Filed 4/1/22 P. v. Ramirez CA2/7
Opinion following transfer from Supreme Court
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B265610
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA130983-02)
v.
ROBERT ANTONIO
RAMIREZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Olivia Rosales, Judge. Reversed and
remanded with instructions.
Jerome McGuire, under appointment by the Court of
Appeal, for Defendant and Appellant.
Kamala Harris, Xavier Becerra and Rob Bonta, Attorneys
General, Lance E. Winters, Chief Assistant Attorney General,
Susan Sullivan Pithey, Senior Assistant Attorney General,
Shezad H. Thakor, Michael C. Keller and Idan Ivri, Deputy
Attorneys General, for Plaintiff and Respondent.
_____________________
Applying the natural and probable consequences doctrine, a
jury convicted Robert Antonio Ramirez of two counts of attempted
willful, deliberate and premeditated murder, two counts of assault
with a firearm and one count of shooting at an inhabited dwelling
and found true criminal street gang and firearm-use enhancement
allegations. We affirmed those convictions on two prior occasions
(in 2017 and 2019) based on the law as it existed at the time of our
decisions.1
Directed by the Supreme Court earlier this year to
reconsider Ramirez’s case in light of recent ameliorative
legislation, we now reverse the convictions for attempted murder,
as well as the criminal street gang enhancements imposed on all
counts. Our decision is based on Senate Bill No. 1437
(Stats. 2018, ch. 1015) (Senate Bill 1437), effective January 1,
2019, which eliminated accomplice liability for murder under the
natural and probable consequences doctrine; Senate Bill No. 775
(Stats. 2021, ch. 551, § 2) (Senate Bill 775), effective January 1,
2022, which expanded the reach of Senate Bill 1437 to include
1 In our 2019 decision, although we affirmed Ramirez’s
convictions, we remanded the matter for the trial court to consider
whether to exercise its discretion pursuant to Senate Bill No. 620
(Stats. 2017, ch. 682), effective January 1, 2018, to strike or
dismiss the formerly mandatory firearm-use enhancements
imposed under Penal Code section 12022.53, subdivisions (c) and
(e)(1), and pursuant to Senate Bill No. 1393 (Stats. 2018,
ch. 1013), effective January 1, 2019, to dismiss the formerly
mandatory prior serious felony enhancement imposed under Penal
Code section 667, subdivision (a). The trial court is to consider its
discretion to dismiss these enhancements upon resentencing
Ramirez following the remand we again order.
2
convictions for attempted murder and voluntary manslaughter
and provided a defendant convicted under a now invalid theory of
murder or attempted murder may seek relief on direct appeal in
lieu of the postjudgment petition process created by Senate
Bill 1437; and Assembly Bill No. 333 (Stats. 2021, ch. 699, § 3)
(Assembly Bill 333), effective January 1, 2022, which increased
the proof requirements for imposition of a criminal street gang
enhancement, modifying the definitions of “criminal street gang”
and “pattern of criminal gang activity” and clarifying the evidence
needed to establish an offense benefits, promotes, furthers or
assists a criminal street gang.
Ramirez and the Attorney General agree these reversals are
necessary in light of the retroactive effect of the ameliorative
legislation cited. However, they disagree on several issues
concerning the scope of proceedings following remand: Should the
prosecution be afforded the opportunity to retry Ramirez on a
still-valid theory of attempted murder? Is new Penal Code
section 1109,2 which provides, at the election of the defense, the
defendant’s guilt of the underlying offenses must be determined
before trial of gang enhancements, retroactive? If section 1109 is
retroactive, must Ramirez’s convictions for aggravated assault
and shooting at an inhabited dwelling be reversed because those
counts were tried together with the gang enhancement
allegations? We agree with the Attorney General the answer to
the first question is yes. We need not answer the second question
because the answer to the third question is no: Even if
2 Statutory references are to this code unless otherwise
stated.
3
section 1109 is retroactive, any error in trying the remaining
substantive counts with the gang enhancements was harmless.
We reverse Ramirez’s convictions for attempted murder and
affirm the convictions for assault with a firearm and shooting at
an inhabited dwelling, but reverse the true findings on the
criminal street gang enhancements associated with those counts.
The cause is remanded to provide the prosecution an opportunity
to retry Ramirez on a legally viable theory of attempted murder
and to retry the criminal street gang enhancements. If the People
elect not to do so, Ramirez is to be resentenced in accordance with
the terms of all applicable ameliorative legislation.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Shooting
In July 2013 Joe Gandara and his sister’s boyfriend, Gilbert,
stood outside a corner market in South Gate waiting for
Gandara’s brother, Steve Barraza, to leave the store.3 Gilbert
belonged to the Grape Street Watts gang and had prominent gang
tattoos. While they were waiting, Ramirez, a member of the
Lynwood Young Crowd gang who also had prominent gang
tattoos, rode his bicycle toward Gandara and Gilbert, staring at
them, and then rode back to an apartment complex on the corner
across from the market. After Ramirez left, Gilbert told Gandara
that Ramirez had previously approached him, but nothing had
come of it.
Ramirez returned on his bicycle several seconds later and
rode up the sidewalk within three to four feet of Gandara and
3 Gandara was the only one of the three victims to testify.
Gilbert (Gandara did not know his last name) and Barraza were
never located by the police.
4
Gilbert. Ramirez appeared calm and asked, “Where you guys
from?” Gandara, who was not a member of a gang, understood
Ramirez was asking what gang they were from and said nothing.
