People v. Rodriguez

Filed 3/1/22

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,
F078864
Plaintiff and Respondent,
(Super. Ct. No. BF172482)
v.
OPINION
MICHAEL GERONIMO RODRIGUEZ et al.,

Defendants and Appellants.

APPEAL from judgments of the Superior Court of Kern County. John S. Somers,
Judge.
Carla J. Johnson, under appointment by the Court of Appeal, for Defendant and
Appellant Michael Geronimo Rodriguez.
James Bisnow, under appointment by the Court of Appeal, for Defendant and
Appellant Elijah Rodriguez.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A.
Martinez, Caely E. Fallini and Clara M. Levers, Deputy Attorneys General, for Plaintiff
and Respondent.
-ooOoo-

*
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of sections I-A, I-B, and II.
 Elijah and Michael Rodriguez1 were jointly tried and convicted by the same jury2
of actively participating in a criminal street gang and gang-related, premeditated
attempted murder plus attendant crimes and enhancements. Together and separately,
they raise numerous appellate claims.
Together, the Rodriguezes fault both the court for failing to instruct on a lesser
included offense and the prosecutor for misstating the law. They also claim newly
enacted Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 699, §§ 1-5)
(AB 333) applies retroactively and now invalidates the active participation gang crime
and the gang-related crime enhancements.
Separately, Elijah blames the court and his counsel for permitting certain evidence
to prejudice his case notwithstanding the fact it was admitted solely against Michael. He
also challenges the evidence necessary to prove various enhancements including personal
infliction of great bodily injury and personal firearm use. Last, Michael claims the
court’s instructions on aiding and abetting were unlawful.
We agree, and the People concede, AB 333 applies retroactively and requires us to
reverse the active participation gang crime and the gang-related crime findings. We also
find merit in two of Elijah’s evidentiary claims. The record in his case insufficiently
proved his precise role in the crime, substantially undermining the personal infliction and
personal use enhancements. The remaining claims lack merit.

1Elijah and Michael are brothers. We refer to them by their first names for clarity
and intend no disrespect.
2Although Elijah and Michael were tried jointly by the same jury, throughout the
opinion we refer to their separate trials because certain evidence was admitted against
only one brother or the other. The separate admittance of evidence is germane to the
issues.

2.
 BACKGROUND
Charges
The Kern County District Attorney charged each Rodriguez with four crimes:
Attempted murder (Pen. Code,3 § 664/187; count 1), assault with a firearm (§ 245,
subd. (b); count 2), assault with a deadly weapon (§ 245, subd. (a)(1); count 3), and
active gang participation (§ 186.22, subd. (a); count 4). Alleged enhancements included
premeditation and deliberation (§ 664, subd. (a)), gang-related crime (§ 186.22,
subd. (b)), personally inflicting great bodily injury (§ 12022.7, subd. (a)), personal use of
a firearm (§ 12022.5, subd. (a)), and discharging a firearm causing great bodily injury
(§ 12022.53, subd. (d).)
Trial Evidence4
The evidence indicated Elijah and Michael were traveling together in a car driven
by a third person. The vehicle eventually crossed paths with the victim.
At trial, the victim testified three “African Americans” attacked him one night.
But in a prior statement, the victim had described “two Hispanic males” confronted him
while speaking “ ‘their boo boo gang shit ….’ ” In the prior statement, the victim
explained one man hit him in the head with a gun, and the other man punched him in the
chest. A treating physician later testified the victim suffered a “collapsed lung” and chest
wounds.
Law enforcement responded to the scene, followed a suspect vehicle to a home,
and subsequently arrested Elijah and Michael. While Elijah and Michael were awaiting
interviews with law enforcement, Michael stated he heard someone “over the radio”

3 All statutory references are to the Penal Code.
4 Some of the technical evidence necessary to prove the existence of a criminal
street gang (§ 186.22, subd. (f)) is not relevant to the issues on appeal and we omit it
from our factual summary.

3.
mention a “confrontation” and “fight.” Elijah responded, “I wonder if people know that
it was us.”5
In separate interviews with law enforcement, Elijah and Michael both implicated
themselves in the crime. Elijah admitted his presence at the scene but denied any
involvement or knowledge. Michael explained that, while riding in the car, the victim
struck it prompting Michael to confront him. Michael believed the victim was a rival
gang member and asked him, “What the fuck is your problem?” The victim produced a
firearm and pointed it at Michael, but Michael knew he was “bluffing” and “wasn’t
gonna fire ….” Michael “picked up something,” disarmed the victim, and “sock[ed]
him.”
The driver also testified at trial. She claimed she could not remember anything,
but in a prior statement explained she pulled over after either Elijah or Michael said,
“Wait I think I know that guy.” Both Elijah and Michael then exited the vehicle and an
“altercation” ensued.
A gang expert witness testified and opined Elijah and Michael were both active
gang members. Their gang’s primary activities included assault and homicide.6 The
expert explained three other gang members were previously convicted of illegally
possessing firearms.7
The prosecutor asked the expert a hypothetical question involving an assumption
about two gang members assaulting a person “that one of those [gang] members
believes” is “a member of [a] rival” gang. The expert was asked to render an opinion if
that hypothetical crime is gang related. The expert answered the crime benefits the gang

5 This conversation was recorded.
A primary activity is a “criminal act[] enumerated” in section 186.22, subd. (e).
6
(§ 186.22, subd. (f).)
7
These convictions were admitted to prove the existence of a criminal street gang
(§ 186.22, subd. (f)) and are relevant to the AB 333 claim.

