Filed 5/2/22 P. v. Nava CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F080965
Plaintiff and Respondent,
(Super. Ct. No. VCF361905C)
v.
FRANCISCO ANTONIO NAVA, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Tulare County. Gary L.
Paden, Judge.
Gillian Black, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M.
Vasquez, Robert K. Gezi, Darren K. Indermill, Lewis A. Martinez and William K. Kim,
Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Francisco Antonio Nava and three codefendants—Robert Ramos, Stephen Lopez,
and Ruben Perez—engaged in a confrontation at a convenience market with E.D. and his
girlfriend, C.A. They yelled rival gang slurs at E.D.; Lopez and Perez threw drinks into
E.D. and C.A.’s car; and Lopez grabbed E.D.’s shirt and struck him in the back of the
head, scratching his neck. Perez also tried to grab E.D. E.D. drove away. When E.D.
stopped at an intersection, he saw a black car speeding toward him, heard two gunshots
and glass breaking, and felt an impact on his car. He saw the black car on the left side of
his car and a man pointing his hand out of the back passenger window.
The four defendants were charged with multiple offenses in relation to the
incident. At trial, the prosecution presented expert testimony on criminal street gangs,
evidence of the defendants’ prior contacts with police, and certified records of
convictions of Norteño gang members as proof of a pattern of gang activity to prove the
street gang enhancements.
The jury acquitted the four defendants of attempted murder of E.D. and C.A.
(counts 1 and 2, respectively) and was deadlocked on the lesser included offense of
attempted voluntary manslaughter. The jury convicted all four defendants of shooting
into an occupied motor vehicle in violation of Penal Code section 246 (count 3) and
found true allegations a principal used a firearm (§ 12022.53, subds. (c) & (e)(1)) and that
the offense was committed for the benefit of a criminal street gang (former § 186.22,
subd. (b)(1)(C)). The jury was deadlocked as to all four defendants on count 4, criminal
street gang conspiracy in violation of section 182.5. The jury convicted Lopez and Perez
of battery in violation of section 242 in count 5 and found the offense was committed for
the benefit of a criminal street gang (former § 186.22, subd. (b)(1)(C)). The jury
convicted Lopez of possession of a firearm by a convicted felon in violation of section
29800, subdivision (a)(1) (count 6). (Undesignated statutory references are to the Penal
Code.)
2.
Nava argues the court erred in imposing both the firearm enhancement and the
gang enhancement even though it stayed the former. He further challenges the validity of
the gang enhancement and firearm enhancement under Assembly Bill No. 333 (2021–
2022 Reg. Sess.) (Assembly Bill 333), which, in part, amended the language of section
186.22 to modify the showing necessary to sustain a gang enhancement. Nava asserts the
changes enacted by Assembly Bill 333 are retroactive and, accordingly, his gang
enhancement should be reversed and retried under the new requirements of section
186.22.
We agree Assembly Bill 333 applies retroactively and Nava is entitled to reversal
of his gang enhancement and firearm enhancement on that basis. In all other respects, we
affirm the judgment.
FACTUAL BACKGROUND
February 3, 2018 Incident
In the evening of February 3, 2018, E.D. was at a convenience market with his
girlfriend C.A.; E.D. was wearing a navy blue shirt. They met E.D.’s parents for dinner.
E.D. testified Nava and his codefendant Ramos approached E.D. when he was at the
register checking out, though other evidence introduced suggested Ramos did not enter
the store.1 Nava said, “‘What’s up Ene?’” E.D. smiled and said “What’s up?” E.D.
walked out of the store toward his car; Lopez and Perez followed him and said, “‘Fuck
Sur trece.’” E.D. understood the statement to mean “disrespect toward the Southerner
gang.” E.D. testified all four defendants continued to holler disrespectful Southern gang
slurs while E.D. and C.A. walked toward his car. E.D. and C.A. got in the car and
reversed; E.D. saw Nava and Ramos talking to his mother as she was trying to get in her
car. E.D. testified his car had a Los Angeles Dodgers logo decal on it; he and C.A.
