Filed 8/24/26 P. v. Chaidez CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D084213
Plaintiff and Respondent, (Super. Ct. No. SCE412484)
v.
JESUS RAUL CHAIDEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Selena Dong Epley, Judge. Affirmed as modified.
Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Arlene A. Sevidal, Senior Assistant Attorney General, Robin Urbanski, Supervising Deputy Attorney General and Laura Baggett, Deputy Attorney General for Plaintiff and Respondent.
A jury convicted appellant Jesus Raul Chaidez of murder (Pen. Code,1 § 187, subd. (a); count 1) and attempted robbery (§§ 211/664; count 4) for the shooting death of convenience store clerk Ronald Bailey. Chaidez was convicted of attempted murder (§§ 664/187, subd. (a); count 2) for shooting at M.O. in the parking lot of a thrift store in El Cajon, and of robbery for stealing from a clerk at another convenience store (§ 211; count 3). The jury returned true findings that Chaidez committed each of the crimes to benefit a criminal street gang (§ 186.22, subd. (b)(1)) (identified at trial as the Spring Valley Locos (SVLS)), and also found true multiple firearms allegations connected with those crimes. Chaidez was sentenced to a determinate term of 13 years plus 82 years to life. His sentence on count 2 included a 10-year term pursuant to section 186.22, subdivision (b)(1).
On appeal Chaidez challenges the sufficiency of the evidence to support: (1) the jury’s true finding that the attempted murder (count 2) was committed with an intent to benefit the gang in a manner that was more than reputational; and (2) the jury’s true findings that the robbery and murder of Ronald Bailey (counts 1 and 4) and the attempted robbery of the other convenience store clerk (count 3) were committed to benefit a gang and that Chaidez was vicariously responsible for firearm use by Bailey’s shooter.
In its responsive brief, the Attorney General requests that we order the 10-year gang enhancement for count 2 pursuant to section 186.22, subdivision (b)(1)(C) to instead be imposed under section 186.22, subdivision (b)(5), and modified to a 15-year minimum parole period as required by that subdivision. Chaidez opposes this request, contending that he was never
1 Undesignated statutory references are to the Penal Code.
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charged with the 15-year minimum parole enhancement under section 186.22, subdivision (b)(5), and it would therefore violate due process to impose it.
We review the sufficiency of the gang enhancements for substantial evidence and affirm. We modify the 10-year consecutive term imposed on count 2 to the mandatory 15-year minimum parole period required by section 185.22, subdivision (b)(5).
FACTUAL AND PROCEDURAL BACKGROUND I. March 4 Shooting of M.O. (Count 2)
On March 4, 2020, around 5:15 p.m., M.O. was with another male on a bicycle in the parking lot of a thrift store in El Cajon. A black car pulled up and an individual wearing a black shirt, later identified as Chaidez, got out. A woman shopping at a flower stand nearby saw Chaidez speak softly to M.O., who was wearing a blue shirt. M.O. talked with Chaidez and smiled at him. The two spoke in English and the witness did not understand them, but it did not seem like they were having a fight. Then Chaidez pulled out a small gun and shot at M.O. four to six times. M.O. started yelling, tried to run, but fell down. The witness noticed that the shooter saw her, so she ran toward the flower shop door for “cover.”
Chaidez returned to the car, which was driven by a young Hispanic female with long, dark hair, and the car sped off. M.O. was lying on the ground yelling or screaming and asked the witness to call 911. After she did so, she “removed [herself] from there.” She explained she “got nervous because [she] saw that the young man was bleeding.” The man with the bicycle, who was with M.O. in the parking lot initially, asked the witness if she had called 911, and when he learned that she had, he left.
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M.O. was treated for a gunshot wound to the left thigh. According to body worn camera footage, when officers asked M.O. what happened, M.O. answered, “I got shot apparently.” He answered “nope” when asked if he knew who shot him. Asked how it happened, M.O. told the officer, “I don’t know. There’s cameras here, bro. . . . I’m sure you can find out.” He said “I was walking here and I turned around and, maybe it was mistaken identity. Maybe he thought I was somebody, then I wasn’t.”
Sherriff’s deputies recovered two .22-caliber cartridge casings from the scene. The black car was later identified as a Kia Forte owned by Chaidez’s girlfriend, V.A. (Girlfriend).
