Filed 5/18/22 P. v. Gillespie CA4/1
Opinion following transfer from Supreme Court
OPINION AFTER TRANSFER FROM CALIFORNIA SUPREME COURT
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D069389
Plaintiff and Respondent,
v. (Super. Ct. No. SCD258034)
SAMUEL GILLESPIE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Kenneth Kai-Young So, Judge. Affirmed in part, reversed in part, and
remanded with directions.
Lizabeth Weis, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General,
Robin Urbanski, and Brendon W. Marshall, Deputy Attorneys General,
for Plaintiff and Respondent.
In this gang-related case, an information jointly charged Samuel
Gillespie and his codefendants Dominique Abdullah and Keshawn Price with
certain felony offenses. Abdullah and Price pleaded guilty to shooting at an
occupied vehicle (Pen. Code,1 § 246) and admitted allegations that they each
had suffered a serious felony prior and a strike prior.2 A jury found Gillespie
guilty of attempted murder (count 2, §§ 664 & 187, subd. (a)) and shooting at
an occupied vehicle (count 3, § 246). The jury also found true the following
allegations: the attempted murder was willful, deliberate, and premeditated
within the meaning of section 189 (§ 664, subd. (a)); Gillespie was a principal
in the commission of the attempted murder and at least one principal
personally discharged a firearm during the commission of that offense
(§ 12022.53, subds. (c) & (e)(2)); and Gillespie committed the crimes for the
benefit of, at the direction of, or in association with a criminal street gang
(§ 186.22, subd. (b)(1) & (4)). Gillespie admitted allegations that he had
suffered a prison prior, a serious felony prior, and a strike prior. After
denying Gillespie’s motion for a new trial, the court sentenced him to a total
prison term of 25 years plus 30 years to life.
Gillespie appealed his convictions. In an opinion issued in May 2017,
we affirmed the judgment. Gillespie petitioned our Supreme Court for
review. The Supreme Court granted review and deferred the matter
“pending consideration and disposition of a related issue in People v. Mateo,
S232674 . . . , or pending further order of the court.” In the meantime, our
Legislature enacted Senate Bill No. 1437 (Senate Bill 1437), which “amend[s]
1 All further statutory references are to the Penal Code.
2 Abdullah and Price are not parties to this appeal.
2
the felony murder rule and the natural and probable consequences doctrine,
as it relates to murder . . . .” (Stats. 2018, ch. 1015, § 1(f).)
Our Supreme Court remanded the matter to us with directions to
vacate our decision and reconsider the cause in light of Senate Bill 1437. We
received and considered supplemental briefing on the issue. Gillespie
asserted that Senate Bill 1437 applied to attempted murder and that his
attempted murder conviction must be reversed. He also argued that the
matter must be remanded so the trial court may consider exercising its
discretion under Senate Bill No. 620 (Senate Bill 620; Stats. 2017, ch. 682,
§ 1) and Senate Bill No. 1393 (Senate Bill 1393; Stats. 2018, ch. 1013, §§ 1-2),
which allow a trial court to strike or dismiss firearm and prior serious felony
enhancements.
The People conceded that the matter must be remanded in light of
Senate Bill 620 and Senate Bill 1393 but argued that Gillespie’s claim under
Senate Bill 1437 was not properly before this court because the petition
procedure in Senate Bill 1437 was the exclusive means for obtaining relief.
We concluded that the impact of Senate Bill 1437 on Gillespie’s conviction,
including whether this statute applies to an attempted murder conviction,
needed to be assessed by the trial court in the first instance. We vacated our
original opinion issued in May 2017 and issued a revised opinion dated
August 23, 2019, addressing Gillespie’s arguments in newly added sections V
and VI.
Gillespie again petitioned our Supreme Court for review. The Supreme
Court granted review and deferred consideration of the matter. In February
2022, the Supreme Court transferred the matter back to this court with
directions to vacate our decision and reconsider the cause in light of Senate
Bill No. 775 (Senate Bill 775; Stats. 2021, ch. 551, § 2).
