Filed 2/18/21 P. v. Mitchell CA5
See concurring & dissenting opinion
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F075878
Plaintiff and Respondent,
(Kern Super. Ct. No. BF159352B)
v.
BRYSON CLAYTON MITCHELL, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. Kenneth C.
Twisselman II, Judge.
Christine Vento, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler and Lance E. Winters, Chief
Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Daren
Indermill, Louis M. Vasquez, Lewis A. Martinez and Ian Whitney, Deputy Attorneys
General, for Plaintiff and Respondent.
-ooOoo-
SEE CONCURRING AND DISSENTING OPINION
INTRODUCTION
A jury convicted appellant Bryson Clayton Mitchell of 21 felonies, including
various robberies and assaults with a semiautomatic firearm, stemming from a crime
spree that occurred in a single morning. Appellant committed most of his crimes in the
presence of two accomplices, who are not parties to this appeal. He received an
aggregate determinate sentence of 67 years, and a consecutive aggregate indeterminate
term of 144 years to life.
Appellant challenges the sufficiency of the evidence in support of most of the
gang enhancements (Pen. Code, § 186.22, subd. (b)(1)),1 which the jury found true. He
also asserts that the trial court erred in permitting introduction of certain evidence. We
reject these claims. However, we agree with the parties that a sentencing error occurred.
An unauthorized firearm enhancement (§ 12022.5, subd. (a)) was imposed in count 18,
which must be stricken. We will vacate appellant’s sentence and remand this matter for
resentencing.2 We also direct the court to ensure that it states reasons for all
discretionary sentencing choices. We otherwise affirm appellant’s judgment.
BACKGROUND
We summarize the material trial evidence, and we provide additional facts later in
this opinion when relevant to the issues raised on appeal. Appellant went on his crime
spree with Bryon Johnson and Courtney Francis (his accomplices).3 Francis is
1 All future statutory references are to the Penal Code unless otherwise noted.
2 Because this matter must be remanded under the full resentencing rule (People v. Buycks
(2018) 5 Cal.5th 857, 893), appellant’s challenge to the fines and fees imposed, advanced
pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157, is moot and we do not consider the
claim.
3 Johnson was originally a codefendant with appellant in this matter, but their cases were
severed. Francis reached a plea agreement to resolve her charges.
2.
appellant’s cousin. When these events occurred, appellant and his accomplices were each
members of the East Side Crips, a criminal street gang in Kern County.4
When committing these crimes, which primarily occurred in the very early
morning hours on February 25, 2015, appellant and his accomplices used a vehicle that
they had borrowed from appellant’s half brother, Lynn Harris. Harris is also a member of
the East Side Crips.
I. The Crimes Charged in Counts 1 Through 3 (the Robbery of the Restaurant)
On February 25, 2015, at about 3:06 a.m., appellant and his two accomplices
entered a restaurant located in Kern County. A single employee was present. Appellant
was armed with a semiautomatic firearm. Appellant and his accomplices took property
belonging to both the employee and the restaurant.
II. The Crimes Charged in Counts 4 Through 8 (the Robbery of the Convenience
Store)
About 45 minutes after the incident above, appellant and his accomplices entered a
convenience store in Kern County. Two employees were present. Appellant was armed
with a semiautomatic firearm. Appellant and his accomplices left with property
belonging to the convenience store.
III. The Crimes Charged in Counts 9 Through 16 (the Home Invasion)
About 15 minutes after the incident above, appellant and his accomplices entered a
residence in Kern County. Two parents and their baby were present, along with another
4 When these crimes occurred, appellant had been on parole stemming from a voluntary
manslaughter (§ 192, subd. (a)) that he had committed in 2007.
3.
adult relative.5 Appellant was armed with a semiautomatic weapon. Appellant and his
accomplices took property belonging to the family.6
IV. The Crimes Charged in Counts 17 Through 18 (the Shooting)
About four hours after the incident above, appellant was outside near a market in
Kern County. The market was a known hangout for gang members from the Country
Boy Crips, a rival to appellant’s gang. Appellant was alone, and he fired multiple shots
at Terrance Wiley. Wiley is known as “T.T.,” and he is a gang member in the Country
Boy Crips. Nobody was injured in this shooting, but at least one of appellant’s shots
struck a parked vehicle that was occupied.
V. The Forensic Evidence
Shortly after this crime spree ended, an officer on patrol happened to spot two
African-American males on a public street. They matched the general description of
some of the suspects from the crime spree. The officer initiated contact, and the suspects
fled. One of the suspects tossed a semiautomatic firearm aside. Appellant’s DNA was
later discovered on this firearm.
Law enforcement recovered two spent shell casings from the scene of the shooting
at the market. The two spent shell casings were identical to the ammunition that was
loaded in the recovered semiautomatic firearm.7
5 The parents had two other minor children who were outside sitting in an idling vehicle
when the home invasion occurred. The parents had been loading up their vehicle for a trip out of
town when appellant and his accomplices entered the residence.
6 At one point, Francis threatened the mother that they would kidnap her baby if she did
not give them property.
7 A criminalist who tested this firearm reached inconclusive results whether this weapon
fired the shots at Wiley. The firearm in question did not leave sufficient marks to make a
positive identification on this discharged ammunition. The criminalist, however, could also not
rule out the possibility that this weapon fired these shots.
4.
VI. Appellant Commits an Alleged Assault While in Jail and He Later Tries to
Escape While in Custody
Law enforcement located and arrested appellant less than 24 hours after this crime
spree ended. While in jail in May 2015, appellant and two other fellow East Side Crip
gang members (who were neither Francis nor Johnson) assaulted a rival Country Boy
Crip gang member. Appellant punched the victim, while the other East Side Crip gang
members kicked the victim. The jury saw video of this assault. At trial, the
prosecution’s gang expert opined that appellant’s participation in this assault showed his
ongoing association with the East Side Crips despite being arrested.
In April 2016, appellant was still in jail custody and he was transferred to a
medical center for undisclosed treatment. After being transported to the medical center,
appellant ran away from the transporting deputy. Appellant was taken back into custody
about five minutes later.
VII. The Testimony of Francis
Prior to trial, Francis entered a plea deal in which she received a stipulated
sentence of 20 years. Francis told that jury that, prior to the crime spree, she had been at
a party with appellant and Johnson. She had consumed a lot of cocaine. She testified
that, prior to the first robbery, appellant had worn a GPS ankle monitor. Appellant,
however, had cut off his monitor.8
Francis admitted to the jury that she had committed the three charged robberies
with appellant and Johnson. Francis testified that appellant had been armed with a
firearm during each of the robberies at the restaurant, the convenience store and the
residence.
At trial, Francis denied that she was ever a member of the East Side Crips. She
admitted, however, that she had spent time with members from that gang. She admitted
8 The jury learned that appellant had been on parole when this crime spree occurred. He
had been wearing a GPS ankle monitor. At about 12:15 a.m. on the morning of this crime spree,
he had cut off his GPS monitor and left it in a yard under some bushes at a certain residence.
