Filed 11/2/22 P. v. Lazo CA2/1
Opinion following transfer from Supreme Court
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B304615
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA144673-01)
v.
ALEJANDRO LAZO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Roger Ito, Judge. Affirmed in part and
reversed in part with directions.
Cheryl Lutz, under appointment by the Court of Appeal;
and Janet Uson, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Paul M. Roadarmel, Jr., Julie Harris, Noah P.
Hill and Eric J. Kohn, Deputy Attorneys General for Plaintiff and
Respondent.
_________________________________________
On April 29, 2017, Southside Whittier gang members
Alejandro Lazo and Reyna Gomez carjacked a Nissan Pathfinder
and used the vehicle in a drive-by shooting spree that left one
person dead and several others injured. Lazo and Gomez were
charged with one count of carjacking, one count of murder, and
14 counts of attempted murder. They were tried separately.1
A jury convicted Lazo of one count of first degree murder
(count 1; Pen. Code, § 187, subd. (a))2, 12 counts of willful,
deliberate, and premeditated attempted murder (counts 2, 3,
6−11, 13−15, & 17; §§ 187, subd. (a), 664), and one count of
carjacking (count 12; § 215, subd. (a)).3 As to each count,
the jury found true gang allegations under section 186.22,
subdivision (b)(4), and firearm enhancement allegations
under one or more of subdivisions (b), (c), (d), and (e)(1) of
section 12022.53. The court sentenced Lazo to prison for 53 years
plus 320 years to life, and imposed certain fines and assessments.
In a prior opinion, we reversed three of Lazo’s convictions of
attempted murder (counts 2, 8, and 14) for insufficient evidence.
We also agreed with Lazo that the prosecution’s gang expert gave
1 In March 2020, we affirmed Gomez’s convictions of one
count of murder, 10 counts of attempted murder, and one count
of carjacking in an unpublished opinion. (People v. Gomez
(Mar. 4, 2020, B293727).) We reversed convictions on four
counts of attempted murder and related enhancements based
on instructional error. (Ibid.)
2Subsequent unspecified statutory references are to the
Penal Code.
3
The jury acquitted Lazo of two charges of attempted
murder.
2
inadmissible hearsay testimony to support the predicate offenses
for the gang enhancements, but held that the error was harmless
with respect to all of the gang enhancements but one. In
addition, we agreed with Lazo that the court erred in imposing
sentence enhancements on most of the convictions under both
section 186.22, subdivision (b) and section 12022.53. We rejected
Lazo’s claims that the evidence was insufficient to establish that
the crimes were committed for the benefit of or in association
with a criminal street gang, and that the prosecutor committed
misconduct in various ways during the trial.
After we filed our opinion but before Lazo’s conviction
became final, the Legislature enacted Assembly Bill No. 333
(2021−2022 Reg. Sess.) (Assembly Bill No. 333) and Senate Bill
No. 567 (2021−2022 Reg. Sess.) (Senate Bill No. 567). Assembly
Bill No. 333 altered both the substantive and procedural law
regarding gang enhancements under section 186.22. Among
other changes, the law adds requirements for proving predicate
offenses for gang enhancements. (§ 186.22, subd. (e)(1) & (2).)
Senate Bill No. 567 creates new requirements for imposing an
upper term sentence. (See § 1170, subd. (b).)
In January 2022, the Supreme Court granted Lazo’s
petition for review and transferred the matter to us with
directions to vacate our decision and reconsider the cause
in light of Assembly Bill No. 333 and Senate Bill No. 567).
We vacated our opinion and have received and
considered supplemental briefs from the parties. In addition
to supplemental briefs filed pursuant to rule 8.200(b) of
the California Rules of Court, we requested and received
supplemental briefs addressing the question whether Assembly
Bill No. 333 unconstitutionally amends the Gang Violence and
3
Juvenile Crime Prevention Initiative (Proposition 21, as approved
by voters, Primary Elec. (Mar. 7, 2000)) and, if so, whether and
how its unconstitutionality impacts the issues in this case.
We again reverse three of Lazo’s convictions of attempted
murder (counts 2, 8, and 14) for insufficient evidence. We agree
with Lazo and the Attorney General that, even if Assembly
Bill No. 333 unconstitutionally amended Proposition 21 in
some respects, any such amendment does not impact this case.
We conclude that Assembly Bill No. 333 applies retroactively
and requires us to reverse the remaining gang enhancements.
Lastly, because our disposition requires a new sentencing
hearing during which the court will apply the law in effect at the
time he is resentenced, we need not address the application of
Senate Bill No. 567.
FACTUAL SUMMARY
The events described below took place on April 29, 2017.
A. Carjacking of Johnny G.’s Pathfinder
(Count 12)
At about 2:15 p.m., Johnny G. was in the driver’s seat
of his parked green Nissan Pathfinder sports utility vehicle
(SUV) when a white four-door sedan pulled up behind him.
Lazo and Gomez got out of passenger seats of the white car and
approached the Pathfinder. Lazo walked to the driver’s side of
the Pathfinder and Gomez to the passenger side. Lazo pointed a
gun at Johnny G., and told him to get out of the car. Johnny G.
complied because he was afraid Lazo would shoot him. After
Johnny G. walked to the back of the Pathfinder, Lazo got in the
driver’s seat and Gomez got into the passenger seat. Lazo then
drove away.
4
As Johnny G. began to walk away, two men got out of
the white car, approached Johnny G. and asked, “Where are
you from?” Johnny G. said, “I don’t bang.” The two men said
something like, “this is South Side,” then returned to their car
and followed the Pathfinder.4
B. Attempted Murder of Tommy A. (Count 15)
At about 3:30 p.m., Tommy A. was in an alley behind a
coffee shop. A green Pathfinder pulled up next to him. Lazo,
the driver of the Pathfinder, handed a gun to Gomez and told
her, “shoot him.” Gomez aimed the gun at Tommy A.’s face, then
lowered the gun and fired one shot, hitting Tommy A. in his groin
area. Gomez then raised the gun, aimed it at Tommy A.’s head,
and pulled the trigger. The gun, however, “jammed.” As Lazo
attempted to clear the jam, the car began to roll away. Tommy A.
then ran to the coffee shop to ask for help.
4 During trial, Johnny G. testified that Lazo looked
“similar” to the man who had pointed the gun at him, but he
was “not a hundred percent sure” it was him. Some witnesses
to other charged crimes positively identified defendant during
trial as a principal and other witnesses either could not
identify defendant or expressed some uncertainty about their
identification. On appeal, however, defendant does not challenge
the sufficiency of the evidence supporting the jury’s finding
that he was a principal in each of the crimes of which he was
convicted and the sufficiency of evidence supporting that finding
is apparent from the record and we may reasonably infer from
the evidence, viewed in a light favorably to the judgment, that
the male participant in each of the crimes is Lazo and the female
participant is Gomez. Our factual summary reflects these
inferences.
5
C. Attempted Murder of Michael L. (Count 17)
At about 3:41 p.m., Rosemary A. and her husband
Roy A. were in their car, waiting for the light to change at the
intersection of Colima and Lambert in Los Angeles County.
