Opinion
F075891
03-16-2020
THE PEOPLE, Plaintiff and Appellant, v. RANDY LEE TORRES et al., Defendants and Appellants.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant Randy Lee Torres. Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant Antonio Romero. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein, Darren K. Indermill and Paul E. O'Connor, Deputy Attorneys General, for Plaintiff and Appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SF018666A & SF018666C)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Brian M. McNamara, Judge. John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant Randy Lee Torres. Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant Antonio Romero. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein, Darren K. Indermill and Paul E. O'Connor, Deputy Attorneys General, for Plaintiff and Appellant.
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INTRODUCTION
Codefendants Randy Lee Torres, Antonio Romero and Ronald Anthony Beltran, who were convicted prisoners serving sentences at Wasco State Prison, attacked and injured another inmate. Following a trial by jury, Torres and Romero stand convicted of assault by a prisoner by means of force likely to produce great bodily injury (GBI) (Pen. Code, § 4501, subd. (b); count 1), assault by means of force likely to produce GBI (§ 245, subd. (a)(4); count 2), and active participation in a criminal street gang (§ 186.22, subd. (a); count 3). As to counts 1 and 2, the jury found the gang enhancement allegations true but found the enhancement allegations for personal infliction of GBI not true. (§§ 186.22, subd. (b)(1), 12022.7, subd. (a).) In a bifurcated proceeding, the trial court found true that Torres suffered two prior serious felony convictions within the meaning of the Three Strikes law and served seven prior prison terms, and that Romero suffered three prior serious felony convictions and served five prior prison terms. (§§ 667, subds. (a)-(i), 1170.12, subds. (a)-(d), 667.5, former subd. (b).)
All three codefendants were convicted of the charges against them, but Beltran dismissed his appeal and, therefore, the discussion in this opinion is confined to the issues raised by coappellants Torres and Romero.
All further statutory references are to the Penal Code unless otherwise stated.
Section 667.5, subdivision (b), was amended, effective January 1, 2020, to limit imposition of the additional one-year prior prison term enhancement to convictions for sexually violent offenses as defined in Welfare and Institutions Code section 6600, subdivision (b). (Sen. Bill No. 136 (2019-2020 Reg. Sess.) ch. 590, § 1.) Neither Torres nor Romero served a prior prison term for an offense that qualifies under the statute as amended, but the enhancements were not imposed in this case.
Pursuant to Torres's and Romero's requests for relief under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), at the sentencing hearing, the trial court struck Torres's two prior serious felony convictions and struck two of Romero's three prior serious felony convictions. The court also struck all the prior prison term enhancements. As to Torres on count 1, the court imposed the lower term of two years; imposed and stayed a four-year term for the gang enhancement; and imposed a 10-year term for the two prior serious felony conviction enhancements under section 667, subdivision (a), for a total determinate term of 12 years in prison. As to Romero on count 1, the court imposed the lower term of two years on count 1, doubled to four years for Romero's prior strike conviction; imposed and stayed a four-year term for the gang enhancement; and imposed a 15-year term for the three prior serious felony conviction enhancements, for a total determinate term of 19 years in prison. (§ 667, subd. (a).) The sentences on counts 2 and 3 were stayed under section 654.
On count 2, Torres and Romero were each sentenced to the lower terms of two years, doubled to four years for Romero, plus an additional four years for the gang enhancement. The trial court stayed the gang enhancements under section 1385, former subdivision (c)(1), and stayed the sentences on count 2 under section 654. On count 3, Torres and Romero were each sentenced to the lower term of 16 months, doubled to 32 months for Romero, and the sentences were stayed under section 654.
On appeal, Torres and Romero claim that they are entitled to reversal of count 2, assault by means of force likely to produce GBI, because the crime is a lesser included offense of count 1, assault by a prisoner by means of force likely to produce GBI (also referred to hereinafter as aggravated assault and aggravated assault by a prisoner, respectively). Torres, joined by Romero, also claims that the substantive gang offense and the gang enhancements must be reversed because, one, the "primary activities" element under the gang statute is not supported by substantial evidence and, two, the trial court's failure to define the elements of the criminal acts constituting the gang's alleged primary activities was prejudicial error. (§ 186.22, subd. (f).) In supplemental briefing, Torres and Romero claim that they are entitled to remand for resentencing under Senate Bill No. 1393 (Stats. 2018, ch. 1013, §§ 1, 2 (Senate Bill No. 1393 or Sen. Bill No. 1393)), which amended sections 667, former subdivision (a)(1), and 1385, former subdivision (b), and granted trial courts the discretion to strike the previously mandatory five-year prior serious felony conviction enhancement under section 667, subdivision (a)(1).
The People concede that Torres's and Romero's convictions on count 2 must be reversed because count 2 is a lesser included offense of count 1, and that this matter should be remanded so the trial court may consider whether to exercise its discretion to strike the prior serious felony conviction enhancements, but they dispute Torres's and Romero's entitlement to relief on their substantial evidence and instructional error claims. In addition, the People contend that the trial court erred in staying rather than striking the gang enhancements and they claim that the court abused its discretion in striking Romero's 2010 robbery conviction.
We accept the People's concessions regarding reversal of count 2 and remand under Senate Bill No. 1393. We also agree the trial court should have stricken rather than stayed the gang enhancements. We otherwise reject the parties' claims and affirm the judgment.
