IN THE SUPREME COURT OF 

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

ROBERT COOPER,

Defendant and Appellant.

S273134

Second Appellate District, Division Six

B304490

Los Angeles County Superior Court

TA140718

May 25, 2023

Justice Groban authored the opinion of the Court, in which 

Chief Justice Guerrero and Justices Corrigan, Liu, Kruger, 

Jenkins, and Evans concurred.
1

PEOPLE v. COOPER

S273134

Opinion of the Court by Groban, J.

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

Bill 333), effective January 1, 2022, amended the substantive 

offense of active participation “in a criminal street gang” as well 

as the sentencing enhancement available for a felony committed

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

criminal street gang, with the specific intent to promote,

further, or assist in criminal conduct by gang members.” (Stats. 

2021, ch. 699, § 3; Pen Code, § 186.22, subds. (a), (b)(1).)1 Among 

other changes, Assembly Bill 333 now requires that, in order to 

demonstrate a pattern of criminal gang activity for the purpose 

of establishing a criminal street gang, the prosecution must 

prove that the two predicate offenses “commonly benefited a 

criminal street gang, and the common benefit from the offenses 

is more than reputational.” (§ 186.22, subd. (e)(1).)2 

1 All further unspecified statutory references are to the 

Penal Code.

2

In order to establish that a gang is in fact a criminal street

gang within the meaning of the California Street Terrorism 

Enforcement and Prevention Act (STEP Act), the prosecution 

must prove that gang members “collectively engage in, or have 

engaged in, a pattern of criminal gang activity.” (§ 186.22, subd. 

(f).) We refer to the offenses that are used to establish “a pattern 

of criminal gang activity” under the STEP Act as predicate 

offenses. (§ 186.20 et seq.; see People v. Valencia (2021) 

11 Cal.5th 818, 829.)
PEOPLE v. COOPER

Opinion of the Court by Groban, J.

2

Defendant Robert Cooper was convicted of first degree 

murder (§ 187, subd. (a)) with gang (§ 186.22, subd. (b)(1)(C)) 

and firearm enhancements (§§ 186.22, subd. (b), 12022.53, 

subds. (b)–(e)), and a prior strike conviction (§§ 667, subds. (b)–

(i), 1170.12, subds. (a)–(d)). We granted review in this case to 

determine whether any of Cooper’s sentencing enhancements 

must be vacated due to this recent statutory change to section 

186.22.

3

 The parties as well as the Court of Appeal below all 

agree that Cooper’s jury was instructed under the prior law, that 

the new requirements in section 186.22 apply retroactively to 

Cooper’s case on appeal under In re Estrada (1965) 63 Cal.2d 

740, and that the prejudice from the instructional error is 

assessed under Chapman v. California (1967) 386 U.S. 18 

(Chapman). (See People v. Tran (2022) 13 Cal.5th 1169, 1207

[the rule of Estrada applies to Assem. Bill 333’s changes to §

186.22 and any instructional error resulting from the change in 

law is assessed under Chapman].) Applying the Chapman

standard, we hold that the failure to instruct that the alleged 

predicate offenses must have “commonly benefited” the gang in 

a “more than reputational” manner (§ 186.22, subd. (e)(1)) was 

not harmless beyond a reasonable doubt. Here, the record

contains evidence that could rationally lead to a contrary finding

regarding whether the gang as a whole (as opposed to the 

predicate offenders themselves) benefited from the offenses in a 

nonreputational manner. We reverse Cooper’s gang 

enhancement, as well as the firearm enhancement that is 

contingent upon the gang enhancement, and remand the case to 

3 Cooper’s first degree murder conviction is not at issue in 

this appeal.
PEOPLE v. COOPER

Opinion of the Court by Groban, J.

3

the Court of Appeal with instructions to remand the case to the 

superior court for any retrial of the same.

I. Background

Cooper was a member of the Lueders Park gang.4 Nicos 

Mathis and Monique Peterson were members of a rival gang, 

Mob Piru. On October 24, 2012, the three were all in Gonzales 

Park in Compton with a large group of people. Mathis 

challenged Cooper to a fight, but Cooper declined and walked 

away.

