People v. Villareal CA2/1

Filed 8/30/22 P. v. Villareal CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.11 15.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, B309142
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. BA444273)
v.

JOSE MANUEL VILLAREAL,

Defendant and Appellant.

APPEAL from a judgment and an order of the Superior
Court of Los Angeles County, Leslie Swain and Robert C.
Vanderet, Judges. Reversed.
Cynthia Grimm, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle and Chung L. Mar, Deputy
Attorneys General, for Plaintiff and Respondent.
____________________________
 In a previous opinion, we conditionally reversed defendant
and appellant Jose Manuel Villareal’s attempted murder
(Pen. Code, §§ 187, subdivision (a), 664)1 conviction on the ground
that the prosecution voluntarily dismissed the case twice before
proceeding to trial. Such conviction is valid only if at least
one of the two dismissals was “due solely to excusable neglect”
(§ 1387.1, subd. (a)), and in this case, the court had not made any
finding on this question when the issue was first before us. We
thus remanded for the court to do so. On remand, the trial court
found that both of the dismissals were due solely to excusable
neglect.
Villareal now contends that the trial court erred in its
findings of excusable neglect and that the delay of his trial also
violated his constitutional right to a speedy trial. He further
contends that his attempted murder conviction is invalid because
it was based on the natural and probable consequences doctrine,
which is no longer a valid theory of attempted murder following
the enactment of Senate Bill No. 1437 (2017−2018 Reg. Sess.)
(Stats. 2018, ch. 1015) and Senate Bill No. 775 (2021–2022
Reg. Sess.) (Stats. 2021, ch. 551), and that retrial is barred
because the record does not contain substantial evidence to
support his guilt under a theory that remains valid. Finally,
he contends that we must reverse his gang enhancement and
related firearm enhancement in light of Assembly Bill No. 333
(2021–2022 Reg. Sess.) (Stats. 2021, ch. 699), which created
stricter standards for such enhancements.

1Subsequent unspecified statutory references are to the
Penal Code.

2
 We agree with Villareal that his attempted murder
conviction must be reversed, but we agree with the Attorney
General that the case may be retried upon remand. We
also agree that the gang enhancement and related firearm
enhancement are no longer valid following the enactment of
Assembly Bill No. 333, and we reverse those enhancements,
but as Villareal concedes, they may be retried. Lastly, we
disagree with Villareal as to the findings of excusable neglect.

FACTS AND PROCEEDINGS BELOW
We repeat the facts of the case as we described them in
the first opinion in this case, People v. Villareal (Feb. 7, 2020,
B291257) [nonpub. opn.] (Villareal).
“At around 3:30 a.m. on January 25, 2016, a man named
Johnny Aguilar saw two men standing next to his brother’s car.
It was dark outside, and one of the men stood by the driver’s side
with a skeleton mask partially obscuring his face. The man in
the mask tried to open the driver’s side door of the car. Aguilar
said it was his brother’s car and asked the men what they were
doing. The man on the driver’s side pulled out a gun, and Aguilar
said, ‘[I]f you’re going to shoot, you better shoot.’ The man then
shot him two or three times. The shots hit Aguilar in one of
his testicles and his leg. He went to the hospital, where doctors
removed the injured testicle.
“Aguilar told police that he recognized the man who shot
him as someone named Pelon. He later identified the man in a
photo lineup as Tommy Reyes. Aguilar knew the other man, who
was standing by the passenger side of the car, as Little Tweety.
Aguilar later identified a photo of Villareal from a lineup as Little
Tweety. Aguilar told police that he knew the two men because
they had tried to break into his home a few months earlier. At

