People v. Medina CA4/2

• Court: California Court of Appeal
• Decided: August 10, 2022
• Docket: E075946
• Status: Unpublished

Opinion

Filed 8/10/22 P. v. Medina CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E075946

v. (Super.Ct.No. FSB17003515)

ARTURO PEREZ MEDINA, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Ronald M.

Christianson, Judge. Affirmed in part; reversed in part with directions.

Matthew A. Siroka, under appointment by the Court of Appeal, for Defendant and

Appellant.

Rob Banta, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Michael Pulos, Seth Friedman and

Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.

1 PROCEDURAL BACKGROUND

A jury found defendant and appellant, Arturo Perez Medina, guilty of second

degree murder (Pen. Code, § 187, subd. (a), count 1),1 being a felon in possession of

a firearm (§ 29800, subd. (a)(1), count 2), and unlawful possession of ammunition

(§ 30305, subd. (a)(1), count 3). The jury additionally found true allegations that

defendant had committed the murder for the benefit of, at the direction of, or in

association with a criminal street gang (§ 186.22, subd. (b)(1)(C)) and that defendant

had personally and intentionally used a firearm causing great bodily injury in his

commission of the murder (§ 12022.53, subd. (d)). The court thereafter found true

allegations defendant had suffered a prior strike (§§ 1170.12, subds. (a)-(d), 667,

subds. (b)-(i)) and a prior serious felony conviction (§ 667, subd. (a)).

At sentencing, on the People’s motion, the court dismissed counts 2 and 3. The

court sentenced defendant to an aggregate term of imprisonment of 15 years, plus an

indeterminate term of 55 years to life consisting of the following: 15 years to life,

doubled to 30 years to life due to the prior strike conviction on the murder offense;

a consecutive 25 years to life on the personal use enhancement; a consecutive term of

10 years on the gang enhancement; and a consecutive term of five years on the prior

serious felony conviction enhancement.2

1 All further statutory references are to the Penal Code unless otherwise indicated.

2 The abstract of judgment for the determinate term is not contained in the record on appeal. 2 On appeal, defendant originally contended only that the court had erred in

imposing the 10-year determinate term on the gang enhancement. The People conceded

the issue. On October 12, 2021, we issued a tentative opinion modifying the sentence

but otherwise affirming the judgment.

On October 8, 2021, the governor signed Assembly Bill No. 333 (2021-2022 Reg.

Sess.) into law. Effective January 1, 2022, Assembly Bill No. 333 requires, in pertinent

part, that to prove a section 186.22 gang enhancement, the People must show that the

predicate crimes benefitted the gang more than just in a reputational fashion. On October

18, 2021, defendant filed a motion to file a supplemental brief regarding the impact of

Assembly Bill No. 333 on his case. On October 21, 2021, we granted defendant’s motion

and withdrew our tentative opinion.

Defendant contends that Assembly Bill No. 333 must be applied retroactively to

his case because it is not yet final. He argues that insufficient evidence under

section 186.22, as amended by Assembly Bill No. 333 (Stats. 2021, ch. 699, § 3),

supports the jury’s true finding on the gang enhancement. Specifically, he maintains that

there was insufficient evidence that the predicate acts were committed collectively by

gang members and were committed for more than solely the gang’s reputational benefit.

The People concede that Assembly Bill No. 333 applies retroactively to

defendant’s case and that the matter must be remanded to the superior court because

insufficient evidence, under the amended statute, supports that the predicate offenses

were committed for anything more than the gang’s reputational benefit. However, the

People disagree that Assembly Bill No. 333 requires proof that the predicate offenses 3 were committed collectively by gang members. We reverse the gang enhancement and

remand the matter with directions to the trial court. 3 In all other respects, we affirm the

judgment.

I. FACTUAL BACKGROUND 4

The People’s gang expert testified that defendant’s gang, West Side Verdugo

(WV), had established a pattern of criminal activity. He testified that he had arrested one

member of WV, Isaac Miranda, for assault with a deadly weapon. Miranda was

convicted of assault by means likely to cause great bodily injury for an offense he

committed on August 17, 2014. Defendant had nothing to do with that crime other than

being a member of the same gang.

The expert had arrested Theo Delagarza, another active member of WV, for

possession of a firearm and possession of a controlled substance for sales. Delagarza

pled guilty to being a felon in possession of a firearm and being an active participant of a

criminal street gang for offenses he committed on May 11, 2014. Defendant had nothing

to do with that crime.

Yet another member of WV, Richard Beltran, had been convicted of being a felon

in possession of a firearm and an attached gang enhancement for an offense, which

occurred on January 30, 2014. Defendant had nothing to do with that offense.

