The opinion
Filed 2/28/22 P. v. Soto CA2/8
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B304485
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA085911)
v.
JAMES SOTO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Henry J. Hall, Judge. Affirmed in part, reversed
in part and remanded with directions.
Patrick Morgan Ford, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Wyatt E. Bloomfield and Nicholas J. Webster,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
In 2012, appellant James Soto, a founding member of the
Mexican Mafia, was released from prison. In 2013, he began
threatening Timothy Cullen to obtain money from Cullen’s
marijuana dispensary business. In 2019, a jury convicted Soto of
one count of extortion by threat or force in violation of Penal
Code1 sections 519 and 520 and found true the allegation that the
offense was committed for the benefit of a criminal street gang
within the meaning of section 186.22, subdivision (b)(4)2. The
true finding on this allegation extended the statute of limitations
on the underlying offense, which would have otherwise expired.
Soto appealed from the judgment of conviction, contending
the evidence is insufficient to prove the Mexican Mafia is a
criminal street gang within the meaning of section 186.22. He
contended the evidence shows the Mexican Mafia is a “prison”
gang and section 186.22 applies only to “street” gangs. In the
alternative, he contended the necessary predicate offenses proven
by the People are insufficient to support the jury’s true findings
because (1) they are not the type of crimes the STEP Act was
intended to prevent; and (2) they were committed before the
Mexican Mafia changed its character and mission in 1992 to
become active on the streets, at which point it became a
“different” gang. He also contended reversal of the gang
enhancement would require reversal of the extortion conviction,
because section 186.22., subdivision (b)(4) had the effect of
1 Undesignated statutory references are to the Penal Code.
2 Section 186.22 is part of the California Street Terrorism
Enforcement and Prevention Act. (§ 186.20.) This act is
commonly referred to as the STEP Act, and also includes section
186.21, which is discussed throughout this opinion.
2
extending the statute of limitations for the extortion count. On
October 13, 2021, we affirmed the judgment of conviction. We did
not reach the statute of limitations issue.
On December 29, 2021, the California Supreme Court
granted appellant’s petition for review and transferred the
matter to us with directions to vacate our decision and reconsider
the cause in light of Assembly Bill No. 333 (2021–2022 Reg.
Sess.) (Stats. 2021, ch. 699), which became effective January 1,
2022. Assembly Bill No. 333 amended several provisions of
section 186.22. We requested briefing from the parties who agree
that the true finding on the section 186.22 enhancement must be
reversed. We agree as well. The parties disagree on whether the
allegation may be retried.
We now vacate our previous decision. We hold that the
true finding on the gang enhancement must be reversed and that
it can be retried. If the People elect not to retry the gang
allegation, or if the allegation is found not true, the trial court
should decide whether the statute of limitations requires reversal
of the underlying extortion conviction.
FACTUAL BACKGROUND
In 2011, Tim Cullen ran a marijuana dispensary in Valley
Village, sometimes referred to as North Hollywood. Individuals
claiming to be members of the Mexican Mafia threatened to
destroy his business and kill him unless he paid them money. He
paid.
In 2013, an acquaintance told Cullen that appellant Soto
wanted to speak with him. Cullen met appellant at a hotel.
Appellant said he was a founding member of the Mexican Mafia.
He was upset that individuals had been demanding money from
Cullen in the name of the Mexican Mafia. Appellant said they
3
were going to get to the bottom of it “because nobody uses the
Mexican Mafia name like this.” Cullen said appellant made it
sound like the threats for money were wrong and the individuals
should not have been making the threats. He believed the
demands for money would end.
After the meeting, the individuals stopped demanding
money from Cullen. Cullen then learned that he was now
supposed to be paying money to appellant. One day, appellant
came to Cullen’s place of business with Jose “Dreamer” Rodriguez
and Jaime “Cholo” Garcia, who Cullen learned were also
members of the Mexican Mafia. They told Cullen he now owed
them money for protection. Cullen gave appellant $3,000.
Thereafter, Cullen was supposed to pay the men 50 percent of his
business profits. Cullen believed he was paying the money to
appellant, but Garcia would collect it. Cullen made a few
payments to Garcia totaling about $30,000.
At some point, appellant was arrested on unrelated
matters, and Cullen started avoiding Garcia and the others.
Cullen believed it was his chance to get away. At around the
same time, the city instituted new rules for Proposition D
compliance and Cullen had to move his shop to a new location.
