Filed 12/12/22 P. v. Rivera CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B309474
(Super. Ct. No. BA463515)
Plaintiff and Respondent, (Los Angeles County)
v.
JUNIOR RIVERA,
Defendant and Appellant.
Junior Rivera appeals from the judgment after the jury
convicted him of first degree murder (Pen. Code,1 §§ 187, subd.
(a), 189, subd. (a), count 1), reckless driving while evading a
police officer (Veh. Code, § 2800.2; count 2), unlawful firearm
activity (§ 29820, subd. (b); count 4), and misdemeanor firearm
theft (§ 487, subd. (d)(2); count 5). For count 1, the jury found
true that Rivera committed murder to benefit a criminal street
gang pursuant to section 186.22, subdivision (b)(1)(C), and
1 Further unspecified statutory references are to the Penal
Code.
personally used and discharged a firearm causing death within
the meaning of section 12022.53, subdivisions (d) and (e)(1). On
counts 2 and 4, the jury also found true the gang enhancement
pursuant to section 186.22, subdivision (b)(1)(A).
The trial court sentenced Rivera to 50 years to life for count
1 (25 years to life for first degree murder plus 25 years to life for
personally discharging a firearm causing death), a consecutive
five-year term on count 2 (two years for reckless driving plus
three years for the gang enhancement), and a concurrent
five-year term on count 4 (two years for unlawful firearm activity
plus three years for the gang allegation). On count 5, the court
ordered Rivera to serve 364 days in county jail to run
consecutively to count 1.
Rivera contends Assembly Bill No. 333 (Stats. 2021, ch.
699, §§ 1-5) (Assembly Bill 333) requires that we vacate the
section 186.22 gang enhancement on counts 1, 2, and 4, and the
section 12022.53, subdivision (e)(1) firearm enhancement on
count 1, and remand for a trial on these enhancements. Rivera
also contends the gang enhancement must be reversed because
the prosecution’s expert relied on inadmissible hearsay, and the
abstract of judgment and sentencing order should be amended to
correct clerical errors.
We vacate the gang enhancement (§ 186.22, subd. (b)) on
counts 1, 2, and 4, the firearm enhancement (§ 12022.53, subd.
(e)(1)) on count 1, and remand to allow retrial pursuant to
Assembly Bill 333. Upon resentencing, the court shall correct
clerical errors in the abstract of judgment and the sentencing
order. In all other respects, the judgment is affirmed, including
the conviction for first degree murder and true finding that
Rivera personally discharged a firearm.
2
FACTUAL AND PROCEDURAL HISTORY
Murder of J.M.
In December 2017, Los Angeles Port Police Officer Alfonso
Garcia discovered that his firearm and loaded magazines were
stolen from his truck. The officer found a small flashlight that
did not belong to him.
Four days later, a witness heard a commotion near his
backyard and saw J.M., a member of the White Fence gang,
running through an alley. The witness saw a black two-door
Infiniti G35 stop outside the backyard and saw Rivera get out of
the passenger side. Rivera, who was a member of the rival Boyle
Heights 13 gang, chased J.M. and fired a gunshot; J.M. fell.
Rivera then approached “close range” to J.M., stood over him, and
shot him four or five times in the back. Rivera ran back to the
car and drove away.
J.M. suffered from multiple gunshot wounds and died from
his wounds.
Arrest and investigation
Surveillance cameras near the site of the shooting recorded
J.M. walking through an alley and the Infiniti driving through a
minute later. The footage captured the license plate numbers on
the Infiniti.
Two days later, codefendant Geovanni Lezama was
arrested at his home as he was getting into his black Infiniti. His
license plate numbers matched the ones from the surveillance
video. During a search of Lezama’s home, officers found a
notebook with Boyle Heights 13 gang-related graffiti in it.
Lezama was placed in a cell with an undercover agent.
Lezama told the agent that he was 13 years old when he became
a gang member, but “got out” of the gang about nine months
3
before the shooting. He showed the agent a “BHTS” tattoo on his
head. He said he was shot by a White Fence gang member two
years prior and hated those gang members.
Lezama told the agent that he had a two-door Infiniti G35.
