People v. Phenneger CA5

Filed 4/28/22 P. v. Phenneger CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,
F078550
Plaintiff and Respondent,
(Super. Ct. Nos. 15CM-1278,
v. 15CM-3557E, 15CMS-0662,
15CMS-0679)
MICHAEL PHENNEGER,

Defendant and Appellant. OPINION

APPEAL from a judgment of the Superior Court of Kings County. Robert S.
Burns, Judge.
Cliff Gardner, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L.
Christoffersen and Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff
and Respondent.
-ooOoo-
 INTRODUCTION
In 2017, appellant Michael Phenneger and two codefendants were tried for the
2014 stabbing death of Roman Aguayo. The jury was unable to reach a verdict and a
mistrial was declared. In 2018, appellant was tried alone and a second jury convicted
him of first degree murder (Pen. Code, § 187, subd. (a);1 count 1), finding true that this
crime was committed with the specific intent to promote, further or assist in criminal
conduct by gang members (§ 186.22, subd. (b)(1)). The jury also convicted appellant of
active participation in a criminal street gang (§ 186.22, subd. (a); count 2).
Appellant, who was born in 1996, was 17 years old when this homicide occurred.
He received an indeterminate prison term of 25 years to life.2 This sentence was
consolidated with sentencing in three other unrelated criminal matters, all of which
appellant had resolved through plea agreements.3 He received an aggregate determinate
prison term of seven years eight months, and a consecutive aggregate indeterminate
prison term of 32 years to life.
In the present appeal, appellant seeks reversal of his convictions based on alleged
instructional errors and cumulative error. He also contends a limited remand is necessary
for a Franklin proceeding.4 We reject his arguments. However, following the passage of

1 All future statutory references are to the Penal Code unless otherwise noted.
2 In count 2, appellant received a middle term sentence of two years for active
participation in a criminal street gang, which was stayed pursuant to section 654.
Likewise, the sentence for the gang enhancement found true in count 1 was stayed.
3 In Kings County Superior Court case No. 15CMS-0662, appellant received a
consecutive indeterminate prison sentence of seven years to life for attempted murder. In
Kings County Superior Court case No. 15CM-3557E, he received a consecutive full
determinate prison term of two years for assault with a deadly weapon, with an additional
five years for a gang enhancement. Finally, in Kings County Superior Court case
No. 15CMS-0679, he received a one-third consecutive determinate prison term of eight
months for active participation in a criminal street gang.
4 People v. Franklin (2016) 63 Cal.4th 261 (Franklin).

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Assembly Bill No. 333 (2021-2022 Reg. Sess.), the parties agree via supplemental
briefing that the true finding regarding the gang enhancement in count 1 must be
reversed, along with the conviction in count 2 for active gang participation. We agree.
The gang enhancement in count 1 and the conviction in count 2 were based on a trial
stipulation that did not take into account the change in law brought about by Assembly
Bill No. 333. We reverse but give the People the opportunity to retry the gang
enhancement allegation in count 1 and the gang participation charge in count 2. We
otherwise affirm the judgment but do so without prejudice to appellant filing a motion for
a Franklin proceeding under the authority of section 1203.01 and In re Cook (2019) 7
Cal.5th 439 (Cook).)
BACKGROUND
We summarize the relevant procedural history of this matter. We also provide the
material facts from the second trial that support appellant’s judgment and which are
relevant to the issues raised in this appeal.
I. The First Trial That Resulted in a Hung Jury.
In 2017, appellant was tried for the 2014 murder of Roman Aguayo. Brothers
Jesus and Ismael Reyes were codefendants with appellant in the first trial. The
prosecution argued that all three of them had attacked Aguayo and stabbed him to death.
In October 2017, the jury was unable to reach a verdict and a mistrial was declared.
In April 2018, the trial court severed appellant from the Reyes brothers. The
severance occurred because the prosecution had announced it had a new witness, Sergio
Ferretiz, who would testify against appellant in the second trial as an in-custody
informant. It was anticipated that Ferretiz would testify that appellant had admitted
participating in Aguayo’s murder. Appellant’s second trial commenced in October 2018,
and he was tried alone.

3.
II. An Overview of the Second Trial.
At the second trial, it was undisputed that Aguayo had been stabbed to death. It
was also undisputed that three males had attacked Aguayo. The only contested issue was
whether or not appellant was one of the three assailants.
No forensic evidence linked appellant to this murder. He claimed in closing
argument that he was not involved at all in this crime. The prosecution, however, had
presented two witnesses who established appellant’s guilt for this murder. Rodolfo
Ramirez, an eyewitness to this attack, positively identified appellant at trial as one of the
three assailants who had attacked Aguayo. Ramirez’s testimony, however, had
substantial credibility issues based on numerous prior inconsistencies and admitted lies to
law enforcement. In addition to Ramirez’s eyewitness testimony, the prosecution
presented Ferretiz (the in-custody informant), who testified that appellant had admitted to
him that he had been involved in this murder.
Aguayo’s girlfriend, E.F., was also an important witness in this trial. She saw the
fatal attack, and she reported to law enforcement that three male Hispanics were
responsible. At trial, however, E.F. was unable to identify appellant as one of the three
assailants.
III. Appellant Was Involved in this Fatal Attack.
Aguayo was stabbed to death on November 20, 2014, outside an apartment
complex in Hanford, California. Aguayo’s girlfriend, E.F., was present when the fatal
incident occurred. Ramirez, who lived at this apartment complex, was also present. 5
Ramirez knew Aguayo because they had worked together at a meat company.
Just prior to the fatal attack, Aguayo and E.F. had gone on a walk together. They
lived near this apartment complex. Near the apartment complex, they saw Ramirez
outside, and Aguayo and Ramirez greeted each other and acted friendly. After the two

5 The jury learned that Jesus Reyes also lived in this apartment complex.

4.
men stopped talking, Aguayo and E.F. walked closer to the apartments. It was then when
three males began walking towards them.
The prosecution presented evidence that suggested Aguayo was a former gang
member who had dropped out. It was the prosecution’s theory that the three males had
attacked Aguayo for this reason. E.F. told the jury that before the three males attacked
Aguayo one of them had asked him if he “banged anything” or “ ‘do you bang’ ” or
words to that effect. Aguayo had answered that “he didn’t do none of that stuff.” An
assailant responded that he had “heard different.” This assailant pushed Aguayo, who
pushed him back. The assailant fell down. The other two assailants began to punch
Aguayo, and the third assailant got up and joined in the attack. Aguayo was not fighting
back.6
According to E.F., all three males punched Aguayo with their fists. She never saw
a weapon. Aguayo fell to the ground. Before the assailants fled, one of them kicked
Aguayo’s head.
Ramirez testified at trial that he saw the three assailants confront Aguayo. The
encounter turned violent and Ramirez saw the three assailants hitting Aguayo on his head
and his face, but Ramirez did not see a weapon. Aguayo fell to the ground and the three
males began to kick his head.
At trial, Ramirez testified that he had tried to protect Aguayo during the fatal
attack, and he had tried to shield Aguayo by getting on all fours over Aguayo’s body
while the three assailants were kicking him. He said he put his “torso” over Aguayo.
At some point after the assailants fled, Ramirez called 9-1-1 to report this attack.
E.F. separately ran to an apartment and she asked its occupant to call 9-1-1. Emergency
personnel responded a short time later, and they found Aguayo in critical condition.
When medical emergency personnel cut open his shirt, his intestines were seen

6 Aguayo’s blood-alcohol level was 0.22 percent when this fatal attack occurred.

5.
protruding from his lower abdomen. Aguayo was transported to a hospital, but he died
from injuries he sustained during this attack.
At trial, Ramirez testified that he was familiar with all three assailants. He told the
jury that, before this fatal incident occurred, he had smoked marijuana with them on
different occasions. Ramirez believed he had smoked with appellant maybe “once” or
“twice,” but he had not known appellant’s name. However, Ramirez knew the other two
males, Jesus and Ismael Reyes.
Ramirez told the jury that appellant had been one of the three assailants who had
attacked Aguayo, including kicking him after he had fallen down. Ramirez testified he
was “one hundred percent sure” of his identification of appellant as one of the three
males who had beaten Aguayo.
IV. Aguayo Died from Multiple Stab Wounds.
Although neither Ramirez nor E.F. saw the three males attack Aguayo with
weapons, it was undisputed that at least one of them, and perhaps more, had stabbed
Aguayo with knives during this encounter. The pathologist found 11 stab wounds to
Aguayo’s body. Two stab wounds to the chest were fatal. Based on the nature of some
of the wounds, the pathologist opined it was reasonable to assume that two different
knives had been used to stab Aguayo.7
V. Ramirez’s Credibility Was Impeached in Numerous Ways at Trial.
At trial, the credibility of Ramirez, the eyewitness who identified appellant as the
third assailant, was impeached in multiple ways. We provide a summary of the various
concerns.

7 During closing argument, the prosecutor informed the jury it was possible to infer
that all three assailants had used knives during this attack.

