California Court of Appeal Mar 9, 2023 No. E077362Unpublished
Filed 3/9/23 P. v. Wilkerson CA4/2 See concurring and dissenting opinion.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E077362
v. (Super.Ct.No. RIF1905231)
RUSSELL ALVON WILKERSON, JR., OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Matthew C. Perantoni,
Judge. Affirmed in part, vacated in part, and remanded with directions.
Cliff Gardner, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Robin Urbanski, Don Ostertag
and Laura Baggett, Deputy Attorneys General, for Plaintiff and Respondent.
1
Russell Alvon Wilkerson, Jr., appeals from a judgment after a jury convicted him
of first degree murder and found true a lying-in-wait special circumstance, a gang-murder
special circumstance, a gang enhancement, and a gang-related firearm enhancement. The
trial court also found that Wilkerson admitted a prior serious felony enhancement, and the
court sentenced Wilkerson to life without the possibility of parole plus five years in state
prison.
Wilkerson argues that (1) the prosecutor committed prejudicial misconduct by
misstating the law on aiding and abetting in closing argument, (2) the lying-in-wait
special circumstance is unconstitutionally vague, (3) the trial court prejudicially erred by
not forcing the prosecution to stipulate that the relevant gang constituted a criminal street
gang, (4) there was not sufficient evidence of predicate crimes necessary to support the
gang-related enhancements and the gang special circumstance under the law as it existed
when he was tried, and (5) he did not admit that he had a prior serious felony conviction
for purposes of imposing the five-year enhancement. We find no prejudicial error.
The parties agree, however, that, as a result of the passage of Assembly Bill
No. 333 (2021–2022 Reg. Sess.) (Assembly Bill 333), the true findings on the gang
enhancement and the gang-related firearm enhancement must be vacated. But the People
contend that the true finding on the gang special circumstance should not be vacated,
because Assembly Bill 333 is an unconstitutional legislative amendment of Proposition
21, the voter initiative that added the gang special circumstance to the list of
circumstances punishable by life in prison without the possibility of parole or death in
Penal Code section 190.2. (Unlabeled statutory references are to the Penal Code.) We
2
disagree. We vacate the true findings on the gang-related enhancements and the gang
special circumstance and remand for proceedings consistent with this opinion. We
otherwise affirm the judgment.
BACKGROUND
A. August 2019 Incident
One night in August 2019, law enforcement responded to a report of a possible
battery at a residence on El Sol Way in Riverside, California. William C. was the victim
and spoke to the investigating officer. William reported that he had been parked in front
of a family member’s house and honking his car’s horn, when a man William identified
as Boo (and who was otherwise identified as Anthony Mahan) approached William’s car
and started yelling. Mahan threw a can of beer at William’s car, took William’s cell
phone, and threw it too. William drove to a nearby house on the same street and called
the police.
The investigating officer knew Mahan and knew that he was a member of the 2800
Blocc Crips street gang. The 2800 Blocc Crips claim El Sol Way as their territory. The
officer feared that the gang would retaliate against William because he had called the
police, so the officer advised William that it would be in his best interest to leave the
area.
B. The Killing
Two weeks later, on September 1, 2019, William returned to El Sol Way to help
fix someone’s van. William worked on the van in the driveway of Jenny F.’s house near
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the cul-de-sac at the end of that street. He started working on it in the afternoon and
worked through the night, when it was dark outside.
That night, neighbors of Jenny’s noticed a van in their driveway with the lights on.
One of them went outside to investigate and called the police. There was broken glass on
the ground, and no one responded when the neighbor called out to the van.
Law enforcement arrived and found William slumped over in the driver’s seat
with his T-shirt soaked in blood. The windows of the front driver’s and passenger’s
doors were shattered. William was pronounced dead at the scene. He died as a result of
a single gunshot wound to his chest.
C. The Investigation
Jeffrey Adcox was the lead detective assigned to investigate the incident. Given
that the shooting occurred on El Sol Way, Adcox suspected that it involved the 2800
Blocc Crips. The gang unit had previously attached a GPS tracking device to
Wilkerson’s car. The parties stipulated that the tracking device showed that Wilkerson’s
car arrived at the end of the cul-de-sac of El Sol Way at 9:32 p.m. on the night of the
shooting, which was about 12 minutes before law enforcement was called.
