Filed 2/10/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

FROYLAN DELGADO,

Defendant and Appellant.

 B299482

 (Los Angeles County

 Super. Ct. No. BA470834)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Stephen A. Marcus, Judge. Affirmed in part; 

reversed in part; and remanded with instructions.

Julie Caleca, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Julie A. Harris, Shezad H. Thakor, and John 

Yang, Deputy Attorneys General, for Plaintiff and Respondent.

_________________
2

Froylan Delgado appeals from a judgment entered after the 

jury convicted him of shooting at an occupied vehicle, assault 

with an assault weapon, and possession of a firearm by a felon. 

The jury also found true the gang and firearm enhancements. On 

appeal, Delgado contends his due process rights were violated 

because the trial court instructed the jury with CALCRIM 

No. 315 that an eyewitness’s degree of certainty can be 

considered when evaluating the reliability of the witness’s 

identification.1

We affirmed the judgment in People v. Delgado

(Feb. 3, 2021, B299482) [nonpub. opn.], holding that instruction 

on an eyewitness’s degree of certainty was not error under People 

v. Sánchez (2016) 63 Cal.4th 411, 462 (Sánchez). The Supreme 

Court granted review and on August 25, 2021 transferred the 

matter back to this court with directions to vacate our prior 

opinion and reconsider the appeal in light of People v. Lemcke 

(2021) 11 Cal.5th 664, 666 (Lemcke), in which the Supreme Court 

found that CALCRIM No. 315 has the potential to mislead jurors 

1 Delgado also argues the trial court abused its discretion by 

declining to exercise its discretion to strike the firearm 

enhancement under Penal Code section 12022.53, subdivision (c); 

defense counsel rendered ineffective assistance of counsel in 

failing to present any argument on Delgado’s behalf at the 

sentencing hearing; and the trial court’s imposition of court 

assessments and restitution fines violated Delgado’s due process 

rights because the court did not conduct a hearing on his ability 

to pay. We do not reach these issues because we reverse the gang 

enhancements and remand for resentencing. Delgado will have 

an opportunity at the resentencing hearing to address the 

firearm enhancements and his ability to pay the fines and fees. 

All further undesignated statutory references are to the Penal 

Code.
3

by reinforcing a “common misconception . . . that an eyewitness 

identification is more likely to be reliable where the witness has 

expressed certainty.” However, considering the jury instructions 

as a whole and the trial record, we conclude the inclusion of the 

witness-certainty factor did not violate Delgado’s due process 

rights.

Following the Supreme Court’s transfer to this court, the 

Legislature enacted Assembly Bill No. 333 (2021-2022 Reg. Sess.) 

(2021 Stats., ch. 699) (Assembly Bill 333), effective January 1, 

2022, which made several modifications to the criminal street 

gang enhancement statute (§ 186.22), including modification of 

the definition of a “criminal street gang” in section 186.22, 

subdivision (f), to require proof that members of a gang 

“collectively engage in, or have engaged in, a pattern of criminal 

gang activity.” We agree with Delgado that the requirement in 

amended section 186.22, subdivision (f), that gang members 

“collectively engage” in a pattern of criminal gang activity means 

the People were required to prove that two or more gang 

members committed each predicate offense, and here, there was 

insufficient evidence that multiple Avenues gang members 

committed the predicate offenses. We reject the People’s 

contention that proof that individual gang members committed 

the predicate offenses on separate occasions is sufficient to show 

the gang members “collectively” engaged in a pattern of criminal 

activity.

Delgado’s convictions of shooting at an occupied motor 

vehicle, possession of a semiautomatic firearm by a felon, and 

assault with an assault weapon, and the jury’s true findings on 

the firearm enhancements are affirmed. We reverse the jury’s 

true findings that Delgado committed the underlying offenses for 

the benefit of a criminal street gang, and we remand to give the 
4

People an opportunity to retry the gang enhancement and to 

meet their burden of proof under Assembly Bill 333’s new 

requirements. If the People elect not to try the gang 

enhancement, Delgado is to be resentenced.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Evidence at Trial

1. The shooting

At approximately 1:20 a.m. on August 25, 2018 six Los 

Angeles Police Department (LAPD) officers responded to a 911 

call of shots fired in the area of Drew and Weldon Streets in 

northeast Los Angeles, near 3405 Drew Street. The location was 

at the heart of the territory claimed by the Avenues street gang

and the stronghold of the Drew Street clique within the Avenues

gang.

Upon arriving at the scene, the police officers detained 

several known Avenues gang members. Gabriela Alonso, who 

was an associate of the gang, was detained with her boyfriend 

Juan Briseno, an Avenues gang member, as the two walked away 

from the area near 3411 Drew Street. Police officers also 

detained Avenues gang member Gonzalo Urieta, who was 

running down Drew Street away from the scene, and Avenues 

gang member Adrian DeJesus, who was holding his waistband 

while walking away from 3411 Drew Street.

During a canvass of the area, Officer Tom Quino found 

three spent .223 caliber shell casings in the walkway and street 

in front of 3405 Drew Street. Officer Michael Marino discovered 

a loaded semiautomatic firearm wrapped in a towel hidden 

behind the fence at 3411 Drew Street. Daniel Rubin, a 

criminalist with the LAPD firearm analysis unit, testified the 
5

firearm had the characteristics of an assault weapon as defined 

under California law because it was capable of accepting a 

detachable magazine inserted into the firearm in a location other 

than the pistol grip, and its barrel was covered. Through 

laboratory testing, Rubin confirmed the recovered shell casings 

had been fired from the firearm. No fingerprints were recovered 

from the firearm.

On the morning of the shooting, Officer Marino and 

Sergeant Nick Giordano were able to obtain and view 

surveillance video from 3407 Drew Street. The video showed that 

on August 25, 2018 at 1:16 a.m. a man in a white sleeveless shirt 

emerged onto the sidewalk in front of 3405 Drew Street as a car 

was driving down the street. A flash emanated from the man’s 

position as the car passed him. The man then moved into the 

street behind the car, and another flash appeared where the man 

was standing. The 3407 Drew Street video was played for the 

jury.2

The 3407 Drew Street video also showed a woman and a 

man (later identified as Alonso and Briseno) stashing a towelwrapped object inside the fence at the location where Officer 

Marino had recovered the assault weapon. Based on the video, 

Alonso and Briseno were arrested. Briseno tested positive for 

gunshot residue; Alonso’s gunshot residue test was negative.3 

2 The defense introduced Officer Marino’s preliminary 

hearing testimony that Marino, who had prior contacts with 

Delgado, could not see sufficient detail in the 3507 Drew Street 

video to identify the shooter. 