Gilbert answered he was from Grape Street Watts. Ramirez, who
had the letters Y and C tattooed on his face, said, “This is
Lynwood Young Crowd” or, perhaps, “I am Lynwood Young
Crowd.” Gandara and Gilbert answered, “OK,” and Ramirez
returned to the apartment complex.4
At this point Barraza came out of the market; and Gandara,
Barraza and Gilbert began walking down the block to their house,
which was five lots from the corner. Gandara told Barraza “some
guy” had just “hit [them] up.” Barraza, a member of the South
Side Lynwood gang, told him not to worry about it. Looking back
at the apartment complex as they passed, Gandara saw Ramirez
on his bike and three men standing next to the building, one with
his hand tucked inside his waistband. That man began running
toward Gandara, Barraza and Gilbert and yelled, “Hey, fuck Fake
Street” (a derogatory name for Grape Street). Barraza said, “He’s
got a gun. Hurry up. Let’s go.” Gandara, who had a bike, began
pedaling harder. Barraza and Gilbert ran. As they fled, Gandara
saw the man with the gun running after them, followed by one of
the other two men. Ramirez, still on his bike, was slowly
following the man with the gun, who was never identified, and a
man later identified as Ramirez’s brother, Andres, down the
street. Gandara never saw Ramirez talk or gesture to the man
with the gun.
4 At the preliminary hearing Gandara stated he had not been
concerned after the exchange with Ramirez because “it was like a
friendly-type encounter.”
5
Gandara followed Barraza and Gilbert into their driveway
toward the rear building where they lived. As Gilbert ran up the
stairs to their apartment, Gandara again looked back and saw
Ramirez was still “way back” toward the market, weaving back
and forth on his bike. The man with the gun, who had reached
the driveway, shot twice from the street toward the rear building.
No one was struck. Abandoning his bike, Gandara climbed onto a
neighbor’s roof. He saw Andres standing across the street from
the driveway. He did not see Ramirez after the shots were fired.
2. The Investigation
Responding South Gate police officers recovered a bullet
fragment on the driveway next to the wall of the rear structure,
located a bullet impact mark on the wall of the structure above
the fragment and found two expended cartridge casings in the
front yard adjacent to the street. At the apartment complex
officers found Ramirez’s brother, Andres, an Elm Street Watts
gang member, and Efrain Parra, a Willow Street gang member, as
well as a black BMX bike, in an apartment rented to Ramirez’s
mother. Later, Ramirez and his mother arrived in her car and
parked in the complex carport. In the carport near Ramirez’s
mother’s car a detective found two semiautomatic handguns
wrapped in a rag. Four live rounds and two expended shell
casings were recovered from the handguns. Forensic examination
confirmed the cartridge casings and bullet fragments recovered
from the shooting scene had been fired by one of the guns found in
the carport.
In a field show-up Gandara identified Andres, Ramirez and
Parra as the men who had watched the shooter and the bike found
in the Ramirez apartment as the one ridden by Ramirez. Later
6
that day Gandara identified Ramirez in a photographic lineup as
the one who had ridden the bike.
3. The Information
Ramirez was charged with two counts of attempted willful,
deliberate and premeditated murder (§§ 187, subd. (a), 664)
(counts 1 and 2), two counts of assault with a firearm (§ 245,
subd. (a)(2)) (counts 3 and 4), and one count of shooting at an
inhabited dwelling (§ 246) (count 5). As to all counts the
information alleged the crimes had been committed for the benefit
of a criminal street gang (§ 186.22, subds. (b)(1)(B) & (C), (b)(4)).
As to counts 1, 2 and 5 the information alleged a principal had
personally used and intentionally discharged a firearm
(§ 12022.53, subds. (c), (e)(1)). The information further alleged
Ramirez had suffered a prior conviction for a serious or violent
felony within the meaning of the three strikes law (§§ 667,
subds. (b)-(i), 1170.12) and a serious felony conviction under
section 667, subdivision (a)(1), and had served two prior prison
terms for felonies within the meaning of section 667.5,
subdivision (b).
Ramirez pleaded not guilty and denied the special
allegations.
4. The People’s Gang Evidence
The People presented evidence from two gang experts.
South Gate Police Detective Christian Perez, an investigator with
six years of experience investigating gang-related crimes in South
Gate, had previous contact with Ramirez, who had admitted to
Perez he was a member of the Lynwood Young Crowd gang with a
moniker of “Snoops.” Perez testified the area near the corner
market was claimed by numerous gangs. Without identifying
members of the gang other than Ramirez, Perez stated members
7
of Lynwood Young Crowd who lived in the area claimed the area
as their territory. Gang members claim territory by “hitting up”
other gang members in the area, that is, asking where others are
from; stating where the gang member is from; assaulting other
gang members with fists, weapons or guns; or tagging the area
with graffiti. Gang members try to instill fear and intimidation in
residents of the community and in rival gang members to
establish respect for themselves and their gangs.
Los Angeles County Sheriff’s Detective Marc Boisvert,
assigned to the Sheriff’s gang investigation unit, testified he had
once patrolled Lynwood and was familiar with the Lynwood
Young Crowd gang. According to Detective Boisvert, South Gate,
and specifically the corner market, was not in territory
traditionally claimed by Lynwood Young Crowd. That gang’s
principal rivals were South Side Lynwood, South Side Gangsters,
Lynwood Neighborhood Crips and Lynwood 211 Crips. According
to Boisvert, it was not uncommon for family members to belong to
different—even rival—gangs and to assist one another in
committing crimes. The primary activities of the Lynwood Young
Crowd gang include felony vandalism, shootings, assaults, drug
sales, weapons possession and murder.
Although Detective Boisvert did not personally know
Ramirez and had no experience with South Gate gangs, his
research (including conversations with other officers) revealed
Ramirez was an active member of Lynwood Young Crowd.
Boisvert also testified that the question “Where are you from?” is
a challenge that usually leads to a violent altercation, especially
when the gang member questioned claims his gang. If a gang
member issuing such a challenge was outnumbered, he might
wait until he had the support of others to initiate violence. If a
8
gang member lives in territory claimed by other gangs, he would
still be expected to represent his gang and make his name and the
gang’s name known in the area. In gang culture disrespect leads
to violence. “Fake Street” is a derogatory term for the Grape
Street gang.