Officers obtained surveillance footage from two nearby houses. The officers
found a single nine-millimeter shell casing near the mailbox in front of the house across
the street from William’s van. The shell casing was located directly in front of one of the
houses that had cameras that recorded the shooting.
Just before the shooting, video showed Wilkerson parked at the end of the cul-de-
sac and sitting in the driver’s seat of his car. Reuben Kelly, Eddie Smith, and Jeffrey
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Taylor were huddled around Wilkerson’s car and speaking to Wilkerson through the
passenger window. The recordings then show a vehicle’s headlights come into view
behind Wilkerson’s car. The vehicle appears to be traveling on El Sol Way toward the
end of the cul-de-sac. Wilkerson got out of the car. Wilkerson, Kelly, and Taylor
“disburse[d]” in the direction of the houses at the end of the cul-de-sac, where they hid.
Smith moved in the opposite direction, toward the mailbox where the shell casing was
found. Smith ducked and crouched behind a car parked in front of the mailbox while
apparently looking down the street at the approaching vehicle. The video then shows the
van driven by William start to turn into a driveway across the street from Smith.
One of the cameras that recorded the shooting captured both audio and video.
Adcox identified the voices on the recording. He had listened to approximately 3,000 of
Wilkerson’s phone calls as part of a subsequent wiretap investigation, as well as phone
calls that Taylor made from jail.
About 15 seconds before the shooting, Taylor tells Smith, “Move cuz, move
down.” Smith responds, “I’m fittin’ to do my shit, cuz.” As the van approaches the
driveway and turns into it, Wilkerson says, “Cap him. Cap him cuz. Go on! Cap him
cuz! Got to.” Smith then fires one shot at the van. After the shooting, Taylor tells
Smith, “Hold on, Eddie. Now break him up. Hey.” Adcox explained that “break him
up” means “to finish him off.”
After the shot, the van moved forward slightly and then came to a full stop with its
lights on. Wilkerson asked Smith if he “got down,” and Smith answered, “Yeah cuz.”
Wilkerson responded, “That’s how we do it.” Taylor directed Smith to “get out of here,”
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and an unidentified male voice can be heard telling Smith to “[h]it the back fence.” As
directed, Smith jumped the back fence of a neighbor’s house. Taylor and Wilkerson
drove away in their respective cars.
Law enforcement later conducted a wiretap investigation of active members of the
2800 Blocc Crips and were able to find Smith in another state, where they arrested him.
Adcox interviewed Smith and played the recording of the shooting for him. Smith
admitted that he was a member of the 2800 Blocc Crips and that he was the shooter. He
admitted that he had been “part of the plan before the shooting.” He was the shooter
because he was the youngest member of the gang there.
On the basis of one of the wiretapped conversation between Wilkerson and
another member of the 2800 Blocc Crips, Adcox believed that Wilkerson was present on
El Sol Way in August 2019, when William called the police.
D. Gang Evidence
A detective in the gang intelligence unit of the local police department testified in
detail about the 2800 Blocc Crips. He described the 2800 Blocc Crips as a violent
criminal street gang whose primary activities as of September 2019 were drug sales,
weapons possession, robberies, violent assaults, and shootings. The detective confirmed
that the 2800 Blocc Crips claim El Sol Way as their territory. He testified about three
predicate offenses committed by various members of the 2800 Blocc Crips in 2015 and
2017. (We describe the testimony about the predicate crimes in more detail below.)
The detective testified that Wilkerson is a member of the 2800 Blocc Crips and is
considered an “OG” or “original gangster”, which the detective explained means
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“someone who has authority to make decisions and speak on behalf of the gang.”
Wilkerson’s father is considered “a longstanding OG” of the 2800 Blocc Crips, and
several of Wilkerson’s siblings are also members. In addition, the detective confirmed
that Kelly and Taylor are also members of the 2800 Blocc Crips. On the night of the
shooting, Wilkerson was the oldest and longest-standing member of the 2800 Blocc Crips
present. Smith was the youngest and had been a member of the gang for the shortest
time.
