Filed 9/7/18 P. v. Avila CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Theodore M. Weathers, Judge. Affirmed in part, modified in part, and remanded for resentencing.

Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, A. Natasha Cortina, Christine Bergman and Annie Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.

In June 2014, Jose Angel Avila, a felon and active member of the Otay criminal street gang, walked up to two members of a rival gang sitting in a truck and shot at them with a rifle, severely injuring one. A few days later, Avila approached another group of individuals in a parking lot in the Otay gang's territory and shot at them with the same rifle, killing one and severely injuring another. Thereafter, the police searched Avila's residence and discovered the rifle, ammunition, and gang paraphernalia. A jury subsequently found Avila guilty on numerous charges related to the weapons and the two shootings, and found a number of associated allegations true, including that Avila used a firearm during the commission of certain felonies, and that the first shooting was committed for the benefit of a criminal street gang. However, the jury could not reach an agreement regarding allegations that the second shooting was also committed for the benefit of the gang, so the court dismissed those allegations.

On appeal, Avila contends the trial court erred by: (1) excluding evidence that he had been the victim of gang violence in the past and therefore lived in a constant state of hyper-vigilance; (2) providing instructions to the jury regarding mutual combat and contrived self-defense; and (3) admitting records showing he pled guilty to one count of assault with a deadly weapon for the benefit of a criminal street gang in 2003. We find no reversible error with respect to these arguments and the guilt phase of trial.

However, Avila also asserts, and the state concedes, that the abstract of judgment must be modified to reflect the oral pronouncement of a sentence of 14 years to life, as opposed to 15 years to life, for count 7, and that the case should be remanded for the limited purpose of permitting the trial court to exercise discretion to strike or dismiss certain firearm enhancements in light of the recent amendment to Penal Code[1] sections 12022.53, subdivision (h) and 12022.5, subdivision (c). We agree and therefore remand the matter to the superior court for the limited purpose of resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

Avila has been a member of the Otay criminal street gang since at least 2003. That year, he pled guilty to a charge of assault with a deadly weapon in violation of section 245, subdivision (a), and admitted that he committed the assault for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1).

The Otay criminal street gang has a long-standing violent rivalry with the Varrio Chula Vista (VCV) criminal street gang. The territories of the two gangs border one another and members of each gang regularly commit assaults, robberies, and murders against members of the other gang to gain stature within their own gang.

In June 2014, two Otay gang members, "Chuyito" and "Ratoon", or "Raton", were murdered. Although no arrests were made at the time, the main suspects were VCV gang members. Avila was friends with both victims and made statements suggesting he planned to avenge their deaths by going after VCV gang members.

July 26, 2014 Mankato Street Shooting

On July 26, 2014, just after midnight, influential VCV gang member Alfredo "Blinky" G.[2] drove a friend's truck to an apartment building on Mankato Street in VCV gang territory and, as he pulled up, he noticed Avila walking down the street. Avila was wearing a wig and a red Boston Red Sox hat with a "B" on it, which Blinky recognized as a symbol for a clique within the Otay gang that Avila belonged to known as "River Bottom". Avila turned and looked at Blinky and then walked away towards a side street. Blinky attempted to follow Avila but lost sight of him around the corner.

Approximately 20 minutes later, another influential VCV gang member, Luis "Maniac" B. arrived. Blinky told Maniac that he had seen Avila in the area, and then Blinky and Maniac went to sit in the truck to have a private conversation. Blinky sat in the driver's seat, Maniac sat on the passenger side, and both left the truck doors on their respective sides open.

A few minutes later, Blinky saw movement and noticed a person coming out of a nearby alley. He looked in the rearview mirror and saw Avila running towards the truck with a gun. Avila was wearing a bandana over his face but Blinky recognized the same clothes and same "B" hat he had seen when Avila walked by earlier that evening. Avila came up to the passenger side of the truck and shot at Blinky and Maniac with a gun that looked like a shortened rifle. Blinky heard Maniac say, "I've been shot" and jumped out of the truck and ran to the other side of the street to avoid the gunfire. Blinky was not hit but Maniac suffered a total of six gunshot wounds, including one to his abdomen that required immediate surgical intervention. Without surgery, Maniac likely would have died from his wounds.

The police recovered six spent .22 caliber Super-X shell casings from the scene. The placement of the casings suggested the shooter was likely on the sidewalk firing towards the vehicle. The police also took statements from the victims and witnesses. Initially, neither Blinky nor Maniac cooperated and, fearing retribution from other gang members, both said that they did not know the shooter. However, after the police offered him protective custody, Blinky agreed to work with law enforcement and identified Avila as the shooter.

August 1, 2014 Anita Street Shooting

At around 10:00 p.m. on August 1, 2014, less than a week after the first shooting, Avila and an associate encountered a group of approximately seven individuals, including brothers Sama W. and Fahu S., hanging out in a parking lot near some warehouses on Anita Street in Otay gang territory. Avila and the group approached one another and began to exchange words. Someone said, "what's up?" or "what's up with this life?", and Avila said, "what's up with that Chula Vista or VCV life?" Sama interpreted the statement as a gang challenge and replied, "Fuck that," meaning his group was not interested in any gang activity.[3] Avila then said, "What's up with this life?" and pulled up a firearm covered with a rag and started shooting. The members of the larger group turned and ran but Sama was shot in the leg and Fahu was shot in the back. Fahu died from the wound on the way to the hospital.

