Filed 1/27/22 P. v. Rivera CA5

Opinion on remand from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

BERTHA RENEE RIVERA,

Defendant and Appellant.

F076612

(Super. Ct. Nos. PCF335313, 

PCF335314, PCF335315)

OPINION

APPEAL from a judgment of the Superior Court of Tulare County. Antonio A. 

Reyes, Judge.

Carla J. Johnson, under appointment by the Court of Appeal, for Defendant and

Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

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

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

-ooOoo-
2.

INTRODUCTION

In 2017, a jury convicted appellant Bertha Renee Rivera of intimidating a witness 

(Pen. Code, § 136.1, subds. (a) & (b);1 count 1), finding true that she acted maliciously, 

and used or threatened to use force (§ 136.1, subd. (c)). The jury also found true that she 

committed this crime for the benefit of, at the direction of, or in association with a 

criminal street gang (§ 186.22, subd. (b)(1)). The trial court found true that appellant had 

suffered prior convictions for which she had served prison terms (§ 667.5, subd. (b)).

Appellant’s sentencing involved this matter and two companion cases. In one of 

the companion cases, appellant pleaded to a three-year enhancement under Health and 

Safety Code section 11370.2, subdivision (a). Altogether for the three cases, she received 

a determinate term of five years eight months. In this matter, she received a consecutive 

indeterminate term of eight years to life.

On August 4, 2020, we filed an opinion in this matter. We rejected appellant’s 

claim that the prosecution violated People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez) 

regarding the admission of gang evidence against her. We also concluded that the 

evidence was sufficient to support the gang enhancement. We rejected her assertion that 

the trial court erred when it prevented her from introducing evidence of alleged bias of a 

key prosecution witness. Finally, we rejected her claim of prosecutorial misconduct. 

(People v. Rivera (Aug. 4, 2020, F076612) [nonpub. opn.].)

In our prior opinion, however, we agreed with the parties that the one-year prior 

prison enhancements (§ 667.5, subd. (b)) must be stricken. We also agreed with 

appellant that her three-year enhancement under Health and Safety Code section 11370.2, 

subdivision (a), must be stricken. We remanded this matter for the trial court to 

resentence appellant, and for further proceedings in the companion cases. Because 

appellant no longer qualified for the enhancements, we determined it was impossible to 

1 All future statutory references are to the Penal Code unless otherwise noted.
3.

resentence her according to the stipulated sentence. Accordingly, we directed the trial 

court to vacate the plea bargain in the companion cases, and to allow appellant to

withdraw her no contest pleas. In all other respects, we affirmed.

Appellant subsequently appealed to the California Supreme Court, and on 

October 28, 2020, the Supreme Court granted review. On September 15, 2021, the 

Supreme Court transferred this matter to this court with directions for us to vacate our 

prior decision and to reconsider the cause in light of People v. Valencia (2021) 11 Cal.5th 

818 (Valencia). 

On September 17, 2021, we vacated our prior opinion. 

On November 1, 2021, appellant filed a supplemental brief regarding the impact of 

Valencia. Although it was given the opportunity, respondent failed to file a supplemental 

brief following remand from the Supreme Court. 

In light of Valencia, we now determine that appellant’s gang enhancement must be 

reversed.2 We vacate appellant’s sentence and remand this matter for further 

proceedings.

BACKGROUND

We summarize the relevant portions of the trial evidence. We provide additional 

facts later in this opinion when relevant to the issues raised on appeal.

I. Appellant’s Son Shoots At A Residence.

In April 2016, someone fired a gun at a particular residence in Porterville, 

California. Law enforcement believed that Gilberto Amezcua, appellant’s adult son, was 

responsible for that shooting. At trial the prosecution established that, when these events 

occurred, Amezcua was a gang member with “East Side,” a subset of the Norteño street 

gang. 

2 As we explain in greater detail later in this opinion, the prosecution may elect to 

retry the gang enhancement.
4.

II. The Search Of Appellant’s Residence.

Detective Darin Cardoza investigated this shooting. Cardoza had previous contact 

with Amezcua, and Cardoza focused on Amezcua as the shooter. Cardoza knew that 

Amezcua resided with appellant, or frequented her residence. 

Cardoza searched appellant’s residence. Inside her garage, he found some 

“taggings” and “monikers” written on a poster. Photographs of that evidence were 

admitted at trial, and Cardoza explained to the jury how it was gang related. Cardoza told 

the jury that he believed these gang-related writings probably belonged to Amezcua. 

Cardoza, however, believed appellant was the “responsible party” at that residence. 

III. Appellant Tried To Dissuade A Witness From Testifying Against Her Son.

The prosecution established that appellant threatened a potential witness, M.M., 

who is the mother of the victim whose residence had been fired upon. M.M. lived next 

door to her daughter. According to M.M., it was appellant’s son, Amezcua, who had 

fired at her daughter’s residence in April 2016. 

The jury heard conflicting testimony from M.M. and appellant about appellant’s 

intimidation of M.M. 

A. M.M.’s testimony about appellant’s intimidation.

According to M.M., appellant spoke with her in May 2016. Appellant told M.M. 

that they “would end up in a bad place” if M.M. went to court about her son’s alleged 

shooting. Appellant told her that, if M.M. was scared of her son because he was in a 

gang and a “gang banger,” then M.M. should really fear appellant. According to M.M., 

appellant said she and her family were not just gang members, “they were part of the 

mafia.” 

M.M. told the jury that she understood “mafia” to mean “someone who is involved 

with drugs and is more dangerous than just a gang member.” She took appellant’s threat 

to mean that, if she went to court, she and her family would be “shot up worse.” 
5.

According to M.M., appellant had asked her who had given video of the shooting 

to the police. M.M. had told her that the police took the video. M.M. and appellant went 

to the victim’s residence. M.M. showed appellant where appellant’s son had allegedly 

shot at the residence belonging to M.M.’s daughter. They looked at “bullet holes” left on 

the outside and inside of that residence. 

M.M. told appellant that she had a three-year-old granddaughter who could have 

been killed. Appellant said, “ ‘I don’t care. I only care about my son.’ ” Appellant also 

stated that her son “was an asshole for aiming low instead of higher up.” According to 

M.M., appellant told her that she wanted her son “to have shot higher up so that he would 

have hit the family inside.” 

Appellant asked M.M. who had called the police following Amezcua’s shooting at 

the victim’s residence. M.M. told her that she did not know who had called the police. 

According to M.M., appellant said, “ ‘I know people; lot of people that can hurt badly. 

They’re just a bunch of pigs that care about nothing, but money, and the money that they 

can get by getting to people.’ ” M.M. told the jury that appellant was “angry all the time” 

during their conversation.

B. Appellant’s testimony about her intimidation.

In contrast to M.M.’s testimony, appellant denied ever threatening M.M., but she 

admitted that she had asked M.M. not to testify against her son. Appellant believed that 

her son was facing a very long prison term.3 She denied using the words “cholo[,]” 

“narco[,]” or “mafia” when speaking with M.M. She told the jury that, when she spoke 

with M.M., she was not trying to benefit the Northern gang. She said she did not realize 

it was wrong to talk with M.M. She denied that her son had directed her to speak with 

M.M. 

3 When appellant was arrested in this matter, she spontaneously informed an officer 

that her son was facing 55 years in prison. 
6.

IV. The Evidence Regarding Appellant’s Gang Association.

Two detectives, Marciel Morales and Cardoza, testified as gang experts for the 

prosecution. The two experts discussed the Norteño gang in general, and they explained 

the various Norteño subsets that operate in and around the City of Porterville. Another 

prosecution witness, sergeant Mark Azevedo, also provided some testimony about gangs. 

Cardoza testified about two predicate offenses involving Norteño gang members. 

These offenses had occurred in the City of Porterville. According to Cardoza, these 

predicate offenses showed examples of the primary activities for the Norteño gang in 

general, and all of its subsets in Porterville.4

Morales had known appellant and some of her sons since 1999. According to 

Morales, appellant had never admitted that she was a gang member. Likewise, Cardoza 

told the jury that appellant was not a gang member. Cardoza, however, opined that she 

was a gang associate. 

