People v. Harper CA1/2

Filed 5/4/22 P. v. Harper CA1/2
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,
Plaintiff and Respondent,
A153332
v.
DERRICK DAMON HARPER, (Contra Costa County
Super. Ct. No. 51617695)
Defendant and Appellant.

INTRODUCTION
Defendant Derrick Damon Harper and Joseph Bradshaw were charged
and tried in a joint trial before separate juries for felony murder (Pen. Code,
§§ 187, subd. (a), 190.2, subd. (a)(17)), and accompanying gang and firearm
enhancements (§§ 186.22, subd. (b)(1)(C), 12022.53, subds. (b), (d), (e)(1)).1
Additionally, it was alleged defendant had suffered two prior felony
convictions for kidnapping (§§ 207, subd. (a), 667, subds. (a)(1), (d)-(e),
1170.12, subds. (b)-(c), 667.5, subd. (a)). Midway through trial, the court
granted defendant’s request to represent himself and appointed standby
counsel.

All undesignated statutory references are to the Penal Code unless
1

otherwise stated.

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 The jury convicted defendant of first degree felony murder, and found
true the firearm and gang enhancements.2 The trial court determined that
defendant’s prior convictions qualified as strikes, that he committed two prior
serious felonies, and that he had served two prior prison terms. The trial
court denied defendant’s new trial motion and sentenced him to life without
the possibility of parole, plus 116 years to life. This sentence was ordered to
be served consecutively to the term of 287 years to life that was imposed by a
different judge in an earlier trial.3
Defendant appealed, contending the trial court denied him a fair trial
by refusing to grant him a separate trial from Bradshaw; failing to bifurcate
the gang allegations; admitting evidence of defendant’s prior offer to plead
guilty; not instructing the jury that testimony of in-custody witnesses should
be viewed with caution; failing to properly instruct the jury regarding the
testimony of an in-custody witness who qualified as an informant as a matter
of law; and refusing to order the trial witnesses not to discuss their testimony
with each other. Defendant claimed the cumulative effect of these errors
deprived him of a fair trial. Additionally, defendant argued the trial court
erred by excusing his jury without advising him of his right to have the jury
determine his prior convictions and without obtaining a waiver of this right.
Finally, defendant raised numerous sentencing errors.
In our prior opinion in this appeal filed September 29, 2021, we
affirmed the judgment but remanded for resentencing. The Supreme Court

2 The trial court declared a mistrial in Bradshaw’s case after the jury
declared it was unable to reach a verdict. Bradshaw was not a party to the
appeal.
3On January 9, 2020, we issued an opinion in that earlier case
(A152284), affirming the judgment and remanding for resentencing. (People
v. Harper (2020) 44 Cal.App.5th 172.)

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granted review, vacated our opinion, and transferred the matter back to us
for reconsideration in light of Assembly Bill No. 333 (2021-2022 Reg. Sess.)
(Stats. 2021, ch. 699) (Assembly Bill 333). The new law amends section
186.22 by redefining key terms and requiring additional elements to establish
a criminal street gang enhancement such as the one found true against
defendant. Assembly Bill 333 also resulted in the enactment of section 1109,
which provides that, upon request of the defendant, a gang enhancement
shall be tried after the defendant’s guilt on the underlying offense has been
determined. (§ 1109, subd. (a); Stats. 2021, ch. 699, § 5.)
The parties agree that reversal of the gang enhancement is necessary
in light of the retroactive effect of the ameliorative provisions of section
186.22. Defendant further contends that newly enacted section 1109 also
applies retroactively, and his murder conviction should be reversed and the
matter remanded for a new trial governed by the new bifurcation provision of
that section. The Attorney General argues section 1109 does not apply
retroactively, and, although the gang enhancement must be vacated,
defendant is not entitled to a new trial on his murder conviction based on the
new law. We conclude we need not determine whether section 1109 should
be applied retroactively because any error in trying the substantive counts
with the gang enhancement in this case was harmless.
We shall affirm defendant’s conviction for first degree felony-murder
and reverse the true finding on the associated criminal street gang
enhancement. We will remand to provide the prosecution an opportunity to
retry the criminal street gang enhancement. The cause is further remanded
for resentencing consistent with this opinion. In all other respects, we affirm
the judgment.

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 FACTUAL BACKGROUND
A. The Murder
On the morning of August 14, 2008, police were called to a shooting at a
residence on Heights Avenue in Pittsburg. The responding officers arrived
around 7:20 a.m. Two men at the house, John Wilson and Harry Scott Moser,
directed the officers to a bedroom where they found the victim, Jesse
Saucedo, lying on a mattress on the floor. Saucedo had a gunshot wound to
the head and was lying on his right side with his right arm extended out and
his head resting on it. A bullet fragment was 10 inches from his head.
Saucedo was taken to the hospital, where he later died.
There was no sign of forced entry to the front door of the house.
Saucedo’s wallet, watch, and ring had not been taken from him, but his
laptop computer was missing.
B. Witnesses at the Scene on August 14, 2008
Moser lived at the Heights Avenue house and rented rooms to Wilson
and codefendant Bradshaw. On the morning of the murder, Moser woke up
around 7:30 a.m. He saw Bradshaw in the kitchen, who appeared panicky
and said, “ ‘I didn’t do it.’ ” Moser walked out to the hallway and saw a man
bleeding from a gunshot wound to the head in one of the bedrooms. There
were a lot of other people around, including a Black man and some women.
Moser yelled to Wilson, who was in the back bedroom, to call the police, and
told everyone else to get out. When the police arrived, Moser and Wilson
were the only people at the Heights Avenue house.
Moser had not heard a gunshot nor did he see anyone with a gun after
he saw the body. Moser acknowledged there was drug activity going on in his
house at the time and that he sometimes traded drugs for rent. Moser had
previous convictions for domestic violence and corporal injury on a child.

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 District attorney homicide inspector John Conaty testified that on the
morning of August 14, 2008, Moser told him that defendant was in his house
at the time he found the body in Bradshaw’s bedroom.
In the early morning hours of August 14, Deana Castro was smoking
drugs with Bradshaw at Moser’s house. She later went to sleep in an empty
bedroom. At some point, she woke up and used the bathroom. She then laid
back down and heard a gunshot about a minute later. Moser and Bradshaw
came to the bedroom door, and Moser told her to leave. As she was leaving,
Castro saw a person lying on the ground in a pool of blood in the front room.
Bradshaw, Moser, Wilson, and defendant were in the hallway. Defendant
had a gun in his waistband.
Castro did not initially tell the police about the gun because she was
dating defendant at the time and she feared retaliation for being a snitch.
Castro also told police that after the gunshot she heard Bradshaw say,
“ ‘Don’t shoot me. I promise I won’t tell.’ ” Castro had three prior convictions,
two for theft-related offenses and one for possession of methamphetamine for
sale. At the time of trial, she was in drug rehabilitation and had been clean
for 90 days.
C. Events Leading Up to The Murder
Saucedo was a mid-level methamphetamine dealer. Alicia Hammond,
who testified she had been best friends with Saucedo, said he was openly gay.
Saucedo and Hammond used methamphetamine together and she sometimes
drove him to make deliveries. Saucedo regularly sold methamphetamine to
Bradshaw and referred to him as his cousin.
Hammond received a text from Saucedo early in the morning on August
13, 2008, asking her to pick him up from the house of their mutual friend,
Valerie Vera, in Antioch. Hammond arrived around 5:00 or 6:00 a.m.

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Saucedo, Vera, Joey Gaeta, and Opi (Robert Lexer) were there, hanging out
in the garage. At some point, Bradshaw, who was not part of their group,
arrived. He appeared “antsy” and anxious to leave. Bradshaw began talking
about a flat screen television at his house that he wanted to sell to Saucedo.
He asked Saucedo to go with him to his house to see it, but Saucedo said he
wanted to go to Hammond’s house.
The group, including Bradshaw went to Hammond’s house. They all
hung out in Hammond’s room and smoked methamphetamine. Bradshaw
was nervous and pacing. Eventually, he left on his own to go home.
At some point, Hammond needed to leave for an appointment. Gaeta
agreed to drop off Saucedo at Bradshaw’s house. Saucedo was carrying a bag
containing his laptop computer and his cell phone. Hammond said she would
pick up Saucedo from Bradshaw’s house after her appointment, but when she
called him later he did not answer his phone. Gaeta told her later that day
that Saucedo had been killed.
Hammond had felony convictions for car theft, petty theft, and
receiving stolen property. At the time of the murder, she was on methadone
for her heroin use and smoked methamphetamine daily. At the time of trial
in 2017, Hammond had been clean for five and a half years.
D. Defendant’s Conduct After the Murder
Carmen Weathers had been dating defendant in August 2008.
Weather’s adult daughter Danielle Waren and her infant lived with
Weathers. Waren recalled a morning when she returned home around 9:00
a.m. and saw defendant’s vehicle parked backwards in her mother’s driveway
with the driver’s side door open. The garage door was open, the washing
machine was running, and Waren smelled bleach. There was an empty
bleach bottle on the kitchen table. Waren went to sleep in her room. She

6
heard the shower running in her mother’s room. When she woke up, Waren
saw defendant in the house. Later that afternoon, she saw the rug in her
mother’s bathroom had a bleach spot on it. The following day, Waren heard
about Saucedo’s murder from a friend. Detective Kirk Sullivan interviewed
Waren on October 2, 2008, while police served a search warrant on her home.
Waren said the laundry incident occurred on August 14. Weathers arrived
home while police were still at the house. She told Sullivan that defendant
arrived at her house between 2:00 and 4:00 a.m. on the morning of the
laundry incident. He left around 4:00 a.m. and had a black revolver with
him. Weathers later asked defendant about the bleach. Defendant told her
he had used the bleach and that it had something to do with a lady and her
having to be moved. Sullivan spoke to Weathers again in 2013. At that time,
she again said defendant left her house that morning with a gun in his hand.
But Weathers was uncooperative at trial and denied everything.
E. Statements Made After the Murder
1. Defendant’s Statement to Alicia Hammond
Alicia Hammond saw defendant sometime after Saucedo’s murder; she
introduced herself and tried to talk with him about Saucedo. The next day,
she went to defendant’s house in Pittsburg and went with him and two
women he was with to a bar in Antioch. At some point, Hammond decided to
sneak away. She called a friend to pick her up from a gas station across the
street. While she was waiting, defendant drove up and opened his car door.
He had a gun sitting on his lap that was pointed in Hammond’s direction. He
told her to get in. She complied because she was afraid. Defendant took her
and the other two women to a diner. Hammond went to the restroom and
tried to borrow a cell phone to call for help, but she was stopped by one of the
women with defendant. Eventually, Hammond sat alone in the diner,

7
waiting for defendant and his friends to finish. Defendant approached her
and told her someone named “E-Rock”4 would be “out to get” her. Then he
whispered in her ear, “ ‘Do you really want to know who killed your friend? I
did.’ ”
2. Defendant’s Statements to Worsten Andrews
Worsten Andrews was in custody at the Martinez jail at the time of
trial. He had known defendant since childhood but had not seen him in 15
years as Andrews had been incarcerated. Before he went into custody,
Andrews saw a video on someone’s phone of defendant sodomizing a young
man Andrews knew as “Beneficial.” “Beneficial” appeared unconscious in the
video. In 2014, Andrews saw defendant in the Martinez jail and told him he
heard defendant had sodomized a boy. Defendant said, “It didn’t happen like
that.”
Andrews was released from custody and arrested again in November
2015 on his current case. Andrews saw defendant in jail and again brought
up the video. Defendant claimed the video was altered.
Andrews testified that defendant told him that he and Bradshaw went
to a house to “holler” at a “gay man” because the guy had a video on his
computer of defendant having sex with him. Defendant had a gun in his
hand concealed by a towel wrapped around it. There were two women inside
the house. Defendant argued and scuffled with the victim, and then shot
him. Afterward, he turned the gun on Bradshaw, but did not shoot him
because Bradshaw begged for his life and said he had not seen anything.
Defendant told Andrews he should have killed Bradshaw because defendant
knew he “couldn’t hold his water.” Through his cell window, defendant

Eric Beman, also known as “E-Rock,” testified at trial; we discuss his
4

testimony below.

