Filed 5/23/24 P. v. Aguilera CA2/1

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

OSCAR AGUILERA,

Defendant and Appellant.

 B325498

 (Los Angeles County

 Super. Ct. No. LA070638)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Gregory A. Dohi, Judge. Vacated in part 

and affirmed in part. 

Eileen Manning-Villar, 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, Michael C. Keller and John Yang, Deputy 

Attorneys General, for Plaintiff and Respondent.

____________________________
2

In January 2012, after a gang confrontation, defendant 

Oscar Aguilera shot and killed rival gang member Samuel 

Guerra. In 2017, a jury convicted defendant of first degree 

murder and of being a felon in possession of a firearm. The jury 

found true the gang and firearm enhancements.

This is defendant’s second appeal. He argues, respondent 

concedes, and we agree that based on legislation subsequent to 

his trial, the gang enhancements connected to both counts must 

be reversed. Defendant also argues he is entitled to a new trial 

on the murder count because the gang enhancements were tried 

jointly with the murder count. We disagree. Even assuming 

retroactivity of Penal Code1 section 1109, which requires if 

requested, bifurcated trials of gang enhancements and the 

underlying charged crimes, defendant was not prejudiced by the 

joint trial of the gang enhancements and murder count under 

either the federal or state standard of prejudice.2 Finally, 

defendant argues the trial court abused its discretion in refusing 

to strike or reduce the firearm enhancement attached to the 

murder count because the court did not properly consider 

mitigating circumstances under posttrial amendments to 

section 1385.3 This argument fails because defendant has not 

shown a mitigating circumstance described in these amendments. 

We reverse the gang enhancements and otherwise affirm the 

judgment. 

1 Undesignated statutory citations are to the Penal Code. 

2 See Discussion, part B, post. 

3 See Discussion, part C, post.
3

PROCEDURAL BACKGROUND

Defendant was jointly tried with Jeffrey Martinez. The 

jury convicted defendant of first degree murder of Guerra and 

found a gang enhancement true. The jury also found true that 

defendant personally and intentionally discharged a firearm 

causing Guerra’s death. The jury found defendant guilty of being 

a felon in possession of a firearm and found true the gang 

enhancement attached to that offense. The jury acquitted 

Martinez. 

The court sentenced defendant to 50 years to life on the 

murder count but stayed the three-year sentence for the 

possession count and four-year gang enhancement sentence on 

that count. The murder sentence consisted of 25 years to life for 

the murder and an additional 25 years for the firearm 

enhancement. The gang enhancement did not augment 

defendant’s murder sentence. 

In his prior appeal in 2019, we rejected defendant’s 

argument there was no evidence he was a felon; defendant 

admitted that fact. We also found substantial evidence supported 

the gang enhancement in effect at that time; the definition of 

gang enhancement has since been modified. We remanded the 

case to the trial court to exercise its discretion pursuant to the 

then newly enacted section 12022.53 to decide whether to strike 

the firearm enhancement and to conduct a youth offender parole 

hearing pursuant to the then newly enacted section 3051, 

subdivision (a)(1). (People v. Aguilera (Feb. 26, 2019, B282381) 

[nonpub. opn.].) 

Upon remand, defendant filed a motion for resentencing 

and presented additional evidence (described in our Discussion) 

in support of his request that the trial court strike or reduce the 
4

firearm enhancement and resentence him accordingly. After a 

hearing, the trial court denied defendant’s motion. 

FACTUAL BACKGROUND4

1. The murder

Defendant describes the murder as follows: After his 

confederates announced they were from the Vineland Boyz gang 

[Vineland] they “surrounded” Guerra “demanding to know where 

he was from.” “After Guerra responded that he was from MS [a 

rival gang], appellant walk[ed] over to a grey car, walk[ed] back 

to where Guerra was standing and sho[t] him in the head. 

[Citations.] When Guerra fell to the ground, appellant shot him 

several more times.” 

Defendant’s description of the murder is supported by the 

record. Guerra’s girlfriend testified she was with Guerra outside 

a nightclub. Martinez approached her and asked for a cigarette. 

Four males, including defendant, were together. Martinez and 

another male made signs indicating their Vineland membership. 

Martinez asked Guerra where he was from, meaning whether he 

was “gang-related.” After Guerra identified himself as MS 

(La Mara Salvatrucha gang), defendant shot him multiple times. 