4.
because “it shows that the gang is still active and …violent,” and the crime is associated
with the gang “because … two … gang members [are] committing one of the [gang’s]
primary activities” together.
The gang expert also testified one gang member is expected to assist a fellow gang
member involved in an altercation with any person, rival or not. Last, the fact only one
gang member believed a person was a rival gang member was immaterial to the expert’s
opinion the crime benefited and was associated with the gang.
Relevant Jury Instructions
The jury was instructed certain statements were only admissible against each
Rodriguez. Specifically, Elijah’s separate interview was admissible only against Elijah
and Michael’s separate interview was admissible only against Michael.
Verdict and Sentence
The jury found each Rodriguez guilty as charged. It also found all enhancements
proven true.8 Elijah and Michael were each sentenced to serve 18 years to life in prison.
DISCUSSION
First, we address the joint claims. Next, we resolve Elijah’s arguments. Last, we
reach Michael’s sole remaining contention. We reverse the gang crime convictions,
vacate the gang-related crime enhancements, strike two enhancements for insufficient
evidence in Elijah’s case, but otherwise affirm each judgment.
I. Joint Claims: Lesser Included Offense Instructions and Prosecutorial Error
The Rodriguezes jointly raise two claims in this case. First, did the court fail to
instruct the jury on attempted voluntary manslaughter as a lesser included offense to
attempted murder? Second, did the prosecutor commit error in closing argument by

8 The court dismissed the section 12022.53 enhancements prior to the jury’s
deliberations. It also dismissed the section 12022.7 enhancement to count 2.

5.
analogizing the deliberation necessary to prove enhanced attempted murder9 to the
decision to drive through a yellow light?
The People oppose each claim. After careful review, we find no prejudicial error.
A. No Sua Sponte Duty to Instruct on Attempted Voluntary Manslaughter
Both Elijah and Michael argue the trial court erred in not instructing on the lesser
included offense of attempted voluntary manslaughter based on heat of passion. Michael
separately adds imperfect self-defense as a basis for the instruction.
The People contend the evidence did not support instructions on attempted
voluntary manslaughter under either theory. We agree.
“A trial court has a sua sponte duty to ‘giv[e] instructions on lesser included
offenses when the evidence raises a question as to whether all of the elements of the
charged offense were present [citation], but not when there is no evidence that the offense
was less than that charged.’ ” (People v. Eid (2014) 59 Cal.4th 650, 656.) “ ‘[A] lesser
offense is necessarily included in a greater offense if either the statutory elements of the
greater offense, or the facts actually alleged in the accusatory pleading, include all the
elements of the lesser offense, such that the greater cannot be committed without also
committing the lesser.’ ” (People v. Licas (2007) 41 Cal.4th 362, 366 (Licas); People v.
Gonzalez (2018) 5 Cal.5th 186, 196—197 (Gonzalez).)
A trial court’s asserted error in failing to instruct on a lesser included offense is
reviewed de novo. (Licas, supra, 41 Cal.4th at p. 366.) In reviewing the record for this
type of error, we view it in the light most favorable to the accused. (People v. Woods
(2015) 241 Cal.App.4th 461, 475.) “[U]ncertainty about whether the evidence is
sufficient to warrant instructions should be resolved in favor of the accused [citation].
Even evidence that is unconvincing or subject to justifiable suspicion may constitute

9“The crime of attempted murder is not divided into degrees, but the sentence can
be enhanced if the attempt to kill was committed with premeditation and deliberation.”
(People v. Gonzalez (2012) 54 Cal.4th 643, 654.)

6.
substantial evidence and may trigger the lesser-included-offense requirement.”
(People v. Vasquez (2018) 30 Cal.App.5th 786, 792.) “The failure to instruct on lesser
included offenses supported by substantial evidence” is reversible only when it is
reasonably probable the accused would have received a more favorable result absent the
error. (Gonzalez, supra, 5 Cal.5th at pp. 195-196.)
“Attempted murder requires a direct but ineffectual act towards killing a person
and that the defendant harbored express malice aforethought. [Citation.]
Attempted voluntary manslaughter is the unlawful killing of a person without malice.
[Citation.] Attempted voluntary manslaughter is a lesser included offense of attempted
murder.” (People v. Speight (2014) 227 Cal.App.4th 1229, 1241.)
“Express malice is an intent to kill.” (People v. Gonzalez, supra, 54 Cal.4th at
p. 653.) Intent to kill is absent where, for example and particularly relevant, a person acts
under an actual but unreasonable belief in self-defense, i.e., imperfect self-defense. (See
People v. Rangel (2016) 62 Cal.4th 1192, 1226 (Rangel).)
Intent to kill is also absent under heat of passion. “Heat of passion … is a state of
mind caused by legally sufficient provocation that causes a person to act, not out of
rational thought but out of unconsidered reaction to the provocation.” (People v.
Beltran (2013) 56 Cal.4th 935, 942.) “To be adequate, the provocation must be one that
would cause an emotion so intense that an ordinary person would simply react, without
reflection.” (Id. at p. 949.)
We may quickly dispose of heat of passion. There is simply no evidence either
Rodriguez acted under heat of passion. At best, Michael explained he approached the
victim after the victim struck the car in an unknown manner. This is insufficient
provocation to cause an ordinary person to react without reflection.10

10 Without elaboration, Elijah argues “[reasonable] jurors could have believed that
the fight occurred in the heat of passion, upon the provocation of … striking [the] car.”
We disagree because the record insufficiently develops adequate provocation.

