People v. Barocio CA2/2

Filed 11/3/22 P. v. Barocio CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B317635

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA482590)
v.

MIGUEL BAROCIO,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Eleanor J. Hunter, Judge. Affirmed and
remanded with directions.

Waldemar D. Halka, under appointment by the Court of
Appeal, for Defendant and Appellant.

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 Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Kathy S. Pomerantz, Deputy
Attorneys General, for Plaintiff and Respondent.
******
A jury convicted Miguel Barocio (defendant) of first degree
murder after he drove to rival gang territory and gunned down a
pedestrian walking his bicycle across the street. On appeal,
defendant raises a number of instructional, procedural, and
sentencing issues. Because defendant has not shown any
prejudicial error, we affirm his convictions. However, because
the law regarding sentencing changed while this case was on
appeal, we remand for resentencing.
FACTS AND PROCEEDURAL BACKGROUND
I. Facts
Defendant and Eddie Hernandez are members of the
Florencia 13 street gang. Just after midnight on November 7,
2019, Hernandez drove them both into the territory controlled by
the 38th Street gang, one of Florencia 13’s rivals. Defendant
brought his .22-Ruger semiautomatic handgun, which was loaded
with bullets stamped with the letter “F” for Florencia. They saw
Jorge Rios, who was walking down the sidewalk with his bicycle.
After passing Rios, Hernandez pulled to the side of the road and
turned off his truck’s headlights. Defendant got out of the
passenger’s side and confronted Rios. Moments later, defendant
shot Rios once in the mouth. Rios turned to flee, and defendant
shot Rios three more times in the back. Hernandez pulled the car
around, defendant got in, and they drove away.
The entire incident was caught on video.

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 Later the same day, defendant was arrested while in
possession of a .22-Ruger containing a bullet casing stamped with
the letter “F” that had failed to properly eject after the gun was
fired. The bullet casings recovered near Rios’s body were
consistent with those from the gun in defendant’s possession.
In a postarrest interview, defendant admitted to the police
that he shot Rios, but said that Rios lifted his shirt to reveal a
gun tucked into the waistband of his pants. The video does not
show this.
To an undercover jail informant, defendant admitted that
he brought his .22-Ruger with him into the rival gang territory,
that Rios “had” a gun under his shirt “but didn’t get to use it,”
that he shot Rios in the mouth and then emptied his clip into
Rios’s back, and that he would tell the police that he knew
nothing about the incident until they proved he was involved and
would then tell them that he acted in self-defense because Rios
was reaching for the gun in his waistband. There was no gun
recovered at the scene; there was only a machete, which was still
tied to the frame of Rios’s bicycle.
II. Procedural Background
In the operative first amended information, the People
charged defendant with (1) the murder of Rios (Pen. Code, § 187,
subd. (a)),1 and (2) being a felon in possession of a firearm (§
29800, subd. (a)(1)).2 The People alleged that defendant
committed both crimes “for the benefit of, at the direction of, and

1 All statutory references are to the Penal Code unless
otherwise indicated.

2 The People also charged Hernandez with murder, but he
was tried on a theory that he aided and abetted defendant, and
the jury acquitted him.

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in association with a criminal street gang” (§ 186.22, subd.
(b)(1)(C), (b)(1)(A).) As to the murder count, the People also
alleged that defendant “personally and intentionally discharged a
firearm . . . caus[ing] great bodily injury . . . or death” (§
12022.53, subd. (d)) and that a principal to the crime had done
the same (id., subds. (d) & (e)(1)).
At trial, defendant conceded that he shot Rios.
The trial court instructed the jury on the distinction between first
and second degree murder, instructed on perfect and imperfect
self-defense, and instructed that a defendant loses the right to
claim self-defense if he is the “initial aggressor” unless he tries to
stop the fighting.
The jury convicted defendant of first degree murder, found
the gang and firearm enhancements true, and found him guilty of
being a felon in possession.
The trial court sentenced defendant to prison for 50 years
to life, comprised of a base sentence of 25 years to life for the first
degree murder count plus a consecutive 25 years to life for the
firearm enhancement. The court imposed a concurrent, upper
term sentence of three years on the felon-in-possession count.
Defendant filed this timely appeal.
DISCUSSION
I. Instructional Issues
Defendant argues that the trial court made two
instructional errors. We independently review such claims.
(People v. Mataele (2022) 13 Cal.5th 372, 419.)
A. Initial aggressor instruction
After instructing the jury on perfect and imperfect self-
defense, the trial court gave the following instruction based on
CALCRIM No. 3471:

