Filed 3/11/22 P. v. Ogura CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Civ. No. B303322
(Super. Ct. No. KA089210)
Plaintiff and Respondent, (Los Angeles County)
v.
KARL KATSUMI OGURA,
Defendant and Appellant.
A trial judge resentences under Penal Code section
1170.95, subdivision (e).1 The target offense was not charged.
The trial court has discretion to resentence on an offense not
charged that reflects the culpability of the defendant. We reverse
and remand for a retrial on section 186.22, a gang enhancement.
In all other respects, we affirm.
FACTS
In December 2011, a jury found Karl Katsumi Ogura guilty
of first degree murder (§§ 187, subd. (a), 189) and found true that
1 All statutory references are to the Penal Code.
the murder was committed for the benefit of a criminal street
gang. (§ 186.22, subd. (b)(1)(C).) The trial court sentenced Ogura
to 25 years to life for the murder, plus 10 years for the gang
enhancement.
On appeal, we reduced Ogura’s conviction to second degree
murder pursuant to People v. Chiu (2014) 59 Cal.4th 159, reduced
the sentence to 15 years to life, and struck the gang enhancement
on the People’s concession that it was improperly imposed.
(People v. Ogura (Nov. 13, 2014, B239122) [nonpub. opn.].)
Section 1170.95 Petition
In April 2019, Ogura filed a petition for resentencing under
section 1170.95. He alleged he was convicted of murder under
the natural and probable consequences doctrine and could not
now be convicted of murder because of changes to sections 188
and 189.
The prosecution conceded that Ogura is entitled to relief
under section 1170.95. The only question was the target offense
for the purpose of resentencing. The “target offense” is the
intended offense from which the natural and probable
consequences arise. (People v. Medina (2009) 46 Cal.4th 913,
920.) The target offense was not charged at trial.
Ogura argued the target offense is simple battery. (§ 242.)
That is the only offense advanced by the prosecution at trial and
on which the jury was instructed.
The People argued the target offense is assault by means
likely to produce great bodily injury. (§ 245, subd. (a)(4).) That is
the offense justified by the facts of the case. The People pointed
out that Ogura joined Christopher Hernandez in hitting and
kicking the victim as he fell to the ground.
2.
The trial court found the target offense is assault by means
likely to produce great bodily injury. The court sentenced Ogura
to the upper term of four years.
DISCUSSION
Section 1170.95, subdivision (a) provides: “A person
convicted of felony murder or murder under a natural and
probable consequences theory may file a petition with the court
that sentenced the petitioner to have the petitioner’s murder
conviction vacated and to be resentenced on any remaining
counts when all of the following conditions apply: [¶] (1) A
complaint, information, or indictment was filed against the
petitioner that allowed the prosecution to proceed under a theory
of felony murder or murder under the natural and probable
consequences doctrine. [¶] (2) The petitioner was convicted of
first degree or second degree murder following a trial or accepted
a plea offer in lieu of a trial at which the petitioner could be
convicted for first degree or second degree murder. [¶] (3) The
petitioner could not be convicted of first or second degree murder
because of changes to Section 188 or 189 made effective January
1, 2019.”
The parties do not dispute that Ogura qualifies for relief
under subdivision (a) of section 1170.95. The only question is on
what offense or offenses may he be resentenced. Other than the
murder offense, there are no charged offenses remaining after
Ogura’s direct appeal. The target offense, battery, was not
charged.
Section 1170.95, subdivision (e) provides, in part, “If
petitioner is entitled to relief pursuant to this section, murder
was charged generically, and the target offense was not charged,
3.
the petitioner’s conviction shall be redesignated as the target
offense . . . for resentencing purposes.”
In People v. Howard (2020) 50 Cal.App.5th 727, a jury
convicted the defendant of felony murder. The uncharged target
offense was burglary. The jury was instructed on burglary, but
not the degree. The trial court found defendant was entitled to
relief under section 1170.95. The question on resentencing was
whether the defendant should be resentenced on first or second
degree burglary. The court resentenced on first degree burglary
because the burglary was of a residence. The Court of Appeal
affirmed because the evidence established beyond dispute that it
was first degree burglary. (Howard, at p. 738.) In affirming, the
court said, "[T]he Legislature intended to grant the trial court
flexibility when identifying the underlying felony for resentencing
under [section 1170.95,] subdivision (e).” (Id. at p. 739.)
