People v. Chacon CA5

Filed 10/6/22 P. v. Chacon CA5
Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,
F077849
Plaintiff and Respondent,
(Super. Ct. No. BF142972A)
v.

ANTHONY CHACON, OPINION
Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Kern County. Gary T.
Friedman, Judge.
Rebecca P. Jones, under appointment by the Court of Appeal, Defendant and
Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Gerald A. Engler and Lance E.
Winters, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney
General, Carlos A. Martinez, Christopher J. Rench, and Jamie A. Scheidegger, Deputy
Attorneys General, for Plaintiff and Respondent.
-ooOoo-
 INTRODUCTION
In June 2014, a jury found defendant Anthony Chacon to have been the shooter in
a drive-by shooting that targeted defendant’s fellow gang member.1 Although the
intended victim was unharmed, a ricocheting bullet struck and killed a two-year-old girl
who was playing in her front yard. The jury convicted defendant of first degree drive-by
murder (Pen. Code,2 §§ 187, 189; count 1), attempted murder (§§ 187, 664; count 2), and
shooting at an inhabited dwelling (§ 246; count 3). As to count 1, the jury found
defendant committed the murder by means of a drive-by shooting and to further the
activities of a criminal street gang (§ 190.2, subd. (a)(21) & (22)); personally discharged
a firearm causing death (§ 12022.53, subd. (d)); inflicted great bodily injury or death by
shooting a firearm from a motor vehicle (§ 12022.55); and committed the murder for the
benefit of, at the direction of, or in association with a criminal street gang (§ 186.22,
subd. (b)). As to count 2, the jury found defendant personally discharged a firearm
(§ 12022.53, subd. (c)), and committed the crime for the benefit of, at the direction of, or
in association with a criminal street gang (§ 186.22, subd. (b)). As to count 3, the jury
found defendant committed the crime for the benefit of, at the direction of, or in
association with a criminal street gang (ibid.).
On July 18, 2014, defendant was sentenced to prison for an unstayed term of life
in prison without the possibility of parole plus 25 years to life pursuant to section
12022.53, subdivision (d) on count 1, plus 15 years to life plus 20 years pursuant to
section 12022.53, subdivision (c) on count 2. The court imposed a restitution fine

1 Pursuant to Evidence Code sections 452, subdivision (d) and 459, we take
judicial notice of our records and opinions in People v. Anthony Chacon, F069786 and
People v. Anthony Chacon, F075542.
2 All statutory references are to the Penal Code unless otherwise stated.

2.
(§ 1202.4, subd. (b)) in the amount of $240,3 imposed and stayed a parole revocation fine
(§ 1202.45) in the same amount, imposed a court operations assessment (§ 1465.8) in the
amount of $120, and imposed a court facilities funding assessment (Gov. Code, § 70373)
in the amount of $90. It awarded defendant 739 actual days’ credit but no local conduct
credits. (See § 2933.2.)
Defendant appealed. This court found the sentence on count 2 was unauthorized,
because the jury did not make the premeditation finding necessary for imposition of a life
term pursuant to section 664, subdivision (a). Accordingly, we vacated the sentence on
that count, remanded for resentencing, and otherwise affirmed. (People v. Chacon
(Oct. 21, 2016, F069786) [nonpub. opn.] (Chacon I).)
Defendant was resentenced on count 2 on April 26, 2017. After finding no
circumstances in mitigation and several in aggravation, the trial court imposed the upper
term of nine years, plus 10 years for the section 186.22, subdivision (b)(1)(C)
enhancement, plus 20 years for the section 12022.53, subdivision (c) enhancement, to be
served consecutively to count 1. The financial obligations were unchanged, but the trial
court updated defendant’s credits to 1,752 actual days.
Defendant again appealed and, after initially filing a brief pursuant to People v.
Wende (1979) 25 Cal.3d 436, requested a remand so the trial court could exercise its new
discretion to strike the firearm enhancements pursuant to section 12022.53, subdivision
(h), as amended by Senate Bill No. 620 (2017-2018 Reg. Sess.). We remanded the matter
for that purpose and otherwise affirmed. (People v. Chacon (Mar. 28, 2018, F075542)
[nonpub. opn.] (Chacon II).)
The trial court heard the matter on July 20, 2018. After finding four circumstances
in aggravation but none in mitigation, and specifically remarking on the gravity of the

3
This was the minimum amount of such a fine in 2012, when defendant
committed his offenses. (§ 1202.4, former subd. (b)(1).)

3.
case and defendant’s prior record, the trial court reiterated the previously imposed
sentence, including, “following [the court’s] exercise of discretion,” the section
12022.53, subdivision (d) enhancement as to count 1 and the section 12022.53,
subdivision (c) enhancement as to count 2. The court also reiterated the previously
imposed financial obligations, and updated defendant’s credits to 2,202 actual days.
Defendant again appealed. After initially filing a Wende brief, appellate counsel
requested, and was granted, permission to file a brief, in which she argued (1) the trial
court failed to recognize it had discretion to impose a firearm enhancement under section
12022.53 that carried a lower sentence, (2) the matter must be remanded for the trial
court to consider defendant’s ability to pay fines and fees in accordance with People v.
Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), and (3) the abstract of judgment must be
amended either to reflect the sentence and custody credits pronounced on July 20, 2018,
or to reflect the sentence and custody credits pronounced following an anticipated
remand.
In our original opinion, a majority of this court held: (1) the trial court had no
discretion to impose an enhancement under section 12022.53 that carries a lower
sentence because no such enhancement was alleged, (2) remand for consideration of
defendant’s ability to pay fines and fees was unwarranted in light of the record, and
(3) the trial court was not required to issue an amended abstract of judgment.
Accordingly, we affirmed.
Defendant petitioned the California Supreme Court for review, arguing in part that
the trial court had discretion to reduce the firearm enhancement imposed pursuant to
section 12022.53. The state high court granted review (S263743) and ultimately
transferred the matter to us with directions to vacate our opinion and reconsider the cause
in light of People v. Tirado (2022) 12 Cal.5th 688 (Tirado), which held that a trial court
may impose a “lesser included, uncharged enhancement” under section 12022.53, so long

4.
as the “facts supporting imposition of the lesser enhancement have been alleged and
found true.” (Tirado, at p. 697; see id. at p. 700.)
Pursuant to the California Supreme Court’s order, we vacated our prior opinion
and solicited supplemental briefing limited to “matters arising after our previous decision
in this cause.” (Cal. Rules of Court, rule 8.200(b)(2).) In supplemental briefing,
defendant argues he is entitled to remand for the court to exercise its discretion pursuant
to Tirado. He additionally argues he is entitled to (1) reversal of the gang enhancements
and gang-related special circumstance due to recent amendments to section 186.22
(Stats. 2021, ch. 699, § 3); (2) reversal of the entire judgment pursuant to newly enacted
section 1109, which requires bifurcation of the trial of certain gang-related allegations
(Stats. 2021, ch. 699, § 5); (3) reversal of the entire judgment, or at least the gang
enhancements and gang-related special circumstance, pursuant to People v. Valencia
(2021) 11 Cal.5th 818 (Valencia) based on the admission of prejudicial, case-specific
hearsay; and (4) reconsideration of the sentence pursuant to Assembly Bill No. 518
(2021-2022 Reg. Sess.), statutes 2021, chapter 441 (Assembly Bill No. 518). He also
asks that we revisit our prior holding that reversal was not warranted based on the
admission of hearsay testimony regarding one of the victim’s gang membership. (See
Chacon I, supra, F069786.)
We will reverse the true findings on the gang enhancements and gang-related
special circumstance pursuant to Valencia. In light of this disposition, we will vacate the
sentence in its entirety and remand for further proceedings, to include a full resentencing.
In all other respects, we affirm.
FACTUAL BACKGROUND
Because defendant’s arguments relate in part to the trial evidence, we reiterate our
factual summary from defendant’s first appeal.

