California Court of Appeal Dec 10, 2013 No. E056095Unpublished
Filed 12/10/13 P. v. Jennings 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E056095
v. (Super.Ct.No. RIF1104767)
ALEX JENNINGS III, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Jean P. Leonard, Judge.
Affirmed in part; reversed in part with directions.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, William M. Wood, and Marvin E.
Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
1
Defendant, an 8-Trey Gangster Crips (8-Trey) member, and the victim, “Mister”
Pride Hampton, had previously been in an altercation during which defendant had pulled
a knife on Hampton. Four years later, Hampton saw defendant while attending a party at
a friend’s house. Defendant was angry with Hampton because he had been arrested as a
In his opening brief, defendant argued prejudice as follows: “[T]he instruction
advised the jurors that, in resolving the conflict between Hampton’s prior statements to
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law enforcement with his testimony at trial, the jurors should view the latter with
skepticism, thereby virtually ensuring their adoption of the former. Because the earlier
statements to the police identified [defendant] as the perpetrator, the effect of the
instruction was to direct the jurors toward a conviction by telling them to question
Hampton’s trial testimony and to effectively adopt his initial version of events.” The
instruction does not so provide. The instruction clearly stated that the jury was to
consider only those statements made by defendant to Hampton while they were in
custody. As we noted ante, Hampton did not testify to any statements made by
defendant. We presume the jury followed the instruction and did not consider Hampton’s
pretrial statements or trial testimony as being from an in-custody informant, if it even
concluded that Hampton was an in-custody informant.
Moreover, we review the instructions as a whole to determine whether it is
reasonably likely that the jury misconstrued them. (See People v. Reliford (2003) 29
Cal.4th 1007, 1013; People v. Roybal (1998) 19 Cal.4th 481, 526-527.)
The jury was instructed that it should consider all of the instructions together. The
jury was given the standard instruction on evaluating the credibility of witnesses. It was
told it should consider whether a witness made a prior inconsistent statement when
considering the credibility. It was also told to consider whether the witness was promised
immunity or leniency. CALCRIM No. 337 instructed the jury that although Hampton
was in custody when he testified, the jury was not to speculate about the reason and “the
fact that a witness is in custody does not by itself make a witness more or less
believable.” The jury was adequately instructed on how to view Hampton’s testimony
18
and the fact the trial court erroneously added CALCRIM No. 336 did not impact his
testimony.
On August 27, 2013, this court ordered the parties to file supplemental briefing as
to whether the trial court not only erred by instructing the jury with CALCRIM No. 336,
but in light of the fact that it did so instruct the jury, did it also error by not instructing the
jury pursuant to section 1111.5 that they must find corroborating evidence for an in-
custody informant’s testimony.
“The corroboration requirement is set out in section 1111.5, which went into effect
on January 1, 2012, and states, ‘(a) A jury or judge may not convict a defendant, . . .
based on the uncorroborated testimony of an in-custody informant. The testimony of an
in-custody informant shall be corroborated by other evidence that connects the defendant
with the commission of the offense, . . . to which the in-custody informant testifies. . . .
[¶] (b) As used in this section, “in-custody informant” means a person, other than a
codefendant, percipient witness, accomplice, or coconspirator, whose testimony is based
on statements allegedly made by the defendant while both the defendant and the
informant were held within a city or county jail, state penal institution, or correctional
institution. Nothing in this section limits or changes the requirements for corroboration
of accomplice testimony pursuant to Section 1111.’” (People v. Davis (2013) 217
Cal.App.4th 1484, 1488, fn. omitted.)
We note that the trial court did not instruct the jury according to CALCRIM No.
336, on the need to view the testimony of an in-custody informant with caution, likely
because the corroboration requirement was not added to CALCRIM No. 336 until August
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2012, and the jury trial took place in March 2012. (See CALCRIM No. 336 (Aug. 2012
supp.) pp. 12-13.)
Despite this omission by the trial court, we cannot find prejudice.5 “The standard
of assessing prejudice under state law, as set out in Watson, supra, 46 Cal.2d at p. 836 [],
should apply in cases such as this where the error involves failure to instruct the jury on
the statutory requirement that the testimony of an in-custody informant must be
corroborated by evidence that connects the defendant with the crime. In other words, we
may reverse the judgment only if we are able to say it is reasonably probable the jury
would have reached a result more favorable to defendant if the trial court had instructed
that before the jury could convict defendant based solely on the testimony of . . . , an in-
custody informant, there must be evidence that corroborates that testimony, i.e., that
connects defendant to the commission of the crime. [Citation.].” (People v. Davis,
supra, 217 Cal.App.4th at p. 1490.)
