Filed 10/31/18 P. v. Gonzalez CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Bruce F. Marrs, Judge. Affirmed in part, remanded in part with directions.

Heather L. Beugen, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Martin Anthony Gonzalez, a member of Pomona’s Olive Street gang, shot victim Vanessa A. in the arm and chest when she refused to leave an alley within Olive Street’s territory. A jury convicted defendant of the premediated attempted murder of Vanessa and unlawful possession of a firearm by a felon. It also found true enhancement allegations that defendant committed both crimes for the benefit of a criminal street gang and caused great bodily injury during the attempted murder by personally and intentionally discharging a firearm. The court sentenced defendant to a third-strike sentence totaling 71 years to life in prison.

Defendant argues that his attempted murder conviction and the gang enhancements must be reversed because the prosecution’s gang expert improperly testified that a gang benefited when the victim of a gang crime refused to testify in court. He further argues that the gang enhancements must be reversed because he was the only gang member present at the time of the crimes and because there was no evidence regarding how the crimes could promote, further, or assist other criminal activity by the gang. Defendant also contends the matter must be remanded so the trial court may exercise its discretion under Penal Code section 12022.53, subdivision (h)[1] to strike the firearm enhancement.

We find no error warranting the reversal of defendant’s convictions or the gang enhancements. However, we will remand the matter for the trial court to exercise its discretion whether to strike the firearm enhancement. Accordingly, we affirm the convictions, vacate the sentence, and remand for resentencing.

PROCEDURAL HISTORY

An amended information charged defendant and codefendant Melissa Barceleau with the attempted willful, deliberate, and premeditated murder of Vanessa. (§§ 187, subd. (a), 664.) It charged defendant alone with possession of a firearm by a felon. (§ 29800, subd. (a)(1).) The information alleged that both crimes were committed for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further, or assist in any criminal conduct by gang members. (§ 186.22, subd. (b)(1).) It further alleged that defendant caused great bodily injury to Vanessa by personally and intentionally discharging a firearm. (§ 12022.53, subd. (d).) The information alleged that defendant suffered two prison priors (§ 667.5, subd. (b)), two serious felony convictions

(§ 667, subd. (a)(1)), and two prior strike convictions (§§ 667, subd. (d), 1170.12, subd. (b)).

Defendant and Barceleau were jointly tried before a jury, which found them guilty as charged. The jury also found true the gang and firearm enhancements. At a subsequent bench trial, the court found that defendant suffered one prison prior, two serious felony convictions, and two prior strikes.

After denying defendant’s Romero[2] motion to strike one or both of his prior strikes, the trial court sentenced defendant to a total term of 71 years on the attempted murder count and related enhancements. The court imposed a third-strike sentence of 25 years to life (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) for the attempted murder. It imposed an additional 25 years to life for the firearm enhancement (§ 12022.53, subd. (d)), 10 years for the gang enhancement (§ 186.22, subd. (b)(1)(C)), 10 years for the two prior serious felonies (§ 667, subd. (a)(1)), and one year for the prison prior (§ 667.5, subd. (b)). On the felon in possession count, the court imposed and stayed (§ 654) a total of 16 years: the midterm of two years for the substantive offense, plus three years for the gang enhancement (§ 186.22, subd. (a)(1)(A)), one year for the prison prior (§ 667.5, subd. (b)), and 10 years for the two prior serious felonies (§ 667, subd. (a)(1)).

Defendant timely appealed.

FACTUAL BACKGROUND

I. Substantive Offenses

In December 2015, Vanessa’s sister, Yasmin, lived with their parents and two brothers on Nelson Street in Pomona. Yasmin testified that Vanessa did not live with the family but came by sometimes.

