People v. Burgos

77 Cal.App.5th 550

292 Cal.Rptr.3d 587

The PEOPLE, Plaintiff and Respondent,

v.Francisco BURGOS et al., Defendants and Appellants.

H045212

Court of Appeal, Sixth District, California.

Filed April 15, 2022

Attorneys for Defendant and Appellant, FRANCISCO BURGOS: Laurie Wilmore, under appointment by the Court of Appeal for Appellant, Conrad Petermann, under appointment by the Court of Appeal for Appellant

Attorneys for Defendant and Appellant, DAMON STEVENSON, JR.: Jean M. Marinovich, under appointment by the Court of Appeal for Appellant

Attorneys for Defendant and Appellant, JAMES RICHARDSON : Solomon R. Wollack, under appointment by the Court of Appeal for Appellant

Attorneys for Plaintiff and Respondent, THE PEOPLE: Rob Bonta, Attorney General of California, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Alice B. Lustre, Supervising Deputy Attorney General, John Michael Chamberlain, Deputy Attorney General

Greenwood, P. J.

This case concerns the retroactivity of Assembly Bill No. 333 (2021–2022 Reg. Sess.) (Assembly Bill 333), which made numerous changes to the law governing gang-related offenses. A jury found appellants Francisco Burgos, James Daniel Richardson, and Damon Stevenson Jr. guilty of second degree robbery with true findings on gang enhancements. The trial court sentenced each appellant to 21 years in prison.

Appellants raise numerous claims including insufficient evidence and the retroactivity of Assembly Bill 333. The Attorney General concedes Assembly Bill 333 is retroactive insofar as it amended the requirements for proving a gang enhancement. But he contends the section of the bill adding Penal Code section 1109 (allowing the defense to request a bifurcated trial on a gang enhancement) does not apply retroactively.

We conclude the evidence was sufficient to support the convictions. We hold Assembly Bill 333 applies retroactively, and we conclude there are no grounds for treating one section of the bill as prospective-only. Therefore, Penal Code section 1109 also operates retroactively. We will reverse the judgments of conviction, vacate the gang enhancements, and remand to the trial court.

Appellants raise numerous other claims including evidentiary error, instructional error, and ineffective assistance of counsel, but we do not reach those claims.¹

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Procedural Background

The prosecution charged each appellant with two counts of second degree robbery. ( Pen. Code, §§ 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 ( Pen. Code, § 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 ( Pen. Code, § 186.22, subd. (b)(1)(C) ). The prosecution further alleged each defendant had been convicted of prior serious felony offenses ( Pen. Code, §§ 667, subds. (a), (b) - (i), 1170.12 ). As to Burgos, the prosecution alleged he had served a prior prison term ( Pen. Code, § 667.5, subd. (b) ). As to Stevenson, the prosecution alleged he was on felony probation at the time of the offenses. ( Pen. Code, § 1203, subd. (k).)

The prosecution also charged codefendants Derrik Lozano and Gregory Byrd with the same offenses. Before trial, Lozano agreed to plead guilty to one count of second degree robbery and 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. 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

The prosecution alleged appellants were members of the Crip criminal street gang who robbed two men at gunpoint in San Jose on August 29, 2015.² The victims were Gabriel Cortez and Danny Rodriguez. Rodriguez had no arms. The victims told police a group of four to six men with a gun approached them, asked about their gang status, and took their phones and wallets. The prosecution alleged that the robbers consisted of the three appellants together with Gregory Byrd and Derrik Lozano.

At the time of the offense, Byrd lived in an apartment at a complex near Bowling Green Drive and King Road in San Jose. He testified that around 9:30 or 10:00 p.m. on the night of the robbery, Byrd, Lozano, and appellants were at the apartment complex. At some point after midnight, appellants and Lozano left to go to the store. Byrd testified that they came back to the apartment about 15 minutes later. Between 12:08 and 12:28 a.m., at a 7-Eleven near the location of the robbery, video cameras recorded appellants and Lozano inside the store.

