People v. Smith CA2/3

Filed 9/22/22 P. v. Smith CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B308972

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA142223)
v.

JOSHUA TYRECE SMITH,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of
Los Angeles County, Ricardo R. Ocampo, Judge. Affirmed in
part, reversed in part, and remanded with directions.
Shannon Chase, 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, Senior
Assistant Attorney General, Colleen M. Tiedemann and David A.
Voet, Deputy Attorneys General, for Plaintiff and Respondent.
——————————
 A jury convicted Joshua Tyrece Smith of one count of first
degree murder and found true principal firearm use and gang
allegations. On appeal, Smith claims the trial court erred when
it did not instruct the jury, sua sponte, on voluntary
manslaughter under a heat of passion theory, and that he was
deprived of his constitutional right to the effective assistance of
counsel. We reject those contentions. However, Smith is entitled
to the benefit of recently enacted sentencing legislation relating
to gang allegations. We therefore remand for further
proceedings.
FACTUAL BACKGROUND
Around 4:00 a.m. on October 29, 2016, Hoover Criminals
street gang member Deondre Hamilton was shot and killed in
South Los Angeles. An informant told police there had
previously been an altercation involving Hamilton and one of his
associates, with members of the Broadway Crips gang. The
incident ended with Hamilton’s associate brandishing a gun at
the Broadway Crips gang members. The Broadway Crips gang
territory included 111th Street and Broadway. The informant
also told police that a person involved in the altercation lived
near 111th and Broadway.
Around 8:00 a.m. on October 29, Smith’s brother, Aukeem,1
drove by the Hamilton crime scene, then on to his and Smith’s
mother’s house. Smith often stayed at their mother’s house, and
his white Suzuki was there that day. Smith told Aukeem “one of

1We refer to Smith’s brother as Aukeem for ease of
reference, intending no disrespect. Aukeem testified at the trial;
some of his recorded statements from a prior police interview
were also admitted.

2
[Smith’s] homies” had been killed. Eventually, Smith and 15 to
20 other Hoover gang members were assembled at the house.2
The group discussed Hamilton’s death, but no one knew the
perpetrator or what had led to the shooting. Smith was not
“upset” but “probably . . . kind of hurt.” Aukeem was quite sure
that retaliation was discussed, because this was “how they
operate.” Aukeem told police and testified that he left his
mother’s house about 20 minutes after arriving, and that Smith
was still there when he left. However, Aukeem also told police he
saw Smith and other Hoover gang members get into Smith’s
white Suzuki.
At approximately 9:30 a.m. on October 29, 22-year-old
Marquise Thomas left his house and headed to a nearby bus stop
at 111th and Broadway. Thomas was not a gang member.
Around 9:40 a.m., Thomas was shot three times from behind. An
eyewitness in a parked car at 111th and Broadway called 911
after hearing gunshots. The eyewitness saw a dark-skinned
individual in a hoodie run toward a white crossover vehicle and
enter its front passenger side. The vehicle drove in reverse until
it reached Olive Street and then drove away. Thomas suffered
multiple gunshot wounds. He died from his injuries.
The police obtained surveillance footage depicting a white
Suzuki Grand Vitara bearing paper dealer plates driving near
Thomas before the shooting. Detectives learned that on

2At trial, Aukeem denied that he and Smith were in the
Hoover gang, but he previously acknowledged to police that
Smith was a member of 9-Deuce, a subsection of the Hoover
Criminals gang. Aukeem also claimed he did not know Hamilton
and never saw Smith with him.