5.
 “I
“PROSECUTION EVIDENCE
“The Shooting
“A three-unit apartment complex stands on the northwest corner of Virginia
Avenue and South Robinson, in Bakersfield. The units face east toward Robinson.
There is a stop sign on Robinson at Virginia. The parking lot for the complex is at the
north end of the complex, and is separated from the units’ front lawn by a chain-link
fence with a gate. A cement walkway leads from each of the three front doors to the
sidewalk and curb running along Robinson, but the chain-link fence surrounds the yard so
there is no curb access.
“As of April 30, 2012, Jeffery [L.], Anna [M.], and Aaron [N.] resided in
apartment A, the first unit nearest the corner of Virginia and Robinson.[4] Also residing
there were Katie [W.], her boyfriend Lynn [H.], her two-year-old daughter [K.], and her
four other children.[5]
“That day, Ricardo [R.] and his friend, Raymond ‘Caveman’ Velasquez, a
Hispanic man who lived in the neighborhood, decided to walk to the store. Velasquez
was wearing a black shirt [Ricardo] had loaned him. They walked south on Robinson,
intending to turn west on Virginia. As they reached the northernmost edge of the
apartment complex’s parking lot, [Ricardo] saw a dark blue SUV (sports utility vehicle)
that could have been a Tahoe or Yukon. The SUV, which was facing south, was parked
at a pink house just north of Murdoch, the first street to intersect Robinson north of
Virginia. Two men, who appeared to be Hispanic, were outside the SUV. They were
staring in the direction of [Ricardo] and Velasquez.

4 “Unspecified references to dates in the [factual background] are to the year
2012.”
5Pursuant to California Rules of Court, rule 8.90, we refer to some persons by
their first names or initials. No disrespect is intended.

6.
 “[Ricardo] and Velasquez ignored the men and continued on toward the store.
Near the corner of Virginia and Robinson, Velasquez stopped outside the fence to talk to
a Black man he knew. [Ricardo] was also on the sidewalk outside the fence, but about 10
feet north of Velasquez.
“The conversation lasted five to 10 minutes, whereupon the SUV pulled up. As it
was pulling up, [Ricardo] saw the driver and someone in the front passenger seat. He
could not see into the back seat, because the windows were tinted. The front windows
were rolled down, however.
“The SUV stopped with the passenger window next to Velasquez. Someone in the
SUV asked, ‘hey, you guys trippin’?’ [Ricardo] did not know who said it. [Ricardo] and
Velasquez were shocked, because the phrase essentially asked whether one group was
having problems with the other, and it often was associated with some kind of fight or
threat. [Ricardo] heard Velasquez talking with those in the SUV, but the exchange did
not sound angry, and he heard no gang slogans. About two or three minutes after the
SUV pulled up, however, [Ricardo] saw the passenger’s hand sticking out of the car. The
passenger was holding a gun that appeared to be a semiautomatic. Shots were fired.
Velasquez, who was seven or eight feet from the vehicle, was not hit, although the shirt
Velasquez was wearing had a hole in it after the shooting that was not there when
[Ricardo] loaned him the garment.[6] One of the bullets hit the curb or sidewalk, causing
some of the cement to strike [Ricardo]’s leg. [Ricardo] and Velasquez fled.
“Sometime after the shooting, [Ricardo] was shown a photographic lineup.[7] He
was unable to identify anyone in the SUV. At trial, he testified he did not see anyone in

6“According to Bakersfield Police Detective Moore, it was a bullet hole without a
corresponding exit hole. The hole was about the size of a .45-caliber bullet. Velasquez
told Moore that when he heard the shots, he moved his body, and he thought that was
why there was only the one hole.”
7“Each of the photographic lineups shown in this case contained defendant’s
photograph in the number three position.”

7.
court whom he remembered being inside the vehicle. According to Moore, who
interviewed [Ricardo], [Ricardo] was reluctant to tell Moore everything he knew.
[Ricardo] told Moore he saw the right front passenger lean out of the SUV. [Ricardo]
described him as a Hispanic male, with facial hair and some hair on his head that was not
too long or too short. He also said the shots came from the right front seat of the vehicle,
and that he saw the gun.
“[Lynn] recalled all the children, including [K.], playing in front of the apartments
when he walked outside to head for his car in the parking lot. Velasquez, whom [Lynn]
knew as Caveman, was on the sidewalk outside the fence. [Lynn] did not see any other
people outside the fence, but he did see a dark blue Navigator.
“[Lynn] was at the gate when shooting started. He turned around and saw what
looked like fireworks bouncing off the ground, but they were bullets ricocheting.
Someone was leaning out of the car with a gun in his hand. Although the windows in the
Navigator were tinted, [Lynn] was able to see the driver and front passenger—
defendant—as the vehicle drove off southbound on Robinson after the shooting. [Lynn]
did not get a good look at the driver, who was Hispanic.
“[K.] was lying on the ground. [Lynn] picked her up, put her in his car, and drove
off. When he saw some sheriff’s deputies, he gave her over to them. [K.] subsequently
died from a penetrating gunshot wound of the body. The bullet entered [K.]’s right chest,
perforated a lung and her diaphragm, perforated one of her vertebrae, and lodged in the
soft tissue of the left back.
“[Lynn] was interviewed by Moore approximately eight hours after the shooting.
[Lynn] gave Moore a description of a Hispanic male who could have been bald. The man
was not wearing sunglasses and did not have any piercings. [Lynn] did not know if the
man had facial hair. [Lynn] said he was able to get a good look at the shooter’s face
because the shooter leaned out of the vehicle from the right front seat. Moore showed
[Lynn] a photographic lineup sometime in May. When Moore asked if [Lynn] could

8.
identify anyone, [Lynn] wrote ‘not sure.’ At trial, [Lynn] explained he did so because he
did not want to have to go through this. Thinking of [K.] changed his mind.[8]
“[Jeffery] recalled standing in the grass between the first and second apartments, a
couple of feet from the fence, playing with [Katie]’s children. A large Hispanic male,
wearing black shorts, a black shirt, and a Pittsburgh Pirates hat, walked up and stopped to
talk to [Lynn]. [Lynn] was standing on the grass near the stop sign. The two men talked
for about 10 or 15 minutes, during which time [Jeffery] saw a black Ford Expedition with
tinted back windows circle twice around the block. [Jeffery] saw the passenger twice; he
was a Hispanic man with short hair. At trial, [Jeffery] identified him as defendant.
[Jeffery] did not get a good look at the driver.
“[Jeffery] saw the SUV sit for five or 10 minutes by a pink house a block away, on
the corner of Murdoch and Robinson.[9] He did not see anyone get in or out of the
vehicle. It then drove straight down to [Jeffery]’s location and stopped at the stop sign.
Defendant had words with [Lynn] (who is Black) and the Hispanic male dressed in black.
Defendant said, ‘Varrio Bakers,’ then fired six or seven shots a few seconds later.

8“[Lynn] was in custody on unrelated matters at the time he testified. It was his
understanding he would be released on his own recognizance after he testified. He was
not promised anything else.”
9 “Adriana [S.], who had a child with defendant, lived in the pink house on the day
of the shooting. That day, defendant dropped their child off after having her overnight.
When interviewed by Moore, [Adriana] said defendant was the right front passenger in a
blue Blazer- or Expedition-type vehicle. The only people in the car were defendant and
the driver, whom she described as a ‘Paisa,’ meaning a Mexican who was not a gangster.
She also told Moore that right after the shooting, Velasquez (whom she identified from a
photograph) and another Hispanic male ran into her yard. They demanded to know who
the person was who parked in front of her house, said he had just tried to shoot them and
had shot a little girl, and threatened that whoever came to her house was going to get
shot. At trial, [Adriana] claimed the police pressured her to say things, and she had no
knowledge what kind of car defendant was in when he dropped the baby off, how many
people were in the car, or who was sitting where. A video recording of her interview
with Moore was played for the jury.”

