People v. Burgos

1

THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO BURGOS et al., Defendants and Appellants

H045212

California Court of Appeals, Sixth District

October 23, 2024

NOT TO BE PUBLISHED

Santa Clara County Super. Ct. Nos. C1518795, C1756994

Greenwood, P. J.

Gabriel Cortez and Danny Rodriguez were walking on the street when a group of men robbed them at gunpoint. After the robbers took their phones and a wallet with a few hundred dollars, Cortez and Rodriguez ran away. A jury found appellants Francisco Burgos, James Daniel Richardson, and Damon Stevenson Jr. guilty on two counts of second degree robbery with true findings on gang allegations. The trial court sentenced each appellant to 21 years in prison.

In a prior opinion, this court reversed appellants' judgments based on a retroactive application of Penal Code section 1109^[1] as amended by Assembly Bill No. 333 (20212022 Reg. Sess.) (Assembly Bill 333), which took effect while this appeal as pending. (Stats. 2021, ch. 699, § 5.) The California Supreme Court granted review, reversed the judgment, and remanded the matter to us for further proceedings. (People v. Burgos (2024) 16 Cal.5th 1 (Burgos).) On remand, we vacated our prior opinion and we consider the appeal anew.

Appellants raise numerous claims that were not under review by the California Supreme Court. All three appellants contend the evidence was insufficient to support the robbery convictions and they contend the trial court erroneously allowed the jury to see evidence and information revealing that a non-testifying codefendant had been convicted of the robbery. Burgos and Richardson raise additional claims of erroneous evidentiary rulings, improper jury instructions, ineffective assistance of counsel, and cumulative prejudice. Richardson contends the trial court erred by denying his motion to continue sentencing for the purpose of obtaining DNA test results. For the reasons below, we conclude these claims are without merit.

Additionally all three appellants contend we must vacate the gang enhancements based on the retroactive application section 186.22 as amended by Assembly Bill 333, and they contend they are entitled to resentencing based on the retroactive application of Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Senate Bill 1393). Burgos and Stevenson contend they are also entitled to resentencing as youthful offenders under Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567). The Attorney General concedes the merits of these claims, and we accept the concessions. Accordingly, we will vacate the gang enhancements and remand the matter to allow the prosecution the opportunity to retry appellants on those enhancements. We will further order the trial court to resentence appellants in accordance with Senate Bill 1393 and to resentence Burgos and Stevenson in accordance with Senate Bill 567.

Burgos contends his sentencing enhancement under former section 667.5, subdivision (b) is now invalid and must be stricken under Senate Bill No. 136 (20192020 Reg. Sess.) (Senate Bill 136) and Senate Bill No. 483 (2021-2022 Reg. Sess.) (Senate Bill 483). The Attorney General does not dispute that Senate Bill 136 requires us to strike the enhancement but he argues Senate Bill 483 does not apply to Burgos. For the reasons below, we will strike the enhancement based on the retroactive application of Senate Bill 136.

All three appellants contend the trial court erred by imposing certain fines and fees without determining whether they had the ability to pay under People v. Duenas (2019) 30 Cal.App.5th 1157 (Duenas). Because we must remand the matter for resentencing, appellants may raise any claims of inability to pay at their resentencing hearings. Stevenson and Burgos contend section 3051 violates their equal protection rights. Because we are vacating their sentences and remanding for resentencing, we conclude this claim is not ripe for appeal. Stevenson also requests various corrections concerning the fees as recorded in the abstract of judgment, and the Attorney General concedes several corrections must be made. We will order corrections to the abstract as set forth below.

Accordingly, we will reverse the judgment, vacate the true findings on the gang enhancements, strike Burgos's enhancement under subdivision (b) of section 667.5, and remand the matter for further proceedings.^[2]

I. Factual and Procedural Background

A. Procedural Background

The prosecution charged each appellant with two counts of second degree robbery. (§§ 211, 212.5, subd. (c).) As to each count and defendant, the prosecution alleged that a principal personally used a firearm in the commission of the offense (§ 12022.53, subds. (b) &(e)(1)), and that the offense was committed for the benefit of, at the direction of, and in association with a criminal street gang (§ 186.22, subd. (b)(1)(C)). The prosecution further alleged each defendant had been convicted of prior serious felony offenses (§§ 667, subds. (a), (b)-(i), 1170.12). As to Burgos, the prosecution alleged he had served a prior prison term (former § 667.5, subd. (b)). As to Stevenson, the prosecution alleged he was on felony probation at the time of the offenses. (§ 1203, subd. (k).)

