People v. Johnson CA3

Filed 3/12/24 P. v. Johnson CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(San Joaquin)
----

THE PEOPLE, C097856

Plaintiff and Respondent, (Super. Ct. No. STK-CR-FE-
2017-0015416)
v.

BRIAN KEITH JOHNSON, JR.,

Defendant and Appellant.

Defendant Brian Keith Johnson, Jr., appeals from his conviction for, among other
crimes, active participation in a criminal street gang. (Pen. Code, § 186.22, subd. (a)
[gang participation].)1 He raises multiple claims on appeal, including: (1) insufficient
evidence supports his conviction for gang participation because the jury did not find him
guilty of certain other counts; (2) as a result of changes made to Penal Code section

1 Further undesignated statutory references are to the Penal Code.

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186.22 by the enactment of Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Stats. 2021,
ch. 699, § 3) (Assembly Bill No. 333), his gang participation conviction must be reversed
and dismissed; (3) reversal of several other counts of conviction is required pursuant to
Penal Code section 1109, which was also added by Assembly Bill No. 333 and requires
gang participation offenses to be tried separately from other counts not requiring gang
evidence; (4) remand is required to allow the trial court to reconsider the admissibility of
screenshots from a rap music video in light of newly enacted Evidence Code section
352.2, which provides for additional procedures and requires courts to consider additional
factors before admitting evidence of creative expression; and (5) the trial court committed
instructional error by requiring trial counsel to revise a slide used during closing
argument to delete a definition of reasonable doubt as requiring “near certainty.”
We agree that changes made to section 186.22 by Assembly Bill No. 333 require
reversal of the gang participation conviction, although we will remand to the trial court to
provide the prosecution with the opportunity to retry defendant on that count. We
conclude the remainder of defendant’s claims lack merit.
FACTS AND PROCEEDINGS
The Shooting
DeAngelo Montgomery and T.J. had a child in common, but the two did not get
along well. In December 2016, T.J. was in a relationship with E.W., who was staying
with T.J. and her family.
Montgomery had previously threatened T.J. and men she dated, including E.W.
Montgomery came to T.J.’s house looking for E.W. in November 2016, and Montgomery
had sent T.J. a Facebook message asking E.W. to “come outside.”2 Montgomery asked

2 The People’s gang expert testified that the phrase “come outside” is a way to publicly
shame another person or to show disrespect.

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where E.W. lived, but T.J. refused to tell him because she feared Montgomery would
harm E.W. T.J. had seen pictures of Montgomery with guns on social media sites.
At around 8:30 p.m. on December 21, 2016, E.W. was shot while sitting on T.J.’s
bed with his back facing an open window. T.J. called 911 and told the operator that
Montgomery shot E.W. The following day, T.J. told E.W. that Montgomery shot him.
During a law enforcement interview, T.J. said the shooter was wearing a hoodie, she saw
the gun, and the shooter was “Black.” However, T.J. testified at trial that she did not see
the shooter.
A friend of Montgomery’s told a detective that she had seen defendant near the
scene of the shooting that evening, although she testified at trial that she had seen
defendant near the scene of the shooting only earlier that day.
After his arrest, Montgomery wrote a letter to T.J. stating that defendant shot E.W.
T.J. took a picture of the letter and E.W. messaged it to defendant’s Facebook account.
Cellphone records reflected that defendant’s and Montgomery’s cell phones
communicated multiple times before and after the shooting. The two cell phones
exchanged calls and text messages between approximately 7:36 and 7:53 p.m., including
a 67-second call at 7:53 p.m. Communication between the two phones resumed at 9:51
p.m., when a call from defendant’s phone to Montgomery’s lasted over three minutes.
Cell phone location data indicated that defendant’s cell phone was near the scene at the
time of the shooting.
Defendant’s Arrest
On November 20, 2017, Stockton Police Department Officer Joshua Day
responded to a report of drug sales in Stockton and participated in defendant’s arrest. As
Day approached defendant, he saw a 30-round extended magazine for a Glock pistol in
defendant’s pants pocket. Defendant ran away when Day reached for the magazine, and
another officer took him to the ground, where defendant struggled until other officers
assisted. After defendant was apprehended, officers saw a Smith and Wesson .40-caliber

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firearm on the ground near him. In a subsequent interview, defendant stated that he
found the gun and the magazine, and he picked them up because he thought “it would be
cool to have a gun.” A backpack defendant wore at the time of his arrest contained a
digital scale and a baggy of marijuana weighing approximately two ounces.
Gang Evidence
Stockton Police Detective Kevin Knall testified as the prosecution’s expert on
African-American criminal street gangs. The Stockton Police Department documented
the Conway Crips as a gang in 1989 and revalidated the gang as the Conway Gangsters in
2015. In Knall’s opinion, the Conway Gangsters were an ongoing association of three or
more persons sharing a common name or common identifying sign or symbol. (See
former § 186.22, subd. (f) [defining criminal street gang at the time of trial in part as “any
ongoing organization, association, or group of three or more persons . . . having a
common name or common identifying sign or symbol”].)
Knall testified about African-American gang culture: “[G]ang culture largely is
based on fear, respect, and power. So along those lines, everything they do, pretty much
is aimed at achieving the respect of their peers, and that’s based actually on fear.” Gang
members must respond to perceived insults to their reputation “because a gang member is
preoccupied with maintaining their status.” If a person falsely claimed to be a member of
a gang, a gang member would confront that person; if the person claimed membership
without the gang’s permission, violence would result.
The People presented screenshots from a rap music video posted on YouTube
called “All I Know is Hustle,” which was created by Conway Gangsters member Maurice
Johns, and in which multiple Conway Gangsters members appeared. The date the video
was created or posted on YouTube was not offered into evidence at trial.
Knall testified that African-American gangs used rap videos to promote the gang;
the videos depicted gang members displaying gang hand signs, singing lyrics about
crimes they have committed, and disrespecting their rivals. Displaying large amounts of