5.
that both appellant and Johnson were members of the East Side Crips. Francis told the
jury that the robberies were committed to get money to purchase drugs. She said the
robberies were not intended to benefit or support the East Side Crips. It never crossed
her mind that committing these robberies would instill fear in the community in a way to
benefit the East Side Crips. She denied that either appellant or Johnson ever indicated an
intent that these crimes be done to benefit the East Side Crips. Nobody flashed gang
signs or shouted gang slogans during these crimes. They did not share the proceeds from
these robberies with other gang members. Instead, they used the money to buy drugs for
themselves. After these robberies, they never went out into the community and took
credit for what they had done.
Francis told the jury that appellant was driving Harris’s vehicle when they drove
to the market. She and Johnson were passengers. Appellant exited the vehicle alone with
the firearm. She did not know why appellant got out or why he wanted to go to the
market. She denied hearing any gunshots while she waited in the vehicle.
VIII. The Testimony of Harris
Appellant’s half brother, Harris, testified at trial.9 Harris admitted to the jury that
he is an East Side Crip gang member. He also admitted that he had loaned the vehicle to
appellant, which had been used in this crime spree. At the time he loaned his vehicle,
Harris was high, and he believed appellant, Francis, and Johnson were also high.
According to Harris, however, he had no idea that his vehicle was going to be used to
commit any crimes.
After the crime spree, appellant told Harris that his vehicle had been used in
various crimes. Harris testified that he went to where it had been parked on a public
9 Francis and Harris are cousins.
6.
street and he removed its license plates.10 Harris testified that he did so because he was
afraid that he would be implicated in crimes that he did not commit.11
The jury learned that, during an interview with law enforcement, Harris had stated
that he had removed the plates from his vehicle because appellant told him to do so. He
later told law enforcement that appellant told him to get rid of his vehicle by dumping it
or burning it.
IX. The Convictions and Sentences
We summarize appellant’s charges, convictions and his relevant sentences. For
ease of reading, and given the number of charges, we summarize this information in a
spreadsheet format.12
The trial court found true that appellant had a prior conviction for voluntary
manslaughter. Appellant received an aggregate determinate sentence of 67 years. A
consecutive indeterminate sentence of 144 years to life was imposed.13
Count Section(s) Offense and Verdict and Sentence
enhancement(s) (if any) finding(s) (if any)
1 212.5(c) Robbery in the second Guilty Upper term of 10
degree years; stayed
12022.53(b) Firearm enhancement True 10 years; stayed
10 Law enforcement had this vehicle under surveillance when Harris removed the license
plates from it.
11 The jury learned that Harris had been arrested for being an accessory to these crimes,
along with gang participation.
12 To conserve space, we omit subdivisions in the citations for the various statutes. The
applicable subdivisions, however, are denoted for each statute by the respective parentheses.
13 Appellant has been sentenced in this matter three times. The original sentencing occurred
in June 2017. On October 19, 2018, appellant was resentenced to correct certain errors that the
California Department of Corrections and Rehabilitation had brought to the trial court’s
attention. Finally, on October 31, 2018, the court recalled the sentence to correct a mathematical
error.
7.
Count Section(s) Offense and Verdict and Sentence
enhancement(s) (if any) finding(s) (if any)
12022.53(b) & Firearm enhancement True 10 years; stayed
(e)(1)
186.22(b)(1) Gang enhancement True
2 245(b) Assault with a Guilty Upper term of 18
semiautomatic firearm years
12022.5(a) Firearm enhancement True 10 years
667(a) Prior serious felony True Five years
186.22(b)(1) Gang enhancement True Five years;
stayed
3 460(b) Burglary in the second Guilty Upper term of six
degree years; stayed
12022.5(a) Firearm enhancement True 10 years; stayed
186.22(b)(1) Gang enhancement True Four years;
stayed
4 212.5(c) Robbery in the second Guilty Upper term of 10
degree years; stayed
12022.53(b) Firearm enhancement True 10 years; stayed
12022.53(b) & Firearm enhancement True
(e)(1)
186.22(b)(1) Gang enhancement True 10 years; stayed
5 212.5(c) Robbery in the second Guilty Upper term of 10
degree years; stayed
12022.53(b) Firearm enhancement True 10 years; stayed
12022.53(b) & Firearm enhancement True
(e)(1)
186.22(b)(1) Gang enhancement True 10 years; stayed
6 245(b) Assault with a Guilty Consecutive one-
semiautomatic firearm third midterm of
four years
12022.5(a) Firearm enhancement True Three years four
months
186.22(b)(1) Gang enhancement True Five years;
stayed
8.
Count Section(s) Offense and Verdict and Sentence
enhancement(s) (if any) finding(s) (if any)
7 245(b) Assault with a Guilty Consecutive one-
semiautomatic firearm third midterm of
four years
12022.5(a) Firearm enhancement True Three years four
months
186.22(b)(1) Gang enhancement True Five years;
stayed
8 460(b) Burglary in the second Guilty Upper term of six
degree years; stayed
12022.5(a) Firearm enhancement True 10 years; stayed
186.22(b)(1) Gang enhancement True Four years;
stayed
9 213(a)(1)(A) Robbery in the first Guilty 48 years to life
degree
12022.53(b) Firearm enhancement True
12022.53(b) & Firearm enhancement True
(e)(1)
186.22(b)(1) Gang enhancement True
10 213(a)(1)(A) Robbery in the first Guilty Consecutive 48
degree years to life
12022.53(b) Firearm enhancement True
12022.53(b) & Firearm enhancement True
(e)(1)
186.22(b)(1) Gang enhancement True
11 213(a)(1)(A) Robbery in the first Guilty Consecutive 48
degree years to life
12022.53(b) Firearm enhancement True
12022.53(b) & Firearm enhancement True
(e)(1)
186.22(b) Gang enhancement True
12 245(b) Assault with a Guilty Upper term of 18
semiautomatic firearm years; stayed
12022.5(a) Firearm enhancement True 10 years; stayed
9.
Count Section(s) Offense and Verdict and Sentence
enhancement(s) (if any) finding(s) (if any)
186.22(b)(1) Gang enhancement True Five years;
stayed
13 245(b) Assault with a Guilty Upper term of 18
semiautomatic firearm years; stayed
12022.5(a) Firearm enhancement True 10 years; stayed
Five years;
186.22(b)(1) Gang enhancement True stayed
14 245(b) Assault with a Guilty Upper term of 18
semiautomatic firearm years; stayed
12022.5(a) Firearm enhancement True 10 years; stayed
186.22(b)(1) Gang enhancement True Five years;
stayed
15 245(b) Assault with a Guilty Consecutive one-
semiautomatic firearm third midterm of
four years
12022.5(a) Firearm enhancement True Three years four
months
186.22(b)(1) Gang enhancement True Five years;
stayed
16 460(a) Burglary in the first Guilty Upper term of
degree eight years;
stayed
12022.5(a) Firearm enhancement True 10 years; stayed
186.22(b)(1) Gang enhancement True 10 years; stayed
17 245(b) Assault with a Guilty Consecutive one-
semiautomatic firearm third midterm of
four years
12022.5(a) Firearm enhancement True Three years four
months
186.22(b)(1) Gang enhancement True Five years;
stayed
18 246 Shooting at an occupied Not guilty
motor vehicle
246.3(a) Lesser included offense Guilty Consecutive one-
of grossly negligent third midterm of
discharge of a firearm one year, four
months
10.
