People v. Pacheco CA2/5

Filed 7/26/22 P. v. Pacheco CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE

THE PEOPLE, B317219

Plaintiff and Respondent, (Fresno County Super.
Ct. No. F15906861)
v.

CHRISTIAN ANGEL PACHECO,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Fresno
County, Timothy A. Kams, Judge. Affirmed in part, reversed in
part and remanded with directions.

John Steinberg, under the appointment of the Court of
Appeal, for Defendant and Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Michael
P. Farrell, Assistant Attorney General, Catherine Chatman, A.
Kay Lauterbach and R. Todd Marshall, Deputy Attorneys
General for Plaintiff and Respondent.

__________________________
 Defendant and appellant Christian Pacheco appeals his
conviction of murder, with true findings on a firearm
enhancement and a gang enhancement. Defendant argues:
(1) there is insufficient evidence to support the gang
enhancement; (2) alternatively, the gang enhancement and the
murder conviction must be vacated in light of amendments to the
applicable statute while his appeal was pending; (3) the trial
court abused its discretion in declining to strike the firearm
enhancement; and (4) the court erred in imposing fines and fees
without first determining his ability to pay. We reverse the gang
enhancement and remand for further proceedings, and otherwise
affirm.
FACTS AND PROCEDURAL BACKGROUND
1. The Crime
On October 30, 2015, around 3:00 p.m., defendant shot
Juan Ortiz multiple times near an elementary school. Ortiz and
his fiancée, accompanied by their 5-year-old daughter, were
walking toward the school, to meet their son’s school bus and
walk him home.1
Defendant, a member of the Sureños gang, approached
Ortiz and asked him, “Hey, fool, you bang?” Ortiz was a member
of the Bulldogs, a rival gang. He responded to defendant’s
challenge with, “Yeah, Northside Selma Bulldogs.” Defendant
then pulled a gun from his shorts and shot Ortiz seven times.
Ortiz subsequently died in the hospital; his cause of death was a
bullet wound to the head.
After shooting Ortiz, defendant ran. As he fled, he
wrapped a shirt around the gun to cover it. Defendant ran into a

1 Ortiz’s son attended a different school, but the bus dropped
him off nearby.

2
nearby apartment complex, which was claimed as Sureños
territory. Police spotted defendant and detained him in the
apartment complex, in the company of a fellow gang member.
A number of witnesses had seen defendant shoot Ortiz or
run from the scene. After defendant was detained, he was
identified in field show-ups by the victim’s fiancée and several
other witnesses.
Defendant had attempted to hide the gun by stashing it,
still wrapped in the shirt, in the wheel well of a van parked in the
apartment complex. When a driver, unaware of the gun, drove
the van from the complex’s parking lot, the gun dropped to the
street while the shirt remained stuck in the van. Police recovered
the gun.
2. The Charges
On April 1, 2016, defendant was charged with one count of
murder (Pen. Code, § 187).2 The information also alleged that
defendant intentionally discharged a firearm causing death
(§ 12022.53, subd. (d)) and that he committed the crime for the
benefit of a criminal street gang (§ 186.22, subd. (b)(1)).
Defendant entered a plea of not guilty.
3. Transfer Hearing
Defendant was 17 years old at the time of the offense, but
the charges had been filed directly in superior court. However, in
March 2017, in light of Proposition 57, defendant moved to
remand the case to juvenile court. Instead, the trial court set the
matter for a transfer hearing to be held by a juvenile court judge.
The parties briefed the issue.

2 All further statutory references are to the Penal Code
unless otherwise stated.

3
 The briefing included the report of a psychologist, Richard
A. Blak, Ph.D., who concluded that defendant was less mature
than other 17 year olds, who are themselves immature in brain
development and psychological functioning. Dr. Blak also offered
the “Diagnostic Impression” that defendant had “Antisocial
Personality Disorder,” as well as a number of substance abuse
disorders. Dr. Blak stated that defendant “would have met the
criteria for a Conduct Disorder at the time of his offense. The
essential feature of conduct disorder is a repetitive and persistent
pattern of behavior by a child or teenager in which the basic
rights of others or major age-appropriate societal norms or rules
are violated.”
The briefing for the transfer hearing also included several
hundred pages of defendant’s juvenile records, documenting his
time in the juvenile justice system, including multiple sustained
petitions, numerous probation violations, and a failure to make
significant progress despite repeated opportunities to do so.
The juvenile court judge concluded defendant should be
transferred to adult court for criminal prosecution.3
4. Trial
At trial, there was little dispute as to the facts. Defendant
took the stand and admitted shooting Ortiz, although he claimed
Ortiz had provoked and threatened him. According to defendant,
Ortiz asked if defendant was going to use a gun on him in front of
his daughter. Defendant was frightened that Ortiz was going to
“pull out a gun and try to get” him. Defendant testified, “My
body reacted to him coming at me and I defended myself.”

