People v. Casares CA5

Filed 6/29/22 P. v. Casares 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
F079797
Plaintiff and Respondent,
(Super. Ct. No. BF174063A)
v.

JESUS CASARES, OPINION
Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Kern County. David R. Zulfa,
Judge.
Alex Green, 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, Carlos A.
Martinez, Darren K. Indermill and Jeffrey D. Firestone, Deputy Attorneys General, for
Plaintiff and Respondent.
-ooOoo-
 INTRODUCTION
After forcing his way into an apartment on October 8, 2018, defendant Jesus
Casares grabbed an 11- to 12-inch pointed nail and held it up as if to stab victim R.H.1 A
jury convicted defendant of burglary, assault with a deadly weapon, and resisting a police
officer and found true allegations a nonaccomplice was present during the crime and that
the crimes were committed for the benefit of a gang.
Defendant contends on appeal that (1) the evidence was insufficient to support his
conviction for assault with a deadly weapon because defendant failed to “do anything”
with the nail before he was disarmed by R.H., (2) the trial court erred in failing to define
“deadly weapon” in its instruction to the jury, and (3) we should strike five 1-year prior
prison term enhancements in light of recent amendments to Penal Code2 section 667.5,
subdivision (b). In supplemental briefing, defendant contends that we should reverse the
true finding on defendant’s five-year gang enhancements in light of recent amendments
to section 186.22, overturn his conviction, and remand for retrial in light of recently
enacted section 1109, which requires bifurcation of the gang enhancement when
requested by a defendant.
The People concede that defendant is entitled to the benefit of recent amendments
to sections 667.5 and 186.22 but oppose retroactive application of section 1109 and argue
that any failure to bifurcate was harmless in any event. We accept the People’s
concession but reject defendant’s remaining arguments. We shall strike the prior prison
term enhancements, reverse the true findings on the gang enhancements, and remand for
further proceedings but affirm the judgment otherwise.

1 Pursuant to California Rules of Court, rule 8.90 and for clarity and convenience because
some individuals share a last name, we refer to certain persons by their first names and/or
initials. No disrespect is intended.
2 Undesignated statutory references are to the Penal Code.

2.
 PROCEDURAL BACKGROUND
The District Attorney of Kern County filed an information on October 25, 2018,3
charging defendant with burglary of an inhabited dwelling with intent to commit a felony
(§ 460, subd. (a); count 1), assault with a deadly weapon (§ 245, subd. (a)(1); count 2),
and resisting a police officer (§ 148, subd. (a)(1); count 3), a misdemeanor. As to
count 1, the amended information further alleged that another person, other than an
accomplice, was present in the apartment during the burglary, making the offense a
violent felony (§ 667.5, subd. (c)(21)). As to both counts 1 and 2, the amended
information alleged that the crimes were committed for the benefit of a criminal street
gang (former § 186.22, subd. (b)(1)) and that defendant had a prior “strike” conviction
within the meaning of the “Three Strikes” law (§§ 667, subds. (c)–(j), 1170.12,
subds. (a)–(e)), a prior serious felony conviction (§ 667, subd. (a)), and served five prior
prison terms (former § 667.5, subd. (b)).
On April 25, 2019, after a nine-day trial, the jury convicted defendant of all
charges and found true all enhancements. Defendant waived a jury determination on his
prior convictions, and the trial court found true the prior conviction allegations.
On July 11, 2019, the trial court denied probation and sentenced defendant to the
upper term of 12 years in prison as to count 1 (§§460, subd. (a), 667, subd. (e)), plus
10 years (former § 186.22, subd. (b)(1)), plus five years (§ 667, subd. (a)), plus five years
(former §667.5, subd. (b)), for a total term of 32 years. As to count 2, the trial court
sentenced defendant to an upper term of eight years (§§ 245, subd. (a)(1), 667, subd. (e)),
plus five years (former § 186.22, subd. (b)(1)) but stayed the term pursuant to

3 The information was later amended on April 25, 2019, to correct clerical errors in
describing defendant’s prior convictions.

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section 654. As to count 3, the trial court sentenced defendant to a concurrent term of
one year (§ 148, subd. (a)(1)).4
The court imposed a $10 crime prevention fine (§ 1202.5), a $300 restitution fine
(former § 1202.4, subd. (b)), a stayed $300 parole revocation restitution fine (§ 1202.45,
subd. (a)), victim restitution as determined by probation (former § 1202.4, subd. (f)),5 an
aggregate $120 court operations assessment (§ 1465.8), and an aggregate $90 criminal
conviction assessment (Gov. Code, § 70373).6
This timely appeal followed on August 14, 2019.
FACTS
In the afternoon of October 8, 2018, police performed a probation search at Jessica
Barraza’s apartment in Bakersfield (the apartment). Phillip Aguilar, who was a member
of the Colonia Baker street gang, Ruth M., and Ruth’s child also resided there. The
apartment was used by several people to socialize, drink, and use drugs. During the
search, Officers Nicole Madsen and Kyle McNabb noticed that the two doors to enter the
apartment were not damaged. Barraza was arrested after the search.

4 The July 11, 2019 minute order erroneously reflects that the trial court sentenced
defendant to 180 days in county jail and not one year. However, the trial court imposed a
concurrent sentence of 180 days in case No. BV009736A for defendant’s violation of postrelease
supervision after sentencing defendant on the instant case. The trial court shall amend the
minute order to reflect the court’s oral pronouncement of one year as to count 3. When a
discrepancy exists between a trial court’s oral pronouncement of judgment and the minute order,
the oral pronouncement controls. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
5 The court ordered probation to determine the amount of restitution and that it be paid to
the Restitution Fund in the State Treasury for California Victim Compensation and Government
Claims Board reimbursement to the victim (former § 1202.4, subd. (f)(2)).
6 The July 11, 2019 minute order fails to reflect that the trial court ordered defendant to
pay a $40 court operations assessment (§ 1465.8) and a $30 criminal conviction assessment
(Gov. Code, § 70373) as to count 2. The trial court shall amend the minute order to reflect the
court’s oral pronouncement of the aggregate $120 court operations assessment (§ 1465.8) and
aggregate $90 criminal conviction assessment (Gov. Code, § 70373). (See People v. Mitchell,
supra, 26 Cal.4th at p. 185.)