Count Section(s) Offense and Verdict and Sentence
enhancement(s) (if any) finding(s) (if any)
12022.5(a) Firearm enhancement True Three years four
months
186.22(b)(1) Gang enhancement True Five years;
stayed
19 29800(a)(1) Felon in possession of a Guilty Upper term of six
firearm years; stayed
20 25850(c)(3) Active criminal street Guilty Upper term of six
gang member carrying years; stayed
a loaded firearm
21 186.22(a) Participating in a Guilty Upper term of six
criminal street gang years; stayed
DISCUSSION
I. Substantial Evidence Supports the Gang Enhancements the Jury Found True
in Counts 1 Through 16
Appellant concedes that his shooting at Wiley, a rival gang member (counts 17 &
18), was gang related. However, appellant argues that insufficient evidence supports the
gang enhancements found true in counts 1 through 16. These counts involved the three
robberies. He contends that the jury’s true findings for the gang enhancements in counts
1 through 16 must be reversed.
A. Standard of Review
“In considering a challenge to the sufficiency of the evidence to support an
enhancement, we review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence—that is, evidence that is reasonable,
credible, and of solid value—from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in
support of the judgment the trier of fact could have reasonably deduced from the
evidence.” (People v. Albillar (2010) 51 Cal.4th 47, 59–60 (Albillar).)
B. Analysis
There are two prongs to the gang enhancement under section 186.22,
subdivision (b)(1). (Albillar, supra, 51 Cal.4th at p. 59.) The first prong requires that the
11.
underlying felony be “‘gang related.’” (People v. Weddington (2016) 246 Cal.App.4th
468, 484 (Weddington).) The second prong requires a defendant to commit a gang-
related felony with the specific intent to promote, further, or assist in any criminal
conduct by gang members. (Ibid.) Our Supreme Court recognizes that “[n]ot every
crime committed by gang members is related to a gang.” (Albillar, supra, at p. 60.)
Section 186.22, subdivision (b)(1), provides three alternatives for establishing the
first prong. The offense must be committed (1) “for the benefit” of a gang; or (2) “at the
direction” of a gang; or (3) “in association” with a gang. (Albillar, supra, 51 Cal.4th at
p. 59.) Because the language from the statute is worded in the disjunctive, a gang
enhancement may be imposed without evidence of any benefit to the gang so long as the
crime was committed in association with or at the direction of another gang member.
(People v. Leon (2008) 161 Cal.App.4th 149, 162; People v. Morales (2003) 112
Cal.App.4th 1176, 1198 (Morales).) Thus, the first prong may be established with
substantial evidence that two or more gang members committed the crime together,
unless there is evidence that they were “on a frolic and detour unrelated to the gang.”
(Morales, supra, at p. 1198; see Albillar, supra, 51 Cal.4th at pp. 61–62.)
In the present matter, appellant asserts that the evidence was insufficient to
support the gang enhancement’s first prong. According to appellant, this court need not
analyze the second prong. He argues that neither he nor his accomplices did anything
during these crimes to alert the victims that they were gang members. There was also no
evidence that any gang took credit for these crimes, or that other East Side Crip gang
members shared in the proceeds. He contends that more than mere gang membership is
required to establish that a crime is gang related, and he contends that more is required
than gang members simply working together.
12.
Appellant also emphasizes Francis’s testimony. She testified that these robberies
were not done to support or benefit the East Side Crips.14 According to Francis, the
robberies were committed to obtain money for personal reasons. After the robberies, she,
appellant and Johnson shared the money and they bought drugs. That money was not
provided to other gang members.
Finally, appellant raises numerous concerns regarding the sufficiency of the
opinions that the prosecution’s gang expert rendered. For instance, the gang expert
agreed that, because Francis eventually testified and identified the other participants in
these crimes, she faced possible assaults or even death because she broke the “code of
silence that the East Side Crips have with one another.” Appellant argues that, because
Francis testified against him, any alleged “code of silence” did not exist.15 Appellant
maintains that the “gang expert’s discussion of the code of silence was contrary to the
evidence.” He also claims that an “effective code of silence” is “almost a condition
precedent” necessary to establish that these robberies were gang related. Likewise,
appellant contends that other portions of the expert’s opinions were not based on the
facts, and the gang expert’s opinions “would make any robbery committed by gang
members a gang crime.” Appellant notes that the prosecution’s gang expert was never
presented with a hypothetical regarding whether the robberies of the restaurant and/or the
residence were gang related. Appellant asserts that the expert’s failure to opine about
these robberies “should establish by itself” that they were not gang related.
We reject appellant’s numerous arguments. Three opinions are instructive.
14 At trial, Francis denied that she was ever a member of the East Side Crips. She admitted,
however, that she spent “[a] lot” of time with members of that gang. She admitted that appellant
and Johnson were members of that gang.
15 The jury learned that when Francis spoke with law enforcement, she admitted that people
in jail had been telling her that she might be killed in prison for having a “snitch jacket.”
13.
1. Albillar
Both parties cite and rely upon Albillar, supra, 51 Cal.4th 47. In Albillar, three
gang members raped a minor. The victim knew that at least two of her assailants were
gang members. (Id. at pp. 51–53.) After the rape, the victim was reluctant to come
forward over fear of retaliation. A girlfriend of a member of the defendants’ same gang
contacted the victim and warned her that she and her family could be hurt if they told the
police. (Id. at p. 53.)
The Supreme Court held that substantial evidence supported the jury’s true finding
regarding a gang enhancement under section 186.22, subdivision (b)(1). (Albillar, supra,
51 Cal.4th at p. 51.) The prosecution’s gang expert had testified about gang culture, and
the benefit of gang members committing crimes together. (Id. at pp. 60–61.) Our high
court concluded that the defendants had “actively assisted each other in committing these
crimes,” and their common gang membership “ensured that they could rely on each
other’s cooperation in committing these crimes and that they would benefit from
committing them together. They relied on the gang’s internal code to ensure that none of
them would cooperate with the police, and on the gang’s reputation to ensure that the
victim did not contact the police.” (Id. at p. 62.) Our high court found substantial
evidence that the defendants “came together as gang members to attack” the victim, “and,
thus, that they committed these crimes in association with the gang.” (Ibid.)16
2. Weddington
Respondent cites and relies upon Weddington, supra, 246 Cal.App.4th 468. In
Weddington, the appellate court affirmed a finding that three accomplices committed a
burglary and attempted burglaries as gang members “acting in association” with each
other. (Id. at pp. 484–485.) The burglary and attempted burglaries were a “signature
16 The Albillar court also analyzed whether the three defendants had acted in a manner that
benefited their gang. The high court concluded that they had done so. (Albillar, supra, 51
Cal.4th at pp. 63–64.) We omit that portion of the analysis, which is irrelevant to the issues that
appellant raises in this appeal.
14.
crime” of the accomplices’ gang. Nothing suggested that the crimes “constituted a ‘frolic
and detour’ distinct and independent of the criminal activities of the gang.” (Id. at
p. 485.)
