People v. Pinon CA5

Filed 5/11/22 P. v. Pinon CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,
F080327
Plaintiff and Respondent,
(Super. Ct. No. 17CMS4395B)
v.

CESAR JOSHUA PINON, OPINION
Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Kings County. Michael J.
Reinhart, Judge.
Carla J. Johnson, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L.
Christoffersen and Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff
and Respondent.
-ooOoo-
Cesar Joshua Pinon was convicted of attempted premeditated murder, attempted
robbery, and resisting an executive officer, all arising out of an incident in which he shot
a man after unsuccessfully trying to rob him. The jury also found true gang enhancement
and firearm use enhancement allegations. He was sentenced to an aggregate term of
43 years to life in prison.
Pinon was tried with his co-defendant, Jimmy Zaragoza, who was also convicted
of various offenses arising out of the same incident. Zaragoza’s appeal is addressed in a
separate opinion, our case number F080295. Many of the issues raised in the defendants’
respective appeals overlap.
Pinon raises numerous issues. We conclude that, due to recent legislative
enactments that took effect while his appeal was pending, Pinon is entitled to a remand
for resentencing. We further conclude that, due also to a recent change in the law, the
jury’s findings on the gang enhancement allegations must be vacated and the matter
remanded to afford the prosecution the choice to either retry the allegation or accept a
sentence reduction. Accordingly, we partially reverse the judgment.
STATEMENT OF THE CASE
On March 23, 2018, the Kings County District Attorney filed an information
charging Pinon with attempted premeditated murder (Pen. Code, §§ 664/187, subd. (a);1
count 1), attempted second degree robbery (§§ 664/211; count 2), resisting an executive
officer (§ 69; count 3), misdemeanor resisting or delaying a peace officer (§ 148,
subd. (a)(1); count 4), and misdemeanor possession of burglary tools (§ 466; count 5).2
As to counts 1 and 2, it was alleged Pinon personally and intentionally discharged a
firearm causing great bodily injury (§ 12022.53, subds. (b), (c), (d) & (e)) and that the
crimes were committed for the benefit of, at the direction of, and in association with a
criminal street gang (§ 186.22, subd. (b)(1)(C)).
On September 30, 2019, a jury was empaneled to try the case. On October 4,
2019, the court granted Pinon’s motion to dismiss counts 4 and 5 pursuant to

1 Undesignated statutory references are to the Penal Code.
2 Zaragoza was charged with Pinon in counts 1, 2, 4, and 5.

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section 1118.1. On October 7, 2019, the jury found Pinon guilty on counts 1, 2, and 3,
and found all enhancement allegations true.
On November 5, 2019, the trial court sentenced Pinon to an aggregate term of
43 years to life in state prison, calculated as follows: 15 years to life for attempted
premeditated murder plus 25 years to life for the firearm enhancement, and the upper
term of three years for resisting an executive officer. The court imposed and stayed terms
on the remaining count and enhancements under section 654.
Pinon filed his notice of appeal on November 22, 2019.
FACTS
I. The shooting
B. was a 67-year-old retired schoolteacher.3 On November 7, 2017, a little after
5:00 a.m., B. left his house on his morning bicycle ride. He rode his usual route, making
laps around his neighborhood.
On the corner of 19th Avenue and Cedar, B. saw two young Hispanic men he had
never seen before, talking on the sidewalk. He thought the two men may have been
headed to an early morning practice because they looked athletic.
B. continued on his loop and saw the two men again on Lincoln Lane. It was
unusual for B. to see anyone walking at that time of day and the men were dressed in all
black, which caught B.’s attention. The two men were looking around, so B. crossed the
street to be cautious. One of them then walked diagonally across the street and
approached B. The man, who B. later identified as Zaragoza, walked up and stood in
front of B.’s bicycle. B. thought the two men might be lost and asked, “What’s up?”

3 There was no direct evidence that B. was 67 years old. We obtained his age
from a police report included in the clerk’s transcript. The police report was not shown
to the jury. However, B. testified that he taught for 38 years, and had been retired six
years before the crimes in this case. Assuming he began teaching no earlier than his early
twenties, the jury could easily determine he was at least in his mid-sixties at the time the
crimes occurred.

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Zaragoza replied, “Where’s your wallet?” B. began looking for his wallet, thinking
maybe Zaragoza had found it. When Zaragoza asked for it again, B. realized Zaragoza
was not a good Samaritan and instead wanted his wallet. The second man was standing
about 30 yards down the street, waiting and watching.
B. was shocked and angry and afraid Zaragoza was going to “jump on [him].” He
told Zaragoza to get out of the neighborhood before he and his companion got in trouble.
He looked at Zaragoza, who was standing five feet in front of him, straight in the eyes.
Zaragoza did not reply, and B. decided the conversation was over and began pedaling
away.
As B. was riding away, the other man, who B. later identified as Pinon, came
charging up to B. B. stopped and got off his bicycle. He confronted Pinon and said,
“What do you want? What are you going to do? Let’s do it.” Pinon backed off a little
and looked around for Zaragoza. B. told Pinon, “Let’s go, I’ll kick your fucking ass right
now if you want.” Pinon backed away and B. got back on his bicycle and began riding
away towards home.
As he pedaled away, B. looked back to see what the two men were doing. He saw
Pinon and Zaragoza walking toward each other and heard Pinon tell Zaragoza, “Get my
gun,” or, “Where is the gun.” B. saw Pinon standing next to Zaragoza with his back
toward B. Pinon then turned around and pointed a black handgun at B. B. could see the
barrel of the gun pointed at him. B. heard a bang and felt his arm go numb. He pedaled
home as fast as he could, hoping he could make it home before he died.
B. went inside his house and said to his son, “Hey, I think I got shot.” B.’s son
saw blood all over the floor and his family called 911. B. was airlifted to Community
Regional Medical Center in Fresno. The bullet entered the back of his shoulder and
exited through his upper chest, but no major organs or arteries were damaged. There was
no bullet found.

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 B. was not a gang member and did not live in a gang territory. B. did not know
Pinon and Zaragoza were gang members. Neither Pinon nor Zaragoza made any gang
signs or expressed any gang names during the attempted robbery or shooting.
II. The investigation
Lemoore Police officers responded to B.’s residence and provided first aid.
Before B. was transported to the helicopter pad to be airlifted, he described the two
suspects as Hispanic males wearing dark clothing. The police put a dispatch out about
the shooting, and Lemoore Police Officer Jonathan Diaz saw Pinon and Zaragoza
walking together wearing dark clothing. Diaz knew Pinon from prior contacts.
Diaz exited his marked patrol car and Zaragoza and Pinon went in separate
directions. They ignored Diaz’s commands to stop. Diaz focused on Pinon and radioed
to other officers Zaragoza’s direction of travel. Diaz told Pinon to stop, and Pinon
continued to walk several feet before finally stopping. Pinon dropped the backpack he
was wearing and began emptying his pockets, saying, “I don’t have anything.” Officer
Diaz pointed his gun at Pinon because he knew a gun had been used in the crime.
Detective Jose Ambriz arrived several minutes later, and the officers were able to
handcuff Pinon. There was a 12-pack of beer and some marijuana in Pinon’s backpack,
but officers never found a firearm. Diaz noticed Pinon was unbalanced and emitted a
strong odor of alcohol and believed Pinon was too drunk to care for himself. Diaz
arrested Pinon for public intoxication.
Diaz and Ambriz placed Pinon in the back of a police car, where Pinon began
kicking and screaming. The officers took Pinon out and placed him in a different vehicle.
Pinon told Diaz that if he [Diaz] was going to “act like that” with him, everyone was
“going to pay.” Pinon also told Diaz he knew his family and where they lived. Diaz took
that as a threat because he was from Huron and knew Pinon was part of the Huron Park
Side Nortenos criminal street gang, which he knew to be “very violent.” The threat
scared Diaz, and he took the threat to mean Pinon would hurt his family. Diaz turned his

