People v. Runderson CA5 (2021) · DecisionDepot

People v. Runderson CA5

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California Court of Appeal Nov 23, 2021 No. F074056AMUnpublished

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Holding. The court struck the Penal Code section 12022.53, subdivisions (d) and (e) firearm enhancements as to defendants Runderson and Hawkins. The court otherwise reaffirmed its prior decision following remand from the California Supreme Court.

Issues

Whether the evidence was sufficient to support the gang enhancement findings.
Whether the admission of gang expert testimony violated hearsay law and the Sixth Amendment.
Whether the Penal Code section 12022.53, subdivision (d) arming enhancements must be vacated.
Whether the case should be remanded for a transfer hearing under Proposition 57.

Disposition. No change in judgment.

Quotations verified verbatim against the opinion

“However, we strike the section 12022.53 subdivision (d) and subdivision (e) enhancements as to Runderson and Hawkins, as we explain below.”

“There is no change in the judgment.”

Filed 11/22/21 P. v. Runderson 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE, F074056 Plaintiff and Respondent, (Super. Ct. No. F15907050) v.

ISAIAH DAVON RUNDERSON et al., ORDER MODIFYING OPINION [NO CHANGE IN JUDGMENT] Defendants and Appellants.

THE COURT: It is hereby ordered that the opinion filed herein on October 29, 2021, be modified as follows: On page 43, the second full paragraph beginning “However, we strike …” is deleted and replaced with the following paragraph:

However, we strike the section 12022.53 subdivision (d) and subdivision (e) enhancements as to Runderson and Hawkins, as we explain below. There is no change in the judgment.

FRANSON, Acting P.J. WE CONCUR:

PEÑA, J.

SMITH, J.

Filed 10/29/21 P. v. Runderson CA5 (unmodified opinion) Opinion following transfer from Supreme Court

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE, F074056 Plaintiff and Respondent, (Super. Ct. No. F15907050) v.

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was closed. Brandon M. then asked B.B. if she knew someone he could buy a gun from. He also wanted to buy some marijuana and alcohol to take back to Los Angeles. In Fresno, B.B. picked up her friend, K.M., who was going to help Brandon M. buy a gun. Brandon M. had not met K.M. before. K.M. told B.B. to drive to the Target at Riverpark to meet Runderson. B.B. had introduced Brandon M. to Runderson and another individual, Hawkins, six to eight months earlier, and Brandon M. had hung out with them a few times in Fresno. Brandon M. called Hawkins “D-Hawk.” When they got to Riverpark, Brandon M., K.M. and Cortez C. got out of the car and talked to Runderson, who arrived in an Audi. Two other males and a female were with Runderson. According to Brandon M., the Audi looked like Runderson’s girlfriend’s car. The two males got out of the car, but the female stayed in the car. B.B. did not see Hawkins at Riverpark. After that, B.B., with Brandon M., K.M. and Cortez C. in the Challenger, followed the Audi to various locations around Fresno. Brandon M. was getting directions from someone in the Audi and he told B.B. where to drive. Along the way, Brandon M. talked to Runderson briefly at a Jack in the Box and “[e]verything was cool.” But then Brandon M. received a text message from Runderson that said, “Pull over right quick. D-Hawk want to holler at you about something. He said he missed you.” B.B. followed the Audi to a rural location where the Audi stopped and B.B. parked behind it. K.M. got out of the Challenger and talked to someone in the Audi, while the others stayed in the Challenger. Runderson then got out of the Audi and walked over to the Challenger to talk to Brandon M. B.B. had a “bad feeling” that “[s]omething just wasn’t right,” and she drove away leaving K.M., who then got a ride in the Audi. B.B. returned and then followed the Audi into a neighborhood where Runderson got out of the Audi and told B.B. and the others he had to get some weed from his father and told them to wait. Runderson returned to the Audi and it drove away. B.B. turned

revealed six bullet holes and two strike marks. Four bullets were recovered from the car’s rear passenger side and trunk. A palm print on the Challenger’s exterior passenger side rear quarter panel matched Jones’s left palm. Officers searched Jones’s house but did not find a dark-colored hoodie or jeans like the type Brandon M. described. A video from the Riverpark Target showed a car similar to Brandon M.’s, followed by a car similar to an Audi, exiting the parking lot. Police Officer Melanie Mayo interviewed B.B. and Cortez C. the following day, March 28. B.B. was shown three photo lineups with Runderson in the first lineup and Hawkins in the second. B.B. did not identify either. Later, B.B. admitted that she knew Hawkins and Runderson after B.B. let Officer Mayo look at her cell phone. She said she had not told Officer Mayo Runderson and Hawkins were involved in the shooting and she was hesitant to speak because she thought she would be in physical danger. On the evening of March 28, B.B. rode with K.M. to Bakersfield. The next day, B.B. called Officer Mayo and asked if they could meet. Officer Mayo interviewed B.B. two days later. During that interview, B.B. told Officer Mayo she had talked to Brandon M. and K.M. about the incident and she then said she had seen both Hawkins with a gun and Runderson pointing a gun at Brandon M. B.B. described Hawkins as wearing a white T-shirt and having “dreads.” B.B. also said another person with longer dreadlocks was at the scene, but she was unable to provide a further description. B.B. said there were two other people at the scene she did not know, one of them was called “Bub.” B.B. said the shooter was wearing something with a hood, but she did not see someone actually pull the trigger. After speaking to B.B., Officer Mayo spoke to Brandon M., who had gauze bandages on his face, stitches down his neck, a “grazed” wound on his hip, and an injury to his calf. Brandon M. told Officer Mayo that the only conflict he had with Runderson and Hawkins was that they thought he had not been coming to Fresno as often as he used