3
We requested supplemental briefing and invited Gillespie to raise any
issues presented by recently enacted legislation. Gillespie and the People
filed supplemental briefs agreeing that Senate Bill 775 requires the reversal
of the attempted murder conviction because it cannot be based on the natural
and probable consequences doctrine, and because the jury was prejudicially
instructed on the elements of attempted murder. The parties also agree that
the amendments to section 186.22 by Assembly Bill No. 333 (Assembly Bill
333) apply and require that the gang enhancements attached to counts 2 and
3 be reversed. Finally, Gillespie asserts that CALCRIM No. 601 does not
correctly state the law on the elements of attempted murder with
premeditation and that his enhancement for premeditation and deliberation
must be reversed.
We agree that Gillespie’s attempted murder conviction must be
reversed, and the premeditation and gang enhancement allegations must be
vacated.3 We vacate our August 23, 2019, opinion and now reissue that
opinion with revisions to address these issues.
FACTUAL BACKGROUND
In the early morning hours of August 16, 2014, the victim in this case,
Curtis R., who was a member of the Lil Africa Piru criminal street gang,
drove to the neighborhood of Imperial and 50th Street looking for a friend.
After he parked and got out of his car, Curtis saw four people, wearing
3 Because we reverse Gillespie’s conviction for attempted murder, the
true finding on the premeditation allegation attached to that count must be
vacated as allegations attached to an underlying felony are not separate
crimes and cannot stand alone. (People v. Mustafaa (1994) 22 Cal.App.4th
1305, 1311 (Mustafaa) [separating convictions from their attendant
enhancements is unauthorized by law].) We therefore need not address
Gillespie’s contention that CALCRIM No. 601 does not correctly state the
law.
4
hooded sweatshirts, hiding behind some cars and sneaking up on him. He
believed the men were from a rival gang because he was in rival gang
territory and he knew he was not supposed to be there. Curtis heard a gun
being loaded. He quickly got back into his car and started backing up. As he
did so, he heard gunshots and saw a man with a gun in his hand approaching
his car. The man shot out his back window. Curtis managed to drive to a
safe area where he called the police.
Numerous police officers were nearby when the shooting occurred. San
Diego Police Department Officer Rogelio Medina and his partner, Officer
Blake Williams, testified that they heard about 15 gunshots, first one and
then a volley after a pause, from different caliber semiautomatic firearms.
When Officers Medina and Williams looked in the direction of the gunfire,
they saw four males wearing hooded sweatshirts run down an alley and then
drive away in a white four-door Chevrolet sedan. The officers got back into
their patrol car and pursued the men. Officer Medina used the radio to
report a description of the Chevrolet and the direction it was traveling.
Officer Randy Burgess responded to the radio call and saw the
Chevrolet slowly driving toward him. The car stopped in front of Officer
Burgess’s patrol car, the passenger door opened, and a man wearing dark
clothing got out of the car and ran away. The driver also got out of the car
and fled. Officer Burgess chased the men on foot. Shortly thereafter, Officers
Medina and Williams located the Chevrolet by Officer Burgess’s patrol car.
Officer Medina stayed with the Chevrolet to secure it while Officer Williams
assisted Officer Burgess in pursuing the males who had fled.
Inside the Chevrolet the police found Gillespie’s red cellphone on the
driver’s seat and a red backpack on the front passenger’s seat that contained
a nine-millimeter semiautomatic handgun, a .22-caliber semiautomatic
5
handgun and Gillespie’s automobile insurance card. Police found a red
bandana between the two front seats and a pair of gloves on the front
passenger floorboard. Police linked both semiautomatic handguns to two
gang-related shootings. The Chevrolet was registered to Gillespie and
Gillespie’s prints were found on the trunk lid. A latent print examiner found
no usable prints on the firearms.
After other police officers arrived at the abandoned Chevrolet, Officer
Medina drove his patrol car toward a location where, according to a radio
report, a suspect had been arrested. A resident flagged him down and
informed him there was a firearm in his backyard. Officer Medina recovered
a .45-caliber semiautomatic handgun from the swimming pool in the
backyard.