4
cash in rap videos enhanced the reputation of the gang because gang culture “has a lot to
do with attempting to secure finances and secure money,” and “[f]lashing the money is
showing how successful you have been, and the more money you have, obviously goes to
show how much control and how much effect you have on the area to control it.”
Conway Gangsters feature the location of their gang’s territory in their videos to promote
the gang and the territories it claims.
Knall testified that defendant was a member of, and active participant in, the
Conway Gangsters on December 21, 2016, the date E.W. was shot. He based that
opinion on the content of defendant’s social media accounts, which included pictures of
defendant and other Conway Gangsters members displaying hand signs related to the
gang, and references to the gang and areas it controlled. On the day before E.W. was
shot, defendant posted on his Facebook page: “They an took my nigga Jonathan now a
body what I’m craving Y’all don’t hear me cuzz I’m piercing shit can’t sit still with this
stainless.” Knall testified that Conway Gangsters member Jonathan Potter was murdered
in December 2016, and defendant’s post meant that he intended to commit murder with a
firearm. Finally, at the time of his arrest, defendant wore a sweatshirt referring to the
Conway Gangsters.
Knall opined that Conway Gangsters’ primary activities included possession of
illegal weapons, drug sales, auto theft, burglary, robbery, attempted murder, and murder.
He reached that conclusion by reviewing certified legal documents related to criminal
convictions of members of the gang. The prosecutor presented evidence of four predicate
crimes through Knall’s testimony and certified court documents to establish a pattern of
criminal gang activity as required by section 186.22 at the time of trial.
First, Montgomery had been convicted of attempted murder related to the shooting
in the current case. Knall testified that Montgomery was an active member of Conway
Gangsters at the time of his crime, based on his admission that his crime was committed
in association with, for the benefit of, or at the direction of a criminal street gang, and that

5
the rap video screenshot admitted at trial showed Montgomery wearing a shirt with a
picture of a Conway Gangsters member who had been murdered and a reference to an
area controlled by the Conway Gangsters that is known for drug sales.
Second, Maurice Johns was convicted of committing a second degree robbery on
March 21, 2012. Knall opined that Johns was a member of the Conway Gangsters based
on his appearance in the rap video screenshot, in which he was holding a large amount of
cash. Knall testified that theft crimes, including robberies, generally benefit the gang by
generating income that is shared among the gang members, which can then be used to
buy food and pay rent, to buy firearms that can be used to commit crimes, to buy
narcotics that can then be sold to generate additional income, and to create music videos
to further promote the gang. Knall did not testify about any details of the robbery and did
not testify that the robbery commonly benefitted the gang or that Johns was a Conway
Gangsters member at the time he committed the offense.
Third, Knall testified that Rodney Carroll committed the offense of being a felon
in possession of a firearm on June 20, 2015. Knall opined that Carroll was a member of
Conway Gangsters on the basis that he was making a hand gesture representing Conway
Gangsters in the rap video screenshot. Knall testified that firearms possession generally
promoted the interest of criminal street gangs because firearms are used to commit
crimes, and they are used as a show of force to potential rivals. Knall did not testify
about the details of Carroll’s crime, that the crime commonly benefitted the gang, or that
Carroll was a gang member at the time of his crime.
Fourth, Knall testified that Apondo White committed the offense of carrying a
concealed firearm on a person with a prior conviction on January 31, 2014. Knall
testified that White was an active member of Conway Gangsters based on his appearance
in the rap video screenshot. Knall did not testify that the crime was gang related, or that
White was a gang member at the time of his crime.

6
 When presented with a hypothetical scenario mirroring the facts of the shooting,
Knall opined that the shooting was committed in association with and for the benefit of a
criminal street gang. He testified that crimes of violence “boost the status reputation of
an individual gang member of the community, as well as the entire gang. And by doing
that, it prevents or decreases the likelihood that in the future, somebody will challenge
them or threaten them.” He noted that it would be an affront to a gang member’s
reputation if another man slept in a home where the gang member previously lived with
the mother of the gang member’s child, and there would be an expectation that the gang
member would respond to such a situation.
Procedural Background
Defendant was charged with attempted willful, deliberate, and premeditated
murder (Pen. Code, §§ 664, 187, subd. (a); count 1); assault with a semiautomatic firearm
(id., § 245, subd. (b); count 2); assault with a firearm (id., § 245, subd. (a)(2); count 3);
carrying a loaded firearm in a public place and not being the firearm’s registered owner
(id., § 25850, subds. (a) & (c)(6); count 4); possessing a large capacity magazine (id.,
§ 32310; count 5); misdemeanor possession of marijuana for sale (Health & Saf. Code,
§ 11359, subd. (b); count 6); misdemeanor resisting a public officer (Pen. Code, § 148,
subd. (a)(1); count 7); active participation in a criminal street gang (id., § 186.22, subd.
(a); count 8); and various sentencing enhancements.
A jury found defendant guilty on counts 4, 5, 7, and 8. It failed to reach verdicts
on counts 1, 2, 3, and 6, and the court declared a mistrial as to those counts. Defendant
subsequently pleaded no contest to one count of assault by means of force likely to
produce great bodily injury (§ 245, subd. (a)(4)) as charged in an amended information.
Defendant argued in his sentencing brief that Assembly Bill No. 333 applied
retroactively and required dismissal of his conviction for gang participation. The People
initially conceded that the evidence supporting the gang participation count was
insufficient to show a pattern of criminal gang activity under the law as amended by

7
Assembly Bill No. 333, but it later retracted its concession and argued that evidence
adequately supported a finding of a pattern of gang activity. The trial court noted
defendant had not filed a motion for a new trial, and it determined that it could not
dismiss the conviction or order a retrial unless and until this court remanded the case
back to it.
Accordingly, the trial court sentenced defendant to the upper term of four years in
prison for his assault conviction, and concurrent terms of 16 months for counts 4, 5, and
8.3
Defendant timely filed notice of appeal. The case was fully briefed in December
2023, and was assigned to the current panel at the end of that month.
DISCUSSION
I
Sufficiency of the Evidence
Defendant contends insufficient evidence supported the verdict on the gang
participation count because that offense required the jury to find that he “willfully
promote[d], further[ed], or assist[ed] in felonious criminal conduct” by members of the
gang, and the jury failed to convict him on the felony counts that could have supported
such a finding. The premise of his argument is that a guilty verdict on at least one of the
other charged felonies was required to support a guilty verdict on the gang participation
count. But that premise is misplaced; as we will explain, the law requires only that

3 The trial court also orally imposed a concurrent sentence of 16 months for count 7--a
misdemeanor. That appears to have been a misstatement, based on the court’s initial
(correct) observation that the maximum sentence for count 7 was one year in county jail,
its stated intent to impose a concurrent sentence of one year for that count, and its
reiteration that it planned to impose that sentence. Further, the minute order from the
hearing reflects that the court sentenced defendant to a concurrent term of 365 days.
Because we are remanding for possible retrial on the gang participation charge and a full
resentencing, we need not and do not correct the error.