About 20 minutes later, a Buick drove into the park. 

Peterson recognized the two occupants of the Buick as Lueders 

Park gang members and urged Mathis to leave. Mathis refused

to leave because he was waiting for a fellow gang member

nicknamed “Hit Man.” Eventually Mathis drove away looking 

for Hit Man with Peterson and two other friends. Mathis pulled 

over on the street where Hit Man had told him to meet. Peterson 

heard gunshots, and told Mathis to drive away, but they 

remained parked.

Peterson testified that she turned and saw two cars pull 

up, the Buick and an Infiniti. Cooper, “Mousey,” and “Honcho” 

were in the Infiniti. She saw two guns fire toward the vehicle 

she was in. One of the guns was fired from the front passenger 

side of the Infiniti and the other from the rear passenger side. 

The Buick crashed into Mathis’s car but drove away. Mathis 

was shot once in the head and four times in the body and later 

died of his wounds in the hospital.

4 The brief summary of facts is drawn from the Court of 

Appeal’s opinion.
PEOPLE v. COOPER

Opinion of the Court by Groban, J.

4

An information charged Cooper with conspiracy to commit 

murder (§ 182, subd. (a)(1)); the murder of Mathis (§ 187, subd. 

(a)); and three counts of attempted murder (§§ 664, 187, subd. 

(a)). Each count also alleged firearm allegations (§ 12022.53, 

subds. (b), (c), (d), & (e)(1)), and that the crimes were committed 

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

gang (§ 186.22, subd. (b)(1)(C)). The information also alleged a

prior strike conviction (§§ 667, subds. (b)–(i), 1170.12, subds. 

(a)–(d)).

A jury initially acquitted Cooper of three counts of 

attempted murder (§§ 664, 187, subd. (a)), but hung on a murder 

count (§ 187, subd. (a)) and conspiracy to commit murder count

(§ 182, subd. (a)(1)). A retrial was held on the murder count 

only, with the gang (§ 186.22, subd. (b)(1)) and firearm

enhancements alleged as before (§ 12022.53, subds. (b)–(e)). 

The jury then convicted Cooper of first degree murder (§ 187, 

subd. (a)) and found true the gang (§ 186.22, subd. (b)(1)) and 

firearm enhancements (§ 12022.53, subds. (b)–(e)). The trial 

court accepted Cooper’s admission that he had suffered a prior 

strike conviction. (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d).) 

The trial court sentenced Cooper to 75 years to life in prison, 

consisting of 25 years to life for the murder, doubled by the 

strike, plus a consecutive 25 years to life for the firearm 

enhancement pursuant to section 12022.53, subdivisions (d) and 

(e)(1). The trial court stayed the remaining gun and gang 

enhancements.

At the retrial, the jury was instructed on the gang 

enhancement pursuant to the former section 186.22 with 

CALCRIM No. 1401. The jury was instructed that to prove the 

gang enhancement, the prosecution must prove the “defendant 

committed or attempted to commit the crime for the benefit of, 
PEOPLE v. COOPER

Opinion of the Court by Groban, J.

5

at the direction of, or in association with a criminal street gang; 

and [¶] That the defendant intended to assist, further, or 

promote criminal conduct by gang members.” The jury was 

instructed that the definition of a “criminal street gang” 

requires a “pattern of gang activity” and “as one or more of its 

primary activities,” the commission of the predicate offenses of 

robbery and the sales of narcotics. To establish a “pattern of 

gang activity,” the prosecution must prove “at least one of” the 

predicate robbery and the sales of narcotics offenses and that 

the offenses “were committed on separate occasions or were 

personally committed by two or more persons.” Pursuant to the 

former law, the jury was instructed that the predicate offenses 

“if any, that establish a pattern of criminal gang activity, need 

not be gang-related.” The jury was not instructed, as Assembly 

Bill 333 now requires, that the predicate offenses, if any, must 

have “commonly benefited [the] criminal street gang, and the 

common benefit from the offenses is more than reputational.” (§ 

186.22, subd. (e)(1).)

