People v. Delgado

Filed 2/10/22
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, B299482

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA470834)
v.

FROYLAN DELGADO,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Stephen A. Marcus, Judge. Affirmed in part;
reversed in part; and remanded with instructions.
Julie Caleca, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Julie A. Harris, Shezad H. Thakor, and John
Yang, Deputy Attorneys General, for Plaintiff and Respondent.

_________________
 Froylan Delgado appeals from a judgment entered after the
jury convicted him of shooting at an occupied vehicle, assault
with an assault weapon, and possession of a firearm by a felon.
The jury also found true the gang and firearm enhancements. On
appeal, Delgado contends his due process rights were violated
because the trial court instructed the jury with CALCRIM
No. 315 that an eyewitness’s degree of certainty can be
considered when evaluating the reliability of the witness’s
identification.1
We affirmed the judgment in People v. Delgado
(Feb. 3, 2021, B299482) [nonpub. opn.], holding that instruction
on an eyewitness’s degree of certainty was not error under People
v. Sánchez (2016) 63 Cal.4th 411, 462 (Sánchez). The Supreme
Court granted review and on August 25, 2021 transferred the
matter back to this court with directions to vacate our prior
opinion and reconsider the appeal in light of People v. Lemcke
(2021) 11 Cal.5th 664, 666 (Lemcke), in which the Supreme Court
found that CALCRIM No. 315 has the potential to mislead jurors

1 Delgado also argues the trial court abused its discretion by
declining to exercise its discretion to strike the firearm
enhancement under Penal Code section 12022.53, subdivision (c);
defense counsel rendered ineffective assistance of counsel in
failing to present any argument on Delgado’s behalf at the
sentencing hearing; and the trial court’s imposition of court
assessments and restitution fines violated Delgado’s due process
rights because the court did not conduct a hearing on his ability
to pay. We do not reach these issues because we reverse the gang
enhancements and remand for resentencing. Delgado will have
an opportunity at the resentencing hearing to address the
firearm enhancements and his ability to pay the fines and fees.
All further undesignated statutory references are to the Penal
Code.

2
by reinforcing a “common misconception . . . that an eyewitness
identification is more likely to be reliable where the witness has
expressed certainty.” However, considering the jury instructions
as a whole and the trial record, we conclude the inclusion of the
witness-certainty factor did not violate Delgado’s due process
rights.
Following the Supreme Court’s transfer to this court, the
Legislature enacted Assembly Bill No. 333 (2021-2022 Reg. Sess.)
(2021 Stats., ch. 699) (Assembly Bill 333), effective January 1,
2022, which made several modifications to the criminal street
gang enhancement statute (§ 186.22), including modification of
the definition of a “criminal street gang” in section 186.22,
subdivision (f), to require proof that members of a gang
“collectively engage in, or have engaged in, a pattern of criminal
gang activity.” We agree with Delgado that the requirement in
amended section 186.22, subdivision (f), that gang members
“collectively engage” in a pattern of criminal gang activity means
the People were required to prove that two or more gang
members committed each predicate offense, and here, there was
insufficient evidence that multiple Avenues gang members
committed the predicate offenses. We reject the People’s
contention that proof that individual gang members committed
the predicate offenses on separate occasions is sufficient to show
the gang members “collectively” engaged in a pattern of criminal
activity.
Delgado’s convictions of shooting at an occupied motor
vehicle, possession of a semiautomatic firearm by a felon, and
assault with an assault weapon, and the jury’s true findings on
the firearm enhancements are affirmed. We reverse the jury’s
true findings that Delgado committed the underlying offenses for
the benefit of a criminal street gang, and we remand to give the

3
People an opportunity to retry the gang enhancement and to
meet their burden of proof under Assembly Bill 333’s new
requirements. If the People elect not to try the gang
enhancement, Delgado is to be resentenced.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Evidence at Trial
1. The shooting
At approximately 1:20 a.m. on August 25, 2018 six Los
Angeles Police Department (LAPD) officers responded to a 911
call of shots fired in the area of Drew and Weldon Streets in
northeast Los Angeles, near 3405 Drew Street. The location was
at the heart of the territory claimed by the Avenues street gang
and the stronghold of the Drew Street clique within the Avenues
gang.
Upon arriving at the scene, the police officers detained
several known Avenues gang members. Gabriela Alonso, who
was an associate of the gang, was detained with her boyfriend
Juan Briseno, an Avenues gang member, as the two walked away
from the area near 3411 Drew Street. Police officers also
detained Avenues gang member Gonzalo Urieta, who was
running down Drew Street away from the scene, and Avenues
gang member Adrian DeJesus, who was holding his waistband
while walking away from 3411 Drew Street.
During a canvass of the area, Officer Tom Quino found
three spent .223 caliber shell casings in the walkway and street
in front of 3405 Drew Street. Officer Michael Marino discovered
a loaded semiautomatic firearm wrapped in a towel hidden
behind the fence at 3411 Drew Street. Daniel Rubin, a
criminalist with the LAPD firearm analysis unit, testified the

4
firearm had the characteristics of an assault weapon as defined
under California law because it was capable of accepting a
detachable magazine inserted into the firearm in a location other
than the pistol grip, and its barrel was covered. Through
laboratory testing, Rubin confirmed the recovered shell casings
had been fired from the firearm. No fingerprints were recovered
from the firearm.
On the morning of the shooting, Officer Marino and
Sergeant Nick Giordano were able to obtain and view
surveillance video from 3407 Drew Street. The video showed that
on August 25, 2018 at 1:16 a.m. a man in a white sleeveless shirt
emerged onto the sidewalk in front of 3405 Drew Street as a car
was driving down the street. A flash emanated from the man’s
position as the car passed him. The man then moved into the
street behind the car, and another flash appeared where the man
was standing. The 3407 Drew Street video was played for the
jury.2
The 3407 Drew Street video also showed a woman and a
man (later identified as Alonso and Briseno) stashing a towel-
wrapped object inside the fence at the location where Officer
Marino had recovered the assault weapon. Based on the video,
Alonso and Briseno were arrested. Briseno tested positive for
gunshot residue; Alonso’s gunshot residue test was negative.3

2 The defense introduced Officer Marino’s preliminary
hearing testimony that Marino, who had prior contacts with
Delgado, could not see sufficient detail in the 3507 Drew Street
video to identify the shooter.
3 LAPD criminalist Stacy Vanderschaaf testified an
individual may test positive for gunshot residue if he or she

5
The police were not able to identify the vehicle involved in the
shooting, and they could not determine how many occupants were
inside.

