Opinion
H043650
07-02-2018
THE PEOPLE, Plaintiff and Respondent, v. JOSE PAULINO CORTES et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. F1346393)
Defendants Jose Paulino Cortes and Juan Manuel Guerra appeal from judgments entered after a jury found them guilty of first degree murder (Pen. Code, § 187 - count 1), attempted murder (§§ 664 subd. (a), 187 - count 2), and participation in a criminal street gang (§ 186.22, subd. (a) - count 3). The jury also found true the following allegations: counts 1 and 2 were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)); defendants were principals in the crime during which at least one principal intentionally and personally discharged a firearm (§ 12022.53, subds. (d), (e)(1)); defendants committed the attempted murder deliberately and with premeditation (§§ 664, 187, 189); and Cortes personally inflicted great bodily injury during the course of the attempted murder (§ 12022.7, subd. (a)). The trial court found that Cortes had suffered four prior juvenile strike adjudications (§§ 667, subds. (b)-(i), 1170.12). The trial court sentenced Cortes to a term of 157 years to life and Guerra to a term of 82 years to life.
All further statutory references are to the Penal Code unless otherwise specified.
On appeal, defendants contend: (1) the trial court erred when it excluded evidence to impeach a prosecution witness; (2) the trial court erred when it failed to sua sponte instruct the jury on the limited purpose for which the jury could consider a prosecution witness's guilty plea; (3) the prosecutor committed misconduct by distorting the reasonable doubt standard; and (4) the case must be remanded to allow the trial court to consider whether to strike the firearm enhancements. Guerra contends that the trial court erred when it admitted evidence that he had confronted Nortenos the day before the shooting. Cortes contends: (1) trial counsel was ineffective for conceding the admissibility of his prior juvenile adjudications; and (2) there was insufficient evidence to support the trial court's true findings on three of the four prior strike allegations. The judgment is reversed and the matter is remanded to allow the trial court to consider whether to strike the firearm enhancements.
I. Statement of Facts
A. The Prosecution Case
1. The Shooting
Steven Juarez and his wife Catrina Molina lived on Chestnut Street in Gilroy. Sometime between 7:30 p.m. and 8:00 p.m. on April 3, 2013, Jesse Silos, Juarez's cousin, and his fiancée Guadalupe Angulo arrived at the Juarez house. Juarez and Silos stood on the sidewalk as they talked. Angulo remained in the driver's seat of her car while she spoke to Molina. Angulo and Molina saw a man walking towards them. Rather than walking on the sidewalk, he walked on the grass in front of the Juarez house. Molina asked, "Why is he going on our grass?" Juarez looked up and the man said, "Hey, what's up?" The man pulled a gun from his pocket and fired two shots at Juarez, who fell to the ground. After he fired a single shot at Silos, the man ran down Chestnut Street towards Sixth Street.
Three spent shell casings were retrieved from the scene. They were nine-millimeter casings and came from the same firearm.
When Irma Sereno, a neighbor, heard the gunshots, she ran outside and saw Juarez lying on the ground. Juarez told her that they had been shopping at Arteaga's Market and were followed by some guys in the store. Christine Alvarez, Molina's sister, also left her house when she heard the gunshots. She saw a man fleeing the scene on foot. The man was bald and wearing a hooded sweatshirt.
Juarez survived the shooting. The shot to his head caused a laceration on his forehead. The two shots to his back caused spinal fractures. The shot to Silos's buttock severed a major artery and killed him.
2. Events Related to the Shooting
Sometime between 6:30 p.m. and 7:00 p.m. on the night of the shooting, Molina, Juarez, and their two children went to Arteaga's Market, which is located six blocks from the Juarez house. As they were leaving the store, Molina asked, "[W]hat are you doing?" Juarez responded, "You didn't see those guys?" Molina later told an officer that she had seen a group of males standing by the laundromat, who were staring at Juarez, as they walked away from the store.
When Juarez was interviewed the day after the shooting, he also described the incident at Arteaga's Market. He told a detective that he did not have an argument at the store, but there were individuals who got too close to his wife. When asked whether these individuals were the ones who shot him, he responded, "Well, it seemed like it." He also stated that they were "mugging" him, that is, staring at him in a challenging manner. He described the people following him in the store as "Sureno style." Juarez mentioned that one of the individuals standing behind his wife seemed like he wanted to fight. Juarez said, "I kept looking at him." Juarez also stated that they were younger than he was.
Alvarez was driving home when she saw Molina and Juarez walking to Arteaga's Market. When Alvarez reached the next stop sign, she saw a Hispanic male, five feet five inches tall, about 140 pounds, and no more than 15 or 16 years old. He was bald and wearing a hooded sweater and baggy jeans. He also had a tattoo of a teardrop under his eye. Alvarez identified Cortes as the individual standing on the corner.
Late in the afternoon on April 3, 2013, Maribel E. (Maribel) picked up her brother J.E. and Guerra and drove to Arteaga's Market. Maribel, J.E., and Guerra encountered Cortes, Raul Ortiz, and two other individuals in the store parking lot. After about 10 or 15 minutes, Maribel drove J.E., defendants, and some others to the Las Animas Apartments where Ortiz lived. While Maribel was talking to Ortiz, J.E. asked her for the keys to her car so that he could go buy some beer. J.E. was with defendants when he made the request. Guerra entered the driver's side of the vehicle, Cortes was in the back passenger seat, and J.E. was in the front passenger seat.
Within "[m]inutes" after they left in her vehicle, Maribel heard the sound of sirens. She called J.E. When he answered, he "was talking quietly. He was nervous." Shortly thereafter, she called him again. Guerra answered the phone and told her that "they were okay and not to be afraid." Later that night, she went to Guerra's house to pick up her vehicle and to give J.E. a ride home. J.E. was afraid, nervous, and crying.
3. Identifications
At trial, Molina described the gunman as Hispanic, 16 or 17 years old, very skinny, and a "[l]ittle bit" taller than five feet three inches. The gunman was wearing baggie pants and a hoodie over a white tank top. He was bald, had a very distinctive walk, and had a tattoo underneath his eye. She identified Cortes as the gunman in court. When the police showed Molina still photographs from the surveillance video from Arteaga's Market, she identified Cortes. Molina also acknowledged that she told an officer at the scene that she was unable to make an identification of the gunman. She explained that she was distraught and wanted to protect her children.
Molina had been convicted of providing a false name in 2010 and burglary in 2007 and 2008.
Cortes was the only individual who had a shaved head and was wearing a gray-hooded sweatshirt in the photographs. He was also wearing shorts.
At that time, she described the gunman as a light-skinned Hispanic male, bald, five feet to five feet one inch tall, 130 to 145 pounds, and between 22 to 24 years old. He was wearing a gray hooded jacket, white tank top, and light blue "baggy, but not too baggy, jeans."
