In re T.W. CA4/1

Filed 3/1/22 In re T.W. CA4/1
Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re T.W., a Person Coming Under
the Juvenile Court Law.
D077336
THE PEOPLE,

Plaintiff and Respondent, (Super. Ct. No. J241574)

v.

T.W.,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County,
Kathleen M. Lewis and Peter C. Deddeh, Judges. Affirmed in part, reversed
in part, and remanded with directions.
Tonja R. Torres, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Michael
Pulos and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and
Respondent.
After he was declared a ward of the court and placed on probation for a
misdemeanor offense, 15-year-old T.W.—an Emerald Hills Blood gang
member—and two other minors murdered Ishi Hampton. T.W. was charged
with first degree murder and conspiracy to commit murder. (Pen. Code,

§§ 187, subd. (a), 182, subd. (a)(1).)1 The murder and conspiracy to commit
murder were alleged to have been committed for the benefit of, at the
direction of, and in association with a criminal street gang (§ 186.22,
subd. (b)(1)) and it was further alleged that at least one principal used a
firearm causing great bodily injury (§ 12022.53, subds. (d), (e)(1)). After the
murder, but before he was apprehended, T.W. was alleged to have committed
two robberies.
In response to a petition alleging the two robberies, T.W. admitted one
count of grand theft. (Pen. Code, § 487, subd. (c).) The juvenile court found
true the murder and conspiracy to commit murder allegations, as well as the
gang and firearm enhancement allegations. The court subsequently
dismissed the petition alleging the robbery counts (Welf. & Inst. Code, § 782),
then continued T.W. as a ward of the court (id., § 602), placed him under the
supervision of the probation officer, and committed him to the Department of

Corrections and Rehabilitation, Division of Juvenile Justice (DJJ). 2

1 Unless otherwise indicated, statutory citations are to the Penal Code.

2 “DJJ is also known as the Department of Corrections and
Rehabilitation, Division of Juvenile Facilities (DJF). DJJ/DJF is the current
name of the former California Youth Authority.” (In re N.C. (2019)
39 Cal.App.5th 81, 85, fn. 3.)

2
 We affirmed the judgment in an unpublished opinion filed
September 28, 2021, People v. T.W. (Sept. 28, 2021, D077336) [nonpub. opn.].
The California Supreme Court granted review and transferred the matter
back to this court with instructions to vacate our decision and reconsider the
matter in light of Assembly Bill No. 333 (Assembly Bill No. 333) (Stats. 2021,
ch. 699), which made various changes to the California Street Terrorism
Enforcement and Prevention Act (STEP Act; § 186.20 et seq.). (People v.
T.W., review granted Dec. 15, 2021, S271362.) We therefore vacate our prior
opinion and—after obtaining supplemental briefing and reconsidering the
issues in light Assembly Bill No. 333—we reverse the true finding on the
gang enhancements and remand to give the People an opportunity to retry
the gang enhancements under Assembly Bill No. 333’s amended
requirements. If the People elect not to try the gang enhancements, T.W. is
to be resentenced in a manner consistent with this opinion. We otherwise
affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. Petitions
On January 16, 2019, the People filed an amended petition alleging
T.W. committed robbery (§ 211; count 1), assault by means of force likely to
produce great bodily injury (§ 245, subd. (a)(4); count 2), and a misdemeanor
count of giving false information to a peace officer (§ 148.9, subd. (a); count 3).
The offenses were alleged to have occurred on August 16, 2018. T.W.
admitted the misdemeanor (count 3), and the People moved to dismiss
counts 1 and 2. The juvenile court declared T.W. a ward of the court and
placed him on probation.
On May 30, 2019, the People filed a second petition alleging that T.W.
committed murder (§ 187, subd. (a); count 1) and conspiracy to commit

3
murder (§ 182, subd. (a)(1); count 2). The murder was alleged to have
occurred on May 2, 2019. The petition alleged, as to both counts, that T.W.
committed the offenses for the benefit of, at the direction of, and in
association with a criminal street gang (§ 186.22, subd. (b)(1)) and that at
least one principal used a firearm causing great bodily injury (§ 12022.53,
subds. (d), (e)(1)).
On December 11, 2019, the People filed a third petition alleging T.W.

committed two counts of robbery.3 (§ 211.) On January 3, 2020, T.W.
admitted committing one count of grand theft (§ 487, subd. (c)), and the

juvenile court dismissed count 2.4
B. Contested Adjudication Hearing
In January 2020, the juvenile court conducted a contested adjudication
hearing on the second petition regarding the murder allegations.
1. Evidence relating to the murder
Shortly after midnight on May 2, 2019, T.W. and two other minors,
K.W. and E.I., parked in front of an apartment complex on Alvarado Road in
San Diego. They remained inside the car for about six hours.

3 For ease of reference, we refer to the December 11, 2019 petition as the
“robbery/grand theft petition.” The robberies were alleged to have occurred
about two weeks after the murder, but a petition was not filed at that time.
However, in December, after repeatedly waiving time on the murder petition,
defense counsel withdrew T.W.’s time waiver, triggering T.W.’s release on
that petition to home supervision. At that time, the People elected to file a
new petition, which allowed the court to order T.W.’s continued detention.

4 T.W. admitted one count of the lesser included offense of grand theft
and informed the court that he understood the other count would be
dismissed, the maximum punishment he may receive would be three years of
detention, and no other promises had been made to him.