Asked whether in his opinion the shooting of William was in furtherance of the
2800 Blocc Crips’ activities based on a hypothetical mirroring the facts of the case, the
detective said that he believed it was. It would benefit the gang to “address a primary
threat to the gang,” which the detective described as “being someone who would
cooperate against them and identify them in crimes.” The detective opined that the older
gang members’ “encouraging, coaching, [and] subsequently congratulating” furthered the
gang’s activities also. The older gang members’ mere presence would encourage a
shooting “if someone ha[d] previously been identified as a threat to the gang.” And the
verbalized “orders to shoot” “could not have easily been ignored or rejected.” The
detective testified that a young member of the 2800 Blocc Crips “trying [to] put in work
around older members” would shoot if told to. If the young gang member refused to
shoot, then that member would have “no utility . . . in the gang,” and the gang “would
need to get rid of” that person.
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DISCUSSION
A. Alleged Prosecutorial Misconduct
Wilkerson argues that during closing argument the prosecutor prejudicially
misstated the law on aiding and abetting and that defense counsel rendered ineffective
assistance by failing to object. We reject the argument because the prosecutor did not
misstate the law.
1. Relevant Proceedings
The prosecution’s sole theory of the case was that Wilkerson committed first
degree murder by aiding and abetting Smith in shooting and killing William. The jury
was instructed that in order to convict Wilkerson under that theory the prosecution had to
prove that (1) “[t]he perpetrator committed the crime,” (2) Wilkerson “knew that the
perpetrator intended to commit the crime,” (3) either “[b]efore or during the commission
of the crime, [Wilkerson] intended to aid and abet the perpetrator in committing the
crime,” and (4) Wilkerson’s “words or conduct did in fact aid and abet the perpetrator’s
commission of the crime.” (CALCRIM No. 401.) The jury was further instructed:
“Someone aids and abets a crime if he or she knows of the perpetrator’s unlawful purpose
and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage,
or instigate the perpetrator’s commission of that crime.” (CALCRIM No. 401.)
During closing argument, the prosecutor argued that Wilkerson did “in fact, aid,
facilitate, promote, encourage or instigate” Smith’s killing of William as follows: “Take
your pick which one you want to use. [¶] We know that [Wilkerson] aided [Smith]
because [Wilkerson] told [Smith] when to shoot. We know [Wilkerson] facilitated it
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because they were all by his vehicle . . . before the murder occurred. . . . [¶] We know
that [Wilkerson] promoted and encouraged because [Wilkerson] was telling [Smith] to
shoot before he shot. And we know [Wilkerson] instigated it. Take your pick.”
Defense counsel responded that assuming that it was Wilkerson who said, “Cap
him cuz” (which counsel otherwise contested), there was no evidence that Wilkerson did
“in fact” aid and abet Smith because there was no evidence that Smith heard what was
said (regardless of who said it).
In rebuttal, the prosecutor stated that whether Smith actually heard Wilkerson was
a “moot point.” The prosecutor explained: Defense counsel wants “you to believe that
somehow you have to focus on [Smith] when he pulled the trigger. That is not true. [¶]
The law requires that [Wilkerson] aided, facilitated, promoted, encouraged or instigated
[Smith] in the commission of this crime. That is what the law requires. Now, as added
evidence, it is plain as day that [Smith] not only heard what they were saying, but was
definitely encouraged by it.” The prosecutor played a video of the shooting. He pointed
out that Kelley, Taylor, and Smith were huddled around Wilkerson’s car before the
shooting and then intentionally moved in certain directions when William approached in
the van because “that was the plan, and they knew exactly what was going to happen.”
Defense counsel did not object to the prosecutor’s description of the evidence or the law
of aiding and abetting during rebuttal.
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2. Analysis
Wilkerson argues that the prosecutor committed prejudicial conduct by misstating
the law on aiding and abetting when he told the jury that it was a “moot point” whether
Smith heard Wilkerson say, “Cap him cuz.” We do not agree.
