People v. Vanatti

1

THE PEOPLE, Plaintiff and Respondent, v. LYNDEN VANATTI, Defendant and Appellant.

F084336

California Court of Appeals, Fifth District

March 12, 2024

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Kern County No BF172779B . Kenneth C. Twisselman II, Judge.

Jill M. Klein, 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 and Ian P. Whitney, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

SNAUFFER, J.

INTRODUCTION

On August 3, 2021, a jury convicted defendant Lynden Vanatti of the premeditated first degree murder of Allen Fagerson (Pen Code, §§ 187, subd. (a), 189 count 1),^[1] and found true all enhancements and allegations, including the special circumstance the murder was intentional and was committed while Vanatti was an active participant in a gang, and that the murder was carried out in furtherance of the gang (§ 190.2, subd. (a)(22)). Vanatti was also convicted of dissuading a witness, Justin Becker, from making a report or testifying at trial (§ 136.1, subd. (c)(1) &(2), counts 3 and 4).^[2] Subsequently, the trial court sentenced Vanatti to a term of life without the possibility of parole, plus an indeterminate term of 57 years to life and a determinate term of 15 years.

On appeal, Vanatti contends he is entitled to the benefit of newly enacted Assembly Bill No. 333 (2021-2022 Reg. Sess.) (AB 333), which amended the language of section 186.22, and added section 1109 requiring bifurcation, upon a defendant's request, of the trial on the gang enhancements and substantive gang offenses from that of the underlying offenses. Specifically, Vanatti argues the changes made by AB 333 require dismissal of his gang enhancements (§ 186.22, subd. (b)), the substantive gang offense (§ 186.22, subd. (a), count 5), and the gang-murder special circumstance allegation (§ 190.2, subd. (a)(22)), and that the failure to bifurcate the gang allegations constituted prejudicial error. The People concede the amendments made to section 186.22 apply retroactively and that the substantive gang offense (§ 186.22, subd. (a), count 5) must be dismissed, but argue the changes made by AB 333 do not apply to the gang-murder special circumstance allegation (§ 190.2, subd. (a)(22)) because any change constitutes an unconstitutional amendment to Proposition 21, and that "[s]ection 1109 applies prospectively only; [but] in any event, [Vanatti] was not prejudiced by the lack of bifurcation." During the pendency of this appeal, our Supreme Court held that "applying Assembly Bill 333's definition of 'criminal street gang' to the gang-murder special circumstance does not unconstitutionally amend section 190.22(a)(22) [Proposition 21]." (People v. Rojas (2023) 15 Cal.5th 561, 580 (Rojas), italics added.)

Further, Vanatti contends there was insufficient evidence (1) he was an active participant in the Aryan Brotherhood and (2) the murder was committed to further the activities of the gang requiring reversal of the gang-murder special circumstance allegation, the gang enhancements, and the substantive gang conviction. As to defendant's substantive gang offense conviction (count 5), the People concede there was insufficient evidence the murder actually promoted criminal activity by members of the Aryan Brotherhood gang.

Finally, Vanatti contends that "substantial evidence does not support a finding [he] intimidated any witness in violation of section 136.1, requiring reversal of the convictions of count[s] 3 and 4," and that his sentences as to counts 3 and 4 are erroneous requiring him to be resentenced. As to Vanatti's sentences on counts 3 and 4, the People concede error.

We accept the People's concessions, vacate the sentence, and remand for resentencing. Further, we conclude the entirety of AB 333 applies retroactively to Vanatti's case and, as to counts 1, 2, 3, 4, and 6, dismiss the section 186.22, subdivision (b)(1) enhancements, dismiss count 5 (§ 186.22, subdivision (a)), and as to count 1, dismiss the gang-murder special circumstance allegation pursuant to section 190.2, subdivision (a)(22). On remand, the People are not foreclosed from retrying Vanatti on the gang enhancements and gang-murder special circumstance allegation,^[3] and at resentencing the trial court shall reconsider Vanatti's sentences as to counts 3 and 4. In all other respects, we affirm the judgment.

