People v. Mendez CA2/8

Filed 2/15/23 P. v. Mendez CA2/8
Opinion following transfer from Supreme Court
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B305404

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA146527)
v.

MARTIN ESAI MENDEZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County. H. Clay Jacke, II, Judge. Affirmed in part;
reversed in part and remanded with directions.
John Steinberg, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General,
Lance E. Winters, Chief Assistant Attorney General, Susan
Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and
Idan Ivri, Deputy Attorneys General, for Plaintiff and
Respondent.
 **********
Defendant and appellant Martin Esai Mendez appeals from
his conviction for first degree murder arising from the shooting
death of Daniel Infante. He contends the trial court made
prejudicial evidentiary rulings admitting propensity evidence and
that his first degree murder conviction and the true finding on
the gang enhancement are not supported by substantial evidence.
In our original unpublished decision filed March 30, 2021,
we affirmed defendant’s conviction in its entirety.
Defendant sought and was granted review in the Supreme
Court. While his petition was pending in the Supreme Court,
Assembly Bill 333 was passed (2021–2022 Reg. Sess.), amending,
among other things, Penal Code section 186.22. The
amendments became effective January 1, 2022. (Stats. 2021,
ch. 699, §§ 3, 4, 5.) The Supreme Court also issued its decision in
People v. Renteria (2022) 13 Cal.5th 951 (Renteria).
On November 16, 2022, the Supreme Court transferred the
case to us with directions to vacate our decision and reconsider
the cause in light of Renteria and the passage of Assembly
Bill 333. The parties filed supplemental briefing.
Having vacated our prior decision and reconsidered the
matter in light of Renteria and the new legislation, we now
reverse the true findings on the gang allegations and the
enhancements imposed at sentencing. We otherwise affirm
defendant’s judgment of conviction and remand to the trial court
for further proceedings consistent with this opinion.
PROCEDURAL BACKGROUND
Defendant was charged by information with murder (Pen.
Code, § 187, subd. (a); count 1), possession of a firearm by a felon
(§ 29800, subd. (a)(1); count 2), and possession of an assault

2
weapon (§ 30605, subd. (a); count 3). Firearm use allegations
were alleged as to count 1 pursuant to section 12022.53,
subdivisions (b) through (e)(1). Gang allegations were pled as to
all three counts (§ 186.22, subd. (b)). In addition to two prison
prior allegations (§ 667.5, subd. (b)), it was also alleged defendant
had suffered a prior conviction that qualified as a serious or
violent felony within the meaning of section 667,
subdivision (a)(1) and as a strike prior (§§ 667, subds. (b)–(j),
1170.12). (Lillian Romero was alleged as a codefendant on the
assault weapon charge and as an accessory after the fact. She is
not a party to this appeal.)
The case was tried to a jury in August 2019. The jury
found defendant guilty as charged. In a separate proceeding, the
court found true the prior conviction allegations. The court then
sentenced defendant to 25 years to life on count 1, doubled due to
the strike prior, for a total sentence of 50 years to life. The court
exercised its discretion to strike the firearm enhancement and
the five-year prior. As to counts 2 and 3, the court struck the
strike prior and imposed concurrent middle terms of two years,
plus three years for the gang enhancement on both counts. The
court awarded defendant 566 days of presentence custody credits
and imposed fines and fees, staying both the restitution fine and
the parole revocation fine.
FACTUAL SUMMARY
Anthony S. testified he was hanging out at Cesar Chavez
Park on the morning of July 10, 2018, when his friend Daniel
Infante arrived. Mr. Infante was homeless and often stayed in
the park. Marisol Salazar, another friend of Anthony’s, was also
at the park that morning, as was another mutual friend, Joel S.
When Mr. Infante arrived, Ms. Salazar, who was living in her car