1C.A. identified Nava and Lopez as the individuals who approached E.D. inside the store
and Perez and Ramos as the individuals who approached when they were outside the store.
Officer Michael Elliot also testified the video surveillance footage did not depict Ramos entering
the store at any time.
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denied any gang involvement. E.D. rolled his window down halfway to tell them he did
not want any problems but, before he could, Lopez and Perez threw drinks into E.D.’s
car. Lopez then grabbed and scratched E.D.’s neck; Perez tried to grab E.D., too. E.D.
drove off. He saw Lopez and Perez running to their car, a black four-door sedan, as he
left. He told C.A. to call 911 as he turned onto the road from the driveway. He could see
the defendants’ car in his rear view mirror as they exited from the same driveway.
E.D. got in the far right lane. The defendants pulled up behind E.D.’s car and then
next to it. E.D. then heard glass breaking, tires screeching, and two gunshots; he felt the
impact of a bullet on his car. E.D. and C.A. saw the rear passenger side window of the
defendants’ car rolled down. E.D. drove back to the convenience market and he and C.A.
waited for the police.
The manager of the convenience market gave the police the surveillance videos
from that day. Officer Elliot identified Ramos, Perez, Nava, and Lopez in the video
shown at trial.
Gang Expert Testimony
Before trial, Perez moved to bifurcate the gang allegations. The court noted it
would treat the objection as a joint challenge by all the defendants. The court considered
the motion and tentatively denied it because the gang allegations and underlying charges
overlapped. The prosecutor argued the gang evidence was intertwined with the charges,
motive, and intent and substantive evidence of it would come in with regard to the section
182.5 charge. The court noted it intended to allow the gang expert to testify about the
foundational components and opinions regarding the gang allegations and asked for
comments from the parties; no objections or comments were made. The court explained
to the prosecutor that, with the Sanchez [People v. Sanchez (2016) 63 Cal.4th 665] issue,
she was going to have to “prove … up individually … with witnesses.”
Officer Joel Arjona, who was assigned to the Tulare Area Regional Gang
Enforcement Team in February 2018, testified as a gang expert. He discussed his
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experience working with gangs and how the Norteño and Sureño gangs are structured.
He explained both gangs have symbols and signs they use to reflect their affiliation.
Norteño gang members associate with the number 14 and the color red. They use the
huelga bird as a symbol of the gang. Sureño members use the color blue to represent the
gang and associate with the number 13. Arjona explained the Norteño gang derives from
the prison gang Nuestra Familia. Local street gang members of the Norteño gang report
to an individual called a “channel.” The “channel” then reports up to a member of
Nuestra Familia who is in charge of the county. He testified Norteño members pay
“taxes” that are used for the benefit of the gang. The Norteño gang has different cliques
or subsets that all identify with the color red and the number 14. Members of different
subsets work together, communicate with one another, commit crimes together, and share
information and weapons. He discussed the subset North Side Visa Boys (or NSVB) and
explained the symbols and tattoos they use to identify themselves. He stated all NSVB
members are in Tulare County.
He explained what he deemed to be “primary activities of the Norteño gang”
based on his investigations and reports and from speaking to other officers and gang
members. The primary activities are a lot of crimes, 33 of which the Penal Code
considers “gang crimes.” The list of gang crimes includes, but is not limited to, auto
theft, possession of firearms, murder, attempted murder, assault, assault with deadly
weapons, kidnappings, burglary and vandalism.
Officer Arjona testified regarding two specific predicate crimes. He discussed the
murder of John Hernandez committed by Norteño gang members Jacob Robles and Julian
Gonzalez at the direction of Joe Dominguez, another gang member, on May 19, 2010.
Officer Arjona was familiar with the case through his research. Counsel for Nava
objected on “foundation” grounds when the prosecutor asked whether Officer Arjona had
an opinion as to whether the murder fits “the pattern of Norteño street gang activity … in
Tulare County.” The court overruled the objection. Based on his training and
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experience, speaking with other officers, and reading reports, Officer Arjona testified he
believed gang member Joe Dominquez directed the two other gang members to kill the
victim, who was a gang dropout. The prosecutor then introduced a certified copy of the
murder conviction from that case, People v. Julian Gonzalez, No. VCF241993,
conviction date May 15, 2012.