Angulo described the gunman as Hispanic, five feet five inches to five feet seven inches tall, 140 to 175 pounds, and 20 to 28 years old. He had a "buzz cut" and was wearing a gray hoodie, blue jeans, and a white shirt. She was unable to make a positive identification of the gunman when she viewed the photographic lineups.
Juarez testified that he was a former member of East Side Gilas (ESG), a Norteno subset. He did not associate with ESG in April 2013. About an hour before the shooting, he and Molina and their children went to Arteaga's Market. He denied any physical or verbal altercation with anyone and he did not notice if there were any Sureno gang members at the store.
In February 2015, Juarez was convicted of illegal possession of a dirk or dagger, possession of methamphetamine, possession of cocaine base, and possession of a fictitious document. In February 2013, he was convicted of two counts of possession of methamphetamine. In May 2004, he was convicted of illegal possession of a knife. In February 2001, he was convicted of resisting arrest. In January 2000, he was convicted of assault with a deadly weapon.
A few days after the shooting, Juarez was shown still images from the surveillance videos at Arteaga's Market. When Juarez was presented with the image of Cortes with two other individuals, he stated, "I recognize these guys." He also stated, "I remember this guy right here" when he referred to the image of Cortes. Cortes was wearing a gray sweatshirt and a white shirt. When asked if this was the person who shot him, Juarez said, "I can't see. I can't tell. I don't remember, like, exactly what the man looked like."
When Maribel was initially interviewed by the police three days after the shooting, she did not mention defendants. She subsequently told the police that she was not entirely forthcoming during her initial police interviews. She then gave a statement that was consistent with her trial testimony. She explained that she was afraid of defendants and that something would happen to her brother.
Maribel also gave the police a hat that had been left in her vehicle by Guerra. The DNA on the hat matched that of Guerra.
4. J.E.'s Testimony
J.E. was the key prosecution witness. When the shooting occurred, he was 17 years old and an "associate" of the Eighth Street and the Varrio Sur Rifa (VSR) Surenos. He had pleaded to accessory after the fact and admitted the truth of a gang allegation in connection with this case. He understood that his testimony in court could not be used against him in any future criminal proceeding, but that did not include perjury.
J.E. testified that Maribel picked him up and drove to Arteaga's Market between 5:00 p.m. and 6:00 p.m. on April 3, 2013. He did not enter the store and remained outside. At some point, he met defendants and some others. After they hung out in the parking lot for 15 to 20 minutes, they went to the Las Animas Apartments in Maribel's vehicle.
The group was at Las Animas Apartments for a few minutes when Guerra asked Maribel for her keys. She gave him the keys and J.E. and defendants went to get beer. Guerra was driving, J.E. was in the passenger seat, and Cortez was behind J.E. They saw two males and two females standing on Chestnut Street. J.E. knew that they were gang members based on their clothes, their haircuts, and their presence in a Norteno neighborhood. It appeared that the two males were "posting up," that is, "just standing there, talking shit."
At this point, Guerra made a left turn off of Chestnut Street, drove about half a block, made a U-turn back toward Chestnut Street, and drove in the direction of the four individuals. After Cortes asked to be dropped off at the corner, he exited the vehicle. Guerra told Cortes, "I'll meet you on the other side." J.E. asked, "Hey, what's going on?" Guerra responded, "Don't trip." Guerra drove through an alley that was parallel to Chestnut Street. After J.E. heard three or four gunshots, Guerra drove to the end of the alley. Cortes, who was holding a gun in his hand, came running toward the vehicle. After Cortes entered the vehicle, he said that he had "shot two fools" and that the "gun jammed." Guerra responded, "[D]on't make me think what I think it is."
Guerra drove to San Martin. They stopped at Spider's house and Guerra gave Spider the gun. It was a black nine-millimeter semiautomatic handgun, which J.E. had previously seen at Guerra's house. Guerra told Spider that the gun was "hot." Meanwhile, Cortes asked J.E. to "piss on his hands." When J.E. responded, "[P]iss on your own hand," Cortes did so. They eventually returned to Guerra's residence, where J.E. was picked up by Maribel.
J.E. initially testified that he had never seen the gun before that day.
J.E. also testified regarding his previous contacts with law enforcement. On March 24, 2013, J.E. was in a car with other youths when they were stopped by the police. There was a loaded .357 revolver under the front passenger seat directly in front of J.E. J.E. fled. He later told the police that he had not known the gun was in the car and he did not know who owned the gun. At trial, he testified that he had previously seen the gun at Guerra's house.
J.E. also admitted he had committed: a burglary in March 2012; a petty theft in September 2011; possession of a folding knife at school in March 2011; and a misdemeanor assault with force likely to produce great bodily injury in December 2010. The assault involved a potential Norteno gang member.
When J.E. was stopped by the police on April 6, 2013, he initially provided a false name but he later admitted his identity. J.E. was on probation and was out after curfew. The police searched his phone, found photographs indicating Sureno associations, and arrested him for a probation violation. Police also searched J.E.'s bedroom and found clothing often worn by Surenos and a notebook indicating gang affiliation.
J.E. was questioned for several hours at the police station. He initially gave a false account of his activities on April 3, 2013. He later stated that he had heard about the homicide, but he was not present when it occurred. J.E. expressed concern for himself and his family throughout the interviews. The police told J.E. that they knew who was in the car, but they did not believe that he had fired the gun. They also referred to DNA evidence, surveillance videos, and the possibility that others involved in the shooting would provide a statement before he did. J.E. repeatedly asked to speak to Maribel and he was eventually allowed to do so. When J.E. asked if they could help him if he was honest, he was told that he would be protected. J.E. then gave an account which was essentially consistent with his trial testimony. J.E. explained at trial that his initial statements to the police were false, because he was concerned that the gang would harm his family and kill him. He also did not want to spend the rest of his life in prison.
5. Cell Phone Evidence
Jim Cook testified as an expert in the areas of cell phones, carrier records, cell towers, mapping, and cell technology. He reviewed the cell phone records of J.E. and defendants on the night of the shooting. At 8:11 p.m., Cortes's phone received a call from Guerra's phone and connected with cell towers whose area of coverage included Arteaga's Market. At 8:29 p.m., Cortes's phone made a call and connected with a cell tower whose area of coverage included the crime scene. At 8:48 p.m., J.E.'s phone received a call that connected to a cell tower whose area of coverage included the crime scene. At 9:03 p.m. and 9:04 p.m., Guerra's and J.E.'s phones connected to a cell tower which served San Martin.