3
at the time, was sorting recyclable materials. Mr. Infante
remained nearby but was mainly keeping to himself.
At some point, Jocelyn M. arrived and began speaking to
Ms. Salazar. Anthony knew she was close with Ms. Salazar and
he often saw them at the park together. Jocelyn was dating
Ms. Salazar’s son. Ms. Salazar considered Jocelyn to be her
daughter-in-law. Ms. Salazar’s son was a member of defendant’s
gang, Barrio Los Padrinos. (Ms. Salazar had sustained a
criminal conviction related to her role in hiding a firearm used by
her son in a previous shooting.)
Anthony saw defendant arrive at the park in a red Camaro.
Defendant got out and approached Ms. Salazar who,
unbeknownst to Anthony, was defendant’s cousin. Ms. Salazar
chatted briefly with defendant and then she turned and pointed
at Mr. Infante.
Defendant approached Mr. Infante and asked him where he
was from. Mr. Infante said he was from nowhere, that he was a
“paisa,” meaning someone who is not a gang member.
Mr. Infante asked Ms. Salazar how she knew defendant, and
Ms. Salazar said he was her cousin. Defendant then patted down
the outside of Mr. Infante’s pants pockets, looking for weapons
and finding none. Mr. Infante sarcastically gestured toward his
groin and told defendant to grab him there.
Defendant asked Mr. Infante if he had any drugs.
Mr. Infante gave defendant some methamphetamine, and
defendant inhaled it. (The record also indicates they may have
been smoking marijuana. Anthony recalled they were drinking
beer.)
Ms. Salazar stepped away to focus on her recyclables, and
Jocelyn joined her. As Ms. Salazar and Jocelyn were talking,

4
Jocelyn said Mr. Infante was still bothering her as he had been
for months and asking her out on dates. Ms. Salazar called
Mr. Infante over to her and told him to leave Jocelyn alone.
Defendant, who was within earshot, then intervened, telling
Mr. Infante to stop bothering Jocelyn. Defendant told him not to
“mess with [his] family” or they were “going to have problems.”
Anthony testified defendant seemed upset. Anthony was aware
that Mr. Infante had previously had some interactions in the
park with Jocelyn. Mr. Infante seemed unafraid and remained
disrespectful toward defendant, saying only something to the
effect that if Jocelyn did not want to talk to him that was okay.
Defendant told Mr. Infante to “get the fuck out” of the park,
“it’s our park.” Mr. Infante did not leave. Defendant pulled a
handgun from his pocket, pointed it at Mr. Infante, and then
dropped his arm back down at his side. Mr. Infante said, “If
you’re going to shoot, shoot. If you have the balls, shoot.”
Defendant again pointed his gun at Mr. Infante and shot him in
the chest.
Defendant fled the park in his car. Mr. Infante started to
walk away and then collapsed by the fence. Ms. Salazar cried out
to Joel S. to call 911.
Anthony testified that prior to the shooting, he felt there
were “bad vibes” so he walked away and did not see the actual
shooting. Not long after, Anthony heard the gunshot.
Jocelyn testified she did not remember the events of that
morning except that she heard an argument and then a gunshot.
She testified she had been acquainted with Mr. Infante for about
a year, during which he had made repeated sexual advances
toward her. Before the day of the shooting, Jocelyn had told
Ms. Salazar about Mr. Infante’s advances, and Ms. Salazar had

5
told her to stay away from him. Jocelyn also knew Ms. Salazar
had told Mr. Infante to leave her alone. It was common
knowledge among Jocelyn’s friends and family that Mr. Infante
was “fixated on [her]” or “in love with her.”
Deputy Sheriff Carlos Feria reported to the park with his
partner in response to the 911 call. They were nearby in their
patrol car so it took them only a few minutes to arrive at the
park. They found Mr. Infante laying on the ground with a
gunshot wound to his chest. He was having difficulty breathing
and talking. Mr. Infante told Deputy Feria he had been shot by a
bald, male Hispanic who was shirtless and driving a red Camaro
with large rims. Mr. Infante said “he had ongoing issues” with
the shooter who was a member of the Barrios Los Padrinos gang.
Joel reported that, before the shooting, he had seen
Mr. Infante in an apparent argument with a bald Hispanic man
who was shirtless.
Deputy Feria’s partner broadcast the description of the
shooting suspect and the car. Within a few minutes of hearing
the broadcast, Deputy Daniel Ruiz and his partner saw defendant
driving a red Camaro not far from the park. They pulled him
over and detained him. Defendant was shirtless, wearing only
black shorts, and “sweating a lot.” The license plates for the car
were covered with paper “plates” bearing a dealership logo.
Joel S. was taken to the location where defendant was
being detained for a field identification. He identified defendant
as the man who had been arguing with Mr. Infante. At trial, Joel
S. testified he did not see the shooter’s face and could not identify
him.
Paramedics arrived and took Mr. Infante to the hospital
where he died a short time later. An autopsy confirmed he died