4
 When the victim, Ishi Hampton, exited his apartment complex and
began walking to his car, T.W. got out of the car’s passenger side door and
began shooting.
Two waste management employees were parked in a garbage truck in
front of the apartment complex when they heard gunshots. They saw the
victim running and stumbling as T.W. shot at him repeatedly. After the
victim fell to the ground the first time, he got up again, and the shooter shot
him again. They saw the victim collapse near the front of the building and
two young males flee the scene. The shooter was wearing a tan or red hoodie
and jeans, and his companion was wearing a blue hoodie; both had their
hoods up. The employees called for an ambulance and checked on the victim,
who did not appear to be breathing.
A woman standing at a nearby trolley station heard gunshots. She
turned to the direction of the sound and saw one young man running and two
young men running behind him. She turned her phone’s camera on; the video
footage she captured was played in court.
A man getting gas nearby was approached by three young men wearing
hoodies and jeans. One asked if he could borrow the man’s phone or get a
ride to a friend’s house down the street, but the man declined.
A gardener at a nearby school saw three males, two wearing dark
hoodies and one in a light-colored shirt, walking briskly toward him. He told
them they needed to leave before the students started to arrive, pointed them
toward the front of the school to exit, and followed them to make sure they
left.
Video of the shooting was captured by a nearby security camera.
Security footage from various cameras depicted the three minors fleeing the
scene, and captured the route they took to escape, past the trolley station, the

5
gas station, and across the school campus. Eventually, they walked to an
apartment near the school.
A medical examiner conducted an autopsy and determined Hampton
suffered a single gunshot wound to his back. The bullet passed through his
organs, including his heart, and lodged in his pectoral muscle.
A crime scene specialist from the San Diego Police Department
processed the suspects’ vehicle (which they left at the scene) for latent
fingerprint and DNA evidence. T.W.’s prints were identified on the exterior
passenger side door. K.W.’s prints were identified on the exterior roof of the
vehicle. DNA of T.W., K.W., and E.I. was found in the vehicle’s interior.
On May 28, T.W. and E.I. were arrested together and placed in the
back seat of a patrol car.5 A recording of their conversation was played in
court. T.W. told E.I., “On blood, don’t snitch, really bro. . . . It’s the car. It
has to be. Cuz it was gone,” and, “Bro, for murder, bro.” T.W. asked E.I., “So,

you think Tey9’s in there for the same thing?” 6 T.W. said, “I kind a feel like
I’m, feel like I should, I’m a see what the thing is, if I, if I plead guilty for
this. I don’t know, to be honest . . . . We’re fittin’ to be here for at least, a
minute,” and “You think what’s his name could be our alibi? Mack-manity?”
In October, a conversation between T.W., E.I., and K.W. was recorded
as the minors were transported to juvenile court. K.W. asked T.W., “Did you
know we green lighted, Blood? [¶] . . . [¶] By Crabs, by Lincoln niggas,
Blood, by the East[.] [¶] . . . [¶] For that shit.”

5 A detective informed them they were “both under arrest . . . for
murder,” read them their rights, and confirmed they understood their rights
before leaving them alone in the vehicle.

6 A gang expert subsequently testified that “Tey9” was K.W.’s gang
moniker.

6
 K.W. said he had “seen the video”; T.W. said he had not seen it. The
following discussion occurred next:
K.W.: “You didn’t tell us the whole thing, Blood. I didn’t
know you doubled back, Blood. But . . . .”

T.W.: “I told you that.”

E.I.: “Yeah, Blood told us that—Blood could, on the set, the
video bro, all you see is you Blood . . . .”7

Later in the conversation, K.W. asked,
“Did your attorney show you the route? That we took?”
E.I.: “Oh yeah, everywhere. Recorded us everywhere.
They showed us everywhere. Like, everywhere we’ve been
blood.”

T.W.: “Are you talking about the route?”

E.I.: “Yeah, I’m talking about—I’m talking about the route
when we ran to. . . . [I]t just happens someone was behind
the trash[ ]can recording us.”

E.I.: “Yeah, I told you not to take off your . . . . I told you.”

T.W.: “No—no you didn’t.”

E.I.: “Blood, (unintelligible), on the set.”

T.W.: “No, you told me to take that shit off.”

E.I.: “Ask Blood. You know I did, Blood. ‘Cause why
would I . . . .”

K.W.: “He did—he did . . . .”

E.I.: “If I told you that I would take off my shit too, Blood.”

7 A gang expert testified that, when a gang member said something is
“ ‘on the set,’ ” they are making a reference to their loyalty to the gang set,
saying something is “ ‘important,’ ” “ ‘huge,’ ” or “ ‘the truth.’ ”

7
 K.W.: “[L]ook, bro, look when we was at the school, right, I
was looking this way. We was walking. (Unintelligible.)
All you can see is your tan shirt blood, and your fucking
hair, blood.”

T.W.: “I had a white shirt.”

E.I.: “He had a white shirt.”

K.W.: “Oh it looks like it’s tan in the video.”

A detective from the San Diego Police Department’s street gang unit
testified that he was familiar with members of the Emerald Hills Blood gang.
He observed a music video shot at Emerald Hills Park during a party
frequented by Emerald Hills Blood gang members. In the video, he observed
the victim Ishi Hampton in the background at the park. The detective
testified he thought it was “odd” for Hampton to be at the park that day—the
annual gang holiday for the Emerald Hills Blood gang—because he was not
known to be an Emerald Hills Blood gang member.
2. Gang expert
Detective K. Morgan, a detective with the San Diego Police
Department’s street gang unit, testified as an expert regarding the Emerald
Hills Blood gang. She testified she had spent two years working as a patrol
officer with the Street Gang Suppression Team (GST) and had also worked in
the vice and child abuse units. She testified that she had worked in her
current assignment for six months and was charged with monitoring two
gangs, one of which was the Emerald Hills Blood gang. During that six-
month period, she estimated she had investigated three felony or
misdemeanor cases associated with the Emerald Hills Blood gang.
Detective Morgan testified she had contacted members of the Emerald
Hills gang when she was on patrol with the GST, and she had arrested and
spoken to members of the gang since becoming a detective. Based on her