Officers responded to the scene and recovered a white t-shirt and eight .22 caliber Super-X and F shell casings. They later determined that the t-shirt had DNA from three individuals on it, and that Avila was one possible contributor. A medical examiner conducted an autopsy on Fahu and determined he was shot from more than a couple of feet away, as there was no soot or stippling around the wound in his back, and that he died from the wound.

Search of Avila's Residence

On August 13, 2014, members of the United States Marshal's Fugitive Task Force executed a search warrant on Avila's residence in cooperation with the Chula Vista police. Avila was living in the garage behind his sister's home at the time. The officers surrounded the property and waited until Avila arrived. They watched him enter the garage, along with several other individuals, and then immediately moved in, announcing that they were police and that they had a search warrant. Two individuals tried to run but the police intercepted them at the property line so they turned around and ran back into the garage.

The police yelled for the occupants to exit the garage and surrender, but no one came out, so the police entered and detained everyone except Avila, who was curled up in a fetal position on top of a 7-foot high shelf. The police told Avila to come down but he refused. Eventually, two of the officers managed to pull him down from the rafters.

During the subsequent search of the garage, officers located an inoperable gun, an ammunition can with various rounds of ammunition including mostly .22 caliber and shotgun rounds, and a black computer bag containing a Marlin Model 795 rifle with a modified butt stock and a shortened barrel, a knife, a wig, a camouflage bandana, and a t-shirt with dried blood stains on it. The rifle magazine was loaded with eight rounds, six bearing an "F" on the base and two bearing a "Super-X" label. DNA collected from the rifle and the wig matched Avila's DNA, with the probability of a random match being 1 in 1.7 quintillion.

In addition, the police recovered a map depicting the area surrounding the Anita Street shooting, notebooks with gang writing, photographs depicting Avila and others making gang signs, and a laptop computer. A forensic examination on the computer revealed photographs of graffiti, weapons, and people making gang signs, as well as evidence that searches for "recent shootings in Chula Vista" and "recent shootings in National City" were conducted on August 4 and August 8, 2014, respectively, and that the laptop had been used to access a newspaper article about the Anita Street shooting.

Avila was charged with numerous felonies related to the two shootings and the weapons recovered from his residence.

Admissions Made by Avila

At trial, Jonathan V., a former gang member and friend of Avila's that was present on the day the police searched the garage, testified that Avila had shown him the computer bag with the .22 caliber rifle, the wig, and the camouflage bandana, and that Avila said he carried the bag with him every time he left the house. Avila had also shown Jonathan an article about the Anita Street shooting and told Jonathan that he was responsible and had killed one person and injured another. Finally, Avila told Jonathan that he shot Blinky and Maniac while they were sitting in a car, and that he used the same gun for both shootings. Jonathan was previously a member of another gang but was no longer associated with the gang by the time of trial and did not receive any benefit from testifying.

After his arrest in August 2014, Avila was incarcerated with Francisco L., a former Otay gang member. Avila told Francisco that he had shot Blinky and Maniac, two high ranking members of the VCV gang, to avenge Raton's death, and that he had shot at some guys hanging out behind some warehouses that he thought were VCV gang members and had murdered one of them. Francisco was released from jail before the trial in the present case began and Avila asked him to get a copy of Jonathan's statement to law enforcement and to show it to Jonathan's cousin, to let him know the gang knew about it and to encourage Jonathan to recant. Francisco agreed to do so and had a copy of the statement in his possession when he was contacted by law enforcement a few days later.

Adrian L., a former VCV gang member, was also incarcerated with Avila in late 2014. Although they were from rival gangs, Adrian and Avila spent time together in prison. Avila told Adrian about his case and that he shot at Blinky and Maniac because they were "bigger fish" in the VCV gang but that only Maniac got hit and did not die. Avila also said that he shot at a group of four or five people on Anita Street after asking them "How's the Chula Vista life?", that two people got hit, and that one person died. Adrian agreed to testify in exchange for a reduced sentence on a voluntary manslaughter charge in an unrelated case.

Defense

In his defense, Avila asserted the informants were not reliable, the prosecution failed to prove its case beyond a reasonable doubt, and, if he was involved in the Anita Street shooting at all, he was acting in self-defense or imperfect self-defense because the other individuals involved approached him in an aggressive manner. In addition, a friend that had arrived with Blinky on the night of the Mankato Street shooting testified that she thought the individual that walked by and later returned to shoot Blinky and Maniac was an Otay gang member that went by the name "Soldier", and not Avila. However, she also testified that she could not see the individual's face.

Verdict

The jury found Avila guilty of shooting at an occupied vehicle in violation of section 246; three counts of attempted murder (Blinky, Maniac, and Sama) in violation of sections 664 and 187, subdivision (a); three counts of assault with a semi-automatic firearm in violation of section 245, subdivision (b); one count of murder (Fahu) in violation of section 187, subdivision (a); two counts of possessing a firearm following a conviction for a violent offense in violation of section 29900, subdivision (a)(1); possessing a short-barreled rifle in violation of section 33215; and possessing prohibited ammunition in violation of section 30305, subdivision (a)(1). The jury also found numerous associated allegations true, including allegations that the Mankato Street shooting was committed for the benefit of a gang pursuant to section 186.22, subdivision (b)(5), but could not reach an agreement regarding allegations that the Anita Street shooting was committed for the benefit of the gang so the court dismissed those allegations.

