Opinion
F078864
03-01-2022
The PEOPLE, Plaintiff and Respondent, v. Michael Geronimo RODRIGUEZ et al., Defendants and Appellants.
Carla J. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant Michael Geronimo Rodriguez. James Bisnow, Pasadena, under appointment by the Court of Appeal, for Defendant and Appellant Elijah Rodriguez. Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez, Caely E. Fallini and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of sections I-A, I-B, and II.
Carla J. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant Michael Geronimo Rodriguez.
James Bisnow, Pasadena, under appointment by the Court of Appeal, for Defendant and Appellant Elijah Rodriguez.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez, Caely E. Fallini and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.
SNAUFFER, J.
Elijah and Michael Rodriguez were jointly tried and convicted by the same jury of actively participating in a criminal street gang and gang-related, premeditated attempted murder plus attendant crimes and enhancements. Together and separately, they raise numerous appellate claims.
Elijah and Michael are brothers. We refer to them by their first names for clarity and intend no disrespect.
Although Elijah and Michael were tried jointly by the same jury, throughout the opinion we refer to their separate trials because certain evidence was admitted against only one brother or the other. The separate admittance of evidence is germane to the issues.
Together, the Rodriguezes fault both the court for failing to instruct on a lesser included offense and the prosecutor for misstating the law. They also claim newly enacted Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 699, §§ 1-5) (AB 333) applies retroactively and now invalidates the active participation gang crime and the gang-related crime enhancements.
Separately, Elijah blames the court and his counsel for permitting certain evidence to prejudice his case notwithstanding the fact it was admitted solely against Michael. He also challenges the evidence necessary to prove various enhancements including personal infliction of great bodily injury and personal firearm use. Last, Michael claims the court's instructions on aiding and abetting were unlawful.
We agree, and the People concede, AB 333 applies retroactively and requires us to reverse the active participation gang crime and the gang-related crime findings. We also find merit in two of Elijah's evidentiary claims. The record in his case insufficiently proved his precise role in the crime, substantially undermining the personal infliction and personal use enhancements. The remaining claims lack merit.
BACKGROUND
Charges
The Kern County District Attorney charged each Rodriguez with four crimes: Attempted murder (Pen. Code, § 664/187; count 1), assault with a firearm (§ 245, subd. (b); count 2), assault with a deadly weapon (§ 245, subd. (a)(1); count 3), and active gang participation (§ 186.22, subd. (a); count 4). Alleged enhancements included premeditation and deliberation (§ 664, subd. (a)), gang-related crime (§ 186.22, subd. (b)), personally inflicting great bodily injury (§ 12022.7, subd. (a)), personal use of a firearm (§ 12022.5, subd. (a)), and discharging a firearm causing great bodily injury (§ 12022.53, subd. (d).)
All statutory references are to the Penal Code.
Some of the technical evidence necessary to prove the existence of a criminal street gang (§ 186.22, subd. (f) ) is not relevant to the issues on appeal and we omit it from our factual summary.
The evidence indicated Elijah and Michael were traveling together in a car driven by a third person. The vehicle eventually crossed paths with the victim.
At trial, the victim testified three "African Americans" attacked him one night. But in a prior statement, the victim had described "two Hispanic males" confronted him while speaking " ‘their boo boo gang shit ....’ " In the prior statement, the victim explained one man hit him in the head with a gun, and the other man punched him in the chest. A treating physician later testified the victim suffered a "collapsed lung" and chest wounds.
Law enforcement responded to the scene, followed a suspect vehicle to a home, and subsequently arrested Elijah and Michael. While Elijah and Michael were awaiting interviews with law enforcement, Michael stated he heard someone "over the radio" mention a "confrontation" and "fight." Elijah responded, "I wonder if people know that it was us."
This conversation was recorded.
In separate interviews with law enforcement, Elijah and Michael both implicated themselves in the crime. Elijah admitted his presence at the scene but denied any involvement or knowledge. Michael explained that, while riding in the car, the victim struck it prompting Michael to confront him. Michael believed the victim was a rival gang member and asked him, "What the fuck is your problem?" The victim produced a firearm and pointed it at Michael, but Michael knew he was "bluffing" and "wasn't gonna fire ...." Michael "picked up something," disarmed the victim, and "sock[ed] him."
The driver also testified at trial. She claimed she could not remember anything, but in a prior statement explained she pulled over after either Elijah or Michael said, "Wait I think I know that guy." Both Elijah and Michael then exited the vehicle and an "altercation" ensued.
A gang expert witness testified and opined Elijah and Michael were both active gang members. Their gang's primary activities included assault and homicide. The expert explained three other gang members were previously convicted of illegally possessing firearms.
A primary activity is a "criminal act[ ] enumerated" in section 186.22, subd. (e). (§ 186.22, subd. (f).)
These convictions were admitted to prove the existence of a criminal street gang (§ 186.22, subd. (f) ) and are relevant to the AB 333 claim.
