THE PEOPLE, Plaintiff and Respondent, v. XAVIER YSAURO MEDRANO et al., Defendants and Appellants.
F068714 & F069260 (Super. Ct. Nos. VCF282470A–C)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Filed 12/3/19; on transfer from Supreme Court
CERTIFIED FOR PARTIAL PUBLICATION*
OPINION
APPEALS from a judgment of the Superior Court of Tulare County. Valeriano Saucedo and H. N. Papadakis,† Judges.‡
Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant Trinidad Valdez Martinez.
Charles M. Bonneau, under appointment by the Court of Appeal, for Defendant and Appellant Rey Robert Avellanoza.
Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna, Julie A. Hokans, and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendants Xavier Ysauro Medrano (also known as Xavier Ysidro Medrano), Trinidad Valdez Martinez, and Rey Robert Avellanoza were found guilty after a jury trial of attempted murder, burglary, assault with a firearm, and participation in a criminal street gang. Avellanoza was found guilty of shooting into an inhabited dwelling; Medrano and Martinez were acquitted of this charge. Enhancements alleging premeditation and deliberation, use of firearms, causing great bodily injury, and committing the offenses for a criminal street gang were also found true by the jury. Each defendant received a substantial state prison sentence, including an indeterminate sentence for the attempted first degree murder conviction. The defendants were only partially successful in their appeal of the judgment.
On February 1, 2017, the California Supreme Court granted Medrano’s and Martinez’s petitions for review pending consideration and disposition of People v. Mateo, S232674. The Supreme Court denied Avellanoza’s petition for review (remittitur issued Feb. 7, 2017). On April 10, 2019, the California Supreme Court returned the case to us with directions to vacate our opinion and reconsider the cause in light of Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437). In connection with the Supreme Court’s transfer, the remittitur pertaining to Avellanoza was recalled on October 8, 2019. In supplemental briefing, Martinez and Medrano now argue the recent enactment of Senate Bill 1437 requires reversal of their attempted murder convictions because the jury instructions and the prosecutor’s arguments allowed the jury to convict them on the now repudiated theory that attempted murder was a natural and probable consequence of aiding and abetting assault likely to cause bodily harm and because
In the published part of this opinion, we find merit to the new claims pertaining to the natural and probable consequences doctrine as to Medrano
In the unpublished part of the opinion, as to all three defendants, we reverse the gang convictions and the gang enhancements. At resentencing, the court shall consider whether to exercise its discretion pursuant to Senate Bills 620 and 1393, if applicable to any defendant. In all other respects, the judgments are affirmed.
PROCEDURAL BACKGROUND*
Initial Proceedings
An information was filed on May 22, 2013. On July 18, 2013, the trial court denied defendants’ motions to bifurcate the gang allegations and evidence. The first trial ended in mistrial on July 24, 2013. A second jury was sworn and the case commenced on July 30, 2013. On August 9, 2013, the trial court denied the motion of Medrano and Martinez to sever their case from the case against Avellanoza.
Jury Verdicts
On August 9, 2013, defendants Medrano, Martinez, and Avellanoza were all convicted of attempted murder (
The jury found true conduct enhancements that all three defendants committed attempted murder willfully, deliberately, and with premeditation. The jury found true that in committing count 1, Medrano and Martinez had violated
In a bifurcated proceeding, the trial court found true allegations that Martinez was subject to status enhancements for committing four prior strikes pursuant to the three strikes law (
Sentencing
Medrano and Martinez were sentenced on December 19, 2013. Medrano received an indeterminate prison term of 15 years to life for attempted murder (count 1), plus a determinate sentence of 20 years for the
The trial court noted Martinez had two or more prior serious or violent convictions and sentenced him to an indeterminate term of 15 years to life, multiplied by three pursuant to the three strikes law, for a term on count 1 of 45 years to life. The court imposed an additional consecutive sentence on count 1 of 20 years for the On February 26, 2014, the trial court sentenced Avellanoza to an indeterminate prison term of 15 years to life on count 1 plus 25 years to life for the In November 2010, Michael Machado, Jr., was living in a mobilehome next to his father’s house on a five-acre parcel in Earlimart. Machado described Earlimart as a small community where “all the people know each other.” Machado ran a trucking business on the property with his father. Machado was growing what he described as medical marijuana plants in a room on the west side of his mobilehome and in the kitchen area. Machado grew the plants with bright 600-watt high sodium lights that stayed on 24 hours a day. Between 10:45 and 11:00 p.m. on November 24, 2010, Machado heard a truck, looked outside, and became alarmed because he recognized a gray stepside Chevrolet driving by his home at a slow speed. Machado went back in his home after seeing nothing out of the ordinary. Ten to 20 minutes later a confrontation occurred. Machado said he did not recall everything exactly because it had been years since the events of that evening. Machado heard multiple loud footsteps on his porch. Because it was a manufactured home, it was light and the sound of the footsteps was amplified. Also, the home was older and poorly insulated. Machado had a 12 gauge shotgun leaning against the closet loaded with dove shot, “really a light load.” Machado heard someone say “FBI” just before kicking in the door and entering. Within seconds, the door to the marijuana grow room was kicked down and then the door to Machado’s bedroom was kicked down. Since it was Thanksgiving week, Machado thought the chance it was the FBI entering his home was slim. Machado rolled out of bed, grabbed the shotgun, and crouched down next to his bed. As the assailants entered Machado’s home, he was crouched down on the right side of a couch in between his bed and the closet. Machado could see the assailants standing in the doorway. The assailants were about 30 feet away from Machado, and he subsequently identified them as defendants. All three defendants wore black attire and hats. Machado told Detective Judd Hembree he had been positioned next to the coat rack, which was Machado’s closet. Machado told Detective William Meek he had been between the bed and the closet area, “mid way through the bed and mid way through the closet.” During his preliminary hearing testimony, Machado had said he was “‘on the ground in the closet,‘” but later clarified at trial he was next to the closet. At trial, Machado explained the detectives had determined Machado’s estimate was off one foot from what he had described to them, and he had not tried to lie about his