Filed 8/10/22 P. v. Medina CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E075946
v. (Super.Ct.No. FSB17003515)
ARTURO PEREZ MEDINA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Ronald M.
Christianson, Judge. Affirmed in part; reversed in part with directions.
Matthew A. Siroka, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Banta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Michael Pulos, Seth Friedman and
Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
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PROCEDURAL BACKGROUND
A jury found defendant and appellant, Arturo Perez Medina, guilty of second
degree murder (Pen. Code, § 187, subd. (a), count 1),1 being a felon in possession of
a firearm (§ 29800, subd. (a)(1), count 2), and unlawful possession of ammunition
(§ 30305, subd. (a)(1), count 3). The jury additionally found true allegations that
defendant had committed the murder for the benefit of, at the direction of, or in
association with a criminal street gang (§ 186.22, subd. (b)(1)(C)) and that defendant
had personally and intentionally used a firearm causing great bodily injury in his
commission of the murder (§ 12022.53, subd. (d)). The court thereafter found true
allegations defendant had suffered a prior strike (§§ 1170.12, subds. (a)-(d), 667,
subds. (b)-(i)) and a prior serious felony conviction (§ 667, subd. (a)).
At sentencing, on the People’s motion, the court dismissed counts 2 and 3. The
court sentenced defendant to an aggregate term of imprisonment of 15 years, plus an
indeterminate term of 55 years to life consisting of the following: 15 years to life,
doubled to 30 years to life due to the prior strike conviction on the murder offense;
a consecutive 25 years to life on the personal use enhancement; a consecutive term of
10 years on the gang enhancement; and a consecutive term of five years on the prior
serious felony conviction enhancement.2
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 The abstract of judgment for the determinate term is not contained in the record
on appeal.
2
On appeal, defendant originally contended only that the court had erred in
imposing the 10-year determinate term on the gang enhancement. The People conceded
the issue. On October 12, 2021, we issued a tentative opinion modifying the sentence
but otherwise affirming the judgment.
On October 8, 2021, the governor signed Assembly Bill No. 333 (2021-2022 Reg.
Sess.) into law. Effective January 1, 2022, Assembly Bill No. 333 requires, in pertinent
part, that to prove a section 186.22 gang enhancement, the People must show that the
predicate crimes benefitted the gang more than just in a reputational fashion. On October
18, 2021, defendant filed a motion to file a supplemental brief regarding the impact of
Assembly Bill No. 333 on his case. On October 21, 2021, we granted defendant’s motion
and withdrew our tentative opinion.
Defendant contends that Assembly Bill No. 333 must be applied retroactively to
his case because it is not yet final. He argues that insufficient evidence under
section 186.22, as amended by Assembly Bill No. 333 (Stats. 2021, ch. 699, § 3),
supports the jury’s true finding on the gang enhancement. Specifically, he maintains that
there was insufficient evidence that the predicate acts were committed collectively by
gang members and were committed for more than solely the gang’s reputational benefit.
The People concede that Assembly Bill No. 333 applies retroactively to
defendant’s case and that the matter must be remanded to the superior court because
insufficient evidence, under the amended statute, supports that the predicate offenses
were committed for anything more than the gang’s reputational benefit. However, the
People disagree that Assembly Bill No. 333 requires proof that the predicate offenses
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were committed collectively by gang members. We reverse the gang enhancement and
remand the matter with directions to the trial court. 3 In all other respects, we affirm the
judgment.
I. FACTUAL BACKGROUND 4
The People’s gang expert testified that defendant’s gang, West Side Verdugo
(WV), had established a pattern of criminal activity. He testified that he had arrested one
member of WV, Isaac Miranda, for assault with a deadly weapon. Miranda was
convicted of assault by means likely to cause great bodily injury for an offense he
committed on August 17, 2014. Defendant had nothing to do with that crime other than
being a member of the same gang.
The expert had arrested Theo Delagarza, another active member of WV, for
possession of a firearm and possession of a controlled substance for sales. Delagarza
pled guilty to being a felon in possession of a firearm and being an active participant of a
criminal street gang for offenses he committed on May 11, 2014. Defendant had nothing
to do with that crime.
Yet another member of WV, Richard Beltran, had been convicted of being a felon
in possession of a firearm and an attached gang enhancement for an offense, which
occurred on January 30, 2014. Defendant had nothing to do with that offense.
3 Our reversal of the gang enhancement renders moot defendant’s original claim
that the court erred in imposing the 10-year determinate term on the enhancement.
4 We present only an abbreviated recitation of the facts as relevant to the issue
raised on appeal.