8
training and experience, as well as her personal contacts with Emerald Hills
gang members, Detective Morgan opined the Emerald Hills Blood gang was a
criminal street gang within the meaning of section 186.22 because they have
more than three members (with 27 known members), a common sign or
symbol (the Playboy bunny and the letter U, for “ ‘uptown’ ” or “ ‘upside sic’ ”),
and they commit crimes set forth in section 186.22, subdivision (e) as their
primary criminal activity (including murder, assault with a deadly weapon,
and robbery).
Detective Morgan testified that the Easter holiday has a special
significance for Emerald Hills gang members. Because the gang’s symbol is a
Playboy bunny, they use Easter (or “ ‘Bunny Day’ ”) as a time for “jump[ing]
in” new members and celebrating the gang. As part of this celebration, the
gang members would meet at the Emerald Hills Park, wear their gang color
gray, and “show loyalty to the gang.”
Numerous photographs obtained from T.W.’s cell phone and social
media accounts were introduced as evidence. The photos depicted T.W., K.W.
and others exhibiting gang hand gestures that Detective Morgan opined
meant “Uptown Emerald Hills,” “upside sic,” “fuck neighborhood Crips,” and
“Crip” or “crab” killer.
Based on her review of T.W.’s cell phone information and his social
media accounts, which depicted T.W. over a period of time repeatedly
throwing up the gang’s hand signs, wearing the gang’s signature gray color,
and posing with a firearm wrapped in a gray bandanna, Detective Morgan

9
opined that T.W. is a member of the Emerald Hills Blood gang.8 She
similarly opined that K.W. is a member of the Emerald Hills Blood gang. She
based this opinion on her review of his social media postings and information
found on his cell phone. Detective Morgan testified that a gang member’s
moniker is often a sign of respect, indicating their membership in the gang,
and that K.W.’s gang moniker was “Tey9.”
When presented with a hypothetical scenario in which two Emerald
Hills gang members and an associate drove to an apartment complex, waited
outside for six hours, and then shot and killed the victim, Detective Morgan
opined that the perpetrators would be committing this crime for the benefit of
the Emerald Hills Blood gang with the intent to promote and assist further
criminal activity by gang members. She opined that committing such a crime
bolstered the individual status of the gang members, proved their loyalty to
the gang, improved the gang’s status of fear and respect in the community,
and prevented witnesses and victims from testifying out of fear of violence.
Detective Morgan opined, “Emerald Hills is a smaller gang set than many of
the other gangs in San Diego[,] [s]o they have to be hard and brutal to show
that they’re . . . worthy of this status. And that is committing violent crimes
such as murder, which is obviously the most heinous crime.”

8 Detective Morgan testified that, being a Blood gang, the Emerald Hills
gang members associated with the color red but used the color gray to signify
the Emerald Hills neighborhood. Detective Morgan testified that if someone
who was not a member of the gang was seen “throwing up these hand signs,
wearing these colors in an Emerald Hills neighborhood,” it would be viewed
as disrespecting the gang and would result in punishment, including beatings
and possibly death.

10
 Detective Morgan also reviewed certified copies of court records and
testified regarding six predicate offenses committed by three individuals

between 2011 and 2017:9
(1) Detective Morgan testified she was familiar with Q.A. and his
conviction in case number SCD271179 for possession of an unregistered and
loaded firearm (§ 25850, subds. (a), (c)(6)) in connection with an incident that
took place in 2017.
(2) Detective Morgan testified she was familiar with Q.A.’s convictions
in case number SCD273223 for robbery, attempted robbery, and firearm
enhancements (§§ 211, 664, 12022.5, subd. (a), 12022.53, subd. (c)) for
incidents that occurred in 2016 and 2017. She opined Q.A. was a member of
the Emerald Hills Blood gang and explained her opinion was based on her
review of the reports in those cases and on speaking with the detective who
handled the Emerald Hills gang at the time of the offenses.
(3) Detective Morgan testified she was familiar with L.H. and his
conviction for assault with a firearm, with gang and personal use
enhancements (§§ 245, subd. (b), 12022.5, subd. (a), 186.22, subd. (b)(1)) in
case number SCD265734 in connection with an incident that occurred in
2016.
(4) Detective Morgan further testified she was aware of L.H.’s
conviction of possession of a firearm by a felon to benefit and assist gang
members (§§ 29800, subd. (a)(1), 186.22, subd. (b)(1)) in case number
SCD253170 in connection with an incident that occurred in 2013. She opined
that L.H. was a member of the Emerald Hills Blood gang and explained that

9 The records included charging documents, court minutes, plea
agreements, orders granting probation, and verdict forms.

11
she based this opinion on the police reports she reviewed and her
conversations with the investigating detective.
(5) Detective Morgan testified she was familiar with R.S. and his
conviction for possession of a firearm after having been adjudged a ward of
the court (§ 12021, subd. (e)) in case number SCD233594 in connection with
an incident that occurred in 2011.
(6) Detective Morgan testified she was also familiar with R.S.’s 2012
conviction for murder, attempted murder, assault with a firearm as well as
gang and firearm enhancements (§§ 187, subd. (a), 664, 245, subd. (a)(2),
186.22, subd. (b)(1), 12022.53, subds. (b), (c), (d) & (e)(1)) in case number
SCD225297 in connection with an incident that occurred in 2009. She opined
that R.S. was a member of the Emerald Hills Blood gang based on her review
of the case reports and her conversation with the investigating detective.
3. Defense case and closing arguments
At the close of the prosecution’s case, T.W. declined to present any
affirmative evidence in his defense. In closing, the prosecutor argued that
the evidence established that Emerald Hills Blood gang was a criminal street
gang, the primary activities of which included robbery, assault, and murder,
and referenced the six predicate offenses. The prosecutor further argued,
“With the elements of [section] 186.22, here we have the defendant in
association with another Emerald Hills Blood member[, K.W.,] committing a
lying-in-wait murder of an individual that showed up at Emerald Hills Park
on ‘Bunny Day.’ Per the detective’s opinion, the only reason the minor and
[K.W.] would do this would be to bolster their reputation within the set to
show that Emerald Hills is a force to be reckoned with on the street. That
they are a legit murdering criminal street gang.”