6. Gang Evidence
Detective Dawn Delfino of the Gilroy Police Department testified as a gang expert. There are several subsets of the Sureno criminal street gang near Gilroy, including VSR. However, Eighth Street is the only Sureno subset in Gilroy. The primary activities of Eighth Street include homicide, attempted homicide, assault with a deadly weapon, possession of weapons, vandalism, burglary, robbery, and narcotics sales. As a Sureno subset, Eighth Street is aligned with the Mexican Mafia prison gang to whom they pay taxes. Eighth Street identifies with the color blue and the numbers 8 and 13. In April 2013, there were approximately 70 to 75 Eighth Street members.
In December 2008, three Eighth Street members were jointly convicted of aggravated assault with a gang enhancement allegation. In January 2009, an Eighth Street member was convicted of possession of a concealed firearm with a gang enhancement allegation.
The primary rivals of the Surenos are the Nortenos, who are associated with the Nuestra Familia prison gang to whom they pay taxes. Nortenos identify with the color red, the number 14, and the letter N. Norteno subsets based in Gilroy include ESG. There were approximately 600 Nortenos in Gilroy. The shooting in the present case occurred on the border between Norteno and Sureno territory and thus was an area of conflict.
Cortes had extensive prior contact with law enforcement. In January 2005, he was 12 years old when he was detained. At that time, Cortes had the number 13 tattooed on his back and claimed affiliation with Surenos. In July 2005, three men, two of whom were wearing the color red, attacked Cortes. Cortes said he had been a gang member for a couple of months and that he associated with members of Eighth Street. In July 2007, Cortes was stabbed. At that time, he stated that he was not involved in gangs, but that all of his friends were Surenos. In September 2009, when Cortes was stopped in a vehicle, he had tattoos of three dots on his left wrist and three dots on the left side of his face in addition to the number 13 on his back. Cortes made a juvenile admission for attempted robbery, assault with a deadly weapon, a knife, and false imprisonment arising out of this incident. At the time of his arrest on April 7, 2013, police searched Cortes's residence and found clothing that indicated gang membership.
Guerra also had extensive prior contact with law enforcement. In December 2006, Guerra told an officer that some Nortenos at school had attempted to assault him and that he believed these same individuals had broken a window at his residence. He also told the officer that he affiliated with Surenos. In April 2008, Guerra was stabbed by a Norteno gang member. He stated that he "kick[ed] it with Eighth Street." In March 2012, Guerra sustained multiple birdshot pellet wounds to his face and head. Guerra told an officer that it was "gang-related" but he could not identify his assailant. In September 2012, Guerra's brother, who was also a Sureno, was shot. Guerra believed that the shooting was a gang crime.
In April 2013, Emiliano Pardo was associated with ESG. He observed an incident on March 20, 2013, in which four individuals in a truck called out "North Side" and Guerra responded by challenging them to a fight. Pardo also described an incident in early April 2013, in which Guerra removed his hood, showed off the tattoo of the letter G on his head, and challenged Pardo to a fight while police officers were nearby.
Detective Delfino opined that defendants were members of the Eighth Street Sureno gang when the shooting occurred. She based her opinions on defendants' tattoos, contacts and associations, admissions, and the facts of the present case.
In Detective Delfino's opinion, Juarez was an active member of the ESG Norteno subset at the time of the shooting. She based her opinion on his tattoos, his admissions, testimony from an ESG member, and a review of police department records. She further opined that Silos was an active Norteno gang member in April 2013 based on his tattoo, the facts and circumstances of this case, testimony from an ESG member, and a review of police department records.
In response to a hypothetical question based on the facts of the present case, Detective Delfino opined that the crimes were committed for the benefit of and in association with the Sureno criminal street gang. She explained that the crimes benefited the Surenos, because they caused Nortenos and others to fear them and aided in the recruitment of new members. In her opinion, the individuals also intended to promote, further, or assist the criminal conduct of gang members.
B. Defense Case
Cortes sought the removal of the tattoos of three dots under his eye and the number 13 on his back. He had six tattoo removal appointments between August 2012 and March 2013.
David Eatton, a former member of the Mexican Mafia and a current minister at Victory Outreach, testified as a gang expert. He explained that when a gang member has a gang tattoo removed, it means that the gang is no longer important to that person. The gang would also assault, stab, shoot, or kill that person. He had never heard of a gang member being killed for mugging a rival gang member. Eatton also saw a text message between Maribel and Ortiz which suggested that she was telling Ortiz that she would be dropping off a gun.
Cortes's mother and stepfather testified that in April 2013, Cortes went to work with his stepfather at 6:00 a.m. or 6:30 a.m. and returned home at around 4:00 p.m. or 4:30 p.m. On April 3, 2013, his mother saw him around 5:00 p.m. or 5:30 p.m. when she left to go to the store. After she returned, she assumed that he was at home because the light was on in his bedroom.
Dr. Kathy Pezdek, a professor of psychology, testified as an expert witness in eyewitness memory and identification. She reviewed the interviews, audiotapes, and videotapes of the eyewitnesses to the shooting. She explained that memory degrades over time and that distance, lighting conditions, and stressful circumstances affect an eyewitness's ability to make a correct identification. The presence of a weapon also serves to decrease the amount of exposure time available to look at the face. Dr. Pezdek noted that none of the eyewitnesses had more than a very brief period in which to see the gunman and they saw him under far less than ideal circumstances.
Dr. Pezdek explained the best practices for showing photographic lineups to witnesses. According to Dr. Pezdek, the display of photographs shown to Molina was not a reliable procedure to test her memory, because only one of the photographs matched the description of the gunman. The photographic lineup shown to Angulo was "fair and unbiased," because the individuals in the photographs matched the eyewitnesses' descriptions.
Robert Aguero testified as an expert in the area of cell phone forensics. He stated that some of the diagrams from Cook's presentation regarding the size of the cell tower coverage were arbitrary and did not coincide with industry standards. He explained that one cannot know the actual coverage of a cell tower site without conducting specific radio frequency tests. According to Aguero, a statement that an individual was in the vicinity of the crime scene was not supported by the data.
Casandra Hosseini, a probation officer, supervised J.E. between February and November 2011. J.E. violated the gang conditions of his probation on three occasions. He told Hosseini that he assaulted a student in December 2010 and that the assault was gang-motivated. J.E. admitted bringing a weapon to Gilroy High School and being a member of the Eighth Street gang. J.E. also associated with the VSR Sureno gang and stated that he intended to become an active member of this gang.
Jay Jennings, a probation officer, supervised J.E. from December 2011 to November or December 2013. J.E. told him about the March 23, 2013 incident. J.E. stated that he was with gang members and was violating his curfew condition of probation. When a probation search was conducted on April 6, 2013, the police found gang indicia in a notebook and on his cell phone which was a violation of his probation.
