Filed 3/25/22 P. v. Simmons CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B307747
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA464696)
v.
RON SIMMONS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Curtis B. Rappe, Judge. Judgment of
conviction affirmed and remanded with directions.
Michael S. Evans, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Noah P. Hill, Supervising Deputy
Attorney General, and Kathy S. Pomerantz, Deputy Attorney
General, for Plaintiff and Respondent.
INTRODUCTION
A jury convicted Ron Simmons on one count of actively
participating in a criminal street gang conspiracy, 10 counts of
first degree burglary, two counts of first degree robbery, two
counts of attempted first degree robbery, and one count each of
torture and mayhem in connection with one of the burglaries.
The jury also found true gang allegations on each of the burglary,
robbery, and attempted robbery counts. The trial court sentenced
Simmons to a determinate term of 46 years 4 months, and a
concurrent indeterminate term of 15 years to life.
Simmons contends substantial evidence did not support
most of his convictions or the true findings on the gang
allegations on the torture and mayhem convictions. Simmons
also contends the trial court erroneously imposed an additional
35 years of imprisonment. And Simmons contends the court
should have stayed execution of the sentence on his conviction for
actively participating in a criminal street gang conspiracy
(count 1). We agree with the last contention only and remand for
the trial court to correct this and another sentencing error.
Meanwhile, while this appeal was pending, the Legislature
enacted Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021,
ch. 731, § 1.3), which, among other changes to the sentencing
laws, requires that facts underlying any circumstance in
aggravation used to impose the upper term must have been
stipulated to by the defendant or have been found true beyond a
reasonable doubt. Simmons argues Senate Bill No. 567 applies
retroactively to his sentence and asks us to direct the trial court
to impose the middle term instead of the upper term on two of his
convictions. We agree Senate Bill No. 567 applies retroactively
2
and direct the trial court to resentence Simmons under this and
any other newly enacted ameliorative legislation that may apply.
FACTUAL AND PROCEDURAL BACKGROUND
A. Simmons Commits a String of Burglaries and
Robberies
Between October 2017 and October 2018 Simmons and
other members of the Six Deuce Brims criminal street gang
committed a series of burglaries in the San Gabriel Valley.
Because in four of the burglaries the occupant of the residence
was home, Simmons and his fellow gang members also
committed, or attempted to commit, robbery. In two of those four
robberies or attempted robberies, they brutally attacked the
victims.
Simmons and his confederates generally followed a
common plan. They convened at the Long Beach home of
Deondra Johnson, a member of the Six Deuce Brims gang, late in
the afternoon or early in the evening, and drove 15 to 20 miles to
a city in the San Gabriel Valley. After nightfall, without
knocking on the door they broke a glass door or window to get
into the house; ransacked the rooms and stole as much jewelry,
cash, and other transportable items as they could; usually left
within 10 minutes; and drove back to the Long Beach area before
dispersing. If people were home during the burglary, the gang
members intimidated, threatened, and sometimes beat them to
learn where they kept cash and other valuables. None of the
victims could identify the perpetrators.
3
B. Detectives Investigate and Conclude Simmons and
His Fellow Gang Members Committed the Crimes
Detective Andrew Yzabal monitored social media activity of
Six Deuce Brims gang members, analyzed the records of cell
phones associated with members of the gang, and found evidence
implicating Simmons in the burglaries and robberies. Based on
his analysis of cell phone records, Detective Yzabal concluded
that every time members of the Six Deuce Brims gang left their
neighborhood in south central Los Angeles and traveled to the
San Gabriel Valley, the open lines between the gang members
corresponded to crimes “happening close” to those areas of phone
activity. Call detail records showed that the phones of Simmons
and other Six Deuce Brims gang members traveled to each
targeted residence near the time of the burglary and
subsequently traveled back to the neighborhood of the gang or
one of its members. Video surveillance from two of the
burglarized homes and from the apartment of one of the gang
members provided further incriminating evidence.
C. A Grand Jury Indicts Simmons
A grand jury indicted Simmons on one count of actively
participating in a criminal street gang conspiracy and multiple
counts of burglary, robbery, and related crimes. The indictment
alleged Simmons committed most of the offenses 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. (Penal Code, § 186.22,
subd. (b).)1 The People proceeded to trial on the following
1 Undesignated statutory references are to the Penal Code.
4
charges: one count of actively participating in a criminal street
gang conspiracy (§ 182.5, count 1);2 11 counts of first degree
burglary of an inhabited dwelling house (§ 459, counts 4, 5, 6, 7,
9, 11, 13, 15, 17, 18, and 19);3 two counts of first degree
residential robbery (§ 211, counts 3 and 16); two counts of
attempted first degree residential robbery (§§ 211, 664, counts 8
and 12); elder abuse of one of the victims, Bong Rhee (§ 368,
subd. (b)(1), count 10); mayhem of another victim, Tran Truong
(§ 203, count 14); and torture of Truong (§ 206, count 20).4
D. The People Present Evidence of Simmons’s Guilt
The victims of the burglaries and robberies testified about
what they saw when the intruders entered their home or, if they
were not home, what they found when they returned. The mode
of entry was usually a smashed glass door or window in the back
2 The court renumbered the counts as they appeared in the
indictment for the jury.
3 For five of those counts, the indictment alleged a person
was present during the commission of the burglary. First degree
burglary is a violent felony under section 667.5,
subdivision (c)(21), “wherein it is charged and proved that
another person, other than an accomplice, was present in the
residence during the commission of the burglary.” (See People v.
Denard (2015) 242 Cal.App.4th 1012, 1025.)
4 The People did not proceed on count 2 (which involved the
burglary of Amy Ning’s residence). Instead, they introduced
evidence of that burglary under Evidence Code section 1101,
subdivision (b), to show identity, intent, or common plan. (See
People v. Erskine (2019) 7 Cal.5th 279, 295.)
5
of the house. The victims who were present when the burglaries
occurred described the perpetrators as two to three young men
who wore black clothing, black shoes, and a mask that revealed
only the black skin around the eyes underneath the mask. The
two victims who suffered physical injuries, Bong Rhee and Tran
Truong, also described how they were attacked.
Rhee, an 84-year-old man, testified that, after he went to
bed at 9:00 p.m. on August 24, 2018, he woke up to flashlights in
his room. Two men had entered his home, and one of them held a
steel crowbar. Both men proceeded to beat him with their hands.
Rhee fell to the ground, and the men continued to beat, kick, and
stomp on him. The two men ransacked his drawers and searched
his closets. At some point, Rhee lost consciousness.
Truong, a 59-year-old woman who was five feet one inch
tall, testified that on September 10, 2018, two men woke her up
from deep sleep sometime after 9:00 p.m. The men, who
appeared “thin and tall,” were completely covered in black. One
of them carried a yellow crowbar, approximately one to two feet
long. The man without the crowbar pulled her up from the bed,
pushed her to the ground, and asked, “Where is your money?”
Truong replied, “No, I don’t have any money.” When Truong
looked at the man, the man hit her in the eyes multiple times and
said, “You cannot look at me.” When Truong tried to open her
mouth to cry because she “was in so much pain,” the man hit her
mouth and said, “You cannot cry, you cannot cry.” The man
pinned her to the ground with one foot and repeatedly kicked her
and stomped on her with the other. Truong thought they were
going to beat her to death. The man then covered Truong’s face
with a blanket and hit her in the head. Meanwhile, the other
man started “striking everywhere” and searched the closets.
6
Before the men left, they pushed a chest of drawers onto Truong’s
back. The men took $3,000 in cash and jewelry. Truong suffered
a blood bruise to her head, impaired vision, and broken ribs. She
also lost seven or eight teeth.
In addition to the victims’ testimony, three gang experts
testified about the Six Deuce Brims’ culture of violence, the
modus operandi its members followed when committing
burglaries, the cell phone records that showed Simmons’s
proximity to each of the burglaries and robberies, and
surveillance video and social media posts that further established
Simmons participated in the crimes. Officer Dexter Navarro
testified that the Six Deuce Brims, or Harvard Park Brims, was a
criminal street gang named after its territory of 62nd Street and
Harvard Park and that the gang aligns with other Brims gangs
in the surrounding neighborhoods of south central Los Angeles.
He stated the primary activities of the gang are vandalism,
armed robberies, burglaries, carjackings, shootings, narcotic
sales, and murder. He explained a gang member earns respect
by “putting in work” or “doing licks,” which in “street vernacular”
meant “robbing or doing shootings.” He stated that when a
“young gangster” earns respect he can elevate his status and
become a leader of a crew to go out and commit other crimes and
that robberies and burglaries can earn a gang member respect.