Yasmin testified that on the morning of December 12, 2015, Vanessa’s ex-boyfriend, Brian, came to the home. Brian asked Yasmin if he could hide there. Yasmin said no, and Brian left. About 15 minutes later, around 9:00 or 10:00 a.m., defendant arrived at the home. Yasmin knew defendant as Tony. Defendant told Yasmin he was looking for Vanessa. Yasmin told defendant that Vanessa was not home. As he was leaving, defendant told Yasmin to tell Vanessa “if he sees her, that something was gonna happen to her.”

Vanessa, who appeared in jail clothing because she was in custody “[f]or not showing up to court,” testified that she was hanging out by her mother’s garage sometime after 10:00 p.m. that same day, December 12, 2015. She said that she was there by herself when an unknown person drove up and got out of the car. Then, an unknown person, who may or may not have been the person from the car, shot her in the chest and left arm. Vanessa called her mother on her cell phone. A recording of the voicemail message she left her mother was played for the jury.

In that message, a male voice could be heard saying, “Go the fuck back to Oaxaca.” Then Vanessa said, “Tony’s hitting me mom. Yes look mom, he’s strong. I’m calling the cops on you fool. Go for it dude, go for it asshole.” The male voice responded, “shut the fuck up, bitch,” after which Vanessa said, “Motherfucker, do it. Do it, bitch.” A different male voice said, “Hey, hey, hey! Calm down pops. Hey calm down pops. Calm down, that’s enough.”

When the prosecutor asked Vanessa who Tony was, she said she didn’t know. She also denied knowing defendant or anyone named Mia[3], and declined to identify them in court. Vanessa testified that she did not recall telling police officers who responded to the scene who shot her, and stated she either did not know or did not remember what she told the officers during an ensuing interview that took place while she was in the hospital. She stated that she did not “feel comfortable” testifying, and remarked, “you guys have enough evidence that honestly I don’t want to say nothing, you know?” Vanessa denied being afraid of something happening to her or her family if she testified, stating, “I’m just tired of all this shirt [sic].” Later, however, she testified that “snitching,” which she defined as “someone telling on somebody,” was “a bad thing,” and acknowledged that “coming to court and testifying against someone, particularly a gang member who committed a crime,” also was considered “[a] bad thing.” She thanked the prosecutor on redirect when he withdrew the question, “the person who shot you was Stoney [defendant’s nickname], right?”

Vanessa’s brother, Antonio, testified that he lived with Vanessa’s parents in December 2015. Around 10:00 p.m. on December 12, 2015, he was awakened by a gunshot that sounded like it had come from the alley behind the house. Antonio got up and saw Vanessa running toward the home. She was yelling for help and bleeding from her arm. Antonio and his father took Vanessa inside and called an ambulance. About a minute or two later, Antonio saw a gray Honda Civic speed by.

Pomona police officer Richard Martinez testified that he was on duty on the night of December 12, 2015. Around 10:30 p.m., he was dispatched to the area of Olive and Nelson Streets to respond to a shooting. When he arrived he found Vanessa standing outside crying, bleeding, and “gripping her left breast.” Vanessa told Martinez that an Olive Street gang member named Stoney had shot her with a shotgun. Upon further questioning, Vanessa told Martinez that Stoney’s full name was Tony Gonzalez. Vanessa also told Martinez that Stoney left the scene in a black Honda driven by a woman she knew as Mia.

Pomona police detectives Eric Berger and Greg Freeman were assigned to investigate the case. Freeman testified that they were driving through the neighborhood of the shooting looking for defendant on December 17, 2015. Around 3:00 p.m., Freeman saw defendant walking toward them; he recognized defendant from previous interactions. Freeman stopped the “marked detective car” he and Berger were in about 15 feet away from defendant and started to get out. Defendant and Freeman looked at one another, and defendant began to run away. Freeman testified that he saw defendant remove “what appeared to be a shotgun” from his waistband and hold it with both hands while he was running; Berger also testified that he saw defendant “pulling [a] shotgun out of his pants.” Freeman ran after defendant for about a block, until defendant ducked behind some parked cars. Freeman saw defendant hide the shotgun in the wheel well of one of the cars before he got up and resumed running. Freeman retrieved the gun, which was admitted into evidence at trial. Defendant ran toward Berger; Berger and Freeman arrested defendant.

