Filed 5/5/23 P. v. VillasenorCA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

RICARDO VILLASENOR,

Defendant and Appellant.

F082847

(Super. Ct. No. LF012047A)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. Charles R. 

Brehmer, Judge.

C. Matthew Missakian, under appointment by the Court of Appeal, for Defendant 

and Appellant.

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

General, Michael P. Farrell, Assistant Attorney General, Christopher J. Rench and Darren 

K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent. 

-ooOoo-
2.

Ricardo Villasenor was charged in counts 2, 3, and 4 with assault with a firearm 

(Pen. Code, § 245, subd. (a)(2))1; in counts 5, 6, and 7 with false imprisonment by 

violence (§ 237); in count 8 with active participation in a criminal street gang (§ 186.22, 

subd. (a)); and in count 9, with misdemeanor carrying a concealed weapon (§ 25400, 

subd. (a)(1)). It was alleged that the charged felonies were for the benefit of a criminal 

street gang (§ 186.22, subd. (b)(1)) and involved personal use of a firearm (§ 12022.5, 

subd. (a)).2 

A jury found Villasenor not guilty of the assault with a firearm charges, but guilty 

of the remaining charges and the alleged enhancements were found true. Villasenor was 

sentenced to 12 years in prison, consisting of nine years for count 5 (the middle term of 

two years, plus three years for the gang enhancement and four years for the gun 

enhancement) plus three years consecutive for count 6 (one-third the middle term of eight

months, plus one year for the gang enhancement and 16 months for the gun 

enhancement). On count 7, the trial court imposed nine years (the middle term of two

years, plus three years for the gang enhancement and four years for the firearm 

enhancement), to be served concurred with count 5. On count 8, the trial court imposed 

but stayed 6 years (the midterm of two years plus four years for the firearm 

enhancement).3 On count 9, the trial court imposed a concurrent 180 days in jail. 

On appeal, we reject Villasenor’s claims that the trial court erred when it admitted 

statements of an earlier incident in violation of Miranda4; when it denied his motion for 

1 All further statutory references are to the Penal Code unless otherwise stated. 

2 Codefendant Daniel Ulloa was charged with the same seven felonies, gang and 

gun enhancements, plus attempted murder in count 1, along with various gang and gun 

enhancements. Ulloa has filed a separate appeal (case No. F082814). 

3 The minute order is incorrect as to count 8, but is correct in the reporter’s 

transcript. 

4 Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). 
3.

mistrial; when it denied his motion to bifurcate the gang enhancements and sever the 

gang allegation from the substantive offenses; and when it did not allow the defense to 

question the immigration status of the victims. We disagree that he received ineffective 

assistance of counsel and that there was insufficient evidence of the gang enhancements 

under law as it existed at the time. We agree that the gang enhancement allegations and 

gang substantive offense must be reversed in light of newly amended law and remand to 

allow the prosecutor to retry those allegations. We also agree that remand is necessary to 

allow the trial court to use its discretion in sentencing Villasenor pursuant to newly 

amended sections 1170 and 654. We find no cumulative error and in all other respects 

affirm. 

STATEMENT OF THE FACTS

July 26, 2018, Incident at the Corral

On July 26, 2018, Luis S. and brothers Roberto H. and Juan H. went to a corral on 

Fallbrook Avenue in Arvin so that Roberto could tend to his chickens. Luis and Juan 

helped Roberto maintain and clean the area where the chickens were kept.5 After they 

finished cleaning, the three continued to talk and drink. 

Villasenor came over with one or two others from an adjacent stall in the corral 

and joined them in drinking beer. At some point, Villasenor left and returned with Ulloa. 

Villasenor showed off a firearm, which he unloaded and reloaded. The men were arm 

wrestling. Some of the men attempted to make the loser pay for more beer, but not all 

agreed to that. According to Roberto, Luis won all the matches. But after one of the 

matches, someone claimed Luis lost and owed them more beer. Luis, Roberto and Juan 

were ready to go home. Luis did not want to pay for more beer, so declined and prepared 

to leave with Roberto and Juan. 

5 There was conflicting evidence at trial as to whether the men were engaged in 

rooster fighting, which is not relevant to incident at issue. 
4.

Suddenly, Ulloa hit Luis in the jaw with a closed fist. Roberto then hit Ulloa once, 

after which Villasenor hit Roberto in the face. Roberto tried to defend himself, but 

Villasenor kept hitting him. When Luis went over to Ulloa to try to find out why he had 

hit him, Ulloa pulled out a gun and pointed it at Luis’s chest. Luis ran and hid. Ulloa ran 

out of the area. 

Roberto and Villasenor stopped fighting, and Villasenor made a phone call and 

then told Luis that Ulloa would come back to fight him. Luis, Roberto and Juan wanted 

to leave, but Villasenor stood by the exit with his gun “pointing it but lower down,” and 

told them they had to stay to fight Ulloa. 

When Ulloa returned a few minutes later, he brought Loreto Mosqueda6 with him. 

Ulloa pointed at Roberto and said, “It’s him,” and Mosqueda then started hitting Roberto 

in the face. During the fight, Ulloa moved behind Roberto and tried to shoot him in the 

back, but Luis intervened. Villasenor still had the gun in his hand and told Luis and the 

others not to get involved in the fight. Luis was told that, if he did, Ulloa would “fill 

[him] up with bullets.” 

Ulloa then turned towards Luis and pointed the gun at his chest. Luis pushed 

Ulloa’s arm down to lower the gun, but Ulloa fired the gun, missing Luis. Luis ran and 

hid. 

Within a few seconds, Ulloa pointed the gun at Roberto, who had Mosqueda on 

the ground. Roberto attempted to get Ulloa to calm down, but Ulloa shot Roberto in the 

leg, which broke the leg. Villasenor, Ulloa, and Mosqueda then fled. Roberto told his 

brother Juan to call 911, but Juan did not speak English, so Roberto then told Juan to call 

Jose Cisneros, the owner of the corral, who in turn called 911. 

6 By the time of trial, Mosqueda was deceased. 
5.

Juan showed police officers a cell phone video recording of the men arm 

wrestling.7 One of the officers, who had been a resource officer at Ulloa’s middle school 

from 2013-2017, recognized Ulloa in the video. When officers spoke to Luis after the 

incident, Luis did not know if the perpetrators were gang members, but he referred to 

them as gang members. 

Two spent .45-caliber shell casings were found on the ground in the corral area. 

Officers were provided a license plate of a vehicle associated with the suspects, 

and Villasenor was arrested at a gas station three hours after the incident. A search of 

Villasenor’s vehicle turned up a black baseball cap with “Arvin” on it, two cell phones, a 

live .40-caliber bullet, and a loaded .40-caliber pistol. 

Ulloa was arrested on October 3, 2018, by the U.S. Marshals Fugitive 

Apprehension Team. 

The Arvina Gang 

Gang expert Officer Ryan Calderon testified that the only active criminal street 

gang in Arvin is Arvina, also known as Arvina 13, Arvin 13, Arvin Poorside, and 

Poorside Locos. Calderon testified that gangs commit crimes to instill fear, which 

obstructs rivals or citizens from reporting the gang’s activity. Gang members gain 

respect by committing crimes. 

Officer Calderon described the Arvina gang as a southern Hispanic gang whose 

rivals are the northern Hispanic gangs. Arvina’s main rival is the Lamont 13 gang. 

Arvina members commonly wear dark blue, and often display the letter A and number 

13. Arvina’s primary activities include felony vandalism, felony assault, narcotic sales, 

vehicle theft, burglary, grand theft, illegal possession of firearms, assault with deadly 

weapons, attempted murder, and killings. 

7 The video was played for the jury. 
6.

Officer Calderon testified that he came into contact with Arvina members about 10

times a week, making him familiar with gang clothing, signs, tattoos, their criminal 

histories and personal lives. Calderon had personally investigated at least 100 crimes 

committed by Arvina members. 

Officer Calderon testified that a person could become an Arvina gang member by 

being “jumped in,” which involved committing a crime, or by being “born into the gang,” 

by family members already in the gang. Calderon opined that Arvina was an active 

criminal street gang at the time of the July 26, 2018, incident. 

Gang Evidence Regarding Villasenor

The prosecution presented evidence of at least 11 prior crimes and/or gatherings 

involving Arvina gang members. Only one incident, in September of 2014, involved 

Villasenor. 