II. March 20 12:30 a.m. Robbery in Imperial Beach (Count 3) On March 19, 2020, at about 7:14 p.m., Chaidez was officially “jumped in” to SVLS as a gang member, as documented in social media communications and cell phone videos.
Later the same night of the “jump in,” around 12:30 a.m. on March 20, 2020, R.O. was working at a convenience store in Imperial Beach when three “teenager kids” entered the store. They were wearing masks and one had a blue bandana. The individuals were later identified as Chaidez, who was 17 years old at the time, A.O, who was 15 years old, and J.O., who was 14 years old.
On the surveillance video J.O. demanded, “Gimme the money, gimme the money, homie.” J.O. pointed a gun at R.O. R.O. opened the register and let them have what was in there. The teens came around the counter and were stuffing Marlboro cigarettes in their shirts. A.O. demanded R.O.’s wallet but R.O. said she did not have one. The teens left and R.O. called 911.
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A detective reviewed a screenshot from the surveillance video and recognized one of the robbers as J.O. A.O’s fingerprint was recovered from the cash register.
III. March 20 2:00 a.m. Attempted Robbery and Murder in El Cajon A few hours later, around 2:00 a.m. on March 20, 2020, the same three individuals entered a convenience store in El Cajon. A witness outside the store saw the three approaching the store. One of them was telling the other two, “come on, come on,” in a way “kind of maybe pumping them up or something.” She noticed that one of them had his hand in his right pocket and it looked to be shaped like a gun.
According to the surveillance video, A.O. demanded of store clerk Ronald Bailey, “Alright, gimme everything, fool. Open up the fucken cash register, homie.” A.O. fired a gun at Bailey. The shot struck Bailey in the chest. A.O. demanded again, “Open the fucken cash register.” Chaidez commanded, “Clack him, clack him,” which, a gang detective testified, is a slang term meaning “shoot him.” A.O. fired the gun again. That shot struck Bailey in the legs. The three individuals left the store and ran down the street.
At 2:42 a.m., police arrived and found Bailey on the ground. Bailey was transported to the hospital, where he was pronounced dead around 3:27 a.m. The cause of death was a gunshot wound to his chest.
Two expended 9-mm bullet shell casings were found in the store.
IV. Arrests and Vehicle Search Chaidez, J.O., and A.O. were arrested on the afternoon of March 20, 2020. Chaidez and J.O. were found in the black Kia Forte. When Chaidez was ordered out of the vehicle, he displayed a SVLS hand sign.
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Officers searched Girlfriend’s Kia Forte and recovered cash, a blue bandana, packs of Marlboro cigarettes, and Chaidez’s cell phone and wallet.
DISCUSSION I. Legal Principles
A. Standard of Review Our review of a claim of insufficiency of the evidence is limited. “[W]e 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.” [Citation.] (People v. Wyatt (2010) 48 Cal.4th 776, 781 (Wyatt).) “We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.” (Ibid.) B. Gang Enhancements The Penal Code provides enhanced punishment for an individual “convicted of a felony committed 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[.]” (§ 186.22, subd. (b)(1).)
A “criminal street gang” is an “ongoing, organized association or group of three or more persons” that: (1) has a common name or common identifying sign or symbol; (2) has, as one of its primary activities, the commission of the offenses listed in section 186.22, subdivision (e)(1); and (3) whose members
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collectively engage in or have engaged in a pattern of criminal gang activity. (§ 186.22, subd. (f).)
“There are two prongs to the gang enhancement under section 186.22, subdivision (b)(1), both of which must be established by the evidence.” (People v. Franklin (2016) 248 Cal.App.4th 938, 948.) “The first prong requires proof that the underlying felony was ‘gang-related,’ that is, the defendant committed the charged offense ‘for the benefit of, at the direction of, or in association with any criminal street gang.’ ” (Ibid.; § 186.22, subd. (b)(1).) These theories of liability are alternatives to one another, and this prong may be satisfied when any one of the bases is established; proof of all three is not required. (People v. Hunt (2011) 196 Cal.App.4th 811, fn. 10.) “The second prong ‘requires that a defendant commit the gang-related felony “with the specific intent to promote, further, or assist in any criminal conduct by gang members.” ’ ” (Franklin, at p. 948; § 186.22, subd. (b)(1).)