location. Machado saw Avellanoza standing in the doorway and was familiar with him because on a prior occasion he had caught Avellanoza breaking into a neighbor’s garage. Machado had seen Avellanoza underneath his neighbor’s classic 1960’s car trying to strip it. On that occasion, Machado drew a gun on Avellanoza and made a citizen’s arrest until law enforcement arrived. When defendants came through the home and knocked down Machado’s bedroom door, it hit a television before landing on the floor. Avellanoza, who was armed with a semiautomatic pistol, pointed the gun at Machado and fired. Machado believed he fired his shotgun simultaneously and did not want to split hairs about who fired the first shot. Machado felt the shots fired all around him. Events happened very fast. Three or four bullets grazed his body but only one bullet penetrated him, going straight through his shoulder. The wound bled a little. Machado did not seek medical attention for the wound because he was too afraid for his family’s safety to leave the property. Investigating deputies took pictures of the wound an hour or an hour and a half after the incident. A photograph depicting Machado’s injury was admitted as exhibit 17. The wound became infected, was painful, and limited Machado’s activity for a few days. Both of the interior doors of the mobilehome had been knocked completely off the hinges, which made Machado’s view into the grow room “a thin but clear view.” Machado saw Medrano and Martinez in the grow room. Machado also recognized them from prior encounters.1 Medrano and Martinez were each carrying handguns. Additional gunfire was directed toward Machado through the wall of his bedroom by defendants as they exited the home. Machado further described his view of Medrano and Martinez as a “glimpse.” After the shots were fired, Machado could see Medrano and Martinez fleeing from the grow room. Machado elaborated that he saw Medrano and Martinez for a “split second,” but this was all he needed to identify them. After they left the grow room, Machado heard someone say, “‘Go back in,‘” or “‘Go back in and get him.‘” In his preliminary hearing testimony, Machado had testified he heard someone say, “‘Go back in and get that fool.‘” Machado believed it was Martinez who made this comment. Machado was trying to maneuver himself out of the bedroom while ducking and dodging bullets. He exited the room from a window not far from where he had been crouched. Although Machado’s shotgun became jammed, he was able to clear it while exiting through the window. A fourth gunman standing by a tree started shooting at Machado. Machado fired back at him. Machado’s elbow got skinned and he was in a panic. Machado saw four or five people jump into a white car and drive away. Machado was not certain, but believed he placed his shotgun in a vehicle he owned. Machado did not immediately tell officers the names of the assailants until later in the first day of the investigation. Machado explained it took a while to build the courage to tell investigating officers the identities of the assailants because he was still worried about his family’s safety. Machado’s father testified he remembered his son remarking after the incident that he did not see the assailants, and he had not identified (to his father) who they were. Detective William Meek of the Tulare County Sheriff’s Department investigated the shooting incident. Meek found and photographed wadding from fired shotgun shells and casings from different caliber gun ammunition in Machado’s mobilehome. The wadding came from 12 gauge shotgun ammunition. Inside the bedroom closet area there was 12 gauge wadding and some birdshot. Casings in the home and within the fenced area of the home came from nine-millimeter, .40-caliber, and .45-caliber ammunition. Photographs of bullet holes in the walls of the dining room and in the master bedroom closet wall shared between the two rooms, as well as in the walls of the living room, washroom, kitchen, master bedroom, and hallway were admitted into evidence. Patterns of some of the holes in the bedroom closet were consistent with bird shot pellets. Photographs of damage to the front and interior doors of the home were also admitted into evidence. The grow room lighting in the mobilehome provided sufficient light for Meek without having to use his flashlight. Three separate shoe tracks were discovered by tire tracks near the roadway. Meek attempted to mimic Machado’s position in the bedroom based on what Machado had told him. At first, Meek was unable to see the grow room from the position Machado described. Meek further explained that from a point between the end of the mattress and the first opening of the closet, through a small open space, he could see into the grow room by peeking around “a little bit.” At one point, Machado told Detective Hembree he did not recognize any voices during the assault and he could have been killed by federal agents. Hembree further explained, howеver, this was at the beginning of the assault when Machado heard someone yell “FBI.” Machado’s comment about not recognizing voices did not refer to the end of the incident. When questioned by investigators, Machado positively identified all three assailants in photographic lineups. Detective Hembree walked through the crime scene. Detective Meek was arriving at the scene about the same time. An umbrella grow light was suspended above the marijuana plants in the kitchen area and it emitted ambient light as Hembree walked through Machado’s home. Hembree could see well throughout the home without additional light. There were grow lights next to Machado’s bedroom that were also very bright. The bedroom door was broken off its hinges and was propped up against the wall. There was light emanating from the grow room into the bedroom, especially with the door open. Machado did not give Detective Hembree a description of the getaway car. Machado had described the fourth gunman to Hembree as a shadowy figure. Detective Travis Shaw talked to Machado almost a month after the incident. At that time Machado described to Shaw a specific car he had seen driving by his home since the incident, a white Honda Civic with black rims. Machado suspected his assailants were connected in some way to the Honda. Machado explained to Shaw that Antonio Valdez, also known as Peanut, drove a white Honda. From a photographic lineup, Machado identified the fourth individual by the tree as Peanut. Machado admitted he only caught a glimpse of Valdez from 30 or 40 feet away, and he had been helped in identifying him by his “guy on the street.” Machado told Shaw he had seen Valdez the day of the incident and “he had talked to a friend of his who was … helping him out” in describing Valdez, and this was how Machado got Valdez’s name. A search warrant was executed at Medrano’s residence on November 30, 2010. Investigators found in Medrano’s bedroom a flag depicting a “Huelga bird,” a computer screen with the same symbol, a “Nor Cal” flag with a red stripe on the bottom, and drug paraphernalia. Investigators also found a box of ammunition, other live rounds of .38-caliber and .357-caliber bullets, and a