Filed 1/11/23 P. v. Vance CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E077132
v. (Super. Ct. No. FSB1100293)
CALVIN RAY VANCE, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Gregory S. Tavill,
Judge. Affirmed in part, reversed in part with directions.
Siri Shetty, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland , Assistant Attorney General, Arlene A. Sevidal and Andrew
Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
1 I.
INTRODUCTION
In 2011, defendant and appellant Calvin Vance (Defendant) and co-defendant 1 Dewayne Maurice Riley were convicted by a jury of numerous crimes committed in
connection with the robbery of a fast food restaurant. As the driver of the getaway car,
Defendant aided and abetted commission of the robbery. He was most recently
resentenced to 142 years eight months to life in prison.
Defendant contends his gang crime conviction (count 14) and gang enhancements 2 (attached to counts 1-10) (Pen. Code, § 186.22, subds. (a), (b)) must be vacated and the
matter remanded under Assembly Bill No. 333 (Stats. 2021, ch. 699, § 3, eff. Jan. 1,
2022) (A.B. 333). In addition, Defendant argues in supplemental briefing that under
section 1109, added by A.B. 333 (Stats. 2021, ch. 699, § 5, eff. Jan. 1, 2022), he is
entitled to a new trial bifurcating his gang crime charge and gang enhancements from the
other charges and allegations.
Defendant also asserts that this case should be remanded under Assembly Bill No.
518 (Stats. 2021, ch. 441, § 1, eff. Jan. 1, 2022 (A.B. 518)), to allow the trial court to
exercise its discretion in determining whether to stay Defendant’s robbery convictions
(counts 2-5) or instead stay his kidnapping for robbery convictions (counts 7-10).
Defendant further argues that his sentence should be vacated and the matter remanded for
1 Riley is not a party to this appeal. 2 Unless otherwise noted, all statutory references are to the Penal Code.
2 resentencing because the court prejudicially erred in conducting the resentencing hearing
in his absence. Defendant also asserts that during resentencing, the trial court erred in
failing to recalculate custody credits.
We agree this case should be remanded under A.B. 518, to allow the trial court to
exercise its discretion as to whether to stay the robbery convictions (counts 2-5) or
instead stay the kidnapping for robbery convictions (counts 7-10). We also conclude that
A.B. 333’s modification of section 186.22 applies retroactively to this case and therefore
Defendant’s gang crime conviction and gang enhancements must be vacated and the
matter remanded under A.B. 333. We further conclude that, even though section 1109,
added by A.B. 333, entitled Defendant to bifurcate trial of his gang charge and gang
enhancements from trial of the remainder of the charges and allegations, nonbifurcation
did not constitute prejudicial error.
Because we must reverse and remand for resentencing under A.B. 333 and A.B.
518, we need not decide Defendant’s remaining objection to the trial court conducting
resentencing in his absence nor address his request to recalculate custody credits.
Accordingly, the judgment is reversed and remanded as to defendant’s sentence
and as to Defendant’s gang crime conviction (count 14) and gang enhancements. The
judgment is affirmed in all other respects.
3 II.
FACTS
This is Defendant’s third appeal. In Defendant’s first appeal (People v. Vance
(Oct. 29, 2013, E054460 [nonpub. opn.]).), we provided a statement of facts, which we
will not repeat here because most of the facts are not germane to this appeal. The
following is a brief summary of the facts taken from Defendant’s second appeal (People
v. Vance (Jan. 16, 2020, E071074 [nonpub. opn.]).). (Evid. Code, §§ 452, 459.)
“About 9:00 p.m. on January 18, 2011, Riley entered a Jack in the Box restaurant.
Five employees were present. Riley demanded money and ordered the employees to
enter the manager’s office. The manager gave Riley about $17 from a safe in the office.
The manager then told another employee to give Riley money from a cash register at the
front counter. Riley received a total of about $169. He then ran out of the restaurant and
entered a nearby car, driven by defendant.
