People v. Nava CA4/1

Filed 3/30/22 P. v. Nava CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D079040

Plaintiff and Respondent,

v. (Super. Ct. No. 17-CR05114)

JUAN GARCIA NAVA et al.,

Defendants and Appellants.

APPEAL from a judgment of the Superior Court of Santa Clara County,
Timothy R. Volkmann, Judge. Reversed in part, affirmed in part and
remanded for resentencing.
Jennifer A. Mannix, under appointment by the Court of Appeal, for
Defendant and Appellant, Rogelio Castillo.
Solomon Wallack, under appointment by the Court of Appeal, for
Defendant and Appellant, Juan Garcia Nava.
Rob Bonta and Xavier Becerra, Attorneys General, Matthew Rodriquez,
Acting Attorney General, Lance E. Winters and Jeffrey M. Laurence,
Assistant Attorneys General, Catherine A. Rivlin and Allen R. Crown,
Deputy Attorneys General, for Plaintiff and Respondent.
 The People charged codefendants Juan Luis Nava Garcia and Rogelio
Castillo with shooting at two houses of a rival gang in Watsonville,
California. A jury convicted them of crimes and found true special
allegations related to only a West 5th Street incident.
Nava’s Convictions and Sentence
A jury convicted Nava of the attempted willful, deliberate and

premeditated murder of D.C. (Pen. Code,1 §§ 664, 187, subd. (a); count 1),
shooting at an inhabited dwelling on West 5th Street (§ 246; count 2), assault
with a firearm on D.C. (§ 245, subd. (a)(2); count 3), possession of a firearm by
a felon (§ 29800, subd. (a)(1); count 4), active participation in a criminal
street gang (§ 186.22, subd. (a); count 7), misdemeanor battery on a peace
officer (§ 243, subd. (b); count 8), and misdemeanor resisting a peace officer
(§ 148, subd. (a); count 9). It made true findings of premeditation as to count
1 (§ 664, subd. (a)), street gang allegations as to counts 1 through 4 (§ 186.22,
subd. (b)(1)), firearm use and special allegations as to counts 1 through 3
(§§ 12022.5, subds. (a) and (d); 12022.53, subds. (b), (c), (d), (e), (e)(1)), and a
great bodily injury allegation as to count 3 (§ 12022.7, subd. (a)). The jury
found Nava not guilty of shooting at an uninhabited building on Ross Street
(§ 246; count 5) and assault with a firearm on S.C. (§ 245, subd. (a)(2); count
6).
The court found true that Nava had suffered a prior serious felony
conviction. (§ 667, subds. (a)(1), (b)-(i).) It sentenced him to 55 years to life in
prison as follows: under section 186.22, subdivision (b)(5), 15 years to life on
the attempted murder conviction, doubled to 30 years to life under the “Three
Strikes” law, plus 25 years on the firearm use allegations (§ 12022.53 subds.
(d) and (e)).

1 Undesignated statutory references are to the Penal Code.
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Castillo’s Convictions and Sentence
A jury convicted Castillo of attempted willful, deliberate and
premeditated murder of D.C. (§§ 664, 187, subd. (a); count 1), shooting at an
inhabited dwelling on West 5th Street (§ 246; count 2), assault with a firearm
on D.C. (§ 245, subd. (a)(2); count 3), possession of a firearm by a felon
(§ 29800, subd. (a)(1); count 4), resisting an executive officer (§ 69; count 5),
evading an officer (Veh. Code, § 2800.2, subd. (a); count 8), active
participation in a criminal street gang (§ 186.22, subd. (a); count 9), and
misdemeanor resisting a peace officer (§ 148, subd. (a); count 10). It found
true that as to count 1 the attempted murder was committed willfully,
deliberately, and with premeditation (§ 664, subd. (a)); as to counts 1 and
2 special allegations that a principal discharged a firearm that caused great
bodily injury (§ 12022.53, subds. (d), (e)(1)), a principal discharged a firearm
(§ 12022.53, subds. (c), (e)(1)), and a principal used a firearm (§ 12022.53,
subds. (b), (e)); and as to counts 1 through 5 and 8 that the crimes were
committed for the benefit of a criminal street gang (§ 186.22, subds. (b)(1)-
(4)). It found Castillo not guilty on count 6 (§ 246; shooting at an uninhabited
building on Ross Street) and count 7 (§ 245, subd. (a)(2); assault with a
firearm on S.C.).
The court found true that Castillo had suffered a prior prison term
(§ 667.5, subds. (b)-(f)). It sentenced him to 32 years to life in prison as
follows: seven years to life for the attempted premeditated murder plus 25
years for the gun allegations under sections 12022.53, subdivisions (d) and
(e)(1). It imposed but stayed the sentence on the other counts.
Appellants’ Contentions
Appellants jointly contend the trial court: (1) violated their
constitutional due process rights by failing to instruct the jury on self-defense

