Filed 5/8/18 P. v. Schulz CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Sacramento)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

CHRISTOPHER SCHULZ,

Defendant and Appellant.
C082459

(Super. Ct. No. 14F07448)



A jury found defendant Christopher Schulz guilty of, among other things, discharging a firearm at a vehicle, and found several enhancements true, including that the crime was committed to benefit a street gang. On appeal, defendant contends: (1) statements of witnesses and investigating officers were unduly prejudicial; (2) his trial counsel rendered ineffective assistance in failing to move to bifurcate the gang allegations and in failing to object to the prosecution’s motion to preclude the defense from eliciting certain testimony from the victim; (3) the errors were cumulatively prejudicial; (4) reversal is required to allow the trial court to consider striking the firearm enhancements pursuant to the newly enacted Senate Bill No. 620; and (5) the judgment must be modified to impose a full, stayed term on count three. Defendant’s last two contentions have merit.
I. BACKGROUND
At a gas station, in broad daylight, defendant shot at the victim multiple times while yelling, “Diamonds.” After he left the scene of the incident, he went to the home of an acquaintance. At trial, testimony included responding officers, the victim, a bystander, the acquaintance, and defendant.
At trial, the prosecution moved in limine, to admit evidence of Norteños gang activity, defendant’s involvement in the gang, and witnesses’ knowledge of the gang as it pertained to their fear of testifying. While defense counsel did not object to evidence of the Norteños gang, he noted, “If they’re introducing stuff like the people are fearful of gangs, that may [tend] to inflame the jury. [¶] . . . [¶] [Y]ou’re going to scare the jury, and it’s not going to be a fair trial.”
The court granted the prosecution’s motion, explaining, “if a witness is fearful about testifying, that would be a relevant factor. . . . [¶] Also, it appears that prejudice would be very little since we anticipate there will be testimony from a gang expert talking about Norteño and the Defendant’s involvement in Norteño. [¶] Now, . . . if a witness came in and testified he was fearful because of some hearsay statement or something attributable to the Defendant that could not be proved, that would be prejudicial, and I’d have to assess that. [¶] But if it’s just general, I believe he’s a member of a gang, therefore, I’m afraid because this is the culture, this is the street, I don’t want to be here, those would all be relevant considerations for the jury.”
When the victim testified at trial, he denied any memory of the incident: “[I]t was a fog.” When asked if the defendant was present during the incident, the victim responded, “Never seen that individual before in my life.”
Over defense counsel’s objections, the jury heard two recorded interviews between the victim and investigating officers. The first interview was recorded immediately after the incident on September 15, 2014. In it, the victim told responding officers he had been shot at while at a gas station. He had seen his attackers before but did not know who they were. His attackers were males, one Mexican, and one white (defendant), with a tattoo on his neck, and a “grill.”
The victim told officers he was in his vehicle at the gas station. He saw his friend on a bike say something to defendant and the other man, who responded by coming after his friend. The victim decided to intervene. The victim then said, “you guys aint [sic] going to do shit.” The victim then saw the Hispanic man with a gun in his sock. He handed the gun to defendant. Defendant took the gun out of the sock and approached the victim, saying, “ ‘Wus up?’ ” and “ ‘Oh you want some too?’ ”
The victim stood, but remained by his car. As the two men continue to approach, he tried to calm them down and sat down in his car. Defendant started shooting, but his gun jammed. When his gun cleared, he shot five or six times yelling, “Diamonds.” The shots missed the victim but hit his vehicle.
As his attackers “start[ed] to run,” the victim drove into them with his car. After getting hit, defendant picked up the gun, ran down the street, and continued shooting at the victim’s car.
The second recording occurred later the same day while investigating officers showed the victim a photo lineup. During the interview, the victim repeatedly referred to his fear of retaliation: “They know where I live,” “There’s a lot more than one of them,” and,“I’m in fear for my life.” As to defendant, the victim said, “I know of him—I’ve heard about him and . . . I know he’s high up.”
The officers told the victim, “the way we can protect you, is by getting him off the street.” They said the district attorney’s office can relocate people and also recommended leaving the area: “I’d recommend, if you have somewhere else you can go for a little bit, until things cool off, that may not be a bad idea.” “I definitely wouldn’t go home.”
