People v. Castillo CA5

Filed 6/30/22 P. v. Castillo 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
F081679
Plaintiff and Respondent,
(Super. Ct. No. VCF255016A)
v.

JESUS ANGEL CASTILLO, OPINION
Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Tulare County. Gary L.
Paden, Judge.

Hilda Scheib, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and
Robert C. Nash, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
After being convicted of several crimes related to an ATM robbery during which
he shot the victim, defendant Jesus Angel Castillo challenges on appeal the sentencing

SEE CONCURRING OPINION
court’s decision not to strike any of his firearm enhancements pursuant to Senate Bill
No. 620 (2017–2018 Reg. Sess.) (Senate Bill 620). We grant the Attorney General’s
request to take judicial notice of the record in a prior appeal in this matter (case
No. F069262) and find no error on this front.
In supplemental briefing, defendant contends, and the Attorney General agrees,
that the gang enhancements imposed on defendant must be reversed under Assembly Bill
No. 333 (2021–2022 Reg. Sess.). We accept that concession, remand for possible retrial
and for resentencing, and otherwise affirm the judgment.
BACKGROUND
Charges
In an information filed in December 2011, defendant and codefendants Roberto
Estrada, Jr., and Miguel Quintero were charged with several Penal Code violations
(undesignated statutory references are to the Penal Code): attempted murder (§§ 664,
187, subd. (a); count 1); carjacking (§ 215, subd. (a); count 2); first degree robbery
(§§ 211, 212.5, subd. (b) [ATM robbery]; count 3); assault with a firearm (§ 245, subd.
(a)(2); count 4); assault with a deadly weapon (i.e., knife) (§ 245, subd. (a)(1); count 5).
The information also contained several special allegations as to defendant: that counts 1
through 4 were violent felonies subject to the gang enhancement found in section 186.22,
subdivision (b)(1)(C); that count 2 is subject to section 186.22, subdivision (b)(4); that
count 5 was subject to the gang enhancement found in section 186.22, subdivision
(b)(1)(A); that defendant personally caused great bodily injury with respect to all five
counts (§ 12022.7, subd. (a)); that defendant personally used a firearm in the commission
of each of the five counts (§ 12022.5, subd. (a)); that defendant’s firearm use caused great
bodily injury as to counts 1 through 3 (§ 12022.53, subd. (d)); and that a principal
personally and intentionally discharged a firearm causing great bodily injury as to counts
1 through 3 (§ 12022.53, subds. (d), (e)(1).)

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Jury Verdicts
On December 18, 2013, the jury convicted defendant on all five counts. The jury
found defendant committed count 1 (attempted murder) willfully, deliberately and with
premeditation (§ 664, subd. (a)); for the benefit of, at the direction of or in association
with a criminal street gang (§ 186.22, subd. (b)); during which he personally and
intentionally discharged a firearm (§ 12022.53, subds. (b), (c)) proximately causing great
bodily injury to a nonaccomplice (id., subd. (d), § 12022.7, subd. (a)). The jury found
that in the commission of count 2 (carjacking), defendant personally and intentionally
discharged a firearm (§ 12022.53, subds. (b)–(c)) proximately causing great bodily injury
to a nonaccomplice (id., subd. (d), § 12022.7, subd. (a)); and that defendant committed
count 2 for the benefit of, at the direction of, or in association with a criminal street gang
(§ 186.22, subd. (b).) The jury found that defendant committed count 3 (robbery) for the
benefit of, at the direction of, or in association with a criminal street gang (ibid.) while
the person robbed was using or had just used an ATM and was still near the machine; and
that he personally and intentionally discharged a firearm (§ 12022.53, subds. (b)–(c))
proximately causing great bodily injury to a nonaccomplice (id., subd. (d)), § 12022.7,
subd. (a).) The jury found defendant committed count 4 (assault with a firearm) for the
benefit of, at the direction of, or in association with a criminal street gang (§ 186.22,
subd. (b)) and personally used a firearm (§ 12022.53, subd. (a)) and personally inflicted
great bodily injury (§ 12022.7, subd. (a).) Finally, the jury found that defendant
committed count 5 (assault with a deadly weapon) for the benefit of, at the direction of,
or in association with a criminal street gang (§ 186.22, subd. (b)) and that in the
commission of count 5, defendant personally used a firearm (§ 12022.5, subd. (a)) and
personally inflicted great bodily injury (§ 12022.7, subd. (a)).
Castillo I
Defendant appealed the judgment. In December 2016, we issued our unpublished
opinion in People v. Castillo (Dec. 15, 2016, F069262) (Castillo I). In that opinion, we