The parties stipulated that Detective Ballard would testify that he interviewed Molina on April 3, 2013. She told him that she did not notice any tattoos, did not really see the shooter's shoes, the shooter did not have any facial hair, did not describe the shooter's nose, and did not offer any detail about the shooter's face.
II. Discussion
A. Admissibility of Impeachment Evidence
Defendants contend that the trial court abused its discretion and violated their constitutional rights to present a defense when it excluded evidence to impeach J.E.'s credibility. We disagree.
1. Background
Prior to the testimony of J.E., the prosecutor sought to exclude evidence that J.E.'s family approached the codefendant in a March 2013 incident involving gun possession to "get their stories straight." The prosecutor argued that there was no evidence that J.E.'s family was acting on his behalf or at his direction. Defense counsel responded that the only way the family could have known about the incident was if J.E. had told them. He sought to ask J.E. on cross-examination if he asked his family to go to the codefendant's house "to get their stories straight."
The trial court excluded the evidence and stated: "[A]lthough it makes some sense that they received information from [J.E.], the next nexus, that they acted on his behalf or with his knowledge or his direction, appears to be lacking. [¶] So I'm -- under 352 -- well, I just don't think it's particularly relevant because of that lack of connection. But whatever relevance it is, I think, is substantially outweighed by the prejudice related to the . . . evidence from [J.E.]."
2. Analysis
Unless provided otherwise by statute, evidence is only admissible if it is relevant. (People v. Babbitt (1988) 45 Cal.3d 660, 681; Evid. Code, § 350.) Evidence Code section 210 defines relevant evidence as that which is "relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." Evidence that a witness has attempted to influence other witnesses is relevant to a determination of that witness's credibility. (See People v. Alcalde (1944) 24 Cal.2d 177, 184 ["A witness who has testified to material matters may be cross-examined as to his attempt to bribe other witnesses and it may be shown by other witnesses that he offered bribes to obtain false testimony."].)
The trial court has discretion to exclude evidence "if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.) An appellate court will not disturb a trial court's exercise of discretion in admitting or excluding evidence "except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice [citation]." (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
We reject defendants' assumption that J.E. attempted to manipulate witnesses in another case. Even assuming J.E. told his family about his involvement with the codefendant in the prior incident, nothing in the proffers of the prosecutor or defense counsel indicated that J.E. asked, directed, or in any way communicated to the members of his family that he wanted them to contact the codefendant to "get their stories straight." Thus, the evidence was not relevant to J.E.'s credibility. Since the probative value of the evidence was substantially outweighed by the probability that it would create undue prejudice, there was no abuse of discretion or violation of defendants' right to present a defense.
B. Limiting Instruction
Defendants next contend that the trial court erred when it failed to sua sponte instruct the jury on the limited purpose for which it could consider J.E.'s guilty plea.
Defendants primarily rely on United States v. Halbert (9th Cir. 1981) 640 F.2d 1000 (Halbert). In Halbert, the two codefendants pleaded guilty and testified against the defendant at his conspiracy trial. (Id. at p. 1004.) The defendant challenged his conviction on the ground that the codefendants' guilty pleas should not have been disclosed to the jury. (Ibid.) The Ninth Circuit Court of Appeals noted that a guilty plea was not admissible as evidence of the defendant's substantive guilt, but it was admissible on the issue of the codefendants' credibility. (Ibid.) While the admission of the evidence was therefore proper, the Ninth Circuit reversed because the district court had failed to give an appropriate limiting instruction. (Id. at p. 1006.) The district court had told the jury that the "disposition of [the codefendants] . . . should not control or influence you in your verdict with reference to the remaining defendant, Mr. Halbert. You must base your verdict as to him solely on the evidence presented to you in this courtroom." (Ibid.) The Ninth Circuit concluded that this instruction was inadequate, because it did not tell the jury "in unequivocal language that the plea may not be considered as evidence of a defendant's guilt" but "only as evidence of [the codefendants'] credibility." (Id. at pp. 1006-1007.)
In California, trial courts generally have no obligation to give sua sponte limiting instructions. (People v. Hernandez (2004) 33 Cal.4th 1040, 1051.) The Halbert court's holding that a sua sponte limiting instruction is required where evidence of a testifying codefendant's guilty plea is admitted into evidence does not apply in the present case. As the California Supreme Court concluded in People v. Williams (2013) 56 Cal.4th 630 (Williams), where the defense does not object to the admission of evidence of the guilty plea but instead "incorporate[s]" it into the defense case, a trial court has no obligation to give a limiting instruction. (Id. at p. 668.)
Here, as in Williams, defendants did not object to the admission of J.E.'s guilty plea. Defendants also incorporated J.E.'s guilty plea into the defense case by arguing that J.E. told the police what they wanted to hear in order to secure a negotiated plea agreement. This court is bound by the holding in Williams, supra, 56 Cal.4th 630. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Defendants also argue that if the trial court did not have a sua sponte duty to instruct the jury with a limiting instruction, trial counsel rendered ineffective assistance by failing to request one.
" 'In order to establish a claim of ineffective assistance of counsel, defendant bears the burden of demonstrating, first, that counsel's performance was deficient because it "fell below an objective standard of reasonableness [¶] . . . under prevailing professional norms." [Citations.] . . . If a defendant meets the burden of establishing that counsel's performance was deficient, he or she also must show that counsel's deficiencies resulted in prejudice, that is, a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." [Citation.]' [Citation.]" (People v. Lopez (2008) 42 Cal.4th 960, 966 (Lopez).) A reviewing court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' " (Strickland v. Washington (1984) 466 U.S. 668, 689 (Strickland).)
People v. Mackey (2015) 233 Cal.App.4th 32 (Mackey) is instructive. In Mackey, the reviewing court rejected the defendants' argument that trial counsel was ineffective when they failed to request a limiting instruction informing the jury that it could not rely on an accomplice's guilty plea as substantive evidence of the defendants' guilt. (Id. at pp. 119-120.) In that case, the jury was instructed "if a witness was 'convicted' of a crime or the jury finds he 'committed a crime or other misconduct,' such evidence could be used 'only in evaluating the credibility of the witness's testimony.' " (Id. at p. 119.) The Mackey court reasoned: "Rather than reflecting ignorance or indefensible tactics, the defense attorneys' failure to request a more explicit limiting instruction most likely reflected their understanding that the instruction limiting the use of a conviction applied equally to evidence of [the accomplice's] guilty plea. We cannot attribute their failure to request a different limiting instruction to ignorance of the law or indefensible tactics." (Id. at pp. 119-120.)