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 “3471. Right to Self-Defense: Mutual Combat or Initial
Aggressor
“A person who starts a fight has a right to self-defense only
if:
1. He actually and in good faith tried to stop fighting;
AND
2. He indicated, by word or by conduct, to his opponent, in
a way that a reasonable person would understand, that he
wanted to stop fighting and that he had stopped fighting.
If a defendant meets these requirements, he then had a right to
self-defense if the opponent continued to fight.”
Defendant argues that his first degree murder conviction
must be vacated because the trial court erred in giving this
instruction. Specifically, he argues that (1) there was no
evidentiary basis for finding that he was the initial aggressor,
and (2) the trial court left the words “mutual combat” in the title
of the instruction, even though the court did not instruct on
“mutual combat” as a bar to the use of self-defense.3 Neither
argument has merit.
The court did not err in giving the initial aggressor
instruction. A trial court has a duty to instruct only if
substantial evidence supports the instruction at issue. (People v.
Villanueva (2008) 169 Cal.App.4th 41, 49.) In evaluating
whether substantial evidence supports a defense, we ask whether
the evidence presented at trial, when viewed in the light most

3 Defendant argued in his opening brief that the court had
instructed on “mutual combat” but failed to define the term, but
after the People pointed out that the court had not instructed on
“mutual combat” and merely left the words “mutual combat” in
the title of the instruction, defendant backed away from his
initial argument.

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favorable to the defense, is enough for a reasonable jury to find
that the elements of the defense have been established. (People
v. Breverman (1998) 19 Cal.4th 142, 159; People v. Mentch (2008)
45 Cal.4th 274, 290.) In evaluating whether substantial evidence
supports a limitation on a defense (such as being the initial
aggressor), we view the record in the light most favorable to the
People, as we would any other issue on which the People would
be seeking an instruction. (See People v. Ross (2007) 155
Cal.App.4th 1033, 1050, citing Jackson v. Virginia (1979) 443
U.S. 307, 318-319.) Because the propriety of the “initial
aggressor” instruction turns on whether defendant “start[ed] a
fight” (CALCRIM No. 3471 [so defining the term]), we must ask:
Is there substantial evidence, when viewing the evidence in the
light most favorable to the verdict, that defendant started a fight
with Rios? There is. Defendant drove by Rios in a car, then the
car stopped, defendant got out, and defendant walked right up to
Rios with a .22-Ruger in hand. A jury could reasonably infer that
this type of aggressive approach constitutes starting a fight,
thereby warranting the initial aggressor instruction. Defendant
resists this conclusion, asserting that it is “completely unknown
what happened at the scene right before the shooting”; however,
the video shows the entire interaction, and is sufficient to support
a finding that defendant started the melee between himself and
Rios.
The court also did not err in failing to delete the words
“mutual combat” from the title of the instruction. It is
undisputed that the court did not instruct on the substance of
mutual combat as a limitation on self-defense; what we have is
superfluous language in the title that is never explained. This is
not reversible error in the absence of “affirmative evidence