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reversed the finding of premeditation as to the attempted murder and concluded that the
sentence on defendant’s robbery conviction must be stayed under section 654. We
remanded for resentencing and otherwise affirmed the judgment.
Remand After Castillo I
On remand, the court resentenced defendant as follows: midterm of four years on
count 3, plus 10 years for the gang enhancement (§ 186.22, subd. (b)(1)(C)), plus 25
years to life for the gun enhancement (§ 12022.53, subd. (d)); 15 years to life on count 2
(see § 186.22, subd. (b)(4)), plus 25 years to life for the gun enhancement (§ 12022.53,
subd. (d)), consecutive to count 3; midterm of seven years on count 1, plus a consecutive
10 years for the gang enhancement (§ 186.22, subd. (b)(1)(C)), plus a consecutive 25
years to life for the gun enhancement (§ 12022.53, subd. (d)), all stayed pursuant to
section 654; midterm of three years on count 4, plus a consecutive 10 years for the gang
enhancement (§ 186.22, subd. (b)(1)(C)) all concurrent to count 3 and stayed pursuant to
section 654; midterm of three years on count 5, plus a consecutive 10 years for the gang
enhancement (§ 186.22, subd. (b)(1)(C)), all concurrent to count 3 and stayed pursuant to
section 654. The court also imposed various fines and fees, including a $10,000
restitution fine and a parole revocation restitution fine of $10,000.
Castillo II
Defendant again appealed. In April 2020, we issued our unpublished opinion in
People v. Castillo (Apr. 27, 2020, F076422) (Castillo II) in which we remanded for
resentencing for the trial court to: (1) consider how it would like to exercise the
discretion granted by Senate Bill 620; (2) stay execution of sentence on count 3 pursuant
to section 654; and (3) impose restitution and parole revocation restitution fines in the
amount of $2,000 each.
FACTUAL SUMMARY FROM CASTILLO II
At around 5:00 a.m. on July 12, 2011, Jeffrey Gould drove his mother’s car to a
Bank of Sierra ATM on Visalia Road in Exeter. He parked next to the ATM. While on

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the phone with his mother, he walked up and withdrew $700. His mother then called
again and told him to withdraw another $220. The ATM indicated there were insufficient
funds to withdraw the additional $220. When the ATM dispensed his receipt, it fell to
the ground. While Gould retrieved the receipt, he noticed an older man behind him.
Gould let the man use the ATM and walked back to his car, still talking to his mother.
After the man finished using the ATM, Gould again tried to withdraw more money and
was again notified he had insufficient funds. The receipt for this transaction also fell to
the ground, and Gould picked it up.
That is when defendant and another person “ran up” to him. Other evidence
eventually showed that the second person was Roberto Estrada, Jr.
Estrada was holding a knife and told Gould, “‘Give me your shit, Holmes.’”
Gould responded, “‘F[**]k you.’” Estrada then hit Gould. Estrada and Gould “scuffled
around.” Defendant then shot Gould and said, “‘Do the f[**]k I told you, punk.’”
Defendant and Estrada picked up Gould’s money off the ground and left in his car.
An ATM camera captured much of the incident, and the footage was admitted at
trial. Gould testified everything was accurate on the video.
Gould was hospitalized for over two weeks. The bullet broke two of Gould’s ribs
and “took” a lower piece of his left lung. Gould also had his spleen removed. The bullet
began causing an abscess requiring surgery to remove it.
Gould thought the two men were Sureño gang members because one of them was
wearing “a blue-white jersey.” Additionally, Gould believed the word “Holmes” was
“gangster slang.”
Raul Pablo’s Testimony
Gardener Raul Pablo began working near the Save Mart on Visalia Road in Exeter
at around 5:00 a.m. on July 12, 2011. After Pablo began working, a dark-colored Blazer
came behind his trailer. Pablo watched the Blazer because he was concerned something
would be stolen from him. He saw two young Hispanic men exit the Blazer. Pablo

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thought the two men were going to get money from the bank nearby. Then Pablo heard a
gunshot.
The two men took a white car in the parking lot. The Blazer also left when Pablo
heard the gunshot. Pablo approached the ATM and saw a young man who had been shot.
Officer Ashley Salinas’s Testimony
Officer Ashley Salinas with the City of Exeter received a call at about 5:15 a.m.
that day. Salinas responded to the Bank of Sierra and observed a bloody man sitting on
the ground in front of the bank. The victim told Salinas he had been shot. He had
difficulty communicating with Salinas, was sweating, and appeared to be in shock. He
told Salinas the suspects had shot him, robbed him, and had taken his car. Salinas
informed dispatch that the victim’s vehicle was a white Mazda.
Officer Salinas also examined a nine-millimeter Luger shell casing recovered at
the scene.
Officer Stephen Mota’s Testimony
Officer Stephen Mota was dispatched a couple blocks north of Bank of Sierra
pursuant to a report that the victim’s vehicle had been found there. When Mota arrived,
he observed that the vehicle was still running.
Officer Daniel Green’s Testimony
Officer Daniel Green, then a detective, was the primary investigator of the July 12,
2011, shooting. He was called out to the scene around 5:45 a.m. on July 12, where he
reviewed surveillance footage from the ATM.
Later that afternoon, Detective Green “went by” a home on West Willow in Exeter
and observed a black Chevy Trailblazer in the driveway. The next day, Green executed a
search warrant at the residence. In one of the rooms, Green found a handgun with its
slide open. He also found a loaded magazine, a nine-millimeter Luger bullet outside the
magazine, and a cleaning agent. A jersey with blue writing and a baseball cap were also
found in the home.