Similarly, here, the trial court informed the jury of the limited use it could make of J.E.'s guilty plea: "If you find that a witness has been convicted of a felony or misdemeanor, you may consider that fact only in evaluating the credibility of the witness's testimony." As in Mackey, we presume that trial counsels' decision to decline to seek any further limiting instruction was a sound strategy aimed at permitting the jury the broadest possible use of J.E.'s guilty plea against J.E. (Strickland, supra, 466 U.S. at p. 689.) Thus, we reject defendants' ineffective assistance of counsel claim.
C. Prosecutorial Misconduct
Defendants contend that the prosecutor committed prejudicial misconduct by distorting the reasonable doubt standard.
1. Background
The trial court instructed the jury: "Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt."
During argument, the prosecutor referred the jury to the instruction on the reasonable doubt standard read by the trial court. He also explained that any doubt "must be reasonable and must be based on the evidence presented." The prosecutor addressed the reasonable doubt standard on rebuttal: "The standard in this case -- both Mr. Gordon and Mr. Gillan talked about the legal standard, which is beyond a reasonable doubt. Okay. And that is the legal standard in this case. It is a high standard. Right? It's the highest standard there is in the law. [¶] . . . [¶] And it's the same legal standard that's tried in every single criminal case in this courthouse. Same legal standard that's tried in every criminal case in the courthouse in the 58 counties in California, as well as the 50 states in the United States. It's the same legal standard of beyond a reasonable doubt. [¶] And if you remember the stairs, if you will, regarding the standards of proof that Mr. Gillan put up, there are standards above beyond a reasonable doubt. Right? It's called 'beyond a possible doubt,' 'beyond imaginary doubt,' 'beyond a shadow of a doubt,' none of which apply here. Okay? It's beyond a reasonable doubt. [¶] And your common sense and reason is going to tell you it's a high standard, but it's not an unattainable standard. Individuals are convicted on a daily basis beyond a reasonable doubt, the same legal standard, the same legal principle, used in other cases." (Italics added.)
2. Analysis
Defendants contend that the italicized portion of the prosecutor's argument constituted misconduct, because it "trivialized the reasonable doubt standard by characterizing it as a modest one that is easy to meet." Defendants acknowledge that since trial counsel failed to make timely objections, they failed to preserve their claims of prosecutorial misconduct. (People v. Mendoza (2016) 62 Cal.4th 856, 905.) Thus, they contend that trial counsels' failure to object to these alleged instances of misconduct deprived them of the effective assistance of counsel. We conclude trial counsel was not incompetent, because the prosecutor did not engage in misconduct.
" ' "The applicable federal and state standards regarding prosecutorial misconduct are well established. ' "A prosecutor's . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct 'so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.' " ' [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ' " 'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.' " ' " ' [Citation.]" (People v. Gray (2005) 37 Cal.4th 168, 215-216.) "When the issue 'focuses on comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.' [Citations.]" (People v. Cole (2004) 33 Cal.4th 1158, 1202-1203.) " 'In conducting this inquiry, we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements. [Citation.]' [Citation.]" (People v. Brown (2003) 31 Cal.4th 518, 553-554.)
To support their claim that the prosecutor engaged in misconduct, defendants rely on People v. Nguyen (1995) 40 Cal.App.4th 28 (Nguyen). In Nguyen, the prosecutor stated: " 'The standard is reasonable doubt. That is the standard in every single criminal case. And the jails and prisons are full, ladies and gentlemen. [¶] It's a very reachable standard that you use every day in your lives when you make important decisions, decisions about whether you want to get married, decisions that take your life at stake when you change lanes as you're driving. If you have reasonable doubt that you're going to get in a car accident, you don't change lanes. [¶] So it's a standard that you apply in your life. It's a very high standard. And read that instruction, too. I won't paraphrase it because it's a very difficult instruction, but it's not an unattainable standard. It's the standard in every single criminal case.' " (Id. at p. 35.)
Defendants contend that the prosecutor's argument that "defendants are convicted 'on a daily basis' is very similar to the Nguyen prosecutor's argument that 'the jails and prisons are full.' " They also contend that "the prosecutor's argument in this case that the reasonable doubt standard is 'attainable' is nearly identical to the argument made by the Nguyen prosecutor that it is 'reachable.' "
Defendants' reliance on Nguyen is misplaced. The Nguyen court concluded the prosecutor engaged in misconduct when he compared the standard of guilt beyond a reasonable doubt to everyday decisions, like changing lanes while driving or deciding whether to marry, because it trivialized the standard of proof. (Nguyen, supra, 40 Cal.App.4th at p. 36.) In contrast to Nguyen, here, the prosecutor made no such comparisons.
In the present case, the prosecutor referred to the jury instruction on the reasonable doubt standard. He also stressed that it was a high standard and the highest standard in the law. At no point in his argument did he attempt to redefine this standard. Stating that the standard was used in all criminal cases and that it was not unattainable did not constitute misconduct. Accordingly, since we find no prosecutorial misconduct, trial counsel was not ineffective when they failed to object to the prosecutor's argument.
Defendants also contend that the cumulative impact of errors denied them the right to a fair trial. Since we have not found any error, this contention fails. (People v. Lee (2011) 51 Cal.4th 620, 657.)
D. Admissibility of Uncharged Misconduct Evidence
Guerra argues that the trial court erred when it admitted evidence that he had confronted Nortenos and sought to fight them shortly before the shooting.
1. Background
The prosecutor sought to introduce the testimony of Pardo, a former Norteno, about two incidents involving defendant Guerra. On March 20, 2013, Guerra was pat searched by a police officer. While the police officer was nearby, Guerra walked up to Pardo, called him a "buster," and challenged him to a fight. On April 2, 2013, an individual in a truck yelled to Guerra, "Puro norte." Guerra quickly walked in front of the truck and yelled at the occupants that he wanted to fight them. The prosecutor argued that the evidence was admissible to prove motive.
Citing Evidence Code section 352, trial counsel objected to the admission of the evidence on the grounds that it was cumulative and unduly prejudicial, since the prosecutor had ample evidence to show Guerra's animosity towards Nortenos.
The trial court ruled that the evidence was admissible on the issue of motive. The trial court stated: "So I do think it's highly relevant. I don't find it to be, particularly, a confusion of issues or an undue consumption of time since it seems to be coming in through one witness. And I don't find it to be overly prejudicial, given the high relevance."
2. Analysis
" 'Subdivision (a) of [Evidence Code] section 1101 prohibits admission of evidence of a person's character, including evidence of character in the form of specific instances of uncharged misconduct, to prove the conduct of that person on a specified occasion. Subdivision (b) of [Evidence Code] section 1101 clarifies, however, that this rule does not prohibit admission of evidence of uncharged misconduct when such evidence is relevant to establish some fact other than the person's character or disposition.' [Citation.]" (People v. Fuiava (2012) 53 Cal.4th 622, 667 (Fuiava).) Thus, evidence may be admitted to prove, among other things, motive. (Evid. Code, § 1101, subd. (b).)