holster that could fit firearms of .380-caliber, nine-millimeter, .40-caliber, or other short-barreled guns. There was also a radio scanner in the room used to monitor police and fire channels. On November 30, 2010, investigators also executed a search warrant at Martinez’s residence. Detective Chad Bruce went to Martinez’s bedroom where he found a marriage certificate in Martinez’s name and a suitcase in the closet with mail addressed to Martinez. Bruce went to Oscar Tellez’s room in the same residence and found a collage-style drawing “with a female’s face, a clown wearing … a fedora, … a guy wearing a sombrero with [the word] Tellez across the brim.” Bruce also photographed and collected from Martinez’s room a drawing with the name “Trino” on the bottom right corner with “05” next to it and a clown with a little star on its earlobe. The star is a common symbol among Northerner gang members. In Tellez’s room, Bruce collected a рhotograph of nine males shown drinking beer. One person in the group was “throwing” gang signs. Martinez was in the picture wearing a red shirt. When the search warrant was executed, Detective Hembree questioned Martinez in front of his home after Martinez was in custody and had been given and waived his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436. Martinez said the day of the shooting was his wife’s birthday and they had dinner at Olive Garden in Visalia, had a few drinks, and came home for a few more drinks. Martinez left home to get something more to eat, then came back home for the rest of the evening. During the initial questioning, Martinez did not indicate he left his home a second time to eat again. When later questioned, Martinez added that he left his home a second time to go to Sonic, but came right back home. When asked his gang affiliation, Martinez said, ‘“I‘m still down as a Northerner.‘” Detective Steven Sanchez testified as the People’s gang expert. Sanchez had been a police officer just over nine years and spent the previous year with the violent crimes unit and the four years prior to that with the gang violence suppression unit. Sanchez had advanced training relating to gangs, 300 hours of Police Officers’ Standards and Training, and attended state and national conferences on gangs. Sanchez attended several separate classes on Northerner gangs and the Nuestra Familia. Sanchez was also a member of the Central California Gang Investigators Association, the California Gang Investigators Association, and the California Gang Task Force where he attends meetings to learn about current trends with gangs and who is in charge of them. Sanchez explained the Nuestra Familia was the founding prison gang for the Norteños gang. A current trend with gangs is for them to tax drug dealers selling in their area and to send these funds to jails to provide money to inmates for attorneys, food, and the commissary. The collected funds are also used to move weapons and narcotics, as well as to establish safe houses to store drugs and weapons. Sanchez worked in the jail for two and a half years and became familiar with gang tattoos, gang operations in jails, and how gang members communicate with inmates. For a year and a half on patrol, Sanchez worked in Ivanhoe, where there are primarily Southerner gangs, and Goshen, where there are primarily Northerner gangs, familiarizing Sanchez on how the gangs operate on the streets. In the gang unit, Sanchez’s primary duty was to document gangs. This made him familiar with everything gang members do, from the music they listen to, the clothes they wear, who they associate with, their enemies, the area they claim, and the signs and symbols they use. Sanchez had consensual contacts with gang members resulting in conversations where he gained much of his knowledge. Sanchez had investigated over 100 crimes involving the Norteño gang. In the late 1950’s, a Sureño gang, La Eme, was formed in the prison system. In the mid-1960’s disaffected La Eme gang members who had become tired of politics that did not allow them control of the drug trade formed Nuestra Familia, which founded the Norteño prison gang. The Nuestra Familia and Norteños have a chain of command. Norteño territory has traditionally been from Delano north. Tulare County has been traditionally a very Northerner-affiliated county. The Norteños traditionally claim the color red and the Sureños the color blue. Norteños wear team colors like those of the ‘49ers and Giants sports teams and also wear Nor Cal clothing. The Norteños use the hand gestures of one and four to represent Roman numeral XIV, and use the letters NS for North Side. They also use these symbols in graffiti. The Huelga bird is another Norteño symbol. Some of the primary activities of the Norteño gangs include homicide, assault with deadly weapons, carjacking, robbery, narcotics sales, and possession of firearms. Sanchez explained that in Norteño gang culture, respect and advancement within the gang and with rival gangs are achieved by committing illegal activities, assaulting rival gang members, and causing fear. People who testify against Norteños are considered snitches, and the gang will do everything possible to get rid of such a person to stop further cooperation with law enforcement. The California Department of Corrections and Rehabilitation (CDCR) has identified seven validated prison gangs, including Nuestra Familia. When prison authorities in the 1980’s began to lock down gang members, Nuestra Familia created a faction called Nuestra Raza (referred to by prison officials as the “Northern Structure“) to carry out their crimes. Ultimately, the Nuestra Familia controls all of the activities for the Norteño gang. The Nuestra Familia has a paramilitary structure with generals, lieutenants, and regimental commanders who control everything from prison out onto the streets. Sanchez personally executed a search warrant of a residence in Goshen with a safe containing 400 prison “kites,” the gang’s constitution, the gang’s 14 bonds, and a list of how to send money to generals incarcerated in Pelican Bay prison. When a gang member is convicted of a gang crime, he or she has to register with law enforcement as a gang member pursuant to The Tulare County Sheriff’s Department has adopted 10 criteria from the California Department of Justice to demonstrate someone is a documented gang member. To be considered a gang member, the person must meet three of the criteria. The 10 criteria are that the person: associates with gang members, admits gang membership, admits being a gang member in a custodial facility, wears gang clothing or attire, wears such attire in or possesses gang photographs, writes gang material, possesses gang material, identifies as a gang member in correspondence with another gang member, is identified as a gang member by a reliable source, and has gang tattoos. The predicate offenses committed by the Norteño gang, shown by certified dоcumentation of prior convictions (exhibits 125 & 126), included an assault with a deadly weapon with a gang enhancement by Norteño gang member George Lua on October 18, 2008. Detective Sanchez himself participated in the arrest of