People v. Rodriguez CA5

Filed 6/30/22 P. v. Rodriguez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
F080915
Plaintiff and Respondent,
(Super. Ct. No. 1404791)
v.

ABEL RODRIGUEZ, JR., OPINION
Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Stanislaus County. Nancy A.
Leo, Judge.
Martin Baker, under appointment by the Court of Appeal, for Defendant and
Appellant.
Matthew Rodriquez, Acting Attorney General, Rob Bonta, Attorney General,
Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant
Attorney General, Eric L. Christoffersen, Sally Espinoza and Brook A. Bennigson,
Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
 INTRODUCTION
Defendant Abel Rodriguez, Jr., and his cousin, Pedro Alvarez, were charged with
one murder and two attempted murders in connection with a drive-by shooting committed
in Modesto in 2009. In 2019, Alvarez testified for the prosecution in exchange for a plea
offer of voluntary manslaughter with a gang enhancement. (Pen. Code, §§ 192, subd. (a),
186.22, subd. (b)(1)(C).)1
The jury convicted defendant on count I of the murder of Guillermo Gomez, with
findings that the murder was premeditated and committed by discharge of a firearm from
a motor vehicle. (§§ 187, subd. (a), 189, subd. (a).) On counts II and III, the jury
convicted defendant of the premeditated attempted murders of Gabriel N. and Luis C.
(§§ 664/187, subd. (a), 189, subd. (a).) On all three counts, the jury found the firearm
enhancement and the gang enhancement allegations true. (§§ 12022.53, subds. (d),
(e)(1), 186.22, subd. (b)(1).) In a bifurcated proceeding, defendant admitted suffering
two prior serious felony convictions for the purpose of Three Strikes2 law sentencing and
imposition of a prior serious felony conviction enhancement under section 667,
subdivision (a)(1). On the prosecutor’s motion, one of the prior convictions was stricken
in the interest of justice. (§ 1385.)3
Defendant was sentenced to an aggregate term of 15 years plus 153 years to life,
as follows. The trial court imposed a term of 25 years to life on count I, doubled to
50 years to life under the Three Strikes law, plus an additional 25 years to life for the
firearm enhancement; and to terms of seven years to life on count II and count III,

1 All further references are to the Penal Code unless otherwise specified.
2 Sections 667, subdivisions (b)–(i), 1170.12, subdivisions (a)–(d).
3 Section 1385 was amended effective January 1, 2022, by Senate Bill No. 81 (2021–2022
Reg. Sess.) Statutes 2021, chapter 721, section 1. As discussed herein, the jury’s gang
enhancement findings must be vacated and the matter remanded for further proceedings. When
defendant is resentenced, section 1385 as amended will apply. (People v. Sek (2022) 74
Cal.App.5th 657, 674.)

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doubled to 14 years to life, plus additional terms of 25 years to life for the firearm
enhancement. On all counts, the court imposed a 10-year gang enhancement, stayed, and
a five-year prior serious felony conviction enhancement.
Defendant advances three claims on appeal. He argues that the trial court erred
under Evidence Code section 352 when it admitted evidence of his two prior assault
convictions as predicate offenses within the meaning of section 186.22, former
subdivision (e). He also argues that his convictions for attempted murder are not
supported by substantial evidence of intent to kill, and, via supplemental briefing, that he
is entitled to reversal of the gang enhancements under Assembly Bill No. 333,4 which
amended section 186.22, effective January 1, 2022.
The People concede that defendant is entitled to have the gang enhancement
findings vacated given the amendments to section 186.22. However, they dispute
entitlement to relief on his other two claims.
We find no abuse of discretion in the admission of defendant’s two prior assault
convictions as predicate offenses under the gang statute, and we find the jury’s attempted
murder verdicts supported by substantial evidence. However, we agree with the parties
regarding defendant’s entitlement to relief under Assembly Bill 333. We shall vacate the
gang enhancement findings and remand the matter for further proceedings. The
judgment is otherwise affirmed.

4 Assembly Bill No. 333 (2021–2022 Reg. Sess.) Statutes 2021, chapter 699 (Assembly
Bill 333 or Assem. Bill 333).

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 FACTUAL SUMMARY
I. Prosecution Case
A. Shooting
On July 4, 2009, Gabriel, then 16 years old, was in the front yard of his house with
his 13-year-old brother, Jose S. Their family was having a barbecue that day to celebrate
the holiday and his stepfather had a number of friends over, drinking and listening to
music. Just before 10:00 p.m., a car pulled up across the street from the house, there was
a burst of gunfire, and the car took off.
Gabriel’s mother, who was inside the house when the shooting occurred, called
911. An unidentified child’s voice stated the car was a red Charger, but Jose told the 911
operator it was a black, four-door Dodge Charger with tinted windows and the gun was
an uzi.
Gabriel and Luis were transported to the hospital with gunshot wounds, and police
found Gomez’s body in the street with multiple gunshot wounds. They also located
12 nine-millimeter shell casings in the street in close proximity to one another, consistent
with witness reports and trial testimony that the car either stopped or drove by slowly.
Deputy Mendonza was responding to the scene when he saw a black Charger with
shiny rims heading toward the freeway. Authorities were on the lookout for several
vehicles, including a black Charger, so he turned around and followed the Charger with
his lights and siren activated. The driver yielded to him after crossing an intersection, but
when he turned on his spotlight to determine whether he had the correct vehicle, the
driver pulled back into traffic and sped off.
The Charger was faster than Mendonza’s patrol car, but he obtained the license
plate number and was able to keep the Charger’s taillights in view during the pursuit. At
times, the Charger’s speed exceeded 125 miles per hour. The pursuit proceeded
southbound on Highway 99 until the driver exited the highway in Turlock. In the process
of turning left after taking the offramp, the driver lost control of the Charger and it