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 Farmersville police detective Tony Mosqueda conducted surveillance on the West
Willow home on the night of July 13, 2011. At about 10:00 or 10:30 p.m., Mosqueda
observed a gold Plymouth van and a red Chevy Silverado truck leave the residence.
Mosqueda requested that another officer conduct a traffic stop of the vehicles. The other
officer activated his overhead emergency lights. The red truck then passed the van and
“sped off.” Defendant later admitted to running from the police in the truck.
Defendant’s Interrogation
Hours later, Detective Mosqueda interrogated defendant and took photographs of
his tattoos. Defendant had the letters “H” and “G” tattooed on his abdomen.
Defendant’s interrogation was played for the jury. Defendant admitted he had
been in the Silverado and ran from police. Defendant said he ran because of “what I’m
on”—meaning methamphetamine. He had used methamphetamine a couple of hours
before the interrogation.
Defendant had been staying with his cousin in the house on Willow for the past
two weeks. Before that, defendant had been in Hawaiian Gardens. When asked if he
belongs to a gang, defendant responded, “Well I hang around with them.…” Detective
Green followed up, asking directly, “Are you part of a gang?” Defendant replied, “Skip
that [question].”
After defendant was told that police had video of the incident, defendant admitted
he had “something to do with it.” Defendant had been with his cousin Miguel, Miguel’s
“girl” Liz, and Robert (“Fool”). Defendant and Estrada were sitting in the back seat of
the Trailblazer when defendant saw a “twenty-something male” using an ATM.
Defendant and his “buddy” hopped out of the car and saw “the cash.” Defendant told the
man, “Shoot me the money.” The man threw the cash at defendant and Estrada.
Defendant admitted he had a gun, but initially said he did not know who shot the
victim. Later, defendant said he shot the victim because “I thought if, you know, he was
coming towards me I was the one who was going to end up being shot.… He’s way

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bigger than me, man.” Defendant thought the gun he had was a nine-millimeter. After
the incident, he gave the gun to his cousin, Miguel.
After grabbing the money, defendant and Estrada “jumped in” a car near the
victim. Defendant drove the car away. Defendant and Estrada got out of the car by a
stop sign. The vehicle they had arrived in at the ATM “was parked right there like
waiting to see if … something were [sic] wrong.…” Defendant and Estrada ran to the
vehicle, got in, and went home.
Lizette Diaz’s Trial Testimony
Lizette Diaz (Diaz) did not want to testify. She is the mother of Miguel Quintero’s
child. Diaz knew defendant as Miguel Quintero’s cousin. When asked if she had heard
of someone named “Bones,” Diaz testified she had seen Bones once. Other evidence
indicates that “Bones” was in fact Roberto Estrada, Jr.
One time, Quintero drove Diaz, defendant, and Bones to a fast-food restaurant in
Visalia. The four then went to Diaz’s house. After about an hour, they left, intending to
go to Quintero’s house. Quintero pulled into a shopping center between a pizza place and
a bank. Defendant and Bones got out of the vehicle. Quintero and Diaz drove away.
Quintero decided to pull over near a stop sign. Quintero and Diaz sat and talked about
defendant. Quintero again began driving away when they saw defendant and Bones.
Both men got in the car, and Diaz did not remember whether they said anything as they
entered.
Lizette Diaz’s Pretrial Interview
Detective Green interviewed Diaz in September 2011. Green had tried to
interview her earlier, but she would not return his phone calls.
Detective Green began by telling Diaz that she was not under arrest and was free
to go at any time. Diaz told Green that she, Quintero, defendant, and Bones went to a
fast-food restaurant, then to her house. Diaz told Green that defendant or Bones told
them to pull over into a parking lot. Bones and defendant got out of the vehicle, and