To prove a gang enhancement under section 186.22, there is no requirement that the defendant be a gang member or associate. (In re Ramon T. (1997) 57 Cal.App.4th 201, 207 [“We decline to read a requirement into subdivision (b) of section 186.22 that violation of the act requires either ‘active’ or ‘current, active’ participation in a gang.”].)
The statute provides that “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.” (§ 186.22, subd. (g).) “Examples of a common benefit that are more than reputational may include, but are not limited to, financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a potential current or previous witness or informant.” (Ibid.)
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II. Additional Background The parties stipulated that SVLS was a criminal street gang as defined by sections 186.22, subdivision (e) and 186.22, subdivision (f). The parties also stipulated that SVLS’s primary activities included the commission of assault with force likely to cause great bodily injury, assault with a deadly weapon, shooting in inhabited dwelling or occupied vehicles, and robbery. Finally, the parties stipulated that the members of SVLS collectively engaged in a pattern of criminal activity within three years of the date of the offense alleged to have been committed within the meaning of section 186.22, and CALCRIM No. 1401, and that those offenses commonly benefitted the gang in ways that were more than reputational.
At trial, the prosecution presented testimony from two gang detectives, discussed further below. The defense also called a gang expert to testify. The defense expert, Adam Mortera, formerly belonged to a gang based in southeast San Diego. He opined that not every crime committed by a gang member was committed for the gang; gang members commit crimes together for their own benefit. He gave the specific example of robbery, drawing from his own experience. He testified that he and two of his “homies” once committed a robbery so they could buy nice clothes to attend a quinceañera, and not for any gang motive. He opined it would be a stereotype and a misunderstanding of Hispanic gang culture for someone to testify that it was rare for gang members to commit crimes that were not for the benefit of their gang.
Even when a crime is not for the benefit of the gang, gang members commit crimes together, Mortera explained. One might act as a lookout, one might have the gun, and the third might ensure none of the victims got out of the building. Gang members bragged about crimes they committed for
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personal reasons: to get attention and credit and be seen as the “tough guy, the bad guy.”
When presented with the same hypothetical scenarios posed to the prosecution’s gang experts, Mortera opined that the crimes were not committed for the benefit of the gang. In particular, the robbery from the convenience store was not gang-related, in his opinion, because there was no evidence that the individuals identified what gang they were from or displayed gang signs. Similarly, the attempted robbery and murder of the convenience store clerk was not gang related, in his opinion, because there was no evidence of “gang signs or gang verbiage.”
The jury was instructed with CALCRIM No. 1401 on the elements it needed to find to return a true finding on the gang enhancements for the charged offenses. The prosecutor in closing emphasized that the jury had to find that the benefit to the gang was more than reputational—it could not be just about the gang member himself gaining respect for being vicious or violent.
III. Analysis
A. Substantial Evidence Supported the Jury’s Finding as to Count 2 Substantial evidence supported the jury’s finding that Chaidez committed the shooting of M.O. at the thrift store parking lot to confer a benefit to the gang that was more than reputational.
As to the first prong of section 186.22, subdivision (b)(1), there was substantial evidence from which a jury could conclude that Chaidez conducted the shooting “in association” with SVLS. The evidence established that Girlfriend drove Chaidez to the parking lot in her black Kia Forte, and drove him away after he shot at M.O. Both Chaidez and Girlfriend were depicted in numerous photos and videos flashing SVLS gang signs and in
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images and videos connecting firearms with the gang. These photos and videos were taken shortly before and after Chaidez shot M.O. with a .22- caliber firearm on March 4, 2020, at 5:15 p.m.
Twelve hours before the shooting of M.O., Chaidez had on his cell phone a video showing Girlfriend firing a .22-caliber firearm. Another video, five hours before the shooting, showed Chaidez holding a .22-caliber casing.
A photograph taken shortly after the shooting depicted Girlfriend and Chaidez, who was displaying a gang sign with his right hand and holding a rifle in his left, within a mile of the location of the shooting of M.O., posing in front of Girlfriend’s black Kia Forte at a location within territory claimed by SVLS. Another post-shooting photo showed Chaidez getting a new tattoo on his shoulder, of the emblem of the thrift store at which he had shot at M.O.