FACTUAL SUMMARY
I. The Assault
The crime in this case occurred inside a housing unit at Wasco State Prison during the evening meal, which was conducted in a common area referred to as a dayroom. The victim was standing in line to receive his food tray when Torres, Romero and Beltran suddenly got up from the table at which they were eating, rushed across the dayroom floor, surrounded the victim and began striking him. No words were exchanged, but witnesses described Torres and Romero as appearing angry. The incident lasted less than 30 seconds and ended when Torres, Romero and Beltran complied with orders to get down on the ground. The victim was thereafter removed from the dayroom on a gurney.
The victim sustained visible cuts and abrasions, and he had a swollen lip and swelling to the left side of his face. He was subsequently transported to an outside hospital, where he underwent an MRI and a CT scan. A radiologist determined the victim had a fractured nose, but he found no signs it was an acute injury and he was unable to determine the age of the fracture. The victim had been in a fight approximately six weeks earlier that left him with a visible injury to his nose, raising the possibility that the fracture occurred prior to the commission of the crime in this case.
II. Gang Evidence
A. 2-5 Prison Gang
As previously stated, Torres and Romero challenge only the "primary activities" element of the statutory definition of "'criminal street gang.'" (§ 186.22, subd. (f).)
In California prisons, gangs are referred to as security threat groups (STG's). There are three general categories of involved inmates: members validated through an administrative process, suspected members, and lesser involved associates. The 2-5 is a prison gang specific to the prison system's sensitive needs yards (SNY's). Inmates assigned to SNY's require protective custody (PC) and cannot be housed with general population inmates. In general, inmates requiring PC status have disassociated from gangs, have other issues with gangs, are tired of the "prison politics," or are sex offenders who require protection because of that classification status.
During trial, the parties disputed more broadly whether a prison STG is a criminal street gang within the meaning of section 186.22. On appeal, Torres and Romero limit their challenge to the narrower issue of whether the prosecutor proved the "primary activities" element of the criminal street gang definition and, therefore, we use the term gang herein rather than STG.
The 2-5 gang's origins predate the existence of SNY's and, at the outset, it was simply a group of PC inmates who banded together for self-protection from general population inmates. Since approximately 2006, however, the 2-5 has been recognized as a prison gang and it is involved in the same criminal activities as the gangs in general population.
SNY inmates were referred to as "'pecetas,'" derived from PC in Spanish. A peceta is a quarter, or .25 cents, in Spanish and the group began referring to itself as 2-5. In addition to its association with any variation of the numbers 2 and 5, the gang's symbols include the letter D for dos (two) and the letter C for cinco (five); the DC shoe and clothing company logo; a quarter; a five-point star; and two dots over a straight line, which is derived from the number seven in the Nahuatl language and known as an "ome macuilli."
There is no evidence Torres has any tattoos, but Beltran has "2-5" tattooed on his chin as well as "DC" tattooed on each ankle and Romero has an ome macuilli tattooed on his chin. Correctional Officer Razo, who testified as the prosecution's gang expert, explained that gang tattoos must be sanctioned by the gang and anyone obtaining an unauthorized tattoo will be assaulted. Torres is a suspected member of the 2-5; Romero self-admitted to active participation in the 2-5; and Beltran is a validated 2-5 member who self-admitted 2-5 involvement, was housed with Torres at one point and shared a cell with Romero at another point.
Prison officials consider suspected members to be gang members, but they have not been formally validated through the prison's administrative process.
B. Evidence Relating to Primary Activities, Predicate Offenses and Hypothetical Questions
For the purpose of establishing that 2-5 is a criminal street gang, Officer Razo testified that the 2-5's primary activities are assault, battery, extortion, causing riots, engaging in drug sales or trade, and threatening the lives of its extortion targets. Razo described two predicate offenses, neither of which involved Torres, Romero, Beltran or the victim. The first incident occurred in 2013 when an inmate hailed staff from inside his cell and said he needed to get out of the cell. He was bleeding and had a bruised eye, which was later determined to be fractured. The victim's cellmate, who was present in the cell at the time, was a 2-5 member.
The second predicate offense occurred in 2012 and involved two cellmates, one of whom sliced an officer's hand with a razor twice and the other of whom kicked an officer's hand and fractured it. During the attack, both inmates yelled, "2-5."
The victim in this case is a registered sex offender and Officer Razo explained that although the 2-5 is a gang on the SNY, its members and associates do not tolerate the presence of child molesters or other sex offenders on the yard with them. Once gang members or associates become aware of the inmate's status, they will engage in what is called a "removal," which is an assault directed at causing an inmate's removal from that yard.
At times, the gang will allow a known sex offender to stay on the yard, but if that occurs, it is because it serves the gang's purpose. Razo explained that gangs make money from the drug trade within the prison system and influence in prison is tied to making money. Gangs may allow a sex offender to remain on the yard if removing the inmate at that time would run the risk of causing a lockdown, which would affect lines of communication and the drug channels. If the gang allows a known sex offender to remain on the yard, however, the gang exacts a price from the inmate through extortion. This commonly takes the form of demanding a percentage, or even all, of the inmate's canteen purchase. The inmate is threatened and if he does not cooperate, he will then be assaulted.
Razo testified that prison gangs do not usually engage in one-on-one assaults and, instead, two or more inmates generally attack one victim. Gangs engage in these assaults for a number of reasons, including the victim's underlying criminal offense or classification, the victim's disrespect toward an influential gang member, the victim's failure to clear up a drug debt, or the victim's failure to participate in a riot or other criminal activity. In Razo's opinion, an attack by three inmates on one inmate indicates an attack sanctioned by the gang.