Avila appeals.

DISCUSSION

Avila contends the trial court erred by precluding him from offering evidence that he had been the victim of gang violence in the past and therefore lived with a heightened state of fear that affected his response during the Anita Street shooting, by providing certain instructions to the jury regarding mutual combat and contrived self-defense, and by admitting records showing he had pled guilty to assault with a deadly weapon for the benefit of a criminal street gang in 2003. In addition, he asserts the abstract of judgment must be amended to reflect the oral pronouncement of sentence for count 6 and that the matter should be remanded for resentencing to allow the superior court to exercise its discretion as authorized by recent amendments to sections 12022.53, subdivision (h), and 12022.5, subdivision (c).

I. Exclusion of Evidence Regarding Prior Violence Against Avila

A. Additional Background

During pretrial proceedings, the prosecution moved to exclude evidence relating to two incidents from 2012 in which Avila was a victim of gang violence, asserting the evidence was prejudicial and not relevant to any disputed fact in the case. When the court asked for Avila's position on the motion, defense counsel asked to address the court ex parte as he did not want to reveal a potential defense to the prosecution prior to trial. The court agreed and held an ex parte conference, wherein defense counsel explained he intended to present evidence the individuals involved in the Anita Street shooting were Tongan Crip gang members and that at least some of them had made aggressive moves or statements towards Avila, suggesting Avila was acting in self-defense. He therefore argued evidence concerning prior incidents where Avila was the victim of gang violence was relevant to Avila's state of mind and, specifically, whether he had a heightened sense of fear that might cause him to more readily perceive a threat from other gang members. Counsel also stated that he was considering calling an expert to testify about this heightened sense of fear, but that he had not decided yet.

The court said it would allow testimony concerning aggressive statements or behaviors from the victims of the Anita Street shooting, but expressed concern about the relevance of generalized evidence concerning Avila's state of mind in the absence of testimony from Avila himself or other evidence of his actual state of mind at the time of the shooting. However, the court also expressed a willingness to consider the matter further and to review any relevant case law defense counsel could provide. Back on the record with both parties present, the court addressed other related motions, but there was no further discussion of the motion to exclude evidence related to prior incidents of violence against Avila.

Prior to opening statements, the prosecutor asked if the court had made a ruling on the motion. The court stated the issue was still under submission and defense counsel agreed, stating he still needed more time for additional research. Defense counsel also agreed not to mention the evidence of violence committed against Avila in his opening statement.

Midway through the trial, the prosecutor again inquired whether the defense was planning to put on evidence related to Avila as a victim, so that he could decide whether to ask the next witness questions rebutting the theory. Defense counsel stated the court had excluded that evidence and that he had "called off witnesses pertaining to that information in light of the court's in limine ruling." The court asked the prosecutor's position and he replied, "Thank you, your honor. That's all I wanted to know." There was no further discussion of the issue thereafter and the defense did not make any attempt to introduce evidence of the prior incidents in which Avila was a victim of violence.

B. Analysis

Avila asserts the trial court denied him due process and violated his Sixth Amendment right to a complete defense by precluding him from presenting evidence of prior violent acts committed against him, and that his convictions on counts 6, 7, and 8, related to the Anita Street shooting, must be reversed as a result. The People argue Avila forfeited this argument by failing to obtain a final ruling from the trial court on the motion, and that it would have been appropriate for the court to exclude the evidence in any event. In response, Avila contends there was no forfeiture but asserts, in the event this court does find the issue was forfeited, that his counsel provided ineffective assistance by failing to get a final ruling.

1. Forfeiture

Turning first to the forfeiture issue, we agree that Avila's counsel forfeited the argument by failing to obtain a final ruling. "A tentative pretrial evidentiary ruling, made without fully knowing what the trial evidence would show, will not preserve the issue for appeal if the appellant could have, but did not, renew the objection or offer of proof and press for a final ruling in the changed context of the trial evidence itself." (People v. Holloway (2004) 33 Cal.4th 96, 133 (Holloway).) Here, the trial court expressed concerns about admitting the evidence during pretrial ex parte proceedings but offered to consider any further information regarding the potential expert testimony the defense had not yet fully developed, as well as any further legal authority defense counsel wished to submit. Defense counsel later acknowledged that the court had deferred the issue, but stated he still needed additional time. Instead of providing additional research or making additional argument to the court, though, defense counsel later stated the court had excluded the evidence and he had no intention of introducing it in light of the court's ruling. Thus, although the trial court was willing to consider additional argument, counsel failed to pursue the issue further and forfeited the argument. (Ibid.)