6.
 A. Ramirez was a gang member from Avenal.
Ramirez admitted to the jury that he was a Norteño gang member from Avenal.
When living there he had belonged to the “Avenal Varrio Lomas” gang, which is known
as “AVL.” He told the jury he had moved to Hanford with his wife and child because he
had wanted a “fresh start.” He admitted at trial that, when he was an active Norteño gang
member, he would get into fights.
After moving to Hanford, Ramirez, had not wanted people to know that he had
stopped living a gang lifestyle so that he could avoid being injured. He never told anyone
that he was no longer active in the gang because he feared retaliation.
B. Ramirez tried to create an alibi for himself.
Ramirez tried to create an alibi for himself for the night Aguayo was attacked. He
had asked his grandmother to tell people that he was not home when this happened
because he did not want anything to do with this incident.
C. Ramirez had blood on his clothes and he was initially a suspect in this
murder.
Law enforcement initially viewed Ramirez as a potential suspect. The day after
this fatal attack, a detective went to Ramirez’s residence. Outside Ramirez’s apartment, a
“small amount” of blood was observed on the front door. Law enforcement searched
Ramirez’s apartment. Other than standard kitchen knives, no weapons were located.
However, police found a jacket, shirt and pants that had blood on them. At trial, a
detective denied that the clothes recovered from Ramirez’s apartment were “covered” in
blood. Instead, the detective generally testified that small amounts of blood were found
at various locations on these articles of clothing.
Based on law enforcement’s body camera footage from the night in question, the
detective confirmed that Ramirez had been wearing the same jacket on the night Aguayo
was attacked. The detective told the jury that, when initially investigating this homicide,
he discovered that a person named “Rodolfo Ramirez” had called 9-1-1 on the night of

7.
the incident about a minute and a half after an initial caller. The detective found that
significant because a perpetrator does not usually call 9-1-1 on themselves. The detective
also saw that Ramirez had remained at the crime scene while Aguayo was still alive as
seen on body camera footage.
At trial, E.F. denied that the three assailants had looked like Ramirez. At trial, she
could not remember seeing Ramirez while Aguayo was being attacked. She denied at
trial that Ramirez had inflicted the injuries on Aguayo.
Ramirez testified it was possible his leg had touched Aguayo, but Ramirez could
not remember. At trial, Ramirez denied that he had ever kicked Aguayo.
D. Ramirez initially lied to law enforcement.
Ramirez repeatedly lied to law enforcement about his knowledge of this fatal
incident. In his 9-1-1 call, Ramirez had told the dispatcher that he had not seen the
attackers. He claimed at trial that he had lied because he “knew the consequences.” He
told the jury that by calling 9-1-1 he had snitched on the gang and he could be killed.8
Ramirez spoke with law enforcement about a day after this fatal incident. He did
not immediately disclose what he had witnessed that night. He repeatedly told the
detectives that he did not know what had happened. He also claimed to not have been at
the scene. He initially denied knowing Aguayo. He erroneously informed the detectives
that Aguayo had been coughing up blood, which was why Ramirez had blood on his
clothes. At trial he admitted that he had lied to law enforcement, claiming he had feared
for his life and for his family. He testified that he began to cooperate with law
enforcement once he learned that Aguayo had died.

8 Since working with law enforcement in this matter, Ramirez had been placed in
witness protection. At the time of trial, he no longer lived in the county and he had
relocated his family. He told the jury that the purpose of relocating was to prevent his
own murder, or that of his wife or child. The jury learned that, since assisting law
enforcement, a warrant had been removed that had previously been issued against
Ramirez for a suspended license.

8.
 E. Ramirez was not very certain in his initial photographic identification of
appellant.
At trial, Ramirez was “one hundred percent sure” and “[v]ery confident” that
appellant was one of the three people involved in this murder. With law enforcement
before trial, however, Ramirez had been shown a number of photographs of potential
suspects. One picture showed six individuals and Ramirez picked out appellant. He had
told law enforcement he was only 45 to 50 percent certain of his identification.9 Later,
however, Ramirez selected a different photograph of appellant and Ramirez told law
enforcement that he was very certain of his identification. He told the jury that he was
better able to identify appellant in the second photo because it had a “much clearer
image.”
F. Ramirez made many inconsistent statements.
The jury learned that Ramirez had provided numerous prior inconsistent
statements. The following are some of the examples.
Ramirez had previously stated all three assailants were Hispanic. However, at trial
Ramirez admitted that appellant appears “light complected” and does not look Hispanic.
Ramirez also admitted that, during his grand jury testimony10 and his testimony at the
preliminary hearing, he had never mentioned smoking marijuana with appellant in the
Reyes residence. At trial, he admitted that this was new information.
At the preliminary hearing, Ramirez was asked if he remembered any tattoos on
the third assailant (i.e., appellant) and Ramirez had answered no. At trial, however,
Ramirez acknowledged that appellant has tattoos. At the preliminary hearing, Ramirez

9 Ramirez testified that he knows Ismael Reyes is the brother of Jesus Reyes. With
law enforcement before trial, Ramirez identified Jesus in a photograph but he indicated at
that time that he was only about 45 to 50 percent certain.
10 This criminal matter was initiated with an indictment wherein the grand jury of
Kings County accused appellant of first degree murder (count 1), and active participation
in a criminal street gang (count 2). This indictment was filed following testimony in
front of the grand jury.

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had stated he would not be able to recognize appellant if he had been in the courtroom.
At trial, Ramirez agreed he had been “guessing” regarding this issue during his
preliminary hearing testimony.
At trial, Ramirez acknowledged that he had indicated at the preliminary hearing
that he would not recognize the face of the third assailant because a beanie had been
covering “part of his face” and he only “partially” saw that male. Ramirez testified at
trial that he could see appellant’s face better in court than on the night of the murder
because it had been dark then.
VI. Ferretiz’s Trial Testimony.
Ferretiz, the in-custody informant, testified during the second trial that he had been
housed in the local jail for about 14 months. According to Ferretiz, he was a former
“Northerner” gang member from Avenal.11 After leaving the gang in 2017, he went
through a debriefing process with law enforcement in the hopes of receiving leniency.
He told law enforcement about certain crimes, including matters involving appellant.
Prior to his testimony in this matter, Ferretiz had signed a plea agreement with the
prosecutor’s office. Ferretiz admitted to the jury that he was hoping for leniency in his
criminal sentencing which was occurring in a few weeks.12
At trial, Ferretiz identified appellant as someone he had known from his time as a
member in the gang. Ferretiz claimed to have known appellant since around 2012 or
2013. Ferretiz described appellant as a “regular soldier, just like all of us. Just a regular
gang banger.”

11 Ferretiz had belonged to a different Norteño gang than appellant’s gang.
Appellant was involved in a Norteño gang from Hanford.
12 Ferretiz was in custody for being a felon in possession of a firearm and a felon in
possession of ammunition. He had previously been convicted of active participation in a
street gang. Ferretiz’s pending charges subjected him to a sentence of about eight years
in prison.

10.
 In 2015, Ferretiz was arrested for possession of a firearm. While in custody he
saw appellant and they spoke. According to Ferretiz, appellant did not understand why
his bail had been increased. Appellant was concerned that he was being charged with
either attempted murder or murder, and the Reyes brothers were involved. Ferretiz told
the jury that he knew the Reyes brothers from juvenile hall, and he knew the older
brother’s name (Jesus), but he did not know the other brother.
During his debriefing with law enforcement, Ferretiz informed a detective that
appellant had said “he plugged” Aguayo. Ferretiz also told a detective that according to
appellant, the Reyes brothers were not doing anything but “stomping him” and that is
when appellant “plugged him.” At trial, Ferretiz testified that appellant said he had been
with the Reyes brothers when this murder occurred. Appellant had said either “they
plugged him or [appellant] plugged him.” Ferretiz told the jury that the word “ ‘plug’ ”
means to stab someone.13
In addition to this murder, Ferretiz also told the jury that appellant had discussed
an attempted murder, something about “shooting somebody in the leg.” In this other
unrelated crime conveyed to Ferretiz, appellant had evaded police with another person.
Appellant said he ran and jumped a few fences until they caught him. Appellant said
something about a gun that had been modified. Appellant had told Ferretiz that he had
hidden a revolver in “a little tree” around the time he had evaded police. According to
Ferretiz, appellant had hidden the gun “in, like, somebody’s backyard, in a plant or
something like that.”
VII. Evidence Corroborated Portions of Ferretiz’s Testimony.
At trial, evidence was introduced that corroborated key portions of Ferretiz’s
testimony. The jury learned that Ferretiz and appellant had both been in custody at the
local jail at the same time. They had been housed in the same pod.

13 Ferretiz admitted at trial that he had seen a newspaper story about this murder.

11.
 The prosecution established that, in March 2015, appellant had shot a victim in his
leg. That victim told this jury that he had almost bled to death. The jury learned that, in
March 2015, law enforcement had chased appellant. Appellant had jumped over a fence
and he ran through a homeowner’s backyard. Appellant had been arrested a short
distance away. The homeowner found a gun in her backyard near a sago palm tree. In or
about April 2015, she contacted law enforcement, who collected a .357 revolver.14 The
homeowner later noticed that a lot of the palm fronds had been torn off that tree and were
lying in the planter.
Finally, and as reported above, Ramirez identified appellant in court as one of the
three assailants who committed the attack that caused Aguayo’s death.
VIII. The Gang Evidence.
At trial, the prosecution established that appellant and Jesus Reyes are gang
members in the South Side Locs (SSL), which is a Norteño gang in Kings County and
Hanford. The parties stipulated that SSL is a criminal street gang.
The prosecution’s gang expert was given a hypothetical that mirrored certain facts
in this matter. The gang expert opined that this murder was done to benefit SSL.
DISCUSSION
I. Appellant Has Forfeited His Claim that the Trial Court Violated His
Constitutional Rights by Instructing the Jurors with CALCRIM No. 315; In
Any Event, No Error Occurred and Any Presumed Error Was Harmless.
Appellant asserts that the trial court violated his due process rights by instructing
the jurors with CALCRIM No. 315. In relevant part, the court told the jurors that, in
evaluating Ramirez’s credibility as an eyewitness who identified appellant, they should

14 The parties stipulated that the .357 revolver recovered from the homeowner’s
backyard was not the same gun that was used to shoot the victim in appellant’s other
criminal matter involving the attempted murder.