3. Morales
In Morales, supra, 112 Cal.App.4th 1176, the defendant entered a home to deliver
methamphetamine. He was with two other gang members. Once inside, the defendant
robbed his customer at gunpoint. The other two gang members robbed two other men in
the home and shot and killed one of the victims when he resisted. The defendant
admitted that he entered the home in order to sell methamphetamine to one of the
occupants, and that he asked the other men to accompany him. He denied robbing his
drug customer, however, and claimed to have been surprised by the actions of his
companions in robbing and shooting the other occupants while he was in another room.
(Id. at pp. 1182–1183.) The prosecution’s expert opined, in answer to a hypothetical
question, that given the facts of the defendant’s case (i.e., a robbery and murder carried
out by several gang members acting in concert), the crime would have been committed
for the benefit of, or at the direction of, or in association with, the gang. (Id. at pp. 1179–
1182.) The appellate court concluded that there was substantial evidence to support the
first element of the gang enhancement, because “the jury could reasonably infer the
requisite association from the very fact that [the] defendant committed the charged crimes
in association with fellow gang members.” (Id. at p. 1198.)
4. The Facts from this Matter
Appellant notes that the Albillar court looked at numerous factors – such as how
the offense was committed, the gang expert’s opinions, the victim’s fear of retaliation,
and how the gang attempted to dissuade her from cooperating with authorities – in
finding substantial evidence that the rape was done in association with a criminal street
gang. In contrast to Albillar, no evidence shows that anyone tried to dissuade the victims
from coming forward when appellant and his accomplices committed the robberies.
15.
Appellant contends that “a defendant who has not used his gang status to prevent or at
least try to prevent the victim from calling police has in effect communicated this is not a
gang crime.”
We disagree with appellant’s various arguments. This record overwhelmingly
establishes that substantial evidence supports the gang enhancements in counts 1 through
16.
The prosecution’s gang expert informed the jury that robbery, assault with a
deadly weapon, and burglary (among other crimes) are all “primary activities” of the East
Side Crips. The expert explained that when East Side Crip gang members commit
robberies together, it increases the success rate and there is “strength in numbers.”
According to the expert, the East Side Crips benefit when their members work together
and commit robberies. This is one way the gang obtains money, and it increases its
reputation for violence.
Based on a “scenario” presented by the prosecutor, the expert opined that the
robbery of a convenience store with a division of labor among gang members would be
considered committed in “association” with East Side Crips. The gang members all
benefited, and they were “all working in conjunction with one another to accomplish a
bigger goal.”17 The expert opined that, even if gang members want to buy drugs for
personal reasons, if they come together and commit crimes to obtain money to buy drugs,
those crimes are committed in association with the gang. The expert explained that, even
if they are using the money “for selfish reasons,” recruiting other gang members to
commit the crimes with “specific roles” shows a gang association.
17 During cross-examination, the prosecution’s gang expert agreed that sometimes gang
members commit robberies for their own gain and not specifically for the gang. During redirect
examination, the expert agreed that, if gang members commit robberies together and they use the
money for drugs, those actions benefit the gang because drugs and parties continue the gang
lifestyle.
16.
Like Albillar, Weddington and Morales, the facts overwhelmingly support a
conclusion that appellant and his accomplices came together as gang members. Prior to
his crime spree, appellant borrowed a vehicle from a member of his gang. Prior to
committing these crimes, appellant cut off his GPS ankle monitor. He then committed
these robberies with two other members from his gang while using the borrowed vehicle.
After this crime spree ended, appellant alerted the first gang member that crimes had
been committed with the vehicle, and appellant alternatively advised the other gang
member to dump or burn the vehicle or take off its license plates. That gang member
removed the license plates in an effort to thwart law enforcement’s investigation. Based
on this evidence, it is reasonable to infer that appellant and his accomplices relied on their
common gang membership and the apparatus of the gang to complete these robberies.
Francis’s testimony does not alter our conclusion. Although she stated that the
robberies were committed only for personal gain, we will not disturb the jury’s true
findings. While appellant may have had a personal motive for robbing the various
victims, the jury could have also reasonably concluded that the elements of the gang
enhancements were established beyond a reasonable doubt. Reversal is not warranted
simply because the circumstances might also reasonably be reconciled with a contrary
finding. We will neither reweigh the evidence nor reevaluate a witness’s credibility.
(Albillar, supra, 51 Cal.4th at p. 60.) Indeed, robberies, burglaries and assaults with
firearms are typical offenses committed by the East Side Crips. Nothing reasonably
suggests that these robberies were either a frolic or a detour distinct and independent of
the criminal activities of the gang. (See Weddington, supra, 246 Cal.App.4th at p. 485.)
Finally, we need not fully respond to appellant’s numerous arguments regarding
the sufficiency of the gang expert’s testimony. Instead, the jury was instructed on the
required elements to find true the gang enhancements. Appellant’s criminal conduct in
concert with fellow gang members, and while using another fellow gang member’s
vehicle, amply demonstrated that the gang enhancements were proper. The prosecution
17.
conclusively established that the robberies charged in counts 1 through 16 were gang
related under section 186.22, subdivision (b)(1).18 (See Albillar, supra, 51 Cal.4th at
p. 62; Weddington, supra, 246 Cal.App.4th at pp. 484–485; Morales, supra, 112
Cal.App.4th at p. 1198.)
Based on this record, the gang enhancements in counts 1 through 16 are supported
by evidence that is reasonable, credible, and of solid value. A reasonable jury could have
found these enhancements true beyond a reasonable doubt. Consequently, substantial
evidence supports the jury’s true findings. Accordingly, appellant’s arguments are
without merit, and this claim fails.
II. The Trial Court Did Not Abuse its Discretion in Permitting Introduction of
Appellant’s Manslaughter Conviction as a Predicate Offense, and Any
Presumed Error was Harmless
At trial, the prosecution introduced evidence regarding six predicate offenses that
had been committed by various members of the East Side Crips.19 Appellant contends
that error occurred regarding admission of two of these offenses.
One of the disputed predicate offenses involved appellant’s conviction for
voluntary manslaughter. No facts were introduced at trial regarding how or why this
homicide occurred. Instead, the jury was told that this took place in 2007, and appellant
was convicted in 2008 following a plea agreement. Appellant received a six-year prison
sentence.
The other disputed predicate offense occurred in 2009 (the Colen predicate
offense). It involved an East Side Crip gang member (Colen) and another East Side Crip
gang member robbing a victim at gunpoint.
18 Because the “in association” element is satisfied, we need not respond to appellant’s
arguments regarding whether the robberies were done to benefit appellant’s gang.
19 These six predicate offenses established a “‘pattern of criminal gang activity’” for the
East Side Crips. (See § 186.22, subd. (e).)
18.
Appellant contends that the trial court abused its discretion and violated Evidence
Code section 352 when permitting admission of these two predicate offenses. He seeks
reversal of the jury’s true findings on the gang enhancements in counts 1 through 16.
A. Standard of Review
An abuse of discretion standard is used to review a trial court’s evidentiary
rulings. A trial court abuses its discretion when its ruling is outside the bounds of reason.
(People v. Waidla (2000) 22 Cal.4th 690, 714.) We will not disturb the trial court’s
decision on appeal unless it exercised its discretion in an arbitrary, capricious or patently
absurd manner that resulted in a manifest miscarriage of justice. (People v. Rodrigues
(1994) 8 Cal.4th 1060, 1124–1125; see People v. Williams (1998) 17 Cal.4th 148, 162
[abuse of discretion review asks whether ruling in question falls outside bounds of reason
under applicable law and relevant facts].)
