Opinion
F068452
01-13-2017
THE PEOPLE, Plaintiff and Respondent, v. ALFREDO NAVARRO et al., Defendants and Appellants.
Mark L. Christiansen, under appointment by the Court of Appeal, for Defendant and Appellant Alfredo Navarro. Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant Aurelio Alonzo Llamas, Jr. Marcia Levine, under appointment by the Court of Appeal, for Defendant and Appellant Ruben Enrique Juarez. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Galen N. Farris, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. VCF215902D, VCF215902E, VCF215902C)
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Valeriano Saucedo, Judge. Mark L. Christiansen, under appointment by the Court of Appeal, for Defendant and Appellant Alfredo Navarro. Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant Aurelio Alonzo Llamas, Jr. Marcia Levine, under appointment by the Court of Appeal, for Defendant and Appellant Ruben Enrique Juarez. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Galen N. Farris, Deputy Attorneys General, for Plaintiff and Respondent.
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Alfredo Navarro, Ruben Enrique Juarez, and Aurelio Alonzo Llamas, Jr., were each convicted of first degree murder with three special circumstances (felony murder, torture murder, and gang murder), as well as a gang enhancement and vicarious, gang-related firearm enhancements. They were sentenced to life without the possibility of parole plus an indeterminate term of 25 years to life in prison.
Each defendant challenges the sufficiency of the evidence as to the true findings on the torture-murder special circumstance, the gang-murder special circumstance, the gang enhancement, and the vicarious, gang-related firearm enhancements. We agree we must vacate the true finding on the torture-murder special circumstance under People v. Mungia (2008) 44 Cal.4th 1101 (Mungia), and all gang-related penalties under People v. Prunty (2015) 62 Cal.4th 59 (Prunty), for insufficiency of the underlying evidence.
Defendants also challenge the imposition on each of them of a parole revocation restitution fine in the amount of $2,000, which they contend constitutes an unauthorized sentence. The People concede the point; we agree with the parties and strike the fine as to each defendant.
Llamas, who was a minor at the time of the commission of the murder underlying this matter, further contends his case must be remanded for resentencing because the trial court did not understand the scope of its discretion under Penal Code section 190.5, subdivision (b), the applicable sentencing statute, when it sentenced him to life without the possibility of parole. The People agree that Llamas's case must be remanded for resentencing in light of People v. Gutierrez (2014) 58 Cal.4th 1354 (Gutierrez), which was decided after defendants were sentenced. Gutierrez construed section 190.5, subdivision (b) to comport with constitutional constraints applicable to life without parole sentences for juvenile offenders under Miller v. Alabama (2012) 567 U.S. ___ (Miller).) We agree that Gutierrez requires remand of Llamas's case for resentencing in order for the trial court to impose sentence with the benefit of "proper guidance on the sentencing discretion conferred by section 190.5[, subdivision] (b) and the considerations that must inform the exercise of that discretion." (Gutierrez, supra, at pp. 1391-1392.) Accordingly, we vacate Llamas's sentence and remand his case for resentencing consistent with Gutierrez.
Further statutory references are to the Penal Code unless stated otherwise.
FACTS AND PROCEDURAL HISTORY
A second amended criminal complaint (complaint) filed in the Tulare County Superior Court charged defendants herein, along with Jesus Lopez Angulo and Reynaldo Fernando Ruiz, with the murder of Robert "Shorty" Santillan. (§ 187, subd. (a).) As to each defendant, the complaint included felony-murder, gang-murder, and torture-murder special circumstance allegations (§ 190.2, subd. (a)(17), (18) & (22)), as well as a gang enhancement (§ 186.22, subd. (b)(1)(C)) and vicarious gang-related firearm enhancements (§ 12022.53, subds. (c), (d) & (e)(1)). The complaint specified that defendant Llamas was a minor who was at least 16 years of age at the time of the commission of the charged offense.
Reynaldo Ruiz resolved the criminal charges against him before the case proceeded to preliminary hearing. He pleaded guilty to first degree murder, admitted the gang enhancement, and was sentenced to 25 years to life in prison. He was called by the People to testify at the later trial of his codefendants but invoked his Fifth Amendment privilege against self-incrimination.
Angulo, Navarro, Juarez, and Llamas were charged by information with Santillan's murder. (§ 187, subd. (a).) The information alleged a number of special circumstance and sentence enhancement allegations as to all defendants. Regarding special circumstances, the information alleged that the murder qualified as (1) felony murder because it was committed during a kidnapping; (2) street-gang murder because it was committed by an active criminal gang participant to further the activities of the gang; and (3) torture murder because it involved the infliction of torture. (See § 190.2, subd. (a)(17), (18) & (22).) As to other enhancements, the information alleged that the offense was committed for the benefit of a criminal street gang under section 186.22, subdivision (b)(1)(C). The information further included gang-related vicarious firearm enhancements, specifically that a principal had personally and intentionally discharged a firearm, both a shotgun and a handgun, in connection with the murder, within the meaning of section 12022.53, subdivisions (d) and (e)(1) and subdivisions (c) and (e)(1). The information specified that Llamas was a minor who was at least 16 years of age at the time of the commission of the charged offense.
After the information was filed, Angulo pleaded guilty to kidnapping in exchange for a maximum sentence of eight years. (§ 207, subd. (a).) He testified for the prosecution at the subsequent trial of his codefendants as required under the terms of his plea bargain.
The remaining defendants, Navarro, Juarez, and Llamas, were tried in a joint jury trial. The People opted not to seek the death penalty. The jury found the three defendants guilty and found each special circumstance and enhancement allegation to be true.
The court sentenced Navarro, Juarez, and Llamas to life without the possibility of parole (LWOP) on the murder conviction, plus a consecutive term of 25 years to life on one of the firearm enhancements. (§§ 190.2, subd. (a), 12022.53, subds. (d) & (e)(1).) At the time of the offense, Navarro was 18 years old, Juarez was 19 years old, and Llamas was 17 years old.
Navarro, Llamas, and Juarez filed the instant appeals. This opinion addresses the claims of all three defendants.
Discovery of the body
On January 17, 2009, the body of Robert "Shorty" Santillan was found in an orange grove in Tulare County. Tattoos on his body suggested he was a gang member. He had suffered gunshot wounds to the head, chest, abdomen, and groin, as well as multiple blunt force injuries to the head and torso. He also had superficial sharp injuries on the side of his torso. There was no wound to the throat or neck. The causes of death were gunshot wounds and blunt force trauma to the head. The positions of the shooter or shooters and the distance from which the shots were fired could not be determined with any exactitude, but the trajectories of the bullets within the body suggested the shots were fired from above while Santillan was on the ground.
Three projectiles, two unexpended 20-gauge shotgun shells, three shotgun hulls, and a couple of wads were near or under the body.
Events in Jesus Angulo's backyard
On the night of January 16, 2009, Angulo, Ruiz, Santillan, Navarro, Juarez, and Llamas gathered in the backyard of Angulo's house in Ivanhoe to drink beer and talk. All six were members of an Ivanhoe gang called the Crazy Fucking Mexicans (CFM), a subset of a southern gang, and used the following gang monikers: Conejo (Angulo), Casper (Ruiz), Shorty (Santillan), Dodger or Baby (Navarro), Lil Flaco (Juarez), and Gangster (Llamas). Santillan was Juarez's cousin and had very recently come out of prison. The prosecution's gang expert testified that Santillan was a "shot caller" or senior member of the CFM; the gang, however, had only existed since 2005 or 2006.
By the end of the evening, Santillan was murdered. Shortly thereafter, Angulo, Ruiz, Navarro, Juarez, and Llamas were charged with the murder, along with special circumstances and gang allegations. Angulo, who was 20 years old at the time of the offense, testified for the prosecution and described the events leading up to the murder.