Rosemary A. was driving. A car, which Roy A. described as a
dark green or black SUV, was in front of them. A black Honda
was in the next lane, adjacent to the driver’s side of the SUV
in front of them. Rosemary A. could see one person inside the
Honda, who was later identified as Michael L. Rosemary A. saw
an arm holding a gun extended from the driver’s side of the SUV
in front of her and point it at the Honda. She then heard one
shot and saw the front passenger window of the Honda shatter.
The SUV turned right and “took off.” Rosemary A. began to
follow the SUV and told Roy A. to get the vehicle’s license
number. Rosemary A. then turned back to check on the person in
the Honda. Michael L. had been injured by broken glass from the
shattered window. A surveillance video recording of the incident
was shown to the jury.5
D. Attempted Murders of Benjamin G. and
Maria G. (Counts 13 and 14)
At about 4:00 p.m., Benjamin G. was driving his Ford
Excursion on Imperial Highway. His wife Maria G. was in the
passenger seat. They stopped at the intersection at La Mirada
Boulevard. A green Pathfinder pulled up next to them on their
driver’s side. Lazo was driving the Pathfinder and Gomez was in
the front passenger seat. The light changed to green and, as the
two cars proceeded through the intersection, Benjamin G. heard
5 The parties did not arrange for transmission of the video
surveillance evidence to this court.
6
two loud knocks against his car. Benjamin G. looked at the
adjacent Pathfinder and saw Lazo “pointing a gun sideways.”
Then Benjamin G.’s window shattered, and a bullet hit his arm
and ribs. The Pathfinder sped away. In addition to the shattered
window, Benjamin G. found two holes in the driver’s door of his
car “very close to [his] head.”
E. Attempted Murder of Anthony E. (Count 11)
At about 4:00 p.m., Anthony E. was driving his car
westbound on Imperial Highway between Santa Gertrudes
Avenue and Ocaso Avenue. He heard a noise and a rear side
window in his car shattered. He then noticed a dark green
SUV driving away from him eastbound on Imperial Highway.
He later discovered a hole in the driver’s side back seat of his car
and a fragment of a bullet inside the hole.
F. The Shootings at the Intersection of Santa
Gertrudes Avenue and Alicante Road
At about 4:00 p.m., Lazo and Gomez were involved in a
series of shootings at the intersection of Santa Gertrudes Avenue
and Alicante Road.
1. Murder of Jose Sahagun (count 1) and
attempted murder of Jesus A. (count 2)
Jose Sahagun was driving a white SUV southbound
on Santa Gertrudes Avenue and pulled up to the intersection
at Alicante Road, where he waited for the light to change.
Sahagun’s father-in-law, Jesus A., was in the front passenger
seat. Sahagun’s wife and three other family members were in
rear seats of the SUV. Lazo drove the Pathfinder up alongside
the driver’s side of Sahagun’s white SUV. Gomez got out of
the passenger side of the Pathfinder, approached the driver’s
7
side of Sahagun’s SUV, and fired at least one shot, and possibly
as many as three shots, at Sahagun from less than one foot
away. Sahagun died as a result of gunshot wounds. There
was no evidence that anyone else in the car, including Jesus A.,
was injured or that any bullets hit or entered the cabin of the
Sahagun’s SUV other than the bullet or bullets that hit Sahagun.
2. Attempted murders of Lisa R. (count 3),
Julio R. (count 6), Leslie G. (count 7),
Robert G. (count 8), Leticia A. (count 9),
and William K. (count 10)
Across the intersection from where Gomez shot Sahagun,
several northbound cars were stopped at the red light. Lisa R.
and her 10-year-old daughter were in the lead car in the left-turn
lane. Lisa R. saw Gomez shoot at the window of Sahagun’s
SUV. After Gomez returned to the Pathfinder, the Pathfinder
proceeded slowly through the intersection. When it was nearly
adjacent to Lisa R.’s car, Lazo pointed a semiautomatic handgun
at Lisa R. and fired one shot at her. The bullet shattered her
driver’s side window and the rear passenger window. Lisa R.
received a small cut under her eye as a result. Her daughter
was not injured.
Jorge N. was heading northbound on Santa Gertrudes
Avenue in the number two lane and stopped at the intersection
with Alicante. Jorge N. heard several gunshots, but did not
know where they came from. He noticed a commotion, then
saw the green Pathfinder driving southbound slowly through
the intersection. He saw Lazo holding a gun outside the window
and shooting at cars in the northbound lanes. To Jorge N., it
appeared that the driver was taking aim at cars and shooting
directly at them. At one point, the shooter pointed the gun at
8
Jorge N. and he “had no choice but to just get out of the way.”
He then heard “the last shot.” Jorge N. was not injured and his
car was not hit.
Julio R. was in his GMC Sierra and waiting in a
northbound lane for the light to change. He heard a gunshot and
noticed a commotion and someone running on the other side of
the intersection. He heard a second shot and saw the driver’s
side window of Sahagun’s SUV shatter. The green Pathfinder
then moved southbound across the intersection as an arm holding
a gun extended from the driver’s window of the Pathfinder. As
the Pathfinder reached the south side of the intersection, Lazo
fired shots at each of the three cars in front of him. When the
Pathfinder reached a point adjacent to Julio R.’s vehicle, Julio R.
saw Lazo point the gun at him and pull the trigger twice, but
it did not fire. As the car passed him, Julio R. heard more
gunshots.
Leticia A. was behind two other cars in the northbound-
facing left-turn lane on Santa Gertrudes Avenue. She saw
Gomez shoot at Sahagun’s SUV. After Lazo drove through the
intersection and shot at the cars in front of him, he pulled up
adjacent to Leticia A. and fired a gun at her as she ducked.
Leslie G. and her husband Robert G. were in a car facing
northbound at the Santa Gertrudes Avenue / Alicante Road
intersection. They were in the “number [one] lane,” about
three cars away from the limit line. Leslie G. was driving and
Robert G. was in the front passenger seat. Their two-year-old
son was in the backseat. Leslie G. heard three gunshots and saw
the green Pathfinder cross the intersection and pull up to a point
“parallel” to her car and stop. Although she was in the lane to
the right of the left-turn lane, no car was next to her in the left
9
turn lane. Lazo raised a gun and pointed it in her direction;
Leslie G. told Robert G. to duck. Lazo fired two or three shots at
their car. A bullet hole and a bullet fragment were found in the
driver’s side mirror of Leslie G.’s car.
William K. was at the Santa Gertrudes Avenue / Alicante
Road intersection heading northbound. He heard three shots,
and saw the Pathfinder drive southbound across the intersection.
The Pathfinder stopped, and Lazo pointed a gun at William K.,
fired, and hit William K.’s windshield.
G. The Aftermath
At 7:00 p.m., Los Angeles County Sheriff ’s Deputies located
Johnny G.’s Pathfinder near Mayberry Park in Whittier. On the
ground about 6 to 10 feet away from the driver’s side door, they
found a “live round” of “ammo.” A subsequent search of the
Pathfinder revealed a live .22 caliber cartridge, fired cartridge
casings, and a box of .22 caliber ammunition.