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camera on and asked Pinon what he meant by the threat, and Pinon answered that that
was all Diaz needed to know.
Another officer apprehended Zaragoza. Zaragoza’s cell phone lock screen showed
a picture of a red bandana folded in the shape of an N with a gun on top of the bandana.
Pinon’s and Zaragoza’s hands were tested for gunshot residue. Particles were found on
Pinon’s hands but not on Zaragoza’s.
Officer found a single spent shell casing in the street on Lincoln Lane and found
footprints in the area that matched the shoes Pinon and Zaragoza were wearing.
III. Tape recording in back of police car
After Pinon and Zaragoza were arrested, a police investigator secretly placed his
recorder in the back of a police car and turned it on. Pinon and Zaragoza were then
placed in the back of that car together by themselves.
On the recording, Pinon could be heard singing, “I’m going to county. I’m going
to county. I’m going to county-bound—county-bound … I don’t give a fuck, either.”
Pinon asked Zaragoza, “What’s your charge? Attempted homicide?” Zaragoza
answered, “Yeah.” Pinon asked, “Did we hit him?” Zaragoza replied, “I guess, yeah.”
Pinon and Zaragoza discussed that they did not think they would be placed in the
same pod together at the jail. They also discussed how they would tell the jail staff they
were “Northern Hispanics,” and discussed the length of time they would likely have to
spend in custody. Zaragoza said, “Man, we’re going to be locked up for a long time, huh,
bro?” Pinon replied, “Yeah, G, we are.” Pinon added, “We just need to take the best
deal, bro,” and, “We fucked up, G.”
Zaragoza asked Pinon, “They tested your fingers? Is it positive for the gun
residue?” Pinon replied, “I don’t know, probably. They already did that shit.” Zaragoza
said, “We gonna be on the newspaper, bro, our face.”

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IV. Gang expert testimony
Kings County Sheriff’s Sergeant Taylor Lopes testified as an expert in the Brown
Pride Nortenos (“BPN”) and Huron Park Side Nortenos (“HPN”) criminal street gangs.
BPN and HPN are two Kings County subsets of the Norteno criminal street gang. BPN is
made up of members from Lemoore and Stratford, and HPN originated in nearby Huron,
but many HPN members had recently begun moving to Lemoore. BPN and HPN are part
of the Norteno hierarchy led by the Nuestra Familia prison gang. Norteno rivals include
Sureno, Crip, and Bulldog gang members.
Norteno gang members are required to pay into the prison gang system a portion
of the money they make through their criminal enterprises. The primary activities of
BPN and HPN include assault, weapons trafficking, narcotics trafficking, human
trafficking, vehicle theft, vandalism, robbery, and witness intimidation. Robberies are
primarily committed to make money for the gang, but also benefit the gang by instilling
fear in the community. Members of BPN and HPN socialize and commit crimes
together, and share unifying symbols and signs—including the color red, the number 14,
and the letter N.
The prosecution presented evidence of several predicate gang offenses, including a
September 2014 incident where Pinon, Zaragoza and others were convicted of assault
with a deadly weapon and robbery. In that incident, the defendants beat up and robbed a
rival Crip gang member. Lopes explained that fear and intimidation is “everything” to a
gang. A gang member committing a robbery gains respect and the crimes bolster their
status in the gang. An armed robbery or a shooting during a robbery increased the fear
and intimidation factors.
Lopes also explained that Norteno gang members commonly engage in witness
intimidation. Members will attend the trials of fellow Nortenos to either dissuade them
from testifying or to make witnesses feel uncomfortable while testifying. Attending the

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trial of a fellow Norteno is also a way for a member to show support for his fellow
member facing trial.
Lopes opined Pinon was a member of HPN and Zaragoza was a member of BPN.
Zaragoza had a number of gang-related tattoos, including “beast” on one hand and
“mode” on the other. “Beast mode” is a common Norteno phrase and tattoo. Zaragoza
also had an “L” tattoo representing Lemoore, which is a common tattoo among BPN
members from Lemoore. Pinon had a large “P” tattoo, common for HPN.
Zaragoza also had multiple prior gang-related police contacts. In April 2014,
Zaragoza was caught graffitiing four dots and “BPN” on a wall at Lemoore High School
and he told a campus supervisor that he “banged.” Zaragoza and Pinon’s Facebook
accounts also contained gang-related content. Zaragoza’s account was under the name
“Jimmy Zaragoza 14” and his profile picture was a red flag with a Huelga bird on it and a
hand displaying an “L” hand sign. The caption on the picture read, “Love my hood
#Lemos BPN.” The Huelga bird is a common Norteno symbol. There was a post on
Pinon’s Facebook account from September 2014 in which he bragged about committing
the assault and robbery that served as the basis of one of the predicate offenses at trial.
The post comprised a photograph with Pinon, Zaragoza, and two other men named
Martin and Nicholas. The photograph depicts the young men posing, and the caption on
the post read: “HpN 2 WcN :: fucked that crab up took hiz shit….#Lil[redacted]
#talkshitNow”.4 “Crab” is a slur Nortenos have for Crip gang members.
Lopez offered an explanation of the audio recording from the back of the police
car when Pinon and Zaragoza were arrested. He explained Pinon and Zaragoza sounded
happy they were going to jail because committing a violent crime elevates one’s status in
the gang. Lopes further opined based on a hypothetical paralleling the facts of this case

4 We inserted the word “redacted” in place of the victim’s full name to protect the
victim’s identity.

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that the attempted robbery and shooting were committed for the benefit of, at the
direction of, and in association with the Norteno criminal street gang. He explained the
robbery would benefit the gang financially by bringing in money and by instilling fear in
the community and rival gangs. Instilling fear in the community and rivals is beneficial
because it allows a gang to control territory and discourages people from reporting crimes
to the police for fear of retaliation. Norteno gang members, as part of their education and
indoctrination in the gang, are directed by gang leadership to commit crimes to benefit
the gang. Lopes also explained that, in the hypothetical posed to him, the gang members
would take the older man’s (which would be B.) standing up to them as disrespect. The
gang members would lose credibility if they allowed the older man to get away with
disrespecting them.
DISCUSSION
Meritorious claims
I. The section 186.22 gang enhancements must be reversed
After sentencing, but while this appeal was pending, the Legislature enacted
Assembly Bill No. 333 (AB 333), which significantly modified the requirements to prove
a gang enhancement under section 186.22, effective January 1, 2022. (People v. Sek
(2022) 74 Cal.App.5th 657, 663, 665 (Sek).) Pinon argues that the amendments apply
retroactively to his case, and that, because the jury convicted him under the prior version
of the law, the gang enhancements must be reversed. The People agree, as do we.
Section 186.22 provides for enhanced punishment when a person is convicted of
an enumerated felony “committed for the benefit of, at the direction of, or in association
with a criminal street gang, with the specific intent to promote, further, or assist in
criminal conduct by gang members[.]” (§ 186.22, subd. (b)(1).)
Before AB 333 was enacted, the statute defined a “ ‘criminal street gang’ ” as “any
ongoing organization, association, or group of three or more persons, … having as one of
its primary activities the commission of one or more [enumerated criminal acts], having a