Razo testified that an assault by three inmates, two of whom had 2-5 gang related tattoos, and the third of whom was involved in a previous assault against a validated 2-5 member on a 2-5 yard, against an inmate in the dayroom benefitted the 2-5 gang by, one, demonstrating gang loyalty and unity, and, two, by instilling fear and intimidating the other inmates on the yard who just seek to do their time and go home. By instilling fear and intimidation through assaults, the gang demonstrates its power. Based on additional hypotheticals involving inmates with the same histories as Torres, Romero and Beltran, Razo also opined that a three-on-one assault against an inmate who is a child molester or other sex offender was committed for the benefit of and in association with the 2-5 gang.
Relevant to a prior incident involving Torres, a correctional sergeant testified that approximately one year before the crime in this case, he witnessed Torres strike a validated 2-5 gang member in the face several times while out on the yard. Another inmate then came up from behind the victim and started striking him. The assault occurred on an SNY where the majority of inmates was comprised of 2-5 members or associates, and no other inmates came to the victim's aid. In response to a hypothetical question, Officer Razo testified an attack against a gang member under those circumstances suggested that the attack was sanctioned by and committed in association with the gang, and also that the public nature of an assault against another gang member benefitted the gang by causing fear and intimidation.
DISCUSSION
I. Reversal of Aggravated Assault Conviction Required
The jury convicted Torres and Romero in count 1 of aggravated assault by a prisoner, in violation of section 4501, subdivision (b); and in count 2 of aggravated assault, in violation of section 245, subdivision (a)(4). Torres and Romero argue, and the People concede, that because aggravated assault under count 2 is a lesser included offense of aggravated assault by a prisoner under count 1, their convictions on count 2 must be reversed.
"Generally, there is no limit to the number of convictions arising from a defendant's act or course of conduct. (§ 954.) But an exception exists for lesser included offenses. '[I]f a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.' (People v. Lopez (1998) 19 Cal.4th 282, 288.) In such cases, a defendant may not be convicted of both the greater and the lesser offense. (People v. Reed (2006) 38 Cal.4th 1224, 1227." (People v. Milward (2011) 52 Cal.4th 580, 585; accord, People v. McDaniel (2008) 159 Cal.App.4th 736, 749.)
Here, Torres and Romero could not have committed aggravated assault by a prisoner without also necessarily committing aggravated assault, the only distinction between the two offenses being the additional element in section 4501 of assault by a prisoner. (People v. Milward, supra, 52 Cal.4th at pp. 588-589; People v. McDaniel, supra, 159 Cal.App.4th at p. 749.) As such, they may not stand convicted of both offenses and count 2, the lesser included offense of aggravated assault, must be reversed. (People v. Milward, supra, at p. 589.)
II. Substantial Evidence Challenge to "Primary Activities" Element of Substantive Gang Offense and Gang Enhancements
A. Background
"In 1988, the Legislature enacted the California Street Terrorism Enforcement and Prevention Act (the STEP Act). (§ 186.20 et seq.)" (People v. Hernandez (2004) 33 Cal.4th 1040, 1047.) "'Underlying the STEP Act was the Legislature's recognition that "California is in a state of crisis which has been caused by violent street gangs whose members threaten, terrorize, and commit a multitude of crimes against the peaceful citizens of their neighborhoods." (Pen. Code, § 186.21.) The act's express purpose was "to seek the eradication of criminal activity by street gangs." [Citation.]' [Citation.] In pursuit of this goal, the STEP Act focuses upon 'patterns of criminal gang activity and upon the organized nature of street gangs, which together, are the chief source of terror created by street gangs.' (§ 186.21.)" (People v. Rodriguez (2012) 55 Cal.4th 1125, 1129, fn. omitted.)
Section 186.22, subdivision (a), sets forth the substantive gang offense, the elements of which are: "(1) active participation in a criminal street gang, in the sense of participation that is more than nominal or passive; (2) knowledge that the gang's members engage in or have engaged in a pattern of criminal gang activity; and (3) the willful promotion, furtherance, or assistance in any felonious criminal conduct by members of that gang." (People v. Albillar (2010) 51 Cal.4th 47, 55-56 (Albillar).) "The gravamen of the substantive offense set forth in section186.22[, subdivision ](a) is active participation in a criminal street gang" (id. at p. 55), and "[a]ll three elements can be satisfied without proof the felonious criminal conduct promoted, furthered, or assisted was gang related" (id. at p. 56).
In addition, "a defendant who commits a felony in furtherance of criminal street gang activity is subject to increased punishment." (People v. Fuentes (2016) 1 Cal.5th 218, 223.) The gang enhancement, codified in section 186.22, subdivision (b)(1), applies to felonies "that were (1) 'committed for the benefit of, at the direction of, or in association with any criminal street gang,' and (2) 'with the specific intent to promote, further, or assist in any criminal conduct by gang members.'" (People v. Rivera (2019) 7 Cal.5th 306, 331.) "'Not every crime committed by gang members is related to a gang' for purposes of the enhancement [citation], but the enhancement applies 'when a defendant has personally committed a gang-related felony with the specific intent to aid members of that gang.'" (Ibid., quoting Albillar, supra, 51 Cal.4th at pp. 60, 68.)
In this case, the jury convicted Torres and Romero of the substantive gang offense charged in count 3 and found true that their commission of aggravated assault by a prisoner charged in count 1 was gang related. Relevant to both determinations, under the gang statute, a "'criminal street gang' means any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in, or have engaged in, a pattern of criminal gang activity." (§ 186.22, subd. (f), italics added.) Torres and Romero claim that the substantive gang offense and the gang enhancement finding must be reversed because the prosecutor failed to prove the "primary activities" element of a "'criminal street gang'" as defined under the statute. (Ibid.) For the reasons set forth below, we disagree.