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as to the attempted murder, assault with a firearm, and shooting at an
inhabited dwelling charges; (2) violated their constitutional due process
rights on the attempted murder count by failing to instruct on the lesser
included offense of voluntary manslaughter due to imperfect self-defense; and
(3) committed cumulative error. They contend in supplemental briefing that
under Assembly Bill No. 333, which amended section 186.22, insufficient
evidence supports their gang-related convictions and enhancements. They
further contend that under Assembly Bill No. 518, which amended section
654, the trial court on remand should have an opportunity to exercise its
newfound discretion to choose as the principal count any offense that
occurred during the same course of conduct.
Nava separately contends the trial court: (1) erroneously admitted
prejudicial evidence of a recording made in a patrol car in which he
mentioned he should have shot police officers; and (2) violated his
constitutional right to fair notice because as to count 1, it sentenced him on
both the gang enhancement (§ 186.22, subd. (b)(1)) and gang-related firearm
enhancement (§ 12022.53, subd. (d)), although the People did not specifically
charge him with the firearm enhancement as to this count.
Castillo separately contends the trial court: (1) abused its discretion by
denying his motions to replace his trial counsel under People v. Marsden
(1970) 2 Cal.3d 118 (Marsden); and (2) erroneously imposed a seven-year-to-
life term on the attempted premeditated murder conviction.
The People concede and we agree appellants’ gang-related convictions
and enhancements should be reversed and the matter remanded for
resentencing. They further concede, and we again agree, that Nava’s 25-year
sentence on count 1 and Castillo’s seven-year sentence on count 1 were
improperly imposed. We reverse the gang-related convictions and vacate the

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enhancements, otherwise affirm the judgment, and remand with directions
set forth below.
FACTUAL AND PROCEDURAL BACKGROUND
The Ross Street Incident
On August 11, 2017, appellants, who were Sureño gang members,
drove a pickup truck in front of a rival Norteño gang house on Ross Avenue,
where some men were in the driveway. Someone from the pickup truck fired
several gunshots in the direction of the men outside, grazing S.C. and
striking a car in the driveway. As appellants sped away, one of the men
outside the house returned fire.
The West 5th Street Incident
Approximately 30 minutes later, Nava shot at another well-known
Norteño gang house on West 5th Street. D.C. testified he was outside the
house with a group of five or six men that afternoon when a man stepped
outside the residence and said, “What’s up.” Nava, who was the passenger in
the truck, fired several bullets at some men standing on the porch. Castillo
drove away rapidly. A bullet struck D.C.’s right leg, leaving him with
permanent nerve damage and loss of feeling in his leg. Other bullets struck
the homeowner’s vehicle.
G.P. was also outside the residence that afternoon and testified that
when he saw the pickup truck arrive, he initially thought some friends were
dropping by. One person outside the residence waved his hand in the truck’s
direction. Seconds later, G.P. saw Nava fire two or three shots at the crowd
outside the residence and the truck immediately took off. The men outside
the house did not exchange words with Nava and Castillo. After the
shooting, G.P. cleaned up some beer cans and chip wrappers from the scene
and deposited them in a bin inside the house.

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 U.P., who resided at the West 5th Street house, testified that during
the incident he heard “three, four or five [gunshots], more or less.” He saw a
small car, not a truck, leaving the scene. When police arrived, they searched
the outside of his house but not inside.
A police officer spotted a pickup truck leaving the direction of West 5th
Street. Castillo and Nava saw the officer’s patrol car and drove toward a
freeway. Two patrol officers pursued them. As the truck exited the freeway,
Nava tossed four unexpended bullets out the window, and an officer later
retrieved them. Appellants exited the freeway and committed numerous
traffic infractions, endangering people on city streets. They stopped in a
parking lot near a “known hangout” or gathering spot for Sureño gang
members. Appellants ran in opposite directions.
An officer with a rifle yelled at Castillo to stop and lie down on the
ground, and he complied. Other officers handcuffed Castillo. Nava ran into
an open field. Watsonville Police Officer Rocha took Nava down to the
ground, and another officer handcuffed Nava. Nava told Officer Rocha,
“[Y]ou’re a little bitch.”
Police placed Castillo in the back of a patrol vehicle. Officer Rocha
testified that he turned on his body worn recorder when Castillo directly
threatened him and his family for several minutes: “[Castillo] asked me—
first, . . . why I no longer vacation in Mexico with my family. And then he
volunteered to answer that, by saying that I knew what the consequences
would be if I was to vacation in Mexico, our hometown.”
In the booking room, Nava twice spat on Officer Rocha. After police
placed Nava on the floor and put a spit mask on him, Nava told an officer,
“Just watch, what’s gonna happen to you is all business [sic].” Nava
described that officer’s personal vehicle and his home.