The records of conviction and gang expert testimony 

establishing the predicate offenses at the retrial show that two 

Lueders Park gang members committed one crime each: Ricky 

Lee Vaughn committed a robbery in violation of section 211 in 

2012 and Donald Wayne Mahan sold narcotics in violation of 

Health and Safety Code section 11351.5 in 2012.

5 The gang 

expert testified that both Vaughn and Mahan are Lueders Park 

gang members. The gang expert had contacted Vaughn 

“numerous times” and Vaughn has “identified himself as a 

5 The Court of Appeal states this narcotics sale occurred in 

2016, but the record of conviction and gang expert testimony 

reflect it occurred in 2012.
PEOPLE v. COOPER

Opinion of the Court by Groban, J.

6

[Lueders] Park Piru gang member.” The gang expert testified 

that Mahan’s son “Doc” is “[p]robably the most senior [Lueders]

Park Piru gang member on the street right now.” He also 

testified that the Lueders Park gang claims territory in 

Compton and its primary activities are “theft, burglary, robbery, 

vehicle theft, narcotic sales, narcotic possession, weapons sales, 

weapons possession, assault to murder.” The gang expert

explained that “most gang members play that role of a gang 

member and act hard. But there’s a specific group within each 

specific gang that are really your most active guys.” He added: 

“They’re out there going on missions, they’re doing shootings, 

they’re doing robberies, they function to do gang banging things. 

And that gets that gang’s name out there.” The gang expert 

further testified that through the generations, Lueders Park has 

had “different groups that do robberies, shootings, run girls, 

[and] sell narcotics.”

In response to a hypothetical question, the gang expert

testified to how the underlying murder benefited the gang, but 

did not testify as to how the alleged predicate offenses benefited 

the gang. The gang expert explained that a murder like the one 

in this case would benefit the gang by eliminating a rival and by 

maintaining respect, but that money is the “number one” gang 

function.

During the pendency of Cooper’s appeal, Assembly Bill

333 amended section 186.22’s definition of a “criminal street 

gang” to require proof of additional elements. As relevant here, 

in order to prove “a pattern of criminal gang activity” for the 

purpose of establishing a criminal street gang, the prosecution

must now prove both that the required predicate offenses 

“commonly benefited [the] criminal street gang” and that “the 

common benefit from the offenses is more than reputational.” 
PEOPLE v. COOPER

Opinion of the Court by Groban, J.

7

(Stats. 2021, ch. 699, § 3; § 186.22, subd. (e)(1).) Assembly Bill

333 clarifies that “Examples of a common benefit that are more 

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

gain or motivation, retaliation, targeting a perceived or actual 

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

previous witness or informant.” (Stats. 2021, ch. 699, § 3; § 

186.22, subd. (g).)6 

Based upon the evidence presented at the retrial, the 

Court of Appeal found that the absence of a jury instruction on 

the new requirement that the alleged predicate offenses must 

have “commonly benefited” the gang in a “more than 

reputational” manner (§ 186.22, subd. (e)(1)) was harmless 

beyond a reasonable doubt. The Court of Appeal reasoned that

the gang expert “testified that the offenses were committed by 

[Lueders] Park gang members and that robbery and sale of 

narcotics are some of the gang’s primary activities. The 

evidence was uncontradicted. The benefit to the gang of robbery 

and sale of narcotics is more than reputational.” (People v. 

Cooper (Jan. 14, 2022, B304490) [nonpub. opn.].) We granted 

review.

II. Discussion

Cooper argues that the Court of Appeal erred in finding 

that the lack of jury instruction on Assembly Bill 333’s new 

elements was harmless. Here, the jury was never instructed

6 Assembly Bill 333 also made several other changes to 

section 186.22 that are not at issue in this appeal. These 

changes included narrowing the definition of “criminal street 

gang” to “an ongoing, organized association or group of three or 

more persons,” whose members “collectively,” rather than just 

individually, “engage in, or have engaged in, a pattern of

criminal gang activity.” (§ 186.22, subd. (f), italics added.)
PEOPLE v. COOPER

Opinion of the Court by Groban, J.

