California Court of Appeal Mar 21, 2023 No. E077486Unpublished
Filed 3/21/23 P. v. James CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E077486
v. (Super.Ct.No. RIF1606009)
ANTOINE DESHAWN JAMES, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Samuel Diaz, Jr., Judge.
Affirmed in part, vacated in part, and remanded with directions.
Richard A. Levy, 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, Melissa Mandel, and Lynne G.
McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
1
Antoine Deshawn James and two others, Anthony Eddington and Abiance Turner,
were involved in a shooting that left two men dead and a third seriously wounded. At
James’s first trial, the jury convicted him of attempted premeditated murder, active
participation in a criminal street gang, and possession of a firearm by a felon. (Pen.
citations refer to the Penal Code.) The jury deadlocked on two murder counts, and the
trial court declared a mistrial on those counts. After a retrial on the murder counts, a
second jury convicted James of two counts of first degree premeditated murder. (§§ 187,
subd. (a), 189, subd. (a).) Both juries also returned true findings on several gang, firearm,
and great bodily injury enhancements. (§§ 186.22, subd. (b)(1)(C), 12022.7, subd. (a),
12022.53, subd. (d), (e)(1).)
On appeal, James argues: (1) The record does not contain substantial evidence
that he aided and abetted the two murders; (2) the record does not contain substantial
evidence that he acted with premeditation and deliberation; (3) the trial court erred in the
first trial by refusing to discharge a sitting juror who knew the attempted murder victim;
(4) the courts erred in both trials by admitting speculative testimony from James’s former
partner; (5) the courts erred in both trials by admitting evidence of uncharged prior
shootings; (6) Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Assembly Bill 333)
requires us to reverse his conviction on the gang offense and the true findings on the
gang-related enhancements; (7) the evidence of the gang’s primary activities was
insufficient; (8) the court erred by failing to stay his sentence on the great bodily injury
2
enhancements; and (9) we should remand for the court to exercise its discretion under
recently amended section 654.
For the most part, we reject those challenges. We agree that Assembly Bill 333
requires us to vacate James’s conviction on the gang offense and the true findings on the
gang-related enhancements, and we remand for further proceedings. We also direct the
court to stay James’s sentence on the great bodily injury enhancement. On remand,
James may ask the trial court to exercise its newly granted discretion under section 654.
We otherwise affirm the judgment.
BACKGROUND 1
I. The Shooting
The shooting at issue occurred in October 2015 outside a liquor store on the corner
of Kansas Avenue and Seventh Street in Riverside. Surveillance video from multiple
angles depicted the following events: At approximately 9:33 p.m., Francisco Ramirez
was standing on the corner outside the store, talking on a cell phone. Two northbound
cars on Kansas Avenue stopped at that intersection and turned left onto westbound
Seventh Street. Eddington was driving the lead car, and James was a passenger in that
car. Turner was driving the second car.2
1 As the parties acknowledge in their briefing, James’s two trials involved substantially the same evidence. To the extent that there were material differences in the evidence, we note them.
2 The identities of the drivers and shooters is not evident from the surveillance video alone. But on appeal neither party disputes that Eddington was driving the lead car and was a shooter, and James concedes for purposes of his substantial evidence challenges
3
Eddington pulled over to the right on Seventh Street, and James exited the car.
Turner passed Eddington, made a u-turn, and pulled over on the opposite side of Seventh
Street from Eddington’s car. James walked east toward the corner where Ramirez was
standing. Turner turned off her headlights and drove forward slowly, following James
from across the street.
In the meantime, Esteban Domingo and Juan Bartolo were on Kansas Avenue
walking south toward Ramirez.3 They turned right at the corner onto Seventh Street. As
they walked west away from Ramirez, James walked in between them heading toward
Ramirez. James walked a few steps past Ramirez, turned around, and came up behind
Ramirez. He appeared to say something to Ramirez, who tried to walk away. James took
his right hand out of his sweatshirt pocket, put it to Ramirez’s head, and shot Ramirez.
Bartolo and Domingo turned around to look behind them. James jogged toward
them and Eddington’s car, which was still parked on the north side of Seventh Street. As
Bartolo and Domingo moved apart to let James through, Eddington exited his car. James
jogged between Bartolo and Domingo, and Eddington then fired at the two men. They
that he was the passenger in the lead car and was also a shooter. In addition, neither party disputes on appeal that Turner was driving the second car. After describing the shooting, we summarize the evidence establishing James’s identity.
In James’s first trial, James and Turner were tried jointly but before separate juries. We decided Turner’s appeal from the judgment in June 2022. (People v. Turner (June 20, 2022, E075454) [nonpub. opn.].) Our opinion in Turner’s appeal discussed the evidence at the first trial establishing Turner’s identity and role as the second driver.