To establish appellant’s gang association, the prosecution demonstrated that 

appellant had current and/or prior relationships with three men:

1. Her son, Amezcua; 

2. A former acquaintance, Armando Zavala. Morales provided testimony 

establishing that Zavala was a gang member in a Norteño subset called Varrios Central 

Poros (VCP). 

3. A former acquaintance, Jason Macias (Crazy J). Sergeant Azevedo 

provided testimony that suggested Macias was a gang member. According to Azevedo, 

he had seen a photograph of the word “Poros” on Macias’s chest. Azevedo testified that 

this was a gang-related tattoo. 

4 People’s exhibits 18, 19, 20 and 21 were admitted into evidence. These 

documents were certified copies of the charges and convictions for the two predicate 

offenses. 
7.

At trial, Cardoza opined that, based on the trial testimony from Morales and 

Azevedo, appellant “affiliates with other gang members.” Cardoza opined that appellant 

is a gang associate. The prosecutor provided Cardoza with a hypothetical that matched 

some of the facts from this trial. Cardoza opined that appellant acted to benefit the 

Norteño gang when she threatened M.M. and tried to keep her from testifying against her 

son, a known Norteño gang member. Based on the hypothetical presented to Cardoza, 

appellant’s threats to M.M. would have benefited all of the Norteño subsets in Porterville. 

Cardoza also noted that appellant had informed an officer in 2009 that “scraps” 

may have been responsible for a particular homicide.5 Cardoza explained that this is a 

derogatory term used typically by Norteños to denote Sureños. According to Cardoza, 

appellant’s use of this word showed some affiliation or association with the Norteño 

gang. 

In contrast to the prosecution’s evidence, appellant told the jury that she is not part 

of a gang, and she is not a Norteño gang member.6 She denied being a Norteño 

associate.7 Instead, she associates with her son. She said she has learned that her son is a 

gang member, and “he does things that I do not like or approve.” She testified that she 

allows her son to go to her residence, but she does not allow him to do gang-related 

5 The jury learned that, in 2009, an officer contacted appellant and her son, 

Amezcua, at appellant’s residence. The officer was obtaining statements in a murder 

investigation. Appellant told the officer that she had heard “scraps” were responsible for 

shooting that particular victim. 

6 Appellant admitted at trial that she had prior convictions for burglary, evading the

police, and using drugs. She had served time in jail and prison. She explained that her 

drug addiction had been a factor in her prior behavior. 

7 Appellant called a gang expert to testify on her behalf. According to the defense 

expert, appellant was neither a gang member nor a gang associate. An associate actively 

helps a gang. It takes more than being a mother of a gang member to be a gang associate. 

Likewise, dating a gang member is not enough. Instead, you have to actively do things or 

help. It was his opinion that this was not a gang crime done for the benefit of a gang. 
8.

things in her house. When she is away from home, Amezcua will have people there, but 

“when I come home, I make them leave.” 

Appellant told the jury that Amezcua was 26 years old, and she could not stop him 

from putting up posters in her garage. She said the poster in her garage that contained 

gang references belonged to Amezcua. She said he does not listen to her, and she had 

tried to talk to all of her sons about not getting into gangs. 

Appellant denied having any gang tattoos. She did have one little tattoo of a heart 

that she got when she was 14 years old. She denied having any gang-related items in her 

bedroom. 

Appellant testified that Macias (Crazy J) is not a gangster. She said she had an 

incident with him in 2005 when they argued about another woman. A struggle occurred. 

During their altercation, Macias had a gun, which discharged. Appellant was shot in her 

foot and she sought medical attention. 

Appellant testified that, in 2006, she spent time with Zavala and they would ingest 

drugs together. She said she did not date Zavala. Instead, she described her relationship 

with him was a “bad mistake” and based on “bad choices.” Appellant told the jury that 

she had not dated anyone for 10 or 12 years. 

DISCUSSION

I. In Light Of Valencia, The Jury’s True Finding Regarding The Gang 

Enhancement Must Be Reversed; The Prosecution May Elect To Retry This 

Sentencing Enhancement Allegation.

In convicting appellant of intimidating M.M., the jury found true that appellant 

acted to benefit a criminal street gang. (§ 186.22, subd. (b)(1).) Because of this true 

finding, appellant’s sentence was elevated to an indeterminate term of seven years to life

in state prison. (§ 186.22, subd. (b)(4)(C).)

In her prior briefing, appellant had argued that her gang enhancement must be 

reversed because the prosecution relied on testimonial hearsay in violation of Sanchez, 
9.

supra, 63 Cal.4th 665.8 We had rejected those arguments. (People v. Rivera, supra,

F076612.) In light of Valencia, however, we now agree that the jury’s true finding must 

be reversed because the prosecution improperly and prejudicially relied on case-specific 

hearsay in violation of Sanchez to establish the gang enhancement.

A. Standard of review.

In Sanchez, supra, 63 Cal.4th 665, our Supreme Court held that “case-specific” 

statements related by a gang expert concerning a defendant’s gang membership are 

inadmissible under California law if those statements are based on hearsay. (Id. at 

p. 684.) Such evidence must be independently established in court. (Ibid.) Further, 

“testimonial” hearsay statements must also be excluded under Crawford v. Washington

(2004) 541 U.S. 36 (Crawford), unless an exception applies.9 (Sanchez, supra, 63 

Cal.4th at p. 685.) Testimonial statements under Crawford “are those made primarily to 

memorialize facts relating to past criminal activity, which could be used like trial 

testimony. Nontestimonial statements are those whose primary purpose is to deal with an 

ongoing emergency or some other purpose unrelated to preserving facts for later use at 

trial.”

10

 (Sanchez, at p. 689.) Improper admission of such evidence is error under the 

Federal Constitution. (Sanchez, at p. 685.)

8 Appellant previously raised ineffective assistance of counsel to the extent her 

Sanchez claims were deemed forfeited. Respondent, however, did not previously raise 

forfeiture. Because we address these issues on their merits, we need not analyze any 

alleged ineffective assistance of counsel.

9 “Under Crawford, if an exception was not recognized at the time of the Sixth 

Amendment’s adoption [citation], admission of testimonial hearsay against a criminal 

defendant violates the confrontation clause unless (1) the declarant is unavailable to 

testify and (2) the defendant had a previous opportunity to cross-examine the witness or 

forfeited the right by his own wrongdoing. [Citations.]” (Sanchez, supra, 63 Cal.4th at 

p. 680.)

10 Our Supreme Court has clarified a testimonial statement has two requirements. 

First, the hearsay statement must have been made with some degree of solemnity or 
10.

B. Analysis.

1. The elements necessary to establish the gang enhancement.

Under the law at the time this offense occurred, a gang enhancement applied when 

someone committed a felony “for the benefit of, at the direction of, or in association with 

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

criminal conduct by gang members.” (Former § 186.22, subd. (b)(1).) “ ‘In addition, the 

prosecution must prove that the gang (1) is an ongoing association of three or more 

persons with a common name or common identifying sign or symbol; (2) has as one of its 

primary activities the commission of one or more of the criminal acts enumerated in the 

statute; and (3) includes members who either individually or collectively have engaged in 

a “pattern of criminal gang activity” by committing, attempting to commit, or soliciting 

two or more of the enumerated offenses (the so-called “predicate offenses”) during the 

statutorily defined period.’ [Citations.]” (Sanchez, supra, 63 Cal.4th at p. 698.)

On October 8, 2021, the Governor signed into law Assembly Bill No. 333 (2021-

2022 Reg. Sess.), which became effective January 1, 2022. Under the current law, the 

term “criminal street gang” appearing in section 186.22 requires proof that members of a 

gang “collectively” engage in or have engaged in a pattern of criminal gang activity. 

(§ 186.22, subd. (f).)

2. Valencia resolved a split of authority in California.

As discussed in our prior opinion, a split of authority previously existed in 

California regarding whether a gang expert’s testimony about predicate offenses was 

considered general “background” information upon which an expert witness could 

generally rely, or whether such testimony entailed “case-specific” facts as contemplated 

by Sanchez. (People v. Rivera, supra, F076612.) Valencia resolved that dispute.

formality. Second, the primary purpose of the statement must pertain in some fashion to 

a criminal prosecution. (People v. Gomez (2018) 6 Cal.5th 243, 297.)
11.

