Opinion
E070717
04-15-2020
THE PEOPLE, Plaintiff and Respondent, v. JAMES SMITH et al., Defendants and Appellants.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant James Smith. Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant Donovan Gardner. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Andrew S. Mestman and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FWV1503902) OPINION APPEAL from the Superior Court of San Bernardino County. Ingrid Adamson Uhler, Judge. Affirmed and remanded with directions. Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant James Smith. Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant Donovan Gardner. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Andrew S. Mestman and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
James Smith and Donovan Gardner (collectively, defendants) appeal from their convictions in separate trials arising from the same residential burglary followed by a high-speed pursuit by law enforcement. Smith and Gardner were both convicted of one count of first degree burglary with a person present (Pen. Code, § 459; count 1) and one count of felony evasion of law enforcement (Veh. Code, § 2800.2, subd. (a); count 2).
Further unlabeled statutory references are to the Penal Code.
For Smith, the jury also found true gang enhancement allegations for both counts (§ 186.22, subds. (b)(1)(A) & (C)), one prior strike allegation (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and that he had served one prior prison term (§ 667.5, subd. (b)). Smith was sentenced to an aggregate term of 24 years four months in state prison.
After trial, Gardner admitted to one gang enhancement allegation (the one associated with the burglary conviction) (§ 186.22, subd. (c)), two prior strike allegations (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and one prior serious felony conviction (§ 667, subd. (a)(1)). Gardner was sentenced to 25 years to life plus 10 years in state prison.
On appeal, defendants raise numerous issues, including challenges to: (1) the prosecutor's failure to disclose evidence, (2) the propriety of gang expert opinion testimony not based on hypothetical questions, (3) whether the natural and probable consequences doctrine violates due process, (4) whether the felony evasion jury instruction contains an impermissible mandatory presumption, (5) whether it was prejudicial error to give the jury a flight instruction, (6) whether substantial evidence supported the felony evasion conviction as a natural and probable consequence of burglary, and (7) whether the trial court abused its discretion by refusing to strike a prior strike allegation. In addition, defendants raise various sentencing issues, which the People concede, and challenge the constitutionality of the fines and fees that were imposed without first determining their ability to pay, which the People concede should be addressed on remand. We remand for resentencing and for the trial court to hold an ability to pay hearing for any fines and fees imposed. In all other respects, we affirm the judgments.
BACKGROUND
Defendants initially were set to be tried together. However, on the day that the combined trial was set to begin, the trial court granted Gardner's motion to sever the trials. We briefly summarize the basic facts from the separate trials. Any relevant and material discrepancies between the trials will be noted. As relevant to a particular issue, we will discuss the facts from each defendant's trial in more detail.
A. The Burglary—The Resident
On the morning of October 15, 2015, Ryan P. was home alone at his parents' house in Rancho Cucamonga, California, when he heard someone loudly "banging" on the front door. Looking through the door's peephole or a window next to the door, Ryan saw a tall African-American man who had a tattoo on either his hand or his face—the location was distorted because the man had his hand on his face. Ryan did not answer the door, and the man left after a few minutes.
We refer to the victim by his first name and last initial in order to preserve his anonymity. (Cal. Rules of Court, rule 8.90(b)(4).) No disrespect is intended.
In Smith's trial, Ryan identified the individual at the door as wearing a black top and black shorts.
After the person disappeared from Ryan's sight, Ryan noticed a light blue midsized, four-door sedan drive past his house. Ryan was unsure of the car's make or model.
Less than five minutes later, Ryan heard loud banging at the door again. This time, after seeing the same person again through the peephole or the window, Ryan went upstairs to look out of a window in his parents' bedroom to get a better view of the entire street. Ryan was at that window for two seconds when he heard glass shatter downstairs in the kitchen. Ryan heard two distinct male voices, so he hid underneath his parents' bed and called 911. Ryan was unable to talk to the 911 operator, however, because one of the men was in his parents' bedroom by the time that the operator answered.
Ryan could see the person from the shins down and heard the person searching through his parents' dresser, nightstands, and closet. The person was wearing red and white athletic shoes that Ryan believed to be "Jordans." At some point, the person looked underneath the bed and saw Ryan. Ryan said, "What's up, man?" The man immediately fled the room.
In Gardner's trial, Ryan testified that he "definitely" knew that the shoes were red and white and that he "believe[d]" they were Jordans. In Smith's trial he testified that he "clearly[] saw the kind of shoes" that were being worn and that they were "red and white Jordans."
Although Ryan could not positively identify the individual in the bedroom, Ryan did not think that the person in the bedroom was the same person he had seen at the front door. Ryan described the person in the bedroom as heavier set than the person he saw at the front door.
In Smith's trial, Ryan testified that he did not see any tattoos on the heavier individual, but he was not "definite" about whether that person had any because he only saw the person from the shins down. Ryan saw the individual's hand when that person looked under the bed but did not get a good look at his knuckles.
After the individual exited the bedroom, Ryan went to the top of the stairway and saw the two men meet and confer downstairs. The man who had banged on the door earlier was in Ryan's parents' office. Both men exited through the front door. Ryan followed them and watched them run across the street. After the men were no longer within Ryan's view, Ryan saw the same blue sedan he had previously noticed drive away.
Ryan spoke with a 911 operator. Law enforcement arrived within five minutes. Ryan and his parents identified various items that were missing from the home, including electronics (a digital video recorder and three computers), jewelry, a bible, Ryan's wallet, Ryan's checkbook, and a payroll stub of Ryan's father's. B. A Neighbor
On the morning of the burglary, a neighbor who lived across the street from Ryan's parents was at home. Upon opening the blinds to an upstairs window inside her home, she noticed two men standing outside of the wall around Ryan's parents' property. They were pacing back and forth, looking to the left and to the right, and then jumped over the wall. The neighbor knew that the men did not live at that residence.
While she was watching these men, the neighbor was on the phone with her husband, who suggested that she call 911. The neighbor was unable to reach 911, so her husband called and relayed the information his wife had given him. The neighbor described both men as African-American and approximately the same height—six feet two inches. One of the men was heavier set and wearing a grey jacket with red sleeves. The other man was slimmer and wearing a black T-shirt.
A few minutes after the men jumped over the wall, the neighbor saw the same men run out of the front door of Ryan's parents' house. One of the men was carrying "bulk items" in his hands, and the other was carrying a big tan bag, which the neighbor later realized may have been a bed sheet. The men ran toward a two-door blue Cadillac or Lincoln sedan that was parked two houses away from Ryan's parents' house. Both men placed the items that they were carrying in the trunk of the car. The heavier man, who was wearing the grey jacket or sweater, got into the driver's seat, and the slimmer man, who was wearing black attire, got into the passenger's seat. The car made a u-turn and drove off with the trunk open. The neighbor described what she saw to a 911 operator. C. Pursuit by Law Enforcement
In Gardner's trial only, another neighbor testified. A surveillance camera on his property that law enforcement reviewed the day of the incident showed the car parked near Ryan's house and then being driven off.