2. The 3405 Drew Street surveillance video and
identification of Delgado
As part of the police investigation into the shooting,
Sergeant Giordano contacted Justin Jacobo, who was believed to
have access to the video surveillance system for the building at
3405 Drew Street. Three days after the shooting, Sergeant
Giordano received an email from Jacobo containing a hyperlink to
a Web site containing the 3405 Drew Street video footage.
Sergeant Giordano watched the video that day and saw that it
captured the shooting, but he did not recognize the shooter. He
forwarded the video link to LAPD Officers Marino, Jeremy
Massey, and Daniel Kaminski, and to Detective Justin Fuller.
Officer Massey viewed the video on August 28 and
recognized Delgado as the shooter. Officer Massey, who was then
assigned to the LAPD’s gang enforcement detail for the northeast
division, had interacted with Delgado on five to 10 earlier
occasions, had filled out a field information card on him, and had
discussed Delgado’s street name and gang affiliation with him.
Asked by the prosecution, “How would you describe the quality of
that video, specifically in terms of being able to recognize
anybody depicted in the video,” Officer Massey testified, “I would
say it’s a very good quality camera and easy to identify people if
you knew who they were.” Officer Massey was not asked how
certain he was of his identification of Delgado. Officer Massey

handled the firearm, even without being the person who
discharged it.

6
took a photograph of a frame of the video on his computer that
depicted a bald person with Delgado’s general characteristics,
dressed in a white sleeveless shirt, walking with the firearm to
his left side. The photograph was admitted into evidence, and
Officer Massey identified Delgado in the courtroom as the man in
the photograph. Officer Massey testified the quality of the video
was superior to that of the photograph. However, the video was
not available at trial.
Officer Massey testified the video showed Delgado4 in a
white sleeveless shirt standing in the front courtyard of
3405 Drew Street with several other people. After looking up
Drew Street, Delgado walked into apartment 2 of the building,5
then emerged from the building carrying an object that appeared
to be a firearm. Delgado walked out to the sidewalk as a vehicle
traveling south on Drew Street came to a stop near Delgado’s
position. Delgado pointed the firearm at the vehicle and fired one
shot as the vehicle resumed traveling southbound. Delgado
walked into the street and fired another shot at the vehicle after
it passed. Delgado then walked back into apartment 2. Officer
Massey also testified the video showed Alonso emerging from the

4 Defense counsel objected to the prosecution posing
questions to Officer Massey about the video that referred to
Delgado without qualification, “as though that’s a foregone
conclusion, and this is not . . . a clear, accurate picture.” The trial
court ordered the prosecutor to formulate his questions using the
term “‘the person you’ve identified as Mr. Delgado,’” finding as to
Massey’s identification, “[W]hether he’s right or wrong is for the
jury to decide.”
5 Officer Massey inferred Delgado entered apartment 2 based
on the location where Delgado entered the building, although the
apartment doorways were not visible within the camera frame.

7
same area around apartment 2 one minute later carrying what
looked like a sheet wrapped around an object. Alonso walked
onto the sidewalk and headed north in the direction of 3407 Drew
Street.
Officer Kaminksi independently identified Delgado as the
shooter after viewing the 3405 Drew Street video. While
assigned to the northeast division gang detail, Officer Kaminski
encountered Delgado 30 to 50 times over an eight-year period
through “various stops, detentions, consensual encounters, and
through seeing him on patrol.” During patrols, he had seen
Delgado “almost daily” in the courtyard in front of 3405 Drew
Street, and they had multiple face-to-face encounters and
conversations. Officer Kaminski testified he was “absolutely” and
“100 percent” certain Delgado was the man he saw in the video.
Officer Kaminski testified the photograph admitted at trial was
of poorer quality than the video, and he could not identify
Delgado with 100 percent certainty from the photograph alone.
He stated he could not recognize any of Delgado’s tattoos shown
on the photograph, including one on the top of Delgado’s head.
However, he could clearly see Delgado’s face in the video.
Officer Jon Hunt also viewed the 3405 Drew Street video
and identified Delgado as the shooter. Officer Hunt testified he
was familiar with Delgado, having “seen him well over a dozen
times in the area of Drew Street,” and he had one documented
contact with Delgado. Officer Hunt was “very confident” Delgado
was the person he saw in the video.
After receiving the link to the surveillance video, Sergeant
Giordano called Jacobo to obtain an off-line copy. Jacobo agreed
to place the video on a flash drive and drop it off at the police
station. But Jacobo never delivered a copy, and the video
subsequently became unavailable on the website. On September

8
21, 2018 Sergeant Giordano and other police officers accessed the
video surveillance equipment at 3405 Drew Street, but the
footage from August 25 was no longer available because the
system had overwritten the recording data after a number of
days. Detective Fuller also attempted to retrieve the video from
the Web site operator, but he was informed the file had been
deleted by the user and “purged” from the system.

3. The search of 3405 Drew Street, apartment 2
On September 21, 2018 LAPD officers executed a search
warrant for apartment 2 at 3405 Drew Street. When the officers
arrived, Delgado was sitting outside of the building. During their
search, officers recovered a loaded handgun inside a closet, a box
of narcotics, men’s clothing, and a medical bracelet and recent
hospital paperwork bearing Delgado’s name.

4. The gang expert testimony
Officer Hunt, who had been assigned to the LAPD gang
enforcement detail for the northeast division for 18 months,
testified as the prosecution expert on the Avenues gang. Officer
Hunt stated that in order to maintain their territory, street gangs
often use violence to establish dominance over rival gangs and to
intimidate citizens from cooperating with law enforcement. A
rival gang’s intrusion into gang territory would constitute an
insult and challenge to the gang’s authority that could be met by
violence, including shootings and potentially murder.
Officer Hunt testified the Avenues gang has approximately
630 members, and Drew Street is one of the primary strongholds
of the gang, where members regularly congregate and socialize.
The Drew Street clique is a prominent sub-group within the
Avenues gang. The primary rivals of the Avenues gang are the