Between 7:30 p.m. and 8:00 p.m., a black Chrysler and a
white Kia sedan were in the parking lot of a motel in Santa Fe
Springs. According to a motel guest, a male passenger got out of
the Chrysler, said, “Hey, homey,” and fired eight or nine gunshots
at the white Kia. The shooter returned to the Chrysler, which
drove away. The white Kia then drove out of the motel parking
lot.
At about 8:00 p.m., Gomez, driving the white Kia sedan,
pulled up alongside Joyce F. on Carmenita Road and honked
her horn repeatedly. Gomez rolled down her window and told
Joyce F. that she had been shot and asked for help. Lazo was in
the passenger seat of the Kia and had also been shot. Joyce F.
noticed that the passenger side of the car and rear windshield
had “a lot” of bullet holes.
10
An ambulance and police officers arrived. Police found
a .22 caliber handgun between Lazo’s waistband and the
seatbelt clip. As Lazo was being placed on a gurney, .22 caliber
ammunition fell from his pants pocket onto the ground.
DNA recovered from a beer can in the Pathfinder was
consistent with Lazo’s and Gomez’s DNA. DNA found on the
Pathfinder’s steering wheel was consistent with Lazo’s DNA.
Gunshot residue was found on Lazo and Gomez. Ballistics
evidence connected the .22 caliber gun found next to Lazo
with the cartridge cases found in the Pathfinder and the bullet
recovered from Sahagun’s body.
H. Gang Evidence
Los Angeles County Sheriff ’s Deputy Claudia Maldonado
testified that Lazo has “SSW”—an acronym for Southside
Whittier—tattooed on his arm and head. The deputy
encountered Lazo at Mayberry Park on April 4 and April 9, 2017,
and each time Lazo “self-admitted” at that time to being a gang
member. On the second occasion, Lazo was with Gomez, who also
admitted being “from Southside Whittier.” Maldonado prepared
field identification—or F.I.—cards for each interaction, which
noted their gang affiliation, tattoos, and gang monikers.
Deputy Fernando Sarti testified as a gang expert. Sarti
testified that the primary activities of the Southside Whittier
gang are vandalism, petty thefts, robberies, sales of narcotics,
carjacking, possession of handguns, shootings, and murders.
The gang’s “territory” includes Mayberry Park, where Southside
Whittier gang members congregate.
Deputy Sarti testified about two “predicate” crimes
purportedly committed by Southside Whittier gang members.
The crime in each case was being a felon in possession of a
11
firearm. One of the crimes is evidenced by a court minute order
reflecting a conviction of Jose Antonio Garcia on March 18, 2016.
The other crime is shown by a court minute order reflecting a
conviction of Richard Arredondo on October 23, 2015. Deputy
Sarti’s testimony that Garcia and Arredondo were members of
the Southside Whittier gang was based on his review of field
identification cards and “arrest cards” concerning the individuals,
tattoos on Garcia “depicting his gang affiliation,” and booking
photographs of Arredondo “where he depicts his gang affiliation.”
Deputy Sarti further testified that Lazo and Gomez
are active members of the Southside Whittier gang. He based
this opinion on photographs of tattoos on Lazo and Gomez
reflecting membership in the Southside Whittier gang and field
identification cards prepared by others.
Over defense objection, the prosecutor gave Deputy Sarti
a hypothetical that mirrored the facts shown by evidence in this
case. Deputy Sarti stated his opinion that the crimes described
in the hypothetical were committed for the benefit of, and in
association with, a criminal street gang. The activity benefitted
a gang, he explained, because the firing of a weapon “enhances
the reputation of the gang within the gang world as well as
within the community.” The crimes are committed in association
with a gang because “there’s two individuals from the same gang
working together to commit these crimes.”
I. Defense
The defense did not present any witnesses or affirmative
evidence.
12
DISCUSSION
A. Sufficiency of the Evidence of Attempted
Murder on Counts 2, 8 and 14
The convictions on counts 2, 8, and 14 were for the
attempted murders of Jesus A., Robert G., and Maria G.,
respectively. These alleged victims were in the front passenger
seats of the cars driven by Sahagun, Leslie G., and Benjamin G.,
respectively. The prosecution relied on a kill zone theory of
criminal liability as to these crimes and the court instructed
the jury on that theory.6 Lazo contends that the evidence is
insufficient to support the convictions on these counts under
a kill zone theory.7 We agree.
6 As to count 2, the court instructed the jury as follows:
“A person may intend to kill a specific victim or victims and at
the same time intend to kill everyone in a particular zone of harm
or ‘kill zone.’ In order to convict the defendant of the attempted
murder of Jesus [A.] in count 2, the People must prove that the
defendant not only intended to kill Jose Sahagun, but also either
intended to kill Jesus [A.], or everyone within the kill zone. If
you have a reasonable doubt whether the defendant intended
to kill Jose Sahagun or intended to kill Jesus [A.] by killing
everyone in the kill zone then you must find the defendant not
guilty of the attempted murder of Jesus [A.]” The court gave the
same instruction on counts 8 and 14, substituting the names of
Robert G. and Maria G., respectively for the name of the alleged
victim.
7 The Attorney General contends that the evidence is
sufficient to support the convictions under the kill zone theory
and does not argue that the convictions can be affirmed under
any other theory.
13
“ ‘When considering a challenge to the sufficiency of the
evidence to support a conviction, 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. Avila (2009) 46 Cal.4th 680, 701.)
“To prove the crime of attempted murder, the prosecution
must establish ‘the specific intent to kill and the commission of
a direct but ineffectual act toward accomplishing the intended
killing.’ [Citation.] When a single act is charged as an attempt
on the lives of two or more persons, the intent to kill element
must be examined independently as to each alleged attempted
murder victim; an intent to kill cannot be ‘transferred’ from
one attempted murder victim to another under the transferred
intent doctrine.” (People v. Canizales (2019) 7 Cal.5th 591, 602
(Canizales).)
Although the doctrine of transferred intent does not
apply to the crime of attempted murder, our Supreme Court
has “embraced the concept of a concurrent intent to kill
as a permissible theory for establishing the specific intent
requirement of attempted murder.” (Canizales, supra, 7 Cal.5th
at p. 602.) This concept was applied in People v. Bland (2002)
28 Cal.4th 313, where the court approved of a “kill zone” theory
of attempted murder, which applies “ ‘when the nature and scope
of the attack, while directed at a primary victim, are such that
we can conclude the perpetrator intended to ensure harm to the
primary victim by harming everyone in that victim’s vicinity.’ ”
(Id. at p. 329.) The Attorney General in this instant case relies
14
on the kill zone theory to support the convictions on counts 2, 8,
and 14.
In Canizales, the Supreme Court clarified that “the kill
zone theory for establishing the specific intent to kill required
for conviction of attempted murder may properly be applied only
when a jury concludes: (1) the circumstances of the defendant’s
attack on a primary target, including the type and extent of force
the defendant used, are such that the only reasonable inference
is that the defendant intended to create a zone of fatal harm—
that is, an area in which the defendant intended to kill everyone
present to ensure the primary target’s death—around the
primary target[;] and (2) the alleged attempted murder victim
who was not the primary target was located within that zone of
harm. Taken together, such evidence will support a finding that
the defendant harbored the requisite specific intent to kill both
the primary target and everyone within the zone of fatal harm.”
