People v. Meraz

• Court: California Court of Appeal
• Decided: December 27, 2018
• Docket: B245657B
• Status: Published

Opinion

Filed 12/27/18; Opinion following transfer from Supreme Court CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B245657

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. PA065446) v.

JUAN RAMON MERAZ et al.,

Defendants and Appellants.

APPEAL from judgments of the Superior Court of Los Angeles County, Daniel B. Feldstern, Judge. Affirmed in part, conditionally reversed in part, and remanded. Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and Appellant Juan Ramon Meraz. Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and Appellant Juan M. Chambasis. Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and Appellant Victor Bibiano.

* Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is certified for publication with the exception of parts 1 and 3 through 6 of the Discussion. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Joseph P. Lee, Shawn McGahey Webb and Jonathan J. Kline, Deputy Attorneys General, for Plaintiff and Respondent. _____________________

Codefendants Juan Ramon Meraz, Juan M. Chambasis, and Victor Bibiano separately appeal their convictions and sentences for murder, attempted murder, and discharging a firearm at an inhabited dwelling following a gang-related shooting that killed two victims and seriously injured a third. This is our third opinion in this case. In our first opinion, we affirmed the judgments with certain corrections to their sentences. The California Supreme Court granted review and transferred the case to us for reconsideration of defendants’ confrontation clause challenges to the gang expert’s testimony in light of People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez). In a partially published opinion, we again affirmed the judgments as modified. (People v. Meraz (2016) 6 Cal.App.5th 1162.) Appellants once again sought review. The California Supreme Court denied Chambasis’s petition, but granted Meraz’s and Bibiano’s petitions and held the cases pending disposition in two other cases raising issues related to sentencing juveniles to life without parole. The court specifically ordered that our prior opinion remain precedential. (Cal. Rules of Court, rule 8.1115(e)(3).) The court transferred the matter to us to determine if Meraz and Bibiano’s sentencing challenges were rendered moot by Senate Bill No. 394, effective January 1, 2018. If not, the court directed us to reconsider the matter in light of

2 Montgomery v. Louisiana (2016) 136 S.Ct. 718, 732–735 (Montgomery). In supplemental briefing after transfer, appellants raise additional issues based on several newly enacted laws. Our reconsideration of this case does not affect the portions of our prior opinion affirming appellants’ convictions. We reissue those parts of our opinion without change and, for clarity, we republish the previously published part of our prior opinion. In the unpublished part of this opinion, we reject Meraz’s and Bibiano’s Eighth Amendment challenges to their sentences as moot but conditionally reverse and remand their judgments for transfer hearings pursuant to Welfare and Institutions Code section 707. Presuming Meraz’s and Bibiano’s cases are transferred to adult criminal court, they are entitled to resentencing hearings to make a record of factors potentially relevant to their future youth offender parole hearings. Moreover, all three appellants are entitled to remand for the trial court to consider whether to exercise its discretion to strike firearm enhancements. Finally, we will correct several other aspects of their sentences. PROCEDURAL HISTORY Appellants were jointly charged with the murders of Javier Zamora and Justin Curiel (Pen. Code, § 187, subd. (a); counts 1 & 2),1 the attempted premeditated murder of Jose Santa Ana (§§ 187, subd. (a), 664; count 3), and discharging a firearm at an inhabited dwelling (§ 246; count 4). For the murder counts, multiple-murder and gang-murder special circumstances were

1 Undesignated statutory citations are to the Penal Code unless otherwise noted.

3 alleged. (§ 190.2, subd. (a)(3), (22).) A variety of firearm and gang enhancements were also alleged.2 A first trial ended in a mistrial after the jury deadlocked. On retrial, the jury found appellants guilty on all counts and found all special circumstances and enhancements true. At separate sentencing hearings, the trial court sentenced each appellant to life without the possibility of parole, a consecutive life sentence, and an additional 50 years to life in state prison as follows: life without the possibility of parole for count 1, plus 25 years to life pursuant to section 12022.53, subdivision (d); and a consecutive life sentence on count 3, plus 25 years to life pursuant to section 12022.53, subdivision (d). The court imposed concurrent sentences on counts 2 and 4 and stayed the remaining enhancements for counts 1 and 3.3 The court imposed various fines, fees, and custody credits discussed further, post, as necessary. Appellants separately appealed. STATEMENT OF FACTS The shooting in this case was part of a long-standing rivalry between two gangs in Pacoima: Pacoima Terra Bella (Terra Bella) and the Pacoima Project Boys (Project Boys). The rivalry reached a heated point on May 5, 2008, when Project Boys member Jose Avila shot and killed Terra Bella member Alejandro Villa. Avila was convicted of the murder. The shooting by appellants here—all Terra Bella members—was viewed as retaliation for Villa’s murder.

2 It was alleged Chambasis had a prior strike conviction, which the trial court ultimately found not to be true.

3 The court struck the firearm enhancements for count 4 on dual-use grounds.

4 On September 20, 2009, the day of the shooting, 16-year-old Project Boys member Santa Ana lived at the San Fernando Gardens housing project, which was in Project Boys gang territory. Santa Ana and fellow Project Boys member Zamora were on the porch of Rosemary Hurtado’s apartment when Curiel joined them. Curiel was not a gang member and had just moved into San Fernando Gardens. About five minutes after Curiel arrived, three males approached, carrying firearms. Santa Ana recognized them and identified them at trial as Bibiano, also known as “Blacky”; Meraz, also known as “Curley”; and Chambasis, also known as “Bash.” Bibiano asked the trio where they were from, which Santa Ana knew was gang parlance asking which gang they were from. Curiel tried to say he “wasn’t from anywhere.” One of the appellants said they were from Terra Bella. Meraz told a group of young children playing nearby, including Curiel’s brother, to leave. When the children left, appellants began shooting. Before the shooting, 12-year-old S.B. was playing near the porch where the shooting took place. She noticed three males approaching the victims on the porch. One of the approaching males had a gun in his hand, and S.B. identified him at trial as Chambasis. As the shooting began, she grabbed her younger brother and carried him inside her house. Zamora was shot seven times, three of which were fatal. Curiel was shot four times, two of which were fatal. Santa Ana was shot five times, and although he survived, he acted like he was dead. After appellants fled back the way they had come, Santa Ana saw his friends were dead, so he tried to walk toward a nearby fire station but collapsed on the way.

5 Hurtado heard the gunshots, emerged from her apartment to investigate, and saw Santa Ana and the other two victims. As she checked on her children, Santa Ana walked away. When she found him heading toward the fire station, he repeatedly told her “Terra Bella” shot him. Several Los Angeles police officers arrived at the scene. One officer approached Santa Ana and said to him, “You’re going to die. Who shot you? What happened?” Santa Ana responded, “Blacky from Terra Bella Street,” i.e., Bibiano, shot him. He told another officer “Blacky” had tattoos of a “1” and a “3” on his forearms.4 At the hospital, Santa Ana was shown a series of photographs and he identified all three appellants as the shooters. Thirteen shell casings, eight bullets, and two partial bullets were recovered from the scene. A ballistics expert linked one of the casings to a gun used by Timothy Jenkins in a shooting eight days earlier. Jenkins was a member of the Pacoima Pirus gang, which had a friendly relationship with Terra Bella. He told police he traded the gun to Chambasis for marijuana on the day before the shooting at San Fernando Gardens. All three appellants were arrested the day after the shooting. When officers contacted Meraz, he briefly attempted to flee but was apprehended. Officers recovered a cell phone and a belt buckle with the letter “T” on it. Chambasis and Bibiano were arrested when officers stopped the car they were riding in together. Bibiano gave officers a false name. A search of Chambasis’s residence yielded two Pittsburgh Pirates baseball

4 When Bibiano was arrested the following day, he had tattoos matching Santa Ana’s description, although by the time of trial he had turned the “1” into a “T” and the “3” into a “B.”

6 caps with “RIP, Bones” and “TBST” written on them, a rifle, a shotgun, and other items with his name on them. While in custody, Bibiano and Meraz were placed in a cell together and their conversation was secretly recorded. Bibiano said he was going to “do life.” He said officers got him in “Bash’s car” about an hour before. He claimed he did not know anything because he “was not even there.” Meraz also claimed he “wasn’t even there” and said he did not know Bash. Bibiano responded, “Me neither.” Bibiano said, “The rest of my life has gone to waste,” to which Meraz responded, “All because of some stupid shit.” Bibiano said Bash had told him, “Don’t trip, dude,” and Bibiano had responded, “I’m no fuckin’ rat, man.” Meraz commented, “If you rat, foo’, they’ll make paperwork on you,” and “when you get to the big house, they fuck you up, foo’. Don’t say anything.” Bibiano said, “Yeah, I know. It doesn’t matter ain’t gonna happen. I don’t even got nothing. Shit, I was not even there, man. What the fuck I’m gonna tell you?” Meraz claimed all the police had was “a bunch of gossip.” Meraz said, “What saved me foo’, is that they asked me what I was doing. And I told him that—that I was with Paula. And they called her and she said yes.” Bibiano responded, “Hopefully my girl will also say yes.” They talked about serving life in prison and Meraz said he had “lost everything . . . [a]ll because of one thing.” Bibiano said, “We’ll never get out, dude. Never.” Bibiano said something about leaving the house and “I wasn’t even gonna go out, foo’. I should’ve stayed, I should’ve stayed.” Meraz agreed. When Bibiano said the police showed him a picture of Meraz, Meraz responded, “We should’ve worn masks. Stupid ass, Bash.” During an interview about the murders, Bibiano began to cry. He denied knowing Chambasis.

