Opinion
F071866
04-30-2018
THE PEOPLE, Plaintiff and Respondent, v. ESTEVEN RODRIGUEZ, Defendant and Appellant.
Cara DeVito, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, Eric L. Christoffersen, and Catherine Chatman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. MCR046075)
OPINION
APPEAL from a judgment of the Superior Court of Madera County. Dale J. Blea, Judge. Cara DeVito, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, Eric L. Christoffersen, and Catherine Chatman, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant Esteven Rodriguez was convicted at the conclusion of a jury trial on March 19, 2015, of the first degree murder of Drakkar Lewis (Pen. Code, § 187, subd. (a); count 1), assault on Celeste M. with a firearm (§ 245, subd. (a)(2); count 2), possession of a firearm by a convicted felon (§ 29800, subd. (a)(1); count 3), and possession of ammunition by a person prohibited from possessing a firearm (§ 30305, subd. (a)(1); count 4). The jury found true allegations in count 1 that defendant personally used a firearm causing the victim's death (§ 12022.53, subd. (d)) and in count 2 that defendant personally used a firearm (§ 12022.5, subd. (a)(1)). The jury also found true enhancements in counts 1 and 2 that defendant committed those offenses for the benefit or at the direction of active participation in a criminal street gang (§ 186.22, subd. (b)(1)(C)).
Unspecified statutory references are to the Penal Code.
Allegations pursuant to subdivisions (b) and (c) of section 12022.53 were also found true but the trial court stayed defendant's sentences on those allegations.
On June 22, 2015, the trial court sentenced defendant on count 1 for first degree murder to a prison term of 25 years to life, with a consecutive enhancement of 25 years to life for the section 12022.53, subdivision (d) gun use enhancement. The gang penalty provision applicable to count 1 requires defendant to serve a minimum of 15 years in prison prior to eligibility for parole (§ 186.22, subd. (b)(5)). The court sentenced defendant on count 2 for assault with a firearm to the upper term of four years. The court imposed a consecutive term of 10 years for the gang enhancement and imposed and stayed defendant's sentence for the section 12022.5, subdivision (a)(1) gun use enhancement on count 2. The court imposed two consecutive prison terms of eight months on counts 3 and 4.
On appeal, defendant contends the People failed to prove sufficient ties between the alleged criminal street gang subsets and the larger Norteño criminal street gang pursuant to the California Supreme Court's decision on August 27, 2015, in People v. Prunty (2015) 62 Cal.4th 59 (Prunty). The People reply there was sufficient evidence adduced at trial to establish the link between the Norteño criminal street gang and its alleged subsets. The parties have also filed supplemental briefing on the effect of Senate Bill No. 620 (2017-2018 Reg. Sess.), which amended sections 12022.5 and 12022.53 to give the trial court the discretion to strike or dismiss gun use enhancements. We reverse the gang enhancements because the evidence did not meet the requirements set forth in Prunty, and we remand for resentencing. At resentencing, the trial court may consider whether to impose or to strike the gun use enhancements under the discretion granted by the new law.
FACTS
Previous Incident
During the early morning hours of March 30, 2013, the Madera County Sheriff's Department received reports of a loud party. Drakkar Lewis lived with his grandfather at the house where the party was being held. The responding deputy observed it was a very large party of 100 to 200 people and there were many gang members present. The deputy asked the volume of the music be turned down. The music volume was reduced only briefly. The deputy parked a couple of blocks away waiting for backup deputies.
As other deputies arrived, they heard 10 to 15 gunshots. When deputies arrived at the residence, they found Eleazar Ireugas lying dead in the yard with a bullet wound in his chest. Joel Hernandez was injured and airlifted to a hospital. Dion King was wounded superficially by a bullet that grazed his head.
Shortly after the shooting, Detective John Grayson spoke with defendant, who was present at the party. Defendant was very emotional and told Grayson he had arrived at the party with Ireugas and they had been friends since junior high school. Defendant ran to Ireugas as soon as he learned he had been shot, but Ireugas could not speak. Defendant tried administering first aid until help arrived.
Jose Pulido and Michael Ybarra were arrested and convicted in connection with the shootings of Ireugas and Hernandez. Pulido was associated with the Sureño gang. Investigators determined Drakkar Lewis was not involved in the shooting and he was not a member or associate of a gang. Defendant, Ireugas, and Hernandez were all members of the Adelaide subset of the Norteño gang in Madera.
Current Incident
There was a second large party attended by many Norteños on April 20, 2013. This party, like the first one in March, was organized by Fusiion Entertainment. Fusiion Entertainment consisted of young women, most under 18 years old, who acted as a "party crew," responsible for locating a venue for the party and providing the music and beer. The party crew charged admission, at least for the men. Guests were searched for weapons at the front door. The young women in Fusiion Entertainment associated with Norteños and employed them as security. Some of the young women dated Norteños.
At least six women from Fusiion Entertainment were at the April 20, 2013, party: L.G., C.R., L.V., A.C., K.P., and S.E. Some of the women handed out glow sticks or bracelets at the front door. Roldan Meza, a Norteño, searched people entering the party. Meza was known to always carry a gun and had a gun in his waistband that night. Daniel Flores and Dante Urena, a DJ at the party, also searched partygoers.
We refer to these witnesses by their initials to protect their privacy interests. There are also witnesses we will refer to by their first name and last initial. (Cal. Rules of Court, rule 8.90.)