On September 3, 2014, Joe Martinez, Jesse Ruiz, and Villasenor were at Alshaif 

Market (at times referred to as camel store or market). Ruiz was 14 years old at the time; 

Villasenor was 17. Martinez, who went by “Shadow” and was wearing a black baseball 

hat with the letter “A”, approached a man who had an “LA” tattoo and asked where he 

was from. A fight ensued and the male was stabbed, suffering injuries to his nose, both 

arms, left shoulder, and back.8 

Officers contacted Villasenor the following day, and he explained that a friend had 

asked the man where he was from, a fight started, and he got involved. Villasenor 

declined to name the friend. Villasenor had an “A” tattooed on his left hand, which he 

said he had gotten the previous day. Villasenor claimed not to know what the “A” meant, 

but agreed that the Arvina gang represented with the letter A. Villasenor said he was not 

affiliated with any gang, but confirmed that he was friends with Martinez. 

8 The jury was admonished that Villasenor did not possess any weapons at the time 

or stab anyone. 
7.

Villasenor allowed officers to search his cell phone. The night of the stabbing, 

“Lil Isac Wyno” had texted Villasenor that somebody had been jumped at the market. 

Villasenor responded, “We jumped him, ese, haha.” Later that night, another individual 

texted Villasenor and asked who let him “do the A.” Villasenor responded, “I put in 

work and Posadas did them for me.” In response to further inquiries, Villasenor sent 

texts indicating he, “Jay” and Martinez had “pop[ped] the fool from L.A.,” at the market. 

Officer Calderon believed Martinez and “Lil Wyno” were active members of the 

Arvina gang at the time. 

At the time of trial in this matter, Villasenor no longer had the “A” tattoo on his 

hand. When photographed before trial, he had numerous other tattoos, including a water 

tower with the letter “A” and the word “Poorside” and another tattoo with the letter “A” 

and “Poorside.” Officer Calderon believed these tattoos, and the fact that some were 

obtained after 2018, were consistent with ongoing membership in the Arvina gang. 

Officer Calderon opined that Villasenor was an active participant in the Arvina 

gang on July 26, 2018. His belief was based on the 2014 incident, Villasenor’s tattoos, 

the fact that the crime at the corral was committed with other gang members, and the 

location of the crime in Arvina territory. 

Gang Evidence Regarding Mosqueda

Officer Calderon had contacted Mosqueda 10 to 15 times. 

On May 7, 2008, Mosqueda, Javier Lopez, and Andrew Carrera were contacted 

while drinking outside of Lopez’s residence. All three had gang monikers, and Officer 

Calderon believed Lopez and Carrera were Arvina gang members at the time. 

On July 28, 2008, Mosqueda was contacted in the presence of Jose Moreno, 

Alfredo Cardena, and Leonel Nunez. Officer Calderon was familiar with the crimes 

Moreno, Cardenas, and Nunez were suspected of committing and believed all three were 

Arvina gang members. 
8.

On January 22, 2009, Mosqueda left the residence of Alejandro Diaz, with Manual 

Pantoja in his car. Officers stopped Mosqueda, searched Diaz’s home, and found a stolen 

vehicle, a large quantity of methamphetamine, and indicia of drug sales. Officer 

Calderon believed Pantoja was an active Arvina gang member at the time, but not Diaz. 

 On December 28, 2013, officers stopped a vehicle driven by Mosqueda; Edwardo 

Mosqueda, Pantoja, Oscar Partida, and Fabian Zuniga were also in the car, along with 

three loaded firearms, gloves, bolt cutters, and a hammer. Mosqueda had numerous 

Arvina gang tattoos, and officers believed Zuniga, Pantoja, and Partida were active 

Arvina gang members at the time. 

On July 28, 2014, Mosqueda was in his garage when Miguel Arrendondo and 

Efrain Chocoteco began to drive away. Mosqueda remained in the garage, where officer 

found his wallet, a cell phone, keys, a lighter, and a .25-caliber bullet. Arredondo had an 

“A” tattooed on his neck, and Officer Calderon opined that he was an active Arvina gang 

member. Chocoteco had a “W” tattooed on his cheek and was a member of the 

Weedpatch 13 gang, a gang that is friendly with the Arvina gang. Officer Calderon 

opined that Arrendondo and Chocoteco were both active Arvina gang members. 

Officer Calderon opined that at the time of the current offense, July 26, 2018, 

Mosqueda was an active participant in Arvina 13, based on his being brought to the corral 

and directed, by Ulloa, to assault somebody, his tattoos, his past participation in the 

Arvina gang, and the presence of Ulloa and Villasenor. 

Gang Evidence Regarding Ulloa

On February 5, 2015, officers responded to a suspected burglary and detained 

Ulloa, who was 15 years old at the time. Others detained were Guadalupe Cerna, 

Hermina Cerna, and “Lil Wyno.” Ulloa, who had a three-dot tattoo on his finger, was in 

possession of stolen electronic equipment at the time. Officer Calderon believed Lil 

Wyno was an active Arvina gang member at the time. 
9.

On February 1, 2017, Officer Calderon found Ulloa in possession of a loaded gun 

and loaded spare magazine. Officer Calderon opined that Ulloa was an active Arvina 

gang member at the time. 

When Ulloa was photographed just prior to trial, he had three dots tattooed on the 

inside of a finger, a tattoo that means “my crazy life,” and can be considered gangrelated, although it is also common among people with no gang connection. 

Officer Calderon opined that Ulloa was an active Arvina gang member on July 26, 

2018, based on Ulloa’s history, possession of a firearm, association with two other 

Arvina gang members, and responding to disrespect by instigating an assault and 

summoning help. 

Predicate Gang Offenses

On August 24, 2014, active Arvina gang members Edgar Garcia and Jose Valencia 

shot at three males who were in a pickup truck at a car wash. A police officer was nearby 

and a high-speed chase ensued. Garcia was convicted of attempted murder, assault with a 

firearm, and active participation in a street gang. 

On January 30, 2017, Saul Ramirez drove by and shot at the residence of a known 

Arvina gang dropout. Ramirez was an active Arvina gang member at the time and pled 

guilty to assault with a firearm and a gang enhancement. 

Officer Calderon opined that the charged crimes on July 26, 2018, were committed 

for the benefit of, at the direction of, and in association with the Arvina gang. The crimes 

benefitted the Arvina gang by instilling fear in the community, deterring disrespect and 

discouraging people from reporting crimes. 

DISCUSSION

I. MIRANDA VIOLATION

Villasenor contends the trial court erroneously admitted statements he made 

during the investigation of a 2014 assault at Alshaif Market in violation of Miranda. As 

argued by Villasenor, the 2014 incident at the Alshaif Market was “crucial” to the 
10.

prosecution’s case, as it was the only prior instance of Villasenor spending time with 

gang members or engaging in behavior that might have been gang-related, and 

Villasenor’s involvement in that incident was erroneously established by his own 

statements. Villasenor’s claim is twofold: first, that his statement made to an officer at 

school about getting a tattoo the night of the 2014 incident was made in response to law 

enforcement questioning and should have been excluded; and second, he claims his 

statements from a subsequent interview at the police department should have been 

excluded because he had unambiguously invoked his right to counsel. We find no merit 

to his claim. 

Relevant Background

Prior to trial, Ulloa filed motions in limine to exclude any reference to or evidence 

of his or Villasenor’s alleged pretrial statements under Miranda, specifically defense 

motions in limine No. 6 and No. 13. Villasenor joined Ulloa’s motions in limine. 

In addressing motion No. 6, as to the Miranda issue, the trial court found the issue 

moot as to Ulloa, and stated an Evidence Code section 402 hearing would be held as to 

“the juvenile incident,” meaning the 2014 incident involving Villasenor. The trial court 

also found motion No. 13 moot. 

Multiple officers testified pursuant to Evidence Code section 402 for various in 

limine purposes. The following recites the testimony relevant to the 2014 incident 

involving Villasenor. 

Evidence Code Section 402 Hearing

As noted previously, on September 3, 2014, when Villasenor was 17 years old, he 

engaged in a fight at the Alshaif Market. Officer Calderon testified that he was not 

present for Villasenor’s interview with law enforcement involving the incident. 

Following Officer Calderon’s testimony, the trial court explained that additional 

foundation testimony would be required before evidence concerning Villasenor’s 

statements involving the September 3, 2014, incident would be admitted. 
11.

Sergeant Patricia Stewart testified at the Evidence Code section 402 hearing that, 

on the morning after the incident, she and Officer Jose Vasquez went to Arvin High 

School and contacted Villasenor near the dean’s office to question him about the previous 

day’s assault. According to Sergeant Stewart, Villasenor was not under arrest at that 

time, nor was he detained, but she did not tell him he was free to leave if he wished. 