Other images dated March 4, 2020, the day of the shooting, showed Girlfriend standing next to Chaidez, who was displaying a gang sign and holding a firearm; a photograph of Girlfriend sitting in the lap of Chaidez, who was displaying a SVLS gang sign; a photograph in the back of Girlfriend’s car (which was used in the shooting) of Girlfriend with Chaidez, who was displaying a gang sign; a video of a gloved hand holding a firearm magazine for a .22-caliber weapon, while the weapon sat on a blue bandana, the color associated with certain gangs; and a “roll call” video of multiple SVLS members riding in Girlfriend’s car, in which she called out each individual’s gang moniker as she filmed them in the video. Another video from March 4 posted to social media showed the .22-caliber firearm with the caption “Where these enemies at.” This video thus connected the .22-caliber firearm with “enemies,” and other videos and photos supplied evidence from which the jury could conclude that the enemies referred to were the enemies of SVLS, and not of Chaidez or Girlfriend individually.
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San Diego Sherrif’s Office gang detective Lance Mendiola testified that the parking lot where the shooting took place fell within territory claimed by SVLS. The emblem of the thrift store was an identifiable “landmark” within the territory.
Detective Mendiola explained that gang members might take “trophy photos” to “show [ ] off after something that you’re proud of,” and “prove that they’ve put in work, show off that they’ve done crimes to benefit the gang.” Asked to explain further, the gang expert testified that “putting in work” was “everything” for a gang member. It showed that the gang member was “willing to get down for your gang, commit crimes that will benefit your gang as a whole.” “Putting in work” in a violent or vicious matter “prevents other gangs from trying to come into your territory or take over territory that you’ve claimed.”
Detective Mendiola opined that a gang able to “instill . . fear in the community” would “prevent the community from reporting crimes in the future that they may have witnessed gang members commit” out of fear of retaliation by the gang.
Presented with a hypothetical that mirrored the facts of the shooting of M.O., Detective Mendiola testified, “that shooting was done in broad daylight. . . . A violent act committed in broad daylight or where the community is out, this wasn’t done late at night or super early in the morning. It was in broad daylight. Obviously, several witnesses. It just shows, again, that you’re putting that fear in the community, that the gang is still active in this area that they claim, and that they are still a violent gang willing to commit violent acts in broad daylight. That the trophy photo, again, proved that you’ve committed this act. The tattoo [of the emblem of the thrift store],
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another trophy photo that you basically will remember this because it’s tattooed now on your body—a landmark known to Spring Valley.”
San Diego County Sherriff’s Office gang detective Lucas Parrott testified that, in his experience, victims in an area with greater gang activity were less cooperative with law enforcement investigations than those in other areas. Regarding members of a community with greater gang activity, Detective Parrott explained, “It’s their home. It’s their neighborhood. They have to walk down the street. They have to take their child to school. If you’re labeled as somebody that’s reporting crimes, or ‘snitching’ as they say in the gang world, you can be targeted by these gang members. Often, members of [the] community would not want to report crimes, even if it’s not against them, if it’s across the street, and they fear retaliation from that gang.”
Detective Parrott explained that the “where the enemies at” social media post would serve as a warning to rival gang members or perceived gang members not to enter Spring Valley. It was shared on social media and could be viewed by gang members and rivals.
The jury heard that the shooting victim, M.O., was wearing a blue shirt in claimed SVLS territory. M.O. told the police he did not know what happened or who shot him, though he spoke with and smiled at the shooter. The jury heard that the female witness at the flower stand took “cover” when she saw that the shooter had spotted her, then got “nervous” and “removed [herself]” from the scene. The jury heard that the man on the bicycle, who was initially with M.O., left his injured friend in the parking lot after learning that the woman had called the police. The jury also heard evidence that Chaidez was “jumped into” SVLS a few weeks after the shooting of M.O., after Chaidez took photos and got a tattoo commemorating the shooting.