2. Ineffective Assistance of Counsel

In the event we find the issue forfeited, as we do, Avila contends his counsel provided ineffective assistance by failing to request a final ruling. To prevail on his claim of ineffective assistance of counsel, Avila must show his counsel's performance was well below the standard of reasonableness under prevailing professional norms and that the deficiency undermined the fairness of his trial or, put another way, that the result would have been more favorable but for counsel's unreasonably substandard performance. (Strickland v. Washington (1984) 466 U.S. 668, 686-688; In re Wilson (1992) 3 Cal.4th 945, 950.) On review, we presume that trial counsel's decisions were reasonable under the circumstances and give deference to trial counsel's tactical choices. (Strickland v. Washington, supra, at pp. 691-694; People v. Hinton (2006) 37 Cal.4th 839, 876.) Where there is no indication in the record as to why counsel neglected to pursue an issue, we reject a claim of ineffective assistance on appeal unless there was no rational explanation for the omission. (See People v. Lucas (1995) 12 Cal.4th 415, 442; People v. Mitcham (1992) 1 Cal.4th 1027, 1058 [counsel not ineffective for failing to move for severance where it was reasonable to assume the motion would be denied].)

Here, although the court never issued a final ruling, it is reasonable to assume that defense counsel interpreted the court's preliminary statements regarding the relevancy of the evidence during the ex parte hearing as a refusal to admit the evidence absent testimony from Avila or additional authority indicating the evidence was admissible. It is also reasonable to assume defense counsel was unable to locate any additional authority supporting his position, particularly since Avila does not present any such authority on appeal, and therefore made a tactical decision to concede the issue based on the trial court's previous statements. Thus, although Avila's counsel incorrectly stated the court had excluded the evidence, he may well have been referring to the court's tentative ruling and his own intention to concede the issue. Under these circumstances, there is a rational explanation for counsel's omission and, accordingly, we do not find that the underlying tactical decision was unreasonable.

3. Prejudice

Regardless, Avila was not prejudiced by defense counsel's failure to seek a final ruling or the resulting exclusion of the evidence. In the context of ineffective assistance of counsel, an error is prejudicial when there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (In re Sixto (1989) 48 Cal.3d 1247, 1257.) "Thus, a court may reject a claim if the party fails to demonstrate that but for trial counsel's failings, the result would have been more favorable to the [party]." (In re Nada R. (2001) 89 Cal.App.4th 1166, 1180.) Here, counsel's failure to pursue the issue further did not result in prejudice because, if he had pursued it, the trial court likely would have confirmed its tentative ruling and declined to admit the evidence and the trial court would not have erred by doing so.[4]

Evidence is relevant if it has any "tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) Avila argued the prior incidents where he was the victim were relevant here because they created a hyper sense of vigilance that caused him to act in self-defense, or imperfect self-defense, on the night of the Anita Street shooting. To prove such a claim, Avila would have to prove that he actually believed himself to be in deadly peril when he started shooting, and in the case of self-defense, that his belief was reasonable under the circumstances. (In re Christian S. (1994) 7 Cal.4th 768, 773; People v. Flannel (1979) 25 Cal.3d 668, 675.) As the test requires both a subjective belief and an objectively reasonable belief, the prior incidents wherein Avila was a victim, and the suggestion that he was therefore living in a heightened state of fear, were relevant only if there was also evidence Avila actually feared for his life when he discharged his weapon during the Anita Street incident. Because Avila did not testify and there was no other evidence of his actual state of mind at the time of the shooting, the trial court correctly determined the more general evidence addressing the reasonableness of his state of mind was not relevant and placed the onus on Avila to provide any contradictory authority. Avila did not provide any such authority in the trial court and does not provide any on appeal.

Avila asserts People v. Minifie (1996) 13 Cal.4th 1055 (Minifie) is applicable and suggests the evidence of prior attacks on Avila was admissible, but we disagree. In that case, Minifie shot and wounded a man known as "Tino" that was close friends with another man Minifie had previously killed. (Id. at pp. 1060-1062.) At trial, Minifie claimed he shot Tino in self-defense and sought to introduce evidence that the previous victim's family had threatened him, that he had been attacked in jail after the previous murder, and that the family and Tino were known for being dangerous and having the means to carry out violent threats. (Ibid.) The trial court excluded the evidence but the California Supreme Court ultimately concluded the evidence should have been admitted as relevant to the defendant's claims of self-defense. (Id. at pp. 1062-1063, 1067-1069.)

Unlike Avila, though, Minifie testified at trial and stated that he feared for his own life when he shot Tino, in part because he believed Tino was about to hit him over the head with a crutch. (Minifie, supra, 13 Cal.4th at pp. 1063-1064.) Further, the evidence Minifie sought to admit related directly to his reason for fearing Tino—Tino was close friends with a man from a notoriously dangerous family that Minifie had previously killed. (Id. at pp. 1060-1062.) To the contrary here, Avila did not testify, there was no other evidence indicating he actually feared Sama or Fahu when he shot at them, and there was nothing to connect the previous acts of violence against Avila to anyone else involved in the Anita Street shooting. As such, Minifie is not applicable here.