On the night of the incident, Guerra’s girlfriend told a police 

officer that three or four males surrounded Guerra’s truck and 

one made a gesture indicating he was from Vineland gang. She 

told the officer that after Guerra fell to the ground, the shooter 

shot two or three more times. 

Guerra died of multiple gunshot wounds. 

4 We summarize only the facts and procedural history 

relevant to the current appeal. 
5

Prosecution witness David Fonseca (a Vineland gang 

member), testified that when interviewed in February 2012, he 

reported he saw defendant dismantle a gun; thereafter, 

defendant fled to Mexico.5 From Mexico, defendant asked 

Fonseca if “the heat was away already” so he could return from 

Mexico. Defendant told Fonseca to exercise his Fifth Amendment 

right to refuse to testify. 

2. Gang evidence

Officer Henry Garay testified as a gang expert. Garay 

opined defendant was a Vineland member. Defendant had a 

gang tattoo on his back, wrist, arm, leg, and face. Officer Garay 

further opined Fonseca and Martinez were Vineland gang 

members and noted Martinez had admitted his gang 

membership. 

Garay testified Vineland had between 300 and 

450 members. Garay stated Vineland members wrote graffiti, 

committed vandalism, carjacking, robberies, and attempted 

murder, as well as the murder of a police officer. According to 

Garay, Vineland members often used firearms in committing 

these crimes. Garay also testified Vineland member Jose 

Guttierez committed a carjacking in 2010. A detective testified 

that Vineland member Juan Huezo committed murder in 2009. 

When asked about the significance of territory to gangs, 

Garay testified that gangs use territory as their place for selling 

narcotics and committing other crimes. Garay testified the 

5 During cross-examination, Fonseca testified he did not 

see defendant dismantle the gun but was told defendant 

dismantled the gun. 
6

nightclub where Guerra was shot was located in territory claimed 

by Vineland. 

Garay further opined gang members enhance respect 

within the gang by committing crimes. Gang signs and tattoos 

identify a person’s gang. The question “where are you from” asks 

about a person’s gang membership. Asking that question often 

leads to an altercation involving firearms. Garay testified 

Vineland and MS are rival gangs except inside prison where they 

were aligned. 

When asked a hypothetical question based on the facts of 

this case, Garay opined the murder was committed for the benefit 

of, or in association with, a criminal street gang. Garay also 

testified the gang benefits because it continues a “pattern of fear” 

instilled in the community and other gang members. Garay 

testified that Vineland would “look weak” if a member would not 

respond to the “where are you from” challenge after the 

questioner identified himself as a rival gang member. 

During cross-examination by defendant’s attorney, Garay 

testified he personally investigated about 20 to 25 cases annually 

involving Vineland members. 

During cross-examination by Martinez’s attorney, Garay 

confirmed Vineland was a large gang with about 500 members. 

Garay confirmed he investigated approximately 25 crimes in the 

prior year committed by Vineland gang members. Garay testified 

not all these crimes involved murder; to the contrary, “[v]ery few” 

cases involved murder. 

During redirect, Officer Garay stated the question, “Where 

are you from?” often results in gang violence, possibly murder. 

During recross-examination, Martinez’s attorney asked Garay 

how many murders were included in last year’s 25 cases; Garay 
7

testified only an attempted murder. Garay further testified that 

a fist fight is more likely the product of a “where are you from” 

inquiry than a murder. 

Contrary to defendant’s assertion on appeal, the court ruled 

Fonseca could not testify as a gang expert. The court allowed 

him to testify about the structure and role of gangs. Fonseca 

testified the defendant’s chin tattoo indicates being a “frontline 

soldier.” During cross-examination by Martinez’s counsel, 

Fonseca also described Vineland as a large gang. During 

redirect, Fonseca testified he did not want to be a “snitch” 

because snitches get beaten up. 

3. Closing argument

Defendant’s counsel argued the prosecution did not “meet 

his burden.” Counsel questioned Guerra’s girlfriend’s eyewitness 

identification. Counsel contended the gang evidence was to 

“scare the crap out of everybody,” but co-counsel “did a very good 

job at pointing something out. Hundreds, thousands of these hitups that they call, ‘Where you from?’ ” do not result in a murder. 