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showed Andrews a black and white photo of the victim lying down with a
gunshot wound to his head. Andrews later told Detective Josh Reddoch that
when defendant showed him the photo, he said, “This is my handiwork.”
Andrews initiated a conversation with law enforcement in 2016 about
defendant. Then, and at the time of trial, Andrews was facing a possible life
sentence for charges of possession of a firearm, possession of a controlled
substance, and human trafficking, with strike priors. The prosecution agreed
that nothing Andrews said would be used against him but made no promises
of leniency or reductions in his charges for the information. Andrews had
numerous prior felony convictions including for making terrorist threats,
attempted carjacking, and voluntary manslaughter.
3. Defendant’s Statements to Eric Beman
Eric Beman, also known as E-Rock, was in custody at the time of
defendant’s trial. Beman testified that sometime after the murder of
Saucedo, Maria Obregon told him she was in the house when a “gay dude”
was murdered.
Defendant talked about the murder with Beman on two occasions. On
one occasion, defendant said he had just gotten out of prison, having “beat a
murder” with just a violation, which Beman understood to mean a parole
violation. On another occasion, defendant told Beman that he had wrapped a
towel around his gun to muffle the sound or to keep the powder from
escaping. Defendant said the victim was not being submissive, so he
threatened him and tried to scare him. He ordered the victim to his knees
and pointed the gun at the victim’s face, and the gun went off by accident.
Beman had numerous felony convictions. He had pleaded guilty to
conspiracy to commit human trafficking and two counts of human trafficking,
and was facing a maximum sentence of over 30 years in prison. He had an

9
agreement with the prosecution that if he testified in this case, it would be
mentioned to the sentencing judge.
4. Bradshaw’s Statements to Maria Obregon
Maria Obregon was living with Bradshaw in Moser’s house on Heights
Avenue in August 2008, the month of the murder. She was not home when
the murder occurred but learned of it the next day from Moser. She saw
Bradshaw that day or the following day; Bradshaw was crying. Bradshaw
told her that someone with a mask came in and shot Saucedo. The person
also tried to shoot Bradshaw, but the gun jammed and the shooter fled. In
2013, Obregon told police that when she asked Bradshaw if he murdered
Saucedo, Bradshaw said it was an accident and started to cry. He said that
he and defendant were going to rob Saucedo and while they were robbing him
the gun went off by accident.
Obregon’s 2013 recorded interview with the police was played for the
jury. She said Moser told her on the day of the murder that Saucedo had
been shot in the room she shared with Bradshaw. Obregon believed
Bradshaw when he said the shooting was an accident because Bradshaw had
known Saucedo for a long time and they were related. As far as Obregon
knew, Bradshaw did not have a gun, but she knew defendant did. Bradshaw
said he and defendant planned to rob Saucedo of his “dope” or whatever he
got for his “dope.”
Obregon had convictions for receiving stolen property, car theft,
possession of methamphetamine, assault on a peace officer, and evading a
peace officer. Obregon was not offered any benefit for her statement.
5. Bradshaw’s Statements to Lexington Crossman
Lexington Crossman, a former Norteño gang member, grew up with
Bradshaw and knew defendant from school. Crossman had several

10
convictions for stealing cars and committing drug offenses. He was removed
from the gang around 2009 for fighting people in the gang.
Crossman testified that Bradshaw called him and asked him to relay a
message to defendant to “[r]emain solid.” So on March 21, 2013, Crossman
sent defendant a text that said, “Look, our friend told me to ask you, he still
remains solid, are you still solid? The one time came and saw him. Keep it
100, brown pride.” Detective Reddoch testified that “one time came and saw
him” meant the police had come and talked to him, that staying “100” meant
staying true and not talking to the police. Crossman denied that Bradshaw
had told him anything about Saucedo’s murder.
The police went to see Crossman on April 30, 2013, a day after he was
arrested for driving a stolen car and possession of drugs. No new charges
were filed, but Crossman served time for a probation violation. He was also
given witness relocation services and some financial assistance. At the time
of the interview, Crossman was a regular methamphetamine user and had
been for years.
A recording of Crossman’s interview with police was played for the jury.
During the interview, Crossman said that Bradshaw called him from prison a
few months after the murder and told him that the plan had been to rob
Saucedo. He said they thought Saucedo was an easy target, but instead he
fought back and defendant “popped him.” Bradshaw asked Crossman to tell
defendant that the police had come by to talk to Bradshaw, that Bradshaw
had remained solid, and that defendant needed to stay solid. Crossman was
not getting along with defendant for unrelated reasons and did not want to do
it, but he relayed the message to defendant by text. Crossman knew
defendant had a gun because a few years earlier, he had thrown defendant’s

11
gun out the window during a police chase, and he had to buy defendant a new
.44 Magnum to replace it.
On cross-examination, Crossman admitted that he strongly disliked
defendant and considered that he and Harper were enemies. Crossman did
not know whether defendant was a Norteño.
6. Bradshaw’s Statements to Viridiana Grandov
Viridiana Grandov was arrested for residential burglary in February
2010 with Bradshaw. In a 2013 police interview, Grandov reported that
Bradshaw told her about a robbery in which a man ended up dead. At trial,
Grandov said she made the 2013 statement because the police were
pressuring her and she felt she needed to tell them what they wanted to hear
in order to leave.
Detective Adam Deplitch testified that he interviewed Grandov on
March 20, 2013. At her request, they met in a restaurant parking lot instead
of at the police station. Grandov said Bradshaw told her that Saucedo was
killed during a robbery that had gone bad. She said someone else was
involved, but she did not know the person’s name. Grandov told Deplitch she
was afraid Bradshaw would retaliate against her for talking to the police.
F. Other Prosecution Evidence
1. Guns
A few weeks before the murder, defendant showed Deanna Castro’s
stepfather, Geoffrey Dulik, two revolvers: one chrome, one black.
2. Threat to Maria Obregon
Maria Obregon testified that about a week before the murder,
defendant put a gun to her head when she refused to answer his questions
about another person.

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 3. Incidents Involving Nicole Hair
Nicole Hair testified that about a week before Saucedo’s murder, she
had been at a friend’s house doing methamphetamine. Defendant and
Bradshaw were also there. Hair called a friend to pick her up. Before the
friend arrived, Bradshaw asked Hair if he and defendant could rob the guy.
Hair said no.
Hair and her friend left to get something to eat. When they returned to
the house they did not see defendant’s car. Hair and her friend went into a
bedroom to eat. Suddenly Bradshaw was standing in the doorway.
Defendant came around the corner with a gun and wearing a wig of
dreadlocks which covered his face. Defendant was pointing the gun at the
ceiling. Hair ran into another bedroom.
When Hair looked out the door, she saw her friend on the floor with
blood pouring out of his head. Defendant was standing over him with a gun
in his hand. Bradshaw was nearby. Hair went back to the bedroom; when
she emerged from the room Bradshaw and defendant were gone.
About a year after that incident, defendant drove up to Hair in his car,
jumped out, and grabbed her by the hair. She saw a gun. She was able to
run away. A few months after the hair grabbing incident, defendant saw
Hair and told her she needed to go with him. She managed to get away and
called 911. When police responded, Hair made a report.
4. Rape of Benjamin Holloman (“Beneficial”)

Detective Reddoch testified that he located Benjamin Holloman, also
known as “Beneficial,” on the streets of Pittsburg. When Reddoch mentioned
defendant’s name, Holloman said, “ ‘Motherfucker raped me. Motherfucker
drugged me.’ ” Holloman told Reddoch that as he was going in and out of

13
consciousness while being sodomized, he recognized defendant’s voice saying,
“ ‘You’re my bitch.’ ”
G. Defendant’s Offer to Plead Guilty
Over defense objection, the prosecutor read a prior statement from
defendant in which he had written: “Please take notice that in the above
entitled court to be determined Derrick Harper respectfully asks that the
Court hear his motion and allow all charges to stand against the accused.
[¶] I am guilty of the murder of Jesse Saucedo. I the accused shot the man in
the face and neck. [¶] I declare under penalty of perjury I did the murder and
no one is making me say this. I am not crazy or have any suicidal thoughts.
[¶] It is my right to plead and enter a guilty plea. [¶] Thank you.”
H. Gang Evidence
1. Defendant’s Kumi Gang Membership and Norteño Connection
After being stopped by police on August 14, 2008, the day of Saucedo’s
murder, defendant told Detective Sullivan, “I don’t talk to police. I’m a
lieutenant in Kumi.” Defendant had a text message on his phone from
Bradshaw sent at 4:32 a.m. that morning that read, “Oh, what up loved one?
Are you up? Get at me ASAP. Ain’t mad at you. Got nothing but love for
you.” A text from defendant to Bradshaw sent at 6:22 a.m. read, “Let’s go
brother. Now bro.”
In July 2012, Pittsburg Police Officer Raychel Whedbee witnessed
defendant interfering with a police investigation at a gas station by
defendant threatening another officer. When Officer Whedbee later spoke
with defendant about the incident, he told her that after he left the gas
station, he called “his boys because he [defendant] is a Kumi 415 lieutenant.”
Casey Beck, a former Norteño gang member, knew defendant in 2008.
At that time, defendant signed his texts with the letters XIV. Beck had

14
numerous felony convictions. He came forward to law enforcement in March
2015 with information about defendant because he knew defendant was
hurting people and he believed it was the right thing to do. Beck was in jail
at the time, but asked for no benefits.
2. Expert Testimony
Detective Charles Blazer, from the Pittsburg Police Department,
testified as an expert in the Norteño gang. The term “Norteño” covers
members on the street, “Northern Structure” in prison and members of
“Nuestra Familia.” There are thousands of Norteños in California. Their
symbols include “N” and its numerical representation as the 14th letter in
the alphabet. The number 14 can be shown in many different ways,
including Roman Numerals (XIV). The huelga bird tattoo is a symbol of
dedication, indicating the person is a Norteño member who has put in work
for the gang.
Norteños survive on “the three Rs”: revenue, respect and revenge.
Revenue comes from drug sales, robberies, and burglaries. They control
territory through violence and fear; they control members and the public by
making them afraid to go to the police. The repercussions for snitching can
include murder.
Blazer discussed the organizational structure of the Norteños and the
way they operate on the streets and in the correctional system. He described
numerous incidents of Norteño activity that had occurred in the Martinez
jail. Blazer identified a “kite” written by a Norteño gang member in the
Martinez jail describing an argument between him and another gang member
in which Bradshaw interfered. Based on these and other incidents, Blazer
opined that Bradshaw was a Norteño.

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 Blazer opined that defendant was a Norteño gang member and a Kumi
African Nation (Kumi) gang member at the time of Saucedo’s murder. Blazer
testified that the Norteños subsequently put defendant on a list of “no good”
Norteños because he had committed same sex rape.
Sergeant Richard Cavagnolo, of the California Department of
Corrections, testified as a Norteño and Kumi gang expert. Cavagnolo
identified Kumi’s symbols and primary criminal activities, which included
drugs sales and robberies, and testified about its organizational structure.
Kumi gang members had an alliance with the Norteños. Kumi gang
members refer to one another as “loved ones”. Homosexual activity is
considered immoral and is against the Kumi bylaws.
Cavagnolo discussed incidents in which Bradshaw acted as a Norteño
gang member within the correctional system. He also testified about
defendant’s relationship with the Kumi gang. In 2001, while attempting to
drop out of the Kumi gang in prison, defendant told a correctional officer he
became a member of Kumi in 1998, had risen to the position of lieutenant,
and had an allegiance with the Norteños. Later, in 2007, defendant denied
dropping out of Kumi and asked, “How could I be a dropout if they say I am a
lieutenant?”
The prosecution played seven recordings downloaded from defendant’s
cell phone. The recordings, made around December 2012, were conversations
between defendant and others discussing topics such as guns, guarding gang
turf, and assaulting a Norteño known as “Hitman” for spreading the word
that defendant was a snitch. Defendant’s cell phone also contained a video of
Hitman being assaulted.
In Cavagnolo’s opinion, Bradshaw was a functioning Norteño at the
time of Saucedo’s murder, and defendant was a functioning Kumi who

16
associated with Norteños. In responding to a hypothetical that described the
facts of the case, Cavagnolo opined in essence that the robbery and murder of
Saucedo was committed for the benefit of the Norteños and Kumi. Cavagnolo
testified that when gang members commit crimes like robbery and homicide,
it elevates the gang’s status. If a victim resisted and a gang member did not
respond violently, it would cost the gang member respect and affect his career
with the gang. The loss of respect would be even worse if the victim were gay
because homosexuality is frowned upon by Norteños and Kumi.
I. Defense Case
Defendant played the recording of his August 14, 2008 interview with
Detectives Sullivan and Reposa. When Sullivan referred to defendant
bragging about being a lieutenant in Kumi, defendant replied, “Man, past
tense.” Asked what Bradshaw was going to say when the police talked to
him, defendant replied, “I don’t know what [Bradshaw’s] gonna tell you. I
know what I seen when I got up here—.” Defendant acknowledged that
“somebody does know something,” but said “That somebody ain’t me. You’re
talking to the wrong person.”
Defendant played an excerpt from Castro’s August 14, 2008 interview
with the police. When asked where defendant was, Castro said, “I think at
that time he was running in the house. . . . [¶] Just kind of asking what
happened. Yeah, asking what happened or something. I’m not quite sure, I
don’t really know.” Asked where she first saw defendant, Castro said, “In the
house, he was like right there in the front room.” Asked who had the gun,
Castro replied, “I don’t know, I didn’t see no gun.” The officer told her, “One
of them had to be standing there with a gun.” Castro replied, “I didn’t see
one, I swear I did not see no gun. I didn’t. ‘Cause I’m telling you I did not. I
heard it but I couldn’t see it.”

17
 Defendant presented a transcript of the February 25, 2014 hearing at
which he wrote the note that was introduced in the prosecution’s case-in-chief
stating he murdered Saucedo and wanted to plead guilty.
Defendant recalled Beman as a witness and asked him about why he
was afraid to testify against him. Beman told Detective Deplitch that it
would be a death sentence to testify against defendant.
Beman testified that he told Detective Deplitch that the shooting
happened outside on Marin Street. He told Deplitch that defendant told him
he shot Saucedo in the face, and that defendant had a towel wrapped around
the gun.
DISCUSSION
A. Single Trial Before Two Separate Juries
Defendant contends he was denied a fair trial by the trial court’s
decision to proceed with a single trial before two juries.
1. Background
Before trial both defendant and Bradshaw moved to sever the
defendants’ cases for trial. The trial court granted severance due to a
statement defendant made to police in 2008 that referenced Bradshaw. But
over defendant’s objection, the court granted the prosecutor’s request to
proceed with a single trial before two juries. The trial court concluded that
the “vast majority of the evidence in this trial will be . . . admissible against
both defendants,” and thus it would be “much more efficient than two entirely
separate trials where every witness has to testify at least twice.” The court
noted that possible antagonistic defenses were not an impediment to having
two juries, and in any event, found that “this is not a case where the defenses

18
are such that the [acquittal] of one party would—mandate[ ] the conviction of
the other and vice versa.”5
2. Applicable Law
Section 1098 provides in pertinent part: “When two or more defendants
are jointly charged with any public offense, whether felony or misdemeanor,
they must be tried jointly, unless the court order separate trials.” Thus,
there is a strong legislative preference for joint trials, stemming both from
the fact that they “ ‘promote economy and efficiency’ ” and “ ‘ “serve the
interests of justice by avoiding the scandal and inequity of inconsistent
verdicts.” ’ ” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 40
(Coffman), citing Zafiro v. United States (1993) 506 U.S. 534, 537, 539
(Zafiro).) Here, because defendants were charged with committing common
crimes involving common events and the same victim, this is a “ ‘ “classic
case” ’ ” for a joint trial. (People v. Souza (2012) 54 Cal.4th 90, 109, 110
(Souza); Coffman, supra, at p. 41.)

