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Filed 1/26/23 P. v. Ponce CA1/3

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or 

ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

ADRIAN JOSEPH PONCE,

Defendant and Appellant.

 A155368

 (Contra Costa County

 Super. Ct. No. 51702232)

A jury found defendant Adrian Joseph Ponce guilty of several offenses,

including possession of heroin and methamphetamine for sale, and 

possession of a controlled substance while armed with a firearm. (Health & 

Saf. Code, §§ 11351, 11370.1, subd. (a), 11378.) It also found Ponce

committed these offenses “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 criminal conduct by gang members” — i.e., a gang 

enhancement. (Pen. Code,1 former § 186.22, subd. (b)(1); People v. Ponce

(Mar. 11, 2021, A155368) [nonpub. opn.], review granted June 9, 2021 and 

cause remanded Nov. 16, 2022, S267898 (Ponce).)

Ponce appealed, arguing the evidence was insufficient to support the 

gang enhancements. (Ponce, supra, A155368, rev. granted.) This court 

1 Undesignated statutory references are to this code.
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disagreed and affirmed. (Ibid.) But the California Supreme Court granted 

Ponce’s petition for review and remanded the matter to this court with 

directions to vacate our decision and reconsider the cause in light of its 

decision in People v. Renteria (2022) 13 Cal.5th 951 (Renteria), which clarified 

how to apply the gang enhancement when a defendant is a lone actor rather 

than acting with other gang members. Having now reconsidered Ponce’s case

in light of Renteria, we conclude substantial evidence supports the jury 

finding Ponce specifically intended to promote, further, or assist in any 

criminal conduct by gang members.

New ameliorative legislation that applies retroactively to Ponce

nonetheless requires us to remand this case. Assembly Bill No. 333 (2021–

2022 Reg. Sess.) (A.B. 333) amended the section 186.22 gang enhancement

elements for establishing the existence of a “criminal street gang” and 

“a pattern of criminal gang activity,” and the People did not prove the 

elements since A.B. 333 was not in effect at the time of Ponce’s jury trial. 

(Stats. 2021, ch. 699, §§ 1–5, eff. Jan. 1, 2022.) Remand is necessary for 

a determination on whether the gang enhancement in light of these new 

elements applies here. Ponce is also entitled to benefit from Assembly Bill 

No. 518 (2021–2022 Reg. Sess.) (A.B. 518), which conferred discretion on the 

trial court to select any applicable term of imprisonment — rather than the 

longest term possible — when two or more offenses provide punishment for 

the same criminal transaction. (Stats. 2021, ch. 441, § 1, eff. Jan. 1, 2022.) 

In all other respects, we affirm the judgment.

BACKGROUND

In 2017, police arrested Ponce’s brother, Raymon Ponce, after a search 

of his car revealed drug paraphernalia, a significant amount of cash, and 

bullets. (Ponce, supra, A155368, rev.gr.) As part of its investigation of 
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Raymon, police searched Ponce’s house in January 2017, discovering a .22-

caliber rifle, ammunition, a loaded handgun, $69,000 in cash, one pound of 

heroin, and more than one pound of methamphetamine, i.e., a quantity 

greater than the amount a drug user would usually possess. (Ibid.) 

Moreover, there was no paraphernalia for heroin use, such as syringes or 

straws, further indicating the drugs were possessed for sale. In addition, 

police found numerous articles of red clothing — a color associated with the 

Norteño gang — and a flag with a huelga bird logo — a symbol adopted by 

the Norteño gang. (Ibid.) In the kitchen was a Vitamix blender, empty clear 

plastic bags, and a digital scale. These goods, police later explained, were 

useful for cutting and mixing drugs as well as packaging the drugs in smaller 

portions for sale.

In Ponce’s bedroom closet, the police found a shoebox containing money 

orders and letters addressed to him from known, incarcerated Norteño 

members, and letters from Norteño members thanking Ponce for sending 

them money. (Ponce, supra, A155368, rev.gr.) Police discovered a phone 

charger inscribed in red ink with “XIV” and “CAL.” CAL is an acronym for 

“Crazy Ass Latinos,” a subset of the Norteño gang operating in Antioch, 

Brentwood, and Oakley, and engaging in criminal activity, such as robbery, 

drug sales, and prostitution. The activities make money for CAL. And CAL 

uses the same signs and symbols as the Norteño gang — the huelga bird, the 

roman numeral XIV, and the color red.

