Filed 12/12/23 P. v. Valle CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

KELLY FABIAN VALLE,

Defendant and Appellant.

F081260

(Super. Ct. No. 1407606)

OPINION

APPEAL from a judgment of the Superior Court of Stanislaus County. Nancy A. 

Leo, Judge.

Danalynn Pritz, under appointment by the Court of Appeal, for Defendant and 

Appellant.

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

General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and 

Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOooINTRODUCTION

After a previous confrontation with Christopher Diaz and Mark Ochoa at Diaz’s 

home, defendant Kelly Fabian Valle returned with Eric Arguello, Victor Zapien, Jr., and 
2.

David Ferrel, Jr. Defendant, Ferrel, and Zapien were all armed with guns. During the 

ensuing confrontation, Diaz and Ochoa were shot to death and Diaz’s friend, W.H., was 

also shot at, but he managed to escape. At trial, defendant admitted shooting Ochoa, but 

testified Ochoa fired the first shot and he fired back. Officer Larry Meyer pursued the 

group’s fleeing truck, and during the pursuit, a passenger of the truck fired gunshots in 

Meyer’s direction. The truck eventually stopped and the occupants other than the driver

(Arguello)—defendant, Ferrel and Zapien—exited. They were all ultimately 

apprehended by law enforcement.

In connection with the incident, a jury convicted defendant of first degree murder 

of Diaz and Ochoa and found true related Penal Code section 12022.53, subdivisions (d) 

and (e) firearm enhancements (counts I [Diaz] & II [Ochoa]), two counts of attempted 

premeditated murder of Officer Meyer and W.H. (counts III [Officer Meyer] & V

[W.H.]) and found true related section 12022.53, subdivisions (c) and (e) firearm 

enhancements, possession of a weapon as an ex-felon (count VII), and active 

participation in a criminal street gang (count IX). The court found true a section 667.5, 

former subdivision (b) prison prior allegation. (Undesignated statutory references are to 

the Penal Code.)

During defendant’s trial the Stanislaus County District Attorney’s Office started 

investigating defendant’s trial attorney (Frank Carson) for capital murder and other 

charges. For a month during defendant’s trial, the government wiretapped Carson’s 

phone. Carson believed his communications and his investigator’s communications had 

been intercepted, and the court conducted two in camera hearings and accepted the 

detective’s representations that there had been no breach of attorney-client confidences in 

relation to this case. After the verdicts, Carson withdrew as defendant’s counsel and was 

later charged and acquitted of crimes in connection with the investigation. He ultimately 

was reinstated as defendant’s counsel years later, after Carson was acquitted of the 

charged offenses.
3.

Defendant challenges his convictions on several grounds. First, he contends the 

government engaged in egregious misconduct by intercepting confidential attorney-client 

communications mandating reversal or dismissal of the charges against him. He also 

asserts insufficient evidence supports his convictions for attempted premeditated murder 

of W.H. and Meyer (counts III and V); the inclusion of CALCRIM No. 3472 in the jury 

instructions resulted in a violation of his constitutional rights; the prosecutor engaged in 

prejudicial misconduct and the cumulative effect of the errors prejudiced him requiring 

dismissal or reversal. He further argues recent changes in the law, namely Assembly Bill 

No. 333 (2021–2022 Reg. Sess.) (Assembly Bill 333), Senate Bill No. 136 (2019–2020 

Reg. Sess.) (Senate Bill 136), and the California Supreme Court’s recent decision in 

People v. Tirado (2022) 12 Cal.5th 688, 692, require reversal of his substantive gang 

conviction (count IX), the gang-related firearm enhancements, and the prison prior 

enhancement. He argues the People should be prohibited from retrying the gang-related 

firearm enhancements on remand but should be allowed to retry count IX.

We reverse defendant’s conviction on count IX for active participation in a 

criminal street gang, the gang-related firearm enhancements attached to counts I, II, III, 

and V, and the prison prior enhancement (§ 667.5, former subd. (b)) and remand the 

matter for further proceedings consistent with this opinion. On remand, the People may 

retry count IX and the gang-related firearm enhancements. In all other respects, we 

affirm the judgment.

FACTUAL BACKGROUND

Defendant and his three codefendants, Zapien, Arguello, and Ferrell, were charged 

with multiple offenses in relation to a shooting that led to the death of Christopher Diaz 

and Mark Ochoa and a subsequent shooting at Officer Larry Meyer during their escape. 

Before trial, the defendants moved to bifurcate the gang allegations and the court denied 

the request. A mistrial was declared as to codefendant Ferrel midtrial because his 

attorney was unable to proceed due to medical issues.
4.

Prosecution Evidence

Events Leading Up to the Shooting at Maxine Drive

W.H. lived around the corner from Christopher Diaz in 2009 and they saw each 

other daily. They would “[h]ang out, drink beers, [and] smoke weed.” They were in a 

graffiti crew referred to as “BTL.” W.H. met Mark Ochoa, whom Diaz referred to as his 

cousin, while hanging out at Diaz’s house. W.H. associated with the Norteño street gang 

at the time, but he denied being a Norteño. He believed Ochoa also associated with the 

Norteños, specifically, the South Side Modesto set. W.H. denied still associating with the 

Norteño street gang at the time of trial and he reported that Diaz did not claim Norteño.

A week before Diaz was killed, Diaz and W.H. were drinking in a park with 

Arguello, whom they hung out with occasionally and referred to as “Flaco.” The police 

pulled up and started questioning them. The police asked Arguello about the dot tattoos 

on his hands and Arguello responded that he did not “bang.” W.H. was surprised by 

Arguello’s answer and Diaz looked at Arguello “like he couldn’t believe it.” W.H.

believed Arguello identified with the “Norte” gang and Arguello had stated “he was big 

time.” Arguello was always wearing a lot of red. Arguello appeared nervous after the 

police left. He, Diaz, and W.H. proceeded to meet up with a group outside and were 

drinking when a fight broke out between a male and Diaz. W.H. ran into the fight. When 

W.H. and Diaz turned around, Arguello was gone. Arguello did not say anything before 

leaving; he just took off. W.H. thought Arguello was a fake Norteño given Arguello’s 

previous representations that he was “big time,” “down,” and “wasn’t scared.” Diaz 

called Arguello out a few days later, saying, “‘Man, Flaco, you were gone with the 

wind.’” Arguello seemed bitter. W.H. did not see Arguello again until the night of the 

murders.

August 2009 Shooting on Maxine Drive

On August 31, 2009, W.H. had been at Diaz’s house since approximately noon; 

Ochoa arrived around 3:00 p.m. They were hanging out, drinking, talking, and listening 
5.

to music in front of the house of Diaz’s neighbor, R.M. At some point, Arguello showed 

up with defendant in a red, four-door, F-150 pickup truck. At trial, W.H. testified 

defendant and Arguello arrived around 9:00 p.m., but he previously reported to police the 

initial interaction occurred right before 11:00 p.m. They parked in front of Diaz’s house 

and got out of the truck. According to W.H., Arguello and defendant were “drunk” and 

“belligerent.” Defendant was “[s]loppy,” “swaying.” Diaz went over to talk to them. He 

was mad because Arguello brought defendant to the house in that condition while Diaz’s 

mother was inside. W.H. stayed with R.M. in front of R.M.’s house, but he heard them 

talking. Arguello invited them to a party. An argument started and W.H. heard yelling.

He went over to see what was going on. When W.H. walked closer, he saw defendant 

“acting hard,” staring at Diaz. Diaz was asking Arguello why he brought defendant over.

Diaz’s mother, T.C., was inside the house and heard Ochoa arguing with someone.

T.C. went outside and saw Ochoa and defendant right in front of each other yelling back 

and forth; Arguello was standing off to the side. According to T.C., defendant had a 

shaved head and an “N” tattoo on the back of his head. Defendant seemed very drunk 

and angry, and he was asking Ochoa “if he bangs, and he was saying that he was in 

SPN.” Both T.C. and W.H. testified Ochoa told defendant his name and that “he was 

from Deep South Side.” T.C. recounted that defendant and Ochoa moved closer toward 

each other and were chest to chest when T.C. stepped in. She told them “there’s gonna 

be no fighting here.” Defendant told her, “‘Shut up, bitch.’”

At trial, W.H. testified defendant looked at T.C. and was “trying to hit on her.”

Defendant said, “‘What’s up, bitch?’” However, W.H. had previously reported to 

Detective Hicks that defendant told T.C., “Shut the fuck up.” W.H. testified Diaz “lost it 

at that point”; he was ready to fight. Diaz took off his shirt and said, “‘What’s up, fool?’” 

Arguello backed up and was “kind of laughing.” Arguello said, “‘He’s drunk fool,’” and 

that they would leave. W.H. testified, at that point, defendant turned his attention to 

Ochoa because Diaz and Ochoa were following him out to the street. While looking at 
6.

Ochoa, defendant said “‘What’s up, fool? You bang? You bang?’” According to 

Detective Hicks, W.H. previously reported defendant also asked “if they were active.” 

Ochoa responded, “‘Hell, yeah, fool, South Side Modesto, Norte gang.’” Defendant told 

Ochoa he had never heard of him or seen him, and he was going to “run” his name. 

Defendant then asked Ochoa for his name and Ochoa responded, “‘Sharky, fool. Run 

it.’” W.H. testified Ochoa was irritated defendant was “calling him on that.” Ochoa was 

ready to fight with his fists up saying, “‘Fuck this shit, dude. What the fuck are you 

about, you know?’” Defendant was laughing like it was a joke and Arguello was backing 

up toward the truck saying they would leave. W.H. heard defendant say, “‘Fuckin’

leyvas,’” as they backed up. Defendant was on his phone as he walked behind Arguello 

back to the truck. Diaz or Ochoa told Arguello not to “‘bring that fool back over here.’” 

Arguello got in the driver’s seat of the truck. As defendant got into the truck, he was 

angry and said, “‘We’ll be back, fool, we’ll be back,’” “‘pinta style, mother fuckers.’” 

Arguello and defendant then left.

T.C. testified Diaz and Ochoa were talking after Arguello and defendant left; they 

did not seem upset by the interaction with defendant and Arguello. W.H. described the 

confrontation between defendant and Ochoa as a “personal” issue when he discussed it 

with Detective Hicks. W.H. denied it was a gang issue; he explained it was related to 

defendant being disrespectful in front of T.C.

W.H. testified he continued to hang out with Ochoa and Diaz for about an hour.

They wanted to smoke, so W.H. went to buy marijuana and went home to change. He 

was gone for half an hour. Around midnight, as W.H. was walking back, he saw the 

truck driving in the direction of Diaz’s house. W.H. noticed two more heads in the truck 

and he started running down the street. (W.H. initially reported there were five people in 

the truck but later stated there were only four.) W.H. saw the truck make a U-turn and 

park two houses away from Diaz’s house. Diaz and Ochoa were in the street and Diaz 

had his shirt off. Diaz’s neighbor R.M. was also there and said he was “‘gonna get a 
7.

bat’”; he left and did not return. W.H. saw all four doors of the truck open and watched 

four people get out. According to W.H., Arguello got out of the driver’s side, defendant 

exited the front passenger side, and two men with bandanas on their faces exited the 

backseat from either side of the truck. The masked man that exited from the rear 

passenger side had “Mongolian style hair”; W.H. identified him as Zapien at trial. The 

masked man who exited from the rear driver’s side was bald; W.H. identified him as 

Ferrel at trial. The group walked in a straight line slowly toward W.H., Diaz, and Ochoa.

W.H. testified he, Diaz, and Ochoa were next to each other in the street in front of 

Diaz’s house; Ochoa and Diaz had their fists clenched ready to fight. W.H. believed they 

were about to have a fistfight; he denied having a gun or seeing Diaz or Ochoa with one 

that night. Then, defendant pulled out a silver revolver and the two masked men pulled 

out guns and they started running toward W.H., Diaz, and Ochoa. The man with the 

Mongolian-style hair had a gun that looked like a black Glock, but it had an extended 

clip. The other masked man had a dark-colored revolver.

As they approached, W.H., Ochoa, and Diaz “got split up.” W.H. backed up and 

was on the lawn. The masked man with the Mongolian-style hair was pointing his gun at 

W.H., grabbing W.H.’s shirt, and pushing him back; he was saying, “‘Get on your knees, 

mother fucker.’” The bald masked man “was bouncing around going, ‘Where’s Chris?

Which one’s Chris?’” Diaz was backing up towards his driveway. The bald masked man 

approached Diaz and pointed a gun at him. Ochoa was in the street; he spun around and 

was backing up with his hands up. Defendant was pointing his gun at Ochoa’s face, 

saying, “‘Get on your knees, mother fucker’” and “‘What now bitch? What now?’” 

W.H. could hear Arguello laughing from the street and saying, “‘Talk shit now, bitches.’”

Then, W.H. saw defendant shoot Ochoa “[p]oint blank in the chest in the street 

backing up” with the silver revolver. W.H. testified it was the first shot fired and 

everybody looked in that direction. Ochoa fell back. W.H. pushed the male pointing the 

gun at his head and turned and ran, zig-zagging in and out along the sidewalk and 
8.

driveways. He heard multiple gunshots fired as he was running; it sounded like they 

were coming from multiple different guns. W.H. got around the corner and saw a spark; 

he believed they were chasing him and that he was running for his life as he continued to 

hear gunshots.1 W.H. jumped a fence into a yard. He did not hear any more gunshots at 

that point. W.H. threw up and then peeked back over the fence. He saw the truck pulling 

up around the corner and he could see the occupants looking around. The truck made a 

U-turn and left.

W.H.’s mother had been calling him on his cell phone; he returned the call to his 

mother and told her where he was; she drove up and W.H. ran and got inside the car.

W.H. saw a carload of “Nortes” who were members of the LOC gang—Diaz’s brother’s 

gang—in front of his mother’s car. The occupants asked what happened. W.H. told 

them he did not know and said, “They fuckin’ killed them.” The car went looking for the 

truck. W.H. and his mother drove around the neighborhood before going home. W.H.

spoke to Detective Evers about an hour later.

T.C. testified she went inside and went to bed after coming outside during the 

initial confrontation. She later woke up to multiple rounds of gunshots (though she told 

Detective Hicks she was awakened by a slamming door). T.C. ran outside into the road 

and did not see anyone. She ran back towards her house and saw Diaz lying in between 

cars on the driveway. Diaz was on his back and blood was coming out of his side.

Diaz had seven bullet wounds, including an entrance bullet wound on the back of 

his right shoulder and another one on the left side of his chest. Another bullet wound was 

found in the front part of Diaz’s right thigh. There were four “through-and-through 

gunshot wounds.” Diaz died from the multiple gunshot wounds to his chest, back, and 

1When asked if he heard gunshots coming at him as he was running, W.H. responded: “I 

don’t recall. I heard multiple gunshots. There was just guns going off.” He testified he knew 

the guns were directed at him ‘[b]y the judgment [sic] of a spark.” Detective Jon Evers testified 

W.H. did not mention during his interview about seeing sparks as he ran away.
9.

extremities. Four projectiles—large caliber copper-jacketed lead slugs—were recovered 

during an autopsy of Diaz’s body: one from his right thigh, one from his back, one from 

his left chest cavity, and one that was located when his jean shorts were removed. T.C.

denied Diaz owned a gun. She found out after the incident that Ochoa had a gun.

T.C.’s neighbor and his daughter were outside around 10:00 p.m. that night when 

they saw Diaz and three other males in front of the house across the street. It looked like 

the males were about to have a fight when T.C. came outside and told them to leave.

Two of the males left in a red truck. Then, around midnight, the same neighbor heard 

gunshots in front of his house. A man later identified as Ochoa ran into the neighbor’s 

house through the garage door and collapsed in the hallway; he had a gun in his left hand.

He was lying face down and then turned over; he was moaning. Ochoa asked the 

neighbor for help; he looked like he had a bullet wound on his side. Ochoa handed the 

neighbor a black semiautomatic pistol and told him, “‘Get rid of this.’” The gun was 

later identified as a Glock; it had an empty nine-millimeter magazine. The neighbor’s 

wife called 911.

An autopsy of Ochoa’s body revealed a bullet wound in his right chest; shell 

fragments, a possible projectile, a copper jacket fragment and a piece of a bullet were 

also located during the procedure. The gunshot wound to Ochoa’s chest was determined 

to be the cause of his death. A large capacity magazine with 30 live cartridges and a 

black cellular phone were also recovered from the scene at the neighbor’s house. The 

neighbor testified his pickup truck and van were parked in the driveway that evening.

The truck was hit by two bullets in the fender and one in the tire.

Shooting Involving Officer Meyer During Subsequent Pursuit

Officer Larry Meyer was working the night of August 31, 2009, in a black and 

white, marked patrol car when he received a radio call regarding several shots fired in 

northeast Modesto on Maxine Drive. Meyer started driving in that direction; Officer 
10.

Daniel Phillips was traveling in a car behind him. Meyer then received further 

information by radio that a red Ford pickup truck may be associated with the shots that 

were fired.

As Meyer was responding to the shooting, he saw at an intersection a red Ford 

pickup truck matching the description of the vehicle broadcasted on the radio. Meyer 

broadcasted that he observed a truck matching the suspect vehicle on the radio. With 

Officer Phillips behind him, Meyer began to follow the truck; he was waiting for backup 

before making a felony stop. The truck was going the speed limit but then began to pick 

up speed to 60 mph in a 35 mph zone. The truck proceeded through a stop sign at 

approximately 60 mph. Meyer put on his emergency lights and siren to pull the truck 

over and broadcasted on the radio that “they are running.” The truck continued driving at 

60 mph and did not yield to the emergency lights and siren. As the truck made a right 

turn on Boston Way, a passenger on the right side of the truck fired two or three shots in 

Meyer’s direction. Meyer saw the muzzle flashes. He was about two to three car lengths 

away. He backed off and reported over the radio they were shooting at him.

Meyer continued to pursue the truck with his lights and sirens on. The truck 

eventually pulled over on Sunny Park Drive and three people got out. Officer Meyer 

testified, when the right rear passenger got out of the truck, he fired two to three more 

rounds in Officer Meyer’s direction. Officer Meyer was in his car approximately three 

car lengths away. The three individuals that got out of the truck started running 

westbound behind the houses on that street. Meyer stayed in that location while the truck 

took off.

Officer Phillips continued to follow the truck after the three people got out. The 

truck parked in a driveway and Officer Phillips and two other officers approached it. A 

Hispanic male that Officer Phillips identified at trial as codefendant Arguello stepped out 

of the driver’s side of the truck. Officer Phillips noticed a shell casing in the bed of the 
11.

truck later that morning. It was identified as a Smith & Wesson .40-caliber brass shell 

casing. Two .40-caliber shell casings were found on Boston Way.

Sergeant Aaron Tait was initially dispatched to Maxine Drive but later went to the 

crime scene at Sunny Park Drive. He located Officer Meyer’s patrol vehicle parked on 

Sunny Park Drive. Law enforcement also located a .40-caliber Smith & Wesson brass 

casing on Sunny Park Drive and booked it into evidence.