3
trial, however, Aguilar denied that he could identify Reyes as the
shooter or Villareal as the other man who had been present. He
also testified that he did not remember telling the police that he
knew who shot him.
“Aguilar testified that the man at the passenger side of
the car just stood there and that he did not see him do anything.
Similarly, in an interview with police shortly after the shooting,
Aguilar said that Villareal ‘was just following’ Reyes and did not
say or do anything. He stood on the sidewalk and did not try to
get in the car.
“The prosecution played for the jury a recording of a
jailhouse telephone conversation between Villareal and a friend.
In that conversation, Villareal told the friend that he told
police he did not know ‘ Tommy,’ presumably referring to his
codefendant Reyes. Villareal also said, apparently in reference
to Aguilar, ‘they gave that dude some photos of ours, of the entire
neighborhood, and [told] him to point out the faces that did it.’
Villareal then encouraged his friend to intimidate Aguilar about
giving information to police in the case. He told his friend to
‘tell . . . that dude to not, you know—to not point at my face,
dude, because if not, it’s going to go . . . fucking bad for him.’
‘[T]ell that dude to remove my fucking face from there, dude.’
The friend told Villareal that he was going to ‘go do that shit
right now.’
“ The parties stipulated that Villareal was a member of the
Loco Park gang, and that his codefendant Reyes was a member of
the Burlington Loco gang. A police gang expert testified that the
two gangs are allies, and that a hypothetical shooting of the kind
that occurred here would have been for the benefit of a street
gang.”

4
 In addition to attempted murder, the jury also convicted
Villareal of one count of assault with a firearm, in violation of
section 245, subdivision (a)(2). On both counts, the jury found
true an allegation Villareal committed the crimes for the benefit
of a criminal street gang. (§ 186.22, subd. (b)(1)(C).) With
respect to the attempted murder count, the jury found that a
principal personally and intentionally discharged a firearm,
proximately causing great bodily injury. (§ 12022.53, subds. (d)
& (e)(1).)
The trial court sentenced Villareal to an aggregate
sentence of 15 years, consisting of the low term of five years for
attempted murder, plus 10 years for the gang enhancement. The
court struck the firearm enhancement for purposes of sentencing.
The court also imposed the low term of two years on count 2 but
stayed the sentence pursuant to section 654.
In Villareal’s first appeal, we reversed his conviction of
assault with a firearm and conditionally reversed the attempted
murder conviction on the ground that the prosecution had
voluntarily dismissed the case twice before proceeding to trial.
(See § 1387.) Because attempted murder is a violent felony
as defined in section 667.5, the prosecution is “permitted one
additional opportunity to refile charges where either of the prior
dismissals . . . were due solely to excusable neglect.” (§ 1387.1.)
We remanded the case to the trial court to determine if either
of the previous dismissals met that definition. (See Villareal,
supra, B291257.)
The Supreme Court granted Villareal’s petition for review
on the question of the validity of his attempted murder conviction
in light of recent legislation regarding the natural and probable
consequences doctrine, but Villareal asked the court to remand

5
the case to allow the trial court to make a finding on excusable
neglect. The Supreme Court granted the motion and transferred
the case to this court with directions to vacate our previous
opinion and rule on Villareal’s motion for limited remand. We
granted the motion and remanded the case to the trial court.
On remand, Villareal filed a motion to dismiss the case
on the basis of the two prior dismissals. The trial court found
that both prior dismissals were due solely to excusable neglect
and reinstated Villareal’s conviction of attempted murder.

DISCUSSION
A. Villareal’s Attempted Murder Conviction
Must Be Reversed
Villareal contends that we must reverse his conviction
for attempted murder because it was based on the natural
and probable consequences doctrine, a theory no longer valid
following the enactment of Senate Bills No. 1437 and No. 775.
The Attorney General concedes the point, and we agree.
In 2018, the Legislature enacted Senate Bill No. 1437,
which amend section 188 to provide that, with one exception not
relevant here, “in order to be convicted of murder, a principal in
a crime shall act with malice aforethought. Malice shall not be
imputed to a person based solely on his or her participation in a
crime.” (§ 188, subd. (a)(3), as amended by Sen. Bill No. 1437
(2017–2018 Reg. Sess.).) The natural and probable consequences
doctrine allowed a defendant to be convicted of murder based
on his intent to commit a target offense, with no proof of his
mens rea as to murder. (People v. Chiu (2014) 59 Cal.4th 155,
164 (Chiu).) Thus, Senate Bill No. 1437 abolished the natural