12
 Defense counsel contended the prosecution failed to prove beyond a
reasonable doubt that T.W. was the shooter or that the murder was
committed “for the gang.” Defense counsel requested that the court strike the
gun and gang allegations.
4. Findings
In January 2020, the juvenile court found the murder and conspiracy to
commit murder counts and the attendant enhancements true and sustained
the petition. Specifically, the court found:
“[B]eyond a reasonable doubt that the minor T.W. is guilty
of murder in the first degree. That this is a planned killing
and could have been charged as lying in wait, again,
certainly if he had been in adult court.

“Also, that this was done in furtherance of a criminal street
gang, namely, Emerald Hills. That he personally used the
firearm within the meaning of . . . [s]ection 12022.53[,
subdivision] (d). That . . . this was in furtherance of a
criminal street gang in violation of . . . [s]ection 186.22[,
subdivision] (b)(1). And that he’s guilty of first degree
murder in Count 1 in violation of . . . [s]ection 187.

“So I also find that he and his cohorts engaged in a
criminal conspiracy to commit murder in violation
of . . . [s]ection 182[, subdivision] (a)(1). And that also this
was done in furtherance of a criminal street gang within
the meaning of . . . [section] 186.22[, subdivision] (b)(1).
And then, finally, that he personally used a firearm to the
meaning of . . . [s]ection 12022.53[, subdivision] (d). And I
find that all the allegations are true beyond a reasonable
doubt, as well as the substantive charges.”

C. Disposition
The day after the court made the true finding on the murder petition,
the parties appeared at a previously scheduled disposition hearing on the
robbery/grand theft petition. T.W. requested to be sentenced on the grand
theft immediately; however, over T.W.’s objection, the court granted the
13
People’s motion to continue sentencing so both petitions could be addressed
contemporaneously.
In February, at the subsequent contested disposition hearing, the court
granted the People’s motion to dismiss the most recently filed robbery/grand
theft petition. (Welf. & Inst. Code, § 782.) The court then continued T.W. as
a ward of the court under Welfare and Institutions Code section 602, placed
him under the supervision of the probation officer, and committed him to
DJJ. The court stated the maximum term of confinement to be 120 years to

life.10 The court also found T.W. in violation of his probation in connection
with the January 2019 petition.
DISCUSSION
I
Assembly Bill No. 333
As directed by our Supreme Court, we reconsider T.W.’s appeal in light
of Assembly Bill No. 333.
The STEP Act (§ 186.20 et seq.) created a substantive offense of active
participation “in a criminal street gang” (§ 186.22, subd. (a)) and a sentencing
enhancement for a felony committed “for the benefit of, at the direction of, or
in association with a criminal street gang” (§ 186.22, subd. (b)(1)). (See
People v. Valencia (2021) 11 Cal.5th 818, 829 (Valencia).)

10 It appears the court accepted the maximum term calculated by the
DJJ, comprised of 25 years to life for the murder (§ 187, subd. (a)), 25 years to
life for the firearm enhancement (§ 12022.53, subd. (d)), and 10 years for the
gang enhancement (§ 186.22, subd. (b)(1)) on count 1, plus an additional
25 years to life for the conspiracy to commit murder (§ 182, subd. (a)(1)),
25 years to life for the firearm enhancement (§ 12022.53, subd. (d)), and
10 years for the gang enhancement (§ 186.22, subd. (b)(1)) on count 2.

14
 The gang enhancement applies to “a person who is convicted of a 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
criminal conduct by gang members.” (§ 186.22, subd. (b)(1).) “There are two
prongs to the gang enhancement under section 186.22, subdivision (b)(1),
both of which must be established by the evidence. [Citation.] The first
prong requires proof that the underlying felony was ‘gang related,’ that is, the
defendant committed the charged offense ‘for the benefit of, at the direction
of, or in association with [a] criminal street gang.’ [Citations.] The second
prong ‘requires that a defendant commit the gang-related felony “with the
specific intent to promote, further, or assist in . . . criminal conduct by gang
members.” ’ ” (People v. Franklin (2016) 248 Cal.App.4th 938, 948.)
To establish that a gang is a “criminal street gang,” the prosecution
must prove that the gang has as one of its “primary activities” the
commission of one or more of the crimes enumerated in section 186.22,
subdivision (e), and that it has engaged in a “ ‘pattern of criminal gang
activity’ ” by committing two or more such predicate offenses. (§ 186.22,

subds. (e), (f).)11
Assembly Bill No. 333 made substantial revisions to section 186.22
effective January 1, 2022. As relevant here, Assembly Bill No. 333 modified
the definition of “ ‘criminal street gang’ ” (§ 186.22, subd. (f)) to mean “an
ongoing organized association or group of three or more persons,” “having as
one of its primary activities the commission of one or more of the

11 Subdivision (e) of section 186.22 lists various crimes which constitute
predicate offenses, including the commission or attempted commission of
murder, robbery, assault with a deadly weapon or by means likely to produce
great bodily injury, and prohibited possession of a firearm.

15
[enumerated] criminal acts,” “having a common name or common identifying
sign or symbol,” and “whose members collectively engage in, or have engaged

in, a pattern of criminal gang activity.” (Stats. 2021, ch. 699, § 3.)12
Assembly Bill No. 333 also modified the definition of “ ‘pattern of criminal
gang activity’ ” (§ 186.22, subd. (e)) to require that (1) the last offense used to
show a pattern of criminal gang activity “occurred within three years of the
prior offense and within three years of the date the current offense is alleged
to have been committed”; (2) “the offenses were committed on separate
occasions or by two or more members,” as opposed to “persons”; and (3) “the
offenses commonly benefitted a criminal street gang,” and the common
benefit was “more than reputational.” (Stats. 2021, ch. 699, § 3.) In addition,
the currently charged offense can no longer be used to establish the pattern of

criminal gang activity. (Ibid.)13
The parties agree, as do we, that Assembly Bill No. 333’s amendments
apply to T.W.’s non-final judgment under the principles set forth in In re
Estrada (1965) 63 Cal.2d 740. Under Estrada, statutory amendments that

12 Former section 186.22, subdivision (f) defined “ ‘criminal street gang’ ”
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 the [enumerated] criminal acts . . . , 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.” (Stats. 2017, ch. 561, § 178, italics added.)