Defendant was wearing a black hooded sweatshirt and arrived at the party with Nathan Chavez, a Norteño. Urena searched defendant, found a gun, and told him to put it away. Chavez also had a gun. Defendant stated, "You don't know who I am?" in a loud, cocky manner. Defendant walked away, returning to the party a few minutes later. Urena searched defendant again, found no gun, and let him into the party. Defendant came and went freely after Urena stopped searching.
Drakkar Lewis attended the April 2013 party and had given several others a ride there. No one riding with Lewis associated with a gang. Urena watched defendant and his friends staring at Lewis during the party. As the party ended, Lewis's group gathered at his car. Lewis asked Rolando C. to drive. Lewis sat in the passenger seat, and Celeste M. sat either in Lewis's lap or in the middle of the front seat. Lewis handed Rolando C. the keys as about six people were trying to get into the back seat.
Just as Rolando C. started the engine, shots were fired into the car. Rolando C. heard a voice say something like "Yeah, that's right" in a cocky tone. Rolando C. saw blood and heard Lewis gasping for air. From the back seat of the car, Saul R. could see Lewis had been shot in the head. Raul D., who had been trying to get in the back seat, saw the shooter, who was wearing black and standing by the passenger door. Except Lewis, everyone else from the car ran toward nearby orchards.
The women from Fusiion Entertainment had been walking toward cars or sitting in cars waiting to leave. Dion King yelled at them to "run." Immediately after that, they heard gunshots. C.R. looked out the window of the car she was in and saw defendant turn around and run from the area of the gunshots. Defendant held a gun in his right hand with his right arm stretched down along his leg. C.R. could see the side of defendant's face and his black hooded sweatshirt.
L.V. started running when she heard the gunshots, but Dion King told her "[i]t's cool. It was Nene," which was defendant's moniker. Roldan Meza, who was brandishing a gun, instructed L.G. to get in a car. Meza told her that "a homie did it." S.C. and A.C. were with Roldan Meza and Hugo Meza when the shots were fired, so they knew neither of them was the shooter.
Lewis was pronounced dead at the scene at 2:05 a.m. He had been shot three times in the head. Gunshot wounds to his cerebrum and brainstem caused his death. Celeste M., who was 16 years old at the time of the shooting, was covered with blood and biological tissue. She suffered a grazing bullet wound to her arm.
Defendant was arrested June 9, 2013. Defendant's stepbrother, Jonathan Ortiz, was being housed in the jail on robbery and burglary charges. Ortiz had been a Norteño and a member of the Adelaide subset but dropped out while in jail. On January 13, 2014, defendant and Ortiz were transported to court on the same van. Defendant told Ortiz that Eleazar Ireugas had died. Both defendant and Ortiz considered Ireugas a close friend. Defendant told Ortiz that he "took care of business" or "took care of that fool." He said "[t]hat dude had what he had coming." It was clear to Ortiz defendant was talking about Drakkar Lewis.
Defendant also told Ortiz he did not get caught with the gun, although he was arrested carrying a different gun. Defendant thought there was no evidence against him, except for a girl who defendant had shot but was going to testify against him. Defendant stated she would be taken care of. Ortiz believed the girl's life was in danger and passed this information to investigators.
DISCUSSION
I. Evidence of Norteño Gang's Pattern of Criminal Activity
According to the People's gang expert, Madera County Sheriff's Deputy Richard Gonzales, Norteños use a number of symbols to identify themselves. The Norteño gang grew out of the Nuestra Familia, which originated in the late 1960's as protection from the Mexican Mafia. Within the Nuestra Familia, there is a subgroup called the Northern Structure or the Nuestra Raza. Northern Structure gang members do the dirty work for the Nuestra Familia, and the Northern Structure directs the Norteño activities on the street.
Norteño gang members sympathize with the Nuestra Familia and show their allegiance using common signs and symbols. They wear the color red and use the number 14 because "N" is the fourteenth letter of the alphabet. Norteños may use the Roman numerals "XIV" or sets of dots to signify 14 and use the phrase "Cali" to signify Northern California. The huelga bird is another Norteño symbol. Norteños commonly display these symbols in public to show their allegiance to their gang.
The Norteño gang's primary rival is the Sureño gang, which sympathizes with the Mexican Mafia. Gang members use monikers or nicknames to confuse law enforcement and create camaraderie. There are more than three members in the Norteño gang. The rivalry between these two gangs dates back to the late 1960's. Generally, gang members will have a member who comes up with a sophisticated plan; someone will be the driver, someone will produce a weapon, and someone will be the actual shooter. If the plan is carried out, all of the participants get credit for the act.
The Norteños have and enforce a set of rules restricting who Norteños associate with and controlling the crimes they commit. Norteños may brag to each other and to their rivals about the crimes they commit. Gang members are not permitted to cooperate with law enforcement. Norteños commonly form subsets based on neighborhoods, and this is true in Madera. The Norteño subsets still have the Norteño symbols in common, and members of the different Norteño subsets "hang out" together and sympathize with each other. The subsets all follow the Norteño rules. According to Deputy Gonzales, all of the subsets are Norteños, however, "the set itself is a gang."
Gonzales explained the primary activities of the Norteño criminal street gang include homicides, burglaries, drug sales, possession of weapons, and intimidating victims and witnesses. In gang culture, respect is paramount. Gang members earn respect by showing allegiance, committing crimes for the gang, and attacking rival gang members. An act of disrespect to a gang member must be avenged. Disrespect must be answered, otherwise the gang will look weak. Gangs thrive on violence and having a reputation for fear. Intimidation instills fear and makes witnesses reluctant to cooperate with law enforcement.
