Filed 7/9/14 P. v. Brim CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F065521
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. MF009586A)
                   v.

EURIE BRIM III,                                                                          OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kern County. Gary T.
Friedman, Judge.
         Elisa A. Brandes, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Leanne Le
Mon and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
       The jury found Eurie Brim III and Scott Clifford King participated in the armed
robbery of Christopher Barnett. Brim was convicted of robbery, assault with a firearm,
and active participation in a criminal street gang. With enhancements, his total prison
term was 18 years.
       While this appeal was pending, the Supreme Court decided in People v. Rodriguez
(2012) 55 Cal.4th 1125 (Rodriguez) that a defendant can be convicted of active
participation in a criminal street gang pursuant to Penal Code section 186.22, subdivision
(a)1 only if the defendant acted in concert with at least one other member of his gang.
Brim argues, and the People concede, his conviction for active participation in a criminal
street gang must be reversed because there was insufficient evidence he acted with a
fellow gang member. He also asserts, and the People concede, the trial court improperly
imposed an enhancement for gun use pursuant to section 12022, subdivision (a)(1) on the
assault count since use of a firearm was an element of the offense. The People’s
concessions are proper, and we will reverse the active participation in a criminal street
gang count and vacate the section 12022, subdivision (a)(1) firearm enhancement.
       The People and Brim dispute whether the People will have the option of retrying
Brim on the active participation in a criminal street gang count. We conclude the People
should have this option because at the time the case was tried there was a split of
authority in the Courts of Appeal on the issue, and the prosecutor may have additional
evidence that was not presented at trial to establish the third participant in the robbery
was a member of the same criminal street gang as Brim.
       Finally, Brim claims his right to be free from ex post facto laws was violated when
the trial court imposed a $240 fine pursuant to section 1202.4, subdivision (b)(1). We
reject this argument because it is not supported by the record.


       1All   further statutory references are to the Penal Code unless otherwise stated.



                                               2.
                    FACTUAL AND PROCEDURAL SUMMARY
       The Information
       The information charged Brim with second degree robbery (§§ 211, 212.5,
subd. (c)), assault with a firearm (§ 245, subd. (a)(2)), and active participation in a
criminal street gang (§ 186.22, subd. (a)). The information also alleged the crimes were
committed for the benefit of a criminal street gang within the meaning of section 186.22,
subdivision (b)(1)(C) (counts 1 and 2), a principal was armed with a firearm within the
meaning of section 12022.53, subdivisions (b) and (e)(1) (count 1), and a principal was
armed with a firearm within the meaning of section 12022, subdivision (a)(1) (count 2).
Finally, the information alleged in all three counts that Brim had suffered four prior
convictions that resulted in prison sentences within the meaning of section 667.5,
subdivision (b).
       The Testimony
       Barnett arrived at a friend’s house to have work performed on his vehicle. He was
about to leave the house when a vehicle pulled in behind his vehicle. Brim exited this
vehicle and approached the house. Barnett also saw King sitting in the passenger’s seat
of the vehicle with a green bandana over his face.
       Barnett became suspicious so he locked the front door of the house and went to the
back door in an attempt to escape. Brim was entering the house through the back door so
Barnett ran out the front door. When Barnett slipped on some gravel, Brim assaulted him
and began taking his possessions ($400 and two gold necklaces). King exited the vehicle
and pointed a shotgun at Barnett to encourage him to cooperate.
       When Brim and King departed, Barnett followed the getaway vehicle and obtained
the license plate number, which he provided to the police. Barnett identified Brim by his
moniker when he reported the crime. He also identified Brim in a photo lineup and at




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trial. Barnett was not shown a photo lineup that included King, but he identified King at
trial, and the vehicle used in the robbery was registered to King.2
       Deputy Sheriff Sean Mountjoy checked the license plate number obtained from
Barnett against DMV records and learned the vehicle was registered to King. Based on
this information and the positive identification of Brim, Mountjoy obtained search
warrants for the residences of King and Brim. The address listed for King was an
unoccupied dwelling. Brim’s address was an occupied apartment. Numerous items of
gang-related evidence were seized from the apartment.
       After leaving Brim’s apartment, the deputies decided to contact Bridget Ray, who
previously had been seen in the company of Brim and King. Ray permitted the deputies
to search her residence. Mountjoy found King’s vehicle in Ray’s garage with the license
plates removed. After finding the vehicle, Mountjoy obtained a search warrant to search
the rest of the premises.
       King eventually was located in the attic and detained without incident. King told
officers he was hiding in the attic because he believed he had an outstanding warrant for
his arrest. He also stated he took the license plates off of his vehicle because he heard it
had been used in a robbery and the sheriff’s department was searching for it. King
denied involvement in the robbery but stated he intended to sell the vehicle.
       Mountjoy interviewed King a short while later. At that time King admitted he
participated in the robbery. King also implicated Matthew Morrissette as a participant.
       Sheriff’s deputies eventually seized a shotgun and showed Barnett and Lewis
pictures of the shotgun. Both stated it looked similar to the weapon used in the robbery.