In Valencia, the Supreme Court acknowledged that, in gang cases, “drawing the 

line of demarcation between background and case-specific information can present 

challenges, as reflected by the different conclusions drawn by the Courts of Appeal 

regarding predicate offenses. Several cases have held that predicate offense evidence is 

merely background similar to other kinds of information about gangs, like their territory, 

symbols, and operations, that are generally accepted as true by experts in the field. 

[Citations.]”11 (Valencia, supra, 11 Cal.5th at p. 835.) The Valencia court clarified that, 

as used in Sanchez, the phrase “general background information” refers to “expert 

knowledge derived from hearsay that is generally accepted as accurate by experts in the 

field.” (Valencia, supra, 11 Cal.5th at p. 837, fn. 15.) 

The Supreme Court clarified in Valencia that, for purposes of expert testimony, 

the terms “ ‘general background information’ and ‘case-specific facts’ ” distinguish

“between hearsay that may be admitted because it is generally accepted by experts in the 

field, and facts that cannot be proven by hearsay because that reliability justification is 

absent. These latter case-specific facts must be proven through the testimony of a 

witness with personal knowledge or by other admissible evidence.” (Valencia, supra, 11 

Cal.5th at p. 837, fn. omitted.) It is the role of an expert witness “to help the jury 

understand the significance of case-specific facts proven by competent evidence, not to 

place before the jury otherwise unsubstantiated assertions of fact.” (Ibid.)

The Valencia court held that, without independent admissible evidence of the 

particulars of a predicate offense, an expert’s hearsay testimony cannot be used to supply 

them. (Valencia, supra, 11 Cal.5th at p. 838.) “In the absence of any additional 

11 The high court in Valencia noted that “general testimony about a gang’s behavior, 

history, territory, and general operations is usually admissible. [Citation.] The same is 

true of the gang’s name, symbols, and colors. All this background information can be 

admitted through an expert’s testimony, even if hearsay, if there is evidence that it is 

considered reliable and accurate by experts on the gang.” (Valencia, supra, 11 Cal.5th at 

p. 838.)
12.

foundation, the facts of an individual case are not the kind of general information on 

which experts can be said to agree.” (Ibid.) The high court concluded “that facts 

concerning particular events and participants alleged to have been involved in predicate 

offenses” constitute “case-specific facts that must be proved by independently admissible 

evidence.” (Id. at p. 839.) In sum, the particular facts offered to prove predicate offenses

“are not the sort of background hearsay information about which an expert may testify.

Competent evidence of those particulars is required. A gang expert may still render an 

opinion regarding the gang membership of the perpetrator of a predicate offense in 

response to a proper hypothetical question based on premises established by competent 

evidence. [Citation.]” (Valencia, supra, 11 Cal.5th at p. 839, fn. omitted.)

In the present matter, the prosecution relied on case-specific hearsay from Cardoza 

to establish two predicate offenses. These predicate offenses were used, in part, to 

establish the gang enhancement. For both predicate offenses, Cardoza relayed the 

pertinent information from police records. 

The first predicate offense which Cardoza discussed involved three Norteño gang 

members. These three were convicted of robbery and assault with a deadly weapon. 

These crimes occurred in the City of Porterville. Cardoza could not recall in which 

subset these gang members belonged. He agreed, however, that this predicate offense 

was an example of the primary activities of the Norteño gang and its subsets. 

The second predicate offense which Cardoza discussed involved “an active West 

Side Poros gang member.” This crime occurred in the City of Porterville. This gang 

member was convicted of assault with a deadly weapon. Cardoza agreed that this 

defendant belonged to the Norteño street gang, but specifically to the WSP subset. 

Cardoza also agreed that this crime was an example of the primary activities of the 

Norteño gang, and its subsets. 
13.

This record does not establish that Cardoza had independent knowledge of the 

facts underlying the two predicate offenses. As such, a clear Sanchez violation occurred. 

(See Valencia, supra, 11 Cal.5th at p. 838.) We turn to the issue of prejudice.

3. The Sanchez error was prejudicial.

In Valencia, our high court explained the standard for evaluating prejudice. The 

improper admission of hearsay may constitute state law statutory error, which would 

ordinarily be assessed under People v. Watson (1956) 46 Cal.2d 818 (Watson). 

(Valencia, supra, 11 Cal.5th at p. 840.) Under Watson, we inquire whether “it is 

reasonably probable that a result more favorable to the appealing party would have been 

reached in the absence of the error.” (Watson, supra, 46 Cal.2d at p. 836.) However, the 

federal constitutional standard of Chapman v. California (1967) 386 U.S. 18 (Chapman) 

is used if the improperly admitted hearsay is also testimonial within the meaning of 

Crawford. (Valencia, supra, 11 Cal.5th at p. 840.) Under the Chapman standard, any 

error must be harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S. at p. 24.)

Here, the Chapman standard applies. Cardoza relied on police reports to establish 

the predicate offenses. As Sanchez notes, contents of police reports, and narratives 

authored by investigating officers, represent “testimonial” hearsay unless they were made 

in the context of an ongoing emergency or for some primary purpose other than 

preserving facts for use at trial. (See Sanchez, supra, 63 Cal.4th at p. 694.)

Cardoza related to the jury facts he gathered from inadmissible hearsay sources, 

including police reports, about which he had no personal knowledge. Cardoza considered 

this information to be true and he related it to the jury as a reliable basis for his opinion. 

The jury was permitted to improperly rely on that hearsay to conclude the predicate 

offenses had been proven and that appellant acted with the intent to benefit the gang 

when she committed the charged crime. Based on this record, we cannot conclude that 
14.

the error was harmless under the Chapman standard. Accordingly, the jury’s true finding 

regarding the gang enhancement must be reversed.12 

II. Appellant May Be Retried On The Gang Enhancement Allegation.

In both her prior briefing and in her brief following remand, appellant maintains 

that insufficient evidence supports her gang enhancement. Although we have already 

determined that the gang enhancement must be reversed because the predicate offenses 

were based on case-specific hearsay in violation of Sanchez, we address this claim to 

ensure that a potential retrial is permissible following remand.

When reviewing the sufficiency of the evidence for purposes of deciding whether 

retrial is permissible, a reviewing court “must consider all of the evidence presented at 

trial, including evidence that should not have been admitted. ‘[W]here the evidence 

offered by the State and admitted by the trial court—whether erroneously or not—would 

have been sufficient to sustain a guilty verdict, the Double Jeopardy Clause does not 

preclude retrial.’ ” (People v. Story (2009) 45 Cal.4th 1282, 1296–1297, quoting 

Lockhart v. Nelson (1988) 488 U.S. 33, 34; see also People v. Lara (2017) 9 Cal.App.5th 

296, 302, fn. 3.) We conclude that sufficient evidence exists permitting a retrial of the 

gang enhancement.

A. Standard of review.

“In considering a challenge to the sufficiency of the evidence to support an 

enhancement, we review the entire record in the light most favorable to the judgment to 

determine whether it contains substantial evidence—that is, evidence that is reasonable, 

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

defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in 

support of the judgment the trier of fact could have reasonably deduced from the 

12 In light of this reversal, we need not address appellant’s remaining arguments why 

reversal is warranted based on Sanchez and/or Valencia. 
15.

evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings, 

reversal of the judgment is not warranted simply because the circumstances might also 

reasonably be reconciled with a contrary finding. [Citation.] ‘A reviewing court neither 

reweighs evidence nor reevaluates a witness’s credibility.’ [Citation.]” (People v. 

Albillar (2010) 51 Cal.4th 47, 59–60.)

B. Analysis.

In her initial briefing with this court, appellant had raised two arguments to 

support her claim that insufficient evidence supported the gang enhancement. First, she 

had contended the evidence was insufficient to link her gang affiliation to the gangs 

involved in the predicate offenses. She had relied primarily on People v. Prunty (2015) 

62 Cal.4th 59 (Prunty). She had argued that the numerous subsets discussed in her trial 

“were not shown to have the required connection to the umbrella Norteño organization.” 