7 At an interview with the police after appellants were arrested, Luis E. Orozco said Bibiano “jumped” him into the gang and Terra Bella had “problems” with Project Boys after Villa’s murder. Orozco was with appellants at a park three to five miles away from the San Fernando Gardens at around 5:00 p.m. the day of the shooting. He let Bibiano borrow his cell phone and Bibiano left the park around 5:20 p.m. After Bibiano left the park, he called Orozco later at home and told him, “Don’t go outside there’s too much cops.” At some point, Bibiano returned to say goodbye to his girlfriend and gave Orozco his phone back. Bibiano began to watch the news, which Orozco found suspicious. In response to a story showing “ladies crying” in “the Projects right here,” Bibiano seemed nervous and said, “Man, fuck. I got to get the fuck out of here.” He said he had “fucked up” and he was “going to hell.” A recording of the news broadcast from that day showed photographs of Zamora and Curiel with signs reading “Rest in peace, Javier, Pimps” and “Rest in peace, Justin.” A search of the phone Orozco said he lent Bibiano and the phone recovered from Meraz revealed a text message was sent from Meraz’s phone to Orozco’s phone at 1:17 p.m. the day after the shooting reading, “I’m going to Sinaloa tonight. I already got my ticket.” At 1:27 p.m., Orozco’s phone responded, “Can I go with you, or what[?]” At 7:05 p.m. on the day of the shooting, Meraz’s phone sent a text message to a different number reading, “On the run.” Officer Tyler Adams testified as a gang expert for the prosecution. He was assigned to monitor Terra Bella and he gathered information by talking to gang members, both in and out of custody, as well as interviewing them as part of conducting probation and parole services. Terra Bella had approximately 30

8 members and their symbols included “13” to signify affiliation with the Mexican Mafia and the hand signals and initials “TB” and “TBS.” The gang’s primary activities were burglary, grand theft, carrying loaded and concealed firearms, assault with firearms, assault likely to cause great bodily injury, and felony vandalism. Officer Adams identified convictions of several Terra Bella gang members for those types of crimes. He confirmed the rivalry between Terra Bella and Project Boys, which became heated after Avila murdered Villa in May 2008. Officer Adams confirmed all three appellants were Terra Bella gang members. Meraz had previously admitted he was a Terra Bella gang member, and when Officer Adams had previously stopped him, he had been with other gang members, had been wearing gang attire, and had a “PTB” tattoo inside his bottom lip. During one stop, Meraz said he was trying to get into Terra Bella and had to “smoke somebody” to do so. Bibiano had gang tattoos and when Officer Adams previously stopped him, he had been with other gang members. Officer Adams had also obtained a photograph showing Bibiano throwing gang hand signals. Chambasis also had gang tattoos and Officer Adams had previously stopped him in the presence of other Terra Bella gang members. Since his arrest, Chambasis had added tattoos to his face and neck. Officer Adams testified to the importance of respect in a gang and “putting in work” by typically committing crimes to move up in the gang. He believed the shooting in this case was bold within Terra Bella, given it occurred during the day in rival gang territory. When given a hypothetical question tracking the facts of the shooting, Officer Adams opined the shooting was retaliatory for Villa’s murder. He also opined the murders were

9 associated with, committed for, and likely committed at the direction of Terra Bella. Appellants did not testify. In his defense, Chambasis offered evidence that no fingerprint analysis was done on the casings recovered at the scene of the shooting. He elicited testimony that when police interviewed S.B. at the police station after the shooting, she said the gunman she remembered was shorter than the officer interviewing her, who was about five feet 10 inches tall, and had hair. She said the other men did not have guns. When she was shown two books of photographs, she pointed to someone who was not Chambasis and said, “Kind of No. 11 . . . but only had hair.” Chambasis also elicited testimony that at the scene of the shooting and later in the hospital, Santa Ana claimed he did not know one of the assailants. In his defense, Bibiano elicited testimony that Santa Ana initially said at the scene of the shooting that he did not know from which direction the gunmen had come. He also said appellants all wore black and Meraz was the one who said, “Where you vatos from.” He did not see them in a car. DISCUSSION 1. Santa Ana Impeachment Evidence* During a break in Santa Ana’s direct examination, the parties and the court discussed four possible areas for impeaching Santa Ana’s credibility: a prior sustained juvenile petition for being a minor in possession of a firearm (former § 12101, subd. (a)(1), now § 29610); a sustained petition for contempt of court relating to a gang injunction (§ 166, subd. (a)(4)); a sustained petition for identity theft (§ 530.5); and a

* See footnote, ante, page 1.

10 recent arrest for battery of a cohabitant and criminal threats (§§ 243, subd. (e), 422). After hearing argument from the parties, the court admitted the identity theft petition for impeachment purposes, but excluded the contempt and firearm possession petitions because they were not crimes of moral turpitude. The court postponed ruling on the domestic violence incident, but eventually excluded it as discussed more fully below. Appellants argue the trial court abused its discretion and violated their due process rights to confront witnesses and present defenses by excluding evidence of the juvenile firearm possession and the domestic violence incident. We disagree. A. Juvenile Petition for Firearm Possession Appellants argue Santa Ana’s juvenile petition for possession of a firearm was a crime of moral turpitude, so the court erred and violated their constitutional rights by excluding it for impeachment purposes. Respondent assumes state law error and argues appellants’ constitutional rights were not violated and any state law error was harmless. We will also assume state law error because we find no constitutional violation and find any state law error harmless. Limitations to a defendant’s cross-examination of a witness do not violate the confrontation clause “ ‘unless the defendant can show that the prohibited cross-examination would have produced “a significantly different impression of [the witnesses’] credibility.” ’ ” (People v. Smith (2007) 40 Cal.4th 483, 513.) Similarly, “the ‘[a]pplication of the ordinary rules of evidence . . . does not impermissibly infringe on a defendant’s right to present a defense.’ [Citations.] Although completely excluding evidence of an accused’s defense theoretically could rise to this level, excluding defense evidence on a minor or subsidiary point does

11 not impair an accused’s due process right to present a defense. [Citation.] If the trial court misstepped, ‘[t]he trial court’s ruling was an error of law merely; there was no refusal to allow [defendant] to present a defense, but only a rejection of some evidence concerning the defense.’ ” (People v. Fudge (1994) 7 Cal.4th 1075, 1102–1103.) If the trial court erred under state law only, we review the record to determine whether a more favorable outcome was reasonably probable in the absence of the error. (Id. at pp. 1103–1104.) The trial court’s exclusion of Santa Ana’s juvenile petition for firearm possession did not deprive appellants of their confrontation and due process rights because the jury heard significant other evidence calling Santa Ana’s veracity into doubt. The trial court admitted evidence of Santa Ana’s juvenile petition for identity theft, and he was questioned about it in front of the jury. Santa Ana also admitted he had been a gang member and had placed gang graffiti on a bench at the scene of the shooting, and he admitted he had previously lied under oath that he was not a gang member and he had not done the graffiti. Santa Ana’s juvenile petition for firearm possession was therefore only a subsidiary point that would not have given the jury a significantly different impression of his credibility. Further, any state law error was harmless because other evidence beyond Santa Ana’s testimony overwhelmingly demonstrated appellants’ guilt. S.B. identified Chambasis as one of the gunmen, and ballistics and other evidence linked Chambasis to one of the guns used in the shooting. Meraz and Bibiano were caught on a jail recording making incriminating statements, including Meraz telling Bibiano, “We should’ve worn masks,” which the trial court properly admitted against Bibiano

12 as an adoptive admission as we discuss below. Meraz sent text messages after the shooting that he was “[o]n the run” and he was “going to Sinaloa tonight,” to which Bibiano responded, “Can I go with you, or what[?]” Meraz briefly fled from police before he was arrested. When Bibiano watched a news story on the shooting, he said he had “fucked up,” he was “going to hell,” and he had “to get the fuck out of here.” Finally, there was significant evidence of a retaliatory motive for the shooting to avenge the shooting death of a fellow gang member. B. Domestic Violence Incident Two days after trial began, Santa Ana was arrested for domestic violence and criminal threats. During the parties’ and the court’s initial discussion of impeachment for Santa Ana, the prosecutor objected to the admission of the incident under Evidence Code section 352, arguing the evidence would be too time consuming and confusing because there was no conviction and because the woman involved in the incident had a “history” that would require the prosecution to “drag[] in the lady so that we can have a little minitrial within a trial.” The court expressed concern that it did not have enough information and postponed ruling. The following day the prosecution turned over the police report for the incident to defense counsel. At a later hearing, Meraz’s counsel argued that Santa Ana “went to great lengths to distance himself from his prior life” and repeatedly testified “he no longer is that person that he was before” and “[t]hat was his greatest mistake he has made,” leading the jury to believe he was living a crime-free life. According to Meraz’s counsel, the recent domestic violence incident “directly impeaches that. This is only a couple years out from when he last supposedly was” a gang member. The court

13 questioned how the incident involving domestic violence related to Santa Ana distancing himself from being a gang member, but postponed ruling pending further investigation. Later, Meraz’s counsel brought the victim into court, who was reluctant but willing to testify consistent with the police report. Meraz’s counsel proffered that she would testify Santa Ana went to her home, jumped out at her from the bushes, and punched her multiple times in the face, head, and body, causing her to fall to the ground. He grabbed her by the hair and pulled her across the concrete several feet until she screamed for help and ran away. Meraz’s counsel indicated he planned to ask her about other incidents with Santa Ana as well. The court noted the police report indicated she had bruising around her eye that looked healed and possibly predated the incident, and she had no other injuries indicating the incident occurred. The report also contained statements from Santa Ana that he was home at the time, the victim had threatened to have him arrested if he did not take care of his children, and she was intoxicated. The court also discussed a “DCFS report” in which the victim was identified “as a perpetrator with 18 prior closed referrals for general neglect and emotional abuse of her children.” The court further noted other reports involving the victim returning to Santa Ana’s house intoxicated and belligerent in the days following the domestic violence incident. On one occasion, the victim claimed Santa Ana threw her to the floor and began strangling her, but she was able to get away. She told the police at the time she was able to breathe and did not lose consciousness, but later changed her story. Santa Ana denied the incident and according to his mother, the victim jumped over a six-foot-high fence to argue with Santa Ana, and the

14 confrontation did not become physical. Finally, there was a report claiming Santa Ana threatened the victim over the phone, which Santa Ana denied. Instead, he claimed he told the victim to leave him alone and she threatened him, saying he should “watch his back because she was going to have him killed.” The court noted these reports created “huge credibility conflicts” in a “he-said/she-said reporting environment where there’s an ongoing domestic-related conflict between these two people.” The court explained that the prosecution filed a motion to exclude this evidence pursuant to Evidence Code section 352 because it was not clear who was telling the truth and it was a “messy situation.” Meraz’s counsel argued the jury could believe Santa Ana was a violent person, contradicting how he presented himself on the stand, and another witness was available to corroborate the threats he made over the phone. The prosecutor responded that Santa Ana had not yet been convicted and presenting the evidence would entail numerous witnesses, shifting the jury’s focus away from the main issues. The court ruled the evidence went to the “collateral” issue of impeachment based on misdemeanor conduct and presented a “classic trial within a trial if I’ve ever seen one” that would require an “array” of witnesses. Further complicating matters, the victim may have had a valid basis to refuse to testify, and even if she testified, the court could not simply limit the evidence to her testimony in order to be fair to both sides. The court also noted the allegations had not been proven in any court. Thus, because this evidence would consume an undue amount of time and would risk confusing the jury, the court excluded it.

