People v. Oliver CA5

Opinion

Filed 9/4/26 P. v. Oliver CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE, F089416

Plaintiff and Respondent, (Super. Ct. No. F23907919)

v.

JAMES ANTHONY OLIVER, JR., OPINION

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Fresno County. Francine Zepeda, Judge.

Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Kimberley A. Donohue, Assistant Attorney General, Amanda D. Cary and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Defendant and appellant James Anthony Oliver, Jr., (appellant) was found guilty by a jury of shooting at an occupied motor vehicle and being a felon in possession of a firearm; the jury also found true a gang firearm enhancement and a street terrorism enhancement. Appellant now appeals, asserting: (I) his trial counsel was ineffective in failing to raise a claim of self-defense; and (II) the court misapprehended its sentencing discretion regarding the gang enhancements. The People disagree. We affirm.

PROCEDURAL HISTORY

On February 28, 2024, the Fresno County District Attorney filed a first amended information charging appellant with shooting at an occupied motor vehicle (Pen. Code, § 246; count 2)1 and possession of a firearm by a felon (§ 29800, subd. (a)(1); count 5). Count 2 was enhanced by allegations of street terrorism (§ 186.22, subd. (b)(4)(B)) and intentional discharge of a firearm causing great bodily injury in the commission of a gang-related offense (§ 12022.53, subds. (d), (e)(1)). The information alleged multiple aggravating factors under the California Rules of Court.2 On March 21, 2024, the jury found appellant guilty on both counts. On April 11, 2024, in the second portion of the bifurcated trial, the jury found the gang and firearm enhancements to be true. On April 15, 2024, the jury found five of the six aggravating factors to be true.

On February 20, 2025, the court sentenced appellant to a determinate term of five years and an indeterminate term of 25 years to life as follows: on count 2, five years (the middle term), plus 25 years to life pursuant to section 12022.53, subdivisions (d) and

1 Undesignated statutory references are to the Penal Code. 2 The first amended information alleged similar charges against two other shooters: John Schirra Major and Terrance Pierce. Pierce pleaded guilty to a count under section 245, subdivision (a)(2), with a section 186.22, subdivision (b)(1)(B) gang enhancement, for an aggregate sentence of 10 years four months. Major and appellant were tried together.

(e)(1); and on count 5, a concurrent term of two years. As to count 2, the court also imposed and stayed a term of 15 years to life under section 186.22, subdivision (b)(4)(B).

Appellant filed a notice of appeal on March 3, 2025.

FACTUAL SUMMARY

On July 4, 2023, 50 to 100 adults and children gathered outdoors in a Fresno neighborhood to celebrate and watch the fireworks. Around 11:00 p.m., loud sounds rang out on the street, and gunfire struck three people: E.W., in her leg, her infant daughter K.W., in her leg, and E.C., in her shoulder. No witnesses identified the shooters.

Law enforcement recovered 57 spent cartridge cases of various calibers from the street. A silver SUV was found disabled in the road with extensive bullet damage. Residential surveillance footage showed the SUV drive at a high rate of speed westbound past the gathering, make a U-turn, and drive back eastbound. As the SUV approached the gathering again, six individuals stepped into the street and opened fire toward it from about 30 to 40 yards away. Appellant was identified as one of the shooters, firing at least three of the rounds before moving out of sight of the surveillance footage. There was no evidence of shots fired from the SUV or toward the six shooters. The SUV collided with a parked car, the gunfire ceased, and the driver exited the SUV. Appellant and others approached the SUV and spoke with the driver, and other partygoers removed the guns from the scene.

At trial, the driver refused to testify and was held in contempt. His preliminary hearing testimony was read to the jury, wherein he stated he did not recall the events of the shooting, denied knowing appellant, and denied implicating him as one of the shooters. Portions of the driver’s 2023 recorded interview with a detective were played for the jury. Therein, the driver stated he did not know why he was being shot at; suggested the shooters may have been confused because his vehicle resembled one associated with “somebody that they don’t get along with”; and remarked he was reluctant to involve law enforcement because he had recently been released from prison and was on parole.