13 Assembly Bill No. 333 also added section 1109, which requires a gang
participation charge to be tried separately from all other counts that do not
otherwise require gang evidence as an element of the crime and provides that
a defendant may request that a gang enhancement be tried separately from
the underlying offense. (Stats. 2021, ch. 699, § 5.) The Attorney General
argues that section 1109 applies prospectively only. We need not address this
question to resolve the issues raised by T.W. on appeal.

16
reduce the punishment for an offense apply to a defendant whose judgment is
not yet final, absent contrary legislative intent. (Id. at p. 745; see People v.
Superior Court (Lara) (2018) 4 Cal.5th 299, 307-314 [discussing Estrada’s
inference of retroactivity in the absence of contrary legislative intent].) “This
principle also applies when an enhancement has been amended to redefine to
an appellant’s benefit the conduct subject to the enhancement.” (People v.
Lopez (2021) 73 Cal.App.5th 327, 344 (Lopez).) Assembly Bill No. 333 does
not alter the punishment imposed for a gang enhancement, but it “increases
the threshold for conviction of the section 186.22 offense and the imposition of
the enhancement” and therefore applies retroactively to a defendant whose
judgment is not yet final. (Lopez, at p. 344.) T.W. therefore is entitled to the
benefit of this change in the law. (Ibid.; see also People v. Delgado (Feb. 10,
2022, B299482) __ Cal.App.5th __ [2022 Cal.App.Lexis 104] (Delgado).)
In our prior opinion, we concluded that the gang expert’s testimony
here—which was used to establish the six predicate offenses—was
improperly based on inadmissible, case-specific hearsay in violation of People
v. Sanchez (2016) 63 Cal.4th 665, 682-683 (Sanchez). (See Valencia, supra,
11 Cal.5th at p. 839.) Because defense counsel failed to object at trial to the
gang expert’s testimony regarding the predicate offenses, we concluded the
claim of error was forfeited (People v. Arredondo (2019) 8 Cal.5th 694, 710),
and we analyzed T.W.’s alternative claim that he received ineffective
assistance of counsel under the standard in Strickland v. Washington (1984)

17
466 U.S. 668 (Strickland).14 Under either the Chapman or Strickland
standard, we concluded the error was harmless because there was other,
properly admissible evidence of predicate offenses committed by members of
the Emerald Hills gang to independently demonstrate the requisite pattern of

criminal gang activity.15 Because we conclude we would reach a different
result on the merits after Assembly Bill No. 333, we exercise our discretion to
consider T.W.’s claim. (See People v. Williams (1998) 17 Cal.4th 148, 161,
fn. 6.)
In their supplemental briefing, both parties agree there is insufficient
evidence on this record to support the gang enhancements after the
enactment of Assembly Bill No. 333. We agree as well. Prior to the
enactment of Assembly Bill No. 333, the requisite “ ‘pattern of criminal gang
activity’ ” (§ 186.22, subd. (e)(1)) could be established “by evidence of the
offense with which the defendant [was] charged and proof of another offense

14 See Strickland, supra, 466 U.S. at p. 694 [“The defendant must show
that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”]; People v.
Ledesma (1987) 43 Cal.3d 171, 208-209, 217-218 [applying Strickland’s
“reasonable probability” test to ineffective assistance claim based on defense
counsel’s failure to protect defendant’s Fourth Amendment rights by filing a
suppression motion]; People v. Mesa (2006) 144 Cal.App.4th 1000, 1008 [“had
[defendant] not forfeited his direct claim of [constitutional] error, we would
review whether any such error was harmless under the standard set forth in
Chapman v. California (1967) 386 U.S. 18, 24 [(Chapman)],” rather than
Strickland].

15 Specifically, relying on People v. Tran (2011) 51 Cal.4th 1040, 1046 and
People v. Loeun (1997) 17 Cal.4th 1, 11 (Loeun), we concluded that the
defendant’s instant crimes, and the contemporaneous offense committed by
K.W., his coconspirator and fellow Emerald Hills gang member,
independently supported imposing the gang enhancement under the prior
version of section 186.22.

18
committed on the same occasion by a fellow gang member.” (Loeun, supra,
17 Cal.4th at p. 5.) We therefore concluded in our prior opinion that T.W.’s
own conduct in this case established one of the requisite predicate offenses,
and the second predicate offense was established by fellow gang member

K.W.’s contemporaneous commission of conspiracy to commit murder. 16
However, under the newly amended statute, “[t]he currently charged offense
shall not be used to establish the pattern of criminal gang activity.”
(§ 186.22, subd. (e)(2), italics added.) Assembly Bill No. 333 also modified the
statute to specify that “to benefit, promote, further, or assist” as required by
section 186.22, subdivision (b)(1) “means to provide a common benefit to
members of a gang where the common benefit is more than reputational.”
(§ 186.22, subd. (g), italics added.) “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.” (Ibid.) In our prior opinion, we referred to Detective Morgan’s
opinion that, if two Emerald Hills gang members and an associate drove to
an apartment complex, waited outside for six hours, and then shot and killed
the victim, the perpetrators would be committing this crime for the benefit of

16 The evidence established that both T.W. and K.W. were involved in the
conspiracy to commit murder of Ishi Hampton. There was substantial
evidence establishing that T.W. was the shooter, and his fellow gang
members (including K.W.) conspired to murder the victim in apparent
response to his unexplained presence at a park in their gang territory, on a
day of special significance to the gang. K.W. participated in the conspiracy by
waiting six hours outside the victim’s apartment before T.W. shot the victim
and all three minors coordinated their escape. Based on this evidence, the
juvenile court expressly found that T.W. “and his cohorts engaged in a
criminal conspiracy . . . in furtherance of a criminal street gang.”