B. Analysis
Appellant asserts that the trial court abused its discretion in two ways. First,
appellant contends the court should have excluded the Colen predicate offense. Unlike
the other five predicate offenses (including appellant’s manslaughter conviction), the
Colen predicate offense was not established with certified records. Instead, the
prosecution’s gang expert briefly summarized the facts surrounding that robbery.
Appellant maintains that the Colen predicate offense violated People v. Sanchez (2016)
63 Cal.4th 665 (Sanchez) because the gang expert related case-specific facts about this
crime, and this predicate offense was not independently proven with competent
evidence.20
20 There is a split of authority in California regarding whether a gang expert’s testimony
about predicate offenses entails case-specific facts as contemplated by Sanchez, supra, 63
Cal.4th 665. One view holds that facts related to predicate offenses are case specific. (People v.
Lara (2017) 9 Cal.App.5th 296, 337; People v. Ochoa (2017) 7 Cal.App.5th 575, 583, 588–589.)
The other view is that evidence of a gang’s pattern of criminal activities by alleged members is
only “general background information,” permitting a qualified expert to relate hearsay while
testifying about predicate offenses. (People v. Blessett (2018) 22 Cal.App.5th 903, 943–945,
19.
Second, appellant argues that, if the Colen predicate offense was inadmissible,
then appellant’s manslaughter conviction washed out because it did not occur within
three years of another predicate offense.21 Appellant also contends that, even if his
manslaughter conviction nevertheless qualified as a predicate offense, its admission was
more prejudicial than probative, and it should have been excluded.
In contrast, respondent asserts that appellant has forfeited this claim. In any event,
respondent claims that appellant’s manslaughter conviction was admissible because it did
not wash out as a predicate offense, and appellant’s manslaughter conviction did not
violate Evidence Code section 352. Moreover, respondent contends that appellant cannot
establish ineffective assistance of counsel. Finally, respondent argues that, even if
erroneously admitted, any error was harmless.
We agree with respondent that, even if the Colen predicate offense was improperly
admitted (an issue we do not analyze), appellant’s manslaughter conviction did not wash
out as a predicate offense. Moreover, the court did not abuse its discretion in permitting
its introduction. Finally, even if evidentiary error occurred, prejudice did not result.22
1. Even if the Colen predicate offense was improperly admitted in
violation of Sanchez, appellant’s manslaughter conviction did
not wash out as a predicate offense
A “‘pattern of criminal gang activity’” for a criminal street gang is established
with the introduction of two or more enumerated offenses. (§ 186.22, subd. (e).) These
predicate offenses must fall within a certain time range. At least one predicate offense
must have occurred after 1988 (i.e., the effective date of the statute). The last of the
review granted Aug. 8, 2018, S249250, overruled on other grounds in People v. Perez (2020) 9
Cal.5th 1, 14; People v. Vega-Robles (2017) 9 Cal.App.5th 382, 411.)
21 The remaining four predicate offenses that were introduced at trial occurred nearer in
time to the crimes charged in this matter. If the Colen predicate offense is excluded, the nearest
other predicate offense to appellant’s manslaughter conviction occurred in 2012.
22 Because this claim fails on its merits and any presumed evidentiary error was harmless,
we need not address forfeiture or ineffective assistance of counsel.
20.
predicate offenses must have occurred within three years after a prior offense. Finally,
the predicate offenses must have been committed on separate occasions, or by two or
more persons. (Ibid.) There is no requirement that all of the predicate offenses must
occur within three years of the charged crime. (People v. Fiu (2008) 165 Cal.App.4th
360, 388.)
Appellant argues that, assuming the Colen predicate offense was improperly
admitted, then a gap of more than three years occurred between his manslaughter
conviction and the next predicate offense. According to appellant, the oldest predicate
offense must occur within three years of another offense.23 As such, he contends that his
manslaughter conviction washed out and the trial court abused its discretion in permitting
its introduction as a predicate offense.
We disagree with appellant’s reading of the statute. Section 186.22,
subdivision (e), does not have an express requirement that all predicate offenses must
occur within three years of a prior one. Instead, section 186.22 requires that “the last”
predicate offense must occur “within three years after a prior offense,” and the offenses
must be “committed on separate occasions, or by two or more persons.” (§ 186.22,
subd. (e).)
We agree with respondent that “the last” offense refers to the most recent, rather
than the oldest, offense. Moreover, the statute does not provide a wash out provision.
Thus, appellant’s manslaughter conviction did not wash out or become statutorily
ineligible as a predicate offense even if the Colen predicate offense was inadmissible
under Sanchez (an issue we do not address).
23 Appellant’s arguments are based, in part, on a comment that the prosecutor made in his
written motion in limine regarding this issue. The prosecutor had cautioned the trial court that it
was “safest” to use predicate offenses “that not only fall within three years of each other, but of
the charged offense as well.”
21.
In the alternative, appellant asserts that, even if his reading of the statute is
incorrect, then the last predicate offense (that occurred in 2014), was still not within three
years of his 2007 voluntary manslaughter. Appellant contends that his manslaughter
conviction still would not have satisfied the requirements of section 186.22, subdivision
(e).
We reject this alternative argument. The last predicate offense admitted against
appellant occurred in 2014. The next two predicate offenses also occurred in 2014. The
fourth predicate offense occurred in 2012. The Colen predicate offense occurred in 2009,
and appellant’s manslaughter conviction occurred in 2007. As such, “the last” predicate
offense did occur “within three years after a prior offense,” and the offenses were
“committed on separate occasions, or by two or more persons.” (§ 186.22, subd. (e).)
There is no requirement that all of the predicate offenses must occur within three years of
the charged crime. (People v. Fiu, supra, 165 Cal.App.4th at p. 388.)
Finally, appellant concedes in his reply brief that section 186.22, subdivision (e),
does not impose a three-year limitation on any offense except for the most recent. He
asserts, however, that this “is a significant omission in the statute.” He argues that, based
on the statute’s purpose to establish a pattern of criminal gang activity, then it should be
required that all predicate crimes must occur within three years of a prior predicate
offense to establish a pattern.
We need not comment further on appellant’s argument. Our task is to give plain
meaning to the express words of a statute. (Burden v. Snowden (1992) 2 Cal.4th 556,
562.) When the words of a statute are clear, as they are here, we may not alter them to
accomplish a different purpose. (Ibid.) Consequently, appellant’s various arguments
regarding the timing under the statute are without merit.
22.
2. The trial court did not abuse its discretion in permitting
introduction of appellant’s manslaughter conviction as a
predicate offense
Appellant concedes that a defendant’s own prior criminal conviction can be used
as a predicate offense to establish that a gang has engaged in a pattern of criminal
activity. (People v. Tran (2011) 51 Cal.4th 1040, 1046.) The admissibility of such
evidence, however, is still controlled by Evidence Code section 352,24 and its probative
value must not be substantially outweighed by its prejudicial effect. (Tran, supra, at
p. 1047.)