Deputy Anthony Buscemi of the San Bernardino County Sheriff's Department was on patrol the morning of the incident when he received a transmission from dispatch about a residential burglary in progress in Rancho Cucamonga. While en route to the burglarized residence, Deputy Buscemi noticed a blue two-door Lincoln Continental or an older model blue car parked with several individuals inside. A man was standing outside of the vehicle at the trunk trying to tie down the trunk or to fix it. Deputy Buscemi did not have any information about the burglary suspects at the time that he passed the vehicle.
As Deputy Buscemi neared the area of the burglarized residence, however, he learned that there were several suspects in an older blue car or Lincoln Continental. Realizing that he had just passed a vehicle matching that description, Deputy Buscemi returned to where he saw the car, but the car was no longer there.
Deputy Steve Geist was assigned to the traffic division on a marked police motorcycle in Rancho Cucamonga on the morning of the incident. From dispatch, he learned that two African-American men had been seen fleeing the scene of a residential burglary in an older model—1980s or 1990s—blue Lincoln Continental. Deputy Geist noticed a vehicle that matched the description, so he started following it and requested back-up. His lights and siren were not yet activated. Several additional deputies joined Deputy Geist in following the car.
A deputy in a marked patrol car pulled up behind the blue Lincoln Continental and attempted to effectuate a felony traffic stop. The car failed to yield and instead started traveling faster. The car entered the 210 freeway headed west. On the freeway, the car traveled erratically by weaving in and out of lanes "abruptly" without signaling, cutting off other cars, and traveling at or over 100 miles per hour. Several other sheriff's deputies' vehicles also were involved in the pursuit along with some California Highway Patrol officers.
During the pursuit, objects were thrown from the fleeing vehicle. A deputy driving in an unmarked vehicle trailed behind the pursuit at a normal rate of speed and recovered the discarded items. A California Highway Patrol officer also provided that deputy with various items.
After briefly exiting the freeway and getting back onto it, the suspects ultimately exited the freeway in Pasadena, California. Once on residential streets, the car traveled between 65 and 70 miles per hour. A bicyclist nearly got hit in a crosswalk. When the speed of travel slowed to approximately 35 miles per hour, Deputy Shaun Wallen attempted to employ a pursuit intervention technique with his vehicle to stop the suspects' vehicle, but it was unsuccessful.
The pursuit ended shortly thereafter when the Lincoln Continental veered into Deputy Wallen's patrol car as they were both turning onto another street. Deputy Wallen's patrol car was pushed onto the curb and crashed into a tree. After Deputy Wallen's patrol car crashed, the Lincoln crashed into a parked car 50 to 100 feet beyond the tree. Both the driver and the passenger exited the vehicle and ran away. Both men were apprehended—Smith less than 100 feet away from the Lincoln and Gardner after a short pursuit over a fence into and out of a residential backyard (in which he was watched from a police helicopter the entire time). Initially when Gardner fled, he was wearing a tank top while holding another shirt. When he reappeared after jumping back over the fence, Gardner was wearing a long-sleeved black shirt.
Smith was identified as the driver and as heavy set. Smith had the word "Pasadena" tattooed across his knuckles or fingers and he was wearing red and white athletic shoes. Gardner was identified as the passenger and as having a slimmer build. A female suspect, Simone King, was sitting in the backseat and was taken into custody as well.
In Smith's trial, Ryan was shown a portion of a photograph of Smith from that day from the shins down. Ryan testified that the shoes were not the ones that he saw during the burglary. The shoes in the photograph were different in that they looked like Nikes and were "more red than the shoes that [Ryan] saw."
When Smith was detained, a jewelry box, a pendant, and a watch were found in his front pants pockets. Located within the vehicle were various other items stolen from the residence, including Ryan's bank card, a pay stub bearing the victim's last name, receipts from Wells Fargo, and a computer tower. A blue backpack was found behind the passenger seat containing two baseball hats and a wallet containing Ryan's identification card. In addition, a metal cement punch—a common burglary tool used to break glass—was found in the vehicle. All of the recovered items from the car and the freeway were identified by Ryan and his parents as belonging to them.
According to testimony in Gardner's trial, Gardner spoke briefly to a deputy on the day of his arrest. Gardner explained that he had been picked up earlier in the day by Smith and King, that the three of them had been somewhere in Rancho Cucamonga earlier that day, and that Smith was driving the car. Gardner admitted to being in the car that crashed in Pasadena and admitted to fleeing from it. He said that a blue backpack of his containing his own clothing items had been located in that car, but he had no response to why Ryan's wallet was located in that backpack. Gardner avoided answering any questions about the burglary and said that he had no recollection of it. When asked whether he was aware that law enforcement had been trying to pull over the vehicle, Gardner said, "Smith apologized that he was fleeing from police." According to testimony in Gardner's trial, King told the same deputy that both Smith and Gardner had been throwing items out of the car during the chase.
DISCUSSION
A. Alleged Brady Violation as to Smith
Smith contends that the People violated Brady v. Maryland (1963) 373 U.S. 83 (Brady) by failing to disclose before trial a report analyzing fingerprints found at the burglarized residence. While we agree that the report has some exculpatory value, we conclude that it does not constitute material evidence under Brady, so reversal is not required.
1. Fingerprint Analysis Report
Twelve latent fingerprint cards were collected from the residence and "submitted . . . for review by Cal-ID." The parties do not dispute that the police report containing information about that collection was provided to Smith's counsel before trial. No pretrial information was provided to defense counsel about any subsequent analysis of those fingerprints.
These facts pertaining to what occurred before trial and what motivated the prosecutor to question law enforcement about the fingerprint evidence are taken from unverified trial briefs. Gardner does not dispute the sequence of events.
On the same day that the jury returned verdicts in Smith's trial, Gardner's trial began. In Gardner's trial, defense counsel questioned witnesses about the fingerprint evidence that had been collected from the burglarized residence and the car used in the pursuit. That line of questioning led the prosecutor to ask the sheriff's department if the recovered fingerprints had been submitted for analysis. Three days later, the sheriff's department forwarded to the prosecutor a copy of a fingerprint analysis report that had been previously conducted. The prosecutor immediately forwarded that report to Smith's counsel.
The fingerprint analysis report is dated November 10, 2015—two and one-half years before defense counsel received it. According to the report, the analyst received 37 latent fingerprint cards. It appears from the report that the recovered fingerprints included those from the vehicle. "Twenty seven latents [were] not suitable for comparison. Two latents [were] comparable but not computer quality. Five latents [were] computer quality." Six prints taken from the car were a positive match to Smith. Another one matched the female passenger.
Three of the total latent prints cards were susceptible of comparison and did not match Smith, Gardner, or the female passenger. Two of those were "palm" prints. The report does not indicate whether those three unmatched prints were taken from the house or the car. The nonpalm print was not a match for Ryan's mother but was inconclusive as to Ryan and his father. The palm prints were not compared to any of the residents.
We assume for the sake of argument that these three latent prints were taken from the house because the report documents whether exclusionary tests were run against the residents. These tests would be irrelevant as to the car.
Smith moved for a new trial, contending that the failure to disclose the report earlier constituted a Brady violation. The trial court denied the motion.