4.
 R.H. was inside the apartment later that evening. While in the bedroom, he heard
banging on the living room door.7 R.H. heard defendant angrily demanding to be let into
the apartment and Ruth’s voice responding. Within a minute or two, the banging stopped
and R.H. heard the door open. Defendant had kicked in the door. R.H. then heard
defendant yelling and rambling while inside the apartment.
As R.H. left the bedroom, he picked up an 18-inch crowbar from the hallway in
order to protect himself, Ruth, and her child as he entered the room where defendant was
standing. As they moved toward the kitchen, defendant picked up an 11-inch nail,
approximately two to three centimeters thick, and used it to try to intimidate R.H.
Defendant held the nail in a low and ready position with the head close to his wrist and
approximately nine inches exposed with the pointed end toward R.H. as if to stab him.
Defendant was upset and accused R.H. of trying to run him out of the apartment.
Later, while outside, defendant told R.H. that he would have stabbed R.H. with the nail.
R.H. told defendant that if defendant intended to do something, then to just do it. R.H.
testified, “I felt that either I’m going to get stabbed with the nail, or I could take it from
him, or I could either hit him with the crowbar and we can go on from there.” R.H. felt
defendant would stab him if he was not quick enough. R.H. distracted defendant and
grabbed the nail from him. R.H. either pushed defendant from the apartment or verbally
ordered him out. While defendant was angry and verbally resisted, he did leave the
apartment and was only inside for a minute or two.
R.H. followed defendant, who was still angry and yelling, outside with the
crowbar. R.H. next saw that defendant had a knife and yelled that he wanted to have a
knife fight. R.H. went back into the house and heard defendant yelling with Carmen H.
outside. Ruth was on the telephone with the police.

7 The apartment has two doors—one leads into the kitchen and the other leads into the
living room. The kitchen door is accessed from an alleyway on the side of the apartment but
does not actually open.

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 R.H. did not know that defendant was a member of a gang but learned it that night
when defendant yelled that he was from Los Primos, a subset of the Loma Bakers, and
that there was no point in trying to prevent what was going to happen because of his
status. R.H. did not want to testify and was in custody because he violated a court order
to remain in the courthouse to testify the prior week.
Carmen arrived at the apartment in the evening. She testified that she was under
the influence of drugs at the time and found it difficult to remember the events of that
evening. Defendant, looking upset and angry, was knocking on and hitting the screen
door for at least 30 minutes. He was trying to get into the house. Carmen told the police
that defendant had caused the damage to the door but testified that the screen door had
been damaged before that and allowed people to put their hands through the screen to
turn the knob.
Carmen also saw defendant trying to get into the apartment from the screen door
that opened into the alley and jumping up and down on a van that was parked there. She
never saw defendant enter the apartment. R.H. was arguing with defendant from inside
the apartment through the door. Defendant yelled out “Loma,” the name of the local
gang, while banging on the door. Defendant also yelled out, “I’m going to get you,
motherfucker.” She did not know if defendant saw the police or not, but after a police car
arrived, he was gone.
Responding to the apartment again later that evening in her patrol car, Officer
Madsen saw three individuals in the alley, illuminated by lights of a nearby store.
Defendant ran, and she chased him on foot, into the apartment complex where two other
officers apprehended him.
Officer McNabb, upon returning that evening, noted that the metal access door on
the west side now was damaged in the area of the wire netting near the knob and the
wooden door had splintered and showed signs of forced entry. Officer McNabb

6.
encountered defendant at the front of the apartment. During the conversation that
followed, defendant admitted to being a member of the Loma Bakers and claimed he still
had a good reputation and respect within the gang. Defendant also told Officer McNabb
that area was defendant’s “hood” and he would act if something was happening that he
did not like. When asked why he was at the apartment, defendant said that he went there
to see his girlfriend, Monica Hernandez, because he was concerned that she was involved
in criminal activity at the apartment. Defendant explained that he used to hang out at the
apartment until the criminal activity commenced. Defendant then alluded that sexual
misconduct involving children was taking place at the apartment. He said that he was
fine with girl on girl and boy on boy, but not when it involves children, and that he did
not want Monica involved in that activity.
Defendant also expressed unhappiness that someone had called the police. Officer
McNabb testified that defendant felt disrespected and said, “But I’m not gonna—I’m not
gonna let these mother fuckin’ people fuckin’ rat me out like that and think that—that—
that—that I’m cool with that. Nah, I’m not cool with that. There’s a lot of things going
on on these whole fucki’ streets, you know .…” However, defendant denied kicking in
the door or entering the apartment and said he was trying to visit his girlfriend.
Officer McNabb interviewed both Carmen and R.H. At that time, he saw the nail
at the apartment, which was approximately 12 inches long. The nail had a sharp end
capable of stabbing and a head at the other end (for receiving blows from a hammer).
Officer McNabb testified that Carmen did not appear to be under the influence of drugs at
the time that he spoke with her, but she was flustered, distraught, and afraid. She was
hesitant to answer questions or be perceived as a “snitch.” Carmen told Officer McNabb
that defendant kicked in the door to the apartment. She saw defendant stabbing the
screen door with a knife and heard defendant yelling that he would stab R.H. Carmen

7.
also reported that defendant repeatedly yelled, “Loma,” and yelled at R.H., “I’ll get you
motherfucker.”
The parties stipulated that the Loma Bakers is a criminal street gang within
meaning of section 186.22. In addition to defendant’s admission to Officer McNabb that
he was a member of the Loma Bakers, defendant also previously admitted he was a
member of the Loma Bakers to a police officer in December 2011. Two officers who had
contacted defendant in January and December 2011 testified that defendant had “Bakers”
tattooed on his stomach, elbow, and left arm and also had “LP” (Los Primos, a subset of
the Loma Bakers) tattooed on his leg and right arm. Bakersfield police officers also
testified that defendant had “Hillside” (another subset of the Loma Bakers) tattooed on
his upper lip.
Officer Christian Hernandez provided expert testimony that the Loma Bakers gang
is a Sureño Hispanic gang in Bakersfield. He described the geographical boundaries of
the gang, its hierarchy, and the manner in which a gang benefits from the crimes of its
members. Officer Hernandez testified that the Loma Bakers is involved in criminal
activities, including assaults with deadly weapons, threats, auto thefts, witness
intimidation, and burglaries. Officer Hernandez explained how such crimes will deter
witnesses from reporting those and other crimes. He further explained that gang
members will become violent and retaliate if not given proper respect.
Officer Hernandez also described the symbols and tattoos associated with the gang
and the subsets of the gang, including Hillside. He later testified as to tattoos possessed
by defendant that demonstrate his association and membership in the gang. Officer
Hernandez testified as to the gang-related significance of defendant’s statements
regarding his neighborhood during the crimes and that the location of the crimes were
within the gang’s territory. Defendant’s references to “Loma” during the crimes
indicated that defendant was “representing” the gang and intimidating witnesses so they

8.
would not report his crimes. Officer Hernandez testified that Carmen’s memory lapses
while testifying could be an indication that she was frightened of the gang. Officer
Hernandez described his efforts to obtain R.H.’s presence at court and R.H.’s reluctance
to testify and concluded it was consistent with the fear that a gang instills to prevent
witnesses from cooperating in the prosecution of gang members.
Monica testified that defendant was her boyfriend and they had been together
since being introduced by her cousin, Barraza, in 2016. Monica had lived there for a few
months in 2018, but by October 2018 she would go there to smoke weed and drink.
About noon on October 8, 2018, Monica and defendant were at the apartment, as were
R.H., Ruth, and Barraza. She and defendant argued because defendant believed she was
unfaithful. She was very upset and left the apartment after telling Barraza she was
leaving. Barraza called Monica later, while in custody, and asked Monica to return to the
apartment. Monica returned and saw defendant with the police.
Ace Pierce, a private investigator and bail bondsmen, testified for defendant and
provided his expert opinion that defendant’s crimes were not committed for the benefit of
the gang because it was a personal domestic matter. Pierce admitted, however, that if a
gang member yelled the name of a gang while committing the crime, then the gang
member was there representing the gang.
DISCUSSION