       2Leeandra    Lewis, Barnett’s companion who was in the car when these events took
place, testified in a manner very similar to Barnett’s. She also identified Brim and King
as the perpetrators.



                                              4.
       The prosecution’s expert witness, Lauro Cantu, opined Brim was a member of the
criminal street gang known as the Deadly Young Psyclones or DYP (hereafter DYP) and
testified this gang met the statutory criteria of a criminal street gang.
       The defense attempted to establish an alibi for Brim and presented stipulations that
suggested Barnett had been untruthful on the stand.
       The Verdict and Sentencing
       The jury found Brim guilty as charged and found all enhancements true. Brim
admitted he had served three prior prison terms within the meaning of section 667.5,
subdivision (b).3 The trial court sentenced Brim to the upper term of five years in count
1, plus 10 years for the section 12022.53, subdivisions (b) and (e)(1) enhancement, and
three years for the section 667.5 enhancements. The section 186.22, subdivision
(b)(1)(C) enhancement was stayed. The sentences for counts 2 and 3 also were stayed
pursuant to section 654. Brim’s total prison sentence was 18 years.
                                       DISCUSSION
I.     Conviction for Active Participation in a Criminal Street Gang
       In count 3 the jury found Brim guilty of violating section 186.22, subdivision (a).
This section imposes a prison term on any person who actively participates in a criminal
street gang. The elements of this crime are (1) the defendant actively participated in a
criminal street gang; (2) when he or she did so, he or she knew that members of the gang
engaged or had engaged in a pattern of criminal gang activity; and (3) the defendant
willfully assisted, furthered, or promoted felonious criminal conduct by members of the
gang by either (a) directly and actively committing a felony offense, or (b) aiding and
abetting a felony offense. (CALCRIM No. 1400.) The prosecution posited Brim


       3The  prosecutor determined two of the charged section 667.5 enhancements
resulted in only a single prison sentence, and therefore only three 667.5 enhancements
could be charged.



                                              5.
committed this crime when he robbed Barnett, i.e., he assisted felonious criminal conduct
by members of the gang when he robbed Barnett.
        Brim argues this conviction must be reversed for two reasons. He asserts (1) there
was insufficient evidence to support the conviction, and (2) the trial court erroneously
instructed the jury on the elements of the crime. Both arguments arise from Rodriguez.
        Rodriguez was a gang member visiting his girlfriend in another city. Rodriguez,
acting alone, attempted to rob the victim and then beat the victim when he refused to give
him any money. The prosecution’s gang experts testified the crime was committed for
the benefit of Rodriguez’s criminal street gang. The jury convicted Rodriguez of
attempted robbery and active participation in a criminal street gang. (§ 186.22, subd.
(a).) The jury also found true the gang enhancement allegation that the attempted
robbery was committed for the benefit of the gang. (Id., subd. (b).) The trial court
granted the defendant’s motion for a new trial on the gang enhancement allegation on the
grounds of insufficient evidence. The prosecution did not retry the allegation.
        Rodriguez argued he could not be convicted of a separate count of active
participation in a criminal street gang because he acted alone. Rodriguez’s argument
focused on the third element of the crime -- that the defendant willfully committed an act
that promotes, furthers, or assists in any felonious criminal conduct by members of that
gang.
        When analyzing the phrase “felonious criminal conduct by members of that gang,”
the Supreme Court observed the phrase “that gang” refers “back to the gang in which the
defendant is an active participant.” (Rodriguez, supra, 55 Cal.4th at p. 1131.) In
rejecting the Attorney General’s argument that a gang member acting alone could
promote, further, or assist felonious criminal conduct by members of the gang, the
Supreme Court stated, “[T]o satisfy the third element, a defendant must willfully
advance, encourage, contribute to, or help members of his gang commit felonious
criminal conduct. The plain meaning of section 186.22(a) requires that felonious

                                             6.
criminal conduct be committed by at least two gang members, one of whom can include
the defendant if he is a gang member. [Citation.]” (Id. at p. 1132.) The Supreme Court
concluded by noting that in enacting section 186.22, subdivision (a), the Legislature
“sought to punish gang members who acted in concert with other gang members in
committing a felony regardless of whether such felony was gang related. [Citation.]”
(Rodriguez, at p. 1138.)
       Finally, the Supreme Court rejected the Attorney General’s suggestion that its
interpretation would result in absurd results.

