Filed 2/6/24 P. v. Franco CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E079952
v. (Super.Ct.No. RIF1408130)
RICKY CAMPOS FRANCO, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. F. Paul Dickerson III,
Judge. Affirmed.
Jason L. Jones, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson, Paige B.
Hazard, Felicity Senoski and Elana W. Miller, Deputy Attorney Generals, for Plaintiff
and Respondent.
1 In 2014, defendant shot three people. In 2019, a jury convicted defendant of
three counts of attempted voluntary manslaughter. (Pen. Code, §§ 192, subd. (a), 664.)1
The jury found the gang enhancement allegations untrue. (§ 186.22, subd. (b).) At
defendant’s original sentencing hearing, the trial court sentenced defendant to prison for
a term of 25 years, eight months.
In defendant’s first appeal, in 2021, this court reversed defendant’s sentence and
directed the trial court to grant defendant’s motion for counsel for the sentencing
hearing and then resentence defendant. (People v. Franco (May 26, 2021, E073793)
[nonpub. opn] [2021 WL 2125885, *12] (Franco).)2 Upon remand, in October 2022,
the trial court again sentenced defendant to prison for a term of 25 years, eight months.
In January 2022, section 1109 was enacted, which specifically provides for
bifurcation of gang enhancement allegations. (§ 1109, subd. (a).) Defendant contends
his convictions should be reversed so that he can have a trial on the shootings that is not
tainted with gang evidence. We affirm.
FACTS
While selling marijuana in a fast-food parking lot, defendant’s nephew (Nephew)
was robbed by two men (the robbers). Afterward, the robbers’ cousin (Cousin) began
sending Nephew death threats. Defendant and others drove around until they saw
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 We cite to our unpublished opinion in this case for factual and procedural background purposes. (In re Nelson (2020) 56 Cal.App.5th 114, 119, fn. 2; People v. Heard (2022) 83 Cal.App.5th 608, 613, fn. 3.)
2 Cousin and the robbers in another car. While in their separate vehicles, defendant shot
at Cousin and the robbers. At trial, defendant said he did not “throw up a gang sign”
during the shooting and neither did Cousin and the robbers. Defendant asserted the
shooting “ha[d] nothing to do with gangs”; “[i]t just ha[d] to do with family.” (Franco,
supra, 2021 WL 2125885, *1-4.)
The jury found defendant not guilty of the greater charges of three counts of
attempted murder. (§§ 187, subd. (a) & 664.) The jury found untrue the allegations that
(A) the three attempted killings were willful, deliberate, and premeditated (§ 189); and
(B) the three attempted killings were committed for the benefit of, at the direction of, or
in association with a criminal street gang (§ 186.22, subd. (b)(1)(C)).
On remand in the trial court for resentencing, defendant did not raise the issue of
bifurcating the gang enhancement allegations, which had been found untrue during the
jury trial.3
DISCUSSION
Defendant contends section 1109 applies retroactively so he should have a retrial
on the 2014 shootings. There is a split of authority on this issue, and it is currently
pending before our Supreme Court.4 A majority of this court has held that section 1109
is not retroactive (People v. Boukes (2022) 83 Cal.App.5th 937, 946-948, review
3 The People contend defendant forfeited the bifurcation issue by failing to raise it in the trial court. We choose to address defendant’s contention.
4 The lead case at the Supreme Court is People v. Burgos (2022) 77 Cal.App.5th 550, review granted July 13, 2022, S274743.) The Supreme Court declined to decide the issue in People v. Tran (2022) 13 Cal.5th 1169, 1208 (Tran).
3 granted December 14, 2022, S277103), although Justice Slough disagreed with that
holding (id. at p. 949 (conc. opn. of Slough, J.)). We need not delve into the issue in
this case.
A majority of this court has also held that, when the sentence is the only part of a
judgment that is reversed, then, on remand, the trial court lacks jurisdiction to
readjudicate gang enhancements (People v. Lopez (2023) 93 Cal.App.5th 1110, 1119-
1120, review granted Nov. 15, 2023, S281488); however, Justice Raphael disagreed
with that holding (id. at pp. 1121, 1123 (dis. opn. of Raphael, J.)). In the instant case,
on remand, the only issue before the trial court was resentencing. However, we need
not address the split regarding jurisdiction.
