Filed 4/18/17 P. v. Guzman CA6
On remand
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT


THE PEOPLE,

Plaintiff and Respondent,

v.

JONATHAN ISMAEL GUZMAN,

Defendant and Appellant.
H039286
(Santa Clara County
Super. Ct. No. C1198262)

STATEMENT OF THE CASE
A jury convicted defendant Jonathan Ismael Guzman of first degree murder (Pen. Code, §§ 187/189). The jury found true an allegation that defendant personally and intentionally discharged a firearm causing death (§ 12022.53, subd. (d)) and found true an allegation that defendant committed murder for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)). The trial court sentenced defendant to a total prison term of 50 years to life, consisting of a term of 25 years to life for the murder and a term of 25 years to life for the firearm enhancement.
Defendant appealed. On appeal, he argued that there was insufficient evidence to support the “primary activities” element of the gang enhancement. He also argued that his sentence constituted cruel and unusual punishment because he was only 17 years old when he committed the charged crime.
In an unpublished opinion (People v. Guzman (Apr. 14, 2015, H039286) [nonpub. opn.]), we affirmed the judgment of conviction. The California Supreme Court granted review on the issue of cruel and unusual punishment, deferred briefing, and then transferred the matter back to this court with directions to vacate our decision and reconsider the cause in light of People v. Franklin (2016) 63 Cal.4th 261, 283-284 (Franklin).
We have reconsidered the matter in light of Franklin. We reissue our earlier opinion, with the exception of the Franklin issue. Pursuant to Franklin, we will “remand the matter to the trial court for a determination of whether [defendant] was afforded sufficient opportunity to make a record of information relevant to his eventual youth offender parole hearing.” (Franklin, supra, 63 Cal.4th at p. 284.) In all other respects, we will affirm the judgment of conviction.
STATEMENT OF THE FACTS
The Shooting
At approximately 5:00 p.m. on January 21, 2011, Hugo Gutierrez rode a bicycle on Capitol Expressway in San Jose. Defendant, who was also riding a bicycle, followed Gutierrez. Defendant pointed a gun at Gutierrez and fired. Gutierrez got off his bicycle, ran toward a restaurant, and fell down outside the restaurant. Defendant jumped off his bicycle and walked toward Gutierrez. Gutierrez attempted to stand up, but he lost his footing. Gutierrez put up his hands in an effort to shield himself, and he screamed for help. Defendant began “rapidly firing” the gun at Gutierrez. Gutierrez was “just lying there” on the ground, and defendant fired multiple shots at him. Defendant then jumped on his bicycle and rode away.
Gutierrez suffered gunshot wounds on his chest, abdomen, arms, and legs. One of the bullets struck Gutierrez’s heart, and it killed him.
Gang Evidence
At the time of the shooting, defendant was a member of Kollmar Vago Trece (hereafter “KVT”), a Sureño street gang. Gutierrez was a member of Just Busting Funk (hereafter “JBF”), a Norteño street gang. There is a longstanding rivalry between Sureño gangs and Norteño gangs.
Gang Detective Carlos Garcia testified as an expert in “Hispanic criminal street gangs, specifically KVT.” His expertise was based on the following: academic training regarding criminal street gangs; four and a half years of patrolling the streets of San Jose, including gang areas; contact and conversations with 250 gang members and affiliates, including KVT members; regular conversations with gang detectives and homicide detectives, including conversations regarding the operations of KVT; and conversations with agents from other law enforcement agencies.
Detective Garcia opined that, as of January 21, 2011, the primary activities of KVT were assaults with deadly weapons and firearms possession as prohibited by former section 12025. He explained that KVT members engaged in those activities “regularly” and on a “consistent basis,” not just occasionally. His opinion regarding the primary activities of KVT was based on conversations with gang members, conversations with other law enforcement officials, and prior police documentation.
Detective Garcia described prior crimes committed by KVT members. On July 15, 2010, two KVT members were in a car, and they possessed a sawed-off shotgun and shotgun ammunition. A KVT member committed assault with a deadly weapon, a stabbing with a knife, on November 20, 2008. Detective Garcia explained that “violence is very important in the gang world,” that gang members “must show a reputation of being violent and powerful,” and that gangs gain power and respect through violence.
Detective Garcia opined that defendant killed Gutierrez for the benefit of KVT. He explained that Gutierrez was a Norteño gang member, and he was riding his bicycle in KVT territory. Gutierrez’s conduct was the “ultimate form of disrespect in gang culture.” Gang members retaliate against such disrespect with “public acts of violence.” Defendant’s “very public” act of violence increased KVT’s power and influence because it showed that KVT members would “do whatever is necessary” to protect their territory.
DISCUSSION
I. Sufficiency of the Evidence
Defendant contends that we must reverse the gang enhancement because there was insufficient evidence to establish the “primary activities” element of the enhancement. As explained below, we conclude that that the prosecution presented sufficient evidence in support of the gang enhancement.
A. Standard of Review
“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.” (People v. Albillar (2010) 51 Cal.4th 47, 59-60.) “The question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the elements of the underlying enhancement beyond a reasonable doubt.” (People v. Alvarez (1996) 14 Cal.4th 155, 225, italics omitted.) “In making this determination, we do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses.” (People v. Cortes (1999) 71 Cal.App.4th 62, 71.)