“In California, the law regarding prosecutorial misconduct is settled: ‘When a
prosecutor’s intemperate behavior is sufficiently egregious that it infects the trial with
such a degree of unfairness as to render the subsequent conviction a denial of due
process, the federal Constitution is violated. Prosecutorial misconduct that falls short of
rendering the trial fundamentally unfair may still constitute misconduct under state law if
it involves the use of deceptive or reprehensible methods to persuade the trial court or the
jury.’” (People v. Masters (2016) 62 Cal.4th 1019, 1052.) “It is prosecutorial
misconduct to misstate the law.” (People v. Fayed (2020) 9 Cal.5th 147, 204.)
In general, a criminal “‘“defendant may not complain on appeal of prosecutorial
misconduct unless in a timely fashion, and on the same ground, the defendant objected to
the action and also requested that the jury be admonished to disregard the perceived
impropriety.”’” (People v. Centeno (2014) 60 Cal.4th 659, 674 (Centeno).) “The
defendant’s failure to object will be excused if an objection would have been futile or if
an admonition would not have cured the harm caused by the misconduct.” (Ibid.)
The People contend that Wilkerson forfeited the claim of error by failing to object
to the prosecutor’s alleged misstatement, and we agree. “A prosecutor’s misstatements of
law are generally curable by an admonition from the court.” (Centeno, supra, 60 Cal.4th
at p. 674.) “Nothing in this record indicates that an objection would have been futile.
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Nor was the prosecutor’s argument so extreme or pervasive that a prompt objection and
admonition would not have cured the harm.” (Ibid.) We nevertheless address the merits
of the claim because Wilkerson argues that the failure amounted to ineffective assistance
of his trial counsel.
As the jury was properly instructed, proof of aider and abettor liability requires
proof of “the aider and abettor’s actus reus—conduct by the aider and abettor that in fact
assists the achievement of the crime.” (People v. Perez (2005) 35 Cal.4th 1219, 1225.)
Wilkerson argues that the prosecutor’s misstatement of the law relieved the prosecution
of the obligation to prove Wilkerson’s actus reus as an aider and abettor. Wilkerson
claims: “If Smith did not hear [Wilkerson’s] words of encouragement, then those words
played no part in the actual commission of [the] crime. That is, [Wilkerson’s] statement
did not in fact assist Smith in committing [the] crime. Yet, the prosecutor told jurors that
they could nevertheless find [Wilkerson] guilty of murder even if Smith did not hear him.
[Citation.] This was a misstatement of law which gave jurors an improper theory on
which to convict.”
Wilkerson’s argument takes out of context the prosecutor’s statement that it was
“moot” whether Smith heard Wilkerson say, “Cap him cuz.” After the prosecutor made
that statement, the prosecutor went on to explain that the reason it was moot was that
there was so much other evidence that Wilkerson “aided, facilitated, promoted,
encouraged or instigated” Smith in killing William. For example, Kelly, Taylor, and
Smith were huddled around Wilkerson’s car before the shooting and disbursed when the
van approached, which the prosecution argued demonstrated that the killing was planned.
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Thus, the prosecution’s argument was that regardless of whether the jury believed that
Smith heard Wilkerson say “Cap him cuz,” the prosecution still proved beyond a
reasonable doubt that Wilkerson in fact aided and abetted Smith in killing William
because other evidence overwhelmingly demonstrated that Wilkerson in fact assisted
Smith in the killing. The prosecutor did not improperly tell the jury that it could convict
Wilkerson on an aiding and abetting theory without finding he committed the actus reus.
Rather, the prosecutor permissibly emphasized that Wilkerson’s statement to Smith was
far from the only evidence of that actus reus. The prosecution consequently did not
relieve the jury of its obligation to find Wilkerson’s actus reus as an aider and abettor.
For all of the foregoing reasons, we conclude that the prosecutor did not misstate
the law on aiding and abetting.