I. The Evidence Was Sufficient to Support Defendant’s Conviction for Assault
with a Deadly Weapon

A. Standard of Review and Law
“In considering a challenge to the sufficiency of the evidence to support an
enhancement, we review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence—that is, evidence that is reasonable,
credible, and of solid value—from which a reasonable trier of fact could find the

9.
defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in
support of the judgment the trier of fact could have reasonably deduced from the
evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings,
reversal of the judgment is not warranted simply because the circumstances might also
reasonably be reconciled with a contrary finding. [Citation.] ‘A reviewing court neither
reweighs evidence nor reevaluates a witness’s credibility.’ ” (People v. Albillar (2010)
51 Cal.4th 47, 59–60.) “ ‘A reversal for insufficient evidence “is unwarranted unless it
appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to
support’ ” the jury’s verdict.’ ” (People v. Penunuri (2018) 5 Cal.5th 126, 142.)
“Any person who commits an assault upon the person of another with a deadly
weapon or instrument other than a firearm shall be punished .…” (§ 245, subd. (a)(1).)
“As used in section 245, subdivision (a)(1), a ‘deadly weapon’ is ‘any object, instrument,
or weapon which is used in such a manner as to be capable of producing and likely to
produce, death or great bodily injury.’ [Citation.] Some few objects, such as dirks and
blackjacks, have been held to be deadly weapons as a matter of law; the ordinary use for
which they are designed establishes their character as such. [Citation.] Other objects,
while not deadly per se, may be used, under certain circumstances, in a manner likely to
produce death or great bodily injury. In determining whether an object not inherently
deadly or dangerous is used as such, the trier of fact may consider the nature of the
object, the manner in which it is used, and all other facts relevant to the issue.” (People
v. Aguilar (1997) 16 Cal.4th 1023, 1028–1029.)
The Supreme Court, in the case In re B.M. (2018) 6 Cal.5th 528 (In re B.M.),
clarified the law with respect to assault with a deadly weapon when the object used is not
an inherently deadly weapon and distilled three principles to be applied in such cases:
(1) “the object alleged to be a deadly weapon must be used in a manner that is not only
‘capable of producing’ but also ‘ “likely to produce death or great bodily injury” ’ ” (id. at

10.
p. 533);8 (2) consideration as to whether a serious injury was likely (even if it did not
come to pass) must rest on evidence of how the object was actually used and not
“conjecture as to how the object could have been used” (id. at p. 534);9 and (3) “limited
injury or lack of injury may suggest that the nature of the object or the way it was used
was not capable of producing or likely to produce death or serious harm,” even though
actual injury is not necessary for conviction (id. at p. 535).

B. Analysis
Viewing the evidence in the light most favorable to the judgment, as we must, we
conclude defendant used the nail in a manner capable of causing and likely to result in
great bodily injury. Here, defendant kicked in the door to the apartment to gain entry and
then yelled angrily in the living room. He picked up an 11- to 12-inch nail and held it in
a low and ready position, with the pointed end at R.H., obviously to use as a weapon
while confronting R.H., who was holding a crowbar. R.H. testified that defendant was
upset at R.H. and believed defendant wanted to intimidate him. R.H. further testified that
defendant held the weapon in such a way to suggest that defendant intended to stab him
with it. Because they were so close together, R.H. thought he would be stabbed if he did
not take the nail from defendant. Defendant admitted that he intended to stab R.H. An
officer who saw the weapon testified that it could definitely be used to stab someone.

8 The court rejected the Attorney General’s arguments that “likely to produce” essentially
meant “possible” or “increasing the likelihood” of (“[a]n increase in likelihood from impossible
to unlikely, for example, does not show that the object was likely to cause serious harm”) and
requires more than a mere possibility that serious injury could have resulted from the way the
object was used. (In re B.M., supra, 6 Cal.5th at pp. 533–534.)
9 “Although it is inappropriate to consider how the object could have been used as opposed
to how it was actually used, it is appropriate in the deadly weapon inquiry to consider what harm
could have resulted from the way the object was actually used” and “necessarily calls for an
assessment of potential harm in light of the evidence. As noted, a mere possibility of serious
injury is not enough. But the evidence may show that serious injury was likely, even if it did not
come to pass.” (In re B.M., supra, 6 Cal.5th at p. 535.)

11.
 Defendant acknowledges that he “picked up the nail in reaction to [R.H.] holding
the crowbar at ‘a high ready position’, and then pointed it at [R.H.] while standing in a
low ready position, trying to intimidate Hurtado.” He argues, however, because “there is
no evidence that [he] did anything with the nail until [R.H.] took it from him,” the
evidence does not show that defendant used it in a manner that was capable of, and likely
to, produce death or great bodily injury. We disagree.
Reading the facts in favor of the jury’s verdict, defendant broke into the apartment
and brandished an 11- to 12-inch pointed nail within striking distance of R.H.,
demonstrating an intent to use it as a weapon to stab R.H. (See People v. McCoy (1944)
25 Cal.2d 177, 193 [“ ‘The drawing of a weapon is generally evidence of an intention to
use it.’ ”].) Holding the 11- to 12-inch pointed nail in a low and ready position
constitutes actual use of the object in a manner capable of producing and likely to
produce death or great bodily injury. “It was not necessary that the prosecution introduce
evidence to show that [defendant] actually made an attempt to strike or use the [nail]
upon” R.H. in order to convict defendant of assault with a deadly weapon. (Id. at p. 189,
italics omitted.)
In McCoy, the defendant held a knife suspended above the victim’s face and said,
“ ‘Don’t make any noise or I’ll use this knife.’ ” (People v. McCoy, supra, 25 Cal.2d at
p. 182.) The victim was able to free herself, and the defendant never made a stabbing
motion at her, but the Supreme Court upheld his conviction of assault with a deadly
weapon. (Id. at pp. 190–192.) The court found that these circumstances justified the
conclusion that the defendant “had the ability to commit a violent injury with the knife”
even without “[p]roof of an attempt to strike or use the knife” (id. at p. 191) because
defendant’s “intent as evidenced by his actions was for the jury to decide” (id. at p. 192).
Similarly, in People v. Bernal (2019) 42 Cal.App.5th 1160, the victim testified that he
first saw Bernal with a knife when he would not move out of Bernal’s way, “ ‘So at that