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showing” that the jury somehow misused this language. (People
v. Ortiz (2012) 208 Cal.App.4th 1354, 1370; People v. Staten
(2000) 24 Cal.4th 434, 459, fn. 7 [failure to omit language from
instruction title not prejudicial error].) There is no such evidence
here. Although the prosecutor mentioned “mutual combat” in his
closing argument, it was merely to argue that it did not apply
here. Even if we were to assume that this argument somehow
put the “mutual combat” limitation before the jury despite the
absence of an instruction on it, the instruction is at most
irrelevant—and hence not prejudicial. (People v. Cross (2008) 45
Cal.4th 58, 67 [“Giving an instruction that is correct as to the law
but irrelevant or inapplicable is error . . . [but] is generally ‘“only
a technical error which does not constitute ground for
reversal.”’”].)
B. Unity of act and intent
The trial court instructed the jury with CALCRIM No. 252
as follows:
“The crimes and other allegation charged in this case
require proof of the union, or joint operation, of act and wrongful
intent.
“The following crime requires general criminal intent: felon
in possession of a firearm, as charged in Count 2. For you to find
a person guilty of this crime, that person must not only commit
the prohibited act, but must do so with wrongful intent. A person
acts with wrongful intent when he intentionally does a prohibited
act; however, it is not required that he intend to break the law.
The act required is explained in the instruction for that crime.
“The following crime and allegations require a specific
intent or mental state: murder, as charged in Count 1, and the
gun and gang allegations. For you to find a person guilty of this

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crime or to find the allegations true, that person must not only
intentionally commit the prohibited act but must do so with a
specific intent and mental state. The act and the specific intent
and mental state required are explained in the instruction for
that crime or allegations.”
Defendant argues that this instruction is defective because
the court did not list “deliberation and premeditation”—the
intent necessary to find him guilty of first degree murder—as a
“specific intent” in this instruction. This argument is without
merit. This instruction lists which “crimes” and “allegations”
require “general criminal intent” and which require “specific
intent or mental state.” The instruction properly lists “murder”
among the crimes requiring “specific intent or mental state.” The
instruction’s failure to list the various types of specific intent that
define murder (express malice and implied malice) or that
distinguish first degree murder from second degree murder (such
as premeditation and deliberation) is in no way misleading in
light of CALCRIM No. 252’s explicit entreaty that “[t]he act and
the specific intent and mental state required are explained in the
instruction for the crime or allegations.” (Italics added.) (Cf.
People v. Hill (1967) 67 Cal.2d 105, 117-119 [trial court errs when
it gives a general intent instruction when the only charged crimes
are specific intent].)
II. Bifurcation
The trial court tried the murder charge and the gang
enhancement allegation (§ 186.22, subd. (b)) in the same
proceeding. Although the court had the discretion to bifurcate
trial on the gang enhancement, defendant never asked the court
to exercise that discretion. Defendant now claims that the trial
court’s failure to bifurcate on its own is reversible error under the

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newly enacted section 1109, which requires trial courts to
bifurcate gang enhancements charged under § 186.22,
subdivision (b), “[i]f requested by the defense.” (§ 1109, subd. (a),
added by Stats. 2021, ch. 699, § 5). The People respond that
defendant has forfeited the right to claim nonbifurcation as error
by not requesting it when he could have; that section 1109 is not
retroactive; and that the failure to bifurcate was harmless
because nearly all of the evidence underlying the gang allegation
was also admissible to prove his motive—and hence his intent—
for the murder charge.
We need not decide whether there was a forfeiture, and we
need not join the fray regarding the retroactivity of section 1109
because we conclude the trial court’s failure to bifurcate was
harmless beyond a reasonable doubt. We recognize that People v.
Burgos (2022) 77 Cal.App.5th 550, 568 (Burgos) held that the
failure to bifurcate “likely constitutes ‘structural error’” that is
per se reversible because bifurcation “‘“affect[s] the framework
within which the trial proceeds,”’” but we disagree with Burgos
on this point: Every other court to consider the matter has found
that the failure to bifurcate a gang allegation can be harmless
error, at least where—as here—the question is whether the
admission of the gang-related evidence would have come in
anyway to prove issues relevant to the underlying charges.
(People v. Ramos (2022) 77 Cal.App.5th 1116, 1131-1133 [so
holding]; People v. Montano (2022) 80 Cal.App.5th 82, 108-109
[same].) Given the constitutional mandate only to reverse where
there is a “miscarriage of justice” (Cal. Const., art. VI, § 13), and
given that we are tasked here with examining the impact of the
allegedly erroneous admission of evidence on a trial (which is the