8

that, as Assembly Bill 333 now requires, the predicate offenses 

must have “commonly benefited [the] criminal street gang, and 

the common benefit from the offenses is more than 

reputational.” (§ 186.22, subd. (e)(1).) We agree with Cooper 

and find that the absence of jury instruction on this new 

requirement was not harmless beyond a reasonable doubt.

Chapman holds “that before a federal constitutional error 

can be held harmless, the court must be able to declare a belief 

that it was harmless beyond a reasonable doubt.” (Chapman, 

supra, 386 U.S. at p. 24.) The jury instruction here implicates 

Cooper’s due process rights by lessening the prosecution’s 

burden to prove elements of the crime. (See People v. Harris 

(1994) 9 Cal.4th 407, 438 [“jury instructions in a state criminal 

trial omitting the requirement of proof of every element of a 

crime beyond a reasonable doubt are erroneous under the 

Fourteenth Amendment’s due process clause”].) The due 

process “requirement of proof beyond a reasonable doubt and the 

Sixth Amendment requirement of a jury verdict are 

interrelated.” (Sullivan v. Louisiana (1993) 508 U.S. 275, 278.) 

Chapman applies to a jury instruction that omits an element of 

an offense. (Neder v. United States (1999) 527 U.S. 1, 4.) When 

a jury instruction has omitted an element of an offense, our task

“is to determine ‘whether the record contains evidence that 

could rationally lead to a contrary finding with respect to the 

omitted element.’ ” (People v. Mil (2012) 53 Cal.4th 400, 417 

(Mil), quoting Neder, at p. 19.)

7

 

7 The Attorney General incorrectly characterizes the 

Chapman inquiry before us as asking whether the jury could 

draw a reasonable inference that the alleged predicate offenses 
PEOPLE v. COOPER

Opinion of the Court by Groban, J.

9

Since Assembly Bill 333’s new elements did not exist at 

the time of Cooper’s trial, the prosecution made no attempt to 

prove that the alleged predicate offenses provided a more than 

reputational common benefit to the gang and Cooper made no 

such concession. Instead, the records of conviction and gang 

expert testimony establishing the predicate offenses at the 

retrial merely show that two Lueders Park gang members 

committed one crime each: Ricky Vaughn committed a robbery 

in 2012 and Donald Mahan sold narcotics in 2012. The gang 

expert also testified that Lueders Park’s primary activities are 

“theft, burglary, robbery, vehicle theft, narcotic sales, narcotic 

possession, weapons sales, weapons possession, assault to 

murder.” The Attorney General suggests, and the Court of 

Appeal appears to have concluded, that crimes that have an 

inherent financial benefit and that are identified as the gang’s 

primary activities qualify as a common benefit to the gang that 

is “more than reputational” under Assembly Bill 333. (See 

People v. Cooper, supra, B304490 [“The benefit to the gang of 

robbery and sale of narcotics is more than reputational”].)

However, the record does not disclose the circumstances 

surrounding the predicate offenses and the prosecution never 

introduced any evidence about how the gang commonly 

benefited from them. While robbery and the sale of narcotics 

typically provide a financial benefit to the offender, the record 

contains evidence that could rationally lead to a contrary finding 

regarding whether the fruits of the offenses were intended to or 

commonly benefited the gang. This, however, is not the proper 

standard. As noted above, our task “is to determine ‘whether 

the record contains evidence that could rationally lead to a 

contrary finding with respect to the omitted element.’ ” (Mil, 

supra, 53 Cal.4th at p. 417.)
PEOPLE v. COOPER

Opinion of the Court by Groban, J.