Police found seven .45-caliber cartridge casings and three nine-
millimeter cartridge casings at the shooting scene. The .45-caliber casings
were fired from the .45-caliber handgun recovered from the pool and the nine-
millimeter casings were fired from the nine-millimeter handgun inside the
red backpack found in the Chevrolet.
Officer Kyle Okeson assisted in the search for the suspects and found
Price, a Skyline gang member hiding near the scene. Price was wearing only
black shoes, a black T-shirt and boxer shorts. DNA on a pair of jeans found
by the police and on the gloves found in the Chevrolet matched Price’s DNA,
and Price was a possible major contributor to the DNA mixture found on the
.45-caliber handgun. Police detected gunpowder residue on Price’s hands.
Abdullah, a documented Skyline Piru gang member, was also arrested
near the crime scene. He was wearing a black hooded sweatshirt and blue
jeans. Surveillance video showed Gillespie running through a backyard with
Abdullah. Police arrested Gillespie three days after the shooting. His social
6
media page contained a picture of the Chevrolet abandoned at the scene.
During a search of Gillespie’s bedroom, the police found the following items:
a certificate of title signed by Gillespie releasing his interest in the Chevrolet;
a box for the red cellphone that was found on the driver’s seat of the
Chevrolet; and numerous items of clothing that were red, one of the colors
(along with black) of the Skyline gang.
The prosecution’s gang expert opined that even though Gillespie had no
law enforcement gang contacts prior to this incident, he was a Skyline gang
member on the date of the shooting. The gang expert based her opinion on
Gillespie’s law enforcement history, field interviews and confidential
informants, the terminology he used in text messages, his tattoos, and the
color of his clothing. She also opined that Gillespie committed gang-related
crimes for the benefit of the Skyline criminal street gang.
DISCUSSION
I. DENIAL OF NEW TRIAL MOTION
A. Background
In November 2015, five months after he was convicted in June of that
year, Gillespie filed a motion claiming he was entitled to a new trial under
section 1181, subdivision (8) (section 1181(8)), on the ground he discovered
new exculpatory evidence, material to his defense, that he could not have
discovered and produced at trial through the exercise of reasonable diligence.
As an exhibit to his motion, Gillespie attached a copy of an interview report
prepared by Karen Gould, Gillespie’s Alternate Public Defender investigator,
which contained her notes concerning Abdullah’s statements made to her
from prison after Gillespie’s trial. The report indicates that, according to
Abdullah, Gillespie did not know a shooting was going to occur on the night of
the incident because there had been no discussion in Gillespie’s car about
7
who had a weapon as the car approached the scene at 50th Street, and
Abdullah was certain that Gillespie did not have a weapon that night.
Abdullah told Gould that he and a man named Jarius started shooting at a
group of men in self-defense after the other group shot at them first.
According to Abdullah, Gillespie ran to his car as soon as the shooting began
and Gillespie and Price were already in the car when he and Jarius ran back
to Gillespie’s car. Abdullah claimed that Gillespie and Jarius, who had a
backpack, were in the front and Price and Abdullah were in the back.
Gillespie was angry with Jarius and told Jarius he had gotten them into the
situation. Gillespie and the other three men drove away and then ran from
the car after they saw a police car coming.
The court denied Gillespie’s motion for a new trial, stating in part: “I
don’t believe this is . . . new evidence, as set forth in the Penal Code, which
would support the granting of a new trial.” The court also stated: “Quite
honestly, I’m not sure that any of this evidence would have affected the
verdict[,] given what I know about the state of the evidence, what the officers
saw, and the other physical evidence that was out there.” The court also
found sufficient evidence supported the jury’s verdicts.
B. Applicable Legal Principles
A trial court is statutorily authorized to grant a defendant’s motion for
a new trial in a criminal case “[w]hen new evidence is discovered material to
the defendant, and which he could not, with reasonable diligence, have
discovered and produced at the trial.” (§ 1181(8).)4 A motion for a new trial
4 Section 1181(8) provides in relevant part: “When a verdict has been
rendered . . . against the defendant, the court may, upon his application,
grant a new trial, in the following cases only: [¶] . . . [¶] 8. When new
evidence is discovered material to the defendant, and which he could not,
with reasonable diligence, have discovered and produced at the trial. When a
8
based on newly discovered evidence is viewed with disfavor, and denial of
such a motion rarely will result in a reversal on appeal. (People v. Fairchild
(1962) 209 Cal.App.2d 82, 84.)