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archetypical trial error (and hence not a structural error)), we
join the emerging majority rule.
The failure to bifurcate the gang allegation in this case was
harmless (either under Chapman v. California (1967) 386 U.S.
18, 24 or People v. Watson (1956) 46 Cal.2d 818, 836-837) because
evidence of defendant’s membership in Florencia 13, its rivalry
with the 38th Street gang, the significance of the locale of the
shooting, and the fact that defendant used bullets stamped with
his gang’s initial, all would have been admitted at his trial on the
murder charge because the evidence was relevant to show his
motive for gunning down Rios in his rival gang’s territory, which
tends to prove defendant’s intent to kill, defendant’s deliberation
and premeditation, and his potential need for self-defense.
(Accord, People v. Hernandez (2004) 33 Cal.4th 1040, 1049-1050
[bifurcation unnecessary where “the evidence supporting the
gang enhancement would be admissible at a trial of guilt”].)
What is more, because defendant freely admitted that he was the
shooter, there was no danger that the jury identified him as the
shooter merely because of his gang membership. Indeed, the trial
court specifically instructed the jury that the “evidence of gang
activity” was admissible “only for the limited purposes” of
deciding defendant’s intent supporting the gang enhancement,
his motive, and his subjective belief in the need for self-defense,
and not admissible “for any other purpose.” To be sure, some
portions of the People’s gang evidence would not have come in
during defendant’s murder trial, such as the fact that other gang
members committed predicate crimes. But that evidence was far
less significant and so far removed from the main issues at
trial—whether defendant acted in self-defense and whether he
acted with premeditation and deliberation—that we are

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convinced that its admission was harmless beyond a reasonable
doubt.
III. Cumulative Error
Defendant argues that the instructional errors he asserts
as well as the failure to bifurcate cumulatively undermine his
murder conviction. Because we conclude that the trial court
committed no prejudicial error, there is no error to cumulate.
(People v. Carpenter (1999) 21 Cal.4th 1016, 1064.)
IV. Sentencing Issues
A. Firearm enhancement
At sentencing, defendant asked the trial court to exercise
its discretion to strike the 25-year-to-life firearm enhancement
entirely, or to impose either of the lesser 20-year or 10-year
enhancements available under the statute. At that time, the
Courts of Appeal were split over whether the trial court’s
discretion to strike this enhancement permitted it to impose a
lesser enhancement. In People v. Tirado (2021) 12 Cal.5th 688,
our Supreme Court clarified that trial courts do have the
discretion to impose either of the lesser firearm enhancements.
(Id. at p. 692.) Defendant urges that the trial court’s denial of his
request to strike the enhancement may have been based on the
view that it lacked the power to impose a lesser enhancement,
and that a remand is warranted to permit the court to exercise
the full range of its discretion.
Although a remand is appropriate for a trial court to
exercise its sentencing discretion when it is clear that the court
during a prior sentencing did not appreciate the full extent of its
discretion (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391),
remand is not warranted if the trial court’s statements at the
prior sentencing “clearly indicate” that it would not exercise its

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discretion any differently on remand (People v. McDaniels (2018)
22 Cal.App.5th 420, 425). That is the case here. In denying
defendant’s request to strike the firearm enhancement, the trial
court remarked that defendant’s conduct in “rid[ing] up on [Rios]”
was a “cold-blooded” “execut[ion of] an innocent person”; that
defendant committed this “execution” as part of a mission for his
gang; and that he is a “grown man” in his 30s who “wears” his
gang membership “proudly.” In the court’s view, this rendered
defendant “a danger to all humanity.” The court concluded that
it did “not find that it would be in the interest of justice in any
way, shape, or form . . . to exercise its discretion to strike” the
firearm enhancement. These comments constitute a clear
indication that the result of any remand to give the trial court a
chance to reduce the 25-year enhancement to something lesser is
a foregone conclusion.
B. Challenge to restitution fine, assessments, and
direct restitution
At sentencing, the trial court imposed direct restitution in a
stipulated amount of $5,162.61; a $5,000 restitution fine; a $40
court security fee4; and a $60 criminal conviction assessment.
Although People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas)
had been on the books for nearly two years, defendant did not