Angulo testified that, upon arrival at his house, the group of six men gathered by a backyard bonfire to drink beer and talk. The group had previously been drinking at Ruiz's house and at least Santillan and Juarez were already intoxicated or "buzzing." The discussion in the backyard quickly degenerated into a verbal, and then physical, altercation between Santillan on one side and the rest of the group on the other side. From that point on, they continued to alternate between physical and verbal spats. The cycle started when Santillan physically attacked Llamas and the others retaliated by hitting Santillan. Another round of fighting broke out when Santillan made dismissive comments about the gang and threatened to get back at the others for assaulting him. A third round of fighting erupted when Santillan attempted to break away as the group was leaving the backyard. At that juncture, the rest of the group overpowered him, hit and kicked him, put him in the trunk of Ruiz's car, drove to a nearby orchard, and shot and killed him.
Angulo had met Santillan for the first time that night and was not aware that Santillan had special status within the gang. Angulo testified that, shortly after the group gathered in his backyard, Santillan accused Navarro of not "putting in work" or committing crimes on behalf of the gang. Llamas, the youngest member of the group, contradicted Santillan, insisting that Navarro worked hard for the gang. Angered by Llamas's interference, Santillan hit him in the face. The two got into a fight and threw punches at each other until Santillan knocked Llamas to the ground.
Santillan then put his arm around Llamas's neck and began to choke him. Llamas could not breathe and was crying; it seemed like Santillan was trying to kill him. Santillan ignored everyone's pleas to let go of Llamas. Emotions were running high and the others physically intervened to assist Llamas. They struggled with Santillan, striking him in the face and head. Eventually, Santillan released Llamas and moved aside.
Angulo testified that, as Llamas was getting up after the struggle, "he grabbed—gave me a gun. [A] .357 chrome one." Angulo did not see where or how Llamas obtained the gun. Angulo ran and put the gun in the passenger side door of Juarez's "gray Cutlass" that was parked nearby. Angulo had seen the gun before and knew it belonged to Santillan. The gun was formerly kept at Angulo's house but, in the last few weeks, Juarez had taken the gun to the apartment of his girlfriend's sister. After Santillan got out of prison, he lived at that same apartment with Juarez.
The prosecutor suggested in his opening statement and closing argument that Llamas took the gun out of Santillan's waistband, thereby disarming Santillan.
The group was upset that Santillan had turned on Llamas and continued to reprimand and argue with him. Santillan suggested the men put him in "check" or discipline him for the error by beating him up "for a little bit." The argument, however, continued unabated. Santillan ultimately commented, "[f]uck the varrio" or "[f]uck the gang."
Angulo testified that Santillan's comment further inflamed matters. Navarro, Llamas, Juarez, and Ruiz "rushed him" and "started jumping him again, hitting him." "They dropped [Santillan] ... with his back in the ground, face up. [Ruiz] got on top of him, on his stomach holding the left hand side, and Llamas was holding his right hand. And they were hitting him, punching him in the face, hitting him. [¶] ... [¶] Juarez ... was there hitting him too in the side." Juarez then ran into the house and retrieved a kitchen knife with which he tried to stab Santillan in the side but did not appear to draw blood; the knife's plastic handle broke off.
Santillan became very angry during the attack. He said he was "gonna kill" them all and that "[a]ll you fuckers are dead." Angulo was scared of Santillan, as well as of his attack on Llamas and threats to get back at them. Angulo and Navarro stepped away from the fight. Santillan continued to struggle with the others; he managed to free his right hand and punched Ruiz in the face. Ruiz then backed off and Santillan got up.
Florencia Rodriguez subsequently testified that Juarez, Navarro, and Llamas came to her house later that night. Defendants told her they realized "that they'd better kill [Santillan] or he was going to come back and get them all." Defendants discussed that Santillan had turned to Juarez and said, "I know what you got at home."
The situation remained heated as Navarro, Llamas, Juarez, and Ruiz pressed the point that Santillan had "fucked up by saying, '[f]uck the varrio.'" Santillan told them to consider the fight as a "chequeada" or "check" for the error. During this back and forth, Angulo's dad came out and told the group to quiet down. A little later, Angulo's younger brother, Alfonso, came out and told Angulo their dad wanted everyone to leave. Angulo accordingly directed everyone to leave.
Angulo testified that, as the group started walking to the front yard, "[Santillan] tried to run, run, run away towards the front yard, run. But the guys grabbed him" just before he got to the driveway. Juarez, Llamas, Navarro, and Ruiz "started beating [Santillan] up, hitting him. They threw him in the ground. He fell with his stomach down towards the—my driveway, face down. They started hitting him. Llamas started—grabbed his right hand, hitting him. And Ruiz had the left hand. And [Juarez] was on top of his back hitting him in the head. They were hitting him."
Angulo further testified, "When they were hitting him, Navarro ran to my house, inside my house to my room, grabbed the other gun, the shotgun out of my sofa. Came back out, ran toward the driveway where [the others] were at. They were hitting him." "Navarro tried to—want[ed] to shoot him in my driveway, but I stopped him. Told him no. There's neighbors around that are gonna hear a gun, you know. So I stopped him." Angulo explained that Navarro was pointing the shotgun at Santillan's back and the gun "was loaded." Angulo iterated that Navarro had the gun "[p]ointed at [Santillan]. Try to shoot him, but I stopped him. Told him no."
At this point, Santillan begged the group to let him go; he said he would leave town and move to Sacramento; he specifically appealed to Juarez, who was his cousin. Juarez said, "No, you fucked up. I have to do it." Ruiz then ran to his car, which was parked in front of the house, as the others, for a period of "less than a minute," kicked Santillan in the head and on his "back ... butt ... and leg[s]." Ruiz opened the car's trunk, took his son's car seat out and put it behind Angulo's fence. Angulo testified that "everybody decided—everybody grabbed [Santillan]" and put him in the trunk: "[Juarez and Ruiz] got his upper body, Navarro got one of his legs, me and Llamas, we hold another leg and put him in the trunk." Santillan was still moving, he was gagging. As they "closed the trunk" and "were all standing right there behind the trunk," Juarez and Ruiz said, "'Whoever says anything to anyone, same thing that happened to [Santillan] is gonna happen to that person.'"
Angulo testified that Juarez then "sliced [Santillan's] throat" with the kitchen knife that was missing its handle, causing Santillan to gag and lose blood. However, the physician and forensic pathologist who conducted the autopsy testified there was no injury to Santillan's throat or neck and no sign, internally or externally, that Santillan's throat had been cut by a sharp object.
Angulo described what happened next. "[Ruiz] got into his driver's seat, Navarro got in behind the driver's seat with the shotgun, and [Juarez] was in the passenger side with the knife. [¶] Llamas was getting in the passenger's back seat. I was gonna enter, but I stopped. I told them, 'I'm not gonna go,' I wasn't gonna go. So Llamas told [Ruiz] to hold on, to hold on. He got off. [¶] He ran to my backyard towards the gray car and behind the car, the yard. Passenger side. Grabbed a gun, the chrome gun .357, running out on his right hand swinging, running. Got in the car, closed the door, they took off. Never heard from them no more."
As the others drove off, Angulo felt "scared." He washed down "real quick" what looked a "[l]ittle like a puddle" of blood on his driveway and then "[w]ent back in, called [his] girlfriend to come over, and stayed home." Angulo testified, "I was scared. Just I needed someone just to be right there with me." His girlfriend arrived in 15 minutes and Angulo "[j]ust walked in [his] room, closed the door," and stayed there for the rest of the night. The next day, he disposed of the knife handle that had broken off during the previous night's fighting and threw away a shoe he found in the backyard. He never saw the shotgun or the handgun again.