6
from a gunshot wound to the chest. There was “stippling” around
the entrance wound which indicated the barrel of the gun was
within two feet of his chest when it was fired. A nine-millimeter
bullet was recovered from his body.
Several recorded jail phone calls between defendant and his
girlfriend (codefendant Romero) were admitted into evidence.
During the calls, defendant told Romero numerous times to get
rid of or sell the “big one” and the “little one” or similar phrases
believed by the investigating detectives to be references to
firearms. Defendant also repeatedly told Romero to get Kevin
Osuna or “Easy” to help her. In one call, defendant said “Easy
has the other two . . . . [¶] . . . [¶] . . . You know which two,
right? [¶] . . . [¶] . . . . The one I always keep on me; sell that
one.” Another time defendant told Romero that someone named
Flat Head “wants the one Easy has, not the one I always carry,
the other one.” They also discussed “the one” that was at
Romero’s house.
The murder weapon was never found.
Defendant’s cell phone was recovered from his car.
Photographs downloaded from that phone depicted defendant
with Kevin Osuna (Easy) in Osuna’s garage. Defendant was
holding a handgun in one of the photographs. A sign in the
garage referenced Barrio Los Padrinos.
Security video obtained from businesses located near the
park showed portions of the incident, including a red Camaro
entering and leaving the parking lot, a man wearing black shorts
talking to Mr. Infante near a picnic table, and Mr. Infante
grabbing his stomach and trying to run away.
A search was conducted at defendant’s home and a nine-
millimeter live round was found under the cushions of the couch

7
where defendant’s brother said defendant usually slept.
Amanda Davis, a senior criminalist and expert in firearms
identification for the sheriff’s department, testified the bullet
recovered from Mr. Infante’s body was from a nine-millimeter
handgun. She also reviewed the photograph of defendant holding
a gun downloaded from his phone and opined it was consistent in
appearance with a nine-millimeter handgun. She conceded she
could not be certain from just viewing the photograph that it was
a nine-millimeter handgun.
Evidence was presented that in January 2012, defendant
admitted being a member of the Barrio Los Padrinos gang during
a traffic stop. The deputy who completed the field identification
card also noted defendant’s gang moniker was “Little Loc” and
noted his gang tattoos. Defendant again self-admitted his gang
membership during a consensual pedestrian stop in 2014 with a
different officer.
Detective Michael Haggerty testified as the prosecution’s
gang expert. He discussed the history and primary activities of
the Barrio Los Padrinos gang and its claimed territory. The park
where the shooting occurred was adjacent to their territory.
Detective Haggerty described defendant’s gang-related tattoos,
including one on his arm resembling the Major League Baseball
logo but with the player holding a rifle instead of a baseball bat
indicating defendant held himself out as a “major league gunner.”
Detective Haggerty authenticated the two predicate criminal acts
committed by two Barrio Los Padrinos members and discussed
gang lifestyle generally. Detective Haggerty explained that
respect and fear are important in gang culture. Gangs engage in
violent acts to maintain their reputation and territory and to

8
instill fear in the community and discourage individuals from
reporting their activities or cooperating with law enforcement.
Significantly, with respect to the shooting in this case,
Detective Haggerty testified he had reviewed a report that prior
to the shooting, defendant had received a phone call from
someone in custody telling defendant that a fellow gang
member’s girlfriend was being harassed.
When asked a hypothetical based on the facts of the
shooting, Detective Haggerty stated his opinion that the murder
of an individual who had been harassing a fellow gang member’s
girlfriend would have been committed for the benefit of the gang.
He said it was not unusual that before the shooting, defendant
used drugs with the victim, as that was a “common tactic” of
getting a person to lower their guard.
During her trial testimony, Ms. Salazar admitted she did
not want to testify and confirmed that after she received the
subpoena to appear at trial, members of the Barrio Los Padrinos
gang confronted her and told her not to go to court. Joel S. also
admitted during his testimony that he did not want to be labeled
a snitch and that having to testify in court made him worried for
his family.
Defendant did not present any witnesses.
DISCUSSION
Renteria and Assembly Bill 333 do not affect our original
analysis and conclusions regarding defendant’s claimed
evidentiary error and the lack of substantial evidence supporting
his first degree murder conviction. We again reject those
contentions, incorporating our original discussion of those issues
without change. However, we agree with the parties that the
true findings on the gang allegations and the sentence