3
October 22, 2016, an auto dealership sold a white Suzuki Grand
Vitara to Smith, who was a frequent customer.
Cars sold on payment plans, such as Smith’s, contained
GPS trackers. Data obtained from the tracking device reflected
that, on October 29, Smith’s Suzuki was parked near his home at
8:51 a.m., was at a known Hoover gang location at 9:10 a.m., and
then was near Smith’s home again at 9:48 a.m. 111th and
Broadway was an approximate 10-minute drive from Smith’s
home. Location data for Smith’s cellphone, accurate down to
several meters, reflected that, around 9:39 a.m. on October 29,
the phone was moving toward Broadway and 107th Street. At
9:41 a.m., the phone was moving toward Olive Street.
On November 1, Smith sought to exchange the Suzuki, but
the dealer wanted him to make a payment first. That same day,
Smith posted on social media about how emotional he was about
Hamilton’s death, referring to him as “one of [his] close goons.”
On November 3, an employee at a shoe store in Inglewood
observed an unusual interaction between a group of men,
including Smith, and a group of women, including Thomas’s two
sisters and mother. Thomas’s sisters recognized some of the men
from social media comments they had read about Hamilton’s
death. Some of the women were wearing sweatshirts
memorializing Thomas, and one of the men was observed staring
at a picture of Thomas on one of the sweatshirts. The men left in
a small white SUV. The name of the dealership where Smith had
purchased the Grand Vitara was written across the SUV’s front
paper license plates. One of the sisters photographed the car.
About two weeks later, Smith made a payment to the dealership
and exchanged the Suzuki.

4
 In January 2017, Smith was arrested and interviewed.
Smith claimed he was no longer an active Hoover gang member.
Though Smith knew Hamilton and attended his funeral because
he was a Hoover, Smith denied interacting with Hoover gang
members at the funeral. He also denied knowing Thomas, and
claimed he was at home at the time of the shooting. Smith at
first said he owned only a Mustang, but after being confronted
with evidence of his car purchase and the photos from the shoe
store, he acknowledged that police may have seen his friend’s
Suzuki because he had “the same exact car.” Smith denied that
the phone number and social media accounts that police had
associated with him were his. After Smith was booked for
murder, he offered to identify Thomas’s shooter, but insisted he
was not present at the shooting.
At trial, Los Angeles Police Officer Andrew Jenkins
testified as a gang expert familiar with the Hoover Criminals
street gang. Jenkins provided background regarding the Hoover
gang’s primary activities, territory and rivalries, membership,
use of symbols and monikers, and predicate crimes. Jenkins
testified that it is important for gangs to retaliate against rival
gangs to garner respect, and to signal that the gang will not be
victimized. When a gang retaliates, they enter the other gang’s
territory and strike back at anyone who appears to be a rival.
Based on Jenkins’s review of field identification cards,
several of Smith’s tattoos, his recorded admissions or statements,
and his moniker, Jenkins believed Smith was a member of the
Hoover Criminals street gang. When given a hypothetical
question based upon the evidence, Jenkins opined that the
shooting was committed to benefit the Hoover street gang. The
driver was necessarily a full member of the gang. Jenkins

5
testified that Hamilton had also been a member of the Hoover
gang.
The jury convicted Smith of first degree murder (Pen. Code,
§ 187, subd. (a); count 1),3 and found true principal firearm use
allegations (§ 12022.53, subds. (d), (e)(1)) and gang allegations
(§ 186.22, subd. (b)(1)(c)).4 The court imposed a 25-years-to-life
sentence for the firearm enhancement, consecutive to a 25-years-
to-life sentence on the murder conviction.
DISCUSSION
I. The trial court did not err in failing to instruct, sua
sponte, on voluntary manslaughter
Smith asserts the trial court erred in failing to instruct the
jury sua sponte on voluntary manslaughter under a heat of
passion theory. Smith argues there was substantial evidence to
support a finding that he killed Thomas in a heat of passion due
to sufficient and continuing provocation. We find no error.

3All further undesignated statutory references are to the
Penal Code.
4 The gun use enhancements under section 12022.53,
subdivision (e)(1), apply to any principal in the commission of an
offense if “(A) The person violated subdivision (b) of
Section 186.22. [¶] (B) Any principal in the offense committed
any act specified in subdivision (b), (c), or (d).”