9
Highland Park gang and the Cypress Park gang. Asked whether
Avenues gang members “either individually or collectively
engaged in patterns of criminal conduct,” Officer Hunt answered
in the affirmative. The primary activities of the Avenues gang
included vandalism, battery, petty theft, drug possession and
sales, weapons violations, assault, murder, and attempted
murder.
Officer Hunt testified regarding two predicate offenses
committed by members of the Avenues gang. Shawn Webb was
convicted of assault with a firearm and shooting at an occupied
building in November 2017 (§§ 245, subd. (a)(2), 246). Officer
Hunt had spoken to Webb in the field and knew Webb to be a
member of the Avenues gang with the moniker “Solo.” Officer
Hunt was familiar with the facts of Webb’s conviction and
described the incident: “Shawn Webb was [the] driver of a
vehicle where there was another Avenues gang member
accompanying him, and they were . . . challenging potential rivals
in the Highland Park area . . . where [Webb] participated in
shooting at a pedestrian that was on the street and struck an
inhabited building as well.” Christian Erentreich, whom Officer
Hunt knew to be a member of the Avenues gang with the
moniker “Hoodlum,” was convicted in 2017 of possession of a
firearm by a person previously convicted of specified
misdemeanors (§ 29805). Officer Hunt testified Erentreich was
wanted by police and gave chase in his car when police officers
spotted him, and while officers were pursing him, “he threw a
loaded shotgun out the car window.” Certified copies of the
minute orders of Webb’s and Erentreich’s convictions were
admitted at trial.
Officer Hunt opined Delgado was a member of the Avenues
gang and the Drew Street clique, and he used the moniker

10
“Chuco.” Delgado had admitted he was a member of the gang,
had numerous Avenues gang-specific tattoos, associated with
other Avenues gang members, and frequented Avenues gang
locations, including Drew Street. Four other police officers
testified Delgado admitted to being an Avenues gang member.
In response to a hypothetical based on the facts of this case,
Officer Hunt opined the shooting was committed for the benefit of
and in association with the Avenues gang. Officer Hunt
explained that “walking into the middle of the street where there
are multiple apartments” to carry out a shooting with a
semiautomatic assault weapon “sends a very clear message to the
residents there that these gang members have access to high
powered weapons, . . . they’re willing to use it, and they’re willing
to shoot at rivals and perceived rivals, which allows them to
continue their criminal exploits.” Officer Hunt also testified the
hypothetical conduct was done in association with the gang
because other gang members were present and could act as
lookouts, intimidate witnesses, and hide the weapon. Officer
Hunt opined possession of a high-powered firearm would benefit
the gang because it would intimidate civilians by showing the
gang has armor-piercing weapons and make it less likely rivals
would “challenge that gang if [rivals] know that they’re equipped
with an assault type weapon that is capable [of] being fired from
a vast distance.”
Delgado did not testify or present evidence in his defense.
Neither side presented expert testimony on identification.

B. Closing Arguments
The prosecutor in his closing argument directed the jury to
“focus on who did it and how we can conclude that it was
[Delgado] only.” The prosecutor emphasized the officers who

11
identified Delgado from the 3405 Drew Street video testified the
video was clear, they made their identifications independently
from one another, and “all three recognize[d] from prior contact
it’s the same guy.” The prosecutor urged the jury to consider
together “the identification of the video, the fact [Delgado] is in
apartment number 2, the fact the shooter walked into apartment
number 2 and didn’t come out, the fact that the gun came out of
apartment number 2, the fact that the defendant was dressed
uniquely compared to the other people other gang members who
were out there that night . . . . Everything points to the
defendant Delgado and his identification.”
In his closing argument, defense counsel did not directly
address the officers’ certainty as to their identifications. After
noting that CALCRIM No. 315 “gives you some guidelines as to
how you should try to evaluate eyewitness testimony,” defense
counsel argued the case was “totally different” from a typical
eyewitness identification because there was no live witness to the
shooting. Further, he argued the jury needed to consider the “the
grainy video of the surveillance tape,” which the police had
admitted was insufficient to identify the shooter. In his rebuttal,
the prosecutor argued defense counsel was confusing the video
from 3407 Drew Street shown at trial (which did not clearly show
Delgado) with the unavailable video from 3405 Drew Street that
was the subject of the officers’ testimony: “It wasn’t grainy, it
was not the photograph[] [of the video], and so to be clear when
we’re talking about the identification of this defendant, it’s not
from the video of the shooting . . . .” The prosecutor added, “If
you choose not to believe the police officers, that’s up to you to
decide.”

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C. The Verdict and Sentence
The jury found Delgado guilty of shooting at an occupied
motor vehicle (§ 246; count 2) and found true the allegations
Delgado personally used and intentionally discharged a firearm
in the commission of the shooting (§ 12022.53, subds. (b) & (c))
and the shooting was committed for the benefit of, at the
direction of, or in association with a criminal street gang
(§ 186.22, subd. (b)(4)). The jury also found Delgado guilty of
possession of a semiautomatic firearm by a felon (§ 29800,
subd. (a)(1); count 3)6 and assault with an assault weapon (§ 245,
subd. (a)(3); count 5). The jury found the firearm enhancement
true on count 5 (§ 12022.5, subd. (b)) and the gang enhancement
under section 186.22, subdivision (b)(1)(A), true as to counts 3
and 5.7
The trial court sentenced Delgado on June 13, 2019. On
count 2, the court imposed an indeterminate term of 35 years to
life comprised of 15 years to life for shooting at an occupied
vehicle based on the gang enhancement (§ 186.22, subd. (b)(4)),
plus 20 years for the firearm enhancement under
section 12022.53, subdivision (c). The court imposed and stayed a
10-year term for the firearm enhancement under section
12022.53, subdivision (b). On count 3 for possession of a firearm
by a felon, the court imposed an additional seven years (the
middle term of three years plus four years for the gang
enhancement (§ 186.22, subd. (b)(1)(A))) to run concurrently with

6 The parties stipulated that in March 2000 Delgado suffered
a prior felony conviction.
7 The jury acquitted Delgado on count 4 for possession of
semiautomatic firearm by a felon (§ 29800, subd. (a)(1)) with
respect to the firearm recovered from 3405 Drew Street.

13
the sentence on count 2. On count 5 for assault with an assault
weapon, the court imposed and stayed (under § 654) an
additional 19 years (the middle term of eight years plus five years
for the gang enhancement (§ 186.22, subd. (b)(1)(B)) and six years
for the firearm enhancement).8
Delgado timely appealed.