7.
 It is true, on the other hand, Michael claimed the victim produced a firearm. This
evidence is certainly more provocative than the evidence describing the victim striking
the car. But Michael forcefully disclaimed a rash reaction. Instead, he stated he knew
the victim would not shoot, decided to arm himself, and then disarmed and hit the
victim.11
For a related reason, the record does not support imperfect self-defense.12 As
noted, imperfect self-defense is an actual but unreasonable belief in self-defense.
(Rangel, supra, 62 Cal.4th at p. 1226.) There is no evidence of actual belief in self-
defense in this case. The only evidence is Michael did not believe the threat was real. In
sum, we conclude the record was insufficient to invoke the trial court’s duty to instruct on
attempted voluntary manslaughter as a lesser included offense.13
B. No Prosecutorial Error
The Rodriguezes next claim “the prosecutor trivialized the elements of
premeditation and deliberation when he argued that an example was when a driver
approaches a green traffic light turning yellow.” They also fault the prosecutor for
arguing “ ‘any amount of reflection is deliberation.’ ” Finally, they argue trial counsel
were ineffective by failing to object.
The People assert the prosecutorial error claim is forfeited for lack of objection.
They concede the prosecutor misstated the law in reference to deliberation but claim the
misstatement was harmless.

11 This evidence was not admitted in Elijah’s trial.
12 Elijah does not claim imperfect self-defense.
13Additionally, we note the trial court openly discussed attempted voluntary
manslaughter as a lesser included offense. Each counsel explicitly declined a
corresponding jury instruction.

8.
 We resolve the issue on its merits.14 While we agree the prosecutor did misstate
the law, it did not amount to prejudicial error, and neither trial counsel was ineffective for
failing to object.
i. Additional Background
Prior to closing arguments, the court instructed the jury “deliberation” means
“carefully weigh[ing] the consideration for and against [killing] and[,] knowing the
consequences[,] decid[ing] to kill. … The test is the extent of the reflection not, the
length of time.”
In closing argument, the prosecutor made the following analogy:

“As I have had it described before to me, an example of
deliberation is when a driver is approaching a stale green light
and as that driver is approaching the light, and as that driver is
approaching, it turns yellow. At that point the driver has
some decisions to make. One, do I slam on the brakes? Or
two, do I slam on the gas pedal and try to blow through the
light. If I do slam on the gas pedal, am I going to get a ticket
or worse, am I going to get in a wreck. That’s an example of
the deliberation. It’s also an example of the amount of time
that is required for deliberation and, again, there is no set
amount of time that – for an attempted killing to be
deliberate. According to the instruction, any amount of
reflection is deliberation.”
Neither defense counsel objected.
A short time later, Elijah’s counsel argued, “I think coming up to a yellow light,
you get pushed in the position of between a rock and a hard place, and you have to make
an emotional decision whether you are going to go for it or not, not that you premeditated
and intentionally risked running a red light. It takes a little more planning.” After,
Michael’s counsel retorted,

14Appellate courts have discretion to review forfeited claims. (In re Sheena K.
(2007) 40 Cal.4th 875, 887, fn. 7.)

9.
 “[the] example of the car going through the yellow light, well,
… the problem here is that with the car going through a
yellow light, that’s something all of us have decided or had to
deal with probably hundreds of times in our driving careers,
you know. You know, every few days we have to make that
decision, am I going to go through that light? Am I not going
to go through that light? … It’s more of a reaction than a
deliberation. So deliberation does take some time. You have
to think about the consequences.”
No party again discussed the analogy.
ii. Analysis
“When attacking the prosecutor’s remarks to the jury, the defendant must show
that, ‘[i]n the context of the whole argument and the instructions’ [citation], there was ‘a
reasonable likelihood the jury understood or applied the complained-of comments in an
improper or erroneous manner. [Citations.] In conducting this inquiry, we “do not
lightly infer” that the jury drew the most damaging rather than the least damaging
meaning from the prosecutor’s statements.’ ” (People v. Centeno (2014) 60 Cal.4th 659,
667 (Centeno).) “To establish such error, bad faith on the prosecutor’s part is not
required.” (Id. at p. 666.) “In the absence of prejudice to the fairness of a trial, a
prosecutor’s errant remarks do not require reversal.” (People v. Dworak (2021)
11 Cal.5th 881, 914 (Dworak).)
“As a general rule, ‘ “[a] defendant may not complain on appeal of prosecutorial
misconduct unless in a timely fashion, and on the same ground, the defendant objected to
the action and also requested that the jury be admonished to disregard the perceived
impropriety.” ’ [Citation.] The defendant’s failure to object will be excused if an
objection would have been futile or if an admonition would not have cured the harm
caused by the misconduct.” (Centeno, supra, 60 Cal.4th at p. 674.)
We initially note “[n]othing in this record indicates that an objection would have
been futile. Nor was the prosecutor’s argument so extreme or pervasive that a prompt
objection and admonition would not have cured the harm.” (Centeno, supra, 60 Cal.4th