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common name or common identifying sign or symbol, and whose members individually
or collectively engage in, or have engaged in, a pattern of criminal gang activity.”
(§ 186.22, former subd. (f); Stats. 2017, ch. 561, § 178.) To establish a “pattern of
criminal gang activity,” the prosecution needed to prove only that those associated with
the gang committed two or more predicate offenses within a period of three years and
that the offenses were committed on separate occasions, or by two or more persons on the
same occasion. (Menifee v. Superior Court of Santa Clara County (2020) 57 Cal.App.5th
343, 362.) A predicate offense could be established by evidence of the charged offense,
and, in most cases, it was unnecessary to prove that the predicate offenses were gang
related. (Ibid.; People v. Rodriguez (2022) 75 Cal.App.5th 816, 822 (Rodriguez);
People v. Garcia (2020) 46 Cal.App.5th 123, 165.)
AB 333 increased the evidentiary requirements to prove a gang-related
enhancement in several respects. First, it narrowed the definition of “ ‘criminal street
gang’ ” to “an ongoing, organized association or group of three or more persons …
whose members collectively engage in, or have engaged in, a pattern of criminal gang
activity.” (§ 186.22, subd. (f).) The statute now requires the prosecution to prove that
two or more gang members committed each predicate offense. (People v. E.H. (2022)
75 Cal.App.5th 467, 477 (E.H.).)
Second, AB 333 created stricter requirements to prove “a pattern of criminal gang
activity.” Under the new legislation, (1) the last predicate offense must have occurred not
only within three years of the prior predicate offense, but also within three years of the
date of the currently charged offense; (2) the predicate offenses must have “commonly
benefited a criminal street gang,” and that benefit must be “more than reputational;” and
(3) the currently charged offense cannot be used as a predicate offense. (§ 186.22,
subds. (e)(1)—(2), (g), italics added; People v. Lopez (2021) 73 Cal.App.5th 327, 345
(Lopez); Rodriguez, supra, 75 Cal.App.5th 822—823.)

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 The parties agree, as do we, that AB 333’s changes apply retroactively to Pinon’s
case. Under In re Estrada (1965) 63 Cal.2d 740 (Estrada), absent evidence to the
contrary, we presume that the Legislature intended such ameliorative changes to the
criminal law to apply to all criminal cases not yet final on appeal. (Id. at pp. 744—746;
People v. Nasalga (1996) 12 Cal.4th 784, 792; Tapia v. Superior Court (1991) 53 Cal.3d
282, 301.) AB 333 is an ameliorative amendment that increases the threshold for
imposition of a gang enhancement. (Lopez, supra, 73 Cal.App.5th at p. 345; accord,
People v. Vasquez (2022) 74 Cal.App.5th 1021, 1032.) Because AB 333 is silent
regarding retroactivity, under Estrada, we presume it applies retroactively to all nonfinal
cases on appeal, including this one. (See, e.g., Lopez, at pp. 343—344; Sek, supra,
74 Cal.App.5th at p. 667.)
Here, it is undisputed the evidence presented at trial was insufficient to prove the
gang enhancements under the new law. The People concede this. The People did not
present evidence to prove the offenses commonly benefited the gang in a manner that was
more than reputational. There was evidence the attempted robbery was committed for
Zaragoza’s and Pinon’s financial benefit, but insufficient evidence that crime was to
commonly benefit the gang financially. In addition, the jury was not prohibited from
relying upon the currently charged offenses to establish a predicate offense. Moreover,
under the new law, the last predicate offense must have occurred within three years of the
date of the currently charged offense. Thus, the September 2014 incident could not be
used as a predicate under the new law because it happened more than three years before
the crimes in this case.
In sum, the jury was not asked to, and therefore did not make, the factual
determinations now required to impose a gang enhancement under section 186.22. We
therefore conclude the gang enhancements must be vacated, and the matter remanded to
give the People an opportunity to retry the gang enhancements under the amended law.

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(E.H., supra, 75 Cal.App.5th at p. 480; accord, Lopez, supra, 73 Cal.App.5th at p. 346;
Sek, supra, 74 Cal.App.5th at p. 669; Rodriguez, supra, 75 Cal.App.5th at p. 823, fn. 19.)
Bifurcation
At trial, Pinon joined Zaragoza’s motion to bifurcate trial on the gang
enhancement allegations, which the court denied. He contends this was reversable error
under newly enacted section 1109 and argues his convictions on the underlying offenses
as well as the findings on the enhancement allegations must all be reversed. We disagree.
AB 333 added section 1109, which requires gang enhancements charged under
section 186.22, subdivision (b) or (d) to be tried separately from the underlying charges
upon request from the defense. (Stats. 2021, ch. 699, § 5.) Section 1109 also requires the
substantive offense of active participation in a criminal street gang (§ 186.22, subd. (a))
to be tried separately from all other counts that do not otherwise require gang evidence as
an element of the crime.
Pinon contends section 1109 applies retroactively. This court recently held in
People v. Ramos (Apr. 27, 2022; F080916) __ Cal.App.5th __ (Ramos) that section 1109
applies retroactively to cases not yet final on appeal. (Ramos, at p. [22].) However, the
failure to bifurcate the gang enhancements from the trial on the underlying charges is
reviewed for prejudice under the Watson standard (People v. Watson (1956) 46 Cal.2d
818, 836); that is, reversal is only required if “it is reasonably probable [Pinon] would
have obtained a more favorable verdict in the absence of the gang evidence that would
not have been presented had the gang enhancement been bifurcated.” (Ramos, at
pp. [24—25].)
Here, we cannot conclude Pinon was prejudiced by the failure to bifurcate the
gang enhancements because the evidence of the underlying charges was overwhelming.
B. saw Pinon point a gun at and shoot him, and B. positively identified Pinon in court.
Pinon’s hands tested positive for gunshot residue, and Pinon’s shoeprints were found in

12.
the area. We are not convinced it is reasonably probable Pinon would fare any better on a
bifurcated retrial on the underlying offenses.
II. Assembly Bill No. 124 and Senate Bill No. 567
While this appeal was pending, the Legislature enacted Assembly Bill No. 124
(AB 124) and Senate Bill No. 567 (SB 567), which both became effective January 1,
2022. Among other things, AB 124 establishes a presumption that the trial court will
impose the lower term under specified circumstances, including, as relevant here, when a
defendant was under 26 years of age at the time of the offense and that was a contributing
factor in the commission of the offense. (§ 1170, subd. (b)(6)(B), added by Stats. 2021,
ch. 695, § 5.) SB 567, among other things, generally limits the trial court’s ability to
impose the upper term unless aggravating circumstances have been stipulated to by the
defendant or found true beyond a reasonable doubt by a jury or by the court in a court
trial. (§ 1170, subd. (b)(1), (2), added by Stats. 2021, ch. 731, § 1.3.) Evidence of the
defendant’s prior convictions, in the form of certified records of conviction, is an
exception to this general rule and need not be submitted to a jury. (§ 1170, subd. (b)(3),
added by Stats. 2021, ch. 731, § 1.3.) The parties agree these amendments apply
retroactively to Pinon because his conviction was not final when this legislation took
effect. (See People v. Flores (2022) 75 Cal.App.5th 495, 500.)
Pinon was sentenced to the upper term of three years for resisting an executive
officer (§ 69; count 3). He also received the upper term of three years for the attempted
robbery (§ 664/211; count 2), which was stayed pursuant to section 654. In imposing the
upper term, the court stated:

“Now, the reason for that selection of the upper term, even though
there’s a few aggravating and mitigating factors, the Court did consider the
defendant’s lack of criminal record. However, the predatory nature of this
crime and circumstances of this crime, as I pointed out the callousness and
viciousness of the crime, the danger to human life, the effect that it’s had on
the victim, the victim’s family and the victim—and the community at large

13.
 are of such great weight that notwithstanding the lack of criminal record the
upper term would be warranted.”
It is undisputed the court, in imposing the upper terms on counts 2 and 3, relied on
aggravating factors that were neither admitted nor found true beyond a reasonable doubt.
(See § 1170, subd. (b)(2), added by Stats. 2021, ch. 731, § 1.3.) Further, the court could
not have considered, at the time of sentencing, subdivision (b)(6)(B) of section 1170,
which provides that, “[n]otwithstanding paragraph (1), and unless the court finds that the
aggravating circumstances outweigh the mitigating circumstances that imposition of the
lower term would be contrary to the interests of justice, the court shall order imposition
of the lower term if any of the following was a contributing factor in the commission of
the offense: [¶] ... [¶] (B) The person is a youth, or was a youth as defined under
subdivision (b) of Section 1016.7 at the time of the commission of the offense.” (§ 1170,
subd. (b)(6)(B), added by Stats. 2021, ch. 695, § 5.) A “youth” as defined in
subdivision (b) of section 1016.7 “includes any person under 26 years of age on the date
the offense was committed.” It is undisputed Pinon was 18 years old at the time he
committed his offenses.
We agree with the parties that remand is appropriate so the trial court may fully
resentence Pinon in light of changes effected by AB 124 and SB 567. (See People v.
Buycks (2018) 5 Cal.5th 857, 893 [“on remand for resentencing ‘a full resentencing as to
all counts is appropriate, so the trial court can exercise its sentencing discretion in light of
the changed circumstances’ ”].)
III. Assembly Bill No. 518
The parties also agree Pinon is entitled to the benefit of newly enacted Assembly
Bill No. 518 (AB 518) when he is resentenced.
Prior to its amendment by AB 518, section 654 provided: “An act or omission that
is punishable in different ways by different provisions of law shall be punished under the
provision that provides for the longest potential term of imprisonment, but in no case

14.
shall the act or omission be punished under more than one provision.” (Former § 654,
subd. (a).) AB 518 amended section 654 effective January 1, 2022, to provide, in
relevant part: “An act or omission that is punishable in different ways by different
provisions of law may be punished under either of such provisions, but in no case shall
the act or omission be punished under more than one provision.” (§ 654, subd. (a), added
by Stats. 2021, ch. 441, § 1.) Thus, a trial court is no longer required to impose a
sentence under the crime providing for the longest possible sentence but may sentence a
defendant under any one of the applicable crimes.
Absent a contrary showing, we presume the trial court followed section 654 as it
existed immediately prior to January 1, 2022, in sentencing Pinon. (People v. Mosley
(1997) 53 Cal.App.4th 489, 496—497; Evid. Code, § 664 [presumption that official duty
has been regularly performed].) The current version of section 654 “provides the trial
court new discretion to impose a lower sentence[.]” (People v. Mani (2022)
74 Cal.App.5th 343, 379 (Mani).) As with SB 567, there is no indication that the
Legislature did not intend AB 518 to apply retroactively to a defendant whose case is not
yet final. Accordingly, a defendant whose case is not yet final is entitled to its benefit.
(Mani, at p. 379; Estrada, supra, 63 Cal.2d at pp. 744—746.)
Here, the trial court imposed a term of 15 years to life on count 1 (attempted
murder), plus 25 years to life for the firearm enhancement as to count 1, and the upper
term of three years on count 3 (resisting an executive officer). The court imposed and
stayed sentence pursuant to section 654 on count 2 (attempted robbery) and the remaining
enhancements. In sentencing Pinon, the court was required to follow former section 654
and impose the 15 years to life term of imprisonment from count 1 and stay the lesser
term for count 2. With the passage of AB 518, the trial court now has discretion in this
case to choose a term of incarceration applicable to either count 1 or 2, while staying the
term applicable to the other count. Pinon is entitled to the benefit of AB 518 upon
resentencing.

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IV. Section 12022.53, subdivision (d), enhancement
Pinon claims remand is required so the trial court can consider whether to strike
the section 12022.53, subdivision (d), enhancement or reduce the sentence. The People
agree, as do we.
While this appeal was pending, the Supreme Court issued People v. Tirado (2022)
12 Cal.5th 688 (Tirado), which resolved a split of appellate authority concerning whether
a court may impose a lesser uncharged firearm enhancement under section 12022.53,
subdivisions (b) or (c) after striking a firearm enhancement under subdivision (d). Tirado
concluded that “[w]hen an accusatory pleading alleges and the jury finds true the facts
supporting a section 12022.53(d) enhancement, and the court determines that the
section 12022.53(d) enhancement should be struck or dismissed ... the court may ...
impose an enhancement under section 12022.53(b) or (c).” (Tirado, at p. 700, fn.
omitted.)
The parties agree Pinon is entitled to the retroactive application of the Tirado
decision, which was decided while his nonfinal case was pending on appeal. (People v.
Guerra (1984) 37 Cal.3d 385, 400 [appellate opinion ordinarily governs all cases still
pending on direct review when rendered].) On remand, the trial court shall exercise its
sentencing discretion consistent with Tirado.
Other claims
V. Claim of juror bias
Pinon contends he was deprived of his constitutional right to a fair trial by an
impartial jury because the trial court failed to adequately question jurors regarding
alleged juror intimidation attempts and erroneously denied his two mistrial motions. He
also relatedly claims his counsel was ineffective for failing to request, at the time of the
second mistrial motion, that the trial court individually question each juror regarding the
potential effect of any alleged intimidation. We reject his claims.

16.
 A. Background
On the fourth day of trial, during a recess in the prosecution’s case-in-chief, the
court informed counsel: “[A] female person who was in attendance in this court during
the trial apparently walked out, walked onto the staircase and started taking photos of the
jurors, at least one of the jurors noted that. That person is now in custody going to jail.”
The court then informed the audience: “Ladies and gentlemen who are here, unless you
want to join her, do not in any way use a cellphone to record or document anything that is
going on in this courtroom.”
The jurors returned to the courtroom and the trial court said to them:

“Ladies and gentlemen of the jury, we took a little bit longer, the
Bailiff has informed me that one or more of you may have seen somebody
attempting to take a photograph through that window, that person is now in
custody on their way to jail. As you can see we have put down that shade I
guess is what it is called to prevent anything further. More importantly we
also have additional security. With that in mind do not let that fact or what
happened with that person attempting to take the photographs influence
your decision in this case in any way. That is very important. You cannot
allow that to come into your discussions. You cannot allow that to be
influencing your decision in any way. The reason why I am telling you this
is, one, because you noticed it. And two, to assure you we have taken
appropriate measures to remedy it. But after that you just can’t use it for
any other purpose. If you have any other concerns about your security, just
check with the Bailiff and we’ll make all of you accommodations.”
Later that day, during a recess, Pinon’s counsel moved for a mistrial based on this
incident with the female photographing jurors. Counsel expressed concern the jurors “are
possibly going to use that against our clients, and contribute [sic] it to them even though
the Court did advise them not to.” The court denied the motion, stating: “We have taken
appropriate action, I admonished them not to consider it, I have no reason to believe that
they would not follow my directions. If you wish I could admonish them again and ask
each and every one of those jurors if they can’t follow that admonition.” Pinon’s counsel