In order to obtain a new trial under section 1181(8), the moving
defendant must show (1) the evidence, and not simply its materiality, is
newly discovered; (2) the evidence is not merely cumulative; (3) the defendant
in the exercise of reasonable diligence could not have discovered and
produced the evidence at trial; (4) the newly discovered evidence is of such
strength that a result more favorable to the defendant is probable if the new
evidence is admitted on retrial; and (5) these facts are shown by the best
evidence of which the case admits. (People v. Howard (2010) 51 Cal.4th 15,
42-43; 6 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Criminal
Judgment, §§ 103 & 105, pp. 144-146.) The trial court may consider the
credibility of the evidence in determining whether introduction of the
proffered evidence in a new trial would render a more favorable result
reasonably probable. (Howard, at p. 43.) A trial court’s denial of a motion for
a new trial will not be disturbed on appeal unless a manifest and
unmistakable abuse of discretion is clearly shown. (People v. Delgado (1993)
5 Cal.4th 312, 328.)
C. Analysis
Gillespie contends that Abdullah’s statements to Gould following his
conviction qualify as newly discovered evidence. He asserts the trial court
prejudicially abused its discretion in denying his new trial motion because
motion for a new trial is made upon the ground of newly discovered evidence,
the defendant must produce at the hearing, in support thereof, the affidavits
of the witnesses by whom such evidence is expected to be given, and if time is
required by the defendant to procure such affidavits, the court may postpone
the hearing of the motion for such length of time as, under all circumstances
of the case, may seem reasonable.”
9
this new evidence, if admitted on retrial, would result in a more favorable
outcome. For purposes of analysis we shall assume, without deciding, that
Abdullah’s statements to Gould which Gould summarized in her report,5 is
newly discovered, that it is material and not merely cumulative, and that
Gillespie in the exercise of reasonable diligence could not have discovered and
produced the evidence at his trial.
Having made these assumptions and, after considering the credibility
of Abdullah’s proffered statements, we cannot conclude that if Abdullah were
to testify at a new trial in a manner consistent with Gould’s notes concerning
those statements, his testimony would be of such persuasive strength that it
is reasonably probable Gillespie would obtain a more favorable outcome. The
record shows that when Abdullah pleaded guilty to shooting at an occupied
vehicle he also admitted allegations that he had suffered a prior serious
felony conviction and a prior strike conviction. The prosecution would be
entitled to use Abdullah’s prior felony record to attack his credibility if he
were to testify on Gillespie’s behalf during a retrial. (Evid. Code, § 788;
People v. Howard, supra, 51 Cal.4th at p. 43 [court may consider credibility of
proffered evidence in determining whether its admission in a new trial would
render a more favorable result reasonably probable].)
5 Gillespie did not submit an affidavit signed by Abdullah, the witness
Gillespie expects will testify at a retrial in this matter, as required by section
1181(8). As noted, he attached to his new trial motion a copy of Gould’s
interview report containing her notes concerning statements Abdullah made
to her. The prosecution did not challenge Gillespie’s failure to comply with
the statutory affidavit requirement. At the hearing on Gillespie’s motion for
a new trial, the prosecutor told the court, “Your Honor, I don’t think that
there is any newly discovered evidence in this particular case. With regard to
[whether] it’s an affidavit or not, I didn’t contest that in my [opposition]
papers. [T]he People would prefer to go forward at this time with the state of
the attached statement.” (Italics added.)
10
In addition, several of Abdullah’s statements to Gould were
inconsistent with credible eyewitness testimony at Gillespie’s trial. For
example, Abdullah indicated that Gillespie and Price ran back to Gillespie’s
car without him and Jarius as soon as the first shot was fired. However,
Officers Medina and Williams testified that, when they looked in the
direction of the gunfire, they saw four males run down an alley and then
drive away in a Chevrolet sedan.