4 Section 1465.8 requires a $40 court operations assessment
to be imposed on every criminal conviction. (§ 1465.8, subd. (a).)
Defendant was convicted on two counts, therefore the correct
assessment is $80, not $40. We may correct a trial court's failure
to impose a mandatory fee on appeal. (People v.
Castellanos (2009) 175 Cal.App.4th 1524, 1530.) We order the
clerk of the superior court to prepare an amended abstract of
judgment that reflects a total of $80 in court security fees.
(People v. Chan (2005) 128 Cal.App.4th 408, 425-426.)

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invoke Dueñas to ask the trial court to determine whether he had
the ability to pay any of these financial obligations. Defendant
now contends this was error.
We reject defendant’s contention for two reasons. First,
defendant forfeited the issue by failing to raise it. (People v.
Speight (2014) 227 Cal.App.4th 1229, 1248-1249.) Second, we
have held that Dueñas was wrongly decided. (People v. Hicks
(2019) 40 Cal.App.5th 320, 322, review granted Nov. 26, 2019,
S258946.) The propriety of Dueñas is currently before our
Supreme Court. Third, a remand for a hearing on ability to pay
would be futile. Dueñas does not apply to direct restitution
awards (Dueñas, supra, 30 Cal.App.5th at p. 1169 [distinguishing
restitution fines from direct restitution and clarifying that direct
restitution was “not at issue”]; People v. Allen (2019) 41
Cal.App.5th 312, 326), so the full amount defendant must pay is
$5,140. A defendant's ability to pay includes “the defendant's
ability to obtain prison wages and to earn money after his release
from custody.” (People v. Hennessey (1995) 37 Cal.App.4th 1830,
1837; People v. Gentry (1994) 28 Cal.App.4th 1374, 1376-1377.)
Prisoners earn wages of at least $12 per month. (Cal. Code
Regs., tit. 15, § 3041.2, subd. (a); Cal. Dept. of Corrections,
Operations Manual, §§ 51120.6, 51121.10 (Jan. 1, 2020).) At
even this minimum rate, defendant will have enough to pay the
$5,140 he owes after 429 months (that is, 35 years and 9 months),
which is long before his 50-year sentence would end. Even if
defendant does not voluntarily use his wages to pay the amounts
due, the state may garnish between 20 and 50 percent of those
wages to pay the restitution fine. (§ 2085.5, subds. (a) & (c);
People v. Ellis (2019) 31 Cal.App.5th 1090, 1093.) Because
defendant “points to no evidence in the record supporting his

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inability to pay” (People v. Gamache (2010) 48 Cal.4th 347, 409),
and hence no evidence that he would suffer any consequence for
nonpayment, a remand on this issue would serve no purpose.
C. Sentence for being a felon in possession
The trial court imposed a high-term sentence of three years
for the felon-in-possession count. Although this was appropriate
at the time, our Legislature has since enacted Senate Bill No.
567, which requires imposition of the middle-term sentence
unless the trial court cites circumstances in aggravation (other
than certified records of the defendant’s prior convictions) that
are found by a jury or admitted by the defendant. (§ 1170, subd.
(b)(3).) Because this ameliorative law applies to nonfinal
sentences, and because the trial court (understandably) did not
articulate any circumstances in aggravation, the trial court’s
high-term sentence must be vacated so that defendant may be
resentenced in accordance with Senate Bill No. 567’s terms.
(People v. Jones (2022) 79 Cal.App.5th 37, 44; People v. Garcia
(2022) 76 Cal.App.5th 887, 902.)
D. Gang enhancement and gang-related firearm
enhancement
The firearm enhancement the trial court imposed was
based on defendant’s personal discharge of a firearm. Although
the jury also found true the gang enhancement as well as the
gang-related firearm enhancement based on a principal’s
discharge of a firearm, the trial court did not factor the latter two
enhancements into defendant’s sentence, and instead dismissed
them without prejudice. In supplemental briefing, defendant
argues that this was error and that in light of statutory changes
to the gang enhancement, the trial court was obligated to dismiss
those enhancements with prejudice. Specifically, defendant