3 In the record, Domingo is also referred to by other names, such as Antonio Jose Domingo and Domingo Esteban.
4
both fell to the ground. James and Eddington quickly got into the car, made a u-turn, and
drove off. Turner was at the corner of Kansas Avenue and Seventh Street, made a u-turn,
and then made another u-turn to follow Eddington’s car away from the scene.
Bartolo and Domingo died from their gunshot wounds. Ramirez survived the
shooting but was unconscious for over a week. He testified at the first trial but not at the
second trial. He said that when he awoke in the hospital, he gave a written statement
about the shooting to the police. In the written statement, Ramirez said that a Black man
threatened to kill him if he did not give the man money. When testifying, Ramirez could
not remember any other details about the shooting, and he did not identify James as the
shooter.
II. The Investigation
A forensic specialist found .40-caliber cartridge casings in the area where
Eddington fired on Bartolo and Domingo. The specialist also found a nine-millimeter
casing near the corner where James shot Ramirez.
Law enforcement analyzed the call detail records for James’s and Eddington’s cell
phones on the night of the shooting. About 30 minutes before the shooting, at 9:05 p.m.,
James’s cell phone connected to a cell tower roughly 11 blocks from the crime scene.
The next activity on his phone occurred at 9:46 p.m., shortly after the shooting. His
phone connected to another tower near the crime scene. That tower provided coverage at
the crime scene and the surrounding area. At 8:44 p.m., Eddington’s phone connected to
a tower that was approximately six and one-half blocks from the crime scene. The next
activity on his phone that night occurred at 10:22 p.m., well after the shooting.
5
In 2016, law enforcement had wiretaps on James’s and Eddington’s cell phones
and conducted a number of interviews to stimulate wire conversations. To start, officers
interviewed Kayliegh Gallegos in late August 2016. Gallegos is James’s former
girlfriend and the mother of his child. The officers showed her surveillance video of the
shooting.
Right after the interview, Gallegos called James. She told James: “[T]hey have
surveillance of you, Antoine.” James asked what she meant, and she replied: “They
show—he even showed me surveillance tapes of you—of—of someone who—with—
who looks just like you.” Gallegos further explained: “[F]rom a glimpse, it looks just
like you, but I can—I know it wasn’t you.” She said that she told the officers the man in
the surveillance video was not James. He asked what the officers said and if he had to
turn himself in. Gallegos replied that they were “not saying nothing” and that they were
still investigating. During the call, Gallegos did not mention the location of the shooting
or Kansas Avenue.
James called T.W. Smith after talking to Gallegos. James and Smith belonged to
the same gang, the 1200 Blocc Crips. (We discuss the gang evidence in the following
subpart.) James said that the officers showed Gallegos “the video of that shit on the
corner of Kansas.” James asked Smith if he knew anyone who could get a false ID and
indicated that he was thinking about fleeing.
Shortly after the call with Smith, James called Gallegos. They discussed the video
again. Gallegos said that “at first glance,” the man looked “just like” James, but she
knew that it was not him. He asked how she knew it was not him and if there was
6
something she could “recognize off top” to show that it was not him. Gallegos said that
the man looked like “the one with the twin,” who looked just like James. James asked if
she saw “the tattoos on the eyes.” (James has “12” tattooed under one eye and “00”
tattooed under the other.) Gallegos responded that she could not see the man’s eyes. She
also said that the man did not walk like James, and James did not have a jacket like the
man’s.
According to Gallegos’s trial testimony, she did not recognize anyone in the
surveillance video, and she told the officers that the man in the video did not resemble
James. She was not “in the right state of mind” when she called James after the law
enforcement interview, because she was addicted to methamphetamine at the time. She
told him that the officers had surveillance video of him because that is what they told her,
but she did not believe that it was him in the video. She did not know that her phone
calls with James were being recorded.
Gallegos further testified that she was shocked and concerned when the officers
came to her home. She was worried about James because they had a child together, she
cared about him, and she did not want something bad to happen to him. Even if she had
recognized James in the video, she probably would not have said that it looked like him,
because she did not want anything to happen to him.
After James’s second call with Gallegos, James and Smith spoke on the phone
again. James told Smith what Gallegos had said about the video. Smith said that
somebody had “loose lips” and “they [were] building,” but nothing “concrete” was
7
“going on.” Smith added that “the snitches have said what they had to say already.”
James again indicated that he was thinking about fleeing.