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 Appellants had a conversation in a police vehicle outfitted with a
recording device, and Castillo said he forgot his cell phone in the pickup and
would call and ask a relative to delete one of Castillo’s social media accounts.
Castillo mentioned his threats to Officer Rocha. Nava bragged to Castillo
that he spat on Officer Rocha and that he and Castillo would be on the front
page of a local newspaper. Nava also said he should have shot at the
pursuing officers.
DISCUSSION
I. Instructional Error Claims
A. CALCRIM Nos. 875 and 3470
Appellants contend the court violated their constitutional rights to due
process by failing to instruct the jury on self-defense to the charges of
attempted murder, shooting at an inhabited dwelling, assault with a firearm,
and active participation in a street gang. They specifically rely on testimony
that the West 5th Street house was a known gathering place for gang
members, and one of the men outside made a hand motion and asked the
truck’s passengers “What’s up,” which, they argue, could have been
interpreted as a gang threat. Appellants point out G.P. cleaned the scene
following the shooting. They highlight discrepancies in the testimony of
witnesses who heard as many as five gunshots and those who said Nava only
fired two or three shots. They infer there was a second shooter. They point
to the fact that one witness said the shooters left the scene in a small car and
not a truck, while other witnesses said they left in a truck. Appellants also
point out they had relied on self-defense and were acquitted on the Ross
Avenue counts.

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 1. Background
Both Nava’s and Castillo’s defense counsel requested the court instruct
the jury on self-defense or defense of another with a portion of CALCRIM No
875—Assault With Deadly Weapon or Force Likely to Produce Great Bodily
Injury, which provides that to prove the assault offense, the People must
prove that “[t]he defendant did not act (in self-defense/ [or] in defense of
someone else)].” The court declined on grounds insufficient evidence
supported that instruction. For the same reason, the court also declined to
instruct the jury with CALCRIM No. 3470—Right to Self-Defense or Defense
of Another (Non-Homicide).
However, as to the Ross Avenue incident, both defense counsel argued
self-defense instructions were supported by the evidence showing there was
return fire. The court agreed to instruct the jury on self-defense as to that
incident only (counts 6 and 7 against Castillo), and (counts 5 and 6 against
Nava).
2. Applicable Law
“A trial court must instruct the jury on general principles of law
necessary for the jury’s understanding of the case.” (People v. Ramirez (2019)
40 Cal.App.5th 305, 307.) The court has a sua sponte duty to instruct on
defenses relied upon by the defendant. (People v. Breverman (1998) 19
Cal.4th 142, 157.) “In determining whether the evidence is sufficient to
warrant a jury instruction, the trial court does not determine the credibility
of the defense evidence, but only whether ‘there was evidence which, if
believed by the jury, was sufficient to raise a reasonable doubt.’ ” (People v.
Salas (2006) 37 Cal.4th 967, 982.) The trial court does not have a duty to
give instructions based solely on conjecture and speculation. (People v. Young
(2005) 34 Cal.4th 1149, 1200.)

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 To justify an act of self-defense, the defendant must have an honest and
reasonable belief that bodily injury is imminent. (People v. Minifie (1996) 13
Cal.4th 1055, 1064; see also In re Christian S. (1994) 7 Cal.4th 768, 783
[perfect and imperfect self-defense require “an actual fear of an imminent
harm”].) The right of self-defense is limited to the use of force that itself is
reasonable under the circumstances. (Ibid.) For the imminent danger
element, “ ‘[f]ear of future harm—no matter how great the fear and no matter
how great the likelihood of the harm—will not suffice. The defendant’s fear
must be of imminent danger to life or great bodily injury.’ ” (People v.
Humphrey (1996) 13 Cal.4th 1073, 1082.) “ ‘Errors in jury instructions are
questions of law, which we review de novo.’ ” (People v. Fenderson (2010) 188
Cal.App.4th 625, 642.)
3. Analysis
We conclude the court did not err in refusing to instruct the jury on
self-defense as to the West 5th Street charges because substantial evidence
did not support such instruction. The evidence showed only that Nava fired
at the 5th West Street house, and not that anyone there returned fire at
appellants or that appellants were defending themselves against an attack.
On this record, there is no basis to conclude appellants reasonably believed
they were in imminent danger of bodily injury; rather, they drove from one
rival gang house to another, fired at men they believed were rival gang
members, and then drove away quickly. Nava concedes that “he and Castillo
may have been courting trouble by going to the West 5th Street house in the
first place.” There was no evidence that appellants were in imminent danger
of an attack to support a self-defense instruction.
Appellants argue the evidence that one of the men at the West 5th
Street residence said, “What’s up,” and that different witnesses reported