Freeman testified that he and Berger took defendant to the Pomona police station. Freeman told defendant at that time that he was a suspect in Vanessa’s shooting. Later, while defendant remained in custody at the police station, his girlfriend, Nina, came to visit him. Freeman testified that defendant told Nina, “they know everything, I’m done, it’s a wrap for me.” The record does contain a police report documenting Nina’s visit that evidently was attached to the “statement of view” the prosecutor filed in advance of sentencing. According to that report, the visit was audio and video recorded. The report states that defendant told Nina, “Baby I’m fuckin through nigga. . . Im gone fool”; “they knew everything. . . I’m gone fool”; “Freeman knows a lot”; and “my mind is still spinning, why did I fuck it up? Why the fuck did I fuck off who cared for me?”

After arresting defendant and obtaining photographs of the shotgun they recovered from him, Freeman and Berger interviewed Vanessa in the hospital. Berger testified that he showed Vanessa the photograph of the recovered shotgun, which she identified as the one used during the shooting. Berger testified that Vanessa also identified a photograph of defendant as the person who shot her.

A recording of the hospital interview was played for the jury and admitted into evidence. During that interview, Vanessa told the detectives that she had known the perpetrator of the shooting since she was about five years old, and that his name was Stoney. She further told them that Stoney shot her because he did not want her “in his hood.” Vanessa said she “wasn’t even in his hood” at the time, but rather was “outside,” “behind my mom’s house, you know, in the garage,” “drinking beer with my friends.” Vanessa told the detectives that she did not talk to or get along with the Olive Street gang, “cause my brother used to kick me out too.” Vanessa further explained that her older brother, Sergio, whom she described as “from Olive,” told her “don’t go to Olive.” Sergio also told “his hood” to “fuck her up” every time they saw her, because she had “been dissing them.”

Vanessa told the detectives that Stoney “pulled up” alongside the garage in a gray car; “some girl named Mia” was driving. Mia was not “from the neighborhood.” From the passenger seat, Stoney told Vanessa to “get the fuck out of here.” Vanessa responded that she wasn’t doing anything, but nevertheless called another friend, the one who had dropped her off, to pick her up. Stoney told her that if she was still in his “fucking hood” when he came back around, “I’m gonna’ fucking shoot you, . . . I’m gonna’ fucking kill - - you.” Stoney told Vanessa’s friends, “If one of you fucking guys says anything than [sic] the same shit’s gonna’ happen to you guys.” Stoney and Mia then left.

Less than five minutes later, he and Mia came back in the same car. Stoney got out of the car, said, “I fucking told you, bitch” and hit Vanessa on the lip with a shotgun. Vanessa said this was around the time she was leaving a voicemail for her mother. She confirmed that Stoney could be heard in the background of the voicemail, as could one of her friends, who told Stoney to leave her alone.

Stoney walked back to the car, which was about six feet away, and sat in it. He continued to exchange words with Vanessa, who was on the phone with a friend and facing away from the car. Vanessa heard a blast and felt a shot in her arm.

Vanessa told the detectives she thought the incident had something to do with her ex-boyfriend, Brian, because Stoney asked her who her boyfriend was. Brian, who was not from the neighborhood, was no longer “cool with Stoney” because Brian had hit another person, George, with a door handle. Vanessa said George, who was “cool with” Stoney, already had tried to beat her up the previous week.

II. Gang Evidence

Freeman testified as the prosecution’s gang expert. He testified that Olive Street was a gang in Pomona with approximately 115 members and associates. Its territory was in the area of Nelson and Olive Streets in southern Pomona. Freeman was familiar with the Olive Street gang because he had worked in that area, been involved with approximately 100 investigations and arrests of its members, and had assisted with a gang injunction. He testified that the Olive Street gang’s primary activities included assaults, possession of deadly weapons, and narcotics sales.