10

did benefit the gang as a whole. As the Attorney General 

concedes, robbery and narcotics sales “may of course be 

committed by gang members only for personal gain (which, 

relatedly, may benefit the gang only reputationally).” Indeed,

“[n]ot every crime committed by gang members is related to a 

gang.” (People v. Albillar (2010) 51 Cal.4th 47, 60.) In this way, 

the question of whether an offense is within the gang’s primary 

activities is distinct from the question of whether a particular 

offense has “commonly benefited a criminal street gang.” 

(§ 186.22, subd. (e)(1).) A jury determination regarding the 

gang’s primary activities merely constitutes a conclusion about 

the types of activities in which a gang typically engages, 

whereas the question about a common benefit asks about how 

the specific predicate offense actually benefited the gang. (See 

People v. E.H. (2022) 75 Cal.App.5th 467, 473, 478–480 (E.H.)

[finding that though the predicate offenses included crimes that 

could, in theory, provide a monetary benefit to the gang, the 

evidence did not show that these predicate offenses actually

benefited the gang].) Furthermore, the jury here was 

specifically instructed that the predicate offenses “that establish 

a pattern of criminal gang activity[] need not be gang-related,” 

in accordance with the former law as set forth in People v. 

Gardeley (1996) 14 Cal.4th 605, 621–622, disapproved of on 

other grounds by People v. Sanchez (2016) 63 Cal.4th 665, 686, 

fn. 13. This instruction directly contradicts Assembly Bill 333’s 

new requirement that the predicate offenses “commonly 

benefited [the] criminal street gang, and the common benefit 

from the offenses is more than reputational.” (§ 186.22, subd. 

(e)(1).) Based upon the record, a jury could have reasonably 

concluded that the predicate offenses at issue were committed 

for personal gain alone.
PEOPLE v. COOPER

Opinion of the Court by Groban, J.

11

Moreover, the Attorney General’s interpretation would 

render superfluous much of the new amendment that requires 

both that predicate offenses “commonly benefited” the gang and 

that the common benefit is “more than reputational.” (§ 186.22, 

subd. (e)(1).) Section 186.22, subdivision (e)(1) lists numerous 

predicate offenses that typically involve a financial benefit to the 

offender.8 Prior to the amendments, section 186.22, 

subdivisions (e)(1) and (f), which define “pattern of criminal 

gang activity” and “a criminal street gang,” have long required 

that the gang must have “as one of its primary activities the 

commission of one or more of” the enumerated predicate 

offenses. (§ 186.22, subd. (f).) The Legislature then decided to 

amend section 186.22 to require a heightened showing both that 

the predicate offenses “commonly benefited a criminal street 

gang” and that the common benefit is “more than reputational.” 

(§ 186.22, subd. (e)(1).) If all that were required to prove a 

predicate offense is that the prosecution show that the gang 

member committed as one of the gang’s primary activities any 

one of the enumerated predicate offenses that typically involve 

a financial benefit, then the additional requirement that the 

predicate offenses also “commonly benefited a criminal street 

gang” in a “more than reputational” manner would be mere 

surplusage. Finally, such an interpretation is inconsistent with 

the legislative history indicating the Legislature was concerned 

8 Specifically, the list of predicate offenses in section 186.22, 

subdivision (e)(1) includes: robbery (§ 211 et seq.), sale or 

possession for sale of a controlled substances (Health & Saf. 

Code, § 11007), grand theft (§ 487), grand theft of a firearm or 

vehicle (§ 487, subd. (d)), burglary (§ 459), money laundering 

(§ 186.10), felony extortion (§§ 518, 520), carjacking (§ 215), sale 

of a firearm (§ 27500 et seq.), and vehicle theft (Veh. Code, 

§ 10851).
PEOPLE v. COOPER

Opinion of the Court by Groban, J.

12

with “lax” interpretations of the prior law that allowed for overly 

expansive application of gang enhancements (Stats. 2021, ch. 

699, § 2) and therefore sought to amend the law by “making the 

standards for applying a gang enhancement more rigorous.” 