2. Prosecution's Federal Constitutional Duty to Disclose
"The federal due process clause prohibits the prosecution from suppressing evidence materially favorable to the accused. The duty of disclosure exists regardless of good or bad faith, and regardless of whether the defense has requested the materials." (People v. Zambrano (2007) 41 Cal.4th 1082, 1132 (Zambrano), overruled on another ground as stated in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; Brady, supra, 373 U.S. at p. 87.) "There are three elements to a Brady violation: (1) the state withholds evidence, either willfully or inadvertently, (2) the evidence at issue is favorable to the defendant, either because it is exculpatory or impeaching, and (3) the evidence is material." (People v. Lewis (2015) 240 Cal.App.4th 257, 263 (Lewis).)
With respect to materiality, "[e]vidence is material if there is a reasonable probability its disclosure would have altered the trial result." (Zambrano, supra, 41 Cal.4th at p. 1132.) This means that "the defendant must show that 'the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.'" (Lewis, supra, 240 Cal.App.4th at p. 263.) "Materiality includes consideration of the effect of the nondisclosure on defense investigations and trial strategies. [Citations.] Because a constitutional violation occurs only if the suppressed evidence was material by these standards, a finding that Brady was not satisfied is reversible without need for further harmless-error review." (Zambrano, supra, at pp. 1132-1133; Lewis, at p. 263.)
"Conclusions of law or of mixed questions of law and fact, such as the elements of a Brady claim [citation], are subject to independent review. [Citation.] Because the referee can observe the demeanor of the witnesses and their manner of testifying, findings of fact, though not binding, are entitled to great weight when supported by substantial evidence." (People v. Salazar (2005) 35 Cal.4th 1031, 1042.)
3. Analysis of Nondisclosure of Fingerprint Report
As to the first element of a Brady violation, it is undisputed that the report was withheld (apparently inadvertently but that is irrelevant under Brady). (Lewis, supra, 240 Cal.App.4th at p. 263.)
With respect to the second Brady element, we conclude that the fingerprint analysis report was exculpatory. Three latent prints were compared to Smith's and were not a match for him. (In re Sassounian (1995) 9 Cal.4th 535, 544 [evidence that "helps the defendant" is "'favorable'"].) He could have argued on that basis that he had not been present in the house. The evidence is thus exculpatory and hence favorable to Smith.
The People urge that the report "was not exculpatory" but do not provide any argument in support of that statement. The People cite Strickler v. Greene (1999) 527 U.S. 263, 281-282 (Strickler), but in that case it was "unquestionably established" that the undisclosed documents were impeaching. (Id. at p. 282.)
We next turn to "whether [Smith] has established the prejudice necessary to satisfy the 'materiality' inquiry." (Strickler, supra, 527 U.S. at p. 282.) Smith maintains that if he had the fingerprint analysis report before trial, he could have argued that "there was only sufficient evidence to show [that he] received stolen property and drove a getaway car after said receipt." Under that theory, Smith says that he could have argued that someone else burglarized the residence, ran away from it, drove away from the scene, then met up with Smith and gave Smith property from the residence. Smith jumped into the getaway car at a different location with the stolen goods and engaged in a high-speed pursuit thereafter. Smith claims that it is reasonably probable under these circumstances that he would not have been convicted of burglary. We disagree.
In support of his contention that the fingerprint analysis report had a reasonable probability of leading to a different verdict on the burglary count, Smith emphasizes that it supports other evidence favorable to him on the burglary count. At trial, no eyewitness to the burglary was able to identify Smith as being one of the burglars. Ryan testified that the red and white athletic shoes that Smith was wearing when apprehended were not the same as the ones that Ryan saw on the person who was ransacking his parents' bedroom. Ryan said that the person whom he saw in the bedroom did not have tattoos. Smith has tattoos on his knuckles or fingers. Deputy Buscemi (the officer who saw someone fiddling with the trunk of a blue car while responding to the burglary call) also did not identify Smith. Smith argues that because of these deficiencies in the evidence against him, it is reasonably probable that the fingerprint analysis report would have led to a more favorable result if it had been timely disclosed.
We disagree. The evidence against Smith was overwhelming, and the exculpatory value of the fingerprint report was minimal. Ryan and his neighbor both identified the men that burglarized the house as being differently sized—one was heavier than the other, who was described as lean. Smith is heavier set than Gardner, and the neighbor said that the heavier man entered the driver's seat of a blue Cadillac or Lincoln when the two men left the house. Smith was the driver of the blue Lincoln Continental that led police on a high-speed pursuit shortly after the burglary and in which property from the residence was ultimately recovered. That vehicle matched the description of the vehicle that was seen leaving the scene of the burglary, that was seen driving by the residence before the burglary, and that was seen in the area by law enforcement immediately after the burglary. When arrested, Smith had stolen property from Ryan's parents' residence in his front pants pockets.
Given all of that evidence, the deficiencies highlighted by Smith—the discrepancy about whether the athletic shoes were "Jordans," and Ryan's failure to notice or recall tattoos on the burglar's fingers or knuckles—are trivial, and the probative weight added by the fingerprint report would likewise have been minimal. The house undoubtedly contained numerous prints belonging to Ryan, his parents, or any number of other innocent persons. The fact that three prints recovered from the house were not Smith's has almost no tendency to show that Smith was never in the house. Two of the three might even have belonged to Ryan or his parents.
For all of these reasons, it is not reasonably probable that Smith would have been acquitted of burglary if the latent print evidence had been admitted at his trial. Under these circumstances, it cannot be said that the fingerprint analysis report "could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.'" (Lewis, supra, 240 Cal.App.4th at p. 263.) The fingerprint analysis report consequently was not material. We therefore conclude that there was no Brady violation. B. Propriety of Gang Expert Opinion Testimony in Smith's Trial
Smith contends that the trial court committed prejudicial error by allowing the gang expert to opine about whether the offenses were committed for the benefit of a criminal street gang in response to nonhypothetical questions. We agree but conclude that the error was harmless.
1. Gang-Related Testimony
Detective Dustin Wilf testified as a gang expert in Smith's trial. Detective Wilf was a gang detective with the City of Pasadena and was familiar with the Pasadena Denver Lanes, a criminal street gang that is a subset of the Los Angeles Denver Lanes, one of the biggest Bloods sets in the country. Pasadena Denver Lanes members show their allegiance through wearing the color red. It is common for members of Pasadena Denver Lanes to get visible tattoos that reference Pasadena. Members of the Pasadena Denver Lanes are more likely to commit a crime with other members of the Pasadena Denver Lanes than someone unaffiliated with the gang because another Pasadena Denver Lanes gang member is considered more trustworthy. In addition, members of the same gang commit crimes together because they share the mutual purpose of strengthening the gang and building the gang's reputation.
Field identification cards or "FI" cards are used by the Pasadena Police Department to record an officer's contact with a suspected gang member. The FI cards record various identifying information concerning the suspect, including name and birthdate, and indicate "the location of the contact, the time, clothing they're wearing, tattoos, if there's any kind of gang affiliation, or . . . gang clothing." The FI cards also record the people with whom the person is associating.
Detective Wilf opined that Gardner was a member of the Pasadena Denver Lanes on the basis of his prior contact with Gardner, as well as reports and FI cards from other officers. In addition, Gardner's tattoos were "all very common [Pasadena] Denver Lanes tattoos."