8
substantial evidence support each element of the charged offense. Thus, this argument
fails. Defendant does not separately argue that insufficient evidence supports the verdict,
and he has failed to satisfy his burden to demonstrate error.
A. Standard of Review
In determining the sufficiency of the evidence, we review the whole record in the
light most favorable to the judgment to decide whether substantial evidence supports the
conviction. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Tully (2012) 54
Cal.4th 952, 1006.) Substantial evidence is “ ‘ “evidence that is reasonable, credible, and
of solid value” ’ ” so that a jury reasonably could have found the essential elements of the
crime beyond a reasonable doubt. (Tully, at p. 1006.) We presume the existence of every
fact supporting the judgment that the jury reasonably could have deduced from the
evidence and make all reasonable inferences that support the judgment. (People v.
Dalton (2019) 7 Cal.5th 166, 243-244.) Substantial evidence includes circumstantial
evidence and the related reasonable inferences. (People v. Holt (1997) 15 Cal.4th 619,
669.)
“Perhaps the most fundamental rule of appellate law is that the judgment
challenged on appeal is presumed correct, and it is the appellant’s burden to affirmatively
demonstrate error. [Citation.] Thus, when a criminal defendant claims on appeal that his
conviction was based on insufficient evidence of one or more of the elements of the
crime of which he was convicted, we must begin with the presumption that the evidence
of those elements was sufficient, and the defendant bears the burden of convincing us
otherwise. To meet that burden, it is not enough for the defendant to simply contend,
‘without a statement or analysis of the evidence, . . . that the evidence is insufficient to
support the judgment[ ] of conviction.’ [Citation.] Rather, he must affirmatively
demonstrate that the evidence is insufficient.” (People v. Sanghera (2006) 139
Cal.App.4th 1567, 1573.)

9
 B. Analysis
Section 186.22, subdivision (a) describes a substantive offense where a person
“who actively participates in a criminal street gang with knowledge that its members
engage in, or have engaged in, a pattern of criminal gang activity,” “willfully promotes,
furthers, or assists in felonious criminal conduct by members of that gang.” Here, the
jury was instructed that “[f]elonious criminal conduct by members of the gang” referred
to the conduct charged in counts 1 through 3: “Attempted murder, assault with a firearm,
or assault with a semiautomatic firearm.” The jury failed to reach verdicts as to those
counts. Accordingly, defendant claims that because the jury did not find him guilty of
the bases of the alleged “felonious criminal conduct,” insufficient evidence supports the
finding that he willfully promoted, furthered, or assisted such felonious conduct as
required to find him guilty of the participation count.
Defendant offers no authority for the proposition that a guilty verdict on one or
more of these counts was a legal prerequisite to conviction for gang participation. A
substantive gang participation offense is not like an enhancement, which requires a guilty
finding on an underlying offense before the enhancement may be imposed. Rather, the
issue here is inconsistency, which is not fatal to guilty verdicts. (See People v. Palmer
(2001) 24 Cal.4th 856, 860.) “[I]f an acquittal of one count is factually irreconcilable
with a conviction on another, . . . effect is given to both.” (People v. Santamaria (1994) 8
Cal.4th 903, 911.) The “[justice] system accepts the possibility that ‘the jury arrived at
an inconsistent conclusion through “mistake, compromise, or lenity.” ’ ” (People v.
Guerra (2009) 176 Cal.App.4th 933, 943.) “The United States Supreme Court has
explained: ‘[A] criminal defendant . . . is afforded protection against jury irrationality or
error by the independent review of the sufficiency of the evidence undertaken by the trial
and appellate courts. This review should not be confused with the problems caused by
inconsistent verdicts. Sufficiency-of-the-evidence review involves assessment by the
courts of whether the evidence adduced at trial could support any rational determination

10
of guilty beyond a reasonable doubt. [Citations.] This review should be independent of
the jury’s determination that evidence on another count was insufficient.’ ” (People v.
Lewis (2001) 25 Cal.4th 610, 656, quoting United States v. Powell (1984) 469 U.S. 57,
67.)
Thus, the evidence supporting conviction on the gang participation count is not
insufficient merely because the jury failed to find defendant guilty of counts 1, 2, or 3.
Instead, the conviction must be upheld if there is substantial evidence in the record to
support it, independent of the jury’s findings on other counts. (See § 954 [“An acquittal
of one or more counts shall not be deemed an acquittal of any other count”].)
Aside from his argument that the evidence was insufficient on the basis that he
was not convicted of an underlying felony, with which we disagree, defendant does not
argue that the evidence is insufficient to support the verdict on the gang participation
count. Therefore, we conclude he has failed to satisfy his burden to demonstrate the
evidence is insufficient. (People v. Sanghera, supra, 139 Cal.App.4th at p. 1573.)
II
Assembly Bill No. 333
Defendant contends the trial court erred when it instructed the jury under former
section 186.22, which was amended by Assembly Bill No. 333 after his trial, requiring
reversal of his gang participation conviction. The Attorney General acknowledges that
the jury was not instructed as required following the enactment of Assembly Bill No.
333, but argues that reversal is unnecessary because there is compelling evidence that the
jury would have found defendant guilty under the current version of section 186.22. We
agree with the parties that the trial court erred, and we agree with defendant that reversal
is required.
Defendant also contends reversal of his convictions for firearm and magazine
possession and resisting arrest (counts 4, 5, and 7) is required because the trial court
erroneously denied his request for bifurcation of the gang evidence from the remaining