Apprehension of Defendant, Ferrel, and Zapien

Sergeant Kelly Scott was tasked with conducting a yard-to-yard search for the 

truck’s occupants that night within a certain given block of a gated residential community 

around 3:00 a.m. Approximately an hour into the search, he was informed by a tactical 

officer on a police helicopter of a “heat signature of an unknown object in a backyard” of 

a residence on Hearthstone Lane. Sergeant Scott went to the residence, knocked on the 

door, and swept the yard. His team released a police canine into the backyard of the 

residence and then went back there. Scott moved toward a cardboard box in the middle 

of the backyard and put his foot inside. He discovered a shirtless man, identified at trial 

as Zapien, hiding inside and immediately retracted his foot and alerted the other officers.

Scott described the individual as a heavier set male with a long, dark ponytail. After 

Zapien was removed from the box, a cellular phone was also found inside. A black 

T-shirt was located on a roof line inside that backyard. Zapien had a long “Mongoliantype” ponytail and several tattoos, and he was wearing blue jean shorts and black and 

white Nike-type shoes. He had abrasions and lacerations on his arms and torso.

Scott’s team continued its search of the area and observed the front door of 

another residence on Hearthstone Lane standing open. They swept the exterior and 

cleared the interior of the residence. Sergeant Scott was notified by radio that another 

officer saw someone in the backyard hiding under some debris. Officer Phillip Weber 

identified the individual as codefendant Ferrel. Photographs of Ferrel depicted him 
12.

wearing a red belt that had the buckle “hollowed out so you could see the number 14 in 

red.” Two handguns—Smith & Wesson revolvers—were laying on the ground in the 

backyard right outside of a glass door; one was stainless steel and the other had a blue or 

black finish. Six casings were found in the stainless steel Smith & Wesson, indicating 

the gun had been fired six times; three of the six cartridges in the dark revolver had been 

fired. Another handgun, a 40-caliber Glock with an extended 30-round magazine, was 

found later that morning on top of the roof of the residence near the gutter. A red 

baseball cap with the letters “SF” was also located on some trash cans or bags in the 

backyard.

Defendant was apprehended nearby on Temescal Drive. He had a buzz cut and a 

large red “N” tattoo was visible on his head. Pictures of defendant reflected he had a 

“Ceres” tattoo on his stomach. A .40-caliber Glock magazine loaded with 15 Winchester 

cartridges and a chair propped next to the south fence were found in the backyard of a 

home on Temescal.

Subsequent Investigation

The prosecution’s firearm expert received the four handguns retrieved after the 

shooting: (1) a .40-caliber Glock Model 22 semiautomatic found on the roof of the home

on Hearthstone Lane where Ferrel was apprehended; (2) a .357 magnum Smith &

Wesson Model 27 revolver with a black finish found in the backyard of the home on

Hearthstone Lane where Ferrel was apprehended; (3) a .357 magnum Smith & Wesson 

Model 66 stainless steel revolver also found in the backyard of the home on Hearthstone 

where Ferrel was apprehended; and (4) a Glock Model 27, which was associated with 

Ochoa. He testified both Smith & Wesson revolvers could fire .38 special ammunition.

The firearms expert concluded eight of the 12 expended cartridge cases retrieved 

from the Maxine Drive crime scene matched the test fires from the Glock Model 22. The 

Glock Model 22 test fires also matched the casings found in the 2400 block of Boston 
13.

Way, the 2100 block of Boston Way, the 1900 block of Sunny Park Drive, and in the bed 

of Arguello’s truck.

The bullet and jacket fragment retrieved from Ochoa’s chest had the combined 

weight of a single .38- or .357-caliber bullet and could have been shot from either Smith 

& Wesson revolver. A .38-caliber bullet recovered from the shingles of Diaz’s house 

was consistent with coming from the dark finished .357-caliber Smith & Wesson. The 

bullet recovered from Diaz’s clothing was consistent with a .40-caliber Smith & Wesson 

bullet; the expert opined it was “highly likely” it was fired from a Glock pistol. Another 

.40-caliber bullet recovered from Diaz’s chest was too deformed for the expert to 

compare it. The .38-caliber bullets recovered from Diaz’s chest and thigh matched the 

Smith & Wesson Model 27 revolver. Three .40-caliber shell casings found on the 2600 

block of Maxine and one located outside of a neighbor’s residence matched the Glock 

Model 27 associated with Ochoa.

The People introduced recordings from phone calls Ferrel, defendant, and Zapien 

made from jail. Ferrel was recorded stating, “It’s all bad,” the police found two 

“heaters,” meaning guns, including a long black one; but he did not think the police had 

found “the other one.” Ferrel stated his “.40” was on the roof of someone’s house.

During another conversation, Zapien told his aunt he “need[ed] a miracle.” He promised 

not to run if she put up her house for bail; he “just need[ed] to get out for a little bit ... 

before it’s all bad.” He told his aunt he “fucked up.” Defendant was also recorded 

saying, “it’s all bad.”

Gang Evidence

Detective Robert Gumm testified as a gang expert. He testified regarding the 

history of the Norteño gang and its common signs and symbols. He explained the 

primary activities of the Norteños include robberies, burglaries, vehicle thefts, and violent 

crimes such as assaults, assaults with deadly weapons, felony assaults, drive-by 
14.

shootings, and attempted murders and murders of rival gang members. He explained 

Smyrna Park Norteños use the acronym “SPN,” and they control the Smyrna Park area in 

Ceres. “DSSN” stands for “Deep South Side Norteños,” also referred to as “Deep South 

Side Modesto” or “DSSM,” which is a subset in south Modesto. Gumm testified the 

subsets, including Smyrna Park and Deep South Side Modesto, regularly get along but 

there is some conflict from time to time and Norteños have victimized other Norteños in 

assaults or even murder. Typically, active Norteños do not fight with other active 

Norteños; “it’s gonna be people that they deem are inactive that are kind of no longer 

putting in work for the gang.” “Respect is everything in the gang,” and one’s 

“willingness to put in respect for the gang, especially violent crimes, bring you a higher 

level of respect because you’re willing to do that for the gang.” Gang members will 

respond to disrespect with violence because, if they do not, it shows they are weak and 

“not handling business,” diminishing their strength in the gang.

Law enforcement considers whether an individual meets two of 10 criteria in 

validating whether someone is a criminal street gang member including: associating with 

gang members; admitting being a gang member; wearing colors consistent with being in 

a gang; possessing physical evidence of a gang such as a red or blue rag; being identified 

by a reliable sources as a gang member; tattoos consistent with the gang; using words, 

phrases, or terms associated with a gang; being arrested for a crime consistent with gang 

activity; being found in a judicial proceeding as a gang member; and jail classification as 

a gang member.

Gumm explained the Deep South Side Modesto set of the Norteños is wellestablished. If an individual claimed membership but was not actually a member, that 

person “would be regulated.” He discussed a “red-on-red” homicide of Victor Gaona,

who was killed because he was claiming Norteño but he was not actually from Deep 

South Side. He explained the term “leyva” used by a gang member to another person 

who is claiming gang membership would be considered a “put down.” The term “check 
15.

up” when an individual claims gang membership means to “use channels such as the 

shot-caller of that gang to check and make sure that you are part of that gang and not just 

claiming it”; essentially, checking on one’s status in the gang to confirm the person is 

active. If the check up reveals the person is “no good,” the individual would “be 

regulated or marked for an assault.” If the person was determined to be inactive, the gang 

may also call for a physical assault. If an inactive member disrespected a higher ranking 

gang member, a violent assault or even murder could be expected.

Gumm investigated defendant using police reports, his contacts from law 

enforcement, and probation officer reports and determined he matched seven of the 10

criteria used to validate gang membership. He discussed a traffic stop on March 27, 

2004, during which defendant was in one of two cars that officers saw racing on a 

roadway. Defendant was with Luis Gutierrez, Ferrel, and Abel Rodriguez and a stolen 

.380 handgun was found under defendant’s seat; another handgun registered to Gutierrez 

was found in the glove box. Abel Rodriguez is a “documented Norteño gang member.” 

Gumm testified regarding another law enforcement contact with defendant on May 23, 

2004, regarding a noise disturbance. At the time, defendant was wearing a red hat and 

red shirt; red is consistent with being a Norteño. On July 10, 2004, defendant was alone 

and driving a speeding truck that police tried to stop. He failed to stop and the police 

pursued him. During the pursuit, two items were thrown from the vehicle. After the 

pursuit ended, defendant was uncooperative, and the police located a one-gallon bag of 

marijuana in the truck; another one-gallon bag of marijuana and a handgun were the 

items thrown from the truck. Defendant was wearing red and white shoes with red laces 

on them at the time, and the assigned detective documented that defendant “associates 

with known gang members.” On November 23, 2004, police conducted a traffic stop of a 

vehicle driven by Hector Lopez, who was wearing a red shirt, and in which defendant and 

Ferrel were occupants. During the stop, Lopez stated he used to hang out with Norteños 

but no longer did. Defendant did not admit gang membership but stated he hung out with 
16.

Norteños, and Ferrel denied gang affiliation but was wearing a black and red jacket. On 

June 20, 2006, police contacted defendant with Luis Gutierrez and Timothy McKenzie.

At the time, McKenzie was a documented SPN gang member. On August 10, 2006, 

police conducted a traffic stop of a vehicle driven by defendant; Paul Ramirez and Julian 

Berrera were occupants in the vehicle. A pair of handcuffs that had been stolen from a 

police detective were located in the vehicle, and Ramirez reported having seen defendant 

with the handcuffs before. Defendant denied gang affiliation. He was wearing a red and 

gray shirt, a red and white A’s hat, and red and white Nike shoes. Gumm testified the 

color of the hat was symbolic of active Norteño gang membership. The officers also 

documented a large “N” tattoo shaded red on the back of defendant’s head with “Hustler”

across it. At the time, Berrera was a documented Norteño and Ramirez was documented 

as a known SPN gang member. On September 19, 2006, defendant was observed by 

police drinking in Smyrna Park; he was wearing red and white shoes and a red and white 

hat at the time. On October 27, 2006, defendant and Julian Berrera were contacted in the 

street by the Central Valley Gang Impact Task Force. Berrera admitted he had been a 

Norteño for a long time. On May 26, 2007, the chief of police observed several males at 

Smyrna Park, including defendant, Julian Berrera, Patelio Hernandez, Mark Meyer, Paul 

Ramirez, Ferrel, Julian Orosco, and Christopher Colon. Colon was an active Norteño

gang member at the time and Meyer had a “14” tattooed on him. Officers tried to contact 

the group and two of the males started to walk away. A “marijuana package for sales was 

found on the ground next to them.” All eight males were detained, and all of them 

admitted to being Norteños. When defendant was arrested for the current incident, 

Gumm observed a large block “N” tattoo on the back of defendant’s head that is shaded 

red with “Hustler” across it.

Gumm also investigated the codefendants. He detailed the codefendants’ prior 

contacts with police that related to the criteria used to validate gang membership. Gumm 

testified regarding a June 12, 2003, incident during which law enforcement was 
17.

investigating Manuel Rivera for driving while intoxicated. When the officers attempted 

to arrest Rivera, he struggled with them and the other occupant of the car started to 

advance towards the officers before the officers ordered him back into the car at 

gunpoint. A search was done of the vehicle’s occupants including Victor Zapien, and 

police found a large fixed-blade knife on Zapien. Police also recovered a video camera 

with footage from that night in which Rivera and Zapien were flashing gang signs and 

Zapien is heard saying “RNS for life.” In the video, Rivera was showing others how to 

make Molotov cocktails and then they were driving around and getting ready to throw a 

Molotov cocktail at a house but people were present and they did not throw it. The police 

recovered a Molotov cocktail from the car consistent with the one seen on the video.

Gumm also discussed an October 12, 2003, incident during which there was a 

disturbance that occurred in a residential area near a wine and cheese festival. Residents 

of a home, who were admitted Sureño gang members or associates, reported a group of 

males that included Zapien and Robert Alvarez were yelling at them, “‘Fuck you, 

scraps’” and “‘Norte.’” Zapien and Alvarez threw rocks at people in the backyard and 

Alvarez threw a large chunk of concrete that hit a female in the head.

Gumm discussed Arguello’s prior contacts with police, including an incident on 

August 21, 2009, during which Christopher Diaz and others were present. During the 

course of the incident, it was documented that Diaz and Arguello were known Norteños.

Arguello was wearing a red belt that hung down to his knees and had tattoos of the one 

and four dots on his right and left hands. Police asked Arguello whether he was a 

Norteño gang member, and he responded he had been a Norteño for a long time but was 

not one anymore. Gumm did not think anything would happen to a gang member who 

denied gang membership in front of other active Norteños.

Gumm also explained Ochoa was field interviewed on December 17, 2006, and 

was documented as a Norteño based on his self-identification. During an investigation of 

Ochoa’s room related to this case, a hat with “DSSM” written on it, referring to “Deep 
18.

South Side Modesto,” was recovered. Ochoa also claimed “‘Deep’” in a field interview 

with the sheriff’s department.

The People introduced evidence regarding two separate predicate offenses. On 

February 13, 2007, Zapien, Esteban Zapien, and Anthony Valdobinos were standing 

outside of a residence yelling, “‘This is all about Riverbank, Riverbank Vatos Locos.’” 

Then, Valdobinos fired a shotgun at the house, striking the house and a vehicle parked 

outside. After the shooting, Valdobinos’s house was searched and police recovered 

Norteño paperwork with “14,” “XIV,” “Norte,” and “187 scraps” written on it. The 

prosecution introduced the information and minute order related to the resulting case.

The People also introduced the complaint in case No. 09-73110 against Christopher 

Raymond Colon alleging he committed attempted murder (§§ 664, 187; count 1) on 

August 29, 2009, with a section 186.22, subdivision (b) gang enhancement, and assault 

with a knife (§ 245, subd. (a)(1); count 2) with a great bodily injury enhancement

(§ 12022.7).

Based on Gumm’s investigation and the two predicate offenses, he opined the 

Norteños are engaged in a pattern of criminal activity. He opined Ferrel, Zapien, and 

Arguello all met the criteria that validate gang membership. He further opined that all the 

defendants were active participants in the Norteño criminal street gang at the time of the 

charged offenses. In reaching his opinion, Gumm considered the circumstances of the 

incident, including the initial contact Arguello and defendant had at Diaz’s house during 

which Ochoa was asked, “‘Where are you from? Are you active?’” This was “an initial 

gang challenge” to find out if they were active “that set off a chain of events of 

disrespect.” Defendant told Ochoa “he was going to check on him, that he didn’t know 

who he was,” and Ochoa responded, “‘I don’t know who you are either. I’m going to 

check on you,’” which was a direct challenge to defendant’s status in the gang. Gumm

testified, by challenging each other’s active status, they were disrespecting each other so 

“there’s going to be an assault or some kind of violence.” Defendant and Arguello then 
19.

left and returned with two other “very violent” gang members, and all of them were 

armed with guns.

Detective Gumm opined the initial exchange was done in association with the 

Norteño criminal street gang and the crimes charged in this case promoted or assisted 

criminal conduct by the gang itself by “taking care [of] what is perceived as a possible 

threat or an enemy, which are inactives.” There were objective signs of gang 

membership during the incident, including Ferrel wearing a red belt that was 12 inches 

too long for his body and hung past his knees, and Zapien sporting a Mongolian-style 

haircut, which is “a Norteño haircut.”

Section 1118.1 Motion to Dismiss

Defendant’s counsel moved to dismiss the attempted murder charge as to Officer 

Meyer and the section 186.22, subdivision (b) gang enhancements after the People rested.

He argued there was no evidence the gun was fired at Officer Meyer. Specifically, 

“there’s absolutely no forensic evidence or anything that indicates that there’s any shots 

directed at him in an attempt to hit him. What you have is you have speeding cars going 

60 miles per hour, these things are happening, including the shots out the window in the 

course of a curve and all that. No bullet strikes on the car, on the pavement, on houses, 

on anything. There’s absolutely nothing to indicate that.” He also contended there was 

no evidence the shooting occurred for the benefit of the gang and that “a shooting occurs 

in conjunction with some associates[,] doesn’t make it within the purview of 186.22.”

Zapien’s counsel joined in the motion and also sought to dismiss the attempted 

murder charge as to W.H., arguing there was no evidence W.H. was the subject of 

attempted murder. Arguello’s counsel argued he could not be guilty of attempted murder 

as to Officer Meyer based on his driving the fleeing car. He argued, for Arguello to be 

guilty as an aider and abettor he needed to have done more, such as set up the car with the 
20.

intent to facilitate the shooting. He also argued there was insufficient evidence to support 

the gang enhancements; rather, the dispute was personal.

The prosecutor argued there was evidence Meyer saw the gunman point the gun

out the window of the truck and shoot multiple shots in his direction; Meyer moved the 

car to the left and stopped it to avoid being hit; and a .40-caliber shell casing was found 

in the bed of the truck. There was also evidence when the gunman exited the truck, he 

turned around and fired again in the direction of Meyer’s vehicle. She further argued the 

crimes were done in association with the gang such that the gang enhancement applied.

The court denied the motion, concluding there was sufficient evidence to send the 

charges to the jury for their determination.

Defense Evidence

Defendant testified on his own behalf. On August 30, 2009, defendant went to a 

friend’s house around 9:30 to 10:00 a.m. and started drinking beer; they had a six-pack.

The friend’s brother invited defendant to a birthday party at a taqueria so they left and 

went to the party around 12:30 p.m. Defendant was drinking and eating and met 

Arguello at the party later that afternoon around 3:00 or 4:00 p.m. Arguello’s family

owned the restaurant and Arguello was working the cash register. Arguello asked 

defendant if he wanted to join him to get cigarettes at the store and defendant agreed.

Arguello was drunk at that point and defendant was also intoxicated. After they went to 

the store, they went to Arguello’s “friend’s house” to invite him to come to the birthday 

party. Defendant testified he was carrying a .357-caliber, six-shot, silver Smith & 

Wesson Model 66 revolver that night. He normally carried a gun for protection even 

though he is not supposed to have one. He admitted he was an active Norteño gang 

member at that time, and he had an “N” tattoo on the back of his head.

They pulled up, got out of the truck, and walked towards Diaz’s house. Defendant 

testified he now knew the males in front of the house to be Diaz, Ochoa, R.M., and W.H. 

Arguello started talking to Diaz and invited him to the party. Defendant shook hands 
21.

with the other males there and told them his name and he was from Ceres. After 

defendant introduced himself, Ochoa was “trying to find more stuff out.” He was moving

closer to defendant. Defendant held his ground and they continued talking aggressively.

At one point, defendant thought they were going to fight. Defendant initially denied 

asking Ochoa any questions but later testified he thought he asked Ochoa where he was 

from. He admitted he was drunk and likely speaks louder when he is drunk. Ochoa told 

defendant his name and where he was from.

Meanwhile, Diaz went into the house and then came back out with a 

semiautomatic gun in his hand. Diaz kept the gun at his side and said, “‘You guys better 

leave.’” T.C. came out a few seconds after Diaz. When Diaz heard her coming out, he 

put the gun away in his waistband. T.C. said, “‘You guys need to leave now. Leave my 

house now.’” She was mad and yelling. Defendant and Arguello turned around and left.