9
different numbers of shots fired, was sufficient to instill in them a belief that
they needed to immediately defend themselves. Assuming one of the men
outside the residence in fact used the words “what’s up”—and the testimony
is in dispute on this point—in this context, those words did not necessarily
imply a gang threat. Nothing in the record shows that that the person who
uttered those words knew that appellants were from a rival gang, or meant
the words as a threat. Further, no evidence showed that appellants even
heard the statement. The jury also could have interpreted those words,
consistent with G.P.’s testimony, as a reflexive greeting to an assumed friend.
Castillo separately argues that “there was evidence that more than one gun
was fired during the incident . . . .” But there was no such evidence, only a
discrepancy between witnesses as to how many shots were fired—not that
shots were fired from more than one gun. The other evidence appellants
relied on—that G.P. cleaned up the scene and U.P. saw a small car fleeing
the scene—are unavailing as the evidence relates to those witnesses’
impressions and actions after the shooting and therefore have no bearing on
the issue of appellants’ apprehension of the situation and whether they fired
the shots in self-defense.
Appellants argue the court’s alleged error of refusing the self-defense
instructions prejudiced them. Nava specifically argues the prosecutor took
full advantage of the instructional error during closing argument and pointed
out that the self-defense instruction given applied only to the Ross Avenue
incident. But whereas an argument could be made for self-defense
instructions as to the Ross Avenue incident, no evidence supported such
instruction as to the West 5th Street residence. Having found that the trial
court did not err, we need not, and do not, address whether the alleged error
was prejudicial under Chapman v. California (1967) 386 U.S. 18, 24.

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B. CALCRIM No. 604 on Attempted Voluntary Manslaughter
Relying on the same evidence set forth above, appellants contend the
court violated their constitutional rights to due process by failing to instruct
the jury that a lesser included offense of count 1 was attempted voluntary
manslaughter due to imperfect self-defense. Nava argues the court’s error
lowered the prosecution’s burden of proving the count 1 charge.
1. Background
In proceedings outside the jury’s presence, Nava’s and Castillo’s
attorneys requested the court instruct the jury with CALCRIM No. 604—
Attempted Voluntary Manslaughter: Imperfect Self-Defense—Lesser
Included Offense. Nava’s counsel argued appellants were driving past known
Norteño gang meeting spots, and because appellants would be perceived as
Sureño gang members, they shot at the Norteños out of fear of being
attacked. The court asked, “What’s the evidence in the case that allows the
Court to find that there is sufficient or substantial evidence as to an
imminent danger?” Nava’s counsel replied, “I believe it could be argued that,
due to the gang circumstances, due to the nature of that house, that
[appellants] maybe actually but mistakenly believed that they were in
imminent danger.” Castillo’s counsel agreed.
The court rejected appellants’ request: “I don’t think the evidence is
substantial enough to merit consideration by the jury. . . . [T]here is just an
absence of evidence to support that either defendant believe[d] that they or
someone else was in imminent danger of being killed or suffering great bodily
injury, or that they believed that the immediate use of deadly force was
necessary to defend against that danger.”

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 2. Analysis
Based on our de novo review (People v. Simon (2016) 1 Cal.5th 98, 133),
this claim fails for the same reason as set forth above regarding the related
instructional error claim; namely, no substantial evidence supported it.
A court has no obligation to instruct the jury on a lesser included offense
when no evidence shows that the offense was less than that charged. (People
v. Barrick (1982) 33 Cal.3d 115, 135.) The appellate court independently
determines whether substantial evidence existed to support an instruction.
(People v. Shelmire (2005) 130 Cal.App.4th 1044, 1055.) A defendant acts in
imperfect self-defense when the defendant actually believes (1) that he or she
is in imminent peril of being killed or suffering great bodily injury, and (2)
that the immediate use of deadly force is necessary to defend against the
danger, but (3) at least one of those beliefs is unreasonable. (People v. Her
(2009) 181 Cal.App.4th 349, 352.) “[A] quarrel provoked by a defendant, or a
danger which he has voluntarily brought upon himself by his own
misconduct, is not sufficient to support a reasonable apprehension of
imminent danger.” (People v. Hill (2005) 131 Cal.App.4th 1089, 1102.)
II. Gang-Related Convictions and Enhancements
Appellants contend that under Assembly Bill No. 333, which modified
the section 186.22 gang statute, no substantial evidence proved the predicate
crimes to sustain the convictions and enhancements on the gang-related
charges. They further contend that under Assembly Bill No. 518, which
amended section 654, the trial court on remand should have an opportunity
to exercise its newfound discretion and choose as the principal count any
offense that occurred during the same course of conduct.
We agree with the People’s concession that Assembly Bill No. 333 is
retroactive and applies here: “The prosecution in this case did not,