Officer Navarro explained, “The more violent the act, . . . the
more respect you get.” Detective Allen Hsiao testified that
members of the Six Deuce Brims gang establish authority and
create an atmosphere of fear and intimidation that will make
potential victims and witnesses reluctant to report crimes
committed by members of the gang.
7
Officer Navarro also testified, based on more than two
dozen contacts with Simmons since 2016, Simmons’s tattoos, and
the people with whom Simmons associated, that Simmons was a
member of the Six Deuce Brims gang with a moniker of “Tiny E,”
which was short for Tiny Evil. A photograph on Simmons’s social
media account showed him holding out “a handful of money.”
The officer stated that this photograph benefits the gang because
it showed “success” and that it “entices” younger kids to join the
gang. The photograph also depicted a bottle of promethazine,
which the officer explained gang members usually obtained
through burglaries and sold for income. Officer Navarro testified
that Simmons drove a “higher-end gold Jaguar” and that driving
such a car benefits gang members because “it bolsters the
reputation with the hood, within their gang, their territory, [and]
their allies.” Officer Navarro said he commonly saw gang
members with “higher-end vehicles” and jewelry after someone in
the gang had been arrested for burglary. Officer Navarro added
that, even if a gang member who committed a burglary did not
end up stealing anything, such conduct still would benefit the
gang and enhance the gang member’s reputation because the
crime indicated the gang member was “willing to go . . . down” for
the gang and helped him gain the trust of fellow gang members.
The officer concluded that, hypothetically, if a Six Deuce Brims
gang member, accompanied by two or three fellow gang members,
drives to the San Gabriel Valley and commits a burglary, the
crime benefits the gang because the items taken can be converted
to cash, and the cash can be used to rent vehicles and purchase
firearms or narcotics, which gang members can sell to “further
fund their criminal activity.”
8
Officer Navarro further testified that, “when committing a
crime such as burglary, each gang member can assume different
roles,” such as the driver, the contact person who “verifies to see
if there is anybody home,” and the lookout. Then, the officer
explained, “once entry is made,” the gang can have “two or three
people in the house” to enable them to cover more ground and
steal more items. Officer Navarro stated gang members like to
commit crimes with other gang members because “they’re already
vetted,” which meant, if they get caught, “they know how not to
snitch or tell on each other.”
Detective Yzabal testified that, typically, four gang
members drive to the location of the burglary in a rental car with
tinted windows. The gang members keep an “open line” between
the lookout (who has a police scanner), the driver, and at least
one person inside the house. Gangs like the Six Deuce Brims
target people of Asian descent “because of the belief that many
Asians don’t believe in banks and keep large amounts of cash on
hand and typically have . . . large amounts of . . . expensive
jewelry.” Detective Yzabal also described the distinguishing
features of burglaries committed by the members of the Six
Deuce Brims: The burglaries occur at night, and the gang
members do not knock on the door to see if anyone is home before
they break in. The burglary crews also usually carry a crowbar,
as opposed to knives, screwdrivers, or other concealable tools that
other gangs like to use.
Detective Yzabal mapped the cell phone activity of
Simmons and his associates in the gang and concluded the
activity corresponded to the burglaries and robberies in this case.
The detective explained that, when a person makes a cell phone
call, the signal is sent to the strongest cell tower, which can
9
indicate the general location of the cell phone. Using maps and
diagrams, Detective Yzabal explained how Simmons’s phone
records showed that, in each instance, his phone and the phones
of his fellow gang members convened at Johnson’s apartment in
Long Beach, traveled to a city in the San Gabriel Valley,
remained in the vicinity of the targeted residence for the precise
amount of time of the burglary, and then travelled back to the
Long Beach area.
For example, on December 27, 2017 the call detail records
of Simmons’s phone showed that his phone and the phone of
Devin Garner, another member of the Six Deuce Brims gang,
established an open line from 5:11 p.m. to 5:27 p.m. Both phones
transmitted off the same cell tower approximately 0.2 miles away
from the residence of Tracy Luong, which was burglarized that
evening between 5:09 p.m. and 5:36 p.m.
On August 24, 2018 at approximately 7:00 p.m., the
telephones associated with Simmons, Johnson, and two other
gang members registered activity in Johnson’s neighborhood in
Long Beach. At 8:30 p.m. the signals transmitting from the four
cell phones indicated the phones had traveled together to the
area of Rhee’s house in Temple City. An open line between two of
the gang members’ phones at 9:12 p.m. corresponded to the time
of the 9:10 p.m. burglary that evening. Video surveillance of
Rhee’s residence showed an SUV parked in front of the residence
for the duration of the burglary and then sped off around the
time the phones ended the open line call.
And on September 10, 2018 call detail records of phones
associated with Simmons, Johnson, and another gang member
showed they all traveled together to the location of Truong’s
home (after having committed another burglary a few miles
10
away) and traveled back to the Long Beach area after the
burglary. An open line between the phones of two of the gang
members transmitted off the same cell tower less than a quarter
mile from Truong’s home and corresponded to the time of the
burglary. The call lasted 43 minutes, much longer than most of
the other open line calls, which was consistent with the extra
time it took for Truong’s assailant to beat and torture her.
To confirm the reliability of the call detail records, the
People introduced the call detail records of Simmons’s phone
related to an uncharged burglary. Detective Yzabal explained
that, on October 27, 2017, at approximately 5:15 p.m., the call
detail records of Simmons’s phone indicated his phone traveled
from an area in south central Los Angeles to an area near Amy
Ning’s house in Temple City. Simmons’s cell phone received a
call close to the time of the burglary at 7:10 p.m. that lasted
approximately 18 minutes, which matched the time of the
burglary, and the cell tower that transmitted the call was only
0.2 miles from Ning’s residence. After the burglary, at
approximately 7:30 p.m., the call detail records showed
Simmons’s phone traveled back to an area in south central
Los Angeles, where police arrested Simmons—two blocks from
where police found a safe Ning reported had been stolen. One of
the officers found two crowbars nearby and recovered $35,000 of
cash strewn across the street; Simmons had in his possession
$8,000, five rings, a Rolex watch, pendants, and earrings.
Surveillance video from one of the burglarized homes
showed an image of one of the intruders wearing shoes with
distinctive markings that were consistent with shoes Simmons
wore (as captured by surveillance video of Simmons walking
around Johnson’s apartment). A still image from a surveillance
11
video of another burglary showed three individuals, one of whom
(again) wore shoes that resembled the shoes Simmons wore at
Johnson’s apartment. Another still image showed an individual
who had facial features that resembled Simmons’s, including a
distinctive gap in the middle of his mustache. Finally, still
images from surveillance video of Johnson’s apartment shortly
after one of the burglaries showed Simmons carrying a box of
“miscellaneous items” into the apartment.
Simmons’s social media account provided further evidence
that pointed to his participation in at least one of the burglaries.
On September 25, 2018, shortly before 7:00 p.m., Simmons
received a message on his social media account: “Where you at?”
Simmons replied, “OMW to work,” which Detective Yzabal
explained stands for “On my way to work.” According to the
detective, gang members commonly refer to crimes they commit
as “work” because “they do it on such a regular basis and that’s
their main income that they depend on.” Less than two hours
after that social media message, call detail records indicated
Simmons and his fellow gang members burglarized the home of
Baoying Zhang.
E. The Jury Convicts Simmons, and the Trial Court
Sentences Him
The jury found Simmons guilty on the counts, except for
the burglary of one of the residences and elder abuse of Rhee
12
(counts 7 and 10). The jury also found true all the gang
allegations.
As we will discuss in more detail, the trial court sentenced
Simmons to an aggregate determinate prison term of 46 years
4 months and a concurrent indeterminate term of 15 years to life.
Simmons timely appealed.
DISCUSSION
Simmons argues substantial evidence did not support his
convictions for torture, mayhem, burglary, or robbery, or the true
findings on the gang allegations on his torture and mayhem
convictions. He also contends the trial court committed two
sentencing errors. We conclude that substantial evidence
supported the challenged convictions and true findings and that,
except for the sentence on the conviction for actively participating
in a criminal street gang conspiracy and one of the burglary
convictions, the trial court did not err in sentencing Simmons. In
supplemental briefing, Simmons argues Senate Bill No. 567,
which became effective January 1, 2022, applies to his sentence
and asks us to remand the matter and direct the trial court to
impose the middle term instead of the upper term on two of the
counts. We conclude Senate Bill No. 567 applies retroactively to
this case and direct the trial court to correct the sentencing errors
and to resentence Simmons.