Lua. The second predicate offense occurred on April Sanchez conducted research on Medrano’s gang activity, reviewing documents pertaining to a drive-by shooting incident on March 24, 2006. Deputies with the Tulare County Sheriff’s Department were dispatched to a residence belonging to Juan Marquez, a member of the Norteños. Marquez’s mother told detectives a shooting occurred at the residence because of her son’s gang affiliation. In September 2006, sheriff’s deputies were dispatched to a residence belonging to a Sureño gang member who identified Medrano and fellow Norteño Tommy Corrales as shooting at him with a shotgun as he drove by Medrano’s residence. A search warrant was executed at Medrano’s residence where deputies found Norteño graffiti and shotgun shells. This information demonstrated to Sanchez that Medrano was both the victim of a gang-related crime and a member of the Norteño gang. In November 2006 there was a report of a drive-by shooting at Medrano’s residence. Detectives contacted a witness who observed a Norteño gang member get into a car at Medrano’s residence and flee the area. There was yet another drive-by shooting at Medrano’s residence on December 14, 2006. In September 2009, Medrano was contacted by Officer Chavez of the California Highway Patrol. During the investigation, Chavez “documented Mr. Medrano as having north gang affiliation.” Detective Sanchez was shown exhibit 98, booking information on Medrano indicating he was affiliated with the Norteño gang. The classification was prepared by a correctional deputy, and Sanchez did not know if the classification was based on a statement by Medrano. Turning to the evidence found in Medrano’s residence during the execution of the search warrant, Sanchez noted that detectives, including himself, found multiple items showing indicia of Norteño gang affiliation. Medrano was displaying a Nor Cal flag, a Huelga bird flag, and a computer screen image of “North Side Pixlon” showing his allegiance to the gang. North Side Pixlon is a documented subset of the Norteño gang. A PlayStation 3 was connected to a monitor. Sanchez personally listened to audio files stored on the hard drive of the PlayStation 3 and heard Norteño gang lyrics with gang slurs disrespecting rival gangs. One example was the derogatory term “scraps” in a lyric referring to the rival Sureño gang. Three other people lived in Medrano’s residence. Other family members indicated the room where gang indicia was found was Medrano’s room. Based on all this information, in Sanchez’s opiniоn Medrano was a member of the Norteño gang. Two weeks prior to trial, Sanchez was present when photographs of Martinez’s gang tattoos were taken and admitted as exhibits 127, 128, 129, and 130. Among the tattoos on Martinez were “Norte,” “X4,” the northern star, and “EARLA,” an abbreviated name for Earlimart. Exhibit 131 depicted a Huelga bird tattoo and exhibit 132 was a tattoo depicting a female with a headband bearing the Roman numeral “XIV.” Exhibit 133 was a photograph of a tattoo depicting a female with a red bandana across her head with the initials “NS” within the bandana. The letters “NS” represent the North Side. Exhibit 134 was a photograph of a tattoo depicting a bear, emblematic of Northern California and found on Nor Cal clothing. Sanchez also reviewed documents from the CDCR, previous police reports, and field identification cards related to Martinez. In 1997, Martinez was arrested in the company of Misiel Guzman, a Norteño gang member. Martinez filled out a classification questionnaire indicating Sureño and Bulldog gang members were his enemies. Sanchez “located documents indicating Mr. Guzman was previously a member of the northern structure gang.” Documents from CDCR prepared in October 2002 and November 2008 stated Martinez was then an active member of the Nuestra Raza Norteño gang. In October 2007, Martinez was a passenger during a traffic stop of Norteño gang member Jorge Ceballos. A loaded .45-caliber handgun and three ounces of methamphetamine were found in the front passenger glove box. Investigators also found another ounce of methamphetamine and $10,000 in cash. Martinez filled out a gang questionnaire stating he was associated with Northerner gangs. While in custody in May 2009, Martinez admitted being a member of the Northerner gang. In January 2010, while with Norteño gang member John Escalera, Martinez admitted to law enforcement he was a Northerner gang member. In November 2010, Martinez was ordered to register as a gang member with the Tulare County Sheriff’s Department after being served with a STEP notice. Sanchez saw a photograph depicting Martinez with another male and a female obtained after the execution of a search warrant of Martinez’s residence in November 2010. The male was flashing the Northerner gang hand sign “4” and wearing a reddish-color Giants jersey. As noted earlier, after being given his Miranda rights when he was arrested, Martinez said he was a Northerner gang member. Martinez reviewed a report by a witness, Melesio Valdez (also referred to as Melesio Valdez Duran and M.V. during trial), who spoke to Detective Zaragoza. Valdez reported to Zaragoza that Martinez was a shot-caller for the gang, involved in the collection of money for the gang, and directing orders. Shot-callers give permission to fellow gang members to carry out gang activities and are also in charge of sending money to high-ranking gang members.2 Relying on documentary evidence, Sanchez stated that in June 2008, sheriff’s department deputies conducted a traffic stop of a vehicle possibly involved in an assault. Avellanoza completed a classification questionnaire in which he self-admitted being a Northerner associate and stated his enemies were Southerners. Reading from аnother police report, Sanchez testified that on May 29, 2009, Delano Police Department officers were dispatched to investigate an allegation Avellanoza and fellow Norteño gang member Antonio Valdez assaulted a victim in an ongoing dispute over a girlfriend. Avellanoza struck the victim in the left eye. Valdez and Avellanoza were brandishing a firearm. Another report from the Tulare County Sheriff’s Department indicated on June 12, 2009, Avellanoza allegedly brandished a firearm. According to the victim, Avellanoza asked the victim why he was wearing a blue shirt and called the victim a scrap. The victim reported Avellanoza pulled a firearm from his waistband. The victim later requested no charges be filed against Avellanoza. According to Sanchez, this showed Avellanoza’s activity in the gang and his desire to confront a perceived member of a rival gang. Sanchez explained it was very common for victims not to seek charges against gang members out of fear of retaliation. On November 30, 2009, a victim reported to the Tulare County Sheriff’s Department that Avellanoza and three other fellow gang members took the victim’s personal property. When the victim tried to confront the four, he heard a gun being racked with a round in the chamber. The victim fled. On February 21, 2011, Sanchez was a member of the Tulare County Sheriff’s Department SWAT team. He was dispatched with the SWAT team