B. The Prosecution Presented Sufficient Evidence
In order to prove the gang enhancement, the prosecution had to present substantial evidence establishing that KVT was a “criminal street gang.” (§ 186.22, subd. (b)(1); People v. Vy (2004) 122 Cal.App.4th 1209, 1221 (Vy).) Section 186.22 defines that term as “any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.” (§ 186.22, subd. (f).) “Therefore, the ‘criminal street gang’ component of a gang enhancement requires proof of three essential elements: (1) that there be an ‘ongoing’ association involving three or more participants, having a ‘common name or common identifying sign or symbol’; (2) that the group has as one of its ‘primary activities’ the commission of one or more specified crimes; and (3) the group’s members either separately or as a group ‘have engaged in a pattern of criminal gang activity.’ ” (Vy, supra, 122 Cal.App.4th at p. 1222.)
Here, Detective Garcia opined that the primary activities of KVT were assaults with deadly weapons and firearms possession in violation of former section 12025. Defendant does not dispute that those offenses are qualifying crimes enumerated in section 186.22, subdivision (e). Rather, he contends that there was insufficient evidence that KVT members consistently committed those crimes.
“The phrase ‘primary activities,’ as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes is one of the group’s ‘chief’ or ‘principal’ occupations. [Citation.] That definition would necessarily exclude the occasional commission of those crimes by the group’s members.” (People v. Sengpadychith (2001) 26 Cal.4th 316, 323.) “Sufficient proof of the gang’s primary activities might consist of evidence that the group’s members consistently and repeatedly have committed criminal activity listed in the gang statute. Also sufficient might be expert testimony . . . .” (Id. at p. 324, italics in original.) “[E]vidence of either past or present criminal acts listed in subdivision (e) of section 186.22 is admissible to establish the statutorily required primary activities of the alleged criminal street gang.” (Id. at p. 323.) The jury may “consider the circumstances of the charged crimes on the issue of the group’s primary activities.” (Id. at p. 320.)
Contrary to defendant’s assertion, the prosecution presented substantial evidence in support of the primary activities element of the gang enhancement. Detective Garcia opined that KVT members committed assaults with deadly weapons and committed firearms possession in violation of former section 12025 “regularly” and “on a consistent basis.” He had an adequate basis upon which to base his opinion; his opinion was based on conversations with KVT members and members of other gangs, regular conversations with other law enforcement officials, and police documentation of KVT activities. (See Vy, supra, 122 Cal.App.4th at p. 1223, fn. 9 [a gang expert may give opinion testimony that is based upon hearsay, including conversations with gang members and information the expert has learned from colleagues and law enforcement agencies].) Detective Garcia’s opinion testimony was sufficient to establish the primary activities element of the gang enhancement. Other evidence, however, bolstered his opinion. The prosecution presented evidence of crimes committed by KVT members between 2008 and 2011: a stabbing in 2008, possession of a sawed-off shotgun in 2010, and defendant’s use of a gun to kill Gutierrez in 2011. Detective Garcia also testified that “violence is very important in the gang world,” and he explained that gang members must engage in violence in order to gain power and respect. The evidence of KVT’s crimes between 2008 and 2011, combined with Detective Garcia’s testimony regarding the importance and necessity of violence in gang culture, strongly suggested that KVT members consistently and repeatedly committed assaults with deadly weapons and possessed firearms in violation of former section 12025. Accordingly, based on the totality of the foregoing evidence, we conclude that there was sufficient evidence to support the primary activities element of the gang enhancement. (See People v. Martinez (2008) 158 Cal.App.4th 1324, 1330 [sufficient evidence established the primary activities element where an expert testified that the gang’s primary activities included offenses enumerated in section 186.22 and the charged offense was consistent with the expert’s testimony].)
Defendant asserts that there was insufficient evidence to support the primary activities element because Detective Garcia “offered no evidence of the number” of times KVT members committed assaults with deadly weapons and possessed firearms in violation of former section 12025. Defendant emphasizes that Detective Garcia did not provide “meaningful numbers that would allow the jury to reach an informed conclusion.” Defendant’s argument is unconvincing. Defendant concedes that no authority requires an expert to state the specific number of times a gang has engaged in its primary activity. Moreover, although it might have been helpful to the jury if Detective Garcia had provided specific numbers, we cannot conclude that the such testimony was necessary here. As explained above, we believe that the totality of the evidence provided an adequate basis for the jury to conclude that KVT members consistently and repeatedly committed assaults with deadly weapons and possessed firearms in violation of former section 12025. We therefore must conclude that sufficient evidence supported the primary activities element of the gang enhancement.
II. Cruel and Unusual Punishment