Defendant’s counsel emphasized Garay’s testimony that of the 

25 gang cases he investigated in the last year, none was a 

murder. Counsel argued the prosecution wanted to “get gang 

members” and that “they’re . . . asking you to judge them because 

of their characters, not because of what they did.” Counsel 

argued that there was a reasonable doubt that defendant pulled 

the trigger. 

Among other things, the prosecutor countered: “You know, 

defense counsel for Mr. Martinez brought up the fact that 

Mr. Martinez has a job. And I’m sure alone, one to one, 

personally, may be a very nice guy, may be a hardworking 

person. You heard evidence also that Mr. Aguilera [defendant] 
8

also had a job. One on one, they may be fine people. [¶] The 

question is: What happens when they get together? What 

happens when these Vineland gang members come together? 

Something else happens. They try to out-macho each other. 

They kind of feed on each other. They support each other. That’s 

why you need a gang of more than one. When they get together, 

they start puffing out each other’s chest. They get bigger, bigger, 

bigger. They become more arrogant. They start throwing their 

signs, calling out their gang. Telling the MS gang member: 

Who’s this 17-year-old little kid? Get out of our territory. This is 

Vineland. Where are you from? [¶] The one nice guy becomes 

four thugs, four bullies. They become something else. And they 

become the murderous men that you see today.” 

DISCUSSION

A. The Gang Enhancements on Both Counts Must Be 

Vacated Because There Was No Evidence That the 

Gang Benefited From the Predicate Offenses Beyond 

in Reputation or of Any Link Between the Predicate 

Offenses and the Gang as an Organized Collective 

Enterprise 

Section 186.22 permits a gang enhancement if, among 

other criteria, the prosecution proves the underlying offense was 

committed for the benefit of, at the direction of, or in association 

with, a criminal street gang. (People v. Tran (2022) 13 Cal.5th 

1169, 1205–1206 (Tran).) Effective January 1, 2022, the 

Legislature amended section 186.22 to redefine “criminal street 
9

gang”6 and a “pattern of criminal gang activity.”7 (People v. 

Clark (2024) 15 Cal.5th 743, 749 (Clark).) One change altered 

the requirements for proving a predicate offense, a prerequisite to 

establishing the existence of a criminal street gang. (Id. at 

p. 749.) “As amended by Assembly Bill 333,[8] section 186.22 

defines the term ‘ “criminal street gang” ’ to mean ‘an ongoing, 

organized association or group of three or more persons, . . . 

whose members collectively engage in, or have engaged in, a 

pattern of criminal gang activity.’ (§ 186.22, subd. (f), italics 

added.)” (Clark, at p. 749.) 

6 Section 186.22, subdivision (f) provides: “ ‘criminal street 

gang’ means an ongoing, organized 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 the criminal 

acts enumerated in subdivision (e), having a common name or 

common identifying sign or symbol, and whose members 

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

gang activity.” 

7 Section 186.22, subdivision (e)(1) provides in part: 

“ ‘[P]attern of criminal gang activity’ means the commission of, 

attempted commission of, conspiracy to commit, or solicitation of, 

sustained juvenile petition for, or conviction of, two or more of the 

following offenses, 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 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 from 

the offenses is more than reputational . . . .” 

8 Assembly Bill No. 333 (2021–2022 Reg. Sess.) was signed 

into law in 2021 (see Stats. 2021, ch. 699, § 3). 
10

The amended statute defines the “ ‘ “pattern of criminal 

gang activity,” ’ in turn, to mean, in pertinent part, the 

commission of (or other specified forms of involvement in) two 

offenses enumerated in the statute, ‘provided . . . [they] were 

committed on separate occasions or by two or more members’ of 

the gang and the offenses provided a benefit to the gang that is 

more than reputational.” (Clark, supra, 15 Cal.5th at p. 749, 

italics omitted.) The statute as revised after defendant’s trial 

requires a “showing that links the two predicate offenses to the 

gang as an organized collective enterprise.” (Id. at p. 761; see id.

at p. 749 [“This organizational nexus requirement is satisfied by 

showing a connection between the predicate offenses and the 

organizational structure, primary activities, or common goals and 

principles of the gang.”].) 