Officer Arjona then testified regarding an attempted murder that occurred at the
Visalia Mall on January 27, 2012, by Adrian Esquer and Anthony Hanson. Arjona was
not on duty at the time but he researched the incident after the fact and “it was a gang
crime.” Based on his conversations with the primary detective, study of the case, and
review of the contacts of the suspects involved, Arjona concluded the individuals
involved were “gang members and that this was an intimidation shooting against a rival
gang member. And a person who was caught in crossfire was also struck.” He further
opined the offense fits within the pattern of Norteño street gang activity in Tulare
County. The People then introduced the certified conviction packet for People v. Adrian
Esquer, No. VCF263049B for convictions of attempted murder and assault with a
firearm, conviction date of January 31, 2014.
Arjona testified he reviewed contacts law enforcement had with Nava. Based
upon his evaluation of set gang criteria, Officer Arjona testified, based upon his
knowledge, training, experience, and investigation of the case, he believed Nava was a
Norteño gang member on February 3, 2018, when the shooting at E.D. and C.A.
occurred. He explained it was not common to see someone who associates with Sureños
to start associating with Norteños. The fact Nava and his family moved from Dinuba to
Visalia could have affected his affiliation.
Prior Contacts
Officer Dirk Alfano conducted a field interview with Nava on February 24, 2010.
Nava stated he affiliated with a subset of a Sureño gang out of Dinuba called Brown
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Pride Mexican. Nava had a “BPM” tattoo on his chest. He reported that his brother, with
whom Nava did not get along, was a Norteño.
On April 13, 2010, officer Josh Speer conducted a field interview with Nava after
learning Nava had thrown items, including a rock, at a security guard at the juvenile
counseling center. Speer testified Nava identified himself as a Sureño from Dinuba.
In December 2010, Officer George Weaver contacted Nava at his home and
conducted a probation search. Nava denied any gang affiliation.
On February 9, 2013, Officer Alfano encountered Nava again after initiating a
traffic enforcement stop of a speeding car; the car eventually stopped in front of Nava’s
house after running three stop signs. Nava was driving the car; Norteño associates
Ryan R. and Christian C. were in the backseat. Officer Alfano testified, based upon his
knowledge, training, and experience in the gang unit, he knew Nava to be a Norteño gang
member at that time.
Officer Michael Elliot also testified regarding his prior contacts with Nava. In the
evening of February 9, 2013, Officer Elliot responded to a disturbance at Nava’s house.
Family members and gang members were present including North Side Visa Boys
members Christian C. and Cixto M.
On April 11, 2017, Officer Elliot was involved in an investigation into a shooting
that occurred at Nava’s house between Nava’s brother and several members of the
Oriental Troop street gang. Nava’s brother was arrested and police searched the house;
Nava was present at the time. Officer Elliot described Nava’s house as a “frequent
Norteño hangout.” He had encountered “different sets of Norteño gangs or gang
members at that house,” including individuals from North Side Varrio Locos,
Youngsters, North Side Visa Boys, and North Side Visa. Detective Jacob Sorensen
executed a search warrant at the house. He, too, encountered Nava. Nava informed him
there were two firearms in his room (the firearms were registered). Nava denied being an
active gang member but reported he affiliated with Norteños.
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The People also introduced testimony about the other codefendants’ prior contacts
with law enforcement, focusing on incidents that had gang-related circumstances.
Verdict and Sentencing
The jury acquitted all four defendants of attempted murder of E.D. and C.A.
(counts 1 and 2, respectively) and was deadlocked on the lesser included offense of
attempted voluntary manslaughter. The jury convicted all four defendants of shooting
into an occupied motor vehicle in violation of section 246 (count 3) and found true
allegations a principal used a firearm (§ 12022.53, subds. (c) & (e)(1)) and that the
offense was committed for the benefit of a criminal street gang (former § 186.22, subd.