Villasenor was not told to sit in any particular place or stay in the office where they were. 

She did not read him his Miranda rights. 

During their conversation, Sergeant Stewart noticed that Villasenor’s hand looked 

bruised and that he had a tattoo on it, but she did not ask him about it. Villasenor said it 

was “ink from the tattoo that he had just gotten the evening prior.” Sergeant Stewart 

subsequently asked Villasenor to accompany her to the police department, which he did. 

As to the exchange at the high school, the trial court ruled that Villasenor had been 

subject to a custodial interrogation and was not free to go. However, the trial court ruled 

that Villasenor’s statement about getting a tattoo the night before was admissible because 

Villasenor was not asked any questions about the tattoo. Instead, the trial court ruled that 

“it was something [Villasenor] said without being asked.” 

Officer Vasquez testified that he and Sergeant Stewart interviewed Villasenor at 

the police station on September 4, 2014. Before questioning Villasenor, Officer Vasquez 

read Villasenor his Miranda warnings verbatim from a department form. When asked, 

Villasenor indicated that he understood his rights. Before questioning began, Villasenor 

stated that he wanted his attorney or his mother present, after which questioning stopped. 

Once Villasenor’s mother was present, Villasenor was again asked if he wanted to speak 

to the officers and he said he would. Villasenor then admitted that he was present at the 

Alshaif Market on September 3, 2014, to cash a check. A friend had driven him there. 

Once he had cashed the check, Villasenor stepped outside and “a friend,” whom 

Villasenor would not identify but was later identified as Joe Martinez, started fighting 

with another man. 
12.

Later in the interview, Sergeant Stewart asked Villasenor about his tattoo, and he 

stated he “woke” up with it on the morning of September 4, 2014. When asked about the 

meaning of the tattoo, Officer Vasquez reviewed his report and stated that the tattoo was 

the letter “A” and Villasenor claimed he did not know what it was and that he was not 

involved in any gang. Villasenor did acknowledge that the letter “A” was normally used 

by the Arvina gang. When asked, Villasenor admitted that he joined in the fight at the 

market. 

On cross-examination, Villasenor’s counsel questioned Officer Vasquez about his 

police report of the interview. After refreshing his memory, Officer Vasquez 

acknowledged that, in his report, after being Mirandized, Villasenor had said, “I ain’t 

going to answer anything until my attorney is here.” Officer Vasquez had then asked, 

“So you’re refusing to talk,” and Villasenor had then said, “yeah, unless my mom is here 

or my attorney I’ll speak.” 

On redirect, Officer Vasquez testified that, once Villasenor’s mother was present, 

he again asked Villasenor if he “still want[ed] to talk about the case.” Once Villasenor’s 

mother was present, the interview was audio recorded. 

At the Evidence Code section 402 hearing, Sergeant William Funderburk testified 

that he was provided a cell phone on September 4, 2014, belonging to Villasenor. 

According to Sergeant Funderburk, Villasenor had been earlier Mirandized, although 

Sergeant Funderburk was not present at the time. Sergeant Funderburk spoke to 

Villasenor when he was already arrested and booked and asked if he could search his cell 

phone. Villasenor said he could and signed a consent form. Sergeant Funderburk located 

text conversations made September 3, 2014, between Villasenor and Juan Martinez in 

which Villasenor bragged about jumping and stabbing “some fool” at the camel store. In 

the text messages, Villasenor said he got an “A” tattoo that he “put in [the] work” in for. 

Following testimony, the trial court listened to the relevant portions of the 

recorded interview and found that the interview with Villasenor had been “a 
13.

conversational discussion,” and while Villasenor was not free to leave, he was not 

“badgered or threatened.” The trial court described Villasenor as first wanting an 

attorney and then clarifying that he wanted either an attorney or his mother. At this point, 

the interview was terminated until his mother was located. At that point, the interviewer 

asked Villasenor if he wanted to proceed because his mother was now present. 

Villasenor said he would. As summarized by the trial court in finding that Villasenor had 

waived his Miranda rights:

“It’s about an hour and a half gap, but it’s clear he was reminded of his 

rights and he was specifically asked. It wasn’t, well, here’s your mom, let’s 

get going. He was asked. It was reiterated. You said before you wanted an 

attorney or your mom. Your mom is here. Do you want to talk now?” 

Trial Evidence

At trial, Sergeant Stewart testified that, on September 4, 2014, she contacted 

Villasenor at school, where he told her he had gotten a tattoo on his hand the night 

before. 

Sergeant Stewart and Officer Vasquez subsequently conducted an interview of 

Villasenor at the police station. Villasenor’s mother was present and he waived his 

Miranda rights. During the interview, Villasenor stated that he had gone to the market to 

cash a check, and saw one of his friends get into a fight with someone with an “LA” 

tattoo. Villasenor joined in the fight. Villasenor also explained that he got an “A” tattoo 

on his hand later that night, and he admitted the tattoo represented the Arvina gang, but 

claimed he was not affiliated with any gang. Villasenor also described the clothing he 

was wearing at the time, which matched the clothing of one of the perpetrators as shown 

on a surveillance video. 

Cell phone evidence showed that Villasenor bragged to another gang member 

about committing the crime. Villasenor texted “Lil Wyno” that “we 

jumped him” during the September 3, 2014, assault. When asked by Juan Martinez in 

another text “who let you do the A?”, referring to Villasenor’s new tattoo, Villasenor 
14.

replied he “put in work and Posadas did them for me.” According to the text, Villasenor 

“rushed with Jay and Shadow” at the market to “pop the fool from LA.” Officer 

Calderon believed that Villasenor was allowed to get the tattoo as a reward for the 

assault. 

Standard of Review and Applicable Law

Generally, when reviewing a Miranda dispute “ ‘ “we accept the trial court's 

determination of disputed facts if supported by substantial evidence, but we 

independently decide whether the challenged statements were obtained in violation of 

Miranda.” ’ ” (People v. Henderson (2020) 9 Cal.5th 1013, 1023.) When part or all of 

the questioning was recorded, the facts are undisputed and we independently review the 

trial court’s factual determinations. (People v. Jackson (2016) 1 Cal.5th 269, 339.)

Miranda requires that, before a custodial interrogation, law enforcement must 

advise a suspect of certain rights, such as the right to remain silent and the right to the 

presence of an attorney. (People v. McCurdy (2014) 59 Cal.4th 1063, 1085-1086.) “A 

statement obtained in violation of a suspect’s Miranda rights may not be admitted to 

establish guilt in a criminal case.” (People v. Jackson, supra, 1 Cal.5th at p. 339.) 

Whether a person is in custody hinges on whether a reasonable person would feel 

free to leave. (Howes v. Fields (2012) 565 U.S. 499, 508-509; Miranda, supra, 384 U.S. 

at p. 444.) An interrogation is defined as express questioning or other words and actions 

on the part of law enforcement that law enforcement should know are reasonably likely to 

elicit an incriminating response from a suspect. (Rhode Island v. Innis (1980) 446 U.S. 

291, 299-301.) 

Villasenor’s Statement Regarding the Tattoo

Villasenor first claims that his statement to Sergeant Stewart made at the high 

school that he had gotten a tattoo the night before the 2014 incident was impermissible. 

Villasenor argues that, even if Sergeant Stewart did not directly ask Villasenor about the 
15.

tattoo, her remarks to him noting a bruise on his hand constituted interrogation for 

Miranda purposes as it was likely to elicit an incriminating response. We disagree.

For Miranda to apply, the defendant must be subject to interrogation. (Miranda, 

supra, 384 U.S. at p. 479.) As stated above, interrogation under Miranda “refers not only 

to express questioning, but also to any words or actions on the part of the police (other 

than those normally attendant to arrest and custody) that the police should know are 

reasonably likely to elicit an incriminating response from the suspect.” (Rhode Island v. 

Innis, supra, 446 U.S. at p. 301.) The “reasonably likely to elicit an incriminating 

response” test focuses primarily upon the perceptions of the suspect. (Ibid.) The warning 

applies only when police conduct an actual interrogation or engage in conduct reasonably 

likely to induce a response, and voluntary conversation and “small talk” unrelated to the 

suspected offense are permitted. (People v. Gamache (2010) 48 Cal.4th 347, 387-388.) 