DISCUSSION

A. Instruction with CALCRIM No. 315 Did Not Violate
Delgado’s Due Process Rights
Delgado contends the trial court violated his due process
rights in instructing the jury with CALCRIM No. 315, which
advised the jury that in evaluating an eyewitness identification,
the jurors should consider the following question, among other
factors: “How certain was the witness when he or she made an
identification.”9 Delgado argues this instruction on witness

8 The abstract of judgment was corrected on May 14, 2020 in
response to Delgado’s request because the reference in the prior
abstract on count 5 to a violation of section 245, subdivision (c),
for assault with a deadly weapon on a peace officer was a clerical
mistake.
9 The trial court instructed the jury with CALCRIM No. 315,
as modified: “You have heard eyewitness testimony identifying
the defendant. As with any other witness, you must decide
whether an eyewitness gave truthful and accurate testimony. In
evaluating identification testimony, consider the following
questions: Did the witness know or have contact with the
defendant before the event? How well could the witness see the
perpetrator? What were the circumstances affecting the
witness’s ability to observe, such as lighting, weather conditions,

14
certainty was erroneous “given the weight of scientific research
rejecting certainty as evidence of accuracy.” In our earlier
opinion, we rejected Delgado’s argument because the Supreme
Court expressly approved the use of CALJIC No. 2.92, the
predecessor to CALCRIM No. 315, against a similar due process
challenge based on the inclusion of witness certainty as a factor
for consideration.10 (See Sánchez, supra, 63 Cal.4th at p. 462 [no

obstructions, distance and duration of observation, and by
looking at a video of a surveillance camera? How closely was the
witness paying attention? Was the witness under stress when he
or she made the observation? Did the witness give a description
and how does that description compare to the defendant? How
much time passed between the event and the time when the
witness identified the defendant? Was the witness asked to pick
the perpetrator out of a group? Did the witness ever change his
or her mind about the identification? How certain was the
witness when he or she made an identification? Are the witness
and the defendant of different races? Was the witness able to
identify other participants in the crime? Was the witness able to
identify the defendant in a photographic or physical lineup?
Were there any other circumstances affecting the witness’s
ability to make an accurate identification?”
10 In their respondent’s brief, the People contended Delgado
forfeited his claim of instructional error because defense counsel
did not object to the trial court’s instruction with CALCRIM
No. 315. But we review any claim of instructional error that
affects a defendant’s substantial rights whether or not trial
counsel objected. (§ 1259 [“The appellate court may also review
any instruction given . . . even though no objection was made
thereto in the lower court, if the substantial rights of the
defendant were affected thereby.”]; People v. Burton (2018)
29 Cal.App.5th 917, 923 [“‘Failure to object to instructional error
forfeits the issue on appeal unless the error affects defendant’s

15
error or prejudice in instructing jury with CALJIC No. 2.92 on
witness certainty as a factor relevant to the accuracy of witness’s
identification]; see also People v. Rodriguez (2019) 40 Cal.App.5th
194, 199-200 [Sánchez “reiterated three decades of California
Supreme Court precedent that a trial court may instruct the jury
to consider eyewitness certainty.”].)11 On April 21, 2021 the
Supreme Court granted review.
The Supreme Court issued its opinion in Lemcke on
May 21, 2021, and on August 25 it transferred Delgado’s appeal
back to this court with instructions to vacate our earlier opinion
and reconsider the issue in light of Lemcke. We do so now and

substantial rights.’”]; People v. Bedolla (2018) 28 Cal.App.5th
535, 544 [same].) And “[w]e can only determine if [a]
defendant[’s] substantial rights were affected by deciding
whether the instruction was given in error and, if so, whether the
error was prejudicial.” (People v. Medina (2019) 33 Cal.App.5th
146, 154, fn. 7.) That is, if Delgado’s claim has merit, it has not
been forfeited. We therefore necessarily review the merits of
Delgado’s contention the instruction violated his constitutional
rights. Because we find no forfeiture, we do not reach Delgado’s
argument his attorney’s failure to object constituted ineffective
assistance of counsel.
11 The Supreme Court in Sánchez, supra, 63 Cal.4th at page
462 indicated a willingness to reexamine the witness-certainty
factor but found “[a]ny reexamination of our previous holdings in
light of developments in other jurisdictions should await a case
involving only certain identifications.” Justice Liu stated in a
concurrence, “In light of developments in scientific research and
recent case law, there is a substantial question whether it is
proper for trial courts to instruct that witness certainty is a factor
bearing on the accuracy of an identification that juries should
consider. [¶] The sooner we reexamine this issue, the better.”
(Id. at p. 498 (conc. opn. of Liu, J.).)

16
conclude instruction with CALCRIM No. 315 did not violate
Delgado’s due process rights.12

1. The Supreme Court’s decision in Lemcke
The Supreme Court in Lemcke, supra, 11 Cal.5th 644
rejected a due process challenge to CALCRIM No. 315, holding
that “[w]hen considered in the context of the trial record as a
whole, listing the witness’s level of certainty as one of 15
factors[13] the jury should consider when evaluating identification
testimony did not render [the defendant’s] trial fundamentally
unfair.” However, the Supreme Court observed that “[c]ontrary
to widespread lay belief, there is now near unanimity in the
empirical research that ‘eyewitness confidence is generally an
unreliable indicator of accuracy.’” (Id. at pp. 646-647.) The court
explained, “As currently worded, CALCRIM No. 315 does nothing
to disabuse jurors of that common misconception, but rather
tends to reinforce it by implying that an identification is more
likely to be reliable when the witness has expressed certainty.
This is especially problematic because many studies have also
shown eyewitness confidence is the single most influential factor

12 A claim that a jury instruction violates due process
“involves the determination of applicable legal principles” that we
review de novo. (People v. Alvarez (1996) 14 Cal.4th 155, 218;
accord, People v. Posey (2004) 32 Cal.4th 193, 218 [“The
independent or de novo standard of review is applicable in
assessing whether instructions correctly state the law.”].)
13 CALCRIM No. 315 lists 15 factors for consideration of
eyewitness credibility. The instruction given in this case
included the 14 factors noted above, omitting the question, “How
much time passed between the event and the time when the
witness identified the defendant?”