As we have noted, the jury was instructed that an in-custody informant was
someone “whose testimony is based on statements the defendant allegedly made while
both the defendant and the informant were held within a correctional institution.”
Hampton did not testify as to any statements that defendant made while they were in the
holding cells. Moreover, this only applied to the time that Hampton and defendant were
5 Respondent has argued that the failure to give the instruction on corroboration was not error as it was error to give CALCRIM No. 336 in the first place. However, once the trial court chose to give the in-custody informant instruction, it had to properly instruct the jury.
20
in the holding cells. As such, Hampton’s statements to the police prior to trial and at trial
did not need to be corroborated.
Moreover, even if the jury were to consider that Hampton testified to anything said
by defendant while they were in the holding cells, such testimony was corroborated by
Officer Dean who testified that defendant and Hampton were in cells next to each other
and defendant offered Hampton a cellular telephone. As such, the trial court’s error in
giving CALCRIM No. 336, which was compounded by failing to additionally instruct the
jury that it must find that any in-custody informant testimony must be corroborated, was
clearly harmless in this case.
Based on the foregoing, despite the erroneous instruction with CALCRIM No.
336, the error was not prejudicial and reversal is not mandated.
IV
REJECTION OF STIPULATION THAT 8-TREY WAS A
CRIMINAL STREET GANG
Defendant contends that the trial court erred by refusing to accept his stipulation
that 8-Trey was a criminal street gang and allowing the People to introduce evidence of
the primary activities and predicate crimes of 8-Trey to show that they were a criminal
street gang.
A. Additional Factual Background
Prior to trial, defendant offered to stipulate that 8-Trey was a criminal street gang
for the purpose of the gang allegations and the active participation in a criminal street
gang substantive crime. This essentially would eliminate the need of the People to
21
introduce evidence of the predicate crimes and the primary activities of the gang. This
would leave the only question for the jury to resolve to be whether defendant was a
member of the 8-Trey gang and if he committed the crimes on behalf of the gang.
The People objected to the stipulation, stating “Okay. I don’t believe in
stipulating the evidence away when it takes away the full force and effect of the
evidence.” Defendant’s counsel argued that to reject the stipulation, the People were
required to show the evidence was relevant beyond proving the elements of the crime.
Whether other gang members committed crimes - - the evidence to establish a criminal
street gang - - was not relevant to whether defendant committed the crime.
The trial court noted, “But I really think that the facts of the gang activity that will
be received from the witness go to more than just proving the elements. It also goes to
the whole essence of the allegation.” The trial court further stated that the average juror
had no idea about gang activities. “And so I do think that it’s relevant that they
understand the meaning of gangs, how they affect these kinds of cases. And they really
need more than just ‘[t]his is a criminal street gang’ to make their decisions in this case.”
The trial court further examined the issue under Evidence Code section 352 and
found the probative value was not outweighed by undue prejudice or undue consumption
of time. The prosecutor was warned that the gang expert was to be “on and off as soon as
possible.” The trial court reiterated there was no case law supporting that the People had
to accept a stipulation from the defendant on gang evidence.
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B. Analysis
The prosecution cannot be compelled to accept a stipulation “if the effect would
be to deprive the state’s case of its persuasiveness and forcefulness. [Citations.]” (People
v. Edelbacher (1989) 47 Cal.3d 983, 1007; People v. Sakarias (2000) 22 Cal.4th 596,
629.) “[A] criminal defendant may not stipulate or admit his way out of the full
evidentiary force of the case as the Government chooses to present it.” (Old Chief v.
United States (1997) 519 U.S. 172, 186-187.) A trial court’s ruling on whether to force
acceptance of a stipulation (which is essentially a ruling on the admission of evidence) is
reviewed for abuse of discretion and will not be overturned unless it is arbitrary or
capricious. (People v. Waidla (2000) 22 Cal.4th 690, 724.)
Here the proposed stipulation was to avoid admission of gang predicate offenses
and primary activities necessary to establish criminal street gang status. (§ 186.22, subds.