In the second portion of the bifurcated trial, the prosecution’s gang expert on Fresno criminal street gangs testified that appellant, the driver, and the other shooters were members of a gang alliance called “MUG,” made up of the “Modoc, U-Boys, Garrett Street, Dog Pound, and Northside Pleasant” gangs. The gang expert cited the shooters’ tattoos; excerpts from the appellant’s and codefendant’s social media showing appellant using gang signs, wearing gang-related clothing, and associating with other MUG allied gang members; and evidence collected in searches of the appellant’s and codefendant’s residences. The prosecution also presented evidence of three incidents in the Fresno area involving members of the MUG gang alliance. The gang expert opined the evidence demonstrated a pattern of criminal gang activity in the area undertaken for the collective benefit of the MUG gang alliance.

DISCUSSION

I. Counsel’s Refraining from Requesting a Self-Defense Instruction Appellant first contends his trial counsel was ineffective because he failed to raise perfect self-defense as against the charge of shooting at an occupied vehicle (and related gang enhancement), which appellant argues deprived him of his only viable defense. The People note the court bifurcated the trial between the guilt and gang enhancement phases at appellant’s request, and had perfect self-defense been raised, the prosecution could have introduced prejudicial gang evidence into the first phase of the trial. Thus, the People argue it was reasonable trial strategy to not raise self-defense, and appellant was not otherwise prejudiced. We agree with the People.

A. Additional Background Prior to trial, appellant requested the gang enhancements be tried in a second phase pursuant to section 1109, which (when sought) requires “the question of the defendant’s guilt of the underlying offense” to be determined first before “the truth of the [gang] enhancement” is presented to the jury. The court granted this request.

The prosecutor moved to introduce evidence of the appellant’s and codefendant’s gang affiliations in the guilt phase of the trial, including the existence and makeup of the MUG gang alliance and its subset gangs; the appellant’s and codefendant’s membership therein; the driver’s membership therein and circumstances of his exile; MUG gang members’ interpretation of vehicles driving through their gang territory; expectations of MUG gang members in the face of threats from rival gangs; and the significance of the location of the shooting as to the MUG gang alliance. The prosecutor argued this “limited” evidence was admissible for intent and motive because the case was a gang case on gang turf by gang members and so “was entirely intwined in their gang membership”; without such evidence, the jury would have to speculate why the shooting occurred and “the defense attorneys [would] be able to fabricate defenses that are not accurate”; one defendant had requested self-defense instructions, “[a]nd if defense is going to argue self-defense or any other motive for the shooting …, the People [should be allowed to] show the true purpose of this shooting, as well as to explain to the jury why this happened, because this does not happen outside of the gang world.”

The trial court noted there was video showing six people shoot at the car, and so asked, “[W]ho cares what the motive is. If you see six people shoot at that car and I allow you to identify those people by the testimony of the detectives …, isn’t that sufficient to find them guilty of the underlying offense without the gang enhancements?”

Appellant objected, and defense counsel joined the court’s comments, noting section 246 does not require proof of motive. Appellant’s counsel explicitly noted the speculative nature of asserting self-defense given the evidence.

Ultimately, the court denied the prosecutor’s request to admit limited gang evidence in the first part of the trial; however, the court agreed if the appellant and codefendant raised “any sort of innuendo of a motive or the self-defense argument,” the prosecutor could rebut with the gang motive and intent.

At the jury instruction conference prior to closing arguments, the court noted the self-defense instruction was withdrawn, no such instruction was given, and appellant’s counsel did not reference self-defense in closing arguments.

B. Governing Principles and Standard of Review A defendant has a constitutional right to the reasonably competent assistance of an attorney acting as a diligent, conscientious advocate. (U.S. Const., Sixth Amend.; Cal. Const., art. I, § 15; see Strickland v. Washington (1984) 466 U.S. 668, 690 (Strickland).) To establish a claim of ineffective assistance of counsel, an appellant must show (1) trial counsel’s representation was deficient because it fell below an objective standard of reasonableness under prevailing professional norms, and (2) the deficiency resulted in prejudice to the appellant, meaning there is “a reasonable probability that, but for counsel’s deficient performance, the outcome of the proceeding would have been different.” (People v. Mai (2013) 57 Cal.4th 986, 1009; see Strickland, at p. 694 [noting a reasonable probability “is a probability sufficient to undermine confidence in the outcome”].)