(Canizales, supra, 7 Cal.5th at p. 607.)
The Canizales court further stated: “In determining the
defendant’s intent to create a zone of fatal harm and the scope
of any such zone, the jury should consider the circumstances
of the offense, such as the type of weapon used, the number
of shots fired (where a firearm is used), the distance between
the defendant and the alleged victims, and the proximity of the
alleged victims to the primary target. Evidence that a defendant
who intends to kill a primary target acted with only conscious
disregard of the risk of serious injury or death for those around
a primary target does not satisfy the kill zone theory. . . . [T]he
kill zone theory does not apply where ‘the defendant merely
subjected persons near the primary target to lethal risk. Rather,
in a kill zone case, the defendant has a primary target and
15
reasons [that] he cannot miss that intended target if he kills
everyone in the area in which the target is located.’ ” (Canizales,
supra, 7 Cal.5th at p. 607.)
The Canizales court anticipated that, in light of its
refinement of the kill zone test, “there will be relatively few cases
in which the theory will be applicable” and cautioned trial courts
to “provide an instruction to the jury only in those cases where
the court concludes there is sufficient evidence to support a
jury determination that the only reasonable inference from the
circumstances of the offense is that a defendant intended to kill
everyone in the zone of fatal harm.” (Canizales, supra, 7 Cal.5th
at p. 608; see People v. Cardenas (2020) 53 Cal.App.5th 102, 112
(Cardenas) [under Canizales’s “strict requirements of the kill
zone theory[,] the defendant must have specifically intended to
kill everyone in the area around the primary target as a means of
killing the primary target”].) “The use or attempted use of force
that merely endangered everyone in the area is insufficient to
support a kill zone instruction.” (Canizales, supra, 7 Cal.5th at
p. 608.)
People v. Booker (2020) 58 Cal.App.5th 482 (Booker) is
instructive. In Booker, codefendants Damon Booker and George
Lewis were members of the Poccet Hood gang. (Id. at p. 494.)
They and other Poccet Hood gang members were in a liquor store
where they saw Jose Raya speaking with someone who was
a member of a Poccet Hood rival gang. (Id. at pp. 488, 502.)
Raya was not a member of a gang. (Id. at p. 488.) Raya and his
girlfriend, Reann Lott, left the liquor store in Lott’s car. Raya
was driving and Lott was in the front passenger seat. (Ibid.)
Lewis, with Booker in the passenger seat, followed Raya in a
white car. As Lewis and Booker pulled up next to Raya, Raya
16
told Lott to duck down. As she ducked, Lott saw a hand emerge
from the front passenger window of the white car and heard
five shots fired at their car. (Ibid.) (Other evidence indicated
that Booker fired as few as three and as many as seven shots.)
(Id. at p. 500, fn. 12.) Raya was hit and died as a result of
multiple gunshot wounds to his head. (Id. at pp. 488−489.)
Booker and Lewis were convicted of the murder of Raya and
the attempted murder of Lott. (Id. at p. 487.) With respect to
the attempted murder count, the court had instructed the jury
on the kill zone theory. (Id. at p. 496.)
Division Seven of this court reversed the attempted murder
conviction. After an extensive discussion of the development
of the Supreme Court’s kill zone jurisprudence, culminating in
Canizales, the court explained: “[T]he type and extent of force
used do not support a reasonable inference Booker and Lewis
intended to kill Raya by killing everyone in the car’s cabin. At
most, the evidence supports a reasonable inference [that] Booker
and Lewis acted with conscious disregard of the risk Lott might
be seriously injured or killed. . . . Booker as sole shooter fired a
total of three to seven shots directed at the front driver’s side of
Lott’s stationary car. Further, Booker’s shots were directed at
Raya at close range, striking him twice in his head and once in
his arm in a manner consistent with Raya defensively raising
his left arm during the shooting. The driver’s side front window
of Lott’s car was shattered, but there were no bullet holes in the
car’s body or doors that would have reflected a spray of bullets.
Nor was there evidence any bullets reached the front passenger
side of the car where Lott was sitting, and Lott was not
injured. . . . And finally, there was no evidence suggesting
17
Booker used a rapid-firing semiautomatic or automatic weapon.”
(Booker, supra, 58 Cal.App.5th at p. 500, fn. omitted.)
Turning to the instant case, there was insufficient evidence
to support a kill zone instruction with respect to count 2—
the alleged attempted murder of Jesus A. The evidence was
undisputed that the Pathfinder pulled up alongside the SUV
driven by Sahagun. Jesus A. was in the front passenger seat of
Sahagun’s vehicle. Gomez got out of the Pathfinder, approached
the driver’s side of Sahagun’s SUV and fired one to three shots
at Sahagun from less than one foot away. The Attorney General
concedes, this evidence demonstrates that “Gomez specifically
targeted Sahagun.” There was no evidence of a “spray of bullets”
within Sahagun’s vehicle or other evidence from which a jury
could reasonably infer that Gomez intended to kill Jesus A. or
anyone else in the vehicle as a means of ensuring Sahagun’s
death. There was, therefore, insufficient evidence to support
a finding that Gomez intended to kill Jesus A. under a kill zone
theory.
We reach the same conclusion with respect to count 8
(the attempted murder of Robert G.) and count 14 (the attempted
murder of Maria G.). These alleged victims were the passengers
in cars driven by Leslie G. and Benjamin G., respectively. The
Attorney General concedes that the drivers—the persons closest
to Lazo’s gun—were the specific targets in both cases. In neither
instance is there substantial evidence that Lazo “intended
to create a zone of fatal harm—that is, an area in which [he]
intended to kill everyone present to ensure the primary target’s
death—around the primary target.” (Canizales, supra, 7 Cal.5th
at p. 607.) There is no evidence that a bullet entered the cabin
of Leslie G. and Robert G.’s car and the only bullet that entered
18
Benjamin G. and Maria G.’s car hit Benjamin G. Although
the distances between Lazo’s gun and his targeted victims were
farther than the distance between the shooter and target in
Booker, the slightly greater distances are not enough to compel
a different result. As in Booker, “[a]t most, the evidence supports
a reasonable inference [that the shooter] acted with conscious
disregard of the risk [that the passengers] might be seriously
injured or killed.” (Booker, supra, 58 Cal.App.5th at p. 500.)
Subjecting the passengers to such “lethal risk,” however, is
insufficient to support the application of the kill zone theory.
(Canizales, supra, 7 Cal.5th at p. 607; accord, Cardenas, supra,
53 Cal.App.5th at p. 116.)
The Attorney General argues that “[f]iring more than
enough bullets to kill the driver and passenger at close range
meets the definition of creating a kill zone.” No authority is cited
for this statement and, as Booker demonstrates, it is incorrect.
Although the shooter in Booker fired as many as seven shots
at the driver sitting next to a front seat passenger, the evidence
was insufficient to support a kill zone instruction. Here, the
additional shots Gomez and Lazo fired undoubtedly endangered
others in the cars driven by Sahagun, Benjamin G., and Leslie G.,
but such endangerment, without more, “is insufficient to support
a kill zone instruction.” (Canizales, supra, 7 Cal.5th at p. 608.)