In another proffered statement, Abdullah claimed that only he and
Jarius shot at the other group at the scene. However, the prosecution’s
forensic evidence showed that gunpowder residue was detected on Price’s
hands and not on Abdullah’s hands. The record shows Price made a
statement against penal interest to Gould that he was armed with a .45-
caliber handgun and fired it during the incident. (Evid. Code, § 1230.) In
addition, the prosecution’s forensic evidence showed that Price was a possible
major contributor to the DNA mixture found on the .45-caliber handgun
recovered from a swimming pool after the shooting.
In another proffered statement, Abdullah claimed that the backpack
found on the front passenger seat of the Chevrolet after the shooting, which
contained two semiautomatic handguns, belonged to Jarius. However,
Officer David Ramirez testified that he found Gillespie’s insurance card
inside the backpack.
For all of the foregoing reasons, we conclude there is little, if any,
chance that Gillespie would obtain a more favorable result if Abdullah were
to testify at a new trial in a manner consistent with Gould’s notes concerning
the statements he made to her.
Accordingly, we conclude the court acted well within its broad
discretion when it denied Gillespie’s motion for a new trial.
11
II. GILLESPIE’S ATTEMPTED MURDER CONVICTION AND ATTACHED
PREMEDITATION ALLEGATION MUST BE REVERSED
A. Senate Bills 1437 and 775
“Our law recognizes two forms of liability for aiders and abettors.
[Citation.] First, under direct aiding and abetting principles, an accomplice
is guilty of an offense perpetrated by another if the accomplice aids the
commission of that offense with ‘knowledge of the direct perpetrator’s
unlawful intent and [with] an intent to assist in achieving those unlawful
ends.’ [Citation.] [¶] Second, under the natural and probable consequences
doctrine, an accomplice is guilty not only of the offense he or she directly
aided or abetted (i.e., the target offense), but also of any other offense
committed by the direct perpetrator that was the ‘natural and probable
consequence’ of the crime the accomplice aided and abetted (i.e., the
nontarget offense).” (People v. Gentile (2020) 10 Cal.5th 830, 843 (Gentile).)
Senate Bill 1437 amended section 188 to provide in subdivision (a)(3)
that, except as provided in section 189, subdivision (e), which governs felony
murder, “in order to be convicted of murder, a principal in a crime shall act
with malice aforethought. Malice shall not be imputed to a person based
solely on his or her participation in a crime.” (Gentile, supra, 10 Cal.5th at
p. 846.) As amended, section 188, subdivision (a)(3), also “bars a conviction
for first or second degree murder under a natural and probable consequences
theory.” (Ibid.) The bill also “added section 1170.95 to provide a procedure
for those convicted of felony murder or murder under the natural and
probable consequences doctrine to seek relief. . . .” (Id. at p. 843.)
In our August 2019 opinion, we concluded that any relief under Senate
Bill 1437 had to be considered in the first instance by the sentencing court
pursuant to the procedures provided in section 1170.95. Likewise, our
12
Supreme Court held in Gentile, supra, 10 Cal.5th 830, that “[t]he
ameliorative provisions of Senate Bill 1437 do not apply on direct appeal to
nonfinal convictions obtained before the law became effective. Such
convictions may be challenged on Senate Bill 1437 grounds only through a
petition filed in the sentencing court under section 1170.95.” (Id. at pp. 851-
852.)
Effective January 1, 2022, Senate Bill 775 amended section 1170.95 by
adding subdivision (g) to the statute. This subdivision provides the following:
“A person convicted of murder, attempted murder, or manslaughter whose
conviction is not final may challenge on direct appeal the validity of that
conviction based on the changes made to Sections 188 and 189 by Senate Bill
1437 (Chapter 1015 of the Statutes of 2018).” By expressly authorizing a
defendant whose judgment of conviction is nonfinal to seek relief under
Senate Bill 1437 on direct appeal, Senate Bill 775 has abrogated Gentile.
B. Analysis
Attempted murder requires “the specific intent to kill and the
commission of a direct but ineffectual act toward accomplishing the intended
killing.” (People v. Booker (2011) 51 Cal.4th 141, 177-178 (Booker).) “[U]nlike
murder, attempted murder is not divided into degrees. The prosecution,
though, can seek a special finding that the attempted murder was willful,
deliberate, and premeditated, for purposes of a sentencing enhancement.”