STATEMENT OF THE CASE

On November 6, 2020, the Kern County District Attorney filed an information charging Vanatti^[4] with premeditated first degree murder (§§ 187, subd. (a), 189, count 1) with the special circumstances he aided and abetted the individual who intentionally killed Fagerson while lying in wait (§ 190.2, subd. (a)(15)), that the murder was intentional and was committed while Vanatti was an active participant in a gang, and the murder was carried out in furtherance of the gang (§ 190.2, subd. (a)(22)); conspiracy to commit murder (§§ 182, subd. (a)(1), 187, count 2);^[5] dissuading Becker by means of force, or by an express or implied threat of force or violence from attending or giving testimony at a trial or proceeding (§ 136.1, subd. (c)(1), count 3); dissuading Becker from making a report to a correctional officer in furtherance of a conspiracy (§ 136.1, subd. (c)(2), count 4); active participation in the Aryan Brotherhood gang (§ 186.22, subd. (a), count 5); and conspiracy to commit an assault with a deadly weapon by a prisoner (§§ 182, subd. (a)(1), 4501, subd. (a), count 6).^[6] As to counts 1, 2, 3, 4, and 6, it was further alleged these offenses were committed for the benefit of the Aryan Brotherhood gang (§ 186.22, subd. (b)(1)). Finally, as to all offenses, the information alleged three prior strike offenses (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d), 4501, subd. (a), 246, 459/460, subd. (a)) and three prior serious felony offenses (§ 667, subd. (a)).

On August 3, 2021, a jury found Vanatti guilty on all counts and found true all enhancements and allegations. As to both the alleged prior strikes and the prior serious felony offenses, the trial court in a bifurcated trial found true that Vanatti suffered these three prior convictions alleged in the information.

Subsequently, as to count 1, the trial court sentenced Vanatti to a term of life without the possibility of parole, plus 15 years for the three prior serious felony offenses (§ 667, subd. (a)). As to count 3, the trial court sentenced Vanatti to the upper term of four years, plus 15 years for the three prior serious felony offenses (§ 667, subd. (a)), and then tripled this term pursuant to section 667, subdivision (e)(2)(A)(i), for a total indeterminate term of 57 years to life, to run consecutive to count 1. As to count 2, the trial court sentenced Vanatti to a term of 25 years to life, and then tripled this term pursuant to section 667, subdivision (e)(2)(A)(i), for a total indeterminate term of 75 years to life, plus 15 years for the three prior serious felony offenses (§ 667, subd. (a)), but stayed this sentence pursuant to section 654. As to count 4, the trial court sentenced Vanatti to the upper term of four years, plus 15 years for the three prior serious felony offenses (§ 667, subd. (a)), and then tripled this term pursuant to section 667, subdivision (e)(2)(A)(i), for a total indeterminate term of 57 years to life, but stayed this sentence pursuant to section 654. As to count 5, the trial court sentenced Vanatti to an indeterminate term of 25 years to life, plus 15 years for the three prior serious felony offenses (§ 667, subd. (a)), but stayed this sentence pursuant to section 654. Finally, as to count 6, the trial court sentenced Vanatti to an indeterminate term of 25 years to life, plus a five-year term for the gang enhancement (§ 186.22, subd. (b)(1)), but stayed this sentence pursuant to section 654. The total aggregate sentence imposed was a term of life without the possibility of parole, plus an indeterminate term of 57 years to life and a determinate term of 15 years.

SUMMARY OF FACTS

I. The Prosecution Case-in-Chief

A. Background of the North Kern State Prison

Vanatti, Henthorn, Colwell, Leair, and Fagerson were inmates at the North Kern State Prison in Delano.^[7] The prison had four security levels, ranging from Level 1 minimum security to Level 4 maximum security. The facility had two sides, "A" and "B," and two tiers, and the cell doors were controlled by a central operator. The underlying murder took place at Facility B, which is a "reception center" where the staff "determin[ed] what facility w[ould] best suit [the inmate's] needs as far as security level and medical issues." The facility housed general population inmates, which means the housed inmates "do not have any type of security concerns such as a sensitive need inmate or a protective custody inmate."

The prison was racially segregated between the white, black, and Hispanic inmates. The white inmates^[8] were controlled by the Aryan Brotherhood gang, which imposed a set of rules to be followed by the white inmates. White inmates were required to "do hits" on individuals not following these rules. Further, any crimes committed for the benefit of the Aryan Brotherhood had to be approved by the gang or the inmate who committed the crime would "get hit." Finally, sex offenders and inmates who kill women and hurt children were not tolerated in the general population, and these individuals were usually removed from the general population to a sensitive needs yard.^[9]

B. Events Prior to the Stabbing

In July 2017, Vanatti and Henthorn were housed together in cell number 106....