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argues that a recent decision by our Supreme Court, People v.
Renteria (2022) 13 Cal.5th 951 (Renteria) more specifically
defined how to apply the gang enhancement when the defendant
is a “lone actor”; that defendant was a “lone actor” in this case;
that the evidence adduced at trial does not constitute substantial
evidence of the elements of the gang enhancement under
Renteria’s “lone actor” standard; and that the People are
accordingly barred from retrying defendant on these
enhancements, thereby necessitating that they be dismissed
without prejudice.
We are not persuaded.
To begin, this is not a “lone actor” case. Renteria involved a
gang member defendant who fired off two gunshots at two houses
in a neighborhood. (Renteria, supra, 13 Cal.5th 951, 957-958.)
No other gang members were involved at all. Thus, he was a
“lone actor.” Defendant was not a lone actor. Instead, he had a
cohort who was also a gang member. That cohort drove him into
rival gang territory, pulled the car over, waited for defendant,
and then drove off after defendant emptied his gun into Rios.
Defendant resists this conclusion, arguing that Hernandez’s
acquittal somehow means defendant was a lone actor. But
Hernandez’s acquittal of murder does not mean that the
undisputed evidence of Hernandez’s gang membership or his
conduct in this case somehow ceases to exist. Defendant
responds that Hernandez’s acquittal necessarily relies on the
jury’s rejection of his gang membership or what he did. Given
that the jury’s verdict was a general verdict, we cannot draw the
inference defendant urges as the acquittal could—and most likely
did—rest on Hernandez’s lack of murderous intent. (United
States v. Watts (1997) 519 U.S. 148, 155 [unless specific findings

15
are made, “the jury cannot be said to have ‘necessarily rejected’
any facts when it returns a general verdict of not guilty”]; In re
Coley (2012) 55 Cal.4th 524, 554 [acquittal “does not constitute a
finding that the defendant is factually innocent of the offense or
establish that any or all of the specific elements of the offense are
not true”], original italics.)
And even if we were to ignore all of these facts and treat
this case as a “lone actor” fact pattern, there is still more than
substantial evidence that defendant acted with the intent to
benefit his gang and engaged in conduct that benefited his gang.
Defendant urges that there is no evidence he “intended his
actions to be attributed to his gang” or “identified himself or his
gang during the shooting or took credit for it on behalf of his gang
afterwards.” But the record is to the contrary. Defendant drove
into his rival gang’s territory, accosted someone walking along
the street in view of anyone who happened to walk by, and
without provocation shot him dead using bullets stamped with
his gang’s initial. From this conduct, a jury could reasonably
infer that defendant was on a “gang” mission to intimidate his
rival gang by entering its territory and committing an act of
violence as a warning, leaving the gang-initial-stamped bullets as
a calling card. This is not like Renteria, where the defendant—
who happened to be a gang member—shot at two random houses.

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 DISPOSITION
The judgment of conviction is affirmed. The matter is
remanded for a new sentencing hearing to allow the superior
court the opportunity to resentence in accordance with Senate
Bill No. 567. Following resentencing, the superior court is
directed to prepare and transmit an abstract of judgment to the
Department of Corrections and Rehabilitation, which shall
include $80 in court security fees (rather than $40).
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.
HOFFSTADT

We concur:

_________________________, P. J.
LUI

_________________________, J.
ASHMANN-GERST

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