Just before the robbery, Rodriguez and Cortez were eating at a Chinese restaurant nearby. Around midnight, they left the restaurant and were walking near the 7-Eleven when a group of men approached them from the direction of the store. Rodriguez later told police it was a group of five or six men. Cortez later told police there were maybe four or five men in the group. The men were wearing black or dark blue clothing. Rodriguez told police they all wore plain t-shirts with no writing on them.

The men started asking Rodriguez and Cortez where they were from and whether they "banged." The victims responded that they were from "right here," and the men asked them whether they were from "Meadowfair." 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 asked the victims what they had in their pockets. The man pulled up his shirt to reveal a gun, pulled down a ski mask, and told the victims to empty their pockets. Rodriguez responded, "Bro', I don't even have arms. I can't. You know I can't." The man approached Rodriguez, pulled out his wallet and phone, and opened the wallet, whereupon the man saw it was empty. The man dropped the wallet but kept the phone. Someone pointed a gun in Cortez's face and took his wallet and phone out of his pockets. Cortez had about $250 in his 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."

After the robbery, the victims ran to Cortez's home and Rodriguez called his father to come pick him (Rodriguez) up. Rodriguez told his father that a group of men with a gun had robbed him (Rodriguez) and Cortez, taking their wallets and phones. As Rodriguez's father was driving him home, Rodriguez saw the men who robbed him standing on the corner of Bowling Green Drive and King Road. When Rodriguez and his father reached their home, the father called 911 and they reported the robbery. The father told the 911 operator his son had been robbed by five black men with a gun 15 minutes earlier, and that three of the robbers had been at the corner of Bowling Green Drive and King Road five minutes earlier.

Police arrived at the apartment complex at Bowling Green Drive and King Road around 1:00 a.m. The location was about 50 to 100 yards from the 7-Eleven. As they pulled up, the police saw three black men standing near the apartment complex. One of the men was wearing a "very, very noticeable teal shirt," or a "bright teal" or turquoise shirt. The three men immediately started running into the apartment complex.

The police set up a perimeter around the apartment complex and watched the exits to ensure nobody else went in or out. They saw Byrd standing on a second-floor balcony "kind of ... peeking out." About 25 minutes after police saw the three men run into the apartment complex, Byrd came out of the complex and contacted the police. He told the police he wanted to move his car, which was parked in a fire lane, so that it would not get towed. Police later determined the car was owned by Lozano's girlfriend, Cynthia Capito, who was outside the apartment complex. At some point, Capito consented to a search of the car, and the police found Rodriguez's stolen phone inside it.

The police detained Byrd and conducted an in-field showup of Byrd for Rodriguez. Rodriguez positively identified Byrd as the robber with the gun and described him as the main suspect.

Shortly thereafter, the police took appellants, Lozano, and another man named Keison Hames out of Byrd's apartment. The police conducted in-field showups of each person for Rodriguez one at a time. First, the police showed Hames to Rodriguez, but Rodriguez did not recognize him. Next, they showed Stevenson to Rodriguez. Rodriguez recognized him as being present during the robbery. After the police then showed Burgos to Rodriguez, however, he said Burgos looked similar to Stevenson, and he could not be sure about either of them. The police showed him Lozano next, and Rodriguez said he did not recognize him. Finally, they showed him Richardson, and Rodriguez said he was not a participant.

The police then conducted in-field showups with Cortez and showed him Lozano, Stevenson, Burgos, Richardson, and Hames. They did not show him Byrd. An audio recording of the showup conflicts with police testimony about the order in which the suspects were shown to Cortez. The audio transcript appears to show Lozano was presented first, and Cortez identified him as the person who "dug inside my pocket." Next, Cortez identified Stevenson as "kind of" familiar. Cortez said he thought Stevenson "was just there" and did not touch Cortez, but Cortez felt a little threatened by his presence. The...