Defendant denied making any threats, saying he was going to “check” Ochoa out, or 

stating they would be back, “pinta style.” He also denied being upset about being asked 

to leave, though he did not understand what he did wrong.

When defendant got in Arguello’s truck, he called Ferrel because he was supposed 

to pick him up to come to the party. Defendant had known Ferrel for eight or nine years. 

Defendant had met Zapien “a couple years before” and met him a few times. Defendant 

testified both Ferrel and Zapien were Norteños at the time.

Ferrel was not answering, so defendant called Zapien. Zapien was with Ferrel.

Defendant and Arguello went to pick them up. On their way to the party, defendant told 

Arguello to go back to Diaz’s house. Defendant wanted to “go fight one of those guys.” 

He denied intending to kill anyone. There was no discussion about whether anyone was 

armed, but it was common for gang members to pack a gun. Defendant knew Ferrel 

owned a black handgun—the .40-caliber gun that was found on a roof that night. Diaz 

told the others that the guys there “were on [him]” earlier. When they got to Diaz’s 

street, Zapien said he knew the guy who lived there. As they arrived at Diaz’s house, 
22.

Zapien said, “‘Don’t worry about it. I’m going to take care of it. I’m going to talk to this 

guy. He’s cool. Don’t worry.’”

The four of them got out of the truck and walked on the sidewalk. Ferrel and 

Zapien were in front and defendant and Arguello were walking behind them. As they 

were walking up, Zapien asked, “‘Where’s Chris?’” Defendant did not recall W.H. being 

there. Ochoa was on the grass and Diaz walked toward Zapien and they exchanged a few 

words. Then, defendant heard a gun rack and Ochoa said, “‘What’s up?’” Ochoa fired 

the first shot in defendant’s direction and Diaz also pulled out a gun. Defendant pulled 

out his silver revolver and shot back at Ochoa four or five times. He believed he hit 

Ochoa once. He denied shooting him “point blank” or that anyone was saying, “Get 

down on your knees.” He testified he shot at Ochoa because Ochoa shot at him. Ochoa 

began to run across the street, shooting at the same time. Ochoa was shooting at 

defendant the whole time he was running, approximately four or five shots. Defendant 

was not chasing Ochoa but instead was running back to the truck; he denied shooting 

Diaz at any point. Defendant testified he only shot Ochoa to defend his own life and he 

felt bad about it. He denied it had anything to do with the Norteño gang.

Defendant got in the front passenger seat of the truck, Ferrel was behind him, 

Arguello was in the driver’s seat, and Zapien was behind Arguello; they drove off. He 

denied the truck drove around looking for W.H. As they were driving, they saw a lot of 

police cars going past them. Eventually, a police car got behind them and turned on its 

headlights and sirens. They started to drive faster. There was a quick five- to 10-minute 

chase, though it seemed like a long time. They were making turns and defendant was in 

the front telling Arguello “‘Oh watch out’ or ‘turn here,’ kind of trying to help him out.” 

As the truck was making a turn, defendant heard one or two gunshots and saw a gun 

pointing upwards in front of his window. He believed the gun was fired straight up into 

the air. The truck stopped and defendant, Zapien, and Ferrel got out; defendant did not 

see anyone turn and shoot at the police officer. They ran towards the houses and jumped 
23.

the fence. As they were jumping to climb the fence, defendant heard someone fall and a 

gun go off; defendant believed it was Ferrel’s. After jumping the fence, defendant was 

by himself in a backyard; he did not know where the others went. He kept running and 

jumping fences. He ended up seeing Ferrel and Zapien in another backyard, dropped his 

gun so he could climb the fence, and continued into another yard. Eventually, the police 

caught them all.

Though a mistrial was declared for Ferrel, Ferrel still testified on behalf of the 

defense. On August 30, 2009, Ferrel had been drinking all day with Zapien and another 

person; it was his 30th birthday the next day. Defendant told Ferrel about a party and 

arrived later to pick up Ferrel and Zapien. Before leaving, Ferrel grabbed his Glock .40-

caliber handgun with an extended clip, a 30-round magazine; he always took his gun for 

protection when he left the house.

As they were driving, Ferrel thought they were headed to the party. When they 

pulled onto Maxine Drive, Ferrel and Zapien asked if the party was there and stated they 

knew the guy who lived there; Ferrel had met Diaz once before. They got out of the car 

and walked up to Diaz’s house; Zapien was saying, “‘Where’s Chris? Where’s Chris?’” 

He denied any of them were wearing a mask. Diaz walked to the middle of the driveway, 

shook hands with Zapien, and they started talking; there were two other guys “minding 

their own business” on the other side of the cars. Ferrel saw someone who he could now 

identify as Ochoa running from the side of the house, racking a gun, and saying, “‘What? 

What? What’s up?’” Ferrel heard a gunshot and saw a flash out of the corner of his eye. 

He saw Diaz turn and pull out a big gun. Ferrel pulled out his gun and shot at least six 

times in Diaz’s direction because he did not want Zapien to be shot. Then, Ferrel ran 

back to the truck and got in the back passenger side.

When everyone got back in the truck, they left. As they were driving, at some 

point a police car turned on its lights and sirens behind them. The truck sped up. Ferrel 

put his hand out the window and shot two or three times in the air; he denied turning
24.

around and aiming or shooting at the police officer. The police car “backed up” and the 

truck made a few more turns. They decided to get out because they could not see the 

police car anymore. Ferrel jumped out of the truck and started running. He denied 

shooting at any officers when he got out of the car; he testified “the cops were barely 

turning around the corner; so they were still far away.” He hoisted himself over a fence, 

fell to the ground, and his gun went off. He unloaded the gun because he realized he 

almost shot himself and kept running. He saw defendant and Zapien again and they went 

into a backyard. He realized he could not get out of the backyard because he could not 

move his arm as he injured it in the fall. The others left and he saw the police out front 

when he looked around the corner of the house. Ferrel realized he still had his pistol so 

he threw it on top of the house. He crawled inside a roll of carpet where he was caught 

and arrested. He testified he did not realize Ochoa or Diaz had been shot that night until 

he saw it on the news the next day. Ferrel testified he is a Norteño; however, he denied 

the charged offenses were gang related.

Detective Phillip Weber testified regarding two text messages from Zapien to Diaz 

in the early hours of August 30, 2009. In the first message, Zapien indicated he had 

“yayo,” which Weber explained “was slang for cocaine.” In a subsequent message, 

Zapien wrote “C wats good wit that 45. I got loot and a 9.” Weber also discussed 

previous messages from Zapien that month to other recipients in which he indicated he 

was selling several guns and was interested in trading or buying a gun.

The defense presented testimony from Jacobus Swanepoel, a retained criminalist 

and firearms expert. Swanepoel opined that a fragment collected at the crime scene had 

probably come from a .45-caliber bullet, which was unlikely to have been fired from any 

of the four guns seized by police. However, he could not rule out the possibility that, as 

the prosecution’s expert believed, the fragment had come from a .40-caliber bullet.
25.

Second Section 1118.1 Motion to Dismiss Following Close of Evidence

After both sides rested, defendant’s counsel renewed his earlier motion to dismiss 

the gang enhancements. He challenged Detective Gumm’s contention the charged 

offenses were done “in association” with the Norteño gang and instead argued this was a 

“personal issue.” The prosecutor argued the actions were done in association with the 

gang to willfully promote felonious criminal conduct by the gang. The court concluded 

there was sufficient evidence for the enhancements to go to the jury and denied the 

motion to dismiss.

Verdict

The jury convicted defendant, Zapien, and Arguello of intentional, deliberate, 

premeditated murder of Diaz (count I) and Ochoa (count II) and found that defendant, 

Zapien, and Arguello were principals in the offenses and violated section 186.22, 

subdivision (b) and at least one of the principals in the offenses personally and 

intentionally discharged a firearm and proximately caused great bodily injury, as defined 

in section 12022.7, or death to any person other than an accomplice pursuant to section 

12022.53, subdivisions (d) and (e). However, as to counts I and II, the jury found not 

true allegations the offenses were gang related pursuant to section 186.22, subdivision

(b)(1); are special circumstances within the meaning of section 190.2, subdivision (a)(3) 

and (22); defendant intentionally killed the victims while the defendant was an active 

participant in a criminal street gang as defined in section 186.22, subdivision (f).

The jury also convicted defendant, Zapien, and Arguello of intentional, deliberate, 

and premeditated attempted murder of Officer Larry Meyer (count III). It found true 

allegations Larry Meyer was a peace officer/firefighter at the time of the offense and that 

defendant, Zapien, and Arguello, were principals in the offense and violated section 

186.22, subdivision (b) and that at least one of the principals in the offense personally 

and intentionally discharged a firearm and proximately caused great bodily injury, as 

defined in section 12022.7, or death to any person other than an accomplice pursuant to 
26.

section 12022.53, subdivisions (d) and (e). The jury found not true an allegation count III

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

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

conduct by gang members pursuant to section 186.22, subdivision (b)(1). The jury found 

defendant, Zapien, and Arguello not guilty of the second count of attempted murder of 

Officer Larry Meyer alleged in count IV.

The jury also convicted defendant, Zapien, and Arguello of intentional, deliberate, 

and premeditated attempted murder of William W.H. (count V) and found true 

allegations that defendant, Zapien, and Arguello were principals in the offense and 

violated section 186.22, subdivision (b) and that at least one of the principals in the 

offense personally and intentionally discharged a firearm and proximately caused great 

bodily injury, as defined in section 12022.7, or death to any person other than an 

accomplice pursuant to section 12022.53, subdivisions (d) and (e). The jury found not 

true an allegation count V was committed for the benefit of, at the direction of, or in 

association with the Norteño criminal street gang with the specific intent to promote, 

further, or assist in any criminal conduct by gang members pursuant to section 186.22, 

subdivision (b)(1).

The jury also convicted defendant of being a felon in possession of a firearm in 

violation of Penal Code former section 12021, subdivision (a) (count VII) and convicted 

defendant, Zapien, and Arguello of active participation in a criminal street gang in 

violation of Penal Code section 186.22, subdivision (a) (count IX). Arguello was also 

convicted of evading a police officer in violation of Vehicle Code section 2800.2, 

subdivision (a) (count VI).

Postverdict Proceedings

A court trial was held on defendant’s priors on April 21, 2014. The court found 

true an allegation defendant suffered a section 667.5, former subdivision (b) prior 
27.

conviction as alleged in the information and the matter was referred to probation for 

sentencing.

A sentencing hearing was initially set for May 20, 2014, but the matter was 

continued to June 11, 2014, in light of a motion to compel discovery filed by defendant. 

The motion sought to compel production of (1) “An inventory and transcript of all 

wiretapped communications of [defendant’s counsel Frank Carson] and/or [his] office 

intercepted during the duration of [defendant’s] trial from May to October 2012” and (2) 

“An inventory and copies of any and all emails intercepted or received during the 

duration of [defendant’s] trial whether from or to [Frank Carson] or investigator Jack 

Able and his associates” and any related law enforcement reports, notes, or summaries. 

In the memorandum in support of the motion, Carson explained he was “exploring a 

motion for a new trial based on the misconduct of the District Attorney during trial and 

the repeated purposeful breach of the attorney/client and work product privilege that 

denied defendant a fair trial.”

Carson filed a declaration in support of the motion to compel, averring he became 

aware his communications were being intercepted during the trial “because of 

developments that corresponded with what [he]’d discussed via phone calls that led [him]

to believe the government knew of efforts [he] was making to develop witness[es] and 

defenses to charges.” He asserted his “investigator’s e-mails were intercepted by the 

District Attorney’s Office concerning a possible cell phone expert opining as to what the 

records would show of the location of the principal prosecution witness ... [W.H.] before 

and after the shooting.” He stated his “investigator Jack Able was shown his private 

generated e-mail by District Attorney investigators questioning him not long ago 

concerning this issue.” He further averred: “During the course of the almost 6 month 

trial, I spoke extensively about the case via phone with colleagues, investigators, and 

witnesses. [¶] Developments in the trial were indicative of my confidential 

communications being compromised.”
28.

The People opposed the motion and attached a declaration of Detective Jon Evers 

to their response. In part, Evers averred he was assigned to assist a multiagency 

investigation into the murder of Korey Kauffman and, as part of that investigation, “there 

was a wire intercept order that ended on July 21, 2012.” He reiterated the court 

previously conducted an in camera hearing during which Evers testified regarding these 

issues and the issue was previously decided. Evers further discussed a request by defense 

investigator Jack Able on an Internet Web site made 10 days after the wire intercept 

concluded, “making it impossible for this communication to have been intercepted during 

the course of this wiretap.” He affirmed that an interview was conducted with Jack Able 

on November 12, 2013, during which Able confirmed he was investigating “the missing 

persons case of Korey Kauffman on behalf of Frank Carson” and he “confirmed he sent 

the email/posting to his list serve members on July 31, 2012,” and that it related to the 

Kauffman case.

At the hearing on June 11, 2014, Carson explained that during trial, he expressed 

to the court there were “indicators” his “communications were being intercepted.” 

Carson contended “the privilege for law enforcement” (Evid. Code, § 1040) had been 

waived as a result of Evers’s averments in his declaration, and he should have the right to 

cross-examine Evers. The court held another in camera hearing with Detective Evers 

regarding whether confidential communications were intercepted. It concluded 

afterwards it was satisfied there was “absolutely nothing to disclose.” Accordingly, the 

court denied the motion to compel discovery and stated it would proceed with sentencing.

At that point, Carson stated he would need to withdraw from the case as 

defendant’s attorney; he would not “proceed any further” because he could not 

“ethically.” Carson stated, “I can’t proceed and continue representing my client if I’m in 

possession of information that I can’t impart until, as I would like to, if I’m aware of facts 

that directly would help him.” “[R]ather than proceed when I know that I am constrained 

from helping my client to the fullest extent that I can or that I should be able to, then, ... 
29.

at this juncture what I’d like to do is consider, so that I can either brief this or, again, 

consult, get an ethics ruling on this thing about what I can disclose and what I need to do, 

consider withdrawing.” Carson told the court to proceed with sentencing Arguello and 

Zapien and that he would come back in a week or two for defendant’s sentencing.

Prior to a July 11, 2014, hearing, Carson filed a motion to withdraw based on a 

conflict of interest he alleged prevented him “from filing the necessary and appropriate 

motion for a new trial; based on counsel’s representation being compromised by police 

and prosecutorial misconduct and breach of the attorney/client and work product 

confidences.” At the hearing, the court granted Carson’s motion to withdraw and 

indicated attorney John Hillenbrand would be appointed as replacement counsel. Carson 

was subsequently charged with murder in 2015 and acquitted of the charges in 2019.

Hillenbrand made an appearance three days after being appointed as defendant’s 

counsel and asked to continue the matter for 10 days. At the next hearing, Hillenbrand 

indicated he needed more time to review the file and asked to put the matter over until 

September. At the September hearing, counsel requested a further continuance until 

November 2014. Then counsel requested an additional continuance in November and 

stated the transcript he received was incomplete as it did not include any of the hearings 

outside of the jury’s presence. The matter was reset for January 2015. Sentencing was 

ultimately continued further and, in August 2015, defense counsel Hillenbrand filed a 

motion to compel discovery related to a district attorney investigator, Detective Evers, 

and Detective Frank Navarro’s entry of Carson’s office on August 9, 2012, documents 

related to electronic surveillance of Carson in 2012, and documents related to the 

interceptions of communications of Frank Carson and his investigator Jack Able. The 

People opposed the motion, denying the request was supported or that there was 

governmental interference. Specifically, they argued, “[w]hile investigation of 

Defendant’s former defense counsel occurred, there was no information obtained related 

to the instant case, nor was any information shared with the prosecutor in this matter.” 
30.

Additionally, “[d]efendant does not suggest that this evidence would relate to his guilt or 

innocence and merely speculates this evidence may have played a role in his 

representation,” and “there is a legitimate government interest in maintaining the integrity 

of the investigation into the murder of Korey Kauffman.”

In March 2016, a declaration by defendant was filed with the court in which, 

among other things, defendant averred Carson never advised defendant during Carson’s 

representation of him that Carson was under investigation by law enforcement or that he 

believed his phones were being tapped and his conversations monitored during the time 

he represented defendant. Defendant averred he believed his defense was compromised 

by the lack of disclosure and that Carson was conflicted and defending himself during the 

trial. At the related hearing, defense counsel Hillenbrand stated the declaration would be 

an essential part of the motion for new trial and he requested an additional continuance.

At a subsequent hearing on May 23, 2016, Hillenbrand declared he had “multiple 

conflicts” he discovered while preparing the motion for new trial and could not “ethically 

proceed with this motion.” On May 25, 2016, Alonzo Gradford was subsequently 

appointed as counsel for defendant, but he reported at the next hearing he could not 

accept the appointment after all. The next appointed attorney was also relieved based 

upon a conflict of interest. Defendant was eventually represented by Lewis Wentz and 

the sentencing hearing was again continued multiple times. Finally, Frank Carson 

substituted back in as counsel in July 2019.

Motion for New Trial

Carson filed a motion for new trial on defendant’s behalf detailing law 

enforcement’s actions against Carson in relation to the murder charge ultimately brought 

against him, which was prosecuted by Marlisa Ferreira, the prosecutor in defendant’s 

trial. The motion alleged, in part:

“On July 15, 2012, law enforcement from several agencies executed search 

warrants at several of Mr. Carson’s properties with cadaver-sniffing dogs. 
31.

Prior to that, interviews had been conducted with Mr. Carson’s step 

daughter ... and [an] employee .... Marlissa Ferriera [sic] on her own 

conducted surveillance of the Carson family members and went to 

Manteca, California, to interview an antique store owner about Mr. Carson 

and his wife. Ms. Ferriera [sic] passed herself off as an acquaintance of the 

Carson’s. On August 9, 2012, as Mr. Carson was preparing for trial, 

District Attorney Investigator Kirk Bunch, Turlock Police Officer Frank 

Navarro, and Modesto Police Officer Jon Evers invaded the law office of 

Mr. Carson and refused to leave. The officers searched the outgoing 

addressed mail on the front desk in Mr. Carson’s office. Mr. Carson had to 

call 9-1-1 and get the assistance of the Modesto Police Department to throw 

the rampaging officers out of the office. The officers did not have a 

warrant for their actions. Moreover, from June 21, 2012, through July 21, 

2012, they wiretapped Mr. Carson’s phone based on his being a murder 

suspect in the disappearance of Mr. [Korey] Kauffman. Mr. Carson and 

others suspected of being involved were arrested on August 14, 2015, for 

the murder of Mr. Kauffman. Mr. Carson was found not guilty of that 

alleged murder on June 28, 2019. The prosecution attorney was Marlissa 

Ferreira [sic]. She’s the same prosecutor who prosecuted [defendant].

Ms. Ferriera [sic], in the course of the preliminary hearing against 

Mr. Carson (2015–2016), said that investigative work completed by Jack 

Able and Associates, an investigative firm Mr. Carson employed, was not

done for [defendant]’s case, but rather the investigators Mr. Carson 

employed were actually tracking the Kauffman investigation. Ms. Ferreira 

asserted Mr. Able, Carson’s private investigator was hired ‘for an illicit 

purpose not for a legitimate purpose ....’” (Underscoring and italics in 

original.)