A bystander to the incident testified that he saw two “kids” running down the street, both were white males. He saw them run to a particular home and go inside. He testified he “saw somebody leave, but [he was] not sure if it was them or not.” He denied any memory of giving officers a more detailed description of the two males running down the street. He also testified that he feared retaliation.
An acquaintance of defendant testified that he had no memory of the event: “I don’t remember anything.” He denied hearing defendant knock at his door after the incident, driving defendant to defendant’s uncle’s house, telling a detective he feared retaliation, and being afraid of defendant.
The jury later heard two recordings of the acquaintance’s interviews with investigating officers. In the first recording, the acquaintance told police that defendant came to his house bruised up and said he needed a ride. While giving him a ride, defendant told him “some shit happened” and that he was hit by a car.
The acquaintance told the officers he feared retaliation. He said, “I don’t wanna get in trouble with these guys . . . I don’t want it comin’ back to my mom’s house.” The officers told him, “Let us put them in jail and you won’t have to worry about that.” At another point, the officer told the acquaintance, “You do seem like a good kid.” He continued, “You wanna know the biggest problem with this whole thing? Is you’re a good kid hanging out with a bad dude, and look where it got you.”
In the second recording, the acquaintance told detectives that defendant had refused to go to the hospital after he came to his house. When they passed the scene of the incident, the acquaintance noticed “all the [police] cars” and asked defendant if that was for him. Defendant said, “No, just go. Just go.” Defendant told him that he had left a gun at the acquaintance’s house and that he had “let it loose,” and “aired it out.”
He told the detectives he had known the defendant for years. He explained, “when we got a little older [defendant] seemed a little less hot-headed, apparently I was wrong.” He said, “they would all get in cars and drive around and go do that crazy shit.” He also said defendant wears a “grill” all the time.
The acquaintance also made numerous references to having received threats of retaliation for cooperating with law enforcement. In one instance, a car “with a whole bunch of people” drove by him while he was walking down the street and said, “ ‘If we go down, you go down,’ ” and, “Diamonds.” A couple of days later another car drove by and the passenger said, “ ‘We’re going to fuck you up, we’re going to kill you,’ ” and “ ‘Diamonds. We’re gonna smoke your ass.’ ”
The detectives told him, “[t]hey put you in a horrible spot.” The detectives also explained they have resources for victims and witnesses and offered to set up a camera system and panic line.
Detective Richardson, a gang expert, testified for the prosecution. The detective explained that Varrio Diamonds Sacra is a Norteño neighborhood group, and Norteño groups will retaliate for one another. The detective testified that “[p]eople are fearful to give information to law enforcement because they’re fearful of retaliation from the gang members in their area.” “[C]itizens fear retaliation. If they cooperate with law enforcement, they fear for themselves, they fear for their families. They know that the gang members know where they live. The more they’re feared, the easier it is for them to basically get away with the crimes.” The expert testified to personally being involved in gang investigations where people had been retaliated against.
The expert also explained that by yelling, “Diamonds,” a gang member is yelling his association; he is expressing, “[w]e’re here, this is what we’re willing to do. This is our area.”
Defendant testified and denied any confrontation with the person on the bike. As the bike went by, he heard someone yell out. When he turned to walk toward the sound, he saw the victim holding a crowbar. He and the victim were “exchanging words.” The defendant told the victim to “get the fuck out of here.”
Seeing the crowbar, defendant took the gun from the man he was with. In an attempt to “scare the guy away,” the defendant told the victim to leave and took the gun from the sock to show the victim. The victim said he “had something” for defendant, and defendant, in response, cocked back the gun to scare him away.
The victim put his crowbar on the ground and reached under the car seat. Defendant panicked thinking the victim wanted to “play guns.” Defendant aimed at the back of the victim’s car and started shooting. He yelled, “Diamonds” to scare the victim away. Defendant then ran away, and shortly after, the victim hit him with his car. He testified, “[a]s soon as I look up, [the victim] is turning the wheel towards me again.” Thinking he was about to be killed, defendant put his head down and started shooting at the back of the car.
Defendant then ran to a friend’s house. He did not go to the hospital because he panicked and thought no one would believe what happened.
Defendant conceded he was a gang member at the time of the incident, that he had approached the victim (the victim never left his car), that he left the gun at the acquaintance’s house, and that he dyed his hair after the shooting to change his appearance because he “didn’t want to get caught.”