9.
Although [Jeffery] did not actually see when the shots were fired, he had glanced over
when the men were talking, and only the right-side window was open. Only defendant
was talking to the Hispanic male. Defendant was leaning forward. The Hispanic male
was right in front of the passenger window, but he was standing back from the car. After
the shots were fired, the SUV turned left at the stop sign onto Virginia and drove off.
“[Jeffery] was interviewed at the scene, and later at the police department. At the
scene, he told Bakersfield Police Officer Anderberg that the vehicle involved was a blue
Lincoln Navigator with four Hispanics inside, one of whom was wearing a black and
gold Pittsburgh Pirates hat.[10] He also said there were two Hispanic males on the
sidewalk. When shown a photographic lineup on May 19, he was unable to identify
anyone. After an arrest was made, [Jeffery] saw defendant’s photograph in the
newspaper. He knew then it was the person he had seen.
“[Anna] recalled that just before the shooting, she was standing in the front yard,
talking on the phone. [Lynn] was standing near the gate to the parking lot, talking to a
group of three or four males. [Aaron] was inside the apartment. [Katie] was at school.
“[Anna] saw a powder blue Expedition or Explorer at a pink house a block down
the street. It sat there for 10 to 15 minutes, during which time [Anna] did not see anyone
get in or out. The vehicle then started rolling up and a group of males in the car started
having a conversation with someone outside the car. Two Hispanic males were walking
up the street, but those in the SUV were only talking to one of them, who walked up to
the vehicle. The two males had come from the direction of the pink house. [Anna] could
not really see who was in the SUV; the front windows were rolled down just enough for
them to talk to the male outside the vehicle. The back passenger side window was down,

10“Anderberg was dispatched to the apartment complex at approximately
7:00 p.m. in response to a report of a shooting. It was still light out when the shooting
occurred.”

10.
but [Anna] could not see the person in the back seat by that window because he was
sitting back.
“[Anna] could not tell which person in the SUV was talking to the male on the
street. No voices were raised; she thought the men were just having a conversation, as
opposed to an argument. The conversation lasted five or six minutes, during which time
the SUV was stopped at the stop sign. Suddenly, the male outside the SUV turned
around, covered his head with his hands, and bent over slightly, and shots were fired at
him from inside the SUV. The Hispanic males on the sidewalk were approximately eight
or nine feet from the SUV. More than two shots were fired, and sparks and water flew up
from the gutter. [Anna] did not hear anyone yell ‘Varrio’ before the shots were fired.
The two men on the sidewalk ran off. The SUV crossed Virginia and continued on
Robinson.
“At the time the shots were fired, [K.] was playing in the grass area directly in
front of the middle apartment, roughly in the area where [Jeffery] was standing. [Anna]
turned to get the children into the house, and saw [K.] lying on the ground. She had been
shot. [Lynn] picked her up and started to drive her to the hospital.
“Moore interviewed [Anna] at the scene.[11] She told him she could not tell what
kind of words were being said by the people involved in the shooting, but it seemed like
they were friends. The only thing she heard was ‘Varrio somethin’,’ and she could not
tell if it came from the car or the man on foot. She described the vehicle as a powder
blue SUV. Shown a photographic lineup, [Anna] wrote ‘not sure,’ meaning she was
unable to identify anyone as having been inside the SUV. When asked at trial if she saw
anybody who was inside the vehicle, she stated she did not remember what they looked
like.

11 “An audio recording of the interview was played for the jury.”

11.
 “There was damage consistent with a bullet strike on the cinder-block wall on the
north side of the apartment complex parking lot, on a mailbox in front of the apartment
complex by the sidewalk for the middle apartment, and to the front wall of the middle
apartment. There was also a possible bullet skip or strike to the sidewalk leading from
the first apartment. This mark indicated the bullet was traveling northwest, toward the
corner of the apartment complex, when it skipped. A large-caliber bullet was recovered
from [K.] during the autopsy. One side was flattened at a slight angle. It appeared to
have hit a hard object, such as concrete. The damage to the bullet was consistent with the
mark on the sidewalk.
“Six expended .45-caliber shell casings were found at the scene. All were
determined to have been fired from the same gun. The spent shell casings were
processed for latent fingerprints and swabbed for DNA. While no prints were located, a
DNA profile was obtained from the swabs. It was a mixture of at least two people, at
least one of whom was male. Defendant was a major contributor to the profile.
“Early in the investigation, Moore received information on a number of potential
suspects. Prior to trial, nobody expressly identified defendant. During his first meeting
with Velasquez, however, Moore asked Velasquez to look at the photographic lineup and
see if he could identify the shooter. Velasquez’s demeanor was helpful but evasive.
During Moore’s second contact with Velasquez, Moore asked if one of the people in the
photographic array looked familiar. Velasquez was holding the page of photographs in
front of his face. Moore, who was next to him, could tell he was staring at the number
three position.
“Moore first came in contact with defendant on July 10, and interviewed him that
afternoon.[12] Defendant, who had been in Mexico when taken into custody, stated he no
longer associated with the Varrio Bakers, although he was ‘from the neighborhood.’ He

12 “A video recording of the interview was played for the jury.”

12.
denied being in that neighborhood on April 30. A friend of his drove him to Mexico at
defendant’s request.[13] Defendant went to visit his grandfather at his grandfather’s
ranch, only to discover he had passed away.
“Asked about the pink house, defendant said he used to go there a long time ago,
to visit a friend of his from school. He did not know her name. He acknowledged she
said they had a child together, but he was not sure the baby was his. He took the child
one time to visit his family and friends, but had forgotten the little girl’s name and the
date he took her. A friend drove him, but he could not recall the friend’s name or the
kind of vehicle they were in. It was not an SUV, however; although defendant did not
drive, he was always either in a Mercedes or a red Mustang. After dropping the baby off,
defendant—who was in the passenger seat as always—and the driver turned back around.
Defendant did not exchange words with anyone. Defendant denied knowing anything
about what happened or that the police were looking for him; he did not watch television,
and he had a new phone when he went to Mexico. He denied being present at the
shooting.
“The Gang Evidence
“Moore had been an officer with the Bakersfield Police Department since 1996,
and a law enforcement officer for several years before that. He was one of the officers
who dealt with gang neighborhoods and gang arrests before the police department had a
gang unit.
“Moore explained that the Varrio Bakers gang is a group of people who are
loosely associated with Southerner gangs. The Varrio Bakers are known to commit

13“Defendant was coming back into the United States from Mexico when he was
contacted by a law enforcement agency. He was taken into custody by Calexico police
on a murder warrant in this case.”

13.
murders, robberies, burglaries, and crimes that support the gang generally. The location
of the shooting in this case was within Varrio Bakers territory.[14]
“Moore explained that tagging is a way gangs mark their territory. Varrio Bakers
commonly use ‘VB’ and ‘VBKS.’ They also use ‘3’ and ‘X3,’ which relate to 13 and the
fact the Varrio Bakers are correlated with Southerner street gangs. A lot of Southern
street gangs use 13 to show allegiance to the Mexican Mafia prison gang. At the time of
the shooting, there was Varrio Bakers tagging on an abandoned building on the northeast
corner of Virginia and South Robinson, and also on a wood fence along Virginia, just to
the west of the scene. At the time Moore interviewed defendant, defendant had a large
VB tattoo visible on the top of his head.[15] Defendant did not, however, have any gang
convictions.
“Moore explained that Southern gangs have rules against their members shooting
from vehicles, because unintended victims can be killed. There are also rules about
killing children, because they are innocent and not part of the gang lifestyle. The crime
in this case violated those rules. This led to the police receiving more assistance from
people than they normally would get in a regular gang killing. Even so, it was difficult to
gain cooperation from some of the witnesses. Snitching—helping the police—also
violates gang rules and can result in one getting killed.
“Moore explained that mere membership in a gang is not illegal, but conduct in
association with gang activity can be. The conduct has to further the street gang’s
operations or somehow benefit the gang.