In her second argument, appellant had maintained that the evidence was 

insufficient to establish the primary activities of the gang. 

Following remand, appellant now argues in her supplemental brief that Cardoza 

improperly opined that she was a gang affiliate. She contends that Cardoza relied on 

case-specific hearsay to support his opinion. She asserts that, in light of Valenica, all of 

these alleged errors were prejudicial under Chapman, and her judgment must be 

reversed.13 

We previously rejected appellant’s arguments and held that sufficient evidence 

supported the gang enhancement. (People v. Rivera, supra, F076612.) In light of 

Valencia, we now conclude that, although the gang enhancement must be reversed, 

sufficient evidence supports a retrial of that sentencing allegation if the prosecution so 

elects.

13 In her supplemental brief following remand, appellant contends that her 

“judgment” must be reversed. Appellant, however, does not challenge the guilty verdict 

in count 1, only the true finding regarding the gang enhancement.
16.

1. The requirements under Prunty.

In Prunty, the prosecution’s gang expert stated that the defendant was an admitted 

“ ‘Northerner,’ or a Norteño gang member,” and a member of the Detroit Boulevard 

Norteño “ ‘set.’ ” (Prunty, supra, 62 Cal.4th at p. 68.) According to the expert, the 

defendant’s clothing, previous contacts with police, and possessions were consistent with 

Norteño gang membership. (Ibid.) The expert described the Norteños as a Hispanic 

gang, active in Sacramento and throughout California, and it had about 1,500 local 

members. (Id. at p. 69.) He testified that “Sacramento-area Norteños are not associated 

with any particular ‘turf’ but are instead ‘all over Sacramento’ with ‘a lot of subsets 

based on different neighborhoods.’ ” (Ibid.) Regarding predicate offenses, the gang 

expert relied on crimes committed by other gang members from other Norteño subsets, 

i.e., the Varrio Gardenland Norteños and the Varrio Centro Norteños. The expert 

testified that these subsets called themselves Norteños. (Ibid.) The prosecution produced 

no specific evidence showing the subsets identified with a larger Norteño group. The 

expert also did not testify that the Norteño subsets that committed the predicate offenses 

shared a connection with each other, or with any other Norteño-identified subset. (Ibid.)

Prunty held that the prosecution’s evidence was legally insufficient to prove that 

the defendant’s gang committed the predicate offenses. (Prunty, supra, 62 Cal.4th at 

p. 85.) Although the subsets who committed the predicate offenses were described as 

Norteños, no evidence connected these groups to one another, and nothing connected 

them to the “overarching Sacramento-area Norteño criminal street gang.” (Id. at p. 82.) 

No evidence tended to show “collaboration, association, direct contact, or any other sort 

of relationship” among the subsets which the expert described. (Ibid.) Nothing permitted 

an inference of an associational or organizational connection among the subsets. (Ibid.)

In this matter, Cardoza and Morales were both deemed gang experts, and they 

testified regarding the Norteño gang. Three “clicks” of Norteños operate in Porterville: 

(1) East Side; (2) Central; and (3) West Side. Each “click” has its own subsets. East Side 
17.

has (1) the East Side Poros and (2) the East Side Varrio Poros (“ESP”). Central has 

(1) the Central Poros and (2) the Varrio Central Poros. West Side has (1) the West Side 

Poros (“WSP”) and (2) the Varrio West Side Poros. 

The jury learned that the gang members in the Porterville subsets are members of 

the larger Norteño gang in Tulare County, which is governed by the Nuestra Familia. 

The prosecutor asked Cardoza if the Norteño subsets in Tulare County “collaborate, 

communicate and work together in furtherance of the gang as a whole?” Cardoza 

answered affirmatively. He explained that, during a law enforcement operation known as 

“Redsol,” a particular gang member was identified as the person in charge of “South 

County” and this person reported to a Nuestra Familia member.14 During this operation, 

it was determined that three channels in Tulare County were used to provide information 

from the Nuestra Familia to the street, or vice versa. 

Defense counsel raised objections under hearsay and Sanchez to this testimony. 

The trial court overruled those objections. Cardoza testified that Norteño gang members 

all follow certain rules and orders. A chain of command exists within the Norteño street 

gang that linked to the Nuestra Familia. 

Cardoza said the Norteño subsets in Porterville share and defend the same turf, 

and they work together to push the Sureños from the city. The three subsets all associate 

14 Appellant asserts that Cardoza’s testimony about operation Redsol represented 

inadmissible testimonial hearsay. In our prior opinion we disagreed, determining that 

Cardoza’s testimony about operation Redsol represented general background 

information. (People v. Rivera, supra, F076612.) In light of Valencia, however, we now 

need not fully respond to this issue. Instead, we have already concluded that the jury’s 

true finding regarding the gang enhancement must be reversed. The double jeopardy 

clause does not preclude retrial in this situation because the evidence admitted by the trial 

court, despite some of it having been erroneously admitted in violation of Sanchez, was 

sufficient to find true the gang enhancement allegation. (See People v. Story, supra, 45 

Cal.4th at pp. 1296–1297; People v. Lara, supra, 9 Cal.App.5th at p. 302, fn. 3.) 
18.

with the color red and the number 14. They share the same rivals, i.e., the Sureños and 

the Northern Riders dropout gang.

Cardoza opined that appellant was a gang associate. After being presented with a 

hypothetical that mirrored some of the facts in this matter, Cardoza opined that the person 

in appellant’s position acted to benefit and further the Norteño gang. Cardoza agreed that 

this hypothetical person’s conduct would have benefited all of the subsets in the City of 

Porterville, and not just the shooter’s subset, i.e., the East Side Varrio Poros.

In contrast to Prunty, the prosecution presented evidence in this matter that 

established appellant was affiliated with the same gang, i.e., the Norteños, whose 

members had committed the predicate offenses. Moreover, sufficient evidence 

demonstrated an inference of an associational or organizational connection among the 

three Norteño subsets in Porterville. (See Prunty, supra, 62 Cal.4th at p. 82.) Cardoza 

and Morales established that these subsets identified with the larger Norteño 

organization, and those gang members were all considered Norteños. Prunty is 

distinguishable and it does not preclude a possible retrial of the gang enhancement. 

Although some of the People’s evidence was erroneously admitted at trial, sufficient

evidence exists to support a retrial of the gang enhancement. (See People v. Story, supra, 

45 Cal.4th at pp. 1296–1297; People v. Lara, supra, 9 Cal.App.5th at p. 302, fn. 3.) 

2. The primary activities.

In her second argument, appellant had previously asserted that Cardoza was not 

very experienced when he testified in this matter. She noted that Cardoza had been a 

police officer for less than five years, and he had only been investigating gang crimes for 

about two years prior to his testimony. She argued that Cardoza failed to explain how he 

determined her gang’s primary activities. She renewed her assertions under Sanchez, 

contending that Cardoza merely relied upon hearsay. She also cited In re Alexander L.

(2007) 149 Cal.App.4th 605. She maintained that Cardoza’s testimony was insufficient 
19.

to establish the required primary activities to establish a criminal street gang. We 

continue to disagree with appellant’s assertions.

To establish a gang’s primary activities, the trier of fact may look to both the past 

and present criminal activities of the gang. (People v. Sengpadychith (2001) 26 Cal.4th 

316, 323 (Sengpadychith).) Isolated criminal conduct, however, is not enough. 

“Sufficient proof of the gang’s primary activities might consist of evidence that the 

group’s members consistently and repeatedly have committed criminal activity listed in 

the gang statute.” (Id. at p. 324.) Expert testimony based on an adequate factual 

foundation might also be sufficient. (Ibid.)