(b)(1)(C)). The jury was deadlocked as to all four defendants on count 4, criminal street
gang conspiracy in violation of section 182.5.
The jury convicted Lopez and Perez of battery in violation of section 242 in count
5 and found the offense was committed for the benefit of a criminal street gang (former
§ 186.22, subd. (b)(1)(C)). The jury convicted Lopez of possession of a firearm by a
convicted felon in violation of section 29800, subdivision (a)(1) (count 6).
On February 26, 2020, the court sentenced Nava to 15 years to life in prison for
count 3.
DISCUSSION
I. Nava Is Entitled to Reversal of His Gang Enhancement Under Assembly Bill
333
In supplemental briefing, Nava argues the imposed criminal street gang
enhancement must be reversed as a result of changes made to section 186.22 by the
recent enactment of Assembly Bill 333. The People agree. We also conclude Nava is
entitled to reversal of his gang enhancement under Assembly Bill 333.
A. Assembly Bill 333
While Nava’s appeal was pending, the Legislature enacted Assembly Bill 333, the
STEP Forward Act of 2021, which, in part, amends section 186.22 to impose new
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substantive and procedural requirements for gang enhancements. The Legislation went
into effect on January 1, 2022.
First, Assembly Bill 333 amended the definition of a “‘criminal street gang,’”
requiring proof that the gang is an organized association, whose members collectively
engage in, or have engaged in, a pattern of criminal activity (§ 186.22, subd. (f)). Next,
the law created a stricter requirement for proof of “a pattern of criminal gang activity,”
which is necessary to prove that the group with which the defendant is associated is
indeed a criminal street gang. (See § 186.22, subds. (e)–(f).) Previously, the prosecution
needed to prove only that those associated with the gang had committed at least two
offenses from a list of predicate crimes on separate occasions within three years of one
another. (See former § 186.22, subd. (e).) Under the newly amended law, the offense
with which the defendant is currently charged cannot be used as one of the two predicate
offenses. (§ 186.22, subd. (e)(2).) In addition, both predicate offenses must have been
committed “within three years of the date the current offense is alleged to have been
committed,” by gang “members,” and must have been for the “common[] benefit[] [of] a
criminal street gang.” (§ 186.22, subd. (e)(1).) Assembly Bill 333 also narrowed the list
of offenses that may be used to establish a pattern of criminal gang activity (compare
former § 186.22, subd. (e)(1)–(33) with current § 186.22, subd. (e)(1)(A)–(Z)).
Additionally, it defines “to benefit, promote, further, or assist” throughout section 186.22
to mean “to provide a common benefit to members of a gang where the common benefit
is more than reputational.” (Id., subd. (g).) The legislation notes examples of a common
benefit that are more than reputational “may include, but are not limited to, financial gain
or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or
silencing of a potential current or previous witness or informant.” (Ibid.)
Finally, Assembly Bill 333 adds section 1109, which requires gang enhancements
charged under section 186.22, subdivision (b) or (d) to be tried separately from the
underlying charges upon request from the defense. (Stats. 2021, ch. 699, § 5.) Section
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1109 also requires the substantive offense of active participation in a criminal street gang
(§ 186.22, subd. (a)) to be tried separately from all other counts that do not require gang
evidence as an element of the crime.
B. The Amendments to Section 186.22 Apply Retroactively and Nava is
Entitled to Reversal of His Gang Enhancement
First, the parties agree Assembly Bill 333’s amendments to section 186.22 that
alter the substantive requirements necessary to prove a gang enhancement operate
retroactively. Because the legislation increased the evidentiary burden necessary to prove
a gang-related enhancement, we agree it was an ameliorative change in the law that
applies retroactively to cases not yet final on appeal.
Ordinarily, “a new statute is presumed to operate prospectively absent an express
declaration of retrospectivity or a clear indication that the electorate, or the Legislature,
intended otherwise.” (Tapia v. Superior Court (1991) 53 Cal.3d 282, 287 (Tapia).)