3 LAPD criminalist Stacy Vanderschaaf testified an 

individual may test positive for gunshot residue if he or she 
6

The police were not able to identify the vehicle involved in the 

shooting, and they could not determine how many occupants were 

inside.

2. The 3405 Drew Street surveillance video and 

identification of Delgado

As part of the police investigation into the shooting, 

Sergeant Giordano contacted Justin Jacobo, who was believed to 

have access to the video surveillance system for the building at 

3405 Drew Street. Three days after the shooting, Sergeant 

Giordano received an email from Jacobo containing a hyperlink to 

a Web site containing the 3405 Drew Street video footage. 

Sergeant Giordano watched the video that day and saw that it 

captured the shooting, but he did not recognize the shooter. He 

forwarded the video link to LAPD Officers Marino, Jeremy 

Massey, and Daniel Kaminski, and to Detective Justin Fuller.

Officer Massey viewed the video on August 28 and 

recognized Delgado as the shooter. Officer Massey, who was then 

assigned to the LAPD’s gang enforcement detail for the northeast 

division, had interacted with Delgado on five to 10 earlier 

occasions, had filled out a field information card on him, and had 

discussed Delgado’s street name and gang affiliation with him. 

Asked by the prosecution, “How would you describe the quality of 

that video, specifically in terms of being able to recognize 

anybody depicted in the video,” Officer Massey testified, “I would 

say it’s a very good quality camera and easy to identify people if 

you knew who they were.” Officer Massey was not asked how 

certain he was of his identification of Delgado. Officer Massey 

handled the firearm, even without being the person who 

discharged it.
7

took a photograph of a frame of the video on his computer that 

depicted a bald person with Delgado’s general characteristics, 

dressed in a white sleeveless shirt, walking with the firearm to 

his left side. The photograph was admitted into evidence, and 

Officer Massey identified Delgado in the courtroom as the man in 

the photograph. Officer Massey testified the quality of the video 

was superior to that of the photograph. However, the video was 

not available at trial.

Officer Massey testified the video showed Delgado4 in a 

white sleeveless shirt standing in the front courtyard of 

3405 Drew Street with several other people. After looking up 

Drew Street, Delgado walked into apartment 2 of the building,

5

then emerged from the building carrying an object that appeared 

to be a firearm. Delgado walked out to the sidewalk as a vehicle 

traveling south on Drew Street came to a stop near Delgado’s 

position. Delgado pointed the firearm at the vehicle and fired one 

shot as the vehicle resumed traveling southbound. Delgado 

walked into the street and fired another shot at the vehicle after 

it passed. Delgado then walked back into apartment 2. Officer 

Massey also testified the video showed Alonso emerging from the 

4 Defense counsel objected to the prosecution posing 

questions to Officer Massey about the video that referred to 

Delgado without qualification, “as though that’s a foregone 

conclusion, and this is not . . . a clear, accurate picture.” The trial 

court ordered the prosecutor to formulate his questions using the 

term “‘the person you’ve identified as Mr. Delgado,’” finding as to 

Massey’s identification, “[W]hether he’s right or wrong is for the 

jury to decide.”

5 Officer Massey inferred Delgado entered apartment 2 based 

on the location where Delgado entered the building, although the 

apartment doorways were not visible within the camera frame.
8

same area around apartment 2 one minute later carrying what 

looked like a sheet wrapped around an object. Alonso walked 

onto the sidewalk and headed north in the direction of 3407 Drew 

Street.

Officer Kaminksi independently identified Delgado as the 

shooter after viewing the 3405 Drew Street video. While 

assigned to the northeast division gang detail, Officer Kaminski 

encountered Delgado 30 to 50 times over an eight-year period

through “various stops, detentions, consensual encounters, and 

through seeing him on patrol.” During patrols, he had seen 

Delgado “almost daily” in the courtyard in front of 3405 Drew 

Street, and they had multiple face-to-face encounters and 

conversations. Officer Kaminski testified he was “absolutely” and

“100 percent” certain Delgado was the man he saw in the video. 

Officer Kaminski testified the photograph admitted at trial was 

of poorer quality than the video, and he could not identify 

Delgado with 100 percent certainty from the photograph alone. 

He stated he could not recognize any of Delgado’s tattoos shown 

on the photograph, including one on the top of Delgado’s head. 

However, he could clearly see Delgado’s face in the video.

Officer Jon Hunt also viewed the 3405 Drew Street video 

and identified Delgado as the shooter. Officer Hunt testified he 

was familiar with Delgado, having “seen him well over a dozen 

times in the area of Drew Street,” and he had one documented 

contact with Delgado. Officer Hunt was “very confident” Delgado 

was the person he saw in the video.

After receiving the link to the surveillance video, Sergeant 

Giordano called Jacobo to obtain an off-line copy. Jacobo agreed 

to place the video on a flash drive and drop it off at the police 

station. But Jacobo never delivered a copy, and the video 

subsequently became unavailable on the website. On September 
9

21, 2018 Sergeant Giordano and other police officers accessed the 

video surveillance equipment at 3405 Drew Street, but the 

footage from August 25 was no longer available because the 

system had overwritten the recording data after a number of 

days. Detective Fuller also attempted to retrieve the video from

the Web site operator, but he was informed the file had been 

deleted by the user and “purged” from the system.

3. The search of 3405 Drew Street, apartment 2

On September 21, 2018 LAPD officers executed a search 

warrant for apartment 2 at 3405 Drew Street. When the officers 

arrived, Delgado was sitting outside of the building. During their 

search, officers recovered a loaded handgun inside a closet, a box 

of narcotics, men’s clothing, and a medical bracelet and recent 

hospital paperwork bearing Delgado’s name.

4. The gang expert testimony

Officer Hunt, who had been assigned to the LAPD gang 

enforcement detail for the northeast division for 18 months,

testified as the prosecution expert on the Avenues gang. Officer 

Hunt stated that in order to maintain their territory, street gangs 

often use violence to establish dominance over rival gangs and to 

intimidate citizens from cooperating with law enforcement. A 

rival gang’s intrusion into gang territory would constitute an 

insult and challenge to the gang’s authority that could be met by 

violence, including shootings and potentially murder.

Officer Hunt testified the Avenues gang has approximately

630 members, and Drew Street is one of the primary strongholds 

of the gang, where members regularly congregate and socialize. 

The Drew Street clique is a prominent sub-group within the 

Avenues gang. The primary rivals of the Avenues gang are the 
10

Highland Park gang and the Cypress Park gang. Asked whether 

Avenues gang members “either individually or collectively 

engaged in patterns of criminal conduct,” Officer Hunt answered 

in the affirmative. The primary activities of the Avenues gang 

included vandalism, battery, petty theft, drug possession and 

sales, weapons violations, assault, murder, and attempted 

murder.