17
in juror determinations regarding the accuracy of an
identification.” (Id. at p. 647.) The court referred consideration
of the instruction to the Judicial Council and its Advisory
Committee on Criminal Jury Instructions “to evaluate whether or
how the instruction might be modified to avoid juror confusion
regarding the correlation between certainty and accuracy.”
(Ibid.) The court also directed that until the Judicial Council
completes its review, “trial courts should omit the certainty factor
from CALCRIM No. 315 unless the defendant requests
otherwise.” (Id. at p. 648.)
In Lemcke, Desirae Lemcke and an accomplice, Charles
Rudd, were charged with the robbery of Monica Campusano.
After a woman in the hallway of a motel distracted Campusano, a
man struck Campusano in the face and pulled her into her motel
room. The man punched and kicked Campusano repeatedly,
causing her to lose consciousness. When she regained
consciousness, Campusano was alone in the room, and her purse
and phone were gone. (Lemcke, supra, 11 Cal.5th at p. 648.)
Lemcke and Rudd were identified as suspects, and the
responding officer created a six-pack photographic lineup with a
photograph of Rudd and showed it to Campusano, who was
“‘under anesthesia’” at the hospital. (Ibid.) Campusano pointed
to Rudd’s photograph and “stated that she recognized his nose,
mouth and jaw area.” (Id. at pp. 648-649.) Approximately three
months later Campusano was shown a photographic lineup with
a photograph of Lemcke, and Campusano identified Lemcke as
the woman in the motel. She also identified the photograph of
Rudd as the one the first officer had shown her at the hospital.
(Id. at p. 649.) Campusano stated, pointing to Rudd’s
photograph, “‘for sure it was [him].’” (Ibid.)

18
 Campusano identified Rudd at trial, stating, “‘I remember
his face, his tattoo and his look, like he was looking with anger.’”
(Lemcke, supra, 11 Cal.5th at p. 650.) The defense called an
eyewitness identification expert, who opined as to witness
certainty that “current research suggested that ‘confidence’ can
be ‘useful’ when there has been a ‘fair lineup soon after the
event.’ However, ‘once outside that window and you go forward,
that moment in time when [the witness] made an [identification],
once you get past that, confidence is not related to accuracy in
any regard.’” (Id. at p. 651.) The trial court denied Rudd’s
request to strike the certainty factor from CALCRIM No. 315 in
instructing the jury. (Id. at p. 652.) The prosecutor in closing
argument directed the jury to CALCRIM No. 315 and noted
Campusano “‘was certain the entire time.’” (Ibid.)
Reviewing the instruction on certainty in the context of the
instructions as a whole and the trial record, the Supreme Court
concluded Rudd’s trial was not “‘“so infuse[d] . . . with unfairness
as to deny due process of law.”’” (Lemcke, supra, 11 Cal.5th at
p. 655.) The Supreme Court rejected Rudd’s contention that
CALCRIM No. 315 lowered the prosecutor’s burden of proof,
citing the finding in Sánchez, supra, 63 Cal.4th at pages 461
through 463 that “the instruction does not direct the jury that
‘certainty equals accuracy.’” (Lemcke, at p. 647.) The court
observed that “the wording of the instruction might cause some
jurors to infer that certainty is generally correlative of accuracy,”
but it noted Rudd was allowed to present expert witness
testimony to rebut that inference, and the expert opined “the only
time certainty may be useful in assessing accuracy is when the
identification is made in close temporal proximity to the event
and law enforcement has utilized nonsuggestive procedures.” (Id.
at pp. 657-658.) Further, the jury was instructed as to witness

19
testimony that “‘[p]eople sometimes honestly . . . make mistakes
about what they remember’” and that the jurors were responsible
for “‘judg[ing] the credibility or believability of the witnesses.’”
(Id. at p. 658.) In addition, the jury was instructed that the
prosecution had the burden of proving all elements of the crime,
which the instruction on eyewitness identity reiterated, stating,
“‘The People have the burden of proving beyond a reasonable
doubt that it was the defendant who committed the crime. If the
People have not met this burden, you must find the defendant not
guilty.’” (Ibid.)
The Supreme Court also rejected Rudd’s argument that the
certainty instruction violated his due process rights by denying
him a meaningful opportunity to present a complete defense.
(Lemcke, supra, 11 Cal.5th at p. 660.) The court pointed both to
the expert testimony and defense counsel’s cross-examination of
the investigating officers that revealed problems with
Campusano’s identification, including that her first identification
was while she was under anesthesia in the hospital and the
second identification used the same photograph. (Ibid.)
Following Lemcke, the Supreme Court again considered a
challenge to the witness-certainty factor in CALJIC No. 2.9214 on
direct appeal in a capital murder case in People v. Wright (2021)
12 Cal.5th 419 (Wright). William Wright was charged with
multiple crimes in connection with two drug deals, one in which
Wright stabbed Douglas Priest and robbed and shot Julius
Martin (id. at p. 425), and second in which Wright killed two
drug dealers and attempted to kill a third, Mario Ralph (id. at

14 In Lemcke, supra, 11 Cal.5th at page 656, footnote 6, the
Supreme Court observed there is no material distinction between
CALCRIM No. 315 and CALJIC No. 2.92.

20
p. 426). As to the first incident, Priest and Martin identified
Wright about a month after the incident when they saw Wright’s
photograph on the television news in connection with another
crime. (Ibid.) Priest and Martin later identified Wright in a live
lineup and at the preliminary hearing; Priest also identified
Wright at trial. (Ibid.) As to the second incident, while Ralph
was in the hospital recovering, he identified Wright from a
photograph he saw in the newspaper, and Ralph later identified
Wright in photographic and live lineups, at the preliminary
hearing, and at trial. (Id. at pp. 427-428.) At least two of the
witnesses knew Wright before the incident. (Id. at pp. 425-427.)
Affirming Wright’s conviction of first degree murder,
attempted murder, and robbery, the Supreme Court held the trial
court’s instruction with CALJIC No. 2.92 did not violate Wright’s
due process rights. (Wright, supra, 12 Cal.5th at p. 453.) The
court explained, “Although the defense below did not present an
eyewitness identification expert as had occurred in Lemcke,
defendant’s primary trial strategy was to discredit Ralph, Priest,
and Martin, and to imply that the eyewitnesses were testifying
falsely. At no point did defendant argue that the witnesses
mistook his identity. This was in contrast to Lemcke, where the
defense strategy focused on questioning the victim’s identification
of the defendant. [Citation.] The instant case involved the
identification of defendant by multiple witnesses, and, unlike in
Lemcke, at least two of the witnesses had known defendant in
some capacity prior to the attack.” (Wright, at p. 453.) The court
further observed the trial court properly instructed the jury how
to evaluate evidence and instructed the jury on the believability
of a witness. The court concluded, “When considered ‘“in the
context of the instructions as a whole and the trial record”’

21
[citation], the trial court’s use of CALJIC No. 2.92 did not violate
defendant’s due process rights.” (Ibid.)