The amendments to the definitions in the gang 

enhancement are retroactive. (Clark, supra, 15 Cal.5th at p. 753; 

Tran, supra, 13 Cal.5th at p. 1207.) The record reveals no 

evidence (1) the predicate offenses—Huezo’s murder and 

Gutierrez’s carjacking—benefited the gang in a manner that was 

more than reputational; or (2) of any link between those offenses 

and the gang as an organized collective enterprise. (Clark, at 

p. 761 [“The change was made in service of the Legislature’s 

broader goal of differentiating between the threat posed by 

organized groups collectively engaged in criminal activity, versus 

the threat posed by individual, loosely connected persons who 

happen to commit crimes. That differentiation, we now conclude, 

requires a showing that links the two predicate offenses to the 

gang as an organized, collective enterprise.”]; see People v. E.H. 

(2022) 75 Cal.App.5th 467, 479, 481 [reversing gang 

enhancements where prosecution did not show new element that 
11

predicate offenses provided more than reputational benefit to 

gang].) Upon remand the People may elect to retry the gang 

enhancements.9 (Clark, at pp. 764–765.) 

B. Assuming Section 1109 Is Retroactive, the Alleged 

Error In Failing To Bifurcate Trial of the Gang 

Enhancements Was Not Prejudicial Under Either the 

State or Federal Standard of Prejudice

Defendant argues he is entitled to a new trial on the 

murder count because the trial court jointly tried that count with 

trial of the gang enhancements. Section 1109, enacted after 

defendant’s trial, requires, if requested, bifurcation of trial of 

gang enhancements and underlying offenses.10 (Tran, supra, 

9 Because we vacate the gang enhancements, we do not 

address defendant’s arguments that other prerequisites under 

the amended statute were not satisfied. 

10 Section 1109 provides: “(a) If requested by the defense, 

a case in which a gang enhancement is charged under 

subdivision (b) or (d) of Section 186.22 shall be tried in separate 

phases as follows:

“(1) The question of the defendant’s guilt of the underlying 

offense shall be first determined.

“(2) If the defendant is found guilty of the underlying 

offense and there is an allegation of an enhancement under 

subdivision (b) or (d) of Section 186.22, there shall be further 

proceedings to the trier of fact on the question of the truth of the 

enhancement. Allegations that the underlying offense was 

committed for the benefit of, at the direction of, or in association 

with, a criminal street gang and that the underlying offense was 

committed with the specific intent to promote, further, or assist 
12

13 Cal.5th at p. 1208.) We assume for purposes of this appeal, 

defendant did not forfeit this challenge notwithstanding he 

did not request bifurcation of the gang enhancement at trial and 

did not request it on remand from the first appeal. 

We assume arguendo that section 1109 is retroactive, an 

issue currently pending in the Supreme Court. (See Tran, supra, 

13 Cal.5th at p. 1208; People v. Burgos (2022) 77 Cal.App.5th 550, 

review granted July 13, 2022, S274743.) Notwithstanding these 

favorable assumptions, defendant has failed to show prejudice 

from any error in failing to bifurcate trial of the gang 

enhancements.

Contrary to defendant’s argument, failure to bifurcate trial 

of a gang enhancement is not structural error. (Tran, supra, 

13 Cal.5th at p. 1208.) As for prejudice, defendant appears to 

concede some gang evidence would have been admissible even in 

a bifurcated murder trial because it was probative of motive 

when he argues on appeal, “[w]hile some gang evidence might be 

allowed in as evidence of motive even in a bifurcated trial, it is 

inconceivable that . . . anything like the evidence here would be 

admitted.” 

The thrust of defendant’s prejudice argument is that the 

gang evidence constituted “propensity evidence that suggests to 

in criminal conduct by gang members shall be proved by direct or 

circumstantial evidence.

“(b) If a defendant is charged with a violation of 

subdivision (a) of Section 186.22, this count shall be tried 

separately from all other counts that do not otherwise require 

gang evidence as an element of the crime. This charge may be 

tried in the same proceeding with an allegation of an 

enhancement under subdivision (b) or (d) of Section 186.22.” 
13

the jury that if you are a member of a gang, you are very likely to 

commit crimes like the one of which you are accused.” Defendant 

cites Garay’s testimony in asserting it “suggest[ed] to the jury 

that if you are a member of a gang, you are very likely to commit 

crimes like the one of which you are accused.” Defendant further 

argues the gang evidence allowed the prosecutor to argue 

defendant and his fellow gang members “feed on each other” and 

“support each other” leading them to “become the murderous men 

that you see today.” 