to a motel in Tulare to execute an arrest warrant on Avellanoza. Avellanoza eventually surrendered and was arrested. A booking information form or classification questionnaire, exhibit 97, was introduced into evidence. Avellanoza listed on the form that he associated with the Northerner criminal street gang. Sanchez opined Avellanoza was a member of the Norteño gang based on the three criteria: he associated with gang members, he was involved in gang-related crime, and he self-admitted gang affiliation in a custodial facility. Sanchez was asked, hypothetically, if three documented gang members were to kick in the door of someone’s residence and start shooting at the victim, including through the walls of the victim’s dwelling, would they be doing so in association with the Norteño street gang. Sanchez replied affirmatively to this question. Sanchez was asked if after such a shooting a shot-caller told the shooter to go back in “to finish the victim,” would the scenario be for the benefit of the Norteño street gang. Sanchez replied it would be at the direction of the gang. When asked whether there was a connection to a street gang when the victim had previously reported one of the shooters to law enforcement, Sanchez again replied affirmatively. Sanchez elaborated, explaining a person cooperating with law enforcement is considered a snitch, and reporting an incident is a sign of disrespect. The purpose of committing a violent assault is to instill fear to prevent testimony against members of the gang. A victim who had prior physical altercations with gang members would be in an ongoing feud, also showing disrespect of the gang member and the gang. Such a crime would assist, promote, and further the gang based on the fact a message was being sent to the victim, as well as the community, that gang members will not tolerate disrespect. Medrano’s mother, Cecilia Chavez, testified the United Farm Workers’ flag with the Huelga bird found in Medrano’s garage belonged to her. It previously belonged to her father, who had designed the symbol. Medrano’s mother was unaware of any gang connotation with the image of the bird. Medrano’s friend, Maria Silva, testified she spent the night of November 25, 2010, Thanksgiving evening, with Medrano. Silva did not see Medrano the evening of November 24, 2010. Martinez’s wife, Jessica Martinez, admitted she had a prior conviction requiring her to register as a gang member. Jessica Martinez testified she recalled November 24, 2010, because it was her birthday, and she went out to dinner between 5:45 and 6:00 p.m. with her husband, her daughter, and two nieces to the Olive Garden in Visalia. The drive to Visalia from Earlimart takes about 40 minutes. They returned home between 9:00 and 9:30 p.m. that evening. After leaving the home a few minutes later to get ice cream at Sonic and returning at 9:45 p.m., the family went to bed and Martinez never left the house again that evening. Martinez’s mother, Lupe Tellez, confirmed the activities of Martinez on November 24, 2010, as related by Jessica Martinez. She believed her son was a member of the Northerner gang. Avellanoza’s girlfriend, Leonora Penalosa, and her brother, Robert Penalosa, testified for Avellanoza.3 During Thanksgiving 2010, Avellanoza was living with the Penalosa family. Robert and Avellanoza worked at the same place five days a week. The two would carpool into work in Robert’s car. On Thanksgiving morning, Robert and Avellanoza went to work around 5:00 a.m. and returned home between 3:30 and 4:00 p.m. Robert had Thanksgiving dinner with Avellanoza at their home. Robert never saw Avellanoza with weapons or drugs. Leonora said she dated Avellanoza for about six years. In February 2010, he moved into her home. While he lived with the Penalosa family, Avellanoza worked in the fields with Robert. Avellanoza worked all weekdays. The evening before Thanksgiving 2010, Avellanoza was with Leonora. On Thanksgiving morning, Avellanoza went to work. Leonora knew Medrano and Martinez, but she and Avellanoza did not associate with them. Leonora was aware of arguments Avellanoza had with Machado. Avellanoza never threatened Machado, did not pull a gun on him, there was no gun in the Penalosa residence, and she did not think Avellanoza was a violent person. On cross-examination by the People, Leonora admitted she was aware from newspaper accounts that Avellanoza was identified as the shooter of a Sureño gang member in Bakersfield who later died. This did not change Leonora’s opinion that Avellanoza was not a violent person. Detective Hembree did not recall Martinez or his wife saying anything about going to a Sonic restaurant the evening of November 24, 2010. Prior sworn testimony from Guillermo Barajas, who was unavailable as a witness at trial, was read into the record. Barajas was with friends and family, including Avellanoza, at The Dome in Bakersfield in 2011. Barajas was “jumped” by several guys and knocked out. Sergeant Martin Heredia with the Bakersfield Police Department investigated the incident. Words were exchanged between Barajas’s group and Southerners. They went outside where a fight occurred. Avellanoza was seated in an SUV and fired shots from it as the SUV left the scene. One person was shot and Heredia saw him at the hospital afterward. Martinez and Avellanoza, joined by Medrano, contend the trial court erred in allowing the prosecutor to dismiss the original information set forth in case No. VCF245417. Defendants argue that after they successfully filed a motion to bifurcate the gang allegations, the prosecution moved to dismiss the original information as a pretext in order to have the case sent to a new judge. According to defendants, the prosecutor was forum shopping for a different ruling. Defendants attribute ill motive to the prosecutor because he immediately filed a new substantive gang allegation, and they argue his conduct was akin to a vindictive prosecution that, in turn, denied them their right to due process under law. We reject these contentions. On April 18, 2013, prior to the original date set for trial, there was a pretrial hearing before the Honorable Valeriano Saucedo. There was discussion concerning the prosecutor’s attempt to arrest Melesio Valdez, a potential witness who would testify concerning the motive of the Norteño gang to collect taxes from the victim. Defendants sought to bifurcate the gang issues. The court indicated it was inclined to grant defendants’ motion to bifurcate the gang issues. The prosecutor argued the court was applying the wrong legal standard. The court held the prosecutor could show during an The court noted it was aware of prior negative interactions between Machado and defendants. The court ruled if Machado testified untruthfully that he had no prior contact with defendants, the court would reconsider its ruling and permit the challenged information into evidence for impeachment purposes after it was sanitized of inappropriate gang references. The court found no gang overtones in the shootout and granted defendants’ motion to bifurcate the gang issues. The prosecutor brought a motion for reconsideration of the bifurcation issue on