3 The juvenile court’s transfer ruling is not an issue on
appeal.

4
Defendant admitted being a member of the Sureños, but he
suggested that this was when he was “young.”
The main issue at trial was defendant’s intent. The
prosecution introduced evidence that, the day before the shooting,
defendant had told his former girlfriend that he was planning to
shoot someone. However, the former girlfriend declined to give a
formal statement to police, out of fear, and ultimately recanted at
trial.
The prosecution also called Fresno County Sheriff’s Deputy
Mark Fam, who testified as a gang expert on “the Sureno gang.”
He explained the history of the gang: the Mexican Mafia began
as a Hispanic prison gang in the 1950s, but ultimately it split
between northern California and southern California members.
In 1968, the northern California members spun off into the
Nuestra Familia (Norteño) gang, with the southern California
members, still loyal to the Mexican Mafia, known as Sureños.
There are approximately 70,000 Sureño members throughout
California.
Deputy Fam testified that “Sureno gang members” wear
the color blue, and often wear L.A. Dodgers’ apparel (both for the
color and the association with southern California), but also wear
clothing associated with other sports teams that use the color
blue. Sureño members have specific tattoos – including "SUR"
meaning “South” or the number 13, which pays homage to the
Mexican Mafia.4 Deputy Fam identified, and displayed, hand
signs and signals that Sureño members use to show they are
Sureños. He identified rivals of the Sureños – the primary rivals
being Nuestra Familia and Bulldogs.

4 Deputy Fam testified that “individual hoods in the
neighborhood” also have identifying tattoos.

5
 Deputy Fam explained that “[s]ubsets are – the easiest way
to think about it is neighborhoods. They will call them hoods,
neighborhoods. It’s just smaller geographical areas of the same
gang typically controlled by a bigger gang.” He explained that
Sureños are territorial. They mark their territory with graffiti.
Having a large territory enables the Sureños to sell drugs in the
neighborhood and “run girls” in the neighborhood. When there
are drug dealers in the neighborhood who are not part of the
gang, they can tax the dealers. Deputy Fam testified that
“Fresno County for the Surenos” is controlled by the Mexican
Mafia, and that “[t]he guy who controls Fresno County is a guy
by the name of Michael Boo Boo Moreno. He’s locked up right
now in San Bernardino County Jail fighting a federal case.
Every Sureno in Fresno County pays taxes, and some of that
taxes makes its way up to Mike Boo Boo Moreno.”
Deputy Fam testified that the primary activities of “the
Sureno Gang” include “everything from murder down to assault
with a deadly weapon, and victim or witness intimidation, down
to burglary.”
In order to establish in the present case that Sureños had
committed the necessary predicate offenses under the gang
enhancement statute, the prosecution elicited Deputy Fam’s
testimony on three prior offenses committed by Sureño members:
(1) a January 2010 murder committed by a member of the “Barrio
Sanger Sureños” -- Sanger is a city in the area which is “the
biggest stronghold for the Surenos in Fresno County”; (2) a July
2010 murder committed by a “member of Sureños from the west
side of Fresno county”; and (3) a 2013 unlawful discharge of a
firearm, committed by “a Sureno from, SLS, Sureno Lifestyle,
hood.” Although the prosecution elicited evidence of the 2013

6
unlawful discharge of a firearm, the jury was instructed that only
the murders were alleged to be predicate offenses under the gang
enhancement statute. Likewise, the prosecutor relied on only the
murders in her argument to the jury.
Defendant was a member of the Sureños gang, and,
specifically, the Barrio Selma Locos subset. Detective Fan
explained that Barrio Selma Locos is “a neighborhood, a hood, a
subset of the Sureno gang.”
When presented with a hypothetical based on the facts of
this shooting, Deputy Fam offered his opinion that the crime
“would benefit the criminal street gang and further their
activities.” Specifically, he testified that, at its most basic level,
the killing of Ortiz “eliminated a rival. There’s one less of that
gang there that can fight them, do harm against them.” But, he
added, there were a lot of other effects. Specifically, because the
crime happened in front of a school, it was “going to have a very
long-lasting effect on the community. Anyone who observed that
is probably going to have some kind of trauma, some type of a
psychological effect. It doesn’t only enhance the status of that
individual it enhances the status of the entire gang. Things like
this typically get out by word of mouth, by social media, and by
the regular media. So people are going to hear about this. And
the brazen activities and the violent activities of that gang who
committed the crime are going to get out to that community as
well. And like we talked about earlier, part of the gang culture is
keeping people from testifying. Keeping people from wanting to
cooperate with law enforcement. Something like this will have
that effect on people. If you just saw someone get shot in front of
the school, you want to be put up on the stand and testify against