12
understandably, prove the predicate offenses in accordance with the new
requirements, which did not exist at the time of the trial. For example, . . .
only one predicate offense proved at trial occurred less than three years
before the current offenses on August 11, 2017. That offense was appellant
Castillo’s conviction of section 29800, possession of a firearm by a felon . . .
that occurred on August 15th, 2015. As appellants point out, simple
possession of a firearm is not a qualifying predicate gang offense under the
amended statute.”
A. Background
Officer Rocha testified regarding the circumstances of Castillo’s August
2015 conviction of possession of a firearm by a felon (§ 29800) that during his
traffic stop of Castillo’s surveilled vehicle, he found a loaded revolver.
Castillo admitted to being a gang member, and Officer Rocha arrested him.
No other testimony showed that Castillo’s gang profited financially from the
gun possession or was involved in that possession. And no evidence showed
the gun was intended for use against rivals or for retaliation. In fact, the
People did not charge Castillo with gang-related allegations as to this offense.
B. Applicable Law
“[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; accord, People v. E.H. (2022) 75 Cal.App.5th 467, 473 as mod.
Mar.1, 2022, as mod. on den. of rehg. Mar. 18, 2022.) Assembly Bill No. 333
“increases the threshold for conviction of the section 186.22 offense and the

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imposition of the enhancement.” (Lopez, at p. 344.) It is an ameliorative
amendment that applies to all nonfinal cases on appeal, as it is silent
regarding retroactivity. (Ibid.; In re Estrada (1965) 63 Cal.2d 740, 744-746.)
C. Analysis
Although Assembly Bill No. 333 transforms section 186.22 in several
respects, we focus on one change in particular. To prove the existence of a
criminal street gang, 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.) Before Assembly Bill No. 333, it was
not necessary for the People to prove predicate offenses were gang related.
(People v. Gardeley (1996) 14 Cal.4th 605, 609-610.) Now, the law requires
“the [predicate] offenses [to] commonly benefit[ ] a criminal street gang, and
the common benefit of the offense [be] more than reputational,” effectively
overruling Gardeley. (§ 186.22, subd. (e)(1); People v. E.H., supra, 75
Cal.App.5th at p. 473.)
Here, no evidence showed the predicate offenses proved at trial
commonly benefitted a gang. (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. Accordingly, we reverse appellants’ gang crime convictions.
Section 12022.53 provides for sentence enhancements for the use of
firearms in the commission of an enumerated felony. The statute first
provides for escalating punishments depending on how the firearm is used.
The least severe penalty is set forth in section 12022.53, subdivision (b),
which provides for a consecutive 10-year term for a defendant who
“personally uses” a firearm in a felony. Next, a consecutive 20-year term is

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imposed under section 12022.53, subdivision (c), if the defendant “personally
and intentionally discharges a firearm” in the commission of the offense.
Finally, section 12022.53, subdivision (d) provides for a consecutive sentence
enhancement of 25 years to life when the defendant “personally and
intentionally discharges a firearm and proximately causes great bodily injury
. . . or death” during the commission of the offense. (People v. Lopez, supra,
73 Cal.App.5th at p. 374.)
While these section 12022.53 subdivisions provide punishment for
offenders who personally use a firearm during the commission of their
crimes, the penalties may also be imposed on any person who is a principal in
the offense under certain gang-related circumstances: First, the person who
is a principal must be “convicted of a felony committed for the benefit of, at
the direction of, or in association with any criminal street gang, with the
specific intent to promote, further, or assist in any criminal conduct by gang
members” as set forth in section 186.22, subdivision (b). (§ 12022.53, subd.
(e)(1)(A).) Second, “[a]ny principal in the offense” must have “committed any
act specified in subdivision (b), (c), or (d),” that is, any principal involved in
the offense must have personally used a firearm in the escalating use
categories provided in section 12022.53, subdivisions (b) through (d).
(§ 12022.53, subd. (e)(1)(B).) (People v. Lopez, supra, 73 Cal.App.5th at
p. 374.)
Here, as set forth above, the jury found true as to both Nava and
Castillo on different counts that a principal in the offense was convicted of a
felony committed for the benefit of a criminal street gang under section
186.22, subdivision (b), and personally and intentionally discharged a firearm
within the meaning of section 12022.53, subdivision (e)(1). Because these
enhancements depend on a finding that the principal was “convicted of a

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felony committed for the benefit of, at the direction of, or in association with
any criminal street gang, with the specific intent to promote, further, or
assist in any criminal conduct by gang members” as set forth in section
186.22, subdivision (b) (§ 12022.53, subd. (e)(1)(A)), the changes to section
186.22 made by Assembly Bill No. 333 require that these enhancements be
vacated. We therefore remand the matter to give the People the opportunity
to prove the applicability of the enhancements under the amendments to
section 186.22. (People v. Lopez, supra, 73 Cal.App.5th at p. 346.)
III. Evidence That Nava Threatened to Shoot Police Officers
Nava contends this court should reverse the attempted murder
conviction because the court violated his constitutional due process rights by
admitting into evidence the recordings in which he spoke about shooting
police officers. He specifically contends that the court abused its discretion
under Evidence Code section 352, as Officer Rocha’s translation of his
conversation was “irrelevant, prejudicial, and potentially misleading
testimony [and] likely impacted the jury’s assessment of the ‘intent to kill’
element of the attempted murder count.”
A. Background
Before trial, Nava moved to exclude from evidence his recorded
statements “that he should have fired a gun at officers during the vehicle
pursuit.” The prosecutor stated her intent to introduce into evidence both a
two-minute and a six-minute audio recording of Nava’s statements and have
Officer Rocha testify about his translation of them. The court tentatively
ruled the evidence was admissible subject to cross-examination.
Officer Rocha testified that, while appellants were in a police vehicle,
Nava said in Spanish that what he should have done to law enforcement
during their chase of appellants was to “tirarle para atras.” The prosecutor

