Filed 4/12/22 P. v. Guillen CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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

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 This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

STEVEN GUILLEN,

Defendant and Appellant.

F079524

(Super. Ct. No. VCF361107)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Tulare County. Gary L. 

Paden, Judge.

Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Gerald Engler, Deputy 

Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and 

Galen N. Farris, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

* Before Levy, Acting P. J., Peña, J. and Meehan, J.
2.

Following a jury trial, defendant Steven Guillen, was found guilty of attempted 

voluntary manslaughter. The same jury also found true allegations he committed the 

crime to benefit a street gang, caused great bodily injury, and personally used a deadly 

weapon. In his appeal, defendant initially challenged the evidence supporting the 

conclusion the crime was committed for the benefit of a street gang. Defendant also 

challenged the use of a prior prison term enhancement and various fines and fees imposed 

by the court. Due to recent legislative changes, defendant now contends he is entitled to 

a new trial on the street gang enhancement and a new sentence. The Attorney General 

agrees these changes require defendant be retried and resentenced, and we agree. We, 

therefore, vacate the sentence imposed and remand for further proceedings. 

PROCEDURAL SUMMARY

In an information filed on June 8, 2018, defendant was charged with attempted 

murder (count 1; Pen. Code,

1 §§ 664, 187, subd. (a)). The information also included 

several special allegations (the crime benefitted a street gang (§ 186.22, subd. (b)(1)(C)),

gang related/potential life sentence (§ 186.22, subd. (b)(5)), defendant caused great 

bodily injury (§ 12022.7, subd. (a)), used a deadly weapon (§ 12022, subd. (b)(1)), 

suffered two prior “strike” convictions (§§ 1170.12, subds. (a)–(i), 667, subds. (b)–(i)), 

suffered a prior serious felony conviction (§ 667, subd. (a)(1)), and suffered a prior prison 

term (§ 667.5, subd. (b)). 

On May 28, 2019, the jury found defendant not guilty of attempted murder, but 

guilty of the lesser included offense of attempted voluntary manslaughter (§ 192). The 

jury also found true the street gang allegation, as well as the allegations defendant caused 

great bodily injury and used a deadly weapon. Following a bifurcated proceeding, the 

1 Unless otherwise specified, all further statutory references will be to the Penal 

Code.
3.

trial court found defendant suffered two prior strike convictions, two prior serious felony 

convictions, and served one prior prison term. 

On June 25, 2019, after striking one prior “strike” offense and a prior serious 

felony conviction, the trial court sentenced defendant to an aggregate term of 30 years in 

state prison, as follows: 11 years for attempted voluntary manslaughter, one-half the 

upper term doubled under the “Three Strikes Law”; 10 years consecutive for the gang 

enhancement; three years consecutive for the great bodily injury enhancement; one year 

consecutive for the use of a deadly weapon; and an additional five years consecutive for 

the prior serious felony conviction. An additional enhancement for a prior prison term 

was imposed and stayed. Various fines and court fees were also imposed. 

FACTUAL SUMMARY

Because this appeal does not challenge the jury’s findings on attempted 

manslaughter, or two of the enhancements the jury found true, this summary will focus 

on the facts addressing whether the crime was committed for the benefit of a street gang. 

On January 13, 2018, after several days of using methamphetamines and 

marijuana, A.S. spent the day sleeping on a couch in an apartment in Visalia. Around 

6:00 p.m., A.S. was awakened when a group entered the apartment. After A.S.

commented everyone should be quiet, defendant, who was part of the group, told A.S. not 

to disrespect him, and that, “this is the Northern Rider gang. They call me Lifer for a 

reason.” Defendant then proceeded to stab A.S. approximately three or four times. 

G.T., who was part of the group that entered the apartment, testified he was aware 

defendant was a member of the Northern Rider gang, and that he was known as “Lifer.” 

G.T. admitted during his testimony he was hesitant to testify about the confrontation 

because one day earlier defendant’s brother called him a “snitch” while in the hallway of 

the courthouse, putting him in danger with the gang. 

Additional evidence was introduced to support the allegation the attack on A.S.

was done to benefit a criminal street gang. In 2014, Kevin Renard was a correctional 
4.

deputy at a Tulare County pretrial facility. On July 7, 2014, while conducting a routine 

check of jail cells, Renard noticed defendant with blood splattered on his face. Defendant 

and A.S. shared a cell at this facility at that time.

2

 Renard testified he understood the 

altercation between defendant and A.S. was about the cleanliness of their cell, which A.S. 

testified is a rule the Norteño gang enforces. Apparently, the altercation started after A.S.

told defendant to clean up the cell. A.S. admitted in his testimony that he and defendant 

did not get along. 