The motion for new trial also alleged defendant “was not properly informed about 

the dire, conflicted situation his attorney was in nor did he waive the conflict or weigh the 

possible alternatives that may have been available to him.” A declaration by Carson was 

attached to the motion for new trial in which Carson averred he never told defendant 

during his representation that he was a murder suspect under investigation by the district 

attorney’s office and the “conflict of interest” “greatly distracted [him] during the course 

of the trial.” He asserted, he “was fearful that questions [he] was asked at trial might be 

perceived as having an ulterior purpose for [his] own benefit in the case for which [he] 

was personally suspect,” and he “regret[ted] [his] failure.” Defendant’s March 2016 

declaration was also attached to the motion in which he averred Carson never advised 
32.

him he had a conflict or potential conflict with the office of the district attorney, and he 

believed his defense was compromised by the lack of disclosure and that Carson “was 

defending himself as well as [defendant] as the trial proceeded.” Defendant filed a 

separate request for the court to take judicial notice of Stanislaus Superior Court case

No. 1490969, People v. Frank C. Carson, et al.

The People opposed the motion and argued defendant could not establish he was 

prejudiced by any alleged conflict. They also contended “several accusations in 

[defendant’s] statement of facts” were “not supported by declarations under penalty of 

perjury.” They argued Carson informed the court in defendant’s presence that he was 

subject to wiretaps and had investigators arrive at his office to investigate. They argued, 

moreover, the evidence supporting defendant’s guilt was “overwhelming” and defendant 

failed to establish ineffective assistance of counsel.

At the hearing on the motion for new trial in January 2020, Carson argued there 

was an inherent conflict and defendant could not have gotten a fair trial as a result. The 

court denied the motion for new trial, finding “the evidence was overwhelming,” and

noting both of the codefendants were also convicted and their convictions survived the 

appeal process. Additionally, the court stated, after observing Carson’s performance at 

trial, it did not occur to the court at any time that Carson was not “performing at 100 

percent by any means at all.”

Sentencing

The court sentenced defendant to 25 years-to-life on count I plus a consecutive 25-

year-to-life term for the section 12022.53, subdivisions (d) and (e) enhancement; a 

consecutive 25-year-to-life term on count II plus a consecutive 25-year-to-life term for 

the section 12022.53, subdivisions (d) and (e) enhancement; consecutive 15-year-to-life 

terms on count III and V, plus consecutive 20-year terms for the section 12022.53, 

subdivisions (c) and (e) enhancement; a consecutive term of eight months (one-third the 

midterm) on count VII; and a stayed term of two years (one-third the midterm) on count 
33.

IX, plus a one-year consecutive term for the section 667.5, former subdivision (b) 

enhancement.

DISCUSSION

I. Government Did Not Engage in Misconduct that Violated Defendant’s 

Constitutional Rights or Mandates Reversal

Defendant first contends the government engaged in egregious misconduct by 

intercepting attorney-client communications and creating a conflict that forced his 

counsel to withdraw. He argues reversal or dismissal is required because the misconduct

violated his Sixth Amendment right to counsel and his due process and fair trial rights. 

The People disagree.

A. Relevant Factual and Procedural Background

On August 20, 2012, the 43d day of trial, defendant’s attorney, Carson, notified 

the court he had reason to believe his phone was being wire-tapped and asked the court to 

inquire of the district attorney’s office whether his communications were being 

intercepted. Carson explained, he was discussing impeachment of one of the experts in 

this case and that evening Detective Evers and the district attorney’s investigator Kirk 

Bunch and “Frank Navarro out of Turlock wound up in the lobby of [Carson’s] office 

looking at the mail that was on a front desk.” Carson asked the court to obtain a 

representation from Detective Evers about whether Carson’s “communications have been 

compromised.” The prosecutor, Ferreira, stated she did not have any wiretaps going on 

and did not know of any, but she would not be privy to that information if it was not her 

wiretap. She represented she had spoken with her boss and her chief deputy, and she was 

not informed of an ongoing investigation involving Carson. Carson responded Ferreira 

also had represented to him she had no knowledge of a wiretap and he accepted that. But 

he urged the court to inquire of Detective Evers if he is aware “of this kind of 

monitoring.” The court scheduled an Evidence Code section 402 hearing with Detective 

Evers.
34.

At the hearing, Carson asked Detective Evers if he was aware of any electronic 

monitoring of “any of the attorneys sitting at counsel table” in 2012. Detective Evers 

responded “that is privileged information” and requested “an in-camera hearing” under 

Evidence Code section 1040. The court held an in camera hearing and, after the hearing, 

the court found “that a privilege does exist for the detective.” The court explained its 

only concern was “whatever might occur relative to this particular case and that’s what it 

was limited to, whether any kind of attorney-client privilege has been breached in any 

fashion.” The court explained it examined Detective Evers “extensively to ascertain that 

... no confidential telephone calls were received between [Carson], [defendant], and 

investigator, or anybody or anything associated with this case, and that held true for all 

the defendants and all of the parties in this particular case.” The court concluded after 

“extensive questioning of the detective, [it was] convinced that positively that this has not 

occurred.”

Carson expressed his concern “that the only representations this Court’s basing its 

decision on are the ones from Detective Evers,” and that the defense was prepared to 

impeach Detective Evers “based on a continuing course of conduct.” Carson asked the 

court to order “these intercepts be preserved and they could be under seal initially” and 

“that there be an inventory, then the Court can test the veracity of whatever 

representations are being made.” The court declined counsel’s suggestions and reiterated

it had questioned the detective extensively to make absolutely certain there were no 

compromises made in this particular case at all. The court stated it was “absolutely 

satisfied there’s been no sort of breach in any communications” of Carson, defendant, his 

investigators, any experts, or anything relative to this case and “that holds true for all the 

defendants, all the defense attorneys.” The court further confirmed Detective Evers also 

“had no communication with Ms. Ferreira on the issue.”

As discussed, thereafter in July 2014, after the jury’s verdict in this matter and 

before sentencing, Carson moved to withdraw. He was subsequently arrested, tried, and 
35.

acquitted in connection with the Kauffman murder. Following his acquittal, Carson was 

reinstated as defendant’s counsel and filed a motion for new trial on defendant’s behalf in 

July 2019.

B. Analysis

Defendant argues the behavior of the district attorney’s office “shocks the 

conscious [sic],” and “the charges should be dismissed or the judgment reversed and the 

matter remanded for a new trial with conflict-free counsel.”

1. Defendant’s Right to Counsel Was Not Violated

Defendant argues the government’s misconduct led his counsel to withdraw, 

thereby violating his right to counsel. He further contends the “government here 

egregiously interfered” with his “attorney-client relationship and right to counsel by 

tapping Carson’s phones, and creating such a conflict for Carson,” defendant’s chosen 

attorney, that Carson “and six other lawyers were forced to withdraw from [defendant]’s 

case, causing substantial delay and leaving [defendant] without unconflicted counsel for 

six long years.” (Boldface omitted.) In supplemental briefing, defendant further 

contends his right to retained counsel of his choosing was violated on this basis.

Initially, we cannot conclude defendant’s Sixth Amendment right to counsel was 

violated. “[A] court properly rejects a Sixth Amendment claim based on surreptitious 

state participation in communications between a defendant and his or her attorney or the 

attorney’s agent when the record demonstrates there was no realistic possibility of injury 

to the defendant or benefit to the prosecution.” (People v. Alexander (2010) 49 Cal.4th 

846, 888–889; accord, Weatherford v. Bursey (1977) 429 U.S. 545, 552 [“when 

conversations with counsel have been overheard, the constitutionality of the conviction 

depends on whether the overheard conversations have produced, directly or indirectly, 

any of the evidence offered at trial”].)
36.

In People v. Alexander, supra, 49 Cal.4th 846, the California Supreme Court 

reviewed the denial of a motion to dismiss based upon the monitoring and recording of a 

telephone call involving the defendant, his mother, and a defense investigator during 

which “several subjects concerning the trial were discussed, including potential defense 

witnesses and how the defense might respond to the prosecution’s evidence.” (Id. at p. 

884.) Before jury selection began in the Alexander trial, the prosecution obtained a 

warrant authorizing law enforcement agents to monitor and record conversations from 

but not limited to the home of the defendant’s parents to attempt to prevent intimidation 

or dissuasion of witnesses in the defendant’s case. (Ibid.) In addressing the defendant’s 

claims, the Alexander court perceived “five distinct possible grounds for claims of error:

(1) a statutory violation of Evidence Code section 954, the attorney-client privilege; (2) a 

violation of his federal Sixth Amendment right to counsel; (3) a violation of his federal 

Fifth Amendment due process right to a fair trial; (4) a violation of his federal Fifth 

Amendment right to substantive due process; and (5) a violation of his state constitutional 

right to counsel.” (Ibid.)

The Alexander court rejected the defendant’s claim the interception violated the 

statutory attorney-client privilege, reasoning the defendant had “made no showing that 

any witness disclosed any information from the call during the proceedings in violation 

of Evidence Code section 954.” (People v. Alexander, supra, 49 Cal.4th at p. 887.)

Substantial evidence supported the trial court’s findings the calls’ contents were not 

disclosed to the prosecutors. (Ibid.) The Alexander court further held interception of 

attorney-client communications does not constitute a complete denial of the right to 

counsel; rather, “unless the record supports ‘at least a realistic possibility of injury to [the 

defendant] or benefit to the State, there can be no Sixth Amendment violation.’”

(Alexander, supra, at p. 888; accord, Weatherford v. Bursey, supra, 429 U.S. at p. 558.) 

The Alexander court further concluded, even assuming the defendant’s state right to 
37.

counsel had been violated, the defendant could not show a reasonable probability he 

would have obtained a more favorable result absent the violation. (Alexander, at p. 899.)

Here, as in Alexander, at no point during the trial, the hearing on the motion for 

new trial, or in this appeal has defendant identified any specific evidence the prosecution 

offered that he suspects was developed because of intercepted communications. (See 

People v. Alexander, supra, 49 Cal.4th at p. 889.) And, notably, “this is not a situation 

where the State’s purpose was to learn what it could about the defendant’s defense plans 

and the informant was instructed to intrude on the lawyer-client relationship or where the 

informant has assumed for himself that task and acted accordingly.” (Weatherford v. 

Bursey, supra, 429 U.S. at p. 557.) Rather, there is no evidence any of the information 

gained from the wire interceptions, including any alleged confidential attorney-client 

communications, was possessed by or communicated to the prosecutor. (See id. at pp. 

556–557 [“As long as the information possessed by [the undercover agent] remained 

uncommunicated, he posed no substantial threat to Bursey’s Sixth Amendment rights. 

Nor do we believe that federal or state prosecutors will be so prone to lie or the

difficulties of proof will be so great that we must always assume not only that an 

informant communicates what he learns from an encounter with the defendant and his 

counsel but also that what he communicates has the potential for detriment to the 

defendant or benefit to the prosecutor’s case”].)

Additionally, even assuming, arguendo, there was a breach of attorney-client 

confidences amounting to a violation of defendant’s state right to counsel—of which we 

note there is no evidence—as in Alexander, we also cannot conclude reversal or dismissal 

is warranted. (See People v. Alexander, supra, 49 Cal.4th at p. 895.) Here, defendant 

“had counsel, and his attorney vigorously pursued his interests throughout the trial.”

(Alexander, supra, at p. 896; accord, People v. Delgado (2017) 2 Cal.5th 544, 567–568

[noting “defense counsel actively participated in all aspects of the trial, including jury 

selection, challenging evidence admissibility, cross-examining witnesses, proposing jury 
38.

instructions, presenting defense witnesses at penalty phase, and arguing vigorously 

against a sentence of death”].) And, as discussed, there is no evidence the prosecution 

gained anything from the interception of any calls. Nor is there any evidence defendant

was affected negatively in a way that could have changed the trial’s outcome (counsel’s 

unsupported assertion notwithstanding). (See Alexander, at p. 899.) Indeed, the record 

does not show the government’s conduct “impaired the preparation of [the] defense or 

aided the state’s presentation of the evidence against [the defendant].” (People v. Suarez

(2020) 10 Cal.5th 116, 183.)

Defendant’s reliance upon Barber v. Municipal Court (1979) 24 Cal.3d 742, 752 

(Barber) to argue reversal or dismissal is required is misplaced. In Barber, an 

undercover police officer posed as a codefendant and attended attorney-client meetings.

(Id. at pp. 745, 747–749.) During that time, the agent communicated regularly with his 

superior officers and disclosed that “the defense was to become more ‘political.’” (Id. at 

p. 749.) The petitioners learned of the breach in attorney-client confidences before the 

date set for trial and they moved to dismiss the charges on the grounds the presence of the 

agent at confidential attorney-client meetings had deprived them of their rights to 

effective assistance of counsel and due process of law. (Id. at p. 745.) Their attorney 

testified his clients became “‘paranoi[d]’” after learning they had been infiltrated by an 

informant, and the breach had a demonstrated chilling effect on attorney-client 

communications. (Id. at pp. 749–750, 756.) Specifically, the petitioners became 

reluctant to speak though they had actively participated in meetings before and they were 

distrustful of each other and of defense counsel’s assistant. (Ibid.) Defense counsel 

opined, accordingly, his clients’ ability to assist in preparing a defense had been 

“‘substantially impaired.’” (Barber, at p. 750.) On that record, the California Supreme 

Court concluded the government’s action violated the right to counsel and the only 

effective remedy was dismissal of the underlying charges. (Id. at pp. 759–760.) The 
39.

Barber court held “[t]he right to counsel ... is violated when a state agent is present at 

confidential attorney-client conferences.” (Id. at p. 752.)

As the California Supreme Court explained in Alexander, “Barber involved an

application for a pretrial writ of prohibition, while the present case is an appeal from a 

judgment of conviction and sentence.” (People v. Alexander, supra, 49 Cal.4th at p. 896; 

see People v. Delgado, supra, 2 Cal.5th at p. 567.) Accordingly, the present case is 

subject to article VI, section 13 of the California Constitution: “No judgment shall be set 

aside ... for any error as to any matter of procedure, unless, after an examination of the 

entire cause, including the evidence, the court shall be of the opinion that the error 

complained of has resulted in a miscarriage of justice.” (See Alexander, at p. 896; 

Delgado, supra, at p. 567.) And, as discussed, there is no evidence or basis to conclude 

the prosecution benefited from or the defense was harmed as a result of interceptions of 

privileged communications. Furthermore, in Barber, there was evidence the defendants 

“‘[had] been prejudiced in their ability to prepare their defense’” after they learned a

undercover officer had been in their midst.” (Alexander, supra, at p. 895; see Barber, 

supra, 24 Cal.3d at p. 756.) Whereas here, there is no such evidence the alleged 

interception had a “chilling effect” on defendant’s relationship with counsel. Carson 

expressed his suspicions regarding his communications being intercepted in open court 

when defendant was present, and there was no evidence their relationship had become 

strained at any time.

2 Furthermore, the interceptions here were not the result of 

2Notably, despite the discussions in open court during which defendant was present, 

defendant averred in his declaration below that Carson never advised him he believed his phones 

were tapped or that his conversations were being monitored during his representation of 

defendant. Defendant also stated he did not understand the significance of the wiretap discussion 

to his rights when it was discussed or hear the court address how the wiretaps and Carson’s 

concerns affected his rights. Defendant’s representations, thus, further belie his contention on 

appeal that his relationship with counsel was affected during counsel’s representation based on 

the alleged interception of privileged communications.
40.

“trickery” as in Barber, but rather “occurred pursuant to a judicially approved warrant” as 

in Alexander. (Alexander, supra, at p. 895.) Thus, Barber is inapposite.

We also cannot conclude alleged governmental misconduct resulted in a violation 

of defendant’s right to retained counsel of his choosing. It is true “[t]he right to the 

effective assistance of counsel ‘encompasses the right to retain counsel of one’s own 

choosing. [Citations.]’ [Citation.] Underlying this right is the premise that ‘chosen 

representation is the preferred representation. Defendant’s confidence in his lawyer is 

vital to his defense. His right to decide for himself who best can conduct the case must 

be respected wherever feasible.’ [Citation.]” (People v. Courts (1985) 37 Cal.3d 784, 

789.) But here, Carson moved to withdraw based on an authorized investigation. His 

withdrawal and any related conflict was not the result of prosecutorial or governmental 

misconduct, but rather based upon a valid investigation into his potential involvement in 

a crime. Thus, we cannot conclude alleged governmental misconduct resulted in a 

violation of defendant’s right to retained counsel of his choosing.

In support of his arguments, defendant relies upon People v. Velasco-Palacios

(2015) 235 Cal.App.4th 439, in which it was undisputed the prosecutor engaged in 

misconduct “when he provided defense counsel with a fraudulent transcript of 

defendant’s police interrogation while the plea bargaining process was ongoing.” (Id. at 

p. 448.) In response to the misconduct, the defendant’s counsel filed a motion to dismiss 

“and he and [the] defendant waived the attorney-client privilege so they could testify at 

the evidentiary hearing.” (Ibid.) Based on the waiver and the People’s unsubstantiated 

claim defense counsel had privately admitted the defendant did not have a viable defense, 

the public defender’s office removed defendant’s counsel. (Ibid.) On that record, the 

court concluded it was “abundantly clear” prosecutorial misconduct led to the defendant 

losing his attorney as his trial counsel. (Ibid. [“There is simply no realistic difference 

between government action that improperly removes a defendant’s counsel directly and 

government misconduct that necessarily leads to a defendant’s counsel being forced to 
41.

withdraw. In both scenarios government misconduct leads to the loss of a defendant’s 

original counsel, and in both scenarios the defendant’s right to counsel had been 

prejudiced”].)

However, here, unlike in People v. Velasco-Palacios, the government did not 

falsify evidence or engage in egregious conduct that caused Carson to withdraw. To the 

contrary, it is undisputed any interception in Carson’s communications was pursuant to a 

judicially authorized warrant. And the government did not take part in misconduct by 

engaging in a valid investigation into a crime. Thus, while defendant characterizes the 

situation as a “government-created conflict,” this was not a situation as in People v. 

Velasco-Palacios where the government manufactured grounds that ultimately led to the 

defendant losing his counsel. Rather, counsel withdrew after he believed he could not 

ethically proceed in light of the sanctioned investigation.

2. Alleged Governmental Misconduct Did Not Result in Violation of 

Defendant’s Due Process Rights

Defendant also asserts “this is one of the few cases where the government’s 

egregious misconduct violated [his] Fifth Amendment right to due process.” We 

disagree.

We cannot conclude the interceptions violated defendant’s due process right to a 

fair trial under the Fifth Amendment to the federal Constitution.

“The determination of whether the government engaged in outrageous 

conduct in violation of defendant’s due process rights is a mixed question. 