The prosecutor asked the expert a hypothetical question involving an assumption about two gang members assaulting a person "that one of those [gang] members believes" is "a member of [a] rival" gang. The expert was asked to render an opinion if that hypothetical crime is gang related. The expert answered the crime benefits the gang because "it shows that the gang is still active and ...violent," and the crime is associated with the gang "because ... two ... gang members [are] committing one of the [gang's] primary activities" together.
The gang expert also testified one gang member is expected to assist a fellow gang member involved in an altercation with any person, rival or not. Last, the fact only one gang member believed a person was a rival gang member was immaterial to the expert's opinion the crime benefited and was associated with the gang. Relevant Jury Instructions
The jury was instructed certain statements were only admissible against each Rodriguez. Specifically, Elijah's separate interview was admissible only against Elijah and Michael's separate interview was admissible only against Michael.
Verdict and Sentence
The jury found each Rodriguez guilty as charged. It also found all enhancements proven true. Elijah and Michael were each sentenced to serve 18 years to life in prison. DISCUSSION
The court dismissed the section 12022.53 enhancements prior to the jury's deliberations. It also dismissed the section 12022.7 enhancement to count 2.
First, we address the joint claims. Next, we resolve Elijah's arguments. Last, we reach Michael's sole remaining contention. We reverse the gang crime convictions, vacate the gang-related crime enhancements, strike two enhancements for insufficient evidence in Elijah's case, but otherwise affirm each judgment.
I. Joint Claims: Lesser Included Offense Instructions and Prosecutorial Error
The Rodriguezes jointly raise two claims in this case. First, did the court fail to instruct the jury on attempted voluntary manslaughter as a lesser included offense to attempted murder? Second, did the prosecutor commit error in closing argument by analogizing the deliberation necessary to prove enhanced attempted murder to the decision to drive through a yellow light?
"The crime of attempted murder is not divided into degrees, but the sentence can be enhanced if the attempt to kill was committed with premeditation and deliberation." (People v. Gonzalez (2012) 54 Cal.4th 643, 654, 142 Cal.Rptr.3d 893, 278 P.3d 1242.)
The People oppose each claim. After careful review, we find no prejudicial error.
A.–B. C. The AB 333 Amendments to Section 186.22 Apply Retroactively and Require Reversal of the Gang Crime and Vacatur of the Gang Enhancements
See footnote *, ante .
AB 333 amended section 186.22 to, in various respects, increase the evidentiary burden necessary to prove a gang-related crime enhancement. We conclude the amendment is ameliorative and applies retroactively to cases not yet final on appeal. In this case, AB 333 requires us to reverse the count 4 gang crime and vacate all gang enhancements.
i. Retroactivity
"[A]bsent evidence to the contrary, [we presume] the Legislature intended amendments to statutes that reduce punishment for a particular crime to apply to all whose judgments are not yet final on the amendments' operative date. [Citations.] This principle also applies when an enhancement has been amended to redefine to an appellant's benefit the conduct subject to the enhancement." ( People v. Lopez (2021) 73 Cal.App.5th 327, 344, 288 Cal.Rptr.3d 463 ( Lopez ).)
AB 333 "increases the threshold for conviction of the section 186.22 offense and the imposition of the enhancement ...." ( Lopez, supra , 73 Cal.App.5th at p. 344, 288 Cal.Rptr.3d 463.) It is an ameliorative amendment. Because the bill and its implementation are silent regarding retroactivity, it does apply to all nonfinal cases on appeal. ( Ibid. ; In re Estrada (1965) 63 Cal.2d 740, 744-746, 48 Cal.Rptr. 172, 408 P.2d 948.)
As noted, the People concede the law applies retroactively in this case.
ii. Analysis
Although AB 333 transforms section 186.22 in several respects, we focus on one change in particular. To prove the existence of a criminal street gang itself, section 186.22, subdivision (f), requires proof of "a pattern of criminal gang activity." "The offenses comprising a pattern of criminal gang activity are referred to as predicate offenses." ( People v. Valencia (2021) 11 Cal.5th 818, 829, 280 Cal.Rptr.3d 581, 489 P.3d 700.) Prior to AB 333, it was unnecessary to prove predicate offenses were gang related. ( People v. Gardeley (1996) 14 Cal.4th 605, 609-610, 59 Cal.Rptr.2d 356, 927 P.2d 713 ( Gardeley ) ["We disagree that the predicate offenses must be ‘gang related.’ "].) Now, the law requires "the [predicate] offenses [to] commonly benefit[ ] a criminal street gang, and the common benefit of the offense is more than reputational," effectively overruling Gardeley, supra. ( § 186.22, subd. (e)(1).)
Indeed, the jury here was instructed "[t]he crimes, if any, that establish a pattern of criminal gang activity, need not be gang-related."