(Sen. Com. on Public Safety, Analysis of Assem. Bill 333, as 

amended May 28, 2021, p. 6.)9

The Attorney General tries to save his argument by 

claiming that because Mahan was a “ ‘senior’ ” member of the 

gang and Vaughn was “a well-known” member, a reasonable 

inference is that Mahan and Vaughn were among the “most 

active” gang members committing the gang’s primary activities, 

making it in turn reasonable to infer that they committed the 

predicate offenses for the common benefit of the gang. However, 

even assuming arguendo that senior or well-known gang 

membership could possibly be evidence that predicate offenses 

commonly benefited the gang, the record does not support the 

Attorney General’s characterization of Mahan and Vaughn as 

senior or well-known members of the gang. Rather, the gang 

expert testified, when asked if he was familiar with Mahan, that 

“I know Doc, his son. Doc’s a [Lueders] Park Piru gang member. 

9 At oral argument, defense counsel acknowledged that one 

interpretation of Assembly Bill 333 is that, though the evidence 

presented here does not suffice, it is permissible, as a general 

matter, to use circumstantial evidence to prove a common 

benefit that is more than reputational. It is also worth noting 

that a financial gain is not the only way that the prosecution can 

prove a more than reputational common benefit to the gang. 

Assembly Bill 333 provides several other examples of a more 

than reputational common benefit, including, but not limited to, 

“retaliation, targeting a perceived or actual gang rival, or 

intimidation or silencing of a potential current or previous 

witness or informant.” (§ 186.22, subd. (g).)
PEOPLE v. COOPER

Opinion of the Court by Groban, J.

13

Probably the most senior [Lueders] Park Piru gang member on 

the street right now. Been a long time in prison. I think he’s 

been out maybe three or four years now. But just saw him a 

couple weeks ago. Probably there today. He sets up on 

Saunders and Bradfield and goes to sell his narcotics.” The most 

plausible read of this testimony is that the gang expert testified 

that Mahan’s son (and not Mahan himself) was “the most senior” 

Lueders Park gang member. At a minimum, this testimony does 

not allow us to conclude beyond a reasonable doubt that the 

gang expert was referring to Mahan himself. Moreover, to the 

extent the Attorney General is suggesting that we can 

determine beyond a reasonable doubt that Mahan was a senior 

gang member simply because a family member was a senior 

gang member, we reject that argument out of hand. As for Ricky 

Vaughn, though the Attorney General contends that the gang 

expert characterized him as a “well-known” gang member, the 

gang expert actually testified that “I’ve contacted Ricky 

numerous times. I’ve spoken to Ricky. He identified himself as 

a [Lueders] Park Piru gang member. I’ve taken photographs of 

him throwing up the [Lueders] Park Piru Hand sign. [¶] I’ve 

recently assisted on another case where Ricky Lee Vaughn has 

identified himself as a [Lueders] Park Piru gang member again.” 

Again, even assuming arguendo that senior or well-known gang 

membership could possibly be evidence that predicate offenses 

commonly benefited the gang, this testimony does not support 

the Attorney General’s characterization. The gang expert

testified not that Vaughn was a well-known or senior gang 

member, but simply that Vaughn was known to the gang expert 

through several prior contacts with him.

In sum, the grand total of evidence relied on by the Attorney 

General for proving that the alleged predicate offenses provided 
PEOPLE v. COOPER

Opinion of the Court by Groban, J.

14

a common benefit that is more than reputational to the gang is 

that there was a robbery and a sale of narcotics by gang 

members and that a primary activity of the gang is to commit 

robberies and the sale of narcotics. Under these circumstances, 

we cannot conclude “beyond a reasonable doubt that the error 

complained of did not contribute to the verdict obtained.” 