2. Inclusion of the witness certainty factor did not
violate Delgado’s due process rights in light of the jury
instructions and record as a whole
Delgado argues the jury instruction on witness certainty
was “especially damaging” in this case because “other than the
officers’ identifications from the unavailable surveillance
footage,” there was no other evidence Delgado was the shooter.
As discussed, Officer Kaminski testified he was “absolutely” and
“100 percent” certain Delgado was the man he saw in the video,
and Officer Hunt testified he was “very confident” in his
identification.15 However, the officers’ certainty in their
identifications was not substantially at issue. Several other
factors identified in CALCRIM No. 315 were relevant to the jury’s
determination of the reliability of the officer’s identification. In
addition, there was other evidence implicating Delgado.
Most significantly, the jury was instructed that in
evaluating identification testimony it should consider, “Did the
witness know or have contact with the defendant before the
event?” Officers Massey, Kaminski, and Hunt all testified they
knew Delgado well, having had contact with him numerous
times—Officer Kaminski encountered Delgado 30 to 50 times
over an eight-year period through detentions, consensual
encounters, and patrols; Officer Massey had previously interacted
with Delgado on five to 10 occasions; and Officer Hunt had seen
Delgado over a dozen times in the area. This is in stark contrast

15 Officer Massey did not express his level of certainty in his
identification.

22
to Lemcke, supra, 11 Cal.5th at page 649, where Campusano did
not know Lemcke or Rudd prior to the attack. Further, unlike in
Lemcke in which only Campusano identified the defendant, the
three officers independently identified Delgado, and the jury was
therefore unlikely to have placed much weight, if any, on each
officer’s degree of confidence in his identification. (See Wright,
supra, 12 Cal.5th at p. 453.)
The jury was also instructed to consider, “How well could
the witness[es] see the perpetrator?” and “What were the
circumstances affecting the witness’s ability to observe, such as
lighting, weather conditions, obstructions, distance and duration
of observation, and by looking at a video of a surveillance
camera?” Officer Massey testified the quality of the 3405 Drew
Street video was superior to the photograph Massey took of the
video from his computer screen, and Officer Kaminski explained
that although he could not identify Delgado from the photograph
alone, Delgado’s face was clearly visible in the video. In his cross-
examination and closing argument defense counsel rigorously
challenged both the quality of the video and the officers’ ability to
perceive Delgado, but defense counsel did not challenge the
officers’ attested certainty in their identifications. (See Wright,
supra, 12 Cal.5th at p. 453 [“[D]efendant’s primary trial strategy
was to discredit Ralph, Priest, and Martin, and to imply that the
eyewitnesses were testifying falsely. At no point did defendant
argue that the witnesses mistook his identity.”].)
Moreover, there was substantial circumstantial evidence of
Delgado’s identity as the shooter separate from the officers’
identifications. Officer Massey testified the video showed the
man he identified as Delgado in a white sleeveless shirt standing
in the front courtyard of 3405 Drew Street, entering into
apartment 2, emerging with a firearm, and then firing at the

23
passing vehicle. This testimony was corroborated by Massey’s
photograph of the video showing a bald man of Delgado’s general
description in a sleeveless white shirt and the video of the
shooting from 3407 Drew Street. And when the police executed
the search warrant for apartment 2 at 3405 Drew Street a week
after the incident, they found Delgado sitting outside of the
building, and they recovered items bearing Delgado’s name in the
apartment. In his closing argument, the prosecutor argued this
evidence was sufficient even absent the identifications of
Delgado, and he reminded the jury, “If you choose not to believe
the police officers, that’s up to you to decide.”
Under these circumstances, “‘“in the context of the trial
record as a whole,”’” the trial court’s inclusion of a witness’s
degree of certainty in an identification among the factors the jury
could consider when evaluating the identification testimony “did
not render [the] trial fundamentally unfair” and did not violate
Delgado’s due process rights. (Lemcke, supra, 11 Cal.5th at
p. 646; accord Wright, supra, 12 Cal.5th at p. 453.)

B. Assembly Bill 333 Requires Reversal of the Gang
Enhancements
1. Assembly Bill 333’s amendments to section 186.22
Section 186.22 provides for enhanced punishment when a
defendant is convicted of an enumerated felony committed “for
the benefit of, at the direction of, or in association with a criminal
street gang, with the specific intent to promote, further, or assist
in any criminal conduct by gang members.” (§ 186.22,
subd. (b)(1).) Effective January 1, 2022, Assembly Bill 333 made
significant modifications to the requirements for proving a
criminal street gang enhancement. As relevant here, a “‘criminal
street gang’” was formerly defined in section 186.22,

24
subdivision (f), as “any ongoing organization, association or group
of three or more persons, whether formal or informal, having as
one of its primary activities the commission of one or more of acts
enumerated in [section 186.22, subdivision (e)(1)-(25) and (31)-
(33)], having a common name or common identifying sign or
symbol, and whose members individually or collectively engage
in, or have engaged in, a pattern of criminal gang activity.”
Subdivision (f) now defines a criminal street gang as “an ongoing,
organized association or group of three or more persons, whether
formal or informal,” and requires that members of the gang
“collectively engage in, or have engaged in a pattern of criminal
gang activity” (rather than “individually or collectively,” under
the previous law). (Italics added.)
Assembly Bill 333 also modified the definition of “‘pattern
of criminal gang activity’” in section 186.22, subdivision (e).
Formerly, the law required proof of two or more predicate
offenses enumerated in that subdivision, “provided at least one of
these offenses occurred after the effective date of this chapter and
the last of those offenses occurred within three years after a prior
offense, and the offenses were committed on separate occasions,
or by two or more persons.” As amended, subdivision (e)(1) now
requires proof that “at least one of these offenses occurred after
the effective date of this chapter, and the last of those offenses
occurred within three years of the prior offense and within three
years of the date the current offense is alleged to have been
committed, the offenses were committed on separate occasions or
by two or more members, the offenses commonly benefited a
criminal street gang, and the common benefit of the offense is