The jury found the gang enhancement allegation attached to count 2 true as well, but, given the reversal of count 2 as a lesser included offense, we confine our discussion to count 1.
B. Standard of Review
"The Due Process Clause of the Fourteenth Amendment denies States the power to deprive the accused of liberty unless the prosecution proves beyond a reasonable doubt every element of the charged offense[]" (Carella v. California (1989) 491 U.S. 263, 265, citing In re Winship (1970) 397 U.S. 358, 364), and the verdict must be supported by substantial evidence (People v. Zamudio (2008) 43 Cal.4th 327, 357). On appeal, the relevant inquiry governing a challenge to the sufficiency of the evidence "'is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" (People v. Nguyen (2015) 61 Cal.4th 1015, 1055.) "The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Zamudio, supra, at p. 357.)
"In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence." (People v. Zamudio, supra, 43 Cal.4th at p. 357.) "'[I]t is the jury, not the appellate court which must be convinced of the defendant's guilt ....'" (People v. Nguyen, supra, 61 Cal.4th at pp. 1055-1056.) "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support"' the jury's verdict." (People v. Zamudio, supra, at p. 357.) However, "speculation, supposition and suspicion are patently insufficient to support an inference of fact." (People v. Franklin (2016) 248 Cal.App.4th 938, 951; accord, People v. Marshall (1997) 15 Cal.4th 1, 35; People v. Xiong (2013) 215 Cal.App.4th 1259, 1268.)
C. Analysis
1. Gang Expert's Testimony Sufficient to Support Finding that Aggravated Assault is a Primary Activity of the 2-5 Gang
"The phrase 'primary activities,' as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes is one of the group's 'chief' or 'principal' occupations. (See Webster's Internat. Dict. (2d ed. 1942) p. 1963 [defining 'primary'].) That definition would necessarily exclude the occasional commission of those crimes by the group's members." (People v. Sengpadychith (2001) 26 Cal.4th 316, 323 (Sengpadychith).) "Sufficient proof of the gang's primary activities might consist of evidence that the group's members consistently and repeatedly have committed criminal activity listed in the gang statute. Also sufficient might be expert testimony ...." (Id. at p. 324; accord, People v. Nguyen, supra, 61 Cal.4th at p. 1068.) "Evidence of past or present conduct by gang members involving the commission of one or more of the statutorily enumerated crimes is relevant in determining the group's primary activities." (Sengpadychith, supra, at p. 323; accord, People v. Nguyen, supra, at p. 1068.)
In this case, Officer Razo, the prosecution's gang expert, testified that assault, attempted homicide, battery, extortion, causing riots, engagement in drug sales or trade, and threatening the safety and lives of extortion targets are the 2-5 gang's primary activities. In instructing the jury, the trial court identified the gang's primary activities as "assault with a deadly weapon or by means of force likely to produce [GBI;] unlawful homicide or manslaughter[;] the sale, possession for sale, transportation, manufacture, offer for sale or offer to manufacture [a] controlled substance[;] [g]rand theft[;] felony extortion[;] [and] threats to commit crimes resulting in death or [GBI] ...." In conjunction with counts 1 and 2, the jury was instructed on the elements of aggravated assault, but the jury was not instructed on the elements of the other criminal acts identified as the gang's primary activities.
Of the 33 criminal offenses enumerated under subdivision (e) of section 186.22, 28 qualify as "primary activities" under the gang statute. (§ 186.22, subd. (f).) Torres and Romero point out that battery and rioting do not qualify as primary activities under the statute and argue that the gang expert's "generic" testimony regarding assault, extortion, drug sales, and threats is insufficient to support a finding that the gang engaged in aggravated assault, the sale or possession for sale of controlled substances, felony extortion, or criminal threats within the meaning of the statute.
Torres and Romero do not dispute that the jury was instructed on the elements of aggravated assault; and they acknowledge that the gang expert testified to one predicate offense involving a 2-5 member whose cellmate was found bleeding and with a fractured eye, and a second predicate offense involving two inmates who assaulted two correctional officers while yelling, "2-5." However, they claim that Razo testified the attacks underlying the predicate offenses did not happen on a regular basis and that his generic testimony regarding mere assault regularly occurring against other inmates is insufficient as a matter of law to show the 2-5 gang engaged in aggravated assault as a primary activity.
We disagree with this characterization of Razo's testimony. After describing the second predicate offense involving an attack on two officers, the prosecutor asked if "those ... kind of crimes" are committed by 2-5 members on a regular basis and the gang expert replied, "Not on a regular basis, but it does happen." The prosecutor immediately followed up by asking if the gang commits assaults against other inmates on a regular basis and in an ongoing pattern, to which Razo responded affirmatively.
The prosecutor was required to prove, in relevant part, that the 2-5 gang had "as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e)" (§ 186.22, subd. (f)), and "[a]ssault with a deadly weapon or by means of force likely to produce [GBI], as defined in Section 245" is one of the qualifying offenses under the statute (§ 186, 22, subd. (e)(1)). Viewed in context, Razo testified that 2-5 gang member do not regularly assault staff members, but they do regularly assault other inmates. Furthermore, the trial court instructed the jury that assault by means of force likely to produce GBI (aggravated assault) is one of the gang's primary activities and instructed the jury on the elements of that offense. Razo's opinion that the 2-5 gang regularly engages in an ongoing pattern of assault against other inmates, offered in the context of discussing the predicate offenses involving assaults causing injury, is sufficient to support a finding by a reasonable trier of fact that the 2-5 gang regularly engages in aggravated assault within the meaning of subdivision (e)(1) of section 186.22. (People v. Pettie (2017) 16 Cal.App.5th 23, 48; People v. Miranda (2016) 2 Cal.App.5th 829, 840; People v. Vy (2004) 122 Cal.App.4th 1209, 1226; People v. Duran (2002) 97 Cal.App.4th 1448, 1465.)