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skidded across the intersection, went over a curb, and landed up an embankment.
Additional law enforcement vehicles arrived within seconds.
There were only two individuals in the Charger, defendant, who was driving, and
Alvarez. They exited the vehicle without incident. Defendant had a red shirt on, and
Alvarez was wearing a red belt with the letter “N” on it for “norte,” and he had a red and
black baseball hat that was found in the car. Mendonza saw one shell casing, later
identified as a nine-millimeter, inside the car on the driver’s side floorboard. There was a
huelga bird hanging from the rearview mirror, and a red handkerchief attached to the
center console.
Mendonza did not see anything tossed out of the Charger during the pursuit, but
officers searched along the route the next day. Deputy Redding located a Glock pistol
with an empty magazine on the west side of the freeway in the area of the Tuolumne
River bridge. The gun was clean, without any dirt or rust, and it had an aftermarket
attachment that allowed the user to switch the gun from semiautomatic to automatic with
a button, consistent with the machine gun-like firing described by witnesses. The firearm
and ballistics expert testified that he had no doubt that the 12 casings at the scene and the
one casing inside the Charger were all fired from the recovered Glock.
Gunshot reside was detected on defendant’s and Alvarez’s hands. However, the
DNA collected from the gun was not of sufficient quantity to allow for interpretation.
B. Eyewitness Testimony
At trial, Gabriel, Jose, and their mother denied any gang involvement. Gabriel
saw a dark car pull up slowly with its lights off. The windows were rolled down and
something that looked like a gun came up from the driver’s window, which was facing
the house. It was dark out and the car windows were tinted, so Gabriel did not see the
shooter or how many people were in the car. He heard three popping noises and saw
flashes. He fell to his knees and realized he had been shot when he tried to get up and

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felt pain in his chest. He also saw one other person, who had been hanging out with his
stepfather but whom he did not know, rolling around and holding his chest.
Gabriel was not sure about the color of the car and recalled it was perhaps
burgundy. On cross-examination, he testified he only remembered the car being dark, but
when asked whether he remembered telling officers it was a nice burgundy car, he said “I
think so, sounds pretty on it.”
Jose testified that he and Gabriel were leaning against his stepfather’s car in the
driveway, facing the street, when a black Dodge Charger rolled up slowly, which Jose
thought was “weird.” Jose was approximately 16 feet away from the car. The rear
windows were rolled up and he could not see how many people were in the car. He heard
rapid shots like from an uzi, or a machine gun, and saw flashes coming from the driver’s
window. The car then left, and Gabriel told Jose he had been shot.
After the shooting, police took Jose to see the Charger defendant was driving at
the location where it was wrecked. Jose told them it was not the car involved in the
shooting. He testified the rims were different.
A third eyewitness, Primitivo G., also testified. He was in custody and serving a
20-year sentence for second degree murder committed in 2010. He denied he was a
Sureño at the time of trial or that he was gang affiliated in 2009, but he had friends who
were Sureños. He said he could not remember much about what happened 10 years ago
and denied fearing a snitch label.
Primitivo testified that the only person he knew at the barbecue was “Fat Boy,”
whom he only knew by his moniker. Primitivo recalled seeing a black car and hearing
shots. “Fat Boy” and someone whose mother was tending to him were shot, and
Primitivo stumbled over the body of a third person in the street. He had never seen the
third person before, but described him as a “Paisano” or “regular Mexican.”

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 C. Alvarez’s Testimony
Alvarez testified that defendant was the shooter. The two of them were hanging
out that day, and defendant drove them to a friend’s house in his girlfriend’s black
Charger. The friend was not at home, but there was a small group gathered in the front
yard of the house, and defendant and Alvarez stayed for a while. They had been there
about an hour when a white car drove up and the occupants told the group there were
some “scraps,” a derogatory reference to Sureños, “[a]round the corner on Figaro.”
Alvarez was bored and around 20 minutes later, he told defendant they should go.
After defendant started the car, he pulled a fully automatic Glock from his waistband,
which Alvarez had seen him with multiple times, and put it in his lap. As defendant
turned onto Figaro, he said, “‘Let’s see what these fools are talking about,’” and
chambered a bullet in the gun. They saw a group having a barbecue in front of a house.
Defendant stopped the car in front of the house, put both hands out his window, emptied
the gun, and took off.
They heard sirens almost immediately and when they passed through a nearby
intersection, an officer pulled behind them. Defendant yielded to the officer, but then
took off when it looked like the officer was trying to box their car in. During the pursuit,
defendant handed Alvarez the gun and told him to throw it out the window, which he did.
The pursuit ended when defendant lost control of the car in Tulare and wrecked it.
Alvarez testified he was gang involved between the ages of 13 to 26 years old,
approximately, but he dropped out in 2015 while in custody, after some “kites,” or
“wilas,” he was supposed to be safekeeping were confiscated from his cell. At the time
of the shooting in 2009, he said he was an active Norteño and defendant was a member of
the West Side Boyz. However, Alvarez also described himself as a Northerner who
became a Norteño in jail, and stated he sold drugs and watched cells for the gang. When
things did not work out, he became a Northerner again. He explained that Northerners
are foot soldiers who do what they are told while Norteños are higher ranking and make

