Filed 8/22/18 P. v. Timberlake CA5

Opinion following rehearing

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. John R. Brownlee, Judge.

Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Michael Dolida, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

A jury acquitted appellant Paul Timberlake of first degree murder, but convicted him of the lesser included offense of second degree murder (Penal Code, § 187, subd. (a); count 1).[1] It also found him guilty of being a felon in possession of a firearm (§ 29800, subd. (a)(1); count 2); carrying a loaded firearm as an active street gang member (§ 25850, subd. (c)(3); count 3); and being an active member of a criminal street gang (§ 186.22, subd. (a); count 4). It found not true as to count 1, but true as to count 2, that the offense was committed for the benefit of or in association with a criminal street gang (§ 186.22, subd. (b)(1)); and found true, as to all counts, personal firearm use enhancements (§§ 12022.5, subd. (a); 12022.53, subd. (d)). In a bifurcated proceeding, the trial court found Timberlake suffered two prior strike convictions (§ 667, subds. (c)-(j)), two prior serious felony convictions (§ 667, subd. (a)(1)), and served two prior prison terms (§ 667.5, subd. (b)).

The trial court sentenced Timberlake to an aggregate term of 65 years to life, consisting of 15 years to life, doubled, for count 1, plus 25 years to life (§ 12022.53, subd. (d)), plus two five year terms (§ 667, subd. (a)). The trial court stayed life terms on counts 2, 3, and 4 pursuant to section 654.

Timberlake appealed, contending (1) the trial court admitted gang related testimonial hearsay in violation of People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), and (2) his murder conviction was prejudiced by that inadmissible testimonial hearsay.

After we filed an unpublished opinion affirming the judgment, Timberlake filed a petition for rehearing arguing that the case must be remanded for resentencing because, while his appeal was pending, section 12022.53 was amended to give trial courts the discretion to strike a firearm enhancement in the interest of justice. We granted the petition to consider the issue. We remand the matter for further consideration of the sentencing issue and otherwise affirm the judgment.

STATEMENT OF THE FACTS

On the evening of November 7, 2014, Timberlake and his friend, Donnell Robinson, a Country Boy Crip, went to a “fish fry” and to have a couple of drinks at a friend’s house. Later, Timberlake and Robinson went to purchase more alcohol and then headed to Martini’s, a bar adjoining a bowling alley in Bakersfield.

At Martini’s, Timberlake and Robinson socialized in the parking lot with other members of the Country Boy Crips. Also in the parking lot were members of a rival gang, the Eastside Crips.

Shortly before 10:30 p.m., a red Infiniti, driven by Eastside Crip Lionell McGee, stopped in the parking lot near Robinson’s vehicle. Timberlake noticed the red Infiniti and thought it was unusual because it was parked laterally across the front of several parking spaces instead of in the parking space. After McGee got out of the Infiniti, Timberlake approached him from the rear of the car. According to Timberlake, McGee was not smiling and put his hand into his left jacket pocket. Timberlake pulled out a gun and shot McGee three times.

As Timberlake was running back to Robinson’s vehicle, he was shot in the back. Robinson drove Timberlake to the hospital for treatment.

Police Officer Jess Beagley and other officers responded to a chaotic scene at Martini’s. Fifty to sixty people were milling about in the parking lot and cars were leaving. Officer Beagley found McGee dead on the ground. McGee had entry and exit wounds in the center of his chest, as well as a gunshot wound to the front of his head. Three vehicles in the parking lot, including the red Infiniti, and the wall of a neighboring motel had evident bullet strikes.

Law enforcement obtained a surveillance video depicting the shooting from a camera positioned on the southwest corner of a nearby motel. The video was admitted as People’s Exhibit 35 and played for the jury.

Timberlake testified on his own behalf. He admitted shooting McGee, but claimed he did so in self-defense. He threw the gun into a dumpster across the street before going to the hospital to have his own gunshot wounds treated. Timberlake’s recorded police interview, in which he denied shooting McGee, was admitted as People’s Exhibit 46 and played for the jury.