(People v. Mejia (2012) 211 Cal.App.4th 586, 605; see People v. Sedillo (2015)
235 Cal.App.4th 1037, 1049 [“attempted murder is not a lesser included
offense of attempted premeditated murder, but premeditation constitutes a
penalty provision that prescribes an increase in punishment”].) If committed
with premeditation and deliberation, attempted murder is punishable by a
life term, i.e., seven years to life in prison. (§§ 664, subd. (a); 3046, subd. (a).)
13
Here, the trial court instructed the jury that it could find Gillespie
guilty of attempted murder (CALCRIM No. 600) as a direct aider and abettor
(CALCRIM Nos. 400, 401, or as an aider and abettor under the natural and
probable consequences doctrine. (CALCRIM No. 402). The prosecution
argued Gillespie’s guilt for attempted murder under: (1) the natural and
probable consequences doctrine as an aider and abettor to the target offense
of shooting at an occupied vehicle; and (2) as a direct aider and abettor to
murder.
Regarding guilt for attempted murder under the natural and probable
consequences doctrine, the prosecutor told the jury that Gillespie could be
held accountable for this crime even if he did not know his accomplice would
commit murder. On the direct aiding and abetting theory, the prosecutor told
the jury that similar to conspiracy, an intent to kill was required. The jury
did not return a verdict on count 1, conspiracy to commit murder. But it
found Gillespie guilty of attempted murder (count 2). It also found true the
attached allegation that the attempted murder was willful, deliberate, and
premeditated.
The parties agree, and we concur, that in light of Senate Bills 1437 and
775, the natural and probable consequences doctrine is no longer a valid
theory of liability for attempted murder. (People v. Sanchez (2022) 75
Cal.App.5th 191, 196.) Thus, the trial court instructed on what is now a
legally invalid theory. (Ibid.) Gillespie also correctly notes that the trial
court instructed the jury regarding direct aiding and abetting with an
incorrectly modified version of CALCRIM No. 600 that told the jury, in part,
it could find Gillespie guilty of attempted murder if he “or a person he aided
and abetted intended to kill that person.” (Compare, Jud. Council of Cal.,
Crim. Jury Insts. (2021) CALCRIM No. 600.) This instruction allowed the
14
jury to find Gillespie guilty of attempted murder without finding that he
acted with the required intent to kill. (Booker, supra, 51 Cal.4th at p. 177.)
Thus, the instructions presented the jury with two possible routes to a guilty
verdict on the attempted murder charge, and both instructions allowed the
jury to find Gillespie guilty based on incorrect elements of the offense. Under
these circumstances, Gillespie’s attempted murder conviction must be
reversed because the jury necessarily convicted him on a legally invalid basis.
Reversal of the attempted murder conviction requires that we vacate the true
finding on the premeditation allegation attached to this count. (Mustafaa,
supra, 22 Cal.App.4th at p. 1311.) On remand, the prosecution should be
given the opportunity to retry Gillespie on the attempted murder charge and
attached premeditation allegation. (People v. Shirley (1982) 31 Cal.3d 18, 71
[retrial permitted where posttrial change in law invalidates certain evidence
because prosecution proved its “case under the law as it then stood” having
“had little or no reason to produce other evidence of guilt.”].)6
III. ASSEMBLY BILL 333 REQUIRES REVERSAL OF THE
TRUE FINDINGS ON THE CRIMINAL STREET GANG ENHANCEMENTS
A. Assembly Bill 333 Amendments to Section 186.22
Effective January 1, 2022, Assembly Bill 333 “amends section 186.22 to
require proof of additional elements to establish a gang enhancement.”
(People v. Lopez (2021) 73 Cal.App.5th 327, 343 (Lopez).) When appellants
6 Gillespie previously argued that: (1) the premeditation finding
attached to his attempted murder conviction must be stricken under People v.