From December 14 to December 15, 2013, Cullen moved
much of his business to a new location. On December 15, after
Cullen failed to show up at a meeting arranged with Garcia,
Garcia broke into an outside area at Cullen’s old dispensary and
stole marijuana plants and packaged trimmings which had not
yet been relocated. Garcia was assisted by Jose “Shooter”
Sanchez, who had sometimes accompanied Garcia and Rodriguez
when they collected money. The men’s theft was caught on
4
surveillance cameras. At that point, Cullen decided to call the
police.
After his arrest on federal drug charges on December 10,
2013, Rodriguez agreed to cooperate with the People. He testified
at trial under a grant of use immunity and provided background
information on Cullen’s extortion.
Rodriguez explained that appellant, a founding member of
the Mexican Mafia, was released from prison in 2012 and moved
to Visalia. Appellant was in his late 70s. Rodriguez, an associate
of the Mara Salvatrucha 13 gang (MS 13), had been picking up
collections for one Ruiz Geraldo Vega. Vega told Rodriguez about
the Mexican Mafia and implied he was a member. When
problems arose with Vega over collections in West Los Angeles,
Rodriguez decided to go to Visalia and speak with appellant to
confirm whether Vega was a member of the Mexican Mafia.
After meeting with appellant, Rodriguez decided to give
appellant Vega’s share of the money Rodriguez collected. This
earned appellant’s love and respect.
At some point before Rodriguez became a Mexican Mafia
member, he learned that a person claiming to be part of the
Mexican Mafia was forcing Cullen to pay protection money.
Appellant was also made aware of this situation.
In 2013, appellant sponsored Rodriguez to become a
member of the Mexican Mafia. Jaime Garcia became a member
of the Mexican Mafia the same day. Garcia was originally a
member of the East Side Trece gang.
Rodriguez, Garcia and appellant then began “taxing”
Cullen. “Somehow, [appellant] got, like, an agreement with
[Cullen] to get some of the money monthly . . . getting half of
whatever . . . the dispensary was producing.” Rodriguez, Garcia
5
and appellant split the money equally. Rodriguez explained that
the person or persons who had previously been obtaining money
from Cullen “went away” once they heard appellant was involved.
Rodriguez explained Cullen paid them money because
paying Mexican Mafia members was like insurance to protect the
dispensary. As Mexican Mafia members, they got out word that
the dispensary was theirs, relying on the fear of the Mexican
Mafia among criminal elements to guarantee the dispensary’s
safety. After appellant was arrested in 2013, he sent messages to
Rodriguez directing him to keep doing what they were doing.
Cullen was not free to end the arrangement. If Cullen tried to
renege, the Mexican Mafia would take his property. Rodriguez,
however, did not think robbing Cullen was a good idea. The
robbery happened after Rodriguez was in federal custody.
The prosecution also offered expert testimony by Rene
Enriquez, another former member of the Mexican Mafia.
Enriquez joined the Mexican Mafia while in prison in 1985. At
that time, the Mexican Mafia was a prison gang that exerted
power and control inside prison.
Enriquez testified that the Mexican Mafia began at the
Deuel Vocational Institution in Tracy, California, in 1956.
According to Enriquez, the gang was violent and non-member
prisoners needed protection from it. In the 1970s, a “large”
number of Mexican Mafia members were paroled from state and
federal prison. They organized to deal drugs on the street. At
some point, they were indicted and the Mexican Mafia essentially
was dormant on the street until about the 1990s. However, the
gang remained active within prison.
6
In 1988, during this “dormant” period, Enriquez, a “main
Mexican Mafia Member,” was paroled. Upon release, Enriquez
joined up with Hubert Ruiz and Jaco Paella to form a “crew.” He
met with two known Mexican Mafia members and told them he
wanted to demand protection money from drug dealers and
others engaged in criminal activity in Boyle Heights. Enriquez
then proceeded to do so. In 1989, Enriquez discovered that
Cynthia Galavon, a drug distributor for his crew, had been
stealing drugs. He ordered her killed because she “violated the
edict and disrespected the Mexican Mafia.” On orders of the
gang, Enriquez also killed David Gallegos, a Mexican Mafia
member on the gang’s hit list, with assistance from Ruiz and
Paella. By 1992, Enriquez was in county jail.