6
and probable consequences doctrine in cases of murder. (People
v. Gentile (2020) 10 Cal.5th 830, 846 (Gentile).)
When Villareal sought to overturn his attempted murder
conviction in his first appeal, we rejected the argument on the
ground that “ ‘[a]n attempt is an offense “separate” and “distinct”
from the completed crime.’ ” (People v. Lewis (2006) 146
Cal.App.4th 294, 298.) Because section 188, subdivision (a)(3)
mentioned only murder, we held that it did not apply to
attempted murder.
There was a second obstacle, which we did not rely on in
our first opinion but which also would have barred Villareal from
obtaining relief. Although ameliorative laws ordinarily apply
retroactively to all defendants whose cases are not yet final on
appeal when the legislation becomes effective, that presumption
does not apply “when ameliorative legislation sets out a specific
mechanism as the exclusive avenue for retroactive relief.”
(Gentile, supra, 10 Cal.5th at p. 852.) Senate Bill No. 1437
contained such a mechanism in the former section 1170.95,
now renumbered as section 1172.6, which allowed defendants
convicted of murder under a theory made invalid by the new
law to petition for resentencing. The Supreme Court in Gentile
held that defendants convicted of murder under the natural and
probable consequences doctrine therefore could not challenge
their convictions on direct appeal. (Gentile, supra, at p. 859.)
After we decided Villareal’s first appeal, the Legislature
swept away both of these obstacles by enacting Senate Bill
No. 775. The legislation expanded eligibility for resentencing
under section 1172.6 to those “convicted of . . . attempted
murder under the natural and probable consequences doctrine.”
(Stats. 2021, ch. 551, § 2) [amending former § 1170.95, subd. (a),

7
now renumbered § 1172.6, subd. (a)].) It also abrogated
Gentile by enacting section 1172.6, subdivision (g), which
provides that “[a] person convicted of murder, attempted
murder, or manslaughter whose conviction is not final may
challenge on direct appeal the validity of that conviction based
on the changes made to Sections 188 and 189 by Senate Bill
[No.] 1437.” (Stats. 2021, ch. 551, § 2.) Furthermore, although
Senate Bill No. 775 did not amend section 188, the Legislature’s
“[c]larifi[cation] that persons who were convicted of attempted
murder or manslaughter under a theory of felony murder and
the natural probable consequences doctrine are permitted the
same relief as those persons convicted of murder under the same
theories” (Stats. 2021, ch. 551, § 1) shows unequivocally that
the Legislature intended to eliminate the natural and probable
consequences doctrine for attempted murder just as with murder.
Thus, under the law as amended by Senate Bill No. 775,
the natural and probable consequences doctrine can no longer
support a conviction for attempted murder (see § 1172.6,
subd. (a)), and this change in the law applies retroactively to
defendants like Villareal whose convictions are not yet final. (See
People v. Hola (2022) 77 Cal.App.5th 362, 370 (Hola).) Because
the jury instructions regarding attempted murder at Villareal’s
trial included an instruction on the natural and probable
consequences doctrine, “we will treat the instruction[s] as having
been ‘legally erroneous at the time [they were] given’ (Gentile,
supra, 10 Cal.5th at p. 851), and we will proceed to ‘assess
whether the error was harmless beyond a reasonable doubt’
under Chapman [v. California (1967) 386 U.S. 987].” (People v.
Birdsall (2022) 77 Cal.App.5th 859, 868, fn. omitted.)

8
 In the instant case, the court instructed the jury on
attempted murder under theories of direct aiding and abetting
as well as the natural and probable consequences doctrine.
“When a trial court instructs a jury on two theories of guilt, one
of which was legally correct and one legally incorrect, reversal
is required unless there is a basis in the record to find that the
verdict was based on a valid ground.” (Chiu, supra, 59 Cal.4th
at p. 167.) If “the record does not permit us to rule out a
reasonable possibility that the jury relied on the invalid natural
and probable consequences theory in convicting” the defendant,
the error was prejudicial. (In re Martinez (2017) 3 Cal.5th
1216, 1226.) The error here does not meet this strict standard
of harmless error. Virtually all the evidence of Villareal’s
culpability for attempted murder was under the natural and
probable consequences doctrine. Thus, as both parties agree,
we must reverse Villareal’s attempted murder conviction.

