People v. Caudillo CA1/1

Filed 6/30/22 P. v. Caudillo CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,
Plaintiff and Respondent, A164248

v. (Merced County
JAIME MARIA CAUDILLO et al., Super. Ct. Nos. 15 CR-00939A &
15 CR-00939B)
Defendants and Appellants.

A jury found defendants Jaime Maria Caudillo and Steven Rincon
guilty of assault on a peace officer, felon in possession of a firearm, active
participation in a criminal street gang, and found true that they committed
the offenses for the benefit of, or in association with, a criminal street gang.
In this appeal, Rincon asserts that his assault on a peace officer conviction
and the jury’s true findings on the gang enhancements are not supported by
substantial evidence and that the trial court erred in denying his motion for a
new trial, while Caudillo raises several sentencing errors.
After the appeal was fully briefed, the Legislature enacted Assembly
Bill No. 333 (2021–2022 Reg. Sess.) (Assembly Bill 333), which amended
Penal Code1 section 186.22 to require proof of additional elements to
establish an active participation offense or a gang-related enhancement. The

1 All statutory references are to the Penal Code.
new legislation also added section 1109 to the Penal Code to require
bifurcation of gang enhancement allegations from the underlying charges
upon a request from the defense, and separate trial of any active
participation count unless the other substantive counts require gang evidence
as an element. (Stats. 2021, ch. 699, §§ 1–5.)
Both defendants filed supplemental briefs, arguing that Assembly
Bill 333 applies retroactively and requires reversal of their active
participation convictions and gang-related enhancements. The Attorney
General concedes a remand for retrial of those charges is necessary. We
agree, and will remand for that purpose. Defendants also contend, however,
that section 1109 applies retroactively, and requires reversal of their
convictions for assault on a peace officer and felon in possession of a firearm.
We conclude we need not decide whether section 1109 applies retroactively,
because any error in not separately trying the gang-related charges was
harmless under the circumstances of this case. We otherwise affirm the
judgments.
I.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Traffic Stop and Shooting
About 2:00 a.m. on February 28, 2015, Merced Police Officer Brian
Rinder, who was patrolling for drivers who may be have been under the
influence, spotted a burgundy Chrysler 200. Rinder began following the car
to look for possible signs that the driver was driving under the influence. As
he was following the Chrysler northbound on G Street, Rinder saw it make a
left turn without yielding to oncoming traffic. Rinder turned on his red-and-
blue traffic enforcement lights to get the vehicle to stop. At first, the driver
did not stop, and Rinder called dispatch through his radio to say the car was

2
not pulling over. The driver drove an entire block, then made a right turn
before he eventually pulled over in the middle of the block on H Street.
After the Chrysler pulled over, Officer Rinder approached the driver’s
side of the vehicle. The car was still running. Rinder asked the driver, later
identified as Rincon, for his driver’s license. Rinder explained he had pulled
Rincon over because of the traffic violation, and “to evaluate if [Rincon] had
any signs of impairment.” Rincon gave Rinder his driver’s license. Rinder
noticed that Rincon had “two lines with four dots on top of it [sic]” tattooed
directly underneath his left eye, which Rinder immediately recognized as a
gang tattoo. Rincon also looked Rinder in the eyes as he was speaking with
him.
Caudillo was sitting in the front passenger seat. Rinder noticed he
seemed “very tense” and “just stared straight” ahead. Rinder thought this
was unusual.
While Rinder was talking with Rincon, a second police officer, Officer
Ryan Rasmussen, arrived on the scene in a different car. As Rasmussen
approached on the passenger side of the Chrysler, Rinder gestured for
Rasmussen to watch Caudillo. About 15 seconds after Rasmussen arrived, a
third officer, Officer Joseph Opinski, also arrived at the scene.
Officer Rasmussen asked Caudillo several times to roll down the front
passenger window, but Caudillo did not do so. Rasmussen then told Rinder
to order Caudillo to roll it down. Eventually, Caudillo reached over with his
left hand, which was “shaking really bad,” and rolled down the window.
Caudillo’s right hand was not visible to the officers because it was covered
with a hat or a sweatshirt. Rasmussen had asked Caudillo for his
identification twice but Caudillo just kept looking forward and ignored him.

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 Officer Rasmussen then gave a command for Caudillo to show his
hands. Caudillo did not do anything and kept looking out the front window.
Rasmussen again told Caudillo to show his hands. Caudillo ignored him and
kept staring straight ahead. At that point, Rasmussen realized “ ‘something’s
not right here.’ ” Rasmussen removed his gun and put it down by his side.
Then he took half a step back, pointed his gun at Caudillo, and said, “ ‘Show
me your fucking hands.’ ” While Rasmussen was ordering Caudillo to show
his hands, Officer Rinder ordered Rincon to turn off the car, but he did not do
so.
“Within a split second,” Caudillo raised his right hand. Rasmussen saw
two or three muzzle flashes come from the passenger-side window and heard
a gunshot. Bullets struck Rasmussen in his abdomen and another bullet
“nicked the middle finger” of his right hand “and went down . . . through the
ring finger” and pinkie finger. Rasmussen’s bulletproof vest stopped the
bullets to the abdomen, but his ring finger was completely shattered and his
pinkie finger “had a lot of broken bones in it.”2 Officers returned a “volley of
gunfire” and Officer Opinski radioed that an officer was “down.”
Defendants’ vehicle “took off” almost instantly. Officer Rinder heard a
noise that made him think the car was shifted into gear before it sped off.
Opinski jumped in his patrol car and attempted to follow defendants, but
quickly lost sight of their vehicle. Defendants were later located following a
search. Rincon was found hiding in a bedroom closet and officers had to use
force to remove and arrest him.
B. Other Evidence
At some point during his search for defendants, Officer Opinski saw
defendants’ Chrysler, which had crashed in an alleyway. The car windows

2 His pinkie finger was later amputated.

4
were shot out and Caudillo’s prosthetic leg was located near the car. When
officers returned to the alleyway later to search for evidence related to the
shooting, they discovered a .38 Special revolver with five spent shell casings
in a nearby backyard.
In addition, it was discovered that the day before the shooting, Rincon
sent several text messages. One message was read by a gang expert at trial
as follows: “ ‘I’m wit James n did you ever get them bullets for me the 45
autos in the 38’ [then] the words S-P-L-S. which I believe is to be special,
always .38 Specials.”3 Another message read, “ ‘K IMA be out there trying to
come up help me out in set up a kick I have a car n my boy n two straps.’ ”4
Yvonne D., who knew Rincon as a young boy and considered him part of
her family, spoke with police shortly after the shooting. Due to her
reluctance to testify at trial about details of her interactions with defendants
on the day of the shooting, the court allowed the jury to hear portions of her
interview with police as a prior inconsistent statement. Yvonne D. said that
Rincon showed up at her home between 8:00 and 8:30 p.m. with someone who
had a prosthesis. When asked if she saw Rincon in possession of a firearm
“when they were here at [her] house earlier in the day,” she stated, “They
both had one.” She said one was a revolver and one was not. She explained
the “[o]ne with the peg leg” had the revolver and Rincon had the other gun.