               “A lone gang member who commits a felony will not go
       unpunished; he or she will be convicted of the underlying felony. Further,
       such a gang member would not be protected from having that felony
       enhanced by section 186.22(b)(1), which applies to ‘any 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.…’
       Because the gang enhancement under section 186.22(b)(1) requires both
       that the felony be gang related and that the defendant act with a specific
       intent to promote, further, or assist the gang, these requirements provide a
       nexus to gang activity sufficient to alleviate due process concerns.
       [Citation.] Furthermore, we note that the lone perpetrator’s punishment
       under the sentencing enhancement would be more substantial than that
       imposed for a defendant who violates section 186.22(a).” (Rodriguez,
       supra, 55 Cal.4th at pp. 1138-1139.)

               “A gang member who is convicted of a violation of section
       186.22(a), on the other hand, would presumably be sentenced for the
       underlying felony as well as the separate conviction under section
       186.22(a). The maximum punishment for a violation of section 186.22(a)
       is three years. Applying section 1170.1, subdivision (a), the defendant
       would receive, at most, an additional eight-month sentence for the gang
       offense. We need not consider whether imposition of such a term would be
       barred by section 654. [Citation.]” (Rodriguez, supra, 55 Cal.4th at
       p. 1139, fn. 9.)

               “In sum, the Attorney General argues for an expansive interpretation
       of section 186.22(a) that is not supported by the statutory language.
       Although the People might prefer a different statute, section 186.22(a)
       reflects the Legislature’s carefully structured endeavor to punish active

                                             7.
       participants for commission of criminal acts done collectively with gang
       members. Defendant here acted alone in committing the attempted
       robbery. Thus, he did not also violate section 186.22(a).” (Rodriguez,
       supra, 55 Cal.4th at p. 1139.)
       Brim did not act alone when he robbed Barnett. The only evidence of gang
membership presented by the prosecution, however, related to Brim. The prosecutor
conceded King was not a member of the same criminal street gang as Brim. Thus, King’s
participation in the robbery did not establish the crime was committed “collectively with
gang members,” specifically with members of Brim’s gang.
       This case was tried before Rodriguez was decided. The result was that the
instruction explaining the elements of the crime of active participation in a criminal street
gang did not explain that at least two gang members must have participated in
committing the felony offense. The People concede that, as a result, the trial court erred
in instructing the jury and the conviction must be reversed.
       We agree error occurred, and reversal is required because the error was
prejudicial. Rodriguez requires two gang members acting in concert before a defendant
may be convicted of violating section 186.22, subdivision (a). The jury was not informed
of this requirement, and the evidence of a second gang member was almost nonexistent,
as we explain below.
       We must decide whether Brim may be tried again for the offense. Brim argues, in
essence, retrial is barred because there was not substantial evidence to support the
conviction since the prosecutor failed to establish two members of his gang participated
in the crime. The Attorney General, relying on People v. Garcia (1984) 36 Cal.3d 539
(Garcia), maintain retrial must be permitted.
       The evidence established there were three men involved in the robbery of Barnett.
Viewing the evidence in the light most favorable to the judgment, the jury likely found
Brim attacked Barnett and took his personal property, and King was the passenger in the
vehicle that pointed the shotgun at Barnett to ensure his cooperation. Neither Barnett nor


                                             8.
Lewis could identify the third man, who was the driver of King’s vehicle. The only
evidence introduced at trial on the identity of the third accomplice came from King, who
told Mountjoy during an interview that Morrissette also was involved in the crime.
       The evidence also established Brim was a member of DYP, and King was not.
Further, Cantu opined Morrissette was a member of DYP. Therefore, if Morrissette was
involved in the crime, there were two DYP gang members acting in concert during the
robbery. The only testimony identifying the third perpetrator, however, came from King,
who was an accomplice in the crime. King’s testimony, by itself, would not be sufficient
to prove Morrissette’s guilt (§ 1111) and would not have been admissible had Morrissette
been a defendant in the action. (People v. Aranda (1965) 63 Cal.2d 518; Bruton v.
United States (1968) 391 U.S. 123.) Under the Aranda/Bruton line of cases, it also is
questionable whether King’s statement implicating Morrissette in the crime would be
admissible against Brim if it were to be used to prove one of the elements of the active
participation in a criminal street gang count because King was not subject to cross-
examination.
       Brim argues he cannot be retried because there was insufficient evidence that a
second member of the DYP criminal street gang was involved in the robbery. But, as
Rodriguez explained, there was a split in the Courts of Appeal on the issue of whether a
gang member could be convicted of active participation when he acted either alone or
with nongang members. Accordingly, the prosecutor may have additional evidence he
could have presented to establish Morrissette’s involvement in the crime but chose not to
because Morrissette was not a defendant and it was unnecessary to obtain a conviction
against Brim. Garcia explains that under such circumstances, the matter should be
remanded to permit the prosecutor the opportunity to retry the matter with this additional
evidence.
       Garcia involved a conviction for first degree special circumstance murder. The
special circumstance alleged was felony murder. Garcia drove his accomplice to a store

                                            9.
purportedly to commit a robbery. The accomplice entered the store and shot the clerk.
The jury was not instructed that Garcia must have had the intent to kill or to aid a killing
to find the special circumstance true, as required by Carlos v. Superior Court (1983) 35
Cal.3d 131, overruled on other grounds in People v. Anderson (1987) 43 Cal.3d 1104.
After concluding this error required reversal, the Supreme Court addressed Garcia’s
argument that retrial should be precluded.