" 'When reviewing the admission of evidence of other offenses, a court must consider: (1) the materiality of the fact to be proved or disproved, (2) the probative value of the other crime evidence to prove or disprove the fact, and (3) the existence of any rule or policy requiring exclusion even if the evidence is relevant. [Citation.] Because this type of evidence can be so damaging, "[i]f the connection between the uncharged offense and the ultimate fact in dispute is not clear, the evidence should be excluded." [Citation.]' " (Fuiava, supra, 53 Cal.4th at p. 667.) Moreover, the probative value of the uncharged misconduct must be weighed against the danger of "undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.) " ' "We review for abuse of discretion a trial court's rulings on relevance and admission or exclusion of evidence under Evidence Code sections 1101 and 352." [Citation.]' [Citation.]" (Fuiava, supra, 53 Cal.4th at pp. 667-668.)
Guerra concedes the evidence was relevant to prove motive. However, he argues that the evidence was cumulative and should have been excluded on that basis. Guerra summarizes the evidence of his animus towards Nortenos. In April 2008, Guerra was stabbed and he told the police that the motive for the assault was the enmity between Nortenos and Surenos. In March 2012, Guerra was shot and he told the police that the perpetrator was most likely a Norteno. In September 2012, when his brother was shot, Guerra told the police that it was a gang-related shooting.
We disagree that the evidence was cumulative. The evidence relied on by Guerra involved incidents that occurred long before the shooting in the present case. In contrast to that evidence, the challenged evidence involved incidents that occurred two weeks and the day before the shooting. Thus, this evidence was highly relevant on the issue of Guerra's motive when he participated in the shooting of Juarez and Silos.
Guerra also argues that evidence was unduly prejudicial.
"The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. '[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant's case. The stronger the evidence, the more it is "prejudicial." The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying [Evidence Code] section 352, "prejudicial" is not synonymous with "damaging." ' " (People v. Karis (1988) 46 Cal.3d 612, 638.) In determining whether evidence should have been excluded under Evidence Code section 352 as unduly prejudicial, we note that "[t]he potential for such prejudice is 'decreased' when testimony describing the defendant's uncharged acts is 'no stronger and no more inflammatory than the testimony concerning the charged offenses.' [Citation.]" (People v. Eubanks (2011) 53 Cal.4th 110, 144.)
Here, evidence that Guerra wanted to fight Nortenos was far less inflammatory than the charged crimes of murder and attempted murder. Nor would this evidence have evoked an emotional bias against Guerra. Accordingly, the evidence was not unduly prejudicial.
In sum, we conclude the trial court properly admitted the evidence of Guerra's confrontations with Nortenos shortly before the shooting.
E. Ineffective Assistance of Counsel
Cortes contends that evidence of his juvenile adjudications for attempted robbery, aggravated assault, and false imprisonment were inadmissible to establish either a predicate offense under section 186.22 or a basis for the gang expert's opinion. Thus, he contends that trial counsel rendered ineffective assistance when he conceded the admissibility of this evidence
Cortes also argues that the evidence was inadmissible as evidence of motive under Evidence Code section 1101, subdivision (b). However, the prosecutor did not seek the admission of this evidence under that section.
1. Background
Prior to trial, the prosecutor sought the admission of several prior incidents and police contacts involving defendants and J.E. At issue here are Cortes's prior juvenile adjudications: his admission of a robbery in 2008; and his admission of attempted robbery, aggravated assault, and false imprisonment with arming enhancements in 2009. The prosecutor sought the admission of this evidence to establish: one of the predicate offenses necessary to prove the gang enhancement under section 186.22; and a basis for the gang expert's opinion.
The prosecutor also sought to introduce evidence of three other crimes as predicate offenses. Two of these convictions were committed by individuals unrelated to the current case and the third was the charged offense. The prosecutor withdrew his request as to one of them when he realized that it was for a crime that was not listed under section 186.22, subdivision (e).
At the hearing on the motions in limine, the trial court and the parties discussed each individual incident and contact that the prosecutor sought to admit. As to the 2008 robbery, the trial court sustained trial counsel's objection under Evidence Code section 352, because there was insufficient evidence that the crime was gang-related. As to the 2009 incident, the prosecutor stated that he intended to introduce the testimony of three police officers and documentary evidence to prove the conduct underlying the juvenile adjudications. He stated that Cortes stabbed the victim during the robbery attempt, fled with two other Sureno gang members, and admitted to the police that he hung out with Surenos. Trial counsel argued that the facts constituted hearsay and presented Confrontation Clause issues, but he agreed that and Cortes's admission of the charges and his statements to the police were admissible. The trial court ruled that the record of the sustained petition was admissible as well as Cortes's statements and the officers' personal observations, but the details of the crimes were inadmissible.
2. Analysis
As previously stated, in order to prevail on an ineffective assistance of counsel claim, a defendant must show that " 'counsel's performance was deficient because it "fell below an objective standard of reasonableness [¶] . . . under prevailing professional norms" ' " and that " ' "counsel's deficiencies resulted in prejudice . . . .' " (Lopez, supra, 42 Cal.4th at p. 966.)
We first consider whether the evidence of the 2009 incident was admissible to prove a predicate offense.
Section 186.22 provides a sentencing enhancement for those who commit felonies "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).) In order to prove this enhancement, the prosecutor was required to show that the Eighth Street gang was a criminal street gang, which involved establishing that Eighth Street members "individually or collectively engage in, or have engaged in a pattern of criminal gang activity." (§ 186.22, subd. (f).) A " 'pattern of criminal gang activity' " may be established by proving two or more criminal convictions by gang members for certain enumerated offenses. (§ 186.22, subd. (e).) These convictions are known as predicate offenses. (People v. Duran (2002) 97 Cal.App.4th 1448, 1457.)