The shoe likely belonged to Juarez, who was wearing only one shoe when he got to his girlfriend's house later that night.
As to his own role in the incident, Angulo testified it was limited to two kicks to Santillan's leg and "putting him in the trunk." He also testified that he had been a member of the CFM gang for two years but had not put in any "work" for the gang and was not a particularly active gang member.
Angulo's younger brother, Alfonso, was the only other witness to testify about events in the backyard, based on a limited interaction with the group. Alfonso was 15 or 16 years old at the time, he had a seizure disorder, and was not a member of the CFM. His testimony was not particularly significant as he could not recall many details. However, the prosecution introduced evidence of a statement Alfonso gave to the police during the investigation of Santillan's murder. The officer who took Alfonso's statement testified that Alfonso told him that Santillan was "acting stupid" that night and there was a fight between him and the others who were gathered in the backyard; Alfonso also said Santillan was throwing things around. The officer further testified that Alfonso noted that after the fight, "the subjects picked up the victim and put him in the trunk of the car." The officer said Alfonso observed that, as the men heaved Santillan into the trunk, Santillan "was yelling and screaming, and the subjects putting him in the trunk were screaming back at him."
Santillan's body was found the next day in an orange grove about 4.7 miles from Angulo's house. Detective Martin King of the Tulare County Sheriff's Department, one of the deputies investigating the case, testified it would take "five minutes and 26 or 27 seconds ... at the posted speed limit" to drive from Angulo's house to the location where the body was found.
Angulo was unable to pin down the times when the relevant events took place on the night of Santillan's murder. However, Angulo's testimony, taken together with the testimony of other witnesses, suggested the fight and the murder occurred during a short window of time, approximately between 10:30 p.m. and 11:00 p.m. that night.
Angulo testified that Ruiz, Navarro, and Llamas initially came to his house that night at 7:00 p.m. or 8:00 p.m., when it was already dark. The group eventually went out to buy beer, which they took over to Ruiz's house, where Santillan and Juarez joined them. When Ruiz's family returned home approximately 30 minutes later, the group piled into Ruiz's car and drove around the corner to Angulo's house, heading straight into the backyard. Stephanie Lopez, whose husband at the time was friends with Santillan and who lived across the way from Ruiz, told the police she saw a bunch of men, including Ruiz and Santillan, get into Ruiz's car outside Ruiz's apartment at approximately 10:30 p.m. that night. Lopez further told police she had also seen Santillan earlier that same evening, a little after 9:00 p.m., when he stopped by her apartment to pick up a phone charger he had left there. Lopez said that as Santillan was leaving her apartment, Ruiz, who lived in the same apartment complex, "whistled over and called [Santillan] over to him." As Santillan walked in Ruiz's direction, Lopez went back inside to go to bed.
Angulo also testified that, shortly after the rest of the group had driven away from his house with Santillan in the trunk, he called his girlfriend, Luz Cortez, to ask her to come over. Cortez testified that Angulo called her at 11:00 p.m. that night and she went over to his house immediately thereafter and spent the night.
Jan Worthington lived near the orange grove where Santillan's body was found. Worthington testified that, between 10:30 p.m. and 11:00 p.m. on the night of the murder, she was in her backyard and heard the sound of multiple gunshots fired to the north of her house. Immediately thereafter, she heard "vehicles and saw car lights going very fastly heading south in front of [her] house. [She] could see the car lights through the cracks of [her] fence." As to the gunshots, she clarified, "it was more like three gunshots and then a little pause and then two more." Patti Welker also lived near the orange grove where the body was found. Welker testified that, "between 10:00 and 10:30, 11ish, somewhere around there" on the night of Santillan's murder, she was on her back patio and heard gunshots in the orange grove behind her house. She heard three shots and then two more." She testified, "It just seemed like it was bang, bang, bang, and then a pause, and then bang, bang."
Finally, Florencia Rodriguez testified that Juarez, Navarro, Ruiz, and Llamas arrived at her house between 11:00 p.m. and 11:30 p.m. that night and, in talking amongst themselves, revealed that Santillan had just been "shot in the field."
The autopsy
Dr. Burr Hartman conducted the autopsy on January 20, 2009. Santillan was 25 years old, he was five feet three inches tall, and weighed 185 pounds. Santillan's blood alcohol level was 0.17 percent. His blood was screened for the presence of drugs as well, with negative results.
Hartman testified Santillan had "some superficial abrasions and superficial injury to the skin of the hands, which would suggest possibly a fistfight." Santillan had "a lot of contusions and abrasions and a pattern abrasion on the right cheek." Hartman could not tell what caused the pattern abrasion, which depicted parallel lines. He noted the abrasion could have come, for example, from a shoe or the sideswipe of a serrated knife.
Santillan had four "superficial" stab wounds to the left side of his chest; Hartman clarified that these wounds were not life threatening. The stab wounds were indicative of a "sharp instrument" in that "they were not long on the skin," measuring only an eighth of an inch in length. They also were not deep, measuring "not more than an inch" in depth; they stopped at the ribs and did not enter the chest or abdominal cavities. Hartman examined the neck externally and internally; he did not detect any neck injuries or any sign that the neck was cut by a sharp object. He testified there was "no evidence of trauma to [Santillan's] neck musculature" and "the hyoid bone, above the voice box, was intact."
Lacerations on Santillan's head reflected blunt force trauma. Blunt force to the head had also caused significant closed head brain injuries, including bleeding on the surface of the brain and a tear in the thin layer called the "corpus callosum, which is the white matter that joins the right and left hemispheres on the posterior aspect" of the brain. However, Hartman could not estimate the severity of these brain injuries because the ultimate outcomes of such injuries vary widely.
Santillan suffered four gunshot wounds to the chest and abdomen. One of the gunshots destroyed his heart and perforated his trachea. The three other gunshot wounds were "roughly parallel to each other in a close cluster ... on the right lower quadrant of the abdomen" and "caused a pattern of wounding from the three wounds together." In fact, all four of the gunshots "were in approximately the same track" and "were all parallel to each other." Hartman explained that, "when we describe a track or location of the wound, it is as if the person were standing upright." Here, the four gunshot wounds were front to back, upward 60 degrees from the horizontal, and 20 degrees from left to right.
Santillan also suffered three shotgun wounds. The first shotgun wound was to the right side of the head. It caused damage above the upper jaw and to the back of the mouth and the right eye socket. The second shotgun wound was in the left lower quadrant of the abdomen. It destroyed the descending colon and lacerated the spleen. Finally, there was a shotgun wound to the groin area.
Hartman testified that the "cause of death that [he] assigned was multiple gunshot wounds to the chest and abdomen. And then other conditions, multiple shotgun wounds and blunt force closed head trauma to the brain." He explained that the gunshot wound to the heart would "definitely" have killed Santillan, "but the other wounds could have killed him too." There was no way to determine the sequence in which the gunshot and shotgun wounds were sustained or indeed the sequence in which any of the injuries were inflicted.
Events at Florencia Rodriguez's apartment
Sometime between 11:00 p.m. and 11:30 p.m. on the night Santillan was killed, Ruiz, Llamas, Juarez, and Navarro arrived at the apartment of Juarez's girlfriend and her sister, Florencia Rodriguez. Rodriguez was in a sexual relationship with Santillan and he would periodically stay the night at her apartment. Ruiz left without coming into the apartment. When the group arrived at Rodriguez's apartment that night, Juarez appeared pale and scared and was shaking; Llamas and Navarro also seemed scared and upset. Navarro would "just look at the floor," and Juarez and Llamas were crying in spurts. Juarez told Rodriguez he was sorry.