Freeman testified that the members of Olive Street used signs and symbols to signify their membership in the gang, including the words “Olive Street,” an “O” hand sign, and the Miami Dolphins logo. Some members also got tattoos bearing these symbols and words. Non-members were not permitted to get gang-related tattoos.

Freeman opined that Barceleau, who did not have any tattoos, was an associate but not a member of the Olive Street gang. He opined that defendant, who had “Olive Street” tattooed on his face and several other gang-related tattoos, was a member of the Olive Street gang who went by the moniker Stoney. Freeman based his opinion on his “personal contacts with [defendant], the tattoos he bears, obviously this crime that was committed.” The prosecutor asked Freeman to clarify what he meant by his comment about the instant crime, and Freeman explained, “It was done by an Olive Street gang member in the neighborhood of Olive Street. And the victim was told to get out of the area.”

Freeman explained that area, or territory, was very important to gangs. “It’s where they can commit their crimes, it’s where they can act freely without the repercussions of knowing that the cops are going to be able to come in and stop what they’re doing. They usually feel comfortable. They fight for this territory. . . . [I]t’s a place where they can feel safe to, you know, sell their narcotics, to be able to commit crimes and knowing that people will not call because that community’s scared to say anything. They don’t want to be snitches and stuff like that.”

Freeman clarified that “snitches” are people who relay information about a gang or its crimes to police. He testified that gangs do not like snitches and “do everything in their power to keep snitches away from them,” because snitches can “get somebody arrested, put somebody away in jail.” He further testified that a community’s fear of a gang complicates police investigation of gang crimes, because “usually everybody is hesitant or not willing to cooperate, so to speak. They’re scared. Not only what will happen to them, but you’ll hear them say they’re scared of what’s going to happen to their families.”

In addition to territory, Freeman testified, gangs also prioritize respect, which he characterized as their “driving force.” “The more respect, the more power you have. The way you earn respect is again through power, domination, fear, intimidation. It’s going out and committing crimes, going out and making people in your area scared of you. The more respect you have, the higher ranking you go.” He opined that defendant was a “very respected member of Olive Street.” Freeman also explained that “dissing” means disrespecting a gang or neighborhood, either by talking badly about it or engaging in some other negative conduct.

The prosecutor gave Freeman a hypothetical mirroring the facts of this case and asked him if the shooting was “committed for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to benefit gang members.” Freeman opined that “[i]t absolutely benefits the Olive Street gang and the members of the gang, as well as the members who committed the crime itself.” He further explained: “As far as the gang, it benefits the gang, again in their community. It shows how strong they are. Through respect, the respect level although, maybe for the normal person it’s hard to understand their power, respect level goes up, the fear in the community. You know, this is what we demand in our neighborhood. Don’t listen to us, this is what we do. And the fear level goes up, which makes them stronger in their neighborhood.”

The prosecutor asked a follow-up question: “If in that hypothetical the victim of the crime who is shot initially reports to the police who the gang member is and who assisted in the crime, but later comes to court and refuses to make identification of either the driver or the shooter, is that an indication as to whether the gang actually did benefit?” After the court overruled defendant’s objections that the question called for speculation and that Freeman lacked foundation to answer it, Freeman gave the following response: “It’s absolutely part of it. It goes to show how strong these guys are and what kind of power they hold in the neighborhoods, in the local community, and in particular the certain gang members that committed the crime and, you know, their reputation going up in the gang, as well because they’re willing to put in work, they’re willing to, you know, take out the weak link. [¶] Again, it’s like working in a business and being the aggressive one, being the one that’s identified that puts in the work, you move up, you get promoted, and it’s the same thing.”