7
that individual. He’s willing to do that to that person, what’s he
willing to do to you?”
The jury found defendant not guilty of first degree murder,
but guilty of second degree murder, with the firearm and gang
enhancements true.
5. Sentencing and Appeal
Prior to sentencing, the prosecution submitted a statement
in aggravation and addendum for a future youthful offender
parole hearing. The statement attached numerous exhibits,
including the paperwork documenting defendant’s juvenile
history and Dr. Blak’s report previously submitted in connection
with the juvenile transfer hearing.
The report of the probation officer recommended a prison
term of 15 years to life for the murder, enhanced by 25 years to
life for the firearm enhancement, plus an additional 10-year
determinate term for the gang enhancement.
At the sentencing hearing, the prosecutor argued against
the latter recommendation. Because the gang enhancement was
attached to a crime (murder) for which defendant would receive
an indeterminate term, section 186.22, subdivision (b)(5) applied,
and provided that defendant “shall not be paroled until a
minimum of 15 calendar years have been served.”5 Because

5 The sentence enhancement provided in section 186.22,
subdivision (b) varies depending on the offense and the type of
sentence (determinate or indeterminate) imposed. Subdivision
(b)(1) provides for different enhancement terms depending on the
type of offense, “[e]xcept as provided in paragraphs (4) and (5).”
Under subdivision (b)(1)(C), the enhancement term for a violent
felony is 10 years. However, subdivision (b)(5) provides that, if
the offense is “a felony punishable by imprisonment in the state
prison for life,” the enhancement is instead that the defendant

8
defendant would already be sentenced to 15 years to life for the
murder plus 25 years to life for the firearm enhancement, the 15
year minimum parole eligibility imposed by the gang
enhancement would have no practical effect on his sentence. The
prosecution specifically argued that it was asking the court not to
stay the firearm enhancement.
Defense counsel stated that the gang enhancement
“shouldn’t apply.” Counsel also requested that the firearm
enhancement “not be imposed as well. I know Mr. Pacheco is
very young at the time. I know the jury verdict didn’t necessarily
reflect any provocation from the victim in this case, but Mr.
Pacheco testified to such. So I’d submit it on that.”
The trial court responded, “The Court recognizes it has
discretion to strike the use of a firearm enhancement. In this
case the Court respectfully declines that request. This crime
involved great violence. In the Court’s view, this attack was
unprovoked despite what Mr. Pacheco claims. It was carried out
in front of a school full of children being excused for the day. The
victim’s young daughter was mere feet away when the father was
murdered. The crime was in the Court’s view too cruel and
callous for me to grant the Defendant’s request to strike the use
of a firearm.”
The court stated that the parties agreed that the 10-year
determinate gang enhancement did not apply “and therefore the
Court will not impose any time for that.” The court sentenced

“shall not be paroled until a minimum of 15 calendar years have
been served.” Here, the probation report erroneously suggested
the 10-year determinate enhancement term applied; the
prosecutor correctly argued that the 15-year minimum parole
date was applicable.

9
defendant to 15 years to life for the murder enhanced by 25 years
to life for the firearm enhancement.
The court imposed a $10,000 restitution fine (Pen. Code,
§ 1202.4, subd. (b)) and a $10,000 parole revocation fine (Pen.
Code, § 1202.45), in addition to a $6,575 payment to the victim
compensation fund. A $40 court security fee (Pen. Code,
§ 1465.8) and a $30 criminal conviction assessment (Gov. Code,
§ 70373) were also imposed. Defendant made no argument
regarding his ability to pay. Nonetheless, the trial court stated,
“In regards to the restitution fine, as well as restitution, it is
substantial, but so are the expenses for funeral and so forth for
the victim. In the Court’s view, the Defendant, who [is] a young
man, appears healthy and able to work and earn money at prison
to pay his restitution fines, as well as restitution.”
Defendant filed a timely notice of appeal.
DISCUSSION
On appeal, defendant argues error in the imposition of the
gang enhancement on two grounds. First, the evidence was
insufficient to support the gang enhancement under principles
announced in People v. Prunty (2015) 62 Cal.4th 59, dealing with
gang subsets. Second, the gang enhancement must be vacated
under recent amendments to section 186.22.6 Third, the failure to
bifurcate the trial, so that the gang enhancement was tried after
the substantive defense, requires reversal of the conviction.