15 “A trial court has broad discretion under Evidence Code section 352 to ‘exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.’ This discretion allows the trial court broad power to control the presentation of proposed impeachment evidence ‘ “ ‘to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues.’ ” ’ ” (People v. Mills (2010) 48 Cal.4th 158, 195.) While impeachment evidence of conduct involving moral turpitude not amounting to a felony is admissible, it “is a less forceful indicator of immoral character or dishonesty than is a felony. Moreover, impeachment evidence other than felony convictions entails problems of proof, unfair surprise, and moral turpitude evaluation which felony convictions do not present. Hence, courts may and should consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value.” (People v. Wheeler (1992) 4 Cal.4th 284, 296–297.) We review the trial court’s exclusion of impeachment evidence for abuse of discretion. (Mills, supra, at p. 195.)5 The trial court acted within its discretion in excluding evidence of Santa Ana’s recent domestic violence arrest under Evidence Code section 352. The probative value of this evidence

5 Meraz suggests our review is de novo because the evidence was admissible under Evidence Code section 1101. Whether or not correct, the trial court excluded the evidence pursuant to Evidence Code section 352, so our review is for abuse of discretion.

16 was low. Appellants emphasize that Santa Ana gave the impression to the jury that he was fully reformed from his criminal past as a gang member, so evidence of the recent domestic violence incident would have brought his credibility into doubt. If the jury did get this impression, it was weak at best. Santa Ana called being in the gang “a mistak[e in] life that I made” and said, “There was a few times where I did lie. But after I realized I made a big mistake I came clean with the truth to this day.” Appellants have not pointed to any testimony where he claimed to be currently crime-free or that he had reformed completely. Moreover, as discussed above, there was other evidence questioning Santa Ana’s credibility, so evidence of the domestic violence incident had only limited additional impeachment value. On the other side of the scale, the trial court correctly recognized the reports created a “he-said/she-said reporting environment where there’s an ongoing domestic-related conflict between these two people,” which the jury would have had to resolve following a substantial minitrial with numerous witnesses, consuming significant time during an already lengthy trial and creating a risk of jury confusion.6 Nor did the trial court violate appellants’ constitutional rights to confrontation and due process. As we concluded with the trial court’s exclusion of Santa Ana’s juvenile petition for

6 Meraz cites Andrews v. City and County of San Francisco (1998) 205 Cal.App.3d 938, but it is distinguishable. In that case, the Court of Appeal faulted the trial court for excluding all evidence of a witness’s past misconduct, thereby leaving the witness’s testimony “untarnished,” whereas the jury in this case heard other evidence impeaching Santa Ana’s credibility. (Id. at p. 947.)

17 firearm possession, the admission of evidence underlying the domestic violence incident would not have given the jury a significantly different impression of Santa Ana’s credibility and appellants were free to cross-examine him and offer other impeachment evidence, so they were not prevented from putting on a defense. Finally, for reasons already discussed, any error in excluding this impeachment evidence was harmless because the evidence of appellants’ guilt was overwhelming. 2. Gang Expert Testimony Appellants jointly contend the trial court violated their Sixth Amendment rights to confrontation by allowing Officer Adams to give expert opinions based on out-of-court testimonial hearsay from declarants whom appellants did not have an opportunity to cross-examine. Before our high court decided Sanchez, we found no error. Reevaluating appellants’ contentions in light of Sanchez, we conclude a narrow portion of Officer Adams’s testimony was barred by the confrontation clause and state law, but the erroneous admission of that testimony was harmless beyond a reasonable doubt.7

7 Respondent argues appellants forfeited this issue by failing to object on confrontation clause grounds in the trial court. Any objection would likely have been futile because the trial court was bound to follow pre-Sanchez decisions holding expert “basis” evidence does not violate the confrontation clause. (See, e.g., People v. Hill (2011) 191 Cal.App.4th 1104, 1128–1131.) We will therefore address the merits of this claim.

18 A. Sanchez In Sanchez, our high court considered the extent to which Crawford v. Washington (2004) 541 U.S. 36 (Crawford) limits an expert witness from relating case-specific hearsay in explaining the basis for an opinion, and it clarified the application of state hearsay rules to that kind of expert testimony. It held the case- specific out-of-court statements conveyed by the prosecution’s gang expert constituted inadmissible hearsay under state law and, to the extent they were testimonial, ran afoul of Crawford. (Sanchez, supra, 63 Cal.4th at pp. 670–671.) As is typical in gang-related prosecutions, the gang expert in Sanchez testified to his background and experience “investigating gang-related crime; interacting with gang members, as well as their relatives; and talking to other community members who may have information about gangs and their impact on the areas where they operate. As part of his duties, [he] read reports about gang investigations; reviewed court records relating to gang prosecutions; read jail letters; and became acquainted with gang symbols, colors, and art work.” (Sanchez, supra, 63 Cal.4th at p. 671.) He also testified about the gang to which the defendant allegedly belonged, including its primary activities and the convictions of two gang members demonstrating the gang’s pattern of criminal activity. (Id. at p. 672.) As to the defendant specifically, the expert testified about five contacts defendant had with police reflected in a STEP8 notice, police reports, and a field identification (FI) card. The expert was not present during any of the contacts and only

8 This acronym is a reference to the California Street Terrorism Enforcement and Prevention Act. (Pen. Code, § 186.20 et seq.; Sanchez, supra, 63 Cal.4th at p. 672, fn. 3.)

19 related the information recorded by other officers. Based on this information, the expert opined the defendant was a gang member. (Id. at p. 673.) The defendant challenged the admission of the gang expert’s testimony describing the defendant’s prior contacts with police, arguing it was testimonial hearsay that violated his confrontation clause rights. (Sanchez, supra, 63 Cal.4th at p. 674.) The defendant did not challenge the admission of the background testimony from the expert, such as his description of “general gang behavior or descriptions of the . . . gang’s conduct and its territory.” (Id. at p. 698.) The court explained under Crawford and the confrontation clause, a hearsay statement is inadmissible unless it falls within an exception recognized at the time of the Sixth Amendment’s adoption or the declarant is unavailable to testify and the defendant had a previous opportunity for cross-examination or that opportunity was forfeited. (Sanchez, supra, 63 Cal.4th at p. 680.) Thus, a court’s task in evaluating out-of-court statements under hearsay rules and Crawford is two-fold: “The first step is a traditional hearsay inquiry: Is the statement one made out of court; is it offered to prove the truth of the facts it asserts; and does it fall under a hearsay exception? If a hearsay statement is being offered by the prosecution in a criminal case, and the Crawford limitations of unavailability, as well as cross- examination or forfeiture, are not satisfied, a second analytical step is required. Admission of such a statement violates the right to confrontation if the statement is testimonial hearsay, as the high court defines that term.” (Sanchez, supra, at p. 680.)

20 On the state law question, the court drew a line between an expert’s testimony as to general background information and case-specific facts. Traditionally, “an expert’s testimony concerning his general knowledge, even if technically hearsay, has not been subject to exclusion on hearsay grounds,” but experts have not been permitted to convey case-specific hearsay about which the expert has no personal knowledge. (Sanchez, supra, 63 Cal.4th at p. 676.) The court defined case-specific facts as “those relating to the particular events and participants alleged to have been involved in the case being tried.” (Ibid.) An expert may “testify about more generalized information to help jurors understand the significance of those case-specific facts. An expert is also allowed to give an opinion about what those facts may mean. The expert is generally not permitted, however, to supply case-specific facts about which he has no personal knowledge.” (Ibid.) The court gave several examples of this distinction, one of which pertained directly to gang experts: “That an associate of the defendant had a diamond tattooed on his arm would be a case-specific fact that could be established by a witness who saw the tattoo, or by an authenticated photograph. That the diamond is a symbol adopted by a given street gang would be background information about which a gang expert could testify. The expert could also be allowed to give an opinion that the presence of a diamond tattoo shows the person belongs to the gang.” (Id. at p. 677.) The court explained that courts frequently avoided any confrontation issues with this kind of expert basis evidence by “concluding that statements related by experts are not hearsay because they ‘go only to the basis of [the expert’s] opinion and should not be considered for their truth.’ ” (Sanchez, supra, 63