A. Defendant's Association with Norteños
Deputy Gonzales testified defendant had been found associating with known Norteño gang members during several law enforcement contacts. During one contact in 2010, defendant was in the driver's seat of a stolen vehicle from which three Norteño gang members fled. Defendant possessed a loaded firearm and a stolen vehicle. In 2012, law enforcement came into contact with defendant after two known Sureño gang members shot at defendant and a known Norteño following a verbal dispute. When officers went to defendant's residence to question him after this incident, they found gang indicia in his bedroom, including a University of Nebraska hat with a red "N," a red bandana, and a red San Francisco Giants hat. When officers responded to the shooting of Eleazar Ireugas and two other Norteños at the 2013 party, defendant was present. In Gonzales's opinion, on the date of the charged crime, defendant was an "active Norteno criminal street gang member from the local subset known as Adelaide."
Gonzales opined defendant was a member of the Adelaide Street criminal street gang with the moniker, or nickname, Nene. Defendant had a tattoo of the letter "A," a common symbol for the Adelaide criminal street gang. One of defendant's tattoos is a picture of Eleazar Ireugas wearing an Oakland A's hat with a solid red A, which was significant to Gonzales because the "A" in the Oakland A's logo is usually green or white.
Gonzales identified known Norteños who appeared with defendant in several photographs, including Jonathan Tinoco, Johnny Coronado, and Joshua McCoy. In the photo, Tinoco is wearing a shirt reading "RIP Joseph Torrez." Gonzales worked on that particular investigation and learned the victim, Torrez, had "some Norteno criminal street gang ties." Another picture depicted Dajaun Huddleston, an identified member of the Vario North Side Madera gang. Huddleston was in a collage with several other identified Norteño criminal street gang members.
B. Predicate Offenses
The jury in this case found true allegations defendant committed the murder of Drakkar Lewis and the assault on Celeste M. for the benefit of a criminal street gang. Based on the verdict forms and summation, the prosecutor proceeded on a theory the criminal street gang pertinent to the gang allegations was the Norteños street gang. To show the existence of the criminal street gang, the prosecution had to establish a pattern of criminal gang activity, as demonstrated by the commission of at least two predicate offenses. (§ 186.22, subd. (e).) Gonzales testified about four crimes that had been committed by active Norteños.
Mark Saenz was a self-admitted active Norteño gang member and a member of the Adelaide subset. Saenz pled no contest to carrying a concealed firearm in 2011 in violation of former sections 12025, subdivision (a)(1), and 12022.1. Francisco Herrera was an active member of the Norteño gang. Herrera pled guilty to robbery and admitted a gang sentencing enhancement allegation in 2011. Refugio Tapia was an active Norteño and member of the Varrio Tiny Winos (VTW) subset. Tapia pled guilty to possession of a firearm by a felon (§ 29800, subd. (a)) and admitted a gang sentencing enhancement allegation (§ 186.22) in 2012. Edwin Garcia was a self-admitted active Norteño and a member of the Northside Madera subset. Garcia pleaded guilty to assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)) in 2011.
C. Alleged Collaboration between Norteños and the Adelaide Subset
Deputy Gonzales testified Norteños commonly belonged to subsets based on their neighborhoods and the territory they wished to claim. The subset designation is a way for a gang member to make it known where he came from, but they are all Norteños. Gonzales was asked whether he had an opinion regarding whether defendant was an active Norteño, and he replied yes, he did, but without stating his opinion. He later said defendant was an active Norteño in the Adelaide subset.
Gonzales testified gang members of the different subsets hung out together and sympathized with each other. Gang members of the Adelaide, VTW, and North Lake Street subsets all got along. Gonzales was familiar with a house in Madera known as "the shop," where Norteño gang members from different subsets gathered, drank, and hung out together. Gonzales saw members of Adelaide, VTW, and Varrio North Side Madera there.
Gonzales testified the young women in the Fusiion Entertainment party crew associated with Norteños and employed them as security at parties. Some of the young women dated Norteños. There were many gang members at the March and April 2013 parties. At the March 2013 party, members of at least three subsets were present together: defendant, a member of Adelaide, Eleazar Ireugas, also member of Adelaide, Dion King associated and was seen with members of VTW and North Lake Street, and Marcus Soliz, a member of North Lake Street.
Similarly, members of different subsets attended the April 2013 party: defendant, Dion King (a Blood), Roldan Meza (a member of Adelaide), Nathan Chavez (a Norteño), and Hugo Meza (a member of Adelaide). Fusiion member L.G. understood all of these men to be Norteños. L.V. told investigators she understood these men to be from Adelaide.
Detective Hector Garibay showed the jury a photograph of a group of Norteño gang members displaying Norteño signs and gathered around a picture memorializing Joseph Torres, a murder victim. Defendant was in the photograph with other Norteños, including Josh McCoy, a member of VTW.
Former Adelaide member Jonathan Ortiz provided additional insight into the relationships between the Norteño subsets, testifying Adelaide was affiliated with the Norteño gang. Ortiz identified with the Norteños and with Adelaide, the neighborhood where he grew up. Ortiz thought there were about 20 members of the Adelaide subset. Like the Norteños, Adelaide used the color red, the letter N, and the number 14. Adelaide also used the letter A to represent itself. Like the Norteños, Adelaide members must never cooperate with law enforcement.