6
 A. Governing legal principles
It is the trial court’s “ ‘ “ ‘duty to instruct the jury not only
on the crime with which the defendant is charged, but also on
any lesser offense that is both included in the offense charged
and shown by the evidence to have been committed.’ ” ’ ” (People
v. Westerfield (2019) 6 Cal.5th 632, 718, italics omitted.)
“ ‘ “Conversely, even on request, the court ‘has no duty to instruct
on any lesser offense unless there is substantial evidence to
support such instruction.’ ” ’ ” (People v. Souza (2012) 54 Cal.4th
90, 116.) In this context, the “ ‘substantial evidence requirement
is not satisfied by “ ‘any evidence . . . no matter how weak,’ ” but
rather by evidence from which a jury . . . could conclude “that the
lesser offense, but not the greater, was committed.” ’ ” (People v.
Nelson (2016) 1 Cal.5th 513, 538, italics omitted.) “ ‘On appeal,
we review independently the question whether the trial court
improperly failed to instruct on a lesser included offense.’ ”
(Ibid.)
“ ‘Murder is the unlawful killing of a human being . . . with
malice aforethought.’ (§ 187, subd. (a).) ‘Manslaughter is the
unlawful killing of a human being without malice.’ (§ 192,
subd. (a).) Manslaughter is a lesser included offense of murder,
and a defendant who commits an intentional and unlawful killing
but who lacks malice is guilty of voluntary manslaughter. Heat
of passion is one of the mental states that precludes the
formation of malice and reduces an unlawful killing from murder
to manslaughter.” (People v. Nelson, supra, 1 Cal.5th at p. 538.)
“Heat of passion arises if, ‘ “at the time of the killing, the
reason of the accused was obscured or disturbed by passion to
such an extent as would cause the ordinarily reasonable person of
average disposition to act rashly and without deliberation and

7
reflection, and from such passion rather than from judgment.” ’ ”
(People v. Beltran (2013) 56 Cal.4th 935, 942.) This theory has
both an objective and a subjective component. To satisfy the
objective component, “ ‘ “the accused’s heat of passion must be
due to ‘sufficient provocation.’ ” ’ ” (People v. Moye (2009)
47 Cal.4th 537, 549.) To satisfy the subjective component, “the
accused must be shown to have killed while under ‘the actual
influence of a strong passion’ induced by such provocation.”
(Id. at p. 550.) The “ ‘ “factor which distinguishes the ‘heat of
passion’ form of voluntary manslaughter from murder is
provocation.” ’ [Citation.] ‘To be adequate, the provocation must
be one that would cause an emotion so intense that an ordinary
person would simply react, without reflection. . . . [T]he anger or
other passion must be so strong that the defendant’s reaction
bypassed his thought process to such an extent that judgment
could not and did not intervene.’ ” (People v. Beck and Cruz
(2019) 8 Cal.5th 548, 649, italics omitted.) However, “[h]eat of
passion may not be based upon revenge.” (People v. Burnett
(1993) 12 Cal.App.4th 469, 478.)
B. The trial court did not err in failing to instruct
the jury on heat of passion
Substantial evidence did not support a heat of passion
instruction, and we therefore find no error.
A legally adequate provocation generally requires that “the
deceased must be the source of the defendant’s rage or passion.”
(People v. Spurlin (1984) 156 Cal.App.3d 119, 126.) Here, there
was no evidence that Thomas was involved in the shooting of
Smith’s fellow gang member or in any other provocation. Smith
argues that because Thomas was walking near 111th and
Broadway when he was shot, a juror could reasonably find that

8
Smith believed Thomas was responsible for Hamilton’s death.
Yet, there was no evidence that Smith harbored that belief.5
“ ‘[N]o defendant may set up his own standard of conduct
and justify or excuse himself because in fact his passions were
aroused, unless further the jury believe that the facts and
circumstances were sufficient to arouse the passions of the
ordinarily reasonable [person].’ ” (People v. Steele (2002)
27 Cal.4th 1230, 1252–1253.) Indeed, the applicable objective
standard requires us to measure the defendant’s actions against
those of an “ordinary reasonable person,” not an “ordinary
reasonable gang member.” (People v. Dominguez (2021)
66 Cal.App.5th 163, 176.) The evidence at trial was that neither
Smith nor the other gang members assembled on October 29
knew who shot Hamilton. Smith denied knowing Thomas. A
gang member who indiscriminately targets individuals, merely
because they are in the proximity of a recent shooting of a fellow
gang member, does not satisfy the objective component of the
heat of passion theory.
Moreover, there was no evidence that Smith acted while
under the influence of a passion so strong that judgment could
not and did not intervene. (People v. Beck and Cruz, supra,
8 Cal.5th at p. 649.) To the contrary, Smith’s brother, who was
with Smith immediately before Thomas’s murder, attested that