21 Cal.4th at pp. 680–681.) The court disapproved this reasoning when the expert bases an opinion on case-specific facts about which he or she has no personal knowledge: “If an expert testifies to case-specific out-of-court statements to explain the bases for his opinion, those statements are necessarily considered by the jury for their truth, thus rendering them hearsay. Like any other hearsay evidence, it must be properly admitted through an applicable hearsay exception. Alternatively, the evidence can be admitted through an appropriate witness and the expert may assume its truth in a properly worded hypothetical question in the traditional manner.” (Id. at p. 684, fn. omitted.) Because this testimony is hearsay, it implicates Crawford and the confrontation clause if the statements are also testimonial and none of Crawford’s exceptions apply. (Sanchez, at p. 685.) The court thus crafted the following rule: “When any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert’s opinion, the statements are hearsay. It cannot logically be maintained that the statements are not being admitted for their truth. If the case is one in which a prosecution expert seeks to relate testimonial hearsay, there is a confrontation clause violation unless (1) there is a showing of unavailability and (2) the defendant had a prior opportunity for cross-examination, or forfeited that right by wrongdoing.” (Sanchez, supra, 63 Cal.4th at p. 686, fn. omitted.) Canvassing confrontation clause cases, it concluded hearsay statements are testimonial if they are made “primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony. Nontestimonial statements are those whose primary purpose is to deal with an ongoing emergency or some other

22 purpose unrelated to preserving facts for later use at trial.” (Id. at p. 689.) Turning to the facts of the case, the court concluded the police reports, the STEP notice, and potentially the FI card were case-specific testimonial hearsay, violating the confrontation clause. First, the three contacts with the defendant reflected in police reports compiled by the investigating officers during the investigations of those crimes were “statements about a completed crime, made to an investigating officer by a nontestifying witness,” which “are generally testimonial unless they are made in the context of an ongoing emergency . . . or for some primary purpose other than preserving facts for use at trial.” (Sanchez, supra, 63 Cal.4th at p. 694.) It did not matter that the officers summarized the statements or that the defendant himself was not accused of the crimes. (Id. at pp. 694– 695.) Second, the sworn STEP notice retained by police recording the defendant’s biographical and other information was testimonial because it was a formal sworn statement from a police officer that the information was accurate, and its primary purpose was to collect information for later use at trial. (Sanchez, at p. 696.) Finally, the FI card memorializing the contact with the defendant could be testimonial, but the court did not decide the issue because the expert’s testimony was unclear and confusing on this point. It noted “[i]f the card was produced in the course of an ongoing criminal investigation, it would be more akin to a police report, rendering it testimonial.” (Id. at p. 697.) The court found the confrontation clause violation prejudicial as to the gang enhancements because the main evidence of the defendant’s intent to benefit the gang was the

23 expert’s recitation of testimonial hearsay. (Sanchez, supra, 63 Cal.4th at p. 699.) In doing so, it took care to note the defendant was not challenging the expert’s “background testimony about general gang behavior or descriptions of the . . . gang’s conduct and its territory,” which was “based on well-recognized sources in [the expert’s] area of expertise. It was relevant and admissible evidence as to the . . . gang’s history and general operations.” (Id. at p. 698.) B. Officer Adams’s Testimony Like the expert in Sanchez, Officer Adams testified to his extensive training on gangs generally and how he gathered background information about Terra Bella. For training, he had attended gang courses and conferences; he had trained in the field with an officer who pointed out active gang members; he had responded to gang-related crimes; and he had spoken with gang officers and detectives. He had also been assigned to a gang crime-prevention task force responding to hot spots around Los Angeles, during which he would speak to gang officers and detectives about the gangs involved. As part of the gang unit in the Foothill Division monitoring Terra Bella, he had gathered intelligence on gang membership and rivalries to allow him “to respond more effectively in response to a shooting or any other gang-related crimes.” He received the “majority of our intelligence” by “speak[ing] with gang members of all levels and ages, both in and out of custody, whether they’re suspects, victims, witnesses, or none of the above. We conduct probation and parole services, at which time we would interview them about just general gang life.”

24 Based on this experience and background, he described the size of Terra Bella, its symbols, and its primary activities, and he identified the convictions of several Terra Bella members based on court records. He also described the rivalry between Terra Bella and Project Boys, which became heated after Avila murdered Villa in May 2008. He further testified to the importance of respect in a gang and “putting in work” by typically committing crimes to move up in the gang, and he believed the shooting in this case was bold because it occurred during the day in rival gang territory. When given a hypothetical question tracking the facts of the shooting, Officer Adams opined the shooting was retaliatory for Villa’s murder and was committed in association with, for, and at the direction of Terra Bella. As to appellants specifically, he opined all three appellants were Terra Bella gang members. Critically and in contrast to Sanchez, he based his opinion on his personal interactions with each of them, which were recorded on FI cards intended to “document the basics of the stop for any future investigative use.” For example, Officer Adams stopped Meraz two months before the shooting in this case, and Meraz told him he was trying to become a full-fledged member of Terra Bella, and to do so, he needed to “smoke” someone. Officer Adams interpreted this to mean he needed to shoot someone. Meraz also wore Terra Bella gang attire during this encounter and had a Terra Bella gang tattoo inside his bottom lip. Officer Adams contacted Bibiano several times while in the company of other Terra Bella gang members. He identified Bibiano in photographs in which he was displaying gang hand signals and gang tattoos. And Officer Adams contacted Chambasis twice in the presence of other gang

25 members. He took photographs of Chambasis’s gang tattoos and belt buckle. Officer Adams did, however, also testify regarding FI cards filled out by other officers. In one, Meraz said he was a member of the Pierce Street gang, not Terra Bella. In another, it was noted Meraz was present with another gang member. In a third, it was noted Meraz was with a “gang member associate.” Officer Adams also testified about an arrest report from other officers related to another gang member indicating Meraz was with him when the gang member was arrested. C. Analysis Appellants argue almost all aspects of Officer Adams’s general background testimony were case specific and testimonial, including his opinion that the shooting in this case was in retaliation for Villa’s murder, how Terra Bella operates, the gang’s primary activities, and the gang’s pattern of criminal activity based on convictions of other gang members. In doing so, appellants attack the sources of Officer Adams’s testimony, namely “out-of-court statements made by both police officers and other gang members.” They also focus on how the prosecution used Officer Adams’s testimony to prove both the gang enhancements and the retaliatory motive for the shooting in this case. Appellants fundamentally misunderstand the scope and import of Sanchez. Under Sanchez, facts are only case specific when they relate “to the particular events and participants alleged to have been involved in the case being tried,” which in Sanchez were the defendant’s personal contacts with police reflected in the hearsay police reports, STEP notice, and FI card. (Sanchez, supra, 63 Cal.4th at p. 676, italics added.) The court made clear that an

26 expert may still rely on general “background testimony about general gang behavior or descriptions of the . . . gang’s conduct and its territory,” which is relevant to the “gang’s history and general operations.” (Id. at p. 698.) This plainly includes the general background testimony Officer Adams gave about Terra Bella’s operations, primary activities, and pattern of criminal activities, which was unrelated to defendants or the current shooting and mirrored the background testimony the expert gave in Sanchez. It also falls in line with the Sanchez court’s hypothetical example that an expert may testify that a diamond tattoo is “a symbol adopted by a given street gang” and the presence of the tattoo signifies the person belongs to the gang. (Id. at p. 677.) By permitting this type of background testimony, the court recognized it may technically be based on hearsay, but an expert may nonetheless rely on it and convey it to the jury in general terms. (Id. at p. 685.) Thus, under state law after Sanchez, Officer Adams was permitted to testify to non-case- specific general background information about Terra Bella, its rivalry with Project Boys, its primary activities, and its pattern of criminal activity, even if it was based on hearsay sources like gang members and gang officers.9

9 Even if we assume Officer Adams’s opinion that the shooting was retaliatory for Villa’s murder by the rival Project Boys gang was case specific and beyond his personal knowledge, his opinion was still admissible. Another gang officer who assisted in the investigation of the Villa murder testified to the feud between Terra Bella and Project Boys. Officer Adams was permitted to rely on those independently proven facts to opine the current shooting was retaliatory for Villa’s murder. (See Sanchez, supra, 63 Cal.4th at p. 686 [expert cannot rely on case-

27 We also conclude that none of this background information was testimonial. Unlike the STEP notice, police reports, and FI card in Sanchez, nothing in the record suggests Officer Adams obtained any of this information “primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony.” (Sanchez, supra, 63 Cal.4th at p. 689.) Officer Adams described the sources of his background information on Terra Bella and the rivalry with Project Boys in only the most general terms. He conveyed no specific statements by anyone with whom he spoke, and reached only general conclusions based on his education, training, and experience. As we explained in a case before Sanchez, “[d]ay in and day out such information would be useful to the police as part of their general community policing responsibilities quite separate from any use in some unspecified criminal prosecution.” (People v. Valadez (2013) 220 Cal.App.4th 16, 36.) To conclude otherwise would eviscerate the role of gang experts in gang-related prosecutions, a consequence the court in Sanchez neither contemplated nor likely intended.10 Some portions of Officer Adams’s testimony were case specific under Sanchez, namely, his interactions with appellants memorialized on FI cards. But unlike the hearsay documents in Sanchez, this testimony was not barred under state or federal law because Officer Adams was present during these contacts,

specific hearsay unless it is “independently proven by competent evidence”].)

10 The certified records of the convictions of other gang members also were not testimonial under Crawford. (People v. Taulton (2005) 129 Cal.App.4th 1218, 1225 [documents showing “acts and events relating to convictions and imprisonments” are not testimonial under the confrontation clause].)