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We conclude the evidence was sufficient for a reasonable trier of fact to determine that the shooting conferred a benefit to the gang that was more than reputational. The evidence that Chaidez posted a video displaying the .22-caliber weapon with the caption “Where the enemies at” raises an inference that when Chaidez used that weapon to shoot M.O. at a key landmark in claimed SVLS territory, he did so because M.O. was a perceived or actual rival gang member and Chaidez was sending a message that the presence of rival gang members on SVLS territory would not be tolerated. (See People v. Cardenas (2025) 18 Cal.5th 797, 825 [jury could find that defendant “specifically intended to further criminal activities of [his gang] by enhancing control of the gang’s area of operations and violently eliminating members of” its rival enemy gang].) Further, the jury could find that the shooting had the effect of instilling fear in the community, implying a threat of retaliation if witnesses came forward. The jury could infer that M.O.’s claimed ignorance, the female witness’s reaction, and the other male’s quick departure were a product of that fear and threat. Based on the timing of the photos immediately before and immediately after the shooting, the jury could also have concluded that the shooting helped the gang grow in size, by qualifying Chaidez to get “jumped in” soon after. The jury heard, then evidently rejected, the contrary opinions of the defense gang expert. Because the jury is tasked with weighing the evidence and drawing any reasonable inferences, reversal is not appropriate “[i]f the circumstances reasonably justify the trier of fact’s findings,” even though “the circumstances might also reasonably be reconciled with a contrary finding.” (Wyatt, supra, 48 Cal.4th at p. 781.)
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B. Substantial Evidence Supported the Jury’s Findings on Counts 1, 3, and 4 Substantial evidence supported the jury’s finding that the attempted robbery and murder of Ronald Bailey, and the robbery of the other convenience store clerk, each conferred a benefit to the gang that was more than reputational. Because the benefit to the gang was established, the jury could find, as it did, Chaidez vicariously responsible for the use of the firearm by A.O. in the murder of Bailey. (§ 12022.53, subds. (b), (e)(1).)
Substantial evidence supported the jury’s finding that Chaidez committed all three crimes in association with gang members J.O. and A.O. The jury saw numerous photos and videos depicting Chaidez with one or both of the other teens, displaying SVLS hand signs, on the very night of the murder of Bailey and the robbery of the other store clerk. Some hours before the two crimes, a video on Chaidez’s phone showed A.O. pointing a firearm at the camera and displaying a SVLS hand sign. Later that night, a video showed Chaidez, now carrying the firearm, with J.O. behind him with a blue bandana, and A.O. on their left, displaying SVLS hand signs. A different video showed J.O. holding the gun with the blue bandana tied around the gun and A.O. displaying SVLS hand signs.
Following the Imperial Beach robbery, a photo showed A.O. with a large amount of cash and the gun posing in the back seat of Girlfriend’s Kia Forte. Following both robberies and an hour before their arrest, Chaidez and J.O. were depicted together in a photo displaying SVLS hand signs. Chaidez displayed an SVLS hand sign when he was arrested.
Presented with a hypothetical mirroring the facts of the crimes of March 20, 2020, Detective Parrott testified that the crimes “not only be financially a benefit to the gang, as they’ve acquired currency, stolen property, they are now showing that they are violent in nature . . . that they
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have an older member with them, which is, as you put in your hypothetical, is pushing the younger members or directing them.” The older member “[is] showing that he has knowledge of committing crimes, that he’s been there before, and he’s teaching these younger members how to successfully commit crimes, and to ensure that crime is committed successfully by coaching them through it. Not only that, it would be the financial gain of the robbery. And then after, it would be posting the photographs with the trophy photograph with the firearm. Showing, again, the rival members and any other Spring Valley Locos . . . that the robbery is committed.”
Detective Parrott opined that armed robbery benefited the entire gang “by strength in numbers. By showing that they’re willing to commit heinous acts or violent acts. That they are willing to put in work for the gang itself by getting the financial needs . . . .”
Detective Parrott also expressed an opinion regarding the chain of crimes. In particular, asked about a hypothetical scenario in which a 14- year-old wielded the firearm in the first robbery, and the 15-year-old handled the firearm in the second robbery, Parrott testified, “It shows that they are moving on to the next member within the pack of that gang, which would make me believe that there was some direction of who’s going to commit the next crime? Who’s up? Who’s willing to show that they are willing to put in the work to be an active and violent participant in this gang?” He explained, “in the gang culture, you are to stay in line and to respect your elders, if you will, for the older members.”
On cross-examination, Detective Parrott admitted that to benefit the gang, the proceeds of the crime would have to be brought back and shared with the gang. But he explained that financial benefits from gang-related crimes by individual gang members “will come back to the gang by
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purchasing of firearms, purchasing more narcotics, vehicles to commit crimes.” In other words, if a gang member committed a crime that benefitted himself financially, the benefit could “trickle down” to the gang itself. Detective Parrott also opined that a financial crime conferred a benefit upon the whole gang if the crime occurred because one gang member “sanctioned or ordered” another gang member to commit the crime.