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decisions in the jails. Above Norteños are Nuestra Familia members. Someone higher
up would have authorized his elevation from Northerner to Norteño, but he did not speak
to anyone about it.
When he was arrested, Alvarez did not have any tattoos. Of the multiple tattoos
he subsequently gained in custody, he described the following as gang related: “SK” on
the back of his head for “[s]crap killer,” “E” and “S” on his arms for “Eastside Modesto,”
“Modesto” on his chest, and “209” on his stomach. “N” is the 14th letter of the alphabet
and the number 14 signifies Norteño. Alvarez had four dots on one hand and one dot on
the other at one point, signifying 14, but he had those tattooed over. He denied needing
permission to get gang tattoos and denied that having an “SK” tattoo meant he killed a
Sureño. He testified that “[e]veryone gets that tattoo,” and it just means disrespect
toward Sureños.
Defendant had multiple tattoos at the time of arrest. In addition to collages of
women’s faces and his last name, defendant had a huelga bird against a red background
on his arm, “209” on his stomach, “14” on the back of his head, “Modesto” across his
upper back, “West Side Boyz” on his arm, “WS” on one shin, and “BZ” on the other
shin. Alvarez testified that “WS” and “BZ” stood for West Side Boyz, “14” stood for
Norteño, and the huelga bird was a common Nuestra Familia symbol.
Alvarez denied ever killing anyone or shooting at anyone. However, he admitted
he had a 2007 felony assault conviction from a bar fight where he threw a bottle at a
bouncer, cutting him; and he was present for three other fatal shootings. In 2007, he was
with friends who opened fire at a house party, killing multiple people; in 2008, he was in
a vehicle with someone who shot and killed multiple people; and in June 2009, the driver
of a vehicle he was riding in shot and killed a gang dropout. Consistent with his
testimony regarding the shooting in this case, Alvarez denied he participated in the other
three shootings or knew they were going to occur in advance.

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 Alvarez said the “[o]verall objective” as a gang member was to instill fear in rivals
through fighting, tagging, and claiming territory, which showed dominance; and he
described the gang lifestyle as never-ending rival combat. He testified that the shooting
defendant committed benefitted their gang by letting the victims know “there’s Norteños
out there, and they can’t just be chilling out there like that.” Regarding his decision to
tell authorities in 2018 that defendant committed the shooting and to testify, he stated, “If
I was the one that did the murder, I would have taken the time and let him live his life,
but he didn’t do that, so that’s only the right thing to do. The fact he never chose to do
that for me, that’s why I’m up here. I have to do what’s best for my life like he’s doing
the best for his.”
D. Other Gang Evidence
Deputy Delgado and Detective Soria both testified as gang experts, with Delgado
providing the majority of the gang evidence. Delgado testified that Norteños and Sureños
are rival gangs. The Norteño gang predominates in Stanislaus County and includes the
West Side Boyz. Norteños identify with the number 14 for “N,” the huelga bird, and the
color red; four dots on one hand and one dot on the other represent the number 14; and
gang members use regional tattoos to represent where they are from and the territory they
claim. Shown a photograph, Delgado opined that the “BZ” spray-painted on the street
within the crime scene indicated a claim on that territory by the West Side Boyz, and he
testified that claiming territory benefits the gang financially because they are then free to
conduct their business there, such as selling drugs and committing robberies and
burglaries. He also testified that the collective commission of gang crimes is a show of
force intended to intimidate rivals and others, and that gangs gain status through fear and
intimidation.
II. Defense Case
Antonio S. testified he spent the day and evening drinking. He was cooking
outside for family when a dark car with chromed wheels drove by slowly, with the front

9.
passenger’s side of the vehicle closest to his house. He did not see the gun, but heard
what sounded like a machine gun and saw flashes coming from the backseat on the
passenger side. He viewed a car in the police impound lot and identified it as the
involved car. He denied he was a gang member and did not recall if there was someone
at the barbecue with a three-dot hand tattoo.
Officer McQuery testified that Jose said he saw several vehicles pass by the house
prior to the shooting and the involved vehicle had black, eight-spoke rims with a chrome
stripe down the middle and did not have a sunroof. When Jose was asked to identify the
black Charger driven by defendant, he said it was not the involved vehicle, as the
wrecked Charger had different rims and a sunroof. Jose subsequently showed McQuery a
magazine photo of the rims he saw on the involved car. However, Jose said the shots
came from the driver’s side window of a black Charger, he saw the muzzle of the gun and
flashes of light, and the car slowed with headlights off before the shots were fired.
Regarding Antonio, McQuery testified his eyes were watery and red, and he
appeared to be intoxicated. He was not willing to be interviewed at the sheriff’s
department.
Finally, Jesse De La Cruz, Ph.D., testified as a gang expert. Dr. De La Cruz had
an extensive 55-year personal and professional history with gangs. He joined a criminal
street gang at the age of 13 years, was personally involved in shootings and a stabbing,
suffered multiple criminal convictions, served several decades in prison, and was a
Nuestra Familia member for a few years in the 1970’s. He left the gang at 27 years old,
but continued with drug-related criminal activity until the age of 45. At that time, he
turned his life around and pursued an education, culminating in his doctorate in
educational leadership, with a dissertation on criminal street gangs.
Dr. De La Cruz disagreed with the prosecution’s witnesses on a number of points.
In his opinion, application of the gang statute was problematic because the statute did not
identify a gang member and law enforcement did not know much about gangs. He