3 Our reversal of the gang enhancement renders moot defendant’s original claim that the court erred in imposing the 10-year determinate term on the enhancement.

4 We present only an abbreviated recitation of the facts as relevant to the issue raised on appeal. 4 Gang members want their “fellow gang members to know they are willing to

commit these crimes and do these violent acts to gain status and not necessarily want to

be pointed out in a court setting in fear of repercussions of incarceration. So there’s a

fine balance . . . .”

The expert testified that he was familiar with defendant; as a gang investigator, he

had found that defendant associates with other members of WV and was documented by

other officers as an active member of WV. The expert opined that the crimes in the

instant case “were committed for the benefit of, at the direction of, [and] in association

with a criminal street gang with the specific purpose of promoting, furthering, [and]

assisting in criminal conduct by members.”

The offenses benefited the gang because a “criminal street gang cannot operate

without . . . tools. They need weapons. They need to instill fear into the community and

into other gang members.” “They use these items to instill fear in order to operate their

business. If . . . a criminal street gang instills fear into the community, they will be less

likely to call the police when they see crime occurring or less likely to testify in court. . . .

They also have status now. When another gang is afraid of a specific gang because

they’re the type of gang to show violence, they’ll be less likely to rival them and intrude

onto their business. Therefore, they’re able to operate in a larger scale and franchise out

to different areas of the city or geographical areas.”

Where a gang member commits a crime in public, “[i]t builds status for that

specific gang member within that gang, and it builds status of that gang. With the status

comes fear and intimidation . . . other gangs not wanting to rival with them or infringe on 5 their geographical areas or their business. It also instills fear to show that this gang is a

violent criminal street gang that’s willing to do violent acts. And it’s going to instill fear

into the community.”

“It’s going to allow people not to want to testify in court, call the police and put

themselves in harm’s way for fear of retaliation. A gang—a criminal street gang operates

off this fear and intimidation. . . . Without that fear and that intimidation, other rival

gangs would stop in on their area, people would be more likely to call the police and

testify against them. [¶] And when a specific gang member does a violent act and

jeopardizes their freedom, there’s repercussions that can come with those things. It

builds status to that specific gang member, and they’re able to move up the ranks of that

gang into more prominent leadership roles or mid-management. [¶] They’re able to do

these illegal acts without fear of repercussions of going through the court process and

being held accountable for their actions.”

II. DISCUSSION

Defendant contends that Assembly Bill No. 333 must be applied retroactively to

his case because it is not yet final. He argues that insufficient evidence under

section 186.22, as amended by Assembly Bill No. 333, supports the jury’s true finding on

the gang enhancement. Specifically, he maintains that there was insufficient evidence

that the predicate acts were committed collectively by gang members and were

committed for more than solely the gang’s reputational benefit.

The People concede that Assembly Bill No. 333 applies retroactively to

defendant’s case and that the matter must be remanded to the superior court because 6 insufficient evidence, under the amended statute, supports that the predicate offenses

were committed for anything more than the gang’s reputational benefit. However, the

People disagree that under Assembly Bill No. 333, they were required to present

evidence that the predicate offenses were committed collectively by gang members. We

agree with the People.

“Assembly Bill 333’s substantive changes apply retroactively to all cases—like

[defendant]’s—in which the judgment of conviction is not yet final because the changes

‘redefine, to the benefit of defendants, conduct subject to criminal sanctions.’” (People v.

E.H. (2022) 75 Cal.App.5th 467, 478.) “Assembly Bill 333 [now] requires the

prosecution to prove the benefit the gang derives from the predicate and current offenses

is ‘more than reputational.’ [Citation.] New section 186.22, subdivision (g), provides,

‘As used in this chapter, to benefit, promote, further, or assist means to provide a

common benefit to members of a gang where the common benefit is more than

reputational. Examples of a common benefit that are more than reputational may includ e,

but are not limited to, financial gain or motivation, retaliation, targeting a perceived or

actual gang rival, or intimidation or silencing of a potential current or previous witness or

informant.’” (Id. at p. 478.) “Because Assembly Bill 333 essentially adds new elements

to the substantive offense and enhancements in section 186.22 . . . the prejudice standard

articulated in Chapman v. California (1967) 386 U.S. 18, 24 . . . applies. [Citation.]

Under that standard, the absence of instruction on the amended version of section 186.22

requires reversal unless ‘it appears beyond a reasonable doubt that the error did not

contribute to th[e] jury’s verdict.’” (Id. at p. 479.) 7 Here, the parties agree, and so do we, that reversal is required because the

People’s expert witness testified that the only benefit to WV of the predicate offenses was

reputational. Thus, the gang enhancement must be reversed, and the matter remanded to

give the People the opportunity to retry it. (People v. E.H., supra, 75 Cal.App.5th at p.