In People v. Tran (2011) 51 Cal.4th 1040 (Tran), the California Supreme Court rejected the defendant's contention that the inherent prejudice in evidence of a defendant's offense on a separate occasion to establish a predicate offense requires its exclusion under Evidence Code section 352. (Tran, at pp. 1046-1050.) The court explained: "In prosecutions for active participation in a criminal street gang, the probative value of evidence of a defendant's gang-related separate offense generally is greater because it provides direct proof of several ultimate facts necessary to a conviction. Thus, that the defendant committed a gang-related offense on a separate occasion provides direct evidence of a predicate offense, that the defendant actively participated in the criminal street gang, and that the defendant knew the gang engaged in a pattern of criminal gang activity. [¶] At the same time, the inherent prejudice from a defendant's separate gang-related offense typically will be less when the evidence is admitted to establish a predicate offense in a prosecution for active participation in a criminal street gang, than when it is admitted to establish an intermediary fact from which guilt may be inferred. . . . [B]ecause the prosecution is required to establish the defendant was an active participant in a criminal street gang and had knowledge of the gang's criminal activities, the jury inevitably and necessarily will in any event receive evidence tending to show the defendant actively supported the street gang's criminal activities. That the defendant was personally involved in some of those activities typically will not so increase the prejudicial nature of the evidence as to unfairly bias the jury against the defendant. In short, the use of evidence of a defendant's separate offense to prove a predicate offense should not generally create 'an intolerable "risk to the fairness of the proceedings or the reliability of the outcome." ' [Citation.]" (Tran, at p. 1048.)
Cortes argues that his prior adjudications were inadmissible to establish a predicate offense, because the prosecutor had evidence of three other crimes that he could have introduced as evidence of predicate offenses. He acknowledges that "the prosecution cannot be compelled to ' "present its case in the sanitized fashion suggested by the defense." ' " (Tran, supra, 51 Cal.4th at p. 1049.) But he points out that, as the Tran court recognized, "the probative value of the evidence inevitably decreases with each additional offense, while its prejudicial effect increases, tilting the balance towards exclusion." (Ibid.)
Here, the evidence was highly probative of a predicate offense. More importantly, though the prosecutor introduced other evidence to establish the predicate offenses, the evidence of Cortes's offenses in 2009 was also probative of his active participation in the criminal street gang and his knowledge that the criminal street gang engaged in a pattern of criminal activity. In our view, the evidence was not unduly prejudicial. Since the juvenile petition had been sustained, "there was little danger of confusing the issues by requiring the jury to determine if defendant was guilty of both the charged offenses and the [prior offenses], and no risk the jury might convict defendant to prevent him from escaping punishment for the [prior offenses]." (Tran, supra, 51 Cal.4th at p. 1050.) In addition, the prior offenses were far less inflammatory than the charged offenses. The trial court also gave a limiting instruction that the evidence could not be used to prove Cortes was a person of bad character or that he had a disposition to commit crimes. We presume the jury follows the trial court's instructions. (People v. Alfaro (2007) 41 Cal.4th 1277, 1326.) Based on this record, we are not persuaded that the evidence was inadmissible to establish a predicate offense.
Cortes also contends that the evidence was inadmissible as the basis for the gang expert's opinion. He argues that the incident in 2009 was not probative of his gang membership in 2013. While the evidence did not establish his gang membership at the time of the charged offenses, it nevertheless tended to show the nature of his involvement with a criminal street gang and thus supported the gang expert's opinion.
Relying on People v. Leon (2008) 161 Cal.App.4th 149, Cortes next argues that the gang expert had "a multitude of gang contacts and incidents" on which to base her opinion. In Leon, the reviewing court held that the trial court erred in allowing the prosecution to introduce evidence of the defendant's prior juvenile adjudication because it was cumulative to other evidence of the defendant's gang membership. (Id. at p. 169.) First, the Tran court rejected this argument and held that a defendant's own offenses may be admitted even when there is other evidence of a pattern of criminal activity. Second, the Tran court distinguished Leon, because the evidence in Leon was admitted under Evidence Code section 1101, subdivision (b) to prove an intermediary fact rather than an ultimate fact. (Tran, supra, 51 Cal.4th at p. 1049, fn. 3.)
In sum, Cortes's juvenile adjudications were admissible to establish a predicate offense under section 186.22 and as a basis for the gang expert's opinion. Consequently, trial counsel's performance was not deficient.
F. Sufficiency of the Evidence to Support Prior Strike Findings
Cortes contends that there was insufficient evidence to support the trial court's findings that three of his prior juvenile adjudications constituted strikes under the "Three Strikes" law.
1. Background
To prove three of the strike allegations, the prosecutor introduced documents from case No. 304JV28819F. The juvenile wardship petition alleged that on September 28, 2009, Cortes committed attempted robbery (§§ 664, 211-212.5, subd. (c) - count 1), assault with a deadly weapon or by means of force likely to produce great bodily injury (§ 245, subd. (a)(1) - count 2), and felony false imprisonment (§§ 236-237 - count 3). Count 2 specifically alleged that Cortes committed "an assault . . . with a deadly weapon and instrument other than a firearm . . . and by means of force likely to produce great bodily injury." Each count alleged that Cortes personally used a deadly and dangerous weapon, a knife (§ 12022, subd. (b)(1)). In December 2009, Cortes signed a "Waiver Form With Advisements, Stipulations, Declarations, Findings, And Orders." Cortes indicated that he understood: he was charged with the offenses in the petition, including assault with a deadly weapon with the notation "PC 245(a)(1)"; and when he admitted the offenses he was "telling the Judge the facts stated in the Petition/Notice [were] true." The juvenile court found that Cortes admitted the allegations in the petition as filed. Cortes was continued as a ward of the juvenile court and it was found that the commitment was made under Welfare and Institutions Code section 707, subdivision (b).
Following trial, the court found that these three strike allegations were true.
2. Analysis
"Due process requires the prosecution to shoulder the burden of proving each element of a sentence enhancement beyond a reasonable doubt. [Citations.]" (People v. Tenner (1993) 6 Cal.4th 559, 566.) " '[The] trier of fact is entitled to draw reasonable inferences from certified records offered to prove a defendant suffered a prior conviction . . . .' [Citations]." (People v. Delgado (2008) 43 Cal.4th 1059, 1066 (Delgado).) "On review, we examine the record in the light most favorable to the judgment to ascertain whether it is supported by substantial evidence." (Id. at p. 1067.)
Section 667, subdivision (d)(3) specifies four requirements that must be met in order for a juvenile adjudication to qualify as a strike under the Three Strikes law: "(A) The juvenile was 16 years of age or older at the time he or she committed the prior offense. [¶] (B) The prior offense is listed in subdivision (b) of Section 707 of the Welfare and Institutions Code or described in paragraph (1) or (2) as a serious and/or violent felony. [¶] (C) The juvenile was found to be a fit and proper subject to be dealt with under the juvenile court law. [¶] (D) The juvenile was adjudged a ward of the juvenile court within the meaning of Section 602 of the Welfare and Institutions Code because the person committed an offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code."
In People v. Garcia (1999) 21 Cal.4th 1 (Garcia), the California Supreme Court interpreted the second and fourth requirements in section 667, subdivision (d)(3): "Under paragraph (B), a prior juvenile adjudication qualifies as a prior felony conviction for Three Strikes purposes only if the prior offense is listed in Welfare and Institutions Code section 707(b) or is classified as 'serious' or 'violent.' Paragraph (D) does not modify or conflict with paragraph (B), but states a separate, additional requirement: the prior adjudication qualifies as a prior felony conviction only if the defendant, in the prior juvenile proceeding, was adjudged a ward because of at least one offense listed in section 707(b)." (Garcia, at p. 13.).