In early September 2016, the Riverside Police Department updated its social
media pages with photographs and surveillance video from the shooting, and the
department asked for the public’s help in solving the crime. The social media posts also
described one of the involved cars as dark-colored and similar to a Dodge Charger.
James called Eddington on the day of the social media postings. James said that
someone was “bumping their gums” and referred to “the three-banger.” He also said: “I
know they’re coming. Sooner or later, they’re coming, bro.” Eddington advised James
to “have that alibi ready.” James asked Eddington to “look on that—that get-down” to
see if “the marks on . . . the eyes” were visible. Eddington assured him: “No, you don’t
see, bro. I looked at it ev—it’s too blurry.” Eddington said that James only had to worry
about someone “bumping his gums and saying, ‘It was Antoine.’” James replied that
nobody could say that “but those people.”
Two days later, officers interviewed Turner and her mother. Turner’s mother
called James afterward. Soon after that call, James called Eddington twice. In the first
call, James urged Eddington to get rid of his car and said that “[t]hey went and hollered
at” Turner and her mother. Eddington replied that law enforcement was looking for a
Dodge Charger, and his car was not a Charger. (Eddington owned a Chevy Malibu.)
James persisted and suggested that Eddington paint the car. In the second call, Eddington
suggested that he get into a car accident to dispose of his car. They also discussed the
video that had been posted online, and Eddington was “laughing to [him]self” because
8
there was “no way” anyone could be identified in the video. Eddington stated that there
was “only one person there that could have said . . . anything.” James agreed and said
that the person “don’t talk.” James also told Eddington that it was good Turner’s mother
had talked to the officers, because she relayed a conversation to him that “opened up a lot
of shit.” James said that he was worried.
In September 2016, officers also interviewed Antoine Cross, another of James’s
fellow gang members. Cross went by the moniker Baby Gunz or BG. After that
interview, Eddington called James. Eddington said that officers had talked to BG.
According to BG, the officers knew Eddington’s name, and somebody was “singing.”
Eddington said that no one could “point a finger” other than “our circle.” James advised
him to be prepared. Eddington responded that he was “trying to figure something” out
and that he had already talked to his mother. That same day, law enforcement installed a
tracker on Eddington’s car.
Several days later, law enforcement interviewed Turner’s mother again. James
and Eddington talked yet again that day. James indicated that the officer and Turner’s
mother “spoke on a black vehicle.” Eddington replied: “[I]t’s already about to be gone.
Don’t trip.” The next day, the tracker on Eddington’s car showed that the car moved to a
hospital parking lot, where it remained for several days. The car then moved to a location
2.5 hours away. The tracker’s battery died at some point after that, so law enforcement
lost track of the car.
In December 2016, Eddington died in a shootout with law enforcement officers
who were attempting to serve a warrant for his arrest.
9
III. Gang Evidence
Detective David Riedeman of the Riverside Police Department testified as the
People’s gang expert. Riedeman started working for the department in 2000 as a patrol
officer. He began talking to gang members while working patrol, and he first became
familiar with the 1200 Blocc Crips when he patrolled the gang’s territory. He was
eventually promoted to a detective in the gang unit, where he worked in 2015. The gang
unit covered all of the gangs in Riverside.
Patrol officers frequently informed the gang unit about what was happening on the
streets. The patrol officers also sent the gang unit reports of crimes that the officers
believed were gang related. Each of the six detectives in the gang unit, including
Riedeman, reviewed all of those reports. As a group, the gang unit determined whether
to seek gang charges or gang enhancements in connection with the crime reports. Also,
the detectives in the robbery/homicide unit frequently called on the gang unit for
assistance.
Riedeman developed reliable confidential informants while in the gang unit. The
informants were active associates or gang members who provided the unit with
information, typically in exchange for money. He also listened to phone calls of
suspected gang members, recorded by wiretap or while the suspects were in jail. The
detectives in the gang unit “were a very tight team.” They shared the intelligence that
they gathered from informants and recorded calls.
Riedeman opined that James and Eddington were members of the 1200 Blocc
Crips gang and that Turner was an associate of the gang. The 1200 Blocc Crips are a
10
predominantly Black gang whose territory is on the east side of Riverside. In 2015, there
were 150 documented members of the gang. The gang’s primary criminal activities were
sales of narcotics, violent assaults, and possession of firearms. Riedeman identified four
“predicate offenses” for which 1200 Blocc Crips members were convicted—a multiple
murder in 2008, an attempted murder in 2009, and two cases of felon in possession of a
firearm in 2012.
