California v. Bermudez
Annotate this CaseThe Court of Appeal consolidated two appeals of two jury trials for defendant Adolfo Rodriguez Bermudez. The first trial involved the possession of a concealed dirk. The second involved an assault with a deadly weapon with a vehicle done to benefit a gang. Defendant was sentenced to a 21-year four-month aggregate term. On appeal, defendant contended: (1) the statute defining a dirk (Pen. Code sec. 16470) was unconstitutionally vague; (2) the trial court erred in allowing two officers to testify to the legal definition of a dirk; (3) a gang expert provided improper opinion testimony that defendant committed a crime to benefit a gang; and (4) insufficient evidence established the existence of a criminal street gang under Penal Code section 186.22 because testimony concerning the predicate felonies was admitted in violation of California v. Sanchez, 63 Cal.4th 665 (2016). In supplemental briefing, defendant contended: (5) remand was required so the trial court could consider exercising its discretion under Senate Bill No. 1393; and (6) the imposition of fines and fees violated his right to due process and freedom from excessive fines under California v. Duenas, 30 Cal.App.5th 1157 (2019). Finally, in a petition for rehearing, defendant contended: (7) his one-year prior prison term enhancement should have been struck in light of Senate Bill No. 136. In the published portion of its opinion, the Court of Appeal held that the dirk statute was not unconstitutionally vague. Second, the Court concluded the knowledge element rendered the statute definite enough to provide a standard for police enforcement and ascertainment of guilt. Furthermore, the Court held that a gang expert’s testimony about gang enhancement predicate offenses did not violate Sanchez so long as the predicate offenses did not involve defendant or individuals involved in the defendant’s case. "Such predicate offenses are chapters in a gang’s biography and constitute historical background information, not case-specific information." The Court struck the one-year prior prison term enhancement and remanded to allow the trial court to consider exercising its discretion under SB 1393. During that remand, as the State conceded, defendant could request a hearing on his ability to pay. In all other respects, the Court affirmed.
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