DISCUSSION

I. Opinion Testimony About Benefit to Gang

Defendant argues that the attempted murder conviction and both gang enhancements must be reversed because the trial court erroneously allowed Freeman to opine that a victim’s refusal to identify her shooter in court demonstrated that the gang benefited from the crime. He contends this testimony was irrelevant because defendant was not charged with witness intimidation. He also argues that this opinion lacked foundation and was based on speculation, because “Freeman didn’t offer any background, training, or experience establishing how he could possibly know if an uncooperative witness at trial benefitted the gang.” Defendant argues the error was prejudicial because the testimony made him “look like a monster,” “instill[ed] fear in the eyes of the jurors,” and gave the jury “an improper reason to convict” him on the attempted murder count, despite underwhelming evidence of his intent to kill Vanessa.

“‘In determining the admissibility of evidence, the trial court has broad discretion. . . . A trial court’s ruling on admissibility implies whatever finding of fact is prerequisite thereto . . . .’ [Citation.] ‘We review the trial court’s conclusions regarding foundational facts for substantial evidence. [Citation.] We review the trial court’s ultimate ruling for an abuse of discretion [citations], reversing only if “‘the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.’” [Citation.]’” (People v. Jackson (2016) 1 Cal.5th 269, 320-321.)

To preserve an evidentiary objection for appeal, a defendant must assert it below to give the trial court an opportunity to make a ruling. (See Evid. Code, § 353, subd. (a); People v. Valdez (2012) 55 Cal.4th 82, 130.) Defendant objected below only on the grounds of “[f]oundation and speculative,” so only those objections are preserved here.

The trial court did not abuse its broad discretion in overruling defendant’s objections. Freeman opined that a victim who is reluctant to testify is an “indication” that the crime she suffered in fact benefited the gang whose member committed the crime. This testimony, which was based on a hypothetical mirroring the facts of this case, was well within Freeman’s background, experience, and training. Contrary to defendant’s suggestion, Freeman did not testify that “certain events actually benefited a gang.” Rather, he relied on his knowledge and training to offer an opinion that witness reluctance to implicate gang members was part and parcel of the “respect” gang members endeavor to cultivate in their communities. This was proper expert testimony.

Even if this testimony were admitted in error, we are not persuaded that it is reasonably probable that defendant would have obtained a more favorable result on the attempted murder verdict without it. (People v. Harris (2005) 37 Cal.4th 310, 336; People v. Watson (1956) 46 Cal.2d 818, 836.) Defendant asserts that the evidence demonstrating his intent to kill Vanessa “was not overwhelming,” and that this testimony tipped the scales by painting him as a “monster.” Yet the evidence established that defendant went to Vanessa’s family’s home in the morning looking for her, and told her sister to warn her that something was going to happen to her. Defendant later returned to the neighborhood under cover of darkness and told Vanessa, “I’m gonna fucking shoot you, . . . I’m gonna fucking kill - - you.” He then left, and returned minutes later to make good on these promises. The jury readily could infer from defendant’s statements that he intended to kill Vanessa. It also could infer the same intention from his escalating actions. Notably, he did not retreat after pistol-whipping Vanessa, even though she was heeding his orders and calling a friend to pick her up and remove her from the neighborhood. It is not reasonably probable in the face of this evidence that defendant would have fared better absent Freeman’s testimony about witness reluctance.

II. Sufficiency of the Evidence on Gang Enhancements

The jury found true two gang enhancements under section 186.22, subdivision (b)(1) (section 186.22(b)(1)), which provides for additional punishment for “any person who is convicted of a felony committed for the benefit, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.” Defendant concedes that both the attempted murder and the unlawful possession of a firearm[4] were gang-related felonies “committed for the benefit, at the direction of, or in association with any criminal street gang.” He challenges the sufficiency of the evidence as to the second prong of the enhancement, that the crimes were committed “with the specific intent to promote, further, or assist in any criminal conduct by gang members.”

