People v. Alvarado

THE PEOPLE, Plaintiff and Respondent, v. GERARDO ALVARADO, Defendant and Appellant.

F082048

California Court of Appeals, Fifth District

December 2, 2022

NOT TO BE PUBLISHED

Order Filed Date 12/14/22

APPEAL from a judgment of the Superior Court of Kern County. No DF013807B Charles R. Brehmer, Judge.

Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill, Carlos A. Martinez, and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.

ORDER MODIFYING OPINION AND DENYING REHEARING

THE COURT:

It is ordered that the opinion filed herein on December 2, 2022, be modified in the following particulars:

1. On page 4, the first full paragraph beginning with "In supplemental briefs," is deleted and the following paragraph is inserted in its place:

"In supplemental briefs, Gerardo argues: (1) "this case should be remanded back to the trial court in light of the recent amendments to . . . section 186.22 which will apply retroactively to [his] convictions in counts 1, 2 and 3 once they take effect" (capitalization omitted); (2) "all of [his] convictions must be reversed" (capitalization omitted) because "section 1109 applies retroactively"; and (3) Bruen rendered unconstitutional California's licensing scheme (§ 26150 et seq.) and- by extension-section 25850, which criminalizes carrying a loaded firearm in public."

There is no change in the judgment.

Appellant's petition for rehearing is denied.

OPINION

DETJEN, J.

INTRODUCTION

Defendant and appellant Gerardo Alvarado (Gerardo)^[1] and codefendants Alejandro Alvarado (Alejandro) and Christopher Alexander Velez (Christopher)^[2] were each charged with attempted murder (Pen. Code,^[3] §§ 187, subd. (a), 664 [count 1]); carrying a loaded firearm in public as an active participant in a criminal street gang (§ 25850, subd (c)(3) [count 2]); active participation in a criminal street gang (§ 186.22, subd. (a) [count 3]); and misdemeanor unlawful driving or taking of a vehicle without the owner's consent (Veh. Code, § 10851, subd. (a) [count 5]). Gerardo was separately charged with unlawful possession of a firearm by a convicted felon (§ 29800 subd. (a)(1) [count 4]).^[4] As to count 1, the information alleged in part that the attempted murder was willful, deliberate, and premeditated (§ 189); Gerardo committed the offense for the benefit of, at the direction of, and/or in association with a criminal street gang (§ 186.22, former subd. (b)(1)); Gerardo personally used a firearm (§ 12022.53, subd. (b)); and at least one principal in the attempted murder personally and intentionally discharged a firearm and caused great bodily injury (id., subds. (d), (e)(1)).

Following trial, the jury found Gerardo guilty as charged and found true the special allegations. The trial court imposed life "with a minimum parole eligibility date of 15 years" plus 25 years to life for the vicarious firearm discharge enhancement on count 1 and a concurrent one year on count 5. The court stayed execution of punishment on counts 2 through 4 pursuant to section 654.

Gerardo makes numerous contentions on appeal. In his opening brief, he argues: (1) the trial court erroneously admitted into evidence an unauthenticated "kite" "containing a message from one gang member in prison to another gang member outside the prison"; (2) the court erroneously "admitted irrelevant and prejudicial evidence regarding an incident of witness intimidation and threats by a third party unrelated to and unauthorized by [him]" (capitalization omitted); (3) there was "improper expert opinion on the ultimate issue that [he], Alejandro and Christopher were acting together to murder [the victim]"; (4) the cumulative effect of the aforementioned errors deprived him of due process; (5) the evidence did not support his misdemeanor conviction on count 5; (6) his conviction for active gang participation on count 3 must be reversed because it is a lesser included offense of carrying a loaded firearm in public as an active gang participant, the crime underlying his conviction on count 2; and (7) the abstract of judgment "must be ordered corrected to correctly reflect the oral pronouncement of judgment on count 1" (capitalization omitted).

We conclude: (1) the trial court did not abuse its discretion when it determined that there was sufficient evidence to let the jury decide whether the kite was authentic; (2) the court did not abuse its discretion when it admitted into evidence a third party's phone call to the victim; (3) even if we assume arguendo that the gang expert expressed an improper opinion, such an error was not prejudicial; (4) there was no cumulative error; and (5) substantial evidence supported Gerardo's conviction on count 5. We accept the Attorney General's concessions that Gerardo's conviction on count 3 should be reversed and the abstract of judgment should be corrected.