Michael Lombardo, an officer with the Visalia Police Department, offered 

testimony as a gang expert. Lombardo testified the Northern Riders was originally a 

subset of the Nuestra Familia gang, that eventually broke away because of their desire not 

to be obligated to pay “taxes”3to the larger gang and abide by their rules. Northern 

Riders is considered a “drop-out” gang that recruits mostly individuals who no longer 

want to be part of Nuestra Familia, or other highly structured gangs. Lombardo testified 

the Northern Riders have no specific territory. They are not considered a subset of any 

other gang and have no subsets within their own gang. They consider the entirety of 

California their territory. 

Responding to a question about the types of criminal activity Northern Riders 

engage in, Lombardo testified their primary crimes involve identity theft, gun possession, 

weapon possession, assault, and narcotics possession for sale. Lombardo then testified 

about three different “predicate” crimes committed by Northern Riders in various parts of 

California in 2015 and 2016. The first crime Lombardo mentioned was an assault 

committed by a Northern Rider in 2016 in Santa Rosa County. The second crime 

involved the unlawful possession of a firearm by a felon, committed by another Northern 

2 During his testimony, A.S. stated he once shared a cell with defendant while they 

were both active members of the Norteño gang. There is no confirmation in the record 

that defendant was ever a formal party of the Norteño gang.

3 Defined as a portion of proceeds from criminal activity. 
5.

Rider in Tulare County in 2015. The third crime discussed by Lombardo involved an 

attempted murder by yet another Northern Rider committed in Tulare County in 2016. 

Lombardo testified these crimes were consistent with the list of primary crimes usually 

committed by Northern Riders’s gang members, and that each crime was committed by 

an active Northern Riders gang member. 

Lombardo also explained how he concluded defendant was a member of Northern 

Riders. His testimony addressed defendant’s tattoo, nickname, and his possession of 

paperwork related to the gang. Lombardo earlier testified that many Northern Riders 

have an upside down Playboy bunny tattoo with a star that appears to be cracked or 

falling. Defendant had such a tattoo. Lombardo also cited the fact defendant admitted 

membership in the Northern Riders while in a correctional facility. 

The testimony then turned to the question of whether the crime committed by 

defendant “benefit[ted]” the Northern Riders gang. Lombardo offered the following 

testimony on this question:

“This is Northern Rider gang. By yelling that, he’s telling everybody [i]n 

earshot why he’s doing that, who he’s doing it for, to demand respect for 

himself and the gang. [¶] ... [¶] It instills fear not only to the public, but 

other gang members specifically, like the Nortenos.” 

Lombardo explained this type of statement benefits the gang because it serves as a 

warning not to provide testimony against the gang member, and further bolsters the 

reputation of the gang member. 

The Defense

Defendant chose to testify on his own behalf. Defendant denied being a current 

member of the Northern Riders. He also explained that his tattoo of a Playboy bunny 

was acquired while he was in prison as a favor to a friend who was learning how to create 

tattoos. Defendant also denied identifying himself as a Northern Rider that night in the 

apartment, and claimed A.S. tried to rob him, which led to the confrontation. 
6.

The defense provided its own expert on gangs, Daniel Longoria, a former gang 

member. Longoria testified that drop-out groups, like the Northern Riders, should not be 

considered gangs. Longoria explained this type of group did not have the hierarchy and 

structure needed to be considered a gang. Members of the Northern Riders would also 

not commit crimes for the benefit of the group, but only for their own benefit. 

Longoria did not believe defendant was an active member of the Northern Riders 

at the time of the incident in this case. Longoria also rejected the idea that the three 

crimes the prosecution presented as “predicate” crimes had any connection to defendant. 

The defendants in those cases did not know defendant, and the defendants in those cases 

were not charged with street gang enhancements. 

DISCUSSION

Again, defendant originally claimed the evidence did not support the jury’s finding 

on the street gang allegation, violating his federal and state constitutional rights. 

Alternatively, defendant argued both the trial court and his trial counsel erred by not 

providing or seeking a more detailed instruction to the jury on the street gang allegation. 

With respect to his sentence, defendant challenged the imposition (though stayed) of an 

enhancement for serving a prior prison term because of recent legislative changes, and 

further challenged the imposition of various fines and fees because no finding was made 

on his ability to pay. 

Recent legislative changes have rendered most, if not all of these claims moot. 

I. Assembly Bill No. 333 - Criminal Street Gang Enhancement

While this appeal was pending, Assembly Bill No. 333 (2021−2022 Reg. Sess.), 

(Assembly Bill 333) was enacted amending section 186.22. This amendment increased 

the threshold for establishing a crime was committed for the benefit of a “criminal street 

gang.” (See People v. Rodriguez (2022) 75 Cal.App.5th 816, 822−823.) For instance, 

the prosecution must now provide evidence that the “benefit” to the gang goes beyond 
7.

merely protecting or enhancing the reputation of the street gang. (§ 186.22, subd. (g).) 