Relevant here, Ponce was charged with possession of heroin for sale 

(Health & Saf. Code, § 11351, count one); possession of methamphetamine for 

sale (Id., § 11378, count two); possession of two firearms following a violent 

felony conviction (former § 29900, subd. (a)(1), counts four and five); and 

possession of heroin and methamphetamine while armed with a loaded, 
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operable firearm (Health & Saf. Code, § 11370.1, subd. (a), count six). The 

indictment alleged weapon enhancements for counts one and two, as well as 

a gang enhancement for counts one, two, and six. (§§ 12022, subd. (c); 186.22, 

subd. (b)(1)(A).)

During Ponce’s jury trial, Detective Souza testified as an expert on the 

Norteño gang. (Ponce, supra, A155368, rev.gr.) His job entailed working on 

the Federal Bureau of Investigation’s “Safe Streets Task Force” and 

overseeing “Omega Red,” an operation that attempted to disrupt Norteño 

gang activities and included wiretapping its members. Souza discussed 

a 2018 jail phone call between Ponce and Raymon, who had a CAL tattoo and 

had been arrested with other Norteño members. Ponce and his brother 

discussed an inmate named “Mando,” who police believed to be Amando 

Amaro, a target of the Omega Red investigation. Amaro had a CAL tattoo,

and Ponce was recorded expressing his desire to be Amaro’s cellmate. 

According to Souza, Norteño gang members generally favor being housed 

with other Norteño members rather than rival gang members. During the 

phone call, Ponce also noted Robert Wickham, a known CAL gang member, 

referred to Ponce as “OG” — a term used to identify an older gang member.

Detective Souza also analyzed an August 2016 phone call between 

Ponce and J.Q., a convicted Norteño drug dealer. (Ponce, supra, A155368, 

rev.gr.) J.Q. made several statements indicating he owed Ponce a drug debt;

they discussed an arrangement for Ponce to supply J.Q. with more drugs for 

sale. In response to J.Q.’s statements that he was having difficulties 

repaying, Ponce stated “I am fucking struggling too. All these people got 

locked up with my shit.” J.Q. suggested he could start selling drugs right 

away, and he could repay Ponce in small dollar increments ultimately 

totaling $1,000. Souza testified this conversation took place shortly after 
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several Norteño members were arrested as part of the Omega Red operation,

suggesting the reference to “people [who] got locked up” was to other Norteño 

members who had drugs supplied by Ponce. According to Souza, the gang

provided a “built-in way to distribute the drugs through other gang 

members.”

Detective Souza opined Ponce’s offenses — possession of heroin and

methamphetamine for sale, and of a controlled substance with a firearm —

were committed for the benefit of or in association with the Norteño gang.

According to Souza, Ponce communicated with Norteño drug dealers, and 

Ponce was likely their drug source based on the large quantities of drugs 

found in his house. Revenue could be used to acquire weapons, fund 

incarcerated members’ lifestyles, and acquire more drugs to enhance drug 

enterprise profits.

The jury found Ponce guilty of the charged offenses and found true the 

gang and firearm enhancements. The court sentenced Ponce to 13 years in 

prison.

DISCUSSION

Ponce makes a series of challenges to his conviction and sentence, 

arguing there is insufficient evidence to support the gang enhancement, and 

recent legislation regarding gang enhancements and sentencing require 

reversal. We address each contention below.

I.

Ponce contends there was insufficient evidence to prove he committed

his possession offenses with the specific intent to promote, further, or assist 

criminal conduct by gang members, and his gang enhancements must be 

reversed. We disagree.
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When considering a challenge to the sufficiency of the evidence to 

support a gang enhancement, we review the entire record to determine 

whether it discloses substantial evidence — “that is, evidence that is 

reasonable, credible, and of solid value—from which a reasonable trier of fact 

could find the defendant guilty beyond a reasonable doubt.” (People v. 