In 1992, to obtain power outside prison, the Mexican Mafia
entered into an agreement with Southern California street gangs.
The gangs would carry out criminal activities for the Mexican
Mafia, with the power of the Mexican Mafia behind them.
In 2013, when the events in this case occurred, the Mexican
Mafia had 125 to 150 members. The gang’s primary activities
were murder, extortion, assault, and narcotics distribution.
A black hand was a key symbol of the Mexican Mafia. The
number 13 used alone signified a person had been sponsored to
join the Mexican Mafia. The Mexican Mafia also used Aztec
imagery, particularly Quetzalcoatal Nahuatl, a two-head serpent.
Another symbol of the Mexican Mafia was a Mayan marriage
symbol consisting of two lines and three dots.
Given a hypothetical based on the facts of this case,
Enriquez opined that the extortion of Cullen was committed for
the benefit of the Mexican Mafia because it would enhance its
reputation and provide members with money. In response to a
7
hypothetical which further assumed that a “legitimate” Mexican
Mafia member had two younger Mexican Mafia members retrieve
the money on their collective behalf, Enriquez opined the crime
would be at the direction of the Mexican Mafia and in association
with the Mexican Mafia.
The defense offered the testimony of its own gang expert,
Martin Flores. In response to a hypothetical that tracked the
facts of this case, Flores opined the crime was not committed to
benefit the Mexican Mafia, but was committed by individuals
taking advantage of an opportunity for their own interests.
Appellant also testified in his own behalf. He admitted he
was one of the first 12 members of the Mexican Mafia. He did not
sponsor or make anyone a member of the Mexican Mafia.
Appellant did not ask anyone to commit a crime for him.
Rodriguez and Garcia would sometimes give him money, but he
never asked for the money and did not know its source. Cullen
gave appellant money once for doing a favor. He asked Cullen if
that meant they were partners and Cullen said yes. Appellant
assumed he had a consensual agreement with Cullen to protect
his dispensary.
DISCUSSION
Appellant originally contended the Mexican Mafia is not a
“criminal street gang” within the meaning of section 186.22,
subdivision (b), and even if it currently qualifies as such a gang,
it did not qualify at the time of the predicate acts used to prove
the section 186.22 enhancement.
8
A. A Gang Which Is Founded in Prison May Satisfy
Section 186.22’s Definition of a Street Gang
Soto contends section 186.22, subdivision (b), by its plain
language, only applies to “criminal street gangs.” (Italics added.)
He contends the Legislature’s intent to limit the scope of section
186.22 to “street” gangs is further shown by the language in
section 186.21.
Appellant attaches significance to the Legislature’s use of
the phrase “criminal street gang” in section 186.22. (Italics
added.) He acknowledges the STEP Act “fails to distinguish
between street gang and prison gangs,” but contends that the
term “street gang” has a “common or plain” meaning and because
the Legislature selected that term it “should not be interpreted to
include other types of gangs.” Notably, appellant does not
elaborate on what the “common or plain” meaning of the term is,
apart from claiming it does not embrace a prison gang.
When a statute provides a specific definition of a term, the
term “must be understood as it is defined, not in its colloquial
sense.” (People v. Gonzales (2017) 2 Cal.5th 858, 871.) Put
differently, “[t]he plain and commonsense meaning governs
‘unless the statute specifically defines the words to give them a
special meaning.’ ” (Jackson v. LegalMatch.com (2019)
42 Cal.App.5th 760, 768, italics added.)
The California Supreme Court has described the phrase
“criminal street gang” as “a term in colloquial usage that is
nonetheless given a specific meaning in the STEP Act. The STEP
Act defines a ‘criminal street gang’ as an ‘ongoing organization,
association, or group.’ (§ 186.22[, subd.] (f).) That ‘group’ must
have ‘three or more persons,’ and its ‘primary activities’ must
consist of certain crimes. (Ibid.) The same ‘group’ must also have
9
‘a common name or common identifying sign or symbol,’ and its
members must be proven to have engaged in a ‘pattern of
criminal gang activity’ by committing predicate offenses.” (People
v. Prunty (2015) 62 Cal.4th 59, 71 (Prunty).) Because the
Legislature has defined a criminal street gang by its
organizational or associational characteristics and its criminal
activities, with no requirements as to the gang’s geographic
origins or its members’ geographic location, we must understand
the term as defined, not in any colloquial sense described by
appellant.