Timberlake admitted having associated with the Country Boy Crips, admitted being a gang member at the time of his 2007 conviction for drug sales, but testified he dropped out of the gang on his release from prison in 2009. Although he claimed he was no longer a Country Boy Crip when he shot McGee, he admitted he still carried a gun for protection because of his past association with the gang.

Timberlake acknowledged making the rap videos shown at trial in 2013 and 2014. He also admitted having 100 tattoos, but claimed only five or six were gang related and those were “over ten years old.”

DISCUSSION

1. GANG EVIDENCE

Timberlake’s Contention

Timberlake contends the admission of evidence in support of the prosecution’s expert witness’s testimony violated Sanchez, supra, 63 Cal.4th 665, which was decided after the trial in this case, and the confrontation clause under the United States Constitution. Although we agree that some of the evidence presented in support of the gang expert’s opinions was inadmissible hearsay under the rule expressed in Sanchez, we review for prejudice under the standard articulated in Chapman v. California (1967) 386 U.S. 18, 24 (Chapman). (See Sanchez, supra, 63 Cal.4th at pp. 670-671, 698.) The People must show, beyond a reasonable doubt, that the error did not contribute to the jury’s verdict. (Id. at p. 698.) The erroneous admission of non-testimonial hearsay is a state law error, which is assessed for prejudice under People v. Watson (1956) 46 Cal.2d 818, 836. (Crawford v. Washington (2004) 541 U.S. 36, 61 (Crawford); People v. Duarte (2000) 24 Cal.4th 603, 618-619.)

“ ‘To say that an error did not contribute to the ensuing verdict is … to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.’ [Citation.] Thus, the focus is what the jury actually decided and whether the error might have tainted its decision.” (People v. Neal (2003) 31 Cal.4th 63, 86.)

Procedural Background

The People filed a motion in limine to introduce evidence of other crimes committed by members of the Country Boy Crips in support of expert testimony from Detective Robert Pair that the Country Boy Crips were a criminal street gang, as defined in the so-called STEP Act, section 186.20, et seq., and that Timberlake was an active member of that gang when the instant crimes were committed. The People offered six separate instances of criminal conduct by members of the gang, including Timberlake’s own convictions for a 2001 shooting and a 2007 narcotics sale. Over defense objection, the trial court allowed the People to present hearsay evidence of that criminal conduct to support Pair’s opinions, relying on People v. Gardeley (1996) 14 Cal.4th 605 (Gardeley).[2]

Timberlake argued that because the People had evidence available of predicate crimes committed by other gang members necessary to prove the gang allegations, the court should exclude evidence of his prior criminal conduct under Evidence Code section 352 to avoid any prejudicial effect of the jury hearing of his past criminal conduct and gang associations.

Weighing the prejudicial effect of that evidence against its probative value, the trial court, relying on People v. Tran (2011) 51 Cal.4th 1040 (Tran), concluded that evidence of Timberlake’s own convictions was particularly probative of his knowledge that members of the gang engaged in a pattern of criminal gang activity. Acknowledging the potential for cumulative prejudice, the trial court limited the number of additional predicate crimes.

Consistent with the court’s in limine ruling, the People presented evidence through Pair’s testimony and certified court dockets of two separate murder cases in 2007 and 2013 and a 2013 drive-by shooting, all of which were committed by other Country Boy Crips.

Gang Evidence at Trial

At trial, Pair testified he had been with the Bakersfield Police Department for almost 15 years. At the time of trial, he had been assigned to the Federal Bureau of Investigation’s violent crime gang task force for the past year, due to his expertise in the area of criminal street gangs in Bakersfield. Prior to his FBI assignment, Pair worked the gang unit at the police department from 2005-2006 and from 2014-2015. He stated that throughout his career, with the exception of the past year, he operated a patrol vehicle within the traditional boundaries of street gangs in Bakersfield and had devoted his entire career “to furthering [his] knowledge of Bakersfield street gangs.” Prior to his FBI assignment, he had contact with members of local gangs almost daily, “hundreds and hundreds of gang members.” He had arrested, interviewed and spoken to gang members, some of which occurred during consensual contacts.