Because we conclude that the convictions on counts 2, 8,
and 14 must be reversed for insufficient evidence under our
high court’s kill zone authorities, we need not consider Lazo’s
challenges to the kill zone instructions on those counts or to
alleged misconduct by the prosecutor in arguing the kill zone
theory to the jury.
19
B. Gang Enhancements
1. Assembly Bill No. 333
Lazo contends that, in light of Assembly Bill No. 333, we
must reverse all the gang enhancements (§ 186.22, subd. (b)(4))
in his sentence. We agree.8
To prove a gang allegation under section 186.22,
subdivision (b)(4), the prosecution must show that the defendant
committed an enumerated offense “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.” (Ibid.) A criminal street gang is
an organized association whose members “engage in, or have
engaged in, a pattern of criminal gang activity.” (§ 186.22,
subd. (f).)
When Lazo committed his crimes and at the time of
his trial, to establish a “pattern of criminal gang activity,” the
prosecution was required to show that at least two persons had
committed or attempted to commit at least two offenses from a
list of predicate crimes. (See former § 186.22, subd. (e).) Our
Supreme Court held that this requirement could be satisfied with
“evidence of the defendant’s commission of the charged offense
8 Because we reverse the gang enhancements, we need not
address Lazo’s contention that the trial court erred by imposing
both the gang enhancements and firearm enhancements under
section 12022.53, subdivisions (b) through (e)(1). We agree with
Lazo and the Attorney General that in the event the prosecution
successfully retries Lazo for any of the gang enhancements, the
court may not impose both the gang and firearm enhancements.
(See People v. Brookfield (2009) 47 Cal.4th 583, 596; § 12022.53,
subd. (j).)
20
and the contemporaneous commission of a second predicate
offense by a fellow gang member” (People v. Loeun (1997)
17 Cal.4th 1, 10 (Loeun)) other than aiding and abetting the
charged offense (People v. Zermeno (1999) 21 Cal.4th 927, 932).
In enacting Assembly Bill No. 333, the Legislature
narrowed the definition of a pattern of gang activity. Most
notably, 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).) Moreover,
“the common benefit” of the offense must be “more than
reputational.” (§ 186.22, subds. (e)(1) & (g).) These changes
to the elements of section 186.22, which benefit defendants by
making the enhancement more difficult to prove, are applicable
to all persons, such as Lazo, whose judgments are not yet final.
(People v. Tran (2022) 13 Cal.5th 1169, 1206−1207; People v.
Salgado (2022) 82 Cal.App.5th 376, 380; People v. Sek (2022) 74
Cal.App.5th 657, 667 (Sek).)
We requested the parties brief the question whether
Assembly Bill No. 333 unconstitutionally amended Proposition 21
and, if so, whether and how its unconstitutionality impacts the
issues in this case.9 Although the Attorney General and Lazo
9 Our Supreme Court is currently considering whether
Assembly Bill 333 unconstitutionally amended Proposition 21,
if applied to the gang-murder special circumstance codified
in section 190.2, subdivision (a)(22). (People v. Rojas (2022) 80
Cal.App.5th 542 (Rojas), review granted Oct. 19, 2022, S275835).
21
disagree as to whether the new law is unconstitutional as
it applies to the gang murder special circumstance that was
enacted under Proposition 21 (compare Rojas, supra, 80
Cal.App.5th 542, review granted) with People v. Lee (2022) 81
Cal.App.5th 232, 236−245 (Lee), review granted Oct. 19, 2022,
S275449), they agree that any unconstitutional amendment of
Assembly Bill No. 333 does not impact the issues in this case.
We agree.
As the parties explain, Proposition 21 did not amend
the definition of a criminal street gang in ways relevant to this
case and, to that extent, “the voters left intact the Legislature’s
power to amend the definition of a criminal street gang in
section 186.22, subdivision (f).” (Lee, supra, 81 Cal.App.5th
at p. 242, review granted; accord, People v. Lopez (2022) 82
Cal.App.5th 1, 22 [“[b]ecause Proposition 21 made no substantive
changes to subdivision (f) of section 186.22, Assembly Bill 333’s
additions and deletions are constitutionally permissible”], petn.
for review pending, petn. filed Sept. 9, 2022, S276331.) Although
Assembly Bill No. 333’s changes to that definition may affect
the conduct punishable under provisions that were enacted
by Proposition 21, the ability of the Legislature to amend the
definition of a criminal street gang implies, in the absence of an
expression of the voters’ contrary intent, the ability to impact
the punishment provisions effected thereby. (See Lee, supra,
81 Cal.App.5th at pp. 242−243, review granted.) Here, the
voters gave no indication of any intent to “freeze [the] statutory
definition” of a criminal street gang for purposes of the provisions
under which Lazo was punished. (See ibid.; accord, Lopez, supra,
82 Cal.App.5th at p. 24, petn. for review pending.) Therefore,
as Lazo and the Attorney General agree, even if Assembly Bill
22
No. 333 unconstitutionally amended Proposition 21 is some
respects, it did not do so in any way that impacts this case.10
Turning to the application of Assembly Bill No. 333 to
this case, we agree with Lazo and the Attorney General that we
must reverse the gang enhancement findings in this case under
Assembly Bill No. 333. The jury decided the gang enhancement
allegations according to instructions that did not include the
provisions of Assembly Bill No. 333. In particular, the jury
was not instructed, as Assembly Bill No. 333 now requires:
that the offenses with which Lazo was charged could not be used
as a predicate offense for purposes of establishing a pattern of
criminal gang activity (§ 186.22, subd. (e)(2)); that the predicate
offenses must have been committed “on separate occasions or
by two or more members” and for the “common[ ] benefit[ ] [of]
a criminal street gang”; (§ 186.22, subd. (e)(1)); and that “the
common benefit” of the offenses must be “more than reputational”
(§ 186.22, subds. (e)(1) & (g)). (See CALJIC No. 17.24.2 (Oct.
2022 update).) The instructions thus effectively omitted these
required elements of the enhancement.
In this situation, “reversal is required unless ‘it appears
beyond a reasonable doubt’ that the jury verdict would have been
the same in the absence of the error.” (Tran, supra, 13 Cal.5th at
p. 1207.) The Attorney General does not contend that this test is
satisfied here. As we noted in our former opinion in this case, the
10 Our holding on this point is narrow and limited to the
case-specific issue upon which we asked for briefing. We express
no view on the issue pending in the Supreme Court in Rojas,
supra, 80 Cal.App.5th 542, review granted, concerning the
constitutionality of Assembly Bill No. 333 as it applies to the
special circumstance under section 190.2.