(e) & (f)). However, the People still had to prove that defendant actively participated in a
criminal street gang, and willfully promoted, furthered, or assisted in felonious criminal
conduct by members of the gang. (§ 186.22, subd. (a); see People v. Lamas (2007) 42
Cal.4th 516, 523.) In addition, the gang enhancement required the People to prove that
the offenses were committed for the benefit of, at the direction of, or in association with a
criminal street gang with the “specific intent to promote, further, or assist” criminal
conduct by gang members. (§ 186.22, subd. (b); see People v. Williams (2009) 170
Cal.App.4th 587, 639.)
Although gang evidence is potentially inflammatory (People v. Albarran (2007)
149 Cal.App.4th 214, 223), this is not a case where acceptance of the stipulation would
23
have significantly reduced the amount of admissible gang evidence or reduced the impact
of such evidence on the jury. The People would still have been entitled to admit a
majority of Officer Prodigalidad’s testimony regarding the 8-Trey gang to show that
defendant was an active participant and the crime was committed on behalf of 8-Trey.
Moreover, the evidence was not unduly prejudicial under Evidence Code section
352. The fact that relevant and admissible gang evidence may prove damaging to the
defense does not warrant its exclusion as overly prejudicial under Evidence Code section
352. (People v. Karis (1988) 46 Cal.3d 612, 638.) As noted, other relevant gang
evidence was admissible as defendant did not offer to stipulate that he was an active
member. The brief recitation of the primary activities of the gang and the predicate
crimes did not consume an undue amount of time. The People were not obligated to
accept the stipulation.
V
CALCRIM NO. 520
Defendant’s second instructional error involves CALCRIM No. 520. It was given
in conjunction with the gang instructions but defendant contends it had the potential to
confuse the jury that it could find him guilty of attempted murder on a theory of implied
malice.
A. Additional Factual Background
The trial court noted that the predicate crimes for the gang instruction had to be
defined and there was no objection. The jury was instructed, “[t]he instruction for each
crime and allegation explains the intent and/or mental state required.” The jury was
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instructed as to attempted murder that the People must prove (1) that defendant took at
least a direct but ineffective step toward killing another person; and (2) “The defendant
intended to kill the person.” The jury was further instructed, “A direct step indicates a
definite and unambiguous intent to kill.”
The jury was then instructed on the elements of the special allegation that the
crimes of assault with a deadly weapon and attempted murder were committed on behalf
of and for the benefit of a criminal street gang. It was instructed that in order to find that
8-Trey was a criminal street gang, it had to find that one or more of its primary activities
was the commission of murder, attempted murder and assault. The jury was then
instructed with a modified version of CALCRIM No. 520 as follows: “This instruction is
being provided to define one of the criminal activities in jury instructions 1400 and 1401.
To prove that a person is guilty of this crime, the person [sic]6 must prove that: . . . 2.
When the defendant acted, he had a state of mind called malice aforethought; . . . ”
Malice aforethought was defined as either express or implied malice and that proof of
either was sufficient to establish the state of mind required for murder. It defined express
malice as the intent to kill. It defined implied malice as a person intentionally committed
an act, that he knew was dangerous to human life and he deliberately acted with
conscious disregard for human life.
6 The written instruction provided “People.”
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B. Analysis
“Attempted murder requires the specific intent to kill and the commission of a
direct but ineffectual act toward accomplishing the intended killing. [Citation.]” (People
Here, we need not decide if the prosecutor committed misconduct, because even if
there was Doyle error, on which we do not state an opinion, we would nonetheless find
that such alleged misconduct was harmless beyond a reasonable doubt. (Chapman v.
California, supra, 386 U.S. 18 at p. 24; see also People v. Quartermain (1997) 16 Cal.4th
600, 620-621.)
The jury was well aware of the testimony by Deputy Stanley that defendant had
not contacted the police and defendant makes no argument on appeal that the evidence
was improperly admitted. The jury could draw its own conclusion that defendant was
avoiding the police. Moreover, as explained ante - - in addressing prejudice in giving the
jury instructions and the evidence of premeditation and deliberation - - the evidence of
defendant’s guilt was substantial. Defendant was identified by Hampton, who Hampton
knew. Defendant had a motive to commit the stabbing due to the prior altercation.
Defendant was an 8-Trey member (whose name was called out during the stabbing) and
he lived in the area where the stabbing occurred. Based on the substantial evidence of
defendant’s guilt, any misconduct was harmless beyond a reasonable doubt.