Pair testified Bakersfield is primarily “a Crip town”; the majority of African-American gang members are Crips. There are three main sets of Crips: the Eastside Crips, the Westside Crips, and the Country Boy Crips. The Eastside Crips is the largest of the three, and historically the Westside Crips and Country Boy Crips align together against the Eastside Crips.

Pair described the gangs as having neighborhood territories with boundaries. If members of one gang cross into another gang’s territory, the response might typically be an act of violence, often shootings. He described the Country Boy Crips as the most organized of the three Crip sets, with rank structure. According to Pair, status is important in a criminal street gang and respect, which is synonymous with fear, “is everything.” The most respected members of the gang are those who commit acts of violence. Gang members enhance their reputations within their own gangs by aiding in criminal activity, especially violent acts.

Pair testified that symbols associated with the Country Boy Crips include “SS” for South Side; “NC” for Neighborhood Country; the color powder blue or baby blue; articles affiliated with the North Carolina Tar Heels; the initials “CBC” for Country Boy Crips; and “323” for the numerical positions of the letters CBC.

Pair testified he had been present while other officers had contact with Timberlake, but had not spoken with him. In preparing for trial, he reviewed documents and contacts Timberlake had had with police, including street checks and general offense reports. In addition, he examined photographs of Timberlake, identifying numerous gang related tattoos: an “NC” logo; “Lil Clacc,” Timberlake’s gang moniker (there were other Country Boy Crips with the “Clacc” moniker as well); “RC BLK” and “RCBK” which stood for the Reese and Cheatham streets subset of the Country Boy Crips; “CBC” for Country Boy Crips; “South Side Crips”; a tattoo of the Cottonwood Market, which is at the heart of Country Boy Crips territory; “SS” for South Side; “NC” for Neighborhood Country; “RC” and “WL” for subsets of the gang; “fucc eggs,” “eggs” being derogatory for Eastside Crips, and “cc” is issued in place of “ck,” which refers to “Crip killers”; and a tattoo of a cracked egg and the phrase “eggshell killa.” He also examined photographs taken in 2000 of Timberlake wearing a T-shirt with writing that said, “eggshell kills,” a reference to the violent rivalry between the Country Boy and Eastside Crips, along with a list of various Eastside subsets. On the back of the shirt, referred to as a “dead homie shirt,” was lettering indicating membership in the Country Boy Crips and referencing a decedent, a fellow gang member’s name.

To further establish Timberlake’s identity as a Country Boy Crip, Pair reviewed various police reports by other officers including details of the 2001 shooting from a report prepared by Sergeant Heredia, and reports of contacts with Timberlake and other members of the gang by other officers in which Timberlake was identified as a member of the gang. A few of the officers on whose reports Pair relied testified at the trial as to those contacts, but in other instances, the information contained in those reports was not supported by other competent evidence.

In support of his opinions, Pair also reviewed two rap videos made by Timberlake, depicting him and other members of the Country Boy Crips flashing hand signs and wearing gang clothing with symbols associated with the gang, “Mob’n” made in 2013 and “So Hood” made in 2014. Those videos were shown to the jury and Pair testified to still photos taken from them, identifying numerous known Country Boy Crip gang members, including Timberlake and Al Capone Dixon.

Pair testified about three other cases involving the commission of predicate offenses by members of the Country Boy Crips gang, a 2007 drive-by shooting resulting in murder convictions of three members of the gang, a 2013 shooting of a rival gang member resulting in murder convictions of two other members of the gang, and a 2013 drive-by shooting resulting in the conviction of Al Capone Dixon and other members of the gang. In testifying to these predicate offenses, he did not state, nor was he asked, whether he was or was not involved in the investigation of any of those three cases.