Appellant argues that, even if his manslaughter conviction did not wash out, the
trial court nevertheless abused its discretion in permitting its introduction. He contends
that any probative value was substantially outweighed by its prejudicial effect. He asserts
that, because it involved a homicide, his manslaughter conviction was “much more
serious than the charged crimes and inflamed the jurors’ emotions and posed an
intolerable risk to the fairness of the proceedings or the reliability of the outcome.”
Appellant also notes that the prosecution introduced four other predicate offenses, further
increasing the prejudicial effect of his manslaughter conviction.
Appellant’s arguments are without merit. As an initial matter, the manslaughter
conviction was relevant as a predicate offense to establish, in part, a “‘pattern of criminal
gang activity’” for appellant’s gang as required under section 186.22, subdivision (e). As
such, this evidence tended to prove disputed facts that were of consequence in this trial.
(Evid. Code, § 210.) Thus, this evidence had probative value.25
24 “The court in its discretion may exclude evidence if its probative value is substantially
outweighed by the probability that its admission will (a) necessitate undue consumption of time
or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the
jury.” (Evid. Code, § 352.)
25 We note that appellant’s manslaughter conviction was alleged in count 19 as the prior
felony supporting the charge that appellant had been in possession of a firearm as a convicted
felon (§ 29800, subd. (a)(1)). Based on the probation report, it appears that the manslaughter
conviction was appellant’s only prior felony.
23.
The prejudicial impact of this evidence did not substantially outweigh its probative
value. When arguing about this issue before the trial court, the prosecutor offered to
reduce any unnecessary prejudicial impact by not introducing any facts regarding the
circumstances surrounding the homicide. Instead, the jury would only learn that the
crime happened on a particular date, appellant was convicted, and he had served a prison
sentence for it. At trial, only certain certified documents, including an abstract of
judgment, were moved into evidence regarding appellant’s manslaughter conviction. The
prosecutor reviewed those documents with his gang expert. At no time in reviewing
these documents did the expert inform the jury about the circumstances surrounding
appellant’s manslaughter, how it occurred, or the identity of the victim.
Testimony about appellant’s manslaughter conviction was very short in duration,
covering only about five pages in the reporter’s transcript. It cannot be said that this
necessitated an undue consumption of time. In addition, the jury learned no details about
the circumstances surrounding this homicide. As such, this evidence neither reasonably
created a substantial danger of undue prejudice, confused the issues, nor may have misled
the jury. (Evid. Code, § 352.) We reject appellant’s assertion that this evidence may
have inflamed the jurors’ emotions against him.
Based on this record, the trial court’s evidentiary ruling was not arbitrary,
capricious, or patently absurd. The admission of this evidence did not pose an intolerable
risk to the fairness of the proceedings, and it did not call into question the reliability of
the outcome. Therefore, an abuse of discretion is not present, and this claim fails. In any
event, even if error occurred, it was harmless.
3. Any presumed evidentiary error was harmless
Appellant asserts that, had the jury not been told about his manslaughter
conviction, it could have concluded he was not “such a hardened gang member.”
According to appellant, the jury could have determined that he committed the robberies
“for personal reasons.” He argues that, either under the federal standard of Chapman v.
24.
California (1967) 386 U.S. 18 (Chapman) or the state standard of People v. Watson
(1956) 46 Cal.2d 818, reversal of his gang enhancements in counts 1 through 16 is
warranted.
We reject appellant’s assertions. As an initial matter, the appropriate standard of
review is under Watson and not Chapman. Absent fundamental unfairness, the Watson
standard is used to analyze the prejudicial impact of evidentiary error. (People v. Partida
(2005) 37 Cal.4th 428, 439.) We “must ask whether it is reasonably probable the verdict
would have been more favorable to the defendant absent the error.” (Ibid.)
The prosecution established with overwhelming evidence that the East Side Crips
had a pattern of criminal gang activity. This is true even when setting aside the two
disputed predicate offenses. In addition, the evidence conclusively demonstrated
appellant’s ongoing gang involvement. Moreover, substantial evidence supports the
jury’s true findings in counts 1 through 16 regarding the gang enhancements.
The jury heard very little testimony about appellant’s manslaughter conviction,
and they received no facts surrounding how or why it occurred. Even if the court erred in
permitting admission of appellant’s manslaughter conviction (and the Colen predicate
offense) there is no reasonable probability appellant would have received a more
favorable result. The evidence against appellant was overwhelming. It is not reasonably
probable the jury would have found the gang enhancements not true. Consequently, we
can declare that any assumed evidentiary error was harmless. Accordingly, appellant’s
numerous arguments are without merit and this claim fails.
III. The Trial Court Did Not Abuse Its Discretion in Permitting Introduction of
Appellant’s Jail Assault, and Any Presumed Error was Harmless
While in jail after being arrested in this matter, appellant and two other East Side
Crips gang members assaulted a rival Country Boy Crips gang member. The
prosecution’s gang expert explained to the jury that appellant’s participation in this
25.
assault showed his continuing association with the East Side Crips even though he had
been arrested.
Appellant asserts that the trial court erred in allowing the prosecutor to introduce
evidence about this assault. He contends the error was prejudicial, requiring reversal of
the jury’s true findings for the gang enhancements in counts 1 through 16.
A. Standard of Review
An abuse of discretion standard is used to review the admission of gang evidence
over an Evidence Code section 352 objection. (People v. Montes (2014) 58 Cal.4th 809,
859–860.) Under this standard, we will not disturb the trial court’s decision on appeal
unless it exercised its discretion in an arbitrary, capricious or patently absurd manner that
resulted in a manifest miscarriage of justice. (People v. Rodrigues, supra, 8 Cal.4th at
pp. 1124–1125; see People v. Williams, supra, 17 Cal.4th at p. 162 [abuse of discretion
review asks whether ruling in question falls outside bounds of reason under applicable
law and relevant facts].)
B. Analysis
Appellant argues that his alleged jail assault was cumulative evidence in his trial.
He concedes he was a gang member in the East Side Crips, and he also states it is
undisputed that the Country Boy Crips and East Side Crips are rivals. He contends that
his jail assault was admitted to cast him as a “homicidal gang criminal.” He maintains
that this evidence inflamed the jurors’ emotions, and he claims he suffered prejudice
under either Watson or Chapman.
Appellant’s various assertions are without merit. The trial court did not abuse its
discretion in permitting admission of this evidence. In any event, any presumed error
was harmless.26
26 Respondent contends that appellant has forfeited his argument that this evidence was
cumulative of other gang evidence. Appellant counters that his trial counsel did enough to
preserve this issue for appeal and, in any event, this court should reach the merits of this claim.
26.
1. The trial court did not abuse its discretion
In general, the prosecution is entitled to introduce evidence of gang affiliation and
activity when such evidence is relevant to prove some fact other than the defendant’s
disposition to commit the charged crimes. (People v. McKinnon (2011) 52 Cal.4th 610,
655–656.) Gang evidence is admissible to prove motive or identity if the prejudicial
effect does not outweigh its probative value. (Id. at p. 655.) Gang evidence is relevant
and admissible when the motive for the underlying crime was gang related. (People v.
Samaniego (2009) 172 Cal.App.4th 1148, 1167.)