B. The Prosecution Is Not Barred from Retrying
Villareal for Attempted Murder on Remand
Although the parties agree that we must reverse
Villareal’s conviction of attempted murder, they disagree as to
the consequences. Villareal argues that because the prosecution
failed to produce substantial evidence of his guilt of attempted
murder as a direct aider and abettor, retrial on that theory is
barred. The Attorney General contends that because the natural
and probable consequences doctrine was valid at the time of trial,
we must allow a retrial. We agree with the Attorney General.
The ordinary rule is that “[w]hen there has been a
postconviction change in the statutory or decisional law that
invalidates a theory upon which the conviction was based and
reversal is warranted, appellate courts remand the case to the

9
trial court to allow the prosecution to retry the defendant on
a legally valid theory.” (Hola, supra, 77 Cal.App.5th at p. 371.)
A retrial in this situation does not violate the prohibition
against double jeopardy. As the United States Supreme Court
has explained, “ ‘[t]o require a criminal defendant to stand
trial again after he has successfully invoked a statutory right of
appeal to upset his first conviction is not an act of governmental
oppression of the sort against which the Double Jeopardy Clause
was intended to protect.’ ” (United States v. DiFrancesco (1980)
449 U.S. 117, 131.)
Villareal contends that his case is different because there
is no substantial evidence of his guilt under any valid theory.
The natural and probable consequences doctrine has been
invalidated, and there is virtually no evidence that he directly
aided and abetted Reyes in the attempted murder. According to
Villareal, because the prosecution had every incentive to present
evidence under both theories, its failure to produce sufficient
evidence under the remaining valid theory of liability bars a
second chance.
We disagree. Even if the record does not contain sufficient
evidence of Villareal’s guilt as a direct aider and abettor, retrial
is not barred. Although the jury was instructed on two theories,
the prosecution was entitled to devise a legal strategy focusing
on the evidence that it believed would most probably lead to a
conviction. Whether it is likely that the prosecution will be able
to produce new evidence that Villareal aided and abetted Reyes
in attempted murder is not determinative; as a reviewing court,
we are in no position to speculate on what evidence may exist
outside the record in any given case. As the court noted in
Hola, “the People also have a right to due process.” (Hola, supra,

10
77 Cal.App.5th at p. 376, fn. 15, citing Cal. Const., art I, § 29.)
The prosecution obtained a valid conviction under the law that
existed at the time. When a conviction is invalidated by a change
in the law, it is entitled to another chance.

C. The Trial Court Did Not Abuse Its Discretion by
Determining that the June 12, 2017 Dismissal
Was Due Solely to Excusable Neglect
Villareal contends that the trial court erred by denying
his motion to dismiss his attempted murder charge on the ground
that the case had previously been dismissed twice.2 We disagree.
The trial court did not abuse its discretion in determining that
the June 2017 dismissal was due solely to excusable neglect (see
People v. Woods (1993) 12 Cal.App.4th 1139, 1149 (Woods)), and
substantial evidence supports the court’s implied factual findings
on the issue (see In re White (2020) 9 Cal.5th 455, 470 (White)).

1. Legal Principles
Section 1387 provides that “[a]n order terminating an
action . . . is a bar to any other prosecution for the same offense if
it is a felony . . . and the action has been previously terminated.”
(§ 1387, subd. (a).) An exception to this rule exists for violent
felonies: In such cases, even though “the prosecution has had
two prior dismissals, as defined in Section 1387, the people shall
be permitted one additional opportunity to refile charges where

2 This issue is not moot despite our holding elsewhere in
this opinion that Villareal’s attempted murder conviction must be
reversed. If neither of the prior dismissals was due to excusable
neglect, the case against Villareal would be dismissed, with no
opportunity to retry him on remand.