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Quintero and Diaz left. Quintero then stopped on the side of a road. After they had been
stopped “for some time,” a white vehicle pulled up in front of them. Defendant was
driving and Bones was with him. Defendant and Bones then got into the vehicle
Quintero was driving.
Gang Testimony
Kasey Woodruff
Kasey Woodruff from the Los Angeles County Sheriff’s Department testified that
she interviewed defendant in July 2011 for this case. Defendant told her that he had
recently been “jumped in” as a member of the Varrio Hawaiian Gardens. Defendant told
her he goes by the moniker of “Chewy.” He also showed her a Hawaiian Gardens tattoo
on his chest and an “H” and a “G” on his face.
Esteban Soliz
Detective Esteban Soliz is a member of the Los Angeles County Sheriff’s
Department gang unit. Soliz testified that “Hawaiian Gardens” or “Varrio Hawaiian
Gardens” is an “Hispanic gang,” which controls the city of Hawaiian Gardens in
southeast Los Angeles County.
Detective Soliz has investigated 200 to 300 cases in which Varrio Hawaiian
Gardens gang members were suspects. Hawaiian Gardens is the only Hispanic gang in
the city, but they also commit crimes outside the city. The Hawaiian Gardens gang
claims the number 13 and the “G” from the Green Bay Packers insignia.
Previous Hawaiian Gardens Offenses
In June 2005, Deputy Jerry Ortiz was killed by a Hawaiian Gardens gang member.
A detective from Exeter contacted Detective Soliz regarding gang tagging that
occurred in June 2011. Soliz opined that the graffiti was tagged by a gang member who
claims or associates with Hawaiian Gardens. Based on what Soliz read, three Hispanic

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males were tagging graffiti in an alleyway when they were confronted by a witness. The
taggers “pulled” handguns and “a shooting occurred.”
Detective Soliz testified that on December 17, 2009, three Hawaiian Gardens gang
members approached a female, pulled out a knife, and told the victim to give them all her
money and her phone. The victim decided to surrender the items. The three perpetrators
ran from the scene and yelled, “Varrio Hawaiian Gardens.” All three perpetrators were
convicted.
Detective Soliz was asked to identify the primary activities of the Hawaiian
Gardens gang. Soliz responded, “The crime of activity [sic] ranges anything from minor
assault with their hands and feet, they can go all the way up to assaults with weapons,
whether it be bats, pipes, guns, knives, which would escalate to attempt[ed] murder.
[¶] They are good for being convicted of murders, extortions, witness intimidations,
vehicle thefts, robberies, burglaries, attempt[ed] robberies, attempt[ed] burglaries.
Anything you can think of that’s felonious or vicious.”
Gang Testimony Concerning Defendant
Detective Soliz researched Estrada’s and defendant’s gang background. Soliz has
spoken to other officers about them and read police reports and field identification cards
concerning them. Soliz has personally spoken with defendant, but not with Estrada.
Detective Soliz described defendant’s tattoos depicted in several photographic exhibits.
Exhibits 19, 20 and 21 show tattoos on defendant’s face depicting an “H” and a “G” for
Hawaiian Gardens. Exhibits 22 and 23 show tattoos which, together, depict the number
13, which represents a Hispanic gang in the southeast area. A tattoo of three dots was
also depicted. Soliz seemed to indicate that while such a tattoo could be a gang-related
reference to “my crazy life,” such a tattoo alone does not conclusively indicate gang
membership. Exhibit 23 also showed tattoos across defendant’s left four fingers reading
“BHGR” which stands for Barrio Hawaiian Gardens Rifa, which represents his gang.

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Exhibit 24 depicts an “HG” tattoo across defendant’s abdomen, which represented
Hawaiian Gardens. Exhibit 26 depicts a tattoo showing defendant is representing a
criminal street gang from the southeast Los Angeles area.
Exhibit 27 depicts defendant’s belt buckle which says “LA.” Detective Soliz
explained that “they”—presumably gang members—“use a lot of sports memorabilia.”
Soliz said that Los Angeles Dodgers clothing is popular with Sureño gangs. Soliz opined
that based on the totality of the circumstances—including defendant’s gang tattoos—the
blue “LA” belt buckle was gang-related clothing.
Detective Soliz opined that defendant is a gang member. He meets several criteria
for gang membership: gang tattoos, self-admission of gang membership and being
arrested with another gang member.
Gang Testimony Concerning Estrada
Detective Soliz also testified concerning exhibits depicting Estrada’s tattoos.
Estrada has a tattoo of red lips on the left side of his neck. Soliz explained that a talented
tattoo artist can make a tattoo of lips that, when viewed a certain way, depict the number
13. This way, gang members can hide the fact that they are representing south side
gangs. Estrada also has an “HG” tattoo on his abdomen, representing Hawaiian Gardens.
On his upper back, Estrada has a tattoo reading “SELA” which stands for southeast Los
Angeles, representing Hispanic gang membership. Across his back, Estrada has a tattoo
reading “Hawaiian Gardens” demonstrating he is proud of his gang. Underneath that
tattoo, Estrada has a tattoo of “the Hawaiian Gardens punch character.” The character is
wearing a crown with the Green Bay Packers’ insignia, representing “the Gardens.”
Detective Soliz opined that Estrada is a gang member. Estrada has gang tattoos,
has admitted gang membership, and has gang clothing.