“Law enforcement pursued defendant in a high speed chase, which ended when
defendant’s vehicle spun out of control, struck a truck, and veered into a pole. Defendant
and Riley fled from the vehicle and were apprehended shortly thereafter. A loaded gun
was found in the vehicle. At trial, a gang expert testified that defendant and Riley were
active members of a criminal street gang. The gang expert further testified that the
crimes were committed for the benefit of defendant’s gang.
4 “During the trial, the prosecution presented evidence that defendant was involved
in a similar robbery on January 8, 2011, 10 days before the Jack in the Box robbery. The
same car, owned by defendant’s mother, was used in both robberies.”
III.
PROCEDURAL BACKGROUND
On April 25, 2011, the jury found Defendant guilty of kidnapping for robbery (§
209, subd. (b)(1); counts 1-5); robbery (§ 211; counts 6-10); evading a peace officer
(Veh. Code, § 2800.2 (a); count 11); felon in possession of a firearm (former §12021,
subd. (a)(1); count 13); and active participation in a gang (§ 186.22, subd. (a); count 14).
The jury also found true allegations as to counts 1 through 10 that a principal personally
used a handgun (§ 12022.53, subd. (b), (e)(1)), and that the crime was committed for the
benefit of and in association with a gang (§ 186.22, subd. (b)). During a bifurcated trial,
the court found true that Defendant suffered a prior strike conviction (§§ 1170.12, subd.
(a)-(d), 667, subd. (b)-(i)), a serious felony conviction (§ 667, subd. (a)), and four prison
prior convictions (§ 667.5).
At sentencing in 2011, the court imposed an aggregate term of 207 years 4
months, consisting of an indeterminate term of 190 years to life and a determinate term of
17 years 4 months.
In 2013, this court affirmed the judgment, but reversed the conviction on count 1
(kidnapping for robbery) and directed the trial court to stay the sentence on count 6
(robbery).
5 In 2015, the federal court granted defendant’s petition for a writ of habeas corpus
in part, directing reversal of Defendant’s conviction for felon in possession of a firearm
(count 13), and directing the trial court to resentence Defendant.
In 2017, the trial court amended the abstract of judgment in accordance with our
2013 opinion in case no. E054460. The trial court dismissed count 1 (kidnapping for
robbery), deleted the conviction from the abstract, and imposed the previously stayed
sentence on count 6 (robbery).
The trial court resentenced Defendant in 2018, to 182 years and eight months to
life. Defendant again appealed, leading to this court issuing a decision on January 16,
2020 (E071074), remanding the matter again for resentencing under Senate Bill No. 136
(2018-2019 Reg. Sess.) (SB 136) and Senate Bill No. 1393 (2017-2018 Reg. Sess.) (SB
1393).
Upon remand, the court resentenced Defendant. On September 24, 2020, the trial
court dismissed Defendant’s serious felony enhancements under SB 1393, struck his
prison priors under SB 136, and imposed an aggregate prison term of 142 years and eight
months-to-life.
On May 26, 2021, Defendant filed a notice of appeal of the September 24, 2020,
resentencing order, after this court granted permission to file a constructive notice of
appeal.
6 IV.
A.B. 518
Defendant contends that under A.B. 518, this case should be remanded to allow
the trial court to exercise its discretion to stay punishment on the kidnapping for robbery
convictions (counts 2-5) or, alternatively, the robbery convictions (counts 7-10). The
People agree that Defendant is entitled to the benefit of the recent legislation and
therefore remand is required.
At the time of sentencing on August 19, 2011, the trial court was required under
section 654 to impose punishment under the provision that provides for the longest
potential term of imprisonment when staying punishment for convictions based on the
same act or omission. (§ 654; People v. Sok (2010) 181 Cal.App.4th 88, 100.)
In October 2021, A.B. 518 was enacted and became effective on January 1, 2022.
A.B. 518 provides the sentencing court with discretion to choose any term stayed under
section 654, thereby no longer requiring selection of the longest term. (§ 654, subd. (a);
see Sen. Rules Committee, 3d reading analysis of A.B. 518 (2021-2022 Reg. Sess.) Aug.