Officer Hunt testified regarding two predicate offenses 

committed by members of the Avenues gang. Shawn Webb was 

convicted of assault with a firearm and shooting at an occupied 

building in November 2017 (§§ 245, subd. (a)(2), 246). Officer 

Hunt had spoken to Webb in the field and knew Webb to be a 

member of the Avenues gang with the moniker “Solo.” Officer 

Hunt was familiar with the facts of Webb’s conviction and

described the incident: “Shawn Webb was [the] driver of a 

vehicle where there was another Avenues gang member 

accompanying him, and they were . . . challenging potential rivals 

in the Highland Park area . . . where [Webb] participated in 

shooting at a pedestrian that was on the street and struck an 

inhabited building as well.” Christian Erentreich, whom Officer 

Hunt knew to be a member of the Avenues gang with the 

moniker “Hoodlum,” was convicted in 2017 of possession of a 

firearm by a person previously convicted of specified 

misdemeanors (§ 29805). Officer Hunt testified Erentreich was 

wanted by police and gave chase in his car when police officers 

spotted him, and while officers were pursing him, “he threw a 

loaded shotgun out the car window.” Certified copies of the 

minute orders of Webb’s and Erentreich’s convictions were 

admitted at trial.

Officer Hunt opined Delgado was a member of the Avenues 

gang and the Drew Street clique, and he used the moniker 
11

“Chuco.” Delgado had admitted he was a member of the gang, 

had numerous Avenues gang-specific tattoos, associated with 

other Avenues gang members, and frequented Avenues gang 

locations, including Drew Street. Four other police officers 

testified Delgado admitted to being an Avenues gang member.

In response to a hypothetical based on the facts of this case, 

Officer Hunt opined the shooting was committed for the benefit of 

and in association with the Avenues gang. Officer Hunt 

explained that “walking into the middle of the street where there 

are multiple apartments” to carry out a shooting with a 

semiautomatic assault weapon “sends a very clear message to the 

residents there that these gang members have access to high 

powered weapons, . . . they’re willing to use it, and they’re willing 

to shoot at rivals and perceived rivals, which allows them to 

continue their criminal exploits.” Officer Hunt also testified the

hypothetical conduct was done in association with the gang 

because other gang members were present and could act as 

lookouts, intimidate witnesses, and hide the weapon. Officer 

Hunt opined possession of a high-powered firearm would benefit

the gang because it would intimidate civilians by showing the 

gang has armor-piercing weapons and make it less likely rivals 

would “challenge that gang if [rivals] know that they’re equipped 

with an assault type weapon that is capable [of] being fired from 

a vast distance.”

Delgado did not testify or present evidence in his defense. 

Neither side presented expert testimony on identification.

B. Closing Arguments 

The prosecutor in his closing argument directed the jury to 

“focus on who did it and how we can conclude that it was 

[Delgado] only.” The prosecutor emphasized the officers who 
12

identified Delgado from the 3405 Drew Street video testified the 

video was clear, they made their identifications independently

from one another, and “all three recognize[d] from prior contact 

it’s the same guy.” The prosecutor urged the jury to consider 

together “the identification of the video, the fact [Delgado] is in 

apartment number 2, the fact the shooter walked into apartment 

number 2 and didn’t come out, the fact that the gun came out of 

apartment number 2, the fact that the defendant was dressed 

uniquely compared to the other people other gang members who 

were out there that night . . . . Everything points to the 

defendant Delgado and his identification.”

In his closing argument, defense counsel did not directly 

address the officers’ certainty as to their identifications. After 

noting that CALCRIM No. 315 “gives you some guidelines as to 

how you should try to evaluate eyewitness testimony,” defense 

counsel argued the case was “totally different” from a typical 

eyewitness identification because there was no live witness to the 

shooting. Further, he argued the jury needed to consider the “the 

grainy video of the surveillance tape,” which the police had 

admitted was insufficient to identify the shooter. In his rebuttal, 

the prosecutor argued defense counsel was confusing the video 

from 3407 Drew Street shown at trial (which did not clearly show 

Delgado) with the unavailable video from 3405 Drew Street that 

was the subject of the officers’ testimony: “It wasn’t grainy, it 

was not the photograph[] [of the video], and so to be clear when 

we’re talking about the identification of this defendant, it’s not 

from the video of the shooting . . . .” The prosecutor added, “If 

you choose not to believe the police officers, that’s up to you to 

decide.”
13

C. The Verdict and Sentence

The jury found Delgado guilty of shooting at an occupied 

motor vehicle (§ 246; count 2) and found true the allegations 

Delgado personally used and intentionally discharged a firearm 

in the commission of the shooting (§ 12022.53, subds. (b) & (c))

and the shooting was committed for the benefit of, at the 

direction of, or in association with a criminal street gang 

(§ 186.22, subd. (b)(4)). The jury also found Delgado guilty of 

possession of a semiautomatic firearm by a felon (§ 29800, 

subd. (a)(1); count 3)

6 and assault with an assault weapon (§ 245, 

subd. (a)(3); count 5). The jury found the firearm enhancement 

true on count 5 (§ 12022.5, subd. (b)) and the gang enhancement 

under section 186.22, subdivision (b)(1)(A), true as to counts 3 

and 5.7

The trial court sentenced Delgado on June 13, 2019. On 

count 2, the court imposed an indeterminate term of 35 years to 

life comprised of 15 years to life for shooting at an occupied 

vehicle based on the gang enhancement (§ 186.22, subd. (b)(4)),

plus 20 years for the firearm enhancement under 

section 12022.53, subdivision (c). The court imposed and stayed a

10-year term for the firearm enhancement under section 

12022.53, subdivision (b). On count 3 for possession of a firearm

by a felon, the court imposed an additional seven years (the 

middle term of three years plus four years for the gang 

enhancement (§ 186.22, subd. (b)(1)(A))) to run concurrently with

6 The parties stipulated that in March 2000 Delgado suffered 

a prior felony conviction.

7 The jury acquitted Delgado on count 4 for possession of 

semiautomatic firearm by a felon (§ 29800, subd. (a)(1)) with 

respect to the firearm recovered from 3405 Drew Street.
14

the sentence on count 2. On count 5 for assault with an assault 

weapon, the court imposed and stayed (under § 654) an 

additional 19 years (the middle term of eight years plus five years 

for the gang enhancement (§ 186.22, subd. (b)(1)(B)) and six years 

for the firearm enhancement).

8

Delgado timely appealed.

DISCUSSION

A. Instruction with CALCRIM No. 315 Did Not Violate 

Delgado’s Due Process Rights

Delgado contends the trial court violated his due process 

rights in instructing the jury with CALCRIM No. 315, which 

advised the jury that in evaluating an eyewitness identification, 

the jurors should consider the following question, among other 

factors: “How certain was the witness when he or she made an 

identification.”