5 The trial court’s reasoning is worth stating: “Mr. Harper claimed in
his statement to the police that he arrived at the residence after the homicide
occurred. [¶] If the jury credits that defense theory, then that does not
require the conviction of Mr. Bradshaw. [¶] On the other hand, Mr.
Bradshaw claimed to the police that a masked man broke into the apartment
and shot Mr. Saucedo and threatened Mr. Bradshaw. [¶] If that is accepted
by the jury, they would acquit Mr. Bradshaw. It does not mandate that they
convict Mr. Harper. [¶] So they are not defenses or—that are inconsistent in
the sense that they cannot possibly both be considered. In other words, Mr.
Bradshaw could have been robbed by a masked man who shot Mr. Saucedo,
ran out the door, and Mr. Harper arrived after the murder as he claimed.
None of those are necessarily inconsistent. [¶] I do understand that there
may be aspects that are antagonistic. Again, the case law, [People v.]
Jackson [(1996) 13 Cal.4th 1164] and [People v.] Cummings [(1993) 4 Cal.4th
1233 (Cummings)] expressly holds that that’s not a basis for mandating
separate jury trials.”

19
 It is well settled that defendants are not entitled to severance “merely
because they may have a better chance of acquittal in separate trials.”
(Zafiro, supra, 506 U.S. at p. 540.) To the contrary, under section 1098, “a
trial court must order a joint trial as the ‘rule’ and may order separate trials
only as an ‘exception.’ [Citation.]” (People v. Alvarez (1996) 14 Cal.4th 155,
190.) “ ‘The court may, in its discretion, order separate trials if, among other
reasons, there is an incriminating confession by one defendant that
implicates a codefendant, or if the defendants will present conflicting
defenses.’ [Citations.] ‘Additionally, severance may be called for when “there
is a serious risk that a joint trial would compromise a specific trial right of
one of the defendants, or prevent the jury from making a reliable judgment
about guilt or innocence.” ’ ” (Souza, supra, 54 Cal.4th at p. 109.) “The use of
dual juries is a permissible means to avoid the necessity of complete
severance. The procedure facilitates the Legislature’s statutorily established
preference for joint trials of defendants and offers an alternative to severance
when evidence to be offered is not admissible against all defendants.
[Citations.]” (Cummings, supra, 4 Cal.4th at p. 1287.)
We review the denial of a motion for severance for abuse of discretion,
based on the facts at the time of the ruling on the motion. (Coffman, supra,
34 Cal.4th at p. 41.) “That defendants have inconsistent defenses and may
attempt to shift responsibility to each other does not compel severance of
their trials [citation], let alone establish abuse of discretion in impaneling
separate juries.” (Cummings, supra, 4 Cal.4th at p. 1287.) Even if a trial
court abuses its discretion in failing to grant severance, reversal is required
only upon a showing that, to a reasonable probability, the defendant would
have received a more favorable result in a separate trial. (Coffman, at p. 41;
People v. Massie (1967) 66 Cal.2d 899, 922-924 [applying standard of People v

20
Watson (1956) 46 Cal.2d 818, 836 (Watson)].) If the trial court’s joinder and
impanelment of dual juries was proper when made, we will reverse only on a
showing of “ ‘gross unfairness’ ” amounting to a denial of due process.
(Cummings, supra, 4 Cal.4th at p. 1287; Souza, supra, 54 Cal.4th at p. 109.)
3. Analysis
Defendant contends that even if the trial court did not abuse its
discretion in ruling on his severance motion at the time it was made, the
denial of severance resulted in gross unfairness sufficient to constitute a
denial of due process because of what happened during the trial. (People v.
Powell (2018) 6 Cal.5th 136, 145-146.) Defendant places the blame squarely
on the alleged misconduct of Bradshaw’s counsel, who he contends sought to
introduce prejudicial evidence of defendant’s bad character before defendant’s
jury. According to defendant, Bradshaw’s counsel’s defense strategy was to
portray defendant as a violent individual in order to exculpate Bradshaw.
Defendant lists five instances in which Bradshaw’s counsel asked
witnesses questions calling for inadmissible and prejudicial character
evidence. However, in three of those instances, defendant’s counsel objected,
and the trial court sustained the objection before the witness answered.6
Plus, the trial court specifically admonished the jury to disregard the

6 In one instance, Bradshaw’s counsel asked Nicole Hair if she told a
defense investigator that she believed Bradshaw did not know what was
going to happen at his house on the morning Saucedo was killed. In the next
instance, Bradshaw’s counsel asked Alicia Hammond about an occasion
where she confronted defendant about pulling a gun on her. The third
instance occurred when Bradshaw’s counsel asked Detective Deplitch if the
fear of retaliation for speaking with police could extend to a codefendant who
is in custody. The trial court also denied defendant’s subsequent requests for
a mistrial with respect to Hair and Hammond on the grounds that questions
were asked, objections were made, and no answers were given.

21
questions when an objection was sustained. (See CALCRIM No. 222.7) We
presume the jury understood and followed this instruction. (People v.
Edwards (2013) 57 Cal.4th 658, 746.)
In addition to the questions that yielded no answers, defendant
complains that Castro, under questioning by Bradshaw’s counsel, testified
that she heard Bradshaw say at the scene, “ ‘Don’t shoot me. Don’t shoot me.
I promise I won’t tell.’ ” Further, when questioned by the prosecutor, Castro
testified that Bradshaw looked frightened when she saw him in the car with
defendant as they fled the house after the murder. In both of these instances,
the trial court ruled the testimony was admissible. That this evidence tended
to shift responsibility from Bradshaw to defendant did not compel severance
of their trials or constitute an abuse of discretion on the part of the trial
court. Here, as in Cummings, “the defense positions were antagonistic
because the identity of the killer was disputed by defendants. That each was
involved in the incident was undisputed[.]” (Cummings, supra, 4 Cal.4th at
p. 1287.) Moreover, as in Cummings, “this was not a case in which only one
defendant could be guilty. The prosecution did not charge both and leave it
to the defendants to convince the jury that the other was that person.” (Ibid.)
Rather, the prosecution’s theory was that both defendants participated in,
and were guilty of, the murder.

7CALCRIM No. 222, as given, provided in part as follows: “Nothing
that the attorneys say is evidence. . . . Their questions are not evidence. . . .
Do not assume that something is true just because one of the attorneys asked
a question that suggested it was true. [¶] . . . If I sustained an objection, you
must ignore the question. If the witness was not permitted to answer, do not
guess what the answer might have been or why I ruled as I did.”

22
 Although defendant’s jury did hear testimony that arguably implicated
him, there was no “gross unfairness.”8 By impaneling separate juries for
defendant and Bradshaw, any impact the defendants’ respective trial
strategies might have on the other was minimized. (Cummings, supra, 4
Cal.4th at p. 1288.) The jury was also aware defendant and Bradshaw were
attempting to avoid responsibility by shifting blame to the other defendant.
(Ibid.)
Even if the actions of Bradshaw’s counsel could be characterized as
misconduct (a conclusion we need not reach), we reject the notion that the
joint trial with separate juries was unfair as a result.9 As our Supreme Court
explained in People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 385,
“[t]he presentation of disputed testimony occurs in almost every trial and
accusations of improper conduct are common. ‘Juries are not so susceptible
that they cannot measure intelligently the weight of [evidence] that has some
questionable feature.’ (Manson v. Brathwaite (1977) 432 U.S. 98, 116.)” The
same is true here. Nothing in the record indicates defendant’s jury was
unable to intelligently weigh the evidence. Simply because Bradshaw’s jury

8 Defendant argues that “another instance of extreme prejudice”
occurred during Bradshaw’s case when the prosecutor elicited testimony that
defendant had interfered with Officer Ruff’s investigation on two occasions.
But the prosecutor elicited this information only after defendant, who was
then representing himself, suggested by his cross-examination that Officer
Ruff had pat-searched him in an inappropriate manner. Thus the challenged
testimony was the direct result of defendant’s own trial strategy; it also
would have been admissible in a separate trial. We similarly are
unpersuaded by defendant singling out questions posed only in front of
Bradshaw’s jury; defendant could not have been prejudiced by testimony his
jury did not hear.
9We similarly reject the claim that the trial court’s refusal to grant a
mistrial on these grounds resulted in unfairness.

23
was unable to reach a verdict and a mistrial was declared, does not render
defendant’s guilty verdict unfair.
In short, the trial court did not abuse its discretion by refusing to sever
defendant’s and Bradshaw’s trial, and defendant was not subjected to gross
unfairness so as to constitute a due process violation (Cummings, supra, 4
Cal.4th at p. 1287).
But even assuming the court should have granted defendant’s
severance motion, we would not find prejudice under the Watson standard.
(Coffman, supra, 34 Cal.4th at p. 41.) Defendant complains that the joint
trial enabled Bradshaw to paint him as a “dangerous and frightening man.”
However, even had there been separate trials, there was ample evidence from
which the jury could have assessed defendant’s violent tendencies. This
evidence included two witnesses who saw defendant with a gun in the weeks
before the murder; Maria Obregon’s testimony that defendant put a gun to
her head when she was not forthcoming with information he wanted; Alicia
Hammond’s testimony that defendant followed her in his car and told her to
get in and her compliance only because she was afraid of him and could see a
gun on his lap that was pointed in her direction; and Nicole Hair’s testimony
that defendant threatened her to not talk to police about his involvement in
the robbery of her friend. There was also evidence that defendant had
sodomized an unconscious person. Moreover, the evidence of defendant’s
guilt was strong: Deana Castro testified she heard a gunshot and saw the
victim Saucedo on the ground and defendant with a gun in his waistband.
Defendant told three people that he had killed Saucedo. All of this, without
even taking into account the document from defendant admitting that he was
guilty of killing Saucedo, which we discuss below.

24
 Accordingly, we conclude there is no reasonable probability defendant
would have received a more favorable result in a separate trial. (Coffman,
supra, 34 Cal.4th at p. 41; Watson, supra, 46 Cal.2d at p. 836.)
B. Assembly Bill 333 and the Gang Enhancement
In August 2017, the jury found true the allegation that defendant
committed first degree murder in association with or for the benefit of a
criminal street gang.10 (§ 186.22, subd. (b).)
As we have noted, Assembly Bill 333 became effective on January 1,
2022, after we rendered our prior opinion affirming defendant’s murder
conviction and related gang and firearm enhancements. The legislation
amends section 186.22, subdivision (b) to impose new elements to prove a
gang enhancement. It also adds section 1109 to the Penal Code, which
provides for bifurcation at trial, upon defendant’s request, of gang
enhancement allegations from the underlying offenses.
Defendant contends Assembly Bill 333 requires reversal of the true
finding on the criminal street gang enhancement. He further argues his
murder conviction must be reversed in light of the new bifurcation
requirement of section 1109. We first address the amendments to section
186.22 and then turn to new section 1109.
1. Amendments to Section 186.22
Section 186.22 provides for enhanced punishment when the defendant
is convicted of an enumerated felony committed “for the benefit of, at the
direction of, or in association with any criminal street gang, with the specific

10 The information alleged two gang enhancements (§ 186.22, subds.
(b)(1)(C) & (b)(4)). The verdict did not differentiate between the two and just
referred to “gang allegation.” At the sentencing hearing, the trial court
determined subdivision (b)(4) applied. The sentencing minute conforms to
the court’s oral pronouncement.

25
intent to promote, further, or assist in any criminal conduct by gang
members.” (§ 186.22, subd. (b)(1).)
Assembly Bill 333 amended section 186.22 in several fundamental
ways. As relevant here, Assembly Bill 333 “redefines ‘pattern of criminal
gang activity’ to require that the last of the predicate offenses ‘occurred
within three years of the prior offense and within three years of the date the
current offense is alleged to have been committed,’ and that the predicate
offenses ‘were committed on separate occasions or by two or more members,
the offenses commonly benefited a criminal street gang, and the common
benefit of the offenses is more than reputational.’ [Citation.]” (People v.
Lopez (2021) 73 Cal.App.5th 327, 345 (Lopez). In addition, the currently
charged offense cannot be used as a predicate offense under the amendments
made by Assembly Bill 333. (Ibid.)
Subdivision (g) of section 186.22 now defines the term “to benefit,
promote, further, or assist” a criminal street gang to mean “to provide a
common benefit to members of a gang where the common benefit is more
than reputational,” which may include “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.” Previously,
proof of a reputational benefit to the gang would suffice. (People v. Ramirez
(2016) 244 Cal.App.4th 800, 819.)
a. Retroactivity
Amended section 186.22 does not specify whether the changes to the
statute apply retroactively to non-final cases still pending on appeal. As we
explain, we agree with the parties that they do.
In In re Estrada (1965) 63 Cal.2d 740, 744–746 (Estrada), our Supreme
Court held that, absent evidence to the contrary, the Legislature intended