C. Argument on Premeditation and Deliberation
Defendant additionally argues that the prosecutor committed misconduct in his
argument as to premeditation and deliberation.
During closing argument, the prosecutor gave an example of premeditation and
deliberation as follows: “The best way to explain premeditation and deliberation is to
37
give an example. You’re driving down the street in the morning. You got your work on
your front passenger seat and you have your coffee. You’re late for work. And you’re
driving. And as you drive, you see the light go from green to yellow. So in your mind
right then, you think, ‘Well, I’m going to be late.’ You look left. You look right,
because you’re looking for an officer so you don’t get pulled over. You think about
spilling your coffee, and you decide to go for it anyway. And how long did that take? A
second? And in that second, you made that cold, calculated decision to go through that
intersection. You weighed the consequences for and against, and you made the decision.
You made a premeditated and deliberated - - you made a decision with premeditation and
deliberation with that example.”
Defendant claims that this misstated the law and this dishonest and improper
method influenced the jury. He argues, “This comparison to the everyday act of driving
was a mischaracterization designed to diminish the prosecution’s burden on the issue of
premeditation and deliberation.” This minimized the seriousness of the matter being
considered. Again, defendant’s counsel failed to object to the argument and therefore the
issue would be waived on appeal. (People v. Clark, supra, 52 Cal.4th at p. 960; People v.
Bonilla, supra, 41 Cal.4th at p. 336.) 8 Anticipating that we would find such waiver, in
the alternative, he argues that he received ineffective assistance of counsel.
8 Defendant argues that his important constitutional rights require that we ignore the failure to object and that no admonition to the jury would have cured the error. We disagree. Longstanding authority provides that an objection must be made and an admonition to follow the instructions on premeditation and deliberation would have cured any conceivable error.
38
There is no requisite minimum length of time between the prior reflection on
killing a person and taking action to commit the killing. (People v. Stitely, supra, 35
Cal.4th at p. 543.) Thoughts may follow each other with great rapidity and cold,
calculated judgment. (People v. Koontz, supra, 27 Cal.4th at p. 1080.)
Here the prosecutor’s argument was in-line with case law for premeditation. We find
nothing objectionable in the argument. Further, any conceivable error was harmless
beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24.) As noted
ante, the evidence of premeditation and deliberation was substantial.
D. Denigration of Counsel
Defendant’s final claim of prosecutorial misconduct is that the prosecutor cast
aspersions and attacked the integrity of his defense counsel. During the rebuttal
argument, the prosecutor argued as follows: “When you have - - you’re in a position you
have the truth to fall back on. But is the truth being relied on by the defense? Are they
relying on the truth? Or are they merely just trying to throw something at the wall and
hope something sticks.” Defendant objected that it was improper argument and shifted
the burden of proof. The trial court overruled the objection.
Later the prosecutor argued, “[W]hy is he going to pick somebody he knew for 10
years? Why is he going to pick someone he went to high school with? And it doesn’t
make any sense if you’re going to pick someone randomly, you’re going to pick a
gangster, especially if you’re streetwise, especially if you know the streets and you know
what’s going to happen if you pick on a gangster and you call them out? [¶] What
defense is suggesting is not reasonable. It’s not supported by the evidence, and it’s
39
unreasonable. [¶] And, look. What did defense also do? They’re trying to have you
focus over here, rather than focusing on the real facts of what happened.” Defendant’s
counsel objected as improper argument and the objection was overruled.
“‘A prosecutor commits misconduct if he or she attacks the integrity of defense
counsel, or casts aspersions on defense counsel.’ [Citations.] ‘In evaluating a claim of
such misconduct, we determine whether the prosecutor’s comments were a fair response
to defense counsel’s remarks’ [citation], and whether there is a reasonable likelihood the
jury construed the remarks in an objectionable fashion [citation]. ’” (People v. Edwards
(2013) 57 Cal.4th 658, 738.)
We do not construe the prosecutor’s argument, as argued by defendant, that it
suggested that defense counsel “somehow violated ethical rules of practice” and was not
seeking the truth. Rather, the argument addressed the unreasonableness of the defense
that was not supported by the evidence. “‘We accord the prosecutor wide latitude in
describing the factual deficiencies of the defense case.’ [Citation.]” (People v. Edwards,
supra, 57 Cal.4th at p. 740.) There was no prosecutorial misconduct. Further, any
conceivable error was harmless based on the evidence, as set forth, ante.