Gang Evidence Officer John Swanson, assigned to the Violent Crime Impact Team, was on duty on January 6, 2015, when he came into contact with a group of four individuals, Hawkins and Runderson being among them. “[A]t least one” of the individuals in the group was a Dog Pound gang member who was prohibited from being with other Dog Pound members. Officer Swanson did not elaborate further. Detective Robert Fry testified as the prosecution’s gang expert. Detective Fry was a gang detective for the Multi-Agency Gang Enforcement Consortium (MAGEC) and had been assigned to the Metropolitan Tactical Team for approximately a year and a half. Both his current and prior assignments, with the North Bureau Impact Team and the Violent Crime Team, involved gang contacts and investigations. Part of his MAGEC assignment was to identify gang members and investigate gang-related crimes. After being assigned to MAGEC, Detective Fry attended a week-long training on gangs in San Diego and attended additional training in Fresno and Clovis. He had been the primary investigator or assistant in “no less than 500” gang-related investigations involving different gangs and involved in “no less than 700” gang-related arrests. Over the course of his career, Detective Fry had contact with “thousands” of gang members, and they would “[o]ccasionally” talk to him about gang culture. Detective Fry also spoke regularly to other officers and MAGEC detectives about their contacts with gang members to keep “current on trends regarding rivalries, alliances, where these certain gangs have moved to throughout Fresno.” He also reviewed crime and police reports to keep up-to-date. Detective Fry began investigating the Fly Boys after he was assigned this case and “reviewed hundreds and hundreds of police reports and field interview contacts prepared by officers and detectives within the department.” Detective Fry opined that the Fly Boys were a criminal street gang consisting of approximately 35 members, who

“generally” wore Florida Marlins clothing and had a sign of the letter “F.” According to Detective Fry, the Fly Boys claimed the 1600 block of South Crystal in Southwest Fresno and were part of the TWAMP alliance. Although the Fly Boys originally formed as a dance crew, it was “believed” they transformed into a street gang sometime between 2010 and 2012. Detective Fry testified that some of the primary activities of the Fly Boys included illegal possession of firearms, possession of narcotics and narcotics for sale, robberies, assaults, attempted homicides, and burglaries. Detective Fry testified to specific offenses committed by Fly Boys gang members. The first involved James Green, a validated Fly Boy, who was convicted in 2012 of carrying a loaded firearm in public and possession of a controlled substance for sale. The second was for Jaquori Ford, a validated Fly Boy, who was convicted in November 2014 of illegal possession of a firearm. And the third was for Devon Randolph, a validated Fly Boy, convicted in 2012 of second degree robbery. Detective Fry formed his opinion that Green, Ford and Randolph were validated Fly Boys by reviewing multiple police reports and field interviews prepared by police officers, as well as reviewing social media. Detective Fry also took into consideration Officer Brandon Brown’s earlier testimony at trial in which Officer Brown, who was assigned to the Southwest District Crime Suppression Team, came in contact with James Green on February 26, 2012. Hawkins was in the vehicle with Green at the time and was arrested but released. Officer Brown had also had previous contact with Runderson but had not arrested him. The criminal complaints as to Green, Ford, and Randolph were moved into evidence. Based on a review of these reports and court cases, and taking into consideration the current cases, Detective Fry opined that the Fly Boys were engaged in a pattern of criminal activity. Detective Fry opined that Runderson, who was 20 years old at the time of the charged crimes, was a Fly Boy at the time of the offense. Detective Fry based his

opinion on Runderson’s Facebook page and Instagram account photos. In one photo, posted in 2011, three people are shown, one of them being Runderson, who is displaying the Fly Boys gang sign. In another photo, Runderson and another individual are shown and Runderson is holding a firearm. Another photo, posted in 2014, shows Runderson displaying the Fly Boys’ gang hand sign. And in another photo, also posted in 2014, Runderson is using both hands to make a “W,” which stood for Westside and the “Fly Boys claim the Westside Fresno.” Detective Fry opined that Hawkins, who was 21 years old at the time of the charged crimes, had been a Fly Boys gang member since 2014. A photo from Hawkins’s Facebook page shows him standing with a girl and the lettering “Fly’err” added to the photo. In two other photos, Hawkins is displaying the Fly Boys gang hand sign. In another photo, Hawkins is wearing a T-shirt that says, “Still Fly.” And in still another photo, Hawkins is with two other individuals, and he is displaying the gang hand sign. Detective Fry personally retrieved the photos from Hawkins Facebook page in May of 2015. Detective Fry opined that Jones, who was 16 years old at the time of the charged crimes, was a Fly Boys gang member based on photographs found on his social media accounts. In one photo of Jones, the word “gang” is inserted. In another photo, Jones is with four other individuals, and Jones and others are displaying the Fly Boys gang sign. Jones is wearing a hat with the letter “T” for “teamin,” which the Fly Boys use as a symbol, and another individual is wearing a Florida Marlins hat. Detective Fry recognized two of the individuals with Jones as Fly Boys. In another photo, Jones is depicted with two other individuals, and Jones is displaying the Fly Boys gang hand sign. In another photo, Jones is depicted with six other subjects, who are all displaying the Fly Boys gang hand sign. In another photo, Jones is shown displaying the Fly Boys gang sign, wearing gang attire, and in front of Jones’s shirt is inserted a picture of California

and the word “sunset,” which Detective Fry stated referred to the 1600 block of South Crystal, in the sunset neighborhood. There is also a “W” in the photo, which stands for Westside, and the block numbers 1600 on the back of a shirt, for the 1600 block of South Crystal Fly Boys gang territory. And in another photo, Jones is shown displaying the Fly Boys hand gang sign and wearing a hat with the letter “T” to represent “teamin.” And in another photo, Jones and another individual are depicted with their right arms raised and extended forward, their hands in a fist and their arm and hand pointed at the camera. And in another photo, Jones and Hawkins appear together and Jones is displaying a Fly Boys hand sign. In determining gang membership, Detective Fry also considered a photograph of Runderson, Hawkins and Jones, along with two unidentified males, one of whom is making a Fly Boys gang sign, and the photo is captioned “Us young niggazzz run da block now, # gang.” Detective Fry stated that the testimony of Officer Swanson, recalling an encounter with, among others, Hawkins and Runderson, was also important in forming his opinion, as the two were with two other known gang members. Officer Mayo had previously testified about the photo, which she received from Jones’s Facebook page. Detective Fry testified on the importance of respect to a gang and that they earn respect by committing violent crimes and intimidating the public and the neighborhood. Posed with a hypothetical question that mirrored the facts of the case, Detective Fry opined that the crimes were committed in association with a street gang with the intent to promote, further or assist criminal activity by gang members. Officer Mayo also testified as a gang expert and was assigned to the street violence section but was previously with MAGEC. While at MAGEC, she attended a week-long detective school hosted by the Los Angeles County Sheriff’s Department, and also attended monthly training classes involving gang investigations. She also was