Our Supreme Court has clarified that the words “any criminal conduct” in section 186.22(b)(1) mean what they say: the enhancement may apply to “any criminal conduct, without a further requirement that the conduct be ‘apart from’ the criminal conduct underlying the offense of conviction sought to be enhanced.” (People v. Albillar (2010) 51 Cal.4th 47, 66.) “‘There is no statutory requirement that this “criminal conduct by gang members” be distinct from the charged offense, or that the evidence establish specific crimes the defendant intended to assist his fellow gang members in committing.’” (Ibid., quoting People v. Vasquez (2009) 178 Cal.App.4th 347, 354.) In practice, this means that the enhancement may apply where the defendant specifically intends his or her current offense to support criminal conduct by gang members, or where he or she specifically intends the current crime to support another offense.

Defendant argues that neither situation was supported by the evidence here. He contends the current crimes, the attempted murder of Vanessa and his subsequent possession of a firearm, were not committed with the requisite intent because the statute says members, plural, and he was the only gang member present during both offenses. He further contends that there was no evidence as to how either crime would advance other criminal activity by gang members. We consider these contentions in reverse order.

“The substantial evidence standard of review applies to section 186.22 gang enhancements.” (People v. Augborne (2002) 104 Cal.App.4th 362, 371.) “In considering a challenge to the sufficiency of the evidence to support an enhancement, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted simply because the circumstances might reasonably be reconciled with a contrary finding.” (People v. Albillar, supra, 51 Cal.4th at pp. 59-60.) We do not reweigh the evidence or reevaluate the credibility of witnesses. (Id. at p. 60.)

Gang expert Freeman explicitly opined that a hypothetical crime matching the facts of the attempted murder “benefits the gang” by showing “how strong they are” and increasing the fear level within the community. He also testified that respect is a “driving force” for gangs, and that gangs gain respect “through power, domination, fear, [and] intimidation.” This testimony supports the inference that defendant intended his attempted murder of Vanessa to lay the groundwork for future crimes by Olive Street members. (Cf. People v. Albillar, supra, 51 Cal.4th at p. 63 [“Expert opinion that particular criminal conduct benefited a gang by enhancing its reputation for viciousness can be sufficient to raise the inference that the conduct was ‘committed for the benefit of . . . a[ ] criminal street gang’ within the meaning of section 186.22(b)(1).”].)

Whether defendant attacked Vanessa because she disrespected the gang, or because her ex-boyfriend did, the jury could infer that he intended his conduct to show Vanessa and other members of the neighborhood that such disrespect would not be tolerated and would be punished harshly. It is obvious that intimidation “makes it easier for the gang to continue committing the crimes for which it is known,” which Freeman testified included assaults, possession of deadly weapons, and drug sales. (People v. Vazquez, supra, 178 Cal.App.4th at p. 354.)

Defendant asserts that “[t]he only possible deduction that could be drawn from the evidence is that appellant and/or Vanessa’s brother wanted her out of the neighborhood” for personal reasons. He further suggests that the lack of evidence as to how Vanessa “dissed” Olive Street, or whether her brother in fact was an active member of the gang, undermined any inferences the jury could draw from Freeman’s testimony. We are not persuaded. While it may be possible to infer that defendant had a personal dispute with Vanessa, it is also possible that he wanted to teach her and others not to disrespect the gang. Competing inferences are not a basis for reversal under the substantial evidence standard. (See People v. Albillar, supra, 51 Cal.4th at pp. 59-60.) Reversal also is not warranted due to the uncertainty surrounding the type of “diss” Vanessa utilized or the status of her brother’s Olive Street membership. Regardless of the type of disrespect, the jury could infer that defendant’s response was calculated to forestall disrespect in the future. Likewise, it is not relevant whether Vanessa’s brother was an active gang member; the effect of defendant’s crime on the surrounding neighborhood was the same.