4
Gang members want their “fellow gang members to know they are willing to
commit these crimes and do these violent acts to gain status and not necessarily want to
be pointed out in a court setting in fear of repercussions of incarceration. So there’s a
fine balance . . . .”
The expert testified that he was familiar with defendant; as a gang investigator, he
had found that defendant associates with other members of WV and was documented by
other officers as an active member of WV. The expert opined that the crimes in the
instant case “were committed for the benefit of, at the direction of, [and] in association
with a criminal street gang with the specific purpose of promoting, furthering, [and]
assisting in criminal conduct by members.”
The offenses benefited the gang because a “criminal street gang cannot operate
without . . . tools. They need weapons. They need to instill fear into the community and
into other gang members.” “They use these items to instill fear in order to operate their
business. If . . . a criminal street gang instills fear into the community, they will be less
likely to call the police when they see crime occurring or less likely to testify in court. . . .
They also have status now. When another gang is afraid of a specific gang because
they’re the type of gang to show violence, they’ll be less likely to rival them and intrude
onto their business. Therefore, they’re able to operate in a larger scale and franchise out
to different areas of the city or geographical areas.”
Where a gang member commits a crime in public, “[i]t builds status for that
specific gang member within that gang, and it builds status of that gang. With the status
comes fear and intimidation . . . other gangs not wanting to rival with them or infringe on
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their geographical areas or their business. It also instills fear to show that this gang is a
violent criminal street gang that’s willing to do violent acts. And it’s going to instill fear
into the community.”
“It’s going to allow people not to want to testify in court, call the police and put
themselves in harm’s way for fear of retaliation. A gang—a criminal street gang operates
off this fear and intimidation. . . . Without that fear and that intimidation, other rival
gangs would stop in on their area, people would be more likely to call the police and
testify against them. [¶] And when a specific gang member does a violent act and
jeopardizes their freedom, there’s repercussions that can come with those things. It
builds status to that specific gang member, and they’re able to move up the ranks of that
gang into more prominent leadership roles or mid-management. [¶] They’re able to do
these illegal acts without fear of repercussions of going through the court process and
being held accountable for their actions.”
II. DISCUSSION
Defendant contends that Assembly Bill No. 333 must be applied retroactively to
his case because it is not yet final. He argues that insufficient evidence under
section 186.22, as amended by Assembly Bill No. 333, supports the jury’s true finding on
the gang enhancement. Specifically, he maintains that there was insufficient evidence
that the predicate acts were committed collectively by gang members and were
committed for more than solely the gang’s reputational benefit.
The People concede that Assembly Bill No. 333 applies retroactively to
defendant’s case and that the matter must be remanded to the superior court because
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insufficient evidence, under the amended statute, supports that the predicate offenses
were committed for anything more than the gang’s reputational benefit. However, the
People disagree that under Assembly Bill No. 333, they were required to present
evidence that the predicate offenses were committed collectively by gang members. We
agree with the People.
“Assembly Bill 333’s substantive changes apply retroactively to all cases—like
[defendant]’s—in which the judgment of conviction is not yet final because the changes
‘redefine, to the benefit of defendants, conduct subject to criminal sanctions.’” (People v.
E.H. (2022) 75 Cal.App.5th 467, 478.) “Assembly Bill 333 [now] requires the
prosecution to prove the benefit the gang derives from the predicate and current offenses
is ‘more than reputational.’ [Citation.] New section 186.22, subdivision (g), provides,
‘As used in this chapter, to benefit, promote, further, or assist means to provide a
common benefit to members of a gang where the common benefit is more than
reputational. Examples of a common benefit that are more than reputational may includ e,
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.’” (Id. at p. 478.) “Because Assembly Bill 333 essentially adds new elements
to the substantive offense and enhancements in section 186.22 . . . the prejudice standard
articulated in Chapman v. California (1967) 386 U.S. 18, 24 . . . applies. [Citation.]
Under that standard, the absence of instruction on the amended version of section 186.22
requires reversal unless ‘it appears beyond a reasonable doubt that the error did not
contribute to th[e] jury’s verdict.’” (Id. at p. 479.)
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Here, the parties agree, and so do we, that reversal is required because the
People’s expert witness testified that the only benefit to WV of the predicate offenses was
reputational. Thus, the gang enhancement must be reversed, and the matter remanded to
give the People the opportunity to retry it. (People v. E.H., supra, 75 Cal.App.5th at p.
480 [“The proper remedy for this type of failure of proof —where newly required
elements were ‘never tried’ to the jury—is to remand and give the People an opportunity
to retry the affected charges.”].)
