Filed 1/15/16 P. v. Oregon CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F068964
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF131156C)
                   v.

JUAN CARLOS OREGON,                                                                      OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kern County. Kenneth C.
Twisselman II, Judge.
         Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Kathleen A. McKenna, Darren Indermill and William K. Kim, Deputy
Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
                                       INTRODUCTION
       Following a successful appeal from the first judgment entered in this case,
appellant Juan Carlos Oregon was retried by a jury and convicted of two counts of
attempted murder of a peace officer, two counts of assault with a semiautomatic firearm
on a peace officer, and one count of receiving a stolen vehicle. On appeal, he challenges
the propriety of the trial court’s instructions to the jury on the prosecution’s aiding-and-
abetting and uncharged-conspiracy theories of criminal liability. He also contends that
insufficient evidence supports his convictions of attempted murder and assault with a
semiautomatic firearm. He further contends there is insufficient evidence to support the
gang enhancements and gang-related firearm enhancements. In addition, he challenges
the constitutionality of the applicable provision of the firearm enhancement statute.
Finally, he claims his aggregate sentence and restitution and parole revocation restitution
fines violate the due process and double jeopardy clauses in the California Constitution
because they are greater than those imposed following his first trial and before his
successful appeal. We agree with Oregon’s last claim, which the People concede, and
will modify his sentence accordingly. In all other respects, we will affirm the judgment.1




1       Because the People have not raised any claims of forfeiture and we have addressed all of
Oregon’s contentions on the merits, it is unnecessary for us to reach his claim that, if any of his
arguments were forfeited due to the lack of objections below, his trial counsel rendered
ineffective assistance of counsel.


                                                 2.
                   FACTUAL AND PROCEDURAL BACKGROUND
       On the night of February 20, 2010, Oregon, while driving a stolen car, suddenly
sped away from two Bakersfield police officers as the officers were approaching the car
on foot during a traffic stop. A high-speed car chase ensued, during which Oregon’s
backseat passenger, Jaime Vidal Aguirre, used a semiautomatic firearm to blow out the
back windshield of the stolen car and fire shots at the officers’ patrol car behind them.
       When Oregon eventually stopped the stolen car in a densely populated area,
Oregon, Aguirre, and Anthony Manuel Perez (the front seat passenger) got out and ran
away. Police found a number of items near and inside the stolen car including: a black
diaper bag which contained binoculars, three masks (two “Halloween masks” and a black
ski mask), and a loaded, nine-millimeter semiautomatic handgun; a working police
scanner “tuned into … the Bakersfield Police Department’s Channel 1 radio traffic”; a
key fob containing 11 shaved keys; cotton work gloves; a black hat with the letter “T” on
it; a black T-shirt; a blue beanie cap; and a sock containing live .45-caliber bullets.
       When Oregon was eventually apprehended on April 13, 2010, he was driving
another stolen car, had in his possession a keyring with numerous car keys on it, and
attempted to flee officers by foot, after he ran into a tree with the car. In a police
interview, Oregon admitted he was the driver of the stolen car during the subject incident
and that he had used the shaved keys found in that car to steal other cars.
       In Oregon’s first trial, which was severed from that of his codefendants, a jury
convicted him of two counts of attempted premeditated murder of a peace officer (Pen.
Code,2 §§ 664, subds. (a) & (e), 187, 189; counts 1 & 2), two counts of assault with a
semiautomatic firearm on a peace officer (§ 245, subd. (d)(2); counts 3 & 4), and one
count each of being a felon in possession of a firearm (§ 12021, subd. (a)(1); count 5),
receiving a stolen vehicle (§ 496d, subd. (a); count 8), and recklessly evading a peace

2      Further statutory references are to the Penal Code unless otherwise specified.


                                               3.
officer while operating a motor vehicle (Veh. Code, § 2800.2; count 9). The jury also
found true the gang enhancement allegations in each count (§ 186.22, subd. (b)(1)), and
the firearm enhancement allegations in counts 1 through 4 (§ 12022.53, subds. (c) &
(e)(1)) After striking the prior prison term allegation in each count (§ 667.5, subd. (b))
on the People’s motion, the trial court sentenced Oregon to an aggregate prison term of
79 years to life. The court also imposed various fines and fees, including a restitution
fine of $200 (§ 1202.4, subd. (b)) and a parole revocation restitution fine of $200
(§ 1202.45).
       Oregon appealed from the judgment. We reversed his convictions on all counts
except for count 9 (reckless evasion) and remanded the case for retrial, after concluding
that the admission of the codefendants’ out-of-court statements violated Oregon’s Sixth
Amendment rights, and that the error was not harmless beyond a reasonable doubt.
(People v. Oregon (June 25, 2013, F062593) [nonpub. opn.].)3
       On remand, count 5 was dismissed on the People’s motion and Oregon was retried
on counts 1, 2, 3, 4, and 8. The jury found him guilty on all the counts and found all the
special allegations to be true. The trial court found the original prior prison term
allegations in each count to be true and sentenced Oregon to an aggregate prison term of
80 years to life and imposed various fines and fees, including a restitution fine of $280
and a parole revocation fine of $280.
                                        DISCUSSION
I.     Instructional error
       Oregon claims a number of prejudicial errors occurred as a result of the trial
court’s instructions on the uncharged-conspiracy and aiding-and-abetting theories of
liability relied on by the prosecution. We find none of these claims to be persuasive.