Moreover, the participants themselves associated their crime spree of March 19 and 20, 2020, with their gang, SVLS. Throughout the night the group stopped to pose for photos with the firearm, with the loot from the robbery, and with each other, displaying gang signs and a blue bandana. The responsibility for wielding the firearm during the crimes passed from 14- year-old J.O., who pointed the gun in the robbery of R.O., to 15-year-old A.O., who pointed the gun and shot at Bailey, and fired another shot when Chaidez prompted, “clack him!” The three also took turns displaying the same gun in the videos and photos.
Unlike cases in which gang experts testified merely that financial crimes could benefit the gang (see, e.g., People v. Hin (2025) 17 Cal.5th 401, 461), here there was testimony that the benefit of a financial crime could “trickle down” to the gang, or the crime could serve as part of the gang’s reinforcing its hierarchy or structure, or was a product of one gang member sanctioning or ordering another gang member to commit the crime for the gang.
Along with the expert testimony that social media posts were meant for fellow gang members and rivals, there was substantial evidence for the properly-instructed jury to have concluded that the crimes reflected in counts 1, 3, and 4 conferred benefits on the gang as a whole, including intimidating rivals, instilling fear into their own community, reinforcing the structure and
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hierarchy of the gang including respect for elders, and conferring a financial benefit to the gang that “trickled down” from the benefit to the individual.
Again, the jury heard, then evidently rejected, the contrary opinions of the defense gang expert as to these crimes. (Wyatt, supra, 48 Cal.4th at p. 781.) We therefore affirm.
C. Attorney General’s Request to Modify Chaidez’s sentence 1. Additional Background The complaint, information, and amended information filed against Chaidez alleged gang enhancements under section 186.22, subdivision (b)(1), which requires additional consecutive terms of punishment for gang-related offenses. Section 186.22, subdivision (b)(5), was not alleged.
In its filed sentencing papers and at the sentencing hearing, the People argued that the sentence for count 2, the conviction for premediated attempted murder, should be 15 years to life, not 7 years to life, citing the 15- year minimum parole eligibility provision of section 186.22, subdivision (b)(5). Chaidez argued that the appropriate sentence on count 2 was 7 years to life but raised no due process claim about the People’s request under subdivision (b)(5).
The trial court concluded that the appropriate sentence on count 2 was 7 years to life. If the legislature had intended to change the sentencing range for a premeditated attempted murder conviction, the court reasoned, it would have done so expressly and not indirectly through the operation of section 186.22, subdivision (b)(5). The court imposed 7 years to life on count 2, imposed a consecutive 25 years to life for section 12022.53, subdivision (d), and stayed the mandatory consecutive 10-,10-, 20-, and 3-year terms for the enhancements in sections 186.22, subdivision (b)(1); 12022.53, subdivision (b); 12022.53, subdivision (c); and 12022.7, subdivision (a); respectively.
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As to the remaining counts, on count 1 the trial court imposed 25 years to life, imposed a consecutive 25 years to life for the enhancement at section 12022.53, subdivisions (d) and (e)(1), and imposed and stayed the 10-, 10-, and 20-year consecutive terms for the enhancements under sections 186.22, subdivision (b)(1); 12022.53, subdivisions (b) and (e)(1); and 12022.53, subdivisions (c) and (e)(1).
On count 3, the court imposed the midterm of three years and imposed the section 186.22, subdivision (b)(1) 10-year consecutive term, for a total determinate term of 13 years, and imposed and stayed the 10-year consecutive term under section 12022.53 subdivisions (b) and (e)(1).
On count 4, the court imposed the midterm of two years and stayed it, as well as the 10-, 20-, and 25-year consecutive terms under sections 12022.53, subdivisions (b), (c), (d), and (e)(1).
Altogether the trial court imposed a determinate term of 13 years plus an indeterminate term of 82 years to life. 2. Analysis 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 consecutive term when such a defendant commits a “violent felony.” That section does not apply, however, where the violent felony is “punishable by imprisonment in the state prison for life.” (§ 186.22, subd. (b)(5).) Instead, section 186.22, subdivision (b)(5) applies and requires a minimum term of 15 years before the defendant may be considered for parole. (People v. Lopez (2005) 34 Cal.4th 1002, 1004.) Each of these penalties is mandatory. (People v. Francis (2017) 16 Cal.App.5th 876, 883 (Francis).)