10.
at p. 674.) Ordinarily, this would forfeit the issue. (See ibid.) We choose, however, to
resolve the claim on its merits because the Rodriguezes anchor it to their counsels’
purported failure to object.
“ ‘[T]o establish a claim of ineffective assistance of counsel, [a] defendant bears
the burden of demonstrating, first, that counsel’s performance was deficient because it
“fell below an objective standard of reasonableness [¶] ... under prevailing professional
norms.” [Citations.] Unless a defendant establishes the contrary, we shall presume that
“counsel’s performance fell within the wide range of professional competence and that
counsel’s actions and inactions can be explained as a matter of sound trial strategy.” ’ ”
(People v. Bell (2019) 7 Cal.5th 70, 125 (Bell).) “ ‘ “If a defendant meets the burden of
establishing that counsel’s performance was deficient, he or she also must show that
counsel’s deficiencies resulted in prejudice, that is, a “reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” ’ ” (Ibid.)
The Rodriguezes have failed to discharge the burden under either prong.
Although neither of their counsel objected to the prosecutor’s traffic-light analogy, both
explicitly addressed it in their respective arguments to the jury. We decline to find as a
matter of law such a tactic is unprofessional or unreasonable.
In any event, were we to assume counsel were unprofessional, we would not find
prejudice. The prosecutor’s comment “any amount of reflection is deliberation” was
error but brief and isolated. (See Dworak, supra, 11 Cal.5th at pp. 914—915 [brief,
erroneous comments “did not compromise fairness of the trial”]; People v. Gomez (2018)
6 Cal.5th 243, 311 [harmless error where challenged argument was “ ‘brief and
isolated’ ”].) As for the remainder of the analogy, both counsel tackled it directly.
Importantly, the trial court otherwise properly instructed the jury on deliberation
and “[j]urors are presumed able to understand and correlate instructions and are further
presumed to have followed the court’s instructions.” (People v. Sanchez (2001)

11.
26 Cal.4th 834, 852 (Sanchez).) The Rodriguezes have not overcome this presumption.
(Dworak, supra, at 11 Cal.5th at p. 914 [reversal for prosecutorial error appropriate only
where trial rendered fundamentally unfair].)
Finally, the Rodriguezes analogize the prosecutor’s argument to “[arguments] that
have been held to impermissibly make light of the reasonable doubt standard of proof.”
They principally rely on three cases to illustrate the point. We take each in turn.
In People v. Nguyen (1995) 40 Cal.App.4th 28, the prosecutor argued reasonable
doubt was “ ‘a very reachable standard that you use every day in your lives when you
make important decisions, decisions about whether you want to get married, decisions
that take your life at stake when you change lanes as you’re driving.’ ” (Id. at p. 35.)
The appeals court explained “the almost reflexive decision to change lanes while driving
is quite different from the reasonable doubt standard in a criminal case.” (Id. at p. 36.)
The court expressed “disapprov[al] of arguments suggesting the reasonable doubt
standard is used in daily life to decide such questions as whether to change lanes or
marry” but ultimately found the complaint forfeited because the defendant “did not
object.” (Ibid.) Here, the prosecutor’s argument did not invoke the standard of proof.
In People v. Johnson (2004) 115 Cal.App.4th 1169, the trial judge equated
reasonable doubt to decisions involving vacation planning. (Id. at p. 1171.) The appeals
court stated, “We are not prepared to say that people planning vacations or scheduling
flights engage in a deliberative process to the depth required of jurors or that such people
finalize their plans only after persuading themselves that they have an abiding conviction
of the wisdom of the endeavor.” (Id. at p. 1172.) It held the comment “reduced the
prosecution’s burden to a preponderance of the evidence.” (Ibid.) The prosecutor’s
analogy in this case did not relate to the burden of proof.
In People v. Avila (2009) 46 Cal.4th 680 (Avila), the prosecutor “used [an]
example of assessing one’s distance from a traffic light, and the location of surrounding
vehicles, when it appears the light will soon turn yellow and then red, and then

12.
determining based on this information whether to proceed through the intersection when
the light does turn yellow ….” (Id. at p. 715.) The Supreme Court held the prosecutor
properly used the analogy “as an example of a ‘quick judgment’ that is nonetheless ‘cold’
and ‘calculated.’ ” (Ibid.)
This case is no different. The prosecutor here used the yellow light analogy to
explain how quickly one could deliberate by assessing multiple factors with haste. It did
not relate to, let alone have the effect of reducing, the burden of proof.
In sum, the Rodriguezes cannot prove ineffective assistance. Although their
counsel did not object to the prosecutor’s argument, counsel did address the asserted error
by direct argument. Indeed, their combined response persuasively explained deliberation
involves meaningful thought, while also undermining the argument the decision to
change lanes is akin to actual deliberation. In any event, the prosecutor’s traffic-light
analogy was not error. (Avila, supra, 46 Cal.4th at p. 715.) Finally, the prosecutor’s
misstatement “any amount of reflection is deliberation” was brief and does not rise to
prejudicial error. The prosecutorial error claim fails.15

C. The AB 333 Amendments to Section 186.22 Apply Retroactively and
Require Reversal of the Gang Crime and Vacatur of the Gang
Enhancements
AB 333 amended section 186.22 to, in various respects, increase the evidentiary
burden necessary to prove a gang-related crime enhancement. We conclude the
amendment is ameliorative and applies retroactively to cases not yet final on appeal. In
this case, AB 333 requires us to reverse the count 4 gang crime and vacate all gang
enhancements.

15 In addition, the Rodriguezes swiftly claim the prosecutor “placed the prestige of
his office behind the argument” “by prefacing his analogy with the phrase ‘as I have had
it described to me before[.]’ ” We decline to infer this anonymous, vague reference
placed the district attorney’s prestige behind the argument.