6 While this appeal was pending, the Legislature passed
Assembly Bill No 333 (AB 333), which modified the language of
the gang enhancement statute. At our request, the parties filed
supplemental briefs. Defendant argues that the AB 333
amendments are applicable to him and require vacatur of the
gang enhancement.

10
Defendant then raises two sentencing issues: the failure to strike
the firearm enhancement and the imposition of fines and fees
without a determination of his ability to pay.
I.
GANG ENHANCEMENT ISSUES
A. The Gang Enhancement Must Be Reversed in Light of
the Requirements of AB 333
Defendant’s challenges to the gang enhancement
encompass both an element of the enhancement that was in
existence at the time of trial and elements retroactively
applicable post trial due to AB 333. Although we conclude that
reversal is necessary because the AB 333 requirements were not
met, we must also address whether the evidence was sufficient to
establish the gang enhancement at the time of trial. This is so
because, if the sole error is in meeting the requirements of the
new statute, the prosecution may retry the enhancement, but if
the evidence was insufficient to meet the requirements of the
statute at the time of trial, there can be no retrial. (People v.
Vasquez (2022) 74 Cal.App.5th 1021, 1033 (Vasquez).)
1. The Evidence Was Sufficient to Establish the
Predicate Offenses Under the Gang Enhancement in
Effect Prior to the AB 333 Amendments
In order to prove a gang enhancement, the prosecution
must establish that the defendant committed his offense “for the
benefit of, at the direction of, or in association with a criminal
street gang.” (§ 186.22, subd. (b)(1).) A “criminal street gang” is
defined as an ongoing association or group of three or more
persons, having as one of its primary activities the commission of
certain criminal acts, “having a common name or common
identifying sign or symbol,” and whose members have engaged in

11
a “pattern of criminal gang activity.” (§ 186.22, subd. (f).) A
“pattern of criminal gang activity” in turn, means the commission
of “two or more” statutorily listed offenses.7 (§ 186.22, subd.
(e)(1).)
In this case, the prosecution sought to establish that the
“criminal street gang” at issue was the Sureños. To that end,
Deputy Fam testified to the primary activities, common name
and common identifying signs and symbols of the Sureños. And
the prosecution sought to establish predicate offenses which had
been committed by members of the Sureños.
On appeal, defendant argues that, because he was a
member of “Barrio Selma Locos” and the predicate offenses were
committed by members of other Sureños subsets, the evidence
was insufficient to prove that the predicate offenses were
committed by members of the same gang in which defendant was
a member.8
Specifically, relying on People v. Prunty, supra, 62 Cal.4th
59, defendant argues that the prosecution failed to establish that
the different Sureño subsets were part of the same umbrella
gang, as there was no evidence of collaborative activities or
collective organizational structure.
But the prosecution did not proceed on the basis that the
Sureño subsets were different, but related, gangs; the prosecution
presented evidence that the Sureños itself was the gang involved

7 These requirements existed in the statute as of the time of
trial. AB 333 added additional requirements to the “pattern of
criminal activity,” which we shall discuss below.
8 This argument is not based on the AB 333 amendments to
section 186.22.

12
in the current and predicate offenses. The so-called subsets were
merely “neighborhoods,” that are “smaller geographical areas of
the same gang typically controlled by a bigger gang.” Further, to
the extent the evidence at trial demonstrated the existence of an
informal sub-group, that is, the Sureños of Fresno county,
Detective Fan testified that these members were controlled by
Michael Boo Boo Moreno and “[e]very Sureno in Fresno County
pays taxes, and some of that taxes makes its way up to [Moreno].”
Here, defendant shot Ortiz to benefit the Sureño gang. He
testified that he was in “the Surenos.”9 In addition, the
prosecution introduced a photograph of defendant wearing blue
clothing, which was consistent with membership in the Sureños,
and a hat with the numbers “559,” the area code for Fresno
county.
There was also sufficient evidence that the predicate
murders were committed by the Sureños gang. The gang expert
testified that July 2010 murder was committed by “a member of
Surenos from the west side of Fresno County.” The murder arose
when “[s]everal Surenos decided to confront” a Bulldog at a
quinceañera. The second predicate murder was committed in
January 2010, by a member of “Barrio Sanger Surenos,” which
was based in Sanger, “the biggest stronghold for the Surenos in
Fresno County.” According to the gang expert, the defendant in

9 Defendant’s testimony was elicited by his counsel as
follows:
“Q Have you been in a gang?
“A Yeah.
“Q And was that the Surenos?
“A Yeah.”
Defendant did not testify his gang was Barrio Selma Locos; he
said that his gang was the Sureños.

