People v. Guerra CA6

Filed 12/29/22 P. v. Guerra CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H049093 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. F1346393)

v.

JUAN MANUEL GUERRA et al.,

Defendants and Appellants.

Codefendants Juan Manuel Guerra and Jose Paulino Cortes were convicted of murder, attempted murder, and participation in a criminal street gang, with gang and firearm enhancements. After amendments to the Penal Code went into effect while the appeal was pending, this court upheld the convictions but remanded the case to allow defendants to request dismissal of the firearm enhancements in the interest of justice. In this appeal, Cortes challenges the trial court’s denial of his request to dismiss firearm enhancements, and Guerra challenges the denial of his request to strike a $10,000 restitution fine. In light of recent amendments to Penal Code section 186.22, defendants ask us to reverse the gang participation convictions, gang enhancements, and Guerra’s gang-related firearm enhancement. Cortes also asks us to strike his remaining criminal justice administration fee balance. As we will explain, we see no abuse of discretion in the denial of Cortes’s request to strike his firearm enhancements. And we will uphold Guerra’s $10,000 restitution fine because the trial court’s reconsideration of the fine exceeded this court’s remand and is

accordingly a nullity. We accept the Attorney General’s concessions that the amendments to Penal Code section 186.22 apply here and that under those provisions the evidence is insufficient to support the gang participation convictions and gang-related enhancements as to both defendants. Accordingly, we will vacate the gang participation convictions; strike the enhancements; and remand the matter for further proceedings, including retrial at the prosecution’s election. We will also direct the trial court to vacate any portion of defendants’ $129.75 criminal justice administration fees that remained unpaid as of July 1, 2021. (Gov. Code, § 6111, subd. (a).) I. BACKGROUND Defendants were convicted of murder (Pen. Code, § 187; count 1; undesignated statutory references are to the Penal Code), attempted murder (§§ 664, subd. (a), 187; count 2), and participation in a criminal street gang (§ 186.22, subd. (a); count 3). The jury found true that counts 1 and 2 were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)); defendants were principals in the offenses during which at least one principal intentionally and personally discharged a firearm (§ 12022.53, subds. (d), (e)(1)); defendants committed the attempted murder deliberately and with premeditation (§§ 664, 187, 189); and Cortes (the shooter) personally inflicted great bodily injury during the course of the attempted murder (§ 12022.7, subd. (a)). The trial court found Cortes had suffered four prior strike adjudications as a juvenile. (§§ 667, subds. (b)-(i), 1170.12.) Cortes was sentenced to a term of 157 years to life, and Guerra was sentenced to a term of 82 years to life. The trial court ordered joint and several restitutions in the amounts of $5,664.84 to the murder victim’s mother and $5,000 to the Victim Witness and Government Claims Board for funeral and burial expenses. Each defendant was ordered to pay a $10,000 restitution fine and a $129.75 criminal justice administration fee to the City of Gilroy. This court upheld the convictions in defendants’ previous appeal but remanded the matter to allow the trial court to exercise its new discretion as to the firearm 2