3Caudillo’s opening brief quotes the message as follows: “ ‘I’m wit
James n did you ever get them bullets for me the 45 autos in the 38 sp/s.
Always.’ ” Caudillo cites to exhibit 134, but that exhibit was not included in
the appellate record.
4Officer Steven Odom testified that “ ‘straps’ is a street name for gun,
firearm that gang members will use in their terminology.”

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C. Gang Evidence
Officer Steven Odom testified as a gang expert for the prosecution.
Odom testified that the Norteño gang’s primary activities include murder,
shootings, possession of firearms, criminal threats, selling narcotics,
prostitution, and vehicle theft, among others. According to Odom, another
characteristic of the Norteño gang is the shared belief that “law enforcement
is the ultimate enemy” because they “perceive [law enforcement] as the ones
who are stopping their criminal organization.”
Odom testified that firearms are particularly important to the gang
because they can be used for offensive and defensive purposes. Odom
explained that the gang often uses firearms “to instill fear in law
enforcement” as well as among the overall community and “to show they are
not afraid to engage their rival at any point.” He also noted that among the
basic rules Norteños have to follow are “to never have any cowardice” in
dealings with law enforcement, to “never leave a fellow Soldado, which is
soldier, alone in battle.” Odom explained that Norteños are “militaristic” in
their structure and are expected to “defend their fellow soldier in battle with
the enemy.” The consequences for abandoning a fellow “soldier” could include
assault, loss of status, removal from the gang, or even being killed. He
agreed it is important for Norteños to know about and have access to
firearms and observed that they “need to be aware that there’s a firearm
accessible to them.” For that reason, they are expected to notify each other if
they bring a gun into a car, because they need to be able to use it if they
encounter a rival.
Odom testified if a Norteño shot a police officer it would be “[v]ery
important” to have another Norteño with him, both to defend him in battle

6
and to report back to the gang that the person had “put in work” which could
elevate that person’s status in the gang.
Based on a hypothetical mirroring the facts of this case, Odom opined
that both the shooting of the police officer and the possession of firearms
would have been committed for the benefit of or in association with the
Norteño gang. As to possession of a firearm, Odom based his conclusion on
the fact that there were two active gang members associating together and
that possession of a firearm “benefits . . . the gang member and the gang
itself” because “they can use that firearm in offense or defensive manners to
commit felonious crimes for overall benefit of their gang by instilling that
fear in the community or rivals or, in this hypothetical, law enforcement.” As
to the shooting of a police officer, Odom’s opinion was based on the fact that
there were “two Nortenos associating together” and that the shooting
benefited “their street gang and that gang member’s status within the gang
as well as showing that they’re willing to do whatever it takes, and using a
firearm, especially on a law enforcement officer, the ultimate enemy, again,
to instill fear in the community, rivals and law enforcement.” Odom also
opined the crimes would have been done with the specific intent to promote
criminal street gang activity.
Three other police officers also testified to their prior contacts with
defendants. Both Rincon and Caudillo admitted to the police they were
members of the Norteños.
D. Procedural History
On November 27, 2018, the district attorney filed a third amended
information in the Merced County Superior Court charging defendants with
assault with a firearm on a peace officer (§ 245, subd. (d)(1); count 1),
possession of a firearm by a felon (§ 29800, subd. (a)(1); count 2), and street

7
terrorism (active participation in a criminal street gang) (§ 186.22, subd. (a);
count 3). It was further alleged in count 1 that Caudillo personally
discharged a firearm causing great bodily injury (§ 12022.53, subds. (d) &
(e)(1)), and that Rincon was a principal in the commission of the offense
(§ 12022.53, subds. (d) & (e)(1)). In counts 1 and 2, it was alleged that the
offenses were committed for the benefit of the Norteño street gang. (§ 186.22,
subd. (b).) The information further alleged that Rincon had two prior serious
felony convictions (§ 667, subd. (a)(1)) and two prior strikes (§ 667, subds. (b)–
(i)), and that Caudillo had one prior serious felony conviction (§ 667, subd.
(a)(1)), and one prior strike (§ 667, subds. (b)–(i)).
Trial on the prior convictions allegations was bifurcated. On May 22,
2019, a jury found defendants guilty as charged and found all allegations
true. The trial court subsequently found all prior conviction allegations true.
On July 30, Rincon filed a motion for new trial, which was denied by the trial
court.
On August 19, 2019, the trial court sentenced Rincon to an aggregate
term of nine years eight months consecutive to 50 years to life in state prison
and Caudillo to an aggregate term of 25 years eight months, consecutive to a
term of 25 years to life.
II.
DISCUSSION
A. Substantial Evidence
Rincon challenges the sufficiency of the evidence supporting his
conviction for aiding and abetting assault on a peace officer and the jury’s
true findings on the gang enhancements.

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 1. Standard of Review
When considering a challenge to the sufficiency of the evidence, we
consider “ ‘ “the whole record in the light most favorable to the judgment
below to determine whether it discloses substantial evidence—that is,
evidence which is reasonable, credible, and of solid value—such that a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt.” ’ ” (People v. Casares (2016) 62 Cal.4th 808, 823, disapproved on
another ground in People v. Dalton (2019) 7 Cal.5th 166, 214.) “ ‘Resolution
of conflicts and inconsistencies in the testimony is the exclusive province of
the trier of fact. [Citation.] Moreover, unless the testimony is physically
impossible or inherently improbable, testimony of a single witness is
sufficient to support a conviction.’ ” (People v. Brown (2014) 59 Cal.4th 86,
106.) “ ‘[I]t is the jury rather than the reviewing court that weighs the
evidence, resolves conflicting inferences and determines whether the People
have established guilt beyond a reasonable doubt.’ ” (Casares, at p. 823.) “ ‘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. Manibusan (2013) 58 Cal.4th 40,
87.)
2. Aiding and Abetting Assault
Rincon first contends the evidence was insufficient to support his
conviction for aiding and abetting assault with a firearm on a peace officer.
Specifically, he argues the prosecution failed to present substantial evidence
he had the necessary mental state, i.e., that he acted “ ‘with knowledge of the
criminal purpose of the perpetrator’ ” and “ ‘with an intent or purpose either
of committing, or of encouraging or facilitating commission of’ ” the offense.