3      At Oregon’s request, we take judicial notice of our records in case No. F062593. (Evid.
Code, §§ 452, subd. (d), 459, subd. (a).)


                                              4.
       A.      CALJIC No. 3.02
       Oregon first contends the trial court presented the jury with an invalid theory of
liability when it gave, over the defense’s objection, a modified version of CALJIC
No. 3.02, which instructed the jury that “[o]ne who either commits or aids and abets
another in the commission of crimes is not only guilty of those crimes, but is also guilty
of any other crime committed by the principal which is a natural and probable
consequences of the crimes originally committed or aided and abetted.” (Italics added.)4
       Oregon argues that the modified version of CALJIC No. 3.02 given here is
erroneous because a defendant can only be liable under the natural and probable
consequences doctrine if he aids and abets another person in committing a target offense,
not if he commits the target offense himself. He is mistaken. The perpetrator and the

4       In its entirety, the modified version of CALJIC No. 3.02 given in this case provided:
“One who either commits or aids and abets another in the commission of crimes is not only
guilty of those crimes, but is also guilty of any other crime committed by the principal which is a
natural and probable consequence of the crimes originally committed or aided and abetted. [¶]
In order to find the defendant guilty of the crimes of Attempted Murder and Assault with a Semi-
Automatic Firearm on a Police Officer, under this theory, you must be satisfied beyond a
reasonable doubt that: [¶] 1. The crimes of Reckless Evading, Permitting Someone to shoot
from a Vehicle, or Shooting at an Occupied Motor Vehicle, were committed; [¶] 2. That the
defendant either perpetrated or aided and abetted those crimes; [¶] 3. That a co-principal in
those crimes committed the crimes of Attempted Murder or Assault with a Semi-Automatic
Firearm on a Police Officer; and [¶] 4. The crimes of Attempted Murder; willful, deliberate and
premediated attempted murder, or Assault with a Semi-Automatic Firearm on a Police Officer
were a natural and probable consequence of the commission of the crimes of Reckless Evading,
Permitting Someone to shoot from a Vehicle, or shooting at an Occupied Motor Vehicle. [¶] In
determining whether a consequence is ‘natural and probable,’ you must apply an objective test,
based not on what the defendant actually intended, but on what a person of reasonable and
ordinary prudence would have expected likely to occur. The issue is to be decided in light of all
of the circumstances surrounding the incident. A ‘natural’ consequence is one which is within
the normal range of outcomes that may be reasonably expected to occur if nothing unusual has
intervened. ‘Probable’ means likely to happen. [¶] You are not required to unanimously agree
as to which originally contemplated crime the defendant committed or aided and abetted, so long
as you are satisfied beyond a reasonable doubt and unanimously agree that the defendant
committed or aided and abetted the commission of an identified and defined target crime and that
the crime of Attempted Murder or Assault with a Semi-Automatic Firearm on a Police Officer
was a natural and probable consequence of the commission of that target crime.” (Some italics
omitted and added.)


                                                5.
aider and abettor “are equally liable for the natural and foreseeable consequence of their
crime. Both the perpetrator and the aider and abettor are principals, and all principals are
liable for the natural and reasonably foreseeable consequences of their crimes....”
(People v. Olguin (1994) 31 Cal.App.4th 1355, 1376 (Olguin); see also People v. Culuko
(2000) 78 Cal.App.4th 307, 329–330.) Therefore, the trial court did not err in instructing
the jury that Oregon could be liable for the non-target offenses of attempted murder and
assault with a firearm on a peace officer under the natural and probable consequences
doctrine if he directly perpetrated or aided and abetted another person in committing one
of the alleged target offenses (i.e., recklessly evading a peace officer, permitting someone
to shoot from a vehicle, or shooting at an occupied motor vehicle).
       B.      Instructions on uncharged-conspiracy theory of liability
       Oregon next contends the trial court erred in instructing the jury it could find him
guilty of attempted murder as a natural and probable consequence of entering into a
conspiracy to commit assault or robbery. The court, over the defense’s objection
instructed on this theory pursuant to CALJIC No. 6.10.5 (conspiracy and overt act not
pleaded as a charged crime)5 and CALJIC No. 6.11 (conspiracy—joint responsibility).6