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 Gang Testimony Concerning Present Offenses
The prosecutor presented Detective Soliz a hypothetical based on the facts of this
case. Soliz testified such a crime would promote and benefit the Varrio Hawaiian
Gardens gang. The fact that two gang members committed the crime displays that the
gang is more of a threat to the area than if just one gang member had committed the
crime. Additionally, Exeter is controlled by north side gangs, yet the perpetrators were
south side gang members. By committing the crime in a rival gang’s area, the south side
gang members are showing they are not afraid of their rivals.
The perpetrators did not need to wear Hawaiian Gardens clothing to enhance the
gang because “word of mouth will get down to their … neighborhood.” Others will hear
that these gang members committed a robbery in rival gang territory, which will enhance
the perpetrators’ status within the gang.
Detective Soliz testified that gang “tagging” or graffiti shows control; it shows that
the gang is in the area. If the tagging is done in a rival gang’s area, it shows that they do
not fear the rival gang.
Defense Gang Expert’s Testimony
Martin Sanchez-Jankowski (Sanchez-Jankowski) testified as the defense’s gang
expert. Sanchez-Jankowski is a professor of sociology for the University of California.
He had an opportunity to read through reports, look at “a video,” and become familiar
with the circumstances of the case.
Sanchez-Jankowski said that in order to determine whether a crime was committed
for the benefit of, at the direction of, or in association with a criminal street gang, he
considers several facts. First, he looks to whether the central leadership of a gang had
decided on a particular operation, had designated particular agents of the gang to execute
it, and how the operation sustained or inhibited the gang. He would also consider
whether the crime was committed spontaneously, and how the crime functionally
benefitted the gang.

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 Sanchez-Jankowski testified that gang-directed crimes are usually committed in
the early evening or early morning. Crimes committed in the morning hours between
5:00 a.m. and 8:00 a.m. are “usually … individual level crime[s] rather than …
organizational crime[s].”
Sanchez-Jankowski was presented with a hypothetical tracking the facts of the
present case and asked whether he would consider such a crime to have been committed
at the direction of, for the benefit of, or in association with a criminal street gang. He
opined that, in his judgment, such a crime would not have been committed at the
direction of, for the benefit of, or in association with a criminal street gang. Sanchez-
Jankowski said that if it were an “organizational crime,” the knife and gun would have
been used quickly after they were brandished.
Sanchez-Jankowski further testified that when gang members are executing
directives of the gang, “the idea is that you don’t take drugs because that inhibits your
ability to think clearly and to act as necessary.…” Drug usage increases the chance
something will go wrong, which causes the entire gang to suffer to some degree.
Sanchez-Jankowski also testified that it is unusual for gang members to take a car
during an organizational crime, because such crimes are “all planned out.” He also said it
was unusual to bring a female to commit a crime like this.
DISCUSSION
I. Defendant Has Not Established the Trial Court Misunderstood Its Discretion
On remand from Castillo II, the trial court held a hearing. The court stated:

“And the Court is to exercise its discretion to consider striking the gun
enhancements pursuant to … Section 12022.53 as a result of Senate Bill []
620. The Court does not in attend [sic]—understands it has the discretion.
The Court does not intend to strike those.”
Defendant argues the sentencing court misunderstood its discretion at resentencing
to impose a lesser enhancement under section 12022.53. Defendant contends the court’s