9
 “ ‘[A]n aider and abettor will “share” the perpetrator’s specific intent
when he or she knows the full extent of the perpetrator’s criminal purpose
and gives aid or encouragement with the intent or purpose of facilitating the
perpetrator’s commission of the crime.’ ” (People v. Maciel (2013) 57 Cal.4th
482, 518.) “Presence at the scene of a crime, alone, is insufficient to establish
aiding and abetting liability.” (People v. Em (2009) 171 Cal.App.4th 964,
970.) However, “ ‘[a]mong the factors which may be considered in making the
determination of aiding and abetting are: presence at the scene of the crime,
companionship, and conduct before and after the offense.’ ” (People v. Nguyen
(2015) 61 Cal.4th 1015, 1054.)
Here, ample evidence supports the jury’s guilty verdict on Rincon’s
aiding and abetting assault conviction. The day before the shooting, Rincon
sent a text message asking “ ‘did you ever get them bullets for me the 45
autos in the 38 [special].’ ” He then sent another text message stating: “ ‘K
IMA be out there trying to come up help me out in set up a kick I have a car n
my boy n two straps.’ ” These messages suggest Rincon knew Caudillo had a
gun, and was helping procure ammunition for his weapon. Moreover, earlier
in the day before the shooting, Rincon and Caudillo visited Yvonne D.
together, where they both showed her their firearms. Officer Odom, the
prosecution’s gang expert, also testified that Norteños are expected to notify
each other if they bring a gun into a car. Taken together, this evidence shows
Rincon knew Caudillo had a weapon and was prepared to aid and abet
Caudillo in an assault.
In addition, after Officer Rinder activated his traffic enforcement
lights, Rincon drove an entire block and a half to a darker area before pulling
over, suggesting Rincon intentionally selected a location to stop where
visibility was worse, making it more difficult for officers to see. Rincon also

10
left the car running during the traffic stop. After Rinder commanded Rincon
to turn off his car, he refused to do so, making it easier to escape quickly after
Caudillo shot Officer Rasmussen. Indeed, Rinder testified the car took off
within “split seconds” after Rasmussen was shot. (See, e.g., People v. Medina
(2009) 46 Cal.4th 913, 924 [evidence that defendants fled after shooting was
treated as an additional factor suggesting aiding and abetting liability].) A
juror could reasonably infer from these facts that Rincon drove and parked
the car in a manner to facilitate the shooting.
Finally, expert evidence established that both Rincon and Caudillo
were active members of the Norteños, a criminal street gang whose primary
activities include murder, shootings, and possession of firearms. The
prosecution’s gang expert testified that one of the unifying beliefs among
Norteños is the shared view that “law enforcement is the ultimate enemy.”
He explained that Norteños use firearms to “instill fear in law enforcement”
and to “show that they are not afraid to engage their rival at any point.”
Likewise, he testified that Norteños are expected “[t]o defend their fellow
soldier” in battle and that the consequences for failing to do so are severe. A
rational trier of fact could conclude that Rincon aided and abetted Caudillo to
protect him, to advance his own position in the gang, or to instill fear in law
enforcement.
Rincon contends the prosecution’s aiding and abetting theory was
purely speculative based on the record in this case. He argues there was no
evidence of a preplanned assault on a police officer,5 that Rincon’s behavior

5 We observe that premeditation is not required for aiding and abetting
assault and Rincon need only have formed intent to assist Caudillo during
the commission of the offense. (People v. Cooper (1991) 53 Cal.3d 1158, 1164.)
Moreover, he did not need advance knowledge of Caudillo’s intent to commit
the offense. “ ‘Aiding and abetting may be committed “on the spur of the

11
during the traffic stop was innocuous, and that Rincon’s decision to leave the
car running during the traffic stop and immediate flight after the shooting
were equally consistent with innocence. These arguments essentially ask us
to reweigh the evidence, which of course, we may not do on appeal. (People v.
Albillar (2010) 51 Cal.4th 47, 60 (Albillar); People v. Ceja (1993) 4 Cal.4th
1134, 1139 [“an appellate court may not substitute its judgment for that of
the jury. If the circumstances reasonably justify the jury’s findings, the
reviewing court may not reverse the judgment merely because it believes that
the circumstances might also support a contrary finding.”].)6 In sum, viewing
the entire record in the light most favorable to the judgment and accepting
all logical inferences the jury might have drawn from the evidence, sufficient
evidence supports Rincon’s conviction for aiding and abetting assault on a
peace officer.
3. Gang Enhancements
Rincon next contends there in insufficient evidence to support the
findings necessary for the gang-related enhancements under sections 186.22,
subdivision (b) and 12022.53, subdivision (e)(1). Although the recent passage
of Assembly Bill 333 requires that we vacate the gang findings for reasons
explained below, we will address these claims to determine whether the
enhancements may be retried on remand. (See, e.g., People v. Eroshevich

moment,” that is, as instantaneously as the criminal act itself.’ ” (People v.
Swanson-Birabent (2003) 114 Cal.App.4th 733, 742.)
6 Rincon also asserts that the evidence shows his behavior was not a
gang-related act to instill fear, but the product of Caudillo’s spontaneous
decision due to his fear of being arrested on an outstanding warrant. Again,
while this may be one inference a jury could draw from the evidence, our task
on review is not to reevaluate the jury’s decision, but to determine whether
substantial evidence supports the verdict. (Albillar, supra, 51 Cal.4th at
p. 60.)

12
(2014) 60 Cal.4th 583, 591 [defendant may not be retried if the judgment is
reversed because, as a matter of law, the evidence was insufficient to support
the conviction]; People v. Sek (2022) 74 Cal.App.5th 657, 669 [double jeopardy
does not bar a retrial when appellate court does not reverse based on
insufficiency of the evidence].)
Under the law in effect at the time of defendants’ trial, there are two
elements to the criminal street gang enhancement under section 186.22,
subdivision (b) the crime must have been committed (1) “for the benefit of, at
the direction of, or in association with any criminal street gang,” and
(2) “with the specific intent to promote, further, or assist in any criminal
conduct by gang members.” (Former § 186.22, subd. (b)(1); Albillar, supra,
51 Cal.4th at p. 59.)
a. Count 1
Rincon first argues the evidence was insufficient to support true
findings on the section 186.22, subdivision (b) and section 12022.53,
subdivision (e)(1)7 enhancements to count 1 (aiding and abetting assault on a
peace officer).
As to the first prong (the “gang-related” prong), sufficient evidence
supports the jury’s true finding based either on a theory that Rincon acted
“for the benefit” of a criminal street gang or that he acted “in association
with” the gang. (See People v. Morales (2003) 112 Cal.App.4th 1176, 1198
(Morales) [only one of three gang-related prong theories need to be proven—

7 Section 12022.53, subdivision (e)(1) provides for a firearm
enhancement applicable “to any person who is a principal in the commission
of an offense” if “[t]he person violated subdivision (b) of Section 186.22,” and
“[a]ny principal in the offense committed any acts specified in subdivision (b),
(c), or (d).”