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consider certain questions, including: “How certain was the witness when he or she
made an identification?”
Appellant contends that this “certainty” instruction runs counter to prevailing
social science and research, which establishes that eyewitness certainty does not
correspond to accuracy. He argues that this instruction reduced the state’s burden of
proof and undercut his right to present a defense. He maintains that reversal is required
because the prosecutor relied heavily on Ramirez’s trial testimony where he identified
appellant as the third assailant and he was 100 percent certain of his identification that
appellant was involved in this murder.
Our Supreme Court has recently addressed this issue. In People v. Lemcke (2021)
11 Cal.5th 644 (Lemcke), the high court considered whether the “certainty” instruction
violates due process. Based on the context of its trial record as a whole, which included
an eyewitness identification expert who testified for the defense, the Lemcke court held
that due process was not violated. According to Lemcke, the certainty factor did not
render the defendant’s trial fundamentally unfair. (Id. at p. 646.) However, the Supreme
Court agreed that, despite the absence of a constitutional violation, a “reevaluation of the
certainty instruction” was warranted. (Id. at p. 647.) Lemcke concluded that “near
unanimity in the empirical research” now exists that “ ‘eyewitness confidence is
generally an unreliable indicator of accuracy.’ [Citations.]” (Ibid.) The high court noted
that, based on many studies, “eyewitness confidence is the single most influential factor
in juror determinations regarding the accuracy of an identification.” (Ibid.) In light of
these concerns, the Supreme Court referred the matter to the Judicial Council of
California and its Advisory Committee on Criminal Jury Instructions to evaluate whether
or how this instruction might be modified to avoid juror confusion regarding the
correlation between certainty and accuracy. (Ibid.) In addition, the Lemcke court
directed trial courts to omit the certainty factor from CALCRIM No. 315 (unless a

13.
defendant requests otherwise) until the Judicial Council has completed its evaluation.
(Id. at pp. 647–648.)
After Lemcke was issued, the parties filed supplemental briefs in this matter. They
both contend that Lemcke supports their respective positions. Appellant notes that, unlike
what occurred in Lemcke, no eyewitness identification expert testified on his behalf in his
trial. Appellant argues he should receive retroactive application of Lemcke’s
pronouncement that the certainty instruction should not be given to jurors.
Respondent does not address the issue of retroactivity. Instead, respondent
contends that appellant has forfeited this claim. In the alternative, respondent argues that
the certainty instruction given in this matter did not mislead jurors to believe that
eyewitness confidence correlates to accuracy. Respondent contends that Lemcke
establishes that this claim is without merit. Respondent notes that appellant had the
opportunity to present an expert witness regarding eyewitness identification. Respondent
takes the position that appellant’s due process rights were not violated.
We agree with respondent that appellant has forfeited this claim. In the
alternative, we also agree that this claim fails on its merits, and we conclude that
prejudice did not result from any presumed error. As a result, we need not address the
issue of retroactivity.
A. This claim is forfeited.
It is undisputed that appellant failed to object to the giving of CALCRIM No. 315,
and he did not request a modification of it. To overcome forfeiture, appellant cites
section 1259 and argues that this claim impacts his substantial rights. (See § 1259 [an
appellate court may review any given jury instruction, despite no objection below, if the
substantial rights of the defendant are affected].)
In People v. Sánchez (2016) 63 Cal.4th 411 (Sánchez), the defendant had similarly
argued that the trial court had erred in instructing jurors with CALJIC No. 2.92 (the

14.
predecessor to CALCRIM No. 315) because there was a weak correlation between
certainty and accuracy. (Sánchez, supra, 63 Cal.4th at p. 461.) The Attorney General
raised forfeiture because the defendant had not requested a modification in the trial court.
The Supreme Court agreed, explaining a trial court has no sua sponte duty to modify this
instruction. (Ibid.)
Based on Sánchez, we agree with respondent that it is appropriate to invoke the
forfeiture doctrine. We further reject appellant’s assertion that section 1259 overcomes
forfeiture. As we discuss below, appellant’s substantial rights were not impacted by the
certainty instruction. Thus, this claim is deemed forfeited.15 In any event, however, this
claim also fails on its merits.
B. Appellant’s claim fails on its merits.
In Lemcke, the defendant and his girlfriend attacked a woman at a motel.
(Lemcke, supra, 11 Cal.5th at p. 648.) The victim identified the defendant in a
photographic lineup later that day, and again approximately three months later. (Id. at
pp. 648–649.) The defense called an expert witness who testified at length regarding the
reliability of eyewitness identifications. (Id. at pp. 650–652.) The trial court instructed
the jury with CALCRIM No. 315, providing 15 factors the jury should consider when
evaluating the credibility and accuracy of eyewitness identification evidence. (Id. at
p. 652.) On appeal, the defendant argued that the certainty instruction violated his right
to due process. (Id. at p. 654.)

15 In his reply brief, appellant raises for the first time the possibility of ineffective
assistance of counsel as grounds to overcome forfeiture and review this claim. We will
not entertain this argument which was made for the first time in the reply brief because it
is unfair to the other party. (People v. Rangel (2016) 62 Cal.4th 1192, 1218–1219.) In
any event, appellant’s assertion of ineffective assistance of counsel also fails because, as
we explain below, there was no error and any presumed error was harmless. (See People
v. Lucas (1995) 12 Cal.4th 415, 436 [a criminal defendant asserting ineffective assistance
of counsel has the burden of establishing two elements, deficient performance and
prejudice].)

15.
 Lemcke held that a due process violation occurs if a jury instruction renders a
defendant’s trial “fundamentally unfair.” (Lemcke, supra, 11 Cal.5th at pp. 646–647.)
Our Supreme Court reiterated its belief, based on prior precedent, that the certainty factor
contained in CALCRIM No. 315 does not inform a jury “that ‘certainty equals
accuracy.’ ” (Lemcke, supra, 11 Cal.5th at p. 647; citing Sánchez, supra, 63 Cal.4th at
pp. 461–463; People v. Johnson (1992) 3 Cal.4th 1183, 1231–1232 [approving CALJIC
No. 2.92’s certainty instruction].) The high court concluded that, although the language
of the disputed instruction “may prompt jurors to conclude that a confident identification
is more likely to be accurate,” the defendant “was permitted to call an eyewitness
identification expert who explained the limited circumstances when certainty and
accuracy are positively correlated. Moreover, the court provided additional instructions
directing the jury that it was required to consider the testimony of the expert witness, that
the prosecution retained the burden to prove [the defendant’s] identity as the perpetrator
beyond a reasonable doubt, and that witnesses sometimes make honest mistakes.”
(Lemcke, supra, 11 Cal.5th at p. 647.) The high court found no constitutional violation.
(Ibid.)
Following Lemcke, our high court in People v. Wright (2021) 12 Cal.5th 419
(Wright) again addressed the concerns associated with a certainty instruction. In Wright,
no eyewitness identification expert testified for the defense. (Id. at p. 453.) However, the
defendant’s primary trial strategy in Wright had been to discredit the eyewitnesses who
had testified against him, and “to imply that the eyewitnesses were testifying falsely. At
no point did defendant argue that the witnesses mistook his identity. This was in contrast
to Lemcke, where the defense strategy focused on questioning the victim’s identification
of the defendant.” (Wright, supra, at p. 453, citing Lemcke, supra, 11 Cal.5th at pp. 652–
653.) The Wright court held that Lemcke was distinguishable because multiple witnesses
had identified the defendant in Wright and at least two of the witnesses had known the
defendant in some capacity prior to the attack. (Wright, supra, at p. 453.)

16.
 In the present matter, appellant had a full and fair opportunity to challenge the
eyewitness identification testimony that was introduced against him. Defense counsel
vigorously cross-examined Ramirez regarding his numerous inconsistent statements and
his admitted lies to law enforcement. Moreover, defense counsel forcefully argued to the
jury that Ramirez lacked any credibility, and counsel summarized numerous reasons why
the jury should reject his testimony. Counsel contended that Ramirez was biased and had
wanted appellant to be convicted to avoid his own potential liability for this murder.
The defense argued to the jury that it was Ramirez who had participated in killing
Aguayo. According to defense counsel, Ramirez had the opportunity and the means to
commit this murder. Ramirez had Aguayo’s blood on him and Ramirez had kitchen
knives in his apartment that law enforcement did not test. Ramirez had lied during the
9-1-1 call about what he had seen. Defense counsel reiterated that Ramirez had created a
false alibi for himself, and he continued to change his story about what had transpired.
Defense counsel concluded that the evidence pointed to Ramirez’s guilt, but the
government had refused to deviate from its original theories. The defense asked the jury
to acquit appellant of all charges, asserting that the only evidence that pointed to
appellant’s guilt was from Ramirez, who had repeatedly lied.
Unlike what occurred in Lemcke, appellant’s defense was not based on an
assertion that Ramirez had made a false identification. Instead, appellant attempted to
convince the jury that Ramirez had lied. In any event, nothing prevented appellant from
calling an expert to testify about the inherent problems associated with eyewitness
identifications.
Finally, the jury received other instructions that eliminate any reasonable concerns
that the prosecution’s burden of proof was lowered or that appellant’s due process rights
were violated. (See Lemcke, supra, 11 Cal.5th at pp. 658, 660.) With CALCRIM
No. 220, the jurors were informed that appellant was presumed to be innocent and this
presumption required the prosecution to prove him guilty beyond a reasonable doubt.