Albillar (2010) 51 Cal.4th 47, 59–60.) We do not reweigh the evidence or 

reassess witness credibility, but instead presume the existence of every fact 

in support of the judgment that the jury could have reasonably deduced from 

the evidence. (Id., at p. 60.) Reversal “is not warranted simply because the 

circumstances might also reasonably be reconciled with a contrary finding.” 

(Ibid.)

Section 186.22 prescribes enhanced punishment for “gang-related 

conduct, i.e., felonies committed with the specific intent to benefit, further, or 

promote the gang.” (People v. Rodriguez (2012) 55 Cal.4th 1125, 1138.) The 

enhancement has two prongs. First, the underlying felony must be

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

criminal street gang — that is, the crime was gang-related. (People v. Perez

(2017) 18 Cal.App.5th 598, 606–607; § 186.22, subd. (b)(1).) Second, the 

felony must be committed “with the specific intent to promote, further, or 

assist in criminal conduct by gang members.” (§ 186.22, subd. (b)(1).) The 

defendant need not “act with the specific intent to promote, further, or assist 

a gang; the statute requires only the specific intent to promote, further, or 

assist criminal conduct by gang members.” (People v. Albillar, supra,

51 Cal.4th at p. 67.)

“Not every crime committed by an individual gang member is for the 

gang’s benefit or to promote criminal conduct by gang members.” (Renteria, 

supra, 13 Cal.5th at p. 957.) “[G]ang members can, of course, commit crimes 
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for their own purposes.” (Ibid.) In cases where other gang members jointly 

participate in the underlying offense, the specific intent prong is “generally 

shown by proof of criminal conduct undertaken in concert with other gang 

members.” (Id. at p. 965.) Renteria clarified how to apply the gang 

enhancement when a defendant acts alone — that is, when no other gang 

members are involved in the underlying offense. (Id. at pp. 965–966.) “Two 

features of the intent requirement are particularly relevant in lone-actor 

prosecutions.” (Id. at p. 965.) First, “a defendant facing sentence 

enhancement allegations for a gang-related felony under section 186.22(b) 

must at least be aware of the type of criminal activity the gang members 

pursue.” (Ibid.) Second, “[b]ecause the showing of intent must include the 

intent to promote criminal activity by others, in a lone-actor case this 

necessarily means an intent to promote criminal activity other than the 

charged offense.” (Id. at p. 966, italics added.)

The record contains sufficient evidence to prove both prongs of section 

186.22. The first prong — whether the offenses were committed for the 

benefit of, or in the association with, a criminal street gang — needn’t detain 

us long, as Ponce does not seriously contest the sufficiency of the evidence in 

support of that element. Nor can he. Among other evidence, Detective Souza

testified that Ponce was a Norteño gang member based on the items found in 

Ponce’s home, including red clothing, the huelga flag, correspondence with 

incarcerated Norteño members, and a phone charger inscribed in red with 

CAL and XIV. Ponce’s phone call with J.Q., a convicted Norteño drug dealer, 

evidenced Ponce’s role as a drug supplier to other Norteño members. And 

Souza also testified the drug sales provides the gang with revenue to assist 

members while in prison as well as to purchase more drugs and weapons. 
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Indeed, letters from known, incarcerated Norteño members containing money 

orders or thanks for supplying the gang members with funds were found 

in Ponce’s house. (Ponce, supra, A155368, rev.gr.) Given this evidence, 

a reasonable jury could conclude Ponce’s offenses were committed for the 

benefit of or in association with the Norteño gang.

We turn to the second prong — whether the felony was committed with 

the specific intent to promote, further, or assist in any criminal conduct by 

gang members. Ponce contends that, as in Renteria, he acted alone during

his offenses. Even assuming that is so, there is substantial evidence in the 

record from which a reasonable jury could conclude Ponce acted with the 

requisite intent to promote criminal activity other than the charged offense.

(Renteria, supra, 13 Cal.5th at pp. 965–966.)

Ponce was indisputably aware Norteño gang members sold drugs. 