19
the Emerald Hills Blood gang with the intent to promote and assist further
criminal activity by gang members. Detective Morgan testified that
“Emerald Hills is a smaller gang set than many of the other gangs in San
Diego[,] [s]o they have to be hard and brutal to show that they’re . . . worthy
of this status. And that is committing violent crimes such as murder, which
is obviously the most heinous crime.” She explained that committing such a
heinous crime bolstered the individual status of the gang members, proved
their loyalty to the gang, improved the gang’s status of fear and respect in the
community, and prevented witnesses and victims from testifying out of fear

of violence.17 This expert testimony is not sufficient after Assembly Bill
No. 333’s amendments. Given the change in the legal landscape occasioned
by Assembly Bill No. 333, insufficient evidence supports the gang

enhancements on this record.18
The Attorney General argues that the appropriate remedy is to remand
the matter for retrial of the gang enhancements. (See People v. Figueroa
(1993) 20 Cal.App.4th 65, 68 [a defendant is entitled to the benefit of an

17 The gang expert did not testify about any specific “intimidation or
silencing” of witnesses. (§ 186.22, subd. (g).) Instead, she generally stated
that committing crimes “creates fear in the community, which is kind of what
the gang culture is all about. You’re going to prevent witnesses and victims
from testifying.” (Italics added.) The Attorney General concedes that
“because the hearing predated [Assembly Bill No.] 333, there was insufficient
evidence presented that the predicate offenses ‘commonly benefitted’ the gang
as that term is defined in [Assembly Bill No.] 333.”

18 Because we find that reversal is warranted on this ground, we need not
address T.W.’s assertion that the evidence presented at trial also failed to
prove that gang members “ ‘collectively’ ” engaged in a pattern of criminal
gang activity. Similarly, we need not address T.W.’s challenge regarding the
use of certified court records to prove the dates on which the six predicate
acts discussed above were committed.

20
amendment to an enhancement statute, adding a new element to the
enhancement, where the statutory change becomes effective while the case
was on appeal, and the People are entitled to an opportunity to prove up the
new element on remand].) We agree that remand for retrial of the gang
enhancements is warranted here. (See, e.g., Delgado, supra, __ Cal.App.5th
at *38-39 [2022 Cal.App.Lexis 104] [reversing the true findings on the gang
enhancement and remanding “to give the prosecution an opportunity to retry
the gang enhancement under current law,” section 186.22, as amended by
Assembly Bill No. 333], Lopez, supra, 73 Cal.App.5th at p. 346 [vacating true
findings on gang enhancements and remanding “to give the People the
opportunity to prove the applicability of the enhancements under the
[Assembly Bill No. 333] amendments”].) We therefore reverse the true
finding on the gang enhancements, and remand to give the People an
opportunity to retry the gang enhancements under Assembly Bill No. 333’s
new requirements. If the People decline to retry the gang enhancements,
T.W. shall be resentenced without reimposition of the gang-related
enhancements. (People v. Buycks (2018) 5 Cal.5th 857, 893-894.)
II.
DJJ Placement
T.W. contends the trial court improperly committed him to DJJ,
arguing that the most recent offense he committed—grand theft—makes him
ineligible for such commitment under Welfare and Institutions Code

section 733.19 We conclude the trial court did not abuse its discretion in

19 Robbery and murder are DJJ-qualifying offenses. (Welf. & Inst. Code,
§ 707, subd. (b)(1), (3).) Grand theft is not. (See id., § 707, subd. (b),
Pen. Code, § 290.008.) Although the petition at issue alleged two counts of
robbery, T.W. admitted to one count of grand theft. As noted ante, we refer to
this petition as the robbery/grand theft petition.

21
dismissing the robbery/grand theft petition pursuant to Welfare and
Institutions Code section 782—leaving the most recent offense of murder,
which does make him eligible for DJJ commitment. We therefore reject
T.W.’s claim of error.
The relevant procedural history is outlined ante. For purposes of this
section, we merely summarize the following key dates: (1) the murder and
conspiracy to commit murder occurred on May 2, 2019 (and the petition
relating to these offenses was filed on May 30, 2019); and (2) the alleged
robberies occurred on May 17, 2019 (but the petition for this offense was not
filed until December 11, 2019).
The dispute in this case centers around Welfare and Institutions Code
section 733, which outlines the offenses that are eligible for DJJ commitment,
and Welfare and Institutions Code section 782, which authorizes the juvenile
court to dismiss a petition. Welfare and Institutions Code section 733,
subdivision (c) provides, “A ward of the juvenile court who meets any
condition described below shall not be committed to the Department of
Corrections and Rehabilitation, Division of Juvenile Facilities: [¶] . . . [¶]
(c) The ward has been or is adjudged a ward of the court pursuant to
Section 602, and the most recent offense alleged in any petition and admitted
or found to be true by the court is not described in subdivision (b) of
Section 707 or subdivision (c) of Section 290.008 of the Penal Code.” “[T]he
language of section 733[, subdivision] (c) is clear and lends itself to only one
reasonable interpretation. The statute premises [DJJ] eligibility on the
nature of ‘the most recent offense alleged in any petition and admitted or
found to be true by the court.’ [Citation.] Plainly, this language refers to the
last offense that was adjudicated to have been committed by the minor. A
minor can be committed to [DJJ] only if this particular offense is listed in

22
section 707[, subdivision] (b) or Penal Code section 290.008[, subdivision] (c).”
(In re D.B. (2014) 58 Cal.4th 941, 947 (D.B.).)
Welfare and Institutions Code section 782 provides, “A judge of the
juvenile court in which a petition was filed may dismiss the petition, or may
set aside the findings and dismiss the petition, if the court finds that the
interests of justice and the welfare of the person who is the subject of the
petition require that dismissal, or if it finds that he or she is not in need of
treatment or rehabilitation. The court has jurisdiction to order dismissal or
setting aside of the findings and dismissal regardless of whether the person
who is the subject of the petition is, at the time of the order, a ward or
dependent child of the court. Nothing in this section shall be interpreted to
require the court to maintain jurisdiction over a person who is the subject of a
petition between the time the court’s jurisdiction over that person terminates
and the point at which his or her petition is dismissed.”
We review the juvenile court’s dismissal of a petition under Welfare
and Institutions Code section 782 for abuse of discretion. (See In re Greg F.
(2012) 55 Cal.4th 393, 420 (Greg F.) [dismissal “is appropriate under
section 782 so long as the juvenile court, in its discretion, finds that the
dismissal is required by the interests of justice and the welfare of the
minor”].)
In February 2020, the juvenile court exercised its discretion under
Welfare and Institutions Code section 782 and dismissed the most recently
filed robbery/grand theft petition in “the interest of justice” at the contested
disposition hearing. In doing so, the court made the following findings:
“[T]he record will reflect[] that I have weighed and
considered the interest of the minor, T.W.; and the interest
of society. And I find, first of all, that the court has
discretion to dismiss [the robbery/grand theft petition] to
make the minor eligible for a DJJ commitment.