The Bogarts were a “squad” of the 1200 Blocc Crips. A squad is a group of
people within the gang who work together and “do[] their own thing.” James was the
leader of the Bogart squad. In an April 2015 video found on James’s phone, James
identified himself as the “General” of the squad. Members of the squad referred to each
other as “Bogart.” Eddington’s moniker was Neff Bogart, and Turner’s moniker was
Princess Bogart.
Law enforcement downloaded a copy of James’s cell phone in July 2015. In May
2015, Eddington sent James a text message stating: “Bogart please keep my engine wit
you when you leave out here leave it wit twin no one else please.” 4 Riedeman opined
that “engine” meant a firearm. He explained that gang members rarely referred to
weapons by their true names and instead used “different terms” to refer to them.
Eddington also texted James in June 2015 and asked James to get his “clip” from another
1200 Blocc Crips member. A few days later, Eddington texted again, asking if James had
4 We quote James’s text messages as they appear in the record, including any typographical errors.
11
talked to their fellow gang member, because Eddington “need[ed] that oil pan foe the
engine.” Riedeman opined that “clip” and “oil pan” referred to a magazine for a firearm.
East Side Riva, a Hispanic gang, is a rival of the 1200 Blocc Crips. The two gangs
claim the same general territory, but each gang has its own strongholds in the area. The
shooting in this case occurred at an East Side Riva stronghold.
The rivalry between the 1200 Blocc Crips and East Side Riva dated back to a
conflict in the early 1990’s. The violence between the gangs escalated over the years
from assaults or fights to shootings and killings. By 2015, East Side Riva was assaulting
random Black men in 1200 Blocc Crips’ territory, even if those men were not gang
members. The 1200 Blocc Crips were also assaulting and killing random Hispanic men.
Riedeman opined that a 1200 Blocc Crips member would earn respect within the gang for
killing a Hispanic male, even if the victim were not a gang member. (There was no
evidence that the three victims in this case were gang members.) The killing would also
benefit the gang by strengthening its violent reputation and inspiring fear in the
community. In response to a hypothetical question mirroring the facts of this case,
Riedeman opined that the shooting was committed for the benefit of a criminal street
gang.
Riedeman testified that gang members are always watching each other’s backs and
that they are expected to back each other up when violence erupts. If a person failed to
back up a fellow gang member, that person would lose respect within the gang, and the
gang could discipline that person by administering a “beatdown.”
12
IV. Evidence of Prior Shootings
At the first trial, the People introduced evidence of three prior shootings. The
People introduced evidence of only two of those shootings at the second trial.
A. Santa Ana Shooting (First and Second Trial)
On April 27, 2015, a 1200 Blocc Crips member performed at a concert venue in
Santa Ana. Several hundred people were at the venue, including numerous 1200 Blocc
Crips members. Officers responded to a call about multiple fights at the location. A few
minutes after the officers arrived at 10:34 p.m., they heard approximately 15 gunshots
coming from an overflow parking lot. Four nine-millimeter shell casings found at that
parking lot were fired from the same gun that shot Ramirez.
James’s text messages showed him making plans to attend the concert in Santa
Ana. His cell phone contained a video file recorded on April 27, 2015, at 10:43 p.m.
The video depicted only a black screen, as though the camera lens were covered, but the
phone also recorded audio. In the 12-second recording, a man could be heard referring to
people “coming our way,” and then another man referred to the people being “right
there.” The men used racial and homophobic slurs to refer to the people who were
approaching. One second after that, six gunshots rang out.
James received a text message at 11:11 p.m. that night, stating: “Just left. Okay
for you you to leave. Cops posted out front. People leavingouttheback.” James replied:
“I’m outta there bloec.”
13
B. Vermont Street Shooting (First and Second Trial)
Approximately three hours after the Santa Ana shooting, at roughly 1:44 a.m. on
April 28, 2015, a shooting occurred at Vermont Street and Eucalyptus Avenue in
Riverside. That intersection is a stronghold of the 1200 Blocc Crips. Officers found 12
nine-millimeter shell casings at the scene and 11 other casings. Three of the nine-
millimeter casings were fired from the same gun that shot Ramirez.
At 1:57 a.m. on April 28, 2015, James received a text message asking where he
was. James responded: “‘On the V.’” The 1200 Blocc Crips referred to Vermont Street
as “the V.”
Willie Meadows is James’s cousin and an inactive 1200 Blocc Crips member. The
People and James stipulated that Meadows was present during the April 28 shooting on
Vermont Street. They also stipulated that James admitted to being with Meadows on the
night of the shooting. James was never arrested in connection with the Vermont Street
shooting.
C. Twelfth Street Shooting (First Trial Only)
A shooting occurred on July 17, 2015, at around 12:26 a.m., near Twelfth Street
and Kansas Avenue in Riverside. The victim of the shooting died from multiple gunshot
wounds.