We conclude the purported error in failing to bifurcate trial 

of the gang enhancements was harmless under either Chapman

(Chapman v. California (1967) 386 U.S. 18) or Watson (People v. 

Watson (1956) 46 Cal.2d 818). First, the trial court instructed the 

jury: “You may not conclude from this evidence [of gang activity] 

that the defendant or any defendant is a person of bad character, 

that he has a disposition to commit crime.”11 The court’s 

instruction, which we must presume the jury followed (People v. 

Wilson (2023) 89 Cal.App.5th 1006, 1014), indicates the jury 

could not have convicted defendant based merely on gang 

membership or any propensity to commit crimes. 

Second, the jury’s acquittal of co-defendant Martinez, 

despite evidence that he too was a Vineland member and that his 

trial included the same gang evidence, provides further support 

that neither the gang evidence nor the prosecutor’s argument 

11 When Officer Garay testified about the crimes, the court 

told the jury: “A criminal street gang has a legal technical 

definition. In order to satisfy that legal technical definition, the 

prosecution gets to ask about other crimes committed allegedly 

by the same gang. All right. So this is going to the legal 

definition of what’s a criminal street gang.” 
14

motivated the jury to convict defendant. Finally, the jury 

deliberated for less than one day with respect to both defendants,

which suggests, contrary to defendant’s characterization of the 

evidence, that the jury did not view the case as close. (See People 

v. Houston (2005) 130 Cal.App.4th 279, 300 [jury deliberations 

over four days did not show case was close but instead showed 

jury’s “ ‘conscientious performance of its civic duty’ ”]; compare

In re Martin (1987) 44 Cal.3d 1, 51 [22-hour deliberation supports 

inference that jury believed case was close].) 

C. The Trial Court Acted Within its Discretion In 

Imposing the Firearm Enhancement

Defendant argues the trial court abused its discretion 

when, on remand, the court reimposed the 50-year-to-life 

sentence instead of striking or reducing the firearm enhancement 

and resentencing him. Specifically, defendant contends there is a 

reasonable probability the trial court would not have sentenced 

him to 50 years to life if it had properly understood its discretion 

under amendments to section 1385, subdivision (c)(2), effective on 

January 1, 2022—10 months before the hearing on defendant’s 

resentencing motion. We begin with additional background and 

then turn to defendant’s arguments.

1. Additional Background

Defendant filed a motion for resentencing requesting the 

trial court to strike or reduce the firearm enhancement. 

Defendant is correct that neither his trial counsel nor the 

prosecutor referred the trial court to the new provisions in 

section 1385. 

In support of his motion, defendant attached Dr. Ronette 

Goodwin’s April 14, 2021 report in which Goodwin described 
15

defendant’s difficult upbringing. Defendant’s mother died when 

he was 12 years old, and defendant described “feeling lost and 

abandoned after his mother’s death.” Defendant reported that 

after his mother’s death, his grades declined as did his interest in 

extracurricular activities. Defendant told Goodwin he joined 

Vineland at age 14, when he also dropped out of school and began 

abusing cocaine and methamphetamine. Defendant reported 

that before his mother’s death, his father hit him with belts and 

cables, but his father stopped after defendant’s mother died. 

Defendant stated he was charged with multiple crimes prior to 

the current offense and served one year in state prison where he 

was involved with gangs; he “ ‘wasn’t afraid of going back’ ” to 

prison. 

According to Goodwin, defendant told him that on the day 

of the incident underlying his convictions, defendant used heroin 

and felt “challenged” when the victim indicated his MS gang 

membership. Defendant said he “ ‘pulled the trigger’ because he 

believed that by ‘stepping up’ he could gain a respectable name.” 

While in prison, defendant was not active in the gang although 

he did not “drop[ ] out.” Defendant also told Goodwin that in 

prison, he received his GED and had enrolled in a college 

program. Goodwin opined defendant’s mother’s death “impacted 

his psychological development.” Goodwin determined defendant 

had a moderate to high risk for general recidivism. 