members, and information obtained from colleagues in his or her own and other law enforcement agencies, may be sufficient to prove a gang’s primary activities. [Citations.]” (People v. Duran (2002) 97 Cal.App.4th 1448, 1465.) Appellants contend Detective Fry’s testimony was insufficient to prove the primary activities of the Fly Boys street gang because he failed to provide any foundation for his opinion, and instead simply gave a vague, conclusory recitation of crimes allegedly committed by the gang. The record reflects Detective Fry testified about his own background, training, and experience in investigating criminal street gangs, including the Fly Boys gang. At the time of trial, Detective Fry had been a police officer for 10 years, and both his current and past assignments involved gang contacts and investigations. He had been the primary investigator or assistant in “no less than 500” gang-related investigations and “[n]o less than 700” gang-related arrests. In his contacts with various gang members, other officers, and in reviewing crime reports, he stayed current on trends regarding gang rivalries and alliances. He acknowledged he had become aware of the Fly Boys street gang only after he was assigned to the current case. But once assigned, he reviewed “hundreds and hundreds” of police reports and field interview contacts prepared by officers and detectives within the department. At trial, Detective Fry was asked if he was familiar with “some of the Fly Boys’ primary activities,” and he replied he was. When asked what some of those primary activities were, Detective Fry responded, “Illegal possession of firearms, possession of narcotics and possession of narcotics for sales, robberies, assaults.” When asked if there were additional crimes, he responded, “Yes. Attempted homicides and burglaries.” He responded “Yes” when asked if he had reviewed reports and court cases associated with these activities. Under these circumstances, appellants’ reliance on In re Alexander L. (2007) 149 Cal.App.4th 605, is misplaced. In that case, the appellate court reversed a true finding on

a gang enhancement on the ground that the gang expert’s testimony was insufficient to establish the primary activities element. When asked about the primary activities of the defendant’s gang, the expert testified, “‘I know they’ve committed quite a few assaults with a deadly weapon, several assaults. I know they’ve been involved in murders. [¶] I know they’ve been involved with auto thefts, auto/vehicle burglaries, felony graffiti, narcotic violations.’” (Id. at p. 611.) However, the expert did not explain the basis for his knowledge and conceded on cross-examination that the vast majority of crimes involving the gang were graffiti-related. (Id. at pp. 611–612.) In People v. Margarejo (2008) 162 Cal.App.4th 102, the expert was asked what the “primary activities” of the gang were, and he responded that “[t]heir activities range from simple vandalism and battery, and can extend all the way to murder. They also include consolidated weapons, carjacking, robberies and a lot of narcotic related offenses.” (Id. at p. 107.) The Margarejo court rejected the defendant’s argument that there was no testimony on the gang’s “primary activities” because the expert did not repeat the word “primary” in his answer, reasoning “the jury had ample reason to infer that [the expert’s] answer implicitly incorporated the word ‘primary’ from the question.” (Ibid.) In reaching its conclusion, the court in Margarejo contrasted the expert testimony in Alexander L., reasoning that it was insufficient to support a gang enhancement finding because the witness did not identify the gang’s primary activities, equivocated on direct examination, and contradicted himself on cross-examination. (Margarejo, supra, at p. 107.) Detective Fry’s testimony, in contrast, did not suffer from the deficiencies enumerated in Alexander L. and is more akin to those in Margarejo. When considered as a whole, Detective Fry’s testimony was sufficient to establish the primary activities element of the gang enhancement statute.

E. Evidence to Establish the Fly Boys’ Pattern of Criminal Gang Activity To prove the existence of a “criminal street gang” within the meaning of the gang enhancement statute, the prosecution must also establish that the gang’s members “individually or collectively engage in, or have engaged in, a pattern of criminal gang activity.” (§ 186.22, subd. (f).) A “ ‘pattern of criminal gang activity’ ” means “the commission of, attempted commission of, conspiracy to commit, ... or conviction of two or more of the [enumerated] offenses, provided ... the offenses were committed on separate occasions, or by two or more persons” within a statutorily defined time period. (§ 186.22, subd. (e).) These are commonly referred to as “predicate offenses.” To establish that the Fly Boys engaged in a pattern of criminal gang activity with these predicate offenses, Detective Fry testified to the following specific offenses committed by what he claimed were validated Fly Boys gang members: The first involved James Green, convicted of possession of a controlled substance for sale committed on February 26, 2012. The second also involved James Green, convicted of carrying a loaded firearm in a public place, committed on January 19, 2012. The third involved Jaquori Ford, convicted of illegal possession of a firearm committed on November 20, 2014. And the fourth involved Devon Randolph, convicted of second degree robbery committed on October 25, 2012. The prosecution introduced certified court documents reflecting these convictions. Appellants argue Detective Fry’s testimony was insufficient to prove the predicate offenses required to establish a pattern of criminal gang activity because Detective Fry lacked personal knowledge of any of the offenses, and instead based his testimony on second-hand information obtained from police reports and other officers. In part II., below, we consider whether Detective Fry’s testimony concerning the predicate offenses related testimonial hearsay in violation of the Evidence Code and the Sixth Amendment confrontation clause. However, for purposes of assessing the sufficiency of the evidence

assist in any criminal conduct by gang members ....” (§ 186.22, subd. (b)(1).) The gang enhancement thus applies “when a defendant has personally committed a gang-related felony with the specific intent to aid members of that gang.” (People v. Albillar (2010) 51 Cal.4th 47, 68 (Albillar).) To establish this element of the statute, “the prosecution may ... present expert testimony on criminal street gangs.” (People v. Hernandez (2004) 33 Cal.4th 1040, 1047–1048.) “ ‘Generally, an expert may render opinion testimony on the basis of facts given “in a hypothetical question that asks the expert to assume their truth.” [Citation.] Such a hypothetical question must be rooted in facts shown by the evidence....’ ” (People v. Ward (2005) 36 Cal.4th 186, 209.) While an expert may not ordinarily testify whether the defendant committed a particular crime for the benefit of a gang or with the specific intent to facilitate criminal conduct by gang members, the expert “properly could ... express an opinion, based on hypothetical questions that tracked the evidence, whether the [crime], if the jury found it in fact occurred, would have been for a gang purpose.” (People v. Vang (2011) 52 Cal.4th 1038, 1048.) Appellants contend there was no testimony as to how long they had been members or what position each held within the gang. They note none had prominent gang tattoos signifying their gang affiliation. And they contend the offenses were not gang-related, or intended to aid any criminal conduct by gang members, since the spot where the shootings took place was a random location, there was no evidence of a gang rivalry between the offenders and the victims (in fact, there was evidence that the victim B.B. herself could have been a Fly Boys associate), and there was no evidence appellants called out any gang names, or otherwise announced their gang affiliation during the offense. However, there was evidence connecting the attempted murder and assaults committed by appellants to the Fly Boys gang. The jury heard evidence appellants were members of the gang: Hawkins and Jones as Fly Boys members and Runderson as a Fly