According to Pair, some of the primary activities of the Country Boy Crips include assaults with firearms, assaults, witness intimidation, narcotic sales, and murder. He opined Timberlake was currently an active gang member based on the reports of other officers, some of whom testified at trial, and based on all of the information he had personally seen, Timberlake’s tattoos and “social media presence,” including the photos and video of Timberlake and other gang members admitted in evidence. He concluded Timberlake was a “high-ranking member of the Country Boy Crips” when the instant crimes were committed.

In response to a hypothetical mirroring the facts of the instant case, Pair opined the killing of McGee, a member of a rival gang, was done for the benefit of, at the direction of, or in association with the Country Boy Crips. He explained the murder helped “get[] rid of a rival,” which “can’t help but to benefit their gang.” Committing an act of violence increased personal respect within the gang and fear in the general public.

Applicable Law

Relying on the Supreme Court’s direction in Gardeley, supra, 14 Cal.4th 605, the trial court permitted Pair to testify to matters beyond his personal knowledge as the basis of his opinions that the Country Boy Crips were a criminal street gang and Timberlake and others were members of that gang. Those matters included general background information relating to the Country Boy Crips derived from his extensive training and experience as a gang detective in the city of Bakersfield and its surrounding communities. Such information, not relating case-specific facts, continues, after Sanchez, to be the kind of general hearsay admissible to explain an expert’s field of expertise and the basis of his or her expert opinions. (Sanchez, supra, 63 Cal.4th at pp. 676, 698.)

In Sanchez, however, our Supreme Court overruled Gardeley and held that an expert cannot relate “case-specific facts” about which he has no independent knowledge unless they are independently proven by competent evidence or are covered by a hearsay exception. (Id. at p. 676.) “Case-specific facts are those relating to the particular events and participants alleged to have been involved in the case being tried.” (Ibid.) In circumstances where the case-specific hearsay is testimonial, as discussed in Crawford, supra, 547 U.S. 36, the admission of such testimony violates the confrontation clause of the United States Constitution.

Timberlake contends the “overwhelming proportion” of the gang evidence Pair presented was in fact case-specific testimonial hearsay admitted in evidence in violation of the rules expressed in Sanchez and Crawford. We disagree.

Gang Membership and Active Participation

Timberlake cites the following evidence as case-specific testimonial hearsay testified to by Pair: (a) information from Sergeant Heredia’s report concerning the 2001 shooting during which Timberlake stated “I’m Country,” a reference to the Country Boy Crips; (b) information about a 2004 traffic stop by Sergeant Burdick in which Timberlake and other gang members were located in the 900 block of Bradshaw, known gang territory, and all in the vehicle, including Timberlake were identified as Country Boy Crips; (c) information from Sergeant Sherman about a statement made at the trial of three Country Boy Crips charged with a 2007 murder, in which one of the defendants identified Timberlake as a member of the gang with the nickname, “Lil Clacc”; and (d) information from Officer Littlefield describing a 2010 contact with Timberlake in which he claimed he was “from the RC block.”

Although much of the information taken from those reports may have been case-specific testimonial hearsay, most of it was proved by other admissible evidence and nearly all of it was undisputed during the trial.

As to the information from Sergeant Heredia’s report, Timberlake testified at trial that he shot at a house following an altercation in 2001, resulting in his conviction and imprisonment. Although he denied the incident was gang-motivated and claimed he was only “affiliated” with the gang at the time, other evidence, including Pair’s testimony based on his review of photos of Timberlake taken at the time of the shooting, supported the conclusion Timberlake was a Country Boy Crip gang member at the time.