11
either of the prior dismissals under Section 1387 were due solely
to excusable neglect.” (§ 1387.1, subd. (a).)
“ ‘Excusable neglect’ is a legal term of art common in the
law. Appellate courts have held that the phrase is to be given
the same construction in criminal cases as it has previously been
given in civil cases. [Citation.] ‘Simply expressed, “[e]xcusable
neglect is neglect that might have been the act or omission
of a reasonably prudent person under the same or similar
circumstances.” ’ ” (People v. Massey (2000) 79 Cal.App.4th
204, 210–211 (Massey).)
“The application of section 1387.1 is a discretionary
decision for the judge which should be afforded great weight
unless a clear abuse of that discretion is demonstrated. We
do not exercise ‘ “independent review.” ’ ” (Woods, supra, 12
Cal.App.4th at p. 1149.) “Thus, ‘[u]nless inexcusable neglect is
clear, the policy favoring trial on the merits prevails.’ ” (Massey,
supra, 79 Cal.App.4th at p. 211.) We review the factual findings
underlying the trial court’s decision for substantial evidence.
(White, supra, 9 Cal.5th at p. 470.)

2. Procedural History
On November 28, 2016, prior to Villareal’s trial, the
prosecutor told the court that he was unable to proceed with
the case at that time. Both parties agreed to dismiss the
case and deem it to be refiled under the existing information
pursuant to section 1387.2, with a new deadline to begin trial of
January 27, 2017. On January 10, 2017, the trial court granted
the prosecution’s motion to consolidate Villareal’s case with

12
that of his codefendant, Reyes, under a new information.3 On
the new trial date, June 12, 2017, the prosecution again was
not prepared to proceed, and dismissed and refiled the case
for a second time.4 Villareal’s attorney asked the trial court to
determine whether one of the dismissals had been for excusable
neglect, but the court declined to do so. The case then proceeded
to trial in August 2017.
Because the court did not make a finding of excusable
neglect, in our prior opinion we conditionally reversed Villareal’s
attempted murder conviction and remanded the case to the trial
court to make such a finding.5

3 The filing of the consolidated information rendered
the previous information redundant. In our previous opinion,
we held that this consolidation of the cases was not a dismissal
of the previous information for purposes of section 1387 on the
ground that “[i]n general, courts have not considered dismissals
of duplicative accusatory pleadings to be terminations of actions
within the scope of section 1387.” (Berardi v. Superior Court
(2008) 160 Cal.App.4th 210, 220.) This is because the dismissal
of a duplicative pleading “involving the same facts does not
involve the defendant in the kind of successive prosecutions that
section 1387 was designed to prevent.” (People v. Cossio (1977)
76 Cal.App.3d 369, 372.) Villareal asks us to reconsider our
position, but we reach the same conclusion as before.
4 As before, the parties agreed to act pursuant to
section 1387.2, which allows the court to proceed under
the existing pleading, with the case deemed to have been
terminated and refiled.
5 In our prior opinion, we also reversed Villareal’s
conviction for assault with a firearm. That offense is not
classified as a violent felony, at least as applied to a defendant

13
 On remand, the prosecution submitted declarations from
a deputy district attorney, two members of the Los Angeles Police
Department, and an investigator for the district attorney. The
deputy district attorney stated that he decided to dismiss the
case in November 2016 in order to join Villareal’s case with
Reyes’s case in a single prosecution, and that he dismissed it
again in June 2017 because his investigators and police officers
were unable to serve the sole eyewitness in the case, Aguilar,
with a subpoena to require him to testify.
In their declarations, the police officers and investigator
detailed their efforts to find Aguilar. A police detective declared
that although Aguilar initially cooperated with police, identifying
both Villareal and Reyes as the perpetrators shortly after the
attack in January 2016, he soon ceased cooperating. At the July
2016 preliminary hearing, he refused to identify Villareal and
Reyes and claimed that he no longer remembered the details of
his prior identification of them. Transcripts of jailhouse phone
calls suggested that both Villareal and Reyes instructed
associates to dissuade Aguilar from testifying.
Police officers began attempting to serve Aguilar with a
subpoena in early June 2017, coming to his home at least three
times in the days leading up to the June 12 dismissal. On at
least one occasion, an investigator went to Aguilar’s home at

who did not personally fire the weapon. (People v. Sinclair
(2008) 166 Cal.App.4th 848, 856; see § 667.5, subd. (c).) Because
it is not subject to the violent felony exception in section 1387.1,
we reversed the conviction for assault with a firearm outright,
with no opportunity for the prosecution to retry it. The Attorney
General does not challenge that outcome, and we reinstate it in
this opinion.