5 Smith suggests that an instruction was warranted
because the prosecutor advanced a version of this argument in
her closing remarks. However, statements made in closing
argument are not evidence. (§ 1093, subd. (e).) Moreover, the
prosecutor’s argument was that Smith was motivated by revenge,
which, as noted above, does not support a heat of passion
instruction. (People v. Burnett, supra, 12 Cal.App.4th at p. 478.)

9
Smith was not upset, but only “kind of hurt,” about Hamilton’s
death. The emotional social media tributes that Smith posted
about Hamilton occurred days after the shootings, after
opportunity to reflect. Those posts are therefore not probative
of—much less “substantial evidence” of—Smith’s state of mind
when Thomas was shot. (People v. Souza, supra, 54 Cal.4th at
p. 116.)
Smith’s reliance on People v. Brooks (1986) 185 Cal.App.3d
687 (Brooks), is misplaced. In Brooks, the defendant’s brother
was murdered. Shortly after, the defendant “in a very excited,
upset state, was running around talking to people, and trying to
find out who killed his brother.” (Id. at p. 691.) Hours later, at
the same location of the murder, the defendant learned the
assailant’s identity and confronted him, yelling, “ ‘Where is your
knife?’ ” The defendant then shot the assailant five times. (Id. at
p. 690.) The court concluded there was substantial evidence
warranting a provocation and heat of passion instruction,
reasoning that provocation that incites a defendant’s actions
must “be conduct reasonably believed by the defendant to have
been engaged in by the victim.” (People v. Lee (1999) 20 Cal.4th
47, 59; Brooks, supra, at p. 694 [“the disclosure of information
that the victim murdered a family member of the defendant is
legally adequate provocation for voluntary manslaughter”].) In
contrast, here there was no evidence that Thomas had anything
to do with Hamilton’s shooting, or that Smith reasonably believed
Thomas was involved in Hamilton’s shooting. The close nexus
between the provocative act and the actions alleged to have
occurred in the heat of passion in Brooks is entirely absent here.

10
 There was no substantial evidence of provocation or heat of
passion with respect to Thomas’s killing. The trial court had no
sua sponte obligation to instruct on voluntary manslaughter.
II. There was no ineffective assistance of counsel
Smith further asserts he was denied effective assistance of
counsel because his attorney failed to request a jury instruction
on provocation and failed to object to prosecutorial misconduct.
We disagree.
To prevail on a claim for ineffective assistance of counsel,
Smith must establish not only that counsel’s performance “fell
below an objective standard of reasonableness. . . . [¶] . . . under
prevailing professional norms,” but also that he was prejudiced
by the deficient performance. (Strickland v. Washington (1984)
466 U.S. 668, 687–688 (Strickland).) To make out prejudice, a
defendant must demonstrate that there is a “reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” (Id. at
p. 694.) Where the record on appeal “ ‘sheds no light’ ” on why
counsel acted or failed to act in the manner challenged, we will
affirm the judgment unless there could be “ ‘no satisfactory
explanation’ ” for counsel’s actions. (People v. Ledesma (2006)
39 Cal.4th 641, 746.)
A. Provocation instruction
Smith contends that his trial counsel’s failure to request a
provocation instruction, CALCRIM No. 522, violated his right to
the effective assistance of counsel.6 CALCRIM No. 522 is a

6
CALCRIM No. 522 provides: “Provocation may reduce a
murder from first degree to second degree [and may reduce a
murder to manslaughter]. The weight and significance of the