C. Analysis A criminal appellant may claim ineffective assistance on direct appeal where defense counsel failed to “ ‘investigate carefully all defenses of fact and of law that may be available to the defendant….’ ” (Sanchez v. Superior Court (2024) 106 Cal.App.5th 617, 628.) “ ‘If counsel’s “failure [to undertake such careful inquiries and investigations] results in withdrawing a crucial defense from the case, the defendant has not had the assistance to which he is entitled.” ’ ” (In re Brown (2013) 218 Cal.App.4th 1216, 1223; see also People v. Shaw (1984) 35 Cal.3d 535, 541 [“A crucial defense is not necessarily one which, if presented, ‘would result inexorably in a defendant’s acquittal’ ”].) However, “the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” (Strickland, supra, 466 U.S. at p. 689.) “When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsel’s challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation.” (People v. Anderson (2001) 25 Cal.4th 543, 569; see People v. Hernandez (2025) 115 Cal.App.5th 256, 269 [reminding that Courts of Appeal give significant deference to trial counsel’s reasonable tactical decisions and maintain a “ ‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance’ ”].)

Here, appellant has not carried his burden to show his counsel was ineffective. It is clear from the record his counsel considered raising self-defense, as he noted it during the pretrial hearing on the prosecutor’s motion to admit gang evidence into the first part of the trial. This defense would have required the prosecutor to show appellant did not have “an honest and reasonable belief that bodily injury is about to be inflicted on him….” (People v. Cruz-Partida (2022) 79 Cal.App.5th 197, 212 (Cruz-Partida).) “ ‘The threat of bodily injury must be imminent,’ ” and the force used must be “ ‘reasonable under the circumstances.’ ” (Ibid.) However, as appellant’s counsel correctly noted at the pretrial hearing, raising such a defense would have been tenuous given the dearth of evidence that the SUV driver posed an immediate threat to appellant or others at the gathering. (See, e.g., id. at p. 213 [noting the difficulty in proffering self-defense argument in assault case where evidence was weak as to the imminence of bodily injury from victim on the defendant, where video footage did not demonstrate fear on the defendant’s part, and the defendant “was on his home turf with a loaded gun [while] there was no evidence either of the [victims] had a weapon”].)3

3 As noted by the parties, imperfect self-defense is not a viable defense to a section 246 charge. (People v. Iraheta (2014) 227 Cal.App.4th 611, 624.) Thus, to the extent appellant argues he had an unreasonable belief the SUV posed an imminent harm, such an argument would be inapposite.

Accepting for the sake of argument that the defense would have been viable, raising it would have allowed the prosecutor to introduce extensive evidence of appellant’s gang affiliations—evidence sequestered to the second portion of the bifurcated trial. (See People v. Iraheta (2017) 14 Cal.App.5th 1228, 1252–1253 [“Evidence that [the appellant] was a gang member went directly to the genuineness of his belief. His gang membership, or lack thereof, was crucial to both the defense and the prosecution theories, to demonstrate he shot either from a gang related motive, or that he lacked such a motive and shot in self-defense”].) This kind of prejudice was explicitly noted by the Legislature when it enacted Assembly Bill No. 333 (2021–2022 Reg. Sess.) (Assembly Bill No. 333).4 Assembly Bill 333 codified the procedures available to defendants wishing to avoid injecting gang evidence into the prosecution’s case in chief. (See People v. Burgos (2024) 16 Cal.5th 1, 10 [noting the bill’s findings that “[g]ang enhancement evidence can be unreliable and prejudicial to a jury because it is lumped into evidence of the underlying charges which further perpetuates unfair prejudice in juries and convictions of innocent people”].) Thus, at best appellant can only show counsel made a rational choice between two untenable alternatives. (People v. Scott (1997) 15 Cal.4th 1188. 1215 [“Many defenses are hopeless, or nearly so. A defense attorney has to make do with the facts presented”].) Appellant’s conviction will not be overturned on direct appeal in light of the strong presumption of counsel’s reasonable tactical decision to forego raising perfect self-defense in order to keep the gang evidence out of the guilt phase of the trial. (Strickland, supra, 466 U.S. at p. 689; see also People