If the Supreme Court decides that section 1109 is not retroactive or that the trial
court lacks jurisdiction over the issue at resentencing, then there was no error.
However, if section 1109 is retroactive and applies on remand for resentencing, then the
error is harmless. We apply the prejudice standard set forth in Watson (Tran, supra, 13
Cal.5th at p. 1209), which requires reversal when “it is reasonably probable that a result
more favorable to the appealing party would have been reached in the absence of the
error.” (People v. Watson (1956) 46 Cal.2d 818, 836.)
Section 1109 does not mandate exclusion of gang evidence in the non-gang
portion of a bifurcated proceeding. Rather, gang evidence may be admitted “to prove
other facts related to a crime.” (Tran, supra, 13 Cal.5th at p. 1208.) Defendant
presented a theory of self-defense. The prosecutor used the gang evidence to counter
that theory, asserting it was a gang shooting—not self-defense.
4 During opening statements, the prosecutor told the jury, “They don’t call the
police to say ‘Hey, I was robbed and these are the guys that robbed us, and it was at
gunpoint.’ What you’ll find is that this family took it into their own hands and went
gangster, right, because that’s what they know.” The prosecutor continued, “You’re
going to learn that three young men were very seriously hurt because these men decided
to go to gangster [sic].”
During closing argument, the prosecutor said, “[The shooting] makes no sense to
us, but in their world it—it makes sense. That’s what you do. . . . [¶] . . . [¶] . . . And
then they want to tell you this is . . . because they were afraid or they were scared. . . .
They’re not afraid.” The prosecutor continued, “This was punishment for [the robbers’]
disrespect. You know, how can [defendant’s] family, these East Side Wilmas OG
gangsters, keep selling drugs in Moreno Valley if they can get punked by a bunch of
kids and get their drugs stolen? You can’t do that. You have to step up and you have to
punch back; right? What kind of . . . respect are you going to have as an OG gangster
from Wilmington? You’re not. You’re not going to be able to hit county jail and run
things if you are seen as a punk. That’s why this happened.”
Free access — add to your briefcase to read the full text and ask questions with AI
Filed 2/6/24 P. v. Franco CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E079952
v. (Super.Ct.No. RIF1408130)
RICKY CAMPOS FRANCO, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. F. Paul Dickerson III,
Judge. Affirmed.
Jason L. Jones, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson, Paige B.
Hazard, Felicity Senoski and Elana W. Miller, Deputy Attorney Generals, for Plaintiff
and Respondent.
1 In 2014, defendant shot three people. In 2019, a jury convicted defendant of
three counts of attempted voluntary manslaughter. (Pen. Code, §§ 192, subd. (a), 664.)1
The jury found the gang enhancement allegations untrue. (§ 186.22, subd. (b).) At
defendant’s original sentencing hearing, the trial court sentenced defendant to prison for
a term of 25 years, eight months.
In defendant’s first appeal, in 2021, this court reversed defendant’s sentence and
directed the trial court to grant defendant’s motion for counsel for the sentencing
hearing and then resentence defendant. (People v. Franco (May 26, 2021, E073793)
[nonpub. opn] [2021 WL 2125885, *12] (Franco).)2 Upon remand, in October 2022,
the trial court again sentenced defendant to prison for a term of 25 years, eight months.
In January 2022, section 1109 was enacted, which specifically provides for
bifurcation of gang enhancement allegations. (§ 1109, subd. (a).) Defendant contends
his convictions should be reversed so that he can have a trial on the shootings that is not
tainted with gang evidence. We affirm.
FACTS
While selling marijuana in a fast-food parking lot, defendant’s nephew (Nephew)
was robbed by two men (the robbers). Afterward, the robbers’ cousin (Cousin) began
sending Nephew death threats. Defendant and others drove around until they saw
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 We cite to our unpublished opinion in this case for factual and procedural background purposes. (In re Nelson (2020) 56 Cal.App.5th 114, 119, fn. 2; People v. Heard (2022) 83 Cal.App.5th 608, 613, fn. 3.)
2 Cousin and the robbers in another car. While in their separate vehicles, defendant shot
at Cousin and the robbers. At trial, defendant said he did not “throw up a gang sign”
during the shooting and neither did Cousin and the robbers. Defendant asserted the
shooting “ha[d] nothing to do with gangs”; “[i]t just ha[d] to do with family.” (Franco,
supra, 2021 WL 2125885, *1-4.)