17.
With CALCRIM No. 226, the jurors were told to use their “common sense and
experience” when judging a witness’s credibility. The jurors were given a list of factors
to consider, including how well the witness could perceive the event, the witness’s
behavior while testifying, and whether the witness made prior inconsistent statements.
The jurors were instructed that people sometimes “honestly forget things, or make
mistakes about what they remember.” The jurors were informed they could accept part
of a witness’s testimony and reject other parts. Finally, with CALCRIM No. 315, the
jurors were given 15 factors to consider when deciding whether Ramirez gave truthful
and accurate identification testimony. These factors included the disputed “certainty”
question. After listing the factors to consider, this instruction again reiterated that the
prosecution bore the burden to prove beyond a reasonable doubt that it was appellant who
committed the crime. The jurors were instructed to find appellant not guilty if the People
did not meet this burden.
The instructions taken as a whole do not support a conclusion that the jury was
encouraged to give undue weight to the disputed certainty factor. To the contrary, the
entirety of this trial record demonstrates that the inclusion of the certainty factor did not
render appellant’s trial fundamentally unfair. This instruction did not lower the
prosecution’s burden of proof. (See Lemcke, supra, 11 Cal.5th at p. 657.) Based on
Lemcke and Wright, we reject appellant’s claim on its merits. He did not suffer any
constitutional violations and reversal is not warranted.
C. Any presumed error was harmless.
Appellant argues that we should analyze prejudice under Chapman v. California
(1967) 386 U.S. 18 (Chapman). Under this standard, the reviewing court must determine
beyond a reasonable doubt that the alleged error did not contribute to the verdict. (People
v. Aranda (2012) 55 Cal.4th 342, 367.)

18.
 We reject appellant’s assertion that Chapman is the correct standard of review.
The California Supreme Court has used the standard from People v. Watson (1956) 46
Cal.2d 818 (Watson) when analyzing prejudice in this situation. The issue is whether it is
reasonably probable appellant would have obtained a more favorable result had the trial
court deleted the certainty factor. (Sánchez, supra, 63 Cal.4th at p. 463.) Under either
standard, however, this record amply demonstrates that no prejudice occurred even if
error is presumed.
During closing arguments, the prosecutor informed the jurors that they should
convict appellant if they had an “abiding conviction” of his guilt. However, the
prosecutor advised the jurors that they should acquit appellant if they did not have such a
belief. The prosecutor reminded the jurors that, other than Ferretiz’s testimony, the in-
custody informant, the evidence of a single witness was sufficient by itself to prove any
fact beyond a reasonable doubt. The prosecutor noted that, if the jurors believed
Ramirez’s trial identification, that was sufficient for a conviction. Later, the prosecutor
argued that law enforcement initially showed Ramirez a photo (which the prosecutor
described as “fairly blurry”) and Ramirez was not certain of his identification. Later,
however, Ramirez was shown a better photo. The prosecutor asserted that “now
[Ramirez] can conclusively say this is the third person.”
During closing arguments, the prosecutor did not place any emphasis on the
disputed certainty instruction appearing in CALCRIM No. 315. In addition, this
instruction cited the certainty factor in a neutral manner. It merely told the jurors that
they should consider it and it did not suggest that certainty equals accuracy. During
closing argument, the defense emphasized the numerous concerns surrounding Ramirez’s
identification of appellant. The defense also suggested that the evidence showed it was
Ramirez who was the third assailant, and the defense asked the jury to acquit appellant of
all charges.

19.
 Based on the verdicts rendered, it is apparent that the jury rejected the defense’s
position that it was Ramirez who had participated in the fatal attack as the third
perpetrator. We note that E.F. denied at trial that the three assailants had looked like
Ramirez. She also could not remember seeing Ramirez while Aguayo was being
attacked. She denied at trial that Ramirez had inflicted the injuries on Aguayo.
The prosecution also presented the testimony of Ferretiz, who heard appellant talk
about participating in this murder. As we explain later in this opinion, Ferretiz’s
testimony was sufficiently corroborated. Appellant’s admission of guilt to Ferretiz was
further evidence supporting the jury’s murder verdict and it is additional grounds
demonstrating that any presumed instructional error was harmless.
Finally, instructing the jury with the certainty factor could only have benefited
appellant. Ramirez expressed initial doubt regarding his identification of appellant.
Consequently, it is not reasonably probable appellant would have obtained a more
favorable result had the trial court deleted the certainty factor. (See Sánchez, supra, 63
Cal.4th at p. 463.) Likewise, we can also declare beyond a reasonable doubt that the
alleged instructional error did not contribute to the verdicts. (See People v. Aranda,
supra, 55 Cal.4th 342, 367.) In other words, the guilty verdicts actually rendered in this
trial were surely unattributable to any presumed error. (See Sullivan v. Louisiana (1993)
508 U.S. 275, 279.) Accordingly, prejudice is not present even under the more stringent
Chapman standard. As a result, we need not resolve the question of retroactivity left
unanswered in Lemcke. (See Lemcke, supra, 11 Cal.5th at pp. 647–648.) Instead,
reversal of appellant’s judgment is not warranted and this claim fails.
II. Instructional Error Did Not Occur Regarding Whether Ferretiz’s Testimony
Required Corroboration; This Claim Is Also Forfeited and Any Presumed
Error Was Harmless.
Appellant argues that the trial court provided jury instructions that confused the
jury. He contends the court allowed the jurors to rely on Ferretiz’s testimony, the in-

20.
custody informant, without sufficient corroboration. Appellant asserts that reversal is
required.
A. Background.
Appellant’s first trial in this matter occurred in 2017. He was tried along with the
Reyes brothers. The jury from the first trial was unable to reach a verdict and a mistrial
was declared.
In 2017, and after appellant’s first trial had already started, Ferretiz met with law
enforcement and he relayed his conversation with appellant. At that time Ferretiz was in
custody for being a felon in possession of a firearm and ammunition. He had previously
been convicted of active participation in a street gang. Ferretiz’s pending charges
subjected him to a sentence of about eight years in prison.
Ferretiz agreed to testify against appellant. In exchange, he was promised a prison
sentence of no more than eight years with the possibility of probation with up to one year
in jail. When he testified in this matter, Ferretiz was awaiting sentencing, which was
scheduled to occur in about two weeks.
B. Analysis.
A defendant may not be convicted based on the uncorroborated testimony of an in-
custody informant.16 Instead, the testimony of an in-custody informant must be
corroborated by other evidence “that connects the defendant” with the commission of the
offense. (§ 1111.5, subd. (a).)
In raising this claim, appellant concedes that the trial court properly instructed the
jury with CALCRIM No. 336. In general, this instruction informed the jury that it must

16 The statute defines “ ‘in-custody informant’ ” as “a person, other than a
codefendant, percipient witness, accomplice, or coconspirator, whose testimony is based
on statements allegedly made by the defendant while both the defendant and the
informant were held within a city or county jail, state penal institution, or correctional
institution.” (§ 1111.5, subd. (b).)

21.
view the testimony of an in-custody informant against appellant “with caution and close
scrutiny.” This instruction also told the jurors that they could not convict appellant based
solely on the testimony of the in-custody informant unless (1) the testimony was
supported by other evidence that they believed; (2) the supporting evidence was
independent of the testimony; and (3) the supporting evidence connected appellant to the
commission of the crimes.
Despite conceding it was proper to instruct with CALCRIM No. 336, appellant
contends the trial court gave a conflicting instruction when it used CALCRIM No. 359,
which addresses the corpus delicti rule. With this instruction, the jurors were informed
that appellant could not be convicted based only on his out-of-court statements unless
they first concluded that other evidence showed that the charged crimes were committed.
This instruction stated that the other evidence “may be slight, and need only be enough to
support a reasonable inference that a crime was committed. This requirement of other
evidence does not apply to prove the identity of the person who committed the crime and
the degree of the crime. If other evidence shows that the charged crime was committed,
the identity of the person who committed it, and the degree of the crime may be proved
by [appellant’s] statement alone. You may not convict [appellant] unless the People have
proved his guilt beyond a reasonable doubt.” (Italics added.)
According to appellant, the highlighted language above shows an inherent conflict
between CALCRIM Nos. 336 and 359 because the language from CALCRIM No. 359
regarding the corpus delicti rule permitted the jurors to rely on appellant’s own
statements (conveyed to Ferretiz) without corroboration to prove both his identity as the
perpetrator and the degree of this murder. Appellant asserts that this would have
confused the jury. He further argues that the prosecution failed to provide sufficient
corroborating evidence. He contends that Ramirez’s identification testimony cannot
qualify as sufficient corroboration because of its substantial credibility concerns.