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testified that the huelga bird, the number 14, area codes, and regional tattoos do not have
to do with gangs, although some gang members have adopted the number 14 and the
huelga bird, the latter symbolizing Northern California and tracing back to Cesar Chavez.
Dr. De La Cruz also disagreed that gang members can get any tattoo they want and
he stated that an individual would not get an “SK” tattoo without the gang’s permission
and that permission would be granted only if the individual had killed a scrap. In his
opinion, Alvarez was not a street gang member, but he was a Norteño while in jail and,
based on his “SK” tattoo and possession of wilas, was in the process of becoming a
Norteño soldado. Wilas contain sensitive information, and Alvarez’s possession of them
demonstrated an elevated level of gang involvement and he would have faced discipline
for being irresponsible with that information. However, that discipline would, perhaps,
be in the form of a beating or being directed to write a lengthy essay; it would not be
death. Nor would dropping out necessarily result in death. Dr. De La Cruz described the
idea of death on sight for dropouts or rivals as “propaganda … by law enforcement,” and
said gang dropouts are generally killed only for transgressions such as hanging out on
gang turf, selling drugs on gang turf, or denigrating their former gang.
Regarding hypothetical shootings mirroring the three Alvarez was present for prior
to the crimes in this case, Dr. De La Cruz testified that someone present but claiming not
to be involved might be given a pass the first time for not participating, but would be
disciplined the second time and would not have been present a third time. He did not find
a claimed lack of involvement in three separate hypothetical shootings credible. He
agreed that shootings instill fear, but disagreed that instilling fear benefits gangs.
However, he opined gang-related retaliation and intimidation benefit a gang, killing over
colors benefits a gang, and shooting a rival gang member in front of other fellow gang
members possibly benefits a gang.

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III. Rebuttal and Surrebuttal
On rebuttal, Deputy Delgado testified that Dr. De La Cruz’s testimony did not
change his mind that the shooting was gang related. In his opinion, times have changed,
and gangs are no longer regimented like they used to be. Instead, there are a lot of prison
politics, and gangs have devolved into disorder and disorganization. However, he agreed
that if a person was following the Nuestra Familia regimen, that person would need
permission to get an “SK” tattoo.
In surrebuttal, Dr. De La Cruz said prison politics have been around forever and
reiterated that approval is needed for an “SK” tattoo.
DISCUSSION
I. Admission of Defendant’s Prior Convictions as Predicate Offenses
A. Background
Under the version of the gang statute in effect at the time of trial, to prove a
“‘pattern of criminal gang activity’” within the meaning of the statute, the prosecutor was
required to introduce evidence of “the commission of, attempted commission of,
conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of
two or more [specifically enumerated] offenses, provided at least one of these offenses
occurred after the effective date of this chapter and the last of those offenses occurred
within three years after a prior offense, and the offenses were committed on separate
occasions, or by two or more persons….” (§ 186.22, former subd. (e).) One of the
qualifying offenses is “[a]ssault with a deadly weapon or by means of force likely to
produce great bodily injury, as defined in Section 245.” (§ 186.22, subd. (e)(1)(A),
formerly subd. (e)(1).) Through the testimony of two law enforcement witnesses, the
prosecutor introduced evidence of two assault convictions suffered by defendant under
section 245, assault with a firearm committed on August 30, 2001, and assault with a
deadly weapon committed on June 11, 2004. Certified records of the convictions were
admitted by the trial court.

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 During Sergeant Vierra’s testimony, the prosecutor questioned him regarding a
2001 shooting in which defendant was a suspect and then, over defendant’s objection,
moved a certified copy of the conviction into evidence. Outside the presence of the jury,
the prosecutor stated the assault conviction was admissible as a predicate offense.
Defendant objected to admission of his conviction for the 2001 assault and the
anticipated admission of his second conviction for the 2004 assault. He argued that the
prosecutor could prove predicate offenses using evidence of crimes committed by other
people, and that admission of his prior assault convictions was highly prejudicial
character evidence under Evidence Code section 1101 and should be excluded under
Evidence Code section 352.
On appeal, defendant claims the trial court’s failure to exclude the evidence of his
prior assault convictions under Evidence Code section 352 was an abuse of discretion,
and the error was prejudicial. Defendant concedes that prior crimes evidence is relevant
to proving the gang enhancement, but the prosecutor could have relied on crimes
committed by individuals other than defendant, including Alvarez. We conclude that it
was not error to admit evidence of defendant’s two assault convictions.5
B. Legal Principles
Under California law, evidence is relevant if it has “any tendency in reason to
prove or disprove any disputed fact that is of consequence to the determination of the
action” (Evid. Code, § 210), and all relevant evidence is admissible except as otherwise

5 Prior to trial, the prosecutor filed a motion in limine requesting admission of defendant’s
prior convictions for impeachment, should he testify. Defendant opposed the motion, but
requested that if the convictions were admitted for impeachment, they be sanitized. The court
reserved the issue for evaluation depending on the evidence adduced during trial. Defendant did
not testify and when he later objected to admission of the convictions as predicate offenses, he
did not object to the form of the certified records and did not seek either a stipulation or a
redaction of irrelevant information. Therefore, to the extent the records contained objectionable
information, that issue was not preserved for review. (Evid. Code, § 353; People v. Partida
(2005) 37 Cal.4th 428, 434–435.)