(Stats. 2021, ch. 699, §§ 1–5, eff. Jan. 1, 2022.)

Because defendant’s judgment was not final on January 1, 2022, when these 

changes went into effect, defendant will receive the benefit of any changes that have the 

potential of reducing his punishment. 

“[A]bsent evidence to the contrary, [we presume] the Legislature intended 

amendments to statutes that reduce punishment for a particular crime to 

apply to all whose judgments are not yet final on the amendments’

operative date. [Citations.] This principle also applies when an 

enhancement has been amended to redefine to an appellant’s benefit the 

conduct subject to the enhancement.” (People v. Lopez (2021) 73 

Cal.App.5th 327, 344, citing In re Estrada (1965) 63 Cal.2d 740, 744–746.)

While we conclude the gang-related enhancement must be vacated, we also believe this 

matter must be remanded to the trial court, providing the prosecution the opportunity to 

decide whether to retry defendant under the newly amended version of section 186.22. 

 A. Substantial Evidence Supported the Criminal Street Gang 

Enhancement at the Time of Trial

While double jeopardy forbids retrial after a reversal due to insufficient evidence 

supporting the verdict, double jeopardy is not implicated when the prosecution makes its 

case under the law as it existed at the time of trial. (In re D.N. (2018) 19 Cal.App.5th 

898, 902.) However, where “evidence is not introduced at trial because the law at that 

time would have rendered it irrelevant, the remand to prove that element is proper and the 

reviewing court does not treat the issue as one of sufficiency of the evidence.” (People v. 

Figueroa (1993) 20 Cal.App.4th 65, 72.) As explained below, the prosecutor provided 

sufficient evidence to support the criminal street gang enhancement based upon the law 

as it stood at the time of defendant’s trial. 

1. Applicable Law

When defendant was tried, the prosecution was required to show that the relevant 

crime was committed “ ‘for the benefit of, at the direction of, or in association with’ ” a 
8.

criminal street gang. (People v. Gardeley (1996) 14 Cal.4th 605, 609–610.) When 

focusing on the specific street gang the defendant was trying to benefit, the prosecution 

had to also show the gang previously committed primary offenses or predicate offenses, 

that were consistent with the offense the defendant committed. (People v. Prunty (2015) 

62 Cal.4th 59, 81.) A gang committed these primary activities or predicate offenses 

when its members participated in two or more of the criminal offenses listed in 

section 186.22, “within a certain time frame and ‘on separate occasions, or by two or 

more persons.’ ” (People v. Zermeno (1999) 21 Cal.4th 927, 930.) The gang or “group” 

requirement had to be satisfied with evidence showing more than three people shared a 

“common name or common identifying sign or symbol.” (§ 186.22, subd. (f).) 

Moreover, the prosecution’s evidence had to allow a jury to infer that the group the 

defendant sought to benefit, and the group the prosecution sought to prove existed, “are 

one and the same.” (Prunty, supra, at p. 75.) Expert opinion testimony on whether a 

particular act of criminal conduct benefited a gang was not only permissible but could 

support a gang enhancement. (People v. Franklin (2016) 248 Cal.App.4th 938, 948–

949.)

When considering whether a conviction is supported by the evidence, this court 

must review the entire record to determine whether any rational trier of fact could find 

support for the essential elements of the crime beyond a reasonable doubt. (People v. 

Zamudio (2008) 43 Cal.4th 327, 357.) The evidence must be “reasonable, credible, and 

of solid value—such that a reasonable trier of fact could find the defendant guilty beyond 

a reasonable doubt.” (Ibid.) Therefore, this court must review the evidence in a manner 

that favors the prosecution. (People v. Wahidi (2013) 222 Cal.App.4th 802, 806–807,

citing Zamudio, at p. 357.) We look for substantial evidence, we do not consider 

conflicts in the evidence or weigh the strength of that evidence. (Wahidi, at p. 806.) A 

reversal based on insufficient evidence is not warranted unless there is no basis for 

concluding sufficient substantial evidence supports the jury’s verdict. (Ibid.) 
9.

2. Analysis

The evidence presented at trial supports the conclusion defendant was a member 

of the Northern Riders, as the law stood at the time. Eyewitness testimony recounted 

how defendant announced his connection to the Northern Riders before stabbing A.S. 

The prosecution’s expert, Lombardo, also offered his opinion, based on his experience 

and knowledge about various northern California gangs, that defendant was a member of 

the Northern Riders. 