22.
 Respondent asserts that appellant has forfeited this claim. In the alternative,
respondent contends that any presumed instructional error was harmless.
We agree with respondent that appellant has forfeited this claim. We also
conclude it is not reasonably likely the jury was confused by the conflicting language it
received from CALCRIM No. 359. Finally, we determine that any presumed
instructional error was harmless.
1. This claim is forfeited.
Appellant concedes that he failed to object below when the trial court instructed
the jury with CALCRIM No. 359. To overcome forfeiture, appellant argues that this
claim impacts his substantial rights and should be reviewed under section 1259. In the
alternative, he raises a claim of ineffective assistance of counsel, asserting that his trial
attorney could have had no tactical reason for not objecting. Appellant’s arguments are
unpersuasive.
Our Supreme Court makes it clear that the forfeiture doctrine applies to a
defendant who fails to object to a jury instruction. (People v. Virgil (2011) 51 Cal.4th
1210, 1260.) As we explain below, it is not reasonably likely the jury was confused in
the manner appellant now claims. We also determine beyond any reasonable doubt that
any presumed instructional error was harmless. As such, we reject appellant’s assertion
that this claim impacts his substantial rights and should be reviewed under section 1259.
Likewise, because prejudice is not present, appellant cannot demonstrate ineffective
assistance based on his counsel’s failure to object to the disputed instruction. (See
Strickland v. Washington (1984) 466 U.S. 668, 699–700; People v. Mendoza (2000) 24
Cal.4th 130, 158–159.)
Based on appellant’s failure to object below, this claim is deemed forfeited. In
any event, we also reject this claim on its merits.

23.
 2. It is not reasonably likely the jury was confused.
Appellant argues that, when read together, the instructions given under CALCRIM
Nos. 336 and 359 were in conflict because CALCRIM No. 336 required corroboration for
appellant’s statements while CALCRIM No. 359 did not. We determine it does not
appear reasonably likely that the jury was confused.
In assessing a claim of instructional error or ambiguity, we consider the
instructions as a whole and the entire trial record to determine if there is a reasonable
likelihood the jury was misled. (People v. Solomon (2010) 49 Cal.4th 792, 822; People v.
Tate (2010) 49 Cal.4th 635, 696.) “A defendant challenging an instruction as being
subject to erroneous interpretation by the jury must demonstrate a reasonable likelihood
that the jury understood the instruction in the way asserted by the defendant.” (People v.
Cross (2008) 45 Cal.4th 58, 67–68.)
Appellant concedes that the trial court properly instructed the jury with
CALCRIM No. 336 regarding how to view the testimony of Ferretiz as an in-custody
informant. Standing alone, the instruction given under CALCRIM No. 336 was a correct
statement of law. (See § 1111.5, subd. (a).) Likewise, standing alone, the instruction
given under CALCRIM No. 359 regarding the corpus delicti rule was also a correct
statement of law. (See People v. Cullen (1951) 37 Cal.2d 614, 624–625 [setting forth the
elements of the corpus delicti rule]; People v. Rosales (2014) 222 Cal.App.4th 1254,
1261 [“CALCRIM No. 359 correctly states the law.”].)
With CALCRIM No. 336, the court made it clear that the jurors must view
Ferretiz’s testimony “with caution and close scrutiny” because he was an in-custody
informant. The jurors were told that they could only use his testimony if it was supported
by independent evidence that connected appellant to the commission of the murder.
During closing arguments, the prosecutor told the jurors to examine Ferretiz’s
testimony “with caution” because he was an inmate who was waiting to be sentenced.
The prosecutor made it clear to the jurors that they should not consider Ferretiz’s

24.
testimony unless they believed Ramirez’s identification of appellant as the third assailant.
The prosecutor even cautioned the jurors that, if the only evidence presented in this case
was Ferretiz’s testimony, “it would be your obligation to acquit, because you cannot
convict someone based on the word of an in-custody informant.” However, the
prosecutor told the jurors that, if they completely discredited Ferretiz’s testimony, a
conviction was still warranted. Nevertheless, the prosecutor urged the jurors to find
Ferretiz’s testimony credible.
Defense counsel also argued to the jurors that they could only use Ferretiz’s
testimony if it was supported by other evidence that they believed. According to defense
counsel, no other evidence supported Ferretiz, “other than perhaps [Ramirez’s] lying
statement.” Defense counsel asserted that all of the evidence pointed to Ramirez’s guilt
as the third assailant.
Based on the closing arguments, we will not presume that the jury was misled by
the conflicting language it received in CALCRIM No. 359. To the contrary, it does not
appear reasonably likely that the jurors would have believed they could convict appellant
for murder based solely on Ferretiz’s testimony after both the court and the prosecutor
instructed them not to do so. Indeed, defense counsel also reinforced that requirement.
Moreover, apart from the conflicting instructional language which appellant has cited,
nothing else from this record reasonably suggests that the jury may have been misled.
Finally, the parties note that at least one appellate court has expressed concerns
with CALCRIM No. 359. In People v. Rivas (2013) 214 Cal.App.4th 1410 (Rivas), the
court held that CALCRIM No. 359 “is deficient to the extent it lends itself to an
interpretation that criminal defendants could be convicted on the basis of extrajudicial
statements alone that they committed a crime.” (Rivas, supra, 214 Cal.App.4th at
pp. 1427–1428.) Rivas concluded that CALCRIM No. 359 “requires reconsideration.”

25.
(Rivas, supra, at p. 1429.) Rivas, however, ultimately determined that any instructional
error in its matter was harmless.17 (Rivas, at pp. 1429–1430.)
We need not fully address Rivas’s holding or determine as a matter of law whether
or not CALCRIM No. 359 is deficient. Instead, this record amply demonstrates that it
does not appear reasonably likely the jurors would have believed they could convict
appellant for murder based solely on Ferretiz’s testimony. Appellant fails to demonstrate
that the jurors may have reasonably held an erroneous understanding regarding how to
use Ferretiz’s testimony as an in-custody informant. (See People v. Cross, supra, 45
Cal.4th at pp. 67–68 [the defendant must demonstrate a reasonable likelihood that the
jury understood the challenged instruction in the way asserted by the defendant].) Thus,
this claim of instructional error must fail. In any event, we also determine that any
presumed error was harmless.
3. Any presumed instructional error was harmless.
The parties dispute the appropriate standard of review to assess prejudice.
According to appellant, the standard from Chapman should be used but, in the
alternative, he also contends that reversal is required even if the less stringent standard
from Watson, supra, 46 Cal.2d 818 is employed. Appellant raises four points to establish
prejudice. First, he argues we should presume the jurors were misled by the conflicting
instructions. Second, he notes that the prosecutor relied on Ferretiz’s testimony in
closing argument to establish an intent to kill. Third, the first trial, which did not feature
Ferretiz’s testimony, ended with a hung jury. Finally, appellant notes that no forensic
evidence connected him with this crime and he insists that Ramirez had “substantial
credibility issues” making his testimony insufficient to corroborate Ferretiz’s testimony.

17 At least one appellate court has disagreed with Rivas and found no instructional
error associated with CALCRIM No. 359. (People v. Rosales, supra, 222 Cal.App.4th
1254, 1258.)

26.
 In contrast, respondent argues there is no reasonable likelihood the jurors
misinterpreted CALCRIM Nos. 336 and 359 and relied on Ferretiz’s testimony without
independent supporting evidence. According to respondent, other evidence strongly
pointed to appellant’s guilt so that any error in giving CALCRIM No. 359 did not infect
the trial with such unfairness as to deny due process. Finally, respondent contends that,
under Watson, there is no reasonable probability that, absent the error, the outcome would
have been more favorable to appellant.
We agree with respondent that any presumed instructional error was harmless.
However, we need not resolve the parties’ dispute regarding the appropriate standard of
review. Instead, even under the more stringent standard of Chapman, prejudice is not
present.
At trial, Ramirez identified appellant as one of the three assailants who attacked
Aguayo. Ramirez saw appellant hitting Aguayo on his head and his face, but Ramirez
did not see a weapon. After Aguayo fell to the ground, Ramirez saw appellant and the
other two assailants kick Aguayo’s head.
Ramirez told the jury that he had previously smoked marijuana with appellant
before this murder occurred. Ramirez also knew the other assailants, Jesus and Ismael
Reyes, because he had smoked marijuana with them. At trial, Ramirez said he was “one
hundred percent sure” of his identification of appellant as one of the three boys who beat
and killed Aguayo.
Ferretiz testified that, when he was in custody with appellant, appellant had told
him that he had been with the Reyes brothers when this murder occurred, and appellant
had “plugged him or something like that.” Ferretiz understood that the word “plug”
meant to stab someone.
We have already explained why it is not appropriate to presume that the jury was
confused stemming from the instructions it received. Instead, both the trial court and the
prosecutor cautioned the jurors to only credit Ferretiz’s testimony as an in-custody