2. Cases Finding Evidence Insufficient are Distinguishable
Torres and Romero direct us to no authority supporting the proposition that the evidence in this case, when viewed in context, is insufficient. In In re Jorge G. (2004) 117 Cal.App.4th 931, 945-946, cited by Torres and Romero, this court found the primary activities element was not supported by sufficient evidence but in that case, there was no expert testimony. In addition, the prosecutor produced evidence of only a single conviction for criminal threats in violation of section 422. Conversely, this case involved expert testimony as to primary activities and, as well, the evidence of the gang's primary activities was not confined to a single qualifying offense.
Although not relied on by Torres and Romero, the decisions in People v. Perez (2004) 118 Cal.App.4th 151 (Perez) and In re Alexander L. (2007) 149 Cal.App.4th 605 (Alexander L.) are also readily distinguishable. In Perez, the prosecutor failed to elicit testimony from an expert witness on the primary activities of the gang. (Perez, supra, at p. 160.) In addition, the Court of Appeal found that even assuming the shooting at issue in the case and two other shootings described by an officer not testifying as an expert were attributable to the gang, evidence of three retaliatory shootings within days of one another and a beating six years earlier was insufficient to show the gang "'consistently and repeatedly ... committed criminal activity listed in the gang statute.'" (Ibid., quoting Sengpadychith, supra, 26 Cal.4th at p. 324.) Here, there was expert testimony on both the gang's primary activities and the gang's engagement in a regular, ongoing pattern of assaults causing injury.
In Alexander L., a vandalism case, the Court of Appeal concluded that there was insufficient evidence of the gang's primary activities where the expert witness testified, "'I know they've committed quite a few assaults with a deadly weapon, several assaults. I know they've been involved in murders. [¶] I know they've been involved with auto thefts, auto/vehicle burglaries, felony graffiti, narcotic violations.'" (Alexander L., supra, 149 Cal.App.4th at p. 611.) The court explained that such conclusory testimony was insufficient where, one, the majority of the cases involving the gang at issue related to graffiti, which is not a qualifying offense under section 186.22 and, two, the expert's testimony lacked an adequate foundation. (Alexander L., supra, at p. 612.) No similar deficiencies plagued Razo's testimony in this case.
The evidence in this case is sufficient to support a finding by a reasonable trier of fact that as one of its primary activities, the 2-5 gang "consistently and repeatedly" engaged in aggravated assault, a qualifying offense under the gang statute. (Sengpadychith, supra, 26 Cal.4th at p. 324.) Accordingly, we reject Torres's and Romero's claims that the prosecutor failed to prove the 2-5 gang's engagement in primary activities within the meaning of section 186.22, subdivision (f).
III. Instructional Error: Failure to Define Elements of Gang's Primary Activities
A. Summary of Parties' Arguments
Relatedly, Torres and Romero claim that the trial court erred in failing to define the elements of the offenses identified in the jury instruction as primary activities of the gang, other than aggravated assault, and that in light of Officer Razo's assertedly deficient testimony regarding assault, the error is prejudicial under the federal constitutional standard of review articulated in Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).
The People point out that Torres and Romero cited no authority for the proposition that the trial court was required to define the elements of the offenses making up the gang's primary activities, but they contend that regardless, any error was harmless under any standard of review.
The People do not contend that Torres and Romero forfeited their claim by failing to object, but we note that an objection is not required where the deficiency at issue affects substantial rights and Torres, joined by Romero, claims the instructional error violated his rights under the federal and state Constitutions. (§ 1259; People v. Delgado (2017) 2 Cal.5th 544, 572, fn. 15; People v. Townsel (2016) 63 Cal.4th 25, 59-60.) As we conclude that any error was harmless, we need not further address the issue of forfeiture.
Torres and Romero respond that the trial court's duty to instruct on the elements of the offenses making up the gang's primary activities is consistent with the mandate in Apprendi v. New Jersey (2000) 530 U.S. 466, 490 that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."
For the reasons set forth below, we conclude that any error was harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S. at p. 24.)
B. Standard of Review
We review a claim of instructional error review de novo. (People v. Waidla (2000) 22 Cal.4th 690, 733; People v. Martin (2000) 78 Cal.App.4th 1107, 1111.) "In criminal cases, even in the absence of a request, a trial court must instruct on general principles of law relevant to the issues raised by the evidence and necessary for the jury's understanding of the case." (People v. Martinez (2010) 47 Cal.4th 911, 953.) "[I]nstructions are not considered in isolation. Whether instructions are correct and adequate is determined by consideration of the entire charge to the jury." (People v. Holt (1997) 15 Cal.4th 619, 677; accord, People v. Thomas (2011) 52 Cal.4th 336, 356.) Jurors are presumed to have understood and followed the trial court's jury instructions. (People v. Sandoval (2015) 62 Cal.4th 394, 422.)