As to the information obtained from Sergeant Burdick and Sergeant Sherman, Pair’s testimony was certainly inadmissible hearsay, and perhaps testimonial, but the information from those reports was likewise undisputed and proved by other admissible evidence. In his trial testimony, Timberlake did not dispute he was a member of the gang in 2004, or in 2007 when the gang crime referred to in Sergeant Sherman’s report occurred. He testified he dropped out of the gang after his drug conviction in 2007 and no longer associated with the gang after his release from prison in 2009. He acknowledged he was affiliated with the gang at the time of the 2001 shooting and admitted his nickname was “Lil Clacc.” Moreover, other admissible evidence proved Timberlake was a member of the gang at those times, including photos of him depicting tattoos with the nickname “Lil Clacc” and a tattoo of a gang-related location dated “2007 Wingstone”.

Finally, although the information from Officer Littlefield’s report was inadmissible hearsay, the fact that Timberlake was “from the RC block,” a reference to the neighborhood he was from, was undisputed during trial and likewise proven by other admissible evidence. In his trial testimony, Timberlake acknowledged he had “RC block” tattoos on his forearm and shoulder. Those tattoos were depicted in photos received in evidence, and Pair explained their significance.

To the extent that inadmissible hearsay supported Pair’s opinions that Timberlake continued to be a gang member after his 2007 conviction and his 2009 release from prison, those opinions were supported by substantial, competent evidence.

Officer Brent Stratton testified he came in contact with Timberlake on February 27, 2010, during a “street check” at a location within Country Boy Crips territory. During the encounter, Timberlake admitted to Stratton he was a member of the Country Boy Crips. Later in 2010, Stratton again encountered Timberlake in the same location. At that time, Timberlake reaffirmed his affiliation with the gang and told Stratton his nickname was “Little Clacc.” In addition, Officer Matt Gregory testified to a February 2011 search of Timberlake’s home in which two CD’s were located in the garage with “Clacc2” handwritten on them. Gregory testified, consistent with Pair’s testimony, that the use of the letters “cc” was consistent with Crips gang culture. Finally, Pair testified that Timberlake continued to be a high-ranking member of the gang, despite his claim to have dropped out in 2007, based on photographic evidence taken in 2013 and 2014 and properly admitted in evidence. Timberlake has failed to demonstrate any prejudice from the admission of inadmissible case-specific testimonial hearsay in violation of Sanchez and Crawford through Pair’s testimony.

In addition to hearsay related by Pair, Timberlake argues Officer Dickson was allowed to testify to inadmissible hearsay in relation to his testimony relating a statement made by a gang member who volunteered information identifying Timberlake as shot caller for the Country Boy Crips. The statement attributed to the gang member, although inadmissible hearsay, would not appear to be testimonial in violation of the confrontation clause and Crawford (Crawford, supra, 541 U.S. at pp. 38, 42, 50-51) as the statement was made by a passenger in a vehicle stop, where there was no ongoing criminal investigation and no one was arrested. We need not decide because we find no prejudice in the admission of that hearsay statement.

Any inadmissible hearsay from a gang member as to Timberlake’s rank and continued membership in the gang in 2013 was cumulative of other admissible evidence on that same subject. Pair’s opinion of Timberlake’s “high standing” in the gang did not rely on the hearsay offered by Officer Dickson. As Pair indicated, it was the photo and video evidence admitted into evidence that convinced him of Timberlake’s standing as a shot caller. Again, we find any error in admitting hearsay from another gang member was not prejudicial.

Predicate Offense Evidence

Section 186.22, subdivision (e) requires the prosecution to prove the commission or attempted commission of at least two predicate offenses listed in that subdivision in order to prove the gang offenses and enhancements. (§§ 186.22, subds. (a) & (b); 25850, subd. (c)(3).)

Timberlake argues the evidence of predicate offenses offered to prove the pattern of criminal gang activity was based exclusively on inadmissible case-specific hearsay from criminal investigations in which Pair was not involved and of which he had no personal knowledge. He also argues there was no admissible evidence the perpetrators of the predicate crimes were members of the gang. While we agree that there was no admissible evidence that the perpetrators of the murders in 2007 and 2013 were members of the gang, we find there was admissible evidence that the perpetrators of other predicate offenses, including offenses committed by Timberlake himself, were members of the gang at the time those offenses were committed.