The first step involves the consideration and weighing of the evidence and 

assessing the credibility of the witnesses to determine factually whether, 

and to what extent, governmental misconduct occurred. This factual 

determination is clearly one that is subject to a deferential standard of 

review. But the second step—whether the governmental conduct 

constitutes outrageous conduct in the constitutional sense of violating 

defendant’s due process rights—involves the application of law to the 

established facts and is primarily a legal question. The rights of the 

respective parties here are extremely important ones, namely, defendant’s 

right to a fair trial and the People’s right to prosecute persons believed to be 
42.

responsible for the commission of serious crimes.” (People v. Uribe (2011) 

199 Cal.App.4th 836, 857–858.)

Accordingly, the Uribe court held, a “trial court’s finding that the governmental conduct 

was outrageous in violation of defendant’s due process rights thereby warranting 

dismissal is subject to independent review.” (Id. at p. 858.)

Here, as in Alexander, “there has been no showing that (1) the purpose of 

intercepting the [communications] was to discover defense strategy, (2) information in 

[them] was communicated to the prosecutor[], or (3) law enforcement agents utilized, or 

even could have utilized, information conveyed in the [communications].” (People v. 

Alexander, supra, 49 Cal.4th at pp. 891–892.) Furthermore, we also cannot conclude the 

challenged actions here were “so egregious as to shock the conscience” as to render the 

conduct arbitrary and violative of defendant’s substantive due process rights. (Id. at p. 

892 [“Arbitrary official action can violate a defendant’s substantive due process rights, 

but ‘only the most egregious official conduct can be said to be “arbitrary in the 

constitutional sense”’”]; accord, County of Sacramento v. Lewis (1998) 523 U.S. 833, 

846.) Here, as in Alexander, the interception occurred “pursuant to a judicially approved 

warrant,” and no evidence suggests law enforcement exploited any information gained by 

sharing it with the prosecutor or utilizing it in another way to benefit the prosecution’s 

case. (See Alexander, supra, at p. 892.) Indeed, there was no evidence any information 

germane to defendant’s case was even intercepted. Thus, we conclude defendant’s due 

process rights were not violated.

3. Defendant Has Not Shown He Was Prejudiced By Any Alleged 

Conflict of Interest

Defendant also argues the court failed to make a proper inquiry into the issue of 

conflict of interest and reversal is required based upon Carson’s conflict. He contends 

the court knew Carson was under investigation in August 2012 and “it had an affirmative 

duty to make inquiry and take action to protect [defendant]’s right to unconflicted 

counsel,” but the “court made no inquiries and did nothing.” Specifically, the court 
43.

never informed defendant of a potential conflict of interest nor secured a conflict waiver 

from him. Additionally, the court erred by “reappointing Carson after he was acquitted 

of capital murder charges, but while he was still facing trial on perjury charges and thus 

still had a conflict of interest.” We are not persuaded.

“‘“The right to effective assistance of counsel, secured by the Sixth 

Amendment to the federal Constitution, and article I, section 15 of the 

California Constitution, includes the right to representation that is free from 

conflicts of interest.”’ [Citations.] While the classic example of a conflict 

in criminal litigation is a lawyer’s dual representation of codefendants, the 

constitutional principle is not narrowly confined to instances of this type. 

[Citation.] A conflict may also arise when an attorney’s loyalty to, or 

efforts on behalf of, a client are threatened by the attorney’s own interests. 

[Citation.] [¶] Under the federal Constitution, prejudice is presumed when 

counsel suffers from an actual conflict of interest. [Citation.] This 

presumption arises, however, ‘only if the defendant demonstrates that 

counsel “actively represented conflicting interests” and that “an actual 

conflict of interest adversely affected his lawyer’s performance.”’ 

[Citations.] An actual conflict of interest means ‘a conflict that affected 

counsel’s performance—as opposed to a mere theoretical division of 

loyalties.’ [Citation.] Under the federal precedents, which we have also 

applied to claims of conflict of interest under the California Constitution, a 

defendant is required to show that counsel performed deficiently and a 

reasonable probability exists that, but for counsel’s deficiencies, the result 

of the proceeding would have been different.” (People v. Gonzales and 

Soliz (2011) 52 Cal.4th 254, 309–310.)

“When a trial court knows or should know that defense counsel has a possible 

conflict of interest with his client, it must inquire into the matter [citations] and act in 

response to what its inquiry discovers [citation].” (People v. Jones (1991) 53 Cal.3d 

1115, 1136.) “If the court determines that a waiver of a conflict of interest by the 

defendant is called for, it must assure itself that ‘“(1) the defendant has discussed the 

potential drawbacks of [potentially conflicted] representation with his attorney, or if he 

wishes, outside counsel, (2) that he has been made aware of the dangers and possible 

consequences of [such] representation in his case, (3) that he knows of his right to 

conflict-free representation, and (4) that he voluntarily wishes to waive that right.” 
44.

[Citations.]’ [Citation.] A trial court’s failure to inquire into the possibility of a conflict 

of interest or to adequately respond to its inquiry is reversible error only if the defendant 

shows ‘that an actual conflict of interest existed and that that conflict adversely affected 

counsel’s performance.’” (Id. at pp. 1136–1137.) “‘To determine whether counsel’s 

performance was “adversely affected” ... requires an inquiry into whether counsel 

“pulled his punches,” i.e., whether counsel failed to represent defendant as vigorously as 

he might have, had there been no conflict. [Citation.] In undertaking such an inquiry, we 

are ... bound by the record. But where a conflict of interest causes an attorney not to do 

something, the record may not reflect such an omission. We must therefore examine the 

record to determine (i) whether arguments or actions omitted would likely have been 

made by counsel who did not have a conflict of interest, and (ii) whether there may have 

been a tactical reason (other than the asserted conflict of interest) that might have caused

any such omission.’ [Citations.]” (People v. O’Malley (2016) 62 Cal.4th 944, 1001; 

accord, People v. Holmes, McClain and Newborn (2022) 12 Cal.5th 719, 753 [“An 

adverse impact on performance is shown by demonstrating counsel did or did not do 

something he otherwise might have done absent the conflict”].)

Here, we cannot conclude Carson’s performance was adversely affected by any 

potential conflict of interest as to require reversal on this basis. That is, defendant fails to 

show Carson “pulled his punches” based on his alleged fear of prosecution. Though 

Carson stated in his declaration he “was fearful that questions [he] was asked at trial 

might be perceived as having an ulterior purpose for [his] own benefit in the case for 

which [he] was personally suspect,” and he “regret[ted] [his] failure,” neither he nor 

defendant identified any specific questions he failed to ask or any specific way in which 

any alleged conflict actually affected his performance. (See People v. O’Malley, supra, 

62 Cal.4th at p. 1002 [“Defendant relies on defense counsel’s statement during the in 

camera hearings expressing doubt about his own ability to continue with the case, but he 

identifies no instance in which the alleged conflict actually affected counsel’s 
45.

performance”]; People v. Holmes, McClain and Newborn, supra, 12 Cal.5th at p. 753 

[rejecting claim right to counsel was impaired by attorney conflict where defendant 

“fail[ed] to show the existence of any actual impact on his counsel’s performance”].) 

Nor does the record reveal any argument or actions conflict-free counsel likely would 

have made or undertaken but were not made or undertaken by Carson. To the contrary, 

the record reflects Carson vigorously represented defendant, extensively cross-examining 

and presenting witnesses, and repeatedly arguing motions and objections throughout trial. 

To the extent defendant asserts the court erred in reappointing Carson, defendant’s own 

declaration reflects he was aware of the potential conflict with Carson and he never 

voiced an objection to his ultimate representation at sentencing.

And defendant has not shown a reasonable probability the result of the proceeding 

would have been different but for any alleged deficiencies in Carson’s performance. (See 

People v. Holmes, McClain and Newborn, supra, 12 Cal.5th at p. 753 [“To obtain relief 

for ineffective assistance of counsel, a defendant must show both deficient performance 

‘and a reasonable probability that but for counsel’s deficiencies, the result of the 

proceeding would have been different’”].) As discussed, the record reflects Carson was a 

zealous advocate for defendant throughout the trial. And the jury convicted all of the 

defendants of the murders and attempted murders of Diaz, Ochoa, W.H., and Officer 

Meyer as well as the substantive gang offense. From these verdicts, it is clear the jury 

rejected defendant’s theory of self-defense. And we cannot conclude any alleged 

deficiency in Carson’s performance affected the verdict.

For all these reasons, we reject defendant’s first contention.

II. Sufficient Evidence Supports Attempted Premeditated Murder Convictions

Defendant next argues the evidence was insufficient to support his attempted 

murder convictions as to Officer Larry Meyer (count III) and W.H. (count V).
46.

A. Standard of Review

On appeal, the relevant inquiry governing a challenge to the sufficiency of the 

evidence is “‘“‘whether, after viewing the evidence in the light most favorable to the 

prosecution, any rational trier of fact could have found the essential elements of the crime 

beyond a reasonable doubt.’”’” (People v. Navarro (2021) 12 Cal.5th 285, 302.) The 

reviewing court’s task is to review the entire record in the light most favorable to the 

judgment to determine whether it contains substantial evidence—evidence that is 

reasonable, credible, and of solid value—such that a reasonable trier of fact could find the 

defendant guilty beyond a reasonable doubt. (See People v. Bolin (1998) 18 Cal.4th 297,

331; People v. Johnson (1980) 26 Cal.3d 557, 578.) “The standard of review is the same 

in cases in which the prosecution relies mainly on circumstantial evidence.” (People v. 

Rodriguez (1999) 20 Cal.4th 1, 11.) “‘We must also “accept logical inferences that the 

jury might have drawn from the circumstantial evidence.”’” (People v. Navarro, supra, 

12 Cal.5th at p. 302.)

It is the jury, not the appellate court, which must be convinced of a defendant’s 

guilt beyond a reasonable doubt. (People v. Rodriguez, supra, 20 Cal.4th at p. 11.) If the 

circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing 

court that the circumstances might also reasonably be reconciled with a contrary finding 

does not warrant a reversal of the judgment. (Ibid.)

B. Applicable Law

The elements of attempted murder are the specific intent to kill and a direct but 

ineffectual act toward accomplishing the intended killing. (People v. Houston (2012) 54 

Cal.4th 1186, 1217.) “‘A “person aids and abets the commission of a crime when he or 

she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the 

intent or purpose of committing, encouraging, or facilitating the commission of the 

offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of 

the crime.”’ [Citation.] ‘[T]o be guilty of attempted murder as an aider and abettor, a 
47.

person must give aid or encouragement with knowledge of the direct perpetrator’s intent 

to kill and with the purpose of facilitating the direct perpetrator’s accomplishment of the 

intended killing—which means that the person guilty of attempted murder as an aider and 

abettor must intend to kill.’ [Citation.]” (People v. Nguyen (2015) 61 Cal.4th 1015, 

1054.) Intent to kill may “be inferred from the defendant’s acts and the circumstances of 

the crime.” (People v. Smith (2005) 37 Cal.4th 733, 741.) “‘There is rarely direct 

evidence of a defendant’s intent. Such intent must usually be derived from all the 

circumstances of the attempt, including the defendant’s actions.’” (Ibid.)

“‘Whether a person has aided and abetted in the commission of a crime ordinarily 

is a question of fact.... [¶] ... [¶] Among the factors which may be considered in making 

the determination of aiding and abetting are: presence at the scene of the crime, 

companionship, and conduct before and after the offense.’ [Citation.]” (People v. 

Nguyen supra, 61 Cal.4th at p. 1054.) 

C. Analysis

Defendant contends he was convicted as an aider and abettor of the attempted 

premeditated murder charges. But, he argues, the evidence was insufficient to establish 

he intended to kill Officer Meyer or that he aided or assisted in attempting to kill Meyer. 

He asserts “the bullet was neither fired close to Meyer[] or in a manner that would have 

inflicted a mortal wound.” He also contends there was no evidence he knew “of a plan to 

kill Meyer[], formed the intent to assist in killing Meyer[], and then contributed to the 

killing by act or advice.”

Reviewing the evidence in the light most favorable to the judgment, we conclude 

sufficient evidence supports defendant’s conviction of attempted premeditated murder of 

Officer Meyer (count III). That is, a reasonable factfinder could infer from the facts 

defendant aided and abetted in the premeditated attempted murder of Officer Meyer.

Here, Officer Meyer testified he saw a gun come out of the right passenger side of the 
48.

truck and then he saw muzzle flashes and heard shots fired in his direction. As a result, 

he backed off momentarily. It is undisputed defendant was the front right passenger of 

the fleeing truck; thus, there was no question defendant was present at the scene when the 

shooting occurred. And there was evidence from which a reasonable factfinder could 

conclude defendant shared the shooter’s mens rea at the time of the offense. That is, 

defendant himself testified he was “trying to help” Arguello out during the police chase 

by directing Arguello while he was driving, evincing defendant’s motivation to evade law 

enforcement. Defendant was acquainted with Zapien and Ferrel, the backseat passengers, 

before the incident and knew them as fellow Norteño gang members. And defendant was 

necessarily aware of the shooter’s willingness to use lethal force based on the deadly 

shooting precipitating their flight; in fact, defendant had demonstrated his own 

willingness to use lethal force. When the truck stopped, instead of disassociating from

the shooter, defendant fled the scene with the other two passengers, including the person 

who shot at Meyer. (See People v. Nguyen, supra, 61 Cal.4th at p. 1054 [factfinder can 

consider presence at scene of crime, companionship, and conduct before and after the 

offense in considering whether actions amounted to aiding and abetting].) A jury could 

reasonably infer from such evidence defendant had a strong motive to promote, 

encourage, or instigate the attempt to kill the pursuing officer in furtherance of his 

attempt to evade police, and he did in fact aid and abet a premeditated attempt to kill 

Officer Meyer. (See People v. Smith, supra, 37 Cal.4th at p. 741 [“evidence of motive is 

often probative of intent to kill”].)

In reaching our conclusion, we find instructive People v. Nguyen, supra, 61 

Cal.4th 1015. In Nguyen, the front seat passenger of a car, in which the defendant was 

the back passenger, fired multiple shots into a car next to it at a traffic signal. (Id. at p. 

1027.) Specifically, the evidence introduced at trial reflected the car in which the 

defendant was a passenger passed the victim’s car—the occupants of which were rival 

gang members—the defendant stared back at the occupants of the victim’s car as the cars 
49.

passed each other; the car in which the defendant was an occupant idled in a parking lot 

until the victim’s car passed and then it followed the car several blocks until pulling up 

next to it at a stop light where the front passenger shot into the victim’s car. (Id. at p. 

1053.) The victim, the driver of the other car, was shot in the neck. (Ibid.) Several days 

after the shooting, the defendant visited a person who had been an occupant in the 

victim’s car and asked, “What’s up with the cops?” (Id. at p. 1054.) The Nguyen court 

held, considering this evidence in the context of the ongoing gang war between the 

defendant’s gang and the victim’s gang “as well as the Asian gang practices” described 

by the gang expert, the jury could have inferred the defendant knew of the shooter’s 

intent to kill, shared that intent, and aided him by spotting potential targets. (Id. at p. 

1055.) The court noted, “Although ‘gang evidence standing alone cannot prove a 

defendant is an aider and abettor to a crime,’” the gang expert’s testimony “strengthened 

inferences arising from other evidence specific to defendant’s role in the crime at issue.” 

(Ibid.)

As in Nguyen, the sufficiency of the evidence issue regarding Officer Meyer is 

close. (People v. Nguyen, supra, 61 Cal.4th at p. 1056.) However, “[a] reversal for 

insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever 

is there sufficient substantial evidence to support”’ the jury’s verdict.” (People v. 

Zamudio (2008) 43 Cal.4th 327, 357.) Viewing the record in the light most favorable to 

the judgment and considering the factors of presence, companionship, and conduct 

before, during, and after the commission of the attempted murder of Officer Meyer, we 

conclude the evidence permits a reasonable inference of guilt as an aider and abettor.

The evidence in support of defendant’s conviction for premeditated attempted 

murder of W.H. is stronger. Here, the evidence reflected defendant and Arguello had an 

initial interaction with the individuals at Maxine Drive before defendant called Zapien 

and Ferrel, fellow Norteño gang members. After picking up Zapien and Ferrel, the group 

returned to the scene because, by his own admission, defendant wanted to fight. Though 
50.

defendant denied knowledge Zapien or Ferrel had a gun, he admitted it was common for 

gang members to be armed. Defendant, Zapien and Ferrel were all armed with guns and 

there was evidence from which the jury could conclude they planned which individual 

would target each victim—Ochoa, Diaz, or W.H.—based upon the evidence they split up 

and each approached a target individual when they got out of the truck. There was also 

evidence from which the jury could conclude Zapien held a gun to W.H.’s face, but W.H.

managed to push him away and then one of the individuals fired at W.H. while W.H. ran 

away. A jury could reasonably infer from such evidence the shooter harbored an intent to 

kill and took a “direct but ineffectual act” to accomplish the killing. (See People v. Pettie

(2017) 16 Cal.App.5th 23, 53 [evidence shooter pointed gun at victim’s face and then 

fired multiple shots as victim fled supported inference of intent to kill]; accord, People v. 

Chinchilla (1997) 52 Cal.App.4th 683, 690 [“‘The act of firing toward a victim at a close, 

but not point blank, range ‘in a manner that could have inflicted a mortal wound had the 

bullet been on target is sufficient to support an inference of intent to kill’”].) From such 

evidence, the jury could also reasonably infer defendant knew of his coperpetrator’s 

intent to kill W.H.; he intended to encourage or facilitate the commission of the offense, 

and, in fact, aided, promoted, encouraged or instigated the commission of the crime. (See 

People v. Pettie, supra, at p. 53 [jury could reasonably infer assault was planned in 

advance and, by participating in assault on victim, defendant encouraged coperpetrator to 

fire gunshots with the intent to facilitate his commission of attempted murder].) Thus, 

substantial evidence supports defendant’s conviction in count V.

We also conclude the evidence was sufficient to establish both attempted murders 

were deliberate and premeditated. “To begin with, as a substantive matter section 664[, 

subdivision ](a) requires only that the murder attempted was willful, deliberate, and 

premeditated for an attempted murderer to be punished with life imprisonment.” (People 

v. Lee (2003) 31 Cal.4th 613, 621–622.) “Thus, section 664(a) states only that the murder 

attempted must have been willful, deliberate, and premeditated, not that the attempted 
51.

murderer personally must have acted willfully and with deliberation and premeditation. 

Put otherwise, section 664(a) states that if the murder attempted was willful, deliberate, 

and premeditated, any ‘person guilty of that attempt’—not confined to persons who acted 

willfully and with deliberation and premeditation—‘shall be punished by imprisonment 

... for life.’” (Id. at p. 622.) And, in assessing the evidence for premeditation and 

deliberation, “‘The true test is not the duration of time, but rather the extent of the 

reflection. A cold, calculated judgment and decision may be arrived at in a short period 

of time, but a mere unconsidered and rash impulse, even though it include[d] an intent to 

kill, is not such deliberation and premeditation ....’” (People v. Perez (1992) 2 Cal.4th

1117, 1124.) “In this context, ‘“premeditated” means “considered beforehand,” and 

“deliberate” means “formed or arrived at or determined upon as a result of careful 

thought and weighing of considerations for and against the proposed course of action.”’ 

[Citation.] We normally consider three kinds of evidence to determine whether a finding 

of premeditation and deliberation is adequately supported—preexisting motive, planning 

activity, and manner of killing—but ‘[t]hese factors need not be present in any particular 

combination to find substantial evidence of premeditation and deliberation.’” (People v. 