Detective Boisvert testified about two predicate convictions
involving Lynwood Young Crowd gang members who were each
found guilty of second degree murder. Given a hypothetical based
on the evidence presented against Ramirez, Boisvert opined the
shooting had been committed on behalf of a criminal street gang:
A gang member had hit up the victims and claimed his own gang;
the crime was committed in association with a criminal street
gang because the gang member was assisted by other individuals,
one of whom yelled a derogatory reference to the gang claimed by
one of the victims; and instilling fear benefits the gang, in this
case, Lynwood Young Crowd.
5. The Defense Evidence
Ramirez did not testify at trial. Martin Flores, the director
of a center providing services to at-risk youth who had worked in
Watts for many years and knew South Gate well, testified on
behalf of the defense. Flores agreed with Detective Boisvert’s
description of Lynwood Young Crowd’s territory and confirmed
that the gang’s territory was far from the area of the incident. He
also opined a gang member who moves into another gang’s
territory must “respect that neighborhood,” then “you have a pass
. . . to go from your house to . . . the bus stop, the market” and
“other places in the neighborhood.” A gang member claiming the
area around the corner market for Lynwood Young Crowd would
be “looking for trouble.”
9
Considering the same hypothetical posed to Detective
Boisvert, Flores believed it would be important to know the gang
affiliation of the shooter, as well as those of the other men who
participated in the incident, to understand whether the crime
benefited Lynwood Young Crowd. Although he acknowledged
gang members from different gangs do commit crimes together, he
“disagree[d] that those crimes are done on behalf of a hood.” In
light of the participants’ differing gang affiliations, Flores opined
the shooting did not have to do with a particular gang; instead,
“very likely” the shooting was “a personal response” tied to the
shooter’s rivalry with Grape Street Watts. Lynwood Young Crowd
and Grape Street are not rivals.
Flores also disagreed with Detective Boisvert’s assertion
that any time a gang member hits someone up, violence is likely
to result. In Flores’s experience many such encounters do not
result in violence and are simply inquiries, particularly when a
gang member moves into a new area.
6. Jury Instructions and Verdict
The jury was instructed with CALCRIM No. 400, advising it
a person is guilty of a crime whether he or she “committed it
personally or aided and abetted the perpetrator,” and CALCRIM
No. 401, defining the elements for finding the defendant guilty of
a crime based on aiding and abetting that crime. Over Ramirez’s
objection that there was insufficient evidence for the jury to find
Ramirez had committed the uncharged (target) crime of
disturbing the peace in violation of section 415 by challenging
someone to a fight, the court instructed the jury pursuant to
CALCRIM No. 403 that, “[b]efore you may decide whether the
defendant is guilty of attempted murder and/or assault with a
firearm and/or shooting at an inhabited dwelling, you must decide
10
whether he is guilty of disturbing the peace.” If Ramirez is guilty
of disturbing the peace (the target offense), the court continued,
he may be found guilty of attempted murder and/or assault with a
firearm and/or shooting at an inhabited dwelling (the nontarget
offenses) if the People proved that, during the commission of the
target offense, a coparticipant in the target offense committed one
or more of the nontarget offenses and “[u]nder all the
circumstances, a reasonable person in the defendant’s position
would have known that the commission of [one or more of those
offenses] was a natural and probable consequence of the
commission of disturbing the peace.”5 The court defined
“coparticipant” in the language of CALCRIM No. 403 as “the
perpetrator or anyone who aided and abetted the perpetrator. It
does not include a victim or innocent bystander.”
In closing argument the prosecutor read the jury excerpts
from CALCRIM No. 403 and argued, relying on
Detective Boisvert’s testimony that a hit-up usually leads to gang
violence, Ramirez’s apparent communication with the shooter
regarding Gilbert’s affiliation with Grape Street Watts and the
discovery of the handguns in the carport, that Ramirez and the
shooter were coparticipants in unlawfully challenging Gandara
and Gilbert to fight and that shooting at the three men was the
natural and probable consequence of that uncharged offense.
The jury convicted Ramirez on all counts, found the
attempted murders had been committed willfully, deliberately and
5 The court separately instructed on the elements necessary
to prove disturbing the peace (CALCRIM No. 2688), attempted
murder (CALCRIM Nos. 600 & 601), assault with a firearm
(CALCRIM No. 875) and shooting at an inhabited house
(CALCRIM No. 965).
11
with premeditation, and found true the special firearm-use and
criminal street gang enhancement allegations. Ramirez waived
trial and admitted the prior conviction and prison term
allegations. Ramirez moved unsuccessfully for a new trial on the
ground there was insufficient evidence to support a conviction for
attempted murder as a natural and probable consequence of the
offense of disturbing the peace. The court sentenced Ramirez to
an aggregate term of 14 years to life plus 25 years in state prison.
DISCUSSION
1. Senate Bills 1437 and 775 Require Reversal of Ramirez’s
Convictions for Attempted Murder
As discussed, Senate Bill 1437 eliminated the natural and
probable consequences doctrine as a basis for finding a defendant
guilty of murder. (People v. Gentile (2020) 10 Cal.5th 830, 842-
843.)6 In addition to substantively amending sections 188 and
189, Senate Bill 1437 added section 1170.95, which provides a
procedure for individuals convicted of murder who could not be
convicted under the law as amended to retroactively seek relief.
(See People v. Lewis (2021) 11 Cal.5th 952, 959; Gentile, at p. 843.)
The ameliorative provisions of Senate Bill 1437 as enacted,
however, did not apply on direct appeal to convictions that were
not yet final before the law became effective. (Gentile, at p. 852.)
“Such convictions may be challenged on Senate Bill 1437 grounds
only through a petition filed in the sentencing court under
section 1170.95.” (Ibid.)