18, 2021, pp. 1-2.)
As amended by A.B. 518, section 654 now provides that the trial court may
impose and execute sentence on either of the kidnapping for robbery or robbery
convictions, and not solely on the statute with the greater punishment. (People v. Sek
(2022) 74 Cal.App.5th 657, 673 (Sek).) Because Defendant’s sentence was not final on
January 1, 2022, when A.B. 518 took effect, he is entitled to its ameliorative effect.
7 (Ibid.; see In re Estrada (1965) 63 Cal.2d 740, 745 (Estrada).) Therefore Defendant’s
case must be remanded so that the trial court can exercise its discretion under section 654
regarding Defendant’s kidnapping for robbery convictions (counts 2-5) and robbery
convictions (counts 7-10).
V.
A.B. 333
Defendant contends this court should remand this case under A.B. 333 for retrial
and resentencing on count 14 (gang street terrorism, § 186.22, subd. (a)) and the gang
enhancements (§ 186.22, subd. (b)). We agree.
A. A.B. 333 Amendments to Section 186.22
After Defendant was tried and convicted in 2011 of a gang crime (count 14) and
gang enhancements under former section 186.22, in 2021, the Legislature passed A.B.
333, which became effective on January 1, 2022. A.B. 333 modified the law on gang
charges and enhancements: “First, it narrowed the definition of a ‘criminal street gang’
to require that any gang be an ‘ongoing, organized association or group of three or more
persons.’ (§ 186.22, subd. (f), italics added.) Second, whereas section 186.22, former
subdivision (f) required only that a gang’s members ‘individually or collectively engage
in’ a pattern of criminal activity in order to constitute a ‘criminal street gang,’ [A.B.] 333
requires that any such pattern have been ‘collectively engage[d] in’ by members of the
gang. (§ 186.22, subd. (f), italics added.) Third, [A.B.] 333 also narrowed the definition
of a ‘pattern of criminal activity’ by requiring that (1) the last offense used to show a
8 pattern of criminal gang activity occurred within three years of the date that the currently
charged offense is alleged to have been committed; (2) the offenses were committed by
two or more gang ‘members,’ as opposed to just ‘persons’; (3) the offenses commonly
benefitted a criminal street gang; and (4) the offenses establishing a pattern of gang
activity must be ones other than the currently charged offense. (§ 186.22, subd. (e)(1),
(2).) Fourth, [A.B.] 333 narrowed what it means for an offense to have commonly
benefitted a street gang, requiring that any ‘common benefit’ be ‘more than reputational.’
(§ 186.22, subd. (g).)” (People v. Tran (2022) 13 Cal.5th 1169, 1206 (Tran).)
B. Retroactive Application of A.B. 333
The parties agree that generally A.B. 333’s amendments to section 186.22 apply
retroactively because they are ameliorative. They redefine favorably conduct punishable
under section 186.22. (Tran, supra, 13 Cal.5th at pp. 1206-1207; Sek, supra, 74
Cal.App.5th at p. 673; see Estrada, supra, 63 Cal.2d at p. 745.)
The California Supreme Court explains in Tran that “Estrada ‘stand[s] for the
proposition that (i) in the absence of a contrary indication of legislative intent, (ii)
legislation that ameliorates punishment (iii) applies to all cases that are not yet final as of
the legislation’s effective date.’ [Citation.] Estrada applies to statutory amendments
‘which redefine, to the benefit of defendants, conduct subject to criminal sanctions.’
[Citation.]” (Tran, supra, 13 Cal.5th at pp. 1206-1207.)
Applying Estrada to A.B. 333, the court in Tran further states that “‘[A.B.] 333
essentially adds new elements to the substantive offense and enhancements in section
9 186.22 — for example, by requiring proof that gang members ‘collectively engage’ in a
pattern of criminal gang activity, that the predicate offenses were committed by gang
members, that the predicate offenses benefitted the gang, and that the predicate and
underlying offenses provided more than a reputational benefit to the gang . . . .’