13
that case was confronted by some Bulldogs, left, saw them
walking down the street and yelled out, “ ‘What’s up ese’—ese is
what the Surenos will refer to each other as for the letter S—at
the group of Bulldogs and started shooting at them.” Further,
even insofar as the perpetrators are viewed as members of
Sureño subset gangs, there was sufficient evidence here, unlike
in Prunty, that the perpetrators were “united by something in
common beyond pure happenstance” (Prunty, 62 Cal.4th at p. 73),
including their payment of taxes and loose hierarchy under the
control of Moreno (id. at p. 77).
2. The AB 333 Amendments on the Timing of Predicate
Offenses and “Gang Benefit” Apply Retroactively to
Defendant
While this appeal was pending, the Legislature enacted AB
333, which amended section 186.22, the gang enhancement
statute. We requested letter briefing on the effect of AB 333.
Defendant argues and the Attorney General concedes that the AB
333 amendments to section 186.22 regarding the definition of
“gang benefit” and the timing of the predicate offenses are
retroactive. (People v. Delgado (2022) 74 Cal.App.5th 1067, 1087;
People v. Lopez (2021) 73 Cal.App.5th 327, 334.) Given the
parties’ agreed framing of the issue, we will assume, without
deciding, that the two amendments are retroactive.
Defendant argues that substantial evidence did not support
the two AB 333 requirements. First, he challenges the evidence
of benefit to the gang. Second, he questions the sufficiency of the
predicate offenses under the new law.

14
 (a) There Was Indisputable Gang Benefit Beyond
Reputation
Both before and after its amendment by AB 333, section
186.22 applied only to a defendant who committed a felony “for
the benefit of, at the direction of, or in association with a criminal
street gang, with the specific intent to promote, further, or assist
in” criminal conduct by gang members. (§ 186.22, subd. (b)(1).)
AB 333 added a new definition, explaining, “to benefit, promote,
further, or assist means to provide a common benefit to members
of a gang where the common benefit is more than reputational.
Examples of a common benefit that are more than reputational
may include, but are not limited to, financial gain or motivation,
retaliation, targeting a perceived or actual gang rival, or
intimidation or silencing of a potential current or previous
witness or informant.” (§ 186.22, subd. (g).)
Defendant argues that the prosecution relied on evidence of
reputational benefit to the gang, which is inadequate under the
new law. The Attorney General agrees that the gang benefit
must be more than reputational under AB 333, but argues that
the benefit to the Sureños here was far more than reputational.
Because the trial took place before the AB 333 amendments,
defendant’s jury was not instructed on the “non reputational”
element. So, the issue before us is whether the failure to give
such an instruction was prejudicial.
“By requiring proof for a gang enhancement that the
benefit to the gang was more than reputational, Assembly Bill
No. 333 essentially adds a new element to the enhancement.
When jury instructions are deficient for omitting an element of
an offense, they implicate the defendant’s federal constitutional
rights, and we review for harmless error under the strict

15
standard of Chapman v. California (1967) 386 U.S. 18, 87 S.Ct.
824, 17 L.Ed.2d 705 (Chapman). [Citations.]” (People v. Sek
(2022) 74 Cal.App.5th 657, 668.) “Under the Chapman standard,
reversal is required unless ‘it appears beyond a reasonable doubt
that the error did not contribute to th[e] jury’s verdict.’
[Citation.]” (Ibid.) The issue is not whether, in a trial without
the error, a guilty verdict would have been rendered. Instead,
the issue is whether the guilty verdict actually rendered in the
case was surely unattributable to the error. (Ibid.) “Courts have
found harmless error under this standard where the missing
element from an instruction was uncontested or proved as a
matter of law.” (Id. at p. 669.)
That standard is met here – any error was harmless
beyond a reasonable doubt. It is true that the gang expert
testified to the benefit the gang would have received from the
fear and trauma suffered by the community. Even if we were to
assume without deciding that frightening and traumatizing the
community is reputational, the expert also testified that the gang
benefitted because defendant eliminated a member of a rival
gang. “[T]argeting a perceived or actual gang rival” is expressly
identified in the statute as a benefit that is more than
reputational. (§ 186.22, subd. (g).) There is no dispute that
defendant was a Sureño; that Ortiz was a Bulldog; and that the
two gangs were rivals. The victim’s fiancée testified that
defendant approached Ortiz and said, “Hey, fool, you bang?”
Ortiz responded in kind. Although defendant testified that he
did not issue the gang challenge or shoot Ortiz for gang reasons –
instead claiming he acted in self-defense – the jury’s rejection of
self-defense establishes that the jury did not accept this
testimony.