X
ACTIVE GANG PARTICIPATION (§ 186.22, subd. (a))
In his opening brief, defendant contended that insufficient evidence was presented
that he had sufficient knowledge of the criminal activities of 8-Trey to support his
conviction of the substantive gang participation conviction under section 186.22,
subdivision (a). While respondent has disputed the evidence of knowledge was
40
insufficient, it has conceded in its brief that the conviction nonetheless must be reversed
based on People v. Rodriguez (2012) 55 Cal.4th 1125, which was filed after the opening
brief.
“The substantive offense defined in section 186.22[, subdivision] (a) has three
elements. Active participation in a criminal street gang, in the sense of participation that
is more than nominal or passive, is the first element of the substantive offense defined in
section 186.22[, subdivision] (a). The second element is ‘knowledge that [the gang’s]
members engage in or have engaged in a pattern of criminal gang activity,’ and the third
element is that the person ‘willfully promotes, furthers, or assists in any felonious
criminal conduct by members of that gang.’ [Citation.]” (People v. Lamas, supra, 42
Cal.4th at p. 523.)
The California Supreme Court has held that the third element of the offense is not
satisfied when a gang member commits a felony while acting alone. (People v.
Rodriguez, supra, 55 Cal.4th at p. 1125.) The word “members,” as the Supreme Court
explained, “is a plural noun.” (Id. at p. 1132.) “Therefore, to satisfy the third element, a
defendant must willfully advance, encourage, contribute to, or help members of his gang
commit felonious criminal conduct. The plain meaning of section 186.22[, subdivision]
(a) requires that felonious criminal conduct be committed by at least two gang members,
one of whom can include the defendant if he is a gang member.” (Ibid.) The felonious
criminal conduct referred to in the statute must be committed “‘by members of that
gang.’” (Id. at p. 1131.)
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Here, there was no evidence presented that a fellow 8-Trey gang member was with
defendant when he stabbed Hampton. Rather, Hampton stated that he was with his wife
and children. As such, we agree with respondent that defendant’s section 186.22,
subdivision (a) conviction must be reversed. Since the trial court stayed the sentence on
this count, there is no impact on the resulting sentence in this case.
XI
ROMERO MOTION
Defendant contends that the trial court erred by refusing to strike his prior felony
conviction pursuant to his Romero motion.
A. Additional Factual Background
Defendant filed a written motion to strike his prior conviction of witness
intimidation (§ 136.1, subd. (b)(1).) Defendant contended that this prior conviction was
minor - - he grabbed a telephone away from his girlfriend during a domestic violence
incident - - when compared with other felonious conduct. Defendant admitted his current
offense was serious, but argued it was his first serious crime. His other criminal history
involved relatively minor offenses.
As for his background, defendant had obtained his GED. Defendant’s father died
from substance abuse and his mother was in and out of prison. Defendant was married in
2007 and had five kids.
At the time of sentencing, the trial court assured defendant that he had reviewed
all of the records in the case and seriously considered the Romero motion. The trial court
noted that even if defendant’s criminal history did not involve other serious violations, on
42
each of these minor convictions, he had violations of probation, failures to appear, and
bench warrants. He refused to rehabilitate.
The trial court stated that defendant was very likeable and it was “astonishing” he
was only 28 years old based on his criminal history. The current offense was “very
serious;” one centimeter difference in the stabbing and Hampton could have died. It was
clear it was a gang crime. Defendant had convictions in “2001, 2002, 2004, 2006, 2007,
2008, 2010 and 2011” and four involved domestic violence. He had several violations of
probation. The prior convictions were not remote. He also presented a danger to society
because he had never made an effort to change. The trial court ruled, “. . . I do not think
that this young man falls outside of the three strikes scheme or spirit.”
B. Analysis
We review the trial court’s ruling refusing to strike a prior conviction for abuse of
discretion. (People v. Romero, supra, 13 Cal.4th at p. 504; see also People v. Carmony
(2004) 33 Cal.4th 367, 375.) The discretion the Supreme Court recognized in Romero is
extremely limited, and may only properly be exercised in the unusual case where, “in
light of the nature and circumstances of his present felonies and prior serious and/or
violent felony convictions, and the particulars of his background, character, and
prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part,
and hence should be treated as though he had not previously been convicted of one or
more serious and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.)