However, in In re Estrada (1965) 63 Cal.2d 740 (Estrada), our Supreme Court
recognized an exception to this rule. The court explained that “[w]hen 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. This intent seems obvious, because to hold otherwise
would be to conclude that the Legislature was motivated by a desire for vengeance, a
conclusion not permitted in view of modern theories of penology.” (Id. at p. 745.)
In subsequent years, the California Supreme Court has applied this doctrine
broadly “to statutes changing the law to the benefit of defendants.” (Tapia, supra, 53
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Cal.3d at p. 301; see generally People v. Frahs (2020) 9 Cal.5th 618, 631–632 [pretrial
diversion statute is retroactive because it provides possible benefit to class of criminal
defendants, does not contain express savings clause, and Legislature did not signal its
intent to overcome Estrada inference]; People v. Superior Court (Lara) (2018) 4 Cal.5th
299, 309 [“Proposition 57 is an ‘ameliorative change[] to the criminal law’ that we infer
the legislative body intended ‘to extend as broadly as possible’”].)
Most relevant to this case, the Supreme Court in Tapia held the presumption of
retroactivity applies to laws that change the substantive requirements for an enhancement
in a defendant’s favor. (See Tapia, supra, 53 Cal.3d at pp. 300–301.) In Tapia, the
electorate had recently passed an initiative requiring proof of intent to kill for certain
special circumstance allegations. (Ibid.) Because the initiative “redefine[d], to the
benefit of defendants, conduct subject to criminal sanctions,” the court held the initiative
applied retroactively. (Id. at p. 301.)
Like in Tapia, because Assembly Bill 333’s substantive changes to section 186.22
“redefine, to the benefit of defendants, conduct subject to criminal sanctions,” these
changes apply retroactively to all cases—like Nava’s—in which the judgment of
conviction is not yet final. (Tapia, supra, 53 Cal.3d at p. 301; accord, People v. Sek
(2022) 74 Cal.App.5th 657, 667 [concluding Assem. Bill 333’s amendments to § 186.22
“‘redefine[d], to the benefit of defendants, conduct subject to criminal sanctions’
[citation], and it therefore applies retroactively under Estrada”]; People v. E.H. (2022) 75
Cal.App.5th 467, 478 [similar]; see People v. Lopez (2021) 73 Cal.App.5th 327, 344
[concluding substantive changes in Assem. Bill 333 apply retroactively because they
“increase[] the threshold for conviction of the section 186.22 offense and the imposition
of the enhancement”]; People v. Rodriguez (2022) 75 Cal.App.5th 816, 822 [same].)
And here, it is undisputed Nava is entitled to reversal of the gang enhancement on
this basis; that is, neither party argues, nor can we conclude, the evidence presented at
trial was sufficient to sustain the gang enhancement under the revised requirements of
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section 186.22. At trial, the prosecution introduced evidence of two cases committed in
2010 and 2012 as evidence of the predicate offenses necessary to establish a pattern of
criminal gang activity. Neither predicate offense occurred within three years of the date
the currently charged offense was committed—February 3, 2018—as required by
amended section 186.22. (§ 186.22, subd. (e)(1).)
Excluding evidence of these offenses, the existing record is insufficient to support
the heightened evidentiary requirements set forth by amended section 186.22 following
the enactment of Assembly Bill 333. As a result, the criminal gang enhancement applied
to Nava’s sentence must be reversed. However, the People are not foreclosed from
retrying Nava on the gang enhancement upon remand under the new requirements of
amended section 186.22. Put differently, “‘[b]ecause we do not reverse based on the
insufficiency of the evidence required to prove a violation of the statute as it read at the
time of trial, the double jeopardy clause of the Constitution will not bar a retrial.’”