27.
informant if they believed other evidence, such as Ramirez’s testimony, linked appellant
to this murder. Defense counsel also argued to the jurors that they could only use
Ferretiz’s testimony if it was supported by other evidence that they believed. Defense
counsel asserted that the jury should reject Ramirez’s testimony because he had
repeatedly lied. According to defense counsel, it was Ramirez who was the third
assailant in this murder.
We reject appellant’s assertion that the prosecution failed to introduce sufficient
corroborating evidence. To the contrary, Ramirez identified appellant in court as the
third assailant. His direct testimony was sufficient to prove that fact. (See Evid. Code,
§ 411 [“Except where additional evidence is required by statute, the direct evidence of
one witness who is entitled to full credit is sufficient for proof of any fact.”].) As such,
and setting aside Ferretiz’s testimony, the prosecution established appellant’s direct
involvement in this murder. (See § 1111.5, subd. (a).)
Finally, although appellant can point to substantial credibility concerns associated
with Ramirez’s testimony, the jurors had the exclusive role to judge all questions of fact
submitted to them, including witness credibility. (§ 1127; People v. Letner and Tobin
(2010) 50 Cal.4th 99, 162.) Ramirez’s testimony was not inherently improbable. (See
People v. Mayberry (1975) 15 Cal.3d 143, 150 [to reject on appeal a witness who was
believed by the trier of fact, either the witness’s statements must be physically impossible
that they are true or their falsity must be apparent without resorting to inferences or
deductions].) Based on the verdicts rendered it is clear that the jury found Ramirez
credible and credited his testimony. We will not invade the jury’s province and reweigh
Ramirez’s credibility.
Based on this record, we can declare that any presumed error was harmless.
Despite the possibility of confusion stemming from the conflicting language appearing in
CALCRIM Nos. 336 and 359, the trial court, the prosecutor and defense counsel each
cautioned the jurors not to rely on Ferretiz’s testimony unless they believed other

28.
independent evidence connected appellant to the murder. Through Ramirez’s testimony
the prosecution presented independent evidence establishing that appellant committed
this murder. Thus, we can declare beyond any reasonable doubt that the alleged
instructional error did not contribute to the verdicts. (See People v. Aranda, supra, 55
Cal.4th at p. 367.) In other words, the guilty verdicts actually rendered in this trial were
surely unattributable to any presumed error. (See Sullivan v. Louisiana, supra, 508 U.S.
at p. 279.) Accordingly, prejudice is not present under the Chapman standard.
Consequently, reversal of appellant’s judgment is not warranted and this claim fails.
III. Instructional Error Did Not Occur Regarding How the Jury Should
Determine the Degree of Murder; This Claim Is Also Forfeited and Any
Presumed Error Was Harmless.
Appellant contends that a separate instructional error occurred involving
CALCRIM No. 359, which involves the corpus delicti rule. According to appellant, this
instruction, which permitted the jury to use appellant’s statements to determine the
degree of murder, improperly reduced the prosecution’s burden of proof on that issue.
Appellant argues that reversal is required.
In raising this claim, appellant concedes that the instruction provided from
CALCRIM No. 359 was legally correct. He argues, however, that a factual issue arose
because appellant’s statements conveyed through Ferretiz offered “no insight on the
degree of the crime.” According to appellant, because his statements to Ferretiz did not
contain proof beyond a reasonable doubt that the crime was intentional or committed
with malice, it was error to inform the jury that it could rely on those statements alone to
determine the proper degree of murder.
We reject appellant’s arguments. First, this claim is deemed forfeited. Moreover,
this record does not reasonably suggest the jury would have understood the instruction in
the manner appellant now asserts. Finally, we conclude that any presumed instructional
error was harmless.

29.
 A. This claim is forfeited.
Appellant concedes that he failed to object below when the trial court instructed
the jury with CALCRIM No. 359. He raises the same grounds against forfeiture that he
asserted in section II, above. We have already rejected those arguments. Thus, we
determine that the forfeiture doctrine should be applied in this situation because appellant
did not raise this issue below. (See People v. Virgil, supra, 51 Cal.4th at p. 1260.) In any
event, we also reject this claim on its merits.
B. It is not reasonably likely the jury was confused.
To establish first or second degree murder, the People were required to prove
beyond a reasonable doubt that appellant committed an act that caused Aguayo’s death,
and the act was committed with express malice (intent to kill) or implied malice
(conscious disregard for life). (People v. Chun (2009) 45 Cal.4th 1172, 1181.) For first
degree murder, the People had to additionally prove that appellant acted willfully,
deliberately, and with premeditation. (§ 189, subd. (a).)
We reject appellant’s assertion that the jury may have erroneously believed it
could determine the degree of murder based solely on appellant’s statements conveyed
through Ferretiz. During closing arguments, the prosecutor asserted that the jury could
find appellant guilty either as a direct perpetrator or because he was aiding and abetting.
According to the prosecutor, an intent to kill was demonstrated in several ways. First, the
three assailants had repeatedly struck and stabbed Aguayo. Either appellant had held a
knife or he had participated in this attack knowing others had knives. Second, Ferretiz’s
testimony, which relayed appellant’s admission, showed appellant’s intent to kill because
he had “plugged” Aguayo. Lastly, appellant did not try to render any aid to Aguayo.
Regarding willfulness, deliberation and premeditation, the prosecutor noted that
Jesus Reyes lived at the apartment complex where this murder occurred and the three
assailants ran up to Aguayo, asking him, “do you bang.” The prosecutor argued that this

30.
was not a random encounter, but a calculated murder because they brought knives with
them. The assailants repeatedly stabbed Aguayo.
Although the prosecutor urged the jury, in part, to use appellant’s own statements
to find an intent to kill, the prosecutor never argued that the jury should fix the degree of
murder based on appellant’s admissions to Ferretiz. Instead, the prosecutor argued that
first degree murder was proper based on how the assailants had attacked Aguayo.
Appellant fails to demonstrate that the jurors may have reasonably held an
erroneous understanding that they could determine the degree of murder based solely on
appellant’s admissions to Ferretiz. (See People v. Cross, supra, 45 Cal.4th at pp. 67–68
[the defendant must demonstrate a reasonable likelihood that the jury understood the
challenged instruction in the way asserted by the defendant].) Thus, this claim of
instructional error must fail. In any event, we also determine that any presumed
instructional error was harmless.
C. Any presumed instructional error was harmless.
Appellant suggests that structural error occurred, requiring reversal without
analyzing prejudice. In the alternative, he contends he suffered harm because the
prosecutor relied on his statement to Ferretiz, which was insufficient to prove the degree
of murder.
We disagree that any presumed error was prejudicial. The totality of the
instructions provided to the jury demonstrate that structural error did not occur regarding
the burden of proof.18 Further, reversal is not warranted even under the standard
articulated in Chapman.

18 In the context of criminal proceedings, “structural” error involves the basic
protections without which a criminal trial cannot reliably serve its function as a vehicle
for determining guilt or innocence. (Arizona v. Fulminante (1991) 499 U.S. 279, 310.)
Examples include the total deprivation of the right to counsel at trial, a biased judge,
unlawful exclusion of members of the defendant’s race from a grand jury, denial of the
right to self-representation at trial, denial of the right to a public trial and an erroneous

31.
 With CALCRIM No. 520, the jurors were told that, if they decided appellant had
committed murder, it is murder of the second degree unless the People have proved
beyond a reasonable doubt that it is murder of the first degree.
With CALCRIM No. 521, the court provided the jury with the elements necessary
for first degree murder. With this instruction, the court stated that the prosecution had the
burden of proving beyond a reasonable doubt that the killing was first degree murder
rather than a lesser crime. “If the People have not met this burden, you must find
[appellant] not guilty of first degree murder, and the murder is second degree murder.”
With CALCRIM No. 570, the jury was informed that a killing that would
otherwise be murder is reduced to voluntary manslaughter if appellant had killed because
of a sudden quarrel or in the heat of passion. The court provided the elements for those
legal concepts. The court concluded this instruction by stating the prosecution had the
burden “of proving beyond a reasonable doubt” that appellant did not kill as the result of
a sudden quarrel or in the heat of passion. “If the People have not met this burden, you
must find [appellant] not guilty of murder.”
With CALCRIM No. 580, the court instructed on the concept of involuntary
manslaughter. The court provided an explanation regarding the difference between other
homicide offenses and involuntary manslaughter, and it provided the elements necessary
to find involuntary manslaughter. The court concluded this instruction informing the
jurors that, in order to prove murder or voluntary manslaughter, the prosecution bore the
burden to prove beyond a reasonable doubt that appellant acted “with the intent to kill, or
with conscious disregard for human life. If the People have not met either of those
burdens, you must find [appellant] not guilty of murder, and not guilty of voluntary
manslaughter.”

reasonable doubt instruction to the jury. (Id. at pp. 309–310; see also In re Enrique G.
(2006) 140 Cal.App.4th 676, 685.)