Avila also points to Sotelo-Urena, supra, 4 Cal.App.5th 732, but that case is similarly inapplicable. In Sotelo-Urena, the defendant, a homeless man, killed another homeless man after the man aggressively asked him for a cigarette. (Id. at pp. 737-738.) The trial court excluded expert testimony regarding the high rate of violence in the homeless community and the associated fear of violence that many homeless individuals harbor, and the appellate court reversed, finding the trial court erred by excluding the evidence. (Id. at pp. 745-746, 750.) Although Sotelo-Urena did not testify on his own behalf, the defense introduced statements he made to the police immediately after the incident indicating he had been stabbed a few weeks earlier and believed the man that approached him was one of his previous attackers and was going to attack him again. (Id. at p. 738.) Thus, just as in Minifie, there was direct evidence of the defendant's actual state of mind at the time the crime was committed, and the excluded evidence was relevant to the reasonableness thereof. (Id. at p. 750.) To the contrary here, there was no evidence of Avila's actual state of mind or anything to suggest that he actually feared for his life during the Anita Street altercation.

Finally, even if the evidence was relevant, Avila was not prejudiced by its exclusion. First, the evidence related to incidents that occurred in 2012, two years before the alleged crimes, and there was no suggestion they involved any of the same individuals or even similar scenarios, beyond general gang violence. Second, there was no evidence indicating Avila was acting out of fear and, instead, the evidence suggested Avila was the aggressor. Avila did not even assert he was acting in self-defense with respect to the Mankato Street shooting, and the evidence indicated he approached the truck from behind, after previously walking away, and opened fire before Blinky or Maniac had time to react. With respect to the Anita Street shooting, the evidence suggested Avila was out "mobbing" and looking for trouble with his rifle in hand, continuing his effort to avenge the recent death of fellow gang members, that he issued a gang challenge before shooting at the group, and that Fahu was running away from Avila when shot. Although there was some suggestion the victims acted aggressively and Avila therefore argued he was acting in self-defense, as discussed, there was no evidence as to Avila's actual state of mind such that evidence suggesting he may have been scared would not have been sufficient to change the outcome of the case.

Based on this record, we conclude there is not a reasonable probability the court would have admitted the evidence had Avila's counsel sought a final ruling and the admission of the evidence would not have altered the outcome of the case in any event. As such, the exclusion of the evidence did not amount to ineffective assistance of counsel or prejudicial error and does not warrant reversal.

II. Jury Instructions Regarding Mutual Combat and Contrived Self-Defense

Avila claims he was denied due process when the trial court instructed the jury on mutual combat and contrived self-defense using the standard jury instructions set forth in CALCRIM Nos. 3471 and 3472.[5] Avila does not contend the instructions were legally inaccurate or incomplete, and instead asserts only that the instructions were not supported by substantial evidence.

The People assert Avila forfeited this argument by failing to object to the instruction at the time of trial. However, "[a] reviewing court may review an instruction even absent an objection 'if the substantial rights of the defendant were affected thereby.' " (People v. Hardy (2018) 233 Cal.Rptr.3d 378, 336 [quoting § 1259].) Because Avila asserts the instructional error violated his right to due process, we will consider the merits of his contentions regarding these instructions.

A trial court has an obligation to instruct the jury on all general principles of law relevant to the issues raised at trial and every theory of the case that is supported by substantial evidence. (People v. Blair (2005) 36 Cal.4th 686, 744; People v. Young (2005) 34 Cal.4th 1149, 1200 (Young).) Evidence is substantial so long as a reasonable jury could find it persuasive. (Young, supra, at p. 1200.) The trial court determines whether there is substantial evidence to support a given instruction without reference to the credibility of the evidence, but need not include instructions based solely on conjecture or speculation. (Ibid.)

Here, Avila asserted he was acting in self-defense during the Anita Street shooting and the prosecution introduced evidence rebutting that theory and suggesting Avila was at least the initial aggressor in both the Mankato Street and Anita Street shootings. Specifically, the defense presented evidence that certain members of the group involved in the Anita Street shooting were associated with a criminal street gang known as the Tongan Crips, that some of those individuals may have approached Avila and his companion before the shooting, and that Sama made statements that Avila could have perceived as aggressive or that Sama and Avila exchanged commonly understood gang challenges. The prosecution, on the other hand, presented evidence that Avila was in the area "mobbing" or looking for trouble to avenge the recent deaths of his fellow gang members, that he was the initial and only aggressor in the Mankato Street shooting just a few days before the Anita Street shooting, that he was the only individual with a weapon at the Anita Street shooting, and that he shot Fahu in the back as Fahu tried to retreat.

Given this conflicting evidence, and the defense's assertion Avila was acting in self-defense during the Anita Street shooting, the jury was presented with a factual question as to whether Avila was the initial aggressor, or whether Sama or some combination of all individuals had a role in creating or otherwise consented to the conflict. The court properly instructed the jury as to all the relevant and applicable rules of law, including CALCRIM Nos. 3471 and 3472. At a minimum, both disputed instructions address situations in which the defendant is the initial aggressor but then claimed self-defense. As there was substantial evidence indicating Avila was the initial aggressor during the Anita Street incident, both instructions were appropriate. Avila asks this court to reweigh the evidence, but the mere fact that the defense presented contradictory evidence does not negate that there was also substantial evidence to support the instructions.[6] (See Bay Guardian Co. v. New Times Media LLC (2010) 187 Cal.App.4th 438, 466.) The issue before the trial court in deciding what instructions to give, and before us now on appeal, is limited to whether substantial evidence supported the instructions. We conclude that it did.

