People v. Lopez

• Decision Date: 03 August 2022
• Docket Number: F076295
• Citation: 82 Cal.App.5th 1,297 Cal.Rptr.3d 634
• Parties: The PEOPLE, Plaintiff and Respondent, v. Pedro LOPEZ, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

82 Cal.App.5th 1

297 Cal.Rptr.3d 634

The PEOPLE, Plaintiff and Respondent,

v.Pedro LOPEZ, Defendant and Appellant.

F076295

Court of Appeal, Fifth District, California.

Filed August 3, 2022

Certified for Partial Publication.^*

Benjamin Owens, El Cerrito, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman, Julie A. Hokans, Christopher J. Rench, and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.

PEÑA, J.

Pedro Lopez (defendant) was one of several Norteño gang members found guilty of conspiring to commit two home invasion robberies.

Law enforcement agencies were already conducting a wiretapping operation when the conspiracy began to develop. As a result, the perpetrators were apprehended while driving to the targeted homes and the robberies were never committed. Defendant appeals from a judgment of conviction on counts of unlawful possession of a firearm and ammunition; attempted robbery; conspiracy to commit robbery; and a violation of the gang conspiracy statute, Penal Code section 182.5 (all undesignated statutory references are to the Penal Code). The judgment also includes gang enhancements imposed under section 186.22, subdivision (b)(1).

In a previously issued opinion, we evaluated defendant's claims of insufficient evidence, instructional error, and sentencing error. In particular, defendant's challenge to the imposition of a life sentence for conspiracy to commit home invasion robbery was rejected. The California Supreme Court later granted review as to one issue: whether the trial court erred by sentencing defendant to the alternate penalty prescribed by section 186.22, subdivision (b)(4) based on gang-related conspiracy convictions. Holding the alternate penalty of a life term does not apply to such convictions, the high court reversed our prior decision "with instructions to remand for resentencing." ( People v. Lopez (2022) 12 Cal.5th 957, 976, 292 Cal.Rptr.3d 265, 507 P.3d 925.)

While the matter was pending before the high court, the Legislature enacted Assembly Bill No. 333 (2021–2022 Reg. Sess.) (Assembly Bill 333). This legislation amended multiple parts of section 186.22 and added a new statute, section 1109. Section 1109 provides for bifurcated trial procedures in cases involving gang charges under section 186.22, subdivisions (a), (b), and/or (d). The California Supreme Court declined to consider whether or to what extent Assembly Bill 333 applies to defendant's case, "leav[ing] the subject for consideration by the Court of Appeal on remand." ( People v. Lopez, supra , 12 Cal.5th at p. 976, fn. 12, 292 Cal.Rptr.3d 265, 507 P.3d 925.)

In supplemental briefing, defendant argues the recent amendments to section 186.22 apply retroactively. Because the gang conspiracy statute incorporates provisions of section 186.22 to define the elements of the offense, defendant contends Assembly Bill 333 requires reversal of the gang enhancements and his conviction under section 182.5. Defendant also claims section 1109 applies retroactively. Therefore, pursuant to a theory the gang evidence tainted all of the jury's verdicts, defendant argues for reversal of the entire judgment and "a new trial in which trial on the gang conspiracy count and gang enhancement allegations is bifurcated from the trial on the other counts."

The People contend Assembly Bill 333 applies retroactively only in relation to section 186.22, not section 1109, and has no application to the gang conspiracy statute. They argue that construing Assembly Bill 333 as having any effect on section 182.5 would constitute a prohibited amendment to a law enacted by voter initiative. We find the argument unsound and hold Assembly Bill 333's amendments to section 186.22, subdivisions (e) and (f), lawfully apply to the gang conspiracy statute.

There is a split of authority on the retroactive application of section 1109. Whether section 1109 applies to section 182.5, retroactively or otherwise, would be an issue of first impression. It is unnecessary to reach either issue because any arguable error in failing to bifurcate the gang charges was nonprejudicial. We affirm in part, reverse in part, and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

The People's evidence showed, under the law predating Assembly Bill 333, that the Norteños are a criminal street gang with members located throughout the Central Valley of California. Defendant was affiliated with a Norteño "subset" in Fresno County called Varrio East Side Reedley. Gang members from other subsets or "cliques" also participated in the underlying events, and there are no issues regarding the perpetrators' common ties to an overarching criminal enterprise.