Errors under state law are reviewed under the standard set forth in People v. Watson (1956) 46 Cal.2d 818, 837, which requires a determination "whether there is a 'reasonable probability' that a result more favorable to the defendant would have occurred absent the error." (People v. Aranda (2012) 55 Cal.4th 342, 354.) Errors rising to the level of a federal constitutional violation are reviewed under the standard articulated in Chapman, which requires a determination "whether it is clear beyond a reasonable doubt that a rational jury would have rendered the same verdict absent the error." (People v. Merritt (2017) 2 Cal.5th 819, 831; accord, Neder v. United States (1999) 527 U.S. 1, 15-16; People v. Gonzalez (2012) 54 Cal.4th 643, 663). "[I]n order to conclude that an instructional error '"did not contribute to the verdict"' within the meaning of Chapman [citation] we must '"find that error '"unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record"' [citations]." (People v. Brooks (2017) 3 Cal.5th 1, 70.)
C. Any Error Harmless
We observe that the criminal acts qualifying as primary activities under the gang statute are tied to specific criminal offenses codified in the Penal Code, the Vehicle Code, and the Health and Safety Code (Pen. Code, § 186.22, subds. (e)-(f)), and that CALCRIM Nos. 1400 and 1401, the pattern instructions for the substantive gang offense and the gang enhancement, include bracketed language referring the jury to separate instructions on the crimes identified as primary activities of the gang. In this case, the trial court instructed the jury on the elements of aggravated assault in conjunction with counts 1 and 2, but did not otherwise instruct the jury on the elements of the criminal acts identified as the gang's primary activities. We need not decide whether the trial court's failure to do so was error, however, because even if we assume an error of federal constitutional magnitude, it was harmless beyond a reasonable doubt.
"'[T]he focus is what the jury actually decided and whether the error might have tainted its decision. That is to say, the issue is "whether the ... verdict actually rendered in this trial was surely unattributable to the error." [Citation.]'" (People v. Pearson (2013) 56 Cal.4th 393, 463.)
Torres's and Romero's argument that the instructional error at issue here is prejudicial is underpinned by the same reasoning we rejected in the preceding section; that is, that Officer Razo's "vague and generic" testimony fell short of demonstrating that assault by means likely to produce GBI is a primary activity of the 2-5 gang. We rejected this characterization because it requires that Razo's testimony be divorced from its context.
As stated, the jury was instructed on the elements of aggravated assault and, by virtue of convicting Torres and Romero on counts 1 and 2, the jury found the elements of that offense proven beyond a reasonable doubt. Under these circumstances, the jury's finding on the "criminal street gang" element of the substantive gang offense and the gang enhancement was not attributable to the trial court's failure to instruct the jury on those criminal offenses underlying the gang's primary activities other than aggravated assault. (§ 186.22, subds. (e)(4), (19), (24), (f).) Put more plainly, "it is clear beyond a reasonable doubt that a rational jury would have rendered the same verdict absent the error" complained of (People v. Merritt, supra, 2 Cal.5th at p. 831), and we reject Torres's and Romero's contrary claim.
The gang expert did not focus on unlawful homicide or manslaughter, or on grand theft, which were also identified as primary activities. (§ 186.22, subds. (e)(3), (9).)
IV. Remand Required Under Senate Bill No. 1393
Effective January 1, 2019, Senate Bill No. 1393 amended sections 667, former subdivision (a)(1), and 1385, former subdivision (b), and granted trial courts the discretion to strike the previously mandatory five-year prior serious felony conviction enhancement under section 667, subdivision (a)(1). Torres and Romero seek remand for resentencing to allow the trial court to exercise its discretion regarding whether to strike their prior serious felony conviction enhancements under section 667, subdivision (a)(1). The People concede that Senate Bill No. 1393 is retroactive and that remand is appropriate.
A. Senate Bill No. 1393 is Retroactive
"[W]e presume that newly enacted legislation mitigating criminal punishment reflects a determination that the 'former penalty was too severe' and that the ameliorative changes are intended to 'apply to every case to which it constitutionally could apply,' which would include those 'acts committed before its passage[,] provided the judgment convicting the defendant of the act is not final.' ([In re] Estrada [(1965)] 63 Cal.2d [740,] 745 [(Estrada)].) The Estrada rule rests on the presumption that, in the absence of a savings clause providing only prospective relief or other clear intention concerning any retroactive effect, 'a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not.'" (People v. Buycks (2018) 5 Cal.5th 857, 881; accord, People v. Valenzuela (2019) 7 Cal.5th 415, 428; People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307-308.)
Courts of Appeal considering Senate Bill No. 1393 and, in an analogous context, Senate Bill No. 620 (Stats. 2017, ch. 682, §§ 1, 2 (Sen. Bill No. 620)), have uniformly held that the changes apply retroactively to judgments not yet final on appeal, and we accept the People's concession on this point. (E.g., People v. Zamora (2019) 35 Cal.App.5th 200, 207-208 [Sen. Bills Nos. 620 and 1393]; People v. Garcia (2018) 28 Cal.App.5th 961, 972-973 [Sen. Bill No. 1393]; People v. Chavez (2018) 22 Cal.App.5th 663, 711-712 [Sen. Bill No. 620]; People v. Arredondo (2018) 21 Cal.App.5th 493, 506-507 [Sen. Bill No. 620].) As Senate Bill No. 1393 does not contain a savings clause and there is no indication that the Legislature intended any limitation on its retroactive application, it applies to this case in accordance with the Estrada rule.