17.
declined the offer of additional admonitions and questions, explaining, “I think that
would just draw more attention to it.”
The following morning, juror number four reported he had seen a young woman
who he thought may have been taking photographs of him with her cell phone while he
was outside exercising the morning before. The juror was called into the closed
courtroom—without the other jurors, the defendants, or any spectators present. The juror
reported:

“Usually in the mornings I take my dog for a walk, and then twice a
week I jog the same distance before I take him for the walk. Since the
incident yesterday it came to my mind I thought it was strange there was a
Nissan, dark SUV and there was a female young driver with an iPhone
taking a picture of me. So I thought it was pretty strange because you’re
not supposed to use the phone when driving, and somebody pointed a
camera and I couldn’t tell if she was texting or whether—but it was pointed
at me, so I thought I will just report it.”
The court stated it was good for the juror to report it, and asked: “Is that in any
way going to prevent you from continuing on as a juror?” The juror responded:
“Absolutely not. I mean, I will continue.” The court then stated: “What I need you to do
is two things. One, do not share that with any other jurors. [¶] And second, do not let it
enter into your deliberations or analysis of the case. The case has to be decided based on
the evidence presented here, the arguments of counsel, and the instructions I give you.
[¶] Sir, can you follow that?”
The juror responded he could follow the instructions, but stated: “Unfortunately I
shared the information with the another [sic] juror. I told them that something strange
happened.” The court asked, “So all the other jurors know?” The juror responded that
they did know. The court then told the juror it was not his fault and sent him back to the
jury room.
The court then called juror number seven into the courtroom, who had reported
she was experiencing a hardship due to stress. The courtroom was still “closed” when

18.
juror number seven entered the courtroom. The court told the juror it had learned she had
something she wanted to share, and the juror said she did. The following colloquy
ensued:

“[THE JUROR]: I am just really uncomfortable, because when we
were in here choosing, I gave the name of our business, which is our home.
The address is associated with our home, and there were people in here that
were not just here for jury duty, and I am really uncomfortable about it. I
have children, my house has a big sign in front of it that says the name of
our business on it. I am not—

“THE COURT: Is there anything we can anything to do of lessening
these concerns?

“[THE JUROR]: I am not necessarily—I just don’t know if I could
give a fair judgment based on that because of the act or—that is my
concern. I mean, we already have people taking pictures, and I just can’t—
I have children, and that is my—my address. And I was one of the last
people that was talked to. I said that, and then I was sworn in like almost
immediately after that, so I can’t be sure that anybody that was here
listening didn’t remember that. And I just don’t know if I could be fair,
because I am scared.”
The court then asked the juror if she could still carry out her duties as a juror, and
she said she could not on this case. The court noted she was visibly in tears, and the juror
said she had not been eating very much and not feeling well. The court stated it “will
find by a demonstrable reality that she has indicated she is clearly upset, is unable to
continue to perform her duties as a juror in this case.” The juror told the court she had
not discussed her concerns with any of the other jurors. The court dismissed juror
number seven.
The court then brought the rest of the jurors into the still “closed” courtroom and
swore in an alternate juror.5 The court then told all the jurors:

5We note that the trial court did not tell the other jurors why juror number seven
had been dismissed.

19.
 “All right, thank you. All right, I talked to juror number four seated
in seat number four, he indicated a related incident that he saw yesterday
morning, and he indicated to me that he unfortunately shared that with the
rest of you, sort of similar to what we had yesterday, but I wanted to bring
you all out to make sure that—to again advise you that having learned of
that incident from your fellow juror that you are not to consider that for any
purpose whatsoever. You can’t let it enter into your deliberations to your
discussions, cannot be part of any verdicts reached in this case. Your
verdicts must be based solely on the evidence that is presented here in
court, the exhibits admitted. You will get to hear the arguments of counsel,
and then the jury instructions, which will be the law in this case. It could
only be based on that. Can all of you follow that instruction? Nodding
their head. Anybody indicate they could not follow? No responses. Thank
you for that.”
The judge sent the jury back into the jury room.
Pinon’s counsel moved for a mistrial based on the information received from
jurors number four and seven. Counsel noted juror number seven looked upset, and
argued that the information they received from juror number four about his photograph
being taken, in combination with the incident the day before with the woman in the
courtroom taking pictures of the jurors, made it such that the jurors “[could not] possibly
put that out of their minds.” Counsel asserted the jurors would use this information
against the defendants in reaching verdicts, thereby depriving the defendants of their right
to a fair trial. Zaragoza’s counsel joined the motion.
The court denied the motion, stating: “I specifically questioned the jurors if they
could follow the admonition I gave, they all nodded in the affirmative. No one indicated,
unless they are lying to me, I believe they set that aside and fairly and truly try this case
until the opposite is shown, that motion is denied.”
B. Applicable law and analysis
“An accused has a constitutional right to a trial by an impartial jury.... An
impartial jury is one in which no member has been improperly influenced ... and every
member is ‘ “capable and willing to decide the case solely on the evidence before it.” ’ ”
(In re Hamilton (1999) 20 Cal.4th 273, 293—294 (Hamilton), citations omitted.)

20.
“ ‘ “Because a defendant charged with a crime has a right to the unanimous verdict of 12
impartial jurors ..., it is settled that a conviction cannot stand if even a single juror has
been improperly influenced.” ’ ” (People v. Nesler (1997) 16 Cal.4th 561, 578.)
Juror misconduct may occur where an overt event directly violates actual or
prospective jurors’ duties and admonitions, such as when a juror consciously receives
outside information, discusses the case with nonjurors or conveys improper information
to the other jurors. (Hamilton, supra, 20 Cal.4th at p. 294.) Where the event involves a
claim of juror intimidation, “[a] sitting juror’s involuntary exposure to events outside the
trial evidence, even if not ‘misconduct’ in the pejorative sense, may require similar
examination for probable prejudice. Such situations may include attempts by nonjurors
to tamper with the jury, as by bribery or intimidation.” (Id. at pp. 294—295; accord,
People v. Harris (2008) 43 Cal.4th 1269, 1303 (Harris).) “[A] nonjuror’s tampering
conduct or communication with a sitting juror, usually raises a rebuttable ‘presumption’
of prejudice.” (Hamilton, supra, at p. 295.)
We resolve the question whether an individual verdict must be overturned for jury
misconduct or irregularity pursuant to an objective, substantial likelihood test. (Harris,
supra, 43 Cal.4th at p. 1303.) “Any presumption of prejudice is rebutted, and the verdict
will not be disturbed, if the entire record in the particular case, including the nature of the
misconduct or other event, and the surrounding circumstances, indicates there is no
reasonable probability of prejudice, i.e., no substantial likelihood that one or more jurors
were actually biased against the defendant.” (Hamilton, supra, 20 Cal.4th at p. 296.)
“We independently determine whether there was such a reasonable probability of
prejudice.” (Harris, supra, at pp. 1303—1304.) In making this inquiry, our Supreme
Court has cautioned: “The standard is a pragmatic one, mindful of the ‘day-to-day
realities of courtroom life’ [citation] and of society’s strong competing interest in the
stability of criminal verdicts [citations]. It is ‘virtually impossible to shield jurors from
every contact or influence that might theoretically affect their vote.’ [Citation.].... ‘If the