Law enforcement interviewed James about the shooting, but he was never arrested
for the victim’s murder. James said that on July 17, 2015, he was in Victorville with
Gallegos. However, call detail records for his cell phone showed that he was in Moreno
Valley on July 17. More specifically, seven minutes after the shooting, his phone
14
connected to a cell tower in Moreno Valley. A few minutes after that, his phone
connected to a tower near his Moreno Valley home.
Turner’s mother and James exchanged text messages between 12:38 a.m. and
12:54 a.m. on July 17. She had heard about shots at “‘12 & Kansas’” where “‘a Mexican
was hit.’” James said that he was not ‘“out that way.”’
A few hours later, at 3:07 a.m., James received a text message from another sender
stating: “‘Cuz all tools are accounted for. East Cyde Bro.’” James and Eddington
exchanged text messages later that morning, starting at 7:04 a.m. Eddington texted
James: “‘Better thank God you didn’t use your Weed Eater chyt would of blew up.’”
Eddington also mentioned the weed eater being rusted and the “‘Batteries’” on the
“‘beam’” being dead. Eddington then texted: “‘Haha so my Weed Eater cut grass good
huh.’” James replied: “‘Yessssir.’” The lead investigator was interested in those text
messages because James and Eddington appeared to be talking in code about something
other than weed eaters.
V. Relevant Procedural Background
The People charged James with five offenses: the murders of Bartolo and
Domingo, the attempted premeditated murder of Ramirez, active participation in a
criminal street gang, and possession of a firearm by a felon. (§§ 186.22, subd. (a), 187,
subd. (a), 189, subd. (a), 664, 29800, subd. (a)(1).) In connection with the murder counts,
the information also alleged that James committed multiple murders (multiple murder
special circumstance); that Bartolo and Domingo were intentionally killed because of
their race, color, religion, or national origin (hate crime special circumstance); and that
15
they were intentionally killed while James was an active participant in a criminal street
gang (gang special circumstance). (§ 190.2, subd. (a)(3), (a)(16), (a)(22).) In addition,
the information alleged gang and firearm enhancements with the murder and attempted
murder counts and an enhancement for great bodily injury with the attempted murder
Assembly Bill 333 made numerous changes to section 186.22 that took effect after
James’s trials. (People v. E.H. (2022) 75 Cal.App.5th 467, 477 (E.H.).) The judgment in
this case is not final, so the amendments apply here. (People v. Tran (2022) 13 Cal.5th
1169, 1206 (Tran).)
Assembly Bill 333 made the following changes to section 186.22: “First, it
narrowed the definition of a ‘criminal street gang’ to require that any gang be an
‘ongoing, organized association or group of three or more persons.’ (§ 186.22, subd. (f),
italics added.) Second, whereas section 186.22, former subdivision (f) required only that
a gang’s members ‘individually or collectively engage in’ a pattern of criminal activity in
order to constitute a ‘criminal street gang,’ Assembly Bill 333 requires that any such
pattern have been ‘collectively engage[d] in’ by members of the gang. (§ 186.22, subd.
(f), italics added.) Third, Assembly Bill 333 also narrowed the definition of a ‘pattern of
criminal [gang] activity’ by requiring that (1) the last offense used to show a pattern of
criminal gang activity occurred within three years of the date that the currently charged
offense is alleged to have been committed; (2) the offenses were committed by two or
more gang ‘members,’ as opposed to just ‘persons’; (3) the offenses commonly benefitted
a criminal street gang; and (4) the offenses establishing a pattern of gang activity must be
ones other than the currently charged offense. (§ 186.22, subd. (e)(1), (2).) Fourth,
Assembly Bill 333 narrowed what it means for an offense to have commonly benefitted a
street gang, requiring that any ‘common benefit’ be ‘more than reputational.’ (§ 186.22,
subd. (g).)” (Tran, supra, 13 Cal.5th at p. 1206.)
45
Those new definitions of “criminal street gang,” “pattern of criminal gang
activity,” and “common benefit” added elements to the substantive gang offense and the
gang enhancement that did not exist at the time of James’s trials. (§ 186.22, subds. (a),
(b)(1), (e)(1), (2), (f), (g); E.H., supra, 75 Cal.App.5th at p. 479.) The People thus were
not required to prove those additional elements, and the court did not instruct the jury on
them. We must reverse “unless ‘it appears beyond a reasonable doubt’ that the jury
verdict would have been the same in the absence of the error.” (Tran, supra, 13 Cal.5th
at p. 1207.)