9
enhancements imposed pursuant to Penal Code section 186.22
must be reversed in light of the passage of Assembly Bill 333.
1. The Evidentiary Rulings
Defendant contends the trial court committed prejudicial
evidentiary errors that violated his rights to due process and a
fair trial. He says the court should have precluded the recorded
jail phone call in which he admitted a prior murder and the
photograph of him holding a handgun because both were
improper propensity evidence.
We review the admission of evidence under Evidence Code
section 1101 and section 352 under the deferential abuse of
discretion standard. (People v. Foster (2010) 50 Cal.4th 1301,
1328 (Foster).) Moreover, our Supreme Court has rejected efforts
to inflate “garden-variety evidentiary questions into
constitutional ones.” (People v. Boyette (2002) 29 Cal.4th 381,
427; see id. at pp. 427–428 [only when evidentiary error results in
the complete preclusion of a defense does possible due process
violation occur]; accord, People v. Bacon (2010) 50 Cal.4th 1082,
1104, fn. 4.) We find no evidentiary errors, nor any constitutional
violations in the court’s rulings on this evidence.
a. Admission of the jail phone call
The prosecution sought to introduce a recording of a jail
phone call between defendant, codefendant Romero and Kevin
Osuna (Easy), during which defendant said, “I’ll kill another
motherfucker. Nah. It ain’t the first and it won’t be the last.”
(The actual statements by defendant during the phone call were a
mix of both Spanish and English and this was the agreed-upon
translation presented to the jury.)
During a hearing pursuant to Evidence Code section 402,
defendant objected, arguing the statement could be viewed by the

10
jury as an admission by defendant that he had previously killed
someone (“It ain’t the first”). The prosecutor argued it was
relevant to show defendant intended to kill Mr. Infante.
Defendant’s statement showed a cavalier attitude about killing in
contrast to defendant’s defense that the shooting was unintended
and rash. It was the prosecution’s burden to prove the shooting
was premeditated and not the result of an accidental shooting or
a shooting in the heat of passion aroused by Mr. Infante’s
disrespect after defendant told him to stop harassing the
girlfriend of a fellow gang member and to leave the park. The
prosecutor also argued the statement was relevant to the gang
allegation because defendant was telling Easy he was willing to
put in work to gain respect.
The court overruled defendant’s objection. Defendant
argued that if the statement was to be admitted, then the entire
conversation should be admitted for context, to show defendant
was just “using bravado” when speaking with Easy. The court
allowed the entire conversation to be admitted with some
redactions.
We find no abuse of discretion by the trial court in
admitting the statement. As relevant here, Evidence Code
section 1101, subdivision (b) provides that “[n]othing in this
section prohibits the admission of evidence that a person
committed a crime, civil wrong, or other act when relevant to
prove some fact (such as motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake or accident.” “ ‘The
least degree of similarity (between the uncharged act and the
charged offense) is required in order to prove intent. [Citation.]
. . . . In order to be admissible to prove intent, the uncharged
conduct must be sufficiently similar to support the inference that

11
the defendant “ ‘probably harbor[ed] the same intent in each
instance.’ ” ’ ” (Foster, supra, 50 Cal.4th at p. 1328.)
The statement was more probative than prejudicial. There
were no details presented about the prior killing that would have
inflamed the passions of the jury against defendant, confused the
jury or resulted in an undue consumption of time. The statement
was brief and highly probative of defendant’s intent at the time of
the charged offense.
b. Admission of the photograph
Defendant also argues the court erred in admitting the
photograph of him holding a handgun. The photograph was
downloaded from defendant’s cell phone and showed him at
Easy’s home holding a handgun. Ms. Davis, the firearms expert,
testified that while she could not be certain just from the
photograph, it was her opinion the gun looked like a nine-
millimeter handgun. Defendant says there was no evidence it
was the murder weapon and it was therefore irrelevant and
prejudicial. Over defendant’s objection, the court ruled the
photograph was admissible, as was the opinion of Ms. Davis
about what type of handgun defendant was holding in the
photograph. We find no error.
There was substantial evidence that defendant kept and
used guns apart from the photograph. The victim was fatally
shot with a nine-millimeter handgun, a nine-millimeter live
round was found under the cushions of the couch on which
defendant slept, and in recorded jail phone calls defendant told
his girlfriend to ask Easy to help her get rid of guns kept at her
home and at Easy’s home and to sell “the one I always carry.”
The prosecutor did not introduce the photograph to portray
defendant as a bad character who possessed guns, but to prove he