(Renteria, supra, 13 Cal.5th at p. 965.) His gang involvement was both 

current and extensive. (Id. at p. 972 [jury can infer defendant intended to 

promote criminal activities of gang members through evidence demonstrating 

the degree of defendant’s involvement with the gang].) A known member of 

CAL referred to Ponce as OG, meaning an elder member of the gang. More 

importantly, the phone call between Ponce and J.Q. demonstrated Ponce 

regularly supplied Norteño members — including J.Q. — with drugs to sell.

During the call, Ponce stated “[a]ll these people got locked up with my shit.” 

Presuming the existence of every fact in favor of the judgment, and in light of 

Souza’s testimony that the statement was made shortly after the arrest of 

a large number of Norteño members, Ponce’s statement could reasonably be 

interpreted as acknowledging he had provided other gang members with 

drugs to sell. And the Vitamix blender, empty clear plastic bags, and a digital 
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scale in Ponce’s home all indicated he intended to cut, mix, and package his 

drugs into smaller portions for gang members to sell. (Renteria, at p. 966.)

Ponce’s attempt to diminish the significance of his August 2016 phone 

call with J.Q. is unpersuasive. Relying on Renteria, he contends the call 

lacked any temporal proximity to his January 2017 possession offenses and 

thus fails to demonstrate he specifically intended his offenses to promote 

criminal activity of Norteño members. We disagree. In Renteria, the court 

rejected the prosecution’s argument that defendant’s walking with a group of 

gang members earlier in the night evidenced defendant’s later shooting of 

two inhabited houses “to be attributed to the gang.” (Renteria, supra,

13 Cal.5th at p. 971.) Here, by contrast, Ponce engaged in an ongoing scheme 

to supply Norteño members with drugs for sale. As Detective Souza testified, 

the Norteño gang provided a structure to distribute drugs through their 

members. (Ponce, supra, A155368, rev.gr.) And reasonably inferred, Ponce 

supplied incarcerated Norteño members with revenue from those sales. 

Moreover, during the phone call, Ponce referred to the recent arrest of other 

members he had also supplied with drugs. Ponce then discussed supplying 

J.Q. with more drugs. A reasonable jury could conclude Ponce was supplying 

J.Q. — and other gang members — with drugs on an ongoing basis, and that 

Ponce’s current offenses were similarly intended. (People v. Miranda (2011) 

192 Cal.App.4th 398, 411 [“[t]here is rarely direct evidence that a crime was 

committed for the benefit of a gang,” we draw inferences about intent from 

“ ‘the predictable results of action’ ”].) Viewing the record in its entirety,

there was sufficient evidence Ponce committed his offenses “with the specific 

intent to benefit, further, or promote the gang.” (People v. Rodriguez, supra,

55 Cal.4th at p. 1138.)
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II.

The parties agree A.B. 333, legislation passed while Ponce’s appeal was 

pending which significantly modifies the requirements to prove a gang 

enhancement under section 186.22, requires reversal and remand. (Stats. 

2021, ch. 699, eff. Jan. 1, 2022.) We agree.

Under former section 186.22, the existence of a “criminal street gang” 

was established by having (1) an ongoing association of three or more persons

with a common name, identifying symbol or sign; (2) one of the group’s 

primary activities is committing one or more statutorily enumerated criminal 

offenses; and (3) the members individually or collective engage or have 

engaged in a pattern of criminal gang activity. (Former § 186.22, subd. (f); 

People v. Duran (2002) 97 Cal.App.4th 1448, 1457.) A “pattern of criminal 

gang activity” was established by evidence the persons associated with the 

gang committed two or more predicate offenses within a three-year period 

after a prior offense and the offenses were committed on separate occasions 

or by two or more persons on the same occasion. (Former § 186.22, subd. (e); 

Menifee v. Superior Court (2020) 57 Cal.App.5th 343, 362.)

A.B. 333 narrowed the definition of “criminal street gang” to “an 

ongoing, organized association or group of three or more persons, whether 

formal or informal,” whose members “collectively engage in, or have engaged 

in, a pattern of criminal gang activity.” (§ 186.22, subd. (f), as amended by 

Stats. 2021, ch. 699, § 3, italics added.) It increased the burden of proof by 

“alter[ing] the requirements for proving the ‘pattern of criminal gang activity’ 

necessary to establish the existence of a criminal street gang.” (People v. 