9 Delgado argues this instruction on witness 

8 The abstract of judgment was corrected on May 14, 2020 in 

response to Delgado’s request because the reference in the prior 

abstract on count 5 to a violation of section 245, subdivision (c), 

for assault with a deadly weapon on a peace officer was a clerical 

mistake.

9 The trial court instructed the jury with CALCRIM No. 315, 

as modified: “You have heard eyewitness testimony identifying 

the defendant. As with any other witness, you must decide 

whether an eyewitness gave truthful and accurate testimony. In 

evaluating identification testimony, consider the following 

questions: Did the witness know or have contact with the 

defendant before the event? How well could the witness see the 

perpetrator? What were the circumstances affecting the 

witness’s ability to observe, such as lighting, weather conditions, 
15

certainty was erroneous “given the weight of scientific research 

rejecting certainty as evidence of accuracy.” In our earlier 

opinion, we rejected Delgado’s argument because the Supreme 

Court expressly approved the use of CALJIC No. 2.92, the 

predecessor to CALCRIM No. 315, against a similar due process 

challenge based on the inclusion of witness certainty as a factor 

for consideration.

10 (See Sánchez, supra, 63 Cal.4th at p. 462 [no 

obstructions, distance and duration of observation, and by 

looking at a video of a surveillance camera? How closely was the 

witness paying attention? Was the witness under stress when he 

or she made the observation? Did the witness give a description 

and how does that description compare to the defendant? How 

much time passed between the event and the time when the 

witness identified the defendant? Was the witness asked to pick 

the perpetrator out of a group? Did the witness ever change his 

or her mind about the identification? How certain was the 

witness when he or she made an identification? Are the witness 

and the defendant of different races? Was the witness able to 

identify other participants in the crime? Was the witness able to 

identify the defendant in a photographic or physical lineup? 

Were there any other circumstances affecting the witness’s

ability to make an accurate identification?”

10 In their respondent’s brief, the People contended Delgado 

forfeited his claim of instructional error because defense counsel 

did not object to the trial court’s instruction with CALCRIM 

No. 315. But we review any claim of instructional error that 

affects a defendant’s substantial rights whether or not trial 

counsel objected. (§ 1259 [“The appellate court may also review 

any instruction given . . . even though no objection was made 

thereto in the lower court, if the substantial rights of the 

defendant were affected thereby.”]; People v. Burton (2018) 

29 Cal.App.5th 917, 923 [“‘Failure to object to instructional error 

forfeits the issue on appeal unless the error affects defendant’s 
16

error or prejudice in instructing jury with CALJIC No. 2.92 on 

witness certainty as a factor relevant to the accuracy of witness’s 

identification]; see also People v. Rodriguez (2019) 40 Cal.App.5th 

194, 199-200 [Sánchez “reiterated three decades of California 

Supreme Court precedent that a trial court may instruct the jury 

to consider eyewitness certainty.”].)11 On April 21, 2021 the 

Supreme Court granted review.

The Supreme Court issued its opinion in Lemcke on 

May 21, 2021, and on August 25 it transferred Delgado’s appeal 

back to this court with instructions to vacate our earlier opinion 

and reconsider the issue in light of Lemcke. We do so now and 

substantial rights.’”]; People v. Bedolla (2018) 28 Cal.App.5th 

535, 544 [same].) And “[w]e can only determine if [a] 

defendant[’s] substantial rights were affected by deciding 

whether the instruction was given in error and, if so, whether the 

error was prejudicial.” (People v. Medina (2019) 33 Cal.App.5th 

146, 154, fn. 7.) That is, if Delgado’s claim has merit, it has not 

been forfeited. We therefore necessarily review the merits of 

Delgado’s contention the instruction violated his constitutional 

rights. Because we find no forfeiture, we do not reach Delgado’s 

argument his attorney’s failure to object constituted ineffective 

assistance of counsel.

11 The Supreme Court in Sánchez, supra, 63 Cal.4th at page

462 indicated a willingness to reexamine the witness-certainty

factor but found “[a]ny reexamination of our previous holdings in 

light of developments in other jurisdictions should await a case 

involving only certain identifications.” Justice Liu stated in a 

concurrence, “In light of developments in scientific research and 

recent case law, there is a substantial question whether it is 

proper for trial courts to instruct that witness certainty is a factor 

bearing on the accuracy of an identification that juries should 

consider. [¶] The sooner we reexamine this issue, the better.” 

(Id. at p. 498 (conc. opn. of Liu, J.).)
17

conclude instruction with CALCRIM No. 315 did not violate 

Delgado’s due process rights.12

1. The Supreme Court’s decision in Lemcke

The Supreme Court in Lemcke, supra, 11 Cal.5th 644 

rejected a due process challenge to CALCRIM No. 315, holding 

that “[w]hen considered in the context of the trial record as a 

whole, listing the witness’s level of certainty as one of 15 

factors[13] the jury should consider when evaluating identification 

testimony did not render [the defendant’s] trial fundamentally 

unfair.” However, the Supreme Court observed that “[c]ontrary

to widespread lay belief, there is now near unanimity in the 

empirical research that ‘eyewitness confidence is generally an 

unreliable indicator of accuracy.’” (Id. at pp. 646-647.) The court 

explained, “As currently worded, CALCRIM No. 315 does nothing

to disabuse jurors of that common misconception, but rather 

tends to reinforce it by implying that an identification is more 

likely to be reliable when the witness has expressed certainty. 

This is especially problematic because many studies have also 

shown eyewitness confidence is the single most influential factor 

12 A claim that a jury instruction violates due process 

“involves the determination of applicable legal principles” that we 

review de novo. (People v. Alvarez (1996) 14 Cal.4th 155, 218; 

accord, People v. Posey (2004) 32 Cal.4th 193, 218 [“The 

independent or de novo standard of review is applicable in 

assessing whether instructions correctly state the law.”].)

13 CALCRIM No. 315 lists 15 factors for consideration of 

eyewitness credibility. The instruction given in this case 

included the 14 factors noted above, omitting the question, “How 

much time passed between the event and the time when the 

witness identified the defendant?”
18

in juror determinations regarding the accuracy of an 

identification.” (Id. at p. 647.) The court referred consideration 

of the instruction to the Judicial Council and its Advisory 

Committee on Criminal Jury Instructions “to evaluate whether or 

how the instruction might be modified to avoid juror confusion 

regarding the correlation between certainty and accuracy.” 

(Ibid.) The court also directed that until the Judicial Council 

completes its review, “trial courts should omit the certainty factor 

from CALCRIM No. 315 unless the defendant requests 

otherwise.” (Id. at p. 648.)