The jury found defendant not guilty of the greater charges of three counts of
attempted murder. (§§ 187, subd. (a) & 664.) The jury found untrue the allegations that
(A) the three attempted killings were willful, deliberate, and premeditated (§ 189); and
(B) the three attempted killings were committed for the benefit of, at the direction of, or
in association with a criminal street gang (§ 186.22, subd. (b)(1)(C)).
On remand in the trial court for resentencing, defendant did not raise the issue of
bifurcating the gang enhancement allegations, which had been found untrue during the
jury trial.3
DISCUSSION
Defendant contends section 1109 applies retroactively so he should have a retrial
on the 2014 shootings. There is a split of authority on this issue, and it is currently
pending before our Supreme Court.4 A majority of this court has held that section 1109
is not retroactive (People v. Boukes (2022) 83 Cal.App.5th 937, 946-948, review
3 The People contend defendant forfeited the bifurcation issue by failing to raise it in the trial court. We choose to address defendant’s contention.
4 The lead case at the Supreme Court is People v. Burgos (2022) 77 Cal.App.5th 550, review granted July 13, 2022, S274743.) The Supreme Court declined to decide the issue in People v. Tran (2022) 13 Cal.5th 1169, 1208 (Tran).
3 granted December 14, 2022, S277103), although Justice Slough disagreed with that
holding (id. at p. 949 (conc. opn. of Slough, J.)). We need not delve into the issue in
this case.
A majority of this court has also held that, when the sentence is the only part of a
judgment that is reversed, then, on remand, the trial court lacks jurisdiction to
readjudicate gang enhancements (People v. Lopez (2023) 93 Cal.App.5th 1110, 1119-
1120, review granted Nov. 15, 2023, S281488); however, Justice Raphael disagreed
with that holding (id. at pp. 1121, 1123 (dis. opn. of Raphael, J.)). In the instant case,
on remand, the only issue before the trial court was resentencing. However, we need
not address the split regarding jurisdiction.
If the Supreme Court decides that section 1109 is not retroactive or that the trial
court lacks jurisdiction over the issue at resentencing, then there was no error.
However, if section 1109 is retroactive and applies on remand for resentencing, then the
error is harmless. We apply the prejudice standard set forth in Watson (Tran, supra, 13
Cal.5th at p. 1209), which requires reversal when “it is reasonably probable that a result
more favorable to the appealing party would have been reached in the absence of the
error.” (People v. Watson (1956) 46 Cal.2d 818, 836.)
Section 1109 does not mandate exclusion of gang evidence in the non-gang
portion of a bifurcated proceeding. Rather, gang evidence may be admitted “to prove
other facts related to a crime.” (Tran, supra, 13 Cal.5th at p. 1208.) Defendant
presented a theory of self-defense. The prosecutor used the gang evidence to counter
that theory, asserting it was a gang shooting—not self-defense.
4 During opening statements, the prosecutor told the jury, “They don’t call the
police to say ‘Hey, I was robbed and these are the guys that robbed us, and it was at
gunpoint.’ What you’ll find is that this family took it into their own hands and went
gangster, right, because that’s what they know.” The prosecutor continued, “You’re
going to learn that three young men were very seriously hurt because these men decided
to go to gangster [sic].”
During closing argument, the prosecutor said, “[The shooting] makes no sense to
us, but in their world it—it makes sense. That’s what you do. . . . [¶] . . . [¶] . . . And
then they want to tell you this is . . . because they were afraid or they were scared. . . .
They’re not afraid.” The prosecutor continued, “This was punishment for [the robbers’]
disrespect. You know, how can [defendant’s] family, these East Side Wilmas OG
gangsters, keep selling drugs in Moreno Valley if they can get punked by a bunch of
kids and get their drugs stolen? You can’t do that. You have to step up and you have to
punch back; right? What kind of . . . respect are you going to have as an OG gangster
from Wilmington? You’re not. You’re not going to be able to hit county jail and run
things if you are seen as a punk. That’s why this happened.”