The jury found defendant guilty of all counts and accompanying enhancements. It found him guilty of assault with a semi-automatic firearm (Pen. Code, § 245, subd. (b)— count one) with a finding he used a semi-automatic firearm (§ 12022.5, subd. (a)) and committed the offense to benefit a street gang (§ 186.22, subd. (b)(1)); unlawfully discharging a gun at an occupied vehicle (§ 246—count two) with a finding he personally discharged a gun (§ 12022.53, subd. (c)), personally used a gun (§ 12022.5, subds. (a)(1) & (b)), and committed the offense to benefit a street gang (§ 186.22, subd. (b)(1)); possessing a firearm as a felon (§ 29800, subd. (a)(1)—count three) with a finding that he committed the offense to benefit a street gang (§ 186.22, subd. (b)(1)).
The trial court struck defendant’s prior strike and imposed an indeterminate term of 27 years to life in prison, along with a five-year determinate term. The sentence consisted of the seven-year upper term on count two, plus 20 years for the gun enhancement—made indeterminate by the gang enhancement (§ 186.22, subd. (b)(4)(A)). A five-year determinate term was added for his prior conviction (§ 667, subd. (a)).
On count one, the court imposed what amounted to a 30-year eight-month term. The court then stayed punishment pursuant to section 654. Finally, on count three, the trial court imposed a one-year eight-month term, consisting of eight months (one-third the middle term), plus one year for the gang enhancement (also one-third the middle term). The court then stayed execution of that sentence under section 654.
II. DISCUSSION
A. Admissibility of Evidence
Defendant first contends numerous statements were inadmissible. He specifically challenges (1) evidence of witnesses’ fears of retaliation; (2) evidence of defendant’s character; and (3) evidence of officers’ opinions and offers of protections. Where his trial counsel failed to object to the evidence, defendant claims his counsel rendered ineffective assistance.
1. Standard of Review
On appeal, a trial court’s ruling under Evidence Code sections 1101 and 352 is reviewed for abuse of discretion. (People v. Lewis (2001) 25 Cal.4th 610, 637.) A due process violation occurs only if the admission of evidence makes the trial fundamentally unfair. (People v. Albarran (2007) 149 Cal.App.4th 214, 229.) Admission of evidence violates due process only if “ ‘there are no permissible inferences the jury may draw from the evidence,’ ” and the evidence is “ ‘ “of such quality as necessarily prevents a fair trial.” ’ ” (Ibid.)
2. Fear of Retaliation
Defendant raises several challenges to evidence presented to show a fear of retaliation. He argues the victim’s second recorded interview should have been excluded as irrelevant because its relevance was cumulative and its content was not inconsistent with the victim’s testimony. We disagree.
The victim’s second recorded interview was properly admitted. Unlike the first interview, the second contained the victim’s explanation of his fear of helping the police: “Like I told you, I’m in fear.” “They know where I live.” That content was relevant to the victim’s credibility, where he testified at trial to no memory of the incident. (See People v. Olguin (1994) 31 Cal.App.4th 1355, 1368 [“A witness who testifies despite fear of recrimination of any kind by anyone is more credible because of his or her personal stake in the testimony”]; Evid. Code, § 780 [a jury may consider any matter, including an inconsistent statement, that has tendency to prove or disprove a witness’s truthfulness].)
Moreover, the prosecutor need not have asked the victim about each discrete statement made in the recording to make it admissible as an inconsistent statement. (See People v. Johnson (1992) 3 Cal.4th 1183, 1219-1220 [inconsistency is implied where a witness’s claim of no memory amounts to deliberate evasion, so long as there is a reasonable basis for concluding the witness’s statements are evasive and untruthful].)
Defendant also argues the bystander’s testimony regarding his fear of retaliation was irrelevant because his credibility was not at stake. Not so. The bystander testified that he saw two “kids” run down the street, both white. He denied any memory of giving officers a more detailed description. His fear of retaliation was thus relevant to the jury’s evaluation of his credibility. (See also People v. Mendoza (2011) 52 Cal.4th 1056, 1085 [prosecution may introduce evidence supporting a witness’s credibility when it “reasonably anticipates a defense attack on the credibility of that witness”].)
Finally, defendant argues the victim and the acquaintance’s testimony regarding fear was “overkill,” in that evidence of their fear had already been admitted through officer testimony, and the evidence of their fear in the recording was excessive. We disagree.