13.
 i. Retroactivity
“[A]bsent evidence to the contrary, [we presume] the Legislature intended
amendments to statutes that reduce punishment for a particular crime to apply to all
whose judgments are not yet final on the amendments’ operative date. [Citations.] 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).)
AB 333 “increases the threshold for conviction of the section 186.22 offense and
the imposition of the enhancement ….” (Lopez, supra, 73 Cal.App.5th at p. 344.) It is an
ameliorative amendment. Because the bill and its implementation are silent regarding
retroactivity, it does apply to all nonfinal cases on appeal.16 (Ibid.; In re Estrada (1965)
63 Cal.2d 740, 744-746.)
ii. Analysis
Although AB 333 transforms section 186.22 in several respects, we focus on one
change in particular. To prove the existence of a criminal street gang itself,
section 186.22, subdivision (f), requires proof of “a pattern of criminal gang activity.”
“The offenses comprising a pattern of criminal gang activity are referred to as predicate
offenses.” (People v. Valencia (2021) 11 Cal.5th 818, 829.)
Prior to AB 333, it was unnecessary to prove predicate offenses were gang
related.17 (People v. Gardeley (1996) 14 Cal.4th 605, 609-610 (Gardeley) [“We disagree
that the predicate offenses must be ‘gang related.’ ”].) Now, the law requires “the
[predicate] offenses [to] commonly benefit[] a criminal street gang, and the common

16 As noted, the People concede the law applies retroactively in this case.
17Indeed, the jury here was instructed “[t]he crimes, if any, that establish a pattern
of criminal gang activity, need not be gang-related.”

14.
benefit of the offense is more than reputational,” effectively overruling Gardeley, supra.
(§ 186.22, subd. (e)(1).)
As now defined by statute, there was no evidence the predicate offenses proven at
trial commonly benefitted a gang.18 (See § 186.22, subd. (g) [defining what constitutes a
more than reputational common benefit].) Accordingly, the evidence adduced at trial to
prove a criminal street gang itself is no longer valid. The existence of a criminal street
gang is a prerequisite to proving the gang crime and the gang enhancement. (§ 186.22,
subd. (f); see Lopez, supra, 73 Cal.App.5th at p. 345-347.) On this basis, we reverse the
count 4 gang crime convictions and vacate all gang enhancements.19
II. Elijah’s Arguments: Inadmissible Evidence and Evidentiary Sufficiency
Elijah’s contentions center around the inadmissibility in his trial of Michael’s law
enforcement interview, and whether the evidence was sufficient to prove certain facts.
As for Michael’s interview, Elijah claims the court failed to admonish the jury that
evidence was not admissible against Elijah immediately preceding its introduction into
evidence. In other words, the court’s later admonition came too late. Relatedly, Elijah
blames his counsel for failing to request a contemporaneous admonition.
Next, Elijah faults his counsel for not objecting to the hypothetical question the
prosecutor asked the gang expert. He complains the hypothetical included an assumed
fact not admissible against him, i.e., that one assailant believed the hypothetical victim
was a rival gang member.

18 The People concede the evidentiary void.
19 Because we rule on this basis, we need not address other arguments AB 333
requires reversal. Elijah urges the recent amendments further undermine the evidentiary
sufficiency for the gang enhancements. We disagree. Nothing in AB 333 alters our
conclusion the evidence was sufficient to prove Elijah committed a gang-related crime in
association with a gang as the law stood at the time. (Post, II., C., iii.; see People v.
Shirley (1982) 31 Cal.3d 18, 71 [retrial permitted where posttrial change in law
invalidates certain evidence because prosecution proved its “case under the law as it then
stood” having “had little or no reason to produce other evidence of guilt.”].)

15.
 With reference to evidentiary sufficiency, Elijah challenges the evidence to prove
he premeditated and deliberated the attempted murder, committed the crime to benefit a
gang, personally inflicted great bodily injury, and personally used a firearm. The People
concede the evidence did not prove Elijah personally inflicted great bodily injury but
oppose all other arguments.
We conclude the evidence failed to prove both Elijah personally inflicted great
bodily injury and personally used a firearm. We will order these enhancements stricken.
The remaining claims lack merit.
A. The Limiting Instruction Was Properly Given
Elijah points out “[t]he trial court did not instruct the jury that it could not use
Michael’s [law enforcement interview] against Elijah at the time of the admission of
Michael’s hearsay statement.” That interview, he claims, supplied a gang motive and
“tightly linked [him] to the crime ….” He asserts the court belatedly admonished the jury
about the inadmissibility of Michael’s statement at a point where “the jury had already
absorbed Michael’s statement and naturally used it to connect [Elijah] to the crime as it
followed along with the evidence.” This, he claims, violated his Sixth Amendment right
to confrontation. Similarly, he faults his counsel for failing to demand a timely limiting
instruction.
The People argue:

“Elijah forfeited his claim by failing to object below.
Regardless, the trial court did not abuse its discretion in
giving the limiting instruction at the end of trial. The timing
was reasonable, because the limiting instruction related to the
manner in which the jury was to conduct its deliberations.
And, trial counsel was not ineffective for failing to object to
the timing of that instruction.”
We generally agree with the People’s argument.