Ortiz considered Dion King a friend, associate, and "homie," even though he was not in Adelaide and "he rides with what you would call the [B]loods." Ortiz explained that on the street, the different gangs could talk and communicate with one another, except for the rivals. Ortiz testified there was a house in Madera where they all hung out, mostly "northerners," but also others, including King.
Gonzales also testified known Norteños had been present at defendant's trial every day to show support for a fellow gang member and to document the court proceedings.
D. Hypothetical
Gonzales was given a hypothetical based on the facts in this case. Based on the hypothetical, Gonzales opined Drakkar Lewis's shooting would benefit a criminal street gang, the shooting had been committed in association with a criminal street gang, and it was done to promote, further, and assist criminal gang members. Gonzales explained the crime was a "classic retaliation crime." As occurred here, it was common for there to be other gang members present at the scene of a crime to be witnesses and to assist the shooter. The shooting sent a "clear message out to the public that this is what happens when you disrespect or take one of our own, meaning the gang members' own."
E. People v. Prunty
"[S]ection 186.20 et seq., also known as the California Street Terrorism Enforcement and Prevention Act (the STEP Act or Act), was enacted in 1988 to combat a dramatic increase in gang-related crimes and violence. The Act imposes various punishments on individuals who commit gang-related crimes—including a sentencing enhancement on those who commit felonies 'for the benefit of, at the direction of, or in association with any criminal street gang.' [Citation.] A criminal street gang, in turn, is defined by the Act as any 'ongoing organization, association, or group of three or more persons' that shares a common name or common identifying symbol; that has as one of its 'primary activities' the commission of certain enumerated offenses; and 'whose members individually or collectively'
have committed or attempted to commit certain predicate offenses. [Citation.] To prove that a criminal street gang exists in accordance with these statutory provisions, the prosecution must demonstrate that the gang satisfies the separate elements of the STEP Act's definition and that the defendant sought to benefit that particular gang when committing the underlying felony." (Prunty, supra, 62 Cal.4th at pp. 66-67, fn. and italics omitted.)
Among elements for both the substantive gang offense and the gang enhancement, the People must prove the alleged criminal street gang for whose benefit the defendant acted has engaged in a pattern of criminal activity. (People v. Ramirez (2016) 244 Cal.App.4th 800, 816-817 [element of substantive gang offense pursuant to § 186.22, subd. (a)]; People v. Rios (2013) 222 Cal.App.4th 542, 564 [element of enhancement pursuant to § 186.22, subd. (b)]; People v. Resendez (2017) 13 Cal.App.5th 181, 188 [same].) A "pattern of criminal gang activity" is a gang member's individual or collective "commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more" enumerated predicate offenses during a statutorily defined time period. (§ 186.22, subd. (e); see People v. Loeun (1997) 17 Cal.4th 1, 9-10.)
In Prunty, our Supreme Court examined the necessary showing "the prosecution must make when its theory of why a criminal street gang exists turns on the conduct of one or more gang subsets." (Prunty, supra, 62 Cal.4th at p. 67.) Prunty held, "where the prosecution's case positing the existence of a single 'criminal street gang' for purposes of section 186.22(f) turns on the existence and conduct of one or more gang subsets, then the prosecution must show some associational or organizational connection uniting those subsets." (Id. at p. 71.) This connection can take the form of evidence of collaboration or organization, or sharing material information among the subsets of a larger group. It may alternatively be shown the subsets are part of the same loosely hierarchical organization, even if the subsets do not communicate or work together. In other cases, the prosecution may show various subsets' members exhibit behaviors indicating their self-identification with a larger group. (Ibid.)
Prunty explained the rule it set forth "applies to all STEP Act cases where the prosecution's theory of why a criminal street gang exists turns on the conduct of one or more gang subsets, not simply to those in which the prosecution alleges the existence" of a larger "'umbrella gang.'" The STEP act does not require prosecutors to prove an umbrella gang exists. (Prunty, supra, 62 Cal.4th at p. 71, fn. 2.) A problem "arises only when the prosecution seeks to prove a street gang enhancement by showing the defendant committed a felony to benefit a broader umbrella gang, but seeks to prove the requisite pattern of criminal gang activity with evidence of felonies committed by members of subsets to the umbrella gang." (Id. at p. 91 (conc. & dis. opn. of Corrigan, J.).)
"Whatever theory the prosecution chooses to demonstrate that a relationship exists, the evidence must show that it is the same 'group' that meets the definition of section 186.22(f)—i.e., that the group committed the predicate offenses and engaged in criminal primary activities—and that the defendant sought to benefit under section 186.22(b). [I]t is not enough ... that the group simply shares a common name, common identifying symbols, and a common enemy. Nor is it permissible for the prosecution to introduce evidence of different subsets' conduct to satisfy the primary activities and predicate offense requirements without demonstrating that those subsets are somehow connected to each other or another larger group." (Prunty, supra, 62 Cal.4th at p. 72, fn. omitted.)The language of the STEP Act "strongly suggests that, to be part of a 'criminal street gang,' subsets must share some associational or organizational connection with the larger group, whether arising from individual members' routine collaboration with each other or otherwise." (Ibid.)