23
main source of evidence of predicate offenses came from
testimony by Deputy Sarti, which was based not on his personal
knowledge, but rather on court minute orders. These minute
orders are admissible to show the fact of the convictions, but
not the perpetrators’ gang memberships. (See People v. Garcia
(2020) 46 Cal.App.5th 123, 171−172 [“the use of a record of a
prior conviction to prove any fact other than the fact of conviction
violates the Sixth Amendment”].) The perpetrators’ gang
affiliations are “case-specific facts that must be proved by
independently admissible evidence.” (People v. Valencia (2021)
11 Cal.5th 818, 839.) In our former opinion, we held that the
error in admitting this hearsay testimony was harmless with
respect to all of the convictions but one because the jury found
that Lazo committed all of the current charged offenses for
the benefit of a criminal street gang, and each current charged
offense could serve as a predicate offense for the subsequent
offenses. (See Loeun, supra, 17 Cal.4th at p. 10.) But under
the newly enacted section 186.22, subdivision (e)(2), a currently
charged offense cannot be a predicate offense for proving a
pattern of criminal gang activity. Thus, there was insufficient
evidence to prove the gang enhancements under the new version
of the law.
2. Proceedings Upon Remand
If the prosecution fails to produce sufficient evidence to
support an enhancement under the law existing at the time of
trial, this is equivalent to an acquittal, and the prosecution may
not retry the defendant. (People v. Garcia (2014) 224 Cal.App.4th
519, 526.) If, on the other hand, the evidence to support an
enhancement is insufficient only because of the retroactive
application of a new law, “ ‘the double jeopardy clause of the
24
Constitution will not bar a retrial.’ ” (Sek, supra, 74 Cal.App.5th
at p. 669.)
In our former opinion in this case, we held that there was
sufficient evidence under the law that existed at the time of
trial to support all of the gang enhancements but the one for
carjacking. Upon remand, therefore, the prosecution will have
the option to retry Lazo for all of the gang enhancements but the
one for carjacking.
C. Sufficiency of the Evidence to Support the
Gang Enhancements
Lazo attacks the gang enhancements on a second
ground,11 arguing that, under the law that existed at the time
of trial, the evidence was insufficient to support the finding
that he committed his crimes “for the benefit of, at the direction
of, or in association with any criminal street gang.” (§ 186.22,
subd. (b)(1).) We reject the argument.
Whether a crime is committed in association with a gang
can be established by expert testimony (People v. Albillar (2010)
51 Cal.4th 47, 63), provided it is not “purely conclusory” (People v.
Prunty (2015) 62 Cal.4th 59, 85). Here, Deputy Sarti testified
11 In Discussion part B, ante, we reverse the gang
enhancements due to the retroactive application of Assembly
Bill No. 333. That holding does not render Lazo’s additional
argument here regarding the sufficiency of the evidence moot.
In part B, we held that the prosecution could elect to retry
all but one of the gang enhancements upon remand. If Lazo
were correct regarding the sufficiency of the evidence of the
enhancement under the law as it existed at the time of trial,
that would not be the case. (See People v. Garcia, supra, 224
Cal.App.4th at p. 526.)
25
that gang members will work with other gang members because
they can trust each other. “They would rather take someone
within their gang that they trust and they know are going to
be loyal to them in case they get caught.” Committing crimes
with another trusted gang member, Deputy Sarti testified,
increases the likelihood that they will complete the crime without
getting caught. Gang members will also commit crimes with
one another so that each has someone that can confirm that he
or she committed the crimes, which can enhance the individual’s
standing within the gang. In response to a hypothetical question
that mirrored the facts of this case, including that two gang
members committed the crimes together, Deputy Sarti opined
that the hypothetical criminals were acting in association with
a gang because “there’s two individuals from the same gang
working together to commit these crimes.”
In addition to Deputy Sarti’s testimony, there is evidence
that Lazo’s and Gomez’s crime spree began as a broader
Southside Whittier gang-related enterprise. The carjacking that
provided the vehicle for committing the shootings involved not
only Lazo and Gomez, but at least two others who were together
with Lazo and Gomez in the white car that pulled up behind the
Pathfinder. As Lazo and Gomez drove away in the Pathfinder,
two men got out of the white car and told Johnny G. words to the
effect of, “this is South Side.” Jurors could easily infer from that
statement that the carjacking was gang-related and reasonably
infer that the shooting spree that followed soon afterward was
connected with the carjacking and similarly gang-related.
Based on the foregoing, the evidence was sufficient to
support findings that Lazo committed the crimes in association
with a criminal street gang.
26
D. Exhibit 49—Minute Order re Lazo’s Prior
Offense
The prosecution introduced exhibit 49 while questioning
Deputy Sarti about predicate offenses. The first three pages of
the exhibit are minute orders issued in the case of People v. Jose
Antonio Garcia (L.A. Sup. Ct. case No. VA141398). As discussed
above, the minute orders reflect the conviction of Garcia of the
crime of being a felon in possession of a firearm. Following the
first three pages are five pages of court minute orders in the case
of People v. Alejandro Lazo (L.A. Sup. Ct. case No. VA139882),
presumably the defendant in this case. These pages appear to
reflect Lazo’s conviction by plea in February 2016 of violating
section 245, subdivision (a)(1) and section 520.12 The document
also states that the court sentenced Lazo to three years in prison
on each count, with the sentence on the second count to run
concurrently with the first.
Lazo contends that the inclusion of the five pages referring
to his prior conviction constitutes prosecutorial misconduct and
deprived him of his right to a fair trial.
Lazo has forfeited any argument concerning the admission
of the extraneous pages in exhibit 49 by failing to object to them
below. (See People v. Ashmus (1991) 54 Cal.3d 932, 976; People v.
Valdez (2004) 32 Cal.4th 73, 124−125.) As the Attorney General
12 The minute order does not indicate the substance of
section 245, subdivision (a) or section 520. Section 520, at the
relevant time, prescribed the punishment for extortion of “any
money or other property from another, under circumstances
not amounting to robbery or carjacking, by means of force, or
any threat.” (Former § 520.) Section 245, subdivision (a)(1)
criminalizes assault with a deadly weapon other than a firearm.
27
points out, the inclusion of the pages referring to Lazo could have
been avoided if counsel had raised the issue any time prior to
the commencement of jury deliberations. Lazo did not, however,
raise any objection to the document or otherwise bring the issue
to the court’s attention in any way.
In any event, the inclusion of the extra pages, which the
Attorney General describes as a “careless mistake,” does not
constitute a “deceptive or reprehensible” prosecutorial method
(see People v. Hill (1998) 17 Cal.4th 800, 819) and did not deprive
Lazo of a fair trial. Nor is there any basis for concluding that the
exhibit was prejudicial under any standard. The only reference
to exhibit 49 during trial occurred when the prosecutor drew
Deputy Sarti’s attention to “just the top page” of the exhibit,
and asked the deputy if it indicated that Jose Antonio Garcia
committed the crime of being a “felon with a firearm.” Deputy
Sarti said it did. Neither side thereafter referred to the exhibit
or mentioned it during closing arguments. The jury did not ask
any question about the document. Indeed, there is no reason to
believe that the jury, if it looked at the document at all, looked
beyond the “top page”—the only page that the prosecutor
indicated was relevant. Even if a juror did notice the additional
pages attached to the Garcia minute orders, there is no reason to
believe that the information had any effect on the jury’s verdict.
Lazo further contends that his counsel was constitutionally
deficient by failing to examine exhibit 49 and object to the
offending pages of the exhibit. Even if we assume that counsel
acted below the standard of care by failing to inspect the exhibit
or object to it, Lazo has made no showing that these deficiencies
in counsel’s performance were prejudicial under Strickland v.