11
pinpoint instruction that need not be given in the absence of a
request. (People v. Rogers (2006) 39 Cal.4th 826, 877–878.) Here,
any failure by counsel to request the instruction did not
constitute ineffective assistance.
Smith’s counsel had a legitimate tactical reason for not
requesting an instruction that would focus the jury’s attention on
Smith’s mental state at the time of the incident: his defense was
that he was not present. Counsel could appropriately decline to
highlight the prosecution’s theory that Smith helped shoot a
perceived rival. An attorney does not provide ineffective
assistance by failing to request a pinpoint instruction that is
inconsistent with the theory of defense. (People v. Wader (1993)
5 Cal.4th 610, 643.)
Further, as explained above, there was no substantial
evidence that Thomas provoked Smith, or that Smith acted in the
heat of passion. Thus, counsel was not ineffective for declining to
request an instruction in support of that theory. (People v.
Slaughter (2002) 27 Cal.4th 1187, 1221 [declining to request a
jury instruction without evidentiary support is not ineffective
assistance].) For the same reason, the absence of an instruction
did not prejudice Smith, as there was no “reasonable probability
that, but for [counsel’s failure to request a pinpoint instruction on

provocation, if any, are for you to decide. [¶] If you conclude that
the defendant committed murder but was provoked, consider the
provocation in deciding whether the crime was first or second
degree murder. [Also, consider the provocation in deciding
whether the defendant committed murder or manslaughter.] [¶]
[Provocation does not apply to a prosecution under a theory of
felony murder.]”

12
provocation], the result of the proceeding would have been
different.” (Strickland, supra, 466 U.S. at p. 694.)
B. Evidence of prior criminal history
1. Additional background
Prior to playing Aukeem’s videotaped statement for the
jury, the prosecution agreed to redact a portion of the recording
that referenced Smith’s first time in prison. The tape played for
the jury, however, included the statement: “When my brother
first went to the pen.” Counsel immediately recognized the error
and the court excused the jury. The prosecutor apologized,
explaining that she had removed the statement from the
transcript but not the video, intending to stop the video from
playing the statement.
Smith’s counsel moved for a mistrial due to the
“overwhelming” prejudice of the reference to Smith’s prior
criminal history. The court agreed there was some prejudicial
effect from the jury hearing the statement, but did not believe it
rose to a level warranting a mistrial. Smith’s counsel declined an
admonition, explaining it would only highlight the prejudicial
material, especially given that the remark had been redacted in
the transcript handed out to the jurors.
2. Analysis
Smith now contends the prosecutor’s error constituted
prosecutorial misconduct, and his counsel was ineffective for
failing to object.7 We again disagree.
Even if the prosecutor’s error was misconduct, it neither
infected “ ‘ “ ‘ “the trial with such unfairness as to make the

7Smith does not argue that the court abused its discretion
in denying a mistrial. Further, although Smith argued in his

13
conviction a denial of due process[,]” ’ ” ’ ” nor involved “ ‘ “ ‘ “the
use of deceptive or reprehensible methods to attempt to persuade
either the court or the jury.” ’ ” ’ ” (People v. Hoyt (2020) 8 Cal.5th
892, 943.) At trial, Smith’s counsel agreed that the prosecutor’s
error was unintentional, and the correct redactions to the
transcript only corroborated that conclusion. Smith’s attorney
reasonably could have concluded that the prosecutor’s omission
did not constitute misconduct, and that the court would therefore
have overruled any objection on that ground. Likewise, counsel’s
tactical decision to decline an admonition that ran the risk of
highlighting the isolated statement was not unreasonable.
Smith has not demonstrated that counsel’s failure to object
fell below an objective standard of reasonableness, or that there
is a reasonable probability that, but for counsel’s allegedly
deficient performance in failing to object, the result of the trial
would have been different. (Strickland, supra, 466 U.S. at
pp. 686–687; People v. Williams (1997) 16 Cal.4th 153, 215.)
C. Closing argument
Smith next contends his counsel was ineffective for failing
to object to several of the prosecutor’s statements during closing

opening brief that the failure to request an admonition does not
forfeit a prosecutorial misconduct argument when an admonition
would be futile, his reply brief did not address the extensive body
of cases that respondent cites suggesting a curative
admonishment would not have been futile in this case. (See, e.g.,
People v. Jennings (1991) 53 Cal.3d 334, 375 [curative request
appropriate for single unintentional reference to prior crimes
evidence].) We agree that the direct prosecutorial misconduct
claim is forfeited, and therefore only address Smith’s alternative
ineffective assistance claim.