Avila contends People v. Ross (2007) 155 Cal.App.4th 1033 (Ross), in which the appellate court determined the trial court erred by giving a different and more limited version of the mutual combat instruction is instructive. (Id. at pp. 1042, fn. 9, 1046-1047.) Unlike the instruction at issue in Ross, though, the mutual combat instruction given in the present case addressed self-defense in the context of a defendant that "engages in mutual combat or who starts a fight" and defines mutual combat as a fight that "began or continued by mutual consent or agreement," consistent with the holding in Ross. Further, as discussed, here there was substantial evidence to support either a finding that Avila was the initial aggressor or that the two groups at the Anita Street incident exchanged words indicating they were rival gangs and mutually agreed or intended to fight. (See People v. Jackson (2014) 58 Cal.4th 724, 761-762 [discussing Ross and concluding mutual combat instruction was appropriate where "trouble brewing" between two gangs gave rise to an inference individuals from both consented to a fight]; People v. Valenzuela (2011) 199 Cal.App.4th 1214, 1234 [mutual combat instruction supported by history of gang related conflict].)

Accordingly, we conclude substantial evidence supported the trial court instructing the jury on mutual combat and contrived self-defense using CALCRIM Nos. 3471 and 3472.

III. Evidence Regarding Crimes Committed by Avila in 2003

A. Additional Background

The prosecution sought to admit evidence that Avila plead guilty to a charge of assault with a deadly weapon and admitted that the assault was for the benefit of a criminal street gang in 2003. Avila objected and asserted the assault was not relevant and was prejudicial as it occurred more than 10 years before the crimes at issue in the present case. In response, the prosecution argued the plea was relevant both to certain charged offenses related to the possession of weapons despite a prior felony conviction and to the gang enhancements. Initially, the court agreed the felony aspect of the plea and the fact that Avila admitted to being a gang member were relevant to the charges in the present case, but suggested sanitizing the facts through a stipulation.

Subsequently, during a hearing pursuant to Evidence Code section 402—held to determine what background evidence the gang expert could rely on in light of People v. Sanchez (2016) 63 Cal.4th 665—the expert testified "the fact that there was a conviction for assault with a deadly weapon and a gang allegation together" informed his opinion that Avila was a gang member and also that the severity of the prior crime affected his overall opinion as to Avila's status as a gang member.

The parties were unable to reach an agreement as to an appropriate stipulation regarding the prior and the prosecutor raised the issue again. The defense asserted that the specific crime was not relevant, only that it was a felony committed for the benefit of the gang, but the prosecutor argued the actual charge of assault with a deadly weapon was relevant as support for the expert's conclusion that Avila was an active gang member because the type of crime committed reflects upon an individual's stature within the gang. The court ultimately agreed with the prosecution and stated it would allow evidence of the prior conviction, because it was "part and parcel of the type of crimes that gang members engage in" and because it was relevant to the charges in the present case that Avila was a felon in possession of a firearm.

Prior to the gang expert's testimony, defense counsel renewed his objection to the prior conviction and asserted the prosecution had presented a substantial amount of information related to Avila's gang activity for the expert to rely on, and offered to stipulate that Avila had a prior conviction for a violent felony. The court heard additional argument and stated it would stand by its earlier ruling, but that it would consider giving a limiting instruction to ensure the jury considered the prior conviction only as evidence that Avila had a prior felony conviction and was a gang member.

After further discussion, the parties stipulated to certain redactions of a certified copy of the prior conviction and the records were admitted into evidence. The court then gave the jury the following limiting instruction:

"Now, ladies and gentlemen, I also want to give you an instruction with respect to this—this record of a prior conviction. This prior conviction that you have heard about, it's also documented in People's 6, may only be considered for the following purposes: one, with respect to the firearm charges that are alleged in counts 9 and 11; and two, for the purposes of whether the defendant committed the charges in counts 1 through 8 for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further, and assist in criminal conduct by gang members, all within the meaning of Penal Code section 186.22 (b)(1).

So—and we will talk to you when we get to the end of the case about each of the counts. Counts 1 through 8 each have an allegation that Mr. Avila did this behavior—this criminal behavior for the benefit of, at the direction of, or in association with a criminal street gang; and that he had the specific intent to further, assist in criminal conduct by gang members. So each of those eight counts has that extra allegation that you will have to decide whether the People have proven that allegation beyond a reasonable doubt.

And then there are two firearm convictions alleged in counts 9 and 11, that you can use this prior conviction for also.

Okay. So you are limited to those two areas to consider that prior conviction for."

At the conclusion of the case and before deliberations, the court reminded the jury that certain evidence was admitted for a limited purpose and that it could be considered only for that purpose.

B. Analysis

Avila contends the trial court erred by admitting evidence of his 2003 conviction because he was willing to stipulate to a prior felony, it was not relevant to the analysis of whether he was acting on behalf of a criminal street gang when he committed the alleged crimes in 2014, and it was prejudicial.