6 Senate Bill 1437 also significantly narrowed the felony-
murder exception to the malice requirement for murder.
(See §§ 188, subd. (a)(3), 189, subd. (e); People v. Lewis (2021)
11 Cal.5th 952, 957.)
12
As amended by Senate Bill 775 section 1170.95,
subdivision (a), now provides, “A person convicted of felony
murder or murder under the natural and probable consequences
doctrine or other theory under which malice is imputed to a
person based solely on that person’s participation in a crime,
attempted murder under the natural and probable consequences
doctrine, or manslaughter may file a petition with the court that
sentenced the petitioner to have the petitioner’s murder,
attempted murder, or manslaughter conviction vacated and to be
resentenced on any remaining counts . . . .”7 In addition, new
subdivision (g) of section 1170.958 authorizes a defendant on direct
appeal to challenge his or her conviction based on the new limits
on accomplice liability for homicide: “A person convicted of
murder, attempted murder, or manslaughter whose conviction is
not final may challenge on direct appeal the validity of that
conviction based on the changes made to Sections 188 and 189 by
Senate Bill 1437.”
Ramirez’s convictions for attempted murder, as well as for
aggravated assault and shooting at an inhabited dwelling, were
based on the natural and probable consequences doctrine. As
discussed, the court instructed the jury it could convict Ramirez of
attempted murder, assault with a firearm and shooting at an
7 In an uncodified statement of its intent in enacting Senate
Bill 775, the Legislature declared the legislation “[c]larifies that
persons who were convicted of attempted murder or manslaughter
under a theory of felony murder and the natural probable
consequences doctrine are permitted the same relief as those persons
convicted of murder under the same theories.”
8 Former subdivision (g) of section 1170.95 was redesignated
subdivision (h).
13
inhabited dwelling if he was guilty of the uncharged target offense
of disturbing the peace, a coparticipant in that crime committed
one or more of the charged offenses, and those offenses were the
natural and probable consequence of the target offense.
Although the court also instructed the jury generally on
direct aiding and abetting, in closing argument the prosecutor did
not argue Ramirez was guilty as a principal in the attempted
murders, instead explaining the People’s case rested on the
natural and probable consequences instruction. Ramirez should
be found guilty of the charged nontarget offenses, the prosecutor
asserted, because he challenged Gandara and Gilbert to fight,
committing the uncharged target offense of disturbing the peace.
Ramirez then returned to his apartment building and apparently
told the shooter that Gilbert belonged to Grape Street Watts. The
shooter participated in the challenge to fight by yelling, “Fuck
Fake Street,” and then committed the charged nontarget offenses
of attempted murder, aggravated assault and shooting at an
inhabited dwelling, all of which were the natural and probable
consequence of the gang/fight challenges.
While questioning the evidentiary support for the
prosecutor’s theory, defense counsel agreed Ramirez could be
convicted only if the jury found the unnamed shooter’s actions
were the natural and probable consequence of Ramirez’s limited
role in the incident. Defense counsel argued, without objection,
the prosecutor has “given up on the fact that this is some sort of
aider and abettor situation.”
Ramirez and the Attorney General agree, as do we, that
because Ramirez’s convictions for attempted murder are not yet
final and were based on instructions incorporating a now invalid
legal theory, they must be reversed. (See People v. Aledamat
14
(2019) 8 Cal.5th 1, 3 [conviction that may have been predicated on
erroneous or invalid legal theory must be reversed unless, based
on all the circumstances, the reviewing court determines the error
was harmless beyond a reasonable doubt]; People v. Chiu (2014)
59 Cal.4th 155, 168 (Chiu) [same].)
Generally, whether or not an alternate theory of liability
was proffered at trial, when we reverse convictions due to a
retroactive change in the law, not insufficient evidence, retrial
remains theoretically possible if the People believe the evidence
would support a conviction on a viable legal theory. (See Chiu,
supra, 59 Cal.4th at p. 168 [allowing the People to retry charge of
first degree murder on a direct aiding and abetting theory when
jury may have improperly based prior verdict on natural and
probable consequences doctrine]; see also People v. Gutierrez
(2018) 20 Cal.App.5th 847, 857 [permitting new trial on charge of
unauthorized taking of an automobile when evidence of value of
automobile not introduced at original trial and Supreme Court
had not yet ruled on Proposition 47’s applicability to Vehicle Code
section 10851]; People v. Figueroa (1993) 20 Cal.App.4th 65, 71-72,
fn. 2 [permitting new trial where statutory amendments added
new element to offense after original trial].) Ramirez, however,
insists this principle does not apply here, and permitting a retrial
would place him in double jeopardy, because the prosecutor and
defense counsel “effectively stipulated that there was insufficient
evidence to support a direct aiding and abetting conviction.”
Moreover, Ramirez argues, the evidence presented at his trial
would have been legally insufficient to convict him on a direct
aiding and abetting theory.
Ramirez, who provides no legal support for this novel
argument, overstates the record. The prosecutor certainly agreed
15
his case was predicated on the natural and probable consequences
doctrine and Ramirez’s role in the uncharged target misdemeanor
offense. And the People’s evidence at trial was directed to that
theory of culpability. But the prosecutor never stipulated (either
actually or effectively) there was insufficient evidence to proceed
on a theory of direct aiding and abetting. It may be that, in fact,
there is no such evidence. If so, we presume there will be no new
trial for attempted murder. However, the People are entitled to
an opportunity to evaluate the case and to proceed on a legally
viable theory of attempted murder if, in good faith, a prosecution
should be pursued.
2. Substantial Evidence Supported Ramirez’s Remaining
Convictions Under the Natural and Probable
Consequences Doctrine
In his prior appeals, in addition to challenging the
continued validity of the natural and probable consequences
doctrine for charges of attempted willful, deliberate and
premeditated murder, Ramirez argued the evidence was
insufficient to support application of the doctrine to any of the
nontarget offenses for which he was convicted. He raised three
distinct points: There was insufficient evidence to convict him of
the target offense, disturbing the peace; he was the sole
perpetrator of that offense (if it was committed), not an aider and
abettor or coparticipant within the meaning of the natural and
probable consequences doctrine; and the target offense was too
trivial to support the serious felonies with which he was charged.