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statement, “the Court does not intend to strike those,” indicates the court did not consider
the option of imposing a lesser firearm enhancement. We disagree.
“‘Defendants are entitled to “sentencing decisions made in the exercise of the
‘informed discretion’ of the sentencing court,” and a court that is unaware of its
discretionary authority cannot exercise its informed discretion.’” (People v. Lee (2017)
16 Cal.App.5th 861, 867.) When a defendant claims the sentencing court was unaware of
its discretion, the defendant retains the burden of affirmatively establishing error. (Ibid.)
Here, the record does not affirmatively establish error.
In this case, the jury found true all three firearm enhancements (i.e., § 12022.53,
subds. (b), (c), & (d)) as to counts 1, 2, and 3. Under Senate Bill 620, the court had the
discretion to strike or dismiss any combination of these enhancements (or none of them)
“in the interest of justice pursuant to section 1385.” (§ 12022.53, subd. (h).) For
example, the court could have stricken the subdivision (d) enhancements, which would
have left the subdivision (c) enhancements in place. Or the court could have stricken all
three enhancements. Or, as the court did here, it could decline to strike any of the
enhancements. The court’s decision on which of the three enhancements to strike—if
any—would have necessarily resulted in any nonstricken enhancements under section
12022.53 remaining in effect. The court’s statement that it did not intend to strike
“those” enhancements is consistent with the court understanding the full scope of its
discretion—it could strike any, some, all or none of the enhancements under section
12022.53. The court chose to strike none of the enhancements. We will not disturb that
determination.1
Defendant’s discussion of the split of authority between People v. Morrison
(2019) 34 Cal.App.5th 217 (Morrison) and People v. Tirado (2019) 38 Cal.App.5th 637,
reversed by People v. Tirado (2022) 12 Cal.5th 688, is a red herring. In those cases, the

1Because any objection on this ground would have been meritless, we find no deficient
representation by counsel.

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question was whether, after striking a firearm enhancement pursuant to Senate Bill 620,
the court could impose a lesser firearm enhancement that had not been found true by the
jury. (Morrison, supra, 34 Cal.App.5th at p. 221; People v. Tirado, supra, 38
Cal.App.5th at p. 644.) In this case, however, all three enhancements under section
12022.53 were found true by the jury. Here, the court did not need to decide whether to
impose a lesser enhancement that had not been found true by a jury; it only needed to
decide whether to strike any of the enhancements and, if so, which ones. Its statements
are consistent with this understanding of its discretion.
Morrison stated the question it sought to resolve, and in so doing explained how it
is distinguishable from the present situation:

“In a case where the jury had also returned true findings of the lesser
enhancements under section 12022.53, subdivisions (b) and (c), the striking
of an enhancement under section 12022.53, subdivision (d) would leave
intact the remaining findings, and an enhancement under the greatest of
those provisions would be mandatory unless those findings were also
stricken in the interests of justice. But what if, as here, enhancements under
section 12022.53, subdivisions (b) and (c) were not also alleged? May the
court impose one of those lesser enhancements in lieu of the greater
enhancement under section 12022.53, subdivision (d) if the court finds it is
in the interests of justice to do so?” (Morrison, supra, 34 Cal.App.5th at p.
222, italics added.)
II. We Accept the Attorney General’s Concessions Regarding Assembly Bill
333’s Amendments to Section 186.22 and Senate Bill 81
A. Assembly Bill 333
Effective January 1, 2022, Assembly Bill 333 “‘redefine[d] “pattern of criminal
gang activity” to require that the last of the predicate offenses “occurred within three
years of the prior offense and within three years of the date the current offense is alleged
to have been committed,” and that the predicate offenses “were committed on separate
occasions or by two or more members, the offenses commonly benefited a criminal street

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gang, and the common benefit of the offenses is more than reputational.”’” (People v.
Vasquez (2022) 74 Cal.App.5th 1021, 1032.)
The Attorney General concedes that Assembly Bill 333’s changes to section
186.22 are retroactive to defendant’s case, and that the gang enhancements must,
therefore, be reversed because the evidence used to support certain predicate offenses is
now insufficient. We accept the concession and will reverse the gang enhancements.
They may be retried on remand. (See People v. Vasquez, supra, 74 Cal.App.5th at p.
1033.) Defendant shall be resentenced. (See id. at p. 1038.)
B. Senate Bill No. 81
“In 2021, the Legislature enacted Senate Bill No. 81 (2021–2022 Reg. Sess.) …,
which amended section 1385 to specify factors that the trial court must consider when
deciding whether to strike enhancements from a defendant’s sentence in the interest of
justice. (Stats. 2021, ch. 721, § 1.)” (People v. Sek (2022) 74 Cal.App.5th 657, 674.)
“These requirements ‘shall apply to sentencings occurring after the effective date of’
Senate Bill No. 81. (Stats. 2021, ch. 721, § 1, enacting § 1385, subd. (c)(7).)” (Ibid.)
Defendant argues Senate Bill No. 81 is retroactive to his current sentence.
However, since defendant will be resentenced, his contention concerning Senate Bill
No. 81 is moot. As the Attorney General notes, “[b]ecause any resentencing in this case
will take place after Senate Bill No. 81 became effective on January 1, 2022 … the court
must [follow] the new law in any such proceeding.” (People v. Sek, supra, 74
Cal.App.5th at p. 674.)
III. Defendant Does Benefit From the Enactment of Section 1109
One argument defendant offers in support of reversal is that the gang
enhancements in this case were not bifurcated “as is now required.” The Attorney
General contends: (1) defendant forfeited any error pertaining to bifurcation of the gang
allegations by failing to move for bifurcation at trial; (2) section 1109 is not retroactive;

