44 Cal.App.5th 452
Cal. Ct. App.2020Background
- On March 11, 2015, after a verbal, gang‑tinged confrontation between Salvador Yanez IV (moniker “Downer,” Jackson Terrace gang) and Gilbert Lopez (Sur Town Locos), Lopez was shot multiple times and died.
- Yanez was charged with second‑degree murder (§ 187), being a felon in possession of a firearm (§ 29800), and a special allegation that he personally and intentionally discharged a firearm causing death (§ 12022.53(d)); prior serious‑felony and strike priors were also alleged.
- A Riverside County jury convicted Yanez of second‑degree murder and found the § 12022.53(d) enhancement true; the trial court found the priors true.
- Yanez was sentenced to a lengthy term (combined approximately 60 years‑to‑life); he asked the court to strike the firearm enhancement and priors but was denied.
- On appeal Yanez challenged (1) admission of gang expert testimony (Evidence Code § 352), (2) alleged prosecutorial misconduct referencing jury deliberations, (3) adequacy of his waiver of a jury trial on priors, (4) whether the court could impose a lesser firearm enhancement under amended § 12022.53(h), and (5) whether remand was required to allow the trial court to consider striking the five‑year prior serious‑felony enhancement under recent amendments to §§ 667 and 1385.
- The Court of Appeal affirmed the conviction, rejected most claims, declined to read newly granted discretion into § 12022.53(h), but remanded for resentencing so the trial court may exercise discretion under the SB 1393 amendments to §§ 667 and 1385 to strike the five‑year prior enhancement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admission of gang expert testimony (Evidence Code § 352) | Gang expert testimony was relevant to motive, admissible, limiting instruction given | Testimony was unduly prejudicial and should have been excluded under § 352 | Forfeited by defendant for lack of specific objection; alternatively, admission was within trial court discretion and not an abuse (admissible for motive; limiting instruction given) |
| Prosecutorial misconduct for referencing jury deliberations during sentencing argument | Any reference to jury deliberations did not influence the court; judge presumed to disregard inadmissible matters | Reference to jury preliminary vote was improper and prejudicial | Even if improper, defendant showed no prejudice; no evidence the court relied on it in denying § 12022.53(h) motion |
| Validity of waiver of jury trial on prior conviction allegations | Waiver was express and knowing given circumstances (trial had just occurred and defendant observed jury mechanics) | Court failed to canvass defendant sufficiently; waiver not knowingly made | Waiver upheld as knowing and intelligent under totality of circumstances (robust colloquy not constitutionally required) |
| Whether amended § 12022.53(h) allows trial court to impose a lesser, uncharged firearm enhancement | § 12022.53(h) permits striking enhancements in whole but does not authorize substituting a lesser enhancement; sentencing discretion is binary | Defendant urged remand to permit court to impose a lesser uncharged enhancement (per People v. Morrison) | Court rejects Morrison, agrees with Tirado: § 12022.53(h) allows striking or dismissing an enhancement, not substituting a lesser one; no remand for that purpose (and issue forfeited if not raised below) |
| Whether remand is required under SB 1393 (amendments to §§ 667/1385) to allow the court to consider striking the 5‑year prior serious felony term | SB 1393 applies to nonfinal convictions; trial court should be given opportunity to exercise new discretion | Defendant sought remand to permit exercise of discretion | Remand required: record does not clearly show the court would have declined to strike the prior; court must be given opportunity to exercise discretion on remand |
Key Cases Cited
- People v. Valdez, 55 Cal.4th 82 (objections must timely and specifically identify grounds to preserve claim on appeal)
- People v. Zepeda, 87 Cal.App.4th 1183 (general pretrial objection to gang evidence is insufficient to preserve § 352 claim)
- People v. Samaniego, 172 Cal.App.4th 1148 (gang evidence admissible when relevant to motive; expert testimony can explain gang subculture)
- People v. Carter, 30 Cal.4th 1166 (standard of review for admission of gang evidence: abuse of discretion)
- People v. Olguin, 31 Cal.App.4th 1355 (gang sociology/psychology often beyond common experience and properly explained by expert)
- People v. Montes, 58 Cal.4th 809 (probative value of gang evidence and use of limiting instruction)
- People v. Tully, 54 Cal.4th 952 (standard for reversible prosecutorial misconduct and prejudice analysis)
- People v. Sivongxxay, 3 Cal.5th 151 (no fixed colloquy required for jury‑waiver of trial on priors; totality of circumstances governs)
- People v. Tirado, 38 Cal.App.5th 637 (§ 12022.53(h) does not authorize substituting a lesser, uncharged enhancement)
- People v. Morrison, 34 Cal.App.5th 217 (contrasting view: held trial court could impose lesser enhancement; rejected by this court)
- People v. Harvey, 233 Cal.App.3d 1206 (interpretation of "strike" in enhancement statutes as binary—either impose full enhancement or strike it)
- People v. Jones, 32 Cal.App.5th 267 (remand not required only if record clearly shows court would not have struck enhancement)
- People v. Garcia, 28 Cal.App.5th 961 (SB 1393 applies when conviction is not yet final)