Cortes contends that none of the three crimes for which he was adjudicated in case No. 304JV28819F is listed under Welfare and Institutions Code section 707, subdivision (b) and thus may not be used as strikes in the current case.
Attempted robbery and false imprisonment are not listed under Welfare and Institutions Code section 707, subdivision (b). Subdivision (b)(14) includes "[a]ssault by any means of force likely to produce great bodily injury," but does not list assault with a deadly weapon.
In In re Pedro C. (1989) 215 Cal.App.3d 174 (Pedro C.), the minor admitted committing former section 245, subdivision (b), which proscribed the commission of " 'an assault with a deadly weapon or instrument, other than a firearm, or by any means likely to produce great bodily injury upon the person of a peace officer or fire[fighter], engaged in the performance of his or her duties . . . .' " (Pedro C., at p. 182.) This court held that "[Welfare and Institutions Code] section 707(b)(14) embraces violations of Penal Code section 245, subdivision (b)[,] which are charged as assaults with deadly weapons or instruments, rather than as assaults by means likely to produce great bodily injury." (Ibid.) We noted that Welfare and Institutions Code section 707, subdivision (b) lists "serious felonies," and reasoned, "Given this statutory scheme, for this court to determine that assault with a deadly weapon is not a section 707, subdivision (b) offense would be to elevate form over substance. [Citations.] ' "A deadly weapon is one likely to produce death or great bodily injury." ' [Citations.] Necessarily, then, assault with a deadly weapon includes assault by means likely to produce great bodily injury [¶] . . . [T]herefore . . . appellant's Penal Code section 245, subdivision (b) offense falls within the purview of [Welfare and Institutions Code] section 707, subdivision (b) . . . ." (Pedro C., at pp. 182-183.)
Cortes argues that Pedro C. was effectively overruled by the California Supreme Court in People v. Aguilar (1997) 16 Cal.4th 1023 (Aguilar). The issue in that case was whether the use of hands or feet may support a conviction of assault with a deadly weapon. (Id. at p. 1029.) The Aguilar court confirmed that the " 'deadly weapon' " and " 'force likely' " clauses were two distinct prongs of section 245. (Aguilar, at p. 1030.) After analyzing the statute, the court concluded that "a 'deadly weapon' within the meaning of section 245 must be an object extrinsic to the human body. Bare hands or feet, therefor, cannot be deadly weapons; to the extent the prosecutor's argument suggested the contrary, it was erroneous." (Id. at p. 1034.) Cortes argues that when a weapon is deadly per se, like the knife that he admitted using when he committed the three offenses in case No. 304JV28819F, the conduct of assaulting someone with a deadly weapon is separate and distinct from the conduct of assault with force likely to produce great bodily injury.
The Attorney General counters that the reasoning of Aguilar is consistent with the holding in Pedro C. He also points out that Aguilar did not consider and did not hold that assault with an inherently deadly weapon cannot come within the meaning of Welfare and Institutions Code section 707, subdivision (b)(14). He further argues that a knife is not deadly per se. (People v. McCoy (1944) 25 Cal.2d 177, 188.)
We need not consider whether Pedro C. has been overruled by Aguilar. Here, the facts outlined in the wardship petition alleged that Cortes committed "an assault upon the person of Carlos O. with a deadly weapon and instrument other than a firearm, a(n) knife, and by means of force likely to produce great bodily injury." (Italics added.) By signing the waiver form, Cortes agreed that when he admitted the offenses he was "telling the Judge the facts stated in the Petition/Notice [were] true." The juvenile court found that Cortes "admitted the petition" "as filed." Based on this record, there was substantial evidence to support the finding that Cortes committed assault by means of force likely to produce great bodily injury, which is listed in Welfare and Institutions Code section 707, subdivision (b)(14). Thus, there was sufficient evidence to support the trial court's finding that these three juvenile adjudications constituted strikes under the Three Strikes law.
Cortes relies on the portion of the waiver form in which he admitted that he was charged with the offenses in the petition, including assault with a deadly weapon with the notation "PC 245(a)(1)." However, Cortes has overlooked the evidence supporting the judgment. (Delgado, supra, 43 Cal.4th at p. 1067.) --------
G. Retroactivity of Section 12022.53
Defendants each received two 25-year-to-life firearm enhancements under former section 12022.53, subdivision (d) for the murder and attempted murder convictions.
When defendants were sentenced, former section 12022.53 prohibited the trial court from striking "an allegation under this section or a finding bringing a person within the provisions of this section." (Former § 12022.53, subd. (h); see Stats. 2010, ch. 711, § 5.) However, section 12022.53 was amended effective January 1, 2018. Section 12022.53, subdivision (h) now provides: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (Stats. 2017, ch. 682, § 2.)
Relying on the retroactivity principles in In re Estrada (1965) 63 Cal.2d 740 (Estrada) and People v. Francis (1969) 71 Cal.2d 66 (Francis), defendants contend, and the Attorney General concedes, that the case must be remanded for resentencing to allow the trial court to consider whether to strike the section 12022.53 enhancements.
The Estrada court set forth an exception to the general rule that changes in the law apply prospectively: "When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply. The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final." (Estrada, supra, 63 Cal.2d at p. 745.)
The Francis court determined that the same exception applied when a statutory amendment gave the trial court discretion to impose a lower sentence. In that case, the defendant was convicted of committing a felony drug offense. While his case was pending on appeal, the statute was amended to change the drug offense from a straight felony to a wobbler that could be charged as a felony or a misdemeanor. The court determined that the amendment was retroactive under the principles of Estrada. (Francis, supra, 71 Cal.2d at pp. 75-78.) The court reasoned that while the amendment did not guarantee the defendant a lower sentence, making the crime punishable as a misdemeanor showed a legislative intent that punishing the offense as a felony might be too severe in certain cases. (Id. at p. 76.)
We agree with the parties that the case must be remanded for the trial court to consider whether to exercise its discretion under section 12022.53, subdivision (h).
III. Disposition
The judgments are reversed. On remand, the trial court is directed to consider whether to exercise its discretion to strike the section 12022.53 enhancements under section 1385. If the trial court decides to strike the enhancements, it shall resentence defendants. If the trial court decides not to strike the enhancements, it shall reinstate the judgments.
/s/_________
Mihara, J. WE CONCUR: /s/_________
Elia, Acting P. J. /s/_________
Bamattre-Manoukian, J.