14
5:00 a.m. in an attempt to find him before he left for work.
A detective ultimately served Aguilar a month later early in
the morning in his bedroom. Even then, he refused to sign the
subpoena and attempted to use a chair as a barricade between
himself and the detective. Officers ultimately arrested Aguilar in
July 2017 pursuant to a body attachment to bring him to court.
On the basis of this evidence, the trial court determined
that both prior dismissals were for excusable neglect.6

3. Application to the Case
Villareal contends that the June 2017 dismissal was not
due solely to excusable neglect. He notes several ways in which
the police and investigators could have pursued Aguilar more
diligently. They could have started looking for him earlier, they
could have attempted to find him at work or other locations apart
from his home, and they could have enlisted the help of others.
Villareal is correct that the effort to locate Aguilar was not
perfect. But the concept of excusable neglect assumes some level
of negligence (Massey, supra, 79 Cal.App.4th at p. 211), so long as

6 Villareal notes that the prosecution argued only that the
June 2017 dismissal was due to excusable neglect, and did not
attempt to demonstrate that the November 2016 dismissal
was also due to excusable neglect. Because section 1387.1,
subdivision (a) allows the prosecution to refile charges if “either”
of the prior dismissals was due solely to excusable neglect, we
need not consider whether the trial court erred by determining
that the November 17, 2016 dismissal was also due solely
to excusable neglect. Nor do we need to address Villareal’s
contention that the trial court violated his right to due process
by ruling on the November 17, 2016 dismissal without allowing
him an opportunity to contest the issue.

15
it does not exceed what “ ‘ “ ‘a reasonably prudent person under
the same or similar circumstances’ ” ’ ” might do. (Miller v.
Superior Court (2002) 101 Cal.App.4th 728, 741.) Nothing about
the officers’ and investigator’s actions here suggests bad faith or
extreme negligence required to overcome the strong presumption
in favor of the trial court’s ruling.
Villareal also notes several small errors in the trial
court’s characterization of the facts. The court stated that an
investigator began attempting to serve Aguilar with a subpoena
in late May, when the evidence indicated this did not actually
occur until early June. The court stated that the investigator
went to Aguilar’s home at 5:00 a.m. and waited at least an hour
on three occasions, when the investigator’s declaration indicates
that he went to Aguilar’s home at 5:00 a.m. once and waited at
least an hour twice. These errors are simply too minor to call
into question the trial court’s exercise of its discretion.
Finally, Villareal notes that the prosecutor did not inform
the court that the June 12, 2017 dismissal was necessary because
of an inability to locate Aguilar. Instead, in the days leading up
to that request, he told the court that he needed to reschedule
because of a conflict with another case. But even if a prosecutor’s
scheduling conflicts do not constitute good cause for delaying
a trial under section 1382 (Batey v. Superior Court (1977) 71
Cal.App.3d 952, 957–958), we do not agree that they constitute
the clear inexcusable neglect sufficient to overcome the
presumption in favor of trial on the merits. (See Massey, supra,
79 Cal.App.4th at p. 211.)

16
 D. The Dismissals and Continuances Did Not
Violate Villareal’s Right to a Speedy Trial
Villareal contends that the trial court violated his
constitutional right to a speedy trial by allowing the prosecution
to delay the trial by approximately 18 months, from February 17,
2016, when he was arrested, until August 10, 2017, when the
trial began. We disagree.
“ The Sixth Amendment to the federal Constitution,
as applied to the states through the due process clause of
the Fourteenth Amendment [citation], guarantees a criminal
defendant the ‘right to a speedy and public trial.’ ” (People v.
Harrison (2005) 35 Cal.4th 208, 225.)7 The United States
Supreme Court in Barker v. Wingo (1972) 407 U.S. 514 (Barker)
established a balancing test for determining whether a defendant
is entitled to relief for a violation of this right, consisting of
four factors: “Length of delay, the reason for the delay,
the defendant’s assertion of his right, and prejudice to the
defendant.” (Id. at p. 530.)
“The length of the delay is to some extent a triggering
mechanism. Until there is some delay which is presumptively
prejudicial, there is no necessity for inquiry into the other factors
that go into the balance.” (Barker, supra, 407 U.S. at p. 530.)
The level of delay required to become presumptively prejudicial
varies based on the complexity of the case (id. at p. 531), but
“courts have generally found postaccusation delay ‘presumptively
prejudicial’ at least as it approaches one year.” (Doggett v. United
States (1992) 505 U.S. 647, 652, fn. 1 (Doggett).) Both sides in