16.
 i. Additional Background
At the beginning of the trial the jurors were instructed to “[k]eep an open mind
throughout the trial” and to “not make up [their] mind[s] about the verdict or any issue
until after … discuss[ing] the case with the other jurors during deliberations.”
(CALCRIM No. 101.) When Michael’s law enforcement interview—in which he
admitted to confronting and believing the victim was a rival gang member—was
introduced into evidence, the jury was not instructed it was inadmissible against Elijah.
At the end of evidence, the jury was informed about the separate admissibility of
Elijah’s and Michael’s distinct law enforcement statements. The prosecutor subsequently
emphasized that separate admissibility no less than five times in closing argument.
ii. Analysis
“Evidence Code section 355 requires the court to give appropriate limiting
instructions if properly requested. However, the timing of these instructions is in the trial
court’s discretion. [Citations.] Thus, the trial court is not obliged to give limiting
instructions the moment they are requested or when the limited evidence is presented;
subsequent instruction can be sufficient in a proper case.” (People v. Dennis (1998)
17 Cal.4th 468, 533-534.)
Put simply, so long as a limiting instruction is effective, it does not implicate the
right to confrontation. Because the jury was instructed to not reach any conclusion until
it began its deliberations, i.e., a point after which it heard the limiting instruction at issue,
the instruction was effective and sufficient to safeguard Elijah’s right to confrontation.20
Contrary to Elijah’s contention, we see no reason why the jury could not follow this
instruction. (See Sanchez, supra, 26 Cal.4th at p. 852 [“Jurors are presumed able

20 A more pertinent question is whether the court abused its discretion by waiting
to provide the limiting instruction in this case. Because the instruction was ultimately
effective, it likewise was not an abuse of discretion to provide it later in the trial.

17.
to understand and correlate instructions and are further presumed to have followed the
court’s instructions.”].)
Moreover, the prosecutor reiterated that limitation to jury several times prior to its
deliberations. In these circumstances, we have no reason to doubt the instruction’s
efficacy and, because it was effective, Elijah was not prejudiced by his counsel’s asserted
failure to demand an earlier instruction.
B. Counsel Was Not Ineffective Relative to the Hypothetical Question
Elijah blames counsel for not objecting to the prosecutor’s hypothetical question
because it included a fact admissible only against Michael, i.e., that one of the assailants
believed the victim was a rival gang member. The People claim Elijah was not
prejudiced by that assumption in the hypothetical question. We agree.
The Sixth Amendment guarantees the “ ‘right to the effective assistance of
counsel.’ ” (Strickland v. Washington (1984) 466 U.S. 668, 685—686.) “ ‘[T]o establish
a claim of ineffective assistance of counsel, [Elijah] bears the burden of demonstrating,
first, that counsel’s performance was deficient because it “fell below an objective
standard of reasonableness [¶] ... under prevailing professional norms.” [Citations.]
Unless [he] establishes the contrary, we shall presume that “counsel’s performance fell
within the wide range of professional competence and that counsel’s actions and
inactions can be explained as a matter of sound trial strategy.” [Citation.] If the record
“sheds no light on why counsel acted or failed to act in the manner challenged,” an
appellate claim of ineffective assistance of counsel must be rejected “unless counsel was
asked for an explanation and failed to provide one, or unless there simply could be no
satisfactory explanation.” [Citations.] If [he] meets the burden of establishing that
counsel’s performance was deficient, he … also must show that counsel’s deficiencies
resulted in prejudice, that is, a “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” ’ ” (Bell,
supra, 7 Cal.5th at p. 125.)

18.
 “The object of an ineffectiveness claim is not to grade counsel’s performance. If it
is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice … that course should be followed.” (In re Cox (2003) 30 Cal.4th 974, 1019-
1020; People v. Carrasco (2014) 59 Cal.4th 924, 982.) We follow that course here.
Although Elijah’s counsel did not object to the hypothetical question, Michael’s
counsel did cross-examine the expert regarding the exact issue on appeal. The expert
replied the fact only one hypothetical assailant believed the victim was a rival gang
member was irrelevant to opining the crime was gang related. Because Michael’s
counsel cross-examined the expert first, it was not deficient or unprofessional for Elijah’s
counsel to not ask the same question.21
For the same reason, Elijah cannot demonstrate prejudice. The expert testified the
assumed fact now challenged on appeal was irrelevant to the opinion. In other words, the
fact one hypothetical assailant did not believe the victim was a rival gang member did not
change the opinion the crime was gang related.22
Most importantly, the victim testified both of his assailants were speaking “their
boo boo gang shit.” There is no reasonable doubt Elijah was one of those assailants. The
expert testified the crime was associated with the gang because it was a primary activity
committed by two active gang members. This evidence, amplified by testimony gang
members are expected to assist one another in battle, left little doubt Elijah assaulted the

21We might have concluded Elijah’s counsel was deficient were there no
objection and no pertinent cross-examination in the record.
22 To this extent, the jury was instructed: “An expert witness may be asked a
hypothetical question. A hypothetical question asks the witness to assume certain facts
are true and to give an opinion based on the assumed facts. It is up to you to decide
whether an assumed fact has been proved. If you conclude that an assumed fact is not
true, consider the effect of the expert’s reliance on that fact in evaluating the expert’s
opinion.” (CALCRIM No. 332.)