Evidence that has "tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action" is relevant. (Evid. Code, § 210.) However, the trial court may exclude relevant evidence if its probative value is substantially outweighed by a risk of undue prejudice. (Evid. Code, § 352.) On appeal, we review the trial court's ruling on evidentiary questions for an abuse of discretion. (People v. Thompson (2010) 49 Cal.4th 79, 128.)

Here, the trial court initially determined the prior conviction was relevant and admissible as related to charges that Avila was a felon in possession of a firearm and the gang enhancement. However, Avila later offered to stipulate that he had a prior felony conviction. Thus, the relevant inquiry on appeal is whether the prior conviction was admissible as evidence relevant to the gang enhancements.

To prove the gang enhancements, the prosecution needed to show that Avila committed the charged felonies for the benefit of, at the direction of, or in association with a criminal street gang, and with the specific intent to promote, further, and assist in criminal conduct by gang members. (§ 186.22, subds. (b)(4), (5).) As defined by the statute, a criminal street gang is an ongoing association that engages through its members in a "pattern of criminal gang activity." (§ 186.22, subd. (f).)

Addressing a similar question in People v. Tran (2011) 51 Cal.4th 1040 (Tran), the California Supreme Court held that evidence of a prior offense committed by the defendant on a separate occasion can be used to prove gang allegations under section 186.22. (Tran, supra, at p. 1044.) In that case, Tran, a prominent gang member, shot an innocent bystander during a gang altercation, believing the victim to be a member of a rival gang. (Tran, supra, at pp. 1044-1045.) Among other crimes, the prosecution charged Tran with active participation in a criminal street gang and included an alleged gang enhancement pursuant to section 186.22, subdivisions (a) and (b). (Id. at pp. 1045-1046.) To establish a pattern of criminal gang activity as required to prove those charges, the prosecution presented evidence of prior criminal activity undertaken by Tran and other gang associates, including evidence that Tran had pled guilty to a charge of extortion three years earlier. (Id. at pp. 1045-1046.)

On appeal, Tran argued the trial court erred by admitting evidence of prior offense to prove the gang-related charges because its prejudicial effect substantially outweighed its probative value. (Tran, supra, 51 Cal.4th at p. 1047.) While the Court agreed evidence of prior convictions is inherently prejudicial, it also determined that, "[i]n prosecutions for active participation in a criminal street gang, the probative value of evidence of a defendant's gang-related separate offense generally is greater [than in other cases] because it provides direct proof of several ultimate facts necessary to a conviction. Thus, that the defendant committed a gang-related offense on a separate occasion provides direct evidence of a predicate offense, that the defendant actively participated in the criminal street gang, and that the defendant knew the gang engaged in a pattern of criminal gang activity." (Id. at p. 1048.) The Court therefore held the evidence was admissible and, further, reiterated that the trial court must weigh the probative and prejudicial nature of the evidence and exercise its discretion to determine whether evidence of such prior offenses may be admissible to prove the elements of gang related offenses in other such cases. (Id. at p. 1049.) We presume the trial court here carefully weighed the probative value and prejudicial nature of the prior convictions, and determined the evidence was admissible. We find no abuse of discretion in the trial court's decision.

Avila attempts to distinguish the present case from Tran, but we do not find his arguments compelling. Avila asserts the evidence at issue in Tran went directly to an element of the charged crime—whether Tran had knowledge the members of the criminal street gang engaged in a pattern of criminal activity as required by section 186.22, subdivision (a)—whereas the evidence here only established an intermediary fact—that Avila was a member of a criminal street gang and committed criminal acts for the gang many years before the predicate offense. While Tran does suggest evidence of an intermediary fact may have been somewhat less probative, it also suggests it is still probative and it is within the trial court's discretion to weigh its probative value against its prejudicial nature. (See Tran, supra, 51 Cal.4th at p. 1048; see also People v. Guerrero (1976) 16 Cal.3d 719, 724 [admission of other crimes evidence is admissible "if it logically tends to prove a material element in the People's case"].)

Here, the gang expert expressly stated that he considered the underlying conviction when reaching his opinion regarding Avila's ongoing participation in the gang and, thus, the evidence was directly probative of the validity of the expert's opinion, which, in turn, directly supported application of the gang enhancements. Avila contends the gang expert testified that the nature of the prior offense was not a consideration in his determination that Avila was an active gang member but, to the contrary, at the section 402 hearing, the gang expert testified that "the fact that there was a conviction for assault with a deadly weapon and a gang allegation together" informed his opinion that Avila was a gang member. At trial, he testified that the severity of the prior crime also affected his overall opinion because individuals earn respect within the gang culture by committing more serious and violent crimes, that assault with a deadly weapon was a common crime committed by members of the Otay gang, and, when presented with a hypothetical that included a prior conviction for assault with a deadly weapon for the benefit of the gang, he stated he would conclude the individual in the scenario was an active gang member based on the totality of evidence.[7] Thus, both the underlying assault charge and the gang enhancement associated with the prior were relevant to the expert's opinion.

Avila also contends the prior was less probative because it was remote in time but, as evidenced by the expert's testimony as well, it was one piece of a larger collection of evidence that, overall, showed a consistent history of gang involvement that persisted from the time of the plea through the time of the charged incidents.