“Because the circumstances must be ‘extraordinary . . . by which a career criminal
can be deemed to fall outside the spirit of the very scheme within which he squarely falls
43
once he commits a strike as part of a long and continuous criminal record, the
continuation of which the law was meant to attack’ [citation], the circumstances where no
reasonable people could disagree that the criminal falls outside the spirit of the three
strikes scheme must be even more extraordinary.” (People v. Carmony, supra, 33 Cal.4th
at p. 378.)
Here, as recounted by the trial court, beginning in 1999, defendant had continuous
contact with law enforcement. Although many of his convictions involved a
probationary sentence, for almost every conviction he violated his probation. Defendant
refused to rehabilitate. Further, defendant’s conviction here was serious and was
committed on behalf of the 8-Trey gang. As noted by the trial court, Hampton’s death
was averted only by one centimeter.
Based on defendant's criminal history and current convictions, the trial court’s
decision to not strike his prior conviction was neither irrational nor arbitrary. (People v.
Carmony, supra, 33 Cal.4th at p. 374.)
XII
RESTITUTION FINE UNDER SECTION 1202.4, SUBDIVISION (B)
Defendant contends that the trial court erroneously imposed a $240 minimum
restitution fine pursuant to section 1202.4, subdivision (b) because the minimum amount
at the time he committed his crime was $200. Respondent concedes the error.
At sentencing, the trial court noted that the probation report recommended the
imposition of a $5,000 restitution fine. However, the trial court disagreed and stated,
“My intention was to - - I think I have to sentence him - - I have to order the $240
44
minimum. That would be my inclination on both of those.” There was no objection by
defendant’s counsel. The trial court later stated, “He’s to pay a restitution fine in the
amount of $240. [¶] Pay an additional parole revocation restitution fine in the amount of
$240. That’s the minimum that the Court can order. And I do find he does have the
ability to pay that.”
Previously, section 1202.4 provided as follows: “The restitution fine shall be set
at the discretion of the court and commensurate with the seriousness of the offense, but
shall not be less than two hundred dollars ($200). . . .” (Former § 1202.4, subd. (b)(1),
Stats. 2011 ch. 45, § 1.) Effective January 1, 2012, the minimum restitution fine was
increased to $240. (Stats. 2011, ch. 358, § 1.) “It is well established that the imposition
of restitution fines constitutes punishment, and therefore is subject to the proscriptions of
the ex post facto clause and other constitutional provisions. [Citations.]” (People v.
Souza (2012) 54 Cal.4th 90, 143.)
Defendant committed his crimes on August 27, 2011, prior to the amendment to
the statute. As such, application of the increased minimum fine would violate the
prohibition against ex post facto laws. Here, the trial court clearly stated that it was
imposing the minimum restitution fine and that it believed that to be $240. Such fine was
improperly imposed. As such, we order that the restitution fine be reduced to $200, and
the attendant parole revocation fine be reduced to $200.
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XIII
DISPOSITION
The restitution fine imposed pursuant to section 1202.4, subdivision (b) shall be
reduced to $200 and the parole revocation fine imposed pursuant to section 1202.45 shall
also be reduced to $200, suspended unless parole is revoked. In addition, we reverse
defendant’s conviction under section 186.22, subdivision (a). The trial court is directed
to prepare a new minute order for sentencing on April 13, 2012, and prepare an amended
abstract of judgment. The amended abstract of judgment shall be forwarded to the
California Department of Corrections and Rehabilitation. The judgment is otherwise
affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI J.
We concur:
McKINSTER Acting P. J.
CODRINGTON J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the trial court erred by instructing the jury with CALCRIM No. 336 because the witness was a percipient witness rather than an in-custody informant, but the error was harmless. Additionally, the court reversed the defendant's conviction for active gang participation under Penal Code section 186.22, subdivision (a).
Issues
Whether the trial court erred in instructing the jury with CALCRIM No. 336 regarding in-custody informants.
Whether there was sufficient evidence to support the conviction for active gang participation under Penal Code section 186.22, subdivision (a).
Disposition. Affirmed in part; reversed in part.
Quotations verified verbatim against the opinion
“We reverse defendant’s conviction of violating section 186.22, subdivision (a) and reduce the restitution fine imposed, but otherwise affirm the judgment.”
“By definition, CALCRIM No. 336 should not have been given in this case.”
“We conclude that it is not reasonably probable a result more favorable to defendant would have been reached absent the reading of CALCRIM No. 336.”