(Chapman, supra, 386 U.S. at p. 24.)10 

III. Disposition

For the above reasons, we reverse the Court of Appeal’s 

affirmance of Cooper’s gang enhancement.11 Since the firearm 

10 As Cooper argues, the Court of Appeal’s holding is an 

anomaly among opinions considering Assembly Bill 333 and 

which have reversed gang enhancements. (E.g., E.H., supra, 

75 Cal.App.5th at pp. 476–480; People v. Lopez (2021)

73 Cal.App.5th 327, 343–346 (Lopez); People v. Sek (2022) 

74 Cal.App.5th 657, 664–670; People v. Rodriguez (2022) 

75 Cal.App.5th 816, 822–823; People v. Vasquez (2022) 

74 Cal.App.5th 1021, 1032–1033.) In each case, the predicate 

offenses and the evidence supporting them are different and, as 

the Attorney General maintains, these decisions have 

distinguishing features. Nevertheless, though we do not here

decide the unique facts of those cases, Cooper is correct that in 

each case the Court of Appeal reversed a gang enhancement 

after the enactment of Assembly Bill 333 for a trial that occurred 

without Assembly Bill 333’s guidance. Indeed, the decision 

below is the only Court of Appeal opinion cited in the parties’ 

briefing affirming a gang enhancement after the enactment of 

Assembly Bill 333 for a trial that occurred before Assembly Bill

333 was enacted.

11 As noted above, Assembly Bill 333 also requires that gang 

members “collectively” engage in a pattern of criminal gang 

activity under section 186.22, subdivision (f). Cooper requests 

that if we do not reverse the gang enhancement based upon the 

new requirement that the predicate offenses commonly benefit 
PEOPLE v. COOPER

Opinion of the Court by Groban, J.

15

enhancement alleged under section 12022.53, subdivision (e)(1), 

is contingent on a true finding on the gang enhancement under

section 186.22, we reverse the Court of Appeal’s affirmance of 

that firearm enhancement as well, and remand the case to the 

Court of Appeal with instructions to remand the case to the 

superior court for any retrial of the same. (See Lopez, supra, 

73 Cal.App.5th at pp. 346–348; E.H., supra, 75 Cal.App.5th at 

p. 480 [“The proper remedy for this type of failure of proof —

where newly required elements were ‘never tried’ to the jury —

is to remand and give the People an opportunity to retry the 

affected charges”].)

GROBAN, J.

We Concur:

GUERRERO, C. J.

CORRIGAN, J.

LIU, J.

KRUGER, J.

JENKINS, J.

EVANS, J.

the gang in a more than reputational way, that we instead 

remand the case to the Court of Appeal so that the failure to 

instruct on the element of collective action by the gang can be 

briefed there. Cooper has also filed a motion for eventual 

remand or, alternatively, to expand the issues on review based 

upon similar reasons. Since we are reversing Cooper’s gang 

enhancement on the issue that we granted review upon, 

Cooper’s requests that we remand or expand the issues based 

upon another theory is rendered moot.
See next page for addresses and telephone numbers for counsel who 

argued in Supreme Court.

Name of Opinion People v. Cooper

__________________________________________________________

Procedural Posture (see XX below)

Original Appeal

Original Proceeding

Review Granted (published)

Review Granted (unpublished) XX NP opn. filed 1/14/22 – 2d Dist.,

Div. 6

Rehearing Granted

__________________________________________________________

Opinion No. S273134

Date Filed: May 25, 2023

__________________________________________________________

Court: Superior

County: Los Angeles

Judge: Allen Joseph Webster, Jr.

__________________________________________________________

Counsel:

Elizabeth K. Horowitz, under appointment by the Supreme Court, for 

Defendant and Appellant.

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

Attorney General, Susan Sullivan Pithey, Assistant Attorney General, 

Michael C. Keller, Idan Ivri and Charles S. Lee, Deputy Attorneys 

General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for 

publication with opinion):

Elizabeth K. Horowitz

Law Office of Elizabeth K. Horowitz, Inc.

5272 South Lewis Avenue, Suite 256

Tulsa, OK 74105

(424) 543-4710

Charles S. Lee

Deputy Attorney General

300 South Spring Street, Suite 1702

Los Angeles, CA 90013

(213) 269-6068