B. Remand Appropriate
"'Defendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that "informed discretion" than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record.' [Citation.] In such circumstances, we have held that the appropriate remedy is to remand for resentencing unless the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion.'" (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391; accord, People v. Johnson (2019) 32 Cal.App.5th 26, 69; People v. Garcia, supra, 28 Cal.App.5th at p. 973, fn. 3; People v. Almanza (2018) 24 Cal.App.5th 1104, 1109-1111; People v. Billingsley (2018) 22 Cal.App.5th 1076, 1081-1082; People v. McDaniels (2018) 22 Cal.App.5th 420, 427-428; cf. People v. Wilson (2019) 42 Cal.App.5th 408, 415 [no entitlement to remand where the defendant, facing multiple life terms and additional decades in prison, accepted offer of 17 years in prison after the prosecutor was able to better the pre-preliminary hearing offer of 21 years, where such step was procedurally unusual and required consultation with the victim, investigating officer and two people within the prosecutor's office]; People v. Allison (2019) 39 Cal.App.5th 688, 705-706 [remand under Sen. Bill No. 620 unnecessary where trial court resentenced the defendant on remand in 2017, and court and parties focused on determining the maximum lawful sentence with goal of coming as close as possible to 51-year sentence originally imposed]; People v. Jones (2019) 32 Cal.App.5th 267, 274 [remand unnecessary where record clear trial court would not exercise discretion to strike enhancement under Sen. Bill No. 1393]; People v. McVey (2018) 24 Cal.App.5th 405, 419 [record clear trial court would not exercise discretion to strike enhancement under Sen. Bill No. 620].)
In this case, the record does not clearly indicate that remand would be futile. (People v. Gutierrez, supra, 58 Cal.4th at p. 1391.) The trial court exercised its discretion to strike, for purposes of the Three Strikes sentencing scheme, both of Torres's prior serious felony convictions and two of Romero's three prior serious felony convictions, and it struck all the prior prison term enhancements. The court also sentenced Torres and Romero to the lower terms on all counts, and it stayed the gang enhancements "in the furtherance of justice" under section 1385, former subdivision (c)(1). Accordingly, we accept the People's concession on this point as well, and we remand the matter to allow the trial court to determine whether to exercise its discretion to strike Torres's and Romero's prior serious felony conviction enhancements in light of Senate Bill No. 1393.
As discussed in the next section, the trial court should have stricken rather than stayed the punishment. (People v. Vega (2013) 214 Cal.App.4th 1387, 1396-1397.)
V. Unauthorized Sentence: Stay of Gang Enhancements
The People assert that a trial court may not, as the court did here, stay a gang enhancement; the enhancement must be imposed or, if it is in the interests of justice, it may be stricken under section 186.22, subdivision (g), or section 1385, subdivision (b)(1). (People v. Vega, supra, 214 Cal.App.4th at pp. 1396-1397.) The People request remand of the matter so that the court may either impose or strike the gang enhancements. Torres and Romero do not respond to this argument.
Imposition of a gang enhancement is mandatory rather than discretionary (People v. Le (2015) 61 Cal.4th 416, 423), but the trial court may either strike the additional punishment under section 186.22, subdivision (g), or strike or dismiss the enhancement or its punishment under section 1385, subdivisions (a) and (b)(1) (People v. Fuentes, supra, 1 Cal.5th at pp. 224-225, 231). As to both Torres and Romero, the trial court here imposed the gang enhancements but, in furtherance of justice, stayed the punishment pursuant to section 1385, former subdivision (c)(1), which was renumbered to subdivision (b)(1) under Senate Bill No. 1393. Inasmuch as the trial court expressly imposed the four-year gang enhancement terms but purported to stay rather than strike the punishment under section 1385, the court shall, on remand, strike the punishment and amend the abstract of judgment accordingly. (People v. Bay (2019) 40 Cal.App.5th 126, 139.)
VI. People's Claim of Sentencing Error
Finally, the trial court found true that Torres suffered two prior robbery convictions in 1989 and 1991, and that Romero suffered an attempted robbery conviction in 2006, a robbery conviction in 2010 and a conviction for assault with a deadly weapon in 2015, all of which are serious felonies within the meaning of the Three Strikes law. (§§ 667, subd. (d)(1), 1192.7, subds. (c)(19), (31), (39).) The trial court exercised its discretion under section 1385 to strike both of Torres's prior serious felony convictions and to strike Romero's 2006 and 2010 prior serious felony convictions. (Romero, supra, 13 Cal.4th at p. 504.) The People claim on cross-appeal that the trial court's decision to strike Romero's 2010 robbery conviction was an abuse of discretion.
A. Background
"'[T]he Three Strikes initiative, as well as the legislative act embodying its terms, was intended to restrict courts' discretion in sentencing repeat offenders.' (Romero, supra, 13 Cal.4th at p. 528.) To achieve this end, 'the Three Strikes law does not offer a discretionary sentencing choice, as do other sentencing laws, but establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike, unless the sentencing court "conclud[es] that an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme."'" (People v. Carmony (2004) 33 Cal.4th 367, 377 (Carmony).)
"Consistent with the language of and the legislative intent behind the three strikes law, [the California Supreme Court] established stringent standards that sentencing courts must follow in order to find such an exception. '[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, "in furtherance of justice" pursuant to ... section 1385[, subdivision ](a), or in reviewing such a ruling, the court in question 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 scheme'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.'" (Carmony, supra, 33 Cal.4th at p. 377, quoting People v. Williams (1998) 17 Cal.4th 148, 161; accord, In re Coley (2012) 55 Cal.4th 524, 560 ["[A] trial court's factual determinations with regard to the nature and circumstances of a defendant's triggering offense may play a significant role in determining the sentence that is actually imposed upon the defendant under the Three Strikes law."].)