28 had personal knowledge of the facts, and was subject to cross- examination at trial. (Sanchez, supra, 63 Cal.4th at pp. 676, 680.) Respondent concedes, and we agree, state hearsay rules barred the admission of Officer Adams’s testimony on the FI cards and arrest report completed by other officers outside his presence, all of which conveyed the same type of case-specific information the court barred in Sanchez. Respondent also concedes, and we also agree, the arrest report was testimonial because it was most likely made during an investigation of a completed crime, like the police reports in Sanchez. Respondent disagrees, however, that the FI cards were testimonial because they were “not produced in the course of an ongoing criminal investigation, but rather were produced as investigative tools to help police solve crimes that may not have even occurred at the time F.I. card was produced.” Yet, Officer Adams testified FI cards are created “to document the basics of the stop for any future investigative use.” (Italics added.) Although the court in Sanchez did not decide whether the FI card at issue there was testimonial, it noted the FI card might be if it “was produced in the course of an ongoing criminal investigation.” (Sanchez, supra, 63 Cal.4th at p. 697.) It seems the FI cards here fall close to that line. In any case, we will assume the FI cards at issue here were testimonial because we conclude their admission and the admission of the arrest report was harmless beyond a reasonable doubt. (Sanchez, supra, 63 Cal.4th at p. 698 [applying federal harmless error standard to confrontation clause violation].) The FI cards and arrest report purported to show Meraz’s membership in Terra Bella, which could be relevant to the

29 retaliatory motive and gang enhancements in this case. (Id. at pp. 698–699 [noting gang membership was not element of gang enhancement but could be relevant to intent to benefit gang element].) But the evidence was duplicative of and weak compared to the other evidence that overwhelmingly demonstrated his Terra Bella membership. He admitted his gang affiliation to Officer Adams, explaining he was trying to become a full-fledged member of Terra Bella, and to do so, he needed to “smoke” (i.e., shoot) someone. And he wore Terra Bella gang attire and had a Terra Bella gang tattoo inside his bottom lip. To the extent the FI cards and arrest report tended to show Meraz harbored a gang retaliation motive for the shooting, the evidence of retaliation was already overwhelming. Meraz committed the shooting with fellow gang members Bibiano and Chambasis in the heart of Project Boys territory, the gang responsible for Terra Bella gang member Villa’s murder. And just before the shooting Bibiano asked the victims where they were from, which everyone understood to be a gang challenge. On this record, any state or federal error in admitting the FI cards and arrest report was harmless beyond a reasonable doubt. 3. Admission of Meraz’s “Masks” Statement* Before trial, the trial court held a hearing on the admissibility of Meraz’s secretly recorded statement to Bibiano while they were in custody, “We should’ve worn masks. Stupid ass, Bash.” Bibiano coughed, but did not respond to the comment. In seeking its admission, the prosecution argued the statement was an adoptive admission. The trial court agreed. It explained at the time of the recording Meraz and Bibiano knew

30 they were in custody for a double homicide, they spoke in “hushed, secretive tones, often in Spanish designed to mask their conversation and keep it secretive,” and no one from law enforcement was present. During the conversation, they spoke freely and each was “adopting the statements of the other with no disagreements between them.” The trial court believed it was “very clear to the court that both defendants are implicating themselves and their co-defendant, Mr. Chambasis.” Thus, the “masks” statement was admissible against Bibiano as an adoptive admission. Bibiano argues on appeal the trial court erred in admitting Meraz’s statement against him as an adoptive admission. We review the trial court’s ruling for abuse of discretion (People v. DeHoyos (2013) 57 Cal.4th 79, 132), and we find none. “Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth.” (Evid. Code, § 1221.) “ ‘If a person is accused of having committed a crime, under circumstances which fairly afford him an opportunity to hear, understand, and to reply, and which do not lend themselves to an inference that he was relying on the right of silence guaranteed by the Fifth Amendment to the United States Constitution, and he fails to speak, or he makes an evasive or equivocal reply, both the accusatory statement and the fact of silence or equivocation may be offered as an implied or adoptive admission of guilt.’ [Citations.] ‘For the adoptive admission exception to apply, . . . a direct accusation in so many words is not essential.’ [Citation.] ‘When a person makes a statement in the presence of a party to an action under the

31 circumstances that would normally call for a response if the statement were untrue, the statement is admissible for the limited purpose of showing the party’s reaction to it. [Citations.] His silence, evasion, or equivocation may be considered as a tacit admission of the statements made in his presence.’ ” (People v. Riel (2000) 22 Cal.4th 1153, 1189 (Riel).) “ ‘To warrant admissibility, it is sufficient that the evidence supports a reasonable inference that an accusatory statement was made under circumstances affording a fair opportunity to deny the accusation; whether defendant’s conduct actually constituted an adoptive admission becomes a question for the jury to decide.’ ” (Id. at pp. 1189–1190.) The trial court did not abuse its discretion in admitting Meraz’s “masks” statement as an adoptive admission by Bibiano. Riel is instructive. In that case, a witness testified that the defendant and two others came to her home, and the defendant told her “ ‘they had gotten fucked up and that there was a man in a coma.’ ” (Riel, supra, 22 Cal.4th at p. 1188.) When the witness asked the defendant what happened, the other two individuals “did the talking,” and one made various statements about what “they” did. (Ibid.) On appeal, the defendant argued the statements were not adoptive admissions because it was unclear whether the references to “they” included the defendant. The court found the circumstances supported an inference that the references to “they” included defendant because all three individuals were present, the defendant spoke first, the individual making the “they” statements did so in response to a question directed to the defendant, and if the reference to “they” did not include the defendant, one would have expected the defendant to have clarified that. “The circumstances warranted

32 presenting the evidence to the jury and letting the jury decide what weight to give it.” (Id. at p. 1189.) Here, Bibiano was sitting with Meraz while they were in custody alone, there was no indication he did not understand what Meraz meant by the “masks” comment, and the comment called for a denial if Bibiano was not part of the “we” in “We should’ve worn masks.” Meraz’s comment also came well into their conversation, during which they spoke freely in hushed tones about their arrests for a double homicide, their potential sentences, and their potential alibis. As the trial court noted, at no point did they disagree with one another. As in Riel, the circumstances supported admitting Meraz’s “masks” statement against Bibiano and allowing the jury to decide what weight to give it. 4. Cumulative Trial Error We have found only one minor error and assumed one other, but have concluded both were harmless. The cumulative effect of those errors does not warrant reversal. 5. Chambasis’s Motion to Represent Himself at Sentencing On the day of Chambasis’s sentencing, he moved pursuant to People v. Marsden (1970) 2 Cal.3d 118 to substitute his counsel. In an in camera hearing, he expressed dissatisfaction with his counsel’s performance during trial. The court asked why he had not brought this up during trial, and he responded, “I don’t know anything about law. I didn’t. I been researching it now.” He said he would like to “go pro per for my Sixth Amendment.” When the court told him he was going to be sentenced that day, he indicated he wanted to exercise his Sixth Amendment rights. The court responded, “I think I understand what you’re trying to do here.” Chambasis’s counsel addressed

33 the complaints and the court indicated it did not “see any issues” with counsel’s performance. Chambasis asked if the court was denying him his “Sixth Amendment pro per.” The court asked if he was asking to represent himself, and he responded, “Or get another attorney.” The court said, “Well, it’s a little late in the game for that.” It explained, “You have had [defense counsel] on your case for years now. You have been through two trials with him. This is the first time you’ve mentioned something like this in years. And I’m going to say another thing. I have been watching you and watching your conduct during the trial. You’re an extremely manipulative person. And I view part of this effort that you’re making right now to avoid being sentenced in this case at this point. And I’m making note of that.” The court asked him to explain why he had not made a complaint about his attorney before now. He responded that he had no one to complain to and he did not know about the law. He said he “look[ed] into it” and discovered he could talk to the court. He raised one of the issues he thought his counsel should have raised at trial, but the court said his counsel was experienced and the court was not going to “second-guess” his decisions. When the court said it understood Chambasis wanted to represent himself, he disagreed, saying he was asking for another lawyer “or I’m going to have to represent myself.” The court said his request for another attorney was not timely, so he said, “I’ll go pro per.” The court explained: “[I]f you want to represent yourself for the sentencing, which will be today, I’m not going to deprive you of that; but you will lose the advocate that you have here who knows more about your case than anybody. And I’m not going to continue the matter, because your request is not timely.”

34 The court gave Chambasis two options: “based on the fact that so much time has gone by and you are bringing this up on the very moment of your sentence, that you can have [defense counsel] represent you for the sentencing today or, if you feel so disturbed by that that you want to represent yourself for the sentencing hearing today, you can do that.” Chambasis said he wanted to represent himself, but that he would need “[a]t least a month” to prepare for sentencing. The court responded, “Well, if you want time, I’m finding that your request is untimely. I’m prepared and everyone else is prepared to go forward with your sentencing today. I’m not going to grant a continuance. There is not good cause to grant a continuance at this point based upon this late notice. [¶] So my suggestion is you have [defense counsel] represent you for the sentencing, or you can represent yourself today if you’re so inclined and want to do that for this sentencing today.” Chambasis reiterated that he needed to “study.” The court reiterated it would not continue the matter and recommended against Chambasis representing himself. It explained, “I could just as easily deny your request to have you represent yourself pro per, but that puts me between a rock and a hard place in the sense that if you are so inclined to represent yourself for today’s purpose, then that would be it. For the sentencing you’d have to waive your right to have an attorney represent you, with all of my counseling you to not do that. Or you can have [defense counsel] represent you.” The court gave him a Faretta11 waiver form and repeated that it believed Chambasis was trying to manipulate the court. In the exchange that followed, Chambasis repeatedly said he was not going to