26
amendments to statutes that reduce punishment for a particular crime to
apply to all whose judgments are not yet final on the amendments’ operative
date. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307–308; People
v. Brown (2012) 54 Cal.4th 314, 323.) This principle also applies when an
enhancement has been amended to redefine to a defendant’s benefit the
conduct subject to the enhancement. (People v. Figueroa (1993) 20
Cal.App.4th 65, 68, 70–71 (Figueroa).)
Recently, the Court of Appeal in Lopez, supra, 73 Cal.App.4th 327,
applying Estrada, held the amendments Assembly Bill 333 made to section
186.22 are retroactive to non-final judgments. (Id. at pp. 343-344.) Lopez
reasoned Assembly Bill 333 increased the “threshold for conviction of the
section 186.22 offense and the imposition of the enhancement[.]” (Id. at p.
344.) Accordingly, Lopez concluded “ ‘a defendant is entitled to the benefit of
an amendment to an enhancement statute, adding a new element to the
enhancement, where the statutory change becomes effective while the case
was on appeal, and the Legislature did not preclude its effect to pending
case.’ ” (Ibid., quoting Figueroa, supra, 20 Cal.App.4th at p. 68.) Several
recent appellate decisions have applied this reasoning and have also
concluded the amendments to section 186.22 are retroactive. (People v. Perez
(2022) __ Cal.App.5th __ [2022 WL1302282, *16]; People v. Burgos (2022) __
Cal.App.5th __ [2022 WL 1124863, *7] (Burgos); People v. Ramos (2022)
__Cal.App.5th __ [2022 WL 1233755, *9-10]; People v. Rodriguez (2022) 75
Cal.App.5th 816 [2022 WL 602294, *7]; People v. E.H. (2022) 75 Cal.App.5th
467, 478; People v. Delgado (2022) 74 Cal.App.5th 1067, 1087, review filed
Mar. 22, 2022; People v. Vasquez (2022) 74 Cal.App.5th 1021, 1032 & fn. 9;
People v. Sek (2022) 74 Cal.App.5th 657, 666-667.) We, too, agree and hold

27
Assembly Bill 333’s amendments to section 186.22 apply retroactively to
defendants whose convictions are not yet final.
b. Necessity for Remand
The Attorney General concedes the gang evidence at defendant’s trial,
presented under the old law, fell short of meeting the new requirements of
proof required by amended section 186.22. Specifically, there was no
evidence presented that the current offense provided a common benefit to
members of a gang that was more than reputational. The Attorney General
also agrees with defendant that the jury was not instructed on the new
elements now required to prove the gang enhancement. Further, the jury
was instructed under the former law that it could use the current offense as a
predicate offense, which is no longer permitted under the amendments to
section 186.22.
The parties agree that reversal of the gang enhancement is required
unless this court can determine that the errors pertaining to section 186.22
were harmless beyond a reasonable doubt under Chapman v. California
(1967) 386 U.S. 18 (Chapman). The Attorney General readily and properly
concedes the errors are not harmless. Because it is not clear beyond a
reasonable doubt that a rational jury would have found the gang
enhancement true had it been instructed under the law as amended by
Assembly Bill 333, the gang enhancement must be vacated. We will remand
to the trial court to permit the People to elect to retry the enhancement or, if
the People do not elect to do so, for the court to proceed with resentencing
defendant in conformance with this opinion.
2. Any Error in Trying the Gang Enhancement Allegation with
the Substantive Offense Was Harmless
Prior to trial, defendant joined in Bradshaw’s motion to bifurcate their
respective gang enhancements from the underlying charges. The trial court

28
denied the motion, stating the robbery and murder were “inextricably
intertwined with gang evidence,” the gang evidence would have been
admissible on the issues of motive and intent in the murder trial alone, and
the murder evidence was more prejudicial than the gang evidence.
In his original brief in this appeal, defendant contended that the trial
court’s denial of his motion to bifurcate the gang enhancements constituted
prejudicial error and denied him due process. In his supplemental briefing,
he raises an additional argument in light of newly enacted section 1109: his
murder conviction should be reversed in light of the change in the law that
requires bifurcation upon a defendant’s request. The Attorney General
contends defendant is not entitled to a reversal of his murder conviction
because section 1109 is not retroactive and is thus inapplicable to defendant’s
case.
a. Bifurcation and Section 1109
Prior to the enactment of section 1109, trial courts had broad discretion
under section 104411 to deny bifurcation of the underlying charge from the
finding on truth of the gang allegations. (People v. Hernandez (2004) 33
Cal.4th 1040, 1048 (Hernandez).) Newly enacted section 1109 has changed
that. Now, upon a request by the defense, “a case in which a gang
enhancement is charged under subdivision (b) or (d) of Section 186.22 shall
be tried in separate phases as follows: (1) The question of the defendant’s
guilt of the underlying offense shall be first determined. [¶] (2) If the
defendant is found guilty of the underlying offense and there is an allegation

Section 1044 provides: “It shall be the duty of the judge to control all
11

proceedings during the trial, and to limit the introduction of evidence and the
argument of counsel to relevant and material matters, with a view to the
expeditious and effective ascertainment of the truth regarding the matters
involved.”

29
of an enhancement under subdivision (b) or (d) of Section 186.22, there shall
be further proceedings to the trier of fact on the question of the truth of the
enhancement.” (§ 1109, subd. (a)(1)-(2).) Section 1109 is silent as to whether
it applies retroactively or only prospectively.
b. Application
Defendant argues section 1109 should be retroactive under the
principles of Estrada. The Attorney General counters that section 1109
operates prospectively. Citing to People v. Cervantes (2020) 55 Cal.App.5th
927 (Cervantes), and People v. Sandee (2017) 15 Cal.App.5th 294 (Sandee),
the Attorney General asserts that Estrada is inapplicable to section 1109,
because the statute is procedural and does not convey a substantive benefit.
In Cervantes, the court rejected the defendant’s argument that
amendments to section 859.5, which was silent on the issue, were retroactive.
(Cervantes, supra, 55 Cal.App.5th at p. 940.) The Cervantes court
emphasized, “Ultimately, the applicability of the Estrada rule to a particular
legislative change depends on whether the statute at issue is “ ‘analogous” to
the Estrada situation’ and whether the logic of Estrada applies. [Citation.]”
(Cervantes, at p. 940.) “The 2017 amendments to section 859.5 are not
analogous to the statute at issue in Estrada. To the contrary, their effect is
to impose requirements on certain interrogations, and to circumscribe the
admissibility of those statements if those requirements are not met or
excused. . . . The amendments do not . . . alter the substantive requirements
for conviction, nor affect the available punishments in the event of conviction.
They do not alter or reduce criminal punishment or treatment.” (Ibid., fn.
omitted.)
In Sandee, the court rejected the defendant’s argument that a law
enforcement search of her cell phone violated the Electronic Communications

30
Privacy Act (§ 1546 et seq.) (ECPA), which became effective after the
challenged search was conducted. (Sandee, supra, 15 Cal.App.5th at p. 304.)
The court held that Estrada did not apply, because ECPA did not lessen the
punishment for a crime, decriminalize conduct, or expand criminal defenses.
(Id. at p. 305, fn. 7.)
Relying primarily on People v. Frahs (2020) 9 Cal.5th 618, which held
the mental health diversion statute (§ 1001.35) applied retroactively to all
cases not final on its effective date because it “provides a possible
ameliorating benefit for a class of persons—namely, certain defendants with
mental disorders—by offering an opportunity for diversion and ultimately the
dismissal of charges” (id. at p. 625), defendant argues the ameliorative
benefits of bifurcating the trial of gang enhancement allegations have a
“similar . . . effect,” and the same inference of retroactivity should apply as in
Frahs.
Recently, in Burgos, supra, 2022 WL 1124863 a divided appellate court
held section 1109 applies retroactively. Over a vigorous dissent, the majority,
relying on various legislative findings 12 concluded that “one of the

12 The legislative findings in Assembly Bill 333 cited by the majority in
Burgos are as follows: (1) “The gang enhancement statute is applied
inconsistently against people of color, creating a racial disparity.” (Stats.
2021, ch. 699, § 2, subd. (d)(1).); (2) “Current gang enhancement statutes
criminalize entire neighborhoods historically impacted by poverty, racial
inequality, and mass incarceration as they punish people based on their
cultural identity, who they know, and where they live.” (Id., § 2, subd. (a).);
(3) “Being designated as a gang member or associate negatively impacts a
person’s criminal legal system contact from start to finish by hindering
pretrial release, influencing sentencing, incarceration, parole, and reentry,
and can lead to deportation.” (Id., § 2, subd. (b).); (4) “The current statute
disproportionately impacts communities of color, making the statute one of
the largest disparate racial impact statutes that imposes criminal
punishments.” (Id., § 2, subd. (d)(2).); (5) “Bifurcation of trials where gang
evidence is alleged can help reduce its harmful and prejudicial impact.” (Id.,

31
Legislature’s foremost reasons for enacting Assembly Bill 333 was to
ameliorate the disparate levels of punishment suffered by people of color.”
(Id. at *9.) “The findings further establish that the bifurcation of gang
enhancements at trial is intended to ameliorate the prejudicial impact of
trying enhancements together with the offense.” (Id. at *10.) Thus,
according to the majority, “one of the ameliorative effects of bifurcation is
that some defendants will actually be acquitted of the underlying offense
absent the prejudicial impact of gang evidence. This increased possibility of
acquittal—which necessarily reduces possible punishment—is sufficient to
trigger retroactivity under the Estrada rule.” (Ibid.) The court summarily
rejected the argument that different parts of Assembly Bill 333 “should be
treated differently under Estrada” and concluded section 1109 should also be
applied retroactively. (Ibid.)
The Burgos majority also opined that the failure to bifurcate “likely
constitutes ‘structural error’ because it def[ies] analysis by harmless-error
standards.” (Burgos, supra, 2022 WL 1124863 at *11.) But even if it was
amenable to harmless error, the court explained “it is not clear whether we
should apply the federal or the state law standard.” (Ibid.) In any event, the
court concluded the defendants in Burgos were prejudiced under either

§ 2, subd. (f).); (6) “Gang enhancement evidence can be unreliable and
prejudicial to a jury because it is lumped into evidence of the underlying
charges which further perpetuates unfair prejudice in juries and convictions
of innocent people.” (Id., § 2, subd. (d)(1).); (7) “California courts have long
recognized how prejudicial gang evidence is. [Citation.] Studies suggest that
allowing a jury to hear the kind of evidence that supports a gang
enhancement before it has decided whether the defendant is guilty or not
may lead to wrongful convictions. [Citations.]” (Id., § 2, subd. (e).); (8) “The
mere specter of gang enhancements pressures defendants to accept
unfavorable plea deals rather than risk a trial filled with prejudicial evidence
and a substantially longer sentence.” (Id., § 2, subd. (e).)

32
standard because the evidence of the underlying crime “was not
overwhelming.” (Ibid.)
The Burgos dissent determined “section 1109 is not an ameliorative
statute within the meaning of the Estrada rule, and therefore it is subject to
the general rule that Penal Code provisions are presumed to be prospective
only.” (Burgos, supra, 2022 WL 1124863 *12 (dis. opn. of Elia, J.).) “The
majority opinion’s mere speculation that a defendant might be acquitted if
the gang allegations are bifurcated does not bring section 1109’s bifurcation
provisions within the Estrada rule.” (Id. at *14 (dis. opn. of Elia, J.).)
Moreover, the majority gave “short shrift to the fact that the Estrada rule is
an exception to the general rule. ‘No part of [the Penal Code] is retroactive,
unless expressly so declared.’ (§ 3.) Thus, the default presumption, unless the
Estrada rule applies, is that a new law is not retroactive. The Estrada rule
applies only where the new law is “ameliorative” of criminal liability or
punishment. The general rule of prospectivity applies here because nothing
in section 1109 is ameliorative of criminal liability or punishment. Indeed,
the Legislature’s express findings and the legislative history affirmatively
demonstrate that section 1109 was intended to have a prophylactic effect at
future criminal proceedings by mandating new procedures that were
designed to reduce the risk of prejudice. The majority opinion cites no
authority for applying the Estrada rule to a new law of this type. Hence, the
general rule applies, and section 1109 is presumptively not retroactive.” (Id.
at *14 (dis. opn. of Elia, J.).)
The dissent further disagreed that the legislative findings “ ‘show the
Legislature intended to reduce punishment specifically for people of color’ ” or
that “ ‘[b]y reducing the pressure to accept longer sentences, the new
bifurcation statute will necessarily reduce the degree of punishment for’ ”

33
defendants charged with gang enhancements. (Burgos, supra, 2022 WL
1124863 at * 14 (dis. opn. of Elia, J.).) Moreover, while agreeing that the
amendments to section 186.22 are ameliorative, since they narrow the scope
of criminal liability, the dissent contended that the retroactivity of each
amendatory statute in a single legislative bill should be separately analyzed.
(Id. at *15 (dis. opn. of Elia, J.).) As it noted, “Many legislative bills amend
numerous (sometimes hundreds of) statutes, and whether a specific
amendatory statute is subject to the Estrada rule depends on the nature of
the amendment, not the mere fact that the amendment was enacted in the
company of other amendments in a single legislative bill.” (Ibid.)
We need not decide whether section 1109 should be applied
retroactively, because we conclude the failure to bifurcate the gang evidence
does not constitute reversible error in this case.13 The California
Constitution provides: “No judgment shall be set aside, or new trial granted,
in any cause, on the ground of misdirection of the jury, or of the improper
admission or rejection of evidence, or for any error as to any matter of
pleading, or 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.” (Cal. Const., art. VI, § 13.) Recently, our Supreme Court in In re
Christopher L. (2022) ___ Cal.5th ___ [2022 WL 1210274] provided a concise

13
Other recent decisions have reached different conclusions. In People
v. Perez, supra, 2022 WL 1302282, the court, while acknowledging section
1109 is “designed to minimize the prejudicial impact of gang evidence,” held
it does not apply retroactively because “it does not reduce the punishment or
narrow the scope of the application of the gang statute.” (Id. at *17.) In
People v. Ramos, supra, 2022 WL 1233755, the court recently held section
1109 should apply retroactively but concluded the defendant was not entitled
to reversal of his underlying conviction because he could not establish
prejudicial error under the Watson standard. (Id. at *11-13.)