"To determine the evidentiary showing necessary to demonstrate that alleged subsets are part of a single overarching organization, we must assign coherent meaning to 'organization, association, or group [as used in section 186.22, subdivision (f)]—bearing in mind ... these terms are modified by the STEP Act's reference to how the shared venture in question can be 'formal or informal.'" (Prunty, supra, 62 Cal.4th at p. 73.) These qualifying words suggest the prosecution need not show the relationship between the larger organization and its subsets resembles "the stereotypical organized crime syndicate's hierarchical, tightly organized framework." (Ibid.) There need not be an identifiable hierarchy, membership may be fluid, and so called "turf" boundaries may be porous. The groups "must still be united by something in common beyond pure happenstance. Evidence—even indirect evidence—showing collaboration among subset members, long-term relationships among members of different subsets, use of the same 'turf' behavior demonstrating a shared identity with one another or with a larger organization, and similar proof will show that individual subsets are part of a larger group, without running afoul of the Legislature's decision to embrace even groups based on informal relationships within the scope of the Act." (Prunty, supra, at pp. 73-74.)
The Prunty decision recognized that groups involved in illicit activity can exhibit "starkly different degrees of formal organization. In certain cases, gangs may constitute loosely coupled, amorphous organizations that routinely operate covertly." (Prunty, supra, 62 Cal.4th at p. 77.) Prosecutors do not, and in some cases cannot, "show that these groups resemble formally structured, hierarchical enterprises such as businesses or professional associations." (Ibid.) Prunty noted it did "not intend to place limits on the theories that the prosecution may advance in attempting to show that various neighborhood-based groups in fact constitute a single 'criminal street gang' within the Act's meaning." (Ibid.)
Prunty illustrated its holding by using examples of organizational and associational connections. Prunty noted the most straightforward cases might involve subsets connected formally through bylaws or organizational arrangements. Prosecutors could present evidence such subsets are part of a loose approximation of a hierarchy. Even where subsets have no formal relationship or interaction, and are unaware of one another's activities, "the subsets may still be part of the same organization if they are controlled by the same locus or hub." (Prunty, supra, 62 Cal.4th at p. 77.) This can be demonstrated by a "shot caller" for a subset who answers to a higher authority in the gang's chain of command. (Ibid.) Subsets may be linked together as a single criminal street gang if independent activities benefit the same higher ranking individual or group. This can be shown, for instance with sharing drug sale proceeds with the same members of the gang. Gang subsets may be shown to be linked by more indirect evidence such as shared bylaws. (Ibid.)
Prunty explained that alternatively, evidence that two seemingly unrelated cliques of a gang routinely act to protect the same territory or turf could suggest a larger association. (Prunty, supra, 62 Cal.4th at p. 77.) Proof of several gang subsets conducting independent but harmonious criminal operations within a discrete geographical area may show they are part of a single entity whose bosses have divided up a larger territory. (Id. at pp. 77-78.) In cases where formal structure or hierarchy may not be present, the facts may suggest "behavior reflecting such a degree of collaboration, unity of purpose, and shared activity" as to support a fact finder's reasonable conclusion that members of the various subsets collaborate to accomplish shared goals. (Id. at p. 78.) Such collaboration could be demonstrated by members working in concert to commit a crime, or members strategizing to carry out their activities. Evidence that subsets have some sort of informal relationship "need not be direct, and it need not show frequent communication or a hierarchical relationship among the members." (Ibid.) Evidence that subsets "have professed or exhibited loyalty to one another would be sufficient to show that the ... subsets collaborate or cooperate." (Ibid.)
Evidence of more informal associations, such as proof members of gang subsets "'hang out together'" and "'back up each other'" can demonstrate subset members have exchanged strategic information or have otherwise taken part in common activities "that imply the existence of a genuinely shared venture." (Prunty, supra, 62 Cal.4th at p. 78.) Evidence of two members of different neighborhood subsets engaging in activities suggesting they identify one another as belonging to the same criminal street gang is relevant to show the subsets form a single group. "Such evidence, coupled with appropriate evidence that a gang exists, that it operates within a particular geographic area, and that it conducts its activities through subsets or in another decentralized fashion, could permit the inference that the different subsets are members of a single group." (Id. at p. 79.)
Prunty found there are limits "on the boundaries of an identity-based theory." (Prunty, supra, 62 Cal.4th at p. 79.) There must be evidence "that an organizational or associational connection exists in fact, not merely that a local subset has represented itself as an affiliate of what the prosecution asserts is a larger organization." (Ibid.) The central question is whether the groups constitute the same criminal street gang. The prosecution must show more than the same geographical area. In Prunty, the alleged subsets were located "all over Sacramento" and thus did not show the subsets constituted a single criminal street gang. (Ibid.) The prosecution must present evidence of the alleged subsets' activities showing a shared identity. Such evidence could be in the form of proof that a certain gang subset retaliates against a rival gang for affronts the rival gang committed against other subsets. (Ibid.) The prosecution can submit evidence the subsets require their members to perform the same initiation activities. (Id. at pp. 79-80.) Self-identification evidence must refer to the particular activities of subsets and must permit the jury to reasonably conclude the various subsets are associated with each other because of the shared connection within a certain group. (Id. at p. 80.)