13
that the crime was committed “(1) for the benefit of, (2) at the direction of, or
(3) in association with a gang”].)
As to the “for the benefit of” theory, Officer Odom testified that the
Norteños were a criminal street gang, and that Rincon and Caudillo were
self-admitted or documented members of that gang. Three other police
officers corroborated this testimony. Odom testified that the gang’s primary
activities included murder, shootings, and possession of firearms, that gang
members share a belief that “law enforcement is the ultimate enemy,” and
that Norteños perceive law enforcement “as the ones who are stopping their
criminal organization.” Odom also testified that the gang uses firearms “to
instill fear in law enforcement” and “to show that they are not afraid to
engage their rival at any point,” and gang members are expected to “defend
[their] fellow soldier in battle.” In response to a hypothetical based on the
facts of the case, Odom stated the shooting of the police officer benefitted the
gang by enhancing the status of the gang members and “instilling . . . fear in
the community or rivals, or . . . law enforcement.” Under these facts, a
rational trier of fact could conclude that Rincon aided and abetted the assault
on Rasmussen to benefit the gang. (Albillar, supra, 51 Cal.4th at p. 63
[“Expert opinion that particular criminal conduct benefited a gang by
enhancing its reputation for viciousness can be sufficient to raise the
inference that the conduct was ‘committed for the benefit of . . . a[] criminal
street gang’ ”]; People v. Vang (2011) 52 Cal.4th 1038, 1048 [“ ‘Expert opinion
that particular criminal conduct benefited a gang’ is not only permissible but
can be sufficient to support the . . . gang enhancement.”].)
As to the “in association with” theory, Rincon was indisputably with
Caudillo when he assaulted Rasmussen. They were traveling together in a

14
red8 Chrysler. As discussed above, substantial evidence supported the jury’s
finding that Rincon aided and abetted Caudillo in the assault on Rasmussen.
The jury could reasonably infer from those facts that Rincon and Caudillo
came together as gang members to commit their crimes. (See Morales, supra,
112 Cal.App.4th at p. 1198 [“the jury could reasonably infer the requisite
association from the very fact that defendant committed the charged crimes
in association with fellow gang members”].)
Regarding the second prong (the specific intent prong), courts recognize
that specific intent to promote, further, or assist in criminal conduct by gang
members “ ‘usually must be inferred from the facts and circumstances
surrounding the offense’ ” and is rarely “ ‘susceptible of direct proof.’ ” (People
v. Rios (2013) 222 Cal.App.4th 542, 567–568.) As our Supreme Court
explained in Albillar, “if substantial evidence establishes that the defendant
intended to and did commit the charged felony with known members of a
gang, the jury may fairly infer that the defendant had the specific intent to
promote, further, or assist criminal conduct by those gang members.”
(Albillar, supra, 51 Cal.4th at p. 68.)
Here, the gang expert testified that Rincon and Caudillo were active
Norteños in part based on their visible tattoos. Rincon’s tattoos were
prominently displayed on his body, such that when Officer Rinder first
encountered him, he immediately recognized Rincon as a Norteño. A review
of photographs with Rincon and other gang members showed Rincon flaunted
his association with the Norteños, flashing their gang signs. Odom testified
to the importance for Norteños of instilling fear in enemies, that law
enforcement is the “ultimate enemy” and that gang members seek to scare
law enforcement to defend their gang and carry on their criminal activities.

8 One officer testified that Norteños identify with the color red.

15
Further, as discussed above, Odom testified that Norteños are expected to
defend a fellow soldier in battle. In response to a hypothetical based on the
facts of the case, Odom opined the participants in the assault were acting in
association with and to benefit the gang, and that their crimes were done
with specific intent to further criminal street gang activity. In addition,
shortly before the shooting, a text message from Rincon shows he was
attempting to procure ammunition for Caudillo. Moreover, as discussed
above, because substantial evidence showed that Rincon aided and abetted
Caudillo, a known gang member, in the assault on Rasmussen, the jury could
reasonably infer Rincon had the specific intent to promote, further, or assist
criminal conduct by a gang member. (Albillar, supra, 51 Cal.4th at p. 68;
People v. Weddington (2016) 246 Cal.App.4th 468, 485.)
b. Count 2
Rincon next contends insufficient evidence supports the jury’s true
finding on the gang enhancement for possession of a firearm by a felon. We
disagree.
First, as to the “gang-related” prong, there was sufficient evidence to
sustain a finding that the crime was committed “in association with” a
criminal street gang member within the meaning of section 186.22. Rincon
was accompanied by Caudillo, and both men were Norteños. Further, it is
undisputed that Rincon possessed a firearm when he was with Caudillo.
These facts are sufficient to show he acted “in association with” a criminal
street gang. (See, e.g., People v. Martinez (2008) 158 Cal.App.4th 1324, 1332
[sufficient evidence supported gang enhancement where the defendant, an
admitted gang member, committed crimes with another admitted gang
member]; Morales, supra, 112 Cal.App.4th at p. 1198 [evidence that the

16
defendant knowingly committed the charged crimes in association with two
fellow gang members was sufficient to support gang enhancements].)
Regarding the “specific intent” prong, the record contains substantial
evidence Rincon possessed the firearm with the specific intent to further gang
members’ criminal activities. There was evidence Rincon possessed a firearm
and was an admitted Norteño. Odom testified that possession of firearms
was one of the primary activities of the gang and that firearm possession
benefitted the gang by allowing them to commit crimes to instill fear in
communities, their rivals, and law enforcement. (See People v. Vang, supra,
52 Cal.4th at p. 1048 [“ ‘Expert opinion that particular criminal conduct
benefited a gang’ is not only permissible but can be sufficient to support [a]
gang enhancement”].) There was evidence that Rincon possessed the firearm
when he was with Caudillo at Yvonne D.’s house. Moreover, Rincon sent text
messages regarding their possession of firearms and attempting to procure
ammunition. Taken together and viewed in the light most favorable to the
prosecution, such evidence supports a finding that Rincon possessed a
firearm in association with Caudillo, another gang member, with the specific
intent to further his criminal conduct.
Rincon relies on People v. Ramon (2009) 175 Cal.App.4th 843, to argue
the mere fact that Rincon was a gang member, unlawfully possessing a
weapon in the presence of another gang member, is insufficient to establish
the section 186.22 gang enhancement. In Ramon, the gang expert opined
that the defendant committed his crimes for the benefit of a criminal street
gang because (1) both he and his codefendant were members of the gang, and
(2) police stopped the two in gang territory. (Ramon, at p. 849.) The
appellate court vacated the defendant’s gang enhancement because “[t]here
were no facts from which the expert could discern whether [the defendants]

17
were acting on their own behalf the night they were arrested or were acting
on behalf of the [gang].” (Id. at p. 851.)
This case is distinguishable from Ramon. Although the court in Ramon
found the evidence insufficient to show the defendants were “acting to
promote a criminal street gang,” the court explained its “analysis might be
different if the expert’s opinion had included ‘possessing stolen vehicles’ as
one of the activities of the gang.” (Ramon, supra, 175 Cal.App.4th at p. 853.)
Here, by contrast, Odom testified possession of a firearm was one of the
primary activities of the gang.
In addition, the gang expert in Ramon opined the defendant committed
his crime for the benefit of the gang. (Ramon, supra, 175 Cal.App.4th at
p. 849.) Here, the prosecutor theorized Rincon possessed the firearm either
for the benefit of, or in association with, the Norteños. Even if there were
insufficient evidence showing he possessed the firearm for the benefit of the
gang, there was ample evidence he possessed it in association with the
Norteños. On this record, the jury could reasonably infer that Rincon acted
in association with another gang member “with the specific intent to promote,
further, or assist in criminal conduct” by Caudillo. (§ 186.22, subd. (b)(1); see
People v. Martinez, supra, 158 Cal.App.4th at p. 1333 [evidence sufficient to
support gang enhancement where “defendant, an admitted gang member
sporting gang tattoos, actually committed a robbery with a gang confederate];
Morales, supra, 112 Cal.App.4th at p. 1198.) In sum, substantial evidence
supported the jury’s true finding on the gang enhancement as to count 2.
B. Motion for New Trial
Rincon also asserts the trial court erred in denying his motion for a new
trial for two reasons: (1) because the evidence was insufficient to support his
conviction on count 1 and the jury’s true findings on the gang enhancement