Here the trial court, in its ruling on the suppression motion, expressly found that 

Villasenor’s statement at the high school about his tattoo was not given in response to 

any police questioning. While Villasenor claims the court misunderstood Sergeant 

Stewart’s testimony, the trial court rejected this interpretation. “In reviewing the trial 

court’s ruling on a claimed Miranda violation, ‘ “we accept the trial court’s resolution of 

disputed facts and inferences, and its evaluations of credibility, if supported by 

substantial evidence. We independently determine from [those facts] whether the 

challenged statement was illegally obtained.” ’ ” (People v. Elizalde (2015) 61 Cal.4th

523, 530.) Because the trial court’s resolution of the disputed facts and inferences is 

supported by substantial evidence, we accept the trial court’s determination, and find no 

Miranda error at this stage. (People v. Martinez (2010) 47 Cal.4th 911, 949.) 

Villasenor’s Statement at the Police Department

Villasenor also contends that his longer statement at the police station (which 

followed the high school conversation) was also inadmissible under Miranda because 
16.

Officer Vasquez continued to question him after he clearly invoked both his right to 

counsel and his right to remain silent. We find no prejudicial error. 

To reiterate, the rule of Miranda requires that before police may question a suspect 

during a custodial interrogation, the suspect must be advised of the right to remain silent 

and to an attorney and that any statements may be used against him or her in court. 

(Miranda, supra, 384 U.S. at p. 479.) “If the individual indicates in any manner, at any 

time prior to or during questioning, that he wishes to remain silent, the interrogation must 

cease.” (Id. at pp. 473-474; accord People v. Davis (2009) 46 Cal.4th 539, 585; see 

Dickerson v. United States (2000) 530 U.S. 428, 435-443.) When a suspect has exercised 

his or her option to terminate questioning, officers may not persist “in repeated efforts to 

wear down [the suspect’s] resistance and make him change his mind.” (Michigan v. 

Mosley (1975) 423 U.S. 96, 105-106.) “[T]he admissibility of statements obtained after 

the person in custody has decided to remain silent depends under Miranda on whether his 

‘right to cut off questioning’ was ‘scrupulously honored.’ ” (Id. at p. 104.) 

Here, after Officer Vasquez read Villasenor his Miranda rights, the following 

occurred:

“VASQUEZ: OK, um, Just gonna ask some simple questions. All we want 

is the honest truth. That’s it. That’s the best thing you can do right now is 

just be truthful and honest. OK? Ah, last night, uh, where, where were 

you?

“VILLASENOR: I ain’t gonna answer anything until my attorney is here.

“VASQUEZ: Sir, are you refusing to talk?

“VILLASENOR: Yeah, Unless my mom’s here, or my attorney, I don’t 

speak. 

“VASQUEZ: Ok, so, uh, you want us to call your mom then?

“VILLASENOR: Whatever you guys like, but she’s at work, she’s not 

gonna get here.” 
17.

Officers stopped the interview, contacted Villasenor’s mother and brought her to 

the police station. About 90 minutes after the first conversation, Officer Vasquez asked 

Villasenor if he would talk now that his mother was present, and Villasenor said he 

would. Villasenor’s mother spoke only in Spanish and no interpreter was provided. 

Questioning then continued and Villasenor admitted that he drove to the Alshaif 

Market the night before with a friend, intervened in a fight involving the friend, and got 

the “A” tattoo on his hand at some point in the night. Although Villasenor said that he 

did not know what the tattoo meant and that he was not involved in any gangs, he did 

admit that the Arvina gang normally uses a similar “A” borrowed from the Atlanta 

Braves. 

Edwards v. Arizona (1981) 451 U.S. 477, 484-485 established that, once a suspect 

unambiguously asserts his Miranda rights, the interrogation must cease and further 

questioning is impermissible until counsel is present. “This is ‘designed to prevent police 

from badgering a defendant into waiving his previously asserted Miranda rights ....” 

(McNeil v. Wisconsin (1991) 501 U.S. 171, 177, quoting Michigan v. Harvey (1990) 494 

U.S. 344, 350.) As explained in Smith v. Illinois (1984) 469 U.S. 91, “Edwards set forth 

a ‘bright-line rule’ that all questioning must cease after an accused requests counsel 

[Citation.] In the absence of such a bright-line prohibition, the authorities through 

‘[badgering] or ‘overreaching’ – explicit or subtle, deliberate or unintentional – might 

otherwise wear down the accused and persuade him to incriminate himself 

notwithstanding his earlier request for counsel’s assistance.” (Smith v. Illinois, supra, at 

p. 98.) 

Villasenor contends that since he unequivocally invoked his Miranda rights by 

stating he was not going to answer “anything until my attorney is here,” Officer 

Vasquez’s subsequent question—“Sir, are you refusing to talk?”—was badgering and not 

merely “clarification,” as ruled by the trial court. Villasenor argues that, since his 

statement required no clarification, Officer Vasquez’s question was improper and was 
18.

used to “test [Villasenor’s] resolve and induce him to retract or qualify his invocation,” 

which was “successful” but “improper.” As noted above, following Officer Vasquez’s

statement, Villasenor said he would not talk “Unless my mom’s here, or my attorney, I 

don’t speak.” At that point, questioning stopped, Villasenor’s mother was called, and 

questioning resumed when Villasenor’s mother was present and Villasenor said he would 

talk. 

We agree with respondent that, even if Villasenor’s statement was sufficiently 

clear and ambiguous and Officer Vasquez should not have asked any “clarifying” 

questions, any error in admitting Villasenor’s subsequent statements was harmless. 

(People v. Bradford (2008) 169 Cal.App.4th 843, 854; Chapman v. California (1967) 386 

U.S. 18, 26.) The evidence introduced at trial of Villasenor’s statements during his police 

interview consists of the following: that Villasenor went to the camel market to cash a 

check, there he saw one of his friends get in a fight with someone outside with an “LA” 

tattoo, and that Villasenor joined the fight and got an “A” tattoo, commonly representing 

the Arvina gang, following the fight. However, other “properly” introduced evidence 

included Villasenor’s statement at school and his text messages about participating in the 

assault and getting a tattoo as a reward. Thus, the offense arising from the September 3, 

2014, conduct was proven regardless of Villasenor’s statements during the interview at 

the police department.9 

In finding the evidence harmless beyond a reasonable doubt, we also reject 

Villasenor’s assertion that the cell phone evidence would have been inadmissible but for 

the erroneous denial of his Miranda motion. Villasenor’s text messages were obtained 

after Villasenor consented to a search of his cell phone. Miranda is not violated when an 

officer asks for and obtains consent to search after the defendant has invoked his Miranda 

9 We will address the impact of newly amended law on the section 186.22 

enhancements and offense in part III., post.
19.

rights. (People v. Johnson (2022) 12 Cal.5th 544, 568, fn. 1, citing People v. James 

(1977) 19 Cal.3d 99, 115.) We also note that Villasenor never challenged the admission 

of the cell phone evidence on Miranda grounds below. To the extent that Villasenor is 

claiming that his consent to search his cell phone was not freely and voluntarily given, 

that issue was not raised by Villasenor below and has been forfeited on appeal. (People 

v. Tully (2012) 54 Cal.4th 952, 992 [only argument made in trial court was statement 

taken in violation of defendant’s invocation of counsel].) 

II. MOTION FOR MISTRIAL

Villasenor next contends the trial court erred when it denied his mistrial motion 

after a police officer, in violation of a court ruling, informed the jury that the victim in the 

2014 Alshaif Market incident was stabbed multiple times. We disagree.

Background

Prior to Officer Jeffrey Packebush’s testimony, the trial court and the parties held 

a sidebar to discuss the prosecution’s desire to ask the officer questions about the injuries 

he observed to the victim of the September 4, 2014, assault as Alshaif Market. The 

parties agreed that Officer Packebush could indicate the victim suffered lacerations, but 

he could not specifically mention “stab wounds,” because there was no evidence 

Villasenor stabbed anyone with a knife. The prosecution informed Officer Packebush of 

the trial court’s ruling. 

During Officer Packebush’s testimony, the prosecutor asked him what he 

personally observed about the victim. Officer Packebush answered, “That he was 

injured. He was holding a blood-soaked paper towel to his forehead.” When the 

prosecutor asked Officer Packebush what injuries he noticed, the officer replied, “They 

appeared to be multiple laceration stab wounds.” 

Villasenor’s counsel objected. The trial court overruled the objection, but 

admonished the jury that the testimony should be considered in conjunction with other 

testimony it would hear later that day or the next, and then clarified, “Any stab wounds or 
20.

puncture wounds that is being testified to by this officer were not inflicted by either of 

these defendants.” 

Officer Packebush continued his testimony, stating that he observed a vertical 

laceration on the bridge of the victim’s nose, injuries to the victim’s arms, his left 

shoulder, and his back, and observed blood outside the front of the store. 