34
review of the concepts of harmless and structural error: “ ‘When the error is
one of state law only, it generally does not warrant reversal unless there is a
reasonable probability that in the absence of the error, a result more
favorable to the appealing party would have been reached. ([Watson, supra,]
46 Cal.2d [at p.] 835.)’ (Soule v. General Motors Corp. (1994) 8 Cal.4th 548,
574.) Federal constitutional errors require reversal unless the beneficiary of
the error can show it was ‘harmless beyond a reasonable doubt.’ (Chapman,
supra, 386 U.S. at p. 24.)
“But not all errors are amenable to harmless error analysis. We have,
‘in a number of contexts, [found] that certain errors, by their nature, result in
a “miscarriage of justice” within the meaning of the California harmless-error
provision requiring reversal without regard to the strength of the evidence
received at trial.’ (People v. Cahill (1993) 5 Cal.4th 478, 493 . . . .) For
example, per se reversal is required when a court refuses or fails to allow a
party to present its entire case before the trier of fact (Fewel v. Fewel (1943)
23 Cal.2d 431, 433), when there is improper discrimination in jury selection
(People v. Wheeler (1978) 22 Cal.3d 258, 283), or when a codefendant is
denied the right to separate counsel (People v. Douglas (1964) 61 Cal.2d 430,
437–439).” (In re Christopher L., supra, 2022 WL 1210274 at *3–4].)
Errors are considered “structural” when they represent “defect[s]
affecting the framework within which the trial proceeds” and, thus are
reversible per se. (Arizona v. Fulminante (1991) 499 U.S. 279, 310; see
People v. Stewart (2004) 33 Cal.4th 425, 462.) Structural error
“ ‘def[ies] analysis by “harmless error” standards’ ” because the error has
“ ‘consequences that are necessarily unquantifiable and indeterminate.’ ”
(United States v. Gonzales–Lopez (2006) 548 U.S. 140, 148, 150.) “Trial
errors, by contrast, are errors that ‘occurred during the presentation of the

35
case to the jury, and which may therefore be quantitatively assessed in the
context of other evidence presented’ in order to determine whether the error
was harmless. (Arizona v. Fulminante, supra, 499 U.S. at pp. 307-308.)
There is a strong presumption any error falls within the latter category, and
it is the rare case in which a constitutional violation will not be subject to
harmless error analysis. (Sullivan v. Louisiana [(1993)] 508 U.S. [275,] 282
(conc. opn. of Rehnquist, C. J.).)” (People v. Marshall (1996) 13 Cal.4th 799,
851.)
Applying these established principles, we disagree with the Burgos
majority that failure to bifurcate gang evidence from the underlying offense
“likely” constitutes structural error. (Burgos, supra, 2022 WL 1124863 at
*11.) The admission of prejudicial gang evidence is trial error, the effect of
which may be quantitatively assessed, rather than an error affecting the
framework of the trial. For example, in People v. E.H., supra, 75 Cal.App.5th
467, the court applied the Watson harmless error analysis in light of the
enactment of section 1109 and concluded, without reaching the issue, that
even if section 1109 were retroactive, it was not “ ‘reasonably probable’ ” the
defendant “would have obtained a more favorable result if his trial had been
bifurcated.” (Id. at p. 480; see also People v. Ramos, supra, 2022 WL 1233755
at *13 [failure to bifurcate was harmless error under Watson].) We also note
that in People v. Albarran (2007) 149 Cal.App.4th 214, 229-232 (Albarran),
albeit not in the bifurcation context, the court held admission of
inflammatory gang evidence was subject to Chapman harmless error analysis
because the evidence deprived defendant of a fair trial.
We need not determine which harmless error standard applies, because
under either standard defendant has not demonstrated prejudicial error.
Unlike the evidence in Burgos, which the court found was not

36
“overwhelming,”14 here the People presented strong evidence that defendant
committed the murder. That evidence included percipient witness testimony
from Castro, who heard a gunshot at the scene and then immediately saw the
victim on the ground and defendant with a gun in his waistband. In the
weeks before the murder, Dulik (Castro’s stepfather) saw defendant with two
guns. On the morning of the murder, defendant left Weathers’s house around
4:00 a.m. with a gun. Shortly thereafter, at about 4:32 a.m., codefendant
Bradshaw texted defendant and said to contact him “ASAP.” Defendant
replied, just before the murder, with “Let’s go brother. Now bro.” Following
the murder, defendant was seen washing his clothes in bleach. Defendant
admitted to no fewer than three people (Hammond, Andrews, and Beman)
that he had killed Saucedo. Defendant also showed Andrews a photo of the
victim, lying down with a gunshot wound to the head and bragged, “This is
my handiwork.” And in addition to all of this evidence, the prosecution

14 As the majority succinctly described the evidence in Burgos,
“[N]either [robbery] victim identified any of the [three] appellants at trial,
and the evidence of their in-field identifications was somewhat muddled. The
victims described four to six men involved. One of the charged men (Lozano)
pleaded guilty before trial without identifying anyone else, and another one
of the defendants (Byrd) was acquitted. While the 7-Eleven videos put
appellants near the scene of the robbery, the evidence did not show them
committing the crime. Similarly the fact that stolen evidence was found in
Byrd’s apartment did not establish which of the persons inside the apartment
actually stole it. And Richardson [an appellant] presented plausible evidence
that he had been mistaken for . . . another one of the persons found inside the
apartment. Given this evidence, it is likely the jury relied on evidence of
appellants’ gang membership in considering the identity issues. Finally,
there was no clear evidence that Stevenson [another appellant] actually did
anything during the robbery apart from being present. . . . [T]he jury likely
relied on his gang affiliation to infer he aided and abetted the robbery.”
(Burgos, supra, 2022 WL 1124863 at *11.)

37
submitted a document from defendant stating that he was guilty of killing
Saucedo.
c. No Due Process Violation
Finally, we reject defendant’s original claim that the denial of
bifurcation resulted in an unfair trial that deprived him of due process.
Defendant relies on Albarran, supra, 149 Cal.App.4th 214, where a divided
appellate court found the admission of gang evidence inflammatory and
prejudicial because the trial court had earlier dismissed the gang allegations
following a new trial motion, and the prosecution failed to present evidence
the underlying crimes were gang motivated. (Id. at pp. 227–228.) The
Albarran court held that, even if some gang evidence had been relevant to
motive and intent, other irrelevant and inflammatory gang evidence had
been admitted. (Ibid.) The jury heard lengthy testimony about other gang
members, the wide variety of crimes they had committed, and the numerous
contacts between police and gang members. The prosecution’s gang expert
described a specific threat the gang had made to kill police officers. (Ibid.)
The Albarran majority concluded a real danger existed that the jury,
regardless of actual guilt, would want to punish the defendant based on his
past crimes and because he posed a threat to police and society at large. (Id.
at p. 230.) The Albarran majority concluded the case was “one of those rare
and unusual occasions” where the admission of evidence amounted to a
violation of federal due process and rendered the trial fundamentally unfair.
(Id. at p. 232.) Given the nature and amount of the gang evidence, including
the number of witnesses who testified about it, and the role the gang
evidence played in the prosecutor’s argument, the divided appellate court
held the trial court erred in failing to order a new trial on all of the charges.
(Ibid.)

38
 Albarran is distinguishable. The failure to bifurcate the gang evidence
in this matter did not result in a denial of due process. Unlike in Albarran,
the evidence here connected defendant to the charged crimes and
overwhelmingly established his guilt. Further, although much of the
evidence regarding gang hierarchy and activities in jails and prisons was
irrelevant to the charged offense in defendant’s case, the risk of prejudice was
low. While defendant maintains that the gang evidence painted him as
violent and vengeful, none of the gang evidence was as inflammatory as the
murder itself—a gunshot to the head—such that it might lead a jury to
convict defendant without regard to his guilt. And, in the context of this
multi-week trial involving two defendants and two different gangs, two days
of gang expert testimony was proportional.15
Even without the gang evidence, as we have discussed, there was
abundant evidence that defendant was violent and dangerous. As we have
described, this evidence included two witnesses who saw defendant with a
gun in the weeks before the murder; Maria Obregon’s testimony that
defendant put a gun to her head when she was not forthcoming with
information he wanted; Alicia Hammond’s testimony that defendant followed
her in his car and told her to get in and her compliance only because she was
afraid of him and could see a gun on his lap that was pointed in her direction;
and Nicole Hair’s testimony that defendant threatened her to not talk to
police about his involvement in the robbery of her friend.
Accordingly, it is clear under any standard that defendant would not
have obtained a more favorable result had the gang evidence been excluded

15The evidentiary portion of the trial took place over 18 days. The
prosecution’s case-in-chief and rebuttal consumed 15 days.

39
from the murder trial. (Chapman, supra, 386 U.S. 18 at p. 24; Watson, supra,
46 Cal.2d at p. 836.)
C. Admission of Defendant’s Alleged Offer to Plead Guilty
Defendant contends the trial court erred in allowing the prosecution to
introduce an alleged offer to plead guilty in this case. Defendant contends
the evidence was inadmissible under Evidence Code section 1153 and section
1192.4, which preclude admission of guilty pleas that have either been
withdrawn or not accepted by the prosecuting attorney and approved by the
court.
1. Background
a. The February 25, 2014 Hearing
On February 25, 2014, defendant, then-represented by deputy public
defender Patrick Cannon, appeared at a hearing in this case before Judge
Terri Mockler. The transcript of the proceedings reflects that the court was
attempting to appoint a new attorney because defendant was angry and
frustrated about the handling of his case by deputy public defender Jane
Ryan. When the court began to express its view about the best course of
action to protect defendant’s due process rights, the following colloquy
occurred:
“DEFENDANT: Shit, there ain’t no due process protected. Let’s
pretend I’m not sitting here. I’m visible.
“THE COURT: —is to remove Mr. Cannon and have a completely
brand new counsel appointed to represent Mr. Harper.
“THE DEFENDANT: What, so they can do what Jaye Ryan did?
Basically try to railroad me, falsify— [¶] . . .
“THE DEFENDANT: You violated my rights, man. You allowed this
crazy shit to go on. I wrote you a letter about this crazy woman, Jane Ryan.

40
 “THE COURT: Mr. Harper—
“THE DEFENDANT: No. I want to speak. You’re not going to shut
me down today. [¶] . . .
“THE DEFENDANT: She’s not with Mr. Cannon, get that on the
record. Jane Ryan sexually advanced herself to me day one.
“THE COURT: Mr. Harper—
“THE DEFENDANT: She continually violated my 14th and 16th
Amendments.
“THE COURT: Mr. Harper, we’ll have you come back here tomorrow at
1:30.
“THE DEFENDANT: I think Ms. Mary Knox [the prosecutor] share
[sic] with you. I’m pleading guilty to this case to get done with that. You
have an attorney, Ms. Ryan, fabricating case after case with me. . . . I’m not
coming back tomorrow. I’m pleading to the murder of Jesse Saucedo, who
they claimed I murdered, who I have—
“THE COURT: Don’t take this down. We’ll have you back here
tomorrow.”
Apparently at the same hearing, defendant attempted to hand a
handwritten document to Judge Mockler which stated: “I’m guilty of the
murder of Jesse Saucedo. I, the accused, shot the man in the face and neck. I
declare under penalty of perjury I did the murder, and no one is making me
say this. I am not crazy or have any suicidal thoughts. It’s my right to plead
how I want, and I plead guilty. Thank you.”
b. In Limine Motion
During in limine motions before Judge John W. Kennedy, who had been
assigned to preside over the trial, prosecutor Knox sought a ruling to permit
the handwritten document to be offered in evidence. The prosecutor advised

41
Judge Kennedy that defendant had attempted to give the document to Judge
Mockler, who gave it back to defendant.
The trial court held a lengthy in limine hearing, which included
reviewing the transcripts of the hearings held on February 25, 2014 and
February 26, 2014. At the next court date, Judge Kennedy made a detailed
ruling on the record, concluding the document was not an offer to plead guilty
under Evidence Code section 1153.16 The court found there were no plea
negotiations going on at the time defendant made the statement and it “was
not made in furtherance of plea negotiations because there were none.”17 The
document was an unsolicited admission by defendant because he was
frustrated with the attorney representing him at the time. The court noted
its conclusion was confirmed, in part, by “Judge Mockler’s summary refusal
to even entertain it. It was a document handed to [deputy district attorney]
Ms. Knox and when proffered to Judge Mockler it was entirely refused.” In
making this ruling, the trial court relied on People v. Sirhan (1972) 7 Cal.3d
710, 744–746 (Sirhan) [defendant’s in-court outburst during trial that he
killed the victim with willful and deliberate premeditation not a bona fide
offer to plead guilty]; People v. Leonard (2007) 40 Cal.4th 1370, 1404
(Leonard) [defendant’s unsolicited admission of guilt at a change of venue
hearing not a bona fide offer to plead guilty; no plea negotiations were
underway]; and People v. Posten (1980) 108 Cal.App.3d 633, 648 [unsolicited

16Neither the document nor the transcript of the February 26, 2014
hearing is included in the record.
17As a secondary basis for admission, the court concluded that
Evidence Code section 1153 was abrogated by the Truth-in-Evidence
provision of Proposition 8, and thus did not bar introduction of defendant’s
statement, which fell under the hearsay exception for an admission by a
party.