In In re Alexander L., the opinion which appellant cites, a deputy sheriff in a gang 

enforcement unit contacted a juvenile and questioned him about his status in a particular 

street gang. The juvenile was wearing gang clothing and he was in a known gang 

gathering area. (In re Alexander L., supra, 149 Cal.App.4th at p. 609.) The juvenile 

admitted to the deputy that he had spray painted the name of his alleged gang in three 

locations. The juvenile also disclosed that he had been given a gang moniker. A petition 

was filed against the juvenile alleging three counts of vandalism, and alleging that these 

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

juvenile’s street gang, with the intent to promote, further, or assist the gang under section 

186.22, subdivision (d). (In re Alexander L., at p. 609.) The juvenile court denied a 

motion to dismiss the gang enhancement. (Ibid.) The appellate court, however, 

determined that error had occurred.

The appellate court commented that no specifics were elicited about the 

circumstances of the gang’s crimes, or how the deputy had obtained his information. (In 

re Alexander L., supra, 149 Cal.App.4th at pp. 611–612.) The deputy also did not 

directly testify that criminal activities constituted the gang’s primary activities. Indeed, 

on cross-examination, the deputy stated that the vast majority of cases connected to this 

gang that he had experienced were graffiti related. (Id. at p. 612.) The appellate court 
20.

concluded that the deputy’s testimony lacked an adequate foundation. (Ibid.) No 

information was elicited from him establishing the reliability of his testimony. “It is 

impossible to tell whether his claimed knowledge of the gang’s activities might have 

been based on highly reliable sources, such as court records of convictions, or entirely 

unreliable hearsay.” (Ibid.)

Finally, the court in In re Alexander L. rejected the respondent’s argument that the 

admission of two predicate crimes had been enough, along with the deputy’s general 

testimony about the gang’s crimes, to establish the gang’s primary activities. (In re 

Alexander L., supra, 149 Cal.App.4th at p. 613.) To the contrary, the appellate court 

reiterated that the deputy had not provided a basis for his testimony that he knew 

members of the juvenile’s alleged gang had been involved in certain crimes. Without 

more, the two predicate offenses did not provide substantial evidence that gang members 

had consistently and repeatedly committed criminal activity listed in the gang statute as 

required under Sengpadychith, supra, 26 Cal.4th at p. 324. (In re Alexander L., supra, 

149 Cal.App.4th at p. 614.) The appellate court reversed the true finding as to the gang 

enhancement allegation. (Ibid.)

In re Alexander L. is factually distinguishable from the present matter. Cardoza 

explained his background in law enforcement, including his training and experience with 

gangs. The trial court designated Cardoza as a gang expert. Unlike the deputy in In re 

Alexander L., Cardoza explained that he was personally familiar with the local gangs 

operating in Tulare County and the City of Porterville. Part of his job duty was to remain 

updated on gang activities in Porterville. He had talked to hundreds of Norteño gang 

members, and he had investigated about 25 crimes, and probably more, in which Norteño 

gang members were suspects. Cardoza testified that the primary activities of the 

Norteños include drug sales, fraud, robbery, shootings, stabbings, various assaults, and 

murder. Cardoza stated that he had investigated these various crimes by Norteño gang 
21.

members, and he opined that they are repeated and consistent activities of the Norteño 

gang. 

The concerns in In re Alexander L. are lacking here. Cardoza’s testimony 

provided sufficient foundation to make his opinions reliable in this regard. Cardoza’s 

testimony about the primary activities of the Norteño gang, coupled with the additional 

two predicate offenses which Cardoza discussed (whose testimony is now deemed 

inadmissible based on case-specific hearsay), show that Norteño gang members have 

consistently and repeatedly committed criminal activity listed in the gang statute. (See 

Sengpadychith, supra, 26 Cal.4th at p. 324.) This record demonstrates that, even though 

some of this trial evidence should have been excluded, sufficient evidence exists to 

support a retrial of the gang enhancement. (See People v. Story, supra, 45 Cal.4th at 

pp. 1296–1297; People v. Lara, supra, 9 Cal.App.5th at p. 302, fn. 3.) 

3. The sufficiency of the evidence in light of Valencia.

In her brief following remand, appellant asserts that Cardoza relied on 

inadmissible case-specific hearsay to opine that she was a gang affiliate. She argues that 

Cardoza related to the jury facts that he gleaned from inadmissible hearsay sources, 

including police reports. Appellant contends that Cardoza had no personal knowledge 

about some of these facts. She asserts that the jury was improperly permitted to rely on 

that hearsay to conclude the predicate offenses had been proven, and that appellant had 

acted with an intent to benefit the gang when she committed the charged crime. She 

maintains that her judgment must be reversed. 

We need not fully respond to all of appellant’s arguments. Instead, we have 

concluded that the gang enhancement must be reversed. The issue before us is whether 

sufficient evidence exists which permits retrial of the gang enhancement. This record 

contains such evidence.
22.

At trial, Cardoza opined that, based on the trial testimony from Morales and 

Azevedo, appellant “affiliates with other gang members.” Cardoza opined that appellant 

is a gang associate. The prosecutor provided Cardoza with a hypothetical that matched 

some of the facts from this trial. Cardoza opined that appellant acted to benefit the 

Norteño gang when she threatened M.M. and tried to keep her from testifying against her 

son, a known Norteño gang member. Based on the hypothetical presented to Cardoza, 

appellant’s threats to M.M. would have benefited all of the Norteño subsets in Porterville. 

Cardoza also noted that appellant had informed an officer in 2009 that “scraps” 

may have been responsible for a particular homicide.15 Cardoza explained that this is a 

derogatory term used typically by Norteños to denote Sureños. According to Cardoza, 

appellant’s use of this word showed some affiliation or association with the Norteño 

gang.

In light of Valencia, it is apparent that some of the People’s evidence regarding the 

gang enhancement was erroneously admitted at trial. However, the double jeopardy 

clause does not preclude retrial in this situation because the evidence admitted by the trial 

court, despite some of it having been erroneously admitted in violation of Sanchez, was 

sufficient to find true the gang enhancement allegation. (See People v. Story, supra, 45 

Cal.4th at pp. 1296–1297; People v. Lara, supra, 9 Cal.App.5th at p. 302, fn. 3.) 

Accordingly, we remand for further proceedings and the prosecution may elect to retry 

the gang enhancement.

15 The jury learned that, in 2009, an officer contacted appellant and her son, 

Amezcua, at appellant’s residence. The officer was obtaining statements in a murder 

investigation. Appellant told the officer that she had heard “scraps” were responsible for 

shooting that particular victim. 
23.

III. The Trial Court Did Not Abuse Its Discretion In Prohibiting Appellant From 

Introducing Evidence About M.M.’s Family.

Appellant asserts that the trial court violated her constitutional rights to confront 

and present a defense when the court excluded evidence of M.M’s bias. In general, the 

defense sought to show that M.M. had a motive to lie because at least one of her sons was 

a Sureño gang member. In addition, the defense wanted to introduce evidence showing 

that the residence of M.M.’s daughter was a known Sureño gang hangout. 

A. The relevant proceedings below.

In pretrial proceedings, the prosecutor moved to suppress evidence that M.M.’s 

children were in prison. The trial court ruled such evidence was not relevant, but said it 

would consider the issue later if it arose. 

During M.M.’s trial testimony, defense counsel sought to cross-examine her and 

admit evidence that M.M.’s son is a Sureño gang member. Outside the presence of the 

jury, defense counsel stated, “We have documented proof that [M.M.] has been contacted 

by the police regarding her family’s involvement in gangs. We know that her son ... is a 

known gang member and is doing prison time for gang crimes.” 

The court asked about the relevancy of that evidence. Defense counsel responded 

that the prosecution was casting doubt on appellant with gang evidence. “How can we 

then not impeach their witness’s credibility when what they’re using to cast a bad light on 

my client, well, that same bad light exists to this witness. So how can what’s good for 

one not be good for the other?” 

The court asked if the defense had any evidence that M.M. was involved in gang 

activity. Defense counsel admitted that no evidence showed M.M.’s active involvement 

in gangs, but, instead, she was a gang associate. The court sustained the prosecutor’s 

unspecific objection to this evidence. 

Defense counsel asked to make a record. The following exchange occurred:
24.

“[DEFENSE COUNSEL]: Here, the testimony of gang expert 

Cardoza will be that my client is not a gang member, but that she’s an 

associate, and that she’s an associate because of her son. She associates 

with gangs because of her son. Here, [M.M.] is guilty of that same thing. 

