People v. Mitchell

316 Cal.Rptr.3d 233

The PEOPLE, Plaintiff and Respondent,

v.Bryson Clayton MITCHELL, Defendant and Appellant.

F084489

Court of Appeal, Fifth District.

Filed December 15, 2023

Certified for Partial Publication.^*

APPEAL from a judgment of the Superior Court of Kern County. Kenneth C. Twisselman II, Judge. (Super. Ct. No. BF159352B)

Christine Vento, 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, Louis M. Vasquez, Lewis A. Martinez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

MEEHAN, J.

INTRODUCTION

In 2015, appellant Bryson Clayton Mitchell went on a crime spree with two accomplices. In 2017, appellant was convicted of 21 felonies stemming from this crime spree, including various robberies and assaults with a semiautomatic firearm. Numerous gang enhancements were found true, and the jury convicted appellant of being an active gang member. He received an aggregate determinate sentence of 67 years, along with a consecutive aggregate indeterminate term of 144 years.

In 2021, this court issued a nonpublished opinion in which we vacated appellant’s sentence and remanded this matter for a full resentencing after we determined a firearm enhancement had been improperly imposed in a particular count. We otherwise affirmed appellant’s judgment.¹ (People v. Mitchell (Feb. 18, 2021, F075878) 2021 WL 631398 [nonpub. opn.].)

On May 26, 2021, the California Supreme Court denied review of this matter. The following day, this court issued the remittitur.

On January 1, 2022, Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Assembly Bill 333) became effective. This legislation made significant changes to the elements necessary to establish a criminal street gang.

On May 27, 2022, the trial court resentenced appellant in this matter. Prior to resentencing, the court expressed concern that newly enacted Assembly Bill 333 applied retroactively to appellant. However, the court concluded that it lacked jurisdiction to address the validity of appellant’s gang conviction and the gang enhancements. The court resentenced appellant to an aggregate determinate term of 63 years eight months, along with a consecutive aggregate indeterminate sentence of 144 years.

[1] In the present appeal, the parties dispute whether appellant is entitled to the retroactive benefits of Assembly Bill 333.

We conclude that appellant has the better argument. It is undisputed that Assembly Bill 333 applies retroactively to any criminal matter that is not yet final on appeal. (People v. Tran (2022) 13 Cal.5th 1169, 1206–1207, 298 Cal.Rptr.3d 150, 515 P.3d 1210 (Tran).) In the published portion of this opinion, we hold that, because this matter is still pending before us, it cannot be said that this criminal prosecution or proceeding concluded before the ameliorative legislation took effect. Accordingly, appellant’s judgment is not yet final, and we must presume the Legislature intended for this ameliorative enactment to apply as broadly as is constitutionally permissible. (See People v. Esquivel (2021) 11 Cal.5th 671, 677, 279 Cal.Rptr.3d 659, 487 P.3d 974 (Esquivel).) Appellant benefits from Assembly Bill 333.

In the nonpublished portion of this opinion, we conclude that this record no longer contains admissible evidence to establish the predicate offenses necessary to prove a pattern of criminal gang activity. (See People v. Valencia (2021) 11 Cal.5th 818, 839, 280 Cal.Rptr.3d 581, 489 P.3d 700 (Valencia) [the particular events and participants alleged to have been involved in predicate offenses must be proved by independently admissible evidence].) Consequently, we will vacate the gang conviction and the gang enhancements. We will remand this matter for further proceedings, including a full resentencing, but the People shall have an opportunity to retry the gang charge and the gang enhancement allegations under the new law. (See People v. Oliva (2023) 89 Cal.App.5th 76, 89, 305 Cal. Rptr.3d 414; People v. Sek (2022) 74 Cal. App.5th 657, 669–670, 289 Cal.Rptr.3d 792.) We otherwise affirm appellant’s judgment.²

BACKGROUND

We summarize the material trial evidence. A more detailed summary of the trial facts may be found in our prior non-published opinion. (People v. Mitchell, supra, F075878).) When appellant and his two accomplices³ went on their crime spree, they were each members of the East Side Crips. Under the law in effect at the time of appellant’s offenses in 2015 and this trial in 2017, the prosecution established that the East Side Crips are a criminal street gang in Kern County.

I. The Crimes Charged in Counts 1-3 (the Robbery of the Restaurant)

On February 25, 2015, at about 3:06 a.m., appellant and his two accomplices entered a restaurant located in Kern County. A single employee was present. Appellant was armed with a semiautomatic firearm. Appellant and his accomplices took property belonging to both the employee and the restaurant.