As to Smith, Detective Wilf opined that Smith is "an associate and probably a Pasadena Denver Lanes Denver Lane gang member." Other officers testified that they had contact with Smith in territory known to belong to Pasadena Denver Lanes. Smith had the tattoo "Pasadena" spelled out on the knuckles of both hands. Smith was wearing a Bloods-related hat in his driver's license photo—a red Chicago Bulls hat. Detective Wilf also found it significant that Smith wore red shoes during the burglary. In 2013, Smith was convicted of a first degree burglary that was committed with another person whom Detective Wilf opined was a well-known and self-admitted member of Pasadena Denver Lanes. Officers completed at least five FI cards for Smith starting in 2011 through 2015.
During the direct examination of Detective Wilf, the following exchange occurred:
"Q[:] Sitting through the testimony in this case relating to the burglary, the evasion, and the assault on Deputy Wallen, do you have any opinion about whether the burglary was committed either for the benefit of, in association with, or at the direction of a criminal street gang?
"[Defense]: Objection. Improper question. Goes to specific intent.
"The Court: It's overruled.
"[Wilf:] I do."
"Q[:] Starting with that particular charge or crime, being for the benefit of. What's your opinion as far as that's concerned and what do you base it on?
"[Wilf:] As I stated in my first testimony, burglaries or robberies—in this case burglary—benefits a gang by basically receiving proceeds from your stolen goods . . . .
"Q[:] Do you have an opinion whether this crime was committed in association with Pasadena Denver Lanes?
"[Wilf:] I do.
"Q[:] What is that opinion and what do you base it on?
"[Wilf:] I believe it was committed in association with having two gang members at the scene of the incident.
"Q[:] Mr. Gardner and Mr. Smith?
"[Wilf:] Yes, ma'am."
Detective Wilf further opined that there are numerous benefits to gang members committing crimes together "as [he] heard during portions of this trial." After opining about those general benefits, he was asked more specific questions:
"Q[:] Now, sitting through [Ryan's] testimony. Do you recall him talking about contemplating going to confront the person who broke into his house?
"[Wilf:] I do.
"Q[:] And him deciding instead to hide underneath the bed because he heard there was more than one voice in the home. Do you recall that?
"[Wilf:] Yes.
"Q[:] Is that an example that you were talking about how numbers are beneficial when PDL members commit crimes together?
"[Wilf:] As [Ryan] stated when he heard the glass shatter, he believed somebody was inside the house. He contemplated going downstairs and confronting the person who was in his house, but when he heard the second[] voice he re-considered. My opinion is [Ryan] was probably in fear and hid under the bed instead of confronting the two people—unknown people in his home."
Detective Wilf did not have enough information to opine about whether the burglary offense was committed at the direction of the Pasadena Denver Lanes. He expressed the same opinion about whether the felony evasion was committed at the direction of the Pasadena Denver Lanes and did not have any information about whether Gardner or Smith directed the other to commit the offense. With respect to whether Smith committed the felony evasion offense in association with or for the benefit of the Pasadena Denver Lanes, the following exchange occurred:
"Q[:] Okay. Now how about the evasion portion, the pursuit portion of this case. Do you have an opinion whether that benefitted or was done in association with, or done at the direction of Pasadena Denver Lanes?
"[Wilf:] The benefit of the pursuit is the possibility of getting away from law enforcement and being able to still be on the street and commit further crime, as well as any proceeds that you get from your stolen goods. [¶] It would benefit the gang for these two gang members to still be out in the street and committing crimes. If they're in custody, that's a source of revenue and a source of, basically, intimidation, more gang members on the street, and that's not what they're looking for. [¶] . . . [¶]
"Q[:] Without speak[ing] to specifically what people in the car were thinking would the actions that you heard be consistent with this crime being done in association with Pasadena Denver Lanes, these two members working in association [with] one another?
"[Defense]: Objection. Goes to the ultimate issue.
"The Court: Overruled.
"[Wilf:] Yes. [¶] . . . [¶]
"Q[:] And Mr. Gardner being in the front seat being the one tossing items out of the vehicle, would disposing of that property be something that would benefit he and Mr. Smith as Pasadena Denver Lanes members?
"[Wilf:] Yes . . ."
2. Analysis of Gang Expert Testimony
In order to secure a true finding on a gang enhancement allegation under section 186.22, subdivision (b)(1), the prosecutor must prove both that (1) the underlying felony was "committed for the benefit of, at the direction of, or in association with any criminal street gang," and (2) the defendant had "the specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22, subd. (b)(1); People v. Albillar (2010) 51 Cal.4th 47, 59.)
"'California law permits a person with "special knowledge, skill, experience, training, or education" in a particular field to qualify as an expert witness (Evid. Code, § 720) and to give testimony in the form of an opinion (id., § 801). Under Evidence Code section 801, expert opinion testimony is admissible only if the subject matter of the testimony is "sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." (Id., subd. (a).) The subject matter of the culture and habits of criminal street gangs . . . meets this criterion.'" (People v. Vang (2011) 52 Cal.4th 1038, 1044 (Vang).) "'Expert opinion that particular criminal conduct benefited a gang' is not only permissible but can be sufficient to support the [section 186.22, subdivision (b)(1)], gang enhancement." (Vang, supra, at p. 1048.)
We review the trial court's admission or exclusion of expert testimony for an abuse of discretion. (People v. Valdez (1997) 58 Cal.App.4th 494, 509 (Valdez).)
In Vang, the Supreme Court held that a gang "'expert may render opinion testimony on the basis of facts given "in a hypothetical question that asks the expert to assume their truth."'" (Vang, supra, 52 Cal.4th at p. 1045.) The hypothetical question must closely track the facts in the case and may not be based on assumptions of fact with no evidentiary support in the case. (Id. at pp. 1045-1046.) Conversely, Vang explained that it is generally not permissible for a gang "expert to opine that the particular defendant[] committed a crime for a gang purpose." (Id. at p. 1049.)
In a footnote, Vang recognized that there may be exceptional circumstances in which "expert testimony regarding the specific defendants might be proper." (Vang, supra, 52 Cal.4th at p. 1048, fn. 4.) The Court declined to decide the issue (ibid.), and we see no reason why such an exception (if any exists) would apply here.
The parties do not dispute that the questions posed to Detective Wilf about the first element of the gang enhancement—that is, whether the offenses were "committed for the benefit of, at the direction of, or in association with any criminal street gang" (§ 186.22, subd. (b)(1)—were not hypothetical. We agree. The prosecutor asked Detective Wilf to opine about whether Smith specifically committed the present offenses for the benefit of, in association with, or at the direction of the Pasadena Denver Lanes on the basis of the specific facts in the case, which Detective Wilf learned from witness testimony. That was improper under Vang. We thus conclude that it was error for the trial court to allow these questions.
The question remains whether the error was harmless. Notwithstanding Smith's urging to the contrary, the applicable standard of harmless error review is the state law standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). "The erroneous admission of expert testimony only warrants reversal if 'it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.'" (People v. Prieto (2003) 30 Cal.4th 226, 247; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 76 (Coffman) [claim of inadmissible opinion testimony on issue of guilt is "one of erroneous admission of evidence, subject to the standard of review for claims of state law error"].)