She associates with gangs because her sons are in gangs.

“THE COURT: Okay. The witness is not on trial, [defense 

counsel]. Objection’s sustained.” 

A short time later, defense counsel noted to the court that M.M.’s involvement or 

association in gangs would arise when Cardoza (or possibly other witnesses) testified. 

According to defense counsel, M.M.’s name was in a police report and she was 

mentioned in a gang incident. Defense counsel stated that M.M. was contacted because 

her children had a “connection with Southern gangs.” The court stated it would deal with 

that issue if and when it occurred. The prosecutor asked the court to admonish the 

defense not to ask questions that would violate the court’s ruling. The court advised, 

“The objection was sustained regarding anything having to do with [M.M.’s] family or 

any allegations regarding her family being involved in, quote, unquote, ‘gangs’. That’s 

not before the Court. [M.M.] is not on trial, okay?” 

M.M.’s cross-examination resumed. Defense counsel later asked her if it was true 

that her house had been shot at in the past. The trial court sustained the prosecutor’s 

relevancy objection. Outside the jury’s presence, the prosecutor asked the court to make 

its ruling clear that the defense could not discuss M.M.’s gang association or any prior 

shootings. Defense counsel responded that this evidence was relevant. Defense counsel 

also stated his intent to show that M.M. “was getting substantial financial help from the 

District Attorney to remove her from that home situation.” Defense counsel argued that 

these statements were relevant to M.M.’s credibility and to show her bias. According to 

defense counsel, M.M. had a reason to possibly mislead the jury and make untruthful 

statements. Defense counsel said he was allowed to ask questions regarding bias, and 

M.M. “would clearly have a bias against [appellant].” He believed that past shootings 

were relevant to why M.M. received compensation from the district attorney. The court 
25.

stated it understood that the defense wanted to “delve into other incidents regarding 

apparently [M.M.’s] family.” The court said it had previously sustained an objection 

regarding these issues. “You are instructed not to ask questions regarding any of those 

incidents that involve this case.” 

The court noted that, during opening statements, the defense had admitted to the 

jury that the shooting incident at the victim’s house had occurred. According to the 

court, that shooting was not the issue. Instead, the issue was the alleged intimidation of 

M.M. The court stated that “anything else is not relevant. Because if we get into that, 

we’re opening the door to an immense number of issues that are not, you know, relevant. 

Okay? Simple as that.” The court instructed the parties to not go into any other incidents 

except the one shooting that occurred, and appellant’s alleged intimidation of M.M. 

On redirect, M.M. testified that daily shootings occurred at the house after 

appellant was arrested. She told the jury that she relocated with state assistance. Outside 

the jury’s presence, defense counsel argued that the prosecutor was asking about 

shootings that had occurred at M.M.’s house after the alleged intimidation and, thus, he 

should be allowed to ask about prior incidents. The court observed that it had already 

ruled on the prior incidents. Defense counsel insisted that “parity” was required. The 

prosecutor pointed out that “a trial doesn’t work to where, well, they were able to get 

something in, so I can get something in.” Instead, the Evidence Code must be followed. 

The court concluded that the “door” had not been opened regarding prior incidents. 

However, if the prosecutor delved into subsequent incidents, then the defense could as 

well. 

During cross-examination of Cardoza, defense counsel attempted to elicit 

testimony that the residence belonging to M.M.’s daughter had been shot at in the past, 

and it had experienced “gang-related problems.” The court sustained the prosecutor’s 

objections based on relevancy. Outside the presence of the jury, defense counsel 

maintained that this testimony was admissible to impeach M.M.’s credibility. Defense 
26.

counsel asserted that he should be permitted to impeach M.M.’s character with evidence 

that she associates with gang members, and she had trouble at her home because of 

gangs. The court asked if M.M. had any prior gang-related convictions. Defense counsel 

admitted that M.M. did not have any such convictions. The court denied the defense an 

opportunity to impeach M.M. The court stated it had gone over these issues before, and 

M.M. was not on trial. Defense counsel insisted that he should be permitted to ask about 

prior alleged shootings at the victim’s residence. The court asked about the relevancy. 

Defense counsel stated it was relevant because the victim’s residence was a known 

Sureño hangout, and that evidence would impeach M.M. The court said, “You are not 

getting into that.” A short time later, the prosecutor commented that any evidence 

suggesting that the victim’s house was connected with Sureños was “totally misleading” 

because the victim “was rumored to be dating an alleged person who associates with 

[Sureños]. [M.M.’s] kids aren’t [Sureños]. There is no evidence of that.” Defense 

counsel countered that M.M’s son “is doing time because he’s a Southern Gang 

member.” The court said, “You are not getting into that.” 

B. Standard of review. 

We review relevancy and Evidence Code section 352 rulings for abuse of 

discretion. (People v. Rowland (1992) 4 Cal.4th 238, 264; People v. Clair (1992) 2 

Cal.4th 629, 660.) We will not disturb a trial court’s decision on appeal unless “the court 

exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted 

in a manifest miscarriage of justice. [Citations.]’ [Citation.]” (People v. Rodrigues

(1994) 8 Cal.4th 1060, 1124–1125; see People v. Williams (1998) 17 Cal.4th 148, 162 

[abuse of discretion review asks whether ruling in question falls outside bounds of reason 

under applicable law and relevant facts].)
27.

C. Analysis.

Appellant notes that M.M. was impeached during portions of her testimony. The 

jury learned that M.M. had a prior conviction for petty theft. Cardoza testified that, when

he interviewed M.M., she never told him that appellant had used the terms “cholo[,]” 

“narco[,]” or “mafia” when M.M. reported appellant’s threats to her. The jury heard from 

Cardoza that the Sureños call themselves the “Mexican Mafia” and Norteños would not 

describe themselves as “mafia.” The jury learned that M.M. never told the police that 

appellant said all police are pigs and they would not help her. The jury also learned that 

M.M. did not call the police at the time appellant had threatened her. 

Appellant observes that M.M. was the only witness regarding appellant’s actions. 

Appellant asserts that, had the trial court permitted the introduction of evidence showing 

a possible connection between M.M. and the rival Sureño gang, the defense could have 

impeached her credibility by showing a bias. Appellant argues that the court’s 

evidentiary rulings prejudicially prevented her from confronting M.M. and from 

presenting a complete defense. 

We disagree that the trial court abused its discretion. M.M.’s credibility as a 

witness was relevant in this trial, and appellant had the right to show her potential bias. 

(Evid. Code, §§ 351, 780, subd. (f), 785.) However, the defense offered no evidence that 

M.M. had suffered prior gang-related convictions or that she was a gang member. In 

fact, the defense conceded that it had no evidence M.M. was even involved in gang 

activity. Appellant’s proposed evidence did not show or reasonably suggest that M.M. 

had an affiliation with the rival Sureño gang. In short, the defense’s proposed gangrelated evidence regarding M.M.’s family had very little probative value regarding 

M.M.’s potential bias. We reject appellant’s assertions otherwise.

A trial court may exclude otherwise admissible evidence if its probative value is 

substantially outweighed by its prejudicial effect; that is, if its admission would result in 
28.

the undue consumption of time, a danger of undue prejudice, confusion about the issues 

or the danger of misleading the jury. (Evid. Code, § 352.)

Given the minimal probative value of the evidence offered to establish M.M.’s 

bias, the trial court acted well within its discretion to exclude this evidence. We agree 

with the court’s implied finding that the defense’s proposed evidence was more 

prejudicial than probative.16 The court had valid concerns that, permitting the defense to 

introduce evidence about gang members in M.M.’s family, or how members in her family 

had a gang connection, would open the door to “an immense number of issues” that were 

ultimately not relevant. 

Under these circumstances, the court’s evidentiary rulings were not arbitrary, 

capricious or patently absurd. (See People v. Rodrigues, supra, 8 Cal.4th at pp. 1124–

1125.) Appellant’s proposed evidence about M.M.’s alleged bias would have 

necessitated an undue consumption of time but offered, at best, only marginally probative 

value regarding M.M.’s credibility. Thus, we cannot declare that the court’s evidentiary 

rulings fell outside the bounds of reason under the applicable law and the relevant facts. 