A later report by an investigator described communications 

with defendant’s family members. Maternal aunt reported no 

abuse in defendant’s family. According to defendant’s aunt, his 

mother’s death affected defendant, but defendant’s father “was 

very caring and took good care of [Defendant] after” his mother’s 

death. Defendant’s father reported defendant’s family was “close-
16

knit”; there was no abuse in the home. According to defendant’s 

father, defendant stopped attending school when defendant 

turned 16 and started working. Paternal uncle, who lived with 

defendant, reported no abuse in the home and indicated 

defendant had a good relationship with his father after 

defendant’s mother died. Defendant’s brother also reported no 

abuse in the family home. 

At a hearing on November 10, 2022, the People opposed 

striking the firearm enhancement. The People cited the cruel 

nature of the murder, which was committed at close range on an 

unarmed victim. At the hearing, defendant denied he was the 

shooter, and emphasized his difficulties after his mother died. 

Defendant also argued he “changed” during his incarceration. 

The parties discussed when defendant would be eligible for 

parole and the court noted his eligibility would be the same 

regardless of whether the court struck or imposed the firearm 

enhancement. 

The court explained it was mindful of defendant’s mother’s 

death, as well as his efforts to educate himself while incarcerated. 

The court described defendant’s childhood as a “mixed bag,” 

“wasn’t bad. Wasn’t good.” The court explained, “[The] bottom 

line is this; . . . the crime was extremely callous.” 

2. Analysis

We review the trial court’s decision not to strike or reduce 

the firearm enhancement for abuse of discretion. (People v. 

Mendoza (2023) 88 Cal.App.5th 287, 298.) Defendant argues the 

trial court did not understand the boundaries of its discretion in 

recent amendments to section 1385, and thus abused that 

discretion when it refused to strike or reduce the 25-year firearm 

enhancement. Given the centrality of these amendments to 
17

defendant’s argument, we set forth below the pertinent 

provisions of amended section 1385.

Section 1385, subdivision (c)(1) provides: “Notwithstanding 

any other law, the court shall dismiss an enhancement if it is in 

the furtherance of justice to do so, except if dismissal of that 

enhancement is prohibited by any initiative statute.” The statute 

dictates in subsection (c)(2): “In exercising its discretion under 

this subdivision, the court shall consider and afford great weight 

to evidence offered by the defendant to prove that any of the 

mitigating circumstances in subparagraphs (A) to (I) are present.

Proof of the presence of one or more of these circumstances 

weighs greatly in favor of dismissing the enhancement, unless 

the court finds that dismissal of the enhancement would 

endanger public safety. ‘Endanger public safety’ means there is a 

likelihood that the dismissal of the enhancement would result in 

physical injury or other serious danger to others.” (Italics added.) 

The mitigating factors referenced in section 1385, 

subdivision (c)(2) are: 

“(A) Application of the enhancement would result in a 

discriminatory racial impact as described in paragraph (4) of 

subdivision (a) of Section 745.

“(B) Multiple enhancements are alleged in a single case. 

In this instance, all enhancements beyond a single enhancement 

shall be dismissed.

“(C) The application of an enhancement could result in a 

sentence of over 20 years. In this instance, the enhancement 

shall be dismissed.

“(D) The current offense is connected to mental illness.

“(E) The current offense is connected to prior victimization 

or childhood trauma.
18

“(F) The current offense is not a violent felony as defined in 

subdivision (c) of Section 667.5.

“(G) The defendant was a juvenile when they committed 

the current offense or any prior offenses, including criminal 

convictions and juvenile adjudications, that trigger the 

enhancement or enhancements applied in the current case.

“(H) The enhancement is based on a prior conviction that 

is over five years old.

“(I) Though a firearm was used in the current offense, it 

was inoperable or unloaded.” (Italics added.) 

Finally, section 1385, subdivision (c )(6)(A) defines 

“ ‘[c]hildhood trauma’ ” as “physical, emotional, or sexual abuse, 

physical or emotional neglect” experienced by a minor. The same 

subsection lists what evidence would demonstrate such trauma: 

“A court may conclude that a defendant’s childhood trauma was 

connected to the offense if, after reviewing any relevant and 

credible evidence, including, but not limited to, police reports, 

preliminary hearing transcripts, witness statements, medical 

records, or records or reports by qualified medical experts, the 

court concludes that the defendant’s childhood trauma 

substantially contributed to the defendant’s involvement in the 

commission of the offense.”