A. Standard of Review
“‘When reviewing a challenge to the sufficiency of the
evidence, we ask “‘whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact
13
could have found the essential elements of the crime beyond a
reasonable doubt.’” [Citation.] Because the sufficiency of the
evidence is ultimately a legal question, we must examine the
record independently for “‘substantial evidence—that is, evidence
which is reasonable, credible, and of solid value’” that would
support a finding beyond a reasonable doubt.’ [Citation.] In
doing so, we ‘view the evidence in the light most favorable to the
jury verdict and presume the existence of every fact that the jury
could reasonably have deduced from that evidence.’ [Citation.]
‘We must also “accept logical inferences that the jury might have
drawn from the circumstantial evidence.”’ [Citation.] We do not
question the credibility of a witness’s testimony, so long as it is
‘not inherently improbable,’ nor do we reconsider the weight to be
given any particular item of evidence.” (People v. Navarro (2021)
12 Cal.5th 285, 302.) “‘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. Penunuri (2018) 5 Cal.5th 126, 142; see
People v. Ware (2020) 52 Cal.App.5th 919, 937, review granted
Dec. 9, 2020, S263923.)
B. Substantial Evidence Supported Simmons’s
Conviction for Torture
1. The Perpetrator Had the Specific Intent To
Commit Torture
Section 206 provides: “Every person who, with the intent
to cause cruel or extreme pain and suffering for the purpose of
revenge, extortion, persuasion, or for any sadistic purpose,
inflicts great bodily injury as defined in Section 12022.7 upon the
14
person of another, is guilty of torture.”5 (See People v. Pearson
(2012) 53 Cal.4th 306, 325; People v. Odom (2016)
244 Cal.App.4th 237, 246; People v. Pre (2004) 117 Cal.App.4th
413, 419.) The crime of torture has two elements: “‘(1) [A] person
inflicted great bodily injury upon the person of another, and
(2) the person inflicting the injury did so with specific intent to
cause cruel and extreme pain and suffering for the purpose of
revenge, extortion, persuasion, or for any sadistic purpose.’”6
(People v. Flores (2016) 2 Cal.App.5th 855, 871.)
Simmons does not challenge the jury’s finding on the first
element, that the perpetrator inflicted great bodily injury on
Truong. Nor does he challenge the jury’s finding on the first part
of the second element, that the perpetrator inflicted injury with
the specific intent to cause cruel and extreme pain and suffering.
He argues the evidence “did not show that the perpetrator had
the necessary specific intent to commit torture upon the victim”
because there was no evidence the perpetrator “had a motive or
reason to seek revenge,” tried “to persuade the victim . . . or
extort money or property from her,” or had “a sadistic purpose.”
The evidence amply supported the jury’s finding. “Intent is
rarely susceptible of direct proof and usually must be inferred
from the facts and circumstances surrounding the offense.”
(People v. Pre, supra, 117 Cal.App.4th at p. 420; see People v.
Flores, supra, 2 Cal.App.5th at p. 871; People v. Odom, supra,
5 Section 12022.7, subdivision (f), defines great bodily injury
as “a significant or substantial physical injury.”
6 Sadistic purpose means “‘the infliction of pain on another
person for the purpose of experiencing pleasure.’” (People v.
Smith (2015) 61 Cal.4th 18, 53.)
15
244 Cal.App.4th at pp. 246-247.) Here, the gang member who
attacked Truong hit her in the face with enough force to knock
out at least seven of her teeth, kicked her hard enough to crack
her ribs, stomped on her, covered her with a blanket and hit her
in the head with sufficient force to cause a blood bruise, and for
good measure put a heavy chest of drawers on her back to make
sure she could not move when the gang members left. A
reasonable jury could conclude from this evidence that the only
purpose for these repeated blows, inflicted in different ways, was
to satisfy the perpetrator’s perverse desire to see Truong suffer.
(See People v. Massie (2006) 142 Cal.App.4th 365, 373, 375-376
[“a reasonable jury could have concluded that the gratuitous and
repeated acts of extreme brutality,” including the use of different
methods of inflicting pain, “were committed for the sadistic
purpose of providing defendant pleasure”]; People v. Misa (2006)
140 Cal.App.4th 837, 843 [the level of violence, the nature of the
victim’s injuries, and the manner in which the defendant inflicted
them, and the defendant’s “callous indifference” to the victim’s
need for medical intervention, provided sufficient evidence the
defendant acted with “‘the cold-blooded intent to inflict pain for
personal gain or satisfaction’”].) That Truong’s assailant
preceded each punch with a warning not to do something that
was beyond her control, such as crying out in pain or looking at
him as he stood in front of her, reinforced the sadistic nature of
the beating. (See People v. Healy (1993) 14 Cal.App.4th 1137,
1142 [under section 206, “the trial court could reasonably have
found that [the defendant] derived a perverse pleasure from
beating [the victim],” who “did nothing to provoke the beatings,
and testified [the defendant] would ‘seem content’ after he kicked
or hit her”].)
16
Moreover, the bulk of the attack occurred after Truong had
told the gang members she did not have any money in the house.
The jury reasonably could have inferred the perpetrator
continued to beat up Truong to persuade her to disclose the
location of money or items to steal or to punish her for not
revealing where she kept her money. (See People v. Flores, supra,
2 Cal.App.5th at p. 872 [“there was evidence from which a jury
could have inferred [the defendants] inflicted great bodily injury
on the victims with the intent to cause cruel and extreme pain
and suffering for the purpose of persuasion”]; People v. Massie,
supra, 142 Cal.App.4th at p. 375 [sequence of events supported a
reasonable inference that the defendant “intentionally inflicted
cruel and extreme pain in an effort to persuade [the victim] to
relent and submit to rape”].)
Simmons argues “there was no evidence of a sadistic
purpose” because “the force used during the assault was
undertaken to subdue and instill fear in the victim to commit the
robbery.” The record does not support Simmons’s argument. As
discussed, Truong complied with all of the perpetrator’s demands,
and even after he had pinned her to the ground with his foot, he
continued to beat her. Truong never resisted or posed a physical
threat to her assailant or his crowbar-wielding confederate.
2. Torture Was a Natural and Probable
Consequence of the Target Crimes
Simmons next argues the “evidence presented at trial was
not sufficient to show the torture was a natural and probable
consequence of the residential robbery and burglary that occurred
in the Truong residence.” Again, substantial evidence supported
the jury’s finding.
17
“‘[A] defendant may be held criminally responsible as an
accomplice not only for the crime he or she intended to aid and
abet (the target crime), but also for any other crime [nontarget
crime] that is the “natural and probable consequence” of the
target crime.’ [Citation.] To find an aider and abettor guilty of a
nontarget crime under the natural and probable consequences
theory, the jury must find that the defendant aided and abetted
the target crime, that a coparticipant in the target crime also
committed a nontarget crime, and that this nontarget crime was
a natural and probable consequence of the target crime the
defendant aided and abetted.” (People v. Hardy (2018) 5 Cal.5th
56, 92; see People v. Flores, supra, 2 Cal.App.5th at pp. 866-867.)
“‘A nontarget offense is a “‘natural and probable
consequence’” of the target offense if, judged objectively, the
additional offense was reasonably foreseeable. [Citation.] The
inquiry does not depend on whether the aider and abettor
actually foresaw the nontarget offense. [Citation.] Rather,
liability “‘is measured by whether a reasonable person in the
defendant’s position would have or should have known that the
charged offense was a reasonably foreseeable consequence of the
act aided and abetted.’” [Citation.] Reasonable foreseeability “is
a factual issue to be resolved by the jury.”’” (People v. Smith
(2014) 60 Cal.4th 603, 611; see People v. Flores, supra,
2 Cal.App.5th at pp. 867-868; People v. Weddington (2016)
246 Cal.App.4th 468, 486-487.) “‘[T]o be reasonably foreseeable
“[t]he consequence need not have been a strong probability; a
possible consequence which might reasonably have been
contemplated is enough.”’” (People v. Medina (2009) 46 Cal.4th
913, 920; see People v. Abelino (2021) 62 Cal.App.5th 563, 581.)