We recognize the Legislature used the phrase “street gang”
elsewhere in the STEP Act, notably in the title of the Act and in
section 186.21, entitled “Legislative findings and declarations.”
Thus, we cannot simply disregard the Legislature’s use of the
word “street.” The rules of statutory interpretation require us, “if
possible, to give effect and significance to every word and phrase
of a statute.” (People v. Guzman (2005) 35 Cal.4th 577, 588.)
Indeed, “[w]e must presume that the Legislature intended ‘every
word, phrase and provision . . . in a statute . . . to have meaning
and to perform a useful function.’ ” (Garcia v. McCutchen (1997)
16 Cal.4th 469, 476.)
Appellant has urged us to consider section 186.21, although
we each focus on different parts of that section.3 Appellant
3 Section 186.21 provides: “The Legislature, however,
further finds that the State of California is in a state of crisis
which has been caused by violent street gangs whose members
threaten, terrorize, and commit a multitude of crimes against the
peaceful citizens of their neighborhoods. These activities, both
individually and collectively, present a clear and present danger
to public order and safety and are not constitutionally protected.
10
focuses on the following sentence in section 186.21: “The
Legislature, however, further finds that the State of California is
in a state of crisis which has been caused by violent street gangs
whose members threaten, terrorize, and commit a multitude of
crimes against the peaceful citizens of their neighborhoods.”
Appellant contends this sentence evidences a legislative intent
that the STEP Act apply only to “street” gangs who operate in
“neighborhoods” against “peaceful” individuals and not to prison
gangs who commit crimes against gang members or the
incarcerated. We find the Legislature’s statement descriptive of
a problem, not restrictive or prescriptive of its solution.4
The Legislature finds that there are nearly 600 criminal street
gangs operating in California, and that the number of gang-
related murders is increasing. The Legislature also finds that in
Los Angeles County alone there were 328 gang-related murders
in 1986, and that gang homicides in 1987 have increased
80 percent over 1986. It is the intent of the Legislature in
enacting this chapter to seek the eradication of criminal activity
by street gangs by focusing upon patterns of criminal gang
activity and upon the organized nature of street gangs, which
together, are the chief source of terror created by street gangs.
The Legislature further finds that an effective means of
punishing and deterring the criminal activities of street gangs is
through forfeiture of the profits, proceeds, and instrumentalities
acquired, accumulated, or used by street gangs.”
4 In the 30 years since the STEP Act became law, the
California Supreme Court and every Court of Appeal in
California have routinely affirmed true findings on section 186.22
gang allegations where the victim is a gang member. If the
Legislature’s statement was intended to limit the scope of
section 186.22 to “peaceful citizens,” by now the Legislature
11
We find that the next sentence of section 186.21 more
clearly explains the Legislature’s focus and concerns: “These
activities, both individually and collectively, present a clear and
present danger to public order and safety.” The meaning of the
Legislature’s selection of the word “street,” is found here, in its
concern with “public” order and safety. In light of this concern,
the phrase “street gangs” serves the useful function of describing
gangs whose members commit crimes “in the streets,” where they
pose a danger to “public” order and safety. Thus, a gang which
was founded in prison may be considered a street gang if its
members commit crimes outside prison, where the crimes pose a
danger to public order and safety. Because our Supreme Court
has made clear that a criminal street gang may be “a
geographically dispersed group” (Prunty, supra, 62 Cal.4th at
p. 85), not all members need be on the streets.
would have made that intent clear by amending the statute. It
has not done so.
Similarly, the descriptive nature of the Legislature’s
reference to crimes in “neighborhoods” is shown by an
examination of subdivision (e), which defines a pattern of
criminal activity. The Legislature has included crimes in section
186.22, subdivision (e) which do not require physical proximity to
the victim and which may take place entirely electronically, such
as information theft or money laundering. The inclusion of these
crimes is not consistent with an intent to limit the application of
section 186.22 to crimes committed in a victim’s neighborhood.
12
B. The Predicate Offenses Satisfy the Sameness and
Other Requirements of the STEP Act.
Appellant argues that the predicate offenses proved by the
prosecution were insufficient to support the gang enhancement
because (1) they involved a gang member killing another member
of the same gang for violating gang rules and (2) they occurred
while the Mexican Mafia was a prison gang only and cannot be
used against the “street” gang Mexican Mafia.