480 [“The proper remedy for this type of failure of proof —where newly required

elements were ‘never tried’ to the jury—is to remand and give the People an opportunity

to retry the affected charges.”].)

However, the People disagree with defendant’s contention that they were required,

under the amended statute, to prove that the predicate offenses were committed

“collectively,” i.e., that they were each committed by more than one WV gang member.

We agree with the People.

“Assembly Bill 333 also ‘redefines “pattern of criminal gang activity” to require . . .

that the predicate offenses “were committed on separate occasions or by two or more

members, the offenses commonly benefited a criminal street gang, and the common benefit

of the offenses is more than reputational.”’” (People v. Vasquez (2022) 74 Cal.App.5th

1021, 1032.) In People v. Delgado (2022) 74 Cal.App.5th 1067 (Delgado), the court

rejected “the People’s contention that proof that individual gang members committed the

predicate offenses on separate occasions is sufficient to show the gang members

‘collectively’ engaged in a pattern of criminal activity.” (Id. at p. 1073, italics added.)

Instead, the Delgado court “read the term ‘collectively’ in a commonsense manner

to mean what it says—committed by more than one person, and not, as argued by the

People, individually but on a different day.” (Id. at pp. 1088-1089.) The Delgado court 8 agreed with the defendant that “amended subdivision (f)’s requirement that gang

members ‘collectively engage’ in a pattern of criminal gang activity means the People

were required to prove that two or more gang members committed each predicate offense

in concert . . . .” (Id. at p. 1088.) Thus, the court reversed the gang enhancement because

the People presented no evidence that multiple gang members committed the predicate

offenses and “because the trial court erred in instructing the jury under former

subdivision (f) that it could find the gang enhancements true if the People proved that

members of the . . . gang, ‘whether acting alone or together, engage in or have engaged in

a pattern of criminal gang activity.’” (Id. at p. 1088, italics added.)

Similarly, the court in People v. Lopez (2021) 73 Cal.App.5th 327 (Lopez), noted

that when Assembly Bill No. 333 became effective it would “require the prosecution to

prove collective, not merely individual, engagement in a pattern of criminal gang

activity.” (Lopez, at p. 345.) “[P]ursuant to the new legislation, imposition of a gang

enhancement requires proof [that] the predicate offenses must be committed on separate

occasions or by two or more gang members . . . .” (Ibid., italics added.)

More recently a panel of this court in People v. Clark (2022) 81 Cal.App.5th 133

(Clark), disagreed with both Delgado and Lopez. (Clark, at pp. 144-145.) Clark did not

find “the Delgado analysis to be persuasive because it turned to legislative history after

merely defining the word ‘collectively.’ [Citation.] It did not . . . devote sufficient

attention to the plain language of the statute.” (Id. at p. 145.) The Clark court reasoned,

“[i]f ‘collectively’ means the prior crimes must have been committed in concert, then the

first alternative in subdivision (e)(1) is rendered surplusage. The two alternatives are 9 proving that ‘[(1)] the offenses were committed on separate occasions or [(2)] by two or

more members.’ (§ 186.22, subd. (e)(1).) If ‘collectively’ means the predicate crimes

had to be committed in concert, then the prosecutor must always prove the predicate

crimes were committed ‘by two or more members.’ The alternative option that ‘the

offenses were committed on separate occasions’ would be surplusage. (§ 186.22,

subd. (e)(1).) We avoid interpreting the statute in a manner that would render one of the

explicit options surplusage.” (Ibid.)

Clark did “not find Lopez to be persuasive authority because it did not provide a

plain language analysis of the statute pertaining to the phrases (A) ‘members collectively’

(§ 186.22, subd. (f)); and (B) ‘the offenses were committed on separate occasions or by

two or more members’ (§ 186.22, subd. (e)(1)).” (Clark, supra, 81 Cal.App.5th at

p. 145.) Thus, Clark concluded that “a pattern of criminal gang activity may be

established by (1) two gang members who separately committed crimes on different

occasions, or (2) two gang members who committed a crime together on a single

occasion.” (Id. at pp. 145-146)

We agree with our colleagues on this court in Clark. Thus, here, the People

adduced sufficient evidence below that the predicate offenses “‘were committed on

separate occasions.’” (Clark, supra, 81 Cal.App.5th at p. 145.)

10 III. DISPOSITION

We reverse the judgment as to the gang enhancement. The matter is remanded

for the trial court to provide the People an opportunity to retry the section 186.22

enhancement under the law as amended by Assembly Bill No. 333; if the People elect

not to retry the enhancement, the trial court is directed to impose a new sentence without

the section 186.22 enhancement. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER Acting P. J. We concur:

SLOUGH J.

MENETREZ J.