“When a gang member commits a violent crime and they post that on social media, that causes fear to the public, whoever is viewing the photos. When a gang is in a certain neighborhood, they gain respect from the citizens in that neighborhood, from the public. When the neighborhood and the public see these gang members congregating together in large groups, displaying gang hand signs, it causes fear and intimidation to the public, therefore, these citizens are in fear to report criminal activity by these gang members, they’re in fear to report that to law enforcement.” Given that the attempted murder and assaults involved three Fly Boys gang members acting in concert, the jury reasonably could have concluded that it was committed with the specific intent to promote, further, or assist criminal conduct by members of that gang. (Albillar, supra, 51 Cal.4th at p. 68 [“if substantial evidence establishes that the defendant intended to and did commit the charged felony with known members of a gang, the jury may fairly infer that the defendant had the specific intent to promote, further, or assist criminal conduct by those gang members”]; People v. Villalobos (2006) 145 Cal.App.4th 310, 322 [“[c]ommission of a crime in concert with known gang members ... supports the inference that the defendant acted with the specific intent to promote, further or assist gang members in the commission of the crime”].) The jury also heard Detective Fry’s expert testimony, based on a hypothetical drawn from the evidence in this case, that the offenses would have been committed with the intent to promote, further or assist criminal activity by gang members. He explained his opinion was based on the fact that the three acted in concert, and they had previously identified themselves to Brandon M. as Fly Boys and “gave a reason why, because they go around jacking people.” Detective Fry explained that, in this situation, appellants acted together and carried out a plan, which causes fear to the victim “as well as other people who are aware of this case,” and allowing the gang to “gain more respect.” An 26

“[e]xpert opinion that particular criminal conduct benefited a gang by enhancing its reputation for viciousness can be sufficient to raise the inference that the conduct was ‘committed for the benefit of ... a[ ] criminal street gang’ ”].) (Albillar, supra, 51Cal.4th at p. 63.) Based on the totality of this evidence, the jury reasonably could conclude that appellants committed the charged offenses for the benefit of, at the direction of, or in association with the Fly Boys street gang, and with the specific intent to promote, further, or assist in criminal conduct by its members. The jury’s true findings on the gang enhancement allegations were therefore supported by substantial evidence. II. ADMISSIBILITY OF THE GANG EXPERT TESTIMONY Appellants next contend that, under the California Supreme Court’s decision in People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), which was decided shortly after trial in this case, the admission of Detective Fry’s expert testimony violated California hearsay law and the Sixth Amendment right of confrontation. Appellants claim Detective Fry improperly related case-specific, testimonial hearsay in testifying on the predicate offenses required to establish the pattern of criminal gang activity element of the gang enhancement statute. Based on the legal principles set forth in Sanchez, we concluded in our majority opinion that the trial court erred in admitting Detective Fry’s hearsay testimony identifying each of the predicate offenders as validated Fly Boys gang members, and that the error was not harmless under the circumstances of this case. On June 30, 2020, the People filed a petition for review in the California Supreme Court (S263068) on the issue of whether a gang expert’s testimony on predicate offenses is background or rather case specific information. The Supreme Court granted review and deferred briefing until the high court decided Valencia, supra, 11 Cal.5th 818, in which it held that a gang expert’s testimony at trial on predicate offenses under section

v. Gardeley (1996) 14 Cal.4th 605, 618–620 (Gardeley), disapproved on other grounds in Sanchez, supra, 63 Cal.4th at p. 686, fn. 13; People v. Miller (2014) 231 Cal.App.4th 1301, 1310.) Pursuant to this rationale, appellate courts deemed the use of out-of-court statements in an expert witness’s “basis testimony” to be compliant with the hearsay rule and the requirements of Crawford. (People v. Valadez (2013) 220 Cal.App.4th 16, 30.) The Sanchez opinion held that a trier of fact must necessarily consider expert basis testimony for its truth in order to evaluate the expert’s opinion, which implicates the hearsay rule and the Sixth Amendment right of confrontation. (Sanchez, supra, 63 Cal.4th at p. 684.) “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.... 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.” (Id. at p. 686, fn. omitted.) “The hearsay rule has traditionally not barred an expert’s testimony regarding his general knowledge in his field of expertise.” (Sanchez, supra, 63 Cal.4th at p. 676.) However, the hearsay rule does apply to testimony regarding “case-specific facts,” meaning “those relating to the particular events and participants alleged to have been involved in the case being tried.” (Ibid.) Unless subject to a statutory exception, such hearsay is inadmissible under state law. (Id. at pp. 674, 698; Evid. Code, § 1200, subd. (b).) Federal constitutional issues arise if case-specific facts are presented in the form of testimonial hearsay. (Sanchez, supra, 63 Cal.4th at pp. 680–682, 685.) “Testimonial statements are those made primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony.” (Id. at p. 689.) Information contained in a police report is generally construed as testimonial hearsay because police reports