32.
 During closing arguments, the prosecutor invited the jury to find an intent to kill,
in part, based on appellant’s statements to Ferretiz. According to the prosecutor, it could
be inferred from appellant’s statements that appellant had held a knife during this attack.
However, the prosecutor never used appellant’s admissions to establish the degree of
murder. Instead, the prosecutor asserted that this murder was willful, deliberate and
premeditated based on how the assailants carried out this attack.
This record demonstrates that the basic trial protections afforded appellant were
not violated. Thus, structural error did not occur. (See Arizona v. Fulminante, supra,
499 U.S. at pp. 309–310; see also In re Enrique G., supra, 140 Cal.App.4th at p. 685.)
Moreover, any presumed instructional error associated with CALCRIM No. 359
regarding the burden of proof for the degree of murder was harmless beyond any
reasonable doubt. The first degree murder verdict actually rendered in this trial was
surely unattributable to this presumed error. (See Sullivan v. Louisiana, supra, 508 U.S.
at p. 279.) Therefore, prejudice is not present under the standard articulated in Chapman,
and this claim fails.
IV. Instructional Error Did Not Occur Regarding Ferretiz’s Shackles; This
Claim Is Also Forfeited and Any Presumed Error Was Harmless.
With CALCRIM No. 337, the trial court instructed the jurors that Ferretiz was
physically restrained when he testified and the jurors could not speculate about the reason
why. The jurors were told to “completely disregard” this circumstance in deciding the
issues in this case, and to not consider this fact for any purpose.
Appellant alleges that this represented instructional error because the jurors were
precluded from properly assessing Ferretiz’s credibility. He contends that, under the
circumstances of this case, this instruction was unconstitutional and reversal is required.
We disagree. This claim is forfeited. In any event, it is also without merit.

33.
 A. This claim is forfeited.
Appellant voiced no objection below regarding this instruction. To overcome
forfeiture, he argues that this claim impacts his substantial rights and should be reviewed
under section 1259. In the alternative, he raises a claim of ineffective assistance of
counsel. Both arguments are without merit.
As we explain below, the trial court properly instructed the jury with CALCRIM
No. 337. We also determine beyond any reasonable doubt that any presumed
instructional error was harmless. Accordingly, it is not appropriate to review this claim
pursuant to section 1259 and appellant cannot demonstrate ineffective assistance of
counsel. (See Strickland v. Washington, supra, 466 U.S. at pp. 699–700; People v.
Mendoza, supra, 24 Cal.4th at pp. 158–159.) Thus, this claim is deemed forfeited.
(People v. Virgil, supra, 51 Cal.4th at p. 1260.)
B. Instructional error did not occur.
The Bench Notes to CALCRIM No. 337 direct a trial court to provide this
instruction sua sponte if a witness has been physically restrained in a manner that is
visible to the jury. If the restraints are not visible, this instruction should not be given.
Our Supreme Court has held that, when visible restraints must be imposed on a
witness, a trial court must instruct the jury “that such restraints should have no bearing on
the determination of the defendant’s guilt. However, when the restraints are concealed
from the jury’s view, this instruction should not be given unless requested by defendant
since it might invite initial attention to the restraints and thus create prejudice which
would otherwise be avoided.” (People v. Duran (1976) 16 Cal.3d 282, 291–292.)
In raising this claim, appellant does not assert that Ferretiz’s restraints were
concealed from the jury. Thus, in accordance with People v. Duran, the trial court
appropriately instructed the jury with CALCRIM No. 337 and this claim fails. In any
event, prejudice did not occur from any presumed error.

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 C. Any presumed error was harmless.
Appellant raises three arguments to establish why he suffered prejudice. First, he
asserts that the jury was unable to fully consider Ferretiz’s credibility. Second, the
prosecutor relied on Ferretiz’s testimony in closing argument to establish appellant’s
intent to kill. Finally, appellant’s first trial (in which Ferretiz did not testify) ended in a
mistrial. Appellant maintains that Ferretiz’s testimony was the major difference but the
second jury was precluded from considering a crucial fact directly related to his
credibility.
Appellant’s arguments are without merit. The jury was fully informed that
Ferretiz was in custody in the local jail, and had been so for about 14 months, when he
testified in this matter. The jury knew that Ferretiz was a former gang member. Ferretiz
explained his pending criminal charges and he admitted his prior conviction for being an
active gang member. Ferretiz told the jury that he was wearing “green and white stripes”
because he was in protective custody as a dropout gang member. He explained that he
went through a debriefing process with law enforcement in the hopes of receiving
leniency, and he told them about certain crimes.
The jury learned about Ferretiz’s plea agreement. Ferretiz admitted at trial that he
hoped to receive leniency in his own pending criminal matters in exchange for testifying
against appellant. The jury learned that Ferretiz’s sentencing was going to occur about
two weeks after he testified.
It is abundantly clear the jury was fully informed of Ferretiz’s custody status, his
criminal history, and his motivation for testifying against appellant. As such, we can
declare beyond any reasonable doubt that any presumed instructional error with
CALCRIM No. 337 was harmless. It is apparent that appellant’s convictions in this
matter were unattributable to this alleged error. (See Sullivan v. Louisiana, supra, 508
U.S. at p. 279.) Therefore, prejudice is not present even under the more stringent
Chapman standard, and this claim is without merit.

35.
V. The Trial Court Did Not Lower the Burden of Proof Regarding the Active
Gang Participation Charge in Count 2.
With CALCRIM No. 370, the trial court instructed the jurors (in relevant part) that
the prosecution was not required to prove that appellant had a motive to commit any of
the charged crimes.
In count 2, the jury found appellant guilty of active participation in a criminal
street gang under section 186.22, subdivision (a).
Appellant asserts that his motive was a required element of the alleged gang
participation charged in count 2. He contends that, once the jury found him guilty of
murder in count 1, the “only remaining element” in count 2 “was whether the offense was
gang-motivated.” He argues that reversal is required because the trial court
impermissibly lowered the prosecution’s burden of proof.
As an initial matter, the parties dispute whether or not appellant has forfeited this
claim in failing to raise it below. We decline to find forfeiture for this issue. Our
Supreme Court has held that, if a defendant asserts that motive is an element of the
charged crimes and the trial court erroneously told the jury that motive is not a required
element, then the issue is preserved for appeal pursuant to section 1259. (People v.
Hillhouse (2002) 27 Cal.4th 469, 503.) Accordingly, we turn to the merits of this claim.
Appellant cites opinions discussing crimes in which motive is an element. One
such example involves a special circumstance finding that a murder was carried out for
financial gain (§ 190.2, subd. (a)(1)). Another example (which appellant does not cite) is
the crime of annoying or molesting a child (§ 647.6, subds. (a)-(c)). For such a crime, a
defendant’s conduct must be “motivated by an unnatural or abnormal sexual interest” in
the child. (CALCRIM No. 1122.) According to appellant, the gang participation charge
in count 2 is analogous to cases like these because they all have a “specific intent
element” that requires the jury to determine why the person chose to commit the crime.

36.
 In People v. Fuentes (2009) 171 Cal.App.4th 1133 (Fuentes), this court rejected
the same argument which appellant advances here. In Fuentes, we explained that an
intent to further criminal gang activity was “no more a ‘motive’ in legal terms than is any
other specific intent.” (Fuentes, supra, 171 Cal.App.4th at p. 1139.) The Fuentes court
held that an instruction under CALCRIM No. 370 was proper in a case involving a gang
participation charge (§ 186.22, subd. (a)) because it is unnecessary to establish motive to
prove a defendant intended to further gang activity. (Fuentes, supra, 171 Cal.App.4th at
pp. 1139–1140.)
Appellant contends that Fuentes was wrongly decided and it should be
reconsidered for two reasons. First, Fuentes failed to discuss any of the Supreme Court’s
cases involving crimes that require proof of why a crime was committed. Second,
Fuentes failed to consider why the Supreme Court has rejected an attack on the motive
instruction in the financial gain special circumstance context. According to appellant, the
Supreme Court in those cases has not relied on a technical distinction between intent and
motive, which occurred in Fuentes. Appellant urges us not to follow Fuentes.
We reject appellant’s arguments and we decline to reconsider Fuentes.
Appellant’s motive was not a required element for the crime of active participation in a
criminal street gang under section 186.22, subdivision (a). The elements of street
terrorism are: “(1) active participation in a criminal street gang, in the sense of
participation that is more than nominal or passive; (2) knowledge that the gang’s
members engage in or have engaged in a pattern of criminal gang activity; and (3) the
willful promotion, furtherance, or assistance in any felonious criminal conduct by
members of that gang. [Citation.] All three elements can be satisfied without proof the
felonious criminal conduct promoted, furthered, or assisted was gang related.” (People v.
Albillar (2010) 51 Cal.4th 47, 56.)
Appellant’s claim fails because a perpetrator’s reasons for committing the crime
of active participation in a criminal street gang are unimportant. “[S]pecific intent to

37.
benefit the gang is not required,” but rather “ ‘specific intent to promote, further, or assist
in any criminal conduct by gang members .…’ ” (People v. Morales (2003) 112
Cal.App.4th 1176, 1198.) By the terms of the statute, a prosecutor must only prove that a
gang defendant promoted, furthered, or assisted in felonious conduct, not why he or she
may have done so. Consequently, because the street terrorism offense did not require the
jury to determine appellant’s motive, instructing the jury with CALCRIM No. 370 did
not reduce the prosecution’s burden of proof. This challenge is without merit.
VI. A Limited Remand Is Not Warranted for a Franklin Proceeding due to
Forfeiture and Because Appellant Has a Statutory Remedy.
Appellant, who was born in 1996, was 17 years old when this homicide occurred.
He received an indeterminate prison term of 25 years to life for this murder.19 In 2018,
his sentence in this matter was consolidated with three other unrelated criminal matters,
all of which appellant resolved through plea agreements. He received an aggregate
determinate prison term of seven years eight months, and a consecutive aggregate
indeterminate prison term of 32 years to life.
Appellant requests a limited remand so he may have a Franklin hearing to
preserve evidence for his future youth offender parole hearing (§ 3051, subd. (a)(1)).
According to appellant, no mention of Franklin occurred when he was sentenced in this
matter in 2018, and his trial counsel never offered any relevant Franklin material.
Respondent opposes this request, contending a remand for a Franklin hearing is
not warranted. Respondent cites People v. Medrano (2019) 40 Cal.App.5th 961
(Medrano) for the proposition that appellant has forfeited his opportunity for a Franklin
proceeding because he failed to exercise that right in 2018. Respondent, however, asserts

19 Appellant’s sentence in count 2 for active participation in a criminal street gang
was stayed pursuant to section 654. Likewise, the gang enhancement found true in
count 1 was also stayed.