Lopez (2021) 73 Cal.App.5th 327, 345; § 186.22, subd. (e), as amended by 

Stats. 2021, ch. 699, § 3.) For the predicate offenses used to demonstrate
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a pattern of criminal gang activity, at least one predicate offense must have 

occurred within three years of the prior predicate offense, but also within 

three years of the currently charged offense. (§ 186.22, subd. (e), as amended 

by Stats. 2021, ch. 699, § 3.) In addition, the predicate offenses must have 

been committed on separate occasions or by two or more members, and the 

offenses commonly benefitted a criminal street gang. (Ibid.) Under the 

amendments, the common benefit must be more than reputational in nature, 

such as financial gain or retaliation. (§ 186.22, subd. (g), as amended by 

Stats. 2021, ch. 699, § 3.) These ameliorative changes, increasing the 

threshold for imposing gang enhancements, apply retroactively to Ponce since 

his judgment was not yet final on the amendments’ operative date. (In re 

Estrada (1965) 63 Cal.2d 740, 745 [absent evidence to the contrary, courts 

presume legislation imposing ameliorative changes to criminal law apply to 

all nonfinal judgments]; Lopez, at p. 344.)

Because Ponce’s trial took place long before the section 186.22 

amendments, the jury was not asked to make these necessary factual 

determinations for a gang enhancement, and it did not do so. There were 

no jury instructions, and thus no jury finding, that the predicate offenses 

must have provided a common benefit to the gang that was more than 

reputational. The jury instructions lacked anything regarding the predicate 

offenses constituting “collective criminal activity” by the gang members. On 

this record and given the absence of any such jury findings, while we 

conclude there was sufficient evidence supporting the finding Ponce acted 

with the specific intent to promote the criminal activity of gang members, we 

cannot conclude beyond a reasonable doubt the jury would have found true 

the gang enhancement under the A.B. 333’s amendments. (Cf. People v. 

Merritt (2017) 2 Cal.5th 819, 827 [harmless error standard for instructions
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that omit elements of a crime].) “Where, as here, evidence is not introduced 

at trial because the law at that time would have rendered it irrelevant, the 

remand to prove that element is proper and the reviewing court does not 

treat the issue as one of sufficiency of the evidence.” (People v. Figueroa

(1993) 20 Cal.App.4th 65, 72.) The gang-related enhancement findings “must 

be vacated and the matter remanded to give the People the opportunity to 

prove the applicability of the enhancements under the amendments to section 

186.22.” (People v. Lopez, supra, 73 Cal.App.5th at p. 346.)

III.

The parties also agree A.B. 518, legislation modifying section 654’s 

preclusion of multiple punishments for a single act or indivisible course of 

conduct, requires remanding for resentencing. Previously, section 654 stated 

that “[a]n act or omission that is punishable in different ways by different 

provisions of law shall be punished under the provision that provides for the 

longest potential term of imprisonment, but in no case shall the act or 

omission be punished under more than one provision.” (Former § 654, subd. 

(a).) A.B. 518 eliminated the requirement that the court impose the longest 

potential term of imprisonment, instead conferring discretion to impose 

a punishment under any applicable provisions. (Stats. 2021, ch. 441, § 1

[“[a]n act or omission that is punishable in different ways by different 

provisions of law may be punished under either of such provisions, but in no 

case shall the act or omission be punished under more than one provision”].) 

Ponce is entitled to benefits of this ameliorative sentencing legislation. (In re

Estrada, supra, 63 Cal.2d at p. 745.) We have already vacated the gang 

enhancement findings based on A.B. 333; on remand, the trial court should 

exercise its discretion in light of A.B. 518.
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Ponce identifies several clerical errors in the abstract of judgment that

require correction. Because we vacate Ponce’s sentence and remand for full 

resentencing, we will not order any corrections. Rather, the trial court will 

generate a new abstract of judgment that accurately reflects the pronounced 

judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)

DISPOSITION

The gang enhancement allegation findings under section 186.22 and 

the sentence are vacated, and the matter is remanded to the trial court for 

further proceedings consistent with this opinion.
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_________________________

Rodríguez, J.

WE CONCUR:

_________________________

Fujisaki, Acting P. J.

_________________________

Petrou, J.

A155368