5        CALJIC No. 6.10.5 provided: “A conspiracy is an agreement between two or more
persons with the specific intent to agree to commit the crimes of Robbery or Assault and with the
further specific intent to commit those crime[s], followed by an overt act committed in this state
by one or more of the parties for the purpose of accomplishing the object of the agreement.
Conspiracy is a crime, but is not charged as such in this case. [¶] In order to find a defendant to
be a member of a conspiracy, in addition to proof of the unlawful agreement and specific intent,
there must be proof of the commission of at least one of the following overt acts to accomplish
robbery or assault: [¶] 1. Unlawfully acquired a blue Honda Civic, [¶] 2. Removed the license
plates from it. [¶] 3. Acquired three face masks, [¶] 4. Acquired one radio scanner capable of
monitoring police channels, [¶] 5. Tuned the above scanner to monitor the Bakersfield Police
Departments channel one. [¶] 6. Acquired one pair of binoculars, [¶] 7. Acquired multiple pairs
of gloves, [¶] 8. Acquired at least one 9mm semi-automatic handgun, [¶] 9. Put items listed in 3,
4, 6, 7, and 8 into the Honda Civic. [¶] 10. Drove the Honda Civic in the direction of Varrio
Baker territory, [¶] 11. Fled from police in a high-speed pursuit, [¶] 12. Fired multiple rounds at
the pursuing officers; [¶] AND [¶] 13. At least one of these overt acts was committed in
California. [¶] It is not necessary to such a finding as to any particular defendant that defendant
personally committed the overt act, if he was one of the conspirators when the alleged overt act

                                                6.
       Relying on People v. Baker (1999) 74 Cal.App.4th 243 (Baker), Oregon contends
the trial court’s conspiracy instructions presented the jury with an invalid theory of
attempted felony murder. In Baker, the defendants were charged with murder, attempted
murder, assault with a deadly weapon, conspiracy to commit assault with a deadly
weapon, and residential burglary. (Id. at p. 247.) The defendants claimed the instruction
presented to the jury on the theory of conspiracy felony murder was legally insufficient,
as assault with a deadly weapon was not one of the listed felonies in section 189 that
governs the felony murder rule. (Baker, at p. 248.) The court in Baker agreed and
reversed the judgment. (Ibid.) Oregon argues: “Section 189 does not list a murder
committed in the perpetration of a conspiracy or attempted assault as the basis for first
degree murder. Thus, there is no crime of attempted felony murder based upon a



was committed. [¶] The term ‘overt act’ means any step taken or act committed by one or more
of the conspirators which goes beyond mere planning or agreement to commit a crime and which
step or act is done in furtherance of the accomplishment of the object of the conspiracy. [¶] To
be an ‘overt act,’ the step taken or act committed need not, in and of itself, constitute the crime or
even an attempt to commit the crime which is the ultimate object of the conspiracy. Nor is it
required that the step or act, in and of itself, be a criminal or unlawful act.”
6        CALJIC No. 6.11 stated: “Each member of a criminal conspiracy is liable for each act
and bound by each declaration of every other member of the conspiracy if that act or declaration
is in furtherance of the object of the conspiracy. [¶] The act of one conspirator pursuant to or in
furtherance of the common design of the conspiracy is the act of all conspirators. [¶] A member
of a conspiracy is not only guilty of the particular crime that, to his knowledge his confederates
agreed to and did commit, but is also liable for the natural and probable consequences of any
crime of a co-conspirator to further the object of the conspiracy, even though that crime was not
intended as a part of the agreed upon objective. [¶] You must determine whether the defendant
is guilty as a member of a conspiracy to commit the originally agreed upon crime or crimes, and,
if so, whether the crime alleged in Counts One through Four were perpetrated by a co-
conspirator in furtherance of that conspiracy and was a natural and probable consequence of the
agreed upon criminal objective of that conspiracy. [¶] In determining whether a consequence is
‘natural and probable’ you must apply an objective test based not on what the defendant actually
intended but on what a person of reasonable and ordinary prudence would have expected would
be likely to occur. The issue is to be decided in light of all of the circumstances surrounding the
incident. A ‘natural consequence’ is one which is within the normal range of outcomes that may
be reasonably expected to occur if nothing unusual has intervened. ‘Probable’ means likely to
happen.”