Jennings (2010) 50 Cal.4th 616, 645.)

Here, much of the evidence of premeditation and deliberation as to the attempted 

murders of W.H. and Officer Meyer is the same as that showing an intent to kill. First, 

with regard to W.H., there was evidence defendant had an initial altercation with Diaz 

and Ochoa during which W.H. was present. Defendant threatened to return. He went 

with Arguello to pick up Ferrel and Zapien—fellow gang members who were armed—

and then returned to the scene. From such evidence, a rational trier of fact could 

conclude the initial confrontation provided a motive for defendant and his fellow gang 

members to return and kill the group after he was disrespected. (See People v. Lunafelix

(1985) 168 Cal.App.3d 97, 102 [“the law does not require that a first degree murderer 

have a ‘rational’ motive for killing. Anger at the way the victim talked to him [citation] 
52.

or any motive, ‘shallow and distorted but, to the perpetrator genuine’ may be sufficient”]; 

People v. Anderson (1968) 70 Cal.2d 15, 27 [facts about defendant’s prior conduct or 

relationship with victim from which jury could reasonably infer “motive” to kill victim 

support finding of premeditation and deliberation].) And his return to the scene with 

armed confederates also evinces planning activity. (See generally People v. Potts (2019) 

6 Cal.5th 1012, 1027 [evidence defendant arrived at victims’ home carrying a weapon 

suggests murders were planned].) There was also evidence that when they arrived at 

Diaz’s residence, defendant went toward Ochoa; Zapien held W.H. at gunpoint; and 

Ferrel was looking for Diaz before the shooting began; and W.H. testified both Ferrel and 

Zapien wore masks, further evincing planning activity. A reasonable factfinder could 

construe all of this conduct leading up to the shooting as planning activity. Viewing such 

evidence in the light most favorable to the verdict coupled with the evidence of motive, 

we conclude sufficient evidence supports the jury’s conclusion the attempted murder of 

W.H. was deliberate and premeditated. Indeed, there was evidence defendant himself 

had an opportunity to reflect on and consider the group’s collective actions and he shared 

the intent to kill.

We also conclude sufficient evidence supports the jury’s conclusion the attempted 

murder of Officer Meyer was deliberate and premeditated. After Officer Meyer began 

pursuing the red truck and before the shots were fired in his direction, plenty of time 

elapsed to permit the shooter to consider his actions. In addition, the evidence supported 

a jury finding the shooter had to position himself so he could shoot backwards out of the 

window, and he fired multiple shots in Officer Meyer’s direction. In turn, this supported

a conclusion the attempted murder was not done rashly but rather was deliberate and 

premeditated. (See People v. Poindexter (2006) 144 Cal.App.4th 572, 588 [manner of 

killing, three quick shots from a relatively close range, supported finding of 

premeditation and deliberation].) And the evidence established every defendant had a 

motive to kill Officer Meyer: to facilitate their escape. Viewing such evidence in the 
53.

light most favorable to the judgment, a rational trier of fact could conclude the attempted 

murder of Officer Meyer was deliberate and premeditated. (See People v. Nguyen, supra, 

61 Cal.4th at pp. 1055–1056.)

We reject defendant’s second contention.

III. CALCRIM No. 3472 

Defendant next challenges the inclusion of CALCRIM No. 3472 in the jury 

instructions. We reject defendant’s contention.

A. Relevant Factual Background

Without referencing any specific instruction, the prosecutor argued in closing that 

self-defense is a perfect defense, but: 

“[i]t’s not available to those who seek to quarrel with the intent to create or 

excuse to use force [sic]. It’s not available to those who seek to quarrel. 

It’s not available to those who intend to create an excuse to use force. They 

were seeking a quorum [sic]. There was no other reason to go to [Diaz]’s 

house. They were going to a party, remember? It was ... Ferrel’s birthday.

The only, only reason to go to [Diaz]’s house was to take care of business, 

was to kill [Diaz] and [Ochoa] for disrespecting [defendant] because they 

were not going to put up with that.

“They can stand up here and tell you how drunk they were but, boy, 

they have no problem telling you how they got there, who picked them up, 

where they were seated in the truck, how they carried their guns, who had 

what gun, who was there. Does that sound like people who are drunk to 

you? So drunk that they can’t form the intent to kill. Does that sound like 

people who are just there to, as [defendant] says, smooth things over? No. 

You don’t carry a .40-caliber semiautomatic with an extended clip with 

multiple rounds in it. They’re seeking a quarrel. They went there looking 

for a fight armed with loaded firearms. Not available to them.”

Here, the jury was instructed on perfect and imperfect self-defense and defense of 

another regarding the murder and attempted murder charges and their lesser included 

offenses.

The trial court also instructed the jury pursuant to CALCRIM No. 3472 (Right to 

Self-Defense: May Not Be Contrived): “A person does not have the right to self-defense 
54.

if he or she provokes a fight or quarrel with the intent to create an excuse to use force.” 

Defense counsel did not object to the inclusion of this instruction.

B. Standard of Review

Claims of instructional error are reviewed de novo. (People v. Rivera (2019) 7 

Cal.5th 306, 326.) “An appellate court reviews the wording of a jury instruction de novo 

and assesses whether the instruction accurately states the law.” (People v. Mitchell

(2019) 7 Cal.5th 561, 579.) “In reviewing a claim of instructional error, the court must 

consider whether there is a reasonable likelihood that the trial court’s instructions caused

the jury to misapply the law in violation of the Constitution. [Citations.] The challenged 

instruction is viewed ‘in the context of the instructions as a whole and the trial record to 

determine whether there is a reasonable likelihood the jury applied the instruction in an 

impermissible manner.’” (Ibid.)

Heightened scrutiny is applied when evaluating errors that infringe upon a party’s 

due process rights, e.g., the use of jury instructions that relieve the prosecution of its 

burden to prove each element of the charged offense beyond a reasonable doubt. (See 

People Schuller (2023) 15 Cal.5th 237, 243, 251.) Such errors are considered prejudicial 

unless the reviewing court determines “beyond a reasonable doubt that the error 

complained of did not contribute to the verdict obtained.” (Chapman v. California

(1967) 386 U.S. 18, 24.)

C. Analysis

Defendant contends the inclusion of CALCRIM No. 3472 diminished his plea of 

self-defense and relieved the prosecution of its burden to affirmatively disprove selfdefense beyond a reasonable doubt in order to prove the malice element of murder. 

Initially, he asserts the evidence did not establish he provoked a fight with the intent to 

create an excuse to use deadly force; rather, he contends, W.H.’s testimony established 

Diaz and Ochoa started the argument and defendant “merely responded to the quarrel 
55.

Diaz and Ochoa started.” He further argues, even though he returned for a fistfight, he 

was not stripped of his right to self-defense if he reasonably or unreasonably believed in 

the need to defend himself from an imminent threat of sustaining great bodily injury or 

death. He contends, however, that CALCRIM No. 3472 erroneously led jurors to believe 

that because defendant was involved in a prior argument, he forfeited his right to selfdefense when he returned. He argues the prosecutor’s argument “‘compounded the 

error’” by telling the jury self-defense “‘would not work’” because “‘[i]t’s not available 

to those who seek to quarrel with the intent to create [an] excuse to use force.’” He 

argues the instruction deprived him of his rights to due process, a fair trial, and reliable 

jury verdicts and should be assessed for prejudice as constitutional error under the 

Chapman standard. He argues his convictions on counts 1 and 2 should be reversed on 

this basis. The People respond defendant forfeited his claim by failing to object below. 

Irrespective, the evidence justified the instruction and, even if it was given in error, a 

result more favorable to defendant was not reasonably probable.

While state law claims asserting error in jury instructions may be forfeited, 

“failure to object to instructional error will not result in forfeiture if the substantial rights 

of the defendant are affected.” (People v. Mitchell, supra, 7 Cal.5th at p. 579.) Here, 

defendant claims the allegedly flawed instruction deprived him of due process, which 

would affect his substantial rights if true, so his claim is not forfeited. (See ibid.) 

However, we reject defendant’s claim on its merits.

Initially, we note CALCRIM No. 3472 is generally a correct statement of law.

(People v. Eulian (2016) 247 Cal.App.4th 1324, 1334; accord, People v. Enraca (2012) 

53 Cal.4th 735, 761–762 [holding self-defense and imperfect self-defense “‘may not be 

invoked by a defendant who, through his own wrongful conduct (e.g., the initiation of a 

physical attack or the commission of a felony), has created circumstances under which 

his adversary’s attack or pursuit is legally justified’”].) And we disagree with 
56.

defendant’s claim the challenged instruction, in context, was erroneous and misled the 

jury.

Defendant relies upon an opinion of a divided panel of Division Three of the 

Fourth District Court of Appeal, People v. Ramirez (2015) 233 Cal.App.4th 940

(Ramirez) and People v. Conkling (1896) 111 Cal. 626 (Conkling) in support of his 

argument. In Ramirez, the defendant argued CALCRIM No. 3472 erroneously “made no 

allowance for an intent to use only nondeadly force and an adversary’s sudden escalation 

to deadly violence.” (Ramirez. supra, at p. 945.) And the prosecutor exacerbated the 

error by arguing “repeatedly based on the plain terms of this instruction that even if the 

jury believed defendants sought to provoke only a fistfight, their bare intent ‘to use force’

as stated in the instruction—even nondeadly fisticuffs—meant they forfeited a claim of 

imperfect self-defense.” (Id. at p. 943.) The prosecutor also forcefully argued “it [did 

not] matter” whether the decedent was actually armed or defendant believed he or his 

companions were about to be shot, thereby misleading the jury on the law of self-defense.

(Id. at p. 952.) The Ramirez majority held “CALCRIM No. 3472 states a correct rule of 

law in appropriate circumstances,” but, in the circumstances of that case, it “did not 

accurately state governing law.” (Ramirez, at p. 947.) Specifically, the “blanket rule”

provided in the instruction and reiterated by the prosecutor effectively told the jury “that 

one who provokes a fistfight forfeits the right of self-defense if the adversary resorts to 

deadly force.” (Ibid.) Additionally, the Ramirez court also instructed the jury with a 

modified version of the standard imperfect self-defense instruction (CALCRIM No. 571)

that told the jury: “‘The principle of imperfect self-defense may not be invoked by a 

defendant who, through his own wrongful conduct (e.g., the invitation of a physical 

assault or the commission of a felony) has created circumstances under which his 

adversary’s attack or pursuit is legally justified,’” which did nothing to counteract 

CALCRIM No. 3472’s categorical terms or the prosecutor’s argument. (Ramirez, at p. 

952.) The Ramirez court concluded the defendant was prejudiced because the court 
57.

effectively endorsed the prosecutor’s misstatement of law by failing to modify the 

language of CALCRIM No. 3472 and erroneously foreclosed the defendants’ imperfect 

self-defense claim. (Ramirez, at pp. 952–953.)

Unlike the prosecutor in Ramirez who repeatedly insisted it did not matter if the 

original victim escalated a nondeadly conflict to a deadly one, here, the prosecutor 

referred to the general principle stated in CALCRIM No. 3472 in passing as part of her 

argument the defendants went to Diaz’s house with firearms with the intent to kill. Thus, 

her reference to the instruction in context was not a misstatement of the law. And, unlike 

in Ramirez, she never suggested the language of the instruction meant the defendants did 

not have the right to respond to a deadly attack, and neither side encouraged the jury to 

misapply the instruction. Rather, the prosecutor told the jury if it believed the defendants 

acted in self-defense, it should acquit them. She argued, however, the evidence did not 

support a claim of self-defense, asserting defendant’s and Ferrel’s versions of events 

were false. She highlighted, in part, evidence Diaz had gunshot entrance wounds on his 

back, the downward trajectory of the bullet in Ochoa’s body suggested the shooter was 

standing above him, and the defendants fled the scene and never mentioned in their jail 

calls after the incident that they acted in self-defense. Notably, the jury here was also not 

instructed with a modified version of CALCRIM No. 571 as in Ramirez.

Conkling, supra, 111 Cal. 616, which defendant also cites in support of his 

argument, also does not persuade us otherwise. In Conkling, the defendant was charged 

with the murder of a neighbor with whom he had an ongoing dispute regarding access to 

a road. (Id. at p. 620.) At trial, the defendant argued self-defense. (Id. at p. 621.) The 

jury was instructed that killing someone for obstructing a road is not justified, and if it

believed the defendant killed the victim, “then, to render such killing justifiable, it must 

appear that the defendant was wholly without any fault imputable to him by law in 

bringing about the commencement of the difficulty in which the mortal wound was 

given.” (Id. at p. 624.) The jury was further instructed “‘an honest apprehension of 
58.

danger to life or limb’” justifies taking a life only if the “‘apprehension [arose] out of a 

reasonable cause, but a cause originating in the fault of the person himself, in a quarrel he 

provoked, or in a danger he voluntarily brought upon himself by his own misconduct, 

could not be considered “reasonable or sufficient in law to support a well-grounded 

apprehension of imminent danger to his person.” (Id. at pp. 624–625.) The jury was also 

instructed “a real or apparent necessity, brought about by the design, contrivance, or fault 

of the defendant, cannot be availed of as a defense for the commission of a crime or a 

homicide.” (Id. at p. 625.) In concluding these instructions violated the defendant’s 

rights, the California Supreme Court found there was no evidence the defendant was the 

“first assailant, and then withdrew, or attempted in good faith to withdraw from the affray 

before he fired the fatal shot.” (Ibid.) Thus, the evidence did not warrant the instructions 

“regardless of the soundness of the law covered by it.” (Ibid.) The Conkling court 

concluded it could not “say that no injury resulted” because the jury could have 

interpreted the instructions to mean that if the defendant’s attempt to travel the road was 

wrongful then he could not claim self-defense, which was not the law. (Ibid.)

First, the language of the instructions in Conkling was different from the standard 

language of CALCRIM No. 3472 given here. And, here, unlike in Conkling, there was 

evidence from which the jury could conclude defendant provoked a fight with Diaz and 

Ochoa during the initial confrontation and Ochoa and Diaz were ready to have a fistfight 

as a result. Then, defendant, armed with additional armed confederates, confronted Diaz 

and Ochoa with deadly force, and Ochoa pulled a gun out in response. Because the 

instruction here was supported by the evidence, Conkling is inapposite.

For the same reason, we further reject defendant’s claim there was not substantial 

evidence to support the inclusion of CALCRIM No. 3472. Here, W.H. testified 

defendant was “acting hard” in the initial interaction with Diaz and Ochoa and he was 

asking Ochoa where he was from, if he banged, and questioned whether Ochoa was 
59.

“active.”

3

 There was also evidence defendant referred to Diaz’s mother by the term 

“bitch,” called Ochoa and Diaz “leyvas,” and stated he and Arguello would return “pinta”

style. W.H. testified defendant’s behavior angered Diaz and Ochoa to the point they 

were poised for a fistfight during the initial interaction. And then defendant returned 

armed with two more gang members and the resulting shooting occurred. The jury could 

reasonably conclude from the evidence defendant provoked the fight, and CALCRIM 

No. 3472 informed the jury the victims could respond to the attackers’ deadly assault 

with a counterassault, and the attackers who provoked the fight could not assert selfdefense against the victims’ lawful resistance. (See Ramirez, supra, 233 Cal.App.4th at 

p. 947; accord, People v. Enraca, supra, 53 Cal.4th at pp. 760–762.)

Irrespective, even assuming it was error to include the instruction because it was 

unsupported by the evidence, it was “‘“only a technical error which does not constitute 

ground for reversal.”’” (People v. Cross (2008) 45 Cal.4th 58, 67.) And, to the extent 

such an instruction was not applicable to the facts of the case, we presume the jury 

followed the instruction to disregard it. Thus, we cannot conclude the inclusion of 

CALCRIM No. 3472 constituted reversible error. (See People v. Eulian, supra, 247 

Cal.App.4th at p. 1335 [if CALCRIM No. 3472 was erroneously given because it was 

irrelevant under the facts, error was merely technical and not grounds for reversal]; 

People v. Frandsen (2011) 196 Cal.App.4th 266, 278 [jury was presumed to disregard 

CALCRIM No. 3472 if the jury found evidence did not support its application so its 

3

In his reply brief, defendant contends the cited behavior was insufficient to amount to 

provocation, citing People v. Najera (2006) 138 Cal.App.4th 212, 225. However, Najera

discussed provocation in the context of what amounts to sufficient provocation to meet the 

objective standard for voluntary manslaughter. In that context, the Najera court held “‘“[a] 

provocation of slight and trifling character, such as words of reproach, however grievous they 

may be, ... is not recognized as sufficient to arouse, in a reasonable man, such passion as reduces 

an unlawful killing with a deadly weapon to manslaughter.”’” (Najera, at p. 226.) Here, we are 

discussing provocation in the context of starting a fight or quarrel as opposed to considering 

whether the provocation was sufficient to establish a killing was done in the heat of passion; 

thus, Najera is inapposite.
60.

erroneous inclusion did not result in reversible error]; People v. Olguin (1994) 31 

Cal.App.4th 1355, 1381 [rejecting argument erroneous instruction on contrived selfdefense kept jury from evaluating defendant’s self-defense claim, concluding any error 

was harmless where jury was instructed to disregard inapplicable instructions].)

Furthermore, the prosecutor did not rely on CALCRIM No. 3472 to urge the jury 

to reject defendant’s self-defense theory on an improper basis. And the California 

Supreme Court has held a jury’s finding of premeditation and deliberation indicates “a 

complete rejection of the evidence on which defendant relied to establish self-defense.”

(People v. Crandell (1988) 46 Cal.3d 833, 874; see id. at p. 872 [finding no prejudice in 

the use of allegedly erroneous self-defense instructions, including an instruction on 

contrived self-defense], abrogated on other grounds by People v. Crayton (2002) 28 

Cal.4th 346, 364–365.) From this record, we conclude, beyond a reasonable doubt, the 

alleged instructional error did not contribute to the jury’s verdicts.

We reject defendant’s third contention.

IV. Assembly Bill 333 Requires Reversal of Gang-related Firearm Enhancements 

and Count IX

Defendant next asserts his conviction for active participation in a criminal street 

gang in violation of section 186.22, subdivision (a)—count IX—and the gang-related 

firearm enhancements attached to counts I and II (§ 12022.53, subds. (d), (e)) and III and 

V (§ 12022.53, subds. (c), (e)) must be reversed based on changes made to section 186.22 

by the enactment of Assembly Bill 333. We agree with defendant and conclude he is 

entitled to reversal of his conviction on count IX and the gang-related firearm 

enhancements.

A. Statutory Changes to Section 186.22 and Enactment of Section 1109

While defendant’s appeal was pending, the Legislature enacted Assembly Bill 

333, the STEP Forward Act of 2021, which, in part, amends section 186.22 to impose 
61.

new substantive and procedural requirements for gang allegations. The legislation went 

into effect on January 1, 2022.