In Lemcke, Desirae Lemcke and an accomplice, Charles 

Rudd, were charged with the robbery of Monica Campusano. 

After a woman in the hallway of a motel distracted Campusano, a 

man struck Campusano in the face and pulled her into her motel

room. The man punched and kicked Campusano repeatedly, 

causing her to lose consciousness. When she regained 

consciousness, Campusano was alone in the room, and her purse 

and phone were gone. (Lemcke, supra, 11 Cal.5th at p. 648.) 

Lemcke and Rudd were identified as suspects, and the 

responding officer created a six-pack photographic lineup with a 

photograph of Rudd and showed it to Campusano, who was 

“‘under anesthesia’” at the hospital. (Ibid.) Campusano pointed 

to Rudd’s photograph and “stated that she recognized his nose, 

mouth and jaw area.” (Id. at pp. 648-649.) Approximately three 

months later Campusano was shown a photographic lineup with

a photograph of Lemcke, and Campusano identified Lemcke as 

the woman in the motel. She also identified the photograph of 

Rudd as the one the first officer had shown her at the hospital. 

(Id. at p. 649.) Campusano stated, pointing to Rudd’s 

photograph, “‘for sure it was [him].’” (Ibid.)
19

Campusano identified Rudd at trial, stating, “‘I remember 

his face, his tattoo and his look, like he was looking with anger.’” 

(Lemcke, supra, 11 Cal.5th at p. 650.) The defense called an 

eyewitness identification expert, who opined as to witness 

certainty that “current research suggested that ‘confidence’ can 

be ‘useful’ when there has been a ‘fair lineup soon after the 

event.’ However, ‘once outside that window and you go forward, 

that moment in time when [the witness] made an [identification], 

once you get past that, confidence is not related to accuracy in 

any regard.’” (Id. at p. 651.) The trial court denied Rudd’s 

request to strike the certainty factor from CALCRIM No. 315 in 

instructing the jury. (Id. at p. 652.) The prosecutor in closing 

argument directed the jury to CALCRIM No. 315 and noted 

Campusano “‘was certain the entire time.’” (Ibid.)

Reviewing the instruction on certainty in the context of the 

instructions as a whole and the trial record, the Supreme Court 

concluded Rudd’s trial was not “‘“so infuse[d] . . . with unfairness 

as to deny due process of law.”’” (Lemcke, supra, 11 Cal.5th at 

p. 655.) The Supreme Court rejected Rudd’s contention that 

CALCRIM No. 315 lowered the prosecutor’s burden of proof, 

citing the finding in Sánchez, supra, 63 Cal.4th at pages 461

through 463 that “the instruction does not direct the jury that 

‘certainty equals accuracy.’” (Lemcke, at p. 647.) The court 

observed that “the wording of the instruction might cause some 

jurors to infer that certainty is generally correlative of accuracy,” 

but it noted Rudd was allowed to present expert witness 

testimony to rebut that inference, and the expert opined “the only 

time certainty may be useful in assessing accuracy is when the 

identification is made in close temporal proximity to the event 

and law enforcement has utilized nonsuggestive procedures.” (Id.

at pp. 657-658.) Further, the jury was instructed as to witness 
20

testimony that “‘[p]eople sometimes honestly . . . make mistakes 

about what they remember’” and that the jurors were responsible 

for “‘judg[ing] the credibility or believability of the witnesses.’” 

(Id. at p. 658.) In addition, the jury was instructed that the 

prosecution had the burden of proving all elements of the crime, 

which the instruction on eyewitness identity reiterated, stating, 

“‘The People have the burden of proving beyond a reasonable 

doubt that it was the defendant who committed the crime. If the 

People have not met this burden, you must find the defendant not 

guilty.’” (Ibid.)

The Supreme Court also rejected Rudd’s argument that the 

certainty instruction violated his due process rights by denying 

him a meaningful opportunity to present a complete defense. 

(Lemcke, supra, 11 Cal.5th at p. 660.) The court pointed both to 

the expert testimony and defense counsel’s cross-examination of 

the investigating officers that revealed problems with 

Campusano’s identification, including that her first identification 

was while she was under anesthesia in the hospital and the 

second identification used the same photograph. (Ibid.)

Following Lemcke, the Supreme Court again considered a

challenge to the witness-certainty factor in CALJIC No. 2.9214 on 

direct appeal in a capital murder case in People v. Wright (2021) 

12 Cal.5th 419 (Wright). William Wright was charged with 

multiple crimes in connection with two drug deals, one in which 

Wright stabbed Douglas Priest and robbed and shot Julius 

Martin (id. at p. 425), and second in which Wright killed two 

drug dealers and attempted to kill a third, Mario Ralph (id. at 

14 In Lemcke, supra, 11 Cal.5th at page 656, footnote 6, the

Supreme Court observed there is no material distinction between 

CALCRIM No. 315 and CALJIC No. 2.92.
21

p. 426). As to the first incident, Priest and Martin identified 

Wright about a month after the incident when they saw Wright’s

photograph on the television news in connection with another 

crime. (Ibid.) Priest and Martin later identified Wright in a live

lineup and at the preliminary hearing; Priest also identified 

Wright at trial. (Ibid.) As to the second incident, while Ralph 

was in the hospital recovering, he identified Wright from a 

photograph he saw in the newspaper, and Ralph later identified 

Wright in photographic and live lineups, at the preliminary 

hearing, and at trial. (Id. at pp. 427-428.) At least two of the 

witnesses knew Wright before the incident. (Id. at pp. 425-427.)

Affirming Wright’s conviction of first degree murder, 

attempted murder, and robbery, the Supreme Court held the trial 

court’s instruction with CALJIC No. 2.92 did not violate Wright’s 

due process rights. (Wright, supra, 12 Cal.5th at p. 453.) The 

court explained, “Although the defense below did not present an 

eyewitness identification expert as had occurred in Lemcke, 

defendant’s primary trial strategy was to discredit Ralph, Priest, 

and Martin, and to imply that the eyewitnesses were testifying 

falsely. At no point did defendant argue that the witnesses 

mistook his identity. This was in contrast to Lemcke, where the 

defense strategy focused on questioning the victim’s identification 

of the defendant. [Citation.] The instant case involved the 

identification of defendant by multiple witnesses, and, unlike in 

Lemcke, at least two of the witnesses had known defendant in 

some capacity prior to the attack.” (Wright, at p. 453.) The court 

further observed the trial court properly instructed the jury how 

to evaluate evidence and instructed the jury on the believability 

of a witness. The court concluded, “When considered ‘“in the 

context of the instructions as a whole and the trial record”’
22

[citation], the trial court’s use of CALJIC No. 2.92 did not violate 

defendant’s due process rights.” (Ibid.)