18
Substantial evidence supported the jury’s finding Simmons
reasonably should have contemplated that torture was a possible
consequence of the planned burglary and robbery. According to
Officer Navarro, the methodology of Six Deuce Brims gang
members when committing a burglary included forcibly entering
a residence at night without knocking, just as the gang members
who burglarized Truong’s residence did. The perpetrators also
covered themselves completely in black, indicating they
anticipated Truong would see them once they broke into her
house, and carried a long crowbar to strike anyone or anything in
their way. (See People v. Nguyen (1993) 21 Cal.App.4th 518,
532-533 [“‘When robbers enter the home, the scene is all too often
set for other and more dreadful crimes. . . . In the home, the
victims are particularly weak and vulnerable and the robber is
correspondingly secure. The result is all too often the infliction of
other crimes on the helpless victim.’”].)7
Moreover, members like Simmons of a criminal street gang
like the Six Deuce Brims should expect additional violence may
occur, as happened during the burglary of Rhee’s house three
weeks prior to the burglary of Truong’s house. (Cf. People v.
Weddington, supra, 246 Cal.App.4th at p. 488 [“[g]iven [the
7 That the perpetrator did not actually use the crowbar to hit
Truong does not mean the jury could not consider it, along with
the other circumstances of the crime, to find Simmons should
have anticipated additional crimes of violence might occur. (See
People v. Ayala (2010) 181 Cal.App.4th 1440, 1451-1452 [where
gang members brought a baseball bat to attack rival gang
members, the “fact that the baseball bat was never actually used
in the confrontation does not change the analysis” that the
defendant was “properly found liable for the homicide as a
natural and probable consequence of the planned gang assault”].)
19
defendants’] flight from police after [a previous] attempted
burglary . . . it was certainly predictable that [the accomplice]
would again attempt to evade police after the [later] burglary”].)
Indeed, because the call detail records indicated Simmons
participated in the Rhee burglary, the jury reasonably could have
inferred Simmons either personally assaulted Rhee, witnessed
the assault, or heard about it. And, as Officer Navarro explained,
the perpetrators had every reason to brag about the additional
crimes they committed inside Rhee’s home to earn respect within
the gang. Simmons, at a minimum, would have known all that.
Without citing any authority, Simmons argues that,
“[w]ithout previous knowledge that anyone would be inside the
residence, it is not reasonably foreseeable that the perpetrator
would assault someone and/or inflict injuries upon her during the
commission of the burglary.” Simmons’s argument mistakenly
assumes the People had to prove he had actual knowledge
Truong would be home. The People only had to prove a person in
Simmons’s position should have foreseen the possibility that,
after 9:00 p.m., Truong would be home and that the gang’s
penchant for violence might lead to conduct amounting to torture.
(See People v. Nguyen, supra, 21 Cal.App.4th at p. 530 [“For a
criminal act to be ‘reasonably foreseeable’ or a ‘natural and
probable’ consequence of another criminal design it is not
necessary that the collateral act be specifically planned or agreed
upon, nor even that it be substantially certain to result from the
commission of the planned act.”].) The Six Deuce Brims’ plan and
method of burglary—nighttime entry, use of a crowbar, and
taking as much cash and jewelry in a short span of time in the
presence of the homeowner—indicated the very real possibility of
additional crimes of violence.
20
C. Substantial Evidence Supported Simmons’s
Conviction for Mayhem
Section 203 provides: “Every person who unlawfully and
maliciously deprives a human being of a member of his body, or
disables, disfigures, or renders it useless, or cuts or disables the
tongue, or puts out an eye, or slits the nose, ear, or lip, is guilty of
mayhem.” (See People v. Abelino, supra, 62 Cal.App.5th at
p. 581.)
Simmons does not challenge the jury’s finding that one of
the gang members who attacked Truong committed mayhem by,
among other things, breaking her ribs, knocking out her teeth,
and damaging her vision. He argues only the “evidence
presented at trial was not sufficient to show the mayhem was a
natural and probable consequence of the residential robbery and
burglary that occurred in the [Truong] residence.”
Mayhem, however, was a natural and probable
consequence of the burglary and attempted robbery of Truong for
the same reason torture was. Simmons and his colleagues chose
a time when they would likely encounter Truong in her home and
woke her up in bed to attack her and try to beat out of her where
she kept cash at home. The gang members brought with them a
yellow crowbar, which was available not only to break into the
home and break things in the house, but to inflict disabling,
disfiguring, and crippling injuries on any uncooperative
occupants (or even cooperative ones). And the Six Deuce Brims’
culture of violence, as well as the myriad of ways violence
benefitted the gang, leaves little doubt a person in Simmons’s
position should have anticipated the gang members who broke
into the residence to steal things would also commit other crimes,
including mayhem. (Cf. People v. Manibusan (2013) 58 Cal.4th
21
40, 91 [“a juror reasonably could have found that aggravated
mayhem was a natural and probable consequence of either the
robbery [the defendants] attempted to perpetrate . . . or their
purpose to shoot someone for sadistic pleasure”]; People v.
Fagalilo (1981) 123 Cal.App.3d 524, 532 [jury reasonably could
have inferred the natural and probable consequence of a robbery
was assault by means of force likely to produce great bodily
injury because the defendants would need to resist to avoid
capture].)
D. Substantial Evidence Supported the Jury’s Finding
Simmons Aided and Abetted the Residential
Robberies and Burglaries
Section 31 provides: “All persons concerned in the
commission of a crime, . . . whether they directly commit the act
constituting the offense, or aid and abet in its commission, or, not
being present, have advised and encouraged its commission, . . .
are principals in any crime so committed.” (See People v. Smith,
supra, 60 Cal.4th at p. 611.) “‘[A] person aids and abets the
commission of a crime when he or she, acting with (1) knowledge
of the unlawful purpose of the perpetrator; and (2) the intent or
purpose of committing, encouraging, or facilitating the
commission of the offense; (3) by act or advice aids, promotes,
encourages, or instigates, the commission of the crime.’”
(People v. Johnson (2016) 62 Cal.4th 600, 630; accord, People v.
Mullins (2018) 19 Cal.App.5th 594, 606.) “‘[A] person who aids
and abets the commission of a crime is a “principal” in the crime,
22
and thus shares the guilt of the actual perpetrator.’” (Smith, at
p. 611; accord, People v. Koenig (2020) 58 Cal.App.5th 771, 799.)
“‘The “act” required for aiding and abetting liability need
not be a substantial factor in the offense.’” (People v. Franzen
(2012) 210 Cal.App.4th 1193, 1216.) “‘Whether a person has
aided and abetted in the commission of a crime ordinarily is a
question of fact.’” (People v. Nguyen (2015) 61 Cal.4th 1015,
1054; see People v. Frandsen (2019) 33 Cal.App.5th 1126,
1147-1148.) “‘Among the factors which may be considered in
making the determination of aiding and abetting are: presence at
the scene of the crime, companionship, and conduct before and
after the offense’” (Nguyen, at p. 1054; see People v. Johnson
(2019) 32 Cal.App.5th 26, 60), including flight (People v. Lara
(2017) 9 Cal.App.5th 296, 322). “‘Evidence of a defendant’s state
of mind is almost inevitably circumstantial, but circumstantial
evidence is as sufficient as direct evidence to support a
conviction.’” (Nguyen, at p. 1055.)
Substantial evidence supported the jury’s finding that, even
if Simmons did not step inside any of the targeted residences, he
knew of his fellow gang members’ unlawful purpose, intended to
assist them in their enterprise, and aided them in committing
each burglary and robbery. Detective Yzabal’s description of his
investigation of the crime spree by Six Deuce Brims gang
members from 2017 to 2018 provided substantial evidence from
which the jury could reasonably infer Simmons’s culpability.
Records of two cell phones associated with Simmons showed that
the user of the phones traveled with Six Deuce Brims gang
members (or at least with people using their phones) from
Johnson’s apartment in Long Beach to the San Gabriel Valley,
stayed in the vicinity of the residence burglarized (and at times
23
established an open line with the phone of another gang member
during the commission of the burglary), then traveled back to
south or south central Los Angeles right before the police or
homeowner arrived on the scene. The jury easily and reasonably
could have concluded Simmons was the person who used those
cell phones and traveled along the routes at the times mapped by
Detective Yzabal.8 The jury also reasonably could have inferred
that, at a minimum, Simmons accompanied the perpetrators on
each of the trips to the targeted residences and participated in
the crimes as a driver, lookout, or general assistant. (See
People v. Mullins, supra, 19 Cal.App.5th at p. 606 [even though
the defendant “was not the person who provided force” to
accomplish the robbery, “he was there to intimidate the
victims . . . and thereby deprive them of their property”]; People v.