1. Intragang Crimes
Appellant contends that the predicate murders do not
involve innocent people who are being victimized in their
neighborhoods. Therefore they are not the type of crime the
STEP Act seeks to prevent and cannot qualify as predicate
offenses.
“The statute does not exempt from its scope those predicate
offenses committed by gang members as part of internal gang
disputes or power struggles.” (In re Nathaniel C. (1991)
228 Cal.App.3d 990, 1004 [competent proof that one member of
gang shot another would suffice to show predicate offense for a
pattern of criminal gang activity].) “Intragang violence threatens
public order and safety much the same as criminal conduct
directed specifically against persons outside the gang.” (Ibid.)
2. Sameness
Appellant claims there are two different Mexican Mafia
gangs, the prison gang founded in the 1950s and a street gang
founded in 1992 when the Mexican Mafia entered into an
agreement with Southern California street gangs to extend its
reach outside prison. He contends the “sameness requirement” of
section 186.22, subdivision (f) precludes the predicate murders
13
committed in 1989 by members of the original prison Mexican
Mafia from being used to prove the existence of the street
Mexican Mafia.
Our Supreme Court has explained that the STEP Act
“requires that the gang the defendant sought to benefit, the
individuals that the prosecution claims constitute an
‘organization, association, or group,’ and the group whose actions
the prosecution alleges satisfy the ‘primary activities’ and the
predicate offense requirements of section 186.22[, subd.] (f), must
be one and the same.” (Prunty, supra, 62 Cal.4th at pp. 75–76.)
We review the sufficiency of the evidence to support a gang
enhancement using the same standard applied to a conviction.
(People v. Rivera (2019) 7 Cal.5th 306, 331.) We review “ ‘ “the
whole record in the light most favorable to the judgment to
determine whether it discloses substantial evidence—that is,
evidence that is reasonable, credible, and of solid value—from
which a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt.” ’ ” (People v. Wilson (2008)
44 Cal.4th 758, 806.) “ ‘We presume every fact in support of the
judgment the trier of fact could have reasonably deduced from
the evidence. [Citation.] If the circumstances reasonably justify
the trier of fact’s findings, reversal of the judgment is not
warranted simply because the circumstances might also
reasonably be reconciled with a contrary finding.’ [Citation.] The
standard is the same whether the prosecution relies on direct or
circumstantial evidence.” (People v. Rivera, supra, 7 Cal.5th at
p. 331.)
While appellant correctly identifies the legal requirement
of sameness, he is mistaken about the facts of this case.
Enriquez testified a large number of Mexican Mafia members
14
were released from prison in the 1970s, engaged in drug
trafficking for a period of time, and were arrested and
imprisoned. Thus, the Mexican Mafia had a long history of street
crime. Appellant points out that Enriquez testified that after the
1970s parolees were re-incarcerated, the Mexican Mafia went
dormant until 1992, when the Mexican Mafia entered into an
agreement with street gangs to expand its power on the streets.
We question the relevancy of this dormancy, as it could occur in
any gang with a large number of imprisoned members.5
We will assume for the sake of argument that the Mexican
Mafia could not be considered a criminal street gang once it went
dormant on the streets, and the recommencement of criminal
activity on the street by the Mexican Mafia meant that a new
criminal street gang was formed. However, this does not assist
appellant.
Although Enriquez testified the Mexican Mafia was
dormant until 1992, Enriquez also testified he was released from
prison in 1988 as “a main Mexican Mafia Member.” As set forth
in more detail in the Background section above, Enriquez then
formed a crew, sought permission from the Mexican Mafia to
commit illegal activities, and then engaged in extortion and drug
5 Section 186.22, subdivision (f) does require a criminal
street gang to be an “ongoing organization, association or group”
but appellant quotes this phrase only as part of his summary of
the overall subdivision (f) definition of a criminal street gang. He
does not rely on it to show the significance of his dormancy
argument and does not offer any argument about the meaning of
the word “ongoing” in this context. There is no dispute that the
Mexican Mafia was an ongoing organization in prison during this
time.