21.
system is to function at all, we must tolerate a certain amount of imperfection short of
actual bias.’ ” (Hamilton, supra, at p. 296.)
On the basis of this record, we conclude there is no substantial likelihood that the
jurors were actually biased against Pinon or Zaragoza as a result of any of the three
incidents complained of: (1) the woman taking pictures in the courtroom, (2) the woman
purportedly photographing juror number four, and (3) juror number seven’s having to be
dismissed mid-trial due to the stress caused by her home address having been stated in
open court during jury selection. Thus, there was no error in denying both mistrial
motions.
The first mistrial motion was made after the woman was caught taking
photographs in the courtroom. The record is unclear as to who this woman was or as to
the circumstances surrounding the incident. It is unknown whether she was affiliated
with the defendants in any way, whether she was conspicuously or inconspicuously
taking the photographs, or whether she had given menacing or intimidating looks or made
inappropriate gestures to the jurors. The court offered to question each of the jurors
individually regarding their feelings about the incident, but Pinon’s and Zaragoza’s
attorneys both declined the offer. Having refused the court’s offer, Pinon’s argument on
appeal that the jurors were biased against him after this incident is based on pure
speculation the jury was biased against him at the time the first mistrial motion was
made. There is nothing in this record to undermine the trial court’s finding upon the first
mistrial motion that the jurors could follow the court’s admonition and instructions to
decide the case purely on the evidence and to disregard the incident involving the
woman.
The court’s denial of the second mistrial motion, made after jurors number four
and seven were questioned and number seven was dismissed, was also proper. First,
juror number four stated the incident with the woman in the SUV would “absolutely not”
affect his ability to carry out his duties as a juror. Additionally, the jurors were all once

22.
again admonished and instructed to decide the case solely on the evidence, and the court
asked all the jurors together whether anyone could no longer follow that instruction.
None of the jurors said they could not follow the instruction, and nothing in the record
indicates the jurors were not being forthright with the court. Further, juror number seven
stated she had not told any other jurors about the stress she was experiencing, and the
stress she was experiencing was very personalized in nature. She explained the stress
was due to her business address, which was also her home address, having been stated in
open court during jury selection. There is nothing in the record showing that any of the
jurors in the courtroom also had their home addresses stated in open court or harbored
similar worries for their personal protection.
Pinon argues juror number seven specifically referenced a certain male spectator
in the audience who was allegedly in court to intimidate witnesses, but the record does
not support that. Juror number seven said there were other people in the courtroom
besides other prospective jurors at the time she stated her address during jury selection.
There is nothing in the record establishing that certain male spectator was present for jury
selection, nor any other indication of what persons, if any, juror number seven was
concerned about. It is pure speculation to assert she was referring to the male spectator
who the gang expert Lopes testified about.6
We conclude the record indicates no reasonable probability of prejudice, i.e., no
substantial likelihood that one or more jurors were biased against Pinon or Zaragoza at
any point in the trial, except for possibly juror number seven, who was dismissed. The
trial court thus properly denied both mistrial motions.

6 This spectator is fully discussed in section VI of the Discussion, entitled “Claim
of spectator misconduct and witness intimidation”.

23.
 As a related argument, Pinon claims his trial counsel was ineffective for failing to
request a “full evidentiary hearing” when counsel made the second mistrial motion.7
Citing Remmer v. United States (1954) 347 U.S. 227 (Remmer), he contends he was
entitled, upon his request, to a “full evidentiary hearing,” a term he defines as comprising
the trial court questioning each juror individually to uncover any potential bias.8
However, neither Remmer nor any other authority we could find stands for the
proposition that a criminal defendant is ever entitled to demand an individual questioning
of each juror when possible juror intimidation is brought to the court’s attention.
Remmer stands only for the proposition that, in an instance of potential juror tampering,
the trial court must hold a hearing, “with all interested parties permitted to participate,” to
determine whether the incident complained of was harmful to the defendant. (Remmer, at
pp. 229—230.) Remmer does not hold that all the jurors must be questioned individually
during the hearing, and we cannot find any California case so holding. Thus, the legal
basis of Pinon’s ineffective assistance of counsel claim—that counsel was ineffective for
not requesting an individual questioning of all jurors—is invalid because no authority
holds that he was entitled to the type of hearing he describes.
VI. Claim of spectator misconduct and witness intimidation
Pinon argues the court erred in allowing the gang expert, Lopes, to testify that a
spectator was in the courtroom to intimidate witnesses and that a witness was intimidated.
We find no prejudicial error.

7To prove ineffective assistance of counsel, a defendant must show that
(1) “counsel’s performance was deficient,” and (2) “the deficient performance prejudiced
the defense.” (Strickland v. Washington (1984) 466 U.S. 668, 687.)
8While Pinon does not specify whether he means the jurors should be questioned
individually in the courtroom with the others remaining in the jury room, our analysis
would not change in any event.

24.
 A. Background
1. The spectator
On the second day of trial, Lopes was testifying about BPN signs and symbols.
The prosecutor asked Lopes if he had ever seen persons with dot tattoos by their eyes,
and Lopes said he had. The prosecutor then asked Lopes:

“[THE PROSECUTOR]: Can you see the second to the back row on
the right side of the courtroom with the hair up in a bun, can you see his
face?

“[LOPES]: It is hard to see from here, but I saw them when they
walked in.

“[THE PROSECUTOR]: Do you see in [sic] tattoos on his face?

“[LOPES]: Looks like four dots, but I can’t see, I have to get closer.

“[THE PROSECUTOR]: If the Court will allow him to get a little
closer so he could see?

“[THE COURT]: Certainly.

“[LOPES]: Yeah, it is the same one that has been staring at me the
whole time.

“[THE PROSECUTOR]: Did you ever see tattoos like that as a
gang investigator?

“[LOPES]: I do.

“[THE PROSECUTOR]: And what sort of people do you see them
on?

“[LOPES]: Nortenos.

“[THE PROSECUTOR]: So the 14, we already talked about that,
that signifies the Nortenos?

“[LOPES]: Yes.

“[THE PROSECUTOR]: Why four dots?

“[LOPES]: They will put a one and a four for 14.

25.
 “[THE PROSECUTOR]: Is there a particular color that the
Nortenos associate with?

“[LOPES]: Red.

“[¶] … [¶]

“[THE PROSECUTOR]: And fear and intimidation, is that part of
gang culture?

“[LOPES]: Fear and intimidation is everything to gangs….

“[THE PROSECUTOR]: What are some various ways Nortenos try
to instill fear and intimidation within others?

“[LOPES]: You know, threats, assaults. You know, tagging up their
house with graffiti. Shooting at them. Shooting at their house, drive-by
shootings. There is various ways, really anything.

“[THE PROSECUTOR]: You had testified there was an individual
in the room with the four dots on his face, you said he was staring at you?

“[LOPES]: Yeah.

“[THE PROSECUTOR]: Did that catch your attention at all?

“[LOPES]: It is common for other Nortenos to come and try to
intimidate people within the courtroom.”
On the fourth day of trial, the prosecution recalled Lopes after the jury was shown
a video of a jail visit Zaragoza had with multiple people, including the male spectator the
prosecutor pointed out. Lopes testified he recognized the spectator in the video. He
noted from the video that the spectator had an “N” tattoo on his hand and was wearing
red. The following colloquy ensued:

“[THE PROSECUTOR]: Do you recognize him?

“[LOPES]: Yes.

“[THE PROSECUTOR]: Where do you recognize him from?

“[LOPES]: He showed up in court the other day and he had the four
dots on his eye. So again, he was here in the video and in the audience.

26.
 “[THE PROSECUTOR]: What is the significance of a Northerner
assuming he is a Northerner coming to the trial of another Northerner?