B. The Gang-Related Enhancements and the Gang Special Circumstance
Wilkerson argues that under the law as it existed when he was tried there was
insufficient evidence to support the jury’s true findings on the gang-related enhancements
(former § 186.22, subd. (b)(1); § 12022.53, subds. (d), (e)) and the gang special
circumstance (§ 190.2, subd. (a)(22)) because the proof was insufficient to establish that
two or more predicate offenses were committed.1 In the alternative, he argues that
1 The People do “not address [Wilkerson’s] claim that there was insufficient evidence of the predicate offenses under the law that governed at the time of trial” because of their concession that “remand is appropriate in this case under” Assembly Bill 333, which they claim will require them “to retry [Wilkerson] as to the gang allegations.” The People’s assessment is mistaken. Under principles of double jeopardy, Wilkerson “may not be retried if the judgment is reversed because, as a matter of law, the evidence was insufficient to support a conviction.” (People v. Eroshevich (2014) 60 Cal.4th 583,
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remand of the gang-related enhancements and the gang special circumstance is required
because of Assembly Bill 333’s amendments to section 186.22, which he claims apply
retroactively. The People concede, and we agree, that Assembly Bill 333 applies to this
case and that the gang-related enhancements should be vacated. But the People argue that
we should not vacate the true finding on the gang special circumstance because Assembly
Bill 333 unconstitutionally amended Proposition 21. We reject the People’s challenge to
the constitutionality of Assembly Bill 333, and we therefore vacate the true finding on the
gang special circumstance as well. We also reject Wilkerson’s challenge to the
sufficiency of the evidence of the predicate crimes under the law as it existed when he
was tried, so we remand for further proceedings.
1. Predicate Crimes
The gang expert testified that three predicate offenses established the pattern of
criminal gang activity necessary to demonstrate that the 2800 Blocc Crips was a criminal
street gang: (1) On March 10, 2015, two members of the 2800 Blocc Crips committed
“some robberies”; (2) on May 6, 2015, two different members of the 2800 Blocc Crips
committed a robbery; and (3) on August 23, 2017, law enforcement officers stopped a car
with two 2800 Blocc Crips gang members in response to a call reporting a “problem with
591; Tibbs v. Florida (1982) 457 U.S. 31, 42.) Thus, if we conclude that the evidence was insufficient to support the gang-related enhancements and the gang special circumstance, then we need not consider the effect of Assembly Bill 333 on those findings. (See People v. Renteria (2022) 13 Cal.5th 951, 961, fn. 6, 973 (Renteria) [concluding the evidence was insufficient to support a gang enhancement based on the law as it existed at the time of trial, before Assembly Bill 333, and thus not addressing the amendments to the law].)
13
the area” or requesting “help.” One of the responding officers and the gang expert
testified about the 2017 incident. Officers found “a handgun and large amount of
marijuana and large quantity of cash” in the car. Law enforcement stopped a second car
involved in the incident. Two other 2800 Blocc Crips gang members were in the second
car. Officers found “Xanax and a loaded handgun” in that car.
The People introduced felony complaints filed in relation to each of the three
predicate offenses. For the May 2015 predicate offense, the defendants were charged
with robbery, a substantive gang offense (former § 186.22, subd. (a)), and a gang
enhancement (former § 186.22 subd. (b)(1)), among other things. The 2800 Blocc Crips
were identified as the relevant gang. For the March 2015 robberies, none of the
defendants was charged with a substantive gang offense or any gang-related
enhancements. For the 2017 offenses, three defendants were charged with several
offenses related to drug possession and firearm possession. One defendant was charged
with one count of being a felon in possession of a firearm in violation of section 29800,
subdivision (a)(1), and another defendant was charged with unlawfully possessing a
loaded firearm in violation of section 25850, subdivision (c)(6). No defendant was
charged with murder or robbery in relation to the 2017 incident.
The jury was instructed that, in determining whether the 2800 Blocc Crips had
engaged in a pattern of criminal gang activity, the jury could consider “[a]ny combination
of two or more of the following crimes, or two or more occurrences of one or more of the
following crimes: murder and/or robbery.” As to whether the jury could consider the
charged murder, the jury was instructed that if it found Wilkerson “guilty of a crime in
14
this case, you may consider that crime in deciding whether one of the group’s primary
activities was commission of that crime and whether a pattern of criminal gang activity
has been proved.”2
2. New Law
Assembly Bill 333 became effective on January 1, 2022, and made numerous
changes to section 186.22. (People v. E.H. (2022) 75 Cal.App.5th 467, 477 (E.H.).) The
law previously “defined a ‘criminal street gang,’ as ‘any ongoing organization,
association, or group of three or more persons . . . whose members individually or
collectively engage in, or have engaged in, a pattern of criminal gang activity.’ (Former
§ 186.22, subd. (f), italics added.) Assembly Bill 333 narrowed the definition to ‘an
ongoing, organized association or group of three or more persons . . . whose members
collectively engage in, or have engaged in, a pattern of criminal gang activity.’ (Assem.