11 Faretta v. California (1975) 422 U.S. 806 (Faretta).

35 proceed with the case, and the court repeatedly told him it would not grant him a continuance. Chambasis ultimately decided against representing himself and his counsel represented him at sentencing. Later in open court, the court further explained it would not have granted Chambasis’s request to represent himself due to the “disruptions in my court that were caused by Mr. Chambasis, that throughout the trial proceedings I had received continuous information from the bailiffs of Mr. Chambasis’ disruptive behavior and failure to conform to the rules of the court and through the bailiff. He, Mr. Chambasis, during one point in the trial attempted to attack one of the witnesses who was being brought back, had to be brought down, caused a melee in the courtroom. And these would be reasons why the court would not feel comfortable in granting pro per status to a defendant under those circumstances, one not willing to conform to the rules and etiquette of the court. [¶] Also, just for the record, Mr. Chambasis’ requests for pro per status, which he has now withdrawn, were equivocal, in that he wanted to go pro per only after being told that he was not going to have a change of lawyers and that his decisions were more of a reaction to that than a sincere desire to represent himself.” Chambasis argues the court abused its discretion in finding his request to represent himself untimely and forcing him to choose between keeping his current counsel for sentencing or representing himself without a continuance. We disagree. A criminal defendant has a constitutional right to represent himself at trial if he makes a timely and unequivocal request to do so. (People v. Scott (2001) 91 Cal.App.4th 1197, 1203.) But “ ‘when a defendant has elected to proceed to trial represented by

36 counsel and the trial has commenced, it is thereafter within the sound discretion of the trial court to determine whether such a defendant may dismiss counsel and proceed pro se.’ ” (People v. Miller (2007) 153 Cal.App.4th 1015, 1021, quoting People v. Windham (1977) 19 Cal.3d 121, 124 (Windham).) The factors a trial court must consider in determining whether to grant a midtrial request include “the quality of counsel’s representation of the defendant, the defendant’s prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay which might reasonably be expected to follow the granting of such a motion.” (Windham, supra, at p. 128.) The trial court need not expressly address all the relevant factors so long as the record reflects the court implicitly considered them. (Scott, supra, at p. 1206.) In arguing that his request to represent himself was timely, Chambasis relies on People v. Miller. In that case, the defendant requested to represent himself after the trial ended but two months before his sentencing, and the trial court denied the request as untimely. (People v. Miller, supra, 153 Cal.App.4th at pp. 1019–1020.) The Court of Appeal reversed, reasoning that sentencing is a posttrial proceeding, so the defendant’s request was timely made before that proceeding, and Faretta compelled the trial court to grant the defendant’s request as long as it was knowing and intelligent. (People v. Miller, at pp. 1023–1024.) Later, however, the California Supreme Court in People v. Doolin (2009) 45 Cal.4th 390 (Doolin) found a Faretta request untimely when the defendant made it on the day scheduled for sentencing and requested a continuance to prepare. (Doolin, at p. 452.) The court distinguished People v. Miller, noting the defendant made the request in that case two months before sentencing, whereas

37 in Doolin, under the facts the “defendant’s right to self- representation at sentencing was not absolute but subject to the court’s discretion.” (Doolin, at p. 455, fn. 39.) We find Doolin controlling and find Chambasis’s request to represent himself on the day of sentencing was untimely. Doolin makes clear that a request on the day of sentencing, like a request on the first day of trial, is untimely. (Doolin, supra, 45 Cal.4th at pp. 454–455; see Windham, supra, 19 Cal.3d at p. 128, fn. 5.) People v. Miller, on the other hand, involved a request made two months before sentencing, clearly not the circumstance here. Chambasis attempts to analogize to People v. Miller and distinguish Doolin by arguing he did not appear before the court during the seven weeks between the jury’s verdict and his sentencing, so he moved to represent himself at his first opportunity before the court. But Doolin involved a similar four- week period between the verdict and sentencing, yet the court still found appellant’s request at sentencing “manifestly untimely.” (Doolin, supra, at pp. 452, 454.) Moreover, Chambasis has not explained why he could not have told his attorney during the period between the verdict and his sentencing that he wanted to represent himself, who could have then informed the court of his request. Turning to the factors in Windham, we find no abuse of discretion. Although Chambasis had not shown a proclivity to substitute counsel, the court was reasonably concerned he was trying to “manipulate” the court to delay his sentencing. Throughout the proceeding, Chambasis showed a complete disrespect for the judicial process. As the trial court noted, during trial he attacked a witness, which caused a melee in the courtroom and resulted in him and the other defendants being

38 restrained during trial. The record further reflects that, after the verdicts were read, he said, “Fuck all you motherfuckers. This is Terra Bella gang, fool”; and at sentencing, he told the prosecutor, “Shut your bitch ass up.” Moreover, Chambasis’s disagreement with his counsel was largely over trial tactics and the trial court could not identify any issues with counsel’s performance. Finally, Chambasis’s request would have caused at least a month delay in his sentencing. (People v. Valdez (2004) 32 Cal.4th 73, 103 [“ ‘[A] midtrial Faretta motion may be denied on the ground that delay or a continuance would be required.’ ”].) Thus, the trial court acted within its discretion in denying Chambasis’s untimely Faretta request. 6. Additional Sentencing Issues Meraz was 16 years old and Bibiano was 17 years old at the time of the shooting. Throughout this case, they have challenged their sentences for life without parole as juvenile homicide offenders as violating the Eighth Amendment prohibition against cruel and unusual punishment. The California Supreme Court transferred this case for us to consider whether those contentions are moot in light of section 3051, subdivision (b)(4), enacted by Senate Bill No. 394, effective January 1, 2018. As we will explain, this recent legislative change renders those challenges moot. Defendants raise several other issues. First, Meraz and Bibiano argue that Proposition 57, effective November 9, 2016, requires their convictions be conditionally reversed and remanded for the juvenile court to conduct transfer hearings pursuant to Welfare and Institutions Code section 707. Second, presuming their cases are transferred to the criminal court, Meraz and Bibiano argue their sentences should be remanded to

39 allow them to make a record of factors that might impact their eventual youthful offender parole hearings, consistent with Miller v. Alabama (2012) 132 S.Ct. 2455 (Miller). Third, all three defendants argue remand is necessary for the trial court to consider whether to exercise its discretion to strike previously mandatory firearm enhancements pursuant to section 12022.53, subdivision (h), enacted by Senate Bill No. 620, effective January 1, 2018. Fourth, joined by Meraz, Chambasis argues the trial court should have stayed his sentence on count 4 for shooting at an inhabited dwelling. Fifth, defendants argue the court erred in imposing the section 186.22, subdivision (b)(1) gang enhancement. Finally, they raise issues related to their fines, fees, and custody credits. We address each issue below. A. Senate Bill No. 394 Renders Meraz’s and Bibiano’s Eighth Amendment Challenges Moot In our prior opinions, we rejected Meraz and Bibiano’s Eighth Amendment challenges to their life-without-parole sentences as juvenile homicide offenders. After granting review, the California Supreme Court transferred the matter to us to consider whether their challenges are now moot in light of newly enacted Senate Bill No. 394, and if not, to reconsider their arguments in light of Montgomery, supra, 136 S.Ct. 718. Respondent contends their challenges are moot, and Meraz and Bibiano did not address the mootness issue in their supplemental briefs after remand. We conclude their challenges are indeed moot.12

12 The California Supreme Court granted review and held this case pending disposition in two pending cases raising issues related to juvenile sentencing pursuant to Montgomery and Miller. (People v. Arzate, S238032; People v. Padilla, S239454.)

40 In Miller, the United States Supreme Court held that the Eighth Amendment “forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.” (Miller, supra, 567 S.Ct. at p. 479.) In Montgomery, the court described Miller as prohibiting a sentence of life without parole for “all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility,” rather than “transient immaturity.” (Montgomery, supra, 136 S.Ct. at p. 734.) It held that Miller applied retroactively to cases on collateral review. (Montgomery, at p. 732.) Relevant to our discussion here, the court in Montgomery explained that states need not relitigate the sentence of every juvenile homicide offender serving life without parole; instead, they could “remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them.” (Montgomery, supra, 136 S.Ct. at p. 736.) The Court cited a Wyoming statute that granted parole eligibility after 25 years to juvenile homicide offenders sentenced to life in prison. (Ibid., citing Wyo. Stat. Ann. § 6–10–301, subd.(c).) “Allowing those offenders to be considered for parole ensures that juveniles whose crimes reflected only transient immaturity—and who have since matured—will not be forced to serve a disproportionate sentence in violation of the Eighth Amendment.” (Montgomery, supra, at p. 736.) Similar to the Wyoming statute cited in Montgomery, Senate Bill No. 394 amended section 3051 effective January 1, 2018 to permit juvenile homicide offenders sentenced to life without parole who committed their crimes before the age of 18 to

Tellingly, the court eventually dismissed the petitions in those two cases as moot in light of Senate Bill No. 394.

41 be considered for parole after 25 years of incarceration. (§ 3051, subd. (b)(4) [“A person who was convicted of a controlling offense that was committed before the person had attained 18 years of age and for which the sentence is life without the possibility of parole shall be eligible for release on parole by the board during his or her 25th year of incarceration at a youth offender parole hearing, unless previously released or entitled to an earlier parole consideration hearing pursuant to other statutory provisions.”].) In People v. Lozano (2017) 16 Cal.App.5th 1286 (Lozano), Division Five of this District held that this change to section 3051 by Senate Bill No. 394 rendered moot a juvenile homicide offender’s Eighth Amendment challenge under Miller to her life- without-parole sentence. (Lozano, at p. 1292.) The court not only relied on the reasoning in Montgomery but also on the California Supreme Court’s recent rejection of a similar challenge in People v. Franklin (2016) 63 Cal.4th 261 (Franklin). (Lozano, at p. 1289.) In Franklin, the court held a juvenile homicide offender’s Miller challenge to a sentence of 50 years to life was moot in light of another newly enacted subdivision of section 3051 mandating parole review after 25 years (§ 3051, subd. (b)(3)), as well as section 4801, subdivision (c), which mandated the Board of Parole Hearings “ ‘give great weight to the diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity.’ ” (Franklin, at p. 268.)13

13 Again tellingly, the California Supreme Court granted review in Lozano but dismissed the matter as moot in light of Senate Bill No. 394. (People v. Lozano, S246013.)