Defendant’s contention that his possession of a firearm in Olive Street territory was not intended to facilitate future Olive Street criminal activity is equally unpersuasive. The jury readily could infer from Freeman’s testimony about territory and respect that a gang member carrying a gun in his territory intended to bolster the gang’s standing in the neighborhood, which in turn would facilitate the successful commission of future crimes.

Defendant also argues that the charged crimes cannot fulfill the requirement of “any criminal conduct” under section 186.22(b)(1) because he was the only gang member present when they were committed. He frames this as a substantial evidence argument, stating, “there is insufficient evidence that either count one [the attempted murder] or count two [the gun possession] was committed with the specific intent to promote, further or assist in criminal activity by gang members.” However, the substantial evidence test is a poor fit for this argument, which rests on the premise that section 186.22(b)(1) may apply only when two or more gang members are present. Whether that premise is accurate is a question of statutory interpretation, which we review de novo. (People v. Prunty (2015) 62 Cal.4th 59, 71.)

Defendant relies on People v. Rodriguez (2012) 55 Cal.4th 1125, 1132 (Rodriguez) for the proposition that “to meet the third element of the substantive offense of active participation in a street gang, . . . the defendant must willfully advance, encourage, contribute to, or help members of his gang commit the felonious criminal conduct.” This proposition is accurate as far as it goes. The problem is that Rodriguez’s holding concerned the text of the substantive offense of gang participation enumerated in section 186.22, subdivision (a) (section 186.22(a)), not the gang enhancement from section 186.22(b)(1) at issue here, which a plurality of the Court expressly described as “strik[ing] at different things.” (Rodriguez, supra, 55 Cal.4th at p. 1138 (plur. opn. of Corrigan, J.).)

In Rodriguez, the question for the Court was whether a gang member violates section 186.22(a) if he or she commits a felony while acting alone. (Rodriguez, supra, 55 Cal.4th at p. 1128 (plur. opn. of Corrigan, J.).) Section 186.22(a) is a substantive felony offense committed by a “person who actively participates in any criminal street gang with knowledge that its members engage in, or have engaged in, a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang.”

(§ 186.22(a); see also Rodriguez, supra, 55 Cal.4th at p. 1128 (plur. opn. of Corrigan, J.) [previous version of statute].) The plurality relied on the “language and grammatical structure of the statute” to conclude that its “plain meaning . . . requires that felonious criminal conduct be committed by at least two gang members, one of whom can include the defendant if he is a gang member.” (Rodriguez, supra, 55 Cal.4th at p. 1132 (plur. opn. of Corrigan, J.).) It further reasoned that the Legislature “purposefully used the phrase ‘by members of that gang’ to qualify the scope of the statute,” because “the felonious conduct that is willfully promoted, furthered, or assisted need not be gang related.” (Id. at p. 1133.) The Court also observed that section 186.22(a) “unlike the gang enhancement in section 186.22(b)(1), does not require a specific intent to further or promote the gang,” and “does not require the underlying felony to be gang-related.” (Id. at pp. 1134-1135.) Thus, it concluded that the requirement of two or more gang members helped to ensure that mere gang membership would not be criminalized. (Id. at p. 1134.)

The Rodriguez plurality also addressed section 186.22(b)(1) in dicta. Specifically, it noted that section 186.22(b)(1) is distinct from and “strike[s] at different things” than section 186.22(a). (Rodriguez, supra, 55 Cal.4th at p. 1138 (plur. opn. of Corrigan, J.).) For instance, it observed, section 186.22(b)(1) punishes only gang-related conduct. (Ibid.) More importantly, the plurality opinion stated: “A lone gang member who commits a felony will not go unpunished; he or she will be convicted of the underlying felony. Further, such a gang member would not be protected from having that felony enhanced by section 186.22(b)(1), . . . . Because the gang enhancement under section 186.22(b)(1) requires both that the felony be gang related and that the defendant act with a specific intent to promote, further, or assist the gang, these requirements provide a nexus to gang activity sufficient to alleviate due process concerns.” (Id. at pp. 1138-1139, emphasis added.) The concurring opinion expressed similar sentiments, noting that “small but significant differences in grammar and context make clear that the enhancement provision lacks the same multiple-actor condition as the gang offense.” (Rodriguez, supra, 55 Cal.4th at p. 1140 (conc. opn. of Baxter, J.).)