Both the victim and the acquaintance testified at trial to having no memory of the events. Thus, their prior interviews providing detailed explanation of their fear were relevant to the jury’s determination of their credibility. (See People v. Burgener (2003) 29 Cal.4th 833, 869 [“An explanation of the basis for the witness’s fear” is relevant to credibility and well within the trial court’s discretion]; People v. Olguin, supra, 31 Cal.App.4th at p. 1369 [the jury is entitled to know “not just that the witness was afraid, but also, within the limits of Evidence Code section 352, those facts which would enable them to evaluate the witness’ fear”].) Allowing the jury to hear actual recordings—rather than rely on officers’ retellings—better equipped the jury to weigh those prior statements against their trial testimony.
3. Character Evidence
Defendant next challenges the victim’s recorded statement that he had heard defendant was “high up” in the gang, as well as the acquaintance’s statement that defendant was “hot-headed” and would, “get in cars and drive around and go do that crazy shit.” He argues these statements were irrelevant and unduly prejudicial, and as to the victim’s statement, also hearsay and speculative. We disagree.
Statements pertaining to defendant’s character were not offered for their truth, but for their effect on the declarant’s state of mind. The belief that defendant was “high up,” “hot-headed,” or that he would do “crazy shit” is relevant to a witness’ fear of retaliation. Additionally, the jury was instructed that evidence of witnesses’ fear was admitted for the limited purpose of evaluation their state of mind and credibility. As such, admitting the statements was not an abuse of discretion.
4. Offers of Protection
Defendant also challenges the officers’ opinion and offers of protection. He points to their statements including, the way to protect you is by getting defendant off the street, that fears of retaliation were legitimate, that resources were available for protection, that getting out of town was “your best bet,” and “you’re a good kid hanging out with a bad dude.” He argues these statements were hearsay, irrelevant, inadmissible character evidence, and unduly prejudicial. We disagree.
Like the witnesses’ statements, the officers’ statements were neither hearsay nor inadmissible in that they were not offered for their truth but for their effect on the victim and the acquaintance. The officers’ statements, seemingly validating fear of retaliation, would go to the victim and friend’s state of mind. And the officer’s statements were not unduly prejudicial as they largely overlapped with the gang expert’s testimony regarding the prevalence of gang retaliation.
B. Bifurcation of the Gang Enhancements
Defendant next contends his trial counsel should have moved to bifurcate the gang allegations because much of the gang evidence was not relevant to the charged offenses and was highly inflammatory. We disagree.
Here, the gang allegations and supporting evidence were inextricably intertwined in the circumstances of the underlying offense. Defendant was a gang member in the company of another gang member. As he shot at the victim, he yelled, “Diamonds.” (Cf. People v. Albarran, supra, 149 Cal.App.4th at p. 221 [noting there was no evidence any of the shooters had made themselves known, threw gang signs, or left graffiti referring to the crime].) And multiple witnesses expressed fear of cooperating because of gang retaliation, which was directly relevant to their credibility.
As such, bifurcation of gang evidence would be all but impossible, and the trial counsel did not render ineffective assistance in failing to so move the court. (See People v. Thompson (2010) 49 Cal.4th 79, 122 [“Counsel is not ineffective for failing to make frivolous or futile motions”]; see also People v. Hernandez (2004) 33 Cal.4th 1040, 1048 [“less need for bifurcation generally exists with the gang enhancement than with a prior conviction allegation”].)
C. Exclusion of the Victim’s Statements
Defendant next contends his counsel rendered ineffective assistance in failing to object to the exclusion of the victim’s statement that he did not believe defendant’s offense was gang related. We disagree.
The People moved in limine to preclude defense counsel from referencing the victim’s statements that (1) defendant was not trying to shoot at him and (2) the crime was not gang related. Defense counsel objected to the first portion, and the trial court denied the prosecution’s motion. Counsel, however, told the court he had no objection to the second portion. The trial court granted the motion.
To establish ineffective assistance of counsel, a defendant must show (1) counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) the deficient performance prejudiced the defendant. (In re Welch (2015) 61 Cal.4th 489, 514; Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692.) “If the record ‘sheds no light on why counsel acted or failed to act in the manner challenged,’ an appellate claim of ineffective assistance of counsel must be rejected ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.’ ” (People v. Ledesma (2006) 39 Cal.4th 641, 746.)