12
was in possession of and had access to a gun of the same type as
the murder weapon.
The trial court did not abuse its discretion in admitting the
photograph or Ms. Davis’s testimony. Defendant was free to
argue Ms. Davis’s lack of certainty as to whether the handgun
was in fact a nine-millimeter and the reasonableness of the
prosecution’s assertion that it was the murder weapon. It was for
the jury to decide the weight to give this circumstantial evidence
and it was not error to allow the jury to consider it. (People v.
Sanchez (2019) 7 Cal.5th 14, 56 [“Evidence that shortly before the
murders defendant possessed a firearm that could have been the
murder weapon was similarly relevant and admissible as
circumstantial evidence that he committed the murders . . . .
[W]e see no abuse of discretion in not excluding the evidence as
unduly prejudicial under Evidence Code section 352.”]; accord,
People v. Carpenter (1999) 21 Cal.4th 1016, 1052.)
Because neither the jail phone call nor the photograph was
admitted in error, there is no merit to defendant’s cumulative
prejudice argument.
2. First Degree Murder
In resolving a question of substantial evidence in a criminal
case, our role “is a limited one.” (People v. Ochoa (1993) 6 Cal.4th
1199, 1206.) “The proper test for determining a claim of
insufficiency of evidence in a criminal case is whether, on the
entire record, a rational trier of fact could find the defendant
guilty beyond a reasonable doubt.” (People v. Jones (1990)
51 Cal.3d 294, 314.) “[W]e must view the evidence in the light
most favorable to the People and must presume in support of the
judgment the existence of every fact the trier could reasonably
deduce from the evidence.” (Ibid.) We do not resolve credibility

13
issues or conflicts in the evidence. “[I]f the verdict is supported
by substantial evidence, we must accord due deference to the
trier of fact.” (Ibid.)
Defendant argues the evidence at best shows an impulsive
shooting in the heat of the moment, but no premeditation. He
says there is no evidence he knew the victim or knew he would be
in the park that morning. He contends the evidence shows only
that he overheard a conversation his cousin Ms. Salazar was
having about Mr. Infante harassing Jocelyn, that he argued with
Mr. Infante about the harassment, and then shot him in response
to a taunt from Mr. Infante. Defendant argues the fact the
shooting occurred in broad daylight in front of people who could
readily identify him also demonstrates the rash nature of the
shooting.
In assessing the evidence in support of a premeditation
finding, we are guided by People v. Anderson (1968) 70 Cal.2d 15
and its progeny. Anderson identified three categories of evidence
that may be helpful in reviewing the sufficiency of evidence
supporting a first degree murder verdict: “planning activity,
preexisting motive, and manner of killing.” (People v. Mendoza
(2011) 52 Cal.4th 1056, 1069 (Mendoza), citing Anderson, at
pp. 26–27.) Since Anderson, the Supreme Court has repeatedly
made clear that “[t]hese three categories are merely a framework
for appellate review; they need not be present in some special
combination or afforded special weight, nor are they exhaustive.”
(People v. Booker (2011) 51 Cal.4th 141, 173; accord, Mendoza, at
p. 1069 & People v. Manriquez (2005) 37 Cal.4th 547, 577
(Manriquez).)
Here, there was evidence of premeditation and planning
activity. (See, e.g., People v. Marks (2003) 31 Cal.4th 197, 230