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provided by statute (Evid. Code, § 351). At issue here, Evidence Code section 352
provides, “The court in its discretion may exclude evidence if its probative value is
substantially outweighed by the probability that its admission will (a) necessitate undue
consumption of time or (b) create substantial danger of undue prejudice, of confusing the
issues, or of misleading the jury.”
However, “‘“[p]rejudice” as contemplated by [Evidence Code] section 352 is not
so sweeping as to include any evidence the opponent finds inconvenient. Evidence is not
prejudicial, as that term is used in a section 352 context, merely because it undermines
the opponent’s position or shores up that of the proponent. The ability to do so is what
makes evidence relevant. The code speaks in terms of undue prejudice. Unless the
dangers of undue prejudice, confusion, or time consumption “‘substantially outweigh’”
the probative value of relevant evidence, a section 352 objection should fail. [Citation.]
“‘The “prejudice” referred to in Evidence Code section 352 applies to evidence which
uniquely tends to evoke an emotional bias against the defendant as an individual and
which has very little effect on the issues. In applying section 352, “prejudicial” is not
synonymous with “damaging.”’ [Citation.]” [Citation.] [¶] The prejudice that
section 352 “‘is designed to avoid is not the prejudice or damage to a defense that
naturally flows from relevant, highly probative evidence.’ [Citations.] ‘Rather, the
statute uses the word in its etymological sense of “prejudging” a person or cause on the
basis of extraneous factors. [Citation.]’ [Citation.]” [Citation.] In other words, evidence
should be excluded as unduly prejudicial when it is of such nature as to inflame the
emotions of the jury, motivating them to use the information, not to logically evaluate the
point upon which it is relevant, but to reward or punish one side because of the jurors’
emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of
the substantial likelihood the jury will use it for an illegitimate purpose.’” (People v.
Doolin (2009) 45 Cal.4th 390, 438–439; accord, People v. Bell (2019) 7 Cal.5th 70, 105;
People v. Tran (2011) 51 Cal.4th 1040, 1048 (Tran).)

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 On appeal, we presume the trial court’s evidentiary ruling is correct and defendant
bears the burden of demonstrating error. (People v. Giordano (2007) 42 Cal.4th 644,
666; People v. Anthony (2019) 32 Cal.App.5th 1102, 1139–1140.) “The trial court enjoys
broad discretion in determining the relevance of evidence and in assessing whether
concerns of undue prejudice, confusion, or consumption of time substantially outweigh
the probative value of particular evidence. [Citation.] ‘The exercise of discretion is not
grounds for reversal unless “‘the court exercised its discretion in an arbitrary, capricious
or patently absurd manner that resulted in a manifest miscarriage of justice.’”’” (People
v. Clark (2016) 63 Cal.4th 522, 572; accord, People v. Johnson (2019) 8 Cal.5th 475,
521.)
C. Analysis
In Tran, the California Supreme Court held that “a predicate offense [may] be
established by proof of an offense the defendant committed on a separate occasion,” and
it rejected the argument, advanced here, that “the inherent prejudice in such evidence
generally requires its exclusion under Evidence Code section 352 .…” (Tran, supra, 51
Cal.4th at p. 1046.) “The prejudicial effect of evidence defendant committed a separate
offense may, of course, outweigh its probative value if it is merely cumulative regarding
an issue not reasonably subject to dispute. [Citations.] But the prosecution cannot be
compelled to ‘“present its case in the sanitized fashion suggested by the defense.”’
[Citation.] When the evidence has probative value, and the potential for prejudice
resulting from its admission is within tolerable limits, it is not unduly prejudicial and its
admission is not an abuse of discretion. Further, a rule requiring exclusion of evidence of
a defendant’s separate offense on the theory the prosecution might be able to produce
evidence of offenses committed by other gang members would unreasonably favor
defendants belonging to large gangs with a substantial history of criminality. That the
prosecution might be able to develop evidence of predicate offenses committed by other

15.
gang members therefore does not require exclusion of evidence of a defendant’s own
separate offense to show a pattern of criminal gang activity.” (Id. at p. 1049, fn. omitted.)
Defendant attempts to distinguish Tran on the ground that it approved admission
of the evidence in a case where the defendant was charged and convicted with a
substantive gang offense under section 186.22, subdivision (a). (Tran, supra, 51 Cal.4th
at p. 1046.) However, the charges in Tran also included gang enhancement allegations
and the court’s reasoning applies with equal force to gang enhancements alone. (Ibid.)
In Tran, the court explained that unlike the admission of evidence under Evidence
Code section 1101, subdivision (b), where “the evidence is probative because of its
tendency to establish an intermediary fact from which the ultimate fact of guilt of a
charged crime may be inferred” (Tran, supra, 51 Cal.4th at p. 1048), “the probative value
of evidence of a defendant’s gang-related separate offense generally is greater because it
provides direct proof of several ultimate facts necessary to a conviction” (ibid.). Where
charged, a gang enhancement requires proof the defendant committed the underlying
felony “for the benefit of, at the direction of, or in association with a criminal street
gang .…” (§ 186.22, subd. (b)(1).) Proving the existence of a criminal street gang
requires, in turn, proof of a pattern of criminal activity, which is satisfied by evidence of
at least two qualifying predicate offenses. (§ 186.22, subds. (e)(1), (f).) Because
evidence of defendant’s two prior assault convictions was admitted to directly establish
an element of the gang enhancement, the evidence was less inherently prejudicial than
“when [if] admitted to establish an intermediary fact from which guilt may be inferred.”
(Tran, supra, at p. 1048.)
At bottom, defendant’s argument is that because the prosecutor could have relied
on other evidence to satisfy the predicate offense element, he should have been required
to do so. This argument is foreclosed under Tran. Furthermore, the factors identified in
Ewoldt as relevant to an inquiry of prejudice did not weigh against admission: the
evidence emanated from a source independent of the charged offense, the prior acts