On the day of the shooting, he wanted to drive around to look for
White Fence Gang members and he “forced” Rivera to go with
him. While driving, they saw a person with a White Fence gang
tattoo. He said Rivera was the shooter and used a gun that he
stole from a “cop car.” Lezama said he did not get out of his car
during the shooting.
Rivera was arrested the next day. On the day of his arrest,
Rivera fled from police officers who were attempting a traffic stop
of his car. Rivera drove onto the freeway, abandoned his vehicle,
and fled on foot before he was caught by police officers.
Rivera was placed in a cell with an undercover agent and
told the agent “I’m going down for murder.” Rivera said the
shooting happened “a couple days ago” and that his “stupid ass
homie got caught and now everybody else is getting caught.” He
believed his companion “ratted [him] out,” and said the plan was
his companion’s idea.
Rivera said his companion was arrested at his home. He
said he “told his stupid ass to get rid of that car, and he still
wanted to drive it.” He said his companion drove a “two-door
Infinit[i]” and “there aren’t too many of those” in Boyle Heights.
Rivera said the shooting took place in the “White Fence’s
neighborhood.” Rivera said he used a “cop gun” he stole from a
“cop car” in Highland Park. He acknowledged the victim died.
When asked about the gun, Rivera said he “got rid of [the gun]
already.” Rivera said much of his gang “went their own way” and
4
that the remaining 15 members were “over here . . . putting in
their work.”2
After learning Rivera used a firearm that was stolen from a
police officer, officers investigated the burglary of Officer Garcia’s
gun and ammunitions. Officer Garcia provided the officers with
two spent cartridges to compare to the bullet fragments and
cartridges found near J.M.’s body. A forensic analysis revealed
the cartridges provided by Officer Garcia and the cartridges from
the shooting were fired from the same gun. The officers also
conducted a D.N.A. analysis on the flashlight found in Officer
Garcia’s car. The analysis showed D.N.A. matching Rivera’s
D.N.A. on the flashlight.
Statements from Vargas and Lizarraga
Natalie Vargas knew Lezama and Rivera. She believed
Lezama was a Boyle Heights 13 gang member because of the
“BHTS” tattoo on his head. Vargas met with Rivera the day after
the shooting. Rivera told her that he, Lezama, and another
companion, Arturo Lopez (known as “Boxer”), were driving in
Lezama’s car on the day of the shooting when they saw a person
with a White Fence face tattoo. When Lopez asked where that
person was from, the person replied, “White Fence.” Rivera said
they shot the person. Rivera told Vargas that he and Lopez were
both shooters and that the shooting was Lezama’s idea. He said
he used a stolen “cop’s gun.”
Alma Lizarraga was previously in a romantic relationship
with Lopez. During an interview with police officers, she said
Lezama, Rivera, and Lopez went “cruising.” Lezama and Rivera
were in Lezama’s car and Lopez drove another car. Rivera
2“Putting in work” means to commit crimes for the gang,
which includes a “shooting, a robbery, or a murder.”
5
identified a White Fence gang member by his tattoo, and he shot
him.
Gang expert testimony
A gang expert testified he was assigned to monitor gangs,
including the Boyle Heights 13 and White Fence gangs. He
explained these gangs have a “rivalry,” which stem from a fight
over territory. The Boyle Heights 13 gang controlled a “very
small” area and had approximately 20 members. Their territory
was within the territory controlled by the White Fence gang. The
White Fence gang controlled a large area and had approximately
350 members. J.M.’s murder occurred within the White Fence
territory.
Five months before J.M.’s murder, the expert participated
in the arrest and investigation of a stabbing of another Boyle
Heights 13 gang member, Ryan Ramirez, perpetrated by multiple
White Fence gang members. The stabbing occurred at a location
within “disputed [gang] territory.”
The expert testified the primary activities of the Boyle
Heights 13 gang include “weapon possession, vandalism, grand
theft auto” and robberies. He knew Lezama and Rivera through
past contacts. He knew Lezama’s gang moniker was “Goofy,” and
Rivera’s moniker was “Minor.” He was also familiar with Lopez
(“Boxer”) and Ramirez (“Puppy”). He opined that all four of these
individuals were Boyle Heights 13 gang members.
The expert identified Lezama in photographs in which he
posed with several Boyle Heights 13 gang members. He was
familiar with the gang members in the photographs and had
arrested some of them. In one photograph, Lezama and five
other gang members held up hand signs associated with the
Boyle Heights 13 gang. In one photograph from Rivera’s
6
Instagram account, Rivera had three pistols and displayed the
Boyle Heights gang signs with his hands.