12.
point when he brandished the knife I probably backed up about a foot or two.’ ” Bernal
also asked, “ ‘Do you want to do this?’ ” and the jury could “reasonably conclude that the
car owner would likely have been touched with the knife had he not moved out of the
way.” (Id. at p. 1168; see People v. Vorbach (1984) 151 Cal.App.3d 425, 429 [rejecting
the defendant’s argument that “the mere display of the knife without an affirmative
attempt to commit a battery (i.e., a lunge)” was insufficient evidence as a matter of law to
sustain a conviction].)
In People v. Chance (2008) 44 Cal.4th 1164, the Supreme Court discussed this
concept in relation to “the present ability element” and its contemplation of an
“ ‘immediate’ injury.’ ” (Id. at p. 1171.) The court explained that “ ‘[t]he intention must
be to commit a present, and not a future injury, upon a different occasion. The acts done
must be in preparation for an immediate injury.’ ” (Ibid., quoting People v. McMakin
(1857) 8 Cal. 547, 548.) “Thus, it is a defendant’s action enabling him to inflict a present
injury that constitutes the actus reus of assault. There is no requirement that the injury
would necessarily occur as the very next step in the sequence of events, or without any
delay. The McMakin court noted that assault does not require a direct attempt at
violence. (McMakin, supra, 8 Cal. 547 at p. 548.) ‘There need not be even a direct
attempt at violence; but any indirect preparation towards it, under the circumstances
mentioned, such as drawing a sword or bayonet, or even laying one’s hand upon his
sword, would be sufficient.’ (Hays v. The People (N.Y. Sup.Ct.1841) 1 Hill 351, 352–
353, cited in McMakin, at p. 548.)” (Chance, at p. 1172.) Therefore, when defendant
picked up the nail and held it “low and ready” with the pointed end toward R.H., he
committed a sufficient “act” for purposes of assault because “when a defendant equips
and positions himself to carry out a battery, he has the ‘present ability’ required by
section 240 if he is capable of inflicting injury on the given occasion, even if some steps

13.
remain to be taken, and even if the victim or the surrounding circumstances thwart the
infliction of injury.” (Chance, at p. 1172.)
R.H. testified that defendant was upset, wanted to intimidate him, used the nail in
a way suggesting that defendant intended to stab him, and was close enough that
defendant could have stabbed him. R.H. thought defendant would stab him if he did not
take the nail from defendant, and defendant later admitted he intended to stab R.H. The
jury was free to credit R.H.’s testimony that defendant used the nail in a manner likely to
produce great bodily injury.
Defendant’s reliance on the facts of In re B.M., supra, 6 Cal.5th 528 to urge a
different result is unavailing. In that case, the court addressed whether the evidence was
sufficient to prove that a butter knife was a deadly weapon. As part of the analysis, the
court noted that the knife used was a butter knife, which was “not sharp and had slight
ridges on one edge of the blade.” (Id. at p. 536.) Here, defendant used an 11- to 12-inch
pointed nail that could pierce R.H.’s body. B.M. used the knife on her sister’s legs
(which were covered by a blanket) and, therefore did not use the knife in a manner that
hurt, or could have hurt, her sister. In In re B.M., the defendant completed her battery but
there was no evidence that B.M. attempted to use the knife on any exposed part of her
sister’s body and the “moderate pressure that B.M. applied with the knife was insufficient
to pierce the blanket, much less cause serious bodily injury to [her sister].” (Ibid.) The
court found relevant that B.M. focused use of the knife on the area of her sister’s body
covered by the blanket as an indication that she did not use or intend to use the butter
knife as a deadly weapon. (Ibid.) The nature of the weapon (a rounded butter knife) was
only capable of and likely to inflict great bodily injury if B.M. used the knife in the area
of her sister’s face, but B.M. used the knife on her sister’s legs, which were covered with
a blanket that the knife would never be able to penetrate. Here, defendant had not yet
completed the battery, and stabbing R.H. anywhere was likely to cause him great bodily

14.
injury in view of the pointedness of the nail and its length. Defendant’s 11- to 12-inch
nail was pointed enough to pierce R.H.’s body, R.H.’s body was not protected by
anything that would have stopped the progress of the nail had defendant made contact,
R.H. believed he would be stabbed, and defendant admitted he intended to stab R.H.
To be guilty of assault with a deadly weapon, defendant must do an act with an
object that “by its nature would directly and probably result in the application of force to
a person” (CALCRIM No. 875), and that object must be capable of producing and likely
to produce death or great bodily injury based upon the manner in which defendant
actually used it and the resulting injury that could or did result. (In re B.M., supra,
6 Cal.5th at pp. 533–535.) The jury, therefore, looks both to defendant’s act with the
object and then whether the act would have resulted in the use of force on the person that
could and would likely cause great bodily injury or death. Defendant’s argument
conflates both inquiries and would result in the need for a completed battery in order to
determine whether the requisite level of injury occurred. An act that results in an
incomplete battery is unlikely to meet the requirements of In re B.M., as defendant
interprets the case. Defendant in this case grabbed the 11- to 12-inch pointed nail and
held it in a threatening manner to use it to stab R.H. If defendant stabbed R.H. with the
nail, it would be both able to and likely to inflict great bodily injury or death if it pierced
any part of R.H.’s body.
We believe this case is similar to People v. Simons (1996) 42 Cal.App.4th 1100
(Simons), a case the Supreme Court cited with at least implicit approval in In re B.M.
(See In re B.M., supra, 6 Cal.5th at pp. 535, 538.) Simons held several armed police
officers at bay with a screwdriver (Simons, at p. 1106), an object the court described as
“not an inherently deadly weapon” (id. at p. 1107). Although instructed to drop the tool,
Simons flailed it about and urged the officers to shoot him. (Id. at p. 1106.) On those
facts, the court found that for purposes of the crime of exhibiting a deadly weapon to

15.
prevent arrest (§ 417.8), “[t]he evidence clearly demonstrated that the screwdriver was
capable of being used as a deadly weapon and that [Simons] intended to use it as such if
the circumstances required.” (Simons, at p. 1107.)
Like a screwdriver, an 11- to 12-inch nail is not an inherently deadly weapon. But
like the defendant in Simons who used the screwdriver to keep police officers at bay,
defendant grabbed the nail during his angry encounter with R.H. and held it in such a way
to be ready to use it to stab R.H. As with Simons, defendant did not actually strike R.H.
so there were no resultant injuries because R.H. was able to disarm him. But, as the
Supreme Court made clear in In re B.M., we may consider the injuries that likely would
have resulted from the way defendant actually used the nail. (In re B.M., supra, 6 Cal.5th
at p. 535.) From the way defendant wielded the nail, we conclude there was more than a
mere possibility R.H. would have suffered great bodily injury if defendant had succeeded
in striking him and, therefore, the evidence supports the conclusion defendant used the
nail in a manner that was both capable of producing and likely to produce great bodily
injury. (See id. at pp. 534–535.)
An object can be a deadly weapon even if it does not actually produce a deadly
result or grievous injury; there are many cases affirming convictions of assault with a
deadly weapon when the object used was “some hard, sharp, pointy thing that was used
only to threaten, and not actually used to stab.” (People v. Page (2004) 123 Cal.App.4th
1466, 1471–1472 [pencil held against throat was a deadly weapon]; see People v. Hughes
(2002) 27 Cal.4th 287, 383 [“four-inch-long sharp and pointed pin, described as ‘lethal’
under certain circumstances, qualified as a deadly weapon”]; In re D.T. (2015)
237 Cal.App.4th 693, 699–700 [knife with a sharp blade more than two and one-half
inches long]; People v. Simons, supra, 42 Cal.App.4th at pp. 1106–1107 [screwdriver a
deadly weapon when brandished at police officers]; People v. Savedra (1993)
15 Cal.App.4th 738, 741 [sheriff’s deputy opined that rusty unsharpened, unaltered nail