42
offer to plead guilty by defendant being transported by officers not made in
course of bona fide plea negotiations].)
At trial, the prosecutor offered the handwritten statement into evidence
and read it to the jury. Defendant, in response, offered the contents of the
February 25, 2014 transcript, which gave context to the document and
included his oral outburst to the court.
During closing argument, defendant admitted that he wrote the
handwritten statement but disputed the accuracy of its contents and disputed
that he had made a confession.
2. Analysis
Defendant contends that his handwritten statement was an offer to
plead guilty and was thus improperly admitted under Evidence Code section
1153 and section 1192.4.
Under Evidence Code section 1153, a criminal defendant’s offer to plead
guilty, or a plea that is later withdrawn, is inadmissible in any action or
proceeding. Similarly, under section 1192.4, if a defendant’s guilty plea is not
accepted by the prosecuting attorney and approved by the court, the plea is
deemed withdrawn and may not be received in any action or proceeding.
The purpose of the statutes is “ ‘to promote the public interest by
encouraging the settlement of criminal cases without the necessity of a trial.’
([Sirhan, supra,] 7 Cal.3d [at p.] 745.)” (Leonard, supra, 40 Cal.4th at p.
1404.) “[T]he rule of inadmissibility applies, not merely to admissions of
guilt, but also to ‘any incidental statements made in the course of plea
negotiations . . . .’ [Citation.] That construction promotes candor, because
‘[t]he accused and defense counsel are assured that anything said will not be
used against them if the negotiations are unsuccessful.’ [Citation.]” (People
v. Crow (1994) 28 Cal.App.4th 440, 450.) The protections created by these

43
statutes, however, apply only to those admissions made in the course of “bona
fide” plea negotiations. (Leonard, supra, at p. 1404.)
Here, the trial court, relying on Sirhan, supra, 7 Cal.3d 710 concluded
the written statement was admissible because it was not a bona fide offer
made during plea negotiations. Defendant argues Sirhan is distinguishable
because the offer to plead guilty there was made orally and during trial,
whereas his was submitted in writing during pretrial proceedings.
Nevertheless, defendant’s statement was made in frustration during
proceedings dedicated to other matters. The dismissiveness of Judge Mockler
in refusing to even entertain defendant’s statements, either verbally or in
written form, confirms that this was not a serious offer made during plea
negotiations.
People v. Hamilton (1963) 60 Cal.2d 105, cited by defendant, does not
help him. There, unlike here, the defendant had met with the prosecutor and
“offered to plead guilty if arrangements could be made to assure him a life
sentence.” (Id. at pp. 112–113.) Here, however, defendant did not make a
considered effort to negotiate a plea. Instead, he simply made an unsolicited
statement that he was guilty, apparently out of the blue. It is telling that
defendant did not request any consideration in exchange for the purported
“offer,” nor did he ever pursue it again after the outburst.
Similarly, People v. Magana (1993) 17 Cal.App.4th 1371, also cited by
defendant, is distinguishable. The court there upheld the admissibility of the
defendant’s letter to a fellow gang member asserting that if offered, he would
take a plea bargain for 10 years. (Id. at pp. 1375–1377.) The court held the
letter fell outside the scope of Evidence Code section 1153 because it was
made to a third party uninvolved in plea negotiations. (Id. at p. 1377.) We
have no quarrel with defendant’s reliance on Magana for the general

44
proposition that Evidence Code section 1153 encourages settlement by
encouraging candor in plea negotiations. (Ibid.) Defendant, however, ignores
that his statement was not made in the course of plea negotiations.
In sum, we agree with the trial court that defendant’s written
statement declaring he shot Saucedo did not constitute a “ ‘bona fide offer to
plead guilty.’ ” (Leonard, supra, 40 Cal.4th at p. 1404). Also, as no plea
negotiations were underway, the written document was an “ ‘unsolicited
admission[ ]’ ” (ibid.) that was not made inadmissible by Evidence Code
section 1153 or section 1192.4.18
In any event, any error in admitting the document is harmless. There
is no reasonable probability defendant would have achieved a more favorable
outcome had his admission not been introduced. (Watson, supra, 46 Cal.2d at
p. 836.) Defendant argued to the jury in closing that the statement should be
disregarded. He said it inaccurately described how Saucedo was killed,
noting that Saucedo was not shot in the face. He argued that his former
attorney, Ms. Ryan, was “fabricating case after case with Mr. Harper,” that
this case had dragged on, and that he did not want to return the next day so
he said he would plead guilty. He pointed out that the court’s response was
to tell the reporter not to take down what defendant was saying and to
decline to accept the plea. He added, “And this was 2014. We’re now in 2017.
If for some reason that was looked at as a confession, I can assure you there
would not be a trial here today.” After the court sustained the prosecutor’s
objection to this last remark, defendant noted, “I think I’ve made my point.”

18 By reason of this holding, we do not further discuss the Attorney
General’s argument that Evidence Code section 1153 and Penal Code section
1192.4 have been abrogated by Proposition 8 – the Truth in Evidence
initiative. (Cal. Const., art. I. § 28, subd. (d).)

45
 Indeed, he had: the note inaccurately stated the facts of the crime; the
court proceedings on his case were prolonged, which would cause frustration;
and Judge Mockler had not taken defendant’s statement seriously. There
was never any effort by defendant to change his plea. And, as discussed in
detail ante, the other evidence of guilt—aside from this document—was
strong. Defendant told multiple people that he had killed Saucedo. Castro
saw defendant with a gun immediately after hearing the gunshot that killed
the victim. Defendant and Bradshaw exchanged texts just prior to the
murder and had committed a violent armed robbery together the week before.
After the murder, defendant was seen washing his clothes with bleach. On
this record, exclusion of the challenged evidence would not have resulted in a
more favorable outcome.
D. Failure to Properly Instruct the Jury with CALCRIM No. 336
Defendant contends the trial court erred in refusing to instruct the jury
that the testimony of Beck, Beman, and Crossman should be reviewed with
caution as set forth in CALCRIM No. 336,19 which governs the testimony of
in-custody informants. He further contends that CALCRIM No. 336 as given
with respect to Andrews’s testimony was prejudicially flawed with respect to
how to assess his testimony.

19 CALCRIM No. 336, provides, in part as follows: “View the
(statement/ [or] testimony) of an in-custody informant against the defendant
with caution and close scrutiny. In evaluating such (a statement/ [or]
testimony), you should consider the extent to which it may have been
influenced by the receipt of, or expectation of, any benefits. This does not
mean that you may arbitrarily disregard such (statement/ [or] testimony), but
you should give it the weight to which you find it to be entitled in the light of
all the evidence in the case.”

46
 1. Failure to Designate In-Custody Witnesses as Informants
Preliminarily, as the Attorney General notes, defendant did not request
that Beck, Beman, and Crossman be designated in-custody informants and
did not challenge CALCRIM No. 336 in the trial court. Accordingly, these
claims are forfeited on appeal. (People v. Jones (2014) 223 Cal.App.4th 995,
1001 [failure to seek pinpoint instruction forfeits claim on appeal].) In any
event, these otherwise forfeited claims have no merit.
“A defendant has the right, on request, to instructions that pinpoint the
theory of the defense . . . .” (People v. Kraft (2000) 23 Cal.4th 978, 1063.)
However,“[a] party is not entitled to an instruction on a theory for which
there is no supporting evidence.” (People v. Memro (1995) 11 Cal.4th 786,
868.) It is axiomatic that the court has no duty to instruct on an erroneous
principle of law.
The requested instruction as to Beck, Beman, and Crossman finds no
support in either the record or the law. Section 1127a, subdivision (a),
defines an in-custody informant as “a person, other than a codefendant,
percipient witness, accomplice, or coconspirator whose testimony is based
upon statements made by the defendant while both the defendant and the
informant are held within a correctional institution.” (Italics added.) Section
1127a, subdivision (b), provides that, when such a person “testifies as a
witness, upon the request of a party, the court shall instruct the jury”
including that the “ ‘testimony of an in-custody informant should be viewed
with caution and close scrutiny.’ ” (See People v. Bivert (2011) 52 Cal.4th 96,
118-119 (Bivert) [CALJIC No. 3.20, the predecessor to CALCRIM No. 336,
“adopts the statutory language of section 1127a”]; People v. Hovarter (2008)
44 Cal.4th 983, 997 [section 1127a “requires a special jury instruction
directing juries to give ‘close scrutiny’ to the testimony of informants”].)

47
CALCRIM No. 336 reflects the language of section 1127a. The reason for this
instruction is that, as the Supreme Court noted in Bivert: “In-custody
informant witnesses have no personal knowledge of the crime, but testify
that a defendant made an inculpatory statement to them while in proximity
in a county jail or state prison, often in exchange for favorable treatment by
law enforcement. . . . In-custody informant witnesses testify to a defendant’s
confession of guilt or admission of criminal behavior, and such evidence, if
believed, carries great weight in the determination of guilt. In order to lessen
the possibility of any conviction being based on fabricated testimony, the
Legislature offered additional guidance to juries in criminal cases involving
in-custody informants.” (Bivert, at p. 121.)14
Beck, Beman, and Crossman did not meet the statutory requirements
of in-custody informants because their testimony and statements were not
based on statements defendant made to them while they were in-custody
with him. Defendant concedes as much, but nevertheless argues the
cautionary protections of CALCRIM No. 336 should extend to these witnesses
because they were in custody when they came forward as prosecution
witnesses. Defendant contends Beck, Beman, and Crossman are similar to
in-custody informants because both categories of witnesses anticipate some
benefit in exchange for their testimony. Thus, according to defendant, the
cautionary instruction should be applicable to them based on their
motivation.
We disagree. To require giving the instruction in connection with the
testimony of a percipient witness who incidentally happened to be
incarcerated would contravene section 1127a, subdivision (a), which
specifically excludes a percipient witness from the definition of an in-custody
informant. (See Bivert, supra, 52 Cal.4th at pp. 120–121.)

48
 Additionally, the trial court gave other instructions that adequately
advised the jury how to consider the testimony of Beck, Beman, and
Crossman, who each had credibility issues, including former gang
memberships, drug abuse, and numerous felony convictions. For example,
the jury was instructed with CALCRIM No. 226, which listed, among factors
to be considered in evaluating witness credibility, whether the witness’s
testimony was influenced by bias or prejudice, whether the witness had been
convicted of a felony, and whether the witness was promised immunity or
leniency in exchange for testimony. Additionally, CALCRIM No. 316,
specifically told the jury to consider whether the witness had been convicted
of a felony or committed a crime or other misconduct in evaluating credibility.
Notably, even without the instruction for which he now advocates, defendant
was free to argue to the jury that the testimony given by Beck, Beman, and
Crossman should be viewed with caution because of their self-interest, and
indeed defendant did just that. During closing argument, defendant told the
jury that “when someone snitches, it doesn’t mean that they’re actually
telling on somethin’ that is true.” He explained, “Sometimes people, and
you’ve heard testimony of this, people will say things and do things like this
to get what they call leniency for themselves.” He continued: “You’ve heard
witnesses who were in custody testify they don’t get along with Mr. Harper;
they don’t like Mr. Harper; they’ve heard this about Mr. Harper; they’ve
heard that about Mr. Harper; Mr. Harper told them he did this and that to
somebody in a murder case. [¶] Now, one has to ask themselves, why would
Mr. Harper tell someone he doesn’t get along with anything? And what
motive would someone who doesn’t get along with Mr. Harper have in
testifying against Mr. Harper?”

49
 In sum, we find no error in the trial court’s refusal to give CALCRIM
No. 336 with respect to the testimony of Beck, Beman, and Crossman.
2. Alleged Failure to Instruct the Jury on How to Evaluate
Andrews’s Testimony
Defendant contends that CALCRIM No. 336, as given, was prejudicially
flawed because (1) it was inconsistent about whether Worsten Andrews was
an in-custody informant or whether that was an issue for the jury to decide,
and (2) it failed to tell the jury Andrews’s testimony had to be corroborated
not only to convict defendant for murder, but also to find the special
circumstance and enhancement allegations true.
The instruction at issue read, in pertinent part, as follows: “Worsten
Andrews is an in-custody informant. [¶] View the statements or testimony of
an in-custody informant against the defendant with caution and close
scrutiny. In evaluating such statements or testimony, you should consider
the extent to which it may have been influenced by the receipt of, or
expectation of, any benefits. This does not mean that you may arbitrarily
disregard such statements or testimony, but you should give it the weight to
which you find it to be entitled in the light of all the evidence in the case.
[¶] An in-custody informant is someone, other than a codefendant, percipient
witness, accomplice, or coconspirator, whose statements or testimony are
based on statements a defendant allegedly made while both the defendant
and the informant were held within a correctional institution. If you decide
that a declarant or witness was not an in-custody informant, then you should
evaluate his or her statements or testimony as you would that of any other
witness. [¶] You may not convict the defendant of Murder based on the
statements or testimony of that in-custody informant alone. Nor may you
find an allegation true based on the statements or testimony of that in-
custody informant alone.” (Italics added.)

50
 Defendant argues, and the Attorney General concedes, that the
italicized language should not have been given. Rather, it was designed for
use in situations where the jury is to determine whether a person qualifies as
an in-custody informant. That was not the case here. Andrews was an in-
custody informant as a matter of law, and the instruction clearly stated so.
The Attorney General argues that notwithstanding the error, there is
no reasonable likelihood the jurors concluded Andrews’s testimony did not
require corroboration. (Estelle v. McGuire (1991) 502 U.S. 62, 70–75; People
v. Kelly (1992) 1 Cal.4th 495, 525.) We agree. The jury was advised in
numerous instances that Andrews was an “in-custody informant.” Despite
the inconsistency in the instruction as given, it unambiguously starts out
with the statement that “Worsten Andrews is an in-custody informant.” The
jury was further instructed with CALCRIM No. 301, which stated, “Except
for the testimony of Worsten Andrews, and the statements of an accomplice,
which require supporting evidence, the testimony of only one witness can
prove any fact.” Additionally, during closing argument, the prosecutor told
the jury that Andrews “is an in-custody informant, he fits the legal definition,
and that’s whether you—a witness gains the only information they have
about a crime from a defendant, and they’re both in custody together. And so
there are very special rules that apply to Worsten Andrews, so he has to be
corroborated.” (Italics added.) And, when the prosecutor objected to
defendant’s characterization of Beck and Beman as informants in his closing
statement, the court advised the jury, “As I’ve instructed the jury, the legal
definition of an in-custody informant applies only to Worsten Andrews as a
legal definition. [¶] . . . [¶] So the corroboration requirement does not apply
to the other people he’s naming, only to Mr. Andrews and to any statements
from Mr. Bradshaw . . . .” (Italics added.)