Lara, supra, 9 Cal.App.5th at p. 322 [presence at the scene,
companionship, and flight can support a finding the defendant
aided and abetted a crime]; People v. Franzen, supra,
210 Cal.App.4th at p. 1216 [“‘“‘[l]iability attaches to anyone
“concerned,” however slight such concern may be, for the law
establishes no degree of concern required to fix liability as a
principal’”’”]; People v. Swanson-Birabent (2003) 114 Cal.App.4th
8 The People provided extensive evidence the phones
belonged to Simmons and his fellow gang members. In his social
media postings, which included photographs of Simmons and
identification of his gang moniker, Simmons gave the numbers
associated with the cell phones to individuals who asked for his
phone number. Surveillance video of Johnson’s apartment
showed Simmons making a call on a cell phone, and the cell
phone registered activity at the exact time and location where
Simmons made the call.
24
733, 743-744 [lookouts, getaway drivers, and persons present to
divert suspicion are principals].)
Still images from surveillance videos of some of the
targeted residences provided further incriminating evidence.
Images from two different burglaries depicted a man who had
facial features resembling Simmons’s and who wore shoes similar
to shoes Simmons had worn in the past. An image from
surveillance video of Johnson’s apartment depicted Simmons
carrying a box filled with assorted items walking toward the
apartment shortly after one of the burglaries. Simmons’s
suggestion, that perhaps he was along for the ride of the gang’s
crime spree as an innocent bystander, is highly implausible. As
Officer Navarro testified, gang members like to commit crimes
with other gang members because they know they will not snitch
on each other.
Finally, police arrested Simmons shortly after the burglary
of Ning’s residence and found him near Ning’s safe and in
possession of an unusual amount of cash and jewelry. Those
facts, along with the cell phone records placing him in the vicinity
of Ning’s home at the time of the burglary, proved his
participation in that uncharged crime. (See People v. Grimes
(2016) 1 Cal.5th 698, 731 [“We have recognized that ‘[p]ossession
of recently stolen property is so incriminating that to warrant
conviction there need only be, in addition to possession, slight
corroboration in the form of statements or conduct of the
defendant tending to show his guilt.’”].) The jury reasonably
found Simmons aided and abetted the burglaries and robberies of
the other victims in this case. (See People v. Chhoun (2021)
11 Cal.5th 1, 27 [“‘“‘We have long recognized “that if a person acts
similarly in similar situations, he probably harbors the same
25
intent in each instance” . . . . [T]he inference to be drawn is that,
in light of the first event, the actor, at the time of the second
event, must have had the intent attributed to him by the
prosecution.’”’”]; People v. Johnson (2013) 221 Cal.App.4th 623,
635-636 [evidence of prior home invasion robbery involving the
same modus operandi as the charged crime “was highly probative
evidence”].)
Simmons argues that there was “no evidence presented
that [he] was inside any of the residences, stole any jewelry or
money inside the residences, or was the driver of any of the
vehicles used to commit these crimes” and that, “[a]t most, the
evidence showed [he] was merely present near the residences
which were burglarized.” Physical presence at the precise scene
of the crime, however, is not required for aiding and abetting
liability. (See People v. Beeman (1984) 35 Cal.3d 547, 554-555
[“The term ‘aider and abettor’ is now often used to refer to
principals other than the perpetrator, whether or not they are
present at the commission of the offense.”]; People v. Pelayo
(1999) 69 Cal.App.4th 115, 121 [“A person can be convicted of an
offense even if he is not in the room when the crime occurs.”].) In
addition, the evidence showed Simmons’s presence near each
crime scene was more than a coincidence. The burglars, wearing
all black and armed with a crowbar, followed essentially the
same plan every time. The jury reasonably could have inferred
that Simmons knew the purpose and goal of the plan and that,
based on his social media posts, he planned and carried out the
“work” of aiding and abetting the burglaries and robberies in this
case. (See People v. Johnson, supra, 32 Cal.App.5th at p. 57
[“‘The focus of the substantial evidence test is on the whole record
of evidence presented to the trier of fact, rather than on “‘isolated
26
bits of evidence.’”’”]; People v. Weddington, supra,
246 Cal.App.4th at p. 481 [same].)
E. Substantial Evidence Supported the Jury’s True
Finding on the Gang Allegation on the Torture and
Mayhem Convictions
Simmons asserts substantial evidence did not support the
jury’s finding he intended to assist, further, or promote criminal
conduct by gang members because the “evidence presented at
trial showed the crimes of mayhem and torture were not
committed to assist, further or promote the Six Deuce Brim
gang.” The record refutes this assertion.
Section 186.22, subdivision (b)(1), provides for additional or
alternate punishment for “any person who is convicted of a felony
committed for the benefit of, at the direction of, or in association
with any criminal street gang, with the specific intent to promote,
further, or assist in any criminal conduct by gang members.”9
(See People v. Vargas (2020) 9 Cal.5th 793, 821; People v. Albillar
(2010) 51 Cal.4th 47, 54.) “There are two prongs to the gang
enhancement under section 186.22, subdivision (b)(1), both of
which must be established by the evidence. [Citation.] The first
prong requires proof that the underlying felony was ‘gang
9 Effective January 1, 2022 the Legislature amended section
186.22 “to require proof of additional elements to establish a gang
enhancement.” (People v. Lopez (2021) 73 Cal.App.5th 327, 343;
see Stats. 2021, ch. 699, § 3 (Assem. Bill No. 333).) We quote the
version of section 186.22, subdivision (b)(1), in effect at the time
of Simmons’s trial and sentencing for purposes of addressing
Simmons’s argument substantial evidence did not support the
jury’s finding under this version of the statute.
27
related,’ that is, the defendant committed the charged offense ‘for
the benefit of, at the direction of, or in association with any
criminal street gang.’ [Citations.] The second prong ‘requires
that a defendant commit the gang-related felony “with the
specific intent to promote, further, or assist in any criminal
conduct by gang members.”’” (People v. Franklin (2016)
248 Cal.App.4th 938, 948; see Vargas, at p. 821; People v. Rivera
(2019) 7 Cal.5th 306, 331; People v. Gonzalez (2021)
59 Cal.App.5th 643, 648.)
“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.” (People v. Albillar, supra, 51 Cal.4th at pp. 59-60; see
People v. Rivera, supra, 7 Cal.5th at p. 331; People v. Franklin,
supra, 248 Cal.App.4th at p. 947.) “As with all sufficiency claims,
‘“[w]e presume every fact in support of the judgment”’ that can be
‘“reasonably deduced from the evidence.”’” (People v. Vargas,
supra, 9 Cal.5th at p. 822; see Rivera, at p. 331.)
Substantial evidence supported the jury’s finding on the
first prong of the gang enhancement statute, that Simmons aided
and abetted torture and mayhem for the benefit of the gang. As
discussed, torture involves cruel or extreme pain and suffering
(see § 206), and mayhem involves disfiguring or disabling injuries
(see § 203). Both are crimes of violence. (See People v. Chatman
(2006) 38 Cal.4th 344, 393 [“‘it is the continuum of sadistic
violence that constitutes the torture’”]; People v. Reed (1984)
157 Cal.App.3d 489, 492 [mayhem is “a crime involving
28
destructive violence toward another”].) Detective Hsiao testified
the Six Deuce Brims gang created an atmosphere of fear and
intimidation to discourage potential victims and witnesses from
reporting crimes committed by the gang. Officer Navarro
described the importance to the gang of committing violent
crimes. The jury reasonably could have inferred that committing
torture and mayhem contributed to the fear and intimidation the
gang sought to create, which in turn enabled the members to
commit further crimes with impunity. (See People v. Pettie (2017)
16 Cal.App.5th 23, 51 [gang expert’s testimony that, “when the
gang commits an act of violence, the enhanced reputation for
violence ‘speaks loudly’ to members of the community,” supported
the finding of benefit to the gang]; People v. Vazquez (2009)
178 Cal.App.4th 347, 354 [violent crimes “elevate the status of
the gang within gang culture and intimidate neighborhood
residents who are, as a result, ‘fearful to come forward,’” and this
“intimidation, obviously, makes it easier for the gang to continue
committing the crimes for which it is known”].)
Substantial evidence also supported a finding Simmons
committed torture and mayhem in association with his fellow
gang members. Simmons does not dispute he and his
confederates were members of the Six Deuce Brims criminal
street gang. As discussed, the call detail records of Simmons’s
phone placed the user of the phone at times and locations
consistent with him traveling to, remaining at, and leaving the
Truong burglary site with the other members of the gang.