On the issue of whether the crime was committed to benefit the Northern Riders, 

Lombardo testified when defendant told everyone he is “Northern Rider[s],” just before 

attacking A.S., “he’s telling everybody [i]n earshot why he’s doing that, who he’s doing 

it for, to demand respect for himself and the gang.” According to Lombardo, these 

statements are made to instill fear in the public and potentially to any witness who might 

consider testifying against gang members in the future. Such statements might also 

bolster the respect an individual might have within the gang.4 There is also evidence 

defendant may have considered A.S. a rival gang member based on their interaction 

while sharing a jail cell in 2014. Testimony from Lombardo suggested attacking a rival 

gang member was good for the gang as well as the individual who was the aggressor in 

the attack. 

Lombardo also explained the organizational structure of the Northern Riders. 

Specifically, the group had a structure that was different from other northern California 

gangs, because it incorporated mentoring potential members and requiring a unanimous 

4 Amendments to section 186.22, subdivision (g), now require that a “benefit” be 

more than reputational. The evidence supporting “benefit” should now address 

“retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a 

potential current or previous witness or informant.”
10.

vote for membership. Lombardo did not believe there were any subsets or cliques within 

the gang, and all those who considered themselves members of the Northern Riders 

throughout California, were members of the same gang. This was important because the 

evidence offered to establish the existence of predicate offenses committed by a member 

of the Northern Riders were committed by members of the same group and not by any 

subsets or cliques, even though those crimes were committed in different cities or 

regions.5 

Lombardo also testified that members of the Northern Riders often had tattoos that 

looked like an upside down Playboy bunny with a star. The star often had cracks or 

appeared to be falling. This was apparently in reference to their break away from the 

Norteño gang and its members who used similar stars in their tattoos. During his own 

testimony, defendant admitted having a tattoo of a Playboy bunny with a star. 

Again, we presume every fact supporting what the trier of fact could reasonably 

deduce from the evidence. (People v. Albillar (2010) 51 Cal.4th 47, 60.) Reversal of a 

judgment is not warranted simply because the circumstances might also reasonably lead 

to a contrary finding. (People v. Lindberg (2008) 45 Cal.4th 1, 27.) “A reviewing court 

neither reweighs evidence nor reevaluates a witness’s credibility.” (Ibid.) 

Based on the version of section 186.22 that existed at the time defendant was 

convicted, this evidence met the substantial evidence test. Because substantial evidence 

supported the jury’s finding on this enhancement at the time of trial, the prosecution is 

not prohibited from retrying this portion of the case using the newly amended version of 

section 186.22. 

II. Senate Bill No. 136 - Prior Prison Term Enhancement

5 “The evidence that these gang members individually engaged in a pattern of 

criminal gang activity was sufficient at the time of trial to meet the requirements of

section 186.22 ....” (People v. Lopez, supra, 73 Cal.App.5th at pp. 344−345.)
11.

While this appeal was pending, Senate Bill No. 136 (2019−2020 Reg. Sess.)

(Senate Bill 136), was enacted amending section 667.5, subdivision (b) to limit prior 

prison term enhancements to prior terms that were served for a sexually violent offense, 

as defined by Welfare and Institutions Code section 6600, subdivision (b). (§ 667.5, 

subd. (b).) (Stats. 2019, ch. 590, § 1, eff. Jan. 1, 2020.) Defendant contends Senate 

Bill 136 applies retroactively to him and requires that the enhancement for a prior prison 

term be stricken. Again, the People concede, and we agree.

The trial court found defendant had been convicted of a robbery in March 2015. 

The court imposed, then stayed, a one-year enhancement under section 667.5, subdivision 

(b), as it existed at the time of sentencing. This prior conviction can no longer be used to 

enhance defendant’s sentence when he is resentenced in this case. (See People v. 

Gastelum (2020) 45 Cal.App.5th 757, 772.) 

III. Defendant’s Ability to Pay Fines

Because this matter must be remanded under the full resentencing rule (People v. 

Buycks (2018) 5 Cal.5th 857, 893), defendant’s challenge to the fines and fees imposed, 

advanced pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157 and related cases, is

moot. We will, thus, not consider those claims here. 

DISPOSITION

Defendant’s sentence is vacated, and this case is remanded for resentencing. The 

prosecution may elect to retry the section 186.22 gang enhancement, following changes 

made by Assembly Bill 333. When defendant is resentenced, the trial court can no longer 

rely on a prior prison term to enhance the sentence if it does not involve a sexually 

violent offense, as is now required by section 667.5, subdivision (b), as amended by 

Senate Bill 136. Following resentencing, the court shall forward an amended abstract of 

judgment to the appropriate entities. In all other respects, defendant’s judgment is 

affirmed.