As we have twice before—and in the absence of any new
legislation or case law affecting our prior analysis—we again
reject each of these contentions.
16
a. Governing law
In People v. Prettyman (1996) 14 Cal.4th 248 the Supreme
Court—after noting, “It sometimes happens that an accomplice
assists or encourages a confederate to commit one crime, and the
confederate commits another, more serious crime (the nontarget
offense)” (id. at p. 259)—explained the elements of the natural and
probable consequences doctrine: “[T]he jury must decide:
whether the defendant (1) with knowledge of the confederate’s
unlawful purpose; and (2) with the intent of committing,
encouraging, or facilitating the commission of any target crime(s);
(3) aided, promoted, encouraged, or instigated the commission of
the target crime(s). The jury must also determine whether (4) the
defendant’s confederate committed an offense other than the
target crime(s); and whether (5) the offense committed by the
confederate was a natural and probable consequence of the target
crime(s) that the defendant encouraged or facilitated.” (Id. at
p. 271; accord, Chiu, supra, 59 Cal.4th at p. 158 [“‘under the
natural and probable consequences doctrine, an aider and abettor
is guilty not only of the intended crime, but also “for any other
offense that was a ‘natural and probable consequence’ of the crime
aided and abetted”’”].)
“A nontarget offense is a ‘“natural and probable
consequence”’ of the target offense if, judged objectively, the
additional offense was reasonably foreseeable. [Citation.] The
inquiry does not depend on whether the aider and abettor actually
foresaw the nontarget offense. [Citation.] Rather, liability ‘“is
measured by whether a reasonable person in the defendant’s
position would have or should have known that the charged
offense was a reasonably foreseeable consequence of the act aided
and abetted.”’ [Citation.] Reasonable foreseeability ‘is a factual
17
issue to be resolved by the jury.’” (Chiu, supra, 59 Cal.4th at
pp. 161-162.)
In People v. Smith (2014) 60 Cal.4th 603 (Smith) the
Supreme Court rejected the defendant’s argument that principals
in the target crime may not be found guilty of nontarget crimes,
even if those nontarget crimes are otherwise foreseeable, if they
did not intend to aid and abet the perpetrator of the nontarget
offenses. The defendant had been convicted of the murders of
two of his fellow gang members who were shot by members of a
rival gang as the outgrowth of an incident in which the two rival
gangs had cooperated in staging a “jump out”9 and, in doing so,
had aided and abetted each other in committing the target crimes
of disturbing the peace and assault or battery. (Id. at pp. 611-
612.) As described by the Supreme Court, “The prosecutor had
argued that during the commission of the target crimes, a
principal in those crimes (a member of [the rival gang]) committed
the murders, and the murders were the natural and probable
consequence of the target crimes.” (Id. at p. 612.) Affirming
Smith’s convictions, the Court noted his liability “was based on his
being a principal [in the target offenses] under Penal Code
section 31” (ibid.) and concluded the jury could have reasonably
found that all the possible shooters had been aiders and abettors
in the target offenses (disturbing the peace and assault), and
therefore principals in those offenses, regardless of their gang
affiliation. (Id. at p. 619.) Thus, at least in the context of gang
violence, the Supreme Court sanctioned the use of the natural and
9 “‘[I]n order to get out of a gang, a member must be “jumped
out,” which typically involves a beating of that member by the
same members who jumped him or her into the gang.’” (People v.
Smith, supra, 60 Cal.4th at p. 608.)
18
probable consequences doctrine to impose liability on any
principal (whether perpetrator or aider-or-abettor) in the target
offense when another principal (whether perpetrator or aider-or-
abettor) in that offense commits a reasonably foreseeable
nontarget offense.
b. Substantial evidence supported the jury’s implied
finding Ramirez committed the target offense of
disturbing the peace
The target offense identified by the court in instructing the
jury was disturbing the peace, a violation of section 415,
subdivision (1), which imposes misdemeanor liability on “[a]ny
person who unlawfully fights in a public place or challenges
another person in a public place to fight.” As discussed, Ramirez
first rode his bicycle toward Gandara and Gilbert while staring at
them. He returned shortly thereafter, rode close to them and
asked, “Where you guys from?” When Gilbert answered he was
from Grape Street Watts, Ramirez identified either the territory
or himself as Lynwood Young Crowd. Citing Gandara’s testimony
acknowledging the lack of aggression or threat in Ramirez’s
conduct—thereby purportedly negating any intent to provoke a
fight—and his expert’s testimony that similar questions
frequently do not result in violence, Ramirez argued the
prosecution’s evidence was insufficient to support a finding he had
challenged Gilbert and Gandara to a fight.
Ramirez’s subjective intent in hitting up Gilbert and
Gandara is irrelevant. Specific intent to provoke a fight is not
required to establish culpability under section 415,
subdivision (1): “A challenge to fight is prohibited because such a
challenge may provoke a violent response that endangers not only
the challenger but any other persons who may be in the public
19
place where the challenge occurs. . . . The mere fact that the
challenger may naively believe that his challenge will go
unanswered does not reduce the danger that the challenge poses
to both the challenger and the public. Since the danger that a
challenge to fight creates, and that the Legislature intended to
prohibit, is unaffected by the challenger’s subjective intent to
actually cause a fight or his subjective belief that a fight will not
occur or is unlikely to occur, no specific intent is required.”
(In re Cesar V. (2011) 192 Cal.App.4th 989, 998-999, fns. omitted.)