We cannot conclude that the failure to require proof of the new elements was
harmless beyond a reasonable doubt. For instance, Riedeman testified at both trials about
predicate offenses committed by 1200 Blocc Crips members, the latest one occurring on
October 21, 2012. The charged offenses occurred on October 23, 2015. The last
predicate offense therefore fell just outside the three-year period for offenses used to
establish a ‘“pattern of criminal gang activity.”’ (§ 186.22, subd. (e)(1).) Moreover,
although the evidence showed that in the predicate cases a gang enhancement had also
been found true, there was no evidence that the benefit from the predicate offenses was
“more than reputational.” (§ 186.22, subd. (e)(1).) Because of those deficiencies in the
evidence, the failure to require proof of the new elements was not harmless.
“The proper remedy for this type of failure of proof—where newly required
elements were ‘never tried’ to the jury—is to remand and give the People an opportunity
to retry the affected charges” and enhancement allegations. (E.H., supra, 75 Cal.App.5th
at p. 480.) James argues that remand for retrial would be an idle act because Riedeman
46
conceded that he was unable to locate any other predicate offenses, but the argument
lacks merit. At the first trial, before Riedeman testified about each of the predicate
offenses, the People showed him the conviction packets for the offenses and asked: “And
are these predicate offenses that you were able to find for the 1200 Blocc Crips?” He
replied: “Yes.” James’s concludes from that testimony that there were no other
qualifying predicate offenses. That inference is not reasonable. The People were not
required to present evidence of every possible predicate offense, and they had no notice
that they needed to offer evidence of a more recent one to establish a pattern of criminal
activity. On remand, if the People cannot find evidence of a more recent predicate
offense, then they may elect not to retry James on the affected offense and enhancements.
But they are entitled to the opportunity. (E.H., at p. 480.) We therefore vacate James’s
conviction under section 186.22, subdivision (a), and the true findings under section
186.22, subdivision (b)(1)(C), and remand for further proceedings.
The firearm enhancements associated with the two murder counts are also
affected, because the enhancement statute expressly incorporates section 186.22. (People
v. Lopez (2021) 73 Cal.App.5th 327, 346, 348 (Lopez).) “Section 12022.53 provides for
sentence enhancements for the use of firearms in the commission of an enumerated
felony.” (Id. at p. 347.) As relevant here, subdivision (d) of the statute adds a
25-year-to-life enhancement for a person who “personally and intentionally discharges a
firearm and proximately causes great bodily injury . . . or death” during the commission
of an enumerated offense. (§ 12022.53, subd. (a).) Subdivision (e)(1) of the statute
“imposes vicarious liability” on someone who aids and abets the enumerated offense
47
under gang-related circumstances. (People v. Garcia (2002) 28 Cal.4th 1166, 1171.)
Specifically, the court may impose the 25-year-to-life enhancement on any principal who
“violated subdivision (b) of section 186.22,” so long as some principal in the offense
personally used a firearm as defined in subdivision (d). (§ 12022.53, subd. (e)(1)(A),
(B).) Accordingly, imposition of the vicarious firearm enhancement requires proof of the
new elements of the gang enhancement (§ 186.22, subd. (b)(1)). (Lopez, supra, at
pp. 347-348.)
The jurors found that James was “a principal” in the murders of Bartolo and
Domingo and that “someone who was a principal” in the murders “personally and
intentionally discharged a firearm and proximately caused great bodily injury or death.”
They separately found true the gang enhancement allegations associated with each
murder count. The court thus imposed the vicarious firearm enhancement under section
12022.53, subdivision (e)(1), in connection with each murder count. Assembly Bill 333’s
changes to section 186.22 require us to vacate those firearm enhancements as well.
(Lopez, supra, 73 Cal.App.5th at pp. 347-348.)
James argues that we should also vacate the firearm enhancement associated with
the attempted murder count, but we disagree. The jurors did not find James vicariously
liable for that firearm enhancement. The court properly instructed them on the personal
use enhancement in section 12022.53, subdivision (d). (CALCRIM No. 3149.) The
jurors found that in the commission of the attempted murder, James “personally and
intentionally discharge[d] a firearm and proximately caused great bodily injury or death
to another person, not an accomplice, within the meaning of [section] 12022.53,
48
subdivision (d).” That subdivision does not incorporate section 186.22, so Assembly Bill
333 provides no reason to vacate the jury’s finding.5 (Lopez, supra, 73 Cal.App.5th at
p. 348.) The verdict form also cited subdivision (e) of section 12022.53, but the jurors
made no vicarious liability findings, in contrast to their findings on the verdict form for
the other firearm enhancements. We may disregard any technical or clerical error in
citing subdivision (e), given that the jury clearly intended to find James liable for
personally using a firearm under subdivision (d). (People v. Camacho (2009) 171
Cal.App.4th 1269, 1272-1273.)