The group gathered in the kitchen and began talking among themselves. Juarez said that Santillan was choking Llamas at Angulo's house, so they beat him up. They talked about Santillan having stab wounds, putting him in the trunk, and taking him to a field, and mentioned "he was shot in the field." They also talked about Santillan's threats during the fight to the effect that "they'd better kill him or he was going to come back and get them all." Rodriguez testified that the group also discussed that Santillan had turned to Juarez and said, "I know what you got at home" and that Santillan told Juarez "he was going to go back and kill him." Rodriguez did not recall any discussion suggesting that Santillan had criticized the gang or said, "Fuck the varrio."
Rodriguez had also given a statement to the police on January 19, 2009, just a few days after Santillan was killed. Detective King testified about Rodriguez's statement. He said Rodriguez "was sobbing, crying almost constantly for a major portion of the interview." King testified Rodriguez told police that when Juarez entered her apartment, "he was crying, hugging on her saying that he was sorry. He was sorry. It had to be done. They had to take him out." The men indicated that, "during the incident, during the fight, [Santillan] had stated that he was going to come back and kill them all." Rodriguez further told the police, "'And they knew [Santillan] would do something like that.'" Rodriguez said she asked Juarez, Navarro, and Llamas "why they did it," and their response was, "We had to take him out. We had to do it." Rodriguez told police that Juarez was wearing one bloody shoe and the sock on his other foot was covered in blood.
Rodriguez told the police the group was worried that Angulo's younger brother, "Poncho," would say something about the incident because "he had witnessed what had occurred at the residence that night."
Rodriguez explained that, when Juarez first entered the apartment on the night of the killing, he "was carrying a long, black gun" and that "when they shot [Santillan], they shot him in the face with a shotgun." Rodriguez said the group also indicated they had shot Santillan with a gun like the one Santillan had possessed, which was a .357 magnum handgun.
A portion of Rodriguez's police interrogation was played for the jury. In the interrogation, Rodriguez said the group revealed the fight happened because Santillan "was already drunk" and "on dope" and "got all crazy and started choking [Llamas]"; they also indicated they tried to beat, kick, and stab Santillan to death but he "wouldn't die."
DISCUSSION
I. Sufficiency of the evidence as to torture-murder special circumstance
Llamas, Navarro, and Juarez contend the evidence is insufficient to support the jury's true finding on the torture-murder special circumstance alleged in the information. Specifically, they argue the record does not disclose substantial evidence that they had the intent to torture Santillan, which intent is required to prove the torture-murder special circumstance. Defendants rely primarily on Mungia, supra, 44 Cal.4th 1101, which they argue is controlling on the issue. The People attempt to distinguish Mungia. We are persuaded that Mungia compels reversal of the true finding on the torture-murder special circumstance for insufficiency of the underlying evidence.
Defendants do not challenge their first degree murder convictions or the jury's true finding on the special circumstance allegation that the murder was committed in the course of a kidnapping. (See § 190.2, subd. (a)(17)(B).) Llamas, who was a minor at the time of Santillan's murder, submits that, "[w]hile vacatur of the torture murder special circumstance, standing alone, may have no practical effect on the posture of the case, it bears on [his] prison classification and his ability to seek parole. (See § 1170, subd. (d)(2)(A)(ii).)"
We review the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidence, i.e., evidence that is "'reasonable in nature, credible, and of solid value,'" such that a rational trier of fact could have found the essential elements of the torture-murder special-circumstance allegation to be proven beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576; Mungia, supra, 44 Cal.4th at p. 1136.)
Under the statutory provision delineating the torture-murder special circumstance, first degree murder is punishable by death or life without the possibility of parole if the murder "was intentional and involved the infliction of torture." (§ 190.2, subd. (a)(18).) The torture-murder special circumstance requires the prosecution to prove that a defendant acted with torturous intent in that he "intentionally performed acts that were calculated to cause extreme physical pain to the victim." (Mungia, supra, 44 Cal.4th at p. 1136; People v. Streeter (2012) 54 Cal.4th 205, 237.) More specifically, "[t]he requisite torturous intent is an intent to cause cruel or extreme pain and suffering" for any "sadistic purpose." (People v. Elliot (2005) 37 Cal.4th 453, 479; see Mungia, supra, at p. 1136.) In cases that "have upheld [torture-murder special circumstance] findings, the evidence has shown that the defendant deliberately inflicted nonfatal wounds or deliberately exposed the victim to prolonged suffering," thereby demonstrating a "'sadistic intent to cause the victim to suffer pain in addition to the pain of death.'" (Mungia, supra, at pp. 1136, 1138, italics added.) In sum, in order to sustain the torture-murder special circumstance finding here, the record must disclose substantial evidence indicating defendants harbored an independent intent to torture Santillan, i.e., that they intended to inflict extreme physical pain on Santillan in furtherance of a sadistic purpose. (Id. at p. 1136.)
In Mungia, the defendant killed the victim with blows to her head while she was bound. The coroner testified the victim had suffered 23 blows to the head, four of which were significant, and had died of craniocerebral injuries. (Mungia, supra, 44 Cal.4th at p. 1110.) The coroner described the victim's injuries as "some of the most brutal that he had ever seen" and opined they were inflicted over a short duration. (Ibid.) The victim also displayed defensive wounds and it appeared her hands had been bound. (Id. at pp. 1106-1109.) Our Supreme Court reversed the jury's torture-murder special circumstance finding on the basis that the evidence was insufficient as to an intent to torture. The Mungia court noted, "[t]he killing was brutal and savage, but there is nothing in the nature of the injuries to suggest that [the] defendant inflicted any of them in an attempt to torture [the victim] rather than to kill her." (Id. at p. 1137.) In other words, severe injuries, without more, may simply reflect "the desire to kill." (Ibid.) The court also declined to infer a sadistic intent from the evidence that the victim was bound, noting that "[w]e have never found that evidence that the defendant bound the victim is, by itself, substantial evidence of an intent to inflict sadistic pain." (Id. at p. 1138.) The court explained, "[h]ere, [the] defendant bound the victim in the course of robbing her; it is not uncommon for robbers to bind their victims to prevent them from resisting or escaping." (Ibid.)
Mungia analyzed cases in which our Supreme Court upheld torture-murder special circumstance findings, concluding that such a result was warranted when "the defendant deliberately inflicted nonfatal wounds or deliberately exposed the victim to prolonged suffering." (Mungia, supra, 44 Cal.4th at p. 1137, citing, e.g., People v. Whisenhunt (2008) 44 Cal.4th 174, 201 [defendant "methodically poured" hot oil on multiple portions of the victim's body]; People v. Chatman (2006) 38 Cal.4th 344, 390 [defendant inflicted over 40 stab wounds all over victim's body and later told friend he persisted in stabbing victim because "it felt good"]; People v. Elliot (2005) 37 Cal.4th 453, 467 [defendant inflicted 81 stab and slash wounds, only three of which were potentially fatal, and meticulously split victim's eyelids]; People v. Pensinger (1991) 52 Cal.3d 1210, 1240 [defendant made incisions with "nearly scientific air" that demonstrated a calculated intent to inflict pain]; People v. Raley (1992) 2 Cal.4th 870, 889 [evidence sufficient to show first degree torture-murder where defendant inflicted 41 knife wounds on victim while she screamed, wrapped her in rugs and left her, still conscious, in trunk of his car for hours before throwing her down ravine].)