In this matter, the prosecutor argued to that trial court that appellant had engaged
in a series of crimes with Johnson and Francis. Their crime spree ended with appellant
shooting at a rival gang member. The prosecutor contended that appellant’s jail assault
was highly probative of his continued devotion to the East Side Crips, even when he was
in custody. According to the prosecutor, this evidence further established appellant’s
motive for the shooting. When ruling on the admissibility of this evidence, the court
found it highly probative, noting that its prejudicial effect did not substantially outweigh
its probative value.
We agree with respondent that the trial court did not abuse its discretion.
Evidence about appellant’s alleged jail assault was relevant to establish his gang-related
motive to fire at Wiley, a rival Country Boy Crip. The alleged jail assault also showed
appellant’s ongoing association with the East Side Crips. This evidence tended to prove
disputed facts that were of consequence in this trial. (Evid. Code, § 210.) Thus, this
evidence had probative value.
Moreover, the prejudicial impact of this evidence did not substantially outweigh
its probative value. Testimony about the jail assault was relatively short in duration. It
cannot be said that this evidence necessitated an undue consumption of time. In addition,
We need not resolve the forfeiture issue. Instead, appellant’s claim fails on its merits and any
presumed error was harmless.
27.
the circumstances surrounding the alleged assault were not inflammatory, especially
when compared to the facts underlying the numerous crimes charged against appellant in
this matter. Evidence about the alleged jail assault did not create a substantial danger of
undue prejudice, confuse the issues, or possibly mislead the jury. (Evid. Code, § 352.)
Based on this record, the trial court’s evidentiary ruling was not arbitrary,
capricious, or patently absurd. The admission of this evidence did not pose an intolerable
risk to the fairness of the proceedings, and it did not call into question the reliability of
the outcome. Therefore, an abuse of discretion is not present, and this claim fails. In any
event, even if error occurred, it was harmless.
2. Any presumed error was harmless
The jury was instructed that the prosecution had the burden of proving beyond a
reasonable doubt that the alleged gang enhancements were true. If reasonable doubt
existed, the jury was instructed to find these allegations “not true.”
The trial court instructed the jury that evidence had been introduced for the
purpose of showing criminal street gang activities and of criminal acts by gang members
other than the crimes charged against appellant. The jury was told that this evidence
could not be used to determine if appellant was a person of bad character or had a
disposition to commit crimes. Instead, the jury could only consider this for the limited
purpose of determining if it tended to show that the charged crimes were committed for
the benefit of, at the direction of, or in association with a criminal street gang with the
specific intent to promote, further, or assist in any criminal conduct by gang members.
The jury was told to not consider this evidence for any other purpose.
We presume that the jury followed the limiting instructions, and there is nothing in
this record to rebut that presumption. (People v. Waidla, supra, 22 Cal.4th at p. 725.)
Moreover, the trial evidence overwhelmingly established the gang enhancements. Even
if the court erred in permitting admission of evidence regarding appellant’s alleged jail
assault, there is no reasonable probability he would have received a more favorable
28.
result. It is not reasonably probable the jury would have found any of the gang
enhancements not true.27 Thus, any assumed evidentiary error was harmless. Therefore,
appellant’s arguments are without merit and this claim fails.
IV. The Firearm Enhancement in Count 18 Must Be Stricken and Appellant
Resentenced
The parties agree that an unauthorized sentence occurred. The firearm
enhancement under section 12022.5, subdivision (a), in count 18 must be stricken. In that
count, appellant was convicted of grossly negligent discharge of a firearm under
section 246.3, subdivision (a). Because the use of a firearm was an element for that
substantive offense, the firearm enhancement is unauthorized. (§ 12022.5, subd. (a);
People v. Overman (2005) 126 Cal.App.4th 1344, 1361.)
Respondent asserts that this court may correct this sentencing error. According to
respondent, we should impose sentence on the gang enhancement that was stayed in
count 18 and order the abstract of judgment corrected. We decline to do so. A full
resentencing is appropriate when part of a sentence is stricken on review. This permits
the trial court to exercise its sentencing discretion in light of the changed circumstances.
(People v. Buycks, supra, 5 Cal.5th at p. 893; People v. Gastelum (2020) 45 Cal.App.5th
757, 772 [“In general, when an error affects part of a sentence, we must remand for a full
resentencing on all counts and allegations”].)
Accordingly, we vacate appellant’s sentence, and remand this matter for
resentencing.
27 We reject appellant’s suggestion that Chapman provides the appropriate standard of
review in this situation. Instead, this is an issue of alleged evidentiary error under state law, and
Watson provides the appropriate standard. (People v. Partida, supra, 37 Cal.4th at p. 439.)
29.
V. If the Trial Court Again Imposes Consecutive Sentences, It Shall Articulate
Whether They are Mandatory or Discretionary, and It Shall State Reasons
Supporting Its Discretionary Sentencing Choices
In a series of arguments, appellant contends that the trial court abused its
discretion when imposing consecutive sentences in some of his counts. He asserts that it
is unclear whether the court understood it could sentence him concurrently in counts 9,
10 and 11 (the three robberies related to the home invasion), in counts 6, 7, 15 and 17
(various assaults with a semiautomatic firearm), and in count 18 (shooting at an occupied
motor vehicle). He argues that the court misapplied the law.
The parties dispute numerous issues. They disagree whether appellant’s
sentencing claims have been forfeited, whether ineffective assistance of counsel occurred,
whether the court applied the correct sentencing standards, whether the record supports
the court’s sentencing choices, and whether this matter must be remanded for
resentencing.
We need not fully respond to all of the parties’ disputed points regarding these
alleged sentencing errors. Instead, we have already determined that appellant’s sentence
must be vacated, and this matter remanded for resentencing stemming from an unrelated
error. A full resentencing is appropriate because part of appellant’s sentence was stricken
on review. (People v. Buycks, supra, 5 Cal.5th at p. 893; People v. Gastelum, supra, 45
Cal.App.5th at p. 772.)
When previously sentenced in this matter, appellant fell under the “Three Strikes”
law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)) because he had a prior serious felony
conviction that was found true. When sentencing appellant, the trial court adopted the
justifications set forth in the probation report. The court gave no reasons for the
consecutive sentences it imposed in counts 9, 10 and 11.28 For counts 6, 7, 15, 17, and
28 The probation report recommended that appellant should receive consecutive terms in
counts 9, 10 and 11 (the three robberies related to the home invasion). According to the
probation report, these crimes involved “separate victims and separate acts of violence or threats
of violence to the victims.” The probation report also recommended consecutive sentences in
30.
18, however, the court did state that these crimes and objectives were predominantly
independent of each other, and these crimes involved separate acts of violence or threats
of violence.
When appellant is resentenced, and if the trial court again imposes consecutive
sentences, the court shall clarify whether any imposed consecutive sentences are
mandatory or discretionary. Under the Three Strikes law, if multiple second or third
strike crimes did not occur on the same occasion or out of the same operative facts, the
defendant must receive consecutive sentences. (People v. Deloza (1998) 18 Cal.4th 585,
591.) In contrast, if multiple second or third strike crimes did occur on the same occasion
or arose from the same set of operative facts, a trial court retains discretion to impose
either concurrent or consecutive sentences. (People v. Danowski (1999) 74 Cal.App.4th
815, 821.)29
Further, the court must state reasons in support of any discretionary consecutive
sentence it imposes. (§ 1170, subd. (c); Cal. Rules of Court, rule 4.406(a) & (b)(5).) A
court may not merely incorporate by reference justification from a probation report
supporting a discretionary sentencing choice. Such a practice renders meaningless any
appellate review regarding the imposed sentence and the sentencing court’s reasons for it.