The prosecutor’s opening statement and closing argument relied on the theory
that the shootings were motivated by defendant’s desire for respect within the gang
culture, thereby countering defendant’s theory of self-defense. Accordingly, if a
bifurcation motion had been granted, then the jury likely would have heard gang
evidence at the trial on the attempted killings because the gang evidence supported the
prosecutor’s theory that the shootings were not conducted in self-defense.
5 Also, the prosecutor used the gang evidence to address the issue of witness
credibility. The evidence of defendant’s gang involvement provided insight into the
credibility of Nephew’s friend, Damian Nava (Nava), who participated in the shootings.
Nava’s interview with law enforcement reads, in relevant part:
“[Sheriff’s Deputy:] And right now I’m going to help you get through this, but
you don’t need to protect [defendant]. You know [defendant]?
“[Nava:] Yeah.
“[Sheriff’s Deputy:] Okay? He’s crazy, man. Okay? What happened, man?
You tell me your side because you’re here for a reason, and nobody out there is going to
care about what you have to say. That’s why I’m talking to you. Okay? What
happened, man?
“[Nava:] I want to tell you but I just don’t want these guys to find out.
“[Sheriff’s Deputy:] They’re not going to find out, just me and you. They’re in
jail. You know they’re in jail, right?
“[Nava:] (Nods head yes)
“[Sheriff’s Deputy:] Do you know for what?
“[Nava:] Yeah, I know for what.
“[Sheriff’s Deputy:] For what?
“[Nava:] For attempted murder or whatever it is.”
The sheriff’s deputy told Nava, “Don’t protect people that you have nothing to
do with. . . . Tell me what went down. They’re already in jail and I got—I have a great
6 idea about what [other people involved in the crimes did].” Nava told the deputy details
of the shootings. Then the conversation continued:
“[Sheriff’s Deputy:] I’m going to show you some pictures. Okay?
“[Nava:] I don’t want these guys to know.
“[Sheriff’s Deputy]: Listen, bro. Right now it’s me and you talking. Okay?
These guys are in jail. Okay? I already know Robert has something to do with it.
Okay? And I’m going to find out who Packman is, so I got to show you pictures and
then we’ll talk more. Okay?
“[Nava]: But I just don’t want these guys to find out that I’m the one telling you
all this.”
Nava knew defendant was in jail. Nevertheless, three times Nava said he did not
want defendant to learn that Nava told the deputy details of the crime. For the jury to
understand Nava’s fear, the jury needed some understanding of defendant’s status in the
Mexican Mafia. The fact that Nava risked implicating a shot caller in the Mexican
Mafia gave Nava’s statements credibility because one would not make such a statement
lightly.
Defendant interprets the transcript as Nava not being fearful of defendant’s
involvement in the Mexican Mafia because Nava told the deputy details of defendant’s
crimes after the deputy confirmed that defendant was in jail. Therefore, defendant
contends the Mexican Mafia evidence was not probative on the issue of credibility. We
interpret the transcript differently. In our reading, Nava remained fearful of defendant,
while defendant was in jail; however, Nava was persuaded that law enforcement already
7 had enough evidence to arrest defendant, such that Nava could speak to the deputy
without defendant learning that it was Nava who gave details to the police.
In closing arguments, the prosecutor argued, “Initially [Nava] is not telling the
truth [in the police interview]; right? But then he comes to that point where [Deputy]
Magana confronts him and he says, Okay. Okay. You know, I want to tell you but I
don’t want these guys to find out. And if you see him and you take a look at him, he’s
scared. . . . [¶] Of course, he’s afraid. But watch the video and you will see that he—
that he is a scared kid. Now he’s going to find himself going to county jail with them,
and you already know that [defendant] was running things inside. I can’t imagine how
scared that kid was.”
The prosecutor’s argument explained that Nava had lied, but when Nava was
visibly scared, he was telling the truth, and Nava’s fear was rooted in defendant’s gang
status. Therefore, the gang evidence was relevant to credibility.
In sum, if a bifurcation motion had been granted, then evidence of defendant’s
gang involvement would still have been presented to the jury for purposes of countering
defendant’s theory of self-defense and supporting Nava’s credibility. To the extent
there was an error in not bifurcating, it is not reasonably probable that a result more
favorable to defendant would have occurred absent the error. Any error in not
bifurcating was harmless.
8 DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J.
We concur:
RAMIREZ P. J.
MENETREZ J.