assessments could not constitutionally be assessed and restitution must be stayed until the People proved ability to pay. (Castellano, supra, at p. 490.) Thus, "a defendant must in the first instance contest in the trial court his or her ability to pay the fines, fees and assessments to be imposed and at a hearing present evidence of his or her inability to pay the amounts contemplated by the trial court." (Ibid.)

Since then, a split of authority has developed regarding whether the claim of inability to pay should be raised under the excessive fines clause, as discussed, ante (People v. Kopp (2019) 38 Cal.App.5th 47, 96-97, review granted Nov. 13, 2019, No. S257844 [fines]; Aviles, supra, 39 Cal.App.5th at pp. 1069-1070 [fines, fees & assessments]), and whether the Dueñas case was correctly decided (e.g., People v. Belloso, supra, ___ Cal.App.5th at p. ___ [2019 Cal.App. Lexis 1181, *12-13] [reaffirming Dueñas analysis & rejecting Aviles analysis]; People v. Hicks, supra, 40 Cal.App.5th at p. 329, review granted [Dueñas was wrongly decided]). The California Supreme Court has since granted review of the issue.

B. Remand Appropriate on this Record

The People do not argue in this case that Dueñas was wrongly decided. They concede that "Dueñas addresses important constitutional concerns that may arise when the criminal justice system imposes penal consequences on a defendant for his or her inability to pay court-ordered assessments and fines," and "[t]he criminal justice system should not be blind to the consequences that monetary assessments may have for indigent defendants, and constitutional concerns may arise due to their lack of wealth." Given that the parties did not have the benefit of Dueñas at the time of sentencing and appellants did not forfeit their claim, I would accept the People's concession and allow appellants to raise the issue in the trial court on remand, where they will bear the burden of both demonstrating a harm of constitutional magnitude and making a record regarding their alleged inability to pay the fines, fees and assessments.

Dueñas involved a detailed record regarding the legal proceedings that began when Dueñas was a teenager and culminated in the situation confronted by the Court of Appeal. Dueñas is therefore distinguishable on the issue of burden. Subsequently, in Castellano, the court clarified that the holding in Dueñas was informed by its facts: "Our holding ... that the fees and assessments could not constitutionally be assessed and that execution of the restitution fine had to be stayed was based on the trial court's uncontested finding that Dueñas was unable to pay the amounts imposed." (Castellano, supra, 33 Cal.App.5th at p. 490.)

As previously set forth, Castellano explained, "Consistent with Dueñas, a defendant must in the first instance contest in the trial court his or her ability to pay the fines, fees and assessments to be imposed and at a hearing present evidence of his or her inability to pay the amounts contemplated by the trial court. In doing so, the defendant need not present evidence of potential adverse consequences beyond the fee or assessment itself, as the imposition of a fine on a defendant unable to pay it is sufficient detriment to trigger due process protections. (Dueñas, supra, 30 Cal.App.5th at pp. 1168-1169.) The trial court then must consider all relevant factors in determining whether the defendant is able to pay the fines, fees and assessments to be imposed. Those factors may include, but are not limited to, potential prison pay during the period of incarceration to be served by the defendant. If the trial court determines a defendant is unable to pay, the fees and assessments cannot be imposed; and execution of any restitution fine imposed must be stayed until such time as the People can show that the defendant's ability to pay has been restored. (Dueñas, at pp. 1168-1169, 1172.)." (Castellano, supra, 33 Cal.App.5th at p. 490, fn. omitted; accord, People v. Belloso, supra, ___ Cal.App.5th at p. ___ [2019 Cal.App. Lexis 1181, *25-26.)

With respect to the imposition of fees, Dueñas referred to a defendant's "present ability to pay." (Dueñas, supra, 30 Cal.App.5th at p. 1164, italics added.) I reiterate that Dueñas involved a detailed record regarding Dueñas's economic situation: she and her husband were homeless and had two children they were unable to support fully on the government assistance received, her husband was unemployed other than occasional short-term construction work, and she had dropped out of high school and was unemployed as a result of a disability. (Id. at pp. 1160-1161.) Moreover, the trial court already determined that Dueñas was unable to pay. Thus, the "present ability" language in Dueñas should not be divorced from the facts. Indeed, Castellano subsequently rejected the defendant's argument that the People had to prove his present ability to pay and in addition to clarifying that the burden of presenting evidence of inability to pay lies in the first instance with the defendant, the court included in its discussion of relevant factors for the trial court to consider "potential prison pay during the period of incarceration to be served by the defendant." (Castellano, supra, 33 Cal.App.5th at p. 490, fn. omitted; accord, People v. Santos, supra, 38 Cal.App.5th at p. 934; People v. Kopp, supra, 38 Cal.App.5th at p. 96, review granted.)

The United States Supreme Court has recognized that "[t]he State ... has a fundamental interest in appropriately punishing persons—rich and poor—who violate its criminal laws. A defendant's poverty in no way immunizes him from punishment." (Bearden, supra, 461 U.S. at p. 669, italics added; see People v. Lewis (2009) 46 Cal.4th 1255, 1321 ["[The] defendant's assertion that he was unable to pay the fine did not compel the court to impose a lesser fine."].) Discretion to determine an appropriate fine amount rests with the trial court and the court is free to consider, among other factors, any money received by appellants, be it in the form of prison wages or gifts. (People v. Potts (2019) 6 Cal.5th 1012, 1055-1056 [concluding trial court could lawfully impose $10,000 restitution fine despite condemned inmate's categorical ineligibility to earn prison wages & his receipt of only occasional small gifts of money from family, & rejecting argument "that a fine is automatically invalid if a defendant is unable to pay it"].)

Here, the People argue that because appellants are serving lengthy prison terms and there is no indication they are unable to perform prison work, they presumably have the ability to satisfy their debt through future prison wages, and the majority agrees. (See Pen. Code, §§ 2700, 2801.) While there is ample authority supporting the proposition that prisoners are able to pay a restitution fine out of future prison wages (People v. Santos, supra, 38 Cal.App.5th at p. 934; People v. Kopp, supra, 38 Cal.App.5th at p. 96, review granted; People v. Jones, supra, 36 Cal.App.5th at p. 1035; People v. Douglas (1995) 39 Cal.App.4th 1385, 1397; People v. Gentry (1994) 28 Cal.App.4th 1374, 1377; People v. Frye (1994) 21 Cal.App.4th 1483, 1487), I find reliance on that proposition purely speculative at this juncture given the absence of a record on the issue and the fact that not all inmates are eligible for paid positions, which are considered a privilege and which are accompanied by various restrictions and requirements (Cal. Code Regs., tit. 15, §§ 3040, 3041.1). The majority's reliance on gifts from family and friends during appellants' imprisonment is equally speculative on the present record. I would remand the matter to allow the parties and the trial court to address these issues in the first instance given the changes in the law that developed after appellants were sentenced in 2016.

On these grounds, I respectfully dissent from the majority's conclusions that appellants are confined to seeking redress under the excessive fines clause of the Eighth Amendment and that any due process error under Dueñas is harmless.

/s/_________

MEEHAN, J.