Here, nothing indicates counsel’s performance fell below an objective standard of reasonableness. Counsel, in all likelihood, choose not to ask the victim if he thought the crime was gang related because the question presupposed defendant had committed a crime—and defendant maintained he had acted in self-defense. Moreover, soliciting the victim’s opinion as to defendant’s motives would have been inconsistent with the defense’s position that the victim was not credible; as counsel said in closing, “I wouldn’t trust [the victim] to mail a letter for me at the corner.”
D. Cumulative Prejudice
Defendant next contends that even if the contentions raised are not individually prejudicial, their combined effect resulted in an unfair trial. But having found no error in admitting the challenged evidence, defendant’s challenge of cumulative error must also fail. (See In re Reno (2012) 55 Cal.4th 428, 483 [“claims previously rejected on their substantive merits—i.e., this court found no legal error—cannot logically be used to support a cumulative error claim because we have already found there was no error to cumulate”].)
E. Senate Bill No. 620
In a supplemental brief, defendant contends remand is appropriate in light of recent amendments to sections 12022.5 and 12022.53, which give the trial court discretion to strike firearm enhancements. The People agree defendant is entitled to the benefit of these recent changes because the amendments provide discretion to impose a lesser sentence, and because there is nothing in the amendments to suggest the Legislature intended them to apply prospectively only. The People, however, argue that because the trial court imposed an upper-term firearm enhancement on count one, which was stayed under section 654, no purpose would be served by remand. We conclude remand is appropriate.
Prior to January 1, 2018, an enhancement under either section 12022.5 or 12022.53 was mandatory and could not be stricken in the interests of justice. (See former §§ 12022.5, subd. (c) & 12022.53, subd. (h) (Stats. 2010, ch. 711, § 5); People v. Felix (2003) 108 Cal.App.4th 994, 999.) Senate Bill No. 620 amended sections 12022.5, subdivision (c) and 12022.53, subdivision (h) to permit the trial court to strike firearm enhancements imposed under sections 12022.5 and 12022.53. Under the new provisions, “[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.” (Stats. 2017, ch. 682, §§ 1 & 2.)
We agree with the parties that Senate Bill No. 620 applies retroactivity. If an amended statute “lessening punishment becomes effective prior to the date the judgment of conviction becomes final then . . . it, and not the old statute in effect when the prohibited act was committed, applies.” (In re Estrada (1965) 63 Cal.2d 740, 744; see also People v. Francis (1969) 71 Cal.2d 66, 75.) And here, the amendment has taken effect and defendant’s conviction is not yet final. (See People v. Vieira (2005) 35 Cal.4th 264, 306 [“for the purpose of determining retroactive application of an amendment to a criminal statute, a judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed”].)
We disagree with the People that no purpose would be served by remand. The bulk of defendant’s 27-year to life indeterminate term was imposed by virtue of the enhancement for discharging a gun (§12022.53, subd. (c)). (See § 186.22, subd. (b)(4)(A).) In our view, the fact the trial court imposed the upper term on a stayed enhancement offers little insight into whether it would strike a gun enhancement. We remand to permit the trial court to consider exercising its discretion under sections 12022.5, subdivision (c) and 12022.53, subdivision (h). (See People v. Brown (2007) 147 Cal.App.4th 1213, 1228 [“Generally, when the record shows that the trial court proceeded with sentencing on the erroneous assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing”]; People v. Woods (2018) 19 Cal.App.5th 1080, 1090-1091 [remanding pursuant to the amended section 12022.53].)
F. Count Three Requires a Full Term
Finally, the parties agree the judgment must be modified to impose a full term on count three.
On count three, (§ 29800) the trial court imposed a term of eight months (one-third the middle term), along with a one-year enhancement (§ 186.22, subd. (b)(1)(A)), (also one-third the middle term). The court then stayed execution of sentence under section 654. However, the one-third the middle term rule does not apply to a sentence stayed under section 654. (People v. Relkin (2016) 6 Cal.App.5th 1188, 1197-1198.)
As the parties have requested, we will modify the judgment to impose and stay the two-year middle term for count three, along with a three-year enhancement.
III. DISPOSITION
The matter is remanded to the trial court to exercise its discretion under Penal Code sections 12022.5, subdivision (c) and 12022.53, subdivision (h), as amended by Senate Bill No. 620.
The judgment is modified by imposing and staying a two-year middle term (§ 29800) and a three-year enhancement (§ 186.22, subd. (b)(1)(A)) on count three.
The trial court is directed to prepare an amended abstract of judgment reflecting the (1) modification of count three, and (2) any sentencing changes on remand. The trial court is further directed to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
As modified, the judgment is affirmed.


/S/

RENNER, J.



We concur:


/S/

HULL, Acting P. J.


/S/

DUARTE, J.