51
 Accordingly, we conclude there is no reasonable likelihood the jury
would have been led astray by the mistakenly included language in
CALCRIM No. 336.
Defendant next complains that the instruction as given failed to
tell the jury that the corroboration requirement for Andrews’s testimony
applied not only to the murder charge but also to the special circumstance
and enhancement allegations. His argument is without merit. The
challenged instruction expressly told the jury: “You may not convict the
defendant of Murder based on the statements or testimony of that in-custody
informant alone. Nor may you find an allegation true based on the statements
or testimony of that in-custody informant alone. [¶] You may use the
statements or testimony of an in-custody informant only if: [¶] 1. The
statement or testimony is supported by other evidence that you believe; [¶] 2.
That supporting evidence is independent of the statement or testimony;
[¶] AND [¶] 3. That supporting evidence connects the defendant to the
commission of the crime or to the allegations.” (Italics added.)
Although the instruction broadly referred to “allegations” and did not
specify “special circumstances” or the other enhancements, the jury received
numerous instructions that delineate these allegations. (See CALCRIM No.
704 [discussing “special circumstance allegation”]; CALCRIM No. 1401
[discussing “the additional allegation that the defendant committed the crime
for the benefit of . . . a criminal street gang”]; CALCRIM No. 3149 [discussing
“the additional allegation that the defendant personally and intentionally
discharged a firearm during that crime causing great bodily injury or death”];
CALCRIM No. 1402 [discussing the “additional allegation” regarding gang-
related firearm enhancement].) In considering the instructions as a whole,
we conclude there is no reasonable likelihood the jury was confused or led

52
astray by the failure to delineate the specific allegations in CALCRIM No.
336. (See, e.g., People v. Brooks (2017) 3 Cal.5th 1, 76 [holding failure to
cross-reference definitions of arson and kidnapping in felony-murder case did
not warrant reversal].)
Further, Andrews’s testimony relating to the gun use enhancement was
also substantially corroborated. He testified that defendant told him he
brought a gun when he went to confront the victim and that he shot him.
Castro testified that when she emerged from the bedroom after hearing the
gunshot, she saw defendant with a gun in his waistband. Beman testified
that defendant told him he shot the victim. Additionally, just hours before
the murder, defendant was seen with a gun.
In light of this evidence, any error in the instruction regarding the
corroboration requirement with respect to the gun use and special
circumstance allegations was harmless.
E. Refusal to Order Witnesses to Refrain from Discussing Case
Defendant contends the court violated his right to a fair trial by
refusing to order all witnesses not to discuss their testimony with one
another.
1. Background
Prior to trial, defendant’s trial counsel filed a motion asking the court
to “order all witnesses to not talk with each other or others, excepting the
deputy district attorney and defense counsel, and their respective
investigators, during the pendency of the trial regarding matters pertaining
to their testimony, including questions asked and answers given.” The
motion was unaccompanied by any argument or legal authority.
At the in limine hearing, the trial court granted the defendant’s routine
motion in limine to exclude non-testifying witnesses from the courtroom

53
under Evidence Code section 777. Defense counsel, however explained that
she also wanted to have the witnesses “admonished not to speak of their
testimony with one another, not [just a] silence order.” The court asked if
counsel had any legal authority supporting such an “out of the ordinary”
request. Counsel replied that she believed it was within the court’s inherent
power to make such an order, but “[i]f the Court wants me to find authority, I
can do so.” The court responded, “Well, my general practice is to refer me to
what the authority is before ruling. If it’s—it may be discretionary, but there
may be factors to consider. [¶] So I would appreciate any authority on that
and I’ll get back to that.” Defense counsel responded, “Reserved.”
2. Analysis
Preliminarily, defendant concedes on appeal that he never obtained a
ruling on the motion. Yet, he claims the trial court erred in its “refusal” to
give this “commonly given instruction[.]” This claim fails. Defendant’s
failure to secure a ruling forfeits the claim on appeal. (People v. Braxton
(2004) 34 Cal.4th 798, 813 [“[A] party may not challenge on appeal a
procedural error or omission if the party acquiesced by failing to object or
protest under circumstances indicating that the error or omission probably
was inadvertent”].) In any event, this otherwise forfeited claim fails on the
merits.
As discussed ante, trial courts have broad discretion to control the
conduct of a criminal trial. (§ 1044.) Defendant implicitly concedes there is
no rule requiring the court to order witnesses not to speak to one another
about their testimony during trial. He also acknowledges that even motions
to exclude witnesses from the courtroom at trial, which are routinely granted,
may be denied at the trial court’s discretion. (People v. Lariscy (1939) 14
Cal.2d 30, 32; People v. Valdez (1986) 177 Cal.App.3d 680, 687; Evid. Code,

54
§ 777, subd. (a) [“[t]he court may exclude from the courtroom any witness not
at the time under examination so that such witness cannot hear the
testimony of other witnesses”]; see People v. Young (1985) 175 Cal.App.3d
537, 541 [noting that by statute, witness exclusion during the preliminary
examination is, on motion of either party, a matter of right, whereas the
court retains discretion to deny exclusion at trial, where witness separation is
less crucial].)
Defendant argues the court abused its discretion in refusing to protect
him from the possibility of the prosecution’s witnesses talking to each other
to “bolster their stories and/or memories, or coordinate their testimony and
thus shore up the weaknesses in their testimony.” However, “abuse of
discretion is not presumed from a silent record, but must be clearly shown by
[defendant].” (People v. Preyer (1985) 164 Cal.App.3d 568, 574; see People v.
Stowell (2003) 31 Cal.4th 1107, 1114.)
Here, defendant points to nothing in the record to support his claims,
but instead relies on generic assertions of likely collusion “based on the fact
that numerous civilian witnesses had relationships with each other,
including their intertwined history of criminal behavior and drug use.” He
further argues “the prosecution’s group of witnesses were more likely to have
memory problems and to be suggestible than witnesses in most criminal
trials . . . where . . . witnesses are strangers to each other.” Although some of
the witnesses in this case knew one another, the trial court had no reason to
believe they would collude with one another to defendant’s detriment, and
defendant’s counsel, who requested the order, offered no evidence or
argument to support such a claim. Defendant’s conjecture does not support
his claim of error.

55
 People v. Griffin (2004) 33 Cal.4th 536, cited by defendant, does not
help him. There, the Supreme Court concluded the trial court did not abuse
its discretion in permitting the murder victim’s mother and sister to remain
in the courtroom during the penalty phase of the defendant’s capital trial
even though they would be testifying. (Id. at pp. 570–571, 574.) Nothing
before the trial court at the time it made its ruling suggested that the
presence of these witnesses posed a substantial risk that either would craft
her own testimony, or cause any other witness to do so. (Id. at p. 574.)
Defense counsel in Griffin asserted only that such a risk existed, but an
assertion of this sort is insufficient to support a claim that the trial court
abused its discretion. (Ibid.; see also People v. Lee (2015) 242 Cal.App.4th
161, 180 [no abuse of discretion in denying defense request to exclude the
victim’s civil attorney from attending the trial where nothing before the court
suggested a substantial risk that the attorney would share information with
the victim about the testimony of other witnesses].)
Likewise here, defendant points to nothing before the trial court at the
time of his request suggesting any of the witnesses would discuss their
testimony with one another. Subsequent events suggested they did not.
Alicia Hammond was friends with Joey Gaeta and Robert Lexer at the time
of Saucedo’s murder in 2008. By 2017, when the case went to trial,
Hammond, who had been a drug user at the time of the crime, had been sober
for over five years and was no longer part of that circle. Lexer did not
remember Hammond and had not seen Gaeta in many years. Vera moved
shortly after the murder and had been sober for eight years. She
remembered Lexer, but not Gaeta or Hammond.
Weathers and Waren clearly did not collude: Weathers was an
uncooperative witness, whereas Waren testified to seeing defendant with a

56
gun a week before the murder and seeing him wash his clothes with bleach in
the morning right after the murder. Contrary to defendant’s assertion,
Andrews and Beman did not know one another. In short, defendant failed to
establish an abuse of discretion.
Finally, to the extent the court abused its discretion by not granting
defendant’s request, there is no reasonable probability defendant would have
achieved a more favorable result absent the error. (People v. Hernandez
(2011) 51 Cal.4th 733, 745; Watson, supra, 46 Cal.2d at p. p. 836.) First,
there is no evidence any of the witnesses discussed their testimony with any
other witness and did so to defendant’s detriment. Second, as discussed ante,
the evidence of defendant’s guilt was strong.
F. Cumulative Error
We reject defendant’s claim of cumulative error. Any harmless errors
we have identified did not, either individually or cumulatively, prejudice him.
Defendant was entitled to a fair trial, not a perfect one. (People v. Cain
(1995) 10 Cal.4th 1, 82.)
G. Failure to Obtain Waiver of Jury Trial on Prior Convictions
Defendant contends he was denied his right to a jury trial on the prior
conviction allegations because the trial court discharged the jury before
obtaining a waiver from him. He argues this amounts to structural error.
We disagree.
1. Background
An information alleged that defendant suffered two prior kidnapping
(§ 207, subd. (a)) convictions that occurred on July 16, 1998. Prior to trial on
the charged offenses, defendant’s defense counsel (Anne Beles) requested
bifurcation of the trial on the prior conviction allegations. Defense counsel

57
advised the court: “We did in the last trial[20] waive jury on that. I did not
discuss that waiver with Mr. Harper before this morning’s date, but I am
assuming that it is likely we would waive jury on the priors like we did last
time.” In granting bifurcation of the prior convictions, the trial court stated
that it would “take a jury waiver when that becomes appropriate assuming
that the defendants wish to waive jury on that.” The minute order
memorializing the in limine hearing states that “Both counsels make a
motion to bifurcate the defendant’s [sic] prior convictions. They have not
waive[d] a jury trial on the priors.” So far as the record shows, defendant did
not explicitly waive a jury, and his defense counsel never again indicated she
was or defendant was still willing to do so.
By the time the jury returned its verdict on August 2, 2017, defendant
was representing himself. After accepting the verdict and polling the jurors
at defendant’s request, the court discharged the jury.
At the November 3, 2017 sentencing, the trial judge asked the
prosecutor about the prior allegations, stating that he did not remember if
they had taken a jury waiver or addressed them previously. The prosecutor
responded that she had moved defendant’s prior convictions packet into
evidence. The court located the packet, which had been submitted without
objection in the trial on the charged offenses. The court then asked
defendant if he had any comments in relation to the prior convictions.
Defendant responded, “I think the Court knows what it’s doing. Court knows
what it’s done all along.” After confirming that both parties had submitted
on the issue, the court found the prior conviction allegations true.

20Defendant had gone to trial on a different case (Case No. A152284,
described above in fn. 3) the previous month with the same prosecutor and
defense counsel.

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 2. Analysis
The right to have the jury decide the truth of a prior conviction
allegation stems from section 1025, subdivision (b), not from the jury trial
provision of article I, section 16 of the California Constitution or the Sixth
Amendment of the United States Constitution. (People v. Vera (1997) 15
Cal.4th 269, 277.) Thus, a defendant may forfeit a claim that his right to a
jury trial on a prior conviction allegation was improperly denied or
improperly waived. (Id. at p. 278 [“[T]he deprivation of the statutory right to
jury trial on the prior prison term allegations does not implicate the state or
federal constitutional right to jury trial. Absent an objection to the discharge
of the jury or commencement of court trial, defendant is precluded from
asserting on appeal a claim of ineffectual waiver of the statutory right to jury
trial of prior prison term allegations”]; People v. Grimes (2016) 1 Cal.5th 698,
737–738 [defendant forfeited a claim of involuntary waiver of jury trial on
prior conviction allegations based on failure to object in the trial court].)
Here, by failing to object, defendant forfeited any claim that the trial court
improperly denied him his right to a jury trial without first advising him of
his rights and taking a waiver. That defendant was representing himself at
the time the trial court discharged the jury is of no moment. Prior to
granting defendant’s motion for self-representation, the trial court advised
him about the perils of self-representation, and expressly advised that he
would be held to the same standards as an attorney; defendant confirmed
that he understood the risks of self-representation.
Even assuming an error with respect to defendant’s limited right to a
jury trial of the prior conviction allegations, the error is subject to the
harmless error analysis under the Watson standard. (People v. Epps (2001)
25 Cal.4th 19, 29.) The California Supreme Court explained in Epps that

59
where the right to jury trial is created by statute, and not the Constitution,
the erroneous denial of a jury trial is subject to the Watson test of harmless
error. (Ibid.) Here, defendant never claimed he was not the person who
committed the prior offenses, and his identity as that person was established
by certified copies of his section 969b prison packet. Given the record before
us, it is not reasonably probable that a different result would have resulted
had the prior conviction allegations been tried before a jury.
H. Sentencing
Defendant argues that the trial court erred in several ways in imposing
this sentence. The Attorney General concedes that there was sentencing
error. The parties, however, disagree about how the sentence should be
calculated.
1. Overview of the Sentencing Issues
The trial court imposed a sentence on the murder conviction, count 1 of
life without parole (LWOP), plus 116 years to life. That sentence had the
following components: a life sentence without parole for the murder with
special circumstances (§§ 187; 190.2); a consecutive term of 75 years to life
(25 years tripled under § 667, subd. (e)(2)(A)(i))21; a consecutive firearm
enhancement of 25 years (§ 12022.53, subd. (d)); two five-year consecutive
prior serious felony enhancements based on defendant’s two prior kidnapping
convictions (§ 667, subd. (a) [10 years]); and two three-year consecutive prior
prison term enhancements (§ 667.5 [6 years]).
In addition, the court imposed a 45-year minimum parole eligibility (15
years tripled under § 667, subd. (e)(2)(A)(i) on the street gang enhancement.