"[A] court's decision to strike a qualifying prior conviction is discretionary[]" (Carmony, supra, 33 Cal.4th at p. 375) and "is subject to review under the deferential abuse of discretion standard" (id. at p. 374). "In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, '"[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review."' [Citations.] Second, a '"decision will not be reversed merely because reasonable people might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.'"' [Citations.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Id. at pp. 376-377.)
"[A] court abuses its discretion[, for example,] if it dismisses a case, or strikes a sentencing allegation, solely 'to accommodate judicial convenience or because of court congestion.' [Citation.] A court also abuses its discretion by dismissing a case, or a sentencing allegation, 'simply because a defendant pleads guilty.' Nor would a court act properly if 'guided solely by a personal antipathy for the effect that the three strikes law would have on [a] defendant,' while ignoring '[the] defendant's background,' 'the nature of his present offenses,' and other 'individualized considerations.'" (Romero, supra, 13 Cal.4th at p. 531.) A court also abuses its discretion if it is unaware of the scope of its discretion or if it considers impermissible factors; and in any given case, a court's ruling may "'produce[] an "arbitrary, capricious or patently absurd" result' under the specific facts of [that] particular case." (Carmony, supra, 33 Cal.4th at p. 378.)
However, "'[i]t is not enough to show that reasonable people might disagree about whether to strike one or more' prior conviction allegations. [Citation.] Where the record is silent [citation], or '[w]here the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court's ruling, even if we might have ruled differently in the first instance' [citation]." (Carmony, supra, 33 Cal.4th at p. 378.)
B. No Error Shown
In this case, the trial court expressly stated that it had received and considered Romero's request for the court to strike his prior convictions, the People's opposition to the request and the probation report. In ruling on the request, the court stated, "In terms of the Romero motion, the court is going to do the following. It has considered everything, again, [and] incorporate[s] by reference [the] overall picture presented. In terms of what the court did consider, it has to be specific, obviously. In terms of Mr. Romero, [it] has considered his history. It has considered everything that happened at trial, the nature of the crime at trial[. T]here is a victim. It has considered that. It has considered the needs of society, protection of society, and the necessary sentence relevant to what actually happened. It also has to consider the defendant's past, as well. Given all of that, in addition, I considered the current charges against the defendant, the defendant's criminal record, the defendant's background, character, and prospects, and interests of justice." (Full capitalization omitted.) The court then granted Romero's motion to strike the 2006 conviction, but denied his motion to strike the 2010 and 2015 convictions.
The court proceeded to sentence Romero, in relevant part, to the lower term of two years, doubled to four years, on counts 1 and 2, and the lower term of 16 months, doubled to 32 months, on count 3. After the court imposed the sentence, the prosecutor sought to clarify the ruling on the Romero request. When the court responded that it struck the 2006 prior conviction but did not strike the 2010 and 2015 conviction, the prosecutor pointed out that the sentence should be 25 years to life. The court then struck the sentence it just imposed and explained that it had failed to "follow through with its own thinking." (Full capitalization omitted.) The court took a recess and once back on the record, it requested input from counsel regarding its error. After the prosecutor argued against striking a second prior felony conviction and Romero declined further comment, the court ordered the 2010 prior felony conviction also stricken.
"'Appellate jurisdiction is limited to the four corners of the record on appeal ....'" (People v. Waidla, supra, 22 Cal.4th at p. 743, quoting In re Carpenter (1995) 9 Cal.4th 634, 646.) "On appeal, we presume that a judgment or order of the trial court is correct, '"[a]ll intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown."'" (People v. Giordano (2007) 42 Cal.4th 644, 666.)
Although the trial court initially denied the motion to strike the 2010 felony conviction, along with the 2006 felony conviction, in reversing course on the 2010 conviction, the court referred to its error in failing to "follow through with its own thinking" (full capitalization omitted) and the sentence it had imposed was reflective of only a single prior strike conviction. (§ 667, subd. (e)(1).) The court also referred again to the requirement that its decision be justified, and its comments indicate it considered the relevant criteria. (In re Coley, supra, 55 Cal.4th at p. 560; Carmony, supra, 33 Cal.4th at p. 377.) Critically, the record in this case reflects that the trial court understood the scope of its discretion, and the record does not reflect either failure to consider the proper factors in granting relief or reliance on improper factors in granting relief. (Carmony, supra, at p. 378; Romero, supra, 13 Cal.4th at p. 531.) To conclude otherwise on review would require resort to speculation. Neither the People's disagreement nor a reviewing court's disagreement with the trial court's exercise of discretion suffices to demonstrate an abuse of discretion (Carmony, supra, at pp. 376-377), and we conclude that on this record the People failed to meet their burden of demonstrating error on appeal.
DISPOSITION
Torres's and Romero's convictions on count 2 for assault by means of force likely to produce GBI, in violation of section 245, subdivision (a)(4), are reversed. Further, pursuant to Senate Bill No. 1393, this matter is remanded to allow the trial court to determine whether to exercise its discretion to strike the prior serious felony conviction enhancements and, should it elect to exercise its discretion to strike the enhancements, to resentence Torres and Romero accordingly. Finally, as to both Torres and Romero, the trial court shall strike the previously stayed gang enhancement attached to count 1. Following compliance with the directives in this opinion, the trial court shall issue amended abstracts of judgment for Torres and Romero and forward the amended abstracts of judgment to the appropriate authorities.
Except as modified, the judgment is affirmed.
/s/_________
MEEHAN, J. WE CONCUR: /s/_________
POOCHIGIAN, Acting P.J. /s/_________
DETJEN, J.