Based on Detective Boisvert’s testimony that the question “Where
are you from?” initiated a challenge to fight, the jury could
reasonably conclude Ramirez committed a violation of section 415,
subdivision (1).
Ramirez’s additional argument that violence was only a
possible, not a probable, result of his conduct was an invitation for
us to reweigh the evidence. We once again decline that invitation.
(See, e.g., People v. Medina (2009) 46 Cal.4th 913, 922 [gang
member’s question “‘where are you from?’” must be understood as
“‘what gang are you from?’” and is “a verbal challenge, which
(depending on the response) could lead to a physical altercation
and even death”].)
c. The jury could reasonably conclude Ramirez did not
act alone in committing the target offense
As discussed, the jury was instructed that to find Ramirez
guilty of aiding and abetting the charged offenses it had to first
decide whether he was guilty of the target offense (disturbing the
peace) and find that “[d]uring the commission of disturbing the
peace a coparticipant in that disturbing the peace committed the
crime of attempted murder and/or assault with a firearm and/or
shooting at an inhabited dwelling.” (CALCRIM No. 403.) A
20
“coparticipant” was defined to include “anyone who aided and
abetted the perpetrator.” (Ibid.) Ramirez contends, even if he
challenged Gilbert and Gandara to fight, he was the sole
perpetrator of the target offense. Without the shooter also
participating in that offense, Ramirez argued, he (Ramirez) could
not be convicted of the charged felonies as a natural and probable
consequence of the challenge.
Viewing the evidence in the light most favorable to the
verdict, as we must (People v. Morales (2020) 10 Cal.5th 76, 88),
there was sufficient evidence to support the jury’s conclusion
Ramirez committed the crime of disturbing the peace as a
coparticipant in a common plan with the shooter to start a fight.
Ramirez first rode his bike by Gilbert and Gandara, evaluating
them, before returning to the apartment complex where the other
gang members awaited. He reemerged and hit up Gilbert and
Gandara, asking “Where are you from?” before announcing his
own affiliation with Lynwood Young Crowd. He then returned to
the complex only to emerge again with the other gang members
who commenced the assault. The jury could reasonably infer from
Ramirez’s actions, as well as the shooter’s shouted gang slur, that
Ramirez was acting at the instigation or with the encouragement
of the shooter and his associates when he approached Gilbert and
his friends the second time and attempted to provoke a fight and
that he had thereafter identified Gilbert as a member of Grape
Street Watts to his coparticipants, who proceeded to commit the
nontarget offenses.
d. The target crime was not too trivial to support the
convictions on the charged crimes
Ramirez also contended the People could not rely on the
natural and probable consequences doctrine to obtain convictions
21
for serious crimes, such as shooting at an inhabited dwelling,
when the defendant had only committed a “trivial” misdemeanor,
here, disturbing the peace. In advancing this argument Ramirez
relied on language from People v. Montes (1999) 74 Cal.App.4th
1050 in which the court of appeal affirmed the defendant’s
conviction for attempted murder during a gang fight that had
originated with a gang challenge and ended in a shooting. (Id. at
p. 1053.) Reviewing People v. Prettyman, supra, 14 Cal.4th 248
and its progeny, the Montes court first observed that “decisions
applying [the natural and probable consequences doctrine] ‘most
commonly involved situations in which a defendant assisted or
encouraged a confederate to commit an assault with a deadly
weapon or with potentially deadly force, and the confederate not
only assaulted but also murdered the victim.’” (Montes, at
p. 1055.) Continuing, the court stated: “On the other hand, it is
rarely, if ever, true that ‘an aider and abettor can “become liable
for the commission of a very serious crime” committed by the aider
and abettor’s confederate [where] “the target offense contemplated
by his aiding and abetting [was] trivial.”’ [Citation.] ‘Murder, for
instance, is not the natural and probable consequence of trivial
activities. To trigger application of the “natural and probable
consequences” doctrine, there must be a close connection between
the target crime aided and abetted and the offense actually
committed.’” (Ibid.) The Montes court concluded the threats and
initial fighting between the rival gangs in the case before it were
not trivial in nature and were closely connected to the escalation
of the fight by the gang member who pulled a gun, a “textbook
example of how a gang confrontation can easily escalate from
mere shouting and shoving to gunfire.” (Ibid.)
22
The extended discussion in Montes clarifies that a gang
challenge that precipitates a gang fight can be a nontrivial
instigator of more serious crimes resulting from that fight. There
simply is no per se rule that precludes use of the natural and
probable consequences doctrine when the target offense is
disturbing the peace through a gang challenge. The question in
each case is whether substantial evidence supports the jury’s
findings. (See People v. Ayala (2010) 181 Cal.App.4th 1440, 1449
[“[j]urors in a number of cases have found shootings to be
foreseeable consequences of gang confrontations, and those
findings have been affirmed on appeal”].) As explained, the jury
here had sufficient evidence to support its conclusion a gang
challenge was issued by Ramirez as a coparticipant in a common
plan to start a fight, which led to the serious felonies committed
by his confederate.
3. Assembly Bill 333 Requires Reversal of the True Findings
on the Criminal Street Gang Enhancements
Section 186.22. subdivision (b), provides for enhanced
punishment when a defendant is convicted of a felony committed
“for the benefit of, at the direction of, or in association with a
criminal street gang, with the specific intent to promote, further,
or assist in any criminal conduct by gang members.” Assembly
Bill 333 made a number of significant modifications to the
requirements for proving a criminal street gang enhancement.
Ramirez and the Attorney General agree, and we have previously
held (see People v. Delgado (2022) 74 Cal.App.5th 1067), that,
under the principles enunciated in In re Estrada (1965) 63 Cal.2d
740, Assembly Bill 333’s amendments to section 186.22 apply
retroactively to defendants whose convictions are not yet final.
(See also People v. E.H. (2022) 75 Cal.App.5th 467.)