At the next court recess, the trial court addressed the objection that had been made. 

The trial court acknowledged that Officer Packebush had violated its ruling, but that he 

did not do so intentionally, and that was why the trial court chose to simply tell the jury 

that any stabbing or puncture injuries were not inflicted by either Villasenor or Ulloa. 

Villasenor’s counsel moved for mistrial as the testimony was “highly 

inflammatory and prejudicial” to Villasenor. Counsel argued that the jury would 

consider that the victim had been stabbed in a fight Villasenor had been involved in. 

Ulloa’s counsel joined in the motion for mistrial, on grounds that the evidence had 

violated the trial court’s ruling as well as Evidence Code section 352. 

The prosecutor stated he specifically told Officer Packebush “to not say the word 

stab or stab wounds in any way and just to describe the injuries that he saw.” The 

prosecutor also noted that the co-perpetrator of the 2014 incident, Joe Martinez, was 

convicted of assault with a deadly weapon as a result of that incident, which was being 

offered as a predicate offense to prove the gang allegation. The prosecutor further argued 

that the testimony about the stabbing was not unduly inflammatory, and that the trial 

court cured the prejudicial impact by admonishing that neither Villasenor nor Ulloa 

engaged in that conduct. 

The trial court denied the motion for mistrial, agreeing with the defense that 

“jurors don’t unhear things,” but that jurors were presumed to follow the trial court’s 

instructions. The trial court precluded the prosecution from admitting the video of the 

incident into evidence, although the defense could do so if it wished. 

When the jury returned, the trial court again instructed the jury as follows:
21.

“I’m going to read to you an admonition. This means you must consider 

what I’m telling you. There’s another jury instruction that I read at the end 

of the case that is something like it’s up to you to decide what the evidence 

is. [¶] I’m not the judge of the facts. Do not consider any comments I 

have made in regard to what I may think about the case. That’s absolutely 

true. I’m not telling you what to think about the case, but I’m telling you 

this and you must consider this along with all the rest of the other evidence 

and the jury instructions a[t] the end and the ones I read at the beginning. 

[¶] In regard to the incident outside the entrance to the Alshaif Market in 

2014 that you just heard about, Mr. Daniel Ulloa was not present and had 

zero involvement. You have heard from another witness later on in this 

trial that Mr. Ricardo Villasenor was present; however, Mr. Villasenor did 

not possess any knife or weapon on that date and did not stab anyone.” 

Applicable Law and Analysis

The trial court should grant a mistrial “ ‘ “if the court is apprised of prejudice that 

it judges incurable by admonition or instruction. [Citation.] Whether a particular incident 

is incurably prejudicial is by its nature a speculative matter, and the trial court is vested 

with considerable discretion in ruling on mistrial motions. [Citation.]” [Citation.] A 

motion for a mistrial should be granted when “ ‘ “a [defendant’s] chances of receiving a 

fair trial have been irreparably damaged.” ’ ” ’ [Citation.] ” (People v. Edwards (2013) 

57 Cal.4th 658, 703.) 

“A witness’s volunteered statement can, under some circumstances, provide the 

basis for a finding of incurable prejudice.” (People v. Ledesma (2006) 39 Cal.4th 641, 

683.) However, the improper subject matter will rarely be “ ‘of such a character that its 

effect ... cannot be removed by the court’s admonitions.’ ” (People v. Allen (1978) 77 

Cal.App.3d 924, 935.) Deciding “whether the error can be cured by striking the 

testimony and admonishing the jury rests in the sound discretion of the trial court.” 

(People v. Harris (1994) 22 Cal.App.4th 1575, 1581.) Reversal is required only if it is 

reasonably probable that the volunteered comments could have affected the outcome of 

the trial. (Ibid.)
22.

Villasenor relies on People v. Turner (2021) 73 Cal.App.5th 117, to support his 

argument of prejudice. In that case, two murders were initially joined for trial before the 

trial court severed the second murder, struck the evidence related to it as inadmissible, 

instructed the jury not to consider it in its deliberations on the first murder, and denied a 

motion for mistrial. (Id. at pp. 123-124.) Evidence of the second murder had 

encompassed approximately 15 percent of the testimony at trial, and included extensive 

and graphic details about the second murder. (Id. at pp. 124, 129-130.) The Court of 

Appeal found an abuse of discretion in denying the mistrial because evidence of the 

second murder had been extensive; malice was a contested issue at trial; defendant’s 

defense was that he committed only voluntary manslaughter, and evidence of the second 

murder would have irreparably damaged his credibility; and the jury was not admonished 

to not to consider it until a week after hearing the evidence. (Id. at pp. 129-130.) 

Here, only one instance of improper testimony occurred. The trial court 

immediately admonished the jury to consider the evidence in conjunction with other 

testimony it would hear later at trial, and then clarified that neither Villasenor nor Ulloa 

had inflicted the stab wounds Officer Packebush testified to. The trial court repeated this 

instruction immediately after it denied Villasenor’s motion for mistrial. 

We must presume that the jury followed those instructions. (People v. Boyette 

(2002) 29 Cal.4th 381, 436.) “Juries often hear unsolicited and inadmissible comments 

and in order for trials to proceed without constant mistrial, it is axiomatic the prejudicial 

effect of these comments may be corrected by judicial admonishment; absent evidence to 

the contrary the error is deemed cured.” (People v. Martin (1983) 150 Cal.App.3d 148, 

163; see also People v. Seiterle (1963) 59 Cal.2d 703, 710 [it is only in “exceptional 

cases” where “the improper subject matter is of such a character that its effect on the 

minds of the jurors cannot be removed by the court's admonitions”].) Here, nothing 

suggests the jury failed to follow the trial court's admonitions and instructions.
23.

Furthermore, it is unlikely Villasenor would have realized a more favorable result 

had the jury not heard reference to the 2014 incident victim’s stab wounds. The fact that 

the victim in the September 2014 incident had been stabbed was not more inflammatory 

than the circumstances of the charged offenses. Evidence at trial was that, when Ulloa 

started a fight with Luis, Villasenor jumped in and repeatedly hit Roberto; Villasenor 

held a gun in order to keep the victims in the corral until Ulloa returned with Mosqueda; 

and when Ulloa returned, Villasenor continued to display his gun to keep the Luis and the 

others from interfering when Luis attacked and then shot Roberto in the leg. 

We are also not persuaded by Villasenor’s claim of a “high likelihood that the jury 

would convict [him] not based on the evidence relevant to this case but to punish him for 

his conduct in 2014.” This is especially so since the trial court specifically instructed that 

Villasenor did not stab the victim in 2014, or even possess any knife or weapon on that 

occasion. We also note that the verdict in this case demonstrates that Villasenor did not 

suffer prejudice, as Villasenor was acquitted of the assault with a firearm counts, showing 

that the jury was not, as Villasenor claims, “irreparably biased against” him and did not 

convict him solely based on his participation in the 2014 assault. 

We conclude the record “demonstrates the absence of any incurable prejudice of 

the sort that would require the granting of a motion for mistrial.” (People v. Jenkins 

(2000) 22 Cal.4th 900, 986.) The trial court could reasonably conclude that the 

references to the 2014 victim’s stab wounds did not irreparably damage Villasenor’s 

chances of receiving a fair trial, and it did not abuse its discretion by denying the mistrial 

motion. 

III. GANG ALLEGATIONS 

Villasenor makes several related contentions concerning the true findings on the

gang enhancement allegations and conviction of the gang substantive offense. He

contends that the trial court erred when it denied his motion to bifurcate the gang

evidence; that the enactment of Assembly Bill No. 333 (Assembly Bill 333), which
24.

amended section 186.22, requires reversal of the gang enhancements and gang

substantive offense; and that Assembly Bill 333’s newly added section 1109 (Stats. 2021,

ch. 699, §§ 3, 5) requires reversal of the entire judgment. The new laws became effective

January 1, 2022. (See Cal. Const., art IV, § 8, subd. (c)(1); Gov. Code, § 9600, subd.

(a).) 

We conclude Villasenor is entitled to reversal of the gang enhancements attached

to counts 5, 6, and 7, and substantive conviction for active participation in a criminal

street gang, count 8, which the People are entitled to retry under the amended law. We

further conclude the failure to bifurcate the gang allegations was harmless as to

Villasenor’s other convictions.

Relevant Procedural History

Before trial Ulloa moved to bifurcate the gang enhancements; Villasenor joined in

the motion.10 Villasenor was charged with assault with a firearm, false imprisonment,

active gang participation, and carrying a concealed firearm within a vehicle, along with

various firearm and gang enhancements. 