First, Assembly Bill 333 amended the definition of a “‘criminal street gang,’”

requiring proof the gang is an ongoing, organized association or group of three or more 

persons, whose members collectively engage in, or have engaged in, a pattern of criminal 

activity (§ 186.22, subd. (f), italics added). Next, the law created a stricter requirement 

for proof of “‘a pattern of criminal gang activity,’” which is necessary to prove the group 

with which the defendant is associated is indeed a criminal street gang. (See § 186.22,

subds. (e)–(f).) Previously, the prosecution needed to prove only that those associated 

with the gang had committed at least two offenses from a list of predicate crimes on 

separate occasions within three years of one another. (See former § 186.22, subd. (e).) 

Under the newly amended law, the offense with which defendant is currently charged 

cannot be used as one of the two predicate offenses. (§ 186.22, subd. (e)(2).) In addition, 

the last of the predicate offenses must have “occurred within three years of the prior 

offense and within three years of the date the current offense is alleged to have been 

committed.” (§ 186.22, subd. (e)(1).) The predicate offenses must have been committed 

“on separate occasions or by two or more members,” and must have been for the 

“common[] benefit[] [of] a criminal street gang,” and “the common benefit from the 

offenses is more than reputational.” (Ibid.) Assembly Bill 333 also narrowed the list of 

offenses that may be used to establish a pattern of criminal gang activity. (Compare 

former § 186.22, subd. (e)(1)–(33) with current § 186.22, subd. (e)(1)(A)–(Z)). 

Additionally, it defines “to benefit, promote, further, or assist” throughout section 186.22

to mean “to provide a common benefit to members of a gang where the common benefit 

is more than reputational.” (Id., subd. (g).) The legislation notes examples of 

nonreputational common benefits “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.” (Ibid.)
62.

Finally, Assembly Bill 333 adds section 1109, which requires bifurcation of gang 

enhancements charged under section 186.22, subdivision (b) or (d) to be tried separately 

from the underlying charges upon request from the defense. (Stats. 2021, ch. 699, § 5.) 

Section 1109 also requires the substantive offense of active participation in a criminal 

street gang (§ 186.22, subd. (a)) be tried separately from all other counts that do not 

require gang evidence as an element of the crime (§ 1109, subd. (b)).

B. Defendant Is Entitled to Reversal of His Gang-related Firearm

Enhancements and Count IX

In People v. Tran (2022) 13 Cal.5th 1169, the California Supreme Court held 

Assembly Bill 333’s amendments to section 186.22 altering the substantive requirements 

necessary to prove the substantive gang offense and gang enhancements operate 

retroactively under the rule of In re Estrada (1965) 63 Cal.2d 740. (Tran, at p. 1207.) 

The Tran court explained,

“Estrada ‘stand[s] for the proposition that (i) in the absence of a contrary 

indication of legislative intent, (ii) legislation that ameliorates punishment

(iii) applies to all cases that are not yet final as of the legislation’s effective 

date.’ [Citation.] Estrada applies to statutory amendments ‘which 

redefine, to the benefit of defendants, conduct subject to criminal 

sanctions.’ [Citation.] Here, ‘Assembly Bill 333 essentially adds new 

elements to the substantive offense and enhancements in section 186.22—

for example, by requiring proof that gang members ‘collectively engage’ in 

a pattern of criminal gang activity, that the predicate offenses were 

committed by gang members, that the predicate offenses benefitted the 

gang, and that the predicate and underlying offenses provided more than a 

reputational benefit to the gang....’ [Citations.] These changes have the 

effect of ‘increas[ing] the threshold for conviction of the section 186.22 

offense and the imposition of the enhancement,’ with obvious benefit to 

defendants like Tran. [Citation.]’” (People v. Tran, supra, at pp. 1206–

1207.)

Accordingly, it is undisputed defendant may seek the benefit of Assembly Bill 333’s 

amendments to section 186.22.
63.

Defendant argues the predicate offense involving Christopher Colon “appears to 

have been committed by him alone,” so it can no longer be a predicate offense because it 

was not committed by two or more “members” of the gang (as opposed to any persons) or 

serve as evidence of a pattern of criminal gang activity. He also argues there was no 

evidence the predicate offenses “commonly benefited a criminal street gang” and “the 

common benefit of the offense [must be] more than reputational.” He further contends 

the People’s gang expert used the current offense as well as evidence of two predicate 

offenses involving Colon and Esteban Zapien to establish the pattern of gang activity, but 

the current offense can no longer be used to establish a pattern of gang activity. The 

People agree the gang allegations need to be reversed because the jury’s findings “do not 

comply with the new statutory terms.”

Initially, we agree defendant is entitled to reversal of his conviction for active 

participation in a criminal street gang (count IX). “The essential elements for a 

conviction under section 186.22[, subdivision] (a) are: ‘(1) active participation in a 

criminal street gang, in the sense of participation that is more than nominal or passive; (2) 

knowledge that the gang’s members engage in or have engaged in a pattern of criminal 

gang activity; and (3) the willful promotion, furtherance, or assistance in any felonious 

criminal conduct by members of that gang.’ [Citation.]” (People v. Valenzuela (2019) 7 

Cal.5th 415, 422.) And, as the parties do not dispute, the evidence presented at trial is 

now insufficient to establish “‘a pattern of criminal gang activity’” and, thus, a “‘criminal 

street gang’” as necessary to sustain defendant’s substantive gang conviction and 

enhancements pursuant to amended section 186.22. (§ 186.22, subds. (e), (f).) The 

predicate offense evidence was insufficient to comply with the amended law. There was 

no evidence either predicate offense commonly benefitted a criminal street gang, and the 

common benefit was more than reputational as necessary to establish a “‘pattern of 

criminal gang activity’” under the amended law. (§ 186.22, subd. (e)(1); see People v. 

Lopez (2021) 73 Cal.App.5th 327, 346 [“Although the People did submit evidence of two 
64.

predicate offenses that were committed in the new time frame, the People did not prove 

that the predicate offenses commonly benefitted a criminal street gang and that the 

benefit was more than reputational”].)

Additionally, we also agree the gang-related firearm enhancements (§ 12022.53, 

subds. (c), (e)/(d), (e)) must be reversed. These enhancements require a finding “the 

person violated subdivision (b) of section 186.22.” (§ 12022.53, subd. (e)(1)(A).) As we 

have already concluded, the evidence presented at trial was insufficient to meet the 

current requirements. Thus, we also reverse defendant’s gang-related firearm 

enhancements to counts I, II, III, and V. (See People v. Lopez, supra, 73 Cal.App.5th at 

p. 346 [“Assembly Bill 333’s changes to section 186.22 affect not only the gang 

enhancement allegations under that statute but other statutes that expressly incorporate 

provisions of section 186.22”]; accord, People v. Lopez (2022) 82 Cal.App.5th 1, 7, 25 

[holding Assem. Bill 333’s amendments to § 186.22, subds. (e) & (f) lawfully apply to 

§ 182.5, which incorporates those sections]; People v. Lee (2022) 81 Cal.App.5th 232, 

240 [“The express reliance by ... the firearm enhancement statutes ... on the definition of 

a criminal street gang in section 186.22 means that appellants are entitled to the benefit of 

this change in the law as to” those enhancements and special circumstance allegations], 

review granted Oct. 19, 2022, S275449.)

C. Prosecution May Retry Count IX and the Gang-related Firearm 

Enhancements

The parties agree, as do we, the People may retry defendant on the substantive 

gang offense (§ 186.22, subd. (a), count IX). “‘Because we do not reverse based on the 

insufficiency of the evidence required to prove a violation of the statute as it read at the 

time of trial, the double jeopardy clause of the Constitution will not bar a retrial.’”

(People v. Sek (2022) 74 Cal.App.5th 657, 669; accord, People v. Figueroa (1993) 20

Cal.App.4th 65, 72 [“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 
65.

and the reviewing court does not treat the issue as one of sufficiency of the evidence”]; 

see People v. Eagle (2016) 246 Cal.App.4th 275, 280 [“When a statutory amendment 

adds an additional element to an offense, the prosecution must be afforded the 

opportunity to establish the additional element upon remand”].)

Defendant, however, contends the People should be prohibited from retrying the 

section 12022.53, subdivisions (d), (e)(1) enhancements to counts I and II and the section 

12022.53, subdivisions (c), (e)(1) enhancements to counts III and V because the jury 

found the gang enhancements (§ 186.22, subd. (b)) on each of these counts not true. He 

acknowledges that inconsistent verdicts or findings are allowed to stand but asserts,

“[A]llowing the People to retry the gang enhancement[s], giv[es] the People a second bite 

at the apple after they did not prove the gang allegations beyond a reasonable doubt under 

the old, less restrictive elements, would violate the double jeopardy clauses of the state 

and federal constitution[s].” He asserts, in People v. Santamaria (1994) 8 Cal.4th 903, 

910 the California Supreme Court held a “not true” finding on an enhancement allegation 

precludes retrial of that allegation. Accordingly, he argues, because he cannot be retried 

on the section 186.22, subdivision (b) enhancements that the jury found “not true,” he 

cannot be retried on the gang-related firearm enhancements that require retrying of the 

gang enhancements. Thus, he asserts, the gang-related firearm enhancements must be 

reversed and dismissed. He further contends retrial is also prohibited by the rule 

articulated in People v. Henderson (1963) 60 Cal.2d 482 that the double jeopardy clause 

of the United States Constitution precludes imposition of a more severe punishment on 

resentencing when a defendant successfully appeals a criminal conviction.

As both parties agree, the jury’s “not true” findings as to the section 186.22, 

subdivision (b) enhancements and the jury’s true findings as to the gang-related firearm 

enhancements were necessarily inconsistent. And it is settled “an inherently inconsistent 

verdict is allowed to stand; if an acquittal of one count is factually irreconcilable with a 

conviction on another, or if a not true finding of an enhancement allegation is 
66.

inconsistent with a conviction of the substantive offense, effect is given to both.” (People 

v. Santamaria, supra, 8 Cal.4th at p. 911; accord, People v. Avila (2006) 38 Cal.4th 491, 

600; People v. Palmer (2001) 24 Cal.4th 856, 860.) “‘[A]n inconsistency may show no 

more than jury lenity, compromise, or mistake, none of which undermines the validity of 

a verdict.’” (People v. Abilez (2007) 41 Cal.4th 472, 513; see People v. Lewis (2001) 25 

Cal.4th 610, 656.)

Considering these established principles, defendant’s proposed remedy cannot 

stand. To hold the People are not allowed to retry the gang-related firearm enhancements 

because of the “not true” finding as to the section 186.22, subdivision (b) enhancement 

allegations would not “give effect” to the jury’s “true” finding as to the section 12022.53, 

subdivisions (d), (e) and (c), (e) enhancements, but rather only give effect to the jury’s 

findings as to the section 186.22, subdivision (b) findings.

Indeed, our highest court affirmed this conclusion in Bravo-Fernandez v. United 

States (2016) 580 U.S. 5 in which it held the double jeopardy clause does not bar retrial 

based on issue preclusion when a jury returns irreconcilably inconsistent verdicts of 

conviction and acquittal, and the convictions are later vacated for legal error unrelated to 

the inconsistency. (Id. at pp. 17–18.) The Bravo-Fernandez court explained, the 

defendant bears the burden of demonstrating the jury necessarily resolved the issue 

seeking to be precluded in his favor; but he “cannot meet that burden where the trial 

yielded incompatible jury verdicts on the issue the defendant seeks to insulate from 

relitigation.” (Id. at p. 19.) This is because “[i]t is unknowable ‘which of the inconsistent 

verdicts—the acquittal[s] or the conviction[s]— “the jury really meant.”’ [Citations.]”

(Ibid.) Said differently, “[t]he convictions’ later invalidation on an unrelated ground does 

not erase or reconcile that inconsistency: It does not bear on ‘the factual determinations 

actually and necessarily made by the jury,’ nor does it ‘serv[e] to turn the jury’s 

otherwise inconsistent and irrational verdict into a consistent and rational verdict.’” (Id.

at p. 21; see United States v. Powell (1984) 469 U.S. 57, 69 [“Respondent is given the 
67.

benefit of her acquittal on the counts on which she was acquitted, and it is neither 

irrational nor illogical to require her to accept the burden of conviction on the counts on 

which the jury convicted”].)

Accordingly, we conclude retrial of the gang-related firearm enhancements is not 

prohibited by the jury’s “not true” findings as to the section 186.22, subdivision (b) 

enhancement allegations. Rather, because we do not reverse the section 12022.53 

subdivisions (d), (e) and (c), (e) enhancements for insufficient evidence, the People may

retry them on remand.

People v. Henderson, supra, 60 Cal.2d 482 does not persuade us otherwise. The 

Henderson court held the prohibition against double jeopardy precludes imposition of the 

death sentence after reversal of a judgment sentencing the defendant to life 

imprisonment. (Id. at pp. 495–497.) Our conclusion does not permit the People to seek a 

greater punishment on remand. Rather, they may only retry the section 12022.53 

allegations and the section 186.22, subdivision (a) count, of which defendant was already 

convicted, and only an equal or lesser sentence may result.

V. Prosecutor Did Not Engage in Prejudicial Misconduct

Defendant next argues the prosecutor’s misconduct rendered his trial 

fundamentally unfair, denying him due process mandating reversal of his convictions. 

He asserts the prosecutor intentionally elicited prejudicial evidence, which disparaged the 

defense and suggested the prosecution had evidence outside the record.

A. Relevant Background

Throughout the trial, there was a significant amount of argument regarding 

whether the prosecutor’s office should be required to disclose W.H.’s address to the 

defense attorneys since W.H. was in the state witness protection program. Initially, the 

court ordered the prosecution to disclose W.H.’s address and then excluded W.H.’s 

testimony as a sanction for the prosecution’s failure to provide the defense with the 
68.

address. However, after the People filed a writ of mandamus and petition for review 

related to the order, the court reconsidered its order and permitted W.H. to testify without 

requiring the prosecution to disclose his address.

There was also extensive testimony at trial regarding money paid to W.H. by the 

California Witness Relocation Assistance Program. Initially, W.H. received $3,800, but 

during trial he was given additional money to relocate again. During cross-examination 

the following exchange took place between defendant’s counsel and Detective Hicks 

about additional payments to W.H.:

“Q. Well—well, how is it conveyed about how much money is 

supposed to be paid to the Government witness?

“A. Those determinations were made months ago. He hasn’t 

received any of the money.

“Q. Well, wait a minute. He’s received more than $3,800?

“A. Correct.

“Q. All right. So all that money, now—I mean, you’re saying that 

whenever there is—this jury was being told that the totality of what he was 

supposed to be paid was $3,800; you acknowledge today that that was 

never the case, don’t you?

“A. That’s not correct.”

On continued cross-examination, Zapien’s counsel also questioned Hicks about 

payments to W.H.:

“Q. Detective Hicks, regarding this money issue that [defendant’s 

counsel] raised giving [W.H.] money, you said he’s been given money a 

couple of times? Do I remember that correctly?

“A. Yeah. Yes, sir.

“Q. And how many times have you facilitated providing money to 

[W.H.]?

“A. Twice.
69.

“Q. So [W.H.] has—the first time had been given a check for 

$3800; correct?

“A. Yes.

“Q. All right. And then there was a need to give [W.H.] additional 

money; is that correct?

“A. Yes.

“Q. The second time? 

“A. Yes, sir.”

Hicks confirmed funds had been expended three times for W.H.’s benefit. 

Zapien’s counsel then questioned Hicks about the amount of the additional payments and 

Hicks responded he did not know the exact amount but provided estimates. Then, 

Arguello’s counsel questioned the reason for the additional funds:

“Q. The reason he wanted the money was to move someplace where 

nobody would be able to find him?

“A. No.

“Q. Was the reason he wanted the money was to help with moving 

expenses he’d incur ordinarily?

“A. He wanted the monies to move so he could be safe.”

During redirect examination, the prosecutor asked Detective Hicks why he 

requested to move W.H. after W.H. testified, and Detective Hicks explained W.H.’s 

address had been compromised. The prosecutor asked, “By whom?” and Detective Hicks 

responded, “Defense attorneys.” No objections were lodged to the prosecutor’s question 

or to Hicks’s response by any of the defense attorneys.

On recross-examination, the following exchange then took place between 

defendant’s counsel and Hicks:

“Q. Well, whenever—in terms of [W.H.]’s address being 

compromised, you were aware that the—some members of the defense was 

[sic] trying to serve his girlfriend; right?
70.

“A. Yes.

“Q. All right. And so—and then—and you’re aware as well that the 

defense was authorized by the Court to do that; isn’t that true?

“A. I don’t think that’s true.”

Hicks later confirmed he was not aware of a court order prohibiting defense 

counsel from trying to serve W.H.’s girlfriend. In response to questioning by Arguello’s 

counsel on additional recross-examination, Hicks testified an agent of the defense team, 

an investigator, learned of W.H.’s address and there was an individual searching the area. 

He also affirmed the defense investigator was under court order not to disclose the 

address to anybody outside of the defense investigative team. The prosecutor objected 

and the court sustained objections to Arguello’s counsel’s questions to Hicks regarding 

whether counsel would lose his bar card if he disclosed W.H.’s address. At one point 

Arguello’s counsel asked Hicks: “And as a result of [W.H.] being moved, the defense 

was no longer able to surveil this person; am I right? Because you whisked him out of 

there before the defense had any chance to pursue a defense investigation, such as 

following [W.H.] around to see if he hangs around with gangster homies?” At that point, 

the prosecutor asked for a sidebar, and the court agreed the question was “inappropriate.”

As counsel started having a back and forth, the court ordered a recess. Then, the 

following exchange occurred outside the presence of the jury:

“THE COURT: I don’t mind you asking questions to—obviously, if 

there’s been an insinuation that the defense had either done something 

wrong, I don’t mind you following up with that. But clearly a lot of that is 

not—it’s outside the scope for the trial.

“[ARGUELLO’S COUNSEL]: The problem I had, Your Honor, was 

that the witness had said on the one hand that the reason to spend all these 

tax dollars was that [W.H.] was in fear of his safety and that he was being 

moved to protect him from physical harm, which is quite reasonable, but 

then we’re also told that he was moved simply because the defense team 

learned of his whereabouts. There’s strong implication that he was 

somehow in fear of his safety because of something that might result from 

that.
71.

“THE COURT: Right. I understand—

“[ARGUELLO’S COUNSEL]: The jury may not be aware there’s 

absolutely zero threat no matter—I didn’t know who it was. I didn’t know 

what city the guy was in.

“THE COURT: I have no problem with your follow-up questions on 

that, but a lot of your questions were just not really for the jury to consider, 

such as what would happen if—for a violation of any kind of court order. I 

think that was clearly outside.

“[ARGUELLO’S COUNSEL]: Well, I think—

“[PROSECUTOR]: It’s beyond that though Judge. I’ll let you finish, 

but I want to make a record.

“[ARGUELLO’S COUNSEL]: —there was, in fact, zero threat of harm. 

The defense attorneys and their agents are permitted by law from disclosing 

the address; if they don’t know that, they may well believe that the 

investigator’s free to go tell ... anyone else what the address is.”