(See People v. Williams, supra, 17 Cal.4th at p. 162.) Consequently, an abuse of

discretion did not occur.17 Therefore, appellant’s assertions are without merit, and this 

claim fails.

IV. The Prosecutor Did Not Commit Misconduct During Rebuttal Argument.

Appellant claims that the prosecutor committed prejudicial misconduct during 

rebuttal closing argument. During rebuttal, the prosecutor stated that the charge in 

count 1, intimidating a witness in violation of section 136.1, subdivision (a) or (b), was 

16 The trial court was not required “to place on the record the process by which it 

concluded that the probative value of the evidence outweighed its prejudicial impact ....” 

(People v. Catlin (2001) 26 Cal.4th 81, 122.)

17 Because the trial court did not abuse its discretion, we will not address appellant’s 

arguments regarding prejudice. 
29.

violated “right out the gate” when appellant went to M.M.’s residence. The prosecutor 

noted that appellant admitted on the witness stand that she did not want M.M. to go to 

court. The defense objected that the prosecutor was misstating the law. The court 

overruled that objection. 

A. Standard of review.

To prevail on a claim of prosecutorial misconduct based on remarks to the jury, a

defendant must show a reasonable likelihood the jury understood or applied the disputed 

comments in an improper or erroneous manner. (People v. Centeno (2014) 60 Cal.4th 

659, 667 (Centeno).) We must examine the prosecutor’s entire argument and the jury 

instructions. (Ibid.)

B. Analysis.

We reject appellant’s contention that the prosecutor misstated the law. 

Appellant’s arguments fail to address the entire closing argument and the jury 

instructions.

The instructions provided to the jury in this matter tracked the statutory elements 

required to prove a violation in count 1 of section 136.1, subdivision (a) or (b). With 

CALCRIM No. 2622, the jury was instructed that, to find appellant guilty in count 1, the 

prosecution had to prove that (1) she “maliciously tried to prevent or discourage” M.M. 

“from attending or giving testimony at a preliminary hearing or jury trial”; or (2) she 

“maliciously tried to prevent or discourage” M.M. “from cooperating or providing 

information so that a Complaint/Information could be sought and prosecuted and from 

helping to prosecute that action.” The jury was further instructed that M.M. had to be a 

witness. In addition, it was required that appellant knew that she (appellant) “was trying 

to prevent or discourage” M.M. “from attending or giving testimony or causing the 

prosecution and intended to do so.” 
30.

During her initial closing argument, and prior to her disputed statements during 

rebuttal, the prosecutor reviewed with the jury the required elements in count 1. The 

prosecutor informed the jurors that she had to prove each of the requirements set forth in 

CALCRIM No. 2622, and she asserted that the elements were met. She reminded the 

jury that appellant had admitted going to M.M. and speaking with her. The prosecutor 

emphasized that appellant made gang references when attempting to dissuade M.M. from 

testifying. According to the prosecutor, appellant threatened M.M., and it was clear that 

appellant did not want M.M. to testify in court against her son, Amezcua. 

Towards the close of her opening comments to the jury, the prosecutor reviewed 

the verdict form for count 1. The prosecutor reminded the jurors that she had gone over 

the elements for that offense with them. The prosecutor argued that, based on the 

evidence, the jury should find appellant guilty in count 1. 

Finally, during her rebuttal argument (and just after she made her disputed 

statements), the prosecutor reminded the jury that appellant had gone over to M.M.’s 

residence and told her not to testify. At the end of rebuttal argument, the prosecutor 

asked the jury to find appellant guilty in count 1, and find true the special allegations. 

“Hold her responsible for her actions; the threats she made to [M.M.]; the fact that she 

knew what she was doing and took those conscious deliberate steps and actions to make 

them effective. I’m asking you to find her guilty. Thank you.” 

Based on this record, the prosecutor did not misstate the law. Instead, both the 

prosecutor and the court provided the required elements to the jury for a conviction in 

count 1. The prosecutor explained to the jury how those elements were met. It is not 

reasonably likely that the jury understood or applied the prosecutor’s isolated disputed 

comments in an improper or erroneous manner. (See Centeno, supra, 60 Cal.4th at 

p. 667.) Accordingly, prosecutorial misconduct did not occur, and this claim fails.
31.

V. Appellant’s Prior Prison Enhancements Must Be Stricken.

In a bifurcated proceeding, the trial court found true that appellant had suffered 

prior convictions for which she had served prison terms (§ 667.5, subd. (b)). As part of 

her indeterminate term, the court imposed a one-year prior prison term enhancement. In 

her determinate term involving the companion cases, the court stayed the three prior 

prison term enhancements.

We agree with the parties that all of appellant’s prior prison enhancements 

(§ 667.5, subd. (b)) must be stricken.18 In October 2019, the Governor signed into law 

Senate Bill No. 136 (2019–2020 Reg. Sess.) (Senate Bill 136). (People v. Lopez (2019) 

42 Cal.App.5th 337, 340.) This amended section 667.5, subdivision (b), which deals with 

prior prison enhancements. Following the amendment, prior prison enhancements only 

occur if the prior prison term was for a sexually violent offense as defined in Welfare and 

Institutions Code section 6600, subdivision (b). (People v. Lopez, supra, 42 Cal.App.5th 

at pp. 340–341.)

We agree with the parties that none of appellant’s prior prison terms were for 

sexually violent offenses. We also agree that this amendment applies retroactively to 

appellant because her case is not yet final. As such, appellant benefits from Senate 

Bill 136. Thus, we remand this matter for the trial court to strike the enhancements under 

section 667.5, subdivision (b), and to resentence her in case number PCF335314. As we 

explain below, however, appellant’s plea agreement in the companion cases must be 

vacated because the stipulated sentence can no longer be imposed.

18 Respondent initially asserted that appellant had forfeited any challenge to the 

legality of the imposed enhancements under section 667.5, subdivision (b). In 

supplemental briefing, however, respondent conceded that appellant benefits from Senate 

Bill No. 136. As such, we need not address alleged ineffective assistance of counsel.
32.

VI. The Three-Year Enhancements Under Health and Safety Code Section 

11370.2 Must Be Stricken And The Plea Agreement Must Be Vacated.

Appellant was sentenced in two companion cases. She had entered no contest 

pleas to resolve these other matters. She received an aggregate determinate term of five 

years eight months. 

In one of the companion cases, No. PCF335313, appellant pleaded no contest to 

the possession for sale of a controlled substance in violation of Health and Safety Code 

section 11378 (count 1). She also pleaded no contest to the transportation for sale of a 

controlled substance in violation of Health and Safety Code section 11379, 

subdivision (a) (count 2). For both charges, appellant pleaded to a three-year 

enhancement under Health and Safety Code, former section 11370.2, subdivision (a). 

When appellant entered into this plea agreement, the parties noted that appellant’s 

“maximum exposure” in the companion cases would be five years eight months. 

In companion case No. PCF335313, appellant was sentenced to prison for five 

years. This was comprised of the low term of two years for transporting a controlled 

substance for sale (Health & Saf. Code, § 11379, subd. (a); count 2), along with the threeyear enhancement under Health and Safety Code, former section 11370.2, 

subdivision (a). The court stayed a 16-month sentence in count 1 for possession of a 

controlled substance for sale (Health & Saf. Code, § 11378), plus an additional three-year 

enhancement (Health & Saf. Code, former § 11370.2, subd. (a)). The court also stayed a 

one-year prior prison enhancement (§ 667.5, subd. (b)). 

In companion case No. PCF335315, appellant was sentenced to eight months in 

state prison for illegal possession of ammunition (§ 30305, subd. (a)(1)). This sentence 

was consecutive to the sentence imposed in the companion case above. 

For the present case that went to trial (case No. PCF335314), appellant was 

sentenced to seven years to life for using force or fear to intimidate M.M. (§ 136.1, 

subd. (c)(1)). The life sentence resulted because of the gang enhancement (§ 186.22, 
33.

subd. (b)(4)(C)). She also received a one-year prior prison enhancement (§ 667.5, 

subd. (b)). This sentence was consecutive to the sentence imposed in companion case 

No. PCF335315. 