“relate hearsay information gathered during an official investigation of a completed crime.” (Id. at p. 694.) In our original opinion we acknowledged a split of authority regarding whether a gang expert’s testimony about predicate offenses entails “case-specific facts” as contemplated by Sanchez. One view held that evidence of a pattern of criminal activity by alleged gang members should be classified as “general background information” and thus treated as subject matter about which a qualified expert may relate hearsay. (People v. Blessett (2018) 22 Cal.App.5th 903, 943–945, review granted Aug. 8, 2018, S249250; People v. Vega-Robles (2017) 9 Cal.App.5th 382, 411; People v. Meraz (2016) 6 Cal.App.5th 1162, 1174–1175 [predicate acts are background information rather than case-specific facts].) The opposing perspective is that facts related to predicate offenses are necessarily case specific. (People v. Lara, supra, 9 Cal.App.5th at p. 337; People v. Ochoa (2017) 7 Cal.App.5th 575, 583, 588–589.) Our majority opinion endorsed the latter view, which has now been affirmed by the recent opinion in Valencia disapproving the former view. (Valencia, supra, 11 Cal.5th at pp. 838-839, fn. 17.) In Valencia, our Supreme Court reaffirmed, as observed in Sanchez, supra, 63 Cal.4th at page 698, that an expert may give “general testimony about a gang’s behavior, history, territory, and general operations” as well as “the gang’s name, symbols, and colors. All this background information can be admitted through an expert’s testimony, even if hearsay, if there is evidence that it is considered reliable and accurate by experts on the gang.” (Valencia, supra, 11 Cal.5th at p. 838.) However, “[s]uch information stands in contrast to information regarding the commission of a particular offense on a specific occasion” and what an expert cannot do is relate true case-specific facts asserted in hearsay statements, unless they are independently proved by competent evidence or are covered by a hearsay exception. (Ibid.) In Valencia, supra, 11 Cal.5th at pages 838–839, a police gang expert “testified regarding the facts of three predicate offenses” but

Ford, who pled no contest to possession of a firearm with a probation restriction (§ 29815, subd. (a)), committed on November 20, 2014, a qualifying offense under the gang statute. (§ 186.22, subd. (e)(31).) And exhibit No. 50 is a felony complaint, plea agreement form, and minute order for someone named Devon Randolph, who pled no contest to one count of second degree robbery (§ 211) and one count of grand theft from a person (§ 487, subd. (c)), committed in October of 2012, both of which are qualifying offenses under the gang statute. 5 (§ 186.22, subd. (e)(2) and (9).) Other than the fact that the predicate offenses occurred, Detective Fry did not testify to any of the specifics of the offenses. It is undisputed that the crimes committed by Green, Ford and Randolph took place within the statutory period and occurred within three years of each other. The second element of the predicate offenses requirement is that the predicate offenses be committed by members of the subject gang. (Gardeley, supra, 14 Cal.4th at pp. 621–622.) Detective Fry was asked if, “based on [his] research,” each of the three men was a validated Fly Boys gang member. He answered affirmatively on each. Detective Fry stated that, in determining Green was a Fly Boy, he had reviewed “multiple police reports” “as well as reviewing social media.” Detective Fry’s information and belief regarding Ford’s alleged gang membership was based on his review of “numerous police reports,” “field interviews,” and “viewing photos from social media.” And as for Randolph, Detective Fry explained that his belief in his Fly Boys gang status was based on “my investigation of him, reviewing multiple police reports and field interviews prepared by Fresno Police officers, as well as reviewing social media.” The record is unclear in terms of whether or to what extent, if any, Detective Fry had any personal knowledge of Green, Ford or Randolph’s purported membership in the Fly Boys. Detective Fry did not claim to have been involved in the investigation of any

of the crimes he testified to. And, in fact, he testified that he knew about the Fly Boys as a gang only after he was “assigned this case.” He did not elaborate on what he meant by “reviewing social media,” and he also acknowledged he had never arrested a Fly Boys member, had interviewed none, and only spoken to “several.” Detective Fry offered no independent evidence that Green, Ford or Randolph were Fly Boys gang members. In this case, Detective Fry was relying on the fact the predicate offenses were committed by Fly Boys derived entirely from hearsay sources—police reports, field interviews, social media, and conversations with other police officers, implying he had no personal knowledge of the underlying fact. “ ‘What an expert cannot do is relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception.’ ” (Valencia, supra, 11 Cal.5th at p. 838, citing Sanchez, supra, 63 Cal.4th at p. 686.) Detective Fry’s testimony about the predicate offenses entailed “case-specific facts,” not only because the evidence related to the second element of the gang enhancement charges, namely the gang membership of the predicate perpetrators, but also because appellant Hawkins, by inference, was alleged to have had peripheral involvement in the February 26, 2012, incident involving Green. At trial, prior to Detective Fry’s testimony, Officer Brandon Brown testified he was assigned to the Southwest District Crime Suppression Team on February 26, 2012, when he observed Green, who approached a vehicle in which appellant Hawkins was sitting. This date coincides with the first predicate offense committed by Green that Detective Fry testified to. Officer Brown did not identify Green as a Fly Boys gang member and did not elaborate further. But Detective Fry considered Officer Brown’s testimony in determining that Hawkins was a Fly Boys gang member, stating, “Detective Brown had contacted Donte Hawkins, and at that time, Donte Hawkins was with James Green, who is a validated gang member.”

In summary, the crimes reflected in certified conviction records, exhibits Nos. 47, 48, 49 and 50, were used to establish the first element of the predicate offenses requirement for the gang enhancement allegations. However, without Detective Fry’s inadmissible hearsay testimony, the jury had no basis upon which satisfy the second predicate offense element and to conclude at least two of those crimes were committed by members of the Fly Boys, leaving an evidentiary gap in the People’s theory of liability. (E.g., People v. Vasquez (2016) 247 Cal.App.4th 909, 922 [“’The existence of a criminal street gang street gang is unquestionably an element of…the enhancement’”].) Finding much of Detective Fry’s testimony inadmissible, we nonetheless consider whether other admissible evidence was sufficient to support the jury’s findings that Green, Ford or Randolph were gang members at the time of the offenses and find that it is not. At trial, Officer Mayo testified to a photograph, exhibit No. 38, in which appellant Jones is pictured with four others. In the photograph, Jones is “displaying the gang hand sign used by the Fly Boys,” and wearing a black hat with the letter “T” for “teamin,” used by the Fly Boys as a symbol. Officer Mayo testified that the others in the photograph were also displaying the gang hand sign, and one individual is wearing a Florida Marlins hat. Officer Mayo testified that she recognized two of the others with Jones as Fly Boys but did not identify them. When asked about exhibit No. 38, Detective Fry identified Ford as one of the individuals in the photograph, “on the bottom left,” wearing a baby blue basketball hat, which Detective Fry testified “appear[ed]” to be a Texas Ranger’s hat. He later corrected himself and stated it was a “San Jose Sharks” hat, which did not have gang significance for the Fly Boys. Officer Mayo also testified that, in her investigation, she saw three or four YouTube videos related to the Fly Boys. She was able to take a “still” on one video.