April 23, 2013. The court reiterated its concern there was no evidence of an attempt by the Norteño gang to collect taxes because Machado was growing marijuana in gang territory. The court proceeded to rule on other motions in limine. To alleviate the potential for biased jurors on the bifurcated gang enhancements, all defendants were willing to waive a jury trial on the enhancements. The prosecutor stated he was unsure if he was also willing to waive a jury trial on the gang enhancement allegations but wanted time to consider the matter. The court deferred its ruling on the motion to waive a jury trial on the gang enhancements. On the date originally set for trial, April 29, 2013, the prosecutor indicated he was not ready to proceed and moved for dismissal of the case because despite diligent efforts, the People could not serve two witnesses in the case, including Machado. The prosecutor did not want to try the case based on Machado’s preliminary hearing testimony. The prosecutor stated he intended to refile the charges. Counsel for each defendant strenuously objected to the motion. Judge Saucedo stated he did not believe the prosecutor’s motion was directed to the court’s ruling on the bifurcation of the gang enhancements. Judge Saucedo granted the motion to dismiss. The same day, the prosecutor filed a new information. In addition to the gang enhancements, the prosecutor added count 5, a substantive gang allegation pursuant to The Honorable H. N. Papadakis was assigned as the new trial judge. During motions in limine on July 18, 2013, Judge Papadakis noted the issue of motive/intent was “a tremendous issue in this case,” and he denied the motion to bifurcate the gang issues. Before trial, such dismissals have been upheld where designated to enable the prosecution to obtain further witnesses, to add defendants, to plead new facts, or to plead new offenses. (People v. Orin, supra, 13 Cal.3d at p. 946section 1385 Although defendants vigorously argue the prosecutor was forum shopping, depriving them of their right to due process, and otherwise manipulating judicial process, there is no evidence in the record to support these contentions. The prosecutor’s stated reason for seeking a dismissal of the case in July 2013 was because despite due diligence, two witnesses—including Machado, the principal prosecution witness—had not been found and served with a subpoena to testify at trial. The prosecutor did not want to try the case with Machado’s preliminary hearing testimony—a trial by transcript. Seeking to secure the primary witness not only secured the People’s rights, but defendants’ right to due process. Once Machado was available to testify, the jury had the ability to evaluate his credibility much more carefully than would have been possible with a cold, dry reading of his preliminary hearing testimony. There is nothing in the record to challenge the prosecutor’s veracity when he told the court Machado was unavailable to testify. Judge Saucedo found no ill motive by the prosecutor and had a valid, supportable reason in the interests of justice for granting the People’s motion pursuant to Defendants further argue the prosecutor’s conduct amounted to improper forum shopping. As a general rule, one trial judge should not overrule the order of another; in effect, becoming a one-judge appellate court. This rule discourages forum shopping, prevents one judge from interfering with an ongoing case before another judge, and prevents the second judge from ignoring or arbitrarily rejecting the order of the previous judge. Where there has been a reversal of a judgment on appeal and a remand for reconsideration of pretrial motions, or there has been a mistrial and the issues being tried remain in flux where the rulings are interlocutory, the outcome remains undetermined and one judge may overrule the order of another. (People v. Riva (2003) 112 Cal.App.4th 981, 991–992; see People v. Mattson (1990) 50 Cal.3d 826, 849.) Reconsideration must be made with due consideration, the revised ruling cannot be arbitrary, and it must be exercised in conformity with the defendant’s right to due process of law. (People v. Riva, supra, at p. 992.) Judge Saucedo’s ruling was made during in limine motions prior to the commencement of trial. Judge Saucedo granted the bifurcation motion in early pretrial hearings. Judge Papadakis presided over the first trial, ending in mistrial, and the second trial. In pretrial hearings prior to the first trial, Judge Papadakis ruled differently than Judge Saucedo on the bifurcation motion. After Judge Saucedo’s earlier ruling, however, the procedural circumstances remained in flux. After Judge Saucedo’s ruling, the People’s theory of motive had changed from one of tax collection by the gang to one of retaliation by the gang for Machado’s disrespect toward defendants. A substantive gang allegation was added to the information. There was evidence to support the prosecutor’s shift in theory. Under these circumstances, we cannot attribute improper motive to the prosecutor or categorize his conduct as forum shopping. Under People v. Riva, the new judge could rule differently from the first judge. In conclusion, defendants have failed to demonstrate the prosecutor moved to dismiss the case for an improper reason, acted vindictively, or otherwise acted to undermine their right to due process. This ground for appeal is rejected. We briefly summarize the salient facts as they pertain to the question of the effects of Senate Bill 1437 to Medrano’s and Martinez’s convictions for attempted murder. Machado lived in a mobilehome where he was growing medical marijuana. At around 11:00 p.m. on November 24, 2010, Machado was at home when he heard a truck outside. Shortly after, he heard multiple footsteps on his porch. Someone said “FBI” just before kicking in his door and entering. (Machado subsequently identified the defendants as those who entered his home.) Machado grabbed a shotgun and crouched down in his bedroom on the right side of a couch between his bed and a closet. Machado recognized Avellanoza standing in the doorway. Avellanoza pointed a pistol at Machado and fired. Machado fired back. Several bullets grazed his body and one penetrated Machado’s shoulder. After the shots were fired, Machado could see Medrano and Martinez fleeing from the “marijuana grow room.” Each was carrying a handgun. Additional gunfire was directed toward Machado through the wall of his bedroom by defendants as they exited his home. The jury found all three defendants guilty of attempted murder, and true allegations that each used a firearm in its commission. However, the jury did not find true that Medrano and Martinez acted as principals or caused great bodily injury. On the other hand, the jury found true allegations Avellanoza personally used a firearm, acted as a principal and that he inflicted great bodily injury. In addition, Avellanoza was found guilty of shooting into an inhabited dwelling. Medrano and Martinez were acquitted of this charge. Among other theories, the jury was instructed on the natural and probable consequences doctrine to support attempted murder liability against Medrano