16.
with about three inches of the nail sticking out from toilet paper handle was a “ ‘shank,’ a
jail-made device used for stabbing or slashing”]; People v. Harris (1950) 98 Cal.App.2d
663 [a six-inch, steel chisel with broken wooden handle and sharpened point]; People v.
Crenshaw (1946) 74 Cal.App.2d 26, 27 [six-inch beveled file].)
The record thus contains substantial evidence defendant assaulted R.H. with an
object that was both capable of producing and likely to produce great bodily injury if
used to stab R.H. as defendant intended.

II. The Trial Court’s Error in Instructing the Jury as to the Elements of Assault
With a Deadly Weapon Was Harmless
Defendant argues that the trial court committed instructional error by failing to
define “deadly weapon” for the jury. The People concede the error. However, we agree
with the People that the error was harmless beyond a reasonable doubt.

A. Background
The trial court instructed the jury with CALCRIM No. 875 on assault with a
deadly weapon in relevant part as follows:

“One, [] defendant did an act with a deadly weapon, other than a
firearm, that by its nature would directly and probably result in the
application of force to a person;
“Two, [] defendant did that act willfully;

“Three, when [] defendant acted, he was aware of facts that would
lead a reasonable person to realize that his act, by its nature, would directly
and probably result in the application of force to someone;

“Four, when [] defendant acted, he had the present ability to apply
force with a deadly weapon to a person;

“And five, [] defendant did not act in self-defense.”
CALCRIM No. 875 includes several bracketed sections that the court did not include
when instructing the jury including, as relevant here, the following:

17.
 “[A deadly weapon other than a firearm is any object, instrument, or
weapon [that is inherently deadly or one] that is used in such a way that it is
capable of causing and likely to cause death or great bodily injury.]

“[An object is inherently deadly if it is deadly or dangerous in the
ordinary use for which it was designed.]

“[In deciding whether an object is a deadly weapon, consider all the
surrounding circumstances.]” (CALCRIM No. 875, italics omitted,
brackets in original.)
The Bench Notes to CALCRIM. No. 875 direct the trial court to provide the
bracketed definitions where relevant and cautions that the phrase and definitions relating
to an “inherently deadly” weapon should not be given unless the weapon is inherently
dangerous as a matter of law. (Judicial Council of Cal., Crim. Jury Instns. (2020) Bench
Notes to CALCRIM No. 875, p. 629.)

B. Standard of Review and Applicable Law
Trial courts have a sua sponte duty to instruct “ ‘on those general principles of law
that are closely and openly connected with the facts before the court and necessary for the
jury’s understanding of the case.’ ” (People v. Simon (2016) 1 Cal.5th 98, 143.) A court
is not required to define commonly used words with no technical meaning peculiar to the
law in the absence of a request. (People v. Nguyen (2015) 61 Cal.4th 1015, 1050–1051.)
Where the nonlegal meaning of a word or phrase is different from that of its legal
meaning, the court is required to clarify the meaning for the jury. (People v. Jennings
(2010) 50 Cal.4th 616, 670.)
Defendant argues, and the People concede, that the trial court erred when it did not
define the term “deadly weapon” for the jury because the nail was not an inherently
deadly weapon. The failure of the court to adequately instruct on the requirement that
defendant must have used the nail as a weapon had the effect of removing from the jury’s
consideration an element of the crime. The trial court’s failure to instruct the jury on the
definition of deadly weapon is subject to harmless error analysis under the standard of

18.
Chapman v. California (1967) 386 U.S. 18, 24 (Chapman). (See Neder v. United States
(1999) 527 U.S. 1, 9–10, 15–16.) Under the Chapman standard, we “must determine
whether it is clear beyond a reasonable doubt that a rational jury would have rendered the
same verdict absent the error.” (People v. Merritt (2017) 2 Cal.5th 819, 831.) “[I]n order
to conclude that an instructional error ‘ “did not contribute to the verdict” ’ within the
meaning of Chapman [citation] we must ‘ “find that error unimportant in relation to
everything else the jury considered on the issue in question, as revealed in the record” ’
[citation].” (People v. Brooks (2017) 3 Cal.5th 1, 70.)

C. Analysis
In this case, we have no difficulty concluding that any error in failing to instruct
the jury on the definition of a deadly weapon was harmless.
In the first place, the “deadly weapon” element of the charge was not substantially
disputed at trial, and to the extent it was discussed by the prosecutor in closing argument,
the prosecutor emphasized what defendant did with the nail, what he intended to do with
it, and the great bodily injury that would have resulted if defendant had stabbed R.H. The
prosecutor argued that defendant “went up, picked this up, and pointed it at [R.H.] ready
to stab. Keep in mind, this is all in the same instance as [defendant] is yelling, ‘I’m going
to get you, motherfucker,’ ” The prosecutor argued further that defendant grabbed the
nail to stab R.H. in close enough proximity that R.H. could take it from him, “So yes,
[defendant] did do an act that by its nature would probably and directly result in the
application of force to a person.” The prosecutor also stated, “Absolutely [defendant]
could have hurt [R.H.] with that if he had been stabbed in the stomach, or the chest, or the
neck. Any place with that nail, that’s going to cause some serious injuries.” The
prosecutor emphasized the size of the nail, its pointedness and the manner defendant used
it. (See People v. Jennings, supra, 50 Cal.4th at p. 678 [the prosecutor’s discussion of the
missing element a factor to consider in determining prejudice].) Accordingly, if indeed

19.
the jury reached the conclusion that defendant’s nail was a deadly weapon, it would have
been because the jury agreed it was used such that it was, in fact, “capable of causing and
likely to cause death or great bodily injury.” (CALCRIM No. 875; see People v.
Aledamat (2019) 8 Cal.5th 1, 14–15 [instructional error harmless because, in determining
whether box cutter was inherently deadly, the jury necessarily would have found so “in
the colloquial sense of the term—i.e., readily capable of inflicting deadly harm—and that
[the] defendant used it as a weapon”]; cf. People v. Pruett (1997) 57 Cal.App.4th 77, 86
[trial court did not err in failing to define deadly weapon because “[j]urors can certainly
employ common sense and experience to determine whether or not such a knife is a
‘deadly’ instrument”].)
Furthermore, defendant did not dispute the capability of or likelihood of the nail to
cause great bodily injury but focused on whether defendant’s act would have directly
resulted in the application of force: “We can argue all we want, but you won’t get any
instruction that says, hey, if I stand here within inches of you with an 11-inch nail, that is
the act that is in this statute.” “I’m telling you if you don’t have an act with [an] 11-inch
nail, you should not find that there was an assault that happened,” “but there’s no
[testimony] that [defendant] moved forward with this. That he did anything but he
grabbed [the nail] and held it.” Defense counsel further told the jury, “So my argument is
no, you have to have something, otherwise, you may have brandished or something else,
but you don’t have an assault.”
Defense counsel also claimed that defendant was defending himself against R.H.
and acknowledged that defendant “looked, saw the [nail] and pulled up this nail in
response to this crowbar.” Defense counsel argued, “Is it reasonable for me to arm
myself just in case [R.H.]’s so mad that I’ve got to do something to show I’m—you just
can’t clock me? Yes.” Defense counsel then argued that “the law is going to require
something more than picking up something and holding it at the ready when another