Officer Mayo was not able to say when the video was taken. The still photograph, exhibit No. 25, showed five black males, one of whom Officer Mayo identified as appellant Jones, and was in the video for “[m]aybe three or four” seconds. The video included singing, rapping and dancing. Officer Mayo “believe[d]” one of the other individuals in the photograph was Randolph. This scant evidence of gang membership on the part of Ford and Randolph was not sufficient to identify them as Fly Boys. And there was not admissible evidence on Green’s identity as a Fly Boy. The People also argue that, if Detective Fry’s testimony about Green, Ford and Randolph is not considered to find the necessary predicate offenses, the current charged crimes of attempted murder and assault with a deadly weapon, committed by appellants, which are also qualifying offenses under section 186.22, subdivision (e)(1), are sufficient to find the requisite predicate acts. We disagree. Appellants were charged with a gang enhancement, section 186.22, subdivision (b)(1), which enhances the sentence of any person convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, but does not require that the person be a member of a gang. (People v. Rodriguez (2012) 55 Cal.4th 1125, 1138–1139; Albillar, supra, 51 Cal.4th at pp. 67–68.) However, to show a pattern of criminal activity, the predicate offenses required to find the enhancement true must be committed by members of the subject gang. (Gardeley, supra, 14 Cal.4th at pp. 621–622.) Thus, while the currently charged crimes may qualify as predicate offenses, and so may a defendant’s prior conviction, this is so only if the jury concludes the defendant is a gang member. (People v. Tran (2011) 51 Cal.4th 1040, 1046.) Here, Detective Fry, when asked if he had taken the “current case” into consideration in forming his opinion that the Fly Boys engaged in a pattern of criminal activity, Detective Fry replied, without elaboration, “Yes, I have.”

must show, beyond a reasonable doubt, that the error did not contribute to the jury’s verdict. (Id. at p. 698.) The erroneous admission of nontestimonial hearsay is a state law error, which is assessed for prejudice under People v. Watson (1956) 46 Cal.2d 818. (Crawford, supra, 541 U.S. at p. 68; People v. Duarte (2000) 24 Cal.4th 603, 618–619.) The Watson test asks if it is reasonably probable the defendant would have obtained a more favorable result had the error not occurred. (Watson, supra, at p. 836.) In this case, we apply the Chapman standard of review because the prosecution failed to meet its burden of establishing that its gang expert’s testimony did not relate testimonial hearsay in violation of the confrontation clause. Applying this standard, we conclude the error in admitting Detective Fry’s hearsay testimony on the second element of predicate offense requirement was prejudicial. For the reasons discussed above, nearly all of the officer’s testimony on this subject matter was inadmissible. Detective Fry clearly related case-specific hearsay in testifying about any supposed gang membership of Green, Ford and Randolph, garnered not from personal knowledge but from police reports or field interviews. All of these case-specific facts, which Detective Fry asserted to be true, substantially formed the basis of his opinion that Green, Ford and Randolph were Fly Boys gang members at the time they committed the predicate offenses. The record further reflects that the prosecution also relied on the current offenses to establish the pattern of criminal activity element of the gang enhancement allegations. However, the jury was never instructed that it had to find Runderson, Hawkins or Jones to be Fly Boys gang members in order to consider whether the prosecution proved the requisite predicate offenses. In fact it was instructed that the People need not prove Runderson, Hawkins or Jones was an active or current member of the Fly Boys street gang to find the requisite predicate offenses. We presume that the jury followed the instruction. (People v. Scott (2015) 61 Cal.4th 363, 399.)

Appellants were all sentenced under the section 12022.53, subdivision (d) firearm enhancement to an additional 25 years on count 1. While appellants were all charged with various section 12022.53 arming enhancements, Runderson and Hawkins were not charged pursuant to section 12022.53, subdivision (d). They were both charged with section 12022.53, subdivision (e). Both Runderson and Hawkins contend, however, that the sentence imposed as to section 12022.53, subdivision (d) was a violation of their fair notice of charges against them, and to due process of a fair trial, in violation of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution because the application of subdivision (d) as a vicarious enhancement was not properly pleaded and proved pursuant to section 12022.53, subdivision (e)(1). “[S]ection 12022.53 imposes progressive sentence enhancements of 10 years, 20 years, or 25 years to life, for progressively egregious firearm use applicable to certain enumerated felonies.” (People v. Yang (2010) 189 Cal.App.4th 148, 154.) “Section 12022.53, subdivision (e)(1), imposes vicarious liability under this section on aiders and abettors who commit crimes in participation of a criminal street gang.” (People v. Garcia (2002) 28 Cal.4th 1166, 1171.) Thus, “when the offense is committed to benefit a criminal street gang, the statute’s additional punishments apply even if, … the defendant did not personally use or discharge a firearm but another principal did.” (People v. Brookfield (2009) 47 Cal.4th 583, 590.) In order to find an aider and abettor, who is not the shooter, liable under section 12022.53, subdivision (d), the prosecution must plead and prove that a principal committed an offense enumerated in section 12022.53, subdivision (a); a principal intentionally and personally discharged a firearm and proximately caused great bodily injury or death to any person other than an accomplice during the commission of the offense; the aider and abettor was a principal in the offense; and the offense was 39