18
allegations in counts 1 and 2, and (2) because the trial court failed to address
his argument that the jury’s verdict was contrary to the legal principles
governing circumstantial evidence.
1. Relevant Background
After the jury returned its verdict, defense counsel filed a motion for
new trial arguing that the verdict was contrary to the law and the evidence
because insufficient evidence supported his guilt on count 1 and the gang
enhancements. In his memorandum of points and authorities supporting the
motion, defense counsel argued that the jury’s verdict was “clearly contrary to
the evidence” because the “uncontroverted testimony” showed that Rincon
“lacked the requisite intent and knowledge to support a finding of guilty on
the assault with a firearm charge and the gang enhancements.” Counsel
asserted that “[t]he People’s own witnesses testified that defendant’s actions
during the vehicle stop and even his fleeing the scene upon shots being fired
were perfectly consistent with the conduct of a person who had no knowledge
that any shooting would take place as well as consistent with a person who
was fleeing to escape being shot as opposed to being done to help a fellow
gang member. The law is clear that faced with two such reasonable
inferences from the evidence, the Jury was required to find that he lacked the
requisite intent/knowledge and enter verdicts of not guilty.” Counsel argued
the jury ignored the court’s instruction on that legal principle, and
accordingly the court must grant a new trial.
In addressing the motion, the trial court began by summarizing
counsel’s arguments, including the arguments that insufficient evidence
supported the verdict and the jury’s verdicts were in error because it
disregarded the legal principles concerning circumstantial evidence. The
court then stated: “But in this case I find the evidence does have sufficient

19
probative value to sustain the verdicts based upon the totality of the evidence
presented at trial, not just the testimony of the witnesses who were present
during the stop; although[] they certainly play a factor in this case.” The trial
court discussed in detail the evidence supporting the verdict, including
Yvonne D.’s testimony that both defendants were in her residence armed
with firearms the evening before the shooting, Rincon’s delay in stopping the
car after Officer Rinder put his lights on, the evidence that the car was left
running during the traffic stop, Rincon’s driving off immediately once shots
were fired, and Rincon’s presence during the stop when Officer Rasmussen
was yelling at Caudillo to show his hands when Caudillo was obviously
nervous and shaking, covering the gun with his right hand. The court
acknowledged that Rincon “did not appear nervous to Officer Rinder,” but
noted that he took off “immediately” after shots were fired and later “was
found hiding in the closet” and had to be removed by force. The court
observed that the “most significant testimony” was Officer Odom’s expert
testimony regarding the culture of Norteños and the rules they have to
follow, including the testimony that “Nortenos would know if someone else in
the car is armed” and “they would have a duty to fight back regarding the
police.” The court concluded its ruling by stating: “So I think given the
totality of the circumstances, there is substantial evidence that Mr. Rincon
knew exactly what was going to take place during that traffic stop, and that
he did have the required intent and mental state to aid and abet Mr. Caudillo
in the assault upon Officer Rasmussen, so I’ll deny the new trial motion.”
2. Analysis
We review the trial court’s denial of a motion for new trial for abuse of
discretion. (People v. Davis (1995) 10 Cal.4th 463, 524; People v. Watts (2018)
22 Cal.App.5th 102, 115.) “ ‘ “The determination of a motion for a new trial

20
rests so completely within the court’s discretion that its action will not be
disturbed unless a manifest and unmistakable abuse of discretion clearly
appears.” ’ ” (Davis, at p. 524.) “ ‘Such an abuse of discretion arises if the
trial court based its decision on impermissible factors [citation] or on an
incorrect legal standard.’ ” (Watts, at p. 115.)
Under section 1181, subdivision 6, the trial court may grant a new trial
when the jury’s verdict is contrary to the law or the evidence. In deciding a
motion for new trial, the trial court “should consider the probative force of the
evidence and satisfy itself that the evidence as a whole is sufficient to sustain
the verdict.” (People v. Robarge (1953) 41 Cal.2d 628, 633.) The court must
independently weigh the evidence, but the court may not disregard the jury’s
verdict or simply decide what result it would have reached had the case been
tried to the court. (Ibid.) Rather, the trial court must “consider the proper
weight to be accorded to the evidence and then decide whether or not, in its
opinion, there is sufficient credible evidence to support the verdict.” (Ibid.)
Here, the record reflects that the trial court understood the correct
legal standard and properly considered and weighed all of the evidence
supporting the verdict. The court stated the motion “does require me as the
trial judge to independently review the evidence; although[] I should not
ignore the jury’s verdict, and I am to be guided by a presumption in favor of
the correctness of the jury’s verdict; thus, I cannot arbitrarily reject a verdict
if it is supported by substantial evidence.” The court then explained why, in
its independent assessment, sufficient evidence supported the verdict. For
reasons we have discussed above, we reject Rincon’s argument that the trial
court erred because insufficient evidence supported his conviction for aiding
and abetting assault on a peace officer.

21
 As to Rincon’s assertion that the trial court erred by failing to address
his argument that the verdict was contrary to legal principles governing
circumstantial evidence, we disagree the trial court erred or that reversal is
mandated by the circumstances of this case.9 First, the trial court
acknowledged defense counsel’s argument that the verdict was in error
because the jury was required to accept reasonable inferences pointing
toward innocence if shown by the circumstantial evidence. The court
nonetheless found “the evidence does have sufficient probative value to
sustain the verdicts based upon the totality of the evidence presented at trial,
not just the testimony of the witnesses who were present during the stop;
although[] they certainly play a factor in this case.” (Italics added.) The
court went on to explain how evidence of events before, during, and after the
traffic stop, together with the expert testimony, supported the jury’s verdict.
Further, in support of his argument the trial court erred, Rincon points
to Officer Rinder’s “uncontradicted testimony” that showed Rincon’s behavior
during the traffic stop was innocuous. In its ruling, however, the trial court
specifically acknowledged this evidence, but found other circumstantial
evidence amply supported Rincon’s guilt.
Even assuming the trial court erred in failing to address counsel’s
argument that the verdict was contrary to the law, any error was harmless.
(People v. Braxton (2004) 34 Cal.4th 798, 820 [error regarding new trial
motion not reversible error unless it results in a miscarriage of justice].)