Applying the Watson standard of review, we find the error harmless. It is not reasonably probable that the jury would have concluded that the offenses were not committed for a gang purpose absent the improper nonhypothetical questions. As to whether Smith committed the offenses at the direction of the Pasadena Denver Lanes, Detective Wilf did not offer any opinion. This improper question therefore could not have affected the outcome, so it is not reasonably probable that the outcome would have differed if these questions had been properly posed as hypotheticals.
Similarly, in answering the questions about whether Smith committed the offenses for the benefit of the Pasadena Denver Lanes, Detective Wilf's answers did not provide any specific information about Smith and the offenses. He did not even confirm that the offenses were committed by Smith for the benefit of the Pasadena Denver Lanes. Instead, Detective Wilf provided generic answers about why the offenses would benefit any gang. As to whether the burglary offense was committed by Smith to benefit the Pasadena Denver Lanes, Detective Wilf explained that "burglaries or robberies—in this case burglary—benefits a gang by basically receiving proceeds from your stolen goods." He similarly opined generally about how evading law enforcement benefits gangs in general and did not say anything about how Smith's conduct in evading law enforcement benefitted the Pasadena Denver Lanes in particular. These generalized answers did not include objectionable content about whether Smith specifically acted to benefit the Pasadena Denver Lanes, and the answers would have been of the same generic quality if the questions were properly posed as hypotheticals. It therefore is not reasonably probable that the outcome would have differed if these questions had been properly posed as hypotheticals.
Detective Wilf did affirmatively opine that Smith committed the offenses in association with Gardner, another member of the Pasadena Denver Lanes. However, this information did not have significant probative value. Detective Wilf had already opined that Gardner and Smith were both members or associates of the Pasadena Denver Lanes. There was no dispute that Gardner and Smith committed the evasion offense together, and there was overwhelming evidence that they committed the burglary offense together. By stating that the offenses were committed by Smith in association with another gang member, Detective Wilf merely drew an inference that would have been obvious to the jury anyway, and his answers would not have been meaningfully different if the questions had been properly phrased. It therefore was not reasonably probable that the outcome would have differed if these questions had been posed as hypotheticals.
For all of these reasons, we conclude that the trial court erred by allowing the gang expert to opine about whether Smith specifically committed the burglary and felony evasion offenses for the benefit of, in association with, or at the direction of a criminal street gang in response to nonhypothetical questions. However, we also conclude that the error was harmless. C. Gardner's Due Process Challenge to the Natural and Probable Consequences Doctrine
Gardner contends that the natural and probable consequences doctrine violated his right to due process of law because it allowed the jury to find him guilty of felony evasion based on "ordinary negligence." This contention lacks merit.
The natural and probable consequences doctrine makes "a person who aids and abets a confederate in the commission of a criminal act . . . liable not only for that crime (the target crime), but also for any other offense (nontarget crime) committed by the confederate as a 'natural and probable consequence' of the crime originally aided and abetted." (People v. Prettyman (1996) 14 Cal.4th 248, 254 (Prettyman), superseded by statute on other grounds as stated in People v. Lopez (2019) 38 Cal.App.5th 1087, 1103.) The Supreme Court has repeatedly rejected the argument that the doctrine violates due process by allowing a jury to convict a defendant on the basis of mere negligence. (People v. Richardson (2008) 43 Cal.4th 959, 1021 (Richardson) [rejecting contention that the natural and probable consequences doctrine "unconstitutionally imposes criminal liability based on a negligence standard"]; Coffman, supra, 34 Cal.4th at p. 107 [defendant "is mistaken" in contention "that imposition of liability for murder on an aider and abettor under [the natural and probable consequences] doctrine violates due process by substituting a presumption for, or otherwise excusing, proof of the required mental state"].)
Most recently, in People v. Letner and Tobin (2010) 50 Cal.4th 99, 185 (Letner), the Court cited its prior opinions upholding the doctrine against due process challenges and "decline[d] to revisit [these] prior decisions." Consistent with existing precedent, Letner concluded that the natural and probable consequences doctrine did not amount to a violation of the defendant's due process rights by purportedly allowing a jury to convict without the requisite intent. (Id. at pp. 184-185.)
In his reply brief, Gardner concedes that the Supreme Court has "declined to find a due process violation in the application of the natural and probable consequences doctrine." He nevertheless asks us to revisit the issue and contends that the conclusion reached in Coffman, supra, 34 Cal.4th at pages 107-108—the first Supreme Court case to reject the argument—was reached in a "conclusory fashion" and that the Court "merely cited Coffman in rejecting a challenge to the natural and probable consequences doctrine" in Richardson, supra, 43 Cal.4th at page 1021. Gardner fails to mention Letner, supra, 50 Cal.4th at page 185.
We are bound by the decisions of our Supreme Court and do not have latitude to revisit an argument it rejected. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) We therefore reject Gardner's due process challenge to the natural and probable consequences doctrine. D. Substantial Evidence That Gardner's Felony Evasion Conviction Was a Natural and Probable Consequence of Burglary
Gardner contends that there was not substantial evidence to support his conviction for felony evading based on a natural and probable consequences theory. We reject this contention too.
"To convict a defendant of a nontarget crime as an accomplice under the 'natural and probable consequences' doctrine, the jury must find that, with knowledge of the perpetrator's unlawful purpose, and with the intent of committing, encouraging, or facilitating the commission of the target crime, the defendant aided, promoted, encouraged, or instigated the commission of the target crime. The jury must also find that the defendant's confederate committed an offense other than the target crime, and that the nontarget offense perpetrated by the confederate was a 'natural and probable consequence' of the target crime that the defendant assisted or encouraged." (Prettyman, supra, 14 Cal.4th at p. 254) "The latter question is not whether the aider and abettor actually foresaw the additional crime, but whether, judged objectively, it was reasonably foreseeable." (People v. Mendoza (1998) 18 Cal.4th 1114, 1133.) The natural and probable consequences doctrine applies equally to coconspirators. (People v. Guillen (2014) 227 Cal.App.4th 934, 998-999.)
The prosecution presented alternate theories to establish the evasion count against Gardner: The evasion was a natural and probable consequence of a burglary aided and abetted by Gardner, or a natural and probable consequence of a burglary that Gardner and Smith conspired to commit.
Gardner maintains that there was no evidence that he had any foreknowledge that Smith would flee from law enforcement after the burglary. He points out that when he was apprehended and asked whether he was aware that law enforcement had been attempting to pull the car over that Gardner told the deputy that Smith had apologized to him for fleeing from police. While a reasonable jury could conclude from this apology, as Gardner suggests, that Smith believed that his own "behavior was unexpected and surprising" to Gardner, it does not follow that there was not sufficient evidence to support the conclusion that felony evasion was a natural and probable consequence of the residential burglary.