However, the People disagree with defendant’s contention that they were required,
under the amended statute, to prove that the predicate offenses were committed
“collectively,” i.e., that they were each committed by more than one WV gang member.
We agree with the People.
“Assembly Bill 333 also ‘redefines “pattern of criminal gang activity” to require . . .
that the predicate offenses “were committed on separate occasions or by two or more
members, the offenses commonly benefited a criminal street gang, and the common benefit
of the offenses is more than reputational.”’” (People v. Vasquez (2022) 74 Cal.App.5th
1021, 1032.) In People v. Delgado (2022) 74 Cal.App.5th 1067 (Delgado), the court
rejected “the People’s contention that proof that individual gang members committed the
predicate offenses on separate occasions is sufficient to show the gang members
‘collectively’ engaged in a pattern of criminal activity.” (Id. at p. 1073, italics added.)
Instead, the Delgado court “read the term ‘collectively’ in a commonsense manner
to mean what it says—committed by more than one person, and not, as argued by the
People, individually but on a different day.” (Id. at pp. 1088-1089.) The Delgado court
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agreed with the defendant that “amended subdivision (f)’s requirement that gang
members ‘collectively engage’ in a pattern of criminal gang activity means the People
were required to prove that two or more gang members committed each predicate offense
in concert . . . .” (Id. at p. 1088.) Thus, the court reversed the gang enhancement because
the People presented no evidence that multiple gang members committed the predicate
offenses and “because the trial court erred in instructing the jury under former
subdivision (f) that it could find the gang enhancements true if the People proved that
members of the . . . gang, ‘whether acting alone or together, engage in or have engaged in
a pattern of criminal gang activity.’” (Id. at p. 1088, italics added.)
Similarly, the court in People v. Lopez (2021) 73 Cal.App.5th 327 (Lopez), noted
that when Assembly Bill No. 333 became effective it would “require the prosecution to
prove collective, not merely individual, engagement in a pattern of criminal gang
activity.” (Lopez, at p. 345.) “[P]ursuant to the new legislation, imposition of a gang
enhancement requires proof [that] the predicate offenses must be committed on separate
occasions or by two or more gang members . . . .” (Ibid., italics added.)
More recently a panel of this court in People v. Clark (2022) 81 Cal.App.5th 133
(Clark), disagreed with both Delgado and Lopez. (Clark, at pp. 144-145.) Clark did not
find “the Delgado analysis to be persuasive because it turned to legislative history after
merely defining the word ‘collectively.’ [Citation.] It did not . . . devote sufficient
attention to the plain language of the statute.” (Id. at p. 145.) The Clark court reasoned,
“[i]f ‘collectively’ means the prior crimes must have been committed in concert, then the
first alternative in subdivision (e)(1) is rendered surplusage. The two alternatives are
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proving that ‘[(1)] the offenses were committed on separate occasions or [(2)] by two or
more members.’ (§ 186.22, subd. (e)(1).) If ‘collectively’ means the predicate crimes
had to be committed in concert, then the prosecutor must always prove the predicate
crimes were committed ‘by two or more members.’ The alternative option that ‘the
offenses were committed on separate occasions’ would be surplusage. (§ 186.22,
subd. (e)(1).) We avoid interpreting the statute in a manner that would render one of the
explicit options surplusage.” (Ibid.)
Clark did “not find Lopez to be persuasive authority because it did not provide a
plain language analysis of the statute pertaining to the phrases (A) ‘members collectively’
(§ 186.22, subd. (f)); and (B) ‘the offenses were committed on separate occasions or by
two or more members’ (§ 186.22, subd. (e)(1)).” (Clark, supra, 81 Cal.App.5th at
p. 145.) Thus, Clark concluded that “a pattern of criminal gang activity may be
established by (1) two gang members who separately committed crimes on different
occasions, or (2) two gang members who committed a crime together on a single
occasion.” (Id. at pp. 145-146)
We agree with our colleagues on this court in Clark. Thus, here, the People
adduced sufficient evidence below that the predicate offenses “‘were committed on
separate occasions.’” (Clark, supra, 81 Cal.App.5th at p. 145.)
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III. DISPOSITION
We reverse the judgment as to the gang enhancement. The matter is remanded
for the trial court to provide the People an opportunity to retry the section 186.22
enhancement under the law as amended by Assembly Bill No. 333; if the People elect
not to retry the enhancement, the trial court is directed to impose a new sentence without
the section 186.22 enhancement. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J.
We concur:
SLOUGH
J.
MENETREZ
J.
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