11
counts under section 1109, which was also added to the Penal Code by Assembly Bill
No. 333. There is a split of authority as to whether section 1109 applies retroactively to
cases not yet final on appeal, but we need not take a position on that issue in this case,
because we conclude any error here was harmless.
A. Legal Background
Section 186.22, former subdivision (f) 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.” (See Stats. 2017, ch. 561, § 179.) In turn, a “pattern of criminal
gang activity” was defined as “the commission of, attempted commission of, conspiracy
to commit, or solicitation of, sustained juvenile petition for, or conviction of” two or
more predicate offenses enumerated in section 186.22, former subdivision (e), “provided
at least one of these offenses occurred after the effective date of this [Act] and the last of
those offenses occurred within three years after a prior offense, and the offenses were
committed on separate occasions, or by two or more persons.” (People v. Valencia
(2021) 11 Cal.5th 818, 829.)
Effective January 1, 2022, Assembly Bill No. 333 made significant modifications
to the substantive and procedural requirements for establishing a gang participation
offense under section 186.22. (See People v. Tran (2022) 13 Cal.5th 1169, 1206 (Tran);
People v. E.H. (2022) 75 Cal.App.5th 467, 477-478 (E.H.); Stats. 2021 ch. 699, § 3.)
“First, it narrowed the definition of a ‘criminal street gang’ to require that any gang be an
‘ongoing, organized association or group of three or more persons.’ [Citation.] Second,
whereas section 186.22, former subdivision (f) required only that a gang’s members
‘individually or collectively engage in’ a pattern of criminal activity in order to constitute
a ‘criminal street gang,’ Assembly Bill [No.] 333 requires that any such pattern have been
‘collectively engage[d] in’ by members of the gang. [Citation.] Third, Assembly Bill
[No.] 333 also narrowed the definition of a ‘pattern of criminal activity’ by requiring that

12
(1) the last offense used to show a pattern of criminal gang activity occurred within three
years of the date that the currently charged offense is alleged to have been committed;
(2) the offenses were committed by two or more gang ‘members,’ as opposed to just
‘persons’; (3) the offenses commonly benefitted a criminal street gang; and (4) the
offenses establishing a pattern of gang activity must be ones other than the currently
charged offense. [Citation.] Fourth, Assembly Bill [No.] 333 narrowed what it means
for an offense to have commonly benefitted a street gang, requiring that any ‘common
benefit’ be ‘more than reputational.’ ” (Tran, at p. 1206.) “Examples of a common
benefit that are more than reputational may include, but are not limited to, financial gain
or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or
silencing of a potential current or previous witness or informant.” (§ 186.22, subd. (g).)
Our Supreme Court has concluded that the ameliorative benefit of Assembly Bill No.
333’s statutory amendments to section 186.22 applies to all cases not yet final on appeal.
(Tran, at p. 1206.)
Recently, our Supreme Court resolved a split of authority in the appellate courts
and clarified that the statutory reference to “ ‘collective[ ]’ engagement in a pattern of
criminal gang activity” does not mean “that each of the two predicate offenses must be
committed in concert with other gang members and cannot be committed by individual
gang members acting alone.” (People v. Clark (Feb. 22, 2024, S275746) __ Cal.5th __
[2024 Cal. LEXIS 774 at p. *3].) However, the court held that the “collective
engagement” requirement “requires a nexus between the individual predicate offenses
and the gang as an organized, collective enterprise.” (Ibid.) In other words, the
requirement “calls for an inquiry not just into how the predicate offenses benefited the
gang, but also how the gang works together as a gang. It calls for a showing of a
connection, or nexus, between an offense committed by one or more gang members and
the organization as a whole.” (Id. at p. *25.) “This organizational nexus may be shown
by evidence linking the predicate offenses to the gang’s organizational structure, meaning

13
its manner of governance; its primary activities; or its common goals and principles.”
(Ibid.) While that inquiry is distinct from the “common benefit” inquiry, the court
recognized that the facts necessary to prove the two requirements will often overlap. (Id.
at p. *28.)
In addition to the substantive changes, Assembly Bill No. 333 added section 1109,
which provides a new procedure for trying gang enhancements under section 186.22.
(E.H., supra, 75 Cal.App.5th at pp. 477-478; Stats. 2021, ch. 699, § 5.) As relevant here,
section 1109, subdivision (b) requires a gang participation offense to be tried separately
from all other counts “that do not otherwise require gang evidence as an element of the
crime.”
Unlike the ameliorative benefits of Assembly Bill No. 333, the parties dispute
whether section 1109 applies retroactively, and the Courts of Appeal are split on this
issue. (Compare People v. Burgos (2022) 77 Cal.App.5th 550, 564-568, review granted
July 13, 2022, S274100, and People v. Ramos (2022) 77 Cal.App.5th 1116, 1125-1131
with People v. Perez (2022) 78 Cal.App.5th 192, 207, review granted Aug. 17, 2022,
S275090, and People v. Ramirez (2022) 79 Cal.App.5th 48, 65, review granted Aug. 17,
2022, S275341.) Most recently, our Supreme Court expressly declined to resolve the
split in Tran, supra, 13 Cal.5th at page 1208.
B. Instructional Error
Understandably, the trial court instructed the jury with the law as it existed at the
time of trial, which was before the enactment of Assembly Bill No. 333. Because the
modification of section 186.22 by Assembly Bill No. 333 applies retroactively to cases
not yet final on appeal, the court’s instruction reflecting the law as it existed at the time of
trial was erroneous, and we must determine whether that error is harmless.
When a jury does not determine all elements of a charged offense because the
instructions omitted an element of the offense, the resulting prejudice is assessed under
the standard set forth in Chapman v. California (1967) 386 U.S. 18, 24. (People v. Flood

14
(1998) 18 Cal.4th 470, 491; People v. Sek (2022) 74 Cal.App.5th 657, 668 (Sek).) We
apply this same standard of review when the jury was not instructed on an element
because trial occurred before the effective date of the amendment adding the element.
(Tran, supra, 13 Cal.5th at p. 1207; E.H., supra, 75 Cal.App.5th at pp. 478-479.) Under
the Chapman standard, the absence of instruction on the amended version of section
186.22 requires reversal unless “it appears beyond a reasonable doubt that the error did
not contribute to th[e] jury’s verdict.” (Flood, at p. 504.) “The inquiry ‘is not whether, in
a trial that occurred without the error, a guilty verdict would surely have been rendered,
but whether the guilty verdict actually rendered in this trial was surely unattributable to
the error.’ [Citation.] This standard is much higher than substantial evidence review.
For example, courts have found harmless error under the Chapman standard where the
missing element from an instruction was uncontested or proved as a matter of law.”
(E.H., at pp. 479-480.) But where “ ‘the basis of the jury’s verdict is not so clear,’ ” such
as where “the prosecution presented evidence of both financial and reputational benefit,
‘we cannot rule out the possibility that the jury relied on reputational benefit to the gang
as its basis for finding the enhancements true.’ ” (Id. at p. 480.)
On this record, we cannot conclude beyond a reasonable doubt the jury would
have reached the same result on the gang participation count had it been instructed
correctly, with the current version of section 186.22. First, there was no evidence that the
Conway Gangsters was an “organized” association as section 186.22 now defines the
term “criminal street gang,” and the jury was not asked to make such a finding.
Second, while there was some evidence supporting the requirement that the
predicate offenses were committed for the common benefit of the gang, this element was
not proved as a matter of law. (See E.H., supra, 75 Cal.App.5th at p. 479 [where the
prosecution presented evidence of both financial and reputational benefit, the omission
was not harmless error].) Indeed, the jury was expressly instructed that the crimes did
not need to be gang related. While Detective Knall testified that theft and firearm