(See People v. Weddington, supra, 246 Cal.App.4th at p. 484 [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
29
to the gang’”]; People v. Morales (2003) 112 Cal.App.4th 1176,
1198 [“the jury could reasonably infer the requisite association
from the very fact that defendant committed the charged crimes
in association with fellow gang members”].)
Substantial evidence also supported the jury’s finding on
the second prong of section 186.22, subdivision (b)(1). Contrary
to Simmons’s assertion the prosecutor had to prove Simmons
intended to assist, further, or promote the “primary activities” of
the Six Deuce Brims, “‘specific intent to benefit the gang is not
required.’” (People v. Leon (2008) 161 Cal.App.4th 149, 162; see
People v. Thompkins (2020) 50 Cal.App.5th 365, 403.) What is
required is that the prosecutor proved the defendant “specifically
intended to ‘“promote, further or assist in any criminal conduct
by gang members.”’” (Thompkins, at p. 403; see Leon, at p. 162.)
The evidence here was that the perpetrator tortured Truong and
inflicted disfiguring and disabling injuries in part to force her to
say where she hid her money, which furthered the “criminal
conduct” of the burglary and robbery. A reasonable jury could
have inferred that, in aiding and abetting the burglary and
robbery, Simmons specifically intended his fellow gang members
to take any action necessary, including committing further crimes
of violence, to accomplish their criminal objectives. (See
Thompkins, at p. 403 [“[s]pecific intent ‘“is rarely susceptible of
direct proof and usually must be inferred from the facts and
circumstances surrounding the offense”’”]; People v. Miranda
(2011) 192 Cal.App.4th 398, 411 [“‘we routinely draw inferences
about intent from the predictable results of action’”].) In
addition, as discussed, because substantial evidence supported
the jury’s finding Simmons aided and abetted the commission of
torture and mayhem by other members of the Six Deuce Brims
30
gang, “the jury may fairly infer that [he] had the specific intent to
promote, further, or assist criminal conduct by those gang
members.” (People v. Albillar, supra, 51 Cal.4th at p. 68; see
People v. Weddington, supra, 246 Cal.App.4th at p. 485.)
F. The Trial Court Erred in Failing To Stay Execution of
the Sentence on Simmons’s Conviction for Actively
Participating in a Criminal Street Gang Conspiracy
Simmons contends that, because the charge of actively
participating in a criminal street gang conspiracy (count 1) “has
the same objectives as the underlying crimes charged,” the trial
court should have stayed his sentence on count 1 under
section 654. Simmons is correct.
Section 182.5 provides that “any person who actively
participates in any criminal street gang, . . . with knowledge that
its members engage in or have engaged in a pattern of criminal
gang activity, . . . and who willfully promotes, furthers, assists, or
benefits from any felonious criminal conduct by members of that
gang is guilty of conspiracy to commit that felony and may be
punished as specified in subdivision (a) of Section 182.” (See
People v. Johnson (2013) 57 Cal.4th 250, 261; People v. Abbate
(2020) 58 Cal.App.5th 100, 107-108.) The “intended effect of the
measure” enacted by the voters in 2000 as part of Proposition 21,
Gang Violence and Juvenile Prevention Act of 1998 (People v.
Arroyo (2016) 62 Cal.4th 589, 592), “was to expand the law [on
conspiracy] to encompass gang-related activities more broadly.”
(Johnson, at p. 261; see Abbate, at p. 108.)
31
“‘Because of the prohibition against multiple punishment in
section 654, a defendant may not be sentenced “for conspiracy to
commit several crimes and for each of those crimes where the
conspiracy had no objective apart from those crimes. If, however,
a conspiracy had an objective apart from an offense for which the
defendant is punished, he may properly be sentenced for the
conspiracy as well as for that offense.” [Citations.] Thus,
punishment for both conspiracy and the underlying substantive
offense has been held impermissible when the conspiracy
contemplated only the act performed in the substantive offense
[citations], or when the substantive offenses are the means by
which the conspiracy is carried out [citation].’ [Citation.] On the
other hand, ‘[p]unishment for both conspiracy and substantive
offenses has been upheld when the conspiracy has broader or
different objectives from the specific substantive offenses.’”
(People v. Beman (2019) 32 Cal.App.5th 442, 446-447; see
People v. Vargas (2001) 91 Cal.App.4th 506, 570-571.)
“‘In the absence of any reference to . . . section 654 during
sentencing, the fact that the court did not stay the sentence on
any count is generally deemed to reflect an implicit
determination that each crime had a separate objective.’” (In re
Raymundo M. (2020) 52 Cal.App.5th 78, 94.) “Intent and
objective are factual questions for the trial court, which must find
evidence to support the existence of a separate intent and
objective for each sentenced offense.” (People v. Jackson (2016)
1 Cal.5th 269, 354.) “A trial court’s express or implied
determination that two crimes were separate, involving separate
objectives, must be upheld on appeal if supported by substantial
evidence.” (People v. Brents (2012) 53 Cal.4th 599, 618; see
Raymundo M., at p. 94.)
32
The People presented evidence of 11 charged and one
uncharged burglaries, two robberies, two attempted robberies,
and one count each of elder abuse, torture, and mayhem.10 As
discussed, except for the elder abuse and one of the burglary
counts, the jury found Simmons guilty on all counts, and the
court imposed a sentence on each conviction. These crimes were
the extent of the conspiracy under section 182.5.11 Thus,
substantial evidence did not support the trial court’s implied
finding to the contrary, and the court should have stayed
execution of the sentence on count 1. (See In re Cruz (1966)
64 Cal.2d 178, 181 [trial court violated section 654 where “it [did]
not appear that the conspiracy had any objective apart from the
grand thefts for which petitioner was sentenced to prison”];
People v. Briones (2008) 167 Cal.App.4th 524, 529 [trial court
should have stayed execution of the sentence on a conspiracy
conviction because “[s]ection 654 prohibits multiple punishment
for both the conspiracy and the substantive offenses that were its
object”]; People v. Ramirez (1987) 189 Cal.App.3d 603, 617
[because “the evidence necessarily shows an agreement to commit
sex offenses as well as murder, . . . punishment for both the sex
offenses and the conspiracy violated the prohibition of section 654
just as would punishment for both conspiracy and attempted
murder” (fn. omitted)].)
10 As we will discuss, the indictment did not allege the gang
conspiracy included elder abuse, torture, or mayhem.
11 The jury could not use evidence of the Ning burglary to find
the conspiracy had a broader objective than the substantive
crimes the jury found Simmons committed because the jury
instructions, in particular CALCRIM No. 375, limited the jury’s
33
The People argue the gang conspiracy encompassed
broader objectives than the substantive crimes the jury convicted
Simmons of committing. For example, the People point out that,
while the “gang conspiracy charged in count 1 of the indictment
included 69 overt acts,” Simmons “was not convicted of any
crimes involving the break[-]in at the home of Robert Bigleman”
and “was acquitted of the charges committed against Fuyang
Gao.” The People’s argument proves the opposite. Although the
indictment alleged 69 overt acts, the jury did not hear evidence of
any acts other than those related to the burglary and robbery
counts in this case. As for the Gao burglary, the jury’s not guilty
verdict on that count confirms the conspiracy did not extend
beyond the crimes the jury found Simmons committed. (Compare
People v. Beman, supra, 32 Cal.App.5th at pp. 445, 448
[section 654 did not bar punishment for both conspiracy to
commit human trafficking and two counts of the substantive
offenses of human trafficking where “the objectives of defendant’s
conspiracy with his codefendants to commit human trafficking
went far beyond the specific conduct for which defendant was
convicted in” those two counts]; People v. Vargas, supra,
91 Cal.App.4th at p. 571 [“there is strong evidence that the
[gang], of which defendant was a member, conspired to kill not
only [the victim], but other persons as well, in addition to the
gang’s overriding conspiracy”].)
consideration of that evidence to determine identity, intent, or
common plan and precluded the jury from considering that
evidence for any other purpose. (See In re Romano (1966)
64 Cal.2d 826, 828-829.)
34
G. The Court Did Not Improperly Add 35 Years to
Simmons’s Sentence
Simmons agues the trial court improperly added 35 “extra
years” to his sentence by ordering the determinate sentences to
run “consecutive to the sentence imposed in Count 20[,] thereby
increasing the sentence that should have been imposed.” But
that’s not what happened.