Before defendants broke into Ryan's house, Ryan noticed the car that defendants ultimately used to flee the scene of the burglary. Coupled with the evidence that defendants lived in another city, a jury could reasonably infer that defendants did not arrive at Ryan's house on foot. Because defendants fled the scene in the same car that Ryan saw before the burglary, a jury could further reasonably infer that defendants planned all along to use that car to flee from the burglary. From this evidence, a jury could reasonably infer that defendants planned to drive away from the scene and that "[m]aking a quick escape . . . was an essential part of the plan." (People v. Robins (2020) 44 Cal.App.5th 413, 423 (Robins).) Defendants ran immediately to the car after discovering that Ryan was inside of the house. That a resident could be home during a residential burglary is an inherent risk of the crime. With that risk comes the attendant risk that law enforcement will be contacted and en route to the scene quickly. "Under these circumstances, a jury could conclude that the probability of an ensuing chase was sufficiently high to make it reasonably foreseeable." (Ibid.)
We reject Gardner's attempt to distinguish the facts in this case from People v. Weddington (2016) 246 Cal.App.4th 468, 487-488, in which another court concluded that there was substantial evidence supporting the jury's conclusion that felony evasion was a natural and probable consequence of the burglary charge. There, the same group of defendants had been involved in an attempted burglary several weeks before and the same defendant fled from police in a reckless manner. (Id. at p. 488.) It is of no consequence to the analysis here that there is no similar evidence of prior flight from a previous crime by Smith. Although there was stronger evidence in Weddington of the likelihood of flight from police after a crime because the defendant had previously done so, it does not follow that the evidence here is insufficient. While this appeal was pending, another court reached the same conclusion as Weddington without any evidence about the driver's prior propensity to flee. (Robins, 44 Cal.App.5th at p. 423.)
As we have already explained, in light of the evidence that defendants drove to a different city to burglarize a residence, that defendants immediately ran to the car after being discovered, and that defendants immediately fled from the area in that car, it was reasonably foreseeable that Smith would flee from police in a reckless manner to avoid capture. We therefore conclude that the felony evasion count as to Gardner is supported by substantial evidence based on the natural and probable consequences doctrine. E. CALCRIM No. 2181 Does Not Contain an Impermissible Mandatory Presumption
Defendants contend that CALCRIM No. 2181 contains an impermissible mandatory presumption by telling the jury that the element of willful or wanton disregard for the safety of persons or property in Vehicle Code section 2800.2, subdivision (b) (Vehicle Code section 2800.2(b)) may be proven by evidence of three Vehicle Code violations or property damage. The instruction follows the statutory language of Vehicle Code section 2800.2(b), so defendants' argument amounts to an attack on Vehicle Code section 2800.2(b) itself as containing an impermissible mandatory presumption. We follow the decisions of our sister courts that have addressed this issue and conclude that CALCRIM No. 2181 and Vehicle Code section 2800.2(b) do not contain an impermissible mandatory presumption.
1. Applicable Vehicle Codes and CALCRIM No. 2181
Vehicle Code section 2800.2, subdivision (a), provides that a person who drives with "willful or wanton disregard for the safety of persons or property" while fleeing or attempting to elude a pursuing peace officer is guilty of evasion. "[A] willful or wanton disregard for the safety of persons or property" is defined in Vehicle Code section 2800.2(b) as including but not being limited "to, driving while fleeing or attempting to elude a pursuing peace officer during which time either three or more violations that are assigned a traffic violation point count . . . or damage to property occurs." (Veh. Code, § 2800.2(b).)
CALCRIM No. 2181 has adopted this statutory language and, as given to the jury, provides: "Driving with willful or wanton disregard for the safety of persons or property includes, but is not limited to, causing damage to property while driving or committing three or more violations that are each assigned a traffic violation point." Defendants do not argue that CALCRIM No. 2181 differs materially (or at all) from Vehicle Code section 2800.2(b).
2. Mandatory Presumptions
"'[P]resumptions are a staple of our adversary system of factfinding. It is often necessary for the trier of fact to determine the existence of an element of the crime—that is, an "ultimate" or "elemental" fact—from the existence of one or more "evidentiary" or "basic" facts.'" (People v. McCall (2004) 32 Cal.4th 175, 182 (McCall).)
"A mandatory presumption tells the trier of fact that if a specified predicate fact has been proved, the trier of fact must find that a specified factual element of the charge has been proved, unless the defendant has come forward with evidence to rebut the presumed connection between the two facts." (People v. Williams (2005) 130 Cal.App.4th 1440, 1444-1445 (Williams); McCall, supra, 24 Cal.4th at p. 182.) This type of presumption "offends constitutional principles of due process of law because it relieves the prosecutor from having to prove each element of the offense beyond a reasonable doubt." (Williams, supra, at p. 1445; People v. Taylor (2018) 19 Cal.App.5th 1195, 1200 (Taylor).)
3. Analysis
Numerous courts have rejected defendants' argument that the language in Vehicle Code section 2800.2(b) and CALCRIM No. 2181 amounts to an impermissible mandatory presumption that lessens the burden of proof for the prosecutor. (Taylor, supra, 19 Cal.App.5th at pp. 1200-1205; People v. Mutuma (2006) 144 Cal.App.4th 635, 641-642; People v. Laughlin (2006) 137 Cal.App.4th 1020, 1024-1028; Williams, supra, 130 Cal.App.4th at pp. 1444-1447; People v. Pinkston (2003) 112 Cal.App.4th 387, 391-394 (Pinkston).) None has concluded otherwise, and neither do we.
As Pinkston (the first court to have addressed this issue) explained, rather than state a mandatory presumption, Vehicle Code section 2800.2(b) "sets out the Legislature's definition of what qualifies as willful and wanton conduct under subdivision (a). Although Vehicle Code section 2800.2 uses the phrase 'willful or wanton disregard for the safety of persons or property' to describe an element of reckless evading, the statute defines this element so that it may be satisfied by proof of property damage or by proof that the defendant committed three Vehicle Code violations. Thus, section 2800.2, subdivision (b) establishes a rule of substantive law rather than a presumption apportioning the burden of persuasion concerning certain propositions or varying the duty of coming forward with evidence." (Pinkston, supra, 112 Cal.App.4th at p. 392.) In other words, Vehicle Code section 2800.2(b) "merely defines, in precise terms, one way in which the People may prove the element of willful or wanton disregard for the safety of persons or property." (Pinkston, at p. 394.) CALCRIM No. 2181 repeats that definition.
Defendants acknowledge the cases that have concluded that Vehicle Code section 2800.2(b) and CALCRIM No. 2181 do not create a mandatory presumption. However, as the defendant did in Taylor, defendants here maintain that those cases were wrongly decided for the reasons set forth in the dissenting opinion in Pinkston. (Taylor, supra, 19 Cal.App.5th at p. 1201.)
In brief, "Justice Klein viewed the phrase '"willful or wanton disregard for the safety of persons or property"' as carrying the precise meaning attributed to the same phrase in [Vehicle Code] section 23103, subdivision (a), which establishes the offense of reckless driving." (Taylor, supra, 19 Cal.App.5th at p. 1201; Pinkston, supra, 112 Cal.App.4th at p. 395-396 (dis. opn. of Klein, P. J.).) On that basis, she concluded that Vehicle Code section 2800.2(b) created an improper mandatory presumption by "authoriz[ing] the prosecution to establish the 'relatively complex mental state' required by [Vehicle Code] section 2800.2 merely by demonstrating three qualifying traffic violations." (Taylor, at p. 1202; Pinkston, supra, at pp. 396-397 (dis. opn. of Klein, P. J.).)