9 We acknowledge the Attorney General’s argument that Rincon failed
to preserve this issue for appellate review because he failed to object to the
trial court’s ruling on this basis below. Rincon disputes the issue was
forfeited and argues, in the alternative, that trial counsel rendered ineffective
assistance by failing to object. We will exercise our discretion to decide the
issue on the merits to forestall the ineffective assistance claim. (See, e.g.,
People v. Lua (2017) 10 Cal.App.5th 1004, 1014.)

22
Here, after reviewing all of the evidence, the trial court concluded “given the
totality of the circumstances” that there was “substantial evidence that Mr.
Rincon knew exactly what was going to take place during that traffic stop,
and that he did have the required intent and mental state to aid and abet Mr.
Caudillo in the assault upon Officer Rasmussen.” In light of the trial court’s
thorough assessment of the evidence, the record reveals the trial court would
have denied the motion on the ground asserted by Rincon and that denial
would not have been an abuse of its discretion. (Braxton, at p. 818.)
Accordingly, any purported error in refusing to address Rincon’s argument
the verdict was contrary to law was harmless.
C. Assembly Bill 333
As noted above, after this appeal was fully briefed, the Legislature
enacted Assembly Bill 333, which increased the proof requirements for
conviction of active participation in a criminal street gang and imposition of
criminal street gang enhancements. The parties filed supplemental briefs
discussing the impact of this recent legislation on their convictions in this
case.
Rincon and Caudillo argue that they are entitled to reversal of their
convictions for active participation in a criminal street gang (count 3) and
gang-related enhancements under counts 1 and 2 based on the retroactive
application of the changes to section 186.22 made by Assembly Bill 333. In
addition, they argue, retroactive application of section 1109 requires that
their convictions for assault on a peace officer (count 1) and felon in
possession of a firearm (count 2) must also be reversed. For reasons we will
explain, we agree with their first contention, but not their second.

23
 1. Amendments to Section 186.22
Section 186.22 criminalizes active participation in a “criminal street
gang,” and enhances the punishment for certain crimes committed “for the
benefit of, at the direction of, or in association with any criminal street gang.”
(Former § 186.22, subds. (a), (b)(1).)
Assembly Bill 333, effective January 1, 2022, changed section 186.22 in
several important respects. “[I]t amended the definitions of ‘criminal street
gang’ and ‘pattern of criminal gang activity’ and clarified the evidence needed
to establish that an offense benefits, promotes, furthers or assists a criminal
street gang. Previously, the statute defined a ‘criminal street gang,’ as ‘any
ongoing organization, association, or group of three or more persons . . .
whose members individually or collectively engage in, or have engaged in, a
pattern of criminal gang activity.’ (Former § 186.22, subd. (f), italics added.)
Assembly Bill 333 narrowed the definition to ‘an ongoing, organized
association or group of three or more persons . . . whose members collectively
engage in or have engaged in, a pattern of criminal gang activity.’ (Assem.
Bill 333, § 3, revised § 186.22, subd. (f), italics added.)” (People v. E.H. (2022)
75 Cal.App.5th 467, 477 (E.H.).)
In addition, Assembly Bill 333 changed the definition of “ ‘pattern of
criminal activity,’ ” which was previously established by proof “ ‘that those
associated with the gang had committed at least two offenses from a list of
predicate crimes on separate occasions within three years of one another.’ ”
(E.H., supra, 75 Cal.App.5th at p. 477.) Under the new law, the prosecution
must prove the following additional elements with respect to predicate
offenses: “(1) the offenses must have ‘commonly benefited a criminal street
gang’ where the ‘common benefit . . . is more than reputational’; (2) the last
predicate offense must have occurred within three years of the date of the

24
currently charged offense; (3) the predicate offenses must be committed on
separate occasions or by two or more gang members, as opposed to persons;
and (4) the charged offense cannot be used as a predicate offense.” (People v.
Lopez (2021) 73 Cal.App.5th 327, 345 (Lopez).)
Defendants and the Attorney General agree that under the principles
enunciated in In re Estrada (1965) 63 Cal.2d 740 (Estrada), Assembly
Bill 333’s amendments to section 186.22 apply retroactively to defendants
whose convictions are not yet final. So do we. (Lopez, supra, 73 Cal.App.5th
at p. 344; People v. Delgado (2022) 74 Cal.App.5th 1067, 1087; E.H., supra,
75 Cal.App.5th at p. 478.) The changes to the definitions of “ ‘criminal street
gang’ ” and “ ‘a pattern of criminal gang activity’ ” in Assembly Bill 333
effectively added new elements to section 186.22, on which the jury was not
instructed. (E.H., at pp. 477, 479.) Accordingly, we must reverse unless it
appears beyond a reasonable doubt that the error did not contribute to the
verdict. (Ibid.)
The Attorney General concedes the gang evidence at defendants’ trial,
presented under the old law, fell short of meeting the requirements of the
new law. Specifically, the Attorney General explains that the jury was not
instructed that it had to find gang members “collectively engaged in a pattern
of criminal gang activity” nor that the predicate offenses commonly benefited
the gang in a way that was more than reputational as now mandated by
section 186.22, and that “little, if any, evidence” was presented on those
points. Because the evidence adduced at trial to prove the charges is no
longer sufficient under the new law, we must reverse defendants’ convictions
for active participation in a criminal street gang under section 186.22,
subdivision (a) and vacate the true findings on their criminal street gang
enhancements under section 186.22, subdivision (b) on counts 1 and 2.

25
 Further, Rincon contends the changes made by Assembly Bill 333 affect
not only the gang enhancement allegations under section 186.22, but other
statutes that incorporate section 186.22 by reference, including section
12022.53.10 (Lopez, supra, 73 Cal.App.5th at pp. 346–348.)
Here, the jury found true that Caudillo personally and intentionally
discharged a firearm, which caused great bodily injury to Officer Rasmussen,
and that Rincon was a principal to that offense. Because an enhancement
under section 12022.53, subdivision (e)(1)(A) requires a finding that Rincon
committed the act for the benefit of a criminal street gang, that finding must
also be vacated.
In sum, defendants’ convictions for active participation in a criminal
street gang under section 186.22, subdivision (a) and criminal street gang
enhancements under sections 186.22, subdivision (b) on counts 1 and 2, and
Rincon’s section 12022.53, subdivision (e)(1) enhancement on count 1, must
be reversed and remanded for retrial. (E.H., supra, 75 Cal.App.5th at
pp. 479–480.)
2. Section 1109
In addition to amending section 186.22, Assembly Bill 333 also added
section 1109 to the Penal Code, which requires bifurcation of gang
enhancements charged under section 186.22, subdivisions (b) or (d) to be
tried separately from the underlying charges upon request from the defense,
with the defendant’s guilt of the underlying offense being determined first
and the question of the truth of the gang enhancement determined only after
guilt on the underlying offense has been established. (Stats. 2021, ch. 699,

10The jury found that Caudillo personally and intentionally discharged
a firearm which caused great bodily injury to Rasmussen. Caudillo does not
challenge that true finding on appeal.