42 We agree with the analysis and holding in Lozano. In light of Senate Bill No. 394, Montgomery, and Franklin, we find Meraz’s and Bibiano’s Eighth Amendment challenges to their sentences are moot. B. Meraz and Bibiano Are Entitled to Transfer Hearings in the Juvenile Court Pursuant to Proposition 57 When Meraz and Bibiano were charged in 2012, the prosecutor was permitted to file the murder charges against them directly in adult criminal court even though they were juveniles. That changed with Proposition 57, which went into effect on November 9, 2016 while Meraz’s and Bibiano’s appeals were pending. “Proposition 57 prohibits prosecutors from charging juveniles with crimes directly in adult court. Instead, they must commence the action in juvenile court. If the prosecution wishes to try the juvenile as an adult, the juvenile court must conduct what we will call a ‘transfer hearing’ to determine whether the matter should remain in juvenile court or be transferred to adult court. Only if the juvenile court transfers the matter to adult court can the juvenile be tried and sentenced as an adult. (See Welf. & Inst. Code, § 707, subd. (a).)” (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303 (Lara).) In Lara, the California Supreme Court held that Proposition 57 applied to all juveniles charged directly in adult court whose convictions were not final when Proposition 57 was enacted. (Lara, at p. 304.) All parties agree that Meraz’s and Bibiano’s convictions were not final when Proposition 57 went into effect, so the changes made by Proposition 57 apply to them pursuant to Lara.

43 The court in Lara endorsed the disposition reached in People v. Vela (2018) 21 Cal.App.5th 1099 (Vela), which provided the following instructions to the trial court following remand from the California Supreme Court: “Here, under these circumstances, Vela’s conviction and sentence are conditionally reversed and we order the juvenile court to conduct a juvenile transfer hearing. ([Welf. & Inst. Code,] § 707.) When conducting the transfer hearing, the juvenile court shall, to the extent possible, treat the matter as though the prosecutor had originally filed a juvenile petition in juvenile court and had then moved to transfer Vela’s cause to a court of criminal jurisdiction. ([Welf. & Inst. Code,] § 707, subd. (a)(1).) If, after conducting the juvenile transfer hearing, the court determines that it would have transferred Vela to a court of criminal jurisdiction because he is ‘not a fit and proper subject to be dealt with under the juvenile court law,’ then Vela’s convictions are to be reinstated. ([Welf. & Inst. Code,] § 707.1, subd. (a).) The court is to resentence Vela consistent within the bounds of its discretion as discussed within the following section of this opinion [dealing with firearm enhancements and Senate Bill No. 620]. On the other hand, if the juvenile court finds that it would not have transferred Vela to a court of criminal jurisdiction, then it shall treat Vela’s convictions as juvenile adjudications and impose an appropriate ‘disposition’ within its discretion.” (Vela, supra, at p. 1113; see Lara, supra, 4 Cal.5th at p. 310; see also People v. Phung (2018) 25 Cal.App.5th 741, 762 [adopting same instructions].) We will echo these instructions as part of the disposition of this case to provide guidance to the juvenile court on remand.

44 C. Meraz and Bibiano Are Entitled to a Limited Remand to Make a Record of Miller Factors for Their Youth Offender Parole Hearings Presuming the juvenile court determines it would have transferred either or both of their cases to criminal court, Meraz and Bibiano contend they are entitled to make a record of factors that would be relevant to a youth offender parole hearing during their 25th year of incarceration. (§ 3051, subd. (b)(4); see § 4801, subd. (c) [directing Board of Parole Hearings to “give great weight to the diminished culpability of youth as compared to adults, the hallmark features of juveniles, and any subsequent growth and increased maturity of the prisoner in accordance with relevant case law”].) In Franklin, the court held that the juvenile defendant’s Eighth Amendment challenge to his sentence was moot but remanded the matter “for a determination of whether Franklin was afforded sufficient opportunity to make a record of information relevant to his eventual youth offender parole hearing.” (Franklin, supra, 63 Cal.4th at p. 284.) “If the trial court determines that Franklin did not have sufficient opportunity, then the court may receive submissions and, if appropriate, testimony pursuant to procedures set forth in section 1204 and rule 4.437 of the California Rules of Court, and subject to the rules of evidence. Franklin may place on the record any documents, evaluations, or testimony (subject to cross- examination) that may be relevant at his eventual youth offender parole hearing, and the prosecution likewise may put on the record any evidence that demonstrates the juvenile offender’s culpability or cognitive maturity, or otherwise bears on the influence of youth-related factors. The goal of any such

45 proceeding is to provide an opportunity for the parties to make an accurate record of the juvenile offender’s characteristics and circumstances at the time of the offense so that the Board [of Parole Hearings], years later, may properly discharge its obligation to ‘give great weight to’ youth-related factors (§ 4081, subd. (c)) in determining whether the offender is ‘fit to rejoin society’ despite having committed a serious crime ‘while he was a child in the eyes of the law’ [citation].” (Franklin, at p. 284.) For Meraz, respondent concedes that remand for the trial court to hold a Franklin hearing is appropriate. Bibiano filed a belated supplemental brief requesting remand for a Franklin hearing, and respondent did not respond to the request even after being provided an opportunity to do so. We find remand for this purpose is appropriate for both defendants. Meraz and Bibiano were sentenced in November 2012, well before Franklin was decided and section 3051 was amended to provide them the opportunity for a youth offender parole hearing after 25 years in prison. While the record of Meraz’s sentencing reflects that the trial court was aware of Miller, the court did not discuss the Miller factors and instead focused on the nature of Meraz’s crimes in imposing life without parole. Likewise, defense counsel did not present evidence of the Miller factors other than to argue Meraz’s chronological age rendered life without parole cruel and unusual punishment. During Bibiano’s hearing, defense counsel briefly delved into Bibiano’s upbringing and emphasized his age, and the court acknowledged the law on juvenile sentencing and Bibiano’s background. But as with Meraz, the court focused on the brutal nature of the crimes in imposing life without parole.

46 During these hearings neither the parties nor the trial court developed the record with an eye toward Meraz’s and Bibiano’s future youth offender parole hearing, and they should be afforded an opportunity to do so. (See People v. Rodriguez (2018) 4 Cal.5th 1123, 1131 [remanding for Franklin hearing because youth offender sentenced before amendment to section 3051 “would not have had reason to know that the subsequently enacted legislation would make such evidence [for eventual youth offender parole hearing] particularly relevant in the parole process”].) Presuming the juvenile court concludes that it would have transferred either or both cases to criminal court, the trial court should conduct Franklin hearings for these defendants. D. Defendants Are Entitled to Remand for Resentencing in Light of Senate Bill No. 620 All three defendants seek remand for resentencing in light of Senate Bill No. 620, effective January 1, 2018, which amended section 12022.53, subdivision (h) to give the trial court discretion whether to strike previously mandatory firearm enhancements. (§ 12022.53, subd. (h) [“The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law.”].) The discretion to strike a firearm enhancement under section 12022.53 may be exercised as to any defendant whose conviction is not final as of the effective date of the amendment. (See In re Estrada (1965) 63 Cal.2d 740, 742–748; People v. Brown (2012) 54 Cal.4th 314, 323.) Because defendants’ convictions were not final when Senate Bill No. 620 went into effect, respondent agrees that remand is proper, as do we.

47 (See People v. Vieira (2005) 35 Cal.4th 264, 305–306 [“a defendant generally is entitled to benefit from amendments that become effective while his case is on appeal”]; People v. Smith (2015) 234 Cal.App.4th 1460, 1465 [“[a] judgment becomes final when the availability of an appeal and the time for filing a petition for certiorari have expired”]; see also Bell v. Maryland (1964) 378 U.S. 226, 230 [“[t]he rule applies to any such [criminal] proceeding which, at the time of the supervening legislation, has not yet reached final disposition in the highest court authorized to review it”].) On remand, the court may exercise its discretion under section 12022.53, subdivision (h), to strike all of the firearm enhancements or impose any one of the enhancements. If the court chooses to impose a firearm enhancement, it must strike any enhancement(s) providing a longer term of imprisonment, and impose and stay any enhancement(s) providing a lesser term. (§ 12022.53, subds. (f) & (h).) For example, the court may choose to impose the 25-year-to-life enhancement under subdivision (d). If so, it should impose and stay the enhancements under subdivisions (c) and (b). If the court imposes the 20-year enhancement under subdivision (c), it must then strike the 25- year-to-life enhancement under subdivision (d), and impose and stay the 10-year enhancement under subdivision (b). Moreover, any enhancement imposed under section 12022.53 must be imposed consecutively rather than concurrently. In addition, the trial court has discretion to strike only the punishment for the enhancement. (§ 1385, subdivision (a); In re Pacheco (2007) 155 Cal.App.4th 1439, 1443–1446.) “In determining whether to strike the entire enhancement or only the punishment for the enhancement, the court may consider the

48 effect that striking the enhancement would have on the status of the crime as a strike, the accurate reflection of the defendant’s criminal conduct on his or her record, the effect it may have on the award of custody credits, and any other relevant consideration.” (Cal. Rules of Court, rule 4.428(b).) E. The Court Properly Imposed Concurrent Sentences on Count 4 Joined by Meraz, Chambasis argues the trial court should have stayed his sentence on count 4 for shooting at an inhabited dwelling, rather than imposing a concurrent term of life without parole, because count 4 was directly related to the murders and attempted murder in counts 1, 2, and 3. In a sentencing memorandum, the prosecution recommended the sentence on count 4 be stayed. At Chambasis’s sentencing, the court explained it was imposing a concurrent sentence for count 4 because “the court believes that primarily it was the same victims in counts 1, 2, and 3 that were the targets of Mr. Chambasis’ actions on that date.” We find the trial court was not required to stay the sentence on count 4. Under section 654, subdivision (a), “[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” “There is a multiple victim exception to . . . section 654 which allows separate punishment for each crime of violence against a different victim, even though all crimes are part of an indivisible course of conduct with a single principal objective. [Citation.] An assailant’s greater culpability for intending or risking harm to