“[ZARAGOZA’S COUNSEL]: Objection, he is making
assumptions.

“[THE COURT]: Well, he personally witnessed that person coming,
overruled.

“[PINON’S COUNSEL]: Objection, calls for speculation.

“[THE COURT]: Overruled, he is asking for an expert opinion.

“[LOPES]: I’m sorry, can you say the question again?

“[THE PROSECUTOR]: What is the significance assuming that the
guy in the crutches with the four dots is a Northerner, him coming to the
trial of another Northerner and observing and staring at you?

“[LOPES]: It is significant. They are going to show up. One of the
main things they do is witness intimidation. Witness intimidation, they
don’t want people to show up to testify. They don’t want law enforcement
or anybody else to feel comfortable testifying. And it shows respect he is
here representing and showing support for the defendants.

“[THE PROSECUTOR]: Do active Northerners ever come to court
while victims are testifying?

“[LOPES]: Yes.

“[THE PROSECUTOR]: And for what purpose?

“[ZARAGOZA’S COUNSEL]: Objection, this is way beyond the
scope of expert testimony about what is in the mind of someone else.

“[THE COURT]: Is this part of your general background
information and activities of the gang?

“[LOPES]: Yes, your Honor.

“[THE COURT]: Overruled.

“[LOPES]: Yes, they will. They are here to try and [dis]suade
people from testifying.”

27.
 Notably, the record does not indicate what days, or for how long, the male
spectator was in the courtroom.
2. Lopes’s testimony about Martin
The prosecutor proceeded to ask Lopes questions about the testimony of Martin,
who was one of the persons who committed the September 2014 assault and robbery with
Pinon and Zaragoza and was pictured in Pinon’s September 2014 Facebook post about
it.9 Martin was called as a prosecution witness seemingly for the sole purpose of
authenticating his (Martin’s) record of conviction for the September 2014 offense.
However, Martin was intractable and attempted to “plead the fifth” to most of the
questions asked of him, even though the questions carried no risk of eliciting an
incriminating response. For example, when asked about his juvenile adjudication for the
September 2014 robbery, he answered, “I do not want to incriminate myself. I was
arrested, I was a minor. I didn’t know what I was saying. I didn’t know what I was
doing.”
Martin denied ever being in a gang and denied committing any gang related crime.
He explained that, since his juvenile adjudication, he had “proven [him]self since then
that [he is] not involved in any gang-related activity, and [that he] was never involved in
any of that stuff.” He further stated he has a career and would rather “do that peacefully
without any involvement of whatever you guys got going on here.” Martin’s time on the
witness stand was relatively short. Ambriz testified that in 2014 Martin told him he hung
out with “HPN Northerners,” but had recently moved to Lemoore and started hanging out
with “Lemoore Northerners.”
The following colloquy took place between the prosecutor and Lopes regarding
Martin’s testimony:

9 Martin testified before Lopes was recalled.

28.
 “[THE PROSECUTOR]: Have you ever heard of the term
snitching?

“[LOPES]: Yes.

“[THE PROSECUTOR]: What is snitching first of all?

“[LOPES]: Snitching is when someone cooperates with law
enforcement, testifies against somebody, provides a statement. Gang
members are not allowed to talk, cooperate with law enforcement at all. If
they do, they will potentially be killed, assaulted. And it is the ultimate act
of treason and disrespect to another gang member. It is something that we
deal with on [a] weekly basis.

“[THE PROSECUTOR]: Did anything catch your attention about
[Martin] and how he testified?

“[LOPES]: Yes.

“[THE PROSECUTOR]: What caught your attention?

“[LOPES]: He was scared to testify. He doesn’t want to say who he
is. He—the thing that he says, I don’t want any problems. Like I don’t
want to put myself in a bad position. He has to sit here in front of
everybody and testify knowing he has to go out and live on the streets, that
is something that none of us will truly understand until you interview
somebody who has been targeted by a gang. It is—I can’t even explain the
life that they have to live once that happens. It is horrible.”
Neither defendant objected to Lopes’s testimony about Martin.
B. Relevant law
“ ‘California law permits a person with “special knowledge, skill, experience,
training, or education” in a particular field to qualify as an expert witness (Evid. Code,
§ 720) and to give testimony in the form of an opinion (id., § 801).’ ” (People v. Vang
(2011) 52 Cal.4th 1038, 1044 (Vang).) “ ‘Under Evidence Code section 801, expert
opinion testimony is admissible only if the subject matter of the testimony is “sufficiently
beyond common experience that the opinion of an expert would assist the trier of fact.”
([Evid. Code, § 801], subd. (a).) The subject matter of the culture and habits of criminal
street gangs, of particular relevance here, meets this criterion.’ ” (People v. Gonzalez

29.
(2006) 38 Cal.4th 932, 944 (Gonzalez).) “ ‘Trial courts exercise discretion in
determining both the admissibility of evidence under Evidence Code section 352
[citation] and a witness’s expert status [citation].’ ” (Ibid.)
California courts “have long permitted a qualified expert to testify about criminal
street gangs when the testimony is relevant to the case.” (Gonzalez, supra, 38 Cal.4th at
p. 944.) As particularly relevant here, the Gonzalez court stated: “Whether members of a
street gang would intimidate persons who testify against a member of that or a rival gang
is sufficiently beyond common experience that a court could reasonably believe expert
opinion would assist the jury. ‘It is difficult to imagine a clearer need for expert
explication than that presented by a subculture in which this type of mindless retaliation
promotes “respect.” ’ ” (Id. at p. 945.) Further, “ ‘[e]vidence that a witness is afraid to
testify or fears retaliation for testifying is relevant to the credibility of that witness and is
therefore admissible. [Citations.] An explanation of the basis for the witness’s fear is
likewise relevant to [his or] her credibility and is well within the discretion of the trial
court.’ ” (Id. at p. 946.)
Additionally, an expert may generally “ ‘render opinion testimony on the basis of
facts given “in a hypothetical question that asks the expert to assume their truth.” ’ ”
(Vang, supra, 52 Cal.4th at p. 1045.) However, an expert may not testify about a specific
witness at trial and ultimately offer an opinion about his or her credibility. (Id. at
p. 1047.)
C. Analysis
Pinon contends Lopes rendered two improper opinions. First, he contends Lopes
improperly opined as to the male spectator’s intent to intimidate witnesses. Second, he
contends Lopes impermissibly testified Martin was scared to testify because he was
intimidated. He argues these improper opinions prejudiced him and infected the whole
trial, requiring reversal of the entire verdict. We conclude that there was nothing

30.
improper about Lopes’s testimony about the spectator, and that Pinon’s complaint about
Lopes’s testimony about Martin was forfeited.
1. Regarding the spectator
We first address Lopes’s opinion regarding the spectator. Pinon challenges the
opinion Lopes gave in response to the prosecutor’s question that asked him to assume the
spectator was a Norteno and explain the significance of the spectator’s presence in the
courtroom. He claims this was an impermissible opinion about a person’s intent or other
mental state. But this was not an improper opinion because the question had an obvious
hypothetical basis—that Lopes was to assume the spectator was a Norteno—and Lopes
did not, in response to the question, offer an opinion as to anyone’s intent or other mental
state. The jury was free to determine on its own that the spectator was not a Norteno,
which would have invalidated the factual basis of the opinion.
Pinon also argues it was error to even draw attention to the spectator in the
courtroom because the spectator’s gang member status, relationship to Zaragoza, and his
intentions “were not matters before the court.” First, we observe Lopes never opined the
spectator was a Norteno gang member; Lopes only testified the spectator had common
Norteno tattoos. It would have been for the jury to determine whether the spectator was
in fact a gang member. Next, evidence of the spectator’s gang membership status and
evidence of witness intimidation being a primary activity of Nortenos were relevant to
the evaluation of witnesses’ credibility. “Under Evidence Code section 780, which
concerns the scope of questioning at trial, a jury may consider ‘any matter that has any
tendency in reason to prove or disprove the truthfulness of [a witness’s] testimony[.]’ ”
(People v. Merriman (2014) 60 Cal.4th 1, 84.) The jury was allowed to evaluate the
evidence presented—including the general background information regarding witness
intimidation and the spectator’s tattoos and jail visit with Zaragoza—and determine
whether the spectator was engaging in witness intimidation and, if so, whether it affected