The statute requires the criminal street gang "the prosecution proves to exist be the same gang that the defendant sought to benefit." (Prunty, supra, 62 Cal.4th at p. 80.) The prosecution must meet the sameness requirement by showing the group the defendant acted to benefit, "the group that committed the predicate offenses, and the group whose primary activities are introduced, is one and the same." (Id. at p. 81.) Where the prosecution's theory of a criminal street gang turns on the activities of two or more alleged gang subsets, the prosecution must show a sufficient organizational or associational connection that the larger criminal street gang at issue includes those particular subsets. Prunty used a hypothetical to illustrate how the predicate offense element of a crime or enhancement is not met. In the hypothetical, the prosecution used two subset groups sharing the same territory to prove the existence of the larger gang. In proving the predicate offenses, the prosecution relied on two different subsets to prove this element. Prunty explained that absent more evidence, it is impossible for the jury to infer the larger gang the defendant sought to benefit includes any of the alleged subsets or that the subsets are themselves interrelated. (Ibid.)
One way to solve the problem raised in the hypothetical would be for the prosecution "to introduce evidence of a relationship among all four alleged subsets—a relationship that would permit the inference that they constitute a single" gang organization. (Prunty, supra, 62 Cal.4th at p. 81.) Another way around this evidentiary issue would be to show some connection between the two subsets committing the predicate offenses and the larger gang the defendant intended to benefit. The prosecution need not establish the "metes and bounds" of the larger gang "or show an organizational or associational connection that unites all alleged gang subsets in the area." (Ibid.) To satisfy all the elements of the STEP Act, the prosecution must have a theory of the criminal street gang at issue that shows the same group. (Ibid.)
In Prunty, the prosecution's theory was the defendant assaulted the victim for the benefit of the Sacramento-area Norteños. The prosecution's decision dictated the type of evidence needed to show the Sacramento-area Norteños satisfied section 186.22, subdivision (f): "the prosecution needed to show that the same group engaged in illicit primary activities, and committed the predicate offenses." (Prunty, supra, 62 Cal.4th at p. 82.) The prosecutor in Prunty presented adequate evidence of the primary activities of the larger gang. Where the prosecution's evidence fell short was in establishing the two subset groups committing predicate offenses were connected "to one another, or to an overarching Sacramento-area Norteño criminal street gang." (Ibid.) The expert only testified the two subsets were Norteños. There was no "evidence tending to show collaboration, association, direct contact, or any other sort of relationship among any of the subsets he described. None of [the gang expert's] testimony indicated that any of the alleged subsets had shared information, defended the same turf, had members commonly present in the same vicinity, or otherwise behaved in a manner that permitted the inference of an associational or organizational connection among the subsets." (Ibid.) The expert's testimony in Prunty also failed to demonstrate "the subsets that committed the predicate offenses, or any of their members, self-identified as members of the larger Norteño association that defendant sought to benefit." (Ibid.)
Although Prunty self-identified as both a member of the umbrella Norteño gang and a member of one of its subsets, and there was evidence he collaborated with a member of another subset to commit his offenses, there was no evidence the subsets associated with the larger gang. (Prunty, supra, 62 Cal.4th at pp. 82-83.) The expert in Prunty did testify that Norteño street gangs are associated with the Nuestra Familia prison gang. Prunty noted while such evidence might permit the inference the various gang subsets shared a common origin, it did not indicate whether the specific subsets involved in committing the predicate offenses had an ongoing relationship—"the kind of relationship that amounts to being part of the same group—with the entity defendant sought to benefit." (Id. at p. 83.) The expert did not testify about any relationship between Nuestra Familia shot callers and any of the Sacramento-area Norteño subsets. Although the expert referenced the written and unwritten rules governing what gang members can and cannot do, he did not explain whether these rules applied to the particular subsets at issue. (Ibid.)
The Prunty court concluded the evidence presented was insufficient to show the existence of a single criminal street gang encompassing both the group the defendant sought to benefit and the specific subsets whose members committed the predicate offenses. The Prunty court acknowledged the expert testified the subsets used the same name, symbols, colors, gang signs, tattoos, graffiti, and other methods of communication; they wore similar clothing and colors; and they were united in their opposition to Sureño gang members. (Prunty, supra, 62 Cal.4th at p. 83.) Although this testimony tended to show the alleged subsets used common symbols and identifying colors fulfilling the requirement of section 186.22, subdivision (f) requiring such common characteristics, it did not demonstrate the subsets were united together or with a larger group as a single group, association, or organization. (Prunty, supra, at pp. 83-84.)
The fact Prunty claimed gang membership bears on what his intent may have been in committing the assault on the victim, but this self-identification "provided no way for the jury to determine that the Norteños were an 'organization, association, or group,' under the STEP Act's meaning—or, critically, that the alleged subsets that committed the predicate offenses were part of that group." (Prunty, supra, 62 Cal.4th at p. 84.) The expert's testimony about the Norteño size, geographical location, and general practices was relevant to the gang enhancement allegation, but insufficient to show a single criminal street gang to exist as defined by the STEP Act. The description of the Norteños as a Hispanic street gang was conclusory and of no use to the fact finder in showing the existence of a criminal street gang. (Id. at pp. 84-85.)
The failure of the prosecution to establish gang affiliations between subsets and the larger criminal street gang constituted insufficient evidence of the gang allegations. The prosecution must present sufficient proof "consistent with the theory it advanced regarding what constituted the relevant 'criminal street gang.'" (Prunty, supra, 62 Cal.4th at p. 85.)
F. Analysis
The prosecutor attempted to prove defendant committed his offenses for the benefit of and in association with the Norteño criminal street gang. Defendant contends the evidence presented did not meet Prunty's proof requirements. We agree.