23
Previously, proof of a “pattern of criminal gang activity” as
defined by section 186.22, subdivision (e), required evidence of
two or more identified predicate offenses, “provided at least one of
these offenses occurred after the effective date of this chapter and
the last of those offenses occurred within three years after a prior
offense, and the offenses were committed on separate occasions, or
by two or more persons.” As amended, subdivision (e) now
requires proof that (i) the last offense used to show the pattern of
criminal gang activity occurred within three years of the date the
currently charged offense is alleged to have been committed;
(ii) the offenses were committed on separate occasions or by two or
more gang members, rather than simply “persons”; (iii) the
offenses commonly benefited a criminal street gang, and the
common benefit was more than reputational; and (iv) the
currently charged offense cannot be used to establish the pattern.
New section 186.22, subdivision (g), provides “to benefit,
promote, further, or assist means to provide a common benefit to
members of a gang where the common benefit is more than
reputational.” The new subdivision provides as examples of a
common benefit that is more than reputational “financial gain or
motivation, retaliation, targeting a perceived or actual gang rival,
or intimidation or silencing of a potential current or previous
witness or informant.”
The Attorney General concedes the gang evidence at
Ramirez’s trial, presented under the old law, fell short of meeting
these new requirements. Specifically, the Attorney General
explains, the prosecution did not prove the predicate offenses
identified by the People’s gang expert (two convictions for second
degree murder) benefited the gang in ways that were more than
reputational. Similarly, the prosecution gang’s expert, in
24
response to a hypothetical question, testified the charged offenses
benefited Ramirez’s gang by instilling fear in others, that is, by
enhancing its reputation for violence. Without cataloguing
possible additional shortcomings in the gang evidence, Ramirez
agrees with the Attorney General’s concession that a remand for
retrial of the criminal street gang enhancements on the remaining
counts is necessary. We agree, as well.
4. Any Error in Trying the Criminal Street Gang
Enhancement Allegations Together with the Substantive
Offenses Was Harmless
In addition to amending section 186.22, Assembly Bill 333
added section 1109, which, at the request of the defendant,
requires a gang enhancement allegation be bifurcated and tried
after the underlying charges, with the truth of the enhancement
determined only after a guilty verdict. The Attorney General
contends this new statute, unlike other provisions of Assembly
Bill 333, does not apply retroactively, citing case law he argues
stands for the proposition that changes in trial procedures apply
prospectively if they do not alter the substantive requirements for
proving a crime or the truth of an enhancement allegation or
reduce the available punishment in the event of a conviction.
(E.g., People v. Cervantes (2020) 55 Cal.App.5th 927, 939-940 [new
requirements for interrogations not retroactive]; People v. Sandee
(2017) 15 Cal.App.5th 294, 305, fn. 7 [limitation on governmental
search of cell phones not retroactive].)
Relying primarily on People v. Superior Court (Lara) (2018)
4 Cal.5th 299, which held the provisions in Proposition 57 that
modified the procedural requirements for trying a juvenile in
adult criminal court applied retroactively to all cases not final on
its effective date because “it ameliorated the possible punishment
25
for a class of persons, namely juveniles” (id. at p. 308), Ramirez
argues the ameliorative benefits of bifurcating trial of gang
enhancement allegations “are manifest,” and the same inference
of retroactivity should apply as in Lara. Ramirez then argues the
failure to bifurcate trial of the criminal street gang enhancements
in his case constituted prejudicial error because the jury would
not have heard that two Lynwood Young Crowd members had
committed murder (the predicate acts) or that the primary
activities of the gang “include, but [are] not limited to . . . felony
vandalism, shootings, weapons possession and murder.”
We need not decide whether Ramirez or the Attorney
General is correct about the retroactive applicability of
section 1109; for, even accepting Ramirez’s contention it was error
to try the gang enhancements together with the substantive
offenses, any such error was harmless. (See, e.g., Cal. Const.,
art. VI, § 13 [“[n]o judgment shall be set aside, or new trial
granted, in any cause . . . for any error as to any matter of
procedure, unless, after an examination of the entire cause,
including the evidence, the court shall be of the opinion that the
error complained of has resulted in a miscarriage of justice”];
People v. Gonzalez (2018) 5 Cal.5th 186, 195 [“We evaluate
nonstructural state law error under the harmlessness standard
set forth in [People v.] Watson [(1956)] 46 Cal.2d [818,] 836-837.
That standard requires us to evaluate whether the defendant has
demonstrated that it is ‘“reasonably probable that a result more
favorable to the appealing party would have been reached in the
absence of the error”’”].)
As Ramirez implicitly recognizes by citing only the brief
gang expert testimony concerning the two predicate act murders
and the listing of the Lynwood Young Crowd’s primary activities,
26
all the other gang evidence admitted in the case would have been
before the jury even if no gang enhancements were being tried.
Indeed, the entirety of the case depended on such evidence, which
was unquestionably admissible: Ramirez’s membership in the
Lynwood Young Crowd gang, the concept of claiming territory by
“hitting up” other gang members in the area, the significance of
instilling fear to intimidate residents and members of other gangs,
and the gang expert’s experience that challenges such as those
issued first by Ramirez and then by the shooter usually lead to a
violent altercation. Viewing the record as a whole, it is not
reasonably probable that, with all the gang evidence admitted
save only the testimony concerning predicate acts and primary
activities, the jury would not have accepted the prosecutor’s
argument that Ramirez committed the target misdemeanor of
disturbing the peace by challenging another person in a public
place to fight and that the shooter’s continuation of that gang
challenge by chasing and shooting the victims was a natural and
probable consequence of Ramirez’s conduct.
Ramirez’s reliance on this court’s divided decision in People
v. Albarran (2007) 149 Cal.App.4th 214 to argue trial of gang
allegations together with substantive charges, assuming error at
all, violates a defendant’s right to due process and constitutes
federal constitutional error subject to harmless error analysis
under Chapman v. California (1967) 386 U.S. 18 is misplaced.