16.
resulted in conviction, and the evidence of the prior acts was “no stronger or more
inflammatory than the testimony concerning the charged offense[s]” of murder and
attempted murder. (Tran, supra, 51 Cal.4th at p. 1047, citing People v. Ewoldt (1994) 7
Cal.4th 380, 404–405.) Additionally, this is not a case where admission of the evidence
was cumulative or otherwise gratuitous. (See People v. Williams (2009) 170 Cal.App.4th
587, 610 [prosecutors do not have the “right to ‘over-prove their case or put on all the
evidence that they have’”].) The prosecutor was required to prove at least two qualifying
predicate offenses and although not required to do so under the law, he nevertheless
limited the evidence of predicate offenses to two. (See People v. Hill (2011) 191
Cal.App.4th 1104, 1139 [no abuse of discretion in admitting evidence of eight predicate
offenses].) Accordingly, the trial court did not abuse its discretion in admitting the
evidence of defendant’s prior convictions, and it is unnecessary to consider defendant’s
argument of prejudice.
II. Substantial Evidence Claim
Next, defendant claims his convictions for attempted murder are not supported by
substantial evidence of intent to kill. We also conclude this claim lacks merit.
A. Standard of Review
“The Due Process Clause of the Fourteenth Amendment denies States the power to
deprive the accused of liberty unless the prosecution proves beyond a reasonable doubt
every element of the charged offense” (Carella v. California (1989) 491 U.S. 263, 265,
citing In re Winship (1970) 397 U.S. 358, 364), and the verdict must be supported by
substantial evidence (People v. Zamudio (2008) 43 Cal.4th 327, 357 (Zamudio)). On
appeal, the relevant inquiry governing a challenge to the sufficiency of the evidence “‘is
whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.’” (People v. Nguyen (2015) 61 Cal.4th 1015, 1055.) “The record must
disclose substantial evidence to support the verdict—i.e., evidence that is reasonable,

17.
credible, and of solid value—such that a reasonable trier of fact could find the defendant
guilty beyond a reasonable doubt.” (Zamudio, supra, at p. 357.)
“In applying this test, we review the evidence in the light most favorable to the
prosecution and presume in support of the judgment the existence of every fact the jury
could reasonably have deduced from the evidence.” (Zamudio, supra, 43 Cal.4th at
p. 357.) “‘[I]t is the jury, not the appellate court which must be convinced of the
defendant's guilt .…’” (People v. Nguyen, supra, 61 Cal.4th at pp. 1055–1056.) “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.” (Zamudio, supra, at p. 357.)
B. Attempted Premeditated Murder
“An attempt to commit a crime consists of two elements: a specific intent to
commit the crime, and a direct but ineffectual act done toward its commission.” (§ 21a.)
While murder is an unlawful killing with express or implied malice aforethought (§§ 187,
subd. (a), 188; accord, People v. Rangel (2016) 62 Cal.4th 1192, 1220), attempted murder
requires specific intent to kill, or express malice, “‘and the commission of a direct but
ineffectual act toward accomplishing the intended killing’” (People v. Smith (2005) 37
Cal.4th 733, 739; accord, People v. Gonzalez (2012) 54 Cal.4th 643, 653–654). Express
malice is shown when the defendant “‘either desires the victim’s death, or knows to a
substantial certainty that the victim’s death will occur.’” (People v. Houston (2012) 54
Cal.4th 1186, 1217; accord, People v. Covarrubias (2016) 1 Cal.5th 838, 890.)
“For an attempt, the overt act must go beyond mere preparation and show that the
killer is putting his or her plan into action; it need not be the last proximate or ultimate
step toward commission of the crime or crimes [citation], nor need it satisfy any element
of the crime [citation].” (People v. Superior Court (Decker) (2007) 41 Cal.4th 1, 8;
accord, People v. Garton (2018) 4 Cal.5th 485, 514.) “[E]vidence of motive is often
probative of intent to kill[,]” but it “is not required to establish intent to kill[.]” (People v.

18.
Smith, supra, 37 Cal.4th at p. 741.) Intent “may in many cases be inferred from the
defendant’s acts and the circumstances of the crime.” (Ibid.)
Unlike murder, “attempted murder is not divided into degrees, but the sentence
can be enhanced if the attempt to kill was committed with premeditation and
deliberation.” (People v. Gonzalez, supra, 54 Cal.4th at p. 654.) More than a specific
intent to kill is required to support a finding of deliberation and premeditation. (People v.
Koontz (2002) 27 Cal.4th 1041, 1080.) “‘Deliberation’ refers to careful weighing of
considerations in forming a course of action; ‘premeditation’ means thought over in
advance.” (Ibid.) “‘The process of premeditation and deliberation does not require any
extended period of time. “The true test is not the duration of time as much as it is the
extent of the reflection. Thoughts may follow each other with great rapidity and cold,
calculated judgment may be arrived at quickly.…” [Citations.]’” (Ibid.)
C. Analysis
Defendant’s challenge to his attempted murder convictions is limited to intent to
kill. He asserts that the jury was not instructed on a concurrent intent or kill zone theory,
and there is no evidence he intended to kill either named victim, entitling him to reversal.
However, as discussed herein, the prosecutor was not required to—and did not—rely on a
concurrent intent, or kill zone, theory, and this is not one of those “relatively few cases”
where it would have applied. (People v. Canizales (2019) 7 Cal.5th 591, 608
(Canizales); accord, In re Sambrano (June 9, 2022, E078147) ___ Cal.App.5th ___, ___
[2022 Cal.App. Lexis 505, *13] (Sambrano).) Instead, defendant’s action in firing
multiple rounds into a crowd of people at close range supplied substantial evidence of
intent to kill. That he did not know any of the victims and was not targeting a particular
person does not undermine the convictions.
Under a concurrent intent theory, or a kill zone theory, “‘“[w]here the means
employed to commit the crime against a primary victim create a zone of harm around that
victim, the factfinder can reasonably infer that the defendant intended that harm to all