Here, defendants allege the torture-murder special circumstance finding is not supported by substantial evidence because there is no evidence "to take the case outside the bounds of Mungia." Defendants do not dispute the evidence showed that Santillan was brutally beaten and shot multiple times resulting in his death but argue that, just as in Mungia, this evidence is consistent with defendants' intent to kill Santillan and does not, by itself, sustain an inference that defendants harbored a torturous or sadistic intent. Defendants contend the type of evidence that would properly support an inference of a torturous intent, such as "evidence of application of controlled force designed to prolong death," is entirely lacking in the record.
"The intent to torture is a 'state of mind which, unless established by the defendant's own statements (or by another witness's description of a defendant's behavior in committing the offenses), must be proved by the circumstances surrounding the commission of the offense [citations], which include the nature and severity of the victim's wounds.'" (Mungia, supra, 44 Cal.4th at p. 1137.) Here, defendants' own statements, as told to Florencia Rodriguez, do not suggest they tortured Santillan or intended to do so. Rather, when defendants arrived at Rodriguez's house after the murder, they revealed they had to kill Santillan because he had threatened to kill them all, and they had reason to take his threats seriously.
Angulo's description of defendants' behavior similarly does not indicate defendants harbored a torturous or sadistic intent in killing Santillan. In his testimony, Angulo made no mention of any attempt to torture Santillan on the part of any participant in the killing. Angulo described three rounds of fighting among Santillan and the others gathered in Angulo's backyard on the night of the murder; Santillan was most severely beaten in the third round that took place on Angulo's driveway. The fight began because Santillan was choking Llamas to death and then escalated because Santillan disparaged the gang they all belonged to. Santillan, however, was able to fight off his attackers, threatened to get back at them all, and managed to stand up to confront the group. Angulo testified that Angulo, Navarro, and Ruiz backed away from Santillan and that Angulo, for one, was scared of what Santillan was capable of doing.
Subsequently, when Santillan broke away from the group and tried to run out of the backyard, the others quickly overpowered him and tried to kill him on the spot. They kicked and beat Santillan; and Juarez attempted to stab Santillan but the knife broke; Navarro ran inside, grabbed a shotgun, and was ready to shoot Santillan in the driveway. Angulo actively stopped Navarro because Angulo was afraid the neighbors would hear the gunshots. Ruiz then rushed to his car and emptied the trunk while defendants kicked Santillan in the head and on other parts of his body. The kicking lasted for less than a minute. The group then put Santillan in the trunk and defendants and Ruiz got in the car. The evidence suggests they put Santillan in the trunk to transport him to a relatively secluded location where they could shoot him out of earshot of neighbors and others. They did not travel very far, ending up in an orange grove that was a five-minute drive away. By all indications, they shot Santillan directly upon arrival at the orange grove.
Angulo's account constitutes strong evidence that defendants intended to kill Santillan, "but it is not evidence from which a rational trier of fact could infer" that defendants deliberately exacerbated Santillan's suffering to satisfy a "sadistic" impulse or purpose. (Mungia, supra, 44 Cal.4th at p. 1137.) Although Angulo's testimony established a gang-related motive for the beating, and, in turn, for the killing, there was no evidence that defendants "intentionally performed acts that were calculated to cause [Santillan] extreme physical pain" because he had disrespected the gang. (Id. at p. 1136.) On the contrary, Angulo's testimony indicates that defendants tried to kill Santillan on the spot by kicking and beating him, and finally attempting to shoot him, on the driveway of Angulo's house. There was no evidence, based on Angulo's testimony, of a sadistic plan to strategically inflict nonfatal wounds or to deliberately prolong Santillan's pain and suffering. (See Id. at pp. 1137-1138.)
Nor do the circumstances of the offense or the nature of the wounds constitute evidence from which a rational trier of fact could infer an intent to torture. Dr. Hartman described the injuries Santillan suffered from the beating and the shooting: injuries on his hands were indicative of a fistfight; he had several contusions and abrasions; some pattern injuries on his face that Hartman could not explain; a few superficial stab wounds on his side; significant blunt force trauma to the head resulting in closed head injuries; and gunshot wounds to the head, chest, abdomen, and groin. As in Mungia, although the beating and killing were brutal, there is nothing to suggest the injuries were inflicted in an attempt to torture Santillan rather than to beat him up and kill him alone. There was no evidence that any of the injuries "deliberately exposed the victim to prolonged suffering" as part of a calculated, sadistic effort. (Mungia, supra, 44 Cal.4th at p. 1137.) As for the gunshot wounds, Dr. Hartman testified that a number of the wounds would have been independently and immediately fatal, and there was no way to divine the sequence in which the shots were fired and the wounds inflicted. Hartman further testified that the four gunshot wounds "were all in the same track," indicating they were fired from one position, at one time. Furthermore, Jan Worthington and Patti Welker testified the gunshots were fired in close succession. The evidence that the gunshots were fired in close succession does not support an inference that the shooting was deliberately intended to cause prolonged suffering to, rather than to kill, Santillan.
Evidence in the record indicating the fights and shooting occurred in a relatively short window of time is also inconsistent with an intent to torture and "to inflict '"pain in addition to the pain of death."'" (Mungia, supra, 44 Cal.4th at p. 1138.) Stephanie Lopez told police that Santillan came to her house after 9:00 p.m. that night to collect his phone charger, and she saw him again a little later, around 10:30 p.m., getting into Ruiz's car with Ruiz and a few other men. Angulo's testimony indicated the fight began within "minutes" of the group's arrival at his house from Ruiz's apartment, and events unfolded quickly after Santillan tried to run away from the group. Detective King testified the drive from Angulo's house to the orange grove where Santillan was shot took a little over five minutes at the posted speed limits. Jan Worthington and Patti Welker both put 11:00 p.m. as the outer limit of the time frame in which they heard the gunshots in the orange grove. Also, by 11:00 p.m., Angulo had called Luz Cortez to come over to spend the night with him because he was scared and did not want to be alone. And between 11:00 p.m. and 11:30 p.m., defendants had arrived at Rodriguez's apartment looking scared and shaken. Again, the evidence that events took place in short order fails to support an inference that defendants deliberately dragged out the killing in a calculated bid to inflict additional physical pain on Santillan.
The People's argument that "Mungia does not compel reversal of the jury's true finding on the torture special-circumstance allegation" because "the evidence in the instant case revealed a much lengthier, more brutal attack, committed for the sadistic purpose of punishing a fellow gang member who had disrespected the gang," is conclusory and, hence, unpersuasive, because a brutal attack, by itself, does not constitute sufficient evidence of sadistic conduct or torture.
We conclude the record lacks "substantial evidence—that is evidence that is reasonable, credible, and of solid value" from which the jury could find that defendants intended to torture Santillan. (People v. Cole (2004) 33 Cal.4th 1158, 1212.) We therefore vacate the torture-murder special circumstance finding as to each defendant. Since we must vacate the true finding on the torture-murder special circumstance as to each defendant, we need not address defendants' alternative challenge on grounds of instructional error to this finding. II. Sufficiency of the evidence as to gang-murder special circumstance , gang enhancement , and gang-related firearm enhancement
The jury found both the gang-murder special circumstance and gang enhancement allegations included in the information to be true. (§§ 190.2, subd. (a)(22) & 186.22, subd. (b)(1).) The gang-murder special circumstance, which provides for punishment of death or life imprisonment without the possibility of parole, applies if "[t]he defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang, as defined in subdivision (f) of Section 186.22, and the murder was carried out to further the activities of the criminal street gang." (§ 190.2, subd. (a)(22).) The gang enhancement also provides for enhanced punishment for "any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22, subd. (b)(1).) The jury's true finding on the gang enhancement also triggered application of gang-related firearm enhancements under section 12022.53, subdivisions (d) and (e)(1), which relate to a principal's use of a shotgun and a handgun during the commission of a murder and provide for "an additional and consecutive term of imprisonment in the state prison for 25 years to life." (§ 12022.53, subds. (a), (d) & (e).)