Assembly Bill 333 also altered the definition of “‘pattern of criminal gang
activity’” in the statute. (E.H., supra, 75 Cal.App.5th at p. 477; § 186.22, subd. (e)(1)
& (2).) The statute previously defined a “‘pattern of criminal gang activity’” as “the
commission of, attempted commission of, conspiracy to commit, or solicitation of,
2 Wilkerson contends that the “jurors were explicitly instructed that they ‘must consider [the charged murder] in deciding whether . . . a pattern of criminal gang activity has been proved.’” That is the oral instruction reflected in the reporter’s transcript. In the written instruction, however, the jury was told that it “may consider” the underlying offense if it found Wilkerson guilty. When there is a discrepancy between the orally given and written instructions, “the written instructions provided to the jury will control.” (People v. Mills (2010) 48 Cal.4th 158, 201.) We accordingly consider only the written instruction and disregard Wilkerson’s argument concerning the oral instruction.
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sustained juvenile petition for, or conviction of two or more of [certain specified
offenses], provided at least one of the offenses occurred after the effective date of this
chapter and the last of the offenses occurred within three years after a prior offense, and
the offenses were committed on separate occasions, or by two or more persons . . . .”
(Former § 186.22, subd. (e); E.H., at p. 477.) Assembly Bill 333 made the following
changes to that definition: (1) “the predicate offenses now must have been committed by
two or more ‘members’ of the gang (as opposed to any persons)” (E.H., at p. 477;
§ 186.22, subd. (e)(1)); (2) “the predicate offenses must be proven to have ‘commonly
benefited a criminal street gang’” (E.H., at p. 477; § 186.22, subd. (e)(1)), and the
common benefit must be “more than reputational” (§ 186.22, subd. (e)(1)); (3) “the last
predicate offense must have occurred within three years of the date of the currently
charged offense” (E.H., at p. 477; § 186.22, subd. (e)(1)); (4) “the list of qualifying
predicate offenses has been reduced” (E.H., at pp. 477-478; § 186.22, subd. (e)(1)); and
(5) “the currently charged offense no longer counts as a predicate offense” (E.H., at
p. 478; § 186.22, subd. (e)(2)).
Assembly Bill 333 further amended the statute so that it now defines “to benefit,
promote, further, or assist” as meaning “to provide a common benefit to members of a
gang where the common benefit is more than reputational.” (§ 186.22, subd. (g).) The
statute identifies some permissible examples of common benefits including but “not
limited to, financial gain or motivation, retaliation, targeting a perceived or actual gang
rival, or intimidation or silencing of a potential current or previous witness or informant.”
(Ibid.)
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Under subdivision (e)(1) of 12022.53, enhancements that ordinarily apply only to
defendants who personally use firearms in the commission of enumerated felonies are
made applicable to any principal in the felony who also violated the gang enhancement
statute. (People v. Lopez (2021) 73 Cal.App.5th 327, 347.) Because the gang-related
firearm enhancement in subdivision (e) of section 12022.53 applies when a principal
violates the gang enhancement statute (id., subd. (e)(1)(A)), the amendments to the gang
enhancement statute affected the gang-related firearm enhancement too. (Lopez, supra,
at pp. 347-348.)
In addition to the substantive changes to section 186.22, Assembly Bill 333 added
section 1109, under which a defendant charged with a gang enhancement under section
186.22, subdivision (b), “may request a bifurcated trial, in which the defendant is first
tried for the underlying offense, and only upon conviction is tried for any gang
categories of felonies that qualify as serious felonies. (§ 1192.7, subd. (c)(1)-(42).).
Subdivision (c)(8) of section 1192.7 applies to “any felony in which the defendant
personally uses a firearm,” and “the grossly negligent discharge of a firearm constitutes a
serious felony under section 1192.7, subdivision (c)(8).” (People v. Leslie (1996) 47
Cal.App.4th 198, 203.)