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and (3) assuming section 1109 is retroactive, the failure to bifurcate the gang allegations
from the underlying charges was harmless in light of the overwhelming evidence of
defendant’s guilt on the underlying charges. As we agree with the Attorney General’s
first and last arguments, we affirm the judgment on the underlying convictions.2
In addition to the statutory changes described above, Assembly Bill 333 added
section 1109, which reads in full:

“(a) If requested by the defense, a case in which a gang enhancement
is charged under subdivision (b) or (d) of Section 186.22 shall be tried in
separate phases as follows:

“(1) The question of the defendant’s guilt of the underlying offense
shall be first determined.

“(2) If the defendant is found guilty of the underlying offense and
there is an allegation of an enhancement under subdivision (b) or (d) of
Section 186.22, there shall be further proceedings to the trier of fact on the
question of the truth of the enhancement. Allegations that the underlying
offense was committed for the benefit of, at the direction of, or in
association with, a criminal street gang and that the underlying offense was
committed with the specific intent to promote, further, or assist in criminal
conduct by gang members shall be proved by direct or circumstantial
evidence.

“(b) If a defendant is charged with a violation of subdivision (a) of
Section 186.22, this count shall be tried separately from all other counts
that do not otherwise require gang evidence as an element of the crime.

2There is a split of authority on the retroactive application of section 1109. For example,
in People v. Burgos (2022) 77 Cal.App.5th 550, a divided panel of the Sixth Appellate District
held the statute applies retroactively to nonfinal judgments. (Id. at pp. 564–568.) In People v.
Ramos (2022) 77 Cal.App.5th 1116, this district reached the same conclusion. (Id. at p. 1119.)
Division Three of the Second Appellate District took an opposing view in People v. Perez (2022)
78 Cal.App.5th 192, holding “that the statute does not apply retroactively to a trial that has
already occurred.” (Id. at p. 207.) Because we conclude any alleged error was forfeited or
harmless, we do not revisit the issue of retroactivity in this case. (See, e.g., People v. E.H.
(2022) 75 Cal.App.5th 467, 480 [“Even if section 1109 applied retroactively to his case—an
issue we need not and do not decide here—E.H. cannot show it is ‘reasonably probable’ he
would have obtained a more favorable result if his trial had been bifurcated”].)

17.
 This charge may be tried in the same proceeding with an allegation of an
enhancement under subdivision (b) or (d) of Section 186.22.” (§ 1109.)
The Attorney General contends defendant forfeited the issue of bifurcation of the
gang allegations by failing to request bifurcation in the trial court under section 1044.
Defendant does not contend he made such a request or that the trial court had a sua
sponte obligation to bifurcate the allegations and prejudicially erred by failing to do so.
In fact, defendant fails to address this issue at all in his briefs. He simply assumes the
enactment of section 1109 somehow entitles him to a reversal of his convictions because
bifurcation of “the gang enhancements … from the alleged offenses, as is now required.”
Defendant cites no authority for his contention, nor does he argue forfeiture principles
cannot or should not apply here. Because he did not request bifurcation below and given
defendant’s undeveloped and conclusory argument in his supplemental brief, we agree
with the Attorney General this issue is forfeited on appeal.
Even assuming, arguendo, the trial court may have committed error by failing to
bifurcate the gang allegations either at defendant’s request or as a sua sponte obligation,
any such error would clearly be harmless. In this respect, we first note defendant’s
supplemental brief does not present a prejudice argument nor argue structural error
requires reversal. In any event, defendant’s right to bifurcation under section 1109 is
purely statutory. (Cf. People v. Hinton (2006) 37 Cal.4th 839, 874 [describing right to a
separate proceeding under § 190.1 as “merely statutory, not constitutional”].) “There is a
strong presumption that any error falls within the trial error category,” i.e., is not
structural, and thus “subject to harmless error analysis.” (People v. Anzalone (2013) 56
Cal.4th 545, 554; see, e.g., People v. Mendoza (2000) 24 Cal.4th 130, 162 [“Even if a
trial court’s severance or joinder ruling is correct at the time it was made, a reviewing
court must reverse the judgment if the ‘defendant shows that joinder actually resulted in
“gross unfairness” amounting to a denial of due process’”].) “‘Typically, a defendant
who has established error under state law must demonstrate there is a reasonable