“Even though the court’s comments on section 186.22(b)(1) in Rodriguez are dicta, Supreme Court dicta generally should be followed, particularly where the comments reflect the court’s considered reasoning.” (People v. Rios (2013) 222 Cal.App.4th 542, 563 (Rios).) Like the court in Rios, which was presented with the same issue we face here, we follow that dicta. As the Rios court explained: “The Rodriguez plurality relied on the availability of the sentencing enhancement as reassurance that its interpretation of section 186.22(a) would not leave lone gang members who commit gang-related felonies inadequately punished.” (Ibid.) “Since the court’s statements in dicta were not ‘inadvertent, ill-considered or a matter lightly to be discarded’ we consider them in our analysis. [Citation.]” (Ibid.) Like our colleagues in Rios, we also find “Justice Baxter’s interpretation of section 186.22(b)(1) persuasive.” (Id. at pp. 563-564.) We accordingly agree with the dicta in Rodriguez and the holding in Rios that section 186.22(b)(1) may be applied to a lone actor.

Given this statutory interpretation, defendant’s assertion that the enhancements must be stricken because there was no evidence that another gang member was present during his crimes must be rejected. No evidence of a second gang member was necessary to warrant application of the enhancement.

III. Section 12022.53, subdivision (h)

Defendant was sentenced to a term of 25 years to life under section 12022.53, subdivision (d), a firearms enhancement to the attempted murder conviction. At the time of his sentencing in late 2016, the trial court was required to impose that sentence. Senate Bill No. 620, effective January 1, 2018, amended section 12022.53, subdivision (h) to give the trial court, for the first time, the discretion to strike a section 12022.53 enhancement. The amendment applies to all cases, like defendant’s, not yet final on appeal when the amendment took effect. (See People v. Chavez (2018) 21 Cal.App.5th 971, 1020; People v. Woods (2018) 19 Cal.App.5th 1080, 1090.) The parties provided supplemental briefing to address the effect of the newly amended section 12022.53, subdivision (h) on this case.

Defendant contends that the amendment is applicable to his case and that we should remand the case for the trial court to exercise its discretion under section 12022.53, subdivision (h). The Attorney General concedes the amendment is retroactive but contends remand is “unnecessary because the record shows the trial court would not have exercised discretion to strike the firearm enhancement.” Specifically, the Attorney General argues the trial court is unlikely to strike the enhancement in light of what it identifies as three aggravating circumstances underlying the offense: a vulnerable victim, violent conduct indicating a serious danger to society, and numerous prior convictions of increasing severity. The Attorney General also notes that the trial court denied defendant’s Romero motion, which it argues demonstrates that the court already exercised its discretion in favor of a harsher sentence for defendant. (See People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 [remand is required “unless the record shows that the sentencing court clearly indicated that it would not . . . have exercised its discretion to strike the allegations”].)

We agree with defendant that a remand is appropriate. The court’s comments regarding the Romero motion and at sentencing generally were brief and do not permit us to conclude categorically that the court would not exercise its discretion under section 12022.53, subdivision (h) to strike the subdivision (d) enhancement. By remanding, we are not suggesting how the court should exercise its discretion, but rather giving it the opportunity to do so in the first instance.

DISPOSITION

The judgment is affirmed. The case is remanded for the trial court to exercise its discretion under section 12022.53, subdivision (h).

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, J.

We concur:

MANELLA, P. J.

MICON, J.*