and Martinez. On September 30, 2018, while defendants’ petition for review in this case was pending in the California Supreme Court, the Governor signed Senate Bill 1437, which became effective on January 1, 2019. Senate Bill 1437 “amend[ed] the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) This was accomplished through amendments to As to the natural and probable consequences doctrine, at issue here, Senate Bill 1437 added a provision to Martinez and Medrano contend they are entitled to relief under Senate Bill 1437 because the prosecutor argued, and the court instructed the jury, that Martinez and Medrano could be convicted of attempted murder based on the now invalidated natural and probable consequences theory. Specifically, Martinez argues he “is entitled to some form of relief on appeal from the attempted-murder conviction because amendment of Similarly, Medrano argues Senate Bill 1437’s amendment to Medrano further contends he is entitled to relief on direct appeal, and is not limited to the petitioning procedure provided for in The People respond that Medrano and Martinez must petition the trial court for resentencing based on the Legislature’s enactment of The applicability of Senate Bill 1437 to the crime of attempted murder presents an issue of statutory interpretation for our independent review. (See People v. Tran (2015) 61 Cal.4th 1160, 1166 [“We review de novo questions of statutory construction“]; In re R.G., supra, 35 Cal.App.5th at p. 146.) Prior to Senate Bill 1437’s enactment, a person who knowingly aided and abetted a crime, the natural and probable consequences of which was attempted murder or murder, could be convicted of not only the target crime but also of the resulting attempted murder or murder, but not first degree murder. (People v. Chiu (2014) 59 Cal.4th 155, 161, 166; In re R.G., supra, at p. 144.) “‘By its very nature, aider and abettor culpability under the natural and probable consequences doctrine is not premised upon the intention of the aider and abettor to commit the nontarget offense because the nontarget offense was not intended at all. It imposes vicarious liability for any offense committed by the direct perpetrator that is a natural and probable consequence of the target offense.’” (People v. Chiu, supra, 59 Cal.4th at p. 164.) The Chiu court further explained: “[S]ection 31 provides in relevant part that ‘[a]ll persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission … are principals in any crime so committed.’ It does not expressly mention the natural and probable consequences doctrine. Where the statutory language is vague, ‘the statutory definition permits, even requires, judicial interpretation.’ (People v. Chun (2009) 45 Cal.4th 1172, 1181.) We may, as a court, determine the extent of aiding and abetting liability for a particular offense, keeping in mind the rational function that the doctrine is designed to serve and with the goal of avoiding any unfairness which might redound from too broad an application. [Citations.]” (Ibid.) Excepting the felony-murder rule,4 an accomplice may be convicted of a crime under one of two alternative theories: direct aiding and abetting actions of the perpetrator to the accomplice by “agency” doctrine; in reality, we demand that she who chooses to aid in a crime forfeits her right to be treated as an individual’“].) However, as amended by Senate Bill 1437, Pursuant to the above reasoning, we conclude Senate Bill 1437 precludes any imposition of vicarious liability under the natural and probable consequences doctrine if the charged offense requires malice aforethought. Because malice cannot be imputed to a defendant who aids and abets a target offense without the intent to kill, the natural and probable consequences doctrine is no longer a viable theory of accomplice liability for attempted murder. Put differently, since “implied malice cannot support a conviction of an attempt to commit murder” (People v. Bland, supra, 28 Cal.4th at p. 327; see fn. 4, ante), the current version of We acknowledge two of our sister courts have held Senate Bill 1437 does not affect the natural and probable consequences doctrine as it relates to attempted murder. (People v. Lopez, supra, 38 Cal.App.5th at pp. 1102–1113, rev. granted; Munoz, supra, 39 Cal.App.5th at pp. 753–769, rev. granted.) However, we respectfully disagree with their analyses and conclusions for the following reasons. “The ‘“goal of statutory construction is to ascertain and effectuate the intent of the Legislature.”’ [Citation.] In approaching this task, we must first look at the plain and commonsense meaning of the statute because it is generally the most reliable indicator of legislative intent and purpose. [Citation.] If there is no ambiguity or uncertainty in the language, the Legislature is presumed to have meant what it said, and we need not resort to legislative history to determine the statute’s true meaning.” (People v. Cochran (2002) 28 Cal.4th 396, 400–401.) In other words, the plain meaning controls unless the words are ambiguous. (People v. Costella (2017) 11 Cal.App.5th 1, 6.) “‘If the statute is ambiguous, we may consider a variety of extrinsic aids, including legislative history, the statute’s purpose, and public policy.’” (Ibid.) We may “‘examin[e] the context in which the language appears and adopt[] the construction which best serves to harmonize the statute internally and with related statutes.’” (People v. Gonzalez (2008) 43 Cal.4th 1118, 1126.) The Lopez opinion acknowledges that “Senate Bill 1437 eliminates aider and abettor liability for murder under the natural and probable consequences doctrine” (People v. Lopez, supra, 38 Cal.App.5th at p. 1092, rev. granted), but it suggests the imposition of vicarious liability for attempted murder under the same doctrine is not based on imputed malice. (Id. at p. 1106.) The logic of this argument escapes us.5 We are also unpersuaded by Lopez’s reliance on the absence of any reference to “attempted murder” in Senate Bill 1437. (Lopez, at pp. 1103–1105.) The omission is meaningless when one considers that “An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission.” ( On remand, the People may elect to retry count 5 and the gang enhancement allegations. We note the People may be able to prove much оf the testimonial hearsay evidence presented by Detective Sanchez through the admissible testimony of witnesses with direct knowledge of the truth of the matters asserted. Defendants further contend the remaining allegations must also be reversed because the inadmissible gang evidence, especially the shot-caller evidence, was so prejudicial and inflammatory it affected all of the jury‘s deliberations. Although the inadmissible evidence may have affected the jury‘s assessment of counts 1 through 4 and the gun use enhancements, the evidence of premeditation and deliberation was so strong we find beyond a reasonable doubt the jury would have convicted all three defendants of counts 1, 2, and 4 and would have convicted Avellanoza of count 3. We begin our evaluation by acknowledging the admission of tangentially relevant gang evidence is highly inflammatory. (People