The prosecution presented several photographs of Lezama’s
tattoos, including a “BHTS” tattooed on Lezama’s stomach and
the back of his head. The expert testified these tattoos were
associated with the Boyle Heights 13 gang. Lezama also received
a new tattoo while he was awaiting trial. The expert opined that
getting a new gang tattoo was evidence of his “full intent to
remain active in the gang.”
The prosecution presented the expert with evidence of
predicate offenses of two Boyle Heights 13 gang members. The
evidence included certified court records establishing a 2015
weapon possession conviction for Ryan Ramirez and a 2016
concealed firearm conviction for Ricky Valencia, two fellow gang
members.
The expert opined that based on a hypothetical with facts
similar to J.M.’s murder, the murder was committed to benefit
the Boyle Heights 13 gang. He opined the murder was
perpetrated by the gang because two of its members were
“together when they committed the crime.” He also opined the
murder benefited the gang: “[T]his crime is a perfect example of
how it benefits the gang. It instills fear and intimidation within
the community. It makes it known to other gang members and
rival gang members that this gang is willing to commit these
ruthless acts of violence. And it enhances their gang’s reputation
overall as one that is violent and is able and willing to commit
these kind[s] of crimes.”
Verdict and sentencing
The jury convicted Rivera of first degree murder (§§ 187,
subd. (a), 189, subd. (a), count 1), reckless driving while evading a
7
police officer (Veh. Code, § 2800.2; count 2), unlawful firearm
activity (§ 29820, subd. (b); count 4), and misdemeanor firearm
theft (§ 487, subd. (d)(2); count 5). On counts 1, 2, and 4, the jury
found true that Rivera committed these crimes to benefit a
criminal street gang (§ 186.22, subds. (b)(1)(A) & (C)). Also on
count 1, the jury found true Rivera personally used and
discharged a firearm causing death within the meaning of section
12022.53, subdivisions (d) and (e)(1).
On count 1, the trial court sentenced Rivera to 50 years to
life (25 years to life for murder, plus 25 years to life for the
§ 12022.53, subds. (d) and (e)(1) firearm enhancements). On
count 2, the court sentenced him to a consecutive five-year term
(two years for reckless driving, plus three years for the gang
enhancement (§ 186.22, subd. (b)(1)(A)). On count 4, the court
imposed a concurrent term of five years (two years for unlawful
firearm activity, plus three years for the gang enhancement
(§ 186.22, subd. (b)(1)(A)). On count 5, the court ordered Rivera
to serve 364 days in county jail to run consecutively to count 1.
DISCUSSION
Assembly Bill 333
Rivera contends, and the Attorney General concedes, he is
entitled to the ameliorative benefits of Assembly Bill 333,
effective January 1, 2022. We agree.
Assembly Bill 333 amends section 186.22 in several ways.
(Stats. 2021, ch. 699, § 3.) It modifies the definitions of “pattern
of criminal gang activity” and “criminal street gang” and clarifies
the evidence required to show a benefit to a criminal street gang.
It increases the threshold for conviction of the offense and
imposition of the enhancement. In addition, Assembly Bill 333
added section 1109, which provides, that if “requested by the
8
defense, a case in which a gang enhancement is charged under
subdivision (b) or (d) of Section 186.22 shall be tried in separate
phases.” (§ 1109, subd. (a).)
As relevant here, Assembly Bill 333 amends the law
regarding predicate offenses. Now, “(1) the offenses must have
‘commonly benefited a criminal street gang’ where the ‘common
benefit . . . is more than reputational’; (2) the last predicate
offense must have occurred within three years of the date of the
currently charged offense; (3) the predicate offenses must be
committed on separate occasions or by two or more gang
members, as opposed to persons; and (4) the charged offense
cannot be used as a predicate offense. (Assem. Bill 333, § 3,
amended § 186.22, subd. (e)(1)–(2), eff. Jan. 1, 2022.) With
respect to common benefit, the new legislation explains: ‘[T]o
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 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.’ (Assem. Bill 333, § 3, amended
§ 186.22, subd. (g), eff. Jan. 1, 2022.).” (People v. Lopez (2021) 73
Cal.App.5th 327, 345 (Lopez).)