2. Inclusion of the witness certainty factor did not 

violate Delgado’s due process rights in light of the jury 

instructions and record as a whole

Delgado argues the jury instruction on witness certainty 

was “especially damaging” in this case because “other than the

officers’ identifications from the unavailable surveillance 

footage,” there was no other evidence Delgado was the shooter. 

As discussed, Officer Kaminski testified he was “absolutely” and 

“100 percent” certain Delgado was the man he saw in the video,

and Officer Hunt testified he was “very confident” in his 

identification.

15 However, the officers’ certainty in their 

identifications was not substantially at issue. Several other 

factors identified in CALCRIM No. 315 were relevant to the jury’s 

determination of the reliability of the officer’s identification. In 

addition, there was other evidence implicating Delgado.

Most significantly, the jury was instructed that in 

evaluating identification testimony it should consider, “Did the 

witness know or have contact with the defendant before the 

event?” Officers Massey, Kaminski, and Hunt all testified they 

knew Delgado well, having had contact with him numerous 

times—Officer Kaminski encountered Delgado 30 to 50 times 

over an eight-year period through detentions, consensual 

encounters, and patrols; Officer Massey had previously interacted 

with Delgado on five to 10 occasions; and Officer Hunt had seen 

Delgado over a dozen times in the area. This is in stark contrast 

15 Officer Massey did not express his level of certainty in his

identification.
23

to Lemcke, supra, 11 Cal.5th at page 649, where Campusano did 

not know Lemcke or Rudd prior to the attack. Further, unlike in 

Lemcke in which only Campusano identified the defendant, the 

three officers independently identified Delgado, and the jury was 

therefore unlikely to have placed much weight, if any, on each

officer’s degree of confidence in his identification. (See Wright,

supra, 12 Cal.5th at p. 453.)

The jury was also instructed to consider, “How well could 

the witness[es] see the perpetrator?” and “What were the

circumstances affecting the witness’s ability to observe, such as 

lighting, weather conditions, obstructions, distance and duration 

of observation, and by looking at a video of a surveillance 

camera?” Officer Massey testified the quality of the 3405 Drew 

Street video was superior to the photograph Massey took of the 

video from his computer screen, and Officer Kaminski explained 

that although he could not identify Delgado from the photograph 

alone, Delgado’s face was clearly visible in the video. In his crossexamination and closing argument defense counsel rigorously 

challenged both the quality of the video and the officers’ ability to 

perceive Delgado, but defense counsel did not challenge the 

officers’ attested certainty in their identifications. (See Wright, 

supra, 12 Cal.5th at p. 453 [“[D]efendant’s primary trial strategy

was to discredit Ralph, Priest, and Martin, and to imply that the 

eyewitnesses were testifying falsely. At no point did defendant 

argue that the witnesses mistook his identity.”].) 

Moreover, there was substantial circumstantial evidence of 

Delgado’s identity as the shooter separate from the officers’ 

identifications. Officer Massey testified the video showed the 

man he identified as Delgado in a white sleeveless shirt standing 

in the front courtyard of 3405 Drew Street, entering into 

apartment 2, emerging with a firearm, and then firing at the 
24

passing vehicle. This testimony was corroborated by Massey’s 

photograph of the video showing a bald man of Delgado’s general 

description in a sleeveless white shirt and the video of the 

shooting from 3407 Drew Street. And when the police executed 

the search warrant for apartment 2 at 3405 Drew Street a week 

after the incident, they found Delgado sitting outside of the 

building, and they recovered items bearing Delgado’s name in the 

apartment. In his closing argument, the prosecutor argued this 

evidence was sufficient even absent the identifications of 

Delgado, and he reminded the jury, “If you choose not to believe 

the police officers, that’s up to you to decide.” 

Under these circumstances, “‘“in the context of the trial 

record as a whole,”’” the trial court’s inclusion of a witness’s 

degree of certainty in an identification among the factors the jury 

could consider when evaluating the identification testimony “did 

not render [the] trial fundamentally unfair” and did not violate 

Delgado’s due process rights. (Lemcke, supra, 11 Cal.5th at 

p. 646; accord Wright, supra, 12 Cal.5th at p. 453.)

B. Assembly Bill 333 Requires Reversal of the Gang 

Enhancements 

1. Assembly Bill 333’s amendments to section 186.22

Section 186.22 provides for enhanced punishment when a 

defendant is convicted of an enumerated felony committed “for 

the benefit of, at the direction of, or in association with a criminal 

street gang, with the specific intent to promote, further, or assist 

in any criminal conduct by gang members.” (§ 186.22, 

subd. (b)(1).) Effective January 1, 2022, Assembly Bill 333 made 

significant modifications to the requirements for proving a 

criminal street gang enhancement. As relevant here, a “‘criminal 

street gang’” was formerly defined in section 186.22, 
25

subdivision (f), as “any ongoing organization, association or group 

of three or more persons, whether formal or informal, having as 

one of its primary activities the commission of one or more of acts 

enumerated in [section 186.22, subdivision (e)(1)-(25) and (31)-

(33)], having a common name or common identifying sign or 

symbol, and whose members individually or collectively engage 

in, or have engaged in, a pattern of criminal gang activity.” 

Subdivision (f) now defines a criminal street gang as “an ongoing, 

organized association or group of three or more persons, whether 

formal or informal,” and requires that members of the gang 

“collectively engage in, or have engaged in a pattern of criminal 

gang activity” (rather than “individually or collectively,” under 

the previous law). (Italics added.)

Assembly Bill 333 also modified the definition of “‘pattern 

of criminal gang activity’” in section 186.22, subdivision (e). 

Formerly, the law required proof of two or more predicate 

offenses enumerated in that subdivision, “provided at least one of 

these offenses occurred after the effective date of this chapter 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.” As amended, subdivision (e)(1) now 

requires proof that “at least one of these offenses occurred after 

the effective date of this chapter, and the last of those offenses 

occurred within three years of the prior offense and within three 

years of the date the current offense is alleged to have been 

committed, the offenses were committed on separate occasions or 

by two or more members, the offenses commonly benefited a 

criminal street gang, and the common benefit of the offense is 
26

more than reputational.”16 (§ 186.22, subd (e)(1).) Further, “[t]he 

currently charged offense shall not be used to establish the 

pattern of criminal gang activity.” (§ 186.22, subd. (e)(2).) New 

section 186.22, subdivision (g), provides, “As used in this chapter, 

to benefit, promote, further, or assist means to provide a common 

benefit to members of a gang where the common benefit is more 

than reputational. Examples of a common benefit that are more 

than reputational may include, but are not limited to, financial 

gain or motivation, retaliation, targeting a perceived or actual 

gang rival, or intimidation or silencing of a potential current or 

previous witness or informant.” 