                                                 7.
conspiracy to commit an assault. Additionally, in California, there is no crime of
attempted felony murder.”
       Baker is inapposite. The trial court’s instructions here did not present the jury
with a felony-murder theory of attempted murder but properly instructed the jury as to the
natural and probable consequences doctrine under a valid conspiracy theory. Under this
theory and pursuant to CALJIC Nos. 6.10.5 and 6.11, the prosecution was required to
establish that Oregon formed an agreement with Aguirre or Perez (or both) to commit
robbery or assault, committed one of the enumerated overt acts, and that the attempted
murder of a peace officer was the natural and probable consequence of the conspiracy
itself. The instructions were correct. Under a conspiracy theory, each conspirator is
responsible for everything done by his coconspirators, including the natural and probable
consequences of the conspiracy. (People v. Zacarias (2007) 157 Cal.App.4th 652, 657.)
       We also reject Oregon’s suggestion that the natural and probable consequences
doctrine is inapplicable to attempted murder because the doctrine does not require proof
of specific intent to kill. Although attempted murder requires express malice, i.e. specific
intent to kill, not implied malice (People v. Collie (1981) 30 Cal.3d 43, 62), our courts
have held that the natural and probable consequences doctrine in aiding and abetting
situations can support a conviction of attempted murder (see People v. Prettyman (1996)
14 Cal.4th 248, 262–263). The specific intent necessary for conviction of an aider and
abettor is not “the specific intent to kill, but the intent to ‘encourage and bring about
conduct that is criminal.’” (Olguin, supra, 31 Cal.App.4th at p. 1379 [rejecting implied
malice arguments for aider and abettor liability].)
       As discussed in People v. Medina (2009) 46 Cal.4th 913, it is quite foreseeable
that a gang-related assault will result in murder or attempted murder, even if the aider and
abettor does not know the principal is armed. “‘A person who knowingly aids and abets
criminal conduct is guilty of not only the intended crime [target offense] but also of any
other crime the perpetrator actually commits [nontarget offense] that is a natural and

                                              8.
probable consequence of the intended crime. The latter question is not whether the aider
and abettor actually foresaw the additional crime, but whether, judged objectively, it was
reasonably foreseeable.’” (Id. at p. 920, italics omitted.)
       Oregon cites no published case holding that the natural and probable consequences
doctrine is inapplicable to attempted murder. There are, however, “a number of
California cases which hold murder or attempted murder can be a natural and probable
consequence of [aiding and abetting a] robbery.” (People v. Cummins (2005) 127
Cal.App.4th 667, 677.) We similarly conclude that the jury was correctly instructed that
Oregon could be found guilty of attempted murder under a conspiracy theory of liability
if it found the natural and probable consequence of the uncharged conspiracy to commit
robbery or assault was the attempted murder of a peace officer.
       C.     Evidence of uncharged conspiracy to commit robbery or assault
       Oregon contends there is insufficient evidence to support the theory that he was
guilty of the crimes of attempted murder of a peace officer and assault with a deadly
weapon on a peace officer based on a conspiracy to commit robbery or assault because
there was no evidence he entered into such conspiracy. Accordingly, he argues the trial
court should not have instructed the jury on his theory and committed prejudicial error by
doing so.
       “[A] trial court in a criminal case is required―with or without a request―to give
correct jury instructions on the general principles of law relevant to issues raised by the
evidence.” (People v. Mutuma (2006) 144 Cal.App.4th 635, 640.)
       A conspiracy may be found where two or more people agree to commit a crime,
they specifically intend both to agree and to commit the crime, and one of them performs
an overt act in furtherance of their agreement. (People v. Austin (1994) 23 Cal.App.4th
1596, 1603, disapproved on another ground in People v. Palmer (2001) 24 Cal.4th 856.)
The agreement may be proved by circumstantial evidence, without showing a meeting or
an express or formal agreement. (People v. Zamora (1976) 18 Cal.3d 538, 559.) The

                                              9.
agreement may be inferred from the defendants’ conduct in mutually carrying out an
illegal purpose, the nature of the acts committed, the relationship of the parties, and the
interests of the alleged conspirators. (People v. Superior Court (Quinteros) (1993) 13
Cal.App.4th 12, 20.) An inference of a conspiracy may also be supported by, though not
exclusively based on, the defendants’ membership in the same gang. (Ibid.) “[E]vidence
of conspiracy may be admitted even if the defendant is not charged with the crime of
conspiracy.” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1134 (Rodrigues).)
       “Once there is proof of the existence of the conspiracy there is no error in
instructing the jury on the law of conspiracy.” (Rodrigues, supra, 8 Cal.4th at p. 1134.)
“To determine whether there was sufficient proof of a conspiracy in this case, we apply
the following rules. ‘Although the existence of the conspiracy must be shown by
independent proof [citation], the showing need only be prima facie evidence of the
conspiracy. [Citation.] The prima facie showing may be circumstantial [citation], and
may be by means of any competent evidence which tends to show that a conspiracy
existed. [Citation.]’ (People v. Jourdain [(1980) 111 Cal.App.3d 396,] 405.)” (Id., at
p. 1134, italics added.) “Evidence is sufficient to prove a conspiracy to commit a crime
‘if it supports an inference that the parties positively or tacitly came to a mutual
understanding to commit a crime. [Citation.] The existence of a conspiracy may be
inferred from the conduct, relationship, interests, and activities of the alleged conspirators
before and during the alleged conspiracy.’” (Id. at p. 1135.)
       The evidence here was sufficient to support instructing on conspiracy to commit
robbery or assault as a theory of liability. As discussed in greater detail below, the
prosecutor’s gang expert testified that Oregon, Aguirre, and Perez were active members
of the same gang (i.e., the Varrio Bakers) and that robbery and assault with a deadly
weapon were among the gang’s primary activities. Oregon and the codefendants were
travelling together in a stolen car inside which was found, among other things, a
functioning police scanner tuned to one of the police department’s channels. After the