1. Relevant Proceedings
The trial court imposed the following sentences: on count 1
(actively participating in a criminal street gang conspiracy), a
term of six years; on counts 3 and 4 (first degree robbery and
burglary of Tracy Luong), a term of 16 years for the burglary and
a (stayed) term of four years eight months for the robbery;12 on
count 5 (burglary of Therina Lin), a term of three years, stayed
under section 654;13 on count 6 (burglary of Yapei Xiong), a term
of three years; on counts 8 and 9 (attempted residential robbery
and burglary of Rhee), a term of four years eight months for the
burglary and a (stayed) term of two years four months for the
12 On count 3, the court initially sentenced Simmons to one
year four months, plus three years four months for the gang
enhancement. Nine days later, the court modified the sentence
on that count. The court explained the sentence on count 3
should have been the full term and imposed the upper term of six
years, plus 10 years under section 186.22, subdivision (b)(1)(C).
13 The court should not have stayed execution of this term. It
appears the court incorrectly believed counts 3, 4, and 5 all
related to Tracy Luong, but in fact count 5 related to a different
victim, Therina Lin.
35
attempted robbery; on count 11 (burglary of Jun Xuan, § 459), a
term of three years; on counts 12, 13, and 14 (attempted
residential robbery, burglary, and mayhem of Truong), terms of
two years four months for attempted robbery, four years eight
months for the burglary, and four years eight months for
mayhem, all stayed; on count 15 (burglary of Brian Chen, § 459),
a term of three years; on counts 16 and 17 (attempted residential
robbery and burglary of Baoying Zhang), a term of four years
eight months for burglary and a (stayed) term of four years eight
months for the robbery; on count 18 (burglary of Iling Sun), a
term of three years; on count 19 (burglary of Yuan Zhang, § 459),
a term of three years; and on count 20 (torture of Truong, § 206),
15 years to life.
The court ordered that, “with the exception of the counts
that were stayed pursuant to 654 on the determinate sentences,”
the determinate sentences “will be consecutive to each other,” but
“concurrent to count 20” (the indeterminate sentence). The clerk
stated the aggregate determinate sentence was 46 years four
months, and the court ordered Simmons to serve the determinate
sentences first.
2. The Trial Court Did Not Err
“Section 669 requires that when a person has been
convicted of two or more offenses (whether in the same or
separate proceedings), the court must decide whether the terms
are to run concurrently or consecutively.” (People v. Black (2007)
41 Cal.4th 799, 820-821; see People v. Clancey (2013) 56 Cal.4th
562, 579 [trial court has “broad discretion” to decide whether to
run the prison terms on multiple offenses concurrently or
consecutively].) “When the defendant is sentenced to
36
determinate and indeterminate terms, the determinate term is
served first.” (People v. Rodriguez (2012) 207 Cal.App.4th 204,
211; see People v. Garza (2003) 107 Cal.App.4th 1081, 1094.) The
court properly ordered Simmons to serve the determinate
sentences first, and the clerk correctly computed the aggregate
determinate term. Thus, the court ordered Simmons to serve the
determinate term of 46 years four months first, with Simmons to
serve the indeterminate life term after that (with the 15 years
already served).
H. Senate Bill No. 567 Applies to Simmons, and the
Erroneous Denial of a Jury Trial Is Not Harmless
While this appeal was pending, the Legislature made broad
changes to the sentencing laws and the gang enhancement
statute. Effective January 1, 2022, Senate Bill No. 567
(2021-2022 Reg. Sess.) amended section 1170 to (among other
things) limit the trial court’s discretion to impose the upper term
of imprisonment and to require the court in certain
circumstances to impose the lower term. (Stats. 2021, ch. 731,
§ 1.3.) Assembly Bill No. 518 (2021-2022 Reg. Sess.) amended
section 654 to no longer require the court to impose a sentence
based on the longest possible term where an act or omission is
punishable in different ways by different provisions of the law.
(Stats. 2021, ch. 441, § 1.) And Assembly Bill No. 333 (2021-2022
Reg. Sess.) amended section 186.22 to alter the requirements for
proving the gang enhancement under section 186.22,
subdivision (b)(1), and the offense of actively participating in a
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criminal street gang conspiracy under section 182.5.
(Stats. 2021, ch. 699, § 3.)
We notified counsel for the parties of these new provisions
and asked them to submit supplemental briefs on “the
applicability, if any, of these recently enacted laws to this
appeal.” Simmons filed a letter brief asserting: “Appellant
should receive the mid-term instead of the high term sentence for
both counts one and eight per the newly enacted amendments to
Penal Code § 1170, subdivision (b)(2).”14 We agree with Simmons
(and the People) that section 1170, subdivision (b)(2), applies
retroactively to Simmons’s sentences.
“‘When the Legislature amends a statute so as to lessen the
punishment[,] it has obviously expressly determined that its
former penalty was too severe and that a lighter punishment is
proper as punishment for the commission of the prohibited act. It
is an inevitable inference that the Legislature must have
intended that the new statute imposing the new lighter penalty
now deemed to be sufficient should apply to every case to which it
constitutionally could apply. The amendatory act imposing the
lighter punishment can be applied constitutionally to acts
committed before its passage provided the judgment convicting
the defendant of the act is not final.’”15 (People v. Esquivel (2021)
14 As discussed, because the trial court renumbered for the
jury the counts in the indictment, count 8 from the indictment
was count 3 for purposes of the trial (the robbery of Tracy Luong,
not the attempted robbery of Bong Rhee).
15 “‘For the purpose of determining the retroactive application
of an amendment to a criminal statute, the finality of a judgment
is extended until the time has passed for petitioning for a writ of
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11 Cal.5th 671, 674; see People v. Superior Court (Lara) (2018)
4 Cal.5th 299, 307; In re Estrada (1965) 63 Cal.2d 740, 745;
People v. Flores (2022) 73 Cal.App.5th 1032, 1039.)
Prior to January 1, 2022, section 1170, subdivision (b),
provided in relevant part: “When a judgment of imprisonment is
to be imposed and the statute specifies three possible terms, the
choice of the appropriate term shall rest within the sound
discretion of the court. . . . The court shall select the term which,
in the court’s discretion, best serves the interests of justice.”
(See People v. Sasser (2015) 61 Cal.4th 1, 8; People v. Estrada
(2020) 58 Cal.App.5th 839, 843.) Senate Bill No. 567 amended
this provision so that it now provides: “(1) When a judgment of
imprisonment is to be imposed and the statute specifies three
possible terms, the court shall, in its sound discretion, order
imposition of a sentence not to exceed the middle term, except as
otherwise provided in paragraph (2). [¶] (2) The court may
impose a sentence exceeding the middle term only when there are
circumstances in aggravation of the crime that justify the
imposition of a term of imprisonment exceeding the middle term,
and the facts underlying those circumstances have been
stipulated to by the defendant, or have been found true beyond a
reasonable doubt at trial by the jury or by the judge in a court
trial.”16 (§ 1170, subd. (b), added by Stats. 2021, ch. 731, § 1.3;
see People v. Flores, supra, 73 Cal.App.5th at p. 1038 & fn. 10.)
certiorari in the United States Supreme Court.’” (People v. Flores
(2022) 73 Cal.App.5th 1032, 1039.)
16 Prior to the enactment of section 1170, subdivision (b)(2),
the People only had to prove an aggravating fact by a
preponderance of the evidence. (See People v. Towne (2008)
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Because new section 1170, subdivision (b)(2), limits the
trial court’s discretion to impose the upper term of imprisonment,
it is an “‘ameliorative’” change in the law (People v. Frahs (2020)
9 Cal.5th 618, 628) that applies retroactively to nonfinal
sentences like Simmons’s. (See People v. Flores, supra,
73 Cal.App.5th at p. 1039 [“the amended version of section 1170,
subdivision (b) . . . applies retroactively in this case as an
ameliorative change in the law applicable to all nonfinal
convictions on appeal”]; see also People v. Nasalga (1996)
12 Cal.4th 784, 793 [“amendments . . . that mitigate punishment
by increasing the dollar amount for certain crimes or
enhancements should be applied retroactively, in the absence of a
saving clause or other indicia of a contrary legislative intent”].)
Simmons argues that he “did not admit or stipulate to any
circumstances in aggravation, and the jury did not make any
findings beyond a reasonable doubt regarding circumstances in
aggravation as to these counts.” The People argue Simmons
“effectively stipulated to all the facts underlying the aggravating
circumstances. Because amended section 1170,
subdivision (b)(1), does not require a jury trial when the
defendant stipulates to the facts, [Simmons] is not entitled to
relief.”