20.
person has their crowbar at the ready” and that defendant did not try to strike R.H. with
the crowbar.
By agreeing that defendant picked up the nail to defend himself and held it in a
manner consistent with that purpose, defense counsel did not challenge the capability or
likelihood that the nail would have caused bodily injury but argued that holding the nail
was not an act that would result in force being used against R.H. Had defendant wanted
to dispute whether the nail was a deadly weapon, he could have done so. (See People v.
Merritt, supra, 2 Cal.5th at p. 832 [“ ‘[W]here a reviewing court concludes beyond a
reasonable doubt that the omitted element was uncontested and supported by
overwhelming evidence, such that the jury verdict would have been the same absent the
error, the erroneous instruction is properly found to be harmless.’ ”].)
Moreover, the jury would have found the nail was a deadly weapon anyway if it
had been instructed properly. Defendant grabbed the nail during his angry encounter
with R.H. and held it in such a way to be ready to use it to stab R.H. Defendant grabbed
the nail to use to stab, and the length and pointedness of the nail was capable of and
likely to cause great bodily injury when used that way. There is no reasonable doubt that
the jury found, or would have found, that defendant used the nail in a manner “capable of
causing and likely to cause death or great bodily injury,” as required by CALCRIM
No. 875. (See People v. Brown (2012) 210 Cal.App.4th 1, 13 [ample evidence that the
defendant used a BB gun in a manner capable of inflicting and likely to inflict great
bodily injury, as well as arguments of counsel, left no reasonable doubt the jury found the
defendant guilty “on this basis and not because it concluded the BB gun, regardless of the
manner in which it was used, was ‘inherently dangerous’ ”].)
Defendant argues the error was not harmless because there was evidence that R.H.
disarmed defendant before being stabbed, providing reasonable doubt as to whether the
nail was capable of and likely to cause death or great bodily injury. While defendant’s

21.
assault eventually ended after being disarmed, that does not negate the capability and
likelihood of death or great bodily injury during his encounter with R.H. if he had
stabbed R.H. anywhere, given the ability of the nail to pierce the human body and the
length of the nail to do so deeply.
We conclude that any error in failing to define deadly weapon for the jury was
harmless beyond a reasonable doubt and did not contribute to the verdict.10

III. Assembly Bill No. 333

A. Section 186.22
Effective January 1, 2022, Assembly Bill No. 333 (2021–2022 Reg. Sess.)
(Assembly Bill No. 333) amended section 186.22 to require proof of additional elements
to establish gang enhancements. (Stats. 2021, ch. 699, § 3.) Defendant contends that the
amendments to section 186.22 apply retroactively to his case and that we must reverse
the true findings on the gang enhancements because he was convicted under a prior
version of the law.11 The People concede that the amendments apply retroactively. We
agree and reverse the true findings on the gang enhancements.
1. Applicable Law
A defendant who commits a felony “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” is subject to increased punishment upon
conviction. (§ 186.22, subd. (b)(1).) As noted above, defendant’s sentence included
enhancements under a former version of this provision. Imposition of a gang

10 In light of this conclusion, we do not reach defendant’s alternative argument that trial
counsel rendered ineffective assistance of counsel in failing to request instruction on the
definition of a deadly weapon.
11 On November 19, 2021, defendant filed a request that we take judicial notice of the
legislative history underlying amendments to section 186.22. We grant this request. (Evid.
Code, §§ 452, 459; Cal. Rules of Court, rule 8.252.)

22.
enhancement now requires proof of additional elements, including that the charged
offense must have “commonly benefited a criminal street gang” (§ 186.22, subd. (e)(1))
where the “common benefit … is more than reputational” (id. subd. (g)). With respect to
common benefit, the new legislation explains: “[T]o benefit, promote, further, or assist
means to provide a common benefit to members of a gang where the common benefit is
more than reputational. Examples of a common benefit that are more than reputational
may include, but are not limited to, financial gain or motivation, retaliation, targeting a
perceived or actual gang rival, or intimidation or silencing of a potential current or
previous witness or informant.” (Ibid.)
Under In re Estrada (1965) 63 Cal.2d 740, “[w]hen the Legislature has amended a
statute to reduce the punishment for a particular criminal offense, we will assume, absent
evidence to the contrary, that the Legislature intended the amended statute to apply to all
defendants whose judgments are not yet final on the statute’s operative date.” (People v.
Brown (2012) 54 Cal.4th 314, 323, fn. omitted.) The Supreme Court has expanded the
application of this doctrine broadly “ ‘to statutes changing the law to the benefit of
defendants’ ” and held that the presumption of retroactivity applies to laws that change
the substantive requirements for an enhancement in the defendant’s favor. (People v. Sek
(2022) 74 Cal.App.5th 657, 666 (Sek), quoting Tapia v. Superior Court (1991) 53 Cal.3d
282, 300–301 [applying recently passed initiative requiring proof of intent to kill for
certain special circumstance allegations retroactively to the defendant’s case that was not
yet final].)
2. Analysis
“At least one of the amendments in Assembly Bill No. 333 clearly meets the
requirements for retroactivity as outlined by these cases: To prove that a defendant
committed a felony ‘for the benefit of, at the direction of, or in association with a
criminal street gang’ (§ 186.22, subd. (b)(1)), the new law requires the prosecution to