[Citations.] These changes have the effect of ‘increas[ing] the threshold for conviction of
the section 186.22 offense and the imposition of the enhancement,’ with obvious benefit
to defendants like Tran. [Citation.]” (Tran, supra, 13 Cal.5th at p. 1207.)
The court in Tran concludes that the A.B. 333 amendments to section 186.22
applied retroactively to the Tran defendant’s gang enhancement because, “When a
substantive change occurs in the elements of an offense and the jury is not instructed as to
the proper elements, the omission implicates the defendant’s right to a jury trial under the
Sixth Amendment, and reversal is required unless ‘it appears beyond a reasonable doubt’
that the jury verdict would have been the same in the absence of the error. (People v.
Flood (1998) 18 Cal.4th 470, 504, 76 Cal.Rptr.2d 180, 957 P.2d 869.)” (Tran, supra, 13
Cal.5th at p. 1207.)
Defendant argues that, because his sentence, imposed in 2011, was not final when
the amendments to section 186.22 went into effect on January 1, 2022, he is entitled to
A.B. 333’s ameliorative effect. The People disagree, arguing that A.B. 333 does not
apply retroactively here because judgment on Defendant’s gang conviction (count 14)
and gang enhancements is final, because the preceding appeal (E071974) only addressed
sentencing objections and this court remanded the matter solely for resentencing, while
10 affirming the gang conviction (count 14) and gang enhancements. The People argue that
under such circumstances, at the time of enactment of A.B. 333, Defendant’s convictions
and enhancements were thus final and therefore cannot be challenged under A.B. 333 in
the instant appeal.
In support of this proposition, the People cite case law holding that, “[f]ollowing
appellate affirmance of a trial court judgment and issuance of a remittitur, ‘the trial court
is revested with jurisdiction of the case, but only to carry out the judgment as ordered by
the appellate court.’” (People v. Picklesimer (2010) 48 Cal.4th 330, 337 (Picklesimer);
see also People v. Webb (1986) 186 Cal.App.3d 401, 410 [“we specifically affirmed the
judgment of conviction in the prior appeal and remanded only for resentencing.
Defendant cannot now be permitted to make a direct attack upon his convictions.”].)
Under the “full sentencing rule” stated in People v. Buycks (2018) 5 Cal.5th 857,
893, when a case is on remand for resentencing, the trial court has jurisdiction to modify
any part of the sentence when part of a sentence is stricken on review, but the full
resentencing rule does not allow the trial court to revisit anything other than the sentence.
(See also, People v. Valenzuela (2019) 7 Cal.5th 415, 425, People v. Espinosa (2014) 229
Cal.App.4th 1487, 1497; People v. Blount (2009) 175 Cal.App.4th 992, 998; Picklesimer,
supra, 48 Cal.4th at p. 337.) The People recognize that A.B. 333 is ameliorative and
applies retroactively to judgments that are not final but urges this court to conclude that
even though the judgment is not final as to Defendant’s sentence, it is final as to
Defendant’s convictions and enhancements because they were affirmed in the most
11 recent appeal. The People have not provided any persuasive authority to support this
proposition.
The People rely on Picklesimer, supra, 48 Cal.4th at page 337, in which the
defendant was convicted of child sexual abuse. After he served time in prison and was
released, he filed a motion in the long-since-final criminal case against him to be
removed from the state sex offender registry. The defendant argued the trial court had
jurisdiction to grant his motion because once the court of appeal issued its remittitur after
affirming the original judgment, the trial court’s jurisdiction over the case resumed.
(Ibid.)
In agreeing that the trial court’s jurisdiction after an appeal, remand, and remittitur
is limited to carrying out the judgment as ordered by the appellate court, the Picklesimer
court stated that the defendant’s argument “speaks only to the allocation of jurisdiction
between trial courts and Courts of Appeal and does not address the core issue—the actual
scope of the trial court’s postjudgment jurisdiction. Following appellate affirmance of a
trial court judgment and issuance of a remittitur, ‘the trial court is revested with
jurisdiction of the case, but only to carry out the judgment as ordered by the appellate
court.’” (Picklesimer, supra, 48 Cal.4th at p. 337.)