38.
that appellant nevertheless possesses a statutory remedy pursuant to section 1203.01 to
preserve any relevant information for his future youth offender parole hearing.
Appellant argues that we should not follow Medrano. According to appellant,
denying a remand will delay his ability to obtain a Franklin proceeding. He also
contends his inaction from 2018 should be insufficient as a matter of law to waive his
rights in this situation. Finally, he asserts that, once this appeal ends, he will not have the
assistance of counsel to file a motion pursuant to section 1203.01, or to represent him.
We agree with respondent that a limited remand is not warranted. Appellant was
sentenced in this matter in November 2018, which occurred more than two years after the
Supreme Court issued Franklin in May 2016. As in Medrano, the record here “contains
no indication that [appellant] was not given an adequate opportunity to make a record of
mitigating youth-related evidence as contemplated in Franklin.” (Medrano, supra, 40
Cal.App.5th at p. 967.) In other words, “[t]he record does not indicate that [his]
opportunity to exercise that right was inadequate in any respect. Rather, it appears that
he merely failed—whether by choice or by inadvertence—to exercise it.” (Ibid.)
Appellant does not contend that his trial counsel was ineffective in failing to seek
a Franklin proceeding at the 2018 sentencing.20 He also makes no representations
regarding what evidence, if any, he hopes to preserve for his future youth parole
eligibility hearing if this matter is remanded. As such, we agree with respondent that a
limited remand is not warranted.
In any event, appellant possesses an adequate statutory remedy should he wish to
preserve evidence for his future youth parole eligibility hearing. In 2019, our high court
in Cook held that a juvenile offender whose conviction and sentence are final may file a
motion under section 1203.01 for the purpose of making a record of mitigating youth-

20 We note that, if appellant had raised a claim of ineffective assistance of counsel,
that claim would fail due to a lack of prejudice because appellant has a statutory remedy
under section 1203.01.

39.
related evidence. (Cook, supra, 7 Cal.5th at pp. 446–447; Medrano, supra, 40
Cal.App.5th at p. 963 [resolving a similar claim on appeal].) Thus, following the
disposition in Medrano, we will affirm appellant’s judgment without prejudice to his
right to file a motion for a Franklin proceeding under the authority of section 1203.01
and Cook. (See Medrano, supra, 40 Cal.App.5th at p. 968.)
VII. Cumulative Error Did Not Occur.
Appellant argues that reversal is required based on cumulative error. “Under the
‘cumulative error’ doctrine, errors that are individually harmless may nevertheless have a
cumulative effect that is prejudicial.” (In re Avena (1996) 12 Cal.4th 694, 772, fn. 32.)
A claim of cumulative error is essentially a due process claim. (Rivas, supra, 214
Cal.App.4th 1410, 1436.) The test is whether the defendant received a fair trial. (Ibid.)
We reject appellant’s claim of cumulative error because we have denied all of his
individual claims. (People v. Bradford (1997) 14 Cal.4th 1005, 1057 [cumulative
prejudice argument rejected because each individual contention lacked merit or did not
result in prejudice].) Taking all of appellant’s claims into account, we are satisfied that
he received a fair adjudication.
VIII. The Gang Enhancement in Count 1 and the Gang Conviction in Count 2 must
be Reversed Following the Passage of Assembly Bill No. 333.
Section 186.22 makes it a crime to actively participate in a “criminal street gang,”
and the statute provides for enhanced punishment when a defendant is convicted of an
enumerated felony committed “for the benefit of, at the direction of, or in association
with a criminal street gang.” (§ 186.22, subds. (a), (b)(1).)
At trial, the parties stipulated that appellant’s gang, SSL, is a criminal street gang
and its “members alone and together engage in and have engaged in a pattern of criminal
gang activity.” In accord with the law at the time, the parties stipulated that (1) “the most
recent crime [committed by the gang] occurred within three years of one of the earlier
crimes” and (2) the crimes were “personally committed by two or more persons.”

40.
Appellant’s jury found true the gang enhancement in count 1 (former § 186.22, subd.
(b)(1)). The jury convicted him in count 2 of active gang participation (former § 186.22,
subd. (a)).
Effective January 1, 2022, the Legislature enacted Assembly Bill No. 333, which
amended section 186.22 to impose new requirements for gang enhancement allegations
and the substantive offense of gang participation. It amended the definitions of “criminal
street gang” and “pattern of criminal gang activity” and clarified the evidence needed to
establish if an offense benefits, promotes, furthers or assists a criminal street gang.
Previously, the statute defined a “criminal street gang” as “any ongoing organization,
association, or group of three or more persons … whose members individually or
collectively engage in, or have engaged in, a pattern of criminal gang activity.” (Former
§ 186.22, subd. (f), italics added.) Assembly Bill No. 333 narrowed the definition to “an
ongoing, organized association or group of three or more persons … whose members
collectively engage in, or have engaged in, a pattern of criminal gang activity.”
(§ 186.22, subd. (f), italics added.)
Regarding a “pattern of criminal gang activity,” the prosecution previously needed
to prove “only that those associated with the gang had committed at least two offenses
from a list of predicate crimes on separate occasions within three years of one another.”
(People v. Sek (2022) 74 Cal.App.5th 657, 665, citing former § 186.22, subd. (e).)
Assembly Bill No. 333 made several changes to this definition. First, the predicate
offenses now must have been committed by two or more “members” of the gang (as
opposed to any persons). (§ 186.22, subd. (e)(1).) Second, the predicate offenses must
be proven to have “commonly benefited a criminal street gang.” (Ibid., italics added.)
Third, the last predicate offense must have occurred within three years of the date of the
currently charged offense. (Ibid.) Fourth, the list of qualifying predicate offenses has
been reduced. (Ibid.) Finally, the currently charged offense no longer counts as a
predicate offense. (§ 186.22, subd. (e)(2).)

41.
 Assembly Bill No. 333 now requires that any benefit a gang derives from the
predicate and current offenses be “more than reputational.” (§ 186.22, subd. (g).)
“Examples of a common benefit that are more than reputational may include, but are not
limited to, financial gain or motivation, retaliation, targeting a perceived or actual gang
rival, or intimidation or silencing of a potential current or previous witness or informant.”
(Ibid.)
Assembly Bill No. 333 added section 1109, which establishes a new procedure for
trying substantive offenses and enhancements under section 186.22. Section 1109,
subdivision (a), requires the court to bifurcate the trial of any gang enhancements, upon
the defendant’s request. Section 1109, subdivision (b), requires trial courts to try the
substantive offense of gang participation “separately from all other counts that do not
otherwise require gang evidence as an element of the crime,” whether or not requested by
the defense.
The parties agree, as do we, that these amendments apply retroactively in this
matter. Appellant’s judgment of conviction is not yet final on appeal. Thus, he benefits
from this ameliorative change in law. (See People v. E.H. (2022) 75 Cal.App.5th 467,
478 [Assem. Bill No. 333 has retroactive effect; see also In re Estrada (1965) 63 Cal.2d
740, 744 [when a change in law reduces the punishment for a crime, defendants with
nonfinal judgments are entitled to those “ameliorating benefits”].)
In light of Assembly Bill No. 333, the parties agree that the true finding regarding
the gang enhancement in count 1, and the gang participation conviction in count 2 must
both be reversed. The parties note that the trial stipulation did not address some of the
substantive requirements that now exist as a result of Assembly Bill No. 333. We agree.
The trial stipulation no longer complies with the elements necessary to find the crime of
active gang participation (§ 186.22, subd. (a)) or the jury’s true finding for the gang
enhancement allegation (§ 186.22, subd. (b)(1)). Accordingly, we will reverse both the
true finding regarding the gang enhancement in count 1 and the gang participation

42.
conviction in count 2. As appellant concedes, however, a retrial is permissible in this
situation. (See People v. Figueroa (1993) 20 Cal.App.4th 65, 72, fn. 2.) Consequently,
we remand this matter for further proceedings.
DISPOSITION
The true finding in count 1 regarding the gang enhancement is reversed. The
conviction in count 2 is reversed. Appellant’s sentence is vacated and this matter is
remanded for further proceedings. The prosecution shall have the option to retry
appellant regarding the gang enhancement in count 1 and/or the charge of active gang
participation in count 2. If the People do not bring appellant to retrial within 60 days of
filing the remittitur in the trial court pursuant to section 1382, subdivision (a)(2), or
obtain a waiver of time by appellant, the trial court shall resentence appellant
accordingly. In all other respects, the judgment is affirmed without prejudice to appellant
filing a motion for a Franklin proceeding under the authority of section 1203.01 and
Cook, supra, 7 Cal.5th at p. 460.

LEVY, Acting P. J.
WE CONCUR:

PEÑA, J.

MEEHAN, J.

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