committed for the benefit of, at the direction of, or in association with any criminal street gang, with the intent to promote or assist in the conduct by gang members. (People v. Garcia, supra, 28 Cal.4th at p. 1174.) As argued by Runderson and Hawkins, “[a]lthough the information mentioned subdivision (e)(1), it did not articulate how the prosecution intended to apply it as to each defendant, and it was not pleaded with uniformity as to the two counts to which it was potentially applicable (counts one and two).” Runderson and Hawkins then cite to the information, showing that, as to count 1, inter alia, it was alleged Runderson personally used a firearm (§ 12022.53, subd. (b)); all three appellants were principals in the commission of the offense (§ 12022.53, subd. (e)(1)); and Jones personally and intentionally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)). As to count 2, the information alleged, inter alia, that appellants personally used a firearm (§ 12022.53, subd. (b)); Runderson was a principal in the offense (§ 12022.53, subd. (e)(1)). Runderson and Hawkins also argue that the verdicts did not include a finding that either of them was a principal discharging a firearm causing great bodily injury pursuant to section 12022.53, subdivision (d), since the verdict forms made true findings on the section 12022.53, subdivisions (b) and (e)(1) only (on both counts 1 and 2 as to Runderson and Hawkins and on count 2 only as to Runderson). Runderson and Hawkins argue further that the instructions given stated that the jury was to separately consider the evidence as it applied to each defendant; to consider personal use of a firearm (§ 12022.53, subd. (b)), on count 1 only as to Runderson; and to consider personal discharge of a firearm (§ 12022.53, subd. (d)), only as to Jones. As to the vicarious enhancement pursuant to section 12022.53, subdivision (e)(1), on count 1, Runderson and Hawkins contend the trial court gave an instruction that failed to distinguish between a principal personally using a firearm, and a principal discharging a

firearm causing great bodily injury. A similar version of the same instruction was given as to count 2, as to Runderson only. Respondents argue Runderson’s and Hawkins’s claim fails for three reasons: (1) They forfeited their claim that the prosecution did not plead the requirement of section 12022.53, subdivision (e)(1) because they did not object when the trial court instructed the jury or when the court provided verdict forms asking the jury to make a finding under subdivision (e)(1); (2) the allegations gave Runderson and Hawkins fair notice that the People were seeking vicarious liability on the subdivision (d) enhancement; and (3) the jury’s verdicts included the requisite findings for imposing vicarious liability under subdivisions (d) and (e)(1). We agree that Runderson and Hawkins forfeited their claim by failing to object when the trial court instructed on and provided verdict forms asking that the jury make a finding under, section 12022.53, subdivision (e)(1). While a defendant has a due process right to notice of the specific sentence enhancement allegations that will be invoked to increase punishment for his crimes (People v. Pettie (2017) 16 Cal.App.5th 23, 82), when a defendant fails to object to the adequacy of the notice received, any such objection is deemed waived. (People v. Bright (1996) 12 Cal.4th 652, 671, overruled on another point in People v. Seel (2004) 34 Cal.4th 535, 550 & fn. 6.) A defendant cannot claim a lack of notice when he expressly or impliedly consents to have the trier of fact consider the enhancement based on the court’s proposed instructions and verdict forms. (People v. Houston (2012) 54 Cal.4th 1186, 1226–1229.) As to instructions, the trial court, without objection, instructed with CALCRIM No. 1402 that, if it found appellant guilty of the attempted murder or robbery, and the crime was committed for the benefit of a criminal street gang, it “must then decide whether the People have proved the additional allegation that one of the principals personally and intentionally discharged a firearm during that crime and caused great

bodily injury.” The instruction required that the People prove the allegation as to each appellant and return a separate finding as to each. In any event, addressing the issue on the merits, Runderson and Hawkins had fair notice of the vicarious liability enhancement. As noted above, the information, as to count 1, alleged, inter alia, that, in the commission of the attempted murder, Runderson personally used a firearm (§ 12022.53, subd. (b)); that Jones personally and intentionally discharged a firearm proximately causing great bodily injury (§ 12022.53, subd. (d)); that all three appellants were principals in the commission of the offense (§ 12022.53, subd. (e)(1)); and that the offense was committed for the benefit of a street gang. Thus, the information satisfied the pleading requirements of section 12022.53, subdivision (e)(1) and provided fair notice to Runderson that the People sought to impose vicarious liability for the subdivision (d) enhancement and to Hawkins that the People sought vicarious liability for the subdivisions (b) and (d) enhancements. Similarly, the information for count 2, alleged, inter alia, that in the commission of the robbery, all three appellants personally used a firearm (§ 12022.53, subd. (b)); that Jones personally and intentionally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)); that Runderson was a principal in the offense (§ 12022.53, subd. (e)(1)); and that the offense was committed for the benefit of a street gang. The information satisfied the pleading requirements of section 12022.53, subdivision (e)(1), providing Runderson with fair notice that the People sought to impose vicarious liability on the subdivision (d) enhancement. Furthermore, the prosecution proved the elements making Runderson and Hawkins vicariously liable for the section 12022.53, subdivision (e)(1) enhancement. Appellants were jointly tried. The verdict forms for Runderson and Hawkins, as to counts 1 and 2, and Runderson, as to count 2, found each a principal in the commission of the offense, pursuant to section 12022.53, subdivision (e)(1). And while these verdict

forms did not ask the jury to make an additional finding that any principal in the offense committed any act specified in section 12022.53, subdivision (d), the jury specifically found, as to both counts 1 and 2, that Jones “personally and intentionally discharged a firearm which proximately caused great bodily injury or death to Brandon Morris as alleged in Penal Code Section 12022.53(d).” Thus, the jury necessarily found that a principal in the offense committed any act specified in section 12022.53, subdivision (d), thereby proving the requirements for imposing vicarious liability on Runderson and Hawkins under subdivision (e)(1). In view of the foregoing, we conclude that Runderson and Hawkins received adequate notice of the section 12022.53, subdivision (d) enhancement. However, we strike the section 12022.53, subdivision (d) and subdivision (e) enhancements as to Runderson, Hawkins and Jones, as we explain below. Section 12022.53, subdivision (d) provides, in pertinent part: “Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), … personally and intentionally discharges a firearm and proximately causes great bodily injury, as defined in Section 12022.7, … shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life.” Section 12022.53, subdivision (e), provides, in turn, that the enhancement provided in subdivision (d) shall apply to any person who is a principal in the commission of an offense if both of the following are pled and proved: “(A) The person violated subdivision (b) of section 186.22. [¶] (B) Any principal in the offense committed any act specified in subdivision (b), (c), or (d).” And, as explained in People v. Garcia, supra, 28 Cal.4th 1166, in order to find an aider and abettor, who is not the shooter, liable under section 12022.53, subdivision (d), the prosecution must plead and prove that “(1) a principal committed an offense enumerated in section 12022.53, subdivision (a) …; (2) a principal intentionally and