16
 (b) Due to the New Temporal Element for Predicate
Offenses, the Gang Enhancement Must Be
Reversed But May Be Retried
AB 333 also changed the temporal requirement for
predicate offenses. Now, to establish a pattern of criminal
activity, the prosecution must show the commission of two or
more itemized offenses “provided at least one of these offenses
occurred after the effective date of this chapter, and the last of
those offenses occurred within three years of the prior offense
and within three years of the date the current offense is alleged to
have been committed . . . .” (§ 186.22, subd. (e)(1), italics added.)
Because the trial took place before the effective date of AB
333, the jury was not instructed on this temporal element. As
with the new element of gang benefit beyond reputational harm,
we review the failure to instruct under the Chapman standard.
The Attorney General argues that the error here is harmless
beyond a reasonable doubt, because it had introduced evidence at
trial that necessarily established predicate offenses which satisfy
the new temporal element.
Defendant shot Ortiz on October 13, 2015. The two
murders relied upon as predicate offenses occurred in 2010, and
neither satisfies the new element that at least one of the
predicate offenses occurred within three years of the date of the
current offense. The Attorney General argues that this recency
requirement is satisfied by a third predicate offense of which it
introduced evidence at trial: the April 2013 conviction of
unlawful or negligent discharge of a firearm, committed by Mario
Canales, a Sureño member from the Sureño Lifestyle hood. April
2013 is within three years of the July 2010 murder, and also
within three years of the current October 2015 Ortiz killing.

17
Under the AG’s theory, the two predicate offenses would have
met the temporal requirements.
However, to constitute a predicate offense sufficient to
establish a pattern of criminal activity, the offense must be
itemized in subdivision (e)(1) of section 186.22, and unlawful or
negligent discharge of a firearm is not on that list. We sought
additional briefing on the issue. The Attorney General argued
that, although negligent discharge of a firearm is not on the
statutory list of predicate offenses, the circumstances of gang
member Canales’s offense showed that he also violated section
25850, carrying a loaded firearm in a public place, which
qualifies under the statute. (§ 186.22, subd. (e)(Z).)10
Specifically, at trial, Deputy Fam was asked if he as familiar with
the facts of Canales’s conviction. He responded, “Yeah, he – our
patrol took a call for service of shots fired, and one of our deputies
stopped the vehicle leaving the area which contained this
individual, Mario Canales. He admitted to seeing someone that
he had issues with standing in his front yard so he pulled out a
gun and fired it several times in the air to scare him.”
The Attorney General rightly points to language in section
186.22 indicating that predicate offenses need only be committed;
there need not be an actual conviction. (§ 186.22, subd. (e)(1)
[“ ‘pattern of criminal activity’ means the commission of,
attempted commission of, conspiracy to commit, or solicitation of,
sustained juvenile petition for, or conviction of” the predicate

10 Section 186.22, subd. (e)(Z) provides: “Carrying a loaded
firearm in violation of Section 12031 until January 1, 2012, and,
on or after that date, Section 25850.” Both former section 12031
and current section 25840 require the carrying of a loaded
weapon to be “in any public place or on any public street.”