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asked, “What does that term mean?” Over Nava’s objections that the
question called for speculation and there was a lack of foundation, Officer
Rocha testified that the literal translation was “to throw back,” but
colloquially it meant “to shoot back.” Officer Rocha testified Nava also stated
that he should have “aventado un poder,” which literally meant “to throw a
power,” but colloquially meant “to shoot.”
The court later put on the record its evidentiary ruling: “[Officer
Rocha] did indicate that he grew up in Mexico, that his primary original
language was Spanish. He was directly engaged in the translation of these
audios. . . . [F]rom the Court’s perspective, his description as to various
meanings of phrases or terms was probative. . . . I do not believe it was
confusing to the jury. It was not particularly time consuming. The jury will
receive instructions as to witnesses and regarding the issues of lay and
expert opinion. So, from the Court’s perspective, it was indeed admissible.”
B. Applicable Law
“[Evidence Code] section 352 permits [the trial court] to exclude
evidence if in the court’s discretion ‘its probative value is substantially
outweighed by the probability that its admission will (a) necessitate undue
consumption of time or (b) create substantial danger of undue prejudice, of
confusing the issues, or of misleading the jury.’ Like all proffered evidence,
character evidence is subject to exclusion under that section.” (People v.
Shoemaker (1982) 135 Cal.App.3d 442, 448.) “ ‘ “Prejudice” as contemplated
by [Evidence Code] section 352 is not so sweeping as to include any evidence
the opponent finds inconvenient. . . . “ ‘In applying [Evidence Code] section
352, “prejudicial” is not synonymous with “damaging.” ’ ” ’ ” (People v. Doolin
(2009) 45 Cal.4th 390, 438-439.)

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 We review the trial court’s rulings on admission of evidence under
Evidence Code section 352 for abuse of discretion. (People v. Barnett (1998)
17 Cal.4th 1044, 1118.) The discretion is as broad as necessary to deal with
the great variety of factual situations in which the issue arises, and in most
instances the appellate courts will uphold the trial court’s exercise of its
discretion. (People v. Clark (2011) 52 Cal.4th 856, 932.) The erroneous
exercise of discretion under the ordinary rules of evidence does not implicate
the federal Constitution. The standard of prejudice is that for state law
error, as set forth in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).
(People v. Cudjo (1993) 6 Cal.4th 585, 611.)
C. Analysis
We conclude Nava’s challenged statements were relevant to prove the
charges that appellants intended to resist the officers. They were also
relevant for the gang crime and enhancements, as they showed the
defendants bragging about shooting at the police. Nava’s comments could
have shown appellants sought to enhance their individual reputations and
that of their gang, and were consistent with their other comments that they
would receive media coverage for their underlying crimes. Officer Rocha
stated his background for being able to translate appellants’ Spanish
language statements into English, based on his family and Nava’s family
having shared cultural heritage in Mexico. He also provided the jury with
the standard and colloquial Spanish translations of Nava’s statements;
therefore, the jury could elect to rely on the interpretation that made more
sense in this context. The court properly admitted Officer Rocha’s
translations, which had a proper purpose; therefore, there was no abuse of
discretion.

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 Under Evidence Code section 352, the challenged statements did not
require extensive testimony or confuse the jury as to the crimes charged, and
they were not unduly prejudicial in light of other evidence showing
appellants’ aggression and threats toward the police officers in general and
Officer Rocha in particular. Even if Nava’s statements had been excluded, it
is not reasonably probable that Nava would have received a more favorable
result (Watson, supra, 46 Cal.2d at p. 836), as the uncontradicted evidence
supporting his conviction was that during the West 5th Street incident, Nava
shot a man in front of the residence. We point out the court instructed the
jury with CALCRIM No. 333 on lay witness opinion testimony: “Witnesses
gave their opinions during the trial. You may but are not required to accept
those opinions as true or correct. You may give the opinions whatever weight
you think appropriate. . . . [¶] . . . You may disregard all or any part of an
opinion that you find unbelievable, unreasonable or unsupported by the
evidence.” “Jurors are . . . presumed to have followed the court’s
instructions.” (People v. Sanchez (2001) 26 Cal.4th 834, 852.)
IV. Nava’s Sentencing Error Claim
Relying on the California Supreme Court’s decision in People v.
Anderson (2020) 9 Cal.5th 946, 956-957, the People concede and we agree
that Nava’s 25-year sentence on count 1 was improperly imposed: “The
personal firearm use allegation was alleged in count 3 and found true by the
jury as to count 3, but a personal firearm use enhancement was applied at
sentencing to the attempted murder charge in count 1. . . . [Nava] had notice
in count 3 that he was charged as the shooter, but did not have notice that a
sentence enhancement for being the shooter could be imposed as to count 1 in
addition to the gang enhancement pursuant to section 186.22.” As the court
stated in Anderson: “The pleading must provide the defendant with fair