4 See also Statutes 2021, chapter 699, section 2, subdivisions (d)(6), (e), and (f) [declaring that “[s]tudies suggest that allowing a jury to hear the kind of evidence that supports a gang enhancement before it has decided whether the defendant is guilty or not may lead to wrongful convictions,” noting “[t]he mere specter of gang enhancements pressures defendants to accept unfavorable plea deals rather than risk a trial filled with prejudicial evidence and a substantially longer sentence,” and resolving that “[b]ifurcation of trials where gang evidence is alleged can help reduce its harmful and prejudicial impact”].

v. Hernandez (2025) 115 Cal.App.5th 256, 269 [“ ‘ “Reviewing courts defer to counsel’s reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a ‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance’ ” ’ ”].)

Further, we note appellant would not succeed on the second prong of Strickland, even had self-defense been injected into the guilt phase of the bifurcated trial. Asserting self-defense would be to argue appellant did so under a reasonable belief of imminent bodily injury. (Cruz-Partida, supra, 79 Cal.App.5th at p. 212.) But as noted above, there was no evidence that the SUV driver pointed a gun at appellant or others, much less evidence of gunfire coming from the SUV or going towards the gathering. Instead, residential surveillance footage showed that as the SUV approached the gathering, appellant and five others moved into the street and opened fire toward it from about 30 to 40 yards away. Then, assuming appellant’s belief of an imminent drive by shooting would be seen by the jury as both honest and reasonable, the prosecution would be able to present significant evidence that appellant was a member of the U-Boys gang and the “MUG” alliance. This would have included evidence the MUG gang alliance and U-Boys subset gang existed to protect their territory, as well as work against, harm, and even kill perceived or actual gang rivals like the “TWAMP”5 alliance. Such evidence touches on the exact prejudice identified by the Legislature in Assembly Bill 333. (People v. Burgos, supra, 16 Cal.5th at p. 10.) As noted above, courts have affirmed convictions where self-defense was raised and rejected by the fact finder in the face of little evidence supporting self-defense and significant evidence of gang-related motives. (See Cruz-Partida, supra, 79 Cal.App.5th at pp. 212‒213.) In the face of this evidence, we find any insertion of perfect self-defense by counsel would not “undermine [our]

5 The meaning of the acronym could not be confirmed. The term is used solely because the gang expert used it to identify the rival gang alliance.

confidence in the outcome” of appellant’s guilt. (Strickland, 466 U.S. at p. 696 [“A verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support”].)

For these reasons, we reject appellant’s first point on appeal.

II. Sentencing Discretion Under Section 1385 on the Gang Enhancements Appellant next contends remand for resentencing is necessary because the trial court was unaware of its discretion under section 1385. He asserts the court could have dismissed the gang firearm enhancement under section 12022.53, subdivisions (d) and (e)(1), which carried a 25-year minimum term, and imposed the 15 years to life term under section 186.22, subdivision (d)(4). We disagree.

A. Additional background In the second portion of the bifurcated trial, the jury found true the two gang enhancements. Prior to sentencing, the court received reports from appellant, the prosecutor, and probation officer discussing the potential punishment for these enhancements.