18
offenses].) The Attorney General also argues that, regardless of
the crime for which Canales was convicted, the facts show that
Canales also committed the predicate offense of carrying a loaded
firearm.
While we agree that the prosecution at defendant’s trial
introduced some evidence from which a jury might have
concluded Canales committed the crime of carrying a loaded
firearm in public, that is not the test. As we discussed above,
“[c]ourts have found harmless error under [the Chapman test],
where the missing element from an instruction was uncontested
or proved as a matter of law.” (People v. Sek, supra,
74 Cal.App.5th at p. 669.) We cannot say that Deputy Fam’s
brief testimony regarding the facts of Canales’s arrest proved as a
matter of law that Canales committed the crime of carrying a
loaded firearm in a public place. Deputy Fam simply recounted a
statement Canales allegedly made to an unidentified deputy. It
is not clear how Deputy Fam obtained his knowledge of the
statement purportedly made by Canales to the other deputy, nor
was there any evidence of the circumstances in which the
statement was made or whether it was documented. Beyond
that, the statement, as Deputy Fam relayed it, does not
inexorably point to Canales having carried the loaded firearm in
a public place. According to Deputy Fam, Canales “admitted to
seeing someone . . . standing in his front yard so he pulled out a
gun and fired it . . . .” It is unclear whether this occurred in
Canales’s front yard or the victim’s, and, if Canales’s yard,
whether it was gated or otherwise blocked off from the street.
(See People v. Strider (2009) 177 Cal.App.4th 1393, 1400−1405
[fenced front yard is not a public place for purposes of prohibition
of carrying a loaded firearm in a public place].)

19
 The prosecution supported its proof of Canales’s predicate
act with Exhibit 90, which contained the felony complaint against
Canales, and paperwork documenting his no contest plea. The
exhibit shows that Canales was charged with a number of
offenses, including both unlawful discharge of a firearm and
carrying a loaded firearm in public, but that he pleaded no
contest only to the former, not the latter. On this evidence, we
cannot say it was uncontested or proven “as a matter of law”
(People v. Sek, supra, 74 Cal.App.5th at p. 669) that Canales
committed the offense of carrying a loaded firearm in public. As
such, the temporal element added by AB 333 was not satisfied,
and the failure to instruct on the element was not harmless
beyond a reasonable doubt. We therefore reverse the gang
enhancement. As this temporal element was not part of the law
at the time of trial, on remand, the prosecution may elect to retry
the gang enhancement. (People v. Vasquez, supra,
74 Cal.App.5th at p. 1033.)
B. The Reversal of the Gang Enhancement Does Not
Require Reversal of Pacheco’s Murder Conviction
Defendant contends that our reversal of the gang
enhancement requires reversal of his underlying murder
conviction as well. Relying on People v. Burgos (2022)
77 Cal.App.5th 550, 557–558, review granted July 13, 2022,
S274743 (Burgos), he argues in a supplemental letter brief,
“Assuming section 1109 applies retroactively to appellant’s case,
this Court should also reverse his convictions of murder and the
gang enhancement, whether under federal or state harmless
error analysis.”
AB 333 amended section 186.22 in several respects. We
have already discussed two of them – definition of “gang benefit”

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and time limits for predicate offenses. We hold that application
of the latter, but not the former, compels reversal of the gang
enhancement. A third part of AB 333 amended a different
section of the Penal Code, section 1109, that now requires, upon a
defendant’s request, crimes charged against a defendant must be
tried separately from the gang enhancement. In supplemental
briefing, defendant takes the position that the bifurcation
provision must also be applied retroactively. (See also People v.
Montano (2022) 80 Cal.App.5th 82, ___ [2022 WL 2236331, *16]
People v. Ramos (2022) 77 Cal.App.5th 1116, 1128, 1131.) The
People, relying on People v. Perez (2022) 78 Cal.App.5th 192, 207,
disagree (See also People v. Ramirez (2022) 79 Cal.App.5th 48,
64-65.),
We need not take a position in this dispute. Defendant did
not move to bifurcate the trial, thereby forfeiting the argument.
(See People v. Holmes, McClain and Newborn (2022) 12 Cal.5th
719, 772 [as a general rule, the failure to object in the trial court
waives the right to assert error on appeal].) Defendant suggests
that, prior to section 1109, a motion to bifurcate would have been
futile or unsupported by the law then in existence. Defendant’s
bald representation does not make it so. Our Supreme Court
acknowledged in 2004 that trial courts possessed the discretion to
bifurcate gang enhancements. (People v. Hernandez (2004)
33 Cal.4th 1040, 1049.) Indeed, the defendants in Ramos, a case
cited by defendant, had moved to bifurcate, even though their
trial predated section 1109. (Ramos, supra, 77 Cal.App.5th at
p. 1121.)
Even if we were to consider the merits of the argument, we
would find the failure to bifurcate harmless under any standard
of review. Critical parts of the gang testimony would have been