Taylor provides a thorough analysis and rejection of this rationale, and we adopt that analysis here. (Taylor, supra, 19 Cal.App.5th at pp. 1201-1205.) In essence, the argument erroneously assumes that Vehicle Code section 2800.2(b) does not contain its own definition of willful and wanton conduct but instead adopts the definition contained in the reckless driving statute. But it does not. By its express terms, Vehicle Code section 2800.2(b) defines "willful or wanton disregard for the safety of persons or property" and does not reference any other statutory definition. Thus, "a driver may violate [Vehicle Code] section 2800.2 without manifesting the mental state necessary for the offense of reckless driving." (Taylor, supra, at p. 1202.)
For the reasons expressed in Taylor, we too find distinguishable the other decisions cited by defendants in which a mandatory presumption was identified in other jury instructions or statutes. (Taylor, supra, 19 Cal.App.5th at p. 1205, fn. 4.) "In each case, the reviewing court concluded that a jury instruction, statute, or trial court ruling reflected an improper presumption that the defendant's intent (or other mental state) was established by an evidentiary fact." (Ibid.) As we have explained, Vehicle Code section 2800.2(b) and CALCRIM No. 2181 do not do that. (Taylor, at p. 1205, fn. 4.)
In sum, we conclude that Vehicle Code section 2800.2(b) does not contain an improper mandatory presumption. Because CALCRIM No. 2181 tracks the statutory language, CALCRIM No. 2181 consequently also does not contain such a presumption. The trial court therefore did not err by instructing the jury with CALCRIM No. 2181. F. Flight Instruction
Section 1127c requires "an instruction to the jury when there is evidence of flight." (People v. Mendoza (2000) 24 Cal.4th 130, 179 (Mendoza), superseded by statute on other grounds as stated in People v. Brooks (2017) 3 Cal.5th 1, 63, fn. 8; § 1127c.) Consistent with that requirement and the statutory language of section 1127c, CALCRIM No. 372, as given to the jury, provides: "If the defendant fled or tried to flee immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled or tried to flee, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled or tried to flee cannot prove guilt by itself." Here, defendants do not dispute that they took flight after both the burglary offense and the felony evasion offense. The flight instruction was therefore required as to both offenses. (§ 1127c.)
Defendants nevertheless claim that the trial court prejudicially erred by giving the jury that instruction because "flight or driving away in the car is an element of the felony evading offense." They contend that the instruction "undermined the presumption of innocence" on the felony evasion count. CALCRIM No. 372, they claim, directed the jury to find them guilty of felony evasion based only on evidence of that one element of the offense.
We reject the People's argument that defendants have waived this argument by failing to object to the giving of CALCRIM No. 372 in the trial court. Defendants claim that their substantial rights were affected by the instruction insofar as it allowed a guilty finding based on one element of the felony evasion offense. As defendants correctly point out, the "claim therefore is not of the type that must be preserved by objection." (People v. Smithey (1999) 20 Cal.4th 936, 976, fn. 7.) We therefore do not consider defendants' claim that counsel was ineffective by failing to object.
But that interpretation is not supported by the language of the instruction itself. CALCRIM No. 372 allows the jury to consider flight after the commission of a crime as evidence that the crime was committed and to decide what weight (if any) that evidence should be given. It does not in any way dictate that the jury find defendants guilty of felony evasion at all, let alone based solely on flight. The instruction requires the jury to determine "[i]f the defendant fled [or tried to flee]" (CALCRIM No. 372) before determining how to weigh that evidence. It does not "assume that flight was established," but, rather, "leav[es] that factual determination and its significance to the jury." (People v. Visciotti (1992) 2 Cal.4th 1, 61.)
To find defendants guilty of felony evasion, the jurors were instructed that the prosecutor had to prove the existence of four separate elements (one of which had five requisite subparts). Only one element involved the act of flight itself: "A person who was also driving a motor vehicle, willfully fled from, or tried to elude, the officer, intending to evade the officer." We cannot see how the flight instruction improperly dictated that the jurors conclude that defendants were guilty of felony evasion based merely on the evidence of flight. On the contrary, CALCRIM No. 372 concludes by expressly directing jurors not to find defendants guilty of any crime based only on evidence of flight or attempted flight. Defendants do not offer any explanation as to why that express limitation in the instruction itself does not fatally undermine their challenge to CALCRIM No. 372. For all of these reasons, we conclude that it was not error to instruct the jurors with the flight instruction in CALCRIM No. 372. G. Denial of Gardner's Romero Motion
Gardner contends that the trial court abused its discretion by denying his motion to strike one of his prior strike convictions under section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
A trial court may, "in furtherance of justice," strike a prior conviction under the Three Strikes law. (§ 1385, subd. (a); Romero, supra, 13 Cal.4th at pp. 529-530.) In considering whether to strike a prior strike conviction, the trial court "must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the [Three Strikes law's] spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).) We review the trial court's decision for an abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 375.)
After the jury trial on the substantive offenses, Gardner admitted to two prior strike convictions—one for second degree robbery in 2008 and one for first degree residential burglary in 2010. He then filed a Romero motion seeking to strike one of those convictions. In considering the request at the sentencing hearing, the trial court acknowledged that "it's with a heavy heart I have to do certain things in terms of punishment." After analyzing the requisite factors under Romero, the trial court denied the motion.
Gardner maintains that his prior offenses were too remote from the underlying offenses and that his criminal history was limited and lacked severity and violence, so striking one of the prior serious felony convictions was the "far more reasonable choice." Choosing between two reasonable choices—even if one is more reasonable than the other—does not amount to an abuse of discretion.
As to Gardner's prior felony convictions, the court found them to be "incredibly serious and extensive." The trial court did not limit its review to Gardner's adult criminal history, as Gardner does on appeal. The trial court noted that Gardner had a total of seven arrests as a juvenile between 2003 and 2007, but that in each case he had been released to his parents. Gardner does not claim that it was improper for the trial court to consider his juvenile arrest record, nor does he claim that it was improper for the trial court to consider arrests. As to Gardner's adult criminal history, the trial court noted that "he was convicted of second-degree robbery, I believe, in 2008, [and] received two years state prison. Upon his release, he committed a first-degree burglary and received five years [in] state prison. And he violated parole for shoplifting and was on parole at the time of the commission of these offenses." With respect to this combined history, the court concluded that it was both "incredibly serious and extensive." This was not an abuse of discretion.
The seven-year gap between the first felony conviction and the present offenses is a result of prison time spent in between offenses. Gardner committed the present offenses shortly after being released from prison. Thus, the prior convictions were remote in time only because Gardner was incarcerated.
We reject Gardner's attempt to distinguish himself from the defendant in Williams, supra, 17 Cal.4th 148, on this point—that is, Gardner claims that his criminal history is not nearly as bad as the defendant's in Williams. Regardless of whether that defendant's criminal history was worse (arguably it was; it included a conviction for a violent rape), it does not follow that Gardner's criminal history was not sufficiently extensive to warrant denial of the Romero motion. Williams did not set a minimum threshold of criminality below which the denial of a Romero motion constitutes an abuse of discretion.