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The Attorney General contends in its responsive brief that the trial court erred by imposing and staying the 10-year consecutive term on count 2 under section 186.22, subdivision (b)(1)(C), because premediated attempted murder is punishable by imprisonment in state prison for life and therefore section 186.22, subdivision (b)(5) applied. The Attorney General urges this court to modify the judgment to reflect imposition of the legally required punishment under section 186.22, subdivision (b)(5) rather than subdivision (b)(1)(B), making Chaidez’s sentence 15 years to life in prison for count 2, rather than 7 years to life in prison.
A claim that a sentence is unauthorized may be raised for the first time on appeal and is subject to judicial correction whenever the error comes to the attention of the reviewing court. (People v. Benton (1979) 100 Cal.App.3d 92, 102.) The People may therefore challenge an “unauthorized sentence” even on a defendant’s appeal. (People v. Rowland (1988) 206 Cal.App.3d 119, 126.)
Chaidez in his reply asks us to deny the Attorney General’s request to modify his sentence, contending that doing so would violate his right to due process because the People failed to provide notice it would seek the section 186.22, subdivision (b)(5) penalty.
Our Supreme Court has recognized “a defendant has a cognizable due process right to fair notice of the specific sentence enhancement allegations that will be invoked to increase punishment for his crimes.” (People v. Mancebo (2002) 27 Cal.4th 735, 747.) Therefore, if the prosecution makes a discretionary charging decision to allege one provision over another, the defendant is entitled to rely on that decision in formulating his defense and may not be punished under the uncharged provision. (Id. at p. 749; see also In re Vaquera (2024) 15 Cal.5th 706, 721–724.) But, as noted above, the applicable enhancement provision under section 186.22, subdivision (b) is
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governed by the nature of the defendant’s underlying felony; the prosecution does not have any charging discretion under that subdivision when the felony is committed for the benefit of a criminal street gang. (Francis, supra, 16 Cal.App.5th at pp. 883, 886–888.)
Moreover, the amended information alleged every fact necessary to give Chaidez notice he was subject to the enhanced punishment. The amended information charged Chaidez with attempted murder in violation of section 189, specified the punishment for the felony as a life term, and alleged the gang allegation under section 186.22, subdivision (b)(1). Section 186.22, subdivision (b)(1) starts with “except as provided in paragraphs (4) and (5),” indicating that those paragraphs should be considered in conjunction with subdivision (b)(1) to assess the defendant’s sentencing exposure. Since the factual basis for the allegation—the specific underlying felony and its potential life term—was pleaded in the charging documents, Chaidez was placed on notice even though subdivision (b)(5) was not specifically alleged. (See People v. Sok (2010) 181 Cal.App.4th 88, 96, fn. 8 [information’s citation to section 186.22, subdivision (b)(4)(B), did not preclude imposition of greater minimum term under section 186.22, subdivision (b)(4)(A), because defendant “was plainly on notice an alternate penalty or enhancement would be sought in connection with [the count], as well as the factual basis for that special allegation”].)
We therefore grant the Attorney General’s request. The statute did not allow the trial court to impose the 10-year consecutive term for a “violent felony” pursuant to section 186.22, subdivision (b)(1)(C), where the jury convicted Chaidez of a felony punishable by imprisonment in the state prison for life and found that the crime was committed for the benefit of a criminal street gang. Instead, the 15-year minimum parole eligibility term under 22
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section 186.22, subdivision (b)(5) was mandatory. (Francis, supra, 16 Cal.App.5th at p. 887 [reviewing court may modify the sentence on appeal].)
DISPOSITION
The judgment is modified as follows: The 10-year consecutive gang enhancement term imposed on count 2 under section 186.22, subdivision (b)(1)(C), is stricken, and the 15-year mandatory minimum parole eligibility term under section 186.22, subdivision (b)(5) is imposed. The sentence for count 2 is modified to 15 years to life, and Chaidez’s total sentence is as follows: a determinate term of 13 years plus an indeterminate term of 90 years to life. As modified, the judgment is affirmed.
Upon issuance of our remittitur, the trial court is directed to prepare corrected minute orders consistent with the views expressed in this opinion, amend the abstract of judgment in this case, and to send a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
O’ROURKE, J.
WE CONCUR:
MCCONNELL, P. J.
KELETY, J.