23.
show that ‘the common benefit [to the gang] is more than reputational.’ (§ 186.22,
subd. (g), enacted by Assem. Bill No. 333 (Stats. 2021, ch. 699, § 3).) The law thus
redefines the enhancement for the benefit of the defendant.… [A]nd it therefore applies
retroactively under [In re ]Estrada.” (Sek, supra, 74 Cal.App.5th at p. 667; see People v.
Ramirez (2022) 79 Cal.App.5th 48, 63–64; People v. Perez (2022) 78 Cal.App.5th 192,
206; People v. Ramos (2022) 77 Cal.App.5th 1116, 1127–1128 (Ramos); People v.
Rodriguez (2022) 75 Cal.App.5th 816, 822–825; People v. Burgos (2022) 77 Cal.App.5th
550, 563; People v. E.H. (2022) 75 Cal.App.5th 467, 478–481; People v. Delgado (2022)
74 Cal.App.5th 1067, 1086–1088; People v. Vasquez (2022) 74 Cal.App.5th 1021, 1032–
1033; People v. Lopez (2021) 73 Cal.App.5th 327, 345–348.)
The People concede that the proof offered at trial does not satisfy the new
requirements of Assembly Bill No. 333 as it did not prove that defendant specifically
intended to promote, further, or assist in criminal conduct by gang members in a manner
that was “ ‘more than reputational’ ” as section 186.22, subdivision (g) now requires.
Defendant argues that we should strike the enhancements without remand because the
evidence did not show that the benefit to the gang was more than reputational. The
People disagree, as do we.
The proper remedy is to remand to give the prosecution an opportunity to retry the
gang enhancements under current law. (People v. Shirley (1982) 31 Cal.3d 18, 71 [retrial
permitted where posttrial change in law invalidates certain evidence because prosecution
proved its “case under the law as it then stood,” having “had little or no reason to produce
other evidence of guilt”]; People v. Figueroa (1993) 20 Cal.App.4th 65, 71–72 & fn. 2
[remand appropriate to allow prosecution to establish additional element retroactively
added by statutory amendment]; People v. Lopez, supra, 73 Cal.App.5th at p. 346
[vacating gang enhancements in light of Assem. Bill No. 333 and remanding for limited
retrial]; People v. Rodriguez, supra, 75 Cal.App.5th at pp. 823–824 & fn. 19 [same];

24.
People v. E.H., supra, 75 Cal.App.5th at p. 481 [same]; People v. Delgado, supra,
74 Cal.App.5th at p. 1091 [same]; People v. Vasquez, supra, 74 Cal.App.5th at p. 1033
[same]; Sek, supra, 74 Cal.App.5th at p. 669 [same].)
We therefore conclude that the gang-related enhancement findings must be
vacated and the matter remanded to give the People the opportunity to prove the
applicability of the enhancements under the amendments to section 186.22.

B. Section 1109
1. Background
Defendant moved to bifurcate trial on the gang enhancements from the underlying
offenses. The trial court heard defendant’s motion on April 11, 2019. Defense counsel
argued that gang evidence was tangential to the offenses, which were motivated by
defendant’s argument with his girlfriend, Monica, and his attempt to contact Monica at
the residence while intoxicated. Defense counsel acknowledged that defendant’s facial
tattoo and his gang-related statements during the crime were admissible as evidence on
the underlying offenses. The prosecutor argued that this evidence was relevant to the
charge of burglary12 and assault with a deadly weapon.
The trial court denied the motion after determining that the prejudicial effect of the
evidence would not outweigh its probative value (“[t]he probative value seems to have a
potential to be significant in this case”) and would be admitted as evidence of the
underlying offenses. The trial court indicated that it would provide a limiting instruction
to the jury that would mitigate the potential for improper prejudice and improper use of
the evidence by the jurors.

12 Defendant was charged with burglary with intent to commit a felony and the jury was
instructed that defendant intended to commit assault with a deadly weapon, assault likely to
inflict great bodily injury, battery with serious bodily injury, and criminal threats.

25.
 Defendant 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.
2. Applicable Law
Assembly Bill No. 333 also added section 1109 to the Penal Code. (Stats. 2021,
ch. 699, § 5, eff. Jan. 1, 2022.) As relevant here, under section 1109, in a case where a
gang enhancement finding is alleged, the defense may demand a bifurcated trial such that
“[t]he question of the defendant’s guilt of the underlying offense shall be … determined”
before any “further proceedings to the trier of fact on the question of the truth of the
enhancement.” (§ 1109, subd. (a)(1)–(2).)
The parties dispute whether section 1109 is also retroactive. Two cases have held
that section 1109 is not retroactive. (See People v. Ramirez, supra, 79 Cal.App.5th at
p. 65; People v. Perez, supra, 78 Cal.App.5th at p. 207.) Two cases have held that
section 1109 is retroactive. (See People v. Burgos, supra, 77 Cal.App.5th at pp. 564–
569; Ramos, supra, 77 Cal.App.5th at pp. 1128–1130; but see Burgos, at p. 569 (dis. opn.
of Elia, J.) [contending that section 1109 is not retroactive].)
We assume, without deciding, that section 1109 is retroactive because we find any
error in failing to bifurcate was harmless. (See People v. E.H. (2022) 75 Cal.App.5th at
p. 480.)
Defendant argues that the failure to bifurcate trial on the gang enhancement
allegations is a structural error not amendable to harmless error review. We reject that
contention. 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. (People v. Watson (1956) 46
Cal.2d 818, 836–837 (Watson).) Federal constitutional errors require reversal unless the
beneficiary of the error can show it was “harmless beyond a reasonable doubt.”

26.
(Chapman, supra, 386 U.S. at p. 22.) But the failure to bifurcate the gang enhancement
allegations from the underlying offenses will only violate defendant’s constitutional due
process rights if, unlike this case, it rendered his trial fundamentally unfair. (People v.
Mendoza (2000) 24 Cal.4th 130, 162.)
The United States Supreme Court has recognized that there are some
constitutional rights so basic to a fair trial that their infraction can never be treated as
harmless error. (Chapman, supra, 386 U.S. at pp. 23–24; McCoy v. Louisiana (2018)
584 U.S. ___,___ [138 S.Ct. 1500, 1511, 200 L.Ed.2d 821, 833] [“Structural error
‘affect[s] the framework within which the trial proceeds,’ as distinguished from a lapse or
flaw that is ‘simply an error in the trial process itself.’ ”].)13 Structural errors go to the
very reliability of a criminal trial as a vehicle for determining guilt or innocence and are
reversible per se—a biased judge, total absence of counsel, the failure of a jury to reach
any verdict on an essential element. (People v. Anzalone (2013) 56 Cal.4th 545, 554.)
However, an error occurring during the presentation of the case to the jury is a trial error
that can be assessed in the context of the other evidence presented in order to determine
whether its admission was harmless beyond a reasonable doubt. (Ibid. [“For example, it
would be impossible to divine how a trial would have proceeded if a defendant had been
allowed counsel or the trial judge not been biased.”].)
Considering the principles of harmless and structural error, we are not persuaded
that a failure to bifurcate under section 1109, if error, is unamenable to harmless error

13 Structural errors include the total deprivation of the right to counsel (Gideon v.
Wainwright (1963) 372 U.S. 335, 343), a biased trial judge (Tumey v. Ohio (1927) 273 U.S. 510,
533), unlawful exclusion of grand jurors based on race (Vasquez v. Hillery (1986) 474 U.S. 254,
262–264), denial of self-representation at trial (McKaskle v. Wiggins (1984) 465 U.S. 168, 177,
fn. 8), denial of right to a public trial at a suppression hearing (Waller v. Georgia (1984)
467 U.S. 39, 49), a defective reasonable doubt instruction (Sullivan v. Louisiana (1993) 508 U.S.
275, 281), and a defendant’s right to have all critical stages of a criminal trial conducted by a
person with jurisdiction to preside (Gomez v. United States (1989) 490 U.S. 858, 876 [magistrate
judge exceeds jurisdiction by selecting jury in a felony case]).