49 more than one person precludes application of section 654.” (People v. Felix (2009) 172 Cal.App.4th 1618, 1630–1631 (Felix).) Our decision in Felix is directly on point. In that case, the defendant attempted to murder one victim by firing gunshots through a bedroom window. Relatives of the victim were staying in other rooms in the house. (Felix, supra, 172 Cal.App.4th at p. 1623.) The defendant was convicted of attempted murder of the intended victim, shooting at an inhabited dwelling, and several counts of assault with a firearm against the intended victim and his two daughters, but not the other relatives in the house. The sentence for the shooting at an inhabited dwelling count was ordered to run concurrent with the sentence on the attempted murder count. (Id. at pp. 1623–1624.) The defendant argued the sentence for the shooting at an inhabited dwelling count should have been stayed because it was based on the same act, committed during a single indivisible course of conduct. We disagreed because, “where the crime of shooting at an inhabited residence is involved, a defendant need not be aware of the identity or number of people in the house to be punished separately for each victim.” (Id. at p. 1631.) Section 654 did not apply because the intended victim’s houseguests “were victimized by the shooting into the dwelling but were not named victims in any other count.” (Felix, at p. 1631.) Here, appellants opened fire on Zamora, Curiel, and Santa Ana while they sat on the porch of Hurtado’s apartment. Some of the bullets struck the front door and the wall next to it. Hurtado and her children were inside at the time, but they were not named in any of the four counts against appellants. At sentencing, the trial court noted the shooting at an inhabited dwelling count “primarily” involved victims Zamora, Curiel, and

50 Santa Ana, suggesting other victims were involved. By shooting at Hurtado’s occupied apartment, appellants committed a separate act of violence against different victims, so the trial court was not required to stay their sentences on count 4 pursuant to section 654. F. The Section 186.22, Subdivision (b)(1) Enhancements Must Be Stricken For counts 1 and 2, the court imposed and stayed a gang enhancement pursuant to section 186.22, subdivision (b)(1) for all appellants. Appellants argue the court was not permitted to impose any additional term under section 186.22, subdivision (b)(1) because section 186.22, subdivision (b)(5) applied. We agree. Section 186.22, subdivision (b)(1) states: “Except as provided in paragraphs (4) and (5), any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished” to an additional term of imprisonment. For murder, that additional term is 10 years. (§ 186.22, subd. (b)(1)(C).) Section 186.22, subdivision (b)(5) provides, “any person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life shall not be paroled until a minimum of 15 calendar years have been served.” Appellants contend their life without parole sentences triggered section 186.22, subdivision (b)(5), so the trial court improperly imposed enhancements under section 186.22,

51 subdivision (b)(1). In People v. Lopez (2005) 34 Cal.4th 1002 (Lopez), the California Supreme Court struck a section 186.22, subdivision (b)(1) enhancement for a 25-years-to-life sentence for first degree murder, concluding section 186.22, subdivision (b)(5) exempts crimes carrying with them both straight life terms and years-to-life terms. (Lopez, at p. 1007.) The court did not address whether life without parole sentences fall within section 186.22, subdivision (b)(5), but in discussing the legislative history of the provision, it noted without analysis that, at the time the predecessor to that provision was enacted, it “was understood to apply to all lifers, except those sentenced to life without the possibility of parole.” (Lopez, at p. 1010.) Respondent cites this passage and argues that finding section 186.22, subdivision (b)(5) applicable “would make little sense” because life without parole means appellants will never be eligible for parole. The court in Lopez rejected a similar argument. In that case, the Attorney General argued against applying section 186.22, subdivision (b)(5) to first or second degree murderers because it would have “no practical effect,” given the minimum parole eligibility term for first degree murderers is 25 years and for second degree murderers is 15 years. (Lopez, supra, 34 Cal.4th at p. 1009.) Citing legislative history providing that “ ‘if any provision in this act conflicts with another section of law which provides for a greater penalty or longer period of imprisonment that the latter provision shall apply,’ ” the court reasoned it was “neither an absurdity nor an anomaly” that section 186.22, subdivision (b)(5) would apply even if a first degree or second degree murder sentence carried the same or a longer minimum parole term. (Lopez, at p. 1009.)

52 Following the plain language of section 186.22, subdivision (b)(5) and the reasoning in Lopez, rather than its passing dicta about life without parole sentences, we find the trial court improperly imposed and stayed additional terms pursuant to section 186.22, subdivision (b)(1). Section 186.22, subdivision (b)(5) applies to “a felony punishable by imprisonment in the state prison for life” and life without parole plainly qualifies. As Lopez explains, although section 186.22, subdivision (b)(5) will not set the minimum parole term for appellants’ life without parole sentences here, it still applies. Thus, we will modify each appellant’s judgment to delete the section 186.22, subdivision (b)(1) enhancement. G. Parole Revocation Fines Must Be Stricken Appellants contend and respondent concedes the trial court erred in imposing parole revocation fines in light of their sentences to life without parole. (§ 1202.45.) They are correct. Section 1202.45 requires assessment of a parole revocation restitution fine “[i]n every case where a person is convicted of a crime and his or her sentence includes a period of parole.” It does not apply to a sentence with no determinate term. (People v. Brasure (2008) 42 Cal.4th 1037, 1075; People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1183.) It also does not apply when any determinate term is stayed. (People v. Carr (2010) 190 Cal.App.4th 475, 482, fn. 6.) Here, appellants were sentenced to indeterminate terms on all counts and the determinate terms for the enhancements were stayed. Therefore, we will strike the fine for each appellant.

53 H. Custody Credits Must Be Corrected Each appellant argues he should have received additional presentence custody credit. Respondent concedes the errors. Chambasis is therefore entitled to 1,173 days of presentence custody credit, Meraz is entitled to 1,166 days of presentence custody credit, and Bibiano is entitled to 1,167 days of presentence custody credit.14 We will correct the abstracts of judgment to reflect the correct presentence custody credit. I. Fees Must Be Corrected in the Abstract of Judgment We have identified two errors in the fees imposed in the abstracts of judgment. They incorrectly reflect an $80 court security fee when the trial court imposed a $160 court security fee at each appellant’s sentencing hearing. The court’s oral pronouncement controls so we will order each appellant’s abstract of judgment corrected to reflect a $160 court security fee. (People v. Sharret (2011) 191 Cal.App.4th 859, 864.) At appellants’ sentencing hearings, the trial court also imposed a $30 criminal conviction assessment on each appellant. Each abstract of judgment reflects a $60 criminal conviction assessment. Neither is correct. The trial court was required to impose a $30 assessment per count, for a total assessment of $120. (Gov. Code, § 70373; People v. Sencion (2012) 211 Cal.App.4th 480, 483.) We will order the abstracts of judgment corrected accordingly.

14 Bibiano contends he is entitled to 1,166 days of presentence custody credit, but by respondent’s and our calculations, he is entitled to 1,167.

54 DISPOSITION Disposition for Chambasis Chambasis’s sentence is vacated. We remand the matter for resentencing to allow the trial court to consider whether to strike the firearm enhancements pursuant to section 12022.53, subdivision (h). In resentencing Chambasis, the trial court is directed to strike the section 186.22, subdivision (b)(1) enhancement, to strike the section 1202.45 parole revocation fine, to impose a $160 court security fee, to impose a $120 criminal conviction assessment, and to award 1,173 days of presentence custody credit. Following resentencing, the court shall issue an amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation. In all other respects, the judgment as to Chambasis is affirmed. Disposition for Meraz The judgment for Meraz is conditionally reversed. We remand the matter to the juvenile court with directions to conduct a transfer hearing as discussed in this opinion, no later than 90 days from the filing of the remittitur. If at the transfer hearing the juvenile court determines that it would not have transferred Meraz to a court of criminal jurisdiction, then his criminal convictions and enhancements will be deemed juvenile adjudications as of this date. The juvenile court should then conduct a dispositional hearing within its usual time frame. If the juvenile court determines at the transfer hearing that it would have transferred Meraz to a court of criminal jurisdiction, then his convictions shall be reinstated as of that date. The criminal court is directed to conduct a resentencing hearing for Meraz to consider whether to strike the firearm enhancements pursuant to section 12022.53, subdivision (h) and

55 to allow the parties to make a record consistent with Franklin as discussed in this opinion. In resentencing Meraz, the trial court is directed to strike the section 186.22, subdivision (b)(1) enhancement, to strike the section 1202.45 parole revocation fine, to impose a $160 court security fee, to impose a $120 criminal conviction assessment, and to award 1,166 days of presentence custody credit. Following resentencing, the court shall issue an amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation. Disposition for Bibiano The judgment for Bibiano is conditionally reversed. We remand his case to the juvenile court with directions to conduct a transfer hearing as discussed in this opinion, no later than 90 days from the filing of the remittitur. If at the transfer hearing the juvenile court determines that it would not have transferred Bibiano to a court of criminal jurisdiction, then his criminal convictions and enhancements will be deemed juvenile adjudications as of this date. The juvenile court should then conduct a dispositional hearing within its usual time frame. If the juvenile court determines at the transfer hearing that it would have transferred Bibiano to a court of criminal jurisdiction, then his convictions shall be reinstated as of that date. The criminal court is directed to conduct a resentencing hearing for Bibiano to consider whether to strike the firearm enhancements pursuant to section 12022.53, subdivision (h) and to allow the parties to make a record consistent with Franklin as discussed in this opinion. In resentencing Bibiano, the trial court is directed to strike the section 186.22, subdivision (b)(1) enhancement, to strike the section 1202.45 parole revocation fine, to impose a $160 court security fee, to impose a $120 criminal

56 conviction assessment, and to award 1,167 days of presentence custody credit. Following resentencing, the court shall issue an amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation.

BIGELOW, P. J. We concur:

RUBIN, J.*

GRIMES, J.

* Presiding Justice of the Court of Appeal, Second Appellate District, Division Five, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.