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admitted in the first stage of any bifurcated trial. The encounter
that led up the shooting started when defendant asked the victim
Ortiz, “Hey, fool, you bang?” Ortiz was a member of the Bulldogs,
a rival gang. He responded to defendant’s challenge with, “Yeah,
Northside Selma Bulldogs.” The principal disputed issue at trial
was defendant’s intent. Defendant claimed self-defense. The
prosecution argued this was an intentional gang shooting and
introduced evidence that, the day before the shooting, defendant
had told his former girlfriend that he was planning to shoot
someone. This evidence was admissible on the key issue at trial
– did defendant intentionally shoot Ortiz.
The other gang evidence was limited and relatively
unimportant. The prosecution did not introduce other crimes
that defendant had committed or participated in on behalf of his
gang. Instead, the predicate offenses involved other Sureños
members that took place over several years and in which
defendant played no part. Accordingly, at least under these
circumstances, we do not share the concern of the Burgos
majority that it can be “difficult to determine how the outcome of
the trial would have been affected if it had been bifurcated to try
the gang enhancements separately . . . .” (Burgos, supra, 77
Cal.App.5th at p. 568.)
II.
SENTENCING ISSUES
A. The Court Did Not Abuse Its Discretion in Declining
to Strike the Firearm Enhancement
Defendant next contends the trial court abused its
discretion in declining to strike the firearm enhancement at
sentencing. In this regard, defendant relies on his age at the

22
time of the offense (17) and the psychological factors identified in
Dr. Blak’s report.
Defendant was sentenced in 2019. By this time, the
Legislature had amended the law to provide trial courts with
discretion to strike firearm enhancements in the interests of
justice. (§ 12022.53, subd. (h), as amended by Stats. 2017,
ch. 682 (S.B. 620), § 2.) We review a refusal to strike an
enhancement for abuse of discretion. (People v. Carmony (2004)
33 Cal.4th 367, 371.) We find no abuse of discretion. The trial
court at sentencing correctly and expressly recognized it
possessed this discretion, but declined to exercise it, on the basis
that the crime was an unprovoked act of great violence that
reflected cruelty and callousness. Defendant approached Ortiz in
the middle of the day, when the victim was walking next to his
fiancée and his daughter to meet his son’s school bus. Defendant
brought gang violence to a scene of children peacefully walking
home from school, killing a parent in front of his daughter and
causing an entire school to be placed on lockdown. That
defendant happened to be three months shy of majority at the
time does not create a mandatory duty on the trial court to strike
the enhancement.11
B. The Trial Court Did Not Err in Connection with the
Fines and Fees
Defendant argues that, under People v. Dueñas (2019)
30 Cal.App.5th 1157, 1172, the trial court erred in imposing fines
and fees without making a finding that he had the ability to pay.
Defendant’s premise is incorrect. At the sentencing hearing, the
court expressly stated that defendant “appears healthy and able

11 According to the probation report, defendant was born
February 4, 1998. He killed Ortiz on October 30, 2015.

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to work and earn money at prison to pay his restitution fines, as
well as restitution.” There was therefore no error.
C. The Abstract Must Be Modified
Although not raised by the parties, we find two entries in
the abstract of judgment that must be stricken. First, the
abstract does not reflect defendant’s sentence was enhanced for
the gang enhancement. The abstract is correct only in light of
disposition of this appeal. Although the abstract does not
mention the gang enhancement, it does reflect a sentencing
consequence arising from the gang enhancement – defendant was
directed to register pursuant to section 186.30. Because we
reverse and remand the gang enhancement, the registration
requirement must be stricken, subject to the re-imposition of the
registration requirement if the People elect to re-try the gang
enhancement and it is found true.
We also have found an apparent clerical error in the
abstract of judgment. The abstract properly reflects defendant
was sentenced to a term of 15 years to life for the murder, with
an enhancement of 25 years to life for the firearm. However,
there is a box checked at the bottom of the abstract indicating
that defendant was sentenced pursuant to “PC 667(b)-(i) or PC
1170.12.” Those statutory references are to the so-called “Three
Strikes” law. Defendant was not sentenced pursuant to The
Three Strikes law. That part of the abstract must also be
stricken.

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 DISPOSITION
The gang enhancement is reversed, and the matter
remanded with directions that the prosecution may elect to retry
the gang enhancement if it chooses. The court shall prepare an
amended abstract of judgment removing the reference to the
Three Strikes law. Unless the prosecution elects to re-try the
gang enhancement and the enhancement is found to be true, the
court shall also delete the reference to the gang registration
requirement in the amended abstract of judgment. The trial
court is directed to forward a certified copy of the amended
abstract of judgment to the Department of Corrections and
Rehabilitation. In all other respects, the judgment is affirmed.

RUBIN, P. J.
WE CONCUR:

BAKER, J.

KIM, J.

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