The parties agree, as do we, that Assembly Bill 333’s
amendments affecting predicate offenses apply retroactively to
judgments of conviction that are not yet final. (In re Estrada
(1965) 63 Cal.2d 740, 744; Lopez, supra, 73 Cal.App.5th at pp.
344-345.) The Attorney General concedes that “there was no
evidence presented that [Ramirez’s] or Valencia’s predicate
offenses benefited [the] Boyle Heights gang in a way that was
9
more than reputational” and that “remand is required.” Thus,
the proper remedy is to vacate the true finding on the section
186.22, subdivision (b) gang enhancement.
The Attorney General agrees that vacating the section
186.22, subdivision (b) gang enhancement would also “undo the
section 12022.53 subdivision (e)(1)” firearm enhancement.
However, because the jury found that Rivera personally and
intentionally discharged a firearm, causing death pursuant to
section 12022.53, subdivision (d), the Attorney General maintains
Rivera is still subject to the same consecutive 25-year-to-life
sentencing enhancement. We agree.
Unlike section 12022.53, subdivision (e)(1), which requires
a finding that a person “violated subdivision (b) of Section
186.22,” section 12022.53, subdivision (d) does not require such a
finding for the 25-year-to-life sentencing enhancement to apply.
Under subdivision (d), a person who “personally and intentionally
discharges a firearm” and proximately causes great bodily injury
or death “shall be punished by an additional and consecutive
term of imprisonment in the state prison for 25 years to life.” In
contrast, subdivision (e)(1) applies to a principal only if both of
the following are met: “(A) The person violated subdivision (b) of
Section 186.22” and “(B) Any principal in the offense committed
any act specified in subdivision (b), (c), or (d).”
Here, because Rivera personally and intentionally
discharged a firearm causing the death of J.M., the 25 year-to-life
enhancement remains intact. (See Lopez, supra, 73 Cal.App.5th
at pp. 347-348 [the firearm enhancements on two counts of
murders where the jury found true that the defendant personally
and intentionally discharged a firearm pursuant to section
10
12022.53, subdivision (d), which carry the same penalty, remain
intact].)
Rivera contends that we must reverse his convictions
because they were not tried separately from the gang
enhancement, as required by section 1109. (People v. Burgos
(2022) 77 Cal.App.5th 550, 568-569, review granted July 13,
2022, S274743.) The Attorney General argues that section 1109
does not apply retroactively. (People v. Perez (2022) 78
Cal.App.5th 192, review granted Aug. 17, 2022, S275090; People
v. Ramirez (2022) 79 Cal.App.5th 48, 64-65, review granted Aug.
17, 2022, S275341.) There is a split of authority on whether
section 1109 applies retroactively to nonfinal cases. (People v.
Tran (2022) 13 Cal.5th 1169, 1208.) We need not decide this
issue. Even assuming retroactivity, Rivera cannot show it is
“reasonably probable” he would have obtained a more favorable
result if his trial had been bifurcated. (People v. Watson (1956)
46 Cal.2d 818, 836; Tran, at pp. 1209-1210 [applying Watson];
People v. E.H. (2022) 75 Cal.App.5th 467, 480 (E.H.).)
First, some of the gang evidence would have been
admissible because it was relevant to the underlying offenses.
(See People v. Ramos (2022) 77 Cal.App.5th 1116, 1132 [“nothing
in Assembly Bill 333 limits the introduction of gang evidence in a
bifurcated proceeding where the gang evidence is relevant to the
underlying charges”].) The gang evidence here was relevant to
prove motive—the prosecution presented evidence that the
murder was related to a gang rivalry between the Boyle Heights
13 and White Fence gangs and that the murder was retaliatory.
Second, there was overwhelming evidence supporting the
convictions. With respect to murder, both Rivera and Lezama
admitted to the informant that they participated in the murder.
11
Lezama said Rivera was the shooter, and Rivera admitted that he
used a “cop gun” he stole from a “cop car” in Highland Park.
Lizarraga said Rivera was the shooter, and Vargas testified that
Rivera said he was one of the shooters and used a stolen gun.