In his opening brief, defendant relies on the following 

mitigating factors: discriminatory racial impact (§ 1385, 

subd. (c)(2)(A)), multiple enhancements (id., subd. (c)(2)(B)), and 

childhood trauma (id., subd. (c)(2)(E)). In his reply brief, he 

limits his argument to the childhood trauma mitigating factor. 

We observe defendant provided no evidence of discriminatory 

racial impact, and although the jury found true the gang and 

firearm enhancements, the gang enhancement did not increase 
19

defendant’s sentence and must be reversed for the reasons set 

forth in the preceding section of our Discussion. 

Defendant asserts, “[T]he crime was connected to prior 

victimization or childhood trauma— is, without question, present 

in this case.” He identifies the childhood trauma as “death of his 

mother, lack of education, alienation from family home, gang 

ties” and his addictions to various substances. Defendant 

assumes these are mitigating circumstances without identifying 

evidence that the alleged “trauma[s]” constituted “physical, 

emotional, or sexual abuse, physical or emotional neglect.” 

Defendant fails to identify any records or reports showing abuse 

or neglect that “substantially contributed to the defendant’s 

involvement in the commission of the offense.” (§ 1385, 

subd. (6)(A).) Defendant further ignores the trial court’s finding 

that his childhood was “not good” and “not bad,” a finding 

supported by evidence that notwithstanding defendant’s mother’s 

death, his remaining close-knit family cared for him. He thus 

fails to demonstrate the mitigating circumstance of childhood 

trauma on which he relies. 

We recognize our Supreme Court currently is considering 

whether section 1385, subdivision (c) creates a rebuttal 

presumption in favor of dismissing an enhancement where 

mitigating circumstances exist.12 We need not consider whether 

12 (See People v. Anderson (2023) 88 Cal.App.5th 233,

review granted Apr. 19, 2023, S278786; People v. Walker (2022) 

86 Cal.App.5th 386, review granted Mar. 22, 2023, S278309.) 

Walker involves the following issue: “Does the amendment to 

Penal Code section 1385, subdivision (c) that requires trial courts 

to ‘afford great weight’ to enumerated mitigating circumstances 

(Stats. 2021, ch. 721) create a rebuttable presumption in favor of 

dismissing an enhancement unless the trial court finds dismissal 
20

there is such a presumption because defendant has failed to 

demonstrate any mitigating circumstance.13 Because defendant 

identified no such circumstance, the trial court was not required 

to consider whether defendant posed a danger to public safety. 

Finally, defendant argues that the fact the timing of his 

parole eligibility is the same regardless of whether the firearm 

enhancement is stricken does not “justify” the trial court’s 

decision to impose the enhancement. According to defendant, 

although the enhancement may currently not affect his parole 

eligibility, in the future, the Legislature could modify the Penal 

Code. Defendant’s argument does not assist him because he fails 

to identify a mitigating circumstance supported by evidence. For 

that reason, the trial court acted within its discretion in imposing 

the firearm enhancement. Put differently, there is no error 

regardless of whether the firearm enhancement ultimately could 

affect defendant’s parole eligibility.14 

would endanger public safety?” (Supreme Ct. Mins., Mar. 22, 

2023.) 

13 We observe, as does defendant, that the trial court 

did not analyze, or make any findings as to whether defendant 

posed a danger to public safety. Any such failure does not mask 

the fatal flaw in defendant’s argument, that is, he did not 

demonstrate any mitigating circumstance to be evaluated against 

danger to public safety.

14 Defendant contends if we conclude he forfeited his 

challenges to the gang enhancements and murder conviction,

then his counsel rendered ineffective assistance of counsel. He 

similarly argues that if we conclude his challenge to the trial 

court’s refusal to strike or reduce the firearm enhancement is 

forfeited, then he received ineffective assistance of counsel. 
21

DISPOSITION

We vacate the gang enhancements attached to the murder 

and felon in possession of firearm conviction. We affirm the 

judgment in all other respects. 

NOT TO BE PUBLISHED.

BENDIX, J.

We concur:

ROTHSCHILD, P. J.

CHANEY, J.

Because we have addressed these challenges on their merits, we 

do not address his claims of ineffective assistance of counsel.