Chiu (2014) 59 Cal.4th 155 (superseded by statute as stated in Gentile, supra,
10 Cal.5th at p. 849); (2) his sentence of 25 years plus 30 years to constituted
cruel or unusual punishment; and (3) the disparity in his sentence and the 15
year determinate sentences being served by his more culpable codefendants
violated his rights to due process and equal protection. These arguments
have now been rendered moot.
15
were tried, former section 186.22 defined a “ ‘criminal street gang’ ” as “any
ongoing organization, association, or group of three or more persons . . .
whose members individually or collectively engage in, or have engaged in, a
pattern of criminal gang activity.” (Former § 186.22, subd. (f), italics added.)
Assembly Bill 333 narrowed the definition to “an ongoing, organized
association or group of three or more persons . . . whose members collectively
engage in, or have engaged in, a pattern of criminal gang activity.” (§ 186.22,
subd. (f), italics added.) This change requires that the People “prove that two
or more gang members committed each predicate offense.” (People v. Delgado
(2022) 74 Cal.App.5th 1067, 1072; accord, Lopez, at pp. 344-345.)
Under the former version of section 186.22, the phrase “pattern of
criminal gang activity” was defined as “the commission of, attempted
commission of, conspiracy to commit, or solicitation of, sustained juvenile
petition for, or conviction of two or more of [specified] offenses, provided at
least one of these offenses occurred after the effective date of this chapter and
the last of those offenses occurred within three years after a prior offense,
and the offenses were committed on separate occasions, by two or more
persons.” (Former § 186.22, subd. (e), italics added.)
Assembly Bill 333 changed this definition. Now, the predicate offenses
must have been committed by two or more “members” of the gang (as opposed
to any persons) and must have “commonly benefited a criminal street gang”
and “the common benefit of the offense [must be] more than reputational.
(§ 186.22, subd. (e)(1), italics added.) Additionally, at least one of these
predicate offenses must occur after the effective date of this chapter, and the
last of those offenses must have occurred within three years of the prior
offense and within three years of the date the current offense is alleged to
have been committed. (Ibid.) The currently charged offense no longer counts
16
as a predicate offense. (§ 186.22, subd. (e)(2).) The new law also reduced the
number of qualifying offenses that can be used to establish a pattern of
criminal gang activity, removing vandalism, looting and several fraud-related
offenses from the list. (§ 186.22, subd. (e)(1)(A)-(Z).)
Assembly Bill 333 requires the prosecution to prove the benefit the
gang derives from the current offenses is “more than reputational.” (Stats.
2021, ch. 699, § 3 [enacting § 186.22, subd. (g)].) “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.” (§ 186.22, subd. (g).) Finally, Assembly Bill 333 added section
1109 requiring bifurcation of 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.) The
defendant’s guilt on the underlying offense must first be determined, and a
trial on the gang enhancement is held if the defendant is first found guilty of
the underlying offense. (§ 1109, subds. (a)(1) & (a)(2).)
B. Analysis
Gillespie argues, and the People concede that amended section 186.22
applies to this matter. We agree. (Lopez, supra, 73 Cal.App.5th at p. 344.)
Appellants have a constitutional right to a jury trial on “every essential
element” of the crimes and enhancements charged against them “no matter
how compelling the evidence may be against [them].” (People v. Figueroa
(1993) 20 Cal.App.4th 65, 71.) Here, Assembly Bill 333 added elements to
section 186.22, subdivision (a) that the factfinders at Gillespie’s trial were not
required to find. “When jury instructions are deficient for omitting an
element of an offense, they implicate the defendant’s federal constitutional
17
rights, and we review for harmless error under the strict standard of
Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705
(Chapman).” (People v. Sek (2022) 74 Cal.App.5th 657, 668 (Sek); People v.
E.H. (2022) 75 Cal.App.5th 467, 479 [same].) “Under the Chapman standard,
reversal is required unless ‘it appears beyond a reasonable doubt that the
error did not contribute to th[e] jury’s verdict.’ ” (Sek, at p. 668.)