(People v. Fernandez (1990) 226 Cal.App.3d 669, 681.)30
counts 6, 7, 15 and 17 (various assaults with a semiautomatic firearm), and in count 18 (shooting
at an occupied motor vehicle). According to the probation report, these crimes and objectives
were predominantly independent of each other, and these crimes involved separate acts of
violence or threats of violence. At no point, however, did the probation report mention or
discuss sentencing under the Three Strikes law.
29 In counts 9, 10 and 11 (the three robberies related to the home invasion), appellant
received indeterminate sentences because of section 186.22, subdivision (b)(4)(B). A trial court
has discretion to impose concurrent sentences for multiple convictions under section 186.22,
subdivision (b)(4)(B). (People v. Leon (2016) 243 Cal.App.4th 1003, 1026.)
30 Respondent notes that the probation report did not state that consecutive sentences were
mandatory in counts 9, 10 and 11. Instead, the probation report “recommended” that consecutive
sentences be imposed in those counts. Further, the trial court never stated that it believed
consecutive sentences were mandatory. Although the totality of the sentencing record strongly
31.
We direct the trial court to comply with these requirements when appellant is
resentenced. We express no opinion regarding how the court should sentence him.
DISPOSITION
Appellant’s sentence is vacated, and this matter is remanded for resentencing. The
trial court shall strike the firearm enhancement (§ 12022.5, subd. (a)) found true in
count 18. When appellant is resentenced, and if the court again imposes consecutive
sentences, the court shall clarify whether any consecutive sentences are mandatory or
discretionary. The court shall state its reasons in support of all of its discretionary
sentencing choices, including the imposition of discretionary consecutive sentences.
(§ 1170, subd. (c); Cal. Rules of Court, rule 4.406(a) & (b)(5).) Following resentencing,
the court shall prepare amended abstracts of judgment and forward those to the
appropriate authorities. In all other respects, the judgment is affirmed.
MEEHAN, J.
I CONCUR:
DeSANTOS, J.
suggests that the trial court believed the imposed consecutive sentences were discretionary, it
failed to state reasons to support the consecutive sentences it imposed in counts 9, 10 and 11.
32.
Poochigian, Acting P.J., Concurring and Dissenting.
I concur with the majority that sufficient evidence supports the gang
enhancements (Pen. Code, § 186.22, subd. (b)(1)),1 which the jury found true in counts 1
through 16. I also concur that the trial court did not abuse its discretion either in
permitting introduction of appellant Bryson Clayton Mitchell’s manslaughter conviction
as a predicate offense or in permitting introduction of his jail assault, and any presumed
error was harmless. Finally, I concur that the firearm enhancement (§ 12022.5, subd. (a))
in count 18 must be stricken and appellant must be resentenced. However, I respectfully
dissent from the majority regarding appellant’s constitutional challenge to some of the
fines and fees imposed against him.
At sentencing, the trial court ordered appellant to pay (in part) the following:
(1) A minimum $300 restitution fine (§ 1202.4, subd. (b)(1));
(2) A $300 parole revocation fine (§ 1202.45.);
(3) An $840 aggregate court operations assessment (§ 1465.8, subd. (a)(1)); and
(4) A $630 aggregate criminal conviction assessment (Gov. Code, § 7373,
subd. (a)(1)).
According to the majority, appellant’s claim pursuant to People v. Dueñas (2019)
30 Cal.App.5th 1157 (Dueñas) is moot because we are remanding this matter under the
full sentencing rule. (Maj. opn., ante, at p. 2, fn. 2.) I disagree that this constitutional
challenge is moot. I would hold that appellant does not establish a constitutional
violation based on Dueñas, and any presumed constitutional error was harmless.2
Much has already been written about Dueñas, both from this court and around the
state. (See People v. Lowery (2020) 43 Cal.App.5th 1046, 1052–1053; People v. Aviles
1 All future statutory references are to the Penal Code unless otherwise noted.
2 The parties disagree whether appellant has forfeited his Dueñas claim by failing to
object to the imposed fines and fees in the trial court, or whether ineffective assistance of counsel
occurred. I would not address forfeiture. Appellant’s claim fails on the merits and any presumed
error was harmless beyond a reasonable doubt.
(2019) 39 Cal.App.5th 1055, 1063–1065.) I would not expand Dueñas’s holding beyond
the unique facts found in Dueñas. Unlike the probationer in Dueñas, appellant does not
establish the violation of a fundamental liberty interest. Appellant’s incarceration was
not a consequence of prior criminal assessments and fines. He was not deprived of
liberty because of his alleged indigency. He was not caught in a cycle of “cascading
consequences” stemming from “a series of criminal proceedings driven by, and
contributing to, [his] poverty.” (Dueñas, supra, 30 Cal.App.5th at pp. 1163–1164.)
Dueñas is distinguishable. Appellant could have avoided the present convictions
regardless of his financial circumstances. Thus, it was not fundamentally unfair for the
trial court to impose the restitution fine and the assessments in this matter without first
determining appellant’s ability to pay. I would reject appellant’s due process challenge
and the applicability of Dueñas in this matter.3
Moreover, even if Dueñas were applicable, prejudice did not occur. Unlike the
Dueñas defendant who was placed on probation and subjected to a recurring cycle of
debt, appellant was sentenced to an aggregate prison term well over 100 years. Nothing
in this record reasonably suggests that he might be unable to work, or he might be
ineligible for prison work assignments. As such, an inference exists that appellant will
have the opportunity to earn prison wages and he can start paying his financial
obligations. (See People v. Lowery, supra, 43 Cal.App.5th at p. 1060; People v. Aviles,
supra, 39 Cal.App.5th at p. 1076; People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837
[ability to pay includes a defendant’s prison wages].) Although it may take him time, he
3 Unlike appellant, the Dueñas defendant presented compelling evidence that the
imposed assessments resulted in ongoing unintended punitive consequences. The Dueñas court
determined that those unintended consequences were “fundamentally unfair” for an indigent
defendant under principles of due process. (Dueñas, supra, 30 Cal.App.5th at p. 1168.) The
Dueñas court noted the imposed financial obligations were also potentially unconstitutional
under the excessive fines clause of the Eighth Amendment. However, Dueñas stated “[t]he due
process and excessive fines analyses are sufficiently similar that the California Supreme Court
has observed that ‘[i]t makes no difference whether we examine the issue as an excessive fine or
a violation of due process.’ [Citation.]” (Dueñas, supra, at p. 1171, fn. 8.)
2
can make payments from either prison wages or monetary gifts from family and friends.
Thus, any presumed constitutional error is harmless beyond a reasonable doubt. (See
Chapman v. California (1967) 386 U.S. 18, 24.) Therefore, I would hold that Dueñas is
inapplicable when this matter is remanded for resentencing.
POOCHIGIAN, Acting P.J.
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