Defendant’s counsel then argued the prosecutor opened the door to questioning 

about the defense investigator through a “rehearsed exchange” regarding W.H.’s address 

being compromised. Defendant’s counsel argued, “The direct implication is that defense 

counsel can’t be trusted nor can the defendants, so that goes to them being dangerous, 

gangsters, danger, killing, all these things. Again it’s an effort to poison the jury about 

the whole side over here. So they’ve opened the door.” Arguello’s counsel suggested the 

“implication of impropriety by the defense” could be rebutted by the investigator 

testifying to the legitimate, legal reasons he may have had to go to W.H.’s address.

The court responded, “The only reason the whole thing came up was because it 

had to do with monies, it had to do with extra monies that were paid to relocate him 

again. I don’t think we need to get into a separate trial why he was relocated. And I do 

agree with you that the very line of the responses about his ... safety and the defense I 

can clearly understand.”

Zapien’s counsel then argued the issue of W.H.’s safety being compromised was 

“highly offensive and prejudicial to the defense, and I think we should be allowed to go 
72.

into it.” Arguello’s counsel then stated he only planned to ask Hicks whether he received 

any reports from W.H. of any threats from any of the defendants. The prosecutor and the 

court agreed that question was proper. In response to such questioning, Hicks testified 

W.H. never reported receiving threats from any of the defendants before he was relocated 

a second time.

B. Standard of Review

“A prosecutor’s conduct violates the Fourteenth Amendment to the federal 

Constitution when it infects the trial with such unfairness as to make the conviction a 

denial of due process. Conduct by a prosecutor that does not render a criminal trial 

fundamentally unfair is prosecutorial misconduct under state law only if it involves the 

use of deceptive or reprehensible methods to attempt to persuade either the trial court or 

the jury.” (People v. Morales (2001) 25 Cal.4th 34, 44; see People v. Mendoza (2007) 42 

Cal.4th 686, 700; People v. Farnam (2002) 28 Cal.4th 107, 167.) “The focus of the 

inquiry is on the effect of the prosecutor’s action on the defendant, not on the intent or 

bad faith of the prosecutor.” (People v. Mendoza, supra, at p. 700.) “‘A defendant’s 

conviction will not be reversed for prosecutorial misconduct, however, unless it is 

reasonably probable that a result more favorable to the defendant would have been 

reached without the misconduct.’” (People v. Tully (2012) 54 Cal.4th 952, 1010.)

“‘As a general rule a defendant may not complain on appeal of prosecutorial

misconduct unless in a timely fashion—and on the same ground—the defendant made an 

assignment of misconduct and requested that the jury be admonished to disregard the 

impropriety.’” (People v. Hill (1998) 17 Cal.4th 800, 820.) An exception is made if a 

timely objection or request for admonition would have been futile, or if “‘“an admonition 

would not have cured the harm caused by the misconduct.”’” (Ibid.) “The reason for this 

rule, of course, is that ‘the trial court should be given an opportunity to correct the abuse 

and thus, if possible, prevent by suitable instructions the harmful effect upon the minds of 
73.

the jury.’” (People v. Green (1980) 27 Cal.3d 1, 27, overruled on other grounds in 

People v. Martinez (1999) 20 Cal.4th 225, 241.)

C. Analysis

Defendant argues the prosecutor violated her duty not to admit inadmissible 

evidence and by attacking the integrity of defense counsel by eliciting Hicks’s testimony 

that W.H. was relocated because the “defense attorneys” “compromised” W.H.’s address. 

He contends, when defense counsel “tried to obtain information from Hicks to rebut the 

appearance of impropriety created by the prosecutor, she objected numerous times.” 

Then, the defense attorneys objected on various grounds and, though defendant’s counsel 

did not use the words “prosecutorial misconduct,” there can be no doubt the court 

understood his objections as such. He also contends the prosecutor should have recused 

herself from prosecuting defendant because “she and her office simultaneously 

investigated and prosecuted Carson during [defendant’s] trial,” and she prosecuted both 

cases. The People respond evidence regarding W.H.’s relocation and the reasons for it 

was not relevant to any contested issue at trial. However, the issue of money was brought 

up by defense counsel in cross-examination and “[t]he prosecutor’s follow-up questions 

about [W.H.] being given money to relocate was a reasonable response to that line of 

questioning.” They deny the prosecutor’s conduct was deceptive or reprehensible and 

assert it was not misconduct for her to fail to recuse herself.

1. The prosecutor did not engage in prejudicial misconduct in her 

redirect examination of Detective Hicks

“A prosecutor commits misconduct if he or she attacks the integrity of defense 

counsel, or casts aspersions on defense counsel.” (People v. Hill, supra, 17 Cal.4th at p.

832.) And, “‘[i]t is, of course, misconduct for a prosecutor to “intentionally elicit 

inadmissible testimony.”’” (People v. Smithey (1999) 20 Cal.4th 936, 960.) Under 

certain circumstances, however, a defendant may “open the door” to the introduction of 

evidence that has been otherwise excluded. (See People v. Rowland (1992) 4 Cal.4th 
74.

238, 275 [“A prosecutor, of course, may seek to disprove on cross-examination what 

defense counsel sought to prove on direct examination”]; People v. Blanco (1992) 10 

Cal.App.4th 1167, 1176 [“The defense choice of strategy often makes admissible in 

rebuttal certain evidence which would not be admissible in the prosecution’s case-inchief”].)

Assuming, arguendo, defendant’s first claim of prosecutorial misconduct was 

adequately preserved, we reject it on its merits. Here, defense counsel questioned 

Detective Hicks at length regarding additional payments given to W.H. Accordingly, the 

prosecution was entitled to clarify the reason for the additional payments to W.H. (See 

People v Page (1980) 104 Cal.App.3d 569, 574 [where defense counsel “opened the 

door” to testimony by his question on cross-examination, “[i]t was hardly ‘misconduct’

for the prosecutor to seek clarification of the response through further questioning”].) 

And even if counsel’s question regarding who compromised W.H.’s location was 

irrelevant or improper, we cannot conclude this question in context amounted to 

deceptive and reprehensible conduct or that defendant was prejudiced as a result. 

Defense counsel was able to clarify on cross-examination that W.H.’s address was 

learned of by a defense investigator who was under court order not to disclose the address 

to anyone outside of the defense team, including to the defendants. Defense counsel also 

elicited testimony from Hicks that he was unaware of any threats from any of the 

defendants against W.H. And we cannot conclude it is reasonably probable a result more 

favorable to defendant would have been reached without the alleged misconduct. 

(People v. Tully, supra, 54 Cal.4th at p. 1010.)

2. It was not misconduct for the prosecutor to fail to recuse herself 

from defendant’s case

Defendant next argues the prosecutor’s failure to recuse herself from this case 

amounted to prejudicial misconduct. He asserts she had “an actual conflict that required

her to recuse herself because she and her office simultaneously investigated and 
75.

prosecuted Carson during [defendant’s] trial.” He further contends the prosecutor had 

“personal animus towards Carson,” and “vice ver[s]a,” asserting the record reflects the 

prosecutor had an “axe to grind” against Carson and defendant suffered as a result. He 

argues the prosecutor should have recused herself when the investigation into Carson 

began. The People respond defendant forfeited his claim by failing to raise the issue 

below. They further contend his claim fails on its merits because there was no evidence 

the prosecutor was biased against defendant or that the ongoing investigation into Carson 

had any impact on defendant’s case. They assert, the verdicts in this case were returned 

on September 28, 2012, but Carson was not even arrested in connection with the 

Kauffman murder until August 2015, almost three years later. Thus, there was no 

conflict of interest during defendant’s trial. On reply, defendant asserts his motion for 

new trial based on prosecutorial misconduct preserved the issue.

Even assuming, arguendo, the issue was adequately preserved, the claim fails on 

its merits. Defendant fails to establish the prosecutor’s failure to recuse herself during 

defendant’s trial constituted misconduct. A “conflict” exists whenever there is a 

“‘reasonable possibility that the DA’s office may not exercise its discretionary function in 

an evenhanded manner.’” (People v. Eubanks (1996) 14 Cal.4th 580, 592; see People v. 

Conner (1983) 34 Cal.3d 141, 148.) But the conflict is disabling only if it is “‘so grave 

as to render it unlikely that defendant will receive fair treatment during all portions of the 

criminal proceedings.’” (Eubanks, supra, at p. 592; see Conner, supra, at p. 148; accord,

§ 1424 subd. (a)(1) [a motion may be filed “to disqualify a district attorney from 

performing an authorized duty” that “may not be granted unless the evidence shows that a 

conflict of interest exists that would render it unlikely that the defendant would receive a

fair trial”]; see People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 377.)

Here, despite defendant’s assertions, there was no evidence the prosecutor had a 

conflict of interest during defendant’s trial. To the contrary, the prosecutor represented 

she had no knowledge of the wiretap or investigation into Carson when the issue was 
76.

raised to the court. While defendant cites to a discussion in the motion for new trial 

regarding the prosecutor’s alleged contact with witnesses in the matter related to Carson, 

there is no evidence cited in support of those statements, nor did the motion for new trial 

even allege when the alleged contact occurred.

To the extent defendant asserts the contentious nature of the trial establishes the 

prosecutor had a “personal animus” against his counsel, we disagree. “‘[T]hat a public 

prosecutor might feel unusually strongly about a particular prosecution ... does not 

inevitably indicate an actual conflict of interest, much less a constitutional bar to 

prosecution.’ [Citation.] ‘Zealous advocacy in pursuit of convictions forms an essential 

part of the prosecutor’s proper duties and does not show the prosecutor’s participation 

was improper.’ [Citation.] Recusal is justified only when the prosecutor has ‘an interest 

in the case extraneous to [his or her] official function.’ [Citation.]” (People v. Bryant, 

Smith and Wheeler, supra, 60 Cal.4th at p. 376.) The record fails to support a conclusion 

the prosecutor had a conflict during the trial compelling her to recuse herself. 

Consequently, her failure to recuse herself did not constitute misconduct.

VI. Cumulative Error

Defendant argues the cumulation of the numerous errors in this case prejudiced 

him. Specifically, he asserts he was denied a fair trial by egregious governmental and 

prosecutorial misconduct, “fueled by a Judge who refused to act to protect [defendant]’s 

Fifth and Sixth Amendment rights.” Here, however, there is no series of prejudicial 

errors to cumulate. Accordingly, defendant cannot demonstrate the cumulative effect of 

the alleged errors resulted in prejudice. (See In re Reno (2012) 55 Cal.4th 428, 483 

[“claims previously rejected on their substantive merits—i.e., this court found no legal 

error—cannot logically be used to support a cumulative error claim because we have 

already found there was no error to cumulate”].)
77.

VII. Prison Prior Enhancement Should Be Stricken

Defendant next contends his one-year prior prison term enhancement imposed 

pursuant to section 667.5, former subdivision (b) must be stricken under Senate Bill 136, 

which was signed into law on October 8, 2019, and became effective on January 1, 2020. 

The People concede Senate Bill 136 applies retroactively to this case and the prison prior 

enhancement should be stricken. (See In re Estrada, supra, 63 Cal.2d at p. 742.) On 

remand, we direct the trial court to strike this enhancement.

At the time defendant was charged, convicted, and sentenced, section 667.5, 

former subdivision (b) provided, in part:

“[W]here the new offense is any felony for which a prison sentence or a 

sentence of imprisonment in a county jail under subdivision (h) of Section 

1170 is imposed or is not suspended, in addition and consecutive to any 

other sentence therefor, the court shall impose a one-year term for each 

prior separate prison term or county jail term imposed under subdivision (h) 

of Section 1170 or when sentence is not suspended for any felony ....”

After defendant was sentenced, but while his case was still pending on appeal, the 

Legislature enacted Senate Bill 136. Effective January 1, 2020, subdivision (b) of section 

667.5 provides, in pertinent part:

“[W]here the new offense is any felony for which a prison sentence or a 

sentence of imprisonment in a county jail under subdivision (h) of Section 

1170 is imposed or is not suspended, in addition and consecutive to any 

other sentence therefor, the court shall impose a one-year term for each 

prior separate prison term for a sexually violent offense as defined in 

subdivision (b) of Section 6600 of the Welfare and Institutions Code ....” 

(§ 667.5, subd. (b), as amended by Stats. 2019, ch. 590, § 1.)

In other words, a prior prison term enhancement will only apply if a defendant 

served the prior prison term for a qualifying “sexually violent offense.” The Legislature 

did not expressly declare or in any way indicate it did not intend Senate Bill 136 to apply 

retroactively. “When an amendatory statute ... lessens the punishment for a crime ..., it 

is reasonable for courts to infer, absent evidence to the contrary and as a matter of 

statutory construction, that the Legislature intended the amendatory statute to 
78.

retroactively apply to the fullest extent constitutionally permissible—that is, to all cases 

not final when the statute becomes effective. [Citations.]” (People v. Garcia (2018) 28 

Cal.App.5th 961, 972.) Additionally, while defendant’s appeal was pending, the 

Legislature enacted section 1172.75 (former § 1171.1), which further declares invalid any 

sentence enhancement imposed prior to January 1, 2020, pursuant to former subdivision

(b) of section 667.5, except for those enhancements imposed for a prior conviction for a 

sexually violent offense as defined in subdivision (b) of section 6600 of the Welfare and 

Institutions Code, and provides for resentencing pursuant to that section.

Accordingly, because defendant’s prior prison term was not served for a sexually 

violent offense, the related enhancement imposed pursuant to section 667.5, former 

subdivision (b) is now unauthorized and must be stricken on remand.

VIII. Defendant’s Remaining Claim Is Moot

Defendant also argues the matter should be remanded to permit the trial court to 

exercise its discretion regarding whether to strike or reduce the gang-related firearm 

enhancements. Because we are reversing these enhancements on other grounds and a 

new sentencing hearing will necessarily result, defendant may raise this argument below, 

if necessary.

A. Applicable Law

In People v. Tirado, supra, 12 Cal.5th 688, the California Supreme Court held a 

trial court could strike a section 12022.53, subdivision (d) enhancement and, in its place, 

impose a lesser enhancement under section 12022.53, subdivision (b) or (c). (Tirado, at 

p. 697.) The Tirado court explained “courts are not categorically prohibited from 

imposing uncharged enhancements and ... the power to do so is not conditioned on the 

charged and adjudicated enhancement being legally or factually inapplicable.” (Id. at p. 

699.) Furthermore, “the current language of section 12022.53” does not bar a court from 
79.

imposing an enhancement under section 12022.53, subdivision (b) or (c) when those 

enhancements are not specifically listed in the accusatory pleading. (Ibid.)

In so holding, the Tirado court noted, section 12022.53, subdivision (j) “is the 

subdivision that authorizes the imposition of enhancements under section 12022.53.”

(People v. Tirado, supra, 12 Cal.5th at p. 700.) Notably, section 12022.53, subdivision

(j) provides: “For the penalties in this section to apply, the existence of any fact required 

under subdivision (b), (c), or (d) shall be alleged in the accusatory pleading and either 

admitted by the defendant in open court or found to be true by the trier of fact. When an 

enhancement specified in this section has been admitted or found to be true, the court 

shall impose punishment for that enhancement pursuant to this section rather than 

imposing punishment authorized under any other law, unless another enhancement 

provides for a greater penalty or a longer term of imprisonment.” (Italics added.)

To determine whether subdivision (j) of section 12022.53 authorized the court to 

impose an enhancement under subdivision (b) or (c) after striking a section 12022.53, 

subdivision (d) enhancement, the Tirado court considered whether the existence of facts 

required by section 12022.53, subdivisions (b) and (c) were alleged and found true. 

(People v. Tirado, supra, 12 Cal.5th at p. 700.) The Tirado court concluded “those 

requirements were met here.” (Ibid.) Accordingly, the Tirado court held: “When an 

accusatory pleading alleges and the jury finds true the facts supporting a section 

12022.53(d) enhancement, and the court determines that the section 12022.53(d) 

enhancement should be struck or dismissed under section 12022.53(h), the court may, 

under section 12022.53(j), impose an enhancement under section 12022.53(b) or (c).”

(Ibid.)

B. Analysis

Defendant asserts the court imposed 25 years to life on the section 12022.53, 

subdivisions (d), (e)(1) enhancements to counts I and II, and 20 years to life on the 
80.

section 12022.53, subdivisions (c), (e)(1) enhancements to counts III and V. He notes 

“[e]ffective January 1, 2018, section 12022.53(h), allowed a court to exercise its 

discretion under section 1385 to strike or dismiss a firearm enhancement at the time of 

sentencing.” Additionally, in 2022, the California Supreme Court held in People v. 

Tirado, supra, 12 Cal.5th 688 that trial courts also have discretion to impose a lesser 

firearm enhancement. Accordingly, he argues “[b]ecause nothing in the record indicates 

the trial court considered and rejected striking or imposing lesser firearm enhancements, 

the matter should be remanded for resentencing.” The People agree the matter should be 

remanded to give the court an opportunity to impose a lesser included firearm 

enhancement under section 12022.53.

The Supreme Court has held: “A court which is unaware of the scope of its 

discretionary powers can no more exercise that “informed discretion” than one whose 

sentence is or may have been based on misinformation regarding a material aspect of a 

defendant’s record.’ [Citation.] In such circumstances, ... the appropriate remedy is to 

remand for resentencing unless the record ‘clearly indicate[s]’ that the trial court would 

have reached the same conclusion ‘even if it had been aware that it had such discretion.’

[Citations.]” (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391; see People v. 

McDaniels (2018) 22 Cal.App.5th 420, 425.)

Here, the trial court sentenced defendant to additional 25-years-to-life terms on the 

section 12022.53, subdivisions (d), (e)(1) enhancements to counts I and II and 20-yearsto-life terms on the section 12022.53, subdivisions (c), (e)(1) enhancements to counts III

and V without further comment. The record before us does not reflect the trial court 

knew it had discretion to impose lesser firearm enhancements at the time of sentencing; 

nor does it reflect a clear indication by the trial court it would not have imposed lesser 

enhancements if it had discretion to do so. However, as discussed, we are reversing 

count IX and the gang-related firearm enhancements on other grounds and striking the 

prison prior enhancement. Thus, a new sentencing will necessarily result. Should the 
81.

gang-related firearm enhancements ultimately be reimposed, defendant may raise this 

contention at resentencing.

DISPOSITION

We reverse count IX, the section 12022.53, subdivisions (d), (e)(1) enhancements 

to counts I and II, the section 12022.53, subdivisions (c), (e)(1) enhancements to counts 

III and V, and strike the prison prior enhancement (§ 667.5, former subd. (b)). The 

matter is remanded to the trial court for further proceedings. The People shall have 60 

days from the date of the remittitur in which to file an election to retry defendant on 

count IX, the section 12022.53, subdivisions (d), (e)(1) enhancements to counts I and II, 

and the section 12022.53, subdivisions (c), (e)(1) enhancements to counts III and V. If 

the People elect not to retry defendant on this count and these enhancements, the trial 

court shall modify the judgment by striking count IX, the section 12022.53, subdivisions

(d), (e)(1) enhancements to counts I and II, and the section 12022.53, subdivisions (c), 

(e)(1) enhancements to counts III and V and hold a new sentencing hearing. In all other 

respects, the judgment is affirmed.

PEÑA, J.

WE CONCUR:

LEVY, Acting P. J.

SMITH, J.