“A plea of guilty admits every element of the offense charged [citation], [and] all
allegations, and factors comprising the charge contained in the pleading.” (People v.
Tuggle (1991) 232 Cal.App.3d 147, 154, disapproved on another ground in People v.
3 It appears that a conviction for grossly negligent discharge of a firearm could qualify as a violent offense only if additional great bodily injury or firearm enhancements were charged and proved, as specified in subdivision (c)(8) of section 667.5. No such enhancements were alleged in relation to Wilkerson’s 2016 conviction.
30
Jenkins (1995) 10 Cal.4th 234, 252.) The same holds true for the admission of a sentence
enhancement allegation. (People v. Thomas (1986) 41 Cal.3d 837, 844 (Thomas).)
Wilkerson admitted as true the strike allegation that he was convicted in 2016 of
discharging a firearm with gross negligence, which was charged as “a serious and violent
felony, in violation of section 246.3, subdivision (a), of the Penal Code, within the
meaning of Penal Code sections 667, subdivisions (c) and (e)(1), and 1170.12,
subdivision (c)(1).” He thus admitted that the alleged prior felony was both serious and
violent. His admission that the prior strike conviction constituted a serious felony within
the meaning of section 667, subdivisions (c) and (e)(1), is sufficient to establish the prior
serious felony enhancement allegation. (Thomas, supra, 41 Cal.3d at pp. 843, 845 [the
defendant’s admission that prior burglary convictions constituted serious felonies “within
the meaning of sections 667 and 1192.7” was sufficient to establish the five-year prior
serious felony allegations].) Moreover, because grossly negligent discharge of a firearm
does not qualify as a violent offense (§ 667.5, subd. (c)), the only way that Wilkerson’s
conviction could have qualified as a prior strike is as a serious felony under section
1192.7, subdivision (c). (§ 667, subd. (c).)
For all of these reasons, we conclude that Wilkerson’s admission that his prior
conviction for grossly negligent discharge of a firearm constituted a serious felony
“within the meaning of Penal Code sections 667, subdivisions (c) and (e)(1), and
1170.12, subdivision (c)(1)” was sufficient to warrant imposition of the five-year prior
serious felony enhancement.
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E. Constitutionality of the Lying in Wait Special Circumstance and Instruction
Wilkerson argues that the lying-in-wait special circumstance (§ 190.2, subd.
(a)(17)) is unconstitutionally vague under the Fifth, Fourteenth, and Eighth Amendments
“because it is functionally no different than the lying in wait theory for first degree
murder.” He also contends that the instruction on the special circumstance is
unconstitutionally overbroad under the Eighth Amendment. As the parties agree, the
California Supreme Court has repeatedly held to the contrary. (See e.g., People v.
Mataele (2022) 13 Cal.5th 372, 422 [rejecting argument that lying-in-wait special
circumstance and associated instruction are unconstitutional]; People v. Parker (2022) 13
Cal.5th 1, 60 [lying-in-wait special circumstance not unconstitutionally vague or
overbroad]; People v. Flinner (2020) 10 Cal.5th 686, 751-752; People v. Johnson (2016)
62 Cal.4th 600, 636-637; People v. Casares (2016) 62 Cal.4th 808, 849, disapproved on
another ground in People v. Dalton (2019) 7 Cal.5th 166, 214.) We are bound by that
precedent. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) We
accordingly reject Wilkerson’s challenge to the constitutionality of the lying-in-wait
special circumstance and the related instruction.
DISPOSITION
We vacate the true findings on the gang-related enhancements (§§ 186.22,
subd. (b)(1), 12022.53, subds. (d), (e)) and the gang special circumstance (§ 190.2,
subd. (a)(22)). We remand to the trial court to give the People the opportunity to retry
the enhancements and the special circumstance under the law as amended by Assembly
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Bill 333 and to conduct further proceedings as appropriate. In all other respects, the
judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ J.
I concur:
MILLER Acting P. J.
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[People v. Wilkerson, E077362]
FIELDS, J., Concurring and Dissenting.