II. The Crimes Charged in Counts 4–8 (the Robbery of the Convenience Store)

About 45 minutes after the incident above, appellant and his accomplices entered a convenience store in Kern County. Two employees were present. Appellant was armed with a semiautomatic firearm. Appellant and his accomplices left with property belonging to the convenience store.

III. The Crimes Charged in Counts 9–16 (the Home Invasion)

About 15 minutes after the incident above, appellant and his accomplices entered a residence in Kern County. Two parents and their baby were present, along with another adult relative.⁴ Appellant was armed with a semiautomatic weapon. Appellant and his accomplices took property belonging to the family.⁵

IV. The Crimes Charged in Counts 17–18 (the Shooting)

About four hours after the incident above, appellant was outside near a market in Kern County. The market was a known hangout for gang members from the Country Boy Crips, a rival to appellant’s gang. Appellant was alone, and he fired multiple shots at Terrance Wiley. Wiley is known as "T.T.," and he is a gang member in the Country Boy Crips. Nobody was injured in this shooting, but at least one of appellant’s shots struck a parked vehicle that was occupied.

V. The Forensic Evidence

Shortly after this crime spree ended, an officer on patrol happened to spot two African-American males on a public street. They matched the general description of some of the suspects from the crime spree. The officer initiated contact, and the suspects fled. One of the suspects tossed a semiautomatic firearm aside. Appellant’s DNA was later discovered on this firearm. Law enforcement recovered two spent shell casings from the scene of the shooting at the market. The two spent shell casings were identical to the ammunition that was loaded in the recovered semiautomatic firearm.

VI. Appellant Commits an Alleged Assault While in Jail and He Later Tries to Escape While in Custody

Law enforcement located and arrested appellant less than 24 hours after this crime spree ended. While in jail in May 2015, appellant and two other fellow East Side Crip gang members (who were not the accomplices in the crime spree) assaulted a rival Country Boy Crip gang member. Appellant punched the victim, while the other East Side Crip gang members kicked the victim. The jury saw video of this assault. At trial, the prosecution’s gang expert opined that appellant’s participation in this assault showed his ongoing association with the East Side Crips despite being arrested.

VII. The Convictions and Sentences

When he was resentenced in this matter in 2022, appellant received an aggregate determinate sentence of 63 years eight months, along with a consecutive aggregate indeterminate term of 144 years. As noted in our prior opinion, the trial court found true that appellant had a prior conviction for voluntary manslaughter. (People v. Mitchell, supra, F075878).)

We summarize appellant’s convictions and the sentences imposed in each count.

1. Count 1

In count 1, appellant was convicted of second degree robbery (Pen. Code, § 212.5, subd. (c)).⁶ He received an upper prison term of 10 years (§ 213, subd. (a)(2)). An additional 10 years was imposed for a firearm enhancement (§ 12022.53, subd. (b)). An additional 10 years was imposed for a gang enhancement (§ 186.22, subd. (b)(1)). This sentence and enhancements were stayed pursuant to section 654.

2. Count 2

In count 2, appellant was convicted of assault with a semiautomatic firearm and an upper term of 18 years was imposed. (§ 245, subd. (b).) This sentence was enhanced by five years for a prior serious felony (§ 667, subd. (a)) and further enhanced by 10 years for a firearm enhancement (§ 12022.5, subd. (a)). A gang enhancement of five years was imposed (§ 186.22, subd. (b)(1)), but that enhancement was stayed.

3. Count 3

In count 3, appellant was convicted of second degree burglary and the court imposed an upper term of six years. (§ 460, subd. (b).) This sentence was enhanced by 10 years for a firearm enhancement (§ 12022.5, subd. (a)) and further enhanced by four years for a gang enhancement (§ 186.22, subd. (b)(1)). This sentence and enhancements were stayed.

4. Count 4

In count 4, appellant was convicted of second degree robbery (§ 212.5, subd. (c)). He received an upper term of 10 years. (§ 213, subd. (a)(2).) This sentence was enhanced by 10 years for a firearm enhancement (§ 12022.53, subd. (b)) and further enhanced 10 years for a gang enhancement (§ 186.22, subd. (b)(1)). This sentence and enhancements were stayed.

5. Count 5

In count 5, appellant was convicted of second degree robbery and he received an upper term of 10 years. (§ 212.5, subd. (c).) This sentence was enhanced by 10 years for a firearm enhancement (§ 12022.53, subd. (b)) and further enhanced 10 years for a gang enhancement (§ 186.22, subd. (b)(1)). This sentence and enhancements were stayed.

6. Count 6

In count...