The prosecutor moved in limine to admit gang evidence and objected to any

bifurcation or severance of gang allegations, stating the “motive, intent, and plan of the

criminal activity are so interconnected and intertwined with the gang evidence” that the

gang evidence was necessary “for the jury to fully understand the incident.” The

prosecutor further argued that the gang evidence was admissible under Evidence Code

section 352 and that emphasis should be placed on economy of judicial resources. 

10 Villasenor’s opening brief generally refers to bifurcation, which would technically 

apply to the gang enhancements and not the active gang participation charge. However, 

the motion in the trial court requested the court to “sever/bifurcate the gang charges,” and 

we thus presume Villasenor’s claim on appeal includes severance of the active gang 

participation offense as well. 
25.

At the hearing on the motion, the prosecution argued that Villasenor and Ulloa had

worked together to commit the crimes and secure the presence of Mosqueda, an active

Arvina gang member, who assisted at Ulloa’s direction. The prosecution acknowledged

that no gang slurs were uttered nor gang signs flashed during the crimes, but that

Mosqueda did have visible gang-related facial tattoos. 

Ulloa’s counsel argued that none of the victims knew whether the crimes were

gang-related or that Mosqueda’s tattoos were gang-related. He further argued that there

was no graffiti at the scene to indicate the Arvina gang took credit for the crimes, and

there was no indication that anyone’s gang status increased based on the crimes.

The prosecutor then referred to the preliminary hearing transcript, which described

the purported testimony of a “victim”11 and that he knew Ulloa’s moniker. The

prosecutor believed the victims were aware the defendants may be gang members, which

affected how the victims reacted to the defendants’ actions. The prosecutor argued that

the crimes “turn[ed] into being motivated by gang and gang culture, particularly the

underlying facts in this case when it comes to respect, losing a fight, maybe losing a bet,

then going and getting [a] more senior gang member of Arvina and bringing him into the

fight. As argued by the prosecutor, Ulloa “assert[ed] himself to become even more

associated with Arvina 13 in order to commit the escalation of these crimes from a simple

possible mutual combat to now assault with a deadly weapon, a firearm, false

imprisonment, and attempted murder.” 

Ulloa’s counsel argued that the victims had “no idea who [Ulloa] was” at the time

of the crimes. Villasenor’s counsel argued that the statement from the preliminary

hearing only references Ulloa’s moniker and said nothing about Ulloa being a gang

member.

11 See part VII. of the Discussion, post, on the prosecutor’s use of the term “victim” 

in this context. 
26.

The trial court reviewed the preliminary hearing testimony and, citing applicable

law, determined the gang evidence was relevant and admissible. In denying the motion,

the trial court stated the following:

“Based on the People’s theory and the information that I know, at this

point, I am not going to bifurcate. [¶] ... [¶] ... I will say, after the gang

expert for the People testifies this afternoon, I will think more. If there’s

something that changes, I will tell everybody, but, at this point, I do not

believe it is appropriate to bifurcate with the appropriate instruction given

to the jury as to how this information can be considered.” 

Later, during the hearing Ulloa’s counsel renewed his request for bifurcation and

severance, citing People v. Albarran (2007) 149 Cal.App.4th 214, which held that

“certain extremely prejudicial gang evidence was not relevant to the underlying charges;

the People failed to present sufficient evidence these crimes were gang motivated.” (Id.

at p. 217.) 

The trial court explained that “some of the evidence” at the preliminary hearing

and police reported relied on by Officer Calderon had to do with identity, motive, and

intent, “which is why they’re intrinsically linked, which is why I’m not bifurcating.” The

trial court noted that, while one of the victims at the preliminary hearing did not mention

believing Villasenor, Ulloa or Mosqueda were gang members, the victim “then said

something like that in a report that was taken.” 

Assembly Bill 333

While Villasenor’s appeal was pending, the Legislature enacted Assembly Bill 

333, which, in part, amends section 186.22 to impose new substantive and procedural 

requirements for proving gang allegations. The legislation went into effect on January 1, 

2022. 

Section 186.22 prohibits unlawful participation in a criminal street gang, as set 

forth in subdivision (a), and includes sentencing enhancement provisions found in 

subdivision (b), both at issue here. (People v. Briceno (2004) 34 Cal.4th 451, 460, fn. 7.)
27.

At the time of the underlying events, a criminal street gang was defined as “any 

ongoing organization, association, or group of three or more persons, whether formal or 

informal, having as one of its primary activities the commission of one or more of the 

criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of 

subdivision (e), having a common name or common identifying sign or symbol, and 

whose members individually or collectively engage in or have engaged in a pattern of 

criminal gang activity.” (Former § 186.22, subd. (f), as amended by Stats. 2016, ch. 887, 

§ 1; see Stats. 2013, ch. 508, § 1.)

A “pattern of criminal gang activity” was previously defined as “the commission 

of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile 

petition for, or conviction of two or more of the [offenses listed in paragraphs (1) to (33)], 

provided at least one of these offenses occurred after the effective date of this chapter and 

the last of those offenses occurred within three years after a prior offense, and the 

offenses were committed on separate occasions, or by two or more persons ....” (Former 

§ 186.22, subd. (e), 1st ¶, as amended by Stats. 2016, ch. 887, § 1; see Stats. 2013, ch. 

508, § 1.)

Assembly Bill 333 amended section 186.22 in several ways:

“First, it narrowed the definition of a ‘criminal street gang’ to require that 

any gang be an ‘ongoing, organized association or group of three or more 

persons.’ [Citation.] Second, whereas section 186.22, former subdivision 

(f) required only that a gang’s members ‘individually or collectively engage 

in’ a pattern of criminal activity in order to constitute a ‘criminal street 

gang,’ Assembly Bill 333 requires that any such pattern have been 

‘collectively engage[d] in’ by members of the gang. [Citation.] Third, 

Assembly Bill 333 also narrowed the definition of a ‘pattern of criminal 

activity’ by requiring that (1) the last offense used to show a pattern of 

criminal gang activity occurred within three years of the date that the 

currently charged offense is alleged to have been committed; (2) the 

offenses were committed by two or more gang ‘members,’ as opposed to 

just ‘persons’; (3) the offenses commonly benefitted a criminal street gang; 

and (4) the offenses establishing a pattern of gang activity must be ones 

other than the currently charged offense. [Citation.] Fourth, Assembly Bill 
28.

333 narrowed what it means for an offense to have commonly benefitted a 

street gang, requiring that any ‘common benefit’ be ‘more than 

reputational.’ ” (People v. Tran (2022) 13 Cal.5th 1169, 1206.)

Finally, Assembly Bill 333 also added section 1109, which requires gang 

enhancements charged under section 186.22, subdivision (b) or (d) to be tried separately 

from the underlying charges upon request from the defense. (Stats. 2021, ch. 699, § 5.) 

Section 1109 also requires that the substantive offense of active participation in a 

criminal street gang (§ 186.22, subd. (a)), be tried separately from all other counts that do 

not require gang evidence as an element of the crime. (§ 1109, subd. (b).) 

Villasenor is Entitled to Reversal of His Substantive Gang Conviction and Gang 

Enhancements

Assembly Bill 333’s amendments to section 186.22 apply retroactively to cases 

not yet final as of the legislation’s effective date. (People v. Tran, supra, 13 Cal.5th at 

pp. 1206-1207.) Thus, as to Villasenor’s contention that Assembly Bill 333’s recent

changes to section 186.22 require reversal of the gang substantive offense and gang

enhancements, Villasenor claims the evidence at trial failed to support Assembly Bill 

333’s new requirements in three ways: it fails to show that (1) the Arvina gang was an 

“organized” association or group; (2) that gang members “collectively” engage in or have 

engaged in patterns of criminal activity; and (3) that the predicate offenses were 

committed within the required time frame. The People disagree on the first and second 

points, but concede evidence on the third point is lacking. We accept the People’s 

concession and reverse the gang enhancements allegations attached to count 5, 6, and 7, 

and the gang conviction in count 8.12 “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.” (People v. E.H. (2022) 75 

12 Because we reverse the substantive gang offense in count 8, the firearm 

enhancement (§ 12022.5, subd. (a)), attached to that count is also reversed. 
29.

Cal.App.5th 467, 480; accord, People v. Rodriguez (2022) 75 Cal.App.5th 816, 822-823 

& fn. 19.) 