25
more than reputational.”16 (§ 186.22, subd (e)(1).) Further, “[t]he
currently charged offense shall not be used to establish the
pattern of criminal gang activity.” (§ 186.22, subd. (e)(2).) New
section 186.22, subdivision (g), provides, “As used in this chapter,
to benefit, promote, further, or assist means to provide a common
benefit to members of a gang where the common benefit is more
than reputational. Examples of a common benefit that are more
than reputational may include, but are not limited to, financial
gain or motivation, retaliation, targeting a perceived or actual
gang rival, or intimidation or silencing of a potential current or
previous witness or informant.”
In addition to the definitional changes, Assembly Bill 333
added section 1109, which requires, if requested by the
defendant, that trial of a gang enhancement charged under
section 186.22, subdivision (b), be bifurcated from and follow trial
of the underlying offenses. (§ 1109, subd. (a); Stats. 2021,
ch. 699, § 5, pp. 11-12.) The bill also amends section 186.22,
subdivision (b)(3), effective January 1, 2023, to provide that the
sentencing court “shall order the imposition of the middle term of
the sentence enhancement, unless there are circumstances in
aggravation or mitigation” (Stats. 2021, ch. 699, § 4, p. 10),
whereas the existing law provides the court “shall select the

16 Section 186.22, subdivision (e)(1), was also amended to
limit the predicate offenses that can be used to establish a
pattern of criminal gang activity, removing vandalism, looting,
and a number of fraud-related offenses. Section 186.22,
subdivision (f), which formerly referred to “criminal acts
enumerated in paragraph (1) to (25), inclusive, or (31) to (33),
inclusive, of subdivision (e)” now simply refers to “the criminal
acts enumerated in subdivision (e).”

26
sentence enhancement that, in the court’s discretion, best serves
the interests of justice. . . .” (§ 186.22, subd. (b)(1)(C)(3).)
Delgado contends, the People concede, and we agree
Assembly Bill 333’s amendments to section 186.22 that became
effective January 1, 2022 apply retroactively to Delgado’s
conviction under the principles enunciated in In re Estrada
(1965) 63 Cal.2d 740. In Estrada, the Supreme Court held that
statutory amendments that reduce the punishment for an offense
apply retroactively to a defendant whose judgment is not yet final
absent a contrary legislative intent.17 (Id. at p. 745; see People v.
Superior Court (Lara) (2018) 4 Cal.5th 299 [discussing Estrada
and its progeny].) Although the amendments effective in 2022 do
not alter the punishment imposed for a gang enhancement,
Estrada retroactivity applies because the amendments increase
the threshold for imposition of the enhancement. (People v. Lopez
(2021) 73 Cal.App.5th 327, 344 (Lopez) [“As Assembly Bill 333
increases the threshold for conviction of the section 186.22
offense and the imposition of the enhancement, we agree with
[defendant] and the People that [defendant] is entitled to the
benefit of this change in the law.”]; see People v. Nasalga (1996)
12 Cal.4th 784, 792 [“The rule in Estrada has been applied to

17 The amendment to section 186.22, subdivision (b)(3),
constraining the trial court’s discretion to impose the upper (or
lower) term of a gang enhancement does not take effect until
January 1, 2023. If the People elect to retry the gang
enhancements and the jury finds they are true, the law in effect
at the time of sentencing would apply to Delgado’s resentencing;
however, the trial court may consider that if Delgado again
appeals, the amendment to subdivision (b)(3) would apply if
Delgado’s judgment of conviction is not final as of January 1,
2023.

27
statutes governing penalty enhancements, as well as to statutes
governing substantive offenses.”]; Tapia v. Superior Court (1991)
53 Cal.3d 282, 301 [statutory amendments that “redefine, to the
benefit of defendants, conduct subject to criminal sanctions”
apply to cases pending on appeal]; People v. Millan (2018)
20 Cal.App.5th 450, 455-456 [amendment narrowing list of
convictions qualifying for imposition of enhancement applies
retroactively].)

2. We cannot conclude beyond a reasonable doubt the
jury based its true finding on the gang enhancement
on a finding members of the Avenues gang collectively
engaged in a pattern of criminal activity
Delgado contends that in light of the amendments to
section 186.22, the gang enhancements must be reversed because
the trial court erred in instructing the jury under former
subdivision (f) that it could find the gang enhancements true if
the People proved that members of the Avenues gang, “whether
acting alone or together, engage in or have engaged in a pattern
of criminal gang activity.” Delgado argues amended subdivision
(f)’s requirement that gang members “collectively engage” in a
pattern of criminal gang activity means the People were required
to prove that two or more gang members committed each
predicate offense in concert, and here, no evidence was presented
that multiple Avenues gang members committed the predicate
offenses. The People contend that under subdivision (f), proof
that individual gang members committed the predicate offenses
on separate occasions is sufficient to show the gang members
“collectively” engaged in a pattern of criminal activity, and
therefore reversal is not required because the People presented
evidence that two different Avenues gang members committed

28
the predicate offenses on separate occasions. Delgado has the
better argument.
We review questions of statutory construction de novo.
(People v. Lewis (2021) 11 Cal.5th 952, 961; California Building
Industry Assn. v. State Water Resources Control Bd. (2018)
4 Cal.5th 1032, 1041.) “‘“‘“As in any case involving statutory
interpretation, our fundamental task here is to determine the
Legislature’s intent so as to effectuate the law’s purpose.
[Citation.] We begin by examining the statute’s words, giving
them a plain and commonsense meaning.”’”’” (Lewis, at p. 961;
accord, People v. Gonzalez (2017) 2 Cal.5th 1138, 1141.) “‘“[W]e
look to ‘the entire substance of the statute . . . in order to
determine the scope and purpose of the provision . . . [Citation.]’
[Citation.] That is, we construe the words in question ‘“in
context, keeping in mind the nature and obvious purpose of the
statute. . . .” [Citation.]’ [Citation.] We must harmonize ‘the
various parts of a statutory enactment . . . by considering the
particular clause or section in the context of the statutory
framework as a whole.’”’” (Lewis, at p. 961.) “‘If the statutory
language permits more than one reasonable interpretation,
courts may consider other aids, such as the statute’s purpose,
legislative history, and public policy.’” (Mendoza v. Fonseca
McElroy Grinding Co., Inc. (2021) 11 Cal.5th 1118, 1125; accord,
People v. Superior Court (Arnold) (2021) 59 Cal.App.5th 923,
931.)
As a threshold matter, we read the term “collectively” in a
commonsense manner to mean what it says—committed by more
than one person, and not, as argued by the People, individually
but on a different day. Our reading is consistent with the Senate
Rules Committee’s analysis of Assembly Bill 333, which described
the amendment to section 186.22, subdivision (f), as requiring