Washington (1984) 466 U.S. 668.
28
E. Exhibit 48—Notation of Parole on Field
Identification Cards
The prosecution introduced the two field identification
cards concerning Lazo as evidence that Lazo had admitted to
Deputy Maldonado to being a member of the Southside Whittier
gang. On the back side of the cards, there is a box that is checked
in front of the word, “parole.” Lazo contends that his status as
a parolee was irrelevant and unduly prejudicial under Evidence
Code section 352, and that the reference to “parole” should have
been redacted.
The argument is forfeited by failing to raise it below. In
any case, the prosecutor’s failure to redact the reference to parole
does not constitute misconduct. The prosecutor did not refer to
the offending statement or question any witness about it, and
there is no basis in the record for concluding that it came to the
attention of any juror or, if it did, that it had a prejudicial effect
on the verdict. For the same reason, Lazo’s argument that he
was deprived of the effective assistance of counsel because his
counsel failed to object to the reference is without merit.
F. Prosecutor Comments on Ballistics Expert
Testimony
Lazo contends that the prosecutor committed prejudicial
misconduct by vouching for the credibility of the ballistics
evidence. There was no error.
A criminalist and ballistics expert testified to her opinion
that the gun found next to Lazo in the white Kia fired bullets
connected to cartridges found in the Pathfinder and a bullet
taken from Sahagun’s body. The expert explained how she
compared the marks on the bullet cartridges found in the
Pathfinder and on the bullet taken from Sahagun’s body with
29
marks on bullets and bullet cartridges created when she test-
fired Lazo’s gun.
After her testimony, the court permitted a juror to submit
a question to the ballistics expert asking: What is the probability
that markings on the bullets and cartridges could match both
the tested gun and another gun? The expert answered: “This
is not a field like DNA in which there is [sic] genetic populations
or probability that can be stated at this point. There is research
being conducted to better answer that question,” including the
development of “software and . . . algorithms with computers and
technology to supplement the examiner’s opinion and develop
some better statistics around the field, but today there is no
number that I can give. It’s not analogous to DNA.” On cross-
examination regarding the question, the expert stated that,
“as an examiner[,] what I’m looking for is a certain quantity
and quality of marks that have duplicated, that have reproduced,
not 100 percent.”
During closing argument, the prosecutor addressed the
juror’s question and the expert’s response. He acknowledged
that the expert stated that “there’s no statistical analysis for
[ballistics testing],” and added: “The alternative is this. The
alternative is that this defendant here is seen in that car, in
that green Pathfinder, his DNA is found in that green Pathfinder.
His DNA is found in the Kia. He is found with a gun that has
his DNA in the magazine of that gun. He’s got that gun in his
hip pocket. The alternative to this gun being the same gun used
by this defendant to shoot Tommy [A.], the alternative is that
somebody else on that particular Saturday, on April 29th of 2017,
another male Hispanic, female Hispanic got a green Pathfinder,
went to all these various locations, shot all these people and
30
somehow the gun that they had . . . leaves the exact same
ballistic imprints that’s found on the gun that this defendant had
that night. That is—I’m just going to say it. That is impossible.
Okay? Because that’s the alternative. Because all the evidence
points to this defendant being the shooter, this defendant being
the driver, this defendant having the gun. And to say that
there’s a possible other gun that might have been used in those
series of facts, it’s just not possible.” Lazo did not object to these
statements.
During his rebuttal argument, the prosecutor reiterated his
point: “[T]he alternative [to the argument that Lazo’s gun is the
gun used in the subject shootings] is somebody else has the exact
same firearm in the exact same car, a green Pathfinder, a white
Kia, and they went on the same exact rampage that they did[,]
and it just so happens that the two guns that shoot exactly alike
and leave the exact same defects, one of them falls into [Lazo’s]
hip pocket. And that is unreasonable. That is impossible.”
Again, Lazo did not object.
On appeal, Lazo contends that the prosecutor’s comments
amounted to “unsworn testimony without being subject to
cross-examination” and created “a significant danger the jurors
would misunderstand the prosecutor’s comments to mean they
were not required to independently assess the ballistics expert’s
testimony.”
Lazo forfeited this argument by failing to object to
the prosecutor’s statements. Even if the argument has been
preserved, it is without merit. We agree with the Attorney
General that the prosecutor’s comments did not constitute
improper vouching for the ballistics expert or were otherwise
outside the “wide latitude” that prosecutors are given during
31
argument. (People v. Bonilla (2007) 41 Cal.4th 313, 336–337;
see People v. Frye (1998) 18 Cal.4th 894, 971 [prosecutor
does not commit improper vouching when his comments about
a witness’s testimony “are based on the ‘facts of [the] record
and the inferences reasonably drawn therefrom, rather than
any purported personal knowledge or belief ’ ”].)
G. Alleged Vouching for Deputy Sarti
Lazo argues that the prosecutor committed misconduct
by improperly vouching for Deputy Sarti during the prosecutor’s
rebuttal argument. Even if the argument was not forfeited by
Lazo’s failure to object during trial, he has failed to establish
prejudicial error.
During cross-examination of Deputy Sarti, defense counsel
asked how often Deputy Sarti, in testifying as a gang expert,
concluded that the crimes described in a prosecutor’s hypothetical
were committed for the benefit of or in association with a gang.
Deputy Sarti answered, “[p]robably 80 or 90 percent” of the time.
During the defense closing argument, counsel argued
that Deputy Sarti is “given a hypothetical that exactly mirrors
this case, and then he is asked[,] is this done for the benefit of,
direction, or in association with a criminal street gang? He says
yes. Of course.”
During the prosecutor’s rebuttal argument, the prosecutor
addressed Deputy Sarti’s testimony that he opines favorably for
the prosecution 80 or 90 percent of the time. Counsel argued:
“But what he also testified is this. Look, in the other [10] to
20 percent of the time I don’t see it. I don’t see it. I don’t see
the relationship between gangs and a crime and I don’t think it’s
done for the benefit of a gang. And what he told you is this. If a
D.A. asks me to do it, I tell them no. If a D.A. asked me to do it, I
32
would get up on the stand and I would say no. There’s no reason
for him to put his career on the line and get up here and just
simply rubber stamp anything that the prosecution is asking
him to say.” Lazo asserts that this last sentence, which he quotes
in isolation, constitutes improper vouching for Deputy Sarti.
Lazo did not object to the statement below and his
challenge on appeal is therefore forfeited. Even if the argument
is not forfeited, the challenged statement is within the “ ‘wide
latitude’ ” counsel is given to fairly comment on the evidence.
(People v. Wharton (1991) 53 Cal.3d 522, 567.)
H. Alleged Misconduct During Prosecutor’s
Re-argument on Count 1
After two days of deliberations, the jury informed the court
that it had “agreed on all the counts but one.” The remaining
count was count 1, the murder of Sahagun. The court read the
verdicts on the counts the jury had reached, which included the
findings that the attempted murders were committed willfully,
deliberately, and with premeditation. Upon inquiry from the
court, the jury asked for clarification regarding aiding and
abetting liability (to which the court referred them to jury
instructions on the point) and requested re-argument with
respect to “the criteria for first degree murder as it applies to
this case.”