26
§ 5; § 1109, subd. (a).) Section 1109 also requires substantive charges of
active participation in a criminal street gang be tried separately from other
counts that do not require gang evidence as an element of the crime. (Stats.
2021, ch. 699, § 5; § 1109, subd. (b).)
a. Retroactivity
Defendants recognize that section 1109 “is a statute governing trial
procedure rather than punishment,” but they argue section 1109 should
apply retroactively to all cases not yet final, consistent with legislative intent
and the principles of retroactivity expressed in Estrada, supra, 63 Cal.2d at
page 745. In their argument, defendants rely primarily on People v. Superior
Court (Lara) (2018) 4 Cal.5th 299 (Lara), which held the provisions in
Proposition 5711 that modified the procedural requirements for trying a
juvenile in adult criminal court applied retroactively to all cases not final on
its effective date because “it ameliorated the possible punishment for a class
of persons, namely juveniles.” (Lara, at p. 308.) Defendants assert that like
the electorate’s intent with Proposition 57 to remedy a “ ‘too severe’ juvenile
direct filing system,” the Legislature, in adding section 1109, “expressed an
intent to correct the unduly prejudicial impact of trying gang charges and
allegations with other offenses.”
The Attorney General argues that section 1109, unlike the changes to
section 186.22, applies prospectively only because its provisions govern trial
procedure and do not affect the substantive requirements of the gang
allegations. In support of its argument, the Attorney General cites People v.
Cervantes (2020) 55 Cal.App.5th 927, 940, in which statutory amendments
that imposed new requirements for interrogations were not retroactive
because they did not “alter the substantive requirements for conviction, nor

11 The Public Safety and Rehabilitation Act of 2016.

27
affect the available punishments in the event of conviction,” and People v.
Sandee (2017) 15 Cal.App.5th 294, 305, footnote 7, in which statutory
amendments relating to the prohibition of governmental search of a cell
phone were not retroactive because they did not mitigate the penalty for a
crime, decriminalize conduct, or expand defenses.12
We need not decide whether section 1109 applies retroactively to
nonfinal cases because, for reasons we will explain, even accepting
defendants’ argument that it was error to try the active participation count
and gang enhancements together with the other offenses, we conclude any
such error was harmless under the state law standard of error. (See, e.g.,
Cal. Const., art. VI, § 13; E.H., supra, 75 Cal.App.5th at p. 480 [defendant
could not show it was “ ‘reasonably probable’ ” under People v. Watson (1956)
46 Cal.2d 818, 836 (Watson), that he would have obtained a more favorable
result had gang offense and enhancement been bifurcated].)
b. Harmless Error
Defendants contend harmless error analysis is “inapplicable” in this
circumstance because their claim for relief is based on Estrada’s principle of
extending the ameliorative benefits of new legislation to defendants whose
cases are not yet final. Defendants argue that because the benefit provided
by the new law is mandatory bifurcation upon defendant’s request, they are
entitled to that benefit here.
Defendants rely for this argument on People v. Vela (2018)
21 Cal.App.5th 1099, 1112–1113, but it is inapposite.13 In that case, the

12In his supplemental reply brief, Rincon contends these cases are both
distinguishable, and to the extent they are analogous, were wrongly decided
under the Supreme Court’s reasoning in Lara.
13In his supplemental reply brief, Rincon cited to the appellate court’s
2017 opinion, but the Supreme Court vacated that decision and transferred

28
court considered how harmless error analysis might apply to the judgment in
light of the retroactive application of Proposition 57 entitling him to a
juvenile transfer hearing. The court noted “[t]he jury’s convictions, as well as
its true findings as to the sentencing enhancements, will remain in place,”
and reasoned that “[n]othing [would] be gained by having a ‘dispositional
hearing,’ or effectively a second trial,” because a jury had already found the
defendant guilty beyond a reasonable doubt. (Vela, at p. 1112.) At the same
time, the court rejected the Attorney General’s harmless error argument
because the appellate court “was not in a position to evaluate the various
factors to be considered at a juvenile transfer hearing such as [the
defendant’s] ‘physical, mental, and emotional health at the time of the
alleged offense[s].’ ” (Id. at p. 1113.) Here, the remedy sought is a new trial,
not a limited hearing to evaluate “ ‘factual issues affecting the validity of the
judgment but distinct from the issues submitted to the jury’ ” as in Vela.
(Ibid.) Moreover, unlike the factors relevant to the decision in Vela, all of the
evidence pertinent to our harmless error analysis was admitted at trial and is
before us in the record.
We recognize that in a recent opinion, the Sixth Appellate District held
that section 1109 applies retroactively to defendants whose cases are not yet
final.14 (People v. Burgos (2022) 77 Cal.App.5th 550, petn. for review

the cause for reconsideration in light of Senate Bill No. 620 (2017–2018 Reg.
Sess.). (See People v. Vela (2017) 11 Cal.App.5th 68, review granted Jul. 12,
2017, transferred with directions to vacate opinion and reconsider cause
Feb. 28, 2018, S242298.) The discussion of harmless error on which Rincon
relies, however, appears in the substantially similar 2018 opinion, which we
discuss herein.
14Justice Elia, in dissent, disagreed that section 1109 applies
retroactively. (Burgos, supra, 77 Cal.App.5th at p. 569 (dis. opn. of Elia, J.).)
Other recently published cases have reached the same conclusion. (People v.
Perez (2022) 78 Cal.App.5th 192, 207 [§ 1109 does not apply retroactively to a

29
pending, petn. filed May 25, 2022.) In Burgos, the majority discussed the
application of harmless error in this context, noting the “case law does not
clearly establish whether or how harmless error analysis applies in this
instance.” (Id. at p. 568.) Suggesting the failure to try the gang
enhancements separately “likely constitutes ‘structural error,’ ” the court
nonetheless concluded that even under a Watson standard of review, the
error was prejudicial.15 (Burgos, at p. 568.)
We disagree that failure to separately try the substantive gang offense
and gang-related enhancements in this case amounts to structural error.
“[S]tructural errors not susceptible to harmless error analysis are those that
go to the very construction of the trial mechanism—a biased judge, total

trial that has already occurred]; People v. Ramirez (2022) 79 Cal.App.5th 48,
65 [adopting Justice Elia’s dissent in Burgos and concluding § 1109 operates
prospectively only]; see also Ramirez, at p. 66 (conc. opn. of Bamattre-
Manoukian, J.) [elaborating on reasons section § 1109 is not ameliorative and
does not apply retroactively].)
15 The Burgos court did not explain why the failure to bifurcate would
be structural error, beyond stating “[b]ifurcation necessarily affects the
‘ “framework within which the trial proceeds,” ’ ” and noting it is difficult to
assess whether the error was harmless because the nature of the proceeding
would have been entirely different. (Burgos, supra, 77 Cal.App.5th at p. 568.)
The court cited to Weaver v. Massachusetts (2017) 582 U.S. __ [137 S.Ct.
1899, 1907], but that case concerned a violation of the Sixth Amendment
right to a public trial. As our Supreme Court has explained, “Categorization
of an error as structural represents ‘the exception and not the rule.’ ” (People
v. Sivongxxay (2017) 3 Cal.5th 151, 178.) Here we consider the impact of a
state statutory rule of procedure governing the order in which gang-related
charges should be presented to the jury rather than violation of a
constitutional right that rendered the trial fundamentally unfair or an
unreliable vehicle for determining guilt or innocence. (See id. at pp. 178–179;
see also Cal. Const., art. VI, § 13 [precluding reversal “for any error as to any
matter of procedure, unless, after an examination of the entire cause,
including the evidence, the court shall be of the opinion that the error
complained of has resulted in a miscarriage of justice”].)