In sum, Assembly Bill 333 requires us to vacate James’s conviction under section
186.22, subdivision (a), the gang enhancements under section 186.22, subdivision
(b)(1)(C), and the vicarious firearm enhancements under section 12022.53, subdivision
(e)(1). On remand, the People shall have the opportunity to retry that offense and those
enhancements.
5 James also argues that we should vacate the personal use firearm enhancement for reasons unrelated to Assembly Bill 333. He claims that the People pled only the vicarious firearm enhancement in the attempted murder count, so he did not have fair notice that he faced the personal use firearm enhancement. James has forfeited the argument. Assuming for the sake of argument that the information did not plead the personal use enhancement, James had fair notice that he was facing that enhancement when the hearings on jury instructions and verdict forms occurred . The People explained that in connection with the attempted murder count, they were alleging that James had personally used a firearm under subdivision (d) of section 12022.53. When the court asked about giving the pattern jury instruction on that enhancement (CALCRIM No. 3149), defense counsel answered: “No objection.” Similarly, when discussing the verdict form for that enhancement, the People explained that they had drafted the form to reflect liability under section 12022.53, subdivision (d), as opposed to subdivision (e). James did not object. His failure to raise an objection at that point forfeited the claim. (People v. Houston (2012) 54 Cal.4th 1186, 1227-1228.)
49
VI. Substantial Evidence of the Gang’s Primary Activities
James argues that there was not substantial evidence in the second trial to establish
the primary activities element of the gang enhancement. Consequently, he argues that we
must vacate the gang and vicarious firearm enhancements attached to his murder
convictions. If James is correct that the evidence is insufficient even under the former
version of section 186.22, then double jeopardy principles would prohibit retrial of the
enhancements. (People v. Vasquez (2022) 74 Cal.App.5th 1021, 1033; People v. Sek
(2022) 74 Cal.App.5th 657, 669 (Sek).) We conclude, however, that James’s argument
lacks merit.
Section 186.22 provides for enhanced punishment when the defendant commits an
enumerated felony “for the benefit of, at the direction of, or in association with a criminal
street gang.” (§ 186.22, subd. (b)(1).) To qualify as a criminal street gang, an
organization’s “primary activities” must include committing one or more of the crimes
specified in section 186.22, subdivision (e). (§ 186.22, subd. (f).) Although numerous
offenses qualify as primary activities, the court here instructed the jury on only four
qualifying offenses—burglary (§ 459), assault with a firearm (§ 245, subd. (a)(2)), sales
of narcotics (Health & Saf. Code, § 11378), and robbery (§ 211). (§ 186.22, subd.
(e)(1)(A), (B), (D), (K).) The People may prove a gang’s primary activities through
expert testimony. (People v. Sengpadychith (2001) 26 Cal.4th 316, 324; People v. Duran
(2002) 97 Cal.App.4th 1448, 1465 (Duran).)
On this record, there was substantial evidence establishing the primary activities
element of the gang enhancement. Sales of narcotics qualify as a primary activity of a
50
criminal street gang, and the jury was so instructed. Riedeman testified that the primary
activities of the 1200 Blocc Crips included sales of narcotics. And his testimony about
his experience provided an adequate foundation for his opinion: The gang unit
investigated all of the gangs in Riverside, which included the 1200 Blocc Crips.
Riedeman first became familiar with the 1200 Blocc Crips when he worked their territory
as a patrol officer. He started talking with gang members while in the patrol unit. Once
he became a detective in the gang unit, he learned information from his own sources and
investigations but also by sharing intelligence with every other gang detective. The
patrol officers sent the gang unit reports of every crime that the patrol officers believed
was gang related. Riedeman reviewed those reports and helped determined whether to
pursue gang charges or enhancements in those cases. All of that was the type of
information on which gang experts may reasonably rely in forming their opinions.
(People v. Gardeley (1996) 14 Cal.4th 605, 620, disapproved on other grounds by People
v. Sanchez (2016) 63 Cal.4th 665, 686, fn. 13; Duran, supra, 97 Cal.App.4th at p. 1465.)
James acknowledges that the People may rely on expert testimony to prove a
gang’s primary activities. But he argues that Riedeman was testifying as a lay witness—
not an expert—because when the prosecutor asked Riedeman what the gang’s primary
activities were, Riedeman responded: “Just based on what I saw[,] was drugs, possession
of firearms, violent assaults.” James asserts that what a witness “personally saw” is lay
testimony.