29
“that engagement in a pattern of criminal activity must be done
by members collectively, not individually.” (Sen. Rules Com., Off.
of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 333
(2021-2022 Reg. Sess.) as amended July 13, 2021, p. 4.) Further,
both before and after amendment, the definition of a “pattern of
criminal gang activity” in section 186.22, subdivision (e) (now
subdivision (e)(1)), requires the commission of two predicate
offenses that “were committed on separate occasions or by two or
more members.” Thus, the prosecution could meet this
requirement by proving two gang members individually
committed the predicate offenses on two separate occasions or
two gang members collectively committed two predicate offenses
on the same date. Under the People’s interpretation of the
change to subdivision (f), removal of the word “individually”
simply means it is no longer sufficient for a single individual to
commit both predicate offenses on different days, but rather, a
different individual must commit each offense. Such a minimal
change to the statute is inconsistent with the Legislature’s intent
to significantly limit the scope of the gang enhancement.
As the Senate Committee on Appropriations bill analysis
described Assembly Bill 333, the amendment was designed to
“narrow the conduct that is prosecutable, and lead[s] to enhanced
sentences, as criminal street gang activity . . . .” (Sen. Com. on
Appropriations, Analysis of Assem. Bill No. 333 (2021-2022 Reg.
Sess.) as amended July 13, 2021, p. 1.) Section 2 of the
legislation likewise makes clear the Legislature’s intent to
dramatically limit the scope of the gang enhancement because of
its criminalization of “entire neighborhoods historically impacted
by poverty, racial inequality, and mass incarceration,”
disproportionate impact on people of color, and legitimization of
severe punishment. (2021 Stats., ch. 699, § 2, subds. (a), (d)(1) &

30
(2), (i), pp. 2-4.) Reading the amendment to section 186.22,
subdivision (f), to limit application of the gang enhancement to
situations where individual gang members commit the predicate
offenses on separate occasions would do little to further this
legislative purpose.
Our colleagues in Division Eight recently reached a similar
conclusion as to the interpretation of amended section 186.22,
subdivision (f), in Lopez, supra, 73 Cal.App.5th at pages 344 to
345, observing that where the People had introduced evidence as
to the predicate offenses that one gang member committed two
murders and another gang member committed a carjacking and
robbery, “The evidence that these gang members individually
engaged in a pattern of criminal gang activity was sufficient at
the time of trial to meet the requirements of section 186.22, but
when it becomes effective, Assembly Bill 333 will require the
prosecution to prove collective, not merely individual,
engagement in a pattern of criminal gang activity.” Although the
court reversed the gang enhancement based on Assembly Bill
333’s modifications to section 186, subdivision (e)(1), and new
subdivision (g), the court nonetheless found “[n]o evidence was
introduced at trial to establish that the crimes committed by [the
gang members] constitute collective criminal activity by the 18th
Street gang.” (Lopez, at p. 345.)
The People contend that even though the trial court
instructed the jury that it could find the gang enhancements true
based on individual or collective gang activity, the instructional
error was harmless beyond a reasonable doubt under Chapman v.
California (1967) 386 U.S. 18, 24. Where a trial court instructs
the jury on two legal theories, one of which is legally erroneous—
here, that the jury could find the gang enhancements true based
on a finding gang members individually engaged in a pattern of

31
criminal gang activity—“[t]he reviewing court must reverse the
conviction unless, after examining the entire cause, including the
evidence, and considering all relevant circumstances, it
determines the error was harmless beyond a reasonable doubt.”
(People v. Aledamat (2019) 8 Cal.5th 1, 13 [erroneous instruction
that jury could consider a box cutter an inherently deadly weapon
constituted harmless error because no reasonable jury would
have failed to find defendant used the box cutter in a deadly
manner]; People v. Chiu (2014) 59 Cal.4th 155, 167 [error in
instructing jury on first degree murder was not harmless where
record “show[ed] that the jury may have based its verdict of first
degree premeditated murder on the [now erroneous] natural and
probable consequences theory,” and thus, on appeal the court
could not “conclude beyond a reasonable doubt that the jury
based its [first degree murder] verdict on the legally valid theory
that defendant directly aided and abetted the murder”]; see
Chapman v. California, supra, 386 U.S. at p. 24.)
We cannot conclude beyond a reasonable doubt that the
jury imposed the gang enhancements on a now legally-valid
ground under Assembly Bill 333’s amendments. The
prosecution’s gang expert, Officer Hunt, was asked only whether
Avenues gang members “either individually or collectively
engaged in patterns of criminal conduct,” to which he responded,
“They have.” Officer Hunt testified as to one of the predicate
offenses that Avenues gang member Erentreich was convicted in
2017 of possession of a firearm based on his throwing a loaded
shotgun out of his car window while fleeing police. Officer Hunt
did not testify that any other gang member was involved in the

32
crime, nor does the minute order of Erentreich’s conviction show
that other gang members were involved in the crime.18
Accordingly, we reverse the true findings on the gang
enhancement. We agree with the People, however, that the
proper remedy is to remand to give the prosecution an
opportunity to retry the gang enhancement under current law.
(See Lopez, supra, 73 Cal.App.5th at p. 346 [vacating gang
enhancements in light of Assembly Bill 333 and remanding for
limited retrial]; People v. Figueroa (1993) 20 Cal.App.4th 65, 71-
72, fn. 2 [remand appropriate to allow prosecution to establish
additional element retroactively added by statutory amendment];
cf. People v. Nasalga, supra, 12 Cal.4th at p. 798 [declining to
remand for retrial of amount of property loss for purposes of
determining applicable sentence under amendment to sentencing
law because the People proved amount of loss at prior trial,
leaving nothing to retry].)

DISPOSITION

Delgado’s convictions of shooting at an occupied motor
vehicle, possession of a semiautomatic firearm by a felon, and
assault with an assault weapon, and the jury’s true findings on
the firearm enhancements are affirmed. The jury’s true findings
that Delgado committed the offenses for the benefit of a criminal

18 Because the People were required to introduce evidence of
at least two predicate offenses to prove a pattern of criminal gang
activity, we need not resolve whether the evidence as to the
second predicate offense showing Webb was accompanied by a
fellow gang member when he committed assault with a firearm
was sufficient to establish collective engagement in criminal gang
activity.

33
street gang are reversed. The cause is remanded to provide the
People an opportunity to retry the criminal street gang
enhancement. If the People elect not to do so, Delgado is to be
resentenced in a manner consistent with this opinion.

FEUER, J.
We concur:

PERLUSS, P. J.

SEGAL, J.

34