As Gardner admits, one of his two prior felony convictions was for the violent offense of robbery. (§ 667.5, subd. (c)(9).) And as the trial court noted, the present burglary offense was violent. (§ 667.5, subd. (c)(21) [first degree residential burglary].) In addition to the commission of that violent felony, Gardner then committed the separate felony of evading law enforcement which, as the trial court put it, involved "a very high-speed pursuit" that "endangered many lives on the freeway regarding that high-speed pursuit."
Gardner points out that he was employed at the time of the present offenses and has two children, which he urges weigh in favor of striking one of the priors. Gardner's employment and parental status at the time of the offenses do not render the trial court's decision an abuse of discretion. In considering Gardner's personal background, character, and prospects, the trial court focused on Gardner's denial of responsibility for the underlying crimes to the probation officer and his denial of being affiliated with a gang. The trial court therefore considered Gardner's personal background, characteristics, and prospects but arrived at an interpretation of that evidence that differs from Gardner's. That interpretation is not unreasonable and consequently was not an abuse of discretion.
We therefore conclude that the trial court did not abuse its discretion by failing to strike one of Gardner's prior serious felony convictions under section 1385. H. Senate Bill 1393
"Senate Bill No. 1393 amended section 667, subdivision (a), and section 1385, subdivision (b), as of January 1, 2019, to allow a court to strike or dismiss a prior serious felony conviction for sentencing purposes. (Stats. 2018, ch. 1013, § 2, eff. Jan. 1, 2019.)" (People v. Zamora (2019) 35 Cal.App.5th 200, 208 (Zamora).) At the time of defendants' sentencing, the trial court did not have authority to strike prior serious felony convictions. (Ibid.) For Gardner, the trial court imposed two five-year sentences for two prior serious felony convictions. For Smith, the trial court imposed one five-year sentence for one prior serious felony conviction. The parties agree and this court has already held that this change in the law applies retroactively to those like Smith and Gardner whose sentences were not final when Senate Bill No. 1393 became effective. (Ibid.; People v. Garcia (2018) 28 Cal.App.5th 961, 973.) The parties further agree that it is not clear from the record whether the trial court would have declined to exercise its discretion, so remand is necessary so that the trial court can exercise its newly gained discretion as to whether to dismiss or to strike the serious felony enhancements for each defendant for sentencing purposes. We concur and therefore remand the matters for that purpose.
I. Two Five-Year Enhancements for Prior Serious Felony Convictions (Gardner)
"All enhancements shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found true by the trier of fact." (§ 1170.1, subd. (e).) Although Gardner was alleged to have had two prior serious felony convictions for purposes of enhancement (§ 667, subd. (a)(1)), he admitted to only one of those as part of a posttrial plea agreement about the enhancements. The other allegation was supposed to "be dismissed." The court, however, later sentenced Gardner to two five-year sentences for each of those enhancements.
As the parties correctly agree, the trial court was not authorized to sentence Gardner for an enhancement that was neither admitted nor found true by a trier of fact. (§ 1170.1, subd. (e).) The People request that we remand the matter to the trial court "to resolve and clarify the record" with respect to the second prior serious felony conviction. Clarification is not needed. The trial court already indicated that the second prior serious felony conviction was to be dismissed. We therefore order the trial court to strike that enhancement and to amend the abstract of judgment accordingly. J. Hearing on Ability to Pay Fines and Fees
At sentencing, the court ordered each defendant to pay a $140 court operations and facilities fee (§ 1465.8, subd. (a)(1); Gov. Code, § 70373) and a $300 restitution fine. Neither defendant objected to these amounts at sentencing.
Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), which was decided while these appeals were pending, both defendants argue that the court violated their constitutional rights by assessing those amounts without holding a hearing to determine their ability to pay. The People concede that the matter should be remanded to the trial court to conduct an ability to pay hearing because defendants will have to be resentenced anyway. We agree. Regardless of whether the argument was forfeited or whether any Dueñas error was harmless beyond a reasonable doubt, we conclude that in resentencing defendants the trial court should conduct an ability to pay hearing regarding these fines and fees. K. Smith's Gang Enhancement for Felony Evasion
For Smith, the trial court imposed a three-year sentence for the gang enhancement under section 186.22 subdivision (b)(1)(A), associated with the felony evasion count (count 2) but stayed that sentence under section 654. The court, however, did not also stay the sentence for the felony evasion count. Smith contends and the People agree that the court was not authorized to stay the enhancement only. We agree. The sentence enhancements in section 186.22, subdivision (b)(1) are mandatory and cannot be stayed. (People v. Vega (2013) 214 Cal.App.4th 1387, 1396 (Vega).) "[A]ll three provisions specify that the additional punishment 'shall' be imposed." (People v. Le (2015) 61 Cal.4th 416, 423.) The trial court, however, has discretion to strike the gang enhancement associated with count 2 under section 186.22, subdivision (g). (Vega, supra, at p. 1397.)
We therefore remand for the trial court to exercise its discretion to strike or to impose the gang enhancement for count 2. Should the court choose to impose the enhancement, the parties agree that the court is not authorized to impose the full three-year term for the enhancement. We agree. Count 2 was subordinate to count 1, so the trial court should have imposed one-third of the midterm for the gang enhancement, not the full midterm as it did. (§ 1170.1, subd. (a).) Thus, if the trial court chooses to impose the gang enhancement for count 2, the trial court shall correct the sentence to be one-third the midterm on that count.
L. Smith's Prior Prison Term Enhancement
Effective January 1, 2020, while this appeal was pending, Senate Bill No. 136 (2019-2020 Reg. Sess.) (Stats. 2019, ch. 590) amended section 667.5, subdivision (b), to restrict the circumstances under which a one-year sentence enhancement may be imposed for a prior prison term. The trial court imposed one one-year prior prison term enhancement for burglary (§ 459) but stayed the enhancement. Section 667.5, subdivision (b), now allows for the imposition of a one-year prior prison term enhancement only if the prior prison term was served for a sexually violent offense. The parties agree and this court has already held that Senate Bill No. 136 applies retroactively to those like Smith whose sentences were not final at the time that Senate Bill No. 136 became effective. (People v. Chubbuck (2019) 43 Cal.App.5th 1, 13-14.) We therefore remand so that the trial court can strike the one-year prior prison term enhancement in light of Senate Bill No. 136.
DISPOSITION
For both defendants, the sentences are vacated and the matters are remanded to the trial court to: (1) exercise its discretion under section 667, subdivision (a), and section 1385, subdivision (b), to determine whether to dismiss or to strike one of the two serious felony conviction enhancements for Gardner and the one serious felony conviction enhancement for Smith; and (2) hold a hearing on defendants' ability to pay the fines and fees imposed. For Gardner, the trial court is further ordered to strike the remaining serious felony conviction enhancement. For Smith, the trial court is further ordered to: (1) strike the one-year prior prison term enhancement under section 667.5, subdivision (b); and (2) exercise its discretion to impose or to strike the gang enhancement associated with count two. If the trial court chooses to impose the gang enhancement for count 2, the trial court shall correct the enhancement to be one-third the midterm on that count. In all other respects, the judgments are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ
J. We concur: SLOUGH
Acting P. J. FIELDS
J.