I fully concur in all aspects of the majority opinion except its determination that
“Wilkerson’s admission that his prior conviction for grossly negligent discharge of a
firearm constituted a serious felony ‘within the meaning of Penal Code1 sections 667,
subdivisions (c) and (e)(1), and1170.12, subdivision (c)(1)’ was sufficient to warrant
imposition of the five-year prior serious felony enhancement.” (Maj. opn., ante, at p. 31.)
Section 667.5, subdivision (c)(1)-(23) lists violent felonies for purposes of section
667.5. Section 246.3 does not fall within any of these provisions. Similarly,
section 1192.7, subdivision (c), lists serious felonies for purposes of that statute, but a
violation of section 246.3 does not fall within any of its provisions. Thus, by statutory
definition, section 246.3, by itself, cannot constitute a serious or violent felony.
In California, “[a] plea of guilty is an admission of every element of the offense
charged and is a conclusive admission of guilt. [Citations.] Such a plea is the equivalent
of a verdict of a jury. [Citation.] After a plea of guilty, it is unnecessary to take any
evidence on any of the elements of the crime charged.” (People v. McDaniels (1958)
165 Cal.App.2d 283, 284-285.) Thus, defendant’s admission that he was convicted of
violating section 246.3 admits every element of that offense. However, the admission of
every element of a section 246.3 violation is insufficient to establish that the offense is a
serious felony within the meaning of section 667.5.
1 Undesignated statutory references are to the Penal Code.
1
Section 246.3, subdivision (a), provides as follows: “Except as otherwise
authorized by law, any person who willfully discharges a firearm in a grossly negligent
manner which could result in injury or death to a person is guilty of a public offense and
shall be punished by imprisonment in a county jail not exceeding one year, or by
imprisonment pursuant to subdivision (h) of Section 1170.” Section 246.3 does not
require that the defendant personally use a firearm. Thus, a defendant may be guilty
under this section as an aider and abettor. (People v. Golde (2008) 163 Cal.App.4th 101,
112). A section 246.3 violation constitutes a serious felony if the defendant personally
used a firearm in committing the offense. (§ 1192.7, subdivision (c)(8).)
I am troubled by the fact that defendant did not admit that he personally used a
firearm in violating section 246.3, and there is no evidence in the record that indicates
that he personally used a firearm, yet we are affirming the true finding on the serious
felony allegation. In People v Leslie (1996) 47 Cal.App.4th 198 (Leslie), as in this case,
the defendant did not admit that his prior conviction for violating section 246.3 was a
serious felony when the defendant pled guilty to the offense. (Leslie, at p. 203.) But
Leslie upheld the true finding that the defendant’s prior section 246.3 conviction was a
serious felony because the defendant admitted that he personally used a firearm in
committing the offense when he entered his no contest plea on his current offense.
(Leslie, at pp. 204-205.)
Here, by virtue of his plea, defendant admitted he aided and abetted the personal
use of a firearm in committing his prior section 246.3 violation, but that is not the same
as personally using a firearm. Defendant’s admission that his prior section 246.3
2
conviction was a violent felony also does not constitute an admission that the conviction
was a serious felony. (Maj. opn., ante, at p. 31; cf. §§ 667.5, subd. (c), 1192,.7, subd. (c)
(8).)
Thus, I see no substantial evidence to support the true finding on this prior serious
felony conviction allegation and would reverse the true finding based on insufficient
evidence. (People v. Bueno (2006) 143 Cal.App.4th 1503, 1510.)
FIELDS J.
3
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the defendant's murder conviction but vacated the gang-related enhancements and the gang special circumstance due to the retroactive application of Assembly Bill 333, remanding for further proceedings.
Issues
Did the prosecutor commit prejudicial misconduct by misstating the law on aiding and abetting?
Does Assembly Bill 333 apply retroactively to the gang-related enhancements and the gang special circumstance?
Is the gang special circumstance unconstitutionally vague?
Was there sufficient evidence of predicate crimes to support the gang enhancements under the law at the time of trial?
Disposition. Affirmed in part, vacated in part, and remanded.
Quotations verified verbatim against the opinion
“We vacate the true findings on the gang-related enhancements and the gang special circumstance and remand for proceedings consistent with this opinion.”