19.
who are in the anticipated zone.”’” (Canizales, supra, 7 Cal.5th at pp. 602–603, quoting
People v. Bland (2002) 28 Cal.4th 313, 330 (Bland).) No small amount of confusion
ensued after the decision in Bland, and in Canizales, the California Supreme Court
clarified that “the kill zone theory for establishing the specific intent to kill required for
conviction of attempted murder may properly be applied only when a jury concludes:
(1) the circumstances of the defendant’s attack on a primary target, including the type and
extent of force the defendant used, are such that the only reasonable inference is that the
defendant intended to create a zone of fatal harm—that is, an area in which the defendant
intended to kill everyone present to ensure the primary target’s death—around the
primary target and (2) the alleged attempted murder victim who was not the primary
target was located within that zone of harm. Taken together, such evidence will support a
finding that the defendant harbored the requisite specific intent to kill both the primary
target and everyone within the zone of fatal harm.” (Canizales, supra, 7 Cal.5th at
p. 607.)
Recently, the Court of Appeal in Sambrano clearly and succinctly summarized the
relevant principles, as follows:

“If there is no evidence of a primary target, then the kill zone theory
does not apply. (Canizales, supra, 7 Cal.5th at p. 608 [‘evidence of a
primary target is required’].)

“Relatedly, if the evidence shows only that the defendant intended to
kill everyone in a particular area, but not as a means of ensuring the death
of a primary target, then the kill zone theory does not apply. (Canizales,
supra, 7 Cal.5th at p. 607 [a kill zone is ‘an area in which the defendant
intended to kill everyone present to ensure the primary target’s death’].)

“If there is evidence of a primary target, but the evidence shows only
that the defendant subjected people near the primary target to lethal risk, or
that the defendant acted with conscious disregard of the risk of serious
injury or death for people near the primary target, then the kill zone theory
does not apply. (Canizales, supra, 7 Cal.5th at p. 607.)

20.
 “Jury instructions on the kill zone theory are never required.
(People v. Stone (2009) 46 Cal.4th 131, 137–138 (Stone); People v. Smith
(2005) 37 Cal.4th 733, 746 (Smith); People v. Bland (2002) 28 Cal.4th 313,
331, fn. 6 (Bland).)” (Sambrano, supra, ___ Cal.App.5th at p. ___ [2022
Cal. App. Lexis 505, *1–2].)
The kill zone theory clearly does not apply to the facts of this case. Rather,
defendant’s intent to kill multiple people is readily inferable from his actions.
“[T]he act of purposefully firing a lethal weapon at another human being at close
range, without legal excuse, generally gives rise to an inference that the shooter acted
with express malice. That the shooter had no particular motive for shooting the victim is
not dispositive, although again, where motive is shown, such evidence will usually be
probative of proof of intent to kill. Nor is the circumstance that the bullet misses its mark
or fails to prove lethal dispositive—the very act of firing a weapon ‘“in a manner that
could have inflicted a mortal wound had the bullet been on target”’ is sufficient to
support an inference of intent to kill.” (People v. Smith, supra, 37 Cal.4th at p. 742;
accord, People v. Foster (2021) 61 Cal.App.5th 430, 440.) Further, “[a] person who acts
with intent to kill in firing at a group of people is ‘guilty of attempted murder even if he
or she intended to kill a random person rather than a specific one.’” (People v. Foster,
supra, at p. 440, quoting People v. Stone, supra, 46 Cal.4th at p. 141.)
The evidence showed that defendant, after hearing there were some rival Sureño
gang members on a nearby street, drove down that street and, from approximately 16 feet
away, fired 13 rounds from an automatic firearm at the crowd in the front yard, killing
one person and wounding two. This action was more than sufficient to support the jury’s
findings that defendant acted with intent to kill when he shot at a group and wounded the
two attempted murder victims. (People v. Foster, supra, 61 Cal.App.5th at pp. 443–444;
accord, In re Lisea (2022) 73 Cal.App.5th 1041, 1057–1058; People v. Medina (2019) 33
Cal.App.5th 146, 153–154.)

21.
III. Assembly Bill 333
Finally, in supplemental briefing, defendant seeks relief under Assembly Bill 333,
which amended section 186.22, effective January 1, 2022.6 The parties agree that the
amendment to section 186.22 applies retroactively to cases not yet final, and that
defendant is entitled to have the gang enhancement findings vacated because they are not
supported by sufficient evidence under the amended version of section 186.22. We agree
with the parties on both points.
This court has concluded that Assembly Bill 333’s amendment of section 186.22
is ameliorative in nature and, therefore, applies retroactively to nonfinal cases such as this
one, in accordance with In re Estrada (1965) 63 Cal.2d 740. (People v. Ramos, supra, 77
Cal.App.5th at pp. 1126–1127; People v. Rodriguez (2022) 75 Cal.App.5th 816, 822; see
People v. Vasquez (2022) 74 Cal.App.5th 1021, 1032, fn. 9.) Therefore, defendant is
entitled to benefit from the amendment of section 186.22 under Assembly Bill 333.
As recently summarized by this court in Ramos, “Assembly Bill 333 amended the
definition of a ‘“criminal street gang,”’ requiring proof that the gang is an organized
association, whose members collectively engage in, or have engaged in, a pattern of
criminal activity (§ 186.22, subd. (f)). Next, the law created a stricter requirement for
proof of a ‘pattern of criminal gang activity,’ which is necessary to prove that the group
with which the defendant is associated is indeed a criminal street gang. (§ 186.22,
subd. (e).) Previously, the prosecution needed to prove only that those associated with
the gang had committed at least two offenses from a list of predicate crimes on separate

6 Assembly Bill 333 also added section 1109 to the Penal Code, which addresses the
bifurcation of both substantive gang offenses and gang enhancements under section 186.22, but
that amendment is not at issue in this appeal. (See People v. Ramos (2022) 77 Cal.App.5th 1116,
1119, 1126, 1131–1133 & fn. 7 (Ramos) [concluding § 1109 also applies retroactively, but the
error was not prejudicial under People v. Watson (1956) 46 Cal.2d 818, 836]; but see People v.
Burgos (2022) 77 Cal.App.5th 550, 554, 568–569 [§ 1109 applies retroactively and assuming
harmless error analysis applies, error prejudicial under either federal or state standard of
review].)