The Albarran majority recognized, if gang evidence has been
admitted in violation of state law rules, prejudice would generally
be analyzed under the Watson harmless error standard.
(Albarran, at p. 229.) However, the majority concluded the gang
evidence at Albarran’s trial was so inflammatory and the trial
court’s errors in allowing the evidence and then denying
27
Albarran’s new trial motion so egregious, that Albarran’s trial was
“one of those rare and unusual occasions where the admission of
evidence has violated federal due process and rendered the
defendant’s trial fundamentally unfair.” (Id. at p. 232.)
To reach that concededly unusual conclusion, the Albarran
majority catalogued the “panoply of incriminating gang evidence”
presented by the prosecution, including its gang expert’s lengthy
testimony “about the identities of other 13 Kings members, the
wide variety of crimes they had committed and the numerous
contacts between the various gang members (other than
Albarran) and the police. [The expert] described a specific threat
13 Kings had made in their graffiti to kill police officers. The jury
heard references to the Mexican Mafia both during the
prosecutor’s opening argument and in [the gang expert’s]
testimony.” (People v. Albarran, supra, 149 Cal.App.4th at
pp. 227-228.) Based on the extensive amount of extremely
prejudicial evidence introduced, the majority reasoned, “there was
a real danger that the jury would improperly infer that whether or
not Albarran was involved in these shootings, he had committed
other crimes, would commit crimes in the future, and posed a
danger to the police and society in general and thus he should be
punished. . . . In our view, looking at the effect of this evidence on
the trial as a whole, we believe that this prejudicial gang evidence
was ‘“of such quality as necessarily prevents a fair trial.”’” (Id. at
pp. 230-231.)
The limited gang evidence that would not have been
admitted in a bifurcated trial here stands in sharp contrast to the
extensive, Mexican Mafia-infused testimony that led the Albarran
majority to find a “rare and unusual” due process violation.
Watson, not Chapman, provides the appropriate harmless error
28
standard in this case. As discussed, Ramirez has failed to
demonstrate a reasonable probability he would have achieved a
more favorable outcome at trial for aggravated assault and
shooting at an inhabited dwelling if the gang enhancements had
been tried separately.
5. The Prosecutor’s Misstatement of the Evidence Was
Rendered Harmless by the Trial Court
In his original briefing in this court, Ramirez also argued
the trial court committed reversible error when it denied his
motion for mistrial after the prosecutor misstated in his closing
argument that someone had yelled “Hey, fuck Fake Street!” when
the shooter and Ramirez were standing together at the corner and
that it could have been Ramirez. In fact, during his testimony
Gandara had corrected his preliminary hearing testimony and
stated the shooter had yelled the slur while running down the
street toward Gandara’s apartment. The trial court denied the
motion, which was made outside the jury’s presence after the
conclusion of the People’s initial closing argument, noting it had
already instructed the jury that counsel’s arguments were not
evidence. The court also stated Ramirez’s counsel was free to
discuss the clarification of Gandara’s testimony in his closing
argument and to tell the jury the prosecutor had misstated the
evidence.
The court also offered to again admonish the jury; Ramirez’s
counsel accepted the offer. Back in the jury’s presence, the court
stated: “[B]efore [Ramirez’s counsel] begins his closing argument,
there was an issue regarding [the prosecutor’s] closing argument
regarding the evidence of what Joe Gandara . . . testified . . . as to
when the person, the shooter, said “Fuck Fake Street. . . . So
when you hear [counsel’s] arguments, . . . they are just arguments.
29
As part of the instructions that I gave you I told you what they
say is not evidence. . . . These are their arguments as to how you
should look at the facts and the evidence in relation to the law;
however, it is your recollection, your memory, the court reporter’s
record, the exhibits, that is the evidence that you shall base [the
verdict] on. . . . So [Ramirez’s counsel] will be addressing that, but
just keep that in mind. If . . . you feel that your memory of what
the evidence is conflicts with what they’re saying, you are the
judges of the facts and you are to determine what is true or not.”
After this admonition Ramirez’s counsel commenced his closing
argument and specifically addressed the discrepancy in the
evidence and the prosecutor’s misstatement of that evidence and
reminded the jury they could ask for the pertinent testimony to be
read to them. In his rebuttal argument the prosecutor
acknowledged his error and stated he in “no way” intended to
mislead the jury.
The jurors were properly advised of the prosecutor’s
unintentional misstatement of the facts, the inconsistencies in
Gandara’s preliminary hearing and trial testimony and their own
obligation to decide the case based on the evidence and not the
arguments of counsel. The trial court, therefore, ensured Ramirez
suffered no harm because of any misstatements by the prosecutor
during closing argument. (See People v. Martinez (2010)
47 Cal.4th 911, 957 [“[e]ven if the prosecutor’s argument could be
interpreted as . . . improper . . . , it is not reasonably probable that
the verdict would have been more favorable to defendant without
the misconduct”]; People v. Wallace (2008) 44 Cal.4th 1032, 1070-
1071 [“‘[a] defendant’s conviction will not be reversed for
prosecutorial misconduct’ that violates state law, however, ‘unless
30
it is reasonably probable that a result more favorable to the
defendant would have been reached without the misconduct’”].)
DISPOSITION
Ramirez’s convictions for attempted deliberate, willful and
premeditated murder, together with the associated criminal street
gang and firearm-use enhancements, are reversed. His
convictions for assault with a firearm and shooting at an
inhabited dwelling are affirmed but the related true findings on
the criminal street gang enhancement are reversed. The cause is
remanded to provide the People an opportunity to retry Ramirez
on a legally viable theory of attempted murder and to retry the
criminal street gang enhancements. If the People elect not to do
so, Ramirez is to be resentenced in a manner that is consistent
with this opinion and with the terms of all applicable ameliorative
legislation.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
31