                                             10.
three men abandoned the stolen car, a black diaper bag containing three masks,
binoculars, and a loaded, nine-millimeter semiautomatic firearm was found near the car.
The foregoing circumstances, considered together, were sufficient to make a prima facie
showing of a conspiracy to commit robbery or assault and, therefore, the trial court did
not err by instructing on this theory.

II.    Sufficiency of the evidence to support Oregon’s convictions of attempted
       murder and assault with a semiautomatic firearm on a peace officer
       Next, Oregon contends there was insufficient evidence to support his convictions
of attempted murder of a peace officer and assault upon a peace officer with a
semiautomatic firearm under any of the prosecution’s three theories of liability; i.e.,
direct aiding and abetting, natural and probable consequences doctrine of aiding and
abetting, and uncharged conspiracy to commit robbery or assault. We disagree.
       We review a claim of insufficient evidence by determining whether, viewing the
whole record in the light most favorable to the prosecution, the record discloses
substantial evidence—evidence which is reasonable, credible, and of solid value—from
which a reasonable trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. (People v. Osband (1996) 13 Cal.4th 622, 690.) “‘We
“‘presume in support of the judgment the existence of every fact the trier could
reasonably deduce from the evidence.’”’” (Ibid.)
       “In making our determination, we do not reweigh the evidence .… We simply
consider whether ‘“‘any rational trier of fact could have found the essential elements of
[each conviction challenged] beyond a reasonable doubt.’” [Citations.]’ [Citation.]
Unless it is clearly shown that ‘on no hypothesis whatever is there sufficient substantial
evidence to support the [jury’s] verdict[s,]’ we will not reverse.” (People v. Stewart
(2000) 77 Cal.App.4th 785, 790, second bracketed insertion added.)
       Oregon first contends there was insufficient evidence to support his convictions on
a direct aiding and abetting theory of liability. He argues that the evidence he was


                                             11.
driving a stolen car and possessed shaved keys used to steal other cars at the time of the
traffic stop suggested he had “reason—that was independent of the interests of Aguirre
and Perez—to try and evade the police.” However, Oregon claims there was no evidence
he had the requisite intent to kill to find him guilty of attempted murder on an aiding and
abetting theory. In fact, Oregon asserts, “his act of continuing to accelerate the vehicle
while his backseat passenger was shooting at the officers demonstrates a lack of an intent
to kill. If [he] possessed the intent to kill he would not have been attempting to distance
his vehicle from [the] officers’ vehicle while his backseat passenger was shooting at the
patrol vehicle.” (Italics added.)
        In essence, Oregon seems to be arguing that his conduct in driving the stolen car to
escape the police officers was factually incompatible with a finding he was
simultaneously trying to help Aguirre shoot and kill the officers or otherwise aiding and
abetting the shooting offenses in this case. However, the two were not mutually
exclusive and a rational juror could infer from all the circumstances that Oregon was
attempting to avoid capture by the police officers while at the same time intentionally
facilitating the commission of the shooting offenses and that he shared the shooter’s
intent to kill.
        Contradicting Oregon’s suggestion that he was acting completely independently of
his codefendants during the crimes, there was evidence that Oregon, Aguirre and Perez
conferred or communicated with one another immediately before Oregon sped away from
the police officers. One of the officers testified, that as they were walking up to the car,
he observed a lot of movement among all three occupants of the car. There was also
evidence that, near the end of the car chase, Oregon drove onto a partially paved alley
where Aguirre fired additional shots at the patrol car. According to the officers’
testimony, visibility in the alley was low partly because the lights on the stolen car were
turned off after it entered the alley. A reasonable factfinder could have inferred from all
the circumstances that Oregon intentionally shut off the lights on the stolen car to help

                                             12.
Aguirre to better see and take aim at the officers behind them, while at the same time
facilitating their escape by continuing to drive at a high rate of speed. Although there
was also evidence supporting the other theories of liability presented to the jury in this
case, in light of our conclusion that substantial evidence supports Oregon’s convictions
on at least one theory, it is unnecessary to reach his sufficiency of the evidence challenge
to the other two.