14
argument. Smith asserts the statements constituted prejudicial
misconduct that violated his rights to due process and a fair trial.
This claim lacks merit.
1. Additional background
The prosecutor’s closing argument highlighted Smith’s
Hoover gang membership. Specifically, the prosecutor argued:
“Mr. Smith is committed to the Hoovers, 9-Deuce. That is
his God that he prays to. That is who he is faithful to. That’s
been his life since he was 12. Of course, he’s going to spill blood
for the Hoovers. This is his parents. This is his family.
“This is the type of person that would do that, someone who
wants to cover as much of their flesh with ink that lets everybody
know this is who I am. I am a Hoover. This is who I am. You
can’t erase them. You can’t hide them. I want you to know that
I’ve permanently put this on my body because it is who I am and
I’m willing to do anything for it.
“This is the kind of person that would do it, the kind of
person that surrounds himself with Hoovers, surrounds himself
with people who pray to the same God, who believe in the same
religion.
“These kind of people.
“This kind of person.”
The defense argued Smith was no longer an active gang
member, and that the prosecution failed to establish he was at
the murder scene. The prosecutor countered that Smith had a
tattoo that read, “Love family, fuck friends,” and restated that
“[h]is family was his gang.” The prosecutor further argued
Smith’s motive for killing Thomas was to retaliate for Hamilton’s
murder.

15
 The court expressly instructed the jury that gang evidence
could only be considered to determine whether Smith “had a
motive to commit the crime charged” and to prove the gang
allegation, judge witness credibility, or evaluate the gang expert’s
testimony. The jury was prohibited from considering “this
evidence for any other purpose.” The court further specifically
admonished: “You may not conclude from this evidence that the
defendant is a person of bad character or that he has a
disposition to commit crime.”
2. Analysis
“ ‘When attacking the prosecutor’s remarks to the jury, the
defendant must show’ that in the context of the whole argument
and the instructions[,] there was ‘ “a reasonable likelihood the
jury understood or applied the complained-of comments in an
improper or erroneous manner.” ’ ” (People v. Silveria and Travis
(2020) 10 Cal.5th 195, 306.) Reversal for a prosecutor’s closing
argument misconduct is not warranted “ ‘unless it is reasonably
probable that a result more favorable to the defendant would
have been reached without the misconduct.’ ” (People v. Flores
(2020) 9 Cal.5th 371, 403 (Flores).)
Here, Smith focuses on the prosecutor’s remarks that
Smith’s tattoos showed his only true family was his gang and,
therefore, he was the “kind of person” that would commit this
offense. Smith contends the remarks were improper appeals to
the jury’s emotions or prejudices.
Even assuming the arguments were improper, they did not
amount to prosecutorial misconduct and any failure to object was
not ineffective assistance. Given the issues before the jury,
Smith’s motives were within the bounds of permissible argument.
(People v. Dykes (2009) 46 Cal.4th 731, 773–774 [argument that

16
defendant was “kind of person” to commit offense permissible];
People v. Prince (2007) 40 Cal.4th 1179, 1249–1250 [no
misconduct where alleged propensity argument bore connection
to motive].) The isolated nature of these remarks, even if
improper, also indicates that any misconduct did not render the
proceedings fundamentally unfair. (People v. Hoyt, supra,
8 Cal.5th at p. 943.)
Moreover, we can easily discern a reasoned, tactical basis
for counsel not to object to the prosecutor’s argument. Counsel’s
theory of the case was identity, as to which the gang evidence
was immaterial. An objection may have highlighted any
improper argument and drawn the jury’s attention away from
Smith’s proffered defense. Thus, we cannot rule out legitimate
trial strategy for counsel’s lack of an objection. (People v.
Fosselman (1983) 33 Cal.3d 572, 581 [reversal warranted “only if
the record on appeal affirmatively discloses that counsel had no
rational tactical purpose”].)
Finally, Smith has failed to show that a more favorable
outcome was reasonably probable absent any error on the part of
counsel. Smith acknowledges the gang evidence was
“overwhelming.” Further, the jurors received instructions—that
they were presumed to follow—that the gang evidence could only
be considered for a limited purpose, excluding that “defendant is
a person of bad character or that he has a disposition to commit
crime.” (Flores, supra, 9 Cal.5th at p. 405 [instructions mitigated
prejudice to defendant].) For these reasons, we reject Smith’s
argument that counsel rendered ineffective assistance by failing
to object to the prosecutor’s remarks.