14 “The area was also in the territory of the Eastside Crips, a Black gang.”
15“During the interview, defendant gave the address of his father’s house and said
defendant had always used it as his address. The address was in the territory of Loma,
another Hispanic street gang. According to Moore, it was not ‘out of bounds’ for a
family member of one gang to reside in the area of another gang.”

14.
 “On September 12, 2005, Bakersfield Police Officer Woolard came in contact
with defendant during a traffic stop. Among his tattoos, defendant had ‘Varrios’ tattooed
on his chest. Defendant said he had had the tattoo shaded in about two months earlier,
while he was intoxicated.
“On September 16, 2011, Bakersfield Police Detective Sherman assisted a parole
officer in arresting Anthony Hernandez, a Varrio Bakers gang member with the moniker
‘Green Eyes.’ Hernandez and defendant were found inside a house. Defendant was
underneath the covers in one of the back bedrooms.
“On June 7, 2012, Bakersfield Police Officer Littlefield came in contact with
Alfred Herrera, a Varrio Bakers member who was older than the typical 18- to 25-year-
old members with whom police normally had contact. During the course of their
conversation, Herrera said he was familiar with the current case involving defendant.
Herrera said Velasquez was a member in bad standing with the Varrio Bakers.
“Deputy King, of the Kern County Sheriff’s Department detention bureau, had
been a classifications deputy for approximately 14 years. He explained that in jail
parlance, a ‘kite’ is a handwritten note by which jail inmates communicate with each
other. Kites generally are passed hand to hand.
“King knew defendant, who was housed in unit 2 of C pod at the Lerdo pretrial
facility. A handwritten note was seized that read ‘Chacón VBKS’ near the signature line.
The note contained housing information for what it termed the ‘C-2 Active Homies.’
Two of the names listed were ‘Chacón VBKS’ and ‘Kave-man Colonia Bakers.’ The
note also bore ‘the Kanpol,’ a common symbol used by Southern Hispanic criminal street
gang members. It is two lines or bars, each of which represents five, and then three dots.
It is a Mayan numeral 13 used to show allegiance to the Mexican Mafia.
“In April 2014, King came into possession of another kite. This note was what
inmates refer to as a ‘roll call.’ In a roll call, all active members have to supply their
name, booking number, date of birth, neighborhood with which they associate, and

15.
moniker to the member of the criminal street gang or prison gang who runs that specific
housing unit. That person is appointed by an influential member of the specific gang, in
this case, the Southern Hispanics, also known as Sureños. Velasquez, who was in
custody, put his identifying information, including his booking number, on this kite,
along with his moniker, ‘Caveman.’ He identified with the Varrio Bakers criminal street
gang.
“As of the time of trial, Bakersfield Police Officer Malley had been a peace officer
for seven and a half years, and had been in the gang unit—his current assignment—about
a year and a half.[16] Prior to that, he worked in the patrol division. He received training
on criminal street gangs while in the police academy in 2006.[17] After he graduated from
the academy, he went into a field training program, where he was under the supervision
of a more senior officer. His field training officers had both been in the gang unit at
some point. While in the field training program, Malley had frequent contact with
individuals believed to be members of criminal street gangs. Malley was taught about
indicia of gang membership, gang territories, gang rivalries, and the like.
“After he completed his field training, Malley was placed on probationary officer
status for a year, then hired as a permanent employee. While on probation, he was on
patrol and had contact with individuals he believed were gang members almost on a daily
basis. One of the beats he worked encompassed the area of Virginia and South Robinson.
During his time on that beat, he contacted suspected gang members at least several times

16“Because defendant challenge[d] Malley’s qualifications as an expert, we set
out the pertinent testimony in some detail.”
17“Malley received 14 hours of classroom-level training, which included gang
identifiers, common signs and symbols, tattoos, information about monikers, traditional
boundaries, and the types of crimes gang members commit. It also included a tour of the
various gang neighborhoods of Bakersfield. The course was taught by a senior police
officer in the special enforcement (gang) unit. As of the time of trial, that officer was a
sergeant in the gang unit.”

16.
a week. When he became a patrol officer, he was assigned to the same general area.
After he was hired as a permanent employee, and as a member of the gang unit, Malley
received additional training in criminal street gangs.[18]
“Malley believed the Varrio Bakers started in the 1950’s or thereabouts, although
he did not know the exact year. They began in the central eastern portion of Bakersfield.
He did not know the founding member’s name. He did not know the exact membership
number as of the time of trial, because it was constantly changing, but knew the gang had
somewhere about 100 and 1,000 members. Malley had heard from various sources that
Richard ‘Puppet’ Luevano was running the Varrio Bakers as of the time of trial. Malley
did not know, however, who the ‘shot-callers’ of the Varrio Bakers were on the date of
the shooting.[19]
“Malley, who had never before testified as an expert on the Varrio Bakers
although he had testified concerning several other Sureño and local street gangs,
explained that there is a gang called Southerners or Sureños that encompasses the Varrio
Bakers. It is a gang as a whole, and is a combination of all other subsets, of which the
Varrio Bakers is one. He explained that a crime done for the benefit of the gang can be

18 “In 2008, Malley attended an eight-hour refresher course, given by the
Bakersfield Police Department’s special enforcement unit. In 2012, he attended a four-
day (40-hour) gang awareness instruction course, which was given by the Bakersfield
Police Department, the California Department of Corrections and Rehabilitation, and the
Kern County District Attorney’s Office. In 2013, he attended a four-day (40-hour)
National Gang Investigators Association conference held in Anaheim, which contained
information on local street gangs and street gangs in Southern California, including Crip
and Sureño criminal street gangs. He had also read two books—A Guide to
Understanding Street Gangs, by Dr. Al Valdez, and The Mexican Mafia Encyclopedia,
which was written by two former Mexican Mafia gang members. Both books were
specific to Crips and Sureños. There was information in the latter book that referenced
local Sureño street gangs by name.”
19 “Malley explained that a shot-caller within a gang is someone who has a
tremendous amount of respect and power, and controls members with less status. The
shot-caller controls other members’ activities.”

17.
any crime committed by a gang member that benefits either the status of the gang within
the gangs in Kern County, or benefits the reputation of the gang and basically instills fear
into members of the community. Although the killing of a two-year-old child will not
enhance a single gang member’s status within the particular gang, it will enhance that
gang’s reputation in the community as being ruthless and having the ability to kill people.
“During his time on patrol and in the gang unit, Malley participated in
investigations in which members of the Varrio Bakers were identified as potential
suspects. He also investigated incidents in which they were potential victims or
witnesses. He had arrested members of the Varrio Bakers, conducted formal
interrogations of them, and also talked with members consensually. Consensual
conversations allowed him to gather information about the gang and the particular gang
member, and to expand his knowledge base concerning the gang. It also allowed him to
corroborate information he had received from other people about a certain gang. In
addition, Malley had read reports involving the Varrio Bakers, and spoken with quite a
few other officers about them.
“Based on his training and experience, Malley opined that some of the primary
criminal activities of the Varrio Bakers are shootings, assaults with deadly weapons,
firearms possession, murder, attempted murder, robbery, carjacking, sales of narcotics,
and witness intimidation. Malley also related that there are different levels of respect
within a gang. The shot-caller has the most respect; someone who steals things or sells
narcotics has the least amount, although this does not mean that person is in bad standing
with the gang. Malley explained that respect is very important to the Varrio Bakers. In
the gang culture, fear is often seen by gang members as being equal to respect, and it is
the way they establish dominance. They gain respect from members of the community
and other gangs by instilling fear into them. The more violent the types of crimes a gang
member commits, the more respect that person commands within the gang. By contrast,
a gang member loses respect by failing to complete an assigned task, backing down from