shooting” and himself, and that it “inflamed the passions of the jury” by suggesting he was “an incorrigible criminal miscreant.” What Jones is asking that we do is to reweigh the evidence, which we will not do. “‘“Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.”’” (People v. Manibusan (2013) 58 Cal.4th 40, 87.) A reversal for insufficient evidence is unwarranted unless it appears that, upon no hypotheses whatever, is there sufficient substantial evidence to support the jury’s verdict. (Ibid.) The evidence before the jury was that Brandon M. identified Jones as the shooter from a photo lineup and at trial. Brandon M.’s identification of Jones was bolstered by evidence he had met Jones before and knew him by the nickname “Bud,” a name similar to the name used by Jones of his Facebook page—“Bub da Stunna.” B.B. told Officer Mayo that one of the individuals involved in the shooting was called “Bub.” And importantly, and not mentioned by Jones in his argument, Jones’s handprint was found on Brandon M.’s car. We find sufficient evidence to support Jones’s convictions and reject his claim to the contrary. VI. PRETRIAL IDENTIFICATION PROCEDURE Jones next contends Brandon M.’s pretrial identification of him was tainted by an unduly suggestive identification procedure employed by Officer Mayo. Defense counsel did not object to Jones’s pretrial identification. Because of this, the claim has been forfeited. (People v. Elliott (2012) 53 Cal.4th 535, 585-586.) We nevertheless address the issue on the merits because Jones claims ineffective assistance of counsel in the alternative. Both arguments are unavailing, as we find the identification procedure used did not violate his due process rights.

A. Background Officer Mayo testified that, four days after Brandon M. was shot and robbed, she showed Brandon M. a photo lineup that included Jones’s photograph. The photos were on six separate full sheets of paper. Officer Mayo testified she selected the individuals in the six photographs because they were similar in age and appearance, and the photographs had been taken at a similar angle. Officer Mayo presented the photos sequentially, instead of in a six-pack format, because there were no mug shots or booking photos of Jones, nor did he have a driver’s license or California identification card. As a result, she had to find “another source” for the photographs to use in a lineup and obtained Jones’s photograph from a school resource officer. Officer Mayo testified that the five people included in the lineup were Fly Boys gang members, but the source of those photographs is unclear. All of the photographs appear to be of African-American males, of a similar age and with short hair. The photos are of the face and shoulders of each individual, although the backgrounds are different. Two have on light-colored shirts, the other four, including Jones, dark-colored shirts. One subject, not Jones, is pointing his middle finger and four, including Jones, have metal grills on their front teeth. The other two have closed mouths and their teeth are not visible. Officer Mayo testified that she placed the photographs face down on a table and asked Brandon M. to look at them, which he did by turning over the photos one at a time. After looking at all of the photographs, Brandon M. said the shooter looked like number 3 (Jones) and number 6 (the person pointing his middle finger). Brandon M. pointed to Jones’s photograph and said, “He looks the closest,” but he did not remember the shooter having a gold grill. Brandon M., pointing at Jones’s photograph said, “He looks like him for real, I remember them eyes, man, being like that. I don’t know if he has a grill.”

photograph. In fact, when Brandon M. asked, “Is this the same dude?”, Officer Mayo told Brandon M. she could not tell him, a fact verified by Brandon M. at trial. Even if we assume the photographic lineup was unduly suggestive, suppression was not required if “the identification itself was nevertheless reliable under the totality of the circumstances.” (People v. Thomas (2012) 54 Cal.4th 908, 930 (Thomas).) Factors to consider include “the opportunity of the witness to view the suspect at the time of the offense, the witness’s degree of attention at the time of the offense, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated at the time of the identification, and the lapse of time between the offense and the identification.” (Ibid.) Here, the record demonstrates Brandon M.’s identification of Jones was reliable. Brandon M. was able to see the shooter before and during the robbery. The shooter was facing Brandon M., and Brandon M. was shot at close range. Brandon M. provided a description of the shooter to the police. Brandon M. noticed the shooter’s eyes and made his identification of Jones in part on his eyes. Thus, Brandon M. had a good opportunity to “view the suspect at the time of the offense.” (Thomas, supra, 54 Cal.4th at p. 930.) The photographs were shown Brandon M. within a week of the incident. In addition, Jones was not a complete stranger to Brandon M. Brandon M. had met Jones before and knew him by his nickname of “Bud.” Before he was shot, Brandon M. heard other people refer to the shooter as “Bud.” Two days after he was shot, Brandon M. told Officer Mayo he knew the shooter by the nickname of “Bud,” a name similar to “Bub da Stunna,” the name Jones used on his Facebook page. In sum, based on our consideration of the totality of the circumstances, we conclude Brandon M.’s pretrial identification of the Jones was reliable and not unduly suggestive and did not violate Jones’s constitutional due process rights.

are affirmed and the matter remanded to the trial court. As to Runderson and Hawkins, the People have 60 days from the date of the remittitur to file an election to try Runderson and Hawkins on the reversed gang enhancement. Following retrial, or if the People elect not to retry Runderson and Hawkins, the trial court shall resentence them accordingly, exercising its discretion under section 12022.53, subdivision (h), shall cause their abstracts of judgment to be amended in a manner consistent with this disposition, and shall send certified copies of the amended abstracts to the Department of Corrections and Rehabilitation. As to Jones, his convictions and sentence are conditionally reversed and remanded to the juvenile court with directions to conduct a juvenile transfer hearing. (Welf. & Inst. Code, § 707.) When conducting said 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 Jones’s cause to a court of criminal (adult) jurisdiction. (Id., subd. (a)(1).) If, after conducting the juvenile transfer hearing, the juvenile court finds it would not have transferred Jones to a court of criminal (adult) jurisdiction, it shall treat Jones’s convictions as juvenile adjudications, as modified by this opinion. If, after conducting the juvenile transfer hearing, the trial court determines it would have transferred Jones to a court of criminal (adult) jurisdiction because he is not a fit and proper subject to be dealt with under the juvenile court law, then Jones’s convictions and sentence shall be reinstated, as modified by this opinion. (Welf. & Inst. Code, § 707.1, subd. (a).) Thereafter, the People have 60 days from the date of the remittitur to file an election to try Jones on the reversed gang enhancement. Following retrial, or if the People elect not to retry Jones, the trial court shall resentence him accordingly, exercising its discretion under section 12022.53, subdivision (h), shall cause the abstract of

People v. Runderson CA5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

SMITH, J.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

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III. SECTION 12022.53, SUBDIVISION (d) ENHANCEMENT

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