III.   Sufficiency of the evidence to support the gang and gang-related firearm
       enhancements
       Oregon contends there was insufficient evidence to support the gang
enhancements (§ 186.22, subd. (b))7 and gang-related firearm enhancements (§ 12022.53,
subd. (e)).8 Specifically, he claims the evidence was insufficient to show he committed
the charged offenses with the specific intent to assist, further, or promote criminal
conduct by gang members. We disagree.
       A.      Background
       Bakersfield Police Sergeant Brent Stratton testified as a gang expert and described
the Varrio Bakers, which he identified as a southern (or Sureño) Hispanic criminal street
gang in Bakersfield. The primary activities of the Varrio Bakers gang include murder,
assault with a deadly weapon, possession of firearms, possession of stolen vehicles,
burglary, carjacking, and robbery.



7       Section 186.22, subdivision (b)(1), states: “[A]ny person who is convicted of a felony
committed for the benefit of, at the direction of, or in association with any criminal street gang,
with the specific intent to promote, further, or assist in any criminal conduct by gang members,
shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed
for the felony or attempted felony of which he or she has been convicted, be punished as
follows .…”
8       Section 12022.53 provides: “(e)(1) The enhancements provided in this section shall
apply to any person who is a principal in the commission of an offense if both of the following
are pled and proved: [¶] (A) The person violated subdivision (b) of Section 186.22. [¶]
(B) Any principal in the offense committed any act specified in subdivision (b), (c), or (d) .…”


                                                13.
       Stratton opined that Oregon and the codefendants were active members of the
Varrio Bakers gang and explained the bases for his opinion. In support of his opinion
regarding Oregon’s gang membership, Stratton described Oregon’s numerous contacts
with law enforcement between August 2004 and April 2013.
       On August 5, 2004, and, again, on October 14, 2006, Oregon was contacted within
Varrio Bakers territory.
       On April 27, 2007, during a firearm possession investigation, Oregon was
contacted in the company of the Varrio Bakers gang member who was ultimately arrested
for the crime.
       On July 20, 2008, Oregon was arrested for vehicle burglary and was found in the
company of a Varrio Bakers gang member at the time of his arrest. Vehicle burglary is
one of the primary activities of the gang.
       On March 30, 2009, officers made contact with Oregon when responding to a
citizen calling that there had been a gang fight and providing a vehicle description. When
officers stopped the vehicle, Oregon was inside it.
       On April 5, 2009, Oregon was arrested for charges related to automobile theft,
which is one of the primary activities of the Varrio Bakers gang. At the time of his arrest,
Oregon was wearing a hat with the letters KC on the front, which is an article of clothing
often worn by Varrio Bakers and southern gang members.
       On January 24, 2010, Oregon and two other active Varrio Bakers members—
Jaime Aguirre, Oregon’s codefendant in the instant case, and Joey Gonzales—were
identified at the perpetrators of a home invasion-style robbery where shots were fired at
the victim. The crime was also committed in Varrio Baker territory.
       On February 4, 2010, Oregon was arrested for grand theft auto.
       On April 13, 2010, at the time of his arrest for the current offenses, Oregon was
driving a stolen vehicle.



                                             14.
      Following Stratton’s description of Oregon’s previous contacts with law
enforcement, Stratton summarized the bases for his opinion that Oregon was an active
member of the Varrio Bakers gang as follows:

      “The fact that he’s been contacted with Varrio Bakers gang members. He’s
      been contacted in Varrio Bakers territory. He’s been arrested for crimes
      that, in my opinion, are the primary activities committed by Varrio Bakers
      gang members. He’s been arrested in the company of Varrio Bakers gang
      members, committing primary activities. So based on all those factors, it’s
      my opinion that he is a Varrio Bakers gang member or was at least at the
      time of this offense.”
      After being presented with a hypothetical based on the February 20, 2010,
incident, Stratton rendered the following opinions:

             “My opinion is that, based on the totality of the circumstances of
      everything you have advised in that hypothetical, that that crime,
      hypothetically, would be done in association with and for the benefit of the
      Varrio Bakers criminal street gang. [¶] … [¶]

              “I based it on my experience as a gang investigator. And the things
      that I look at at this point would be the type of crimes that are in your
      hypothetical, the stolen vehicle, the firearms possession, the shooting, the
      area in which these crimes occur, as well as the presence of the gang
      members themselves. [¶] … [¶]