18.
rival gang members, or showing weakness, particularly in front of other members of the
person’s gang. There are disciplinary procedures that occur within the gang; discipline
can consist of someone being ‘checked’ or beaten, and it can even consist of a member
being killed if a shot-caller deems it necessary for whatever issue that needs to be settled.
“Malley was familiar with the corner of Virginia and South Robinson. It is within
Varrio Bakers territory, which traditionally extends from Eye Street on the west to
Washington Street on the east, and from East Brundage Lane on the south to East
Truxton Avenue on the north. Malley had seen a lot of graffiti. ‘VB’ and ‘VBKS’
signify Varrio Bakers. ‘X3’ signifies 13. Varrio Bakers members often have tattoos.
Defendant had gang tattoos, including ‘Varrio’ across his chest; ‘VBKS’ across the back
of his neck; ‘KC,’ which local Sureño gang members often wear as a sign of pride at
being a gang member from Kern County, on his right forearm; and a Kanpol—three dots
with two lines underneath, signifying the number 13—on his left ring finger. Defendant
also had an ‘805’ tattoo. This is the former area code for Bakersfield. Malley explained
that older gang members tend to have this tattoo rather than ‘661,’ the current area code.
Malley believed it likely defendant obtained that tattoo a long time ago. None of
defendant’s tattoos were fresh.
“Malley reviewed street checks and offense reports regarding defendant.[20] One
was Sherman’s November 2011 report, which documented defendant being contacted
with Anthony Hernandez. Hernandez was a previously admitted member of the Varrio
Bakers, and a registered gang offender with that gang. Malley also reviewed an offense
report in which defendant was contacted on April 19, 2012, with Jose Concepcion Lopez.
Malley had had previous contacts with Lopez, who was a documented Varrio Bakers and
a registered gang offender with that gang. Malley also reviewed Woolard’s 2005 report

20 “Malley described a street check as a police officer’s documentation that does
not contain information regarding an arrest. It can be for anything the officer feels needs
to be put on paper for future reference.”

19.
regarding defendant. Although Malley had not had any contact with defendant, he had
talked with other officers about defendant.
“Based on his conversations with other officers and review of the foregoing
information, Malley opined defendant was an active member of the Varrio Bakers
criminal street gang at the time of trial, and was an active member in April 2012. Malley
based this opinion on his experience as a patrol officer and gang investigator, and on the
fact defendant was contacted within the traditional boundaries of the gang on several
occasions, was known to associate with other documented members of the gang, and had
tattoos on his body that only a member of that gang could obtain. Malley acknowledged,
however, that a person could age out of the gang. He had spoken with members who said
they had grown out of being gang members, but could still return to the neighborhood
and socialize with active members. Malley had no evidence defendant had aged out.
Defendant had no gang convictions and had never been ordered to register as a gang
offender, however.
“Malley also reviewed information concerning Velasquez, although he had never
had contact with him. After reviewing the same kind of information he reviewed for
defendant, Malley opined Velasquez was an active member of the Varrio Bakers criminal
street gang.
“Malley reviewed what are commonly called predicate offenses. On January 24,
2012, when documented Varrio Bakers Jose Trejo, Roman Serna, and Miguel Bravo were
contacted, Serna fled and discarded a firearm. When apprehended, he was found to have
14 bindles of suspected methamphetamine on his person. All three admitted they were
Varrio Bakers. Trejo later pled no contest to possession of a controlled substance for sale
and gang participation, and was sentenced to prison. Trejo was an active member of the
Varrio Bakers at the time of the offense. Malley, who had had contact with Trejo, knew
him to have ‘BKS’ tattooed on his chest.

20.
 “On July 29, 2011, documented Varrio Bakers Ronnie Garcia and an unidentified
subject forced their way into an apartment and brandished a firearm. They made a female
stay in a bedroom while they took property from the residence. Garcia, who ultimately
pled no contest to robbery and was sentenced to prison, had tattoos of ‘KC’ on his neck,
‘100-percent goon’ on his head, and ‘Bakers’ on his back.[21] Although Malley had not
had any contact with Garcia, he had reviewed the information on him and talked to other
officers about him, and opined he was an active member of the Varrio Bakers at the time
of the offense.
“On August 27, 2010, officers contacted Anthony Hernandez and George
Mendoza, both Varrio Bakers, walking together. During a probation search, Hernandez
was found to have a large quantity of methamphetamine on his person, as well as cell
phones, a pay-and-owe sheet, and currency. During a parole search at Mendoza’s
residence, gang writings for the Varrio Bakers Traviesos subset were located. Hernandez
pled no contest to gang participation and was sentenced to prison. Although Malley had
not had contact with Hernandez, he had reviewed information on him and spoken to
officers about him. Malley opined Hernandez was an active member of the Varrio
Bakers at the time of the offense.
“On April 22, 2010, Jesus Ramirez and Zane Hubbard, who had ‘VB’ tattooed on
his face, carjacked and kidnapped a victim. Ramirez was convicted of kidnapping for
robbery, kidnapping during a carjacking, assault with a firearm, criminal threats,
victim/witness intimidation, felon in possession of a firearm, and gang participation, and
sentenced to prison. Malley had had no contact with Ramirez, but had talked to other

21 “Malley explained that when someone from outside the Varrio Bakers refers to
a Varrio Bakers as a goon, it is a sign of disrespect. However, a lot of Varrio Bakers—
particularly the younger ones—have been getting ‘goon’ or ‘100-percent goon’ tattooed
on their bodies as a gang identifier. Malley had contact with someone the day he testified
who was a Varrio Bakers and had ‘100-percent goon’ tattooed across his knuckles.”

21.
officers about the case and to officers who knew Ramirez. Malley opined Ramirez was
an active member of the Varrio Bakers at the time of the offense.
“On February 20, 2010, officers attempted to stop a stolen vehicle that was
occupied by Varrio Bakers Jaime Aguirre, Anthony Perez, and Juan Oregon. A vehicle
pursuit ensued, during which shots were fired at officers from inside the vehicle. Oregon
subsequently was convicted of attempted murder and assault with a deadly weapon on a
police officer and sentenced to prison. Malley participated in the search for the vehicle’s
occupants after the pursuit, although he never met Oregon. He reviewed information on
and talked to officers about Oregon, and opined he was an admitted member of the Varrio
Bakers at the time of the offense.
“In response to a hypothetical question based on the evidence presented by the
prosecution in the present case, Malley opined that the shooting was done for the benefit
of and in association with the Varrio Bakers. He explained the shooting benefitted the
gang, because people heard the gang name yelled. This would intimidate members of the
nearby community. It would also intimidate members of law enforcement to know
individuals were possessing firearms and roaming through their own territory, conducting
business by shooting members of their own gang. The association came into play
because it was a crime committed within the traditional boundaries of the gang, and a
person yelling ‘Varrio’ was basically claiming they were the gang responsible for the
shooting. It was ‘kind of their calling card.’ Malley acknowledged a member of a street
gang could commit a crime—even murder—that was not for the benefit of the gang.
“II
“DEFENSE EVIDENCE
“Suzanna Ryan, a forensic DNA consultant, reviewed various materials, data, and
reports concerning the DNA analysis conducted in this case. She noted the stained areas
from the swabs from the shell casings—the areas likely rubbed on the casings—were
consumed in testing. Based on her training and experience, retention of some of the

22.
sample is important so that it can be retested by the opposing side. The defense was
deprived of that ability in this case.
“Ryan was concerned by the fact the samples from the six shell casings were
combined.[22] Combining samples makes it impossible to know the origin of the DNA
profile. In this case, it could not be determined whether the DNA profile that was
eventually developed came from one casing, more than one casing, or all six casings.
“Ryan also noted the shell casings were tested for fingerprints. Latent print
powders and brushes can transfer DNA. Even though a disposable brush was used in this
case, the fact the same brush was used on all six casings could transfer DNA from one
casing to another. This conceivably could make it look as if a person touched all six
casings, when he or she only touched one. Moreover, there was no real way to tell when
DNA was applied to the casings. Touching casings does not mean someone fired a gun,
and the casings could have been touched two weeks before the shooting.
“Ryan explained that being a major or minor contributor has nothing to do with
who touched an item last, but rather with the amount of DNA found. Ryan agreed that in
this case, the DNA analysts correctly matched the major contributor to the known
reference sample from defendant. In Ryan’s opinion, the minor contributor was present
at a level sufficient for a search of the state DNA database. This was not done.”
(Chacon I, supra, F069786.)