               “Recognizing that in many cases tried before Carlos insufficiency of
       the evidence to show intent to kill might be the result of the prosecution’s
       failure to realize that proof of intent was essential, [Garcia] argues that his
       case is different because he was charged with premeditated murder as well
       as felony murder. Consequently, he argues, in his case the prosecution
       must be deemed to have introduced all the evidence it had to show intent
       and premeditation, and since that evidence would be insufficient to support
       a finding of intent to kill, retrial of that issue is unnecessary.

              “We agree with the defendant that the evidence presented may be
       insufficient to support a finding of intent to kill, but think it unrealistic to
       assume that the prosecution, with a perfect case for proof of felony murder,
       necessarily presented all available evidence relating to intent. We therefore
       reverse the special circumstance finding without directions, permitting the
       prosecution to seek retrial of that issue.” (Garcia, supra, 36 Cal.3d at pp.
       557-558.)
       We also conclude it is unrealistic to assume the prosecutor presented all available
evidence to establish Morrissette was the third perpetrator in the robbery. The
prosecutor, not knowing he was required to establish two DYP members participated in
the crime, may have determined such evidence was unnecessary and would unduly
lengthen the trial. Accordingly, we will remand the matter to permit the prosecution the
option of retrying the section 186.22, subdivision (a) charge.
II.    Remaining Contentions
       Arming Enhancement
       The jury found true an enhancement on count 2 that a principal was armed with a
firearm within the meaning of section 12022, subdivision (a)(1). Count 2 charged assault


                                             10.
with a firearm, in violation of section 245, subdivision (a)(2). As the jury was instructed,
to violate this section a defendant must have done “an act with a firearm that by its nature
would directly and probably result in the application of force to a person.” Section
12022, subdivision (a)(1) enhances the sentence of anyone “who is armed with a firearm
in the commission of a felony.”
       The section specifically states, however, that the enhancement does not apply if
“the arming is an element of that offense.” Since assault with a firearm includes as an
element of the offense the use of a firearm, the Legislature has specifically precluded
imposition of the section 12022, subdivision (a)(1) enhancement. The People concede
the finding on the enhancement and the term imposed for the enhancement must be
vacated.
       Restitution Fine
       Brim’s final argument is the trial court improperly imposed a fine pursuant to
section 1202.4. The robbery occurred on March 6, 2011. At that time section 1202.4
provided the fine “shall be set at the discretion of the court and commensurate with the
seriousness of the offense, but shall not be less than two hundred dollars ($200), and not
more than ten thousand dollars ($10,000) .…” (Former § 1202.4, subd. (b)(1).) The
2011 Legislature amended this section to increase the minimum fine from $200 to $240.
(Stats. 2011, ch. 358, § 1.) The trial court imposed a fine of $240. Brim argues that since
it appears the trial court intended to impose the minimum fine, his constitutional right to
be free from ex post facto laws was violated. (U.S. Const., art. I, § 10; People v. McKee
(2010) 47 Cal.4th 1172, 1193.)
       The trial court has discretion to determine the amount of the section 1202.4 fine.
The People argue the fine was within the statutory limits in both 2011 and 2012. Since
the trial court did not explain its reasoning for choosing the amount of the fine, the
People assert either (1) Brim forfeited the argument, or (2) the silent record makes it
impossible for Brim to meet his obligation of affirmatively establishing error.

                                             11.
       We agree with the People. It is impossible to know from this record whether the
trial court erroneously thought the minimum fine was $240 or it was exercising its
discretion to impose a fine of $240 knowing the minimum fine was $200. Accordingly,
on this record Brim cannot establish the trial court abused its discretion in imposing a
$240 fine.
                                      DISPOSITION
       The conviction for active participation in a criminal street gang, in violation of
section 186.22, subdivision (a), is reversed, and the matter is remanded to the trial court
to provide the People with the option of retrying the count. The one-year enhancement
imposed on count 2 pursuant to section 12022, subdivision (a)(1) is vacated. The
judgment is affirmed in all other respects.

                                                                 _____________________
                                                                    CORNELL, Acting P.J.


WE CONCUR:


 _____________________
DETJEN, J.


 _____________________
FRANSON, J.




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