In 2015, multiple law enforcement agencies conducted a joint investigation into the activities of Norteño gang members in Tulare County. Operation Red Sol involved the wiretapping of phones used by certain high-ranking members, including Emanuel Avalos, Rigoberto Benavidez, and Pedro Sanchez. Sanchez held the position of "regiment commander" and was considered "the boss of Tulare County." Avalos lived in Lindsay and held the subordinate position of "south county leader." Investigators believed Benavidez was in the process of "taking over Madera County," which suggested he and Sanchez were similarly situated within the gang's organizational hierarchy.

On August 24, 2015, law enforcement agents listened as Sanchez, Benavidez, and Avalos began recruiting people for a "job" in Visalia. Sanchez communicated with defendant by phone and via text messaging, and defendant agreed to meet up with the "workers" that evening. In a separate message exchanged between Sanchez and Benavidez, Sanchez remarked, "This is a good lick and great opportunity." The agents understood the word "lick" to be a slang term for robbery.

In addition to monitoring the electronic communications, agents conducted visual surveillance outside of Avalos's home in Lindsay and Benavidez's apartment in Visalia. At approximately 4:00 p.m., Sanchez and Avalos met at Avalos's residence with a gang member named Luis Corona and several unidentified Hispanic males. Corona subsequently departed in a white Nissan Altima.

Over the next few hours, the involved parties alluded to a plan for the robbers to impersonate agents of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). Conversations between Sanchez and Avalos specified that uniforms would be provided and everyone would be armed with guns. Benavidez worked on finding a suitable place for the men to convene before and after the robberies. Earlier in the day, he had asked the central county leader, Val Ornelas, for assistance in locating a safe house near Pinkham Street, "anywhere from Lovers Lane to Ben Maddox [Way] and from Noble [Avenue] to Tulare [Avenue]."

Shortly after 7:00 p.m., Benavidez drove to the 1100 block of Pinkham Street and met up with four people in a white Nissan Altima, which had just driven there from Avalos's residence. Avalos's brother, Cervando, was among the group of people in the white car. Both vehicles then drove to Benavidez's apartment complex on South Encina Street.

Benavidez called Sanchez to tell him the designated meeting place could not be used and everyone should meet at his apartment. Sanchez sent defendant a message informing him of the change, and defendant proceeded to contact Benavidez for directions. At approximately 7:35 p.m., defendant and a group of unidentified passengers arrived at Benavidez's apartment in a silver BMW.

At 7:47 p.m., Cervando Avalos began making a series of calls to his brother and Sanchez to complain about defendant's crew being unprepared. There were no ATF uniforms and some people did not have ammunition for their firearms. They were also in need of a second vehicle. Cervando said defendant's BMW had "dealer plates" and other distinctive features that made it "too easy to spot." When apprised of the situation, Sanchez authorized a 24-hour postponement. While Cervando was talking to Sanchez, defendant's group left to obtain bullets and returned a few minutes later.

During a subsequent phone call between the Avalos brothers, Emanuel asked to speak with whomever was "in charge there." Defendant came on the line and provided a status report, claiming they were "stocked up" with weapons and had two bulletproof vests. Emanuel asked, "Is there anything on there that says ATF?" Defendant said no and described the attire as "SWAT gear."

Agents conducting aerial surveillance observed defendant's BMW leave the apartment complex again and drive to the vicinity of Pinkham Street and Noble Avenue. The car drove slowly through a neighborhood before returning to Benavidez's apartment at approximately 8:29 p.m. About 30 minutes later, Benavidez sent the following text message to Sanchez: " ‘The homie went by the layout. I think we can handle it. The little homie just needs a few more [people].’ " Sanchez replied that he had a crew " ‘ready to go’ " and would " ‘be on it tomorrow.’ "

On August 25, 2015, defendant sent a text message to Sanchez: " ‘On track, brother, so you know[,] [I am] here in your area doing a bit more homework on the two job sites.’ " Sanchez replied, " ‘Okay. [We'll] give it another try tonight. I'll be with you shortly with some ideas.’ " Later that afternoon, Sanchez exchanged the following text messages with a person named Ricardo Reyes:

Sanchez: " ‘Need two to three people for two pads [houses]. They'll be part of a team tonight in [Visalia]. We've been doing homework for two days and tonight's a go. Are you [in]?’ "

Reyes: " ‘[Yes.] I got the squad already, too. What is it, though, and is it worth it?’ "

Sanchez: " ‘It's two pads ... square people. They got safes and guns and gold. Just bring bangers [guns].’ "

Reyes: "

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