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notice of the potential sentence. A pleading that alleges an enhancement as
to one count does not provide fair notice that the same enhancement might be
imposed as to a different count. When a pleading alleges an enhancement in
connection with one count but not another, the defendant is ordinarily
entitled to assume the prosecution made a discretionary choice not to pursue
the enhancement on the second count, and to rely on that choice in making
decisions such as whether to plead guilty or proceed to trial. [Citation.] Fair
notice requires that every sentence enhancement be pleaded in connection
with every count as to which it is imposed.” (Anderson, at p. 957.)
Accordingly, because Nava lacked notice, we vacate Nava’s 25-year sentence
on count 1.
V. Castillo’s Marsden Motions
Castillo contends the court abused its discretion by denying his
Marsden motions.
Castillo’s First Marsden Motion
At a June 2018 pretrial hearing, Castillo filed a Marsden motion
requesting the court replace his appointed attorney, who he claimed had not
given him certain discovery, was not helping him, and had not filed a motion
to suppress evidence based on a purported search warrant deficiency.
Castillo told the court that his attorney, who was not visiting him often
enough, had failed to timely obtain a gang expert. Castillo said he could not
work with his attorney.
Castillo’s attorney responded that he gave Castillo some discovery
before the preliminary hearing, but acknowledged not giving Castillo other
discovery because he was still examining it. He also admitted not visiting
Castillo as frequently as the attorney would have liked. Castillo’s attorney
explained he had investigated filing a suppression motion but concluded it

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would lack merit. He stated he had yet to find a suitable gang expert
replacement. Castillo’s attorney affirmed he could continue representing
Castillo and was willing to work with him.
The court found that Castillo had not established good cause to replace
his attorney, adding defense counsel was not permitted to file unmeritorious
motions.
Castillo’s Second Marsden Motion
In an August 2017 Marsden hearing, Castillo again stated his attorney
had failed to give him discovery, confer with him, or file a suppression
motion. Castillo said he did not trust his attorney, who was acting as a
surrogate prosecutor and against Castillo’s interests.
Castillo’s counsel replied that he had provided Castillo additional
discovery, including a search warrant. He said he had determined no
grounds existed to file a suppression motion under section 1538.5. Further,
counsel had joined in Nava’s section 995 motion to set aside the indictment or
information, which the court had denied.
In denying the Marsden motion, the court found Castillo’s relationship
with his attorney was not so broken down that counsel could not properly
continue representing Castillo at trial, which was two months away.
Castillo’s Third Marsden Motion
In Castillo’s third Marsden motion filed after the jury returned verdicts
but before sentencing, he claimed he had not received certain discovery, his
attorney was not doing his job, and his attorney had failed to inform him of a
changed court date.
Castillo’s attorney acknowledged: “I have provided Mr. Castillo
with many of the packets of discovery, not all of them, it’s true, and I do
apologize to Mr. Castillo. There’s been—I’ve had some medical issues during

21
the time where dates have been changed and I haven’t seen you to tell you
the dates have changed.” Counsel asserted he was ready to review the
probation report and prepare for the sentencing hearing. The court denied
the motion, concluding Castillo and his attorney’s relationship had not
broken down.
A. Applicable Law
A trial court conducting a Marsden motion at any stage of criminal
proceedings—preconviction or postconviction—“must permit the defendant to
explain the basis of his contention and to relate specific instances of
inadequate performance.” (People v. Smith (2003) 30 Cal.4th 581, 604; People
v. Sanchez (2011) 53 Cal.4th 80, 88; accord, People v. Wright (2021) 12
Cal.5th 419, 440; People v. Johnson (2018) 6 Cal.5th 541, 572). “ ‘[A]t any
time during criminal proceedings, if a defendant requests substitute counsel,
the trial court is obligated, pursuant to [the] holding in Marsden, to give the
defendant an opportunity to state any grounds for dissatisfaction with the
current appointed attorney.’ ” (In re M.P. (2013) 217 Cal.App.4th 441, 456;
see Sanchez, at p. 88.)
We review the court’s orders for abuse of discretion, which cannot be
found unless denial of the requested substitution would substantially impair
the defendant’s right to effective assistance of counsel. (In re M.P., supra,
217 Cal.App.4th at p. 459.) Appellant bears the heavy burden of showing a
clear abuse of that discretion. (People v. Smith (1993) 6 Cal.4th 684, 696;
People v. Bills (1995) 38 Cal.App.4th 953, 961.) Abuse of discretion is not
shown when the motion is based on appellant’s “mere failure to get along
with or have confidence in counsel.” (Bills, at p. 961.)