Picklesimer is not on point. It concerns a postjudgment motion seeking relief
unrelated to carrying out the judgment. The motion was brought long after the judgment
was final as to the entire case and the court no longer had any jurisdiction over the case.
Here, the judgment was not final when Defendant filed the instant appeal seeking to
12 reverse his gang conviction and gang enhancements based on new, ameliorative
legislation (A.B. 333).
In discussing retroactive application of new legislation, the court in People v.
Padilla (2022) 13 Cal.5th 152 (Padilla), noted that the courts have indicated that any
restrictions on the Legislature’s power to intervene in judicial decision making “would
attach at ‘the conclusion of a criminal proceeding as a whole’ — i.e., when ‘“ the last
word of the judicial department with regard to a particular case or controversy”’ has
issued. [Citation.]” (Id. at pp. 160-161.)
In Padilla, the defendant’s judgment became nonfinal when his sentence was
vacated on habeas corpus and the case was returned to the trial court for resentencing. 3 The court in Padilla held that Proposition 57 applied retroactively under Estrada to the
defendant’s resentencing. (Padilla, supra, 13 Cal.5th at p. 158.)
The court in Padilla rejected the Attorney General’s argument that “applying
Proposition 57 to defendants whose sentences are vacated would be inconsistent with
‘principles that generally limit the scope of subsequent modification of a judgment after
initial finality.’” (Padilla, supra, 13 Cal.5th at p. 169.) The Attorney General argued, as
the People argue in the instant case, that “vacatur of a defendant’s sentence ‘does not
3 “In 2016, the voters of California enacted Proposition 57, a measure that amended the law governing the punishment of juvenile offenses in adult criminal court by requiring hearings to determine whether the offenses should instead be heard in juvenile court. Adjudicating these offenses in juvenile court typically results in less severe punishment for the juvenile offender. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 306-307.)” (Padilla, supra, 13 Cal.5th at p. 158.)
13 allow a resentencing court to consider new claims or affect any part of the judgment other
than the sentence.’” (Id. at p. 169.)
The court in Padilla rejected this argument by concluding that the right and
remedy under Proposition 57 permitted the defendant to raise claims related to his
sentence. (Padilla, supra, 13 Cal.5th at p. 169.) Padilla is not on point here because,
unlike in the instant case, in Padilla, retroactive application of Proposition 57 would lead
to a reduction of the defendant’s sentence but would not result in relitigation of guilt. (Id.
at p. 170.)
The People also cite Sek, supra, 74 Cal.App.5th 657, for the proposition that A.B.
333 does not apply here retroactively because A.B. 333 is not a sentencing bill. In Sek, as
in the present case, there were a couple of appeals, the first of which challenged
convictions and a jury finding. After the first appeal, the matter in Sek was remanded
solely for resentencing. After the trial court in Sek resentenced the defendant, and while
his appeal was pending, the Legislature enacted A.B. 333, which the Sek defendant
argued applied retroactively to his case because the judgment was not final when A.B.
333 was enacted. The Sek court agreed. (Id. at p. 666 [“the retroactivity principle applies
to ameliorative changes in enhancements as well as to substantive offenses [citation], and
to changes in the law that merely allow for a possibility of reduced punishment”]; see
also Tapia, supra, 53 Cal.3d at pp. 300-301 [Because the initiative redefined, to the
benefit of defendants, conduct subject to criminal sanctions, the court held that it applied
retroactively.].)
14 Sek, supra, 74 Cal.App.5th 657, which is analogous here, supports the proposition
that Defendant’s judgment is not final and therefore A.B. 333 applies retroactively, even
though Defendant’s previous appeal only resulted in remand for resentencing and
affirmance of his convictions and enhancements. Such was also the case as to the Sek
defendant’s gang enhancements. Under such circumstances, the court in Sek held that
A.B. 333 applied retroactively, resulting in reversal of the gang enhancements. (Id. at pp.