The prosecution also charged codefendants Derrick Lozano and Gregory Byrd with the same offenses. Before trial, Lozano agreed to plead guilty to one count of second degree robbery with firearm and gang enhancements and one count of active participation in a criminal street gang in exchange for a stipulated sentence of three years.

Trial began in January 2017, and the jury reached verdicts in March 2017. The jury found Burgos, Richardson, and Stevenson guilty on both counts and found true the gang allegations. The jury hung on the firearm allegations and found Byrd not guilty on both counts. After a bench trial, the court found true the prior conviction allegations as to Burgos and Stevenson and the prior prison term allegation as to Burgos. Richardson admitted his prior conviction.

As to each defendant, the trial court imposed an aggregate term of 21 years, consisting of six years for robbery, 10 years for the gang enhancements, and five years for the prior felony offenses.

B. Facts of the Offense

Gabriel Cortez and Danny Rodriguez were robbed while they were walking near a 7-Eleven store on the corner of King Road and Flanigan Drive in San Jose on August 29, 2015. The victims told police they had encountered a group of four to six men, one of whom had a handgun. The men took both victims' phones and Cortez's wallet. The prosecution alleged the group of robbers included appellants along with codefendants Gregory Byrd and Derrick Lozano. The prosecution further alleged appellants were members of the Crip criminal street gang.

The robbery took place around or after midnight across the street from a 7-Eleven store. Video cameras at the 7-Eleven store recorded Burgos, Richardson, Stevenson, and Lozano entering the store at 12:17 a.m. They walked around inside and left the store at 12:21 a.m.

After the victims were robbed, they went to Cortez's home nearby, where Rodriguez called his father, and the father picked up Rodriguez to drive him home. Rodriguez's father called 911 to report the robbery around 1:00 a.m., and police went to the area of the robbery soon thereafter.

1. The Victims' Statements to the Police

Rodriguez made the following statements to the police in the early morning hours following the robbery: Rodriguez and Cortez had just left a nearby restaurant, and as they were walking away, they saw a group of five or six men on the corner. It looked like the men were coming from the 7-Eleven store. They were all black men in their late 20s, and they all wore plain black or dark blue t-shirts with no writing. The men started asking Rodriguez and Cortez where they were from and whether they were from Meadowfair. The victims responded that they were from "right here." One of the men asserted, "Well, we're Crip."

It appeared to Rodriguez that the men were about to let them go when the biggest man in the group said something like, "Nah, what do you guys have in your pockets?" Rodriguez referred to this as a "pocket check" in his statement to the police. Another man, described by Rodriguez as the "main guy," pulled up his shirt to reveal a gun. The "main guy" was wearing what looked like a black beanie, which he then pulled down over his face. Rodriguez saw it had holes for the eyes and he realized it was a ski mask. The "main guy" told the victims to empty their pockets. Rodriguez, who had no arms, responded, "Bro', I don't even [have] arms. I can't. You know I can't." The man then approached Rodriguez and pulled his phone and wallet out of his pockets. The man opened the wallet, saw it was empty, and threw it on the ground. He kept the phone. The men also took Cortez's phone and wallet. One of the men then told the victims, "See that guy with the gun .... you guys got 30 seconds to get out of my face." Cortez grabbed Rodriguez's wallet and the victims ran away.

Rodriguez described the "main guy" with the gun as a "smaller guy," about five feet six or seven inches tall, and about 180 pounds. He was around 25 or 26 years old and he had a goatee. Rodriguez said he could see the man clearly when the group first approached the victims because the man had not yet pulled his ski mask down. Rodriguez estimated that the bigger, heavyset man-the one who asked the victims what they had in their pockets-was about six feet one or two inches tall, and "200-something" pounds. He was wearing a dark blue short-sleeve t-shirt and had facial hair like a goatee-chin hair, but with more of a mustache. All the men were wearing beanies except for one, who had long hair in "fishtail" braids,...