The prosecutor relied on the existence of several smaller subsets of the Norteño gang, but did not present any evidence of how the Norteño gang controlled the smaller subsets. There was no evidence the smaller subsets paid taxes to the Norteño gang or that they were directed by a command structure or shot callers who answered to that command structure. Although the gang expert testified the subsets all followed the rules of the Norteños, the one rule emphasized more than once was that gang members were not to cooperate with law enforcement. There was no further elaboration on Norteño rules. This one rule is rather prosaic and is commonly followed by other criminals who are not members of a criminal street gang.
The prosecutor's proof especially fell short in meeting the requirement that the Norteño criminal street gang was the gang defendant sought to benefit. (Prunty, supra, 62 Cal.4th at p. 80.) There was no evidence showing a connection between the smaller subsets and the greater Norteño gang except for the expert's general testimony that the Norteños emerged from the Nuestra Familia and the subsets congregate together and sympathize with one another.
The problem of showing the subsets as part of the greater Norteño gang was exacerbated by the expert's testimony that the subsets were themselves gangs. The expert, however, did not explain how the Norteño criminal street gang was related to the subsets except to describe the common colors, clothing, and symbols used by the subsets. Such evidence and the evidence of self-identification is insufficient to demonstrate a defendant's subset is one and the same with the greater criminal street gang.
There was testimony from former gang member Jonathan Ortiz that he had been both a Norteño and a member of Adelaide. Self-identification evidence must refer to the particular activities of subsets and must permit the jury to reasonably conclude the various subsets are associated with each other because of the shared connection within a certain group. (Prunty, supra, 62 Cal.4th at p. 80.) Ortiz's testimony was too conclusory to show how the connections between the subsets existed because of a shared connection with the Norteños. The evidence of defendant's membership in the Norteño gang consisted largely of the display of gang symbols and clothing with gang colors. Evidence of the existence of the Norteño gang was again confined to common gang colors, symbols, and evidence the Sureños were their enemy.
The People argue the prosecutor proved the existence of a larger gang by showing the Adelaide, VTW, and North Lake Street subsets all got along, and there was a congregating point at a home referred to as "the shop" where Norteños from different subsets got together. The People point out the Fusiion Entertainment party crew and the security provided by Norteño gang members at the parties are proof of the connection with the larger gang. Also, members of various subsets attended the two parties in March and April of 2013. But this evidence is not convincing because it did not show how the subsets engaged together in criminal conduct. This evidence is similar to the evidence submitted by the prosecutor in Prunty.
Prunty notes proof of a relationship between all alleged subsets could be proof of the larger gang. (Prunty, supra, 62 Cal.4th at p. 81.) Here, the prosecutor did not allege different subsets and relied on the existence of the broader Norteño gang. There were several more subsets than Adelaide, VTW, and North Lake Street referred to in the expert's testimony. The cooperation shown by three subsets of a much larger gang with many more subsets is insufficient to show they constituted a single gang organization. The evidence presented at trial does not clarify how any of these three subsets were related to the Norteños. The women of the Fusiion Entertainment party crew allegedly dated Norteño members. The expert was not specific about which Norteño gang members were dating those women. More importantly, this evidence does not establish a link between the subsets and the Norteño gang, nor does the presence of other subset gang members serving as "security" for parties. The "security" was provided by another Adelaide member and one of the DJ's.
The People further argue the circumstances of the current offense showed other Norteños at the party assisted defendant, thereby establishing the existence of the larger Norteño gang. There was evidence Dion King reassured partygoers not to worry because the shooting was done by Nene, defendant's nickname. King was a member of VTW and North Lake Street. Roldan Meza, who brandished a gun during the shootings, was allegedly a member of defendant's Adelaide subset. Other alleged Norteño gang members at the party are not specified as being part of the Norteño gang itself, other than with the broad assertion that they were allegedly known members of the Norteño gang. The circumstances of defendant's shooting do not show how he acted for the broader Norteño gang, how he benefited the larger gang, or even that the subsets in some combination directly assisted the shootings.
Indeed, the prosecutor's witnesses all testified murder victim Drakkar Lewis was not a member of, or associated with, any gang. Defendant's friend was killed at a party at Lewis's residence about a month earlier. Defendant may have somehow blamed Lewis for this killing, but the gang motivation for the shooting is not clear. Defendant's shooting of Lewis could well have been motivated by personal reasons rather than for the benefit of the Norteño criminal street gang.
Prunty explained evidence of a connection between two subsets can be shown through the predicate offenses. (Prunty, supra, 62 Cal.4th at p. 81.) The prosecution, however, must demonstrate the same group engaged in primary activities and committed the predicate offenses. (Id. at p. 82.) The predicate offenses were shown through the convictions of Francisco Herrera (a Norteño of unspecified subset), Refugio Tapia (VTW subset), Edwin Garcia (Northside Madera subset and self-described Norteño), and Mark Saenz, who self-identified with defendant's Adelaide subset. Even adding defendant's current offenses to show predicate offenses, which would show two predicate offenses from the Adelaide subset (see People v. Loeun, supra, 17 Cal.4th at p. 8), the gang expert did not describe the relationship among any of these subsets. The gang expert's testimony did not show how the alleged subsets shared information, defended the same territory, had members in the same vicinity, or otherwise behaved in a manner permitting the inference of an associational or organizational connection between the subsets. The expert's testimony failed to show the subset committing the predicate offenses, or any of its members, self-identified as members of the larger Norteño gang defendant sought to benefit. (Prunty, supra, 62 Cal.4th at p. 82.)