In his opening brief, defendant contends that his sentence of 50 years to life constitutes cruel and unusual punishment under Miller v. Alabama (2012) 567 U.S. 460, [132 S.Ct. 2455] (Miller) because he was only 17 years old at the time of his offense. This argument is premised on the notion that his sentence is the functional equivalent of life without parole (hereafter “LWOP”).
Defendant has filed a supplemental brief “to discuss how Franklin, supra, 63 Cal.4th 261 applies to his case.” In that brief, defendant concedes that he “does not need to be resentenced,” and he instead asserts that Franklin requires this court to “remand the matter to the trial court for a determination of whether [he] was afforded a sufficient opportunity to make a record of information relevant to his eventual youth offense parole hearing.”
A. Legal Principles
In Miller, the United States Supreme Court held that “mandatory [LWOP] for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’ ” (Miller, supra, 567 U.S. 460, ___ [132 S.Ct. at p. 2460].) Miller further held that a court that imposes LWOP on a juvenile offender must “take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” (Id. at p. 2469, footnote omitted.) “[A] juvenile may not be sentenced to the functional equivalent of LWOP for a homicide offense without the protections outlined in Miller.” (Franklin, supra, 63 Cal.4th at p. 276.)
In response to Miller, our Legislature passed Senate Bill No. 260, which added sections 3051, 3046, subdivision (c), and 4801, subdivision (c) to the Penal Code. (Franklin, supra, 63 Cal.4th at pp. 276-277.) “At the heart of Senate Bill No. 260 was the addition of section 3051, which requires the [Board of Parole Hearings] to conduct a ‘youth offender parole hearing’ during the 15th, 20th, or 25th year of a juvenile offender’s incarceration.” (Id. at p. 277, citing § 3051, subd. (b).) At such a hearing, the Board of Parole Hearings “shall give great weight to the diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner in accordance with relevant case law.” (§ 4801, subd. (c).)
In Franklin, our Supreme Court held that Senate Bill No. 260 has rendered moot any claim that a lengthy sentence violates Miller. (Franklin, supra, 63 Cal.4th at pp. 276-277.) Despite the conclusion regarding mootness, Franklin went on to hold: “Although [the defendant’s] constitutional claim has been mooted . . . , he raises colorable concerns as to whether he was given adequate opportunity at sentencing to make a record of mitigating evidence tied to his youth. The criteria for parole suitability set forth in Penal Code sections 3051 and 4801 contemplate that the [Board of Parole Hearings’] decisionmaking at [the defendant’s] eventual parole hearing will be informed by youth-related factors, such as his cognitive ability, character, and social and family background at the time of the offense. Because [the defendant] was sentenced before the high court decided Miller and before our Legislature enacted Senate Bill No. 260, the trial court understandably saw no relevance to mitigation evidence at sentencing. In light of the changed legal landscape, we remand this case so that the trial court may determine whether [the defendant] was afforded sufficient opportunity to make such a record at sentencing. This remand is necessarily limited; as section 3051 contemplates, [the defendant’s] two consecutive 25-years-to-life sentences remain valid, even though the statute has made him eligible for parole during his 25th year of incarceration.” (Id. at pp. 268-269.)
B. We Must Remand the Matter to the Trial Court
Here, Senate Bill No. 260 has mooted defendant’s claim that his sentence constitutes cruel and unusual punishment under Miller. (Franklin, supra, 63 Cal.4th at pp. 276-277.) However, defendant was sentenced before Senate Bill No. 260 became effective, and he thus “raises colorable concerns as to whether he was given adequate opportunity at sentencing to make a record of mitigating evidence tied to his youth.” (Id. at p. 269.) Thus, like Franklin, we affirm defendant’s sentence but remand the matter to the trial court for the “limited purpose” of determining whether defendant “was afforded sufficient opportunity to make a record of information relevant to his eventual youth offender parole hearing.” (Id. at pp. 284, 286-287.) “If the trial court determines that [defendant] did not have sufficient opportunity, then [it] may receive submissions and, if appropriate, testimony pursuant to procedures set forth in section 1204 and rule 4.437 of the California Rules of Court, and subject to the rules of evidence. [Defendant] may place on the record any documents, evaluations, or testimony (subject to cross-examination) that may be relevant at his eventual youth offender parole hearing, and the prosecution likewise may put on the record any evidence that demonstrates the juvenile offender’s culpability or cognitive maturity, or otherwise bears on the influence of youth-related factors.” (Id. at p. 284.)
DISPOSITION
Pursuant to Franklin, “we remand the matter to the trial court for a determination of whether [defendant] was afforded sufficient opportunity to make a record of information relevant to his eventual youth offender parole hearing.” (Franklin, supra, 63 Cal.4th at p. 284.) In all other respects, the judgment is affirmed.
 

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RUSHING, P.J.






WE CONCUR:






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PREMO, J.






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GROVER, J.










People v. Guzman
H039286