17
 D. Cumulative effect
We also reject Smith’s final assertion that the cumulative
effect of counsel’s deficient performance deprived him of due
process of law and a fair trial. As to each of Smith’s claims we
have concluded his counsel’s performance did not constitute
ineffective assistance of counsel. There was no individual or
cumulative error that deprived Smith of a fair trial. (People v.
Ochoa (1998) 19 Cal.4th 353, 470.)
III. Assembly Bill No. 333 requires retrial of the gang
and gang-related gun use enhancements
The jury found gang and gang-related firearm allegations
true. However, Assembly Bill No. 333 (2021-2022 Reg. Sess.),
which took effect on January 1, 2022, made significant
amendments to the gang statute, section 186.22. The legislation
redefined “pattern of criminal gang activity” in five respects:
(1) The last predicate offense must have occurred within three
years of the date of the commission of the current alleged offense
(§ 186.22, subd. (e)(1)); (2) The amended law now states that the
predicate crimes must have been committed by “members,” not
simply “persons,” as the former law stated (ibid.); (3) The
amendments impose a new requirement that the predicate
offenses “commonly benefited a criminal street gang, and the
common benefit of the offense is more than reputational” (ibid.);
(4) Looting, felony vandalism, felony theft of an access card or
account, and other identity fraud crimes no longer qualify as
predicates, while other offenses (kidnapping, mayhem, torture,
and felony extortion) now qualify (ibid.); and (5) The currently
charged offense may not be used to establish the pattern of
criminal gang activity (§ 186.22, subd. (e)(2)). (See People v.
Lopez (2021) 73 Cal.App.5th 327, 345 (Lopez).)

18
 Assembly Bill No. 333 also modified the definition of
“criminal street gang.” Previously, section 186.22 stated that a
criminal street gang was “any ongoing organization, association,
or group” of three or more persons, whether formal or informal.
That language has been changed to “an ongoing organized
association or group of three or more persons, whether formal or
informal.” (§ 186.22, subd. (f), italics added.) The previous
definition required that the gang’s “members individually or
collectively engage in, or have engaged in,” the pattern of
criminal gang activity. (Former § 186.22, subd. (f), italics added.)
Now, the word “individually” has been excised and the gang’s
members must “collectively” engage in, or have engaged in, the
pattern of criminal gang activity. (§ 186.22, subd. (f).) The
amendment also added a new subdivision that clarifies what it
means to benefit the gang: “As used in this chapter, 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).)
The parties here agree, as do we, that Smith is entitled to
the ameliorative benefits of the amendments to section 186.22.
Assembly Bill No. 333’s amendments to section 186.22 apply
retroactively where, as here, the defendant’s convictions were not
final before the amendments took effect. (In re Estrada (1965)
63 Cal.2d 740, 745 [absent contrary evidence, an amendment
reducing punishment applies retroactively to nonfinal

19
judgments]; Lopez, supra, 73 Cal.App.5th at pp. 343–344; People
v. E.H. (2022) 75 Cal.App.5th 467, 478.)
As the Attorney General further concedes, the evidence was
insufficient to establish one of the requirements of the new
statute, namely that the predicate crimes benefitted the gang in
more than a reputational manner. Given this evidentiary deficit,
the true findings on the gang enhancement and the gang-related
gun use enhancement must be reversed. The matter is remanded
to allow the prosecution the option of retrying the enhancements
and establishing all elements required by Assembly Bill No. 333.8
Smith also appears to argue that section 1109, which was
added by Assembly Bill No. 333, applies to his case, and
necessitates retrial of the underlying charge. Under
section 1109, subdivision (a), if requested by the defense, a
charged section 186.22, subdivision (b) or (d) enhancement “shall
be tried in separate phases,” with the question of guilt of the
underlying offense to be determined first and the truth of the
gang enhancement tried thereafter. The Attorney General’s
retroactivity concession does not extend to section 1109. Smith
suggests that he is entitled to a new trial on the substantive
charges because the failure to bifurcate the gang charges—and to
exclude the facts relevant to such a determination—prejudiced
him.9