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B. Analysis
In evaluating Castillo’s Marsden motions, the court did not find that
the attorney’s performance was inadequate; rather, it concluded that Castillo
and his attorney were able to prepare for trial, and later for sentencing. We
conclude it sufficed that the court elicited information from which it could
conclude Castillo’s complaints about counsel were “ ‘tactical disagreements,
which do not by themselves constitute an “irreconcilable conflict.” ’ ” (People
v. Wright, supra, 12 Cal.5th at p. 441; People v. Frederickson (2020) 8 Cal.5th
963, 1001.) Because the court reasonably could conclude Castillo and his
counsel principally disagreed over trial tactics, specifically whether to file a
suppression motion, it did not abuse its discretion in denying Castillo’s
pretrial motions. Castillo’s third Marsden motion was heard after the trial,
which produced a partially favorable result for him. The court could have
reasonably concluded that defense counsel was prepared to complete his work
of reviewing the probation report and represent Castillo’s interests
adequately at the sentencing hearing. In all instances, the “trial court
provided defendant ‘full opportunity to air all of his complaints, and counsel
to respond to them.’ [Citation.] No more was necessary.” (Wright, at p. 441.)
VI. Castillo’s Sentencing Error
The People concede and we agree the court imposed on Castillo an
unauthorized sentence of seven years to life for attempted murder.
Section 664, subdivision (a), provides that “if the crime attempted is
willful, deliberate, and premeditated murder, as defined in Section 189, the
person guilty of that attempt shall be punished by imprisonment in the state
prison for life with the possibility of parole.” (§ 664, subd. (a).) “A term of life
with the possibility of parole does not have a minimum determinate term of
seven years; rather, a person sentenced to such a term first becomes eligible

23
for parole in seven years. (§ 3046, subd. (a)(1).)” (People v. Robinson (2014)
232 Cal.App.4th 69, 73 fn. 3.) While there is a minimum parole eligibility
period of seven years, the actual statutory sentence for attempted
premeditated murder is life with the possibility of parole. (§ 664, subd. (a);
see People v. Wong (2018) 27 Cal.App.5th 972, 977, fn. 4 [“[T]here is a
minimum parole eligibility of seven years, but that is not part of the sentence
that is pronounced.”].) We remand for the court to modify Castillo’s
attempted murder sentence to one of life with the possibility of parole.
(People v. Robinson, supra, 232 Cal.App.4th at p. 79; see People v. Smith
(2001) 24 Cal.4th 849, 854.)
VII. Cumulative Error
Appellants contend that cumulative prejudice from the court’s errors
requires reversal of their convictions. We disagree.
“The ‘litmus test’ for cumulative error ‘is whether defendant received
due process and a fair trial.’ ” (People v. Cuccia (2002) 97 Cal.App.4th 785,
795.) We review appellants’ claims of cumulative error to determine whether
it is “reasonably probable a result more favorable to [them] would have been
reached in the absence of the alleged errors.” (People v. Carrera (1989) 49
Cal.3d 291, 332 [citing the Watson standard]; see People v. Millwee (1998) 18
Cal.4th 96, 168 [Supreme Court rejects defendant’s cumulative prejudice
argument, stating: “Our careful review of the record persuades us that the
trial was fundamentally fair and its determination reliable.”].) We reject
appellants’ claim because apart from the errors we have identified and
resolved, overwhelming evidence supported the verdicts. It is not reasonably
probable that the outcome would have been more favorable absent the other
alleged errors.

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 DISPOSITION
As to Juan Luis Nava Garcia, the section 186.22, subdivision (a) gang
conviction in count 7 is reversed. The section 186.22, subdivision (b)(1) and
12022.53, subdivision (e)(1) enhancements are vacated as to all counts. The
25-year sentence on count 1 is vacated. The remaining convictions are
affirmed.
As to Rogelio Castillo, the section 186.22, subdivision (a) gang
conviction in count 9 is reversed. The section 186.22, subdivision (b)(1) and
12022.53, subdivision (e)(1) enhancements are vacated as to all counts. The
seven-year sentence on the attempted murder conviction is vacated and on
that count he is sentenced to life with the possibility of parole. The
remaining convictions are affirmed.
On remand, the People may elect to retry the substantive gang crimes
and the gang allegations.

O’ROURKE, Acting P. J.

WE CONCUR:

IRION, J.

DO, J.

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