23
 “The court also finds the interest of justice and the welfare
of the minor require dismissal of the [robbery/grand theft
petition] in a DJJ commit.

“Third[, t]he minor is in need of further treatment and
rehabilitation that is highly structured and intensive. And
the welfare of the minor requires dismissal of [the
robbery/grand theft petition].

“And, in particular, the court finds the minor is in need of
lengthy rehabilitative services that address family
dysfunction, deep gang involvement, trauma and
behavioral treatment and therapy[, p]ositive youth skills[,
e]ducation and work skills.

“And lastly, the minor committed the most serious of
offenses, and a DJJ commitment will increase the amount
of time the court has jurisdiction over the minor and the
amount of time that the court has to work with the youth.

“So the court finds that a dismissal of the [robbery/grand
theft petition] will serve the interest of justice and the
welfare of the youth by increasing the court’s dispositional
options.”

The court continued T.W. as a ward of the court, placed him under the
supervision of the probation officer, and committed him to DJJ.
Based on this record, we reject T.W.’s claim that the juvenile court
improperly committed him to DJJ. Our Supreme Court has recognized that
Welfare and Institutions Code sections 733 and 782 are not “irreconcilably in
conflict.” (Greg F., supra, 55 Cal.4th at p. 407.) “Section 733[, subdivision] (c)
prohibits a commitment to [DJJ] unless the minor’s most recent offense
alleged in a petition is of a particular class. If the juvenile court exercises its
discretion under section 782 to dismiss a 602 petition, its decision does not
nullify or abrogate section 733[, subdivision] (c).” (Id. at p. 408.)
Here, the court indicated it was dismissing the robbery/grand theft
petition in the interest of justice and for T.W.’s welfare. (See Greg F., supra,
24
55 Cal.4th at p. 408.) The court indicated it had “weighed and considered the
interest of [T.W.] and the interest of society.” The court found that T.W.
needed “highly structured and intensive” further treatment and
rehabilitation that would address issues such as “family dysfunction, deep
gang involvement, trauma and behavioral treatment and therapy[, p]ositive
youth skills[, e]ducation and work skills,” and dismissal of the petition was
necessary to obtain such treatment. The court reasoned that, since T.W. had
committed “the most serious of offenses,” a commitment would “increase the
amount of time the court has jurisdiction over [T.W.] and the amount of time
that the court has to work with [T.W.].” Because the court weighed the
appropriate factors and indicated it was dismissing the robbery/grand theft
petition in the interest of justice and for T.W.’s welfare, the court’s decision to
dismiss the petition was not an abuse of its discretion. (Ibid.) Because the
court properly exercised its discretion to dismiss the disqualifying petition,
Welfare and Institutions Code section 733, subdivision (c) did not preclude
DJJ commitment, and the juvenile court’s decision to place T.W. in DJJ was
proper. (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396 [appellate court
reviews the juvenile court’s decision to commit a minor to DJJ for abuse of
discretion]; Welf. & Inst. Code, §§ 733, 707, subd. (b).)
T.W.’s reliance on D.B. is misplaced. In that case, the juvenile court
committed the minor to DJJ where the minor was found to have committed a
series of offenses ending in a nonqualifying offense. (D.B., supra, 58 Cal.4th
at p. 947.) The commitment was improper because “the most recent offense”
rendered the minor ineligible for DJJ commitment. (Welf. & Inst. Code,
§ 733, subd. (c).) Here, the petition alleging the more recent, nonqualifying
offense was properly dismissed under Welfare and Institutions Code

25
section 782, rendering T.W. eligible for DJJ commitment under Welfare and
Institutions Code sections 733 and 707, subdivision (b).
T.W.’s reliance on In re A.O. (2017) 18 Cal.App.5th 390 is similarly
misplaced. In that case, the juvenile court struck a non-eligible petition
without making findings to show it had properly exercised its discretion to
make a valid dismissal under Welfare and Institutions Code section 782,
stating only that its dismissal order was for the purpose of making the minor
eligible for DJJ commitment. (A.O., at p. 396.) The minor had admitted the
allegations of the petition which was not part of the record on appeal, and it
was not clear whether the admissions were made pursuant to a plea
agreement. (Ibid.) In addition, the record was devoid of the facts underlying
the offense that purportedly qualified the minor for DJJ commitment. (Ibid.)
On the “sparse record” before it, the appellate court concluded it would be
“impossible to determine” if the juvenile court’s dismissal of the disqualifying
offense was a proper exercise of discretion. (Id. at pp. 396-397.) In contrast,
here, the juvenile court clearly stated its findings supporting dismissal of the
disqualifying grand theft petition, and we have a clear record indicating
T.W.’s admissions to the grand theft were not induced by any promises of

26
sentencing leniency. Based on the record, T.W.’s offenses of murder and

conspiracy to commit murder qualify him for DJJ commitment. 20
III.
Section 654
Relying on section 654, subdivision (a), T.W. contends that the juvenile
court erred by imposing punishment as to counts 1 and 2 because T.W. did
not harbor independent criminal objectives as to the murder and the
conspiracy to commit the same murder. The Attorney General concedes that,
based on the evidence presented at trial, section 654 requires staying
punishment for conspiracy to commit murder. We agree.
After we filed our prior opinion in this matter, Assembly Bill No. 518
amended section 654, subdivision (a) to provide in pertinent part: “An act or
omission that is punishable in different ways by different provisions of
law may be punished under either of such provisions, but in no case shall the
act or omission be punished under more than one provision.” (Italics