             “In my opinion, crimes like this enhance not only the individual
      gang member’s reputation for lawlessness and crime but the entire gang as
      a whole, that their reputations are enhanced not only amongst other gang
      members but amongst citizens as a whole. I believe that, again, firearms
      possession are used to advance the interests of the gang as well as in that
      stolen vehicles are also used to advance the interests of the gang; that those
      are used hand-in-hand to benefit and to associate with the Varrio Bakers.”
      B.     Analysis
      Under existing case law, the fact that Oregon, a member of the Varrio Bakers
gang, committed the current offenses in the company of two other members of the same
gang, supports an inference that his crimes were gang related. (See People v. Miranda
(2011) 192 Cal.App.4th 398, 412–413 [commission of crime accompanied by gang



                                           15.
members or associates supports inference defendant intended to benefit gang]; People v.
Villalobos (2006) 145 Cal.App.4th 310, 322 [nongang member’s commission of crime in
association with known gang member supports inference crime was gang related]; People
v. Morales (2003) 112 Cal.App.4th 1176, 1198–1199 [commission of crime with fellow
gang members supports inference crime was committed in association with gang].)
       In challenging this conclusion, Oregon argues that, although the evidence was
sufficient to establish that Aguirre and Perez were both members of the Varrio Bakers
gang, it was insufficient to establish that he was a member of the gang at the time of the
offenses in February 2010. In this regard, Oregon notes that he “did not have any gang
tattoos, he had not previously been convicted and ordered to register as a gang member,
… no gang roll call sheets containing [his] name or photographs showing [him] making
any gang signs were introduced” and “[t]here was no evidence [he] at any time had
actually claimed membership in the gang.”
       Despite Oregon’s contrary assertions, the gang expert’s testimony regarding his
numerous prior contacts with law enforcement was more than sufficient to support a
finding that he was an active member of the Varrio Bakers gang at the time of the current
offenses. As Oregon acknowledges, there was evidence that, on more than one occasion,
he committed crimes with other members of the Varrio Bakers gang, including the
commission of a robbery and shooting with Aguirre in January 2010, less than a month
before the current incident, and that the crimes he committed were crimes constituting the
gang’s primary activities.
       For reasons already discussed, we also reject Oregon’s assertion that there was
insufficient evidence he intended to aid and abet in the commission of the shooting
offenses. That the evidence might also support an inference that Oregon had a personal
motive in fleeing the police does not preclude, and the evidence supports, a finding he
acted with the requisite intent to assist any criminal conduct of gang members.



                                            16.
IV.    Constitutionality of section 12022.53, subdivision (e)(1)
       Oregon claims the firearm enhancement set forth in section 12022.53, subdivision
(e)(1) violates equal protection because it punishes aiders and abettors of crimes
committed for the benefit of street gangs more severely than aiders and abettors of crimes
committed for the benefit of equally or more dangerous criminal associations such as “a
racist hate group, an organized group of drug dealers” or “a terrorist organization.”9 We
reject Oregon’s claim and agree with the opposite conclusion reached by the appellate
court in People v. Hernandez (2005) 134 Cal.App.4th 474, 481–482 (Hernandez).
       As the Hernandez court explained, even assuming the groups Oregon identifies are
similar enough to street gangs to trigger equal protection analysis, yet dissimilar enough
to fall outside the broad definition of groups subject to enhanced punishment for street
terrorism,10 the Legislature is not required to target all analogous evils at once.
(Hernandez, supra, 134 Cal.App.4th at p. 482.) “It may direct its attention ‘“to those
classes of cases where the need is deemed the clearest”’” (id. at p. 482, fn. omitted),
which the Legislature reasonably could determine was street gang violence (ibid., citing

9        Section 12022.53, subdivision (d) states: “Notwithstanding any other provision of law,
any person who, in the commission of [murder, attempted murder, or other crimes] personally
and intentionally discharges a firearm and proximately causes ... death, to any person other than
an accomplice, shall be punished by an additional and consecutive term of imprisonment in the
state prison for 25 years to life.” Subdivision (c) similarly provides for a 20-year enhancement
for discharge of a firearm without ensuing injuries or death. Subdivision (e)(1) extends these
penalty enhancements to aiders and abettors as follows: “The enhancements provided in this
section shall apply to any person who is a principal in the commission of an offense if both of the
following are pled and proved: [¶] (A) The person violated subdivision (b) of section 186.22
[i.e., committed the offense for the benefit of a criminal street gang and with the specific intent to
promote, further or assist in any criminal conduct by gang members]. [¶] (B) Any principal in
the offense committed any act specified in subdivision (b), (c) or (d).” Under section 31 a
“principal” includes not only those persons who directly commit the act but also those who “aid
and abet in its commission.”
10     The Hernandez court observed that although the street terrorism legislation “was aimed at
gangs such as the Bloods, the Crips and Southside Montebello (see § 186.21), a case could be
made it also covers the White Knights of the Ku Klux Klan, the ‘Mexican Mafia,’ and Al-
Qaeda.” (Hernandez, supra, 134 Cal.App.4th at p. 481, fn. 40.)