The Failure to Bifurcate was Harmless

As for Villasenor’s contention that the trial court erred when it denied his motion

to bifurcate and that Assembly Bill 333 requires reversal of the entire judgment because

the new section 1109, concerning bifurcation and severance, applies retroactively to his

case, the People disagree, arguing that section 1109 does not apply retroactively and, 

even if it does, Villasenor was not prejudiced by the denial of his motion to bifurcate. We 

address those issues below and find no prejudicial error occurred.

The courts of appeal are split on whether section 1109 applies retroactively. 

(Compare People v. Burgos (2022) 77 Cal.App.5th 550, 565-568 [holding § 1109 

applies retroactively under Estrada], review granted July 13, 2022, S274743, and People 

v. Ramos (2022) 77 Cal.App.5th 1116, 1128-1131 [same], with People v. Ramirez (2022) 

79 Cal.App.5th 48, 65 [holding § 1109 is not retroactive], review granted Aug. 17, 2022, 

S275341, People v. Boukes (2022) 83 Cal.App.5th 937, 947-948 [same], review granted 

Dec. 14, 2022, S277103, and People v. Perez (2022) 78 Cal.App.5th 192, 207 [same], 

review granted Aug. 17, 2022, S275090.) Furthermore, in People v. Tran, supra, 13 

Cal.5th at page 1208, the California Supreme Court declined to resolve the split, 

concluding any failure to bifurcate the gang allegations was harmless. ,

In reviewing for prejudice in Tran, the California Supreme Court concluded the 

failure to bifurcate in that case did not render the trial fundamentally unfair such that it 

required review under the standard for federal constitutional error articulated in Chapman 

v. California, supra, 386 U.S. 18. (People v. Tran, supra, 13 Cal.5th at p. 1209.) 

Accordingly, the court considered whether the defendant was prejudiced under the state 

law standard of review articulated in People v. Watson (1956) 46 Cal.2d 818 and 

concluded the defendant had failed to establish prejudice as to his guilty verdicts. (Tran, 
30.

at p. 1209.) In so holding, the Tran court rejected the contention the failure to bifurcate 

as required under section 1109 constitutes structural error. (Tran, at p. 1208.)

Here, as in Tran, it is unnecessary to address the parties claims regarding 

retroactivity because we conclude the failure to bifurcate the proceedings was harmless. 

In so holding, and for the reasons discussed further, post, we cannot conclude the 

admission of the gang evidence rendered the trial “fundamentally unfair” such that it 

resulted in a due process violation requiring us to review for prejudice under the

Chapman standard for constitutional error. (See People v. Tran, supra, 13 Cal.5th at p. 

1209.) 

“[T]he Watson test for harmless error ‘focuses not on what a reasonable jury could

do, but what such a jury is likely to have done in the absence of the error under 

consideration. In making that evaluation, an appellate court may consider, among other 

things, whether the evidence supporting the existing judgment is so relatively strong, and 

the evidence supporting a different outcome is so comparatively weak, that there is no 

reasonable probability the error of which the defendant complains affected the result.’ ” 

(People v. Beltran (2013) 56 Cal.4th 935, 956.) “The Supreme Court has emphasized 

‘that a “probability” in this context does not mean more likely than not, but merely 

a reasonable chance, more than an abstract possibility.’ ” (People v. Soojian (2010) 190

Cal.App.4th 491, 519.) 

Applying the Watson standard for state law error, we cannot conclude it is 

reasonably probable Villasenor would have obtained a more favorable verdict in the 

absence of the gang evidence that would not have been presented had the gang 

enhancements and substantive gang offense been bifurcated. (See People v. Watson, 

supra, 46 Cal.2d at p. 836.) As in Tran, “[t]he case for guilt here was strong.” (People v. 

Tran, supra, 13 Cal.5th at pp. 1209-1210.) 
31.

Two of the victims, Luis and Roberto, identified Villasenor and Ulloa at trial as 

involved in the incident.13 Both testified that Villasenor stood by the door of the corral, 

gun in hand, and told them that they had to stay until Ulloa returned so he could fight 

them. Photographs at trial showed physical evidence of Ulloa present at the scene prior 

to the incident and Roberto’s wound to his leg as a result of being shot. When Villasenor 

was arrested at a gas station later that day, he had in his possession a black baseball cap 

with “Arvin” on it, two cell phones, a live.40-caliber bullet, and a loaded .40-caliber 

pistol. 

Nothing in Assembly Bill 333 limits the introduction of gang evidence in a 

bifurcated proceeding where the gang evidence is relevant to the underlying charges. 

“The People are generally entitled to introduce evidence of a defendant’s gang affiliation 

and activity if it is relevant to the charged offense.” (People v. Chhoun (2021) 11 Cal.5th

1, 31.) Gang evidence, “ ‘including evidence of the gang’s territory, membership, signs, 

symbols, beliefs and practices, criminal enterprises, rivalries, and the like—can help 

prove identity, motive, modus operandi, specific intent, means of applying force or fear, 

or other issues pertinent to guilt of the charged crime.’ ” (Ibid., quoting People v. 

Hernandez (2004) 33 Cal.4th 1040, 1049.) Additionally, “[e]vidence that a witness is 

afraid to testify or fears retaliation for testifying is relevant to the credibility of that 

witness and .... An explanation of the basis for the witness's fear is likewise relevant to 

her credibility ....” (People v. Burgener (2003) 29 Cal.4th 833, 869.) 

“But, ‘even where gang membership is relevant, because it may have a highly 

inflammatory impact on the jury[,] trial courts should carefully scrutinize such evidence 

before admitting it.’ ” (People v. Gomez (2018) 6 Cal.5th 243, 294.) “Such evidence 

should not be admitted if only tangentially relevant” (People v. Gurule (2002) 28 Cal.4th

13 The record indicates that Roberto’s brother Juan, the third victim, was in Mexico 

and unavailable as a witness at trial. 
32.

557, 653), or “where its sole relevance is to show a defendant’s criminal disposition or 

bad character as a means of creating an inference the defendant committed the charged 

offense” (People v. Sanchez (1997) 58 Cal.App.4th 1435, 1449; accord, People v. 

Cardenas (1982) 31 Cal.3d 897, 904-905). “Erroneous admission of gang-related 

evidence, particularly regarding criminal activities, has frequently been found to be 

reversible error, because of its inflammatory nature and tendency to imply criminal 

disposition, or actual culpability.” (People v. Bojorquez (2002) 104 Cal.App.4th 335, 

345.) 

Here, at least some gang evidence would have been admissible to prove the 

underlying charges even if the gang allegations had been bifurcated and severed. Luis

referred to his attackers as gang members when he spoke to law enforcement. Mosqueda 

had definite visible gang tattoos on his face. As testified to by the gang expert, the more 

visible the gang tattoos, the more fear is instilled in the community by their actions. At 

trial, Luis testified that he was nervous and felt “panic” in looking at the two defendants, 

and he had “anxiety attacks because of what happened” and did “not live the same way 

anymore.” 

Thus, even if section 1109 required bifurcation of the gang enhancements and 

substantive gang offense allegations, it is likely some, though not all, of the gang 

evidence would have come in at a trial on the other substantive offenses. (See People v. 

Hernandez, supra, 33 Cal.4th at pp. 1049-1050 [“To the extent the evidence supporting 

the gang enhancement would be admissible at a trial of guilt, any inference of prejudice 

would be dispelled, and bifurcation would not be necessary”]; People v. Samaniego

(2009) 172 Cal.App.4th 1148, 1167 [“evidence related to gang membership is not 

insulated from the general rule that all relevant evidence is admissible if it is relevant to a

material issue in the case other than character, is not more prejudicial than probative, and 

is not cumulative”].)
33.

We further note the jury was given a limiting instruction regarding its 

consideration of the gang evidence, both before closing arguments and after, which we 

presume it followed. (See People v. Franklin (2016) 248 Cal.App.4th 938, 953 [“We 

presume that the jury followed these limiting instructions [regarding considering gang 

evidence for limited purpose], and there is nothing in this record to rebut that 

presumption”].) Consequently, on this record, we cannot conclude Villasenor was 

prejudiced by the failure to bifurcate the substantive gang offense and gang enhancement 

allegations from the other charges. (See People v. Hernandez, supra, 33 Cal.4th at p. 

1051 [“Any evidence admitted solely to prove the gang enhancement was not so 

minimally probative on the charged offense, and so inflammatory in comparison, that it 

threatened to sway the jury to convict regardless of defendants’ actual guilt”].) Thus, 

Villasenor is not entitled to reversal and retrial of his remaining convictions on this basis.