As now defined by statute, there was no evidence the predicate offenses proven at trial commonly benefitted a gang. (See § 186.22, subd. (g) [defining what constitutes a more than reputational common benefit].) Accordingly, the evidence adduced at trial to prove a criminal street gang itself is no longer valid. The existence of a criminal street gang is a prerequisite to proving the gang crime and the gang enhancement. ( § 186.22, subd. (f) ; see Lopez, supra , 73 Cal.App.5th at p. 345-347, 288 Cal.Rptr.3d 463.) On this basis, we reverse the count 4 gang crime convictions and vacate all gang enhancements.
The People concede the evidentiary void.
Because we rule on this basis, we need not address other arguments AB 333 requires reversal. Elijah urges the recent amendments further undermine the evidentiary sufficiency for the gang enhancements. We disagree. Nothing in AB 333 alters our conclusion the evidence was sufficient to prove Elijah committed a gang-related crime in association with a gang as the law stood at the time. (Post , II., C., iii.; see People v. Shirley (1982) 31 Cal.3d 18, 71, 181 Cal.Rptr. 243, 723 P.2d 1354 [retrial permitted where posttrial change in law invalidates certain evidence because prosecution proved its "case under the law as it then stood" having "had little or no reason to produce other evidence of guilt."].)
II. Elijah's Arguments: Inadmissible Evidence and Evidentiary Sufficiency
See footnote *, ante .
III. Michael's Contention
Michael contends the jury instructions on aiding and abetting liability permitted "the jury to convict [him] of attempted premeditated and deliberate murder without a finding that he personally acted with premeditation and deliberation." The People point out Supreme Court precedent forecloses the issue. We are bound to follow Supreme Court precedent which does in fact foreclose Michael's claim. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)
Michael concedes he "raises this claim to preserve it for further review."
In People v. Lee (2003) 31 Cal.4th 613, 3 Cal.Rptr.3d 402, 74 P.3d 176 ( Lee ), the Supreme Court "conclude[d] ... that an attempted murderer who is guilty as an aider and abettor, but who did not personally act with willfulness, deliberation, and premeditation, is [nonetheless] sufficiently blameworthy" for enhanced punishment. ( Id. at p. 624, 3 Cal.Rptr.3d 402, 74 P.3d 176.) In People v. Chiu (2014) 59 Cal.4th 155, 172 Cal.Rptr.3d 438, 325 P.3d 972 ( Chiu ), the Supreme Court reiterated "increased punishment for an attempt to commit a murder that is willful, deliberate, and premeditated, was a penalty provision and did not create a greater offense or degree of attempted murder." ( Id. at p. 162, 172 Cal.Rptr.3d 438, 325 P.3d 972 ; People v. Favor (2012) 54 Cal.4th 868, 876—877, 143 Cal.Rptr.3d 659, 279 P.3d 1131.)
The Legislature has since enacted laws retreating, in part, from Lee, supra. Most recently, Senate Bill No. 775 (Stats. 2021, ch. 551, §§ 1 & 2 ) (SB 775) amended section 1170.95. Section 1170.95 originally allowed convicted murders to petition for resentencing if "malice [was] imputed ... based solely on that person's participation in a crime ...." SB 775 amended the law to expand relief to those convicted of "attempted murder under the natural and probable consequences doctrine ...." But Michael was not convicted under the natural and probable consequences doctrine.
Returning to Lee, supra , the Supreme Court made clear its holding was based on direct aiding and abetting, not the natural and probable consequences doctrine. ( Lee, supra , 31 Cal.4th at p. 624, 3 Cal.Rptr.3d 402, 74 P.3d 176 ["Of course, where the natural-and-probable-consequences doctrine does apply, an attempted murderer who is guilty as an aider and abettor may be less blameworthy."]; see Chiu, supra , 59 Cal.4th at p. 162, 172 Cal.Rptr.3d 438, 325 P.3d 972.) It appears then SB 775 does not alter the outcome in this case. The court's direct aiding and abetting instructions here, relative to premeditation and deliberation, were not error under Lee, supra.
Neither party filed supplemental briefing related to SB 775.
CONCLUSION
To summarize, the convictions in counts 1, 2, and 3 and the premeditation enhancement stand in both cases. As to Michael, the section 12022.7 enhancements remain. As to Elijah, the section 12022.5 and 12022.7 enhancements are stricken.
The count 4 convictions are reversed. All gang enhancements are vacated. The People may elect to retry count 4 and the gang enhancements.
DISPOSITION
In Michael Rodriguez's case, the judgment is reversed. The conviction in count 4 is reversed. The section 186.22, subdivision (b), enhancements are vacated on all counts. The remaining convictions and findings are affirmed.
In Elijah Rodriguez's case, the judgment is reversed. The conviction in count 4 is reversed. The section 186.22, subdivision (b), enhancements are vacated on all counts. The section 12022.5 and section 12022.7 enhancements are stricken. The remaining convictions and findings are affirmed.
WE CONCUR:
DETJEN, ACTING P. J.
DE SANTOS, J.