663, 667; see also People v. Rodriguez (2022) 75 Cal.App.5th 816, 822 [“Because the bill
and its implementation are silent regarding retroactivity, it does apply to all nonfinal
cases on appeal.”].) We thus conclude reversal and remand are required here, unless
there was harmless error.
Defendant argues there was prejudicial error and therefore reversal is required
because the jury was not instructed on the new gang crime and enhancement elements
added by A.B. 333. The People did not argue in their respondent’s brief on appeal
harmless error. We conclude that reversal is required because such error was prejudicial.
Because A.B. 333 adds new elements to the substantive offense and enhancements in
section 186.22, as discussed above, the prejudice standard articulated in Chapman v.
California (1967) 386 U.S. 18, 24 (Chapman) applies. (Sek, supra, 74 Cal.App.5th at p.
668; People v. Delgado (2022) 74 Cal.App.5th 1067, 1090.) Under that standard, the
absence of instruction on the amended version of section 186.22 requires reversal unless
“it appears beyond a reasonable doubt that the error did not contribute to th[e] jury’s
15 verdict.” (People v. Flood, supra, 18 Cal.4th at p. 504; see also People v. E.H. (2022) 75
Cal.App.5th 467, 470.)
Here, the absence of instruction on the new elements of the gang crime charge and
gang enhancements under A.B. 333 was inherently prejudicial. During the trial, gang
expert Police Officer Bonshire testified regarding Defendant’s three predicate offenses,
which consisted of a 2009 grand theft committed by a single gang member; two 2009
armed robberies with a gang enhancement committed by an individual gang member; and
two 2008 robberies committed by an individual gang member. Officer Bonshire further
testified that committing the charged crimes outside the gang’s territory enhanced the
gang’s reputation by evoking discussion by the gang community and community in
general.
The People did not prove that these predicate offenses commonly benefitted
Defendant’s gang under section 186.22, as modified by A.B. 333. In addition, the
evidence and argument focused on reputational benefit to the gang, which is also no
longer permitted under amended section 186.22. The amendments to section 186.22
impose a new requirement that the predicate offenses “commonly benefited a criminal
street gang, and the common benefit of the offense is more than reputational.” (§ 186.22,
subd. (e)(1); People v. Rodriguez, supra, 75 Cal.App.5th at pp. 822-823.) That benefit to
the gang must be more than reputational, such as providing “financial gain or motivation,
retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a
potential current or previous witness or informant.” (§ 186.22, subd. (g).)
16 A.B. 333 also modified the definition of “criminal street gang.” The previous
definition required that the gang’s “members individually or collectively engage in, or
have engaged in,” the pattern of criminal gang activity. (Former § 186.22, subd. (f),
italics added). Now, the word “individually” has been excised and the gang’s members
must “collectively” engage in, or have engaged in, the pattern of criminal gang activity.
(§ 186.22, subd. (f).)
The record does not show evidence was presented at trial establishing all of the
new required elements for proving the charged gang crime and gang enhancements, nor
was the jury instructed as to the new elements required under A.B. 333. There was no
instruction or showing that the members of the charged gang “collectively” engaged in a
pattern of criminal activity or that the benefit to the gang from those crimes was more
than reputational. Because the jury was not instructed as to the elements and findings
required under A.B. 333, we conclude there was prejudicial error requiring reversal of the
gang crime conviction (count 14) and gang enhancements. (People v. E.H., supra, 75
Cal.App.5th at p. 479.)
Even assuming there was evidence of “benefits to the gang that went beyond
reputational, we cannot rule out the possibility that the jury relied on reputational benefit
to the gang as its basis for finding the enhancements true.” (Sek, supra, 74 Cal.App.5th
at p. 669.) Such error, including instructing the jury inconsistent with section 186.22 as
amended, is thus not harmless under the Chapman standard. (Ibid.)