27.
review. The admission of evidence on gang enhancement allegations in an unbifurcated
proceeding does not affect the framework of the trial, and the effect of such admission on
the outcome of a trial can be quantitatively assessed. (See People v. E.H., supra,
75 Cal.App.5th at p. 480 [applying Watson harmless error analysis to § 1109]; Ramos,
supra, 77 Cal.App.5th at pp. 1131–1132 [same]; see also People v. Pinholster (1992)
1 Cal.4th 865, 931–932 [applying Watson to a failure to sever a count], disapproved on
another ground in People v. Williams (2010) 49 Cal.4th 405, 459; People v. Burch (2007)
148 Cal.App.4th 862, 868–869 [applying Watson to a failure to bifurcate trial on a prior
conviction].)
3. Analysis
Defendant fails to demonstrate that it is reasonably probable he would have
obtained a more favorable result on the underlying offenses if they had been bifurcated
from the gang enhancement allegations. The evidence supporting defendant’s
convictions on those counts is substantial. R.H. convincingly identified defendant as his
attacker, and the dangerous nature of the weapon wielded by defendant was apparent
from photographs and R.H.’s description. The damage to the door where defendant
entered was proven by officers who had viewed the door earlier in the day without such
damage and by photographs of the door after defendant’s entry. Carmen’s testimony
corroborated R.H.’s testimony in substantial part as to defendant’s attempts to enter the
apartment and his gang-related statements while doing so. The prosecution presented
strong evidence that defendant was guilty of the underlying offenses regardless of the
gang evidence.
“Furthermore, nothing in Assembly Bill [No. ]333 limits the introduction of gang
evidence in a bifurcated proceeding where the gang evidence is relevant to the underlying
charges.” (Ramos, supra, 77 Cal.App.5th at p. 1132.) Here, defendant’s gang connection
was relevant to contested issues related to several of the underlying offenses, including

28.
his motive in entering the apartment. Similarly, both R.H. and Carmen’s credibility was
affected by possible fear of retaliation in light of defendant’s gang connections, and this
evidence was admissible on that basis as well. Thus, it is likely much of the evidence
concerning defendant’s gang membership and activities would have been admitted at a
bifurcated trial on the underlying offenses. (See ibid. [“ ‘To the extent the evidence
supporting the gang enhancement would be admissible at a trial of guilt, any inference of
prejudice would be dispelled, and bifurcation would not be necessary’ ”], quoting People
v. Hernandez, (2004) 33 Cal.4th 1040, 1049–1050.) Moreover, other gang evidence that
might not have been admitted had the trial been bifurcated was not so inflammatory that
it likely biased the jurors against defendant on the question of guilt.14 Additionally, the
trial court provided a limiting instruction to the jury regarding their consideration of the
gang evidence. (See Ramos, at p. 1132 [“ ‘We presume that the jury followed these
limiting instructions [regarding considering gang evidence for a limited purpose], and
there is nothing in this record to rebut that presumption’ ”], quoting People v. Franklin
(2016) 248 Cal.App.4th 938, 953.)
For these reasons, we conclude—even assuming that section 1109 applies to
him—defendant was not prejudiced by the failure to bifurcate the gang enhancement
allegations from his trial on the underlying offenses.

14 The gang evidence that might have been excluded from the guilt portion of the trial on
the underlying offenses includes evidence of the general membership structure and activities of
the Sureño gang and its general criminal activities, including assaults with deadly weapons,
threats, auto thefts, witness intimidation, and burglaries. Due to the parties’ stipulation that the
Loma Bakers is a criminal street gang within meaning of section 186.22, the jury did not hear
evidence regarding any past crimes committed by defendant or other gang members.

29.
IV. Defendant’s One-year Enhancements for Prior Prison Terms Shall Be
Stricken
Defendant argues that his five 1-year prior prison term enhancements must be
stricken based on the retroactive application of Senate Bill No. 136. The People agree, as
do we.
Effective January 1, 2020, Senate Bill No. 136 (2019–2020 Reg. Sess.) (Senate
Bill No. 136) amended section 667.5, subdivision (b) to limit application of prior prison
term enhancements to only prior prison terms that were served for sexually violent
offenses as defined by Welfare and Institutions Code section 6600, subdivision (b).
(Stats. 2019, ch. 590, § 1.) That amendment applies retroactively to all cases not yet final
on Senate Bill No. 136’s effective date. (People v. Lopez (2019) 42 Cal.App.5th 337,
341–342, citing In re Estrada, supra, 63 Cal.2d at pp. 742–748.)
Here, the trial court imposed five 1-year section 667.5, subdivision (b) prior prison
term enhancements for the following convictions: (1) attempted murder (§§ 664/187,
subd. (a)); (2) possession of a controlled substance (Health & Saf. Code, § 11377,
subd. (a)); (3) possession of a firearm by a drug addict (former § 12021, subd. (a)(1));
(4) obstructing or resisting an officer (§ 69); and (5) carrying a concealed dirk or dagger
(§ 21310). The defendant’s prior prison terms served for these offenses were not served
for “sexually violent offenses.”
On January 1, 2020, defendant’s case was not yet final. Therefore, as the parties
agree, defendant is entitled to the ameliorative benefit of Senate Bill No. 136’s
amendment to section 667.5, subdivision (b). Defendant’s one-year sentences for these
five prison terms must therefore be stricken.15

15 In light of resolution of this issue, we do not address defendant’s argument that his
attempted murder conviction cannot be used for enhancements pursuant to both sections 667,
subdivision (a) and 667.5, subdivision (b).

30.
 DISPOSITION
The true findings on the former section 186.22, subdivision (b) gang enhancement
allegations as to counts 1 and 2 are reversed, and the case is remanded to the trial court
with directions to (1) give the People an opportunity to retry the enhancements under
section 186.22, as amended by Assembly Bill No. 333 (Stats. 2021, ch. 699, § 3),
(2) resentence defendant in a manner consistent with this opinion whether the People
elect not to retry the enhancements or at the conclusion of retrial, and (3) strike the five
former section 667.5, subdivision (b) 1-year prior prison term enhancements.
The clerk of the court is directed to (1) amend the July 11, 2019 minute order to
reflect that the trial court ordered defendant to pay a $40 court operations assessment
(§ 1465.8) and a $30 criminal conviction assessment (Gov. Code, § 70373) as to count 2
and sentenced defendant to one year in county jail as to count 3, and (2) amend the
abstract of judgment to reflect the aggregate $120 court operations assessment (§ 1465.8)
and the aggregate $90 criminal conviction assessment (Gov. Code, § 70373) imposed as
to counts 1, 2, and 3.
In all other respects, the judgment is affirmed.

HILL, P. J.
WE CONCUR:

PEÑA, J.

SMITH, J.

31.