15
possession offenses could, in theory, benefit the gang, he did not testify about how the
offenses committed by Johns, Carroll, or White provided an actual benefit to the gang.
(See E.H., at pp. 473, 478-480 [finding that though the predicate offenses included crimes
that could, in theory, provide a monetary benefit to the gang, the evidence did not show
that these predicate offenses actually benefited the gang].) “Not every crime committed
by gang members is related to a gang.” (People v. Albillar (2010) 51 Cal.4th 47, 60.)
Moreover, the evidence did not show that Johns, Carroll, or White were Conway
Gangsters members at the time they committed their offenses, and it is far from certain
that commission of each offense commonly benefitted the gang where the perpetrator was
not in the gang at the time.
Additionally, the jury could have based its finding on the reputational benefit to
the gang. Knall testified that “gang culture largely is based on fear, respect, and power.
So along those lines, everything they do, pretty much is aimed at achieving the respect of
their peers, and that’s based actually on fear.” (Italics added.) We understand the
Attorney General’s argument that there was evidence presented that would have
permitted the jury, were it asked to do so, to find the prosecution had satisfied the
standard of proof under section 186.22 as amended by Assembly Bill No. 333. However,
“[t]o rule that the existence of evidence in the record that would permit a jury to make a
particular finding means that the jury need not actually be asked to make that finding
would usurp the jury’s role and violate [defendant’s] right to a jury trial on all the
elements of the charged allegations.” (People v. Lopez (2021) 73 Cal.App.5th 327, 346;
see Sek, supra, 74 Cal.App.5th at pp. 668-669 [presentation of evidence that benefit to
the gang was more than reputational does not rule out possibility that jury relied on
reputational benefit as the basis for finding gang enhancements true].)
Third, the jury was instructed that it could consider the current charges as a
predicate offense, which is no longer permissible. (§ 186.22, subd. (e)(2).) We recognize
that the jury was unable to reach verdicts as to counts 1 through 3; thus, at first glance it

16
may appear unlikely that the jury considered those offenses when determining whether
the People had proved a pattern of criminal gang activity. However, as we discussed
ante, the jury found defendant guilty of the gang participation offense without finding
him guilty on counts 1 through 3, suggesting that the jury at least considered the charged
offenses when finding gang participation. Thus, it stands to reason that the jury may also
have considered the currently charged offenses in finding the People had proved a pattern
of gang activity.
Fourth, as recently explained by our Supreme Court, remand is required here
because, “to establish collective engagement, the prosecution should have established a
nexus between the offenses and the gang as a collective enterprise. There is no evidence
in the record from which a jury could have found such a nexus beyond a reasonable
doubt.” (People v. Clark, supra, ___ Cal.5th at p. ___ [2024 Cal. LEXIS 774 at p. *29] .)
Based on the foregoing, the instructional error is not harmless beyond a reasonable
doubt, and we reverse defendant’s conviction for gang participation. Our decision does
not bar the prosecution from retrying defendant on the participation count on remand.
“ ‘Because we do not reverse based on the insufficiency of the evidence required to prove
a violation of the statute as it read at the time of trial, the double jeopardy clause of the
Constitution will not bar a retrial. [Citations.] “ ‘Where, as here, evidence is not
introduced at trial because the law at that time would have rendered it irrelevant, the
remand to prove that element is proper and the reviewing court does not treat the issue as
one of sufficiency of the evidence.’ ” ’ ” (Sek, supra, 74 Cal.App.5th at p. 669.)
C. Section 1109
Even assuming without deciding that section 1109 applies retroactively to
defendant’s case, he was not prejudiced by the trial court’s refusal to bifurcate the gang
evidence from the charges not requiring presentation of gang-related evidence, as we next
explain.

17
 Initially, we reject defendant’s contention that the failure to bifurcate constitutes
structural error. Our Supreme Court recently concluded that the failure to bifurcate is
subject to the standard articulated by People v. Watson (1956) 46 Cal.2d 818, 836, unless
the failure to bifurcate rendered the trial fundamentally unfair, in which case the
Chapman standard applies. (Tran, supra, 13 Cal.5th at pp. 1209-1210 [applying Watson
standard].) Because defendant has made no effort to show the prosecution’s use of gang
evidence rendered the trial fundamentally unfair, and we do not see how it did, we will
apply the Watson harmless error standard. (See People v. Ramos, supra, 77 Cal.App.5th
at p. 1131 [applying Watson standard]; E.H., supra, 75 Cal.App.5th at p. 480 [same].)
Reversal is required under the Watson standard if “it is ‘reasonably probable’ he would
have obtained a more favorable result if his trial had been bifurcated.” (E.H., supra, 75
Cal.App.5th at p. 480, quoting Watson, at p. 836.)
Defendant argues the fact that the jury found defendant guilty of gang
participation despite not reaching verdicts as to counts 1 through 3 demonstrates it was
significantly influenced by the prejudicial gang evidence, including his social media posts
about being armed, tainting the jury’s perception of him, and making it more likely that it
would find him guilty of the three counts of conviction. Defendant acknowledges that
the evidence against him as to those counts “appears relatively compelling.” That is an
understatement. Officer Day testified that he saw defendant with a 30-round firearm
magazine for a Glock pistol in the pocket of his pants. Defendant fled from Day, and he
continued to struggle after another officer took him to the ground. There was a Glock
pistol on the ground near defendant after he was subdued. Further, defendant claimed
that he found the firearm and the magazine at a nearby apartment complex, thereby
admitting the firearm and magazine possession offenses.
Defendant adds that the jury’s inability to reach a verdict on count 6--possessing
marijuana for sale--demonstrates that it was persuaded by the gang and social media
evidence because the evidence supporting count 6 was “virtually the same” as the