22 “Although the Bakersfield Police Department crime scene unit laboratory
technician who processed the shell casings for DNA used a separate swab for each
casing, the criminalist from the Kern Regional Crime Laboratory who performed the
DNA analysis combined the swabs because a swab from a single shell casing may not
contain enough DNA to give a complete DNA profile.”

23.
 DISCUSSION
I
HEARSAY TESTIMONY23
As to each of counts 1 through 3, the jury found true a criminal street gang
enhancement. (§ 186.22, subd. (b).) Additionally, as to count 1, the jury found true a
gang-related special circumstance, which required the jury to find defendant was an
active participant in a criminal street gang. (§ 190.2, subd. (a)(22).) Defendant argues,
and the People concede, the gang enhancements and gang-related special circumstance
must be reversed because Malley’s testimony as a gang expert included inadmissible
case-specific hearsay. Defendant further argues this and other inadmissible hearsay
prejudiced the verdicts on the substantive offenses of murder, attempted murder, and
shooting at an inhabited dwelling. We accept the People’s concession and will reverse
the jury’s true findings on the gang-related allegations, but reject defendant’s attack on
the remainder of the judgment.
To find the gang-related allegations true, the jury was required to find the
existence of a “criminal street gang.” (§§ 186.22, subd. (b), 190.2, subd. (a)(22).) At the
time defendant committed the offenses, subdivision (f) of section 186.22 defined a
criminal street gang, in relevant part, as “any ongoing organization, association, or group
of three or more persons . . . whose members individually or collectively engage in or
have engaged in a pattern of criminal gang activity.” (§ 186.22, former subd. (f).)
Additionally, at that time, a pattern of criminal gang activity was established, in relevant
part, by “the commission of . . . or conviction of two or more [enumerated] offenses, . . .
committed on separate occasions, or by two or more persons.”24 (§ 186.22, former

23 For efficiency, we do not address defendant’s arguments in the order they were
briefed.
24
Section 186.22 has since been amended. (Stats. 2021, ch. 669, § 3, eff. Jan. 1,
2022.) The amendments do not alter our analysis of this issue.

24.
subd. (e).) When defendant’s trial was conducted, California courts regularly permitted
expert witnesses to testify to these so-called predicate offenses, as well as other elements
of the gang-related allegations, by testifying to out-of-court statements that otherwise
would constitute hearsay. (See Valencia, supra, 11 Cal.5th at p. 832.) At the time, courts
reasoned that such testimony was not offered for the truth of the out-of-court statements,
but rather as a basis for the expert’s opinion. (See ibid.)
However, in People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), our Supreme
Court partially disapproved of this procedure, holding: “When an expert relies on
hearsay to provide case-specific facts, considers the statements as true, and relates them
to the jury as a reliable basis for the expert’s opinion, it cannot logically be asserted that
the hearsay content is not offered for its truth. In such a case, ‘the validity of [the
expert’s] opinion ultimately turn[s] on the truth’ [citation] of the hearsay statement.” (Id.
at pp. 682-683; see id. at p. 686, fn. 13.) The high court therefore determined that an
expert witness cannot “relate as true case-specific facts asserted in hearsay statements,
unless they are independently proven by competent evidence or are covered by a hearsay
exception.” (Id. at p. 686.) Furthermore, to the extent the hearsay is testimonial in
nature, such testimony violates the Sixth Amendment’s confrontation clause unless
“(1) there is a showing of unavailability and (2) the defendant had a prior opportunity for
cross-examination, or forfeited that right by wrongdoing.” (Sanchez, at p. 686.)
Sanchez was decided during the pendency of defendant’s first appeal. In that
appeal, defendant raised a single claim of Sanchez error: that his confrontation rights
were violated by the admission of Littlefield’s hearsay testimony that Herrera reported
Velasquez was a Varrio Bakers member in bad standing. (See Chacon I, supra,
F069786.) We concluded this claim was forfeited by defendant’s failure to object in the
trial court and, regardless, any error was harmless in light of the jury instructions and
evidence. (Ibid.) Our Supreme Court later denied defendant’s petition for review

25.
(S238667). The matter then twice returned to the trial court for further sentencing
proceedings.
On February 27, 2020, while the instant appeal was pending, our Supreme Court
decided People v. Perez (2020) 9 Cal.5th 1 (Perez), holding that a defendant’s failure to
object to case-specific hearsay at a trial conducted prior to Sanchez does not forfeit such
claims on appeal. (Perez, at pp. 4, 7-14.) However, during the initial pendency of this
third appeal, defendant did not seek to raise any claims pursuant to Sanchez or Perez. We
issued our initial opinion in this appeal on July 7, 2020. Our Supreme Court granted
defendant’s petition for review, and during the pendency of that review, issued its
decision in Valencia, supra, 11 Cal.5th 818. Valencia clarified that “[t]he circumstances
of . . . predicate offenses are case-specific facts for purposes of Sanchez, and expert
testimony about them must be supported by competent evidence.” (People v. Navarro
(2021) 12 Cal.5th 285, 311-312; accord, Valencia, supra, 11 Cal.5th at pp. 838-839.)
When the Supreme Court transferred this matter to us for reconsideration in light
of Tirado, supra, 12 Cal.5th 688, we permitted supplemental briefing limited to matters
arising after our previous decision. (Cal. Rules of Court, rule 8.200(b)(1), (2).) It is in
this context that defendant now raises three claims of Sanchez error: (1) Malley’s
testimony about predicate offenses constituted inadmissible case-specific hearsay in
violation of Valencia, requiring reversal of the gang-related allegations; (2) this
inadmissible testimony allowed the prosecution to introduce other gang-related evidence,
which prejudiced the verdicts on the substantive offenses of murder, attempted murder,
and shooting at an inhabited dwelling; and (3) we should revisit our ruling from
defendant’s first appeal because our application of the harmless error test is contrary to
Sanchez. We consider these arguments in turn.
A. Hearsay Testimony Regarding Predicate Offenses
During defendant’s trial, the prosecution presented evidence of five predicate
offenses to establish a pattern of criminal gang activity. Malley testified to each of the

26.
predicate offenses. As recounted in detail in the factual background, ante, nearly all
Malley’s testimony regarding the predicate offenses was derived from police reports and
conversations with other officers.25 As the People now concede, this testimony
constituted case-specific hearsay, which prejudiced the verdicts on the gang-related
allegations.
We accept the People’s concession. With extremely limited exceptions, Malley’s
testimony regarding the facts of the predicate offenses was not based on personal
knowledge and no competent evidence of these facts was tendered by any other witness.
At least some of Malley’s testimony in this regard was comprised of testimonial hearsay.
(See Valencia, supra, 11 Cal.5th at p. 840.) We cannot conclude this testimony was
harmless beyond a reasonable doubt. (Ibid. [“[I]f the improperly admitted hearsay is also
testimonial within the meaning of the high court’s confrontation clause jurisprudence
[citation], the error is assessed under the federal constitutional standard of Chapman v.
California (1967) 386 U.S. 18, 24, which requires any error to be harmless beyond a
reasonable doubt.”].) Absent the hearsay testimony, there was insufficient evidence to
establish the elements of the gang-related allegations.26 (See People v. Navarro, supra,
12 Cal.5th at p. 313.)