(People v. Sek, supra, 74 Cal.App.5th at p. 669; accord, People v. Figueroa (1993) 20
Cal.App.4th 65, 72 [“Where, as here, evidence is not introduced at trial because the law
at that time would have rendered it irrelevant, the remand to prove that element is proper
and the reviewing court does not treat the issue as one of sufficiency of the evidence”];
see People v. Eagle (2016) 246 Cal.App.4th 275, 280 [“When a statutory amendment
adds an additional element to an offense, the prosecution must be afforded the
opportunity to establish the additional element upon remand”].) In so concluding, we
reject Nava’s argument that because the introduced evidence of the predicate crimes is no
longer sufficient to establish a pattern of criminal gang activity under the amended
statute, the People should be barred from retrying him and introducing additional
evidence to prove the predicate offenses within the parameters of the new law. (See
People v. Figueroa, supra, at pp. 71–72 & fn. 2 [remand appropriate to allow prosecution
to establish additional element retroactively added by statutory amendment; no violation
of the double jeopardy clause or constitutional restrictions against ex post facto
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legislation]; accord People v. Lopez, supra, 73 Cal.App.5th at pp. 346–348 [vacating
enhancements in light of Assem. Bill 333 and remanding for limited retrial]; People v.
Vasquez (2022) 74 Cal.App.5th 1021, 1033 [same].)
II. Nava’s Firearm Enhancement Must be Reversed
In his opening brief, Nava asserted the court should have struck instead of stayed
the section 12022.53 gang-related firearm enhancement. In his supplemental brief, Nava
argues this firearm enhancement should be reversed under Assembly Bill 333. We
conclude this gang-related enhancement must also be reversed because of our reversal of
the section 186.22, subdivision (b) enhancement.
A. Standard of Review and Applicable Law
Section 12022.53 provides for sentence enhancements for persons convicted of
certain enumerated felonies who use a firearm during the commission of the crime. A
violation of section 246 is not one of the felonies enumerated in subdivision (a) of section
12022.53. However, a section 12022.53 enhancement may apply under subdivision
(a)(17) of that section, where the penalty has been elevated to a life term through
application of an alternate penalty provision. (People v. Jones (2009) 47 Cal.4th 566,
569, 579; accord, People v. Brookfield (2009) 47 Cal.4th 583, 590–591.)
Section 12022.53, subdivision (e)(1) extends liability to aiders and abettors where
“the prosecution has both ‘pled and proved’ that the defendant committed a felony on
behalf of a street gang (see … § 186.22) and that a ‘principal in the offense committed
any act specified in subdivision (b), (c), or (d)’—that is, an act that would trigger a
firearm enhancement had the defendant committed that act personally.
(§ 12022.53(e)(1).)” (People v. Anderson (2020) 9 Cal.5th 946, 953.) Section 12022.53,
subdivision (e)(2) states:
“An enhancement for participation in a criminal street gang pursuant to
Chapter 11 (commencing with section 186.20) of Title 7 of Part 1 shall not
be imposed on a person in addition to an enhancement imposed pursuant to
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this subdivision, unless the person personally used or personally discharged
a firearm in the commission of the offense.”
In Brookfield, the California Supreme Court held “the trial court may not impose
the sentence enhancement under section 12022.53 in addition to a life term under section
186.22(b)(4).” (People v. Brookfield, supra, 47 Cal.4th at p. 592.) Rather, a defendant
who was an accomplice to a gang-related offense specified in section 12022.53 in which,
as here, another principal, not the defendant, personally used or discharged a firearm is
“subject to additional punishment under either section 12022.53 or the gang-related
sentence increases under section 186.22, but not both.” (Brookfield, at p. 594.) The
Brookfield court relied upon section 12022.53’s subdivision (j) in determining the trial
court should have imposed the greater penalty (the life term under § 186.22, subd. (b)(4)),
rather than the lesser punishment (the 10-year sentence enhancement under § 12022.53’s
subds. (b) & (e)(1)). (Brookfield, at p. 596.) That provision states in part: “When an
enhancement specified in this section has been admitted or found to be true, the court
shall impose punishment for that enhancement pursuant to this section rather than
imposing punishment authorized under any other provision of law, unless another
enhancement provides for a greater penalty or a longer term of imprisonment.”