The trial court’s flexibility in identifying the underlying
felony was recently confirmed in People v. Silva (2021) 72
Cal.App.5th 505. Silva was convicted of two counts of felony
murder resulting from a home invasion robbery committed with
four others. Originally, Silva was charged with two counts of
murder and six counts of robbery, one for each victim. Prior to
trial the prosecution amended the information to eliminate the
robbery charges and proceeded to trial only on the murder
charges. Silva petitioned for relief under section 1170.95. The
trial court vacated the murder convictions. The only question
was on what offenses could Silva be resentenced. The court
sentenced Silva on five counts of home invasion robbery in
concert (§ 231, subd. (a)(1)(A)), even though such counts had
never been charged. In affirming, the Court of Appeal said,
“Subdivision (e) of section 1170.95 appears to invest the superior
4.
court with considerable discretion in redesignating the
petitioner’s murder convictions as underlying felonies and
resentencing a petitioner to an appropriate term of years based
on his or her individual culpability. We believe the court may
consider the full extent of the petitioner’s criminal conduct.”
(Silva, at p. 532.)
Here Ogura’s individual culpability goes beyond simple
battery. He joined Hernandez in hitting and kicking the victim
as he fell to the ground. The trial court was well within its
discretion in choosing assault by means likely to produce great
bodily injury as the appropriate offense for resentencing.
Section 186.22
In our prior opinion (People v. Ogura, supra, B239122), we
struck the gang enhancement imposed under section 186.22,
subdivision (b)(1)(C) as improperly imposed with Ogura’s life
sentence for murder. (See People v. Lopez (2005) 34 Cal.4th 1002,
1011.) Now that Ogura’s murder conviction has been vacated,
the gang enhancement may be imposed on the remaining count.
(People v. Gonzales (2021) 65 Cal.App.5th 1167, 1174.)
Section 186.22, subdivision (b)(1) provides for sentence
enhancement for “a person who is convicted of a felony 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 criminal conduct by gang members . . . .”
Section 186.22, subdivision (f) defines a “criminal street
gang” as “an ongoing, organized 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 subdivision (e), having a common name or
common identifying sign or symbol, and whose members
5.
collectively engage in, or have engaged in, a pattern of criminal
gang activity.”
Section 186.22, subdivision (e)(1) provides, in part: “As
used in this chapter, “pattern of criminal gang activity” means
the commission of, attempted commission of, conspiracy to
commit, or solicitation of, sustained juvenile petition for, or
conviction of, two or more of the following offenses, provided at
least one of these offenses occurred after the effective date of this
chapter, and the last of those offenses occurred within three years
of the prior offense and within three years of the date the current
offense is alleged to have been committed, the offenses were
committed on separate occasions or by two or more members, the
offenses commonly benefited a criminal street gang, and the
common benefit of the offense is more than reputational: . . . .”
At trial, the prosecutor introduced evidence of two
predicate offenses committed by Bassett gang members listed in
section 186.22, subdivision (e), murder and attempted murder.
(Id., subd. (e)(1)(C).) But at the time section 186.22, subdivision
(e) did not require proof that the predicate offenses commonly
benefitted the gang nor that the common benefit is more than
reputational. Thus, the prosecutor offered no evidence on those
elements. Those elements were added effective January 1, 2022.
(§ 186.22, as amended by Stats. 2021, ch. 699, § 3.)
The Attorney General argues Ogura is not entitled to the
benefit of the changes to section 186.22 because Ogura’s case was
final before the changes became effective. (Citing In re Estrada
(1965) 63 Cal.2d 740.) The Attorney General argues the case
became final when the Supreme Court denied review of our prior
opinion.
6.
But the trial court has now vacated Ogura’s murder
conviction, the only offense of which he was convicted. Under the
circumstances, it cannot be said that the judgment is final.
Ogura is entitled to a new trial on the gang enhancement.
DISPOSITION
The judgment (order) is reversed for a new trial on section
186.22. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
PERREN, J.
7.
Juan Carlos Dominguez, Judge
Superior Court County of Los Angeles
______________________________
Susan K. Shaler, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Charles S. Lee and Stacy S. Schwartz, Deputy
Attorneys General, for Plaintiff and Respondent.
8.