30
absence of counsel, the failure of a jury to reach any verdict on an essential
element.” (People v. Gamache (2010) 48 Cal.4th 347, 396.) Here, the
purported error was in allowing the jury to hear certain gang-related
evidence before determination of guilt of the underlying charges. We can
meaningfully assess whether the jury would have reached the same verdict
under those circumstances. (People v. Anzalone (2013) 56 Cal.4th 545, 554
[errors occurring during presentation of case can be “fairly examined in the
context of the entire record and are amenable to harmless error review”].)
Nor are we persuaded that the failure to separately try the substantive
gang offense or the gang-related enhancements in this case violated
defendants’ right to due process constituting federal constitutional error.16
(See Chapman v. California (1967) 386 U.S. 18, 24 [requiring reversal unless
violation of federal constitutional right is shown to be harmless beyond a
reasonable doubt].) “Typically, a defendant who has established error under
state law must demonstrate there is a reasonable probability that in the
absence of the error he or she would have obtained a more favorable result.”
(People v. Lightsey (2012) 54 Cal.4th 668, 699; People v. Pinholster (1992)
1 Cal.4th 865, 931–932 [Watson standard applied to failure to sever robbery
count from other charges], overruled on other grounds in People v. Williams
(2010) 49 Cal.4th 405, 459.) Other courts have recently concluded that even
if section 1109 applies retroactively, the failure to bifurcate can be assessed
under a Watson harmless error standard. (See E.H., supra, 75 Cal.App.5th at
p. 480 [defendant could not show it was “ ‘reasonably probable’ ” he would
have obtained a more favorable result if his trial had been bifurcated]; People
v. Ramos (2022) 77 Cal.App.5th 1116, 1128, 1131.)

16 Although Rincon raises this point cursorily in his supplemental
briefing, he fails to develop it.

31
 Defendants contend they can show prejudice because it is unlikely the
trial court would have admitted broad evidence about the behavior of
Norteños in general, rather than particular to defendants, if the gang charges
had been bifurcated. For example, defendants argue, the court likely would
not have admitted the testimony that “ ‘Norteños assault their enemies’ ” to
instill fear and that they act in a coordinated fashion as “ ‘moving parts’ ” in
such assaults. But defendants offer no authority that the gang expert’s
testimony would be inadmissible to prove the assault and possession of a
firearm offenses. Assembly Bill 333 does not bar the admission of gang
evidence related to the underlying charges. (See, e.g., People v. Hernandez
(2004) 33 Cal.4th 1040, 1049 [evidence of gang membership and activity can
help prove identity, motive, specific intent, and other issues pertinent to guilt
in cases not involving gang enhancements]; People v. Samaniego (2009)
172 Cal.App.4th 1148, 1167 [as general rule, gang-related evidence may be
admissible if relevant to a material issue in the case].)
In addition, the sanitized presentation of the predicate crimes
presented at trial was not so inflammatory that it would have persuaded the
jury to convict defendants regardless of their actual guilt. The jury was also
instructed it could not use gang evidence to find that either defendant was a
person of bad character or had the disposition to commit crime. We presume
the jury followed those instructions, and defendants point to nothing in the
record to rebut that presumption. (People v. Franklin (2016) 248 Cal.App.4th
938, 953.)
In any event, even without the gang-related evidence, the totality of the
circumstantial evidence against defendants was strong. Indeed, Caudillo
does not challenge the sufficiency of the evidence supporting either of his
convictions, nor does Rincon argue the evidence supporting his felon in

32
possession of a firearm conviction was insufficient. Moreover, as we have
already discussed with respect to Rincon’s conviction for aiding and abetting
assault on a peace officer, ample evidence supported his conviction here.
Officers offered eyewitness testimony regarding the shooting, the jury saw
dash cam and body camera footage of the incident, Yvonne D. testified she
saw both defendants with firearms before the shooting, Rincon sent text
messages stating he had two firearms and needed ammunition for the
weapon used in the assault, and Rincon drove and parked his vehicle in such
a manner as to facilitate the assault, failed to turn off the vehicle when
ordered to do so, sped away immediately after shots were fired, and was
found hiding in a closet from which he had to be removed by police officers
with force. Under these circumstances, defendants have not shown it is
reasonably probable they would have achieved a different result had the
gang-related charges been separately tried.
Accordingly, we will affirm Rincon’s and Caudillo’s convictions for
assault on a peace officer on count 1 and felon in possession of a firearm on
count 2.
D. Sentencing Issues
Caudillo’s only claims in his opening brief on appeal relate to
sentencing. He argues several errors in the pronouncement of judgment and
abstract of judgment, but all of the issues raised in the opening brief on
appeal are either withdrawn in his reply brief or obviated by our reversal of
the verdict on count 3 and the true findings on the gang-related
enhancements to counts 1 and 2.17 The Attorney General and Rincon also

17In his reply brief, Caudillo argues for the first time that “[t]he
Indeterminate Abstract at 3 CT 736 adds a five-year term for prior serious
conviction under Penal Code § 667, subd. (a)(1)” and the same prior
conviction enhancement is improperly included in his determinate sentence

33
disagree as to whether the trial court erred in imposing a consecutive two-
year sentence on the gang enhancement to count 2. Because we must vacate
the true finding on this enhancement, it is unnecessary to resolve the issue.
III.
DISPOSITION
We reverse defendants’ convictions for active participation in a criminal
street gang under section 186.22, subdivision (a) and vacate the true findings
on their gang enhancement allegations under section 186.22, subdivision (b).
We also vacate the true finding on Rincon’s section 12022.53, subdivision
(e)(1) enhancement. We remand to the trial court with directions to give the
prosecution an opportunity to retry the offense and enhancements under the
law as amended by Assembly Bill 333. If the prosecution elects not to do so,
defendants shall be resentenced in a manner consistent with this opinion. In
all other respects, we affirm the judgment.

calculation. The indeterminate abstract of judgment to which Caudillo cites,
however, is Rincon’s indeterminate abstract of judgment.

34
 MARGULIES, ACTING P. J.

WE CONCUR:

BANKE, J.

WISS, J.

A164248
People v. Caudillo


Judge of the San Francisco Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.

35