“Effectively” stipulating was not, in these circumstances,
stipulating. It is true the People argued in a sentencing
memorandum that six aggravating circumstances justified
imposing the upper term of imprisonment, including that the
crimes involved “great violence, great bodily harm, threat of great
bodily harm, or other acts disclosing a high degree of cruelty,
44 Cal.4th 63, 86; People v. Hicks (2017) 17 Cal.App.5th 496, 512;
People v. Weber (2013) 217 Cal.App.4th 1041, 1065.)
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viciousness, or callousness”; that “[m]any of the victims were
elderly and particularly vulnerable”; and that the “crime involved
an attempted or actual taking or damage of great monetary
value.” (See Cal. Rules of Court, rule 4.421.) And counsel for
Simmons did take the position in a sentencing memorandum
that, for purposes of sentencing under the law at the time, it
“would be disingenuous for counsel to argue that those
circumstances [in aggravation] do not exist. They clearly do and
unfortunately for the defendant none of the factors in mitigation
set forth in Rule 4.423 appear to apply.” And at the sentencing
hearing, when the trial court stated, “As I recall, you conceded
that the People were correct on their enumeration of the
aggravating factors,” counsel for Simmons stated, “That is
correct, Your Honor.”
But counsel’s concession was not a stipulation to the facts
underlying the circumstances in aggravation that justify
imposition of the upper term, within the meaning of section 1170,
subdivision (b)(2). (See People v. Mendias (1993) 17 Cal.App.4th
195, 206, fn. 8 [distinguishing between a concession and a
stipulation].) At the time counsel for Simmons decided not to
contest the statements in the People’s sentencing memorandum,
the new law had not become effective. It is hard to see how
counsel for Simmons could have intended to stipulate to facts
justifying the upper term under section 1170, subdivision (b)(2),
before the Legislature added this provision to require proof of
such facts beyond a reasonable doubt. (See People v. Jackson
(2005) 129 Cal.App.4th 129, 161 [“Oral statements of counsel
may be treated as judicial admissions if they were intended to be
such or reasonably construed by the court or the other party as
such. This rule, however, does not apply to ‘admissions which are
41
improvidently or unguardedly made, or which are in any degree
ambiguous.’”].)
Citing People v. Sandoval (2007) 41 Cal.4th 825, 839
(Sandoval) the People argue that, even if Simmons did not
stipulate to the circumstances in aggravation, any error in
imposing the upper term was harmless because a jury
“‘unquestionably’” would have found true an aggravating
circumstance to support the upper term of imprisonment. The
record does not support the People’s argument.
In Sandoval, supra, 41 Cal.4th 825 the Supreme Court
held: “The denial of the right to a jury trial on aggravating
circumstances is reviewed under the harmless error standard set
forth in Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d
705, 87 S.Ct. 824]. . . .” (Id. at p. 838.) “[I]f a reviewing court
concludes, beyond a reasonable doubt, that the jury, applying the
beyond-a-reasonable-doubt standard, unquestionably would have
found true at least a single aggravating circumstance had it been
submitted to the jury, the Sixth Amendment error properly may
be found harmless.” (Id. at p. 839; see People v. Boyce (2014)
59 Cal.4th 672, 728-729; People v. Flores (Feb. 3, 2022, A164257)
___ Cal.App.5th ___, ___ [2022 WL 557517, p. 5]; see also Cal.
Const., art. VI, § 13.) The Supreme Court, however, cautioned
that “the reviewing court cannot necessarily assume that the
record reflects all of the evidence that would have been presented
had aggravating circumstances been submitted to the jury.” The
Court observed that the defendant’s incentive and opportunity at
the sentencing hearing to contest any aggravating circumstance
“were not necessarily the same as they would have been had the
aggravating circumstances been tried to a jury” and that, “to the
extent a potential aggravating circumstance at issue in a
42
particular case rests on a somewhat vague or subjective
standard, it may be difficult for a reviewing court to conclude
with confidence that, had the issue been submitted to the jury,
the jury would have assessed the facts in the same manner as did
the trial court.” (Sandoval, at pp. 839-840; see Boyce, at pp. 728-
729.) These concerns weigh against finding the error harmless
here.
Although Simmons did not call any witnesses in his
defense, his trial counsel may have cross-examined the
prosecution’s witnesses more extensively had the law at the time
required the prosecution to prove the circumstances in
aggravation to a jury beyond a reasonable doubt. For example,
trial counsel for Simmons largely left unchallenged the amount of
cash and jewelry the perpetrators took in each of the burglaries
and robberies, and counsel did not question the victims about any
matters that had little to do with the elements of the crimes, such
as the victims’ vulnerability. (See Cal. Rules of Court,
rule 4.421(a)(3), (9); compare People v. DeHoyos (2013) 57 Cal.4th
79, 154 [“Because [the] circumstances [in aggravation] clearly
were relevant to defendant’s intent in committing the crimes
against [the victim], defendant had both reason and opportunity
to challenge them at trial.”].)
In addition, the different standard of proof may have
affected counsel for Simmons’s incentives. For example, had the
standard of proof been beyond a reasonable doubt under
section 1170, subdivision (b)(2), rather than by a preponderance
of the evidence, trial counsel for Simmons may have chosen to
contest the facts relevant to the aggravating factors described in
the prosecutor’s sentencing memorandum. The evidence
regarding whether the crimes involved “great violence” or “great
43
bodily harm” (Cal. Rules of Court, rule 4.421(a)(1)) was not as
clear-cut as the People suggest in their harmless error argument.
The People rely on evidence the perpetrators violently beat Rhee
and Truong. But on count 1 (actively participating in a criminal
street gang conspiracy), the indictment did not allege the crimes
of physical violence against Rhee and Troung were overt acts of
the conspiracy. On count 3 (the robbery of Luong), the People did
not present evidence the crime involved great violence or great
bodily harm, and Luong did not testify the perpetrators
physically injured her. She did state the perpetrators threatened
her, but counsel for Simmons did not cross-examine Luong on
this point (and there was no reason to do so under former
section 1170, subdivision (b)). We cannot conclude the jury
unquestionably would have found beyond a reasonable doubt that
count 1 or count 3 involved great violence or great bodily harm.
(Cf. People v. Myles (2012) 53 Cal.4th 1181, 1222 [“Given the
undisputed evidence regarding defendant’s gun use, counsel’s
concessions, and that the jury convicted defendant of first degree
murder rather than a lesser offense, we conclude beyond a
reasonable doubt that, under the same standard, the jury also
would have found the aggravating circumstances that defendant
used two firearms, fired multiple shots, and had not been
provoked.”].)
Finally, the other aggravating circumstances listed in the
People’s sentencing memorandum rest on the kind of vague or
subjective standards the Supreme Court in Sandoval, supra,
41 Cal.4th at page 840 pointed out make it difficult for a
reviewing court to determine how a jury would have assessed the
evidence. As the Supreme Court explained, “Many of the
aggravating circumstances described in the rules,” such as
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whether the victim “‘was particularly vulnerable’” or whether the
crime involved a “‘taking or damage of great monetary value,’”
“require an imprecise quantitative or comparative evaluation of
the facts.” (Ibid.; accord, People v. Boyce, supra, 59 Cal.4th at pp.
728-729 [same]; see People v. Lincoln (2007) 157 Cal.App.4th 196,
204 [“making assessments of what a jury would have decided
with respect to ‘somewhat vague or subjective standard[s]’ is a
thorny task”].) We cannot conclude beyond a reasonable doubt
the jury unquestionably would have found true any of the
aggravating circumstances here.
Because the trial court’s error in imposing the upper term
on counts 1 and 3 was not harmless, we vacate the sentences on
these counts and remand for the court to resentence Simmons in
accordance with section 1170, subdivision (b)(2). On remand, the
court shall conduct a “‘full resentencing’” (People v. Buycks (2018)
5 Cal.5th 857, 893), including applying the terms of any other
ameliorative legislation that became effective January 1, 2022.
DISPOSITION
The convictions are affirmed. The trial court is directed to
stay the execution of the sentence on count 1 under section 654
and to impose a sentence on count 5 of three years (which
consists of one-third of the middle term of four years, plus one-
third of the five-year term for the gang enhancement) that is
consecutive to the other determinate sentences. The trial court is
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also directed to resentence Simmons under section 1170,
subdivision (b)(2), and the terms of all applicable, newly enacted
ameliorative legislation.
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.
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