15
dealing. In 1989, Enriquez learned Cynthia Galavon, a drug
distributor for his crew, had been stealing drugs. He ordered her
killed because she “violated the edict and disrespected the
Mexican Mafia.” Enriquez was also ordered to kill David
Gallegos, a Mexican Mafia member on its hit list. He did so with
assistance from his crew. Thus, viewing the evidence in the light
most favorable to the true finding, Enriquez’s testimony about his
own activities proved that the Mexican Mafia recommenced
criminal activity on the street in 1988. The predicate offenses of
murder do not pre-date the re-birth of the street Mexican Mafia;
they are a result of that re-birth.
To the extent appellant alternatively contends the Mexican
Mafia became a different gang as a result of the 1992 agreement
with Southern California street gangs, we do not agree. While
the Mexican Mafia may have worked through “street” gangs in
other instances, it did not lose its existing identity and did not
work through a “street” gang in this case. The People’s theory
was that the Mexican Mafia was itself a unitary criminal street
gang, and acted as such in the present case. As we have
discussed at some length, the People relied on predicate acts by
Mexican Mafia members; offered expert testimony that the
Mexican Mafia was an ongoing organization with a common
name and identifying symbols; proved that appellant, Rodriguez
and Garcia were Mexican Mafia members who personally
committed the charged extortion at the direction of and in
association with appellant, a founding member; and offered
expert testimony that the extortion benefited the Mexican Mafia.
16
C. The Proven Predicate Offenses No Longer Satisfy the
Requirements of Amended Section 186.22.
Section 186.22 requires proof of two or more predicate
offenses committed by the gang of which defendant is alleged to
be a member. (Id., subd. (e)(l).) At the time of trial, there was no
time limitation as to when a predicate offense must have
occurred. It is undisputed that the three predicate offenses
offered by the People to support the gang enhancement occurred
in 1992 or earlier. Assembly Bill No. 333 amended section 186.22
to provide that the last of the predicate offenses must have
occurred within three years of the alleged date of the commission
of the current offense. (§ 186.22, subd. (e)(1).) The current
offense was committed beginning in 2013 and so the predicate
offenses previously proven by the People no longer satisfy the
requirements of section 186.22.
Both parties agree this change to section 186.22 is
retroactive and applies to appellant’s case as his case is not yet
final on appeal. We agree as well. (In re Estrada (1965)
63 Cal.2d 740, 748 [statutory changes that reduce the
punishment for a crime apply retroactively to all judgments not
yet final on the statute’s effective date]; People v. Nasalga (1996)
12 Cal.4th 784, 792 [Estrada applies to penalty enhancements];
People v. Vinson (2011) 193 Cal.App.4th 1190, 1195–1196
[amendment increasing number of prior convictions for felony
theft sentencing retroactive; People v. Figueroa (1993) 20
Cal.App.4th 65, 69–71 [amendment raising threshold for drug
enhancement is retroactive].)
17
Appellant contends, without citation to legal authority, that
the entire matter must be dismissed. He is mistaken. The
enhancement may be retried. “When a statutory amendment
adds an additional element to an offense, the prosecution must be
afforded the opportunity to establish the additional element upon
remand. [Citation.] Such a retrial is not barred by the double
jeopardy clause or ex post facto principles because the [newly
added element] was not relevant to the [enhancement] at the
time of trial and accordingly, this question was never tried.”
(People v. Eagle (2016) 246 Cal.App.4th 275, 280.)
If the People elect not to retry the enhancement, or if the
enhancement is found not true, the parties may brief the issue of
the statute of limitations for the trial court. We cannot agree
with the People that appellant has forfeited this issue. He raised
this issue in his opening brief on appeal and noted that the trial
court had previously “acknowledged” that if the enhancement
were found not true, the underlying charge would have to be
dismissed for lack of jurisdiction because the three-year
limitations period for extortion would have expired The People
did not dispute this statement in any way in its original briefing.
In any event, the issue is not ripe for decision until the trial court
addresses upon retrial the sufficiency of the evidence in support
of the enhancement. The issue is not forfeited.6
6
We urge the parties to proceed as expeditiously as possible
in line with any remaining Covid restrictions and in light of
appellant’s very advanced age.
18
DISPOSITION
The true finding on the section 186.22 enhancement
allegation is reversed and the matter is remanded to permit the
People to re-try the allegation. If the People elect not to re-try
the allegation, or if the allegation is found not true, the trial court
shall decide whether the statute of limitations requires reversal
of the underlying extortion conviction. In all other respects, the
judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, J.
We concur:
GRIMES, Acting P. J.
WILEY, J.
19