Gillespie asserts, and the People concede, that the true findings on the
gang allegations attached to counts 1 and 2 must be reversed because the
jury was not instructed on the new definition of a criminal street gang, and
the new requirement that the benefit to the gang must be more than
reputational. We agree. We also note that the jury was not instructed with
the new requirement that at least one predicate offense must occur after the
effective date of this chapter (§ 186.22, subd. (e)(1)), nor could the People
have presented evidence on this new element. In addition, the jury was not
instructed that the predicate offenses must provide a common benefit to the
gang that is more than reputational. (§ 186.22, subd. (e)(1).) Finally, the
prosecution’s gang expert presented no evidence that the two predicate
offenses commonly benefitted Skyline or that the benefit was more than
reputational. We cannot conclude that the failure to require proof of these
additional elements under amended section 186.22, or instruct on these
elements, was harmless beyond a reasonable doubt.
Accordingly, the gang enhancement allegations attached to counts 2
and 3 must be reversed. “ ‘Because we do not reverse based on the
insufficiency of the evidence required to prove a violation of the statute as it
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read at the time of trial, the double jeopardy clause of the Constitution will
not bar a retrial.’ ” (Sek, supra, 74 Cal.App.5th at p. 669.)7
IV. RELIEF UNDER SENATE BILLS 620 AND 1393
“Before January 1, 2018, section 12022.53 prohibited courts from
striking its enhancements. Former subdivision (h) of section 12022.53
provided: ‘Notwithstanding Section 1385 or any other provision of law, the
court shall not strike an allegation under this section or a finding bringing a
person within the provisions of this section.’ (Stats. 1997, ch. 503, § 3,
p. 3137.) Thus, if a section 12022.53 enhancement was alleged and found
true, its imposition was mandatory. [Citations.] In 2017, the Legislature
enacted Senate Bill No. 620 . . . , amending section 12022.53(h) to remove this
prohibition. (Stats. 2017, ch. 682, § 2.) Section 12022.53(h) now provides
that a ‘court may, in the interest of justice pursuant to Section 1385 and at
the time of sentencing, strike or dismiss an enhancement otherwise required
to be imposed by this section.’ ” (People v. Tirado (2022) 12 Cal.5th 688, 695-
696.)
The jury found true a vicarious firearm enhancement under section
12022.53, subdivision (c) and (e)(1). At sentencing in 2015, Gillespie received
a consecutive 20-year sentence for the enhancement. This firearm
enhancement was alleged only with respect to the attempted murder count
and therefore must be vacated based on the reversal of the attempted murder
conviction. (Mustafaa, supra, 22 Cal.App.4th at p. 1311.) Should the People
elect to retry Gillespie for attempted murder with the attached firearm
enhancement, and he is again found guilty of attempted murder and a true
7 On remand, should the People decide to retry this matter, Gillespie can
ask the trial court to bifurcate the gang enhancement allegations under
section 1109.
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finding is made on the firearm enhancement, Gillespie is entitled to be
sentenced under Senate Bill 620.
Gillespie admitted that he had a prior serious felony conviction. He
received a consecutive five-year term pursuant to section 667, subdivision
(a)(1) for the prior serious felony conviction. At the time of Gillespie’s
sentencing, courts were prohibited from striking serious felony enhancements
under section 667, subdivision (a)(1). (People v. Jones (2019) 32 Cal.App.5th
267, 272.) Effective January 1, 2019, however, Senate Bill 1393 removed that
prohibition, permitting trial courts to dismiss serious felony enhancements in
furtherance of justice. (People v. Stamps (2020) 9 Cal.5th 685, 693.) On
remand, Gillespie is entitled to resentencing to allow the trial court to
exercise its discretion to strike the prior serious felony conviction
enhancement under amended sections 667, subdivision (a) and 1385,
subdivision (b).
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DISPOSITION
Gillespie’s conviction for attempted murder is reversed and the true
finding on the attached premeditation allegation is vacated. The gang
enhancement allegations attached to counts 2 and 3 are vacated. 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
Gillespie (1) on a legally viable theory of attempted murder and (2) under the
new law as amended by Assembly Bill 333. If the People elect not to retry
him, the trial court shall modify the judgment as directed and shall
resentence him in accordance with the views expressed herein. In all other
respects, the judgment is affirmed.
McCONNELL, P. J.
WE CONCUR:
IRION, J.
DATO, J.
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