31.
any of the witnesses’ testimony. Pinon has not demonstrated any impropriety with
respect to this testimony.
2. Regarding Martin’s testimony
It is widely recognized that the “failure to object to the admission of expert
testimony … at trial forfeits an appellate claim that such evidence was improperly
admitted. (Evid. Code, § 353, subd. (a); People v. Eubanks (2011) 53 Cal.4th 110, 142
[failure to object to hearsay in expert’s testimony forfeits claim on appeal].)”
(People v. Stevens (2015) 62 Cal.4th 325, 333; see People v. Fuiava (2012) 53 Cal.4th
622, 655 [noting a defendant “ordinarily cannot obtain appellate relief based upon
grounds that the trial court might have addressed had the defendant availed himself or
herself of the opportunity to bring them to that court’s attention”].)
Although Pinon argues he may be excused from this general rule because an
objection would have been futile (See People v. Wilson (2008) 44 Cal.4th 758, 793
[noting a “litigant need not object … if doing so would be futile”]), the circumstances in
no way suggest an objection would have been futile. Specifically, he argues the futility
lies in the fact that the court overruled both defendants’ objections to Lopes’s testimony
regarding the significance of the spectator’s presence in court. He points to Zaragoza’s
objection to the prosecutor’s question of for what purpose do active Nortenos come to
court while victims are testifying, which was made (at least in part) on the ground that the
question called for Lopes to testify about a person’s subjective intent. He argues that
since the court overruled that objection, it would have been futile to object to Lopes’s
statement that Martin was scared to testify. We disagree. Zaragoza’s objection to
Lopes’s testimony about the spectator was properly overruled because it did not call for
an opinion as to the spectator’s intent; as the court indicated, it was a question that asked
for general background information about Norteno activities. Thus, the court did not, by
overruling that objection, permit testimony about a person’s intent or other mental state.

32.
Therefore, the challenge to Lopes’s testimony about Martin being scared to testify was
forfeited.
VII. Cumulative error
Zaragoza contends the cumulative effect of the errors in this case deprived him of
due process and a fair trial in violation of his federal and state constitutional rights.
“ ‘Under the “cumulative error” doctrine, errors that are individually harmless may
nevertheless have a cumulative effect that is prejudicial.’ ” (People v. Loza (2012)
207 Cal.App.4th 332, 365.) There is no error to accumulate.
Moot issues
Pinon raises two other issues that relate only to the gang enhancement findings.
Since we are reversing those findings due to recent legislative enactments, these two
issues are moot and we need not address them. Pinon contends his trial counsel was
ineffective for failing to object (1) to testimony that amounted to witness vouching and
(2) to testimony that amounted to statistical probabilities of guilt.
First, while Lopes was being cross-examined, the following colloquy took place:

“[ZARAGOZA’S COUNSEL]: How many times have you testified
as a gang expert in court?

“[LOPES]: About ten times.

“[COUNSEL]: Out of those ten times did you render an opinion as
to whether or not the crime in the hypothetical you were given, whether or
not it is for the gang?

“[LOPES]: Yes.

“[COUNSEL]: And every one of those occasions isn’t it true that
you testified always that in fact the crime was committed to benefit the
gang?

“[LOPES]: In those cases I testified to, yes.

“[COUNSEL]: Have you ever testified on—as a gang expert where
you did not opine the crime was committed for the gang, and the benefit of?

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 “[LOPES]: Usually that is dealt with before the case even goes to
court.

“[COUNSEL]: So the answer is no?

“[LOPES]: No.”
On redirect, the following exchange took place between Lopes and the prosecutor:

“[THE PROSECTOR]: Now [Zaragoza’s counsel] also asked you if
every time you have testified as a gang expert are you testifying that it is
for the benefit of a gang and you said, no, that gets dealt with before court.
If it is not for the benefit of a gang, could you explain that?

“[LOPES]: Yeah, I review every gang case that comes for—before
it goes to the DA’s Office, and I am well known amongst our guys of
denying those cases, I have kicked back over a hundred cases that weren’t.
They were committed by gang members, but they’re not being able to be
prosecuted for that, or wasn’t going to be at the benefit of or association
with, they were committed by gang members, but they weren’t cases to go
to trial.”
Pinon contends Lopes’s explanation that how he “kicks” cases involving crimes
committed by gang members but not for a gang purpose was inadmissible because Lopes
effectively testified that he knew the crimes in this case were committed for a gang
purpose, or else he would have said so before the case was even submitted for
prosecution. Neither defendant objected at trial.
Second, when Lopes was recalled as a witness and was on cross-examination, the
prosecutor asked: “Now wouldn’t it be accurate to say that if individuals who are
committing a crime for the benefit of a gang are not essentially advertising who they are,
nobody is going to give credit to that gang?” Lopes replied, “No, they want their own
credit.” The prosecutor inquired, “So it is personal?” Lopes answered:

“No, they want their own credit within that gang. The people that
they rob don’t give them credit. It is them putting in work. More than
60 percent if not higher of the crimes—gang crimes that we investigate,
they do not brag about who they are, they report back to their gang about
the work that they did. Because if they do every robbery, and every crime
is a red rags, we’re Nortenos and all the work they put in for the gang, if

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 they advertise who they are, law enforcement is coming for them. They
know that heat is going to come for them. Again that is—you know, it is
more or less of a thing of the past. It still happens, but you see that on the
TV more than in reality.”
Pinon contends this testimony impermissibly offered a statistical probability of
guilt relevant to the gang enhancement allegations. Again, neither defendant objected at
trial.
Both issues are moot. An issue “is moot when any ruling by this court can have
no practical impact or provide the parties effectual relief.” (Woodward Park
Homeowners Ass’n v. Garreks, Inc. (2000) 77 Cal.App.4th 880, 888.) We have vacated
the gang enhancement findings on another ground, and therefore no additional benefit
can accrue to Pinon by addressing either of these alternative grounds for reversal.
DISPOSITION
The jury’s true findings regarding the gang enhancements under section 186.22,
subdivision (b)(1), are stricken. Pinon’s sentence is vacated and this matter is remanded
for further proceedings. The prosecution shall have the option to retry Pinon regarding
the alleged gang enhancements. If the People do not bring Pinon to retrial within 60 days
of filing the remittitur in the trial court pursuant to section 1382, subdivision (a)(2), or
obtain a waiver of time by Pinon, the trial court shall resentence Pinon accordingly. At
resentencing, the trial court shall exercise its discretion under AB 124, AB 518, SB 567,
and Tirado. In all other respects, the judgment is affirmed.

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 SNAUFFER, J.
WE CONCUR:

LEVY, ACTING P. J.

POOCHIGIAN, J.

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