25 The People also sought to admit into evidence a certified register of actions as
to Ramirez, Garcia, Trejo, Oregon, and Hernandez to prove the predicate offenses.
Defense counsel objected to the volume of documents and stated his willingness to
stipulate “that Officer Malley’s description of the crimes he specifically testified to . . .
[¶] . . . [¶] . . . are true.” The parties then agreed to craft a stipulation and to forego
admission of the certified registers of actions. The prosecutor referred to the stipulation
in closing argument, stating, “[T]he parties have agreed those predicates are just what
they say they are.” However, no formalized stipulation appears in the record and it
appears no stipulation was provided to the jury. In light of the lack of a clear stipulation,
and the People’s concession of error, we do not consider the effect such stipulation may
have had on defendant’s claim of Sanchez error.
26At the time of trial, the jury would have been permitted to consider the
underlying crimes committed by defendant as proof of the predicate offenses. (Former
§ 186.22, subd. (f); see People v. Loeun (1997) 17 Cal.4th 1, 7.) However, these offenses

27.
 Accordingly we will reverse the gang enhancements (§ 186.22, subd. (b)) to all
counts, and the gang-related special circumstance on count 1 (§ 190.22, subd. (a)(22)).27
The People may retry the gang enhancements and gang-related special circumstance, if
they choose. (Navarro, supra, 12 Cal.5th at p. 311 [a finding of Sanchez error does not
prevent retrial of the overturned allegations].) In light of these reversals, we will vacate
the sentence in its entirety and remand the matter for further proceedings on the reversed
allegations, if any, and for a full resentencing. (See People v. Buycks (2018) 5 Cal.5th
857, 893 (Buycks) [“when part of a sentence is stricken on review, on remand for
resentencing ‘a full resentencing as to all counts is appropriate, so the trial court can
exercise its sentencing discretion in light of the changed circumstances’ ”]; see also
People v. Valenzuela (2019) 7 Cal.5th 415, 424–425 (Valenzuela) [“the full resentencing
rule allows a court to revisit all prior sentencing decisions when resentencing a
defendant”].)
However, we reject defendant’s contention that the hearsay testimony regarding
predicate offenses prejudiced the verdicts on the substantive offenses of murder,
attempted murder, and shooting at an inhabited dwelling. Defendant characterizes this
testimony as a “gateway” through which the prosecutor was permitted to introduce other
evidence supporting a gang-related theory of murder which, he contends, would have
been inadmissible absent competent evidence to establish a pattern of criminal gang
activity. He provides no support for this argument and, as we explain in greater detail
below, gang-related evidence would have been admissible to prove motive and identity,

alone were insufficient to establish a pattern of criminal gang activity. (Former § 186.22,
subd. (e) [requiring proof of two or more crimes committed “on separate occasions, or by
two or more persons”].)
27In light of this determination, we do not address defendant’s argument that the
gang enhancements and gang-related special circumstance must be reversed based on
recent amendments to section 186.22. (Stats. 2021, ch. 669, § 3, eff. Jan. 1, 2022.)

28.
irrespective of proof of the elements of the gang-related allegations. (See People v.
Hernandez (2004) 33 Cal.4th 1040, 1049-1050 (Hernandez).)
B. Hearsay Testimony Regarding Velasquez’s Standing in The Gang
Defendant also asks us to revisit our ruling from his first appeal, wherein we
rejected his claim of Sanchez error with respect to hearsay testimony regarding Velasquez
being a Varrio Bakers member in bad standing. (Chacon I, supra, F069786.)
Even if we were inclined to revisit this issue, it is not properly before us.
Defendant’s briefing following transfer from our Supreme Court was limited to matters
arising after our previous decision. (Cal. Rules of Court, rule 8.200(b)(1), (2).) Sanchez
and Perez both were decided prior to our previous decision. (See Perez, supra, 9
Cal.5th 1; Sanchez, supra, 63 Cal.4th 665.) To the extent defendant has formulated new
arguments based on these decisions, the arguments are waived. (People v. Murphy
(2001) 88 Cal.App.4th 392, 395 [“ ‘[W]hen a criminal defendant could have raised an
issue in a previous appeal but did not do so, the defendant may be deemed to have waived
the right to raise the issue in a subsequent appeal, absent a showing of good cause or
justification for the delay.’ ”) We will not address them.
II
SECTION 1109
Assembly Bill No. 333 (2021-2022 Reg. Sess.), statutes 2021, chapter 699
(Assembly Bill No. 333) was enacted while review was pending and added section 1109,
which requires bifurcation of the trial of gang enhancements and substantive gang
offenses from that of the underlying offenses upon a defendant’s request. (§ 1109,
subds. (a), (b).) Defendant contends the newly enacted section 1109 applies retroactively
to him and the court’s failure to bifurcate entitles him to complete reversal of the
judgment. The People argue section 1109 does not apply retroactively and, in any event,
any error in failing to bifurcate the gang-related allegations was harmless. We conclude

29.
the failure to bifurcate the gang-related allegations was harmless under the standard
articulated in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).
Courts of Appeal have split on the retroactive application of section 1109. At least
two courts have held that section 1109 is not retroactive. (People v. Ramirez (2022) 79
Cal.App.5th 48, 65, review granted Aug. 17, 2022, S275341; People v. Perez (2022) 78
Cal.App.5th 192, 207, review granted Aug. 17, 2022, S275090.) At least two other
courts, including this one, have held that section 1109 is retroactive. (People v. Burgos
(2022) 77 Cal.App.5th 550, 564–569, review granted July 13, 2022, S274743; People v.
Ramos (2022) 77 Cal.App.5th 1116, 1128–1130; but see Burgos, at p. 569 (dis. opn. of
Elia, J.).) Recently, in People v. Tran (2022) 13 Cal.5th 1169 (Tran), our Supreme Court
declined to resolve this split of authority, concluding that “any asserted error in failing to
bifurcate was harmless.” (Id. at p. 1208.)
We therefore turn to the question of prejudice. Our Supreme Court has held that,
absent a showing that the failure to bifurcate trial of the gang-related allegations violated
defendant’s federal constitutional right to due process, which would require us to
determine whether the claimed error was harmless beyond a reasonable doubt under the
Chapman standard, error in failing to adhere to the new statutory mandate set forth in
section 1109 is subject to review under the standard articulated in Watson, supra, 46
Cal.2d 818. (Tran, supra, 13 Cal.5th at pp. 1208-1210.) We concluded in defendant’s
first appeal that nonbifurcation of the gang-related allegations did not amount to a due
process violation. (Chacon I, supra, F069786.) Section 1109 does not alter that analysis.
Furthermore, applying the Watson standard, we conclude it is not reasonably
probable defendant would have obtained a more favorable result had the gang-related
allegations been bifurcated. (Watson, supra, 46 Cal.2d at p. 836.) Our Supreme Court
has explained: “[E]vidence of gang membership is often relevant to, and admissible
regarding, the charged offense. Evidence of the defendant’s gang affiliation—including
evidence of the gang’s territory, membership, signs, symbols, beliefs and practices,

30.
criminal enterprises, rivalries, and the like—can help prove identity, motive, modus
operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt
of the charged crime. [Citations.] To the extent the evidence supporting the gang
enhancement would be admissible at a trial of guilt, any inference of prejudice would be
dispelled . . . .” (Hernandez, supra, 33 Cal.4th at pp. 1049-1050.) “Although evidence of
a defendant’s gang membership creates a risk the jury will improperly infer the defendant
has a criminal disposition and is therefore guilty of the offense charged—and thus should
be carefully scrutinized by trial courts—such evidence is admissible when relevant to
prove identity or motive, if its probative value is not substantially outweighed by its
prejudicial effect.” (People v. Carter (2003) 30 Cal.4th 1166, 1194; see People v. Avitia
(2005) 127 Cal.App.4th 185, 192-193 [applying same principles to gang evidence
generally].)
As we noted in defendant’s first appeal, “at least some of the gang evidence was
relevant to show defendant’s motive for attacking Velasquez. ‘Gang evidence is relevant
and admissible when the very reason for the underlying crime, that is the motive, is gang
related. [Citation.]’ [Citations.] Since the evidence was relevant to motive, it was also
inferentially relevant to identify defendant as the shooter. [Citations.] The evidence was
also probative of intent to kill and premeditation. [Citations.] These matters clearly were
at issue in the case, even apart from establishment of the shooter’s identity. As a result,
at least some of the evidence would have been admissible even if the gang charge and
allegations had been tried separately.” (Chacon I, supra, F069786.) Additionally, “the
gang evidence was no more inflammatory than the evidence related to the other charged
offenses, and no evidence of uncharged criminal activity by defendant was admitted.
Likewise, the predicate offenses were not unduly inflammatory. Significantly, jurors
were instructed they could not infer bad character or criminal disposition from the gang
evidence. The instruction cured any potential prejudice.” (Ibid.)