While this appeal was pending, the Legislature enacted Senate Bill No. 180 

(2017–2018 Reg. Sess.) (Senate Bill 180). Senate Bill 180 became effective on 

January 1, 2018. (Stats. 2017, ch. 677, § 1.) Senate Bill 180 reduced the number of 

sentencing enhancements under Health and Safety Code section 11370.2, subdivision (a).

Under the current law, a three-year enhancement may now be imposed only for a prior 

conviction for sales of narcotics involving a minor in violation of Health and Safety Code 

section 11380. 

It is undisputed that, following Senate Bill 180, appellant no longer qualifies for 

the three-year enhancements under Health and Safety Code section 11370.2, 

subdivision (a). She asserts that, despite her plea agreement, these enhancements must be 

stricken from her sentence.19 Respondent concedes that Senate Bill 180 retroactively 

applies to appellant. Respondent, however, argues that this court should not strike 

appellant’s sentence enhancements because appellant entered into a negotiated plea 

bargain. According to respondent, the prosecution will be prejudiced if appellant is 

allowed to reduce her sentence by more than half based on an unanticipated change in the 

law. In the alternative, respondent asserts that, if the three-year enhancements are 

stricken, then the prosecution should be given an opportunity to restore the original 

19 Appellant raises ineffective assistance of counsel to the extent this claim is 

deemed forfeited. Respondent, however, does not raise forfeiture for this particular 

sentencing issue. Because we address this issue on its merits, we need not analyze any 

alleged ineffective assistance of counsel.
34.

charges and enhancements unaffected by Senate Bill 180, and proceed to trial or a new 

negotiated disposition.20

We agree with appellant that, despite the plea agreement, she benefits from Senate 

Bill 180. The general rule is that a plea bargain implicitly accounts for future changes to 

the law. (Doe v. Harris (2013) 57 Cal.4th 64, 73.) “If parties to a plea agreement want to 

insulate the agreement from future changes in the law they should specify that the 

consequences of the plea will remain fixed despite amendments to the relevant law.” 

(People v. Wright (2019) 31 Cal.App.5th 749, 756.)

Effective January 1, 2020, our Legislature enacted section 1016.8. This statute 

declares that a plea “is not knowing and intelligent” if the bargain requires a defendant to 

generally waive unknown future benefits of legislative enactments, initiatives, appellate 

decisions, or other changes in the law that may occur after the date of the plea. (§ 1016.8, 

subd. (a)(4).) Under this new law, “[a] provision of a plea bargain that requires a 

defendant to generally waive future benefits of legislative enactments, initiatives, 

appellate decisions, or other changes in the law that may retroactively apply after the date 

of the plea is void as against public policy.” (Id. at subd. (b).)

Nothing in this record demonstrates that appellant’s plea agreement required her to 

forego the right to appeal a sentencing issue. In any event, any such express waiver is 

now void in California. Consequently, we reject respondent’s assertion that, because this 

was a plea bargain, it is improper to strike the contested enhancements. 

Other courts faced with a similar situation have remanded the matter for 

resentencing, provided that the aggregate term does not exceed the stipulated sentence. 

(See People v. Wright, supra, 31 Cal.App.5th at p. 756; People v. Calderon (1993) 20 

Cal.App.4th 82, 88 [“[i]t is perfectly proper for [the appellate] court to remand for a 

20 Respondent made these arguments before the parties filed supplemental briefing 

regarding Senate Bill 136. Following Senate Bill 136 and Senate Bill 180, there are no 

longer any sentence enhancements involved in the companion cases. 
35.

complete resentencing after finding an error with respect to part of a sentence”]; People 

v. Castaneda (1999) 75 Cal.App.4th 611, 614 [remand for resentencing proper where 

original sentence contained unauthorized enhancement].)

At first glance, it would appear appropriate for the trial court to resentence 

appellant in the companion cases so long as the aggregate term does not exceed the 

stipulated sentence. At sentencing, both the court and the prosecutor noted that, if the 

three-year enhancement under Health and Safety Code section 11370.2 was reversed in 

companion case No. PCF335313, the stipulated sentence was still reachable. The court 

specifically stated that, if this three-year enhancement was somehow inappropriate, “my 

intent is to somehow fashion a term that would be consistent with the total term of [five] 

years, [eight] months for [the] determinate term if that issue comes up again.” However, 

because of Senate Bill 136 and Senate Bill 180, the parties’ stipulated sentence of five 

years eight months can no longer be imposed.21

In her reply brief, appellant originally took the position that the plea agreement 

should not be set aside, and she asserted that Harris v. Superior Court (2016) 1 Cal.5th 

984 (Harris) controlled. We disagree. The Harris court held that the People were not 

entitled to set aside a plea agreement when the defendant sought to have his sentence 

recalled under Proposition 47. (Harris, supra, at p. 993.) We agree with respondent that 

Harris is distinguishable. Appellant’s sentence has not been reduced because of 

Proposition 47. Instead, because of Senate Bill 136 and Senate Bill 180, the aggregate 

sentence which the parties negotiated can no longer be imposed.

21 Without the enhancements, the maximum sentence appellant could receive in the 

companion cases is five years four months. This is based on an upper term of four years 

for violation of Health and Safety Code section 11379, subdivision (a); a consecutive 

one-third the middle term of eight months for violation of Health and Safety Code section 

11378; and a consecutive one-third the middle term of eight months for illegal possession 

of ammunition (§§ 30305, subd. (a)(1), 1170, subd. (h)(1)). This assumes that the 

sentence for the second violation under the Health and Safety Code must not be stayed 

under section 654.
36.

In her supplemental opening brief, appellant concedes that, if her plea agreement 

is deemed invalid because the one-year prior prison enhancements are stricken, then this 

matter should be remanded for resentencing in conformance with the prior stipulated 

sentence. In the alternative, she contends that she should be allowed to withdraw her plea 

and proceed to trial in the companion cases. 

Contract principles are applied regarding agreements between the prosecution and 

a criminal defendant. (See People v. Paredes (2008) 160 Cal.App.4th 496, 506–507 

[plea agreement].) A promise that is part of the inducement or consideration must be 

fulfilled in order to have a valid agreement. (Id. at p. 507.) When the agreement cannot 

be fulfilled, the parties should be returned to their original positions. (People v. Superior 

Court (Sanchez) (2014) 223 Cal.App.4th 567, 577.)

In light of Senate Bill 136 and Senate Bill 180, it is impossible to resentence 

appellant in compliance with the stipulated sentence. As such, the plea agreement cannot 

be fulfilled. Thus, we agree with appellant that she should be allowed to withdraw her 

pleas in the companion cases. Accordingly, we remand this matter for the trial court to 

vacate the plea bargain in the companion cases, and to allow appellant to withdraw her no 

contest pleas. The court shall conduct further proceedings as necessary.

DISPOSITION

Appellant’s sentence is vacated and this matter is remanded for further 

proceedings as follows:

For case Nos. PCF335313 and PCF335315

In case Nos. PCF335313 and PCF335315, the stipulated sentence can no longer be 

imposed in light of Senate Bill 136 and Senate Bill 180. The trial court shall vacate the 

plea bargain and allow appellant to withdraw her no contest pleas. The court shall 

conduct further proceedings as necessary.
37.

For case No. PCF335314

In case No. PCF335314, the jury’s true finding regarding the gang enhancement is 

reversed. After the filing of the remittitur in the trial court, the People shall have 30 days 

in which to file a written election to retry appellant on the gang enhancement allegation. 

If they do not timely file such an election and/or do not bring appellant to retrial within 

the time set forth in section 1382, subdivision (a)(2)—60 days unless waived by 

appellant—the trial court shall proceed to resentence appellant. When appellant is

resentenced, the court shall strike the enhancement imposed under section 667.5, 

subdivision (b). Following resentencing, the court shall forward a new abstract of 

judgment to the appropriate authorities.

In all other respects, appellant’s judgment is affirmed.

LEVY, Acting P. J.

WE CONCUR:

POOCHIGIAN, J.

SNAUFFER, J.