8
As remand for a potential retrial of the gang
enhancements is required, we need not decide whether any of the
other new elements of section 186.22 were met.
9
Following the effective date of Assembly Bill No. 333, this
court issued an order permitting supplemental briefing in
pending cases regarding the effect of the amendments to the law.

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 Appellate courts have issued conflicting decisions on the
issue of retroactivity of section 1109. (Compare People v. Perez
(2022) 78 Cal.App.5th 192, 207, review granted Aug. 17, 2022,
S275090, with People v. Burgos (2022) 77 Cal.App.5th 550, 565–
567, review granted July 13, 2022, S274743.) We need not
address whether section 1109 applies retroactively here because,
even assuming retroactivity, it is not reasonably probable that
Smith was prejudiced by any failure to bifurcate the gang
allegations. (People v. Tran (Aug. 29, 2022, S165998) ___ Cal.5th
___ [2022 WL 3711711, pp. 43-47]; People v. E.H., supra,
75 0Cal.App.5th at p. 480.)
Gang evidence in this case was highly relevant to the issues
of motive and intent. “[N]othing in Assembly Bill [No.] 333 limits
the introduction of gang evidence in a bifurcated proceeding
where the gang evidence is relevant to the underlying charges.”

Smith’s opening supplemental brief argues this court should
vacate the gang enhancements pursuant to amended
section 186.22. As noted above, the Attorney General’s
supplemental respondent’s brief concedes that issue, but, in two
footnotes, takes the position that section 1109 applies only
prospectively, and, even if it is retroactive, reversal on the
underlying charge is not necessary because Smith was not
prejudiced by the failure to bifurcate the gang allegations. In his
supplemental reply brief, Smith argues that we need not address
whether section 1109 applies retroactively, in light of the
Attorney General’s concession that retrial of the gang
enhancements is necessary. Yet, Smith paradoxically also
contends he was prejudiced by the failure to bifurcate and asks
this court to remand for “a new trial.” We understand the latter
portion of Smith’s supplemental reply brief as opposing both of
the Attorney General’s section 1109 arguments.

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(People v. Ramos (2022) 77 Cal.App.5th 1116, 1132.) Much of the
gang evidence would have been properly admitted, even in a
bifurcated proceeding, given its relevance to the substantive
charge. (People v. Hernandez (2004) 33 Cal.4th 1040, 1049–1050
[gang evidence often relevant to and admissible regarding the
charged offense]; People v. Samaniego (2009) 172 Cal.App.4th
1148, 1167–1168 [gang evidence is relevant and admissible when
the motive is gang related; evidence related to gang membership
not insulated from general rules applicable to relevant evidence].)
In addition, the jury was instructed as to the limited
purposes for which it could consider the gang evidence, and we
presume the jury followed that instruction. (People v. Franklin
(2016) 248 Cal.App.4th 938, 953.) Under these circumstances, we
conclude the failure to bifurcate the gang allegations was not
prejudicial. We affirm the first degree murder conviction.

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 DISPOSITION
The true findings on the gang and principal gun use
allegations are reversed and the sentence is vacated. The matter
is remanded with the direction to the trial court to provide the
People an opportunity to retry the enhancements under the law
as amended by Assembly Bill No. 333. At the conclusion of any
retrial on remand, or if the People elect not to retry the gang
allegations, the trial court shall resentence Joshua Tyrece Smith
in a manner consistent with this opinion. In all other respects,
the judgment is affirmed.
NOT TO BE PUBLISHED.

ADAMS, J.*

We concur:

EDMON, P. J.

EGERTON, J.

*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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