7 Article I, section 15 of the California Constitution also
guarantees the right to a speedy trial, but Villareal’s argument
here is based only on the federal Constitution.

17
this case agree that the 18-month delay between Villareal’s
arrest and the beginning of the trial is presumptively prejudicial.
“Closely related to length of delay is the reason the
government assigns to justify the delay. . . . [D]ifferent weights
should be assigned to different reasons. A deliberate attempt
to delay the trial in order to hamper the defense should be
weighted heavily against the government. A more neutral
reason such as negligence or overcrowded courts should be
weighted less heavily but nevertheless should be considered
since the ultimate responsibility for such circumstances must
rest with the government rather than with the defendant.
Finally, a valid reason, such as a missing witness, should
serve to justify appropriate delay.” (Barker, supra, 407 U.S. at
p. 531, fn. omitted.) In this case, there is no evidence that the
prosecution deliberately delayed the trial to hamper the defense.
Instead, the two main delays were for valid reasons. The
prosecution first delayed the trial in order to try Villareal and
Reyes jointly. “ ‘ “Joint trials are favored because they ‘promote
[economy and] efficiency’ and ‘ “serve the interests of justice by
avoiding the scandal and inequity of inconsistent verdicts.” ’ ” ’ ”
(People v. Flinner (2020) 10 Cal.5th 686, 713 (Flinner).) The
second delay was due to the inability to serve Aguilar with a
subpoena to require him to testify in time for the June 2017
deadline. The United States Supreme Court in Barker cited
a missing witness as an example of a valid reason for delay.
(Barker, supra, at p. 531.) Villareal argues that government
negligence in failing to apprehend Reyes and subpoena Aguilar
exacerbated these delays. To the extent negligence contributed to
the delays, it was a ”more neutral” factor that weighs somewhat

18
against the government because “the ultimate responsibility for
such circumstances must rest with the government.” (Ibid.)
The third factor is “the defendant’s responsibility to assert
his right” to a speedy trial. (Barker, supra, 407 U.S. at p. 531.)
“The defendant’s assertion of his speedy trial right . . . is entitled
to strong evidentiary weight in determining whether the
defendant is being deprived of the right,” but “failure to assert
the right will make it difficult for a defendant to prove that he
was denied a speedy trial.” (Id. at pp. 531–532.) A defendant
does not forfeit his right to a speedy trial by remaining silent,
but if he agrees to a continuance, he waives “his right to a
speedy trial for the period covered by each continuance.”
(People v. Seaton (2001) 26 Cal.4th 598, 634.) In this case, the
record indicates that Villareal personally waived time once, on
February 6, 2017. Otherwise, he mostly remained silent and
did not assert his right to a speedy trial. Villareal contends
that his attorney objected to the prosecution’s request to dismiss
and refile the case in June 2017, but the record shows that the
attorney asked the court to determine whether one of the prior
dismissals was for excusable neglect. The court declined to do
so, believing that the case had not previously been dismissed
and refiled. The court asked, “[Do] you stipulate pursuant to
[section] 1387.2?”8 Villareal’s attorney responded, “Yes. But
I do object.” In context, it appears that the objection was to
the decision to proceed without making a finding of excusable
neglect, not to the denial of a speedy trial.

8 Section 1387.2 allows the court, with the consent of both
parties, to proceed on an existing pleading rather than issue an
order terminating an action and requiring the prosecution to
re-file.