With respect to the reckless driving conviction, the evidence
established Rivera fled from police officers, drove onto the
freeway, and fled on foot before he was caught. With respect to
the firearms charges, Rivera stipulated that he was prohibited
from possessing a firearm, admitted stealing a “cop gun,” and
admitted using the gun. Rivera’s D.N.A. was also found at the
site from where the gun was stolen. “Under these circumstances,
we conclude that the jury’s verdict was based on the evidence, not
improper bias, and that bifurcation would not have helped
[Rivera].” (E.H., supra, 75 Cal.App.5th at p. 480.)3
In conclusion, the proper remedy is to vacate the section
186.22 gang enhancement and the section 12022.53, subdivision
(e)(1) firearm enhancement and remand to allow the prosecution
an opportunity to retry these enhancements and meet its burden
of proof pursuant to Assembly Bill 333’s new requirements. (See
Lopez, supra, 73 Cal.App.5th at p. 346.) 4
3 Because we remand on the grounds that Assembly Bill
333 applies, we need not address Rivera’s contention regarding
the gang expert’s reliance on inadmissible hearsay nor his
contention that his counsel rendered ineffective assistance of
counsel by failing to object.
4 Although the parties agree the new evidentiary provisions
in Assembly Bill 333 retroactively apply, the Attorney General
contends there was sufficient evidence that the Boyle Heights 13
gang was an “ongoing, organized association” pursuant to section
12
Abstract of judgment and sentencing order
Rivera contends, and the Attorney General concedes, the
abstract of judgment and sentencing order contain several
clerical errors requiring correction. We agree.
First, the abstract of judgment, which states that count 4 is
a consecutive five-year sentence, should be corrected to reflect a
concurrent five-year sentence. Here, because the court orally
pronounced that the five-year sentence for count 4 would run
concurrent to the sentence for count 2, the abstract of judgment
should be corrected to accurately reflect the orally pronounced
sentence. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
Second, the parties agree the abstract of judgment and
sentencing minute orders, which state that the gang
enhancement (§ 186.22, subd. (b)(1)(C)) for count 1 was stayed,
should be corrected to reflect that the enhancement was stricken.
“Penal Code section 186.22, subdivision (b) establishes
alternative methods for punishing felons whose crimes were
committed for the benefit of a criminal street gang. Section
186.22, subdivision (b)(1)(C) . . . imposes a 10-year enhancement
when such a defendant commits a violent felony. Section 186.22,
[subdivision] (b)(1)(C) does not apply, however, where the violent
felony is ‘punishable by imprisonment in the state prison for life.’
(Pen. Code, § 186.22, subd. (b)(5).)” (People v. Lopez (2005) 34
Cal.4th 1002, 1004.) Where, as here, the defendant is sentenced
to an indeterminate life term, the trial court should strike the 10-
year gang enhancement. (Id. at p. 1011.) If on remand, the gang
186.22, subdivision (f). Given our decision to remand, we need
not address this issue.
13
enhancement is found true, the enhancement on count 1 should
be stricken rather than stayed.
Third, Rivera was ordered to pay $7,340.85 to the
California Victim Compensation Board. The abstract of
judgment and sentencing minute order reflect that the Victim
Compensation Board is a direct “victim,” rather than a
“Restitution Fund.” The abstract of judgment and sentencing
order should be corrected to state that the Board is a “Restitution
Fund,” and not a direct victim.
DISPOSITION
The gang enhancement pursuant to section 186.22,
subdivision (b) on counts 1, 2, and 4 and the firearm
enhancement pursuant to section 12022.53, subdivision (e)(1) on
count 1 are vacated. The matter is remanded to allow the
prosecution the opportunity to prove these enhancements
pursuant to Assembly Bill 333. The judgment is otherwise
affirmed, including the first degree murder conviction and true
finding that Rivera personally and intentionally discharged a
firearm that proximately caused death within the meaning of
section 12022.53, subdivision (d). Upon resentencing, the court
shall correct the errors in the abstract of judgment and
sentencing order as discussed in this opinion.
NOT TO BE PUBLISHED.
BALTODANO, J.
We concur:
GILBERT, P. J. YEGAN, J.
14
Eleanor J. Hunter, Judge
Superior Court County of Los Angeles
______________________________
Allen G. Weinberg, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Blythe J. Leszkay and Nikhil Cooper, Deputy
Attorneys General, for Plaintiff and Respondent.