Both the gang-murder special circumstance and the gang enhancement require proof of the existence of a "criminal street gang" as defined in section 186.22, subdivision (f). Defendants contend that, under the holding of our Supreme Court's recent decision in Prunty, supra, 62 Cal.4th 59, the evidence is insufficient as to the existence of a criminal street gang and, in turn, to sustain the gang-related penalties. We agree that the evidence is insufficient to show the existence of a criminal street gang under Prunty. As discussed below, here, the prosecution argued that defendants, as members of the CFM subset, acted to benefit a larger southern gang. Next, the prosecution introduced evidence of predicate offenses committed by "southern gang member[s]" without identifying the specific clique or cliques claimed by these gang members. Where, as here, the prosecution's theory of the existence of the relevant criminal street gang turns on multiple subsets, Prunty requires evidence of an "organizational connection uniting those subsets." (Id. at p. 71.) Since there was no such showing here, we vacate the true findings on the gang-murder special circumstance, gang enhancement, and vicarious gang-related firearm enhancements.
A. Gang expert's testimony
The prosecution's gang expert was Richard Ramirez, a deputy in the gang unit of the Tulare County Sheriff's Department. Ramirez testified that "[n]orthern and southern gangs" predominate in California. In his testimony, Ramirez focused on "southern gangs," which are offshoots of the Mexican Mafia prison gang. Ramirez explained that the "southern gang" is the main gang and, under that, there are subsets. In the Ivanhoe area, the South Side Kings (SSK), the CFM, and other cliques are subsets of the southern gang. The subsets represent "their own clique within their city," and are "basically [under the] umbrella of a southern gang." Ramirez said there were approximately 100 southern gang members in the Ivanhoe area of Tulare County but only 20 to 50 of them were part of the CFM subset.
Ramirez described "the primary activities of the southern gang" as "homicide, attempt[ed] homicide, burglary, narcotics, trafficking, intimidation, [and] witness intimidation." He also described a "predicate offense" committed by southern gang members. He said that in 2007, Enrique Barajas and Jose Ramirez were convicted of "attempt[ed] homicide" with a "gun allegation" and a "gang allegation." Ramirez's opinion that [Enrique] Barajas and Jose Ramirez were "southern gang" members was based on the fact that "they shot at a northern hangout."
Based on his stated understanding that local subsets such as the SSK and CFM comprised a larger southern gang, Ramirez interchangeably referred to the subsets, either individually or collectively, simply as the southern gang or gangs. Thus, he described the "primary activities of the southern gang" and "predicate offense[s]" committed by members of "a southern gang." Consequently, for one thing, it was not possible to ascertain which specific southern subset—the SSK, the CFM, or another local subset—was responsible for the predicate offenses, i.e., the "attempt[ed] homicide" and "gun allegation" that Ramirez described.
With regard to Santillan and defendants, Ramirez opined that Santillan was "an active southern gang member" because of his CFM tattoos, tattoos of southern symbols, and association with other members of the CFM "clique." Ramirez also testified that Angulo was an active southern gang member in January 2009 based on Angulo's self-admission during his testimony in the instant matter that he was a member of the CFM and a photograph showing Angulo with other people whom Angulo had identified as CFM members, as well as other indicia. He testified that, in January 2009, Llamas was a member of the CFM and thus an "active southern gang member," based on his tattoos reflecting CFM and other southern symbols. Similarly, he testified that Navarro, in January 2009, was "a southern gang member as part of the CFM," on account of his CFM and southern tattoos. Finally, Ramirez testified that, in January 2009, Juarez was an active southern gang member because he "specifically admitted he was a member of the CFM." Based on the gang expert's testimony, as well as other evidence, the prosecutor, in his closing argument, noted that defendants were members of the CFM clique of the southern "umbrella" gang.
As stated above, Ramirez's testimony presumed that the CFM, other local gangs like the SSK, and the larger or "umbrella" southern gang, formed a unified entity. He did not specifically delineate an actual, organizational relationship between the CFM and the other subsets or between the subsets and a larger southern entity. With respect to defendants, he did, however, clarify, based on their tattoos and gang paraphernalia, that, as members of the CFM, they self-identified with a southern gang.
B. Application of Prunty
The jury's true finding on the gang-murder special circumstance was premised on its underlying finding that defendants were active participants in a criminal street gang when they committed the murder. (§ 190.2, subd. (a)(18).) Similarly, the jury's true finding on the gang enhancement reflected its underlying finding that defendants had acted for the benefit of, at the direction of, or in association with a criminal street gang. (§ 186.22, subd. (b)(1).) For purposes of the gang-murder special circumstance and the gang enhancement, a criminal street gang is defined in section 186.22, subdivision (f), which requires the prosecution to show that the gang had certain qualifying primary activities and had engaged in a pattern of criminal activity as established by its commission of specified predicate offenses. More specifically, under section 186.22, subdivision (f), a "criminal street gang" is "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" in a pattern of criminal activity. (Prunty, supra, 62 Cal.4th at p. 67; § 186.22, subds. (e) & (f).)
Further, "[t]o prove that a criminal street gang exists in accordance with [the applicable] statutory provisions [for purposes of the gang enhancement], the prosecution must demonstrate that the gang satisfies the separate elements of [section 186.22's] definition and that the defendant sought to benefit that particular gang when committing the underlying felony." (Prunty, supra, 62 Cal.4th at p. 67, italics added). Although Prunty addressed the definition of a criminal street gang in the context of a gang-enhancement allegation under section 186.22, subdivision (b)(1), the court specifically noted that "we see no reason [for] the definition of 'criminal street gang' [to] vary in the context of an active participation prosecution." (Prunty, supra, at p. 72, fn. 3.) Accordingly, Prunty also applies to the definition of a criminal street gang for purposes of the gang-murder special circumstance set forth in section 190.2, subdivision (a)(22). Section 190.2, subdivision (22), requires that, in proving a criminal street gang exists for purposes of the gang-murder special circumstance, the prosecution must show that the gang satisfies the elements of section 186.22's definition and that the defendant carried out the murder to further the activities of that particular gang.
Section 190.2, subdivision (a)(22), applies when "[t]he defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang, as defined in subdivision (f) of Section 186.22, and the murder was carried out to further the activities of the criminal street gang."
Here, the prosecution's theory of a criminal street gang—in terms of the section 186.22, subdivision (f) element requiring "an ongoing organization, association, or group of three or more persons"—focused on the existence of an overarching southern gang that was comprised of a number of local subsets in the Ivanhoe area. The gang expert testified that the SSK from Ivanhoe and the CFM from Ivanhoe and Farmersville, as well as other cliques from nearby communities such as Goshen, were all "basically [under the] umbrella of a southern gang." He estimated that, consequently, there were about 100 "southern gang" members in the Ivanhoe area of Tulare County, with 20 to 50 of them belonging to the CFM subset. He explained, "They're all Southerners, but they're within their own clique within their city. [¶] But if they were to come into Visalia and one is going to fight with a Northerner, they would both clique up and they would come into one. So they're basically [under the] umbrella of a southern gang."
Next, with regard to the section 186.22, subdivision (f) element requiring proof of a pattern of criminal activity through the commission of predicate offenses, the gang expert adduced evidence of predicate offenses of "attempt[ed] homicide," with "gang" and "gun" enhancements, committed in Farmersville by Enrique Barajas and Jose Ramirez, whom he described only as "southern gang" members, omitting to identify the subset they claimed. The gang expert explained his only basis for considering them southern gang members was "that they shot at a northern hangout."