19.
victim with an underlying gang motive. Assumed facts derived from Michael’s separate
interview are immaterial to this conclusion.
Accordingly, it is not reasonably probable the jury would have had a reasonable
doubt the crime was gang related had Elijah’s counsel interposed an objection to the
hypothetical question. For these reasons we reject the ineffective assistance claim.
C. Evidentiary Claims
Elijah presents four evidentiary challenges. One, is the evidence sufficient to
prove Elijah premeditated and deliberated the attempted murder? Two, is the evidence
sufficient to prove the crimes were gang related? Three, is the evidence sufficient to
prove Elijah personally used a firearm? Four, is the evidence sufficient to prove Elijah
personally inflicted great bodily injury?
The People concede the evidence insufficiently proved Elijah personally inflicted
great bodily injury but dispute the other claims. We conclude the evidence sufficiently
proved premeditation, deliberation, and gang relation but find it insufficient to prove
Elijah personally inflicted great bodily injury or personally used a firearm.
i. Reviewing Standard
“When considering a challenge to the sufficiency of the evidence to support a
conviction, we review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence—that is, evidence that is reasonable,
credible, and of solid value—from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citation.] … We presume in support of
the judgment the existence of every fact the trier of fact reasonably could infer from the
evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings,
reversal of the judgment is not warranted simply because the circumstances might also
reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither
reweighs evidence nor reevaluates a witness’s credibility.” (People v. Lindberg (2008)
45 Cal.4th 1, 27.)

20.
 ii. Premeditation and Deliberation
“ ‘ “ ‘ “[P]remeditated” means “considered beforehand,” and “deliberate” means
“formed or arrived at or determined upon as a result of careful thought and weighing of
considerations for and against the proposed course of action.” ’ ” ’ ” (People v.
Morales (2020) 10 Cal.5th 76, 88 (Morales).) An attempt to kill “ ‘ “ ‘is premeditated
and deliberate if it occurred as the result of preexisting thought and reflection rather than
unconsidered or rash impulse.’ ” ’ ” (Ibid.)
There are “ ‘three basic categories’ of evidence … generally found sufficient to
sustain a finding of premeditation and deliberation: (1) planning activity, or ‘facts about
how and what defendant did prior to the actual [attempt to kill] which show that the
defendant was engaged in activity directed toward, and explicable as intended to result in,
[a] killing’; (2) motive, or ‘facts about the defendant’s prior relationship and/or conduct
with the victim from which the jury could reasonably infer a “motive” to kill the victim’;
and (3) manner of [attempt], or ‘facts about the nature of the [attempt] from which the
jury could infer that the manner of [attempted] killing was so particular and exacting that
the defendant must have [intended to kill] according to a “preconceived design” to take
his victim’s life in a particular way for a “reason” ....’ ” (Morales, supra, 10 Cal.5th at
pp. 88—89.) We find evidence of each category in this case.
Planning activity is evidenced by the fact at least one Rodriguez was armed with a
weapon. Although only one of them believed he recognized the victim and asked the
driver to pull over, both of them exited the vehicle together and confronted the victim
while expressing gang-related language. This evidences a preconceived—even if hasty—
plan to accost the victim.

21.
 Similarly, the record proves a motive. The fact Elijah preceded the attack with
gang-related language readily proves a gang-related motive.23 As for manner of attempt,
the fact the attack involved a hallmark deadly weapon and serious chest wounds leaves
little room to doubt the assailants intended to kill.
Taken together and combined with the fact one of the gang’s primary activities is
homicide, the jury could readily infer Elijah initiated this encounter with premeditation
and deliberation. In other words, the jury could reasonably conclude Elijah first
identified a victim and then launched a gang-related attack while intending to kill. The
fact it appears Elijah’s and the victim’s paths crossed fortuitously is immaterial.
(Morales, supra, 10 Cal.5th at p. 88 [“ ‘ “cold, calculated judgment may be arrived at
quickly ….” ’ ”].) Accordingly, we find the evidence sufficient to prove premeditation
and deliberation.
iii. Gang-Related Crimes
Elijah argues “the prosecution presented insufficient evidence that [he] committed
a crime for the benefit of the gang[.]” He concludes “the prosecution presented no
evidence regarding [his] intent in the incident ….” He is mistaken.
The gang-related crime enhancement applies to crimes “that were
(1) ‘ “committed for the benefit of, at the direction of, or in association with any criminal
street gang,” ’ and (2) ‘ “with the specific intent to promote, further, or assist in any
criminal conduct by gang members.” ’ ” (People v. Rivera (2019) 7 Cal.5th 306, 331.)
The record here amply proved Elijah committed the crime in association with a gang and,

23Elijah states “the evidence [did not] show that [he] in particular had a motive
with respect to” the victim. We disagree. The victim clearly described both attackers
were speaking “their boo boo gang shit.”

22.
due to the fact he committed it in tandem with a fellow gang member, necessarily proved
an intent to “assist in any criminal conduct by gang members.”24 (§ 186.22, subd. (b).)
As discussed above, the victim stated Elijah and Michael were “speaking” gang-
related language prior to the attack. The gang expert testified gang members are not only
expected to attack rival gang members but also expected to assist fellow gang members
involved in any confrontation. For these reasons, the jury could reasonably conclude the
crimes in this case were associated with a gang, i.e., would not have occurred if not for a
gang-related motive underlying the attack.
Because the “evidence establishes [Elijah] intended to and did commit the charged
[crimes] with known members of a gang, the jury [could] fairly infer that [he] had the
specific intent to promote, further, or assist criminal conduct by those gang members.”
(People v. Albillar (2010) 51 Cal.4th 47, 68.) In sum, the evidence fairly proved Elijah
committed gang-related crimes.
iv. Personal Firearm Use
Elijah asserts the evidence demonstrated “two people assaulted [the victim], one
using a knife and the other a gun[,] [b]ut as to which role [he] played, the jury had no
evidence.” The People acknowledge Michael’s confession which shed light on Elijah’s
role was not admissible against Elijah. Nonetheless, they claim “in light of [the victim’s]
injuries and statement about the roles of [the] attackers, the jury could logically infer that
Elijah used [the] gun ….” We fail to comprehend the logic.