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 The fourth factor is prejudice to the defendant. The
United States Supreme Court in Barker identified three interests
the right to a speedy trial is designed to protect: “(i) to prevent
oppressive pretrial incarceration; (ii) to minimize anxiety and
concern of the accused; and (iii) to limit the possibility that the
defense will be impaired. Of these, the most serious is the last,
because the inability of a defendant adequately to prepare his
case skews the fairness of the entire system.” (Barker, supra,
407 U.S. at p. 532, fn. omitted.) Villareal contends that the delay
prejudiced him because it resulted in the joinder of his case with
Reyes’s. But as we noted above, the law favors joint trials when
possible. (Flinner, supra, 10 Cal.5th at p. 713.)
When we consider all four parts of this balancing test,
we must conclude that Villareal did not suffer a denial of
his constitutional right to a speedy trial. The 18-month delay
did not extend much “beyond the bare minimum needed to
trigger judicial examination of the claim.” (Doggett, supra, 505
U.S. at p. 652.) It is far from “the extraordinary 8 1/2-year lag”
(ibid.) that led the United States Supreme Court to grant the
defendant relief in Doggett without a showing of particularized
trial prejudice. (Id. at p. 657.) Furthermore, although the delay
was caused in some small part by government negligence, most
of the delay was “inevitable and . . . justifiable” (id. at p. 656) in
light of the difficulty in locating Villareal’s codefendant and in
compelling the key prosecution witness to appear in court. And
although Villareal did not assent to the bulk of the delay, neither
did he object and press the court to move forward faster with his
trial.

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 E. The Enhancements Must Be Stricken
Villareal contends that we must reverse his gang
enhancement in light of Assembly Bill No. 333 (2021−2022
Reg. Sess.), which amended section 186.22 to impose new
substantive and procedural requirements for gang allegations.
The Attorney General agrees, as do we.
A gang enhancement under section 186.22 requires proof
that the defendant committed an enumerated felony “for the
benefit of, at the direction of, or in association with a criminal
street gang.” (§ 186.22, subd. (b)(1).) The statute defines
“criminal street gang” as a group of people who, among other
things, “collectively engage in, or have engaged in, a pattern
of criminal gang activity.” (§ 186.22, subd. (f).) Assembly Bill
No. 333 amended section 186.22 in two ways relevant to this
appeal. First, it added a new subdivision (g), which provides
that “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.” It also restricted the definition of
“pattern of criminal gang activity.” (§ 186.22, subd. (e)(1).) Now,
the prosecution must prove that gang members committed two
predicate offenses within three years of the current offense that
benefitted the gang in a way that “is more than reputational.”
(Ibid.) These aspects of the law apply retroactively to all cases
not yet final when the law became effective. (People v. Sek (2022)
74 Cal.App.5th 657, 667 (Sek).)
Villareal’s trial predated the enactment of Assembly
Bill No. 333, so the jury instructions do not reflect the new
law. The Attorney General concedes that the gang expert at
Villareal’s trial relied primarily on the reputational benefit to
the defendants’ gangs in his testimony in support of the gang

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enhancement. Thus, the error in the instructions was
not harmless, and we must reverse the imposition of the
enhancement. (See Sek, supra, 74 Cal.App.5th at p. 668.)
The firearm enhancement was also based on Villareal’s
participation in a criminal street gang (see § 12022.53,
subd. (e)(1)(A)), and it too must be reversed. The prosecution
will have the option to retry the enhancements upon remand.
(See Sek, supra, at p. 669.)

F. Issues Raised in the Previous Opinion
Villareal does not renew several arguments he made
in his first appeal, including those relating to the denial of his
motion for a new trial, the jury instructions, prosecutorial error,
inefficient assistance of counsel, and cumulative error. These
arguments are largely moot in light of subsequent changes in the
law requiring us to reverse his attempted murder conviction. To
the extent they are not moot, we reject them for the same reasons
we rejected them previously.

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 DISPOSITION
Appellant’s convictions of attempted murder and assault
with a firearm are reversed, as are the enhancements. The
matter is remanded, and the prosecution may elect to retry
appellant for attempted murder and the enhancements. The
prosecution may not retry appellant for assault with a firearm.
NOT TO BE PUBLISHED.

ROTHSCHILD, P. J.
We concur:

CHANEY, J.

BENKE, J.*

* Retired Associate Justice of the Court of Appeal, Fourth
Appellate District, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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