21 The prosecutor requested this specific sentencing structure.

60
 Defendant argues the proper sentence for count 1 should have been
LWOP, plus 25 to life (§ 12022.53, subd. (d)), plus one five-year term under
667, subdivision (a) for the kidnapping priors that were prosecuted together
in case number XX-XXXXXXX, for an aggregate term on the enhancements of 30
years to life (not 116 years to life).
Defendant also argues the court erred in imposing a minimum parole
eligibility period because he was sentenced to life without parole. He
requests the matter be remanded with directions for the trial court to
exercise its discretion to strike the consecutive 25-year firearm enhancement,
which is no longer mandatory as it was at the time of his sentencing. (See
§ 12022.53, subd. (h).)
The Attorney General concedes there were various sentencing errors
that require modification. In the original appellate briefing in this case
before we issued our now vacated opinion, the proper sentence, according to
the Attorney General, should be three terms of LWOP for the murder
conviction with special circumstances, plus 43 years to life, comprised as
follows: one 25-year-to-life term for the firearm enhancement (§ 12022.53,
subd. (d)); one five-year term for the prior kidnapping offenses (§ 667, subd.
(a)); one three-year term for the prison priors (§ 667.5); and a 10-year term
for the gang enhancement under section 186.22, subdivision (b)(1)(C). In
supplemental briefing since the Supreme Court remanded this appeal back to
us in light of Assembly Bill 333, the Attorney General agrees that the gang
enhancement under section 186.22 must be vacated.
We address each of the issues raised with defendant’s sentence and the
statutes that are implicated in each.

61
 2. Sentencing Under Three Strikes Law
Defendant was convicted of first degree murder (§ 187) with special
circumstances (§ 190.2, subd. (a)). Under section 190, subdivision (a), the
punishment for first degree murder is “death, imprisonment in the state
prison for life without the possibility of parole, or imprisonment in the state
prison for a term of 25 years to life.” (Italics added.)
Here, the trial court sentenced defendant to both an LWOP term and
75 years to life (25 years to life tripled under § 667, subd. (e)(2)(A)(i)) for the
same count of murder. Defendant argues, and the Attorney General
concedes, that the proper sentence for the murder conviction in this case was
LWOP, since the prosecution did not seek the death penalty and the special
circumstances allegation was found true. The disagreement lies in the
application of the Three Strikes Law (§§ 667, subds. (b)–(j); 1170.12) to the
LWOP term.
Under the Three Strikes Law a court triples the sentence otherwise
mandated for a “serious” or “violent” felony if it is a defendant’s third such
conviction. (§§ 667, subd. (e)(2)(A)(i), 1170.12, subd. (c)(2)(A)(i)).)
Specifically, the law provides: “If a defendant has two or more prior serious or
violent felony convictions . . . that have been pled and proved, the term for
the current felony conviction shall be an indeterminate term of life
imprisonment with a minimum term of the indeterminate sentence
calculated as the greatest of: [¶] (i) Three times the term otherwise provided as
punishment for each current felony conviction subsequent to the two or more
prior serious or violent felony convictions. [¶] (ii) Imprisonment in the state
prison for 25 years. [¶] (iii) The term determined by the court pursuant to
Section 1170 for the underlying conviction[.]” (§§ 667, subd. (e)(2)(A),
1170.12, subd. (c)(2)(A), italics added.)

62
 As the parties recognize, courts are split on whether this tripling
provision applies when the “term otherwise provided as punishment” is life
without parole. Relying on People v. Smithson (2000) 79 Cal.App.4th 480
(Smithson), People v. Coyle (2009) 178 Cal.App.4th 209 (Coyle) and People v.
Mason (2014) 232 Cal.App.4th 355 (Mason), defendant contends that the
portion of the Three Strikes Law that provides for tripling sentences does not
apply to his LWOP sentence.
The Attorney General relies on another case, People v. Hardy (1999) 73
Cal.App.4th 1429 (Hardy), which held that the Three Strikes Law applies to
double or triple an LWOP sentence, on the theory that such a sentence fulfills
the intent of the Three Strikes Law to ensure longer prison terms (i.e., three
terms of life without the possibility of parole) for those who fall within its
reach. (Id. at p. 1433.) As far as we are aware, no published case follows
Hardy’s interpretation.
In Hardy, Division Two of the Second Appellate District held that the
law did not “expressly describe[ ] how a second strike defendant is to be
sentenced if the current offense is one for which a defendant with no prior
strike would receive a sentence of life without possibility of parole,” but held
that the “stated purpose” of the law meant that the law also requires that
LWOP sentences be doubled. (Hardy, supra, 73 Cal.App.4th at pp. 1433–
1434.)
Defendant argues that Hardy is an “outlier”22 and urges us instead to
follow Smithson, Coyle, and Mason. These cases hold that the statute
excludes LWOP sentences from being doubled or tripled; the Three Strikes
Law permits doubling (§ 667, subd. (e)(1)) or tripling (§ 667, subd. (e)(2)) only

22We have not found any published cases that follow Hardy’s
interpretation of the Three Strikes Law.

63
of the determinate term or minimum term for an indeterminate term.
(Smithson, supra, 79 Cal.App.4th at p. 503; Coyle, supra, 178 Cal.App.4th at
p. 219; Mason, supra, 232 Cal.App.4th at pp. 368–369.) Since an LWOP
sentence is an indeterminate sentence with no minimum term, those courts
found the Three Strikes Law does not apply. (Smithson, supra, at pp. 503–
504; Coyle, supra, at p. 219; Mason, supra, at p. 368.)
We conclude that Smithson, Coyle, and Mason are the better reasoned
decisions. A leading sentencing treatise adopts this view, too. (See Couzens,
et al., Cal. Practice Guide: California Three Strikes Sentencing (The Rutter
Group 2020) ¶ 7:3 [noting that in the absence of Supreme Court guidance
resolving the issue, Smithson and Coyle seem better reasoned].)
Accordingly, we reject the Attorney General’s position that defendant
should have been sentenced to three terms of life without the possibility of
parole. The legal sentence for the single conviction of murder here is a single
LWOP term. We next turn to the enhancements.
3. Prior Serious Felony and Prior Prison Terms Enhancements
As we have described, the information alleged that defendant suffered
two prior serious felony convictions and two prior prison terms in connection
with a1997 kidnapping. The trial court found the allegations to be true and
sentenced defendant to two five-year prior serious felony enhancements
(§ 667, subd. (a)) and two three-year prior prison term enhancements
(§ 667.5, subd. (a)).
Defendant asserts that the trial court erred in imposing two five-year
prior serious felony enhancements (§ 667, subd. (a)) and two three-year prior
prison term enhancements (§ 667.5, subd. (a)) on account of the same two
prior kidnapping convictions. Defendant makes a multi-part argument:
First, he argues that because both prior kidnapping charges were brought

64
and tried in the same case, the trial court should have imposed only one five-
year prior serious felony enhancement (§ 667, subd. (a)). Second, he argues
that the trial court erred in relying on the same prior convictions to impose
both the prior serious felony enhancements (§ 667) and the prior prison term
enhancements (§ 667.5). Asserting that only the greater enhancement should
be imposed, defendant argues the two three-year prior prison term
enhancements should be stricken.
The Attorney General agrees with the first argument that one five-year
prior serious felony enhancement (§ 667, subd. (a)), must be stricken because
the kidnapping convictions on which those enhancements rested were not
brought and tried separately. Based on the same reasoning, the Attorney
General further concedes that one of the three-year prior prison term
enhancements (§ 667.5) must also be stricken because defendant served a
single period of incarceration for these two kidnapping convictions. However,
the Attorney General reasons that because there were two kidnapping
convictions, defendant could still be punished for one prior kidnapping
conviction with a five-year enhancement for a prior serious felony
enhancement under section 667, and punished for the other prior kidnapping
conviction with a three-year enhancement for a three-year prior prison term
under 667.5. We disagree with the Attorney General’s reasoning.
“California law makes plain an intent that certain recidivism be
severely punished.” (People v. Jones (1993) 5 Cal.4th 1142, 1152-1153.)
However, our high court stated: “the voters did not specify that
enhancements under sections 667 and 667.5 were both to apply to the same
prior offense; rather, subdivision (b) of section 667 and the rules of statutory
construction lead us to the opposite conclusion.” (Id. at p. 1153.) Thus, a
particular prior conviction cannot serve as the basis for both enhancements.

65
“[W]hen multiple statutory enhancement provisions are available for the
same prior offense, one of which is a section 667 enhancement, the greatest
enhancement, but only that one, will apply.” (Id. at p. 1150.) Thus, because
the prior prison term enhancements imposed were based on the same
conviction that served as the basis for defendant’s prior serious felony
enhancement, the two prior prison term enhancements must be stricken.
4. Gang Enhancement
Defendant originally argued that the trial court erred in imposing a
minimum parole date pursuant to section 186.22, subdivision (b)(5) because
his term of life without parole contains no anticipated parole date. The
Attorney General agreed that defendant should not have been sentenced
under section 186.22, subdivision (b)(5). The Attorney General contended
that defendant should instead receive an additional 10-year gang
enhancement under section 182.22, subdivision (b)(1)(C). Because we are
vacating the true finding on the gang enhancement, these sentencing issues
are now moot.23

23 Without expressing any opinion as to whether the gang enhancement
should be retried or the likelihood a jury would reach a true finding in light of
Assembly Bill 333, we note for the guidance of the trial court and parties that
it was error to impose the minimum parole term at the original sentencing.
Section 186.22, subdivision (b) establishes alternative methods for punishing
felons whose crimes were committed for the benefit of a criminal street gang.
Section 186.22, subdivision (b)(1)(C) imposes a 10-year enhancement when
such a defendant commits a violent felony. However, subdivision (b)(5)
provides : “Except as provided in paragraph (4), any person who violates this
subdivision in the commission of a felony punishable by imprisonment in the
state prison for life shall not be paroled until a minimum of 15 calendar years
have been served.”
Here, the trial court applied the minimum parole eligibility period
under section 186.22, subdivision (b)(5), which it then tripled under the Three
Strikes Law. In the original briefing on appeal, defendant contended and the

66
 5. Firearms Enhancement
The jury found defendant personally and intentionally discharged a
firearm, proximately causing great bodily injury and death in the commission
of count 1. As a result, the trial court imposed an enhancement of 25 years to
life consecutive to life without parole on count 1. (§ 12022.53, subdivision (d)
(firearm enhancement).)
At the time of defendant’s sentencing, the trial court had no discretion
to strike this firearm enhancement. (People v. McDaniels (2018) 22
Cal.App.5th 420, 424 (McDaniels).) Section 12022.53, subdivision (h), which
became effective on January 1, 2018, now provides that “[t]he court may, in
the interest of justice pursuant to Section 1385 and at the time of sentencing,

Attorney General agreed that the trial court erred in imposing the 45-year-to-
life minimum parole eligibility period term (§ 186.22, subd. (b)(5)) on count 1,
because the sentence on that count was life without the possibility of parole.
We agree it was error to impose a minimum parole eligibility term (and error
to treble it), and it must not be imposed in the event the gang enhancement is
retried and found true. (See People v. Lopez (2005) 34 Cal.4th 1002, 1009-
1010 [noting former section 186.22, subdivision (b)(3), now section 186.22,
subdivision (b)(5), imposes a minimum parole eligibility term of 15 years that
is “understood to apply to all lifers, except those sentenced to life without the
possibility of parole”].)
In the parties’ original briefing on appeal, the second issue in
connection with the gang enhancement was the Attorney General’s alternate
claim that a 10-year consecutive enhancement should be imposed under
section 186.22, subdivision (b)(1)(C). The application of this subdivision was
not raised in the trial court. The Attorney General raised this fallback
position on appeal citing only the statutory language, and neither party
adequately addressed the application of a 10-year gang enhancement
specified in section 186.22, subdivision (b)(1)(C) to a life without the
possibility of parole sentence. For that reason we decline to address it
further.

67
strike or dismiss an enhancement otherwise required to be imposed by this
section.”
Defendant asks us to remand to the trial court to decide whether to
strike the firearm enhancement under section 12022.53, subdivision (h). (See
McDaniels, supra, 22 Cal.App.5th at p. 424 [the discretion conferred
by section 12022.53, subdivision (h) applies retroactively to nonfinal
judgments].) The Attorney General does not address the merits of this
argument; he instead asserts that defendant did not challenge this
component of his sentence. In his reply, defendant contends he raised the
issue “to the extent [he] requested remand.”
Although defendant does not include a separate argument on the
firearm enhancement in his opening brief, we nevertheless conclude he has
preserved the issue in his request for remand. We further conclude that
because the record contains no clear indication that, had it been an option,
the trial court would not have exercised its discretion to strike the firearm
enhancement, the firearm enhancement may be raised on remand.
(McDaniels, supra, 22 Cal.App.5th at pp. 427–428.) We express no opinion
how the court should exercise its discretion on remand.
DISPOSITION
We reverse the true finding on the gang enhancement allegation on
count 1 (§ 186.22, subd. (b)) and remand to the trial court with directions to
(1) give the People an opportunity to retry the enhancement under the law as
amended by Assembly Bill 333; and (2) if the People elect not to retry
defendant, or at the conclusion of retrial, to impose an appropriate sentence.
We remand the matter for resentencing consistent with this opinion.
On remand, the trial court is directed to strike the following components of
defendant’s sentence as to count 1: 1) the 75-year-to-life term (25-year base

68
tripled) imposed under section 667, subdivision (e)(2)(A)(i); 2) one five-year
prior serious felony enhancement imposed under section 667, subdivision (a);
3) both of the three-year prior prison term enhancements imposed under
section 667.5, subdivision (a); and 4) the 45-year minimum parole eligibility
term imposed under section 186.22, subdivision (b)(5). The trial court is
further directed to determine whether to exercise its discretion under section
12022.53, subdivision (h) to strike the firearm enhancement. In all other
respects, the judgment is affirmed. Following resentencing, the trial court is
ordered to amend the abstract of judgment and serve all appropriate agencies
to reflect these changes.

69
 _________________________
Miller, J.

WE CONCUR:

_________________________
Richman, Acting P.J.

_________________________
Stewart, J.

A153332, People v. Harper

70