24 In briefing, Elijah only alleges the evidence did not prove a benefit to the gang.
His argument is somewhat conclusory and vague. We note the prosecution at trial
alleged and argued he committed the crime either to benefit the gang or in association
with the gang. The jury was appropriately instructed in the alternative. Proof of either is
sufficient to uphold the verdict and, because we conclude the crimes here were in
association with a gang, we need not address the benefit theory. (People v. Guiton (1993)
4 Cal.4th 1116, 1127 [“if there are two possible grounds for the jury’s verdict, one
unreasonable and the other reasonable, we will assume, absent a contrary indication in
the record, that the jury based its verdict on the reasonable ground”].)

23.
 Put simply, no evidence established either attacker’s role in Elijah’s trial. “When
the facts give equal support to two competing inferences, neither is established.”
(People v. Acevedo (2003) 105 Cal.App.4th 195, 198; accord People v. Smith (2005)
135 Cal.App.4th 914, 927 [“A ‘coin flip’ situation … does not constitute substantial
evidence.”].) The evidence was insufficient to prove Elijah personally used a firearm.
We will order the enhancement stricken.
v. Personal Infliction of Great Bodily Injury
The People concede the evidence did not prove Elijah personally inflicted great
bodily injury. They acknowledge the prosecutor at trial relied on chest wounds to prove
the great bodily injury allegation. They conclude “there was insufficient evidence that
Elijah stabbed [the victim], so there was insubstantial evidence that Elijah personally
caused [the victim’s] significant lung injury.” We accept the concession for the same
reasons we found the evidence insufficient to prove personal firearm use.
Because the evidence admitted against Elijah did not establish his role in the
crime, it could not establish he personally inflicted the significant lung injury. The
evidence did not prove Elijah personally inflicted great bodily injury and we will order
the enhancement stricken.25
III. Michael’s Contention
Michael contends the jury instructions on aiding and abetting liability permitted
“the jury to convict [him] of attempted premeditated and deliberate murder without a
finding that he personally acted with premeditation and deliberation.” The People point
out Supreme Court precedent forecloses the issue. We are bound to follow Supreme

25Because Elijah was otherwise sentenced to the maximum term, it is unnecessary
to remand the case for resentencing. (See People v. Buycks (2018) 5 Cal.5th 857, 896,
fn. 15.)

24.
Court precedent which does in fact foreclose Michael’s claim.26 (See Auto Equity Sales,
Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
In People v. Lee (2003) 31 Cal.4th 613 (Lee), the Supreme Court “conclude[d] …
that an attempted murderer who is guilty as an aider and abettor, but who did not
personally act with willfulness, deliberation, and premeditation, is [nonetheless]
sufficiently blameworthy” for enhanced punishment. (Id. at p. 624.) In People v. Chiu
(2014) 59 Cal.4th 155 (Chiu), the Supreme Court reiterated “increased punishment for an
attempt to commit a murder that is willful, deliberate, and premeditated, was a penalty
provision and did not create a greater offense or degree of attempted murder.” (Id. at
p. 162; People v. Favor (2012) 54 Cal.4th 868, 876—877.)
The Legislature has since enacted laws retreating, in part, from Lee, supra. Most
recently, Senate Bill No. 775 (Stats. 2021, ch. 551, §§ 1 & 2) (SB 775) amended
section 1170.95. Section 1170.95 originally allowed convicted murders to petition for
resentencing if “malice [was] imputed … based solely on that person’s participation in a
crime ….” SB 775 amended the law to expand relief to those convicted of “attempted
murder under the natural and probable consequences doctrine ….” But Michael was not
convicted under the natural and probable consequences doctrine.
Returning to Lee, supra, the Supreme Court made clear its holding was based on
direct aiding and abetting, not the natural and probable consequences doctrine. (Lee,
supra, 31 Cal.4th at p. 624 [“Of course, where the natural-and-probable-consequences
doctrine does apply, an attempted murderer who is guilty as an aider and abettor may be
less blameworthy.”]; see Chiu, supra, 59 Cal.4th at p. 162.) It appears then SB 775 does
not alter the outcome in this case.27 The court’s direct aiding and abetting instructions
here, relative to premeditation and deliberation, were not error under Lee, supra.

26 Michael concedes he “raises this claim to preserve it for further review.”
27 Neither party filed supplemental briefing related to SB 775.

25.
 CONCLUSION
To summarize, the convictions in counts 1, 2, and 3 and the premeditation
enhancement stand in both cases. As to Michael, the section 12022.7 enhancements
remain. As to Elijah, the section 12022.5 and 12022.7 enhancements are stricken.
The count 4 convictions are reversed. All gang enhancements are vacated. The
People may elect to retry count 4 and the gang enhancements.
DISPOSITION
In Michael Rodriguez’s case, the judgment is reversed. The conviction in count 4
is reversed. The section 186.22, subdivision (b), enhancements are vacated on all counts.
The remaining convictions and findings are affirmed.
In Elijah Rodriguez’s case, the judgment is reversed. The conviction in count 4 is
reversed. The section 186.22, subdivision (b), enhancements are vacated on all counts.
The section 12022.5 and section 12022.7 enhancements are stricken. The remaining
convictions and findings are affirmed.

SNAUFFER, J.
WE CONCUR:

DETJEN, ACTING P. J.

DE SANTOS, J.

26.