18
evidence supporting the firearm and magazine counts. We disagree. While we recognize
that defendant was arrested with a bag of marijuana weighing two ounces and a digital
scale, the jury could have found that the People had failed to prove defendant’s intent to
sell. In other words, that count is distinguishable from counts 4 and 5, which were
proved by the very fact that defendant possessed the firearm and the magazine at the time
of his arrest and bolstered by his admission. We conclude it is not reasonably probable
that defendant would have obtained a more favorable result had counts 4,5, and 7--the
firearm and magazine possession and resisting arrest charges--been bifurcated from the
gang-related evidence.
III
Evidence Code Section 352.2
Defendant contends newly enacted Evidence Code section 352.2 retroactively
applies to his case and requires that the matter be remanded to the trial court to allow it to
consider the admissibility of the rap video screenshots under that statute. The Attorney
General responds that Evidence Code section 352.2 does not apply retroactively, and we
agree.
Effective January 1, 2023, Evidence Code section 352.2 provides for additional
procedures, and requires the court to consider additional factors, before admitting
evidence of creative expression under Evidence Code section 352. In enacting the
statute, the Legislature stated its intent to ensure that “an accused person’s creative
expression will not be used to introduce stereotypes or activate bias against the defendant,
nor as character or propensity evidence; and to recognize that the use of rap lyrics and
other creative expression as circumstantial evidence of motive or intent is not a sufficient
justification to overcome substantial evidence that the introduction of rap lyrics creates a
substantial risk of unfair prejudice.” (Stats. 2022, ch. 973, § 1, subd. (b).)
Courts of Appeal are split on whether Evidence Code section 352.2 applies
retroactively. (Compare People v. Venable (2023) 88 Cal.App.5th 445, 448, review

19
granted May 17, 2023, S279081 [retroactive] with People v. Ramos (2023) 90
Cal.App.5th 578, 581, 596 (Ramos), review granted Jul. 12, 2023, S280073 [not
retroactive].) Most recently, this court agreed with the conclusion in Ramos. (People v.
Slaton (2023) 95 Cal.App.5th 363, review granted Nov. 15, 2023, S282047). We agree
with the decisions in Ramos and Slaton.
“The general rule is that ‘when there is nothing to indicate a contrary intent in a
statute it will be presumed that the Legislature intended the statute to operate
prospectively and not retroactively.’ (In re Estrada (1965) 63 Cal.2d 740, 746[].)
‘Courts look to the Legislature’s intent in order to determine if a law is meant to apply
retroactively.’ (People v. Frahs (2020) 9 Cal.5th 618, 627 [].) Here, neither the text of
Evidence Code section 352.2 itself, nor the Legislature’s findings and declarations, give
any express indication that the Legislature intended Evidence Code section 352.2 to
apply retroactively to nonfinal cases.” (Ramos, supra, 90 Cal.App.5th at pp. 592-593.)
In Estrada, our Supreme Court recognized an exception to the general rule;
namely, that “amendatory statutes that lessen the punishment for criminal conduct are
ordinarily intended to apply retroactively.” (Ramos, supra, 90 Cal.App.5th at p. 593.)
When Estrada applies, “it covers ‘all cases that are not yet final as of the legislation’s
effective date.” (Ibid.) In Frahs, our Supreme Court outlined the situations in which
Estrada’s retroactivity rule has been applied, including statutes governing penalty
enhancements as well as substantive offenses, statutes making reduced punishment
possible, and a statute that “ ‘ameliorated the possible punishment for a class of
persons.’ ” (People v. Frahs, supra, 9 Cal.5th at p. 629, italics omitted.)
Evidence Code section 352.2, however, “is not a statute that creates the possibility
of lesser punishment or any other type of more lenient treatment. It is also not a statute
that reduces criminal liability, such as by altering the substantive requirements for a
conviction or expanding a defense.” (Ramos, supra, 90 Cal.App.5th 595; see People v.
Slaton, supra, 95 Cal.App.5th at p. 372 [Evid. Code, § 352.2 “is not ‘ “analogous” to the

20
Estrada situation’ ”].) Instead, the statute “was enacted to prevent the admission of
unfairly prejudicial evidence when not warranted in the circumstances of a particular
case.” (Ramos, at p. 596.) “[I]t is a neutral rule at that, limiting a defendant’s ability to
present a person’s creative expression just as much as the prosecution’s ability to present
this type of evidence.” (Slaton, at p. 373.) “It is therefore not an ameliorative enactment
within the meaning of Estrada,” and not subject to the Estrada exception. (Ramos, at p.
596.) Because the statute does not apply retroactively to defendant’s case, remand is not
required on that basis.
IV
Reasonable Doubt Standard
Defendant contends that the trial court committed instructional error by requiring
trial counsel to revise a slide he was using during closing argument to delete a definition
of the reasonable doubt standard as a “near certainty.” We disagree.
A. Procedural Background
During closing argument, trial counsel presented a slide that defined the beyond a
reasonable doubt standard as requiring a level of “near certainty.” Along with the slide,
counsel argued: “So this is CALCRIM [No.] 220 that is now up on the screen for you.
So whenever the Judge tells you the People must prove something, they must prove it
beyond a reasonable doubt unless the Judge tells you otherwise. I don’t believe you’re
going to see otherwise.
“Proof beyond a reasonable doubt is proof that leaves you with an abiding
conviction that the charge is true. In other words, and you will never doubt it, not now,
not later. But what is proof beyond a reasonable doubt? There are many -- younger
attorneys usually will talk about and make analogies to all kinds of different things and
sometimes spend 20 minutes setting it up. I watched this one kid talk about for 30
minutes, the planks and boards must go between two mountains, and if one of them is