                                                 17.
homicide figures). Oregon contends the liberty interest at stake in avoiding a lengthy
sentence enhancement requires review under the strict scrutiny standard, but a defendant
“‘does not have a fundamental interest in a specific term of imprisonment or in the
designation a particular crime receives.’” (People v. Wilkinson (2004) 33 Cal.4th 821,
838 (Wilkinson).) Thus, the Legislature “‘is not prohibited by the equal protection clause
from striking the evil where it is felt the most.’” (Hernandez, at p. 482, fn. omitted.)
       Citing People v. Olivas (1976) 17 Cal.3d 236 (Olivas), Oregon argues that we
should not adopt the rational basis test endorsed by Hernandez, supra, 134 Cal.App.4th
474. Oregon’s argument is contrary to law. In Wilkinson, supra, 33 Cal.4th 821, the
California Supreme Court held that the statutory scheme governing the offense of battery
on a custodial officer did not violate equal protection principles. (Id. at pp. 838–841.) In
reaching its conclusion, the court rejected the defendant’s argument that strict scrutiny
was required according to Olivas, a case involving an equal protection challenge to a
statute which gave the trial court discretion to commit a defendant, convicted as an adult
and between the ages of 16 and 21, to the California Youth Authority for a longer term
than the defendant would have received if he or she had been sentenced as an adult. (See
Wilkinson, at p. 837.)
       The Wilkinson court concluded that Olivas did not stand for the proposition that
strict scrutiny is required for an equal protection challenge on the grounds a penal statute
authorizes different sentences for comparable offenses. The court explained that Olivas
“‘requires only that the boundaries between the adult and juvenile criminal justice
systems be rigorously maintained. We do not read Olivas as requiring the courts to
subject all criminal classifications to strict scrutiny requiring the showing of a compelling
state interest therefor.’ [Citation.] Other courts similarly have concluded that a broad
reading of Olivas, as advocated by [appellant] here, would ‘intrude[] too heavily on the
police power and the Legislature’s prerogative to set criminal justice policy.’”
(Wilkinson, supra, 33 Cal.4th at pp. 837–838, first & second bracketed insertions added.)

                                             18.
Accordingly, the rational basis test applied in Hernandez is applicable and results in the
conclusion that section 12022.53, subdivision (e)(1) does not violate equal protection
principles.
V.     Double jeopardy
       Oregon contends, and the People concede, the trial court violated the state
constitutional prohibition against double jeopardy by imposing a longer prison sentence
and greater fines under sections 1202.4 and 1202.45 on resentencing. We agree.
       “When a defendant successfully appeals a criminal conviction, California’s
constitutional prohibition against double jeopardy precludes the imposition of more
severe punishment on resentencing.” (People v. Hanson (2000) 23 Cal.4th 355, 357.) A
statutorily mandated fine constitutes punishment and, therefore, comes within the double
jeopardy principle prohibiting the imposition of harsher punishment following a
defendant’s successful appeal. (Ibid.)
       On resentencing, Oregon received a total prison term of 80 years to life, which
was one year longer than the total term of 79 years to life previously imposed prior to his
successful appeal. We accept the remedy agreed upon by the parties of modifying the
judgment by striking the one-year section 667.5, subdivision (b) enhancement imposed
by the trial court, which will reduce his total prison term to 79 years to life.11 We will
further modify the judgment by reducing the restitution and parole revocation restitution
fines from $280 to $200 each.




11     As Oregon points out, and the People do not dispute, it appears the trial court improperly
conducted a bench trial on the previously stricken prior prison term allegations on remand.
However, we find it unnecessary to strike the court’s true findings on the allegations because
only one section 667.5, subdivision (b) enhancement, which we have ordered stricken, was
imposed and the abstract of judgment states that stricken enhancements are otherwise not listed.
Therefore, striking the court’s true findings on enhancements not appearing in the abstract of
judgment would make no practical difference.


                                               19.
                                     DISPOSITION
      The judgment is modified by (1) striking the one-year Penal Code section 667.5,
subdivision (b) enhancement, (2) reducing the Penal Code section 1202.4 restitution fine
from $280 to $200, and (3) reducing the Penal Code section 1202.45 parole revocation
restitution fine from $280 to $200, the latter of which is stayed pending Oregon’s
successful completion of parole. The trial court is directed to prepare an amended
abstract of judgment that reflects Oregon’s modified sentence and to forward a copy of
that amended abstract of judgment to the appropriate authorities.
      The judgment is affirmed in all other respects.



                                                               _____________________
                                                                            HILL, P.J.
WE CONCUR:


 _____________________
GOMES, J.


 _____________________
POOCHIGIAN, J.




                                           20.