31.
 Furthermore, the evidence of defendant’s guilt was strong. He was a major
contributor to the DNA profile obtained from swabs of spent shell casings retrieved from
the scene. The mother of his child placed him at the pink house, in the passenger seat of
a blue SUV, on the day of the shooting. Two witnesses identified defendant in court as
the shooter. Additional witnesses heard someone shouting “Varrio” or “Varrio Bakers”
when the shooting commenced. Overwhelming evidence established defendant’s
membership in the Varrio Bakers gang and the shooting occurred in Varrio Bakers
territory. In light of this evidence, as well as the admissibility of much of the gang
evidence on the issues of motive and identity, it is not reasonably probable that a result
more favorable to defendant would have been reached had the gang-related allegations
been bifurcated. (Watson, supra, 46 Cal.2d at p. 837.) Accordingly, any error in failing
to bifurcate the allegations was harmless.
III
THE FIREARM ENHANCEMENTS
Defendant contends the matter must be remanded for the trial court to exercise its
discretion as to whether to reduce, rather than strike, the firearm enhancements.
Section 12022.53 sets out three separate sentencing enhancements for the personal
use of a firearm in the commission of certain enumerated felony offenses: subdivision
(b) provides for a 10-year enhancement for the personal use of a firearm; subdivision (c)
provides for a 20-year enhancement for the personal and intentional discharge of a
firearm; and subdivision (d) provides for a 25-year-to-life enhancement for the personal
and intentional discharge of a firearm causing great bodily injury or death. (Tirado,
supra, 12 Cal.5th at p. 695.) Prior to January 1, 2018, section 12022.53, subdivision (h)
prohibited trial courts from striking section 12022.53 enhancements. (Tirado, at p. 695.)
However, Senate Bill No. 620 (2017-2018 Reg. Sess.) removed this prohibition. (Tirado,
at p. 696; Stats. 2017, ch. 682, § 2.) “Section 12022.53[, subdivision ](h) now provides
that a ‘court may, in the interest of justice pursuant to Section 1385 and at the time of

32.
sentencing, strike or dismiss an enhancement otherwise required to be imposed by this
section.’ ” (Tirado, at p. 696.) Our Supreme Court has recently held that the discretion
to strike or dismiss an enhancement includes the discretion to impose a lesser included,
uncharged enhancement. “When an accusatory pleading alleges and the jury finds true
the facts supporting a section 12022.53[, subdivision ](d) enhancement, and the court
determines that the section 12022.53[, subdivision ](d) enhancement should be struck or
dismissed under section 12022.53[, subdivision ](h), the court may, under section
12022.53[, subdivision ](j), impose an enhancement under section 12022.53[,
subdivision ](b) or (c).” (Id. at p. 700.)
As discussed in section I.A., ante, we have concluded we must vacate the sentence
in its entirety and remand for further proceedings, to include a full resentencing. On
remand, the trial court may revisit all its prior sentencing decisions in light of all new
legislation and caselaw, including its exercise of discretion pursuant to section 12022.53,
subdivision (h). (See Valenzuela, supra, 7 Cal.5th at pp. 424–425; accord, Buycks, supra,
5 Cal.5th at p. 893.) Defendant’s contentions in this regard are therefore moot.
IV
THE MONETARY OBLIGATIONS
As previously described, at the original sentencing hearing, the trial court ordered
defendant to pay the then-statutory minimum restitution fine of $240, pursuant to section
1202.4, subdivision (b), and imposed and stayed a parole revocation fine in the same
amount, pursuant to section 1202.45. The court also imposed a court operations
assessment in the amount of $120 ($40 per count) pursuant to section 1465.8, and a court
facilities funding assessment in the amount of $90 ($30 per count) pursuant to
Government Code section 70373. These monetary obligations remained unchanged after
both remands. At no time did defendant object.
Defendant now contends the trial court improperly imposed the monetary
obligations without determining whether he had the ability to pay the amounts, in

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violation of his due process rights, and the matter must be remanded for the court to
conduct a hearing on defendant’s ability to pay.28 Defendant’s due process argument is
based on Dueñas, supra, 30 Cal.App.5th 1157, which was decided after defendant’s most
recent remand and while his current appeal was pending. Dueñas held that “due process
of law requires the trial court to conduct an ability to pay hearing and ascertain a
defendant’s present ability to pay” before it imposes any fines or fees. (Id. at pp. 1164,
1167; accord, People v. Castellano (2019) 33 Cal.App.5th 485, 488-489.)
As stated, we have concluded we must vacate the sentence and remand for a full
resentencing. On remand, the trial court may revisit all its prior sentencing decisions,
including the imposition of fines and fees. Defendant may raise his arguments regarding
ability to pay on remand.
V
AMENDED ABSTRACT OF JUDGMENT
After the trial court resentenced defendant on count 2 on April 26, 2017, it issued
an amended abstract of judgment that reflected, inter alia, defendant’s updated custody
credits. When the matter was remanded a second time for the court to exercise its
discretion under section 12022.53, subdivision (h), the court orally updated defendant’s
credits, but did not issue an amended abstract of judgment. Defendant’s appellate
attorney asked the trial court to issue an amended abstract, but the court ruled none was
required since the sentence imposed on April 26, 2017, remained in full force and effect.
Defendant now says we should require the trial court to prepare an amended abstract—

28The question whether a court must consider a defendant’s ability to pay before
imposing or executing fines, fees, and assessments and, if so, which party bears the
burden of proof regarding the defendant’s ability to pay, is currently pending before the
California Supreme Court. (People v. Kopp (2019) 38 Cal.App.5th 47, review granted
Nov. 13, 2019, S257844.)

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even if we are not remanding the matter—to reflect the sentence and custody credits
pronounced on July 20, 2018.
Because we have concluded we must vacate the sentence and remand for a full
resentencing, the trial court will be required to prepare an abstract on remand,
irrespective of what occurred on July 20, 2018. Defendant’s argument in this regard is
therefore moot.
VI
ASSEMBLY BILL NO. 518
Defendant contends he is entitled to remand for reconsideration of the sentence
pursuant to Assembly Bill No. 518, statutes 2021, chapter 441. Prior to its amendment
by Assembly Bill No. 518, section 654 provided: “An act or omission that is punishable
in different ways by different provisions of law shall be punished under the provision that
provides for the longest potential term of imprisonment, but in no case shall the act or
omission be punished under more than one provision.” (§ 654, former subd. (a).)
Assembly Bill No. 518 amended section 654 effective January 1, 2022, to provide,
in relevant part: “An act or omission that is punishable in different ways by different
provisions of law may be punished under either of such provisions, but in no case shall
the act or omission be punished under more than one provision.” (§ 654, subd. (a).)
Thus, a trial court is no longer required to impose a sentence under the offense providing
for the longest possible sentence but may sentence a defendant under any one of the
applicable offenses. Assembly Bill No. 518 “provides the trial court new discretion to
impose a lower sentence.” (People v. Mani (2022) 74 Cal.App.5th 343, 379.)
As the People concede, defendant is entitled on remand to the benefit of Assembly
Bill No. 518, to the extent applicable. (People v. Mani, supra, 74 Cal.App.5th at p. 379.)

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 DISPOSITION
The gang enhancements (§ 186.22, subd. (b)) to counts 1 through 3, and the gang-
related special circumstance on count 1 (§ 190.22, subd. (a)(22)) are reversed and the
sentence is vacated in its entirety. The matter is remanded for further proceedings, to
include a full resentencing.

DETJEN, Acting P. J.
WE CONCUR:

FRANSON, J.

SMITH, J.

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