17 Accordingly, we reverse the gang crime conviction and true findings on
Defendant’s gang enhancements. The proper remedy is to remand to give the People an
opportunity to retry the gang crime and gang enhancements under current law. (See
People v. Lopez (2021) 73 Cal.App.5th 327, 346 [vacating gang enhancements in light of
A.B. 333 and remanding for limited retrial]; People v. Figueroa (1993) 20 Cal.App.4th
65, 71-72, fn. 2 [remand appropriate to allow prosecution to establish additional element
retroactively added by statutory amendment]; People v. Rodriguez, supra, 75 Cal.App.5th
at pp. 823-824, fn. 19 [same]; People v. E.H., supra, 75 Cal.App.5th at p. 481 [same];
People v. Delgado, supra, 74 Cal.App.5th at p. 1091 [same]; People v. Vasquez (2022)
74 Cal.App.5th 1021, 1033 [same]; Sek, supra, 74 Cal.App.5th at p. 669 [same].)
“‘Because we do not reverse based on the insufficiency of the evidence required to
prove a violation of the statute as it read at the time of trial, the double jeopardy clause of
the Constitution will not bar a retrial. [Citations.] “‘Where, as here, evidence is not
introduced at trial because the law at that time would have rendered it irrelevant, the
remand to prove that element is proper and the reviewing court does not treat the issue as
one of sufficiency of the evidence.’ [Citation.]”’” (Sek, supra, 74 Cal.App.5th at pp.
669-670.)
18 C. Application of Section 1109 under A.B. 333
In supplemental briefing the parties address the issue of whether the judgment
should be reversed based on A.B. 333’s enactment of section 1109, which requires, if
requested, a gang crime and or gang enhancement charged under section 186.22,
subdivisions (a) and (b), “to be tried separately from all other counts that do not
otherwise require gang evidence as an element of the crime.” (Tran, supra, 13 Cal.5th at
p. 1206.)
In the instant case, Defendant’s gang charge (count 14) and gang enhancements
(attached to counts 1-10) were tried before enactment of section 1109, and therefore were
tried in the same jury trial as the other charges and enhancement allegations. Defendant
argues section 1109 applies retroactively to his case, thereby requiring a retrial of all of
the charges and allegations, with bifurcation of trial of the gang charge and gang
enhancements. The People disagree section 1109 applies retroactively.
Our California Supreme Court in Tran, supra, 13 Cal.5th at p. 1208,
acknowledged that “[t]he question of whether section 1109 applies retroactively is the
subject of a split of authority among the Courts of Appeal,” but declined to resolve this
split. Instead, the court in Tran concluded that “any asserted error in failing to bifurcate
was harmless as to Tran’s guilty verdicts and penalty judgment.” (Tran, supra, at
p.1208.) We likewise need not decide whether section 1109 applies retroactively here
because, regardless, there was no prejudicial error in not bifurcating under section 1109.
19 In determining whether there was harmless error, the Tran court concluded that
the failure to bifurcate trial of the Tran defendant’s gang enhancement from the other
charges did not constitute structural error. (Tran, supra, 13 Cal.5th at p. 1209.) In
addition, the Tran court rejected the Tran defendant’s argument that “the Chapman[,
supra,] 386 U.S. 18 standard for federal constitutional error should apply when reviewing
his guilty verdicts. ‘[T]he admission of evidence, even if erroneous under state law,
results in a due process violation only if it makes the trial fundamentally unfair.’
[Citation.] Such prejudice did not occur in this case.” (Tran, supra, at p. 1209.)
The Tran court reasoned that there was strong evidence of guilt without the gang
evidence. (Tran, supra, 13 Cal.5th at p. 1208.) In addition, the gang evidence was
relevant to showing guilt, which did not render the trial unfair. The prosecutor argued
inconsistencies between the witnesses’ trial testimony and their prior statements was
attributable to the witnesses being gang members fearing retaliation. The prosecutor also
relied on the gang circumstances to show why the Tran defendant’s co-defendant should
be found guilty as an aider and abettor. The Tran court concluded that, “[b]ecause the
prosecutor’s use of the gang evidence here did not render the trial ‘fundamentally unfair,’
the Chapman standard for federal constitutional error does not apply.” (Tran, supra, at p.