While this case was pending, the Legislature enacted Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Assembly Bill No. 333), which amended section 186.22 and added section 1109 (Stats. 2021, ch. 699, §§ 3, 5). The new laws became effective on January 1, 2022. (See Cal. Const., art. IV, § 8, subd. (c)(1); Gov. Code, § 9600, subd. (a).) In addition, on June 23, 2022, the United States Supreme Court decided New York State Rifle & Pistol Assn., Inc. v. Bruen (2022) 597 U.S.__ [142 S.Ct. 2111] (Bruen), which held that New York's "proper cause" requirement for an unrestricted license to carry a handgun outside the home impermissibly infringed on the right of law-abiding citizens to bear arms in public for self-defense.

In supplemental briefs, Gerardo argues: (1) "this case should be remanded back to the trial court in light of the recent amendments to . . . section 186.22 which will apply retroactively to [his] convictions in counts 1, 2 and 3 once they take effect" (capitalization omitted); (2) "all of [his] convictions must be reversed" (capitalization omitted) because "section 1109 applies retroactively"; and (3) Bruen rendered unconstitutional California's licensing scheme (§ 26150 et seq.) and-by extension- section 25850, which criminalizes possession of a firearm without a license.

The Attorney General concedes that "the gang enhancement findings must be vacated, the gang-related convictions reversed, and the matter remanded to give the People the opportunity to prove the applicability of the gang allegations under the amendments to section 186.22." We accept this concession. On the other hand, even if we assume arguendo that section 1109 is retroactive, we conclude that lack of bifurcation was not prejudicial. Finally, we reject Gerardo's assertion that California's licensing scheme and section 25850 are unconstitutional.

STATEMENT OF FACTS

I. Testimony of Antonio H.^[5]

a. Gang affiliation and relationships

When he was 15 years of age, Antonio-also known as "Clever"-was initiated into Delano Norte, a Norteño street gang that claims Delano as its territory. As a Norteño, he identified with the color red, the letter N, and the number 14. Antonio subsequently joined 21st Street, a Delano Norte subset, with the backing of his best friend and fellow gang member Oswaldo "Little Baby Boy" Guzman.

21st Street is organized into a three-tiered hierarchy comprised of "soldiers," "squad leader[s]," and the "channel." A soldier receives orders and "do[es] whatever need[s] to be done." A squad leader "run[s] [his] own squad" of soldiers. The channel- "the main one from the hood"-oversees the subset, relays information to squad leaders from "[w]hoever is running the town," collects "[t]axes," and determines how a member who "mess[es] up" should be punished. Antonio began as a soldier in 2014, was elevated to squad leader at some point, and became the channel in early 2018. However, in or around June 2018, he was demoted to squad leader without any explanation. While Antonio was a member of 21st Street, Ivan "Evil" Rodriguez was the Norteño "running the town" and "in charge of" "everything that goes on" in Delano. Rodriguez received correspondences "[f]rom homies in jail" in the form of "kite[s]," i.e., "long and narrow" "rolled up" "piece[s] of paper" with "small writing."

By "putting in work" for the gang, i.e., by participating in shootings, robberies, and drug sales, Antonio earned many Norteño-related tattoos, including "21st Street" on his face and left arm; "1" and "4" on his biceps; "NKC" and four dots on his left arm; one dot on his right hand and four dots on his left hand; two horizontal lines underneath four dots (the Mayan numeral for 14) on his left ring finger; "Delano" on his chest; "KC" on his stomach; and "banging" above the kneecap. He also had "LB Boy"-Guzman's moniker-on his arm.

Antonio met Alejandro, also known as "Peanut," through 21st Street. The latter became a member of the subset "[s]omewhere between 2017 and 2018" by "putting in work," i.e., by "go[ing] after [the gang's] enemies" and "shoot[ing] somebody." Alejandro served as the "bank," the soldier who "hold[s] the money" amassed by 21st Street. He had gang-related tattoos such as "Norte[ñ]o" and "Delano Norte." Antonio considered Alejandro a friend and hung out with him "[m]ostly every day" around September 2018.

Antonio also met Alejandro's brother Gerardo, also known as "Little Knocker," through 21st Street. The latter became a member of the subset before the former and had gang-related tattoos such as "Norteño" and "Delano Norte." Antonio and Gerardo hung out "maybe once, twice a week" around the time of September 2018.

Antonio met...