The jury was instructed that, if they found Timberlake guilty of the crimes charged, they could consider those crimes in deciding whether the pattern of criminal gang activity had been proved. (CALCRIM No. 1401.) It was undisputed during the trial that Timberlake unlawfully possessed the gun used to kill McGee. Although Timberlake testified he had dropped out of the gang after 2007, there was substantial evidence that he continued to be a member of the gang, and the verdicts of the jury, including their findings on the substantive gang crimes, confirm their conclusion that he was actively participating in the gang at the time of the murder charged in count 1.

In addition to the charged crimes, Pair testified about a 2013 drive-by shooting committed by Al Capone Dixon and other identified members of the gang who shot at a residence within a rival gang’s territory. Although Pair related circumstances of the shooting beyond his personal knowledge, the commission of that crime and Dixon’s conviction for assault with a semi-automatic firearm were proven through a certified court docket (Exhibit 106) properly admitted in evidence. (Evid. Code, §§ 1280; 452.5.) The court docket did not, however, identify Dixon or the other perpetrators as Country Boy Crips.

Pair testified that Al Capone Dixon, one of the perpetrators in that drive-by shooting, was a member of the gang in 2013. The record demonstrates his opinion was based on his own personal knowledge, based on his examination of photos and videos admitted in evidence. He identified Dixon in photos taken from the 2013 video, which depicted Dixon, Timberlake and other gang members at a known Country Boy Crip hangout, wearing gang colors and clothing, displaying gang symbols, and making gang hand signs. (Exhibits 71, 72, 92-101.) He opined the individuals depicted in those photos, particularly including both Timberlake and Al Capone Dixon, were all members of the Country Boy Crips.

As discussed in Sanchez, supra, 63 Cal.4th at page 677, a gang expert’s opinions may be based not only on personal knowledge of clothing, tattoos and behaviors consistent with gang membership, but also by reviewing an “authenticated photograph” depicting those things, just as Pair did here in identifying Timberlake and Al Capone Dixon. We find that the commission of a second predicate offense, i.e., the drive-by shooting in 2013, coupled with Al Capone Dixon’s identification as a member of the Country Boy Crips, was proved by competent admissible evidence, despite the admission of inadmissible hearsay as to that predicate crime.

Although not necessary to our conclusion, we note the jury heard admissible testimony concerning Timberlake’s commission of the 2001 shooting and subsequent conviction which also could satisfy the predicate offense requirement to prove a pattern of criminal gang activity.

Based on our conclusion there was admissible evidence of at least two separate predicate crimes committed by members of the gang on separate occasions, we reject Timberlake’s contention the jury verdicts and findings on the gang crimes and enhancements must be set aside.

2. MURDER CONVICTION

Timberlake contends the prejudicial effect of inadmissible hearsay concerning the gang may have inflamed the jury and prejudiced their consideration of his claim of self-defense, thereby contributing to his conviction for murder. He argues that allowing the jury to hear inadmissible evidence about violent crimes committed by gang members created an “untenable portrait of [Timberlake] as an active gang member” and “an unsupported impression that the gang, and [Timberlake], engaged in violent, unprovoked attacks.” Timberlake specifically references his own 2001 conviction, as well as the murders and shootings in 2007 and 2013, as the source of an “untenable” or “unsupported portrait” of violent behavior.

To the extent Timberlake contends the trial court should have exercised its discretion to exclude evidence of his 2001 conviction for shooting at an inhabited dwelling, we disagree. The trial court denied Timberlake’s motion to exclude that evidence, concluding that the probative value of that evidence exceeded its prejudicial effect. Timberlake objected, arguing that evidence of his own past criminal conduct, as opposed to criminal conduct by other members of the gang, might prejudice the jury against him. As the court noted, Timberlake’s own commission of a crime identified as a primary activity of the gang was the most direct proof of his knowledge that the gang engaged in the commission of those crimes, as required for the substantive gang crimes charged. Relying on Tran, supra, 51 Cal.4th at page 1048, the court overruled Timberlake’s objection. The trial court did not abuse its discretion in doing so. The prejudice Evidence Code section 352 is designed to avoid is not the prejudice that naturally flows from relevant, highly probative evidence. (People v. Karis (1998) 46 Cal.3d 612, 638.)