The prosecutor requested 15 years to life under section 186.22 and 25 years to life under section 12022.53, subdivisions (d) and (e)(1). The People’s sentencing brief noted that, as to section 12022.53, the court’s choice was between imposing 25 years to life or dismissing the enhancement altogether, given that only subdivisions (d) and (e)(1) applied to appellant’s section 246 conviction. However, the prosecutor contended that dismissing the section 12022.53 enhancement would endanger public safety and would be an injustice to the victims and the community of Fresno. The probation report similarly noted these enhancements carried punishments of 25 years to life and 15 years to life, similarly noted the court’s discretion under section 1385, and similarly recommended a total indeterminate term of 40 years to life. Appellant’s statement in mitigation argued for dismissal of the section 12022.53 enhancement or imposition of a

“lesser included offense,” as well as a stay of the sentence on the section 186.22 enhancement, citing the jury’s rejection of the “planning and sophistication” aggravating circumstance and the court’s discretion under section 1385, subdivision (c).

At sentencing, the prosecutor confirmed the statutes did not allow for imposition of a sentence on both enhancements because the jury was only presented with a “vicarious arming” theory under section 12022.53, subdivisions (d) and (e)(1). Thus, the prosecutor ultimately argued for a sentence of 25 years to life and a stay of the sentence as to section 186.22. Appellant submitted. The court declined to strike the section 12022.53 enhancement and imposed the 25-years-to-life term, noting the probation report’s incorrect 40 years to life recommendation.6 B. Governing Principles and Standard of Review Section 1385, subdivision (c)(1), states that a sentencing court “shall dismiss an enhancement if it is in the furtherance of justice to do so ….” Subdivision (c)(2) states:

“In exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in subparagraphs (A) to (I) are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety. ‘Endanger public safety’ means there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others.”

Relevant here, if “multiple enhancements are alleged in a single case” or if “[t]he application of an enhancement could result in a sentence of over 20 years,” the statute states “the enhancement shall be dismissed.” (§ 1385, subdivisions (c)(2)(B), (C).)

6 The court declined to strike the section 12022.53 enhancement and imposed the 25-years-to-life term, noting the probation report’s incorrect 40 years to life recommendation.

A trial court’s decision not to dismiss an enhancement pursuant to section 1385 is reviewed for abuse of discretion. (People v. Mendoza (2023) 88 Cal.App.5th 287, 298.) “ ‘[A]n abuse of discretion arises if the trial court based its decision on impermissible factors … or on an incorrect legal standard.’ ” (People v. Gonzalez (2024) 103 Cal.App.5th 215, 225.) “A court acting while unaware of the scope of its discretion is understood to have abused it.” (People v. Tirado (2022) 12 Cal.5th 688, 694 [reminding that a defendant is entitled to sentencing decisions “made by a court exercising informed discretion”].)

C. Analysis The People first contend appellant forfeited this issue by failing to object at sentencing. Appellant argues he cannot forfeit the trial court’s sentencing discretion when the trial court is not aware of that discretion. Because we can resolve the matter on the merits, we exercise our discretion to reach the issue. (People v. Urbano (2005) 128 Cal.App.4th 396, 404.)

The crux of appellant’s argument is that the trial court was unaware it had the discretion to strike the section 12022.53 enhancement under section 1385 and instead impose a 15-year-to-life enhancement under section 186.22. Appellant notes the bulk of the arguments over the enhancements concerned the court’s authority to impose punishment on both enhancements or impose a lesser punishment pursuant to Tirado, supra, 12 Cal.5th 688. He contends the court was unaware of its discretion because neither party explicitly informed the court at the sentencing hearing that it could choose section 186.22 over section 12022.53. However, the parties briefed arguments under section 1385 in their sentencing memoranda, the probation report noted the applicable portions of the statute, and at the hearing, the prosecutor reiterated opposition to dismissing the section 12022.53 enhancement. Thus, at best, the sentencing hearing transcript is silent on this issue—which does not affirmatively demonstrate the court misunderstood its discretion to choose between sections 12022.53 and 186.22. (People v.

Gutierrez (2009) 174 Cal.App.4th 515, 527 [“[I]n light of the presumption on a silent record that the trial court is aware of the applicable law, including statutory discretion at sentencing, we cannot presume error where the record does not establish on its face that the trial court misunderstood the scope of [its] discretion”].)

For these reasons, we reject appellant’s second claim on appeal.

DISPOSITION

The judgment is affirmed.

SANDHU, J.

WE CONCUR:

HILL, P. J.

DETJEN, J.