Lazo contends that the prosecutor committed misconduct
during the re-argument by lowering the prosecutor’s burden of
proof, misstating the evidence, and misstating the law. These
arguments have been forfeited by failing to raise the issue below.
Even if not forfeited, we would reject them on the merits as we
explain below.
33
The prosecutor argued that in determining whether Lazo
committed first degree murder of Sahagun, “you [the jurors]
have to look at the totality of what happened [that] day,” not
at the shooting of Sahagun in “isolation alone.” The prosecutor
proceeded to recount the shooting of Tommy A., where Lazo
“hands the gun to [Gomez] and tells her to shoot him.” The
prosecutor further described the other attempted murders,
which the jurors had previously found were committed with
premeditation, willfulness, and deliberation. The prosecutor
then argued: “You all found that each of those individuals in the
car that were lined up in front of him he had the premeditation,
the willfulness and deliberation to kill each of those as well.
So it’s unlikely—in fact, I’d say it’s unreasonable for him to
have that premeditation and willfulness and deliberation to kill
Tommy [A.], Michael [L.], Benjamin [G.], Maria [G.], Anthony [E.]
and then get to the Sahagun family and not have that specific
intent to kill him, and then when he gets the gun back and
goes on his shooting spree again attempt[s] to kill Lisa [R.],
William [K.], Leticia [A.], Julio [R.]—you found that he had the
premeditation, willfulness and deliberation in the attempted
murders of the people preceding Mr. Sahagun and after Mr.
Sahagun. And to believe that when it came to Mr. Sahagun he
did not have the premeditation and willfulness and deliberation,
I think that goes counter to the evidence. So based on the facts
that we have here of that intent that he had to kill from the
very beginning of . . . Tommy [A.] all the way to the end of . . .
William [K.], he had that same premeditation and willfulness and
deliberation to kill along the way when it came to Mr. Sahagun
as well.”
34
Lazo contends that the prosecutor’s argument “improperly
bootstrapped the unresolved murder charge to the multiple guilty
verdicts already rendered” and that the effect of the argument
“was to remove the elements of the murder charge from the
jury’s consideration and to lower the prosecution’s burden of
proving all elements of the murder charge beyond a reasonable
doubt.” We disagree. The prosecutor argued, in essence, that
the jury can infer from the fact that Lazo acted with willfulness,
premeditation, and deliberation in the commission of the
attempted murders that took place before and after the shooting
of Sahagun that he acted with the same mental state when
he aided and abetted Gomez in the shooting of Sahagun.
The statements did not lessen the burden of proof and do not
constitute misconduct.
Lazo further contends that the prosecutor committed
misconduct by misstating the evidence when he argued that
Lazo handed the gun to Gomez prior to Gomez “exiting the
vehicle” just before she shot Sahagun. We reject the argument.
The prosecutor argued that, after Gomez shot Tommy A., Lazo
had possession of the gun during the attempted murders of
Michael L., Benjamin G., and Anthony E. prior to reaching the
intersection of Santa Gertrudes and Alicante. The prosecutor
then stated that Lazo “gives that gun to . . . Gomez just like he
did with [the shooting of] . . . Tommy [A.] . . . [¶] . . . . He had to
turn that gun over to . . . Gomez because he’s used it immediately
before. He knows what . . . Gomez is capable of. He has told her
what to do. He has seen her do it. And he hands that gun over
to her when they pull up to the Sahaguns.”
The assertion that Lazo handed the gun to Gomez during
the short time between his attempted murders of Michael L.,
35
Benjamin G., and Anthony E.—all of which took place within
minutes of Gomez’s shooting of Sahagun—is a reasonable
inference, particularly in light of his handing of the gun to Gomez
for the purpose of shooting Tommy A. about one-half hour earlier.
The comment is not misconduct.
Lazo next argues that the prosecutor misstated the
law when he stated: “ The premeditation, willfulness and
deliberation, it doesn’t matter what the female did. It doesn’t
matter if . . . Gomez had other thoughts in her head. The fact
that . . . Lazo . . . had that premeditation and willfulness and
deliberation, that intent when he turned that gun over and she
ended up shooting and killing him, that makes him liable for
first degree murder.” Lazo argues that this is incorrect because
aiding and abetting the crime of murder requires the defendant
to “ ‘know and share the murderous intent of the actual
perpetrator.’ (People v. McCoy[, supra,] 25 Cal.4th [at p.] 1118.)”
Contrary to Lazo’s suggestion, the jury could have
convicted Lazo of first degree murder by aiding and abetting
Gomez even if “Gomez had other thoughts in her head” and did
not premeditate or deliberate the murder herself. (See People v.
McCoy, supra, 25 Cal.4th at p. 1122 [“[A] person, with the mental
state necessary for an aider and abettor, helps or induces another
to kill, that person’s guilt is determined by the combined acts of
all the participants as well as that person’s own mens rea. If that
person’s mens rea is more culpable than another’s, that person’s
guilt may be greater even if the other might be deemed the actual
perpetrator.”].)
Because we conclude the prosecutor’s challenged comments
did not constitute misconduct, Lazo’s related arguments that
36
his counsel was ineffective by failing to object to the comments
necessarily fails.
I. Senate Bill No. 567
Lazo contends that Senate Bill No. 567 applies
retroactively to his case. Senate Bill No. 567, which became
effective January 1, 2022, after Lazo was sentenced but before
his case became final, added new requirements to sentencing
hearings. Most notably, the law allows the sentencing court to
“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.” (Stats. 2021, ch. 731, § 1 [enacting § 1170, subd. (b)(2)].)
Prior to the enactment of the law, there was no such restriction
on the application of upper term sentences, and “the choice of the
appropriate term . . . rest[ed] within the sound discretion of the
court.” (Former § 1170, subd. (b).)
We agree with Lazo and courts that have addressed
this issue that the law “applies retroactively in this case as
an ameliorative change in the law applicable to all nonfinal
convictions on appeal.” (People v. Flores (2022) 73 Cal.App.5th
1032, 1039; accord, People v. Wandrey (2022) 80 Cal.App.5th 962,
981; People v. Lopez (2022) 78 Cal.App.5th 459, 465.) Because we
reverse three of Lazo’s convictions for attempted murder and all
of his remaining gang enhancements, the trial court must hold
a new sentencing hearing. Lazo will be entitled to benefit from
Senate Bill No. 567 at any such hearing.
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DISPOSITION
The attempted murder convictions on counts 2, 8, and 14
are reversed based on insufficiency of the evidence. The true
findings on the remaining gang enhancement allegations under
Penal Code section 186.22, subdivision (b) are also reversed
based upon the retroactive application of Assembly Bill No. 333.
The court shall resentence the defendant accordingly, and in
light of the amendments to Penal Code section 1170 made by
Senate Bill No. 567, subject to the prosecution’s decision whether
to retry the defendant on any of the gang enhancements. The
judgment is otherwise affirmed. The court shall prepare an
amended abstract of judgment reflecting the modified sentences
and forward a copy of the abstract of judgment to the Department
of Corrections and Rehabilitation.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
BENDIX, J.
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