18.
probability that in the absence of the error he or she would have obtained a more
favorable result.’” (People v. Anzalone, supra, at p. 553; accord, People v. Lewis (2021)
11 Cal.5th 952, 973 [“Typically, when an ‘error is purely one of state law, the [People v.
Watson (1956) 46 Cal.2d 818] harmless error test applies’”].)
Here, defendant makes no showing of prejudice and, indeed does not even argue
he was prejudiced by the failure of the court to bifurcate the gang allegations from the
charged offenses. Nor can we conclude it is reasonably probable defendant would have
obtained a more favorable result absent the assumed error. (People v. Watson, supra, 46
Cal.2d at p. 836.)
The evidence of defendant’s guilt was simply overwhelming. Defendant admitted
to the shooting, was identified by the victim as the shooter, and the entire incident was
captured on surveillance footage. In sum, there was evidence defendant, Roberto
Estrada, and Lizette Diaz were passengers in a car driven by Miguel Quintero. They
stopped near an ATM and either defendant and/or Estrada asked to be let out. Defendant
was armed with a gun and Estrada had a knife. The car drove off and waited nearby.
Estrada and defendant approached the victim, Jeffrey Gould, and demanded the money he
had withdrawn from the ATM. Gould, although suspecting defendant and the other man
were gang members, responded “F[***] you.” They scuffled and defendant shot Gould.
Defendant and Estrada picked up Gould’s money from the ground and took Gould’s car.
The surveillance video from the bank (which is part of the record on appeal) was played
for the jury and matched Gould’s description of what happened.
Raul Pablo, a gardener, was working near the Save Mart on Visalia Road in Exeter
at around 5:00 a.m. on July 12, 2011. A dark-colored Blazer came behind his trailer.
Pablo watched the Blazer because he was concerned something would be stolen from
him. He saw two young Hispanic men exit the Blazer. Pablo thought the two men were
going to get money from the bank nearby. Then Pablo heard a gunshot. The two men

19.
took a white car in the parking lot. The Blazer also left when Pablo heard the gunshot.
Pablo approached the ATM and saw a young man who had been shot.
Law enforcement located defendant, who was detained following a vehicle
pursuit. Defendant, in an interview that was recorded and played for the jury, admitted to
shooting Gould.
In short, we agree with the Attorney General that defendant’s admission he shot
Gould, Gould’s identification of defendant as the shooter, and the surveillance footage of
defendant shooting Gould, is overwhelming evidence of defendant’s guilt. For all these
reasons, it is not reasonably probable defendant would have received a more favorable
result if the gang allegations had been bifurcated. (People v. Watson, supra, 46 Cal.2d at
p. 836.) Therefore, any error was harmless.
DISPOSITION
All of the gang enhancements (§ 186.22, subd.(b)) imposed on defendant are
reversed. They may be retried on remand. In any event, defendant shall be resentenced.
In all other respects, the judgment is affirmed.

PEÑA, J.
I CONCUR:

SMITH, J.

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POOCHIGIAN, Acting P. J., concurring.
I concur in the judgment and in most of the majority’s reasoning. As the majority
observes, there is a split of authority as to whether Penal Code section 1109 is retroactive.
I wish to express my perspective on the issue, which will surely be one that our courts
will continue to be called upon to address.
Penal Code Section 1109 is Not Retroactive
No part of the Penal Code is retroactive unless it says so “expressly.” (Pen. Code,
§ 3.) Penal Code section 1109 is part of the Penal Code and does not expressly state that
it is retroactive. As a result, Penal Code section 1109 is not retroactive. It really is that
simple.
True, in In re Estrada (1965) 63 Cal.2d 740 (Estrada), the Supreme Court
“sharply” departed from the clear language of Penal Code section 3. (People v. Brown
(2012) 54 Cal.4th 314, 324 (Brown).) However, it did so in the “specific context” (ibid.)
of legislative action that “lessen[s] the punishment” for a crime. (Estrada, at p. 744.) In
that specific context, we are bound to follow Estrada’s departure from section 3. (Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455). But we need not extend
it. (See People v. Cervantes (2020) 55 Cal.App.5th 927, 939 [Supreme Court has not
extended Estrada to legislation that does not alter or reduce punishment or treatment for
past criminal conduct]; see also Brown, at p. 325 [rejecting defendant’s contention
because it would expand the Estrada rule].) Indeed, the Supreme Court itself has
cautioned against applying Estrada’s interpretation of section 3 “broadly and literally.”
(Brown, at p. 324.) Instead, Estrada should play a “limited role” in the “jurisprudence of
prospective versus retrospective operation,” and “ ‘should not be interpreted as modifying
[the] well-established, legislatively-mandated principle’ ” embodied in section 3.
(Brown, at p. 324.)
 While we are bound by Estrada where it is controlling, we are bound by section 3
in all other circumstances. (See Code Civ. Proc., § 1858.)
For these reasons, I concur in the judgment.

POOCHIGIAN, Acting P. J.

2.