In addition to the definitional changes, Assembly Bill 333 

added section 1109, which requires, if requested by the 

defendant, that trial of a gang enhancement charged under 

section 186.22, subdivision (b), be bifurcated from and follow trial 

of the underlying offenses. (§ 1109, subd. (a); Stats. 2021, 

ch. 699, § 5, pp. 11-12.) The bill also amends section 186.22, 

subdivision (b)(3), effective January 1, 2023, to provide that the 

sentencing court “shall order the imposition of the middle term of 

the sentence enhancement, unless there are circumstances in 

aggravation or mitigation” (Stats. 2021, ch. 699, § 4, p. 10), 

whereas the existing law provides the court “shall select the 

16 Section 186.22, subdivision (e)(1), was also amended to 

limit the predicate offenses that can be used to establish a 

pattern of criminal gang activity, removing vandalism, looting,

and a number of fraud-related offenses. Section 186.22, 

subdivision (f), which formerly referred to “criminal acts 

enumerated in paragraph (1) to (25), inclusive, or (31) to (33), 

inclusive, of subdivision (e)” now simply refers to “the criminal 

acts enumerated in subdivision (e).” 
27

sentence enhancement that, in the court’s discretion, best serves 

the interests of justice. . . .” (§ 186.22, subd. (b)(1)(C)(3).) 

Delgado contends, the People concede, and we agree 

Assembly Bill 333’s amendments to section 186.22 that became 

effective January 1, 2022 apply retroactively to Delgado’s 

conviction under the principles enunciated in In re Estrada 

(1965) 63 Cal.2d 740. In Estrada, the Supreme Court held that 

statutory amendments that reduce the punishment for an offense 

apply retroactively to a defendant whose judgment is not yet final 

absent a contrary legislative intent.17 (Id. at p. 745; see People v. 

Superior Court (Lara) (2018) 4 Cal.5th 299 [discussing Estrada

and its progeny].) Although the amendments effective in 2022 do 

not alter the punishment imposed for a gang enhancement, 

Estrada retroactivity applies because the amendments increase 

the threshold for imposition of the enhancement. (People v. Lopez

(2021) 73 Cal.App.5th 327, 344 (Lopez) [“As Assembly Bill 333 

increases the threshold for conviction of the section 186.22 

offense and the imposition of the enhancement, we agree with 

[defendant] and the People that [defendant] is entitled to the 

benefit of this change in the law.”]; see People v. Nasalga (1996) 

12 Cal.4th 784, 792 [“The rule in Estrada has been applied to 

17 The amendment to section 186.22, subdivision (b)(3), 

constraining the trial court’s discretion to impose the upper (or

lower) term of a gang enhancement does not take effect until 

January 1, 2023. If the People elect to retry the gang 

enhancements and the jury finds they are true, the law in effect 

at the time of sentencing would apply to Delgado’s resentencing;

however, the trial court may consider that if Delgado again 

appeals, the amendment to subdivision (b)(3) would apply if 

Delgado’s judgment of conviction is not final as of January 1, 

2023.
28

statutes governing penalty enhancements, as well as to statutes 

governing substantive offenses.”]; Tapia v. Superior Court (1991) 

53 Cal.3d 282, 301 [statutory amendments that “redefine, to the 

benefit of defendants, conduct subject to criminal sanctions” 

apply to cases pending on appeal]; People v. Millan (2018) 

20 Cal.App.5th 450, 455-456 [amendment narrowing list of 

convictions qualifying for imposition of enhancement applies

retroactively].)

2. We cannot conclude beyond a reasonable doubt the 

jury based its true finding on the gang enhancement 

on a finding members of the Avenues gang collectively 

engaged in a pattern of criminal activity

Delgado contends that in light of the amendments to 

section 186.22, the gang enhancements must be reversed because 

the trial court erred in instructing the jury under former 

subdivision (f) that it could find the gang enhancements true if 

the People proved that members of the Avenues gang, “whether 

acting alone or together, engage in or have engaged in a pattern 

of criminal gang activity.” Delgado argues amended subdivision 

(f)’s requirement that gang members “collectively engage” in a 

pattern of criminal gang activity means the People were required 

to prove that two or more gang members committed each 

predicate offense in concert, and here, no evidence was presented 

that multiple Avenues gang members committed the predicate 

offenses. The People contend that under subdivision (f), proof 

that individual gang members committed the predicate offenses 

on separate occasions is sufficient to show the gang members 

“collectively” engaged in a pattern of criminal activity, and 

therefore reversal is not required because the People presented 

evidence that two different Avenues gang members committed 
29

the predicate offenses on separate occasions. Delgado has the 

better argument.

We review questions of statutory construction de novo.

(People v. Lewis (2021) 11 Cal.5th 952, 961; California Building 

Industry Assn. v. State Water Resources Control Bd. (2018) 

4 Cal.5th 1032, 1041.) “‘“‘“As in any case involving statutory 

interpretation, our fundamental task here is to determine the 

Legislature’s intent so as to effectuate the law’s purpose. 

[Citation.] We begin by examining the statute’s words, giving 

them a plain and commonsense meaning.”’”’” (Lewis, at p. 961; 

accord, People v. Gonzalez (2017) 2 Cal.5th 1138, 1141.) “‘“[W]e 

look to ‘the entire substance of the statute . . . in order to 

determine the scope and purpose of the provision . . . [Citation.]’

[Citation.] That is, we construe the words in question ‘“in 

context, keeping in mind the nature and obvious purpose of the 

statute. . . .” [Citation.]’ [Citation.] We must harmonize ‘the 

various parts of a statutory enactment . . . by considering the 

particular clause or section in the context of the statutory 

framework as a whole.’”’” (Lewis, at p. 961.) “‘If the statutory 

language permits more than one reasonable interpretation, 

courts may consider other aids, such as the statute’s purpose, 

legislative history, and public policy.’” (Mendoza v. Fonseca 

McElroy Grinding Co., Inc. (2021) 11 Cal.5th 1118, 1125; accord, 

People v. Superior Court (Arnold) (2021) 59 Cal.App.5th 923, 

931.)