v. Cox (1991) 53 Cal.3d 618, 660, disapproved on another ground in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22.) Gang evidence should not be admitted where its sole relevance is to show a defendant‘s bad character. Such evidence is admissible when the reason for the crime is gang related. (People v. Sanchez (1997) 58 Cal.App.4th 1435, 1449.) The prosecutor‘s theory of the case was defendants had gang motives to kill Machado. The prosecutor did not present substantial admissible evidence all three defendants were members of the Norteño gang. The prosecutor, however, did present admissible evidence that Martinez was a Norteño and had prior hostile encounters with Machado. Through the admissible general background and history of the Norteño gang presented through Detective Sanchez‘s testimony, there was admissible evidence before the jury that Martinez could have harbored an intent to attack Machado for the gang, aside from whether he was a money collector and shot-caller for the gang. There was substantial evidence before the jury all three defendants, aside from any gang association, had enmity for Machado from prior encounters and conflicts. There was substantial admissible evidence before the jury all three defendants had intent to kill Machado apart from inadmissible gang evidence. Furthermore, the evidence of premeditated, deliberate, and willful conduct by all three defendants was particularly strong in this case. Machado described a truck driving slowly by his home late at night one-half hour prior to the attack. Immediately prior to the shootings, someone yelled “FBI” as a ruse prior to kicking down the door into Machado‘s home. The intruders methodically kicked down doors until they reached Machado‘s bedroom. Avellanoza kicked down Machado‘s door and began to fire at him multiple times and at nearly point-blank range. Medrano and Martinez were shooting at Machado through the bedroom wall at the same time. Many rounds of ammunition were expended during defendants’ attempt to kill Machado. Martinez yelled at someone to go back inside and “get” Machado after they had exited the home. Upon hearing this, Machado exited his bedroom through a window and a fourth gunman began to shoot at him from behind a tree. Because of prior encounters with defendants, Machado was able to easily identify them all. The abundance of evidence showing preplanning and organization along with the number of assailants involved in the attack clearly support the jury‘s verdicts for counts 1 through 4. Although the shot-caller evidence against Martinez was prejudicial, it was not so prejudicial that it undermines our confidence in the jury‘s verdict on counts 1 through 4. Even though the prosecutor argued a gang motive for all of the counts, the prosecutor also argued to the jury there was bad blood between defendants and Machado. The prosecutor accurately argued to the jury the People did not have to prove motive, and the jury was instructed with Attempted murder requires the specific intent to kill, along with the commission of a direct but ineffectual act toward accomplishing the attempted killing. (People v. Perez (2010) 50 Cal.4th 222, 229-230.) The evidence each defendant had the specific intent to kill Machado is very substantial. We conclude, beyond a reasonable doubt, that absent the inadmissible gang evidence, the jury would still have convicted all three defendants of counts 1, 2, and 4, and convicted Avellanoza of count 3. Defendants argue the trial court erred in denying their motion to bifurcate the gang issues. The trial court has discretion to bifurcate issues in a jury trial, although no statute requires bifurcation. The trial court has broad discretion to control the conduct of a criminal trial. (People v. Hernandez, supra, 33 Cal.4th at p. 1048.) To the extent evidence supporting a gang enhancement would be admissible at a trial determining a defendant‘s guilt, any inference of prejudice would be dispelled and bifurcation would be unnecessary. (Id. at pp. 1049-1050.) Given the overlapping evidence between the attempted murder and related allegations with the gang allegations, the trial court did not abuse its discretion in denying defendants’ bifurcation motion. We note all the parties, not just defendants as discussed in part IX.B, ante, but the prosecutor and trial court could not necessarily anticipate the overruling of Gardeley. Although much of the gang evidence submitted by the prosecutor has been found inadmissible pursuant to Sanchez and Elizalde, it was still admissible at the time of this trial, and the trial court was following the law applicable at that time. We do not find error in the trial court‘s ruling on defendants’ bifurcation motion. Given our reversal of the gang allegations, the trial court will have to conduct a new sentencing hearing whether or not the People refile and prosecute defendants on those allegations. Defendants and the People concede count 2, the burglary count, has to be stayed pursuant to Additionally, in his supplemental briefing, Martinez requests a resentencing hearing for the court to exercise its newfound discretion pursuant to Senate Bills 620 and 1393 to consider whether to strike his firearm and prior serious felony enhancements, respectively. Senate Bill 620, signed into law on October 11, 2017, amеnded There are also several clerical errors in each defendant‘s abstract of judgment, however, new abstracts of judgment will need to be prepared after defendants are resentenced. Defendants’ convictions on count 5 and the jury‘s true findings on all the gang enhancements are reversed as to all three defendants. As to Medrano and Martinez only, the attempted murder convictions on count 1 are reversed. The verdicts on the remaining counts and enhancements are affirmed. The PEÑA, J. WE CONCUR: LEVY, Acting P.J. POOCHIGIAN, J.FACTUAL BACKGROUND*
Shooting Incident
Investigation
Gang History and Background Evidence
Predicate Offenses
Evidence of Medrano’s Gang Affiliation
Evidence of Martinez’s Gang Affiliation
Evidence of Avellanoza’s Gang Affiliation
Hypothetical Based on Mirroring of Evidence
Medrano’s Defense
Martinez’s Defense
Avellanoza’s Defense
People’s Rebuttal Evidence
DISCUSSION
I. Dismissal of Original Information*
*
A. Introduction
B. Pretrial Proceedings
C. Legal Analysis
II. Effect of Senate Bill 1437
A. Abbreviated Factual Summary
B. Introduction
C. Contentions
D. Applicability of Senate Bill 1437 to Attempted Murder
G. Convictions on Counts 1 Through 4
X. Bifurcation of Gang Allegations*
XI. Sentencing Issues*
DISPOSITION
Notes
Some of the issues raised in defendants’ briefs either applied to, or arguably applied to, all three defendants. In his reply brief, appellate counsel for Avellanoza stated he specifically did not join his codefendants’ arguments concerning sufficiency of the evidence of perpetrator identity, premeditation, Martinez‘s motion to sever during trial, the codefendants’ conspiracy argument, or the argument concerning the unanimity instruction. Avellanoza‘s appellate counsel made his incorporation by reference out of an abundance of caution and there are overlapping issues properly joined under