In line with the expert's testimony, in closing, the prosecutor posited the existence of a larger southern gang consisting of local subsets, as the gang at issue in this matter. With reference to the "ongoing association" element of the applicable definition of a criminal street gang, he argued that the evidence proved the existence of an "umbrella" southern gang comprised of the CFM and other local subsets:
"'Criminal street gang defined.' ... 'It's an ongoing organization, association, or group of three or more persons, whether formal or informal.' [¶] You heard the numbers. I believe Detective Ramirez said in the Ivanhoe area is roughly about 100 southern gang members. He said CFM has about 20 to 50, so that meets that requirement. Has a common—common identifying sign or symbol. Southern gang members, common name, also have a clique. Yet they're still under the same umbrella. [¶] The sign or symbols, the blue, the 13, the letter S, all those. The 13 is going to the letter M in the alphabet. Mexican Mafia, which is the prison gang related to that."
Next, based on the gang expert's testimony, the prosecutor argued that the element of a pattern of criminal activity was satisfied in light of the evidence of predicate offenses "that [Enrique] Barajas and [Jose] Ramirez committed as southern gang members, which is exactly the defendants' same gang." Although the prosecutor characterized Enrique Barajas and Jose Ramirez simply as "southern gang members," without identifying the specific clique or cliques they belonged to, we nonetheless must conclude, given the expert's testimony regarding a substructure of local southern cliques within individual communities, that the perpetrators of the predicate offenses each belonged to a local clique or subset. The prosecutor also argued, for purposes of the gang enhancement, that defendants, as southern gang members, murdered Santillan to benefit the umbrella gang and, for purposes of the special circumstance, that defendants acted to further the activities of the umbrella gang.
The prosecutor also pointed out, in closing, that Jesus Angulo "testified [defendants] were members of the CFM, Crazy Fucking Mexicans, which we know is a clique of the southern gang through Detective Ramirez."
Given these facts, we are compelled to find, under our Supreme Court's decision in Prunty, that the evidence was insufficient to prove the existence of a criminal street gang for purposes of all the gang-related penalties. Prunty's focus was the "ongoing organization" element of section 186.22, subdivision (f)'s definition of a criminal street gang. In Prunty, the court "decide[d] what type of 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.) The problem "arises only when the prosecution seeks to prove a street gang enhancement [or, by extension, a gang-murder special circumstance allegation] 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. and dis. opn. of Corrigan, J., italics added.) The Prunty court concluded that, "where the prosecution's case positing the existence of a single 'criminal street gang' for purposes of section 186.22[, subdivision] (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.)
In Prunty, the prosecution proved the defendant was affiliated with an umbrella Norteño gang but tried to establish that the umbrella gang was a criminal street gang on the basis of predicate offenses committed by subsets that were not shown to be sufficiently connected to either the subset claimed by the defendant or to the umbrella gang. (Prunty, supra, 62 Cal.4th at p. 69.) The evidence was thus insufficient to prove that the relevant subsets were part of the same criminal street gang. (Id. at p. 85.) The court concluded the "definition of a 'criminal street gang'—and in particular its requirement of an 'organization, association, or group'—calls for evidence that an organizational or associational connection unites the 'group' members. When, as here, the prosecution relies on the conduct of subsets to show a criminal street gang's existence, the prosecution must show a connection among those subsets, and also that the gang those subsets comprise is the same gang the defendant sought to benefit." (Ibid.)
Prunty explained, "[t]he prosecution has the discretion to choose its theory of how a particular gang exhibits an associational or organizational connection. Irrespective of that choice, the evidence must permit the jury to infer a relationship among the group's members." (Prunty, supra, 62 Cal.4th at p. 76, fn. omitted.) "In general, evidence that shows subset members have communicated, worked together, or share a relationship (however formal or informal) will permit the jury to infer that the subsets should be treated as a single street gang." (Id. at pp. 78-79.) "But ... the evidence must demonstrate 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." (Id. at p. 79.)
"In making the required showing, moreover, the prosecution must do more than simply present evidence that various alleged gang subsets are found within the same broad geographic area.... The prosecution must introduce evidence of the alleged subsets' activities, showing a shared identity that warrants treating them as a single group." (Prunty, supra, 62 Cal.4th at p. 79.) For example, "subsets may ... be part of the same organization if they are controlled by the same locus or hub"; "[s]ubsets may also be linked together as a single 'criminal street gang' if their independent activities benefit the same (presumably higher ranking) individual or group." (Id. at p. 77.) "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[, subdivision] (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[, subdivision] (b)." (Id. at p. 72.)
Here, defendants challenge the sufficiency of the evidence adduced to show the existence of a criminal street gang for purposes of the gang-related penalties, on many fronts. For example, they argue that, although there was ample evidence that defendants were members of the CFM and that the CFM self-identified with a southern gang, there was no evidence of an organizational connection between the CFM and a larger southern gang, as required by Prunty. They also argue that there was insufficient evidence of the existence of a unitary gang in terms of the primary activities and predicate offenses identified by the prosecution. We are persuaded, that, just as in Prunty, "where the prosecution's evidence fell short is with respect to the predicate offenses." (Prunty, supra, 62 Cal.4th at p. 82.) Accordingly, we need not address defendants' contentions regarding other deficiencies in the prosecution's evidence.
Under Prunty, absent evidence that the CFM committed the predicate offenses, the prosecution was required to show that the subset that committed the predicate offenses, and the southern gang that defendants acted to benefit, were organizationally connected such that they demonstrably comprised a unitary gang. (Prunty, supra, 62 Cal.4th at pp. 67-68.) Here, there was no evidence that Enrique Barajas and/or Jose Ramirez, both of whom committed the predicate offenses, claimed the CFM subset. Alternatively, there was no evidence that the predicate offense subset, which the gang expert failed even to identify, was organizationally connected to the CFM so as to indicate they were part of the same southern entity; nor were these two relevant subsets shown separately to be connected to the same larger southern gang. (See id. at p. 82.) Thus, there was no way to show that both the CFM and the subset (or subsets) that committed the predicate offenses were part of the same gang.
The gang expert's generalized assertion that subsets in the area self-identified as southern and would be expected to "clique up" against a common northern enemy was not enough to show the existence of a unified gang here. (Prunty, supra, 62 Cal.4th at pp. 74-75 [common enemy is not enough "to demonstrate that various subsets are part of a single criminal street gang"].) Prunty explained that section 186.22's "use of the phrase 'organization, association, or group' suggests that subsets of a criminal street gang must be united by their activities, not simply by their viewpoints. Those terms also suggest that shared ideology is a poor proxy for whether a group in fact exists." (Prunty, supra, at p. 75.) Similarly, "the use of common colors and symbols does not demonstrate the existence of a unified group." (Ibid.)
However, as Prunty clarified with reference to northern subsets, specific "proof that a certain [northern] subset retaliates against a [southern] gang for affronts that gang has committed against other [northern] subsets could suggest that members of the [northern] subset consider themselves to be part of a larger association." (Prunty, supra, 62 Cal.4th at p. 79.)
Ramirez testified that southern gangs in general were associated with the Mexican Mafia prison gang. The gang expert in Prunty similarly testified, with respect to northern gangs, "that 'Norteño street gangs' are 'associate[d]' with the Nuestra Familia prison gang." (Prunty, supra, 62 Cal.4th at p. 83.) Prunty explained, "[w]hile such evidence might permit the inference that the various alleged gang subsets share a common origin, it does not indicate whether the specific subsets involved in committing the predicate offenses have any ongoing relationship—the kind of relationship that amounts to being part of the same group—with the entity the defendant [allegedly] sought to benefit." (Ibid.) In addition, Prunty clarified that any evidence that various gang subsets "use the same name, symbols, and colors," "fulfill[s] the element of section 186.22[, subdivision] (f) requiring such common characteristics; it does not show that the subsets are united together or with a larger group as a single 'organization, association, or group.'" (Id. at pp. 83-84, italics added.)