20 After we filed our prior opinion, the Court of Appeal in In re J.B.
(Feb. 18, 2022, H049130) __ Cal.App.5th __ [2022 Cal.App.Lexis 133]
similarly held that “[Welfare and Institutions Code] section 733(c) did not bar
the juvenile court from exercising its discretion under [Welfare and
Institutions Code] section 782 and dismissing the adjudicated petitions
[involving more recent non-707(b) offenses] in the interests of justice and in
minor’s welfare in order to commit minor to DJJ.” Applying a de novo review
to “the question of ‘whether the commitment limitation of [Welfare and
Institutions Code] section 733(c) prevails over the dismissal discretion
granted by [Welfare and Institutions Code] section 782,’ ” the J.B. court
concluded that “the juvenile court had the discretion under [Welfare and
Institutions Code] section 782 to dismiss the prior petitions in the interests of
justice and in minor’s welfare.” (J.B., at*17-18, fn. omitted.) We agree with
the J.B. court’s analysis, and reject T.W.’s contrary contention that the court
here improperly committed him to DJJ after dismissing the robbery/grand
theft petition pursuant to Welfare and Institutions Code section 782.
27
added.)21 Under section 654, “a defendant cannot be punished for both a
substantive offense and a conspiracy to commit it unless the conspiracy had
an unlawful objective in addition to the commission of the substantive
offense.” (In re Romano (1966) 64 Cal.2d 826, 828.)
In the present case, there was no evidence that the conspiracy had any
objective apart from the murder of Ishi Hampton. After Hampton was seen
at the Emerald Hills park on the gang’s day of celebration, T.W. and the
other two minors drove to Hampton’s apartment and waited for about six
hours for Hampton to exit his home. T.W. immediately approached Hampton
and shot at him multiple times, then all three suspects promptly fled the
scene together. Because the sole object of the conspiracy was Hampton’s
murder, T.W. cannot be punished for both the substantive offense of murder
and the conspiracy to commit it. (People v. Hernandez (2003) 30 Cal.4th 835,
866 [“Under . . . section 654, a defendant may not be punished for both the
murder and the conspiracy.”], disapproved on other grounds in People v.
Riccardi (2012) 54 Cal.4th 758, 824, fn. 32.) We therefore direct that, on
remand, the judgment shall reflect that the terms imposed as to count 2 for
conspiracy to commit murder and the associated enhancements are imposed
but execution thereof is stayed.

21 Previously, where section 654 applied, the sentencing court was
required to impose the sentence that “provides for the longest potential term
of imprisonment” and stay execution of the other term. (Former § 654,
subd. (a), italics added.) Neither party has contended this amendment has
any impact on this appeal—likely because the punishment for the offenses at
issue is the same. (See § 182, subd. (a) [conspirators who conspire to commit
a felony “shall be punishable in the same manner and to the same extent” as
the target felony].)

28
 IV.
The 10-year Gang Enhancements
T.W. contends that the 10-year enhancements imposed under
section 186.22, subdivision (b)(1)(C) were unauthorized and should be

stricken.22 The Attorney General agrees and argues the terms should be
replaced with a 15-year minimum parole eligibility period under
section 186.22, subdivision (b)(5). We agree.
Section 186.22, subdivision (b)(1)(C) provides for an additional term of
10 years when a defendant is convicted of a violent felony that was
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
criminal conduct by gang members. “Section 186.22[, subdivision] (b)(1)(C)
does not apply, however, where the violent felony is ‘punishable by
imprisonment in the state prison for life.’ [Citation.] Instead, section 186.22,
subdivision (b)(5) (section 186.22(b)(5)) applies and imposes a minimum term
of 15 years before the defendant may be considered for parole.” (People v.
Lopez (2005) 34 Cal.4th 1002, 1004.) Because a gang-related murder is a
violent felony punishable by imprisonment for life, this offense is not subject
to the 10-year enhancement under section 186.22, subdivision (b)(1)(C).
(People v. Lopez, at pp. 1004, 1011.) “Instead, section 186.22,

22 Although we reverse the true finding on the gang enhancements per
our discussion ante, we address this contention to ensure the error is not
repeated in the event that the gang enhancements are found true upon
retrial.

29
subdivision (b)(5) . . . applies and imposes a minimum term of 15 years before

the defendant may be considered for parole.” (Id. at p. 1004.)23
In the event that, upon retrial, the gang enhancements are found true,
the judgment shall not impose the 10-year enhancements pursuant to
section 186.22, subdivision (b)(1)(C). (See People v. Arauz (2012)
210 Cal.App.4th 1394, 1405.) Rather, the judgment should impose a 15-year
minimum parole eligibility term. (Ibid.)
DISPOSITION
T.W.’s convictions of murder and conspiracy to commit murder and the
true findings on the firearm enhancements are affirmed. The true findings
that T.W. committed the offenses for the benefit of a criminal street gang are
reversed. The matter is remanded to provide the People an opportunity to
retry the criminal street gang enhancements. If the People elect not to do so,
T.W. is to be resentenced. Upon resentencing, the judgment shall reflect that
the sentence on count 2 is imposed but punishment is stayed under Penal
Code section 654. If the gang enhancements are found true on retrial, the
judgment should reflect that section 186.22, subdivision (b)(5) imposes a
minimum term of 15 years before T.W. may be considered for parole, rather

23 The same principle applies to conspiracy to commit murder which is
also punishable by imprisonment for life. (§ 182, subd. (a)(1).)

30
than imposing 10-year enhancements under section 186.22,
subdivision (b)(1)(C).

GUERRERO, J.

WE CONCUR:

McCONNELL, P. J.

DO, J.

31