To the extent Timberlake contends the admission of inadmissible hearsay through Pair may have inflamed the jury and prejudiced his claim of self-defense, we find nothing in the record to support it. In evaluating his contention, we are concerned only with the residual prejudice arising from the inadmissible portions of Pair’s testimony. As we have already noted, much of what Timberlake describes as inadmissible hearsay concerning his own gang membership and past violent conduct was in fact proven by competent and admissible evidence, and for the most part was undisputed. Evidence of the 2013 drive-by shooting involving Al Capone Dixon and others was likewise supported by competent and admissible evidence. What is left to consider is the effect on the jury of the evidence relating to the 2007 and 2013 murders by other purported members of the gang, whose gang membership was proven solely through inadmissible hearsay,

Although the jury heard hearsay testimony about those 2007 and 2013 murders, the commission of those murders was properly in evidence before the jury through the court dockets (Exhibits 105 and 106), which did not include details involving the gang members involved. As in all cases where evidence of prior crimes is used to prove predicate offenses for gang purposes, the trial court instructed the jury they were to consider that gang evidence only for the limited purpose for which it was received and ordered them not to conclude from that evidence that Timberlake was disposed to commit crime. (CALCRIM No. 1403.) Nothing in the record suggests that details about those murders, or the involvement of members of the gang in the commission of those crimes, inflamed the jury or prejudiced them against Timberlake. Certainly evidence of gang violence always carries the potential for creating prejudice. The trial court, in limiting the predicate crime evidence, recognized that fact. However, considering all the other admissible evidence of gang violence presented to the jury, including violent crimes committed by the rival Eastside Crips, which Timberlake did not object to for tactical reasons, we cannot find that inadmissible evidence relating to those two predicate crimes so inflamed the jury as to deny Timberlake a fair trial or cause the jury to ignore the court’s instructions.

Timberlake contends the inadmissible gang evidence likely prejudiced his claim of self-defense. We find nothing in the record to support that contention. He suggests that the sum of all the evidence of unprovoked violent attacks by gang members, both admissible and inadmissible, likely inflamed the jury to ignore the law and find him guilty. We find Timberlake’s claim of self-defense was not prejudiced by the evidence of unprovoked gang violence, but rather relied on it.

Timberlake testified at trial in support of his claim of self-defense. In that testimony, he admitted approaching McGee, who he said he did not know and did not recognize. After what he describes as an exchange of “ ‘what’s ups,’ ” he testified he saw McGee reach into his jacket pocket. Before he could see what, if anything, McGee was reaching for, and without any threat from McGee, Timberlake testified he pulled a gun from his own pocket and shot him. He conceded he never saw McGee take anything from his jacket and never saw a weapon of any kind. When asked, on cross-examination, to explain why he thought he was in imminent danger, Timberlake stated, “I never seen the gun, no. But I assumed he did have one. I felt he did. I’m not saying he did or not, but usually when you walk up to somebody, you don’t put your hand in your pocket.”

Arguing that Timberlake acted in self-defense, his counsel invited the jury to consider his background and experience as a gang member, and the violent rivalry between the Country Boy and Eastside Crips, in deciding whether Timberlake was justified in acting as he did, shooting McGee before seeing any weapon and before hearing any threat. In support of that argument, the trial court instructed the jury to consider Timberlake’s past interactions with individuals he associated with the Eastside Crips in considering whether he was justified in acting in self-defense. (CALCRIM Nos. 505 and 571.) Those instructions directed the jury to consider Timberlake’s experiences as a gang member and the violent rivalry with the Eastside Crips in evaluating his belief that he was in imminent danger of being killed, even though he saw no weapon and heard no threat. The instructions also directed the jury to consider those same circumstances in deciding whether Timberlake actually believed that deadly force was necessary and whether his beliefs were reasonable.