Here, necessary evidence about the actual "behavior or practices" of the relevant subsets "that could reasonably lead the jury to conclude they shared an identity with a larger group" was simply not presented. (Prunty, supra, 62 Cal.4th at p. 82.) "The jury was consequently left with no way to connect the [subset] that committed the predicate offenses to the larger [southern] group" that the prosecution claimed defendants sought to benefit. (Id. at p. 83.) The absence of evidence showing this necessary connection precludes application of the gang-murder special circumstance and the gang enhancement here.
The People argue that Prunty is not apposite because "the gang expert provided testimony all relating to one gang—the Southern gang in Tulare County.... And with regards to the predicate offenses, the gang expert described two predicate offenses committed by other Southern gang members in Tulare County—not members of a different, unconnected subset of the Southern gang." The People's argument does not square with Ramirez's testimony that southern gang members in the Ivanhoe area are "within their own clique within their city." Moreover, Prunty addressed a directly analogous issue, i.e., "the showing prosecutors must make when attempting to show that 'multiple subsets of the Norteños may be treated as a whole' under section 186.22[, subdivision] (f)." (Prunty, supra, 62 Cal.4th at p. 71, fn. 2.) Accordingly, Prunty is controlling. (See People v. Nicholes (2016) 246 Cal.App.4th 836, 845.)
Under Prunty, the evidence was insufficient for a reasonable trier of fact to find the gang-murder special circumstance and gang enhancement to be true. We therefore vacate the true findings on both the gang-murder special circumstance and the gang enhancement as to each defendant.
Further, because each defendant was found to qualify for vicarious firearm enhancements under section 12022.53, subdivisions (d) and (e)(1), which include as an element a violation of section 186.22, subdivision (b), we must vacate the true findings on the vicarious firearm enhancements as to all defendants as well. (See People v. Cornejo (2016) 3 Cal.App.5th 36, 44.) Since we must vacate the true findings on the vicarious firearm enhancements for insufficiency of evidence, we need not address defendants' alternative challenge to these enhancements.
C. Resentencing for Llamas , a minor , in light of Gutierrez
Llamas, who was 17 years old at the time of Santillan's murder, contends that "remand for resentencing is required" because "the trial court misunderstood the scope of its sentencing discretion under section 190.5[, subdivision] (b) or misapplied the standard for sentencing a minor convicted of a life-without-parole offense [under Miller, supra,] 567 U.S. ___ ." The People agree: "In light of our Supreme Court's recent ruling in [Gutierrez, supra,] 58 Cal.4th 1354 ..., respondent agrees that the case should be remanded for a new sentencing hearing." We concur with the parties, vacate Llamas's sentence of life without the possibility of parole, and remand his case for resentencing.
Navarro and Juarez, who were both over the age of 18 at the time of Santillan's murder, have not joined this argument.
Section 190.5, subdivision (b), provides that the penalty for 16- or 17-year-old juveniles who commit special circumstance murder "shall be confinement in the state prison for life without the possibility of parole, or, at the discretion of the court, 25 years to life." Our Supreme Court has noted that, "[f]or two decades, since People v. Guinn (1994) 28 Cal.App.4th 1130, section 190.5[, subdivision] (b) has been construed by our Courts of Appeal and trial courts as creating a presumption in favor of life without parole as the appropriate penalty for juveniles convicted of special circumstance murder." (Gutierrez, supra, 58 Cal.4th at p. 1360.) Our Supreme Court revisited the issue in Gutierrez after "the United States Supreme Court ruled that 'mandatory life without parole for those under the age of 18 at the time of their crimes violate[d] the Eighth Amendment's prohibition on "cruel and unusual punishments," relying extensively on differences between juveniles and adults with regard to their culpability and capacity for change.'" (Ibid., quoting Miller, supra, 567 U.S. ___ [132 S.Ct. 2455, 2460].) Our high court explained, "We granted review to determine whether a presumption in favor of a sentence of life without parole under section 190.5[, subdivision] (b) violates the Eighth Amendment to the United States Constitution under the principles announced in Miller." (Gutierrez, supra, at p. 1360.) Gutierrez held that "section 190.5[, subdivision] (b), properly construed, confers discretion on a trial court to sentence a 16- or 17-year-old juvenile convicted of special circumstance murder to life without parole or to 25 years to life, with no presumption in favor of life without parole." (Ibid.) Gutierrez further held that "Miller requires a trial court, in exercising its sentencing discretion, to consider the 'distinctive attributes of youth' and how those attributes 'diminish the penological justifications for imposing the harshest sentences on juvenile offenders' before imposing life without parole on a juvenile offender." (Id. at p. 1361.) The court concluded, "Because the sentencing regime created by section 190.5[, subdivision] (b) authorizes and indeed requires consideration of the distinctive attributes of youth highlighted in Miller, we find no constitutional infirmity with section 190.5[, subdivision] (b) once it is understood not to impose a presumption in favor of life without parole." (Ibid.)
Here, the People candidly explain that, "[a]lthough the trial court in ... Llamas's case clearly understood that it had the discretion to impose a term of 25 years to life, rather than LWOP, it is not possible to say given the state of the record whether or not the court imposed ... Llamas's sentence without any presumption in favor of an LWOP sentence as directed by Gutierrez. Indeed, [defendants] were sentenced before Gutierrez was decided. As such, [the People] [submit] that it is appropriate to remand ... Llamas's case to give the trial court the opportunity in the first instance to sentence him in light of Gutierrez."
In light of Gutierrez, and the record below, we vacate Llamas's sentence of life without the possibility of parole and remand his case for resentencing in accordance with Gutierrez. (Gutierrez, supra, 58 Cal.4th at pp. 1391-1392 [remand necessary because trial court decided sentence "without proper guidance on the sentencing discretion conferred by section 190.5[, subdivision] (b) and the considerations that must inform the exercise of that discretion"].)
D. Section 1202.45 parole revocation restitution fines
Defendants challenge as an unauthorized sentence the imposition of fines pursuant to section 1202.45. The People concede the point. We agree with the parties and strike the fines.
After sentencing defendants to terms of life without the possibility of parole for special circumstance murder plus an indeterminate 25-years-to-life term for the weapon-use allegation, the trial court imposed on each defendant restitution fines of $2,000 under section 1202.4 and equivalent parole revocation restitution fines under section 1202.45, which are suspended unless a defendant's parole is revoked. (§ 1202.45, subd. (c).) Section 1202.45 is not applicable to a defendant whose sentence included life in prison without the possibility of parole, even when the defendant also received a sentence that allowed for parole, because its application depends on the overall sentence. (People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1185; People v. McWhorter (2009) 47 Cal.4th 318, 380.) Consequently, the parole revocation restitution fine imposed on each defendant is stricken.
As to Llamas, the parole revocation restitution fine should be reinstated if, on remand, he is sentenced to a term of 25 years to life instead of life without the possibility of parole. --------
DISPOSITION
The true findings on the torture-murder special circumstance, the gang-murder special circumstance, the gang enhancement, and the vicarious firearm enhancements are vacated as to all defendants and the 25-year term stricken as to each. The parole restitution revocation fines are stricken as to all defendants. The judgments in the matters of defendants Navarro and Juarez are modified accordingly; the trial court is directed to prepare amended abstracts of judgment reflecting these changes and to forward them to the appropriate correctional authorities. As to defendant Llamas, his sentence of life without the possibility of parole on count 1 is vacated, the judgment reversed, and the matter remanded for resentencing consistent with this opinion.
/s/_________
SMITH, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
GOMES, J.