In Prunty, the defendant self-identified as a Norteño gang member, but this did not provide the jury with any way to determine the Norteños were an organization, association, or group within the meaning of the STEP Act. The expert's testimony about the Norteño size, geographical location, and general practices was relevant to the gang enhancement allegation, but insufficient to show a single criminal street gang to exist as defined by the STEP Act. The description of the Norteños as a Hispanic street gang was conclusory and of no use to the fact finder in showing the existence of a criminal street gang. (Prunty, supra, 62 Cal.4th at pp. 84-85.) The same is true here. What few associational ties were shown between a few of the subsets associating with the Adelaide subset were not further tied to the larger Norteño gang.
Although Prunty did not require the prosecution to show the "metes and bounds" of the larger gang, to satisfy all the elements of the STEP Act, the prosecution must have a theory of the criminal street gang showing it is the same group or showing there is an organizational or associational connection uniting all of the alleged subsets in an area. (Prunty, supra, 62 Cal.4th at p. 81.) There was evidence of gang colors, symbols, and self-identification by different members of subsets allegedly tied to the Norteño gang. The subgroups identified in the predicate offenses, however, were not directly linked to the Norteño gang.
There was no evidence of Norteño structure, including shot callers or bylaws. The prosecution's gang expert opined several times that various subsets and their members were also members of the Norteño gang, but failed to demonstrate the links between these subsets and individuals to the greater Norteño gang. The prosecutor's theory was defendant and the various gang subsets all acted for the benefit of the Norteño gang. But the prosecution failed to show how a single subset, or defendant, was linked to the Norteño gang or acted for the benefit of the Norteños. Factually, this case is indistinguishable from Prunty and the People's case here was no stronger than the People's case in Prunty.
The parties have not briefed the issue of the People's reliance on inadmissible testimonial hearsay now prohibited by Crawford v. Washington (2004) 541 U.S. 36 and People v. Sanchez (2016) 63 Cal.4th 665. The parties also do not address the issue whether admissions of gang membership need to be voluntary or are otherwise subject to Miranda v. Arizona (1966) 384 U.S. 436 advisements pursuant to People v. Elizalde (2015) 61 Cal.4th 523, 527, 533-540. Without an exhaustive analysis, it suffices to note the gang expert relied heavily on inadmissible testimonial hearsay throughout his testimony and further relied on self-admissions of alleged gang members where there was no showing the admissions were voluntary or complied with Elizalde. Our ruling in no way rests on Crawford, Sanchez or Elizalde and we do not analyze those issues. We observe these additional infirmities in the People's proof of the gang enhancements for the benefit of the parties and the trial court. --------
The failure of the prosecution to establish gang affiliations between subsets and the larger criminal street gang constituted insufficient evidence of the gang allegations. The prosecution must present sufficient proof "consistent with the theory it advanced regarding what constituted the relevant 'criminal street gang.'" (Prunty, supra, 62 Cal.4th at p. 85.) The gang enhancement allegations are, therefore, reversed.
II. Senate Bill No. 620
The parties filed supplemental briefing addressing the effect of Senate Bill No. 620 (2017-2018 Reg. Sess.) on defendant's sentence. On October 11, 2017, the Governor approved Senate Bill No. 620, effective January 1, 2018, which amended sections 12022.5 and 12022.53 to give the trial court discretion to strike or dismiss firearm enhancements. Previously, the trial court had no discretion to strike or dismiss such enhancements and they had to be imposed by law. Both parties agree this statutory amendment is retroactive to all cases not yet final because its effect mitigates punishment for a particular criminal offense. (See People v. Brown (2012) 54 Cal.4th 314, 324; People v. Vieira (2005) 35 Cal.4th 264, 306; People v. Francis (1969) 71 Cal.2d 66, 75-76.) The People argue, however, that remand is inappropriate because the trial court would not exercise the discretion it now has to strike defendant's firearm enhancement. Because the trial court failed to make a definitive statement concerning the enhancement, we disagree with the People's argument and remand for a new sentencing hearing on whether to strike or impose the firearm enhancement.
In sentencing defendant, the trial court noted defendant fired three shots into the passenger compartment of a vehicle, and it called the crime one of great violence indicating a high degree of cruelty, viciousness, and callousness. The court noted defendant was on probation and his performance on probation was unsatisfactory. In mitigation, the court noted defendant's prior criminal history consisted of one conviction for possession of a stolen vehicle.
Although there is no assurance the trial court would exercise its discretion to strike the firearm enhancement, given the trial court's silence on how it would exercise such discretion if it had such discretion and the change in the law, we believe defendant is entitled to argue this point to the trial court. While we do not discount the seriousness of what happened or of defendant's convictions, we cannot say from this record that the trial court would not exercise its discretion to strike the firearm enhancement. (See People v. Lua (2017) 10 Cal.App.5th 1004, 1020-1021.)
This case is also distinguishable from People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896, where the trial court clearly stated it did not find any good cause to strike a prior conviction allegation and had many reasons not to, concluding the defendant was the kind of person the law intended to keep off the street as long as possible. We therefore reject the People's arguments that the record demonstrates the trial court would not exercise its discretion to strike the firearm enhancement and a remand for resentencing would serve no purpose.
DISPOSITION
The gang enhancements alleged on counts 1 and 2 are reversed. The trial court's sentence is vacated and the case remanded for the trial court to exercise its discretion whether to impose or to strike the gun use enhancement pursuant to section 12022.53 as amended. The judgment is otherwise affirmed.
/s/_________
PEÑA, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
LEVY, J.