That prefatory phrase did not transform Riedeman’s testimony into lay opinion.
Lay opinion must be “based on the perception of the witness” (Evid. Code, § 800), but an
51
expert witness’s opinion may also be “[b]ased on matter . . . perceived by or personally
known to the witness” (Evid. Code, § 801, subd. (b)). Consequently, the fact that
Riedeman personally perceived some or all of the information on which he based his
opinion did not automatically render his testimony lay opinion.
For these reasons, substantial evidence established that the gang’s primary
activities consisted of one or more qualifying offenses.
VII. Great Bodily Injury Enhancement
The parties agree that the court erred by failing to stay James’s sentence on the
great bodily injury enhancement. We concur. In connection with the attempted murder
count, the court imposed a consecutive three-year term under section 12022.7 for
personally inflicting great bodily injury. The court also imposed punishment under
section 12022.53, subdivision (d), for personally using a firearm. But “[a]n enhancement
for great bodily injury as defined in Section 12022.7 . . . shall not be imposed on a person
in addition to an enhancement imposed pursuant to subdivision (d)” of section 12022.53.
(§ 12022.53, subd. (f).) Accordingly, we direct the trial court to stay the three-year
prison term imposed under section 12022.7. (People v. Garcia (2017) 7 Cal.App.5th
941, 948-949.)
VIII. Amendment to Section 654
Under section 654, the court stayed James’s sentence on his convictions for active
participation in a criminal street gang and possession of a firearm by a felon. James
argues that we should remand for the trial court to exercise its discretion under amended
section 654. Former section 654 provided that an act punishable by more than one
52
provision of the law “shall be punished under the provision that provides for the longest
potential term of imprisonment” but could not be punished under more than one
(Assembly Bill 518) removed the requirement that the court impose the longest term.
(Sek, supra, 74 Cal.App.5th at p. 673.) Thus, effective January 1, 2022, section 654
permits a defendant whose single act is punishable by multiple provisions to “be
punished under either of such provisions.” (§ 654, subd. (a).)
The People concede that Assembly Bill 518 applies retroactively to the nonfinal
judgment in this case, and we agree. (People v. Mani (2022) 74 Cal.App.5th 343, 379.)
But they argue that a remand for the court to exercise its discretion would be an idle act.
In light of our remand for further proceedings on the gang conviction and the gang
enhancements, we need not resolve the parties’ dispute over whether remand is
independently necessary on the section 654 issue. On remand, James may ask the court
to exercise its discretion under amended section 654.
DISPOSITION
We vacate James’s conviction for active participation in a criminal street gang
(§ 186.22, subd. (a)), the true findings on the gang enhancements (§ 186.22, subd.
(b)(1)(C)) attached to the murder and attempted murder counts, and the true findings on
the firearm enhancements (§ 12022.53, subd. (e)(1)) attached to the murder counts. We
remand to the trial court to (1) give the People the opportunity to retry the offense and
enhancements under the new law as amended by Assembly Bill 333, or (2) impose
appropriate dispositions should the People choose not to proceed with retrial. In addition,
53
on remand, the trial court is directed to stay execution of the three-year enhancement
imposed under section 12022.7, subdivision (a). The court may also exercise its
discretion under section 654 as amended by Assembly Bill 518. In all other respects, the
judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ J.
We concur:
RAMIREZ P. J. RAPHAEL J.
54
AI Brief
AI-generated · verify before citing
Holding. The court vacated the defendant's conviction for active participation in a criminal street gang and the associated gang enhancements due to changes in law under Assembly Bill 333, while affirming the murder and attempted murder convictions. The case was remanded for resentencing, including instructions to stay the sentence on the great bodily injury enhancement and to allow the trial court to exercise its discretion under amended section 654.
Issues
Whether substantial evidence supports the defendant's murder convictions under theories of aiding and abetting and premeditation.
Whether Assembly Bill 333 requires reversal of the gang offense and gang-related enhancements.
Whether the trial court erred in failing to stay the sentence on the great bodily injury enhancement.
Whether the case should be remanded for the trial court to exercise its discretion under amended section 654.
Disposition. Affirmed in part, vacated in part, and remanded with directions.
Quotations verified verbatim against the opinion
“We agree that Assembly Bill 333 requires us to vacate James’s conviction on the gang offense and the true findings on the gang-related enhancements, and we remand for further proceedings.”
“We also direct the court to stay James’s sentence on the great bodily injury enhancement.”
“On remand, James may ask the trial court to exercise its newly granted discretion under section 654. We otherwise affirm the judgment.”