As a threshold matter, we read the term “collectively” in a 

commonsense manner to mean what it says—committed by more 

than one person, and not, as argued by the People, individually 

but on a different day. Our reading is consistent with the Senate 

Rules Committee’s analysis of Assembly Bill 333, which described 

the amendment to section 186.22, subdivision (f), as requiring 
30

“that engagement in a pattern of criminal activity must be done 

by members collectively, not individually.” (Sen. Rules Com., Off. 

of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 333 

(2021-2022 Reg. Sess.) as amended July 13, 2021, p. 4.) Further, 

both before and after amendment, the definition of a “pattern of 

criminal gang activity” in section 186.22, subdivision (e) (now 

subdivision (e)(1)), requires the commission of two predicate 

offenses that “were committed on separate occasions or by two or 

more members.” Thus, the prosecution could meet this 

requirement by proving two gang members individually 

committed the predicate offenses on two separate occasions or 

two gang members collectively committed two predicate offenses 

on the same date. Under the People’s interpretation of the 

change to subdivision (f), removal of the word “individually”

simply means it is no longer sufficient for a single individual to 

commit both predicate offenses on different days, but rather, a 

different individual must commit each offense. Such a minimal

change to the statute is inconsistent with the Legislature’s intent 

to significantly limit the scope of the gang enhancement.

As the Senate Committee on Appropriations bill analysis 

described Assembly Bill 333, the amendment was designed to 

“narrow the conduct that is prosecutable, and lead[s] to enhanced 

sentences, as criminal street gang activity . . . .” (Sen. Com. on 

Appropriations, Analysis of Assem. Bill No. 333 (2021-2022 Reg. 

Sess.) as amended July 13, 2021, p. 1.) Section 2 of the 

legislation likewise makes clear the Legislature’s intent to 

dramatically limit the scope of the gang enhancement because of 

its criminalization of “entire neighborhoods historically impacted 

by poverty, racial inequality, and mass incarceration,” 

disproportionate impact on people of color, and legitimization of 

severe punishment. (2021 Stats., ch. 699, § 2, subds. (a), (d)(1) & 
31

(2), (i), pp. 2-4.) Reading the amendment to section 186.22, 

subdivision (f), to limit application of the gang enhancement to 

situations where individual gang members commit the predicate 

offenses on separate occasions would do little to further this 

legislative purpose.

Our colleagues in Division Eight recently reached a similar 

conclusion as to the interpretation of amended section 186.22, 

subdivision (f), in Lopez, supra, 73 Cal.App.5th at pages 344 to 

345, observing that where the People had introduced evidence as 

to the predicate offenses that one gang member committed two 

murders and another gang member committed a carjacking and 

robbery, “The evidence that these gang members individually 

engaged in a pattern of criminal gang activity was sufficient at 

the time of trial to meet the requirements of section 186.22, but 

when it becomes effective, Assembly Bill 333 will require the 

prosecution to prove collective, not merely individual, 

engagement in a pattern of criminal gang activity.” Although the 

court reversed the gang enhancement based on Assembly Bill 

333’s modifications to section 186, subdivision (e)(1), and new 

subdivision (g), the court nonetheless found “[n]o evidence was 

introduced at trial to establish that the crimes committed by [the 

gang members] constitute collective criminal activity by the 18th 

Street gang.” (Lopez, at p. 345.)

The People contend that even though the trial court 

instructed the jury that it could find the gang enhancements true 

based on individual or collective gang activity, the instructional 

error was harmless beyond a reasonable doubt under Chapman v. 

California (1967) 386 U.S. 18, 24. Where a trial court instructs 

the jury on two legal theories, one of which is legally erroneous—

here, that the jury could find the gang enhancements true based 

on a finding gang members individually engaged in a pattern of 
32

criminal gang activity—“[t]he reviewing court must reverse the 

conviction unless, after examining the entire cause, including the 

evidence, and considering all relevant circumstances, it 

determines the error was harmless beyond a reasonable doubt.” 

(People v. Aledamat (2019) 8 Cal.5th 1, 13 [erroneous instruction 

that jury could consider a box cutter an inherently deadly weapon 

constituted harmless error because no reasonable jury would 

have failed to find defendant used the box cutter in a deadly 

manner]; People v. Chiu (2014) 59 Cal.4th 155, 167 [error in 

instructing jury on first degree murder was not harmless where 

record “show[ed] that the jury may have based its verdict of first 

degree premeditated murder on the [now erroneous] natural and 

probable consequences theory,” and thus, on appeal the court 

could not “conclude beyond a reasonable doubt that the jury 

based its [first degree murder] verdict on the legally valid theory 

that defendant directly aided and abetted the murder”]; see 

Chapman v. California, supra, 386 U.S. at p. 24.)

We cannot conclude beyond a reasonable doubt that the 

jury imposed the gang enhancements on a now legally-valid 

ground under Assembly Bill 333’s amendments. The 

prosecution’s gang expert, Officer Hunt, was asked only whether 

Avenues gang members “either individually or collectively 

engaged in patterns of criminal conduct,” to which he responded, 

“They have.” Officer Hunt testified as to one of the predicate 

offenses that Avenues gang member Erentreich was convicted in 

2017 of possession of a firearm based on his throwing a loaded 

shotgun out of his car window while fleeing police. Officer Hunt 

did not testify that any other gang member was involved in the 
33

crime, nor does the minute order of Erentreich’s conviction show 

that other gang members were involved in the crime.18

Accordingly, we reverse the true findings on the gang 

enhancement. We agree with the People, however, that the 

proper remedy is to remand to give the prosecution an 

opportunity to retry the gang enhancement under current law. 

(See Lopez, supra, 73 Cal.App.5th at p. 346 [vacating gang 

enhancements in light of Assembly Bill 333 and remanding for 

limited retrial]; People v. Figueroa (1993) 20 Cal.App.4th 65, 71-

72, fn. 2 [remand appropriate to allow prosecution to establish 

additional element retroactively added by statutory amendment]; 

cf. People v. Nasalga, supra, 12 Cal.4th at p. 798 [declining to 

remand for retrial of amount of property loss for purposes of 

determining applicable sentence under amendment to sentencing 

law because the People proved amount of loss at prior trial, 

leaving nothing to retry].)

DISPOSITION

Delgado’s convictions of shooting at an occupied motor 

vehicle, possession of a semiautomatic firearm by a felon, and 

assault with an assault weapon, and the jury’s true findings on 

the firearm enhancements are affirmed. The jury’s true findings 

that Delgado committed the offenses for the benefit of a criminal 

18 Because the People were required to introduce evidence of 

at least two predicate offenses to prove a pattern of criminal gang 

activity, we need not resolve whether the evidence as to the 

second predicate offense showing Webb was accompanied by a 

fellow gang member when he committed assault with a firearm 

was sufficient to establish collective engagement in criminal gang 

activity.
34

street gang are reversed. The cause is remanded to provide the 

People an opportunity to retry the criminal street gang 

enhancement. If the People elect not to do so, Delgado is to be 

resentenced in a manner consistent with this opinion.

FEUER, J.

We concur:

PERLUSS, P. J.

SEGAL, J.