By comparison, the evidence was not particularly prejudicial as the prior crime of assault with a deadly weapon was less severe than the charged offenses of murder and attempted murder, and there was ample other evidence suggesting Avila was an active member of a criminal street gang that regularly committed violent crimes. Moreover, unlike the trial court in Tran, here the trial court took care to issue a detailed limiting instruction, minimizing the risk that the jury would consider the prior offense for any reason other than proving the prior felony element of the weapons charges or the gang enhancements. We presume the jury understood and followed the trial court's instruction. (People v. Martinez (2010) 47 Cal.4th 911, 957.)

Avila contends the evidence was precluded under Evidence Code section 1101 as a prior bad act. However, Evidence Code section 1101 only excludes evidence of prior criminal acts if such evidence is offered to prove the defendant acted in a consistent manner on a specified occasion. (Evid. Code, § 1101, subd. (a); People v. Lindberg (2008) 45 Cal.4th 1, 22.) Here, as in Tran, the evidence was offered solely to prove Avila committed the crimes for the benefit of a criminal street gang that was engaged in a pattern of criminal activity. It was not offered as proof of Avila's character or a propensity to commit additional crimes and, thus, Evidence Code section 1101 is not applicable.

Moreover, to the extent the trial court did err in admitting the evidence, any such error was harmless for the same reasons discussed ante, as it is not reasonably probable the jury would have reached a result more favorable to Avila had the evidence been excluded. (See Watson, supra, 46 Cal.2d at p. 836.) Avila contends the fact that the jury did not reach an agreement on the gang allegations with respect to the Anita Street shooting indicates the jury was not convinced of the prosecution's theory of the case. However, the evidence suggested the victims in the Anita Street shooting were not, themselves, gang members, making the connection to gang activity more tenuous there than in the Mankato Street shooting. Thus, it is more likely the case that the members of the jury were careful to base their decisions on the instructions given and the evidence surrounding each incident as opposed to a general belief regarding Avila's propensity to commit crimes.[8]

Finally, Avila contends the redacted records were prejudicial because they showed the maximum sentence Avila was exposed to and the sentence he actually received, as well as credits, fines, and restitution. However, defense counsel stipulated to certain other redactions and never objected to the inclusion of these items on the records that were admitted, and therefore is precluded from raising this issue now on appeal. (See People v. Seumanu (2015) 61 Cal.4th 1293, 1328, fn. 7.) Regardless, we see no reason that the inclusion of the sentence, or the credits, fines, and restitution, on a prior conviction for a different crime for which Avila had served his time would prejudice the jury, particularly as the jury was deciding guilt only, and not the associated penalty.

We therefore conclude the trial court did not abuse its discretion by admitting evidence, including the redacted records, of Avila's prior conviction for assault with a deadly weapon.

IV. Abstract of Judgment

Regarding sentencing, Avila alleges the abstract of judgment does not match the oral pronouncement of the sentence for count 7, and the People concede. "Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls." (People v. Zackery (2007) 147 Cal.App.4th 380, 385.) Here, although the transcript and minutes from sentencing indicate a sentence of 14 years to life on count 7, the abstract of judgment indicates a sentence of 17 years to life. Accordingly, we amend the judgment to accurately reflect a term of 14 years to life on count 7.

V. Resentencing in Light of Amendments to Sections 12022.5 and 12022.53

Avila was sentenced on January 17, 2017, and the court took into consideration the gun allegations pursuant to section 12022.53, subdivision (d), on counts 1, 2, 6 and 7 and the gun allegations pursuant to section 12022.5, subdivision (a), on counts 3, 5, and 8. The court issued additional terms based on the gun allegations for all counts except count 5, for which the court used the allegation to elevate the offense to a violent felony with a greater sentence, and stayed the additional terms for counts 3, 5, and 8.

While this appeal was pending, Avila submitted a request to file a supplemental brief, which this court granted, addressing amendments to sections 12022.53, subdivision (h), and 12022.5, subdivision (c), that became effective on January 1, 2018. (See Sen. Bill No. 620 (2017 Reg. Sess.).) The amended provisions now allow the trial court, in the interest of justice and pursuant to section 1385, to strike or dismiss the associated firearm enhancements at the time of sentencing. (§§ 1385, 12022.5, subd. (c) [effective Jan. 1, 2018], 12022.53, subd. (h) [effective Jan. 1, 2018].) The People concede People v. Francis (1969) 71 Cal.2d 66 is controlling and requires retroactive application of amended sections 12022.5 and 12022.53 to all nonfinal judgments, including the judgment here, and we agree.

Accordingly, we remand the matter to the superior court for resentencing on the limited issue of whether the trial court should, in the interest of justice, strike or dismiss any of the enhancements discussed herein in accordance with the amendments to sections 12022.5, subdivision (c), and 12022.53, subdivision (h).

DISPOSITION

The judgment is modified to reflect a sentence of 14 years to life for count 7, and the matter is remanded to the superior court for resentencing in accordance with this opinion. Should the superior court decline to exercise its discretion with respect to count 7, the resentencing order shall reflect a term of 14 years to life for count 7, as discussed herein. In all other respects, the judgment is affirmed.

O'ROURKE, J.

WE CONCUR:

HALLER, Acting P. J.

GUERRERO, J.