(§ 12022.53, subd. (j), italics added.) Because the Brookfield court held the trial court
erred in sentencing the defendant to both the life term under section 186.22, subdivision
(b)(4) and the 10-year sentence enhancement under subdivisions (b) and (e)(1) of section
12022.53, it affirmed the decision of the Court of Appeal striking the 10-year sentence
enhancement. (People v. Brookfield, supra, 47 Cal.4th at p. 597.)
In People v. Gonzalez (2008) 43 Cal.4th 1118 (Gonzalez), the California Supreme
Court concluded the word “impose” used throughout section 12022.53 “must be
interpreted as shorthand for ‘impose and then execute’ to make sense.” (Gonzalez, at p.
1127.) The Gonzalez court rejected an interpretation of section 12022.53, subdivision
(f)—which prohibits the imposition of enhancements pursuant to certain other sections in
addition to an enhancement imposed pursuant to that section—“that would have the trial
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court strike, rather than stay, the prohibited firearm enhancements.” (Ibid.) The court
explained, this is “because the rules of statutory construction mandate that we interpret
the statute in a manner that does not create unnecessary disharmony between subdivision
(f) and subdivision (h) of section 12022.53.” (Id. at pp. 1127–1128.) The Gonzalez court
noted, requiring a court to strike rather than stay the prohibited enhancements would
“mak[e] it more difficult, if not impossible, to impose and execute the term of
imprisonment for an initially prohibited firearm enhancement in the event the section
12022.53 enhancement with the longest term of imprisonment is invalidated on appeal.”
(Id. at p. 1128.)
B. Analysis
Nava argues the court erred, pursuant to section 12022.53, subdivision (e)(2), in
imposing and staying the firearm enhancement. He argues this section prohibits the
imposition of both the firearm enhancement and a gang enhancement unless the
defendant was the actual shooter. The People respond the court did not err in imposing
and staying the firearm enhancement, relying on Gonzalez, supra, 43 Cal.4th 1118, but
they agree Nava is entitled to reversal of this enhancement under Assembly Bill 333.
They further contend the prosecution should be afforded an opportunity to retry this
gang-related enhancement. We conclude Nava is entitled to reversal of this enhancement
under Assembly Bill 333.
We have already concluded Nava’s gang enhancement imposed pursuant to
section 186.22 must be reversed. Because the imposed section 12022.53 enhancement
applied to Nava under subdivision (a)(17) of that section only because his penalty had
been elevated to a life term through application of the alternate penalty provision
provided for in section 186.22, the section 12022.53 enhancement is no longer supported.
Additionally, because the section 12022.53 enhancement depends on a finding the
principal violated section 186.22, subdivision (b), and we vacate that finding as discussed
ante, the changes to section 186.22 made by Assembly Bill 333 require that the imposed
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firearm enhancement must be vacated. (See People v. Lopez, supra, 73 Cal.App.5th at p.
348 [vacating firearm enhancement based on gang-related enhancement findings in light
of Assem. Bill 333 and remanding for limited retrial]; People v. Vasquez, supra, 74
Cal.App.5th at p. 1033 [same].) On remand, the prosecution may also seek to retry this
gang-related enhancement. Because we strike the enhancement on other grounds, we do
not address Nava’s arguments further.
DISPOSITION
The section 186.22, subdivision (b) gang enhancement and the section 12022.53
firearm enhancement are reversed. The matter is remanded to the trial court for further
proceedings. The People shall have 60 days from the date of the remittitur in which to
file an election to retry Nava on these enhancements. If the People elect not to retry him,
the trial court shall modify the judgment by striking the enhancements and shall
resentence Nava accordingly. Following the conclusion of proceedings, the court shall
amend the abstract of judgment in a manner consistent with this disposition and forward
copies of the amended abstract to the appropriate law enforcement and custodial officials.
In all other respects, the judgment is affirmed.
PEÑA, Acting P. J.
WE CONCUR:
SMITH, J.
DE SANTOS, J.
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