Finally, we note that the jury’s verdict, which acquitted Villasenor of all assault 

with a firearm charges, demonstrates that it was not improperly affected by the admission 

of the gang evidence. Instead, the verdict demonstrates that the jury considered each 

piece of evidence separately, and it was not swayed by any prejudice that might have 

flowed from the gang evidence. (People v. Ramos, supra, 77 Cal.App.5th at pp. 1131-

1132; People v. Williams, (2009) 170 Cal.App.4th 587, 613.) 

In sum, we find that it is not reasonably probable Villasenor would have received 

a more favorable result if the gang allegations had been severed and bifurcated, and 

therefore any error was harmless. (People v. Watson, supra, 46 Cal.2d at p. 836.) And 

because we find no prejudicial error in the trial court’s failure to bifurcate the gang 

allegation pursuant to newly added section 1109, we need not address Villasenor’s claim 

that the trial court erred in denying his motion to sever or bifurcate those allegations at 

trial as the law stood at the time, pre section 1109. (People v. Bean (1988) 46 Cal.3d 

919, 940.) 
34.

IV. VICTIMS PRECLUDED FROM CROSS-EXAMINATION ABOUT 

IMMIGRATION STATUS

Villasenor next contends the trial court improperly precluded cross-examining the 

victims about their awareness of possible immigration relief, ostensibly through the U 

visa program which generally provides temporary immigration benefits to victims of 

specified crimes if a law enforcement agency certifies the victim was helpful in the 

prosecution of the crime. (8. U.S.C. § 1101 et seq.; see Lee v. Holder (9th Cir. 2010) 599 

F.3d 973, 974 [discussing general qualifications for and benefits of U visas].) We find no 

abuse of discretion in excluding the issue from cross-examination. Even if the exclusion 

was error, it was harmless under the circumstances of this case.

Background

On cross-examination of Luis, Ulloa’s counsel asked Luis if he was in the United 

States on a work visa. The prosecutor objected on grounds of relevance, which was 

sustained. Ulloa’s counsel stated the evidence was relevant to bias and credibility, and a 

sidebar held. 

Outside the jury’s presence, Ulloa’s counsel argued that Luis might have been 

involved in cockfighting, a felony that would potentially impact his ability to remain in 

the United States, if he were here illegally, and that his involvement could have led him 

to be deceptive about the case. Villasenor’s counsel added that she had received 

information that Roberto had applied for either legal residency or some form of “victim 

of a crime” residency as a result of his involvement in the case, and she requested the 

prosecutor investigate further. 

The trial court explained that, at the time the question was posed, it had not 

believed there was a basis to ask it, “particularly in light of current law.” But it did 

permit an investigating officer to ask Luis, off the record, if he was a United States 

citizen or on a work visa. Luis declined to answer any of the officer’s questions. As a 

result, the trial court tentatively ruled there would be no questions asked of Luis “as to his 
35.

status in this country, whether he’s a citizen, whether he’s on a work Visa, whether it’s 

something different.” However, the trial court did allow the parties to brief the issue. 

The following week, the trial court revisited the issue and ruled that the fact that 

someone may not be a legal resident, on its own, was not admissible under Evidence 

Code sections 351.4 and 352. But, it held that, if there was some benefit provided to the 

witness by the government, discovery of that benefit would be provided to the defense 

and the trial court would reconsider its ruling. 

The following day, the prosecutor sent an e-mail to the court and parties stating 

that Roberto was aware of the possibility that a “status benefit” might arise based on his 

being a victim, but he claimed he had not formally inquired about it or followed through 

with anything. According to the prosecutor, the police department denied Roberto’s 

request for a copy of the police report in the case, but it had not received any immigration 

status requests from him. The prosecutor believed Luis was aware at that time of the visa 

procedure, as likely brought to his attention by the victim advocate, but he had not filed 

an application for it. 

The trial court then held an in-camera hearing with Luis, who denied being offered 

any money or a visa by any government agency in connection with this case. He also 

denied having applied for a visa or for residency in the United States as a victim of a 

crime. 

The trial court also held an in-camera hearing with Roberto, who denied being 

offered any money or compensation by the government for testifying in this case. He 

also denied looking into or applying for a visa or residency as a result of his involvement 

in this case. Roberto testified that he had “just found out” that applying for a visa or 

residency as a result of his status as a victim in this case was an option for him, but he 

had not applied for it. 

The trial court then ruled that it was prohibiting any questions about the issue. 

No Abuse of Discretion on the Part of the Trial Court 
36.

A trial court’s order is presumed correct and the appellant has the burden to 

demonstrate the court committed reversible error. (People v. Alvarez (1996) 49 

Cal.App.4th 679, 694.) Relevant evidence is admissible evidence (Evid. Code, §§ 350, 

351), and can include “evidence relevant to the credibility of a witness.” (Evid. Code, 

§ 210.) “As a general matter, a defendant is entitled to explore whether a witness has 

been offered any inducements or expects any benefits for his or her testimony, as such 

evidence is suggestive of bias.” (People v. Brown (2003) 31 Cal.4th 518, 544.) Indeed, 

statutory authority provides that impeachment evidence regarding a witness’s motivation 

to lie can be deemed relevant to prove a disputed material fact. (See Evid. Code, §§ 210, 

780, subd. (f).) 

However, although “ ‘[c]ross-examination to test the credibility of a prosecuting 

witness in a criminal case should be given wide latitude’ [citation], such latitude does not 

‘prevent the trial court from imposing reasonable limits on defense counsel's inquiry 

based on concerns about harassment, confusion of the issues, or relevance’ [citations].” 

(People v. Brown, supra, 31 Cal.4th at p. 545.) It is well established that a trial court has 

substantial discretion to exclude collateral evidence used to attack witness credibility 

(People v. Thornton (2007) 41 Cal.4th 391, 428-429), and “a trial court’s [evidentiary] 

ruling will not be disturbed, and reversal of the judgment is not required, unless the trial 

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

resulted in a manifest miscarriage of justice.” (People v. Guerra (2006) 37 Cal.4th 1067, 

1113, overruled on another point by People v. Rundle (2008) 43 Cal.4th 76, 151.)

We find the circumstances shown by the record do not support an argument that 

the trial court abused its discretion in making its ruling. We acknowledge that a witness’s 

desire to obtain a visa could color his testimony and, under some circumstances, be 

compelling evidence of bias. Here, however, the evidence to support an inference of bias 

or motive was weak.
37.

There was no evidence that either Luis or Roberto applied, or intended to apply, 

for a U visa, nor is there any evidence either was aware of the U visa program at the time 

they met with the investigating officer, or that their testimony at trial was materially 

inconsistent with their initial statements to police or their preliminary hearing testimony. 

The issue of whether Luis and Roberto were aware of or intended to apply for a U visa 

was therefore a collateral one and had no direct relationship with the facts surrounding 

the alleged crimes. (See People v. Rodriguez (1999) 20 Cal.4th 1, 9.) The relationship 

between Luis and Roberto’s credibility as a witness and a potential motivation to testify

untruthfully based upon benefits theoretically available through a U visa was too tenuous 

to make the issue relevant for cross-examination at trial. 

Villasenor cites to three out-of-state cases to argue error occurred. We find the 

cases unpersuasive because their circumstances bare little similarity to the material 

circumstances of this case. First and foremost, all of the cases cited to by Villasenor 

involved circumstances in which the alleged victim had already applied for a U visa by 

the time of the defendant’s trial. (Romero-Perez v. Commonwealth (Ky.Ct.App. 2016) 

492 S.W.3d 902, 904 (Romero-Perez) [At trial, during prosecution's case-in-chief, 

defendant sought to cross-examine alleged domestic violence victim about the fact that 

she had applied for a U visa]; State v. Del Real-Galvez (Or.Ct.App. 2015) 270 Or.App. 

224, 226 (Del Real-Galvez) [“As defendant’s case proceeded to trial, [sexual abuse 

victim's] mother applied for a U visa to remain in the United States and based her 

application on [victim's] allegations that defendant had sexually abused and coerced 

[victim]”; State v. Valle (Or.Ct.App. 2013) 255 Or.App. 805, 807 (Valle) [“During the 

trial in this case, defendant sought to cross-examine [alleged sexual abuse victim] about 

the fact that she had applied for the U visa”].) Indeed, in Romero–Perez, the fact that the 

victim’s U visa application was pending before the trial court at the time of trial was cited 

by the appellate court as the primary basis for finding error in the trial court's exclusion 
38.

of cross-examination regarding the U visa. (Romero-Perez, supra, 492 S.W. at p. 903.) 

In contrast here, neither