Timberlake argues now that the gang evidence likely prejudiced the jury in its consideration of his claim of self-defense. As we have noted, that evidence provided the only support for his claim that he believed he was in imminent danger of death because McGee put his hand in his pocket and that his belief was reasonable. We reject Timberlake’s contention that the gang evidence prejudiced the jury against his claim of self-defense, causing him to be convicted of murder.

3. SENATE BILL NO. 620

The jury found true firearm enhancement allegations under section 12022.5, subdivision (a), and section 12022.53, subdivision (d). The trial court imposed a 25-year-to-life sentence enhancement under section 12022.53, subdivision (d), and stayed the remaining firearm enhancements. At the time of sentencing, firearm enhancements under sections 12022.5 and 12022.53 were mandatory and could not be stricken in the interests of justice. (See former § 12022.53, subd. (h) & former § 12022.5, subd. (c); People v. Thomas (1992) 4 Cal.4th 206, 213; People v. Felix (2003) 108 Cal.App.4th 994, 999.)

After we filed an unpublished opinion affirming the judgment, Timberlake filed a petition for rehearing asking us to remand the matter to the trial court to determine whether to strike the firearm use enhancement it imposed under section 12022.53, subdivision (d). Under newly enacted Senate Bill No. 620, effective January 1, 2018, trial courts have discretion whether to impose, strike or dismiss this sentencing enhancement. The new law amends section 12022.53, subdivision (h) to state that “[t]he court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law.”

The Attorney General does not dispute that, at the time Timberlake was sentenced, the sentencing enhancement was mandatory and the trial court had no authority to strike or dismiss it, and he expressly concedes in his response to the petition for rehearing that the amendment applies retroactively to Timberlake, whose judgment is not final. But the Attorney General contends that no purpose would be served in remanding the case because the record suggests the trial court would not have exercised its discretion to lessen Timberlake’s sentence and there is no reasonable probability the result would be any different. The Attorney General cites to the fact that when the trial court imposed sentence, it first expressed an inability to understand why Timberlake would have committed this murder, given the fact that Timberlake had moved out of state, was making good money, and that the gang life was “behind” him. !(RT 957-958)! The Attorney General also notes that the trial court found no mitigating circumstances but found multiple aggravating factors applicable to Timberlake. !(RT 958-959)! Finally, the Attorney General points to the trial court’s reasoning finding Timberlake to be statutorily ineligible for probation, that it found it was “clear” Timberlake had “no regard for human life,” and that it imposed the upper term on the section 12022.5 enhancements, which were stayed. !(RT 959-960)!

The record here certainly may suggest it is unlikely the trial court will exercise its discretion to strike the enhancement. But absent compelling evidence of futility, Timberlake is entitled to have the trial court decide what sentence is appropriate.

Timberlake only argues that his case should be remanded because of the changes to section 12022.53, but his jury also rendered true findings under section 12022.5, which was similarly amended. (See § 12022.5, subd. (c).) The trial court imposed, but stayed, section 12022.5, subdivision (a) enhancements on the remaining counts. Because those terms are only stayed, we note that on remand the trial court will have the option of striking those enhancements as well. (See § 12022.5, subd. (c) [“The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law.”].) Accordingly, we remand to allow the trial court the opportunity to exercise its informed discretion.

DISPOSITION

The judgment of conviction is affirmed. The case is remanded for the trial court to exercise its discretion under section 12022.53, subdivision (h) and section 12022.5, subdivision (c).

_____________________

ELLISON, J.†

WE CONCUR:

_____________________

PEÑA, Acting P.J.

_____________________

SMITH, J.