22.
occasions within three years of one another. (See former § 186.22, subd. (e).) Under the
newly amended law, the offense with which the defendant is currently charged cannot be
used as one of the two predicate offenses. (§ 186.22, subd. (e)(2).) In addition, the last
of the predicate offenses must have ‘occurred within three years of the prior offense and
within three years of the date the current offense is alleged to have been committed.’ The
predicate offenses must have been committed by gang ‘members,’ and must have been
for the ‘common[] benefit[] [of] a criminal street gang.’ (§ 186.22, subd. (e)(1).)
Assembly Bill 333 also narrowed the list of offenses that may be used to establish a
pattern of criminal gang activity (compare former § 186.22, subd. (e)(1)–(33) with
§ 186.22, subd. (e)(1)(A)–(Z)). Additionally, it defines ‘to benefit, promote, further, or
assist’ throughout section 186.22 to mean ‘to provide a common benefit to members of a
gang where the common benefit is more than reputational.’ (§ 186.22, subd. (g).) The
legislation notes 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.)” (Ramos, supra, 77 Cal.App.5th at pp. 1125–
1126.)
As is common in gang cases, the prosecutor proceeded on the theory that the
charged crimes provided a reputational benefit to the Norteño gang by causing fear and
intimidation, and there was no testimony identifying any benefit that extended beyond
bolstering the gang’s reputation. Under the gang statute as amended, this evidence is
insufficient to support a finding that defendant committed murder and attempted murder
“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).)
In addition, the evidence introduced to show a pattern of criminal activity within
the meaning of the statute also falls short under the statute as amended. (§ 186.22,

23.
subds. (e)(1), (f).) Specifically, the two predicate offenses occurred within three years of
one another, but the second offense did not occur within three years of the charged
offenses, and the prosecutor did not offer any evidence that the predicate offenses
benefitted the gang and the benefit was more than reputational. (Id., subd. (e)(1).)
Moreover, defendant points out that the charged offenses may no longer be
considered to satisfy the definition of a pattern of criminal gang activity. The jury was
instructed, in part, “If you find the defendant guilty of a crime in this case, you may
consider that crime in deciding whether one of those primary activities was the
commission of that crime and whether its pattern of criminal gang activity has been
proved.” However, the jury was also instructed, more specifically based on the facts of
this case, that a criminal street gang within the meaning of the gang enhancement means
a group “that has as one or more primary activities, the com[m]ission of assault with a
deadly weapon and assault with force likely to produce great bodily injury,” and a pattern
of criminal gang activity means, in relevant part, “the conviction of assault with a deadly
weapon an[d] assault with force likely to produce great bodily injury .…” Neither party
emphasized the gang enhancements during closing argument or went over the elements
for the jury, and the prosecutor noted only, in rebuttal, “So when you’re talking about the
gang enhancements you’ll have the defendant’s priors in here. You see he’s convicted on
… another assault and in another three years that also goes towards the defendant’s
participation in a gang.”
In this case, it appears unlikely that the jury relied on the charged offenses to find
a “‘pattern of criminal gang activity.’” (§ 186.22, subd. (e)(1).) Nevertheless, it is a
possibility and, as defendant argues, it is no longer permissible to do so under the statute
as amended. (§ 186.22, subd. (e)(2).) Given that the other evidentiary deficiencies are
dispositive, we need not determine whether this error would, on its own, require reversal.
(People v. Delgado (2022) 74 Cal.App.5th 1067, 1090 [gang enhancements must be
reversed where appellate court could not “conclude beyond a reasonable doubt that the

24.
jury imposed the gang enhancements on a now legally valid ground under Assembly
Bill 333’s amendments”], citing People v. Aledamat (2019) 8 Cal.5th 1, 13; accord,
People v. Hola (2022) 77 Cal.App.5th 362, 376, fn. 14.)
In light of the foregoing, defendant is entitled to have the gang enhancement
findings attached to counts I through III vacated, and we shall remand the matter to the
trial court for further proceedings. On remand, the prosecution may elect to retry
defendant on the gang enhancements under section 186.22 as amended by Assembly
Bill 333.7 (Ramos, supra, 77 Cal.App.5th at p. 1128; accord, People v. Rodriguez, supra,
75 Cal.App.5th at p. 824; People v. Vasquez, supra, 74 Cal.App.5th at p. 033.)
DISPOSITION
The gang enhancement findings attached to counts I through III are vacated, and
this matter is remanded to the trial court. If the prosecution does not elect to retry
defendant on the gang enhancements within 60 days from the filing of the remittitur in
the trial court, the trial court shall resentence defendant and forward an amended abstract
of judgment to the appropriate authorities. Except as modified, the judgment is affirmed.

MEEHAN, J.
WE CONCUR:

PEÑA, Acting P. J.

DeSANTOS, J.

7 Where reversal is not “‘“based on the insufficiency of the evidence required to prove a
violation of the statute as it read at the time of trial, the double jeopardy clause of the
Constitution will not bar a retrial.”’” (Ramos, supra, 77 Cal. App.5th at p. 1128, quoting People
v. Sek, supra, 74 Cal.App.5th at p. 669.)

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