1209; see also People v. Partida (2005) 37 Cal.4th 428, 439.) Instead, the Tran court
applied the Watson standard and concluded the failure to bifurcate was harmless. (Tran,
supra, at pp. 1208-1209; People v. Watson (1956) 46 Cal.2d 818, 836.)
20 Here, Defendant contends that the gang evidence cannot be deemed harmless
under any standard of review, because the evidence that he aided and abetted the charged
crimes of robbery and kidnapping for robbery (counts 1-10) was not overwhelming. In
addition, Defendant asserts that the gang evidence, including evidence of his predicate
crimes, gang related contacts, and tattoos of guns and the word “M-U-R-D-A,” was
highly prejudicial. Defendant argues that, had the gang crime charge and gang
enhancements allegations been bifurcated under section 1109, the gang evidence would
have been excluded because it constituted inadmissible, irrelevant, inflammatory
evidence. Defendant further argues that “the jury likely relied on the evidence and
arguments that [Defendant] was a gang member who was predisposed to violence, to
infer that he had necessarily aided and abetted the crimes.”
We conclude under Tran that, “[b]ecause the prosecutor’s use of the gang
evidence here did not render the trial ‘fundamentally unfair,’ the Chapman standard for
federal constitutional error does not apply,” and the lack of bifurcation was harmless.
(Tran, supra, 13 Cal.5th at p. 1209.) There was strong evidence of Defendant’s guilt
apart from the gang evidence. (Id. at p. 1208.) Such evidence tied Defendant to the
charged robberies and other charged crimes through the identification of the getaway
vehicle used in the crimes, ownership of the vehicle by Defendant’s mother, pursuit of
Defendant in the getaway car, and apprehension of Defendant after he fled from the car.
(Id. at p. 1209.) There was also evidence Defendant was the driver of the getaway car.
In addition, as in Tran, the prosecutor relied on the gang evidence to strengthen a
21 showing of Defendant’s guilt as an aider and abettor. Use of this gang evidence thus did
not render the trial unfair. The gang circumstances were relevant to proving that
Defendant collaborated with the co-defendant in committing the Jack in the Box robbery
as an aider and abettor. (Id. at p. 1209.)
Applying the Watson standard of review, we conclude that, “[g]iven the
overwhelming evidence of guilt and lack of any credible defense theory in response, it is
not reasonably likely that a bifurcated trial would have changed the jury’s verdict.”
(Tran, supra, 13 Cal.5th at p. 1210.) As in Tran, we therefore conclude that the
amendments made to the gang charge and enhancement law by A.B. 333 require reversal
of the gang crime conviction and gang enhancement, but not reversal of the other guilty
verdicts and allegation findings. (Id. at p. 1211.)
VI.
RESENTENCING DEFENDANT IN HIS ABSENCE
Defendant argues that this court should remand the case with directions to hold a
full resentencing hearing because the trial court resentenced Defendant in his absence,
absent a valid waiver. Because we reverse the gang crime conviction and gang
enhancement findings, we need not decide Defendant’s objection to the trial court
conducting his previous resentencing in his absence. We also need not address
Defendant’s custody credits objection because they will be recalculated upon remand of
this case for resentencing under A.B. 333 and A.B. 518.
22 VII.
DISPOSITION
Defendant’s gang crime conviction (count 14) and true findings on his gang
enhancements are reversed based on retroactive application of section 186.22, as
amended by A.B. 333. The case is remanded to provide the People an opportunity to
retry the gang crime and gang enhancements under section 186.22, as amended. If the
People elect not to do so, Defendant is to be resentenced in a manner consistent with this
opinion.
We also reverse the sentence and remand this case under A.B. 518, to allow the
trial court to exercise its discretion in determining whether to stay the robbery
convictions (counts 2-5) or instead stay the kidnapping for robbery convictions (counts 7-
10).
In all other respects, we affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
McKINSTER Acting P. J.
MILLER J.