14
[sufficient evidence of premeditation where the defendant
ordered another individual out of the car before confronting and
shooting the victim at close range with no evidence of provocation
or struggle].) Defendant arrived at the park carrying a handgun
concealed in his clothing. Anthony saw defendant speak with
Ms. Salazar who then pointed at Mr. Infante, raising an inference
defendant came to the park specifically to find and confront
Mr. Infante. Defendant spoke to Mr. Infante and patted him
down to verify he was not armed. Defendant then told
Mr. Infante to stop messing with his family and to stop harassing
Jocelyn. Defendant yelled and cursed at Mr. Infante to get out of
the park. When Mr. Infante did not leave, defendant pointed his
gun directly at him. When Mr. Infante told him to go ahead and
shoot, defendant shot him at close range in the chest.
The relatively short timeframe in which the crucial events
occurred is not dispositive. The Supreme Court has repeatedly
emphasized that “ ‘[t]he process of premeditation and
deliberation does not require any extended period of time.’ ”
(Manriquez, supra, 37 Cal.4th at p. 577.) “ ‘ “ ‘Premeditation and
deliberation can occur in a brief interval. “The test is not time,
but reflection. ‘Thoughts may follow each other with great
rapidity and cold, calculated judgment may be arrived at
quickly.’ ” ’ ” ’ ” (Mendoza, supra, 52 Cal.4th at p. 1069; accord,
People v. Brito (1991) 232 Cal.App.3d 316, 323–324 [fact that the
defendant made decision, within a matter of a few seconds, to
shoot fleeing victim in back did not defeat finding of
deliberation].)
In addition to premeditation and planning, there was
evidence of a preexisting motive, that Mr. Infante had been
harassing the girlfriend of a member of defendant’s gang.

15
 The shooting at close range in a vital area of Mr. Infante’s
body—in the chest—is further evidence of premeditation. The
fatal shooting left stippling around the entrance wound
indicating the barrel of defendant’s gun was no further than
two feet from Mr. Infante. (People v. Caro (1988) 46 Cal.3d 1035,
1050 [“a close-range gunshot to the face is arguably sufficiently
‘particular and exacting’ to permit an inference that defendant
was acting according to a preconceived design”]; Manriquez,
supra, 37 Cal.4th at pp. 578–579 [evidence the defendant armed
himself with a concealed weapon, confronted the victim, and fired
several shots into his chest was sufficient to support first degree
murder].)
We find substantial evidence supports the jury’s
premeditation finding. Defendant’s argument ignores most of
this evidence and invites us to reweigh the evidence and the
credibility determinations made by the jury. We decline to do so.
3. The Gang Allegation and Enhancements
In supplemental briefing, defendant requests that all gang
enhancements be reversed. The People concede the amendments
to Penal Code section 186.22 are retroactive and that the true
findings on the gang allegations and the enhancements imposed
at sentencing must be reversed. We agree.
In Renteria, the Supreme Court acknowledged that
Assembly Bill 333 “narrowed the scope” of the enhancement
provisions of Penal Code section 186.22, subdivision (b).
(Renteria, supra, 13 Cal.5th at p. 961.) Indeed, the amendments
to section 186.22 increase the evidentiary showing needed to
support a true finding and imposition of a sentencing
enhancement. Assembly Bill 333 changed, among other things,
the definition of “pattern of criminal gang activity” specifying the

16
benefit to the gang must be more than reputational, and
eliminated certain crimes like looting and felony vandalism as
qualifying predicate offenses. (Stats. 2021, ch. 699, §§ 3, 4.)
The amendments to Penal Code section 186.22 apply
retroactively to defendant whose conviction is not yet final.
(People v. Delgado (2022) 74 Cal.App.5th 1067, 1087
[amendments to § 186.22 that became effective Jan. 1, 2022,
apply retroactively to nonfinal cases under rule of In re Estrada];
see also In re Estrada (1965) 63 Cal.2d 740, 742–748; People v.
Vieira (2005) 35 Cal.4th 264, 305–306 [“a defendant generally is
entitled to benefit from amendments that become effective while
his case is on appeal”].)
Accordingly, the true findings on the gang enhancements
on all counts and the gang enhancements imposed at sentencing
are reversed. On remand, the prosecution shall have the
opportunity to retry the gang allegations under the amended
requirements of Penal Code section 186.22.
DISPOSITION
The true findings on the gang allegation and the sentence
enhancements imposed pursuant to Penal Code section 186.22 as
to all three counts are reversed. The judgment of conviction is
affirmed in all other respects. The case is remanded for further
proceedings consistent with this opinion.

GRIMES, J.
WE CONCUR:

STRATTON, P. J. WILEY, J.

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