21
missing, you fall through. The links aren’t there to have proof beyond a reasonable
doubt. Took him 30 minutes.
“But when I look at what proof beyond a reasonable doubt is, you really just have
to look at it within yourself. If you believe you’re a reasonable person and you have a
doubt, the People haven’t proved it beyond a reasonable doubt. It’s basically some type
of reason if you believe you’re a reasonable person. . . .
“The District Attorney has the burden of proof, as he so stated. That means the
defense does not have to prove anything at all. If questions arise from the evidence, you
have to look at the government. What did the government not convince me of? Why do
I have this question? What is not proven to me? Too many times have I heard jurors
from past cases or in courses or classes talking about well, the defense didn’t prove it.
Wrong, sorry. I’m not trying to be disrespectful, but it’s wrong. If there’s any questions
at all what the government not showing or prove to you --”
The trial court interrupted counsel and asked counsel and the prosecutor to
approach the bench. The court indicated that the slide’s definition of the beyond a
reasonable doubt standard as a “near certainty” conflicted with its ruling in limine that “if
they [the jury] had a question about that, they could send a question out and then we
would get together and decide what the interpretation is of that.”4 Counsel stated he did
not intend to, nor did he believe that he had, violated an in limine order, and indicated
that our Supreme Court had defined the standard of proof as a “near certainty.” The court
disagreed and reiterated that it had ruled in limine that the parties must wait until the jury
asked a question before interpreting the standard. The court required counsel to edit the
slide to remove the “near certainty” definition.

4 Neither we nor the parties have identified an in limine ruling with which the slide
conflicted.

22
 Thereafter, counsel argued that the beyond a reasonable doubt standard is “a very
high standard” and noted that the jury would have the instruction during its deliberations.
He added that the standard is “a level of certainty that would allow you to convict
anybody based on the evidence. If you are a reasonable person and have a doubt, then it
is not enough to convict.”
In reply, the prosecutor argued: “[Defense counsel] says, if you’re a reasonable
person and you have a doubt, that’s reasonable doubt. No, that’s not the law. The doubt
has to be reasonable and based on the evidence. . . . You can use your imagination and
think of a possible explanation for something and say, I’m a reasonable person, that gives
me a possible doubt, reasonable doubt. That’s not how it works, that’s not the law. [¶]
Beyond a reasonable doubt is not a new standard. It’s the same standard under which
every person convicted in the history of this country has been convicted. . . . [¶] You
decide if there’s a reasonable doubt based on the evidence . . . .”
The trial court instructed the jury with CALCRIM No. 220 that defendant was
presumed innocent, and this presumption required the prosecution to prove defendant was
guilty of the charges beyond a reasonable doubt. The instruction provided the standard
definition of reasonable doubt: “Proof beyond a reasonable doubt is proof that leaves you
with an abiding conviction that the charge is true. The evidence need not eliminate all
possible doubt because everything in life is open to some possible or imaginary doubt.”
(See CALCRIM No. 220.) The jury was also instructed with CALCRIM No. 200, which
directed the jury to follow the law as explained in the written instructions. Prior to
deliberations, the jury was provided a packet of written instructions, which included
CALCRIM Nos. 200 and 220.
B. Standard of Review
We review claims of instructional error de novo. (People v. Mitchell (2019) 7
Cal.5th 561, 579.) “When an appellate court addresses a claim of jury misinstruction, it
must assess the instructions as a whole, viewing the challenged instruction in context

23
with other instructions, in order to determine if there was a reasonable likelihood the jury
applied the challenged instruction in an impermissible manner.” (People v. Wilson
(2008) 44 Cal.4th 758, 803 (Wilson).) “We interpret the instructions so as to support the
judgment if they are reasonably susceptible to such interpretation, and we presume jurors
can understand and correlate all instructions given.” (People v. Vang (2009) 171
Cal.App.4th 1120, 1129.)
C. Legal Background
“Under the due process clauses of the Fifth and Fourteenth Amendments, the
prosecution must prove a defendant’s guilt of a criminal offense beyond a reasonable
doubt, and a trial court must so inform the jury.” (People v. Aranda (2012) 55 Cal.4th
342, 356.) Section 1096 defines reasonable doubt as follows: “ ‘It is not a mere possible
doubt; because everything relating to human affairs is open to some possible or
imaginary doubt. It is that state of the case, which, after the entire comparison and
consideration of all the evidence, leaves the minds of jurors in that condition that they
cannot say they feel an abiding conviction of the truth of the charge.’ ”
However, although the “beyond a reasonable doubt standard is a requirement of
due process, . . . the Constitution neither prohibits trial courts from defining reasonable
doubt nor requires them to do so as a matter of course. [Citation.] Indeed, so long as the
court instructs the jury on the necessity that the defendant’s guilt be proved beyond a
reasonable doubt, [citation], the Constitution does not require that any particular form of
words be used in advising the jury of the government’s burden of proof. [Citation.]
Rather, ‘taken as a whole, the instructions [must] correctly convey the concept of
reasonable doubt to the jury.’ ” (Victor v. Nebraska (1994) 511 U.S. 1, 5; see also
People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 839-840.) “What matters, for
federal constitutional purposes, is ‘whether there is a reasonable likelihood that the jury
understood the instructions to allow conviction based on’ insufficient proof.” (Daveggio
and Michaud, at p. 840.) Accordingly, the court may, but is not required to, read section

24
1096 to the jury, and “no further instruction on the subject of the presumption of
innocence or defining reasonable doubt need be given.” (§ 1096a; People v. Freeman
(1994) 8 Cal.4th 450, 503.)
D. Analysis
Defendant contends the trial court’s directive to remove the definition of the
reasonable doubt standard as a “near certainty” amounted to an implied or indirect
instruction to the jury that the reasonable doubt standard did not require “near certainty”
to find him guilty. He contends the jurors would have used the court’s implicit
instruction as another “ ‘tool’ to better understand or interpret the beyond a reasonable
doubt standard as it was articulated in CALCRIM No. 220,” resulting in the standard
being “ ‘watered down’ ” by the court’s incorrect commentary on the standard.
At the outset, we recognize that several older cases have equated proof beyond a
reasonable doubt with “near certainty.” (Jackson v. Virginia, supra, 443 U.S. at p. 315
[“a subjective state of near certitude”]; People v. Hall (1964) 62 Cal.2d 104, 112 [“To
justify a criminal conviction, the trier of fact must be reasonably persuaded to a near
certainty”]; People v. Thompson (1980) 27 Cal.3d 303, 324 [quoting Hall]; People v.
Reyes (1974) 12 Cal.3d 486, 500 [same]; People v. Redmond (1969) 71 Cal.2d 745, 756
[same].) Additionally, section 1096 previously included the language “to a moral
certainty,” although that phrase was removed from the statute in 1995. (See People v.
Brown (2004) 33 Cal.4th 382, 390-391; Stats. 1995, ch. 46, § 1.)
However, we disagree with defendant that there is a reasonable likelihood that the
jury applied the instructions, considered as a whole, in an impermissible manner.
(Wilson, supra, 44 Cal.4th at p. 803.) First, the trial court did not make any affirmative
statement to the jury that the reasonable doubt standard required anything less than a near
certainty. At most, requiring counsel to edit the slide including the “near certainty”
definition conveyed to the jury that a “near certainty” was not an accepted definition of
the standard. But the court did not take the additional, affirmative step of defining the

25
standard in a way that informed the jury that some other, lesser standard was applicable.
For example, the court did not suggest a weighing process akin to the standard for civil
trials (People v. Garcia (1975) 54 Cal.App.3d 61, 63), or explain that reasonable doubt
must be founded on “some good reason” or “such doubt as you are able to find a reason
for in the evidence” (People v. Simpson (1954) 43 Cal.2d 553, 565).
Second, the instructions the court provided to the jury adequately instructed with
the proper standard. As we have discussed, the court instructed the jury orally and in
writing with CALCRIM No. 220, and it instructed with CALCRIM No. 200 that the jury
must follow the law as provided in the written instructions. CALCRIM No. 220 has been
repeatedly held to sufficiently convey the high level of certainty to find a defendant guilty
of a crime beyond a reasonable doubt. For example, a panel of this court observed: “The
modifier ‘abiding’ informs the juror his conviction of guilt must be more than a strong
and convincing belief. Use of the term ‘abiding’ tells the juror his conviction must be of
a ‘lasting, permanent nature,’ it informs him ‘as to how strongly and deeply his
conviction must be held.’ ” (People v. Zepeda (2008) 167 Cal.App.4th 25, 30-31 [finding
the “phrase, ‘proof that leaves you with an abiding conviction that the charge is true,’
unmistakably conveys the conviction’s subjective nature and the very high level of
certainty required” (id., at p. 31)].) In People v. Pierce (2009) 172 Cal.App.4th 567, 573,
the court recognized that “[t]he United States Supreme Court and the California Supreme
Court, respectively, have described ‘an abiding conviction’ as one that is ‘settled and
fixed’ [citation] and one that is ‘lasting [and] permanent.’ ” (See also People v. Light
(1996) 44 Cal.App.4th 879, 885 [“ ‘abiding conviction’ ” adequately conveys “the
requirement that the jurors’ belief in the truth of the charge must be both long lasting and
deeply felt”].) In People v. Carrillo (2008) 163 Cal.App.4th 1028, the court held that it
was not error for the trial court to refuse to modify CALCRIM No. 220 to state that an
“ ‘abiding conviction’ ” means “ ‘convincing you to a near certainty of the truth of the

26
charge’ ” on the basis that the propriety of the instruction had been upheld many times.
(Carrillo, at p. 1039.)
Thus, even if the trial court’s directive to trial counsel could be construed as an
oral “ ‘implied’ or indirect instruction” regarding the applicable standard, the court
expressly and properly instructed the jury with a widely accepted definition of the
applicable standard. To the extent the “ ‘implied’ or indirect instruction” oral instruction
conflicted with the written instructions, we assume the jury followed the written
instructions, particularly when, as here, the jury was instructed that the written
instructions are controlling. (People v. Grimes (2016) 1 Cal.5th 698, 729; Wilson, supra,
44 Cal.4th at p. 803 [we presume the jury understood and followed the court’s written
instructions].)
Third, both parties were generally entitled to, and did, argue the reasonable doubt
standard to the jury. Defense counsel observed that the People had the burden of proof,
and that the defense was not required to prove anything. He explained while displaying
CALCRIM No. 220 on a slide that “whenever the Judge tells you that the People must
prove something, they must prove it beyond a reasonable doubt.” He clarified that
“[p]roof beyond a reasonable doubt is proof that leaves you with an abiding conviction
that the charge is true. In other words, and you will never doubt it, not now, not later.”
He added that “[i]f you believe you’re a reasonable person and you have a doubt, the
People haven’t proved it beyond a reasonable doubt. It’s basically some type of reason if
you believe you’re a reasonable person.” After editing the slide to remove the “near
certainty” definition, counsel added that the standard is “a very high standard,” and noted
that the jury would have the written instruction as a reference during its deliberations.
Finally, he concluded by adding that the standard is “a level of certainty that would allow
you to convict anybody based on the evidence. If you are a reasonable person and have a
doubt, then it is not enough to convict.”

27
 The instructions as a whole correctly conveyed the concept of reasonable doubt to
the jury and did not reduce the standard of proof in any meaningful way.
V
Cumulative Error
Defendant contends the cumulative prejudicial effect of multiple trial errors was
sufficient to warrant remand for a new sentencing hearing. “Under the cumulative error
doctrine, the reviewing court must ‘review each allegation and assess the cumulative
effect of any errors to see if it is reasonably probable the jury would have reached a result
more favorable to defendant in their absence.’ ” (People v. Williams (2009) 170
Cal.App.4th 587, 646.) “The ‘litmus test’ for cumulative error ‘is whether defendant
received due process and a fair trial.’ ” (People v. Cuccia (2002) 97 Cal.App.4th 785,
795.)
As related to defendant’s convictions for firearm and magazine possession and
resisting arrest, we found no actual error, and any error in failing to bifurcate was
harmless. Thus, we reject defendant’s claim of cumulative error.

28
 DISPOSITION
Defendant’s conviction for gang participation (count 8) is reversed. The matter is
remanded to the trial court to (1) provide the People an opportunity to retry the gang
participation offense under the law as amended by Assembly Bill No. 333; and (2) after
any trial, or on remand if the prosecution elects not to conduct a trial, conduct a full
resentencing under current law. In all other respects, we affirm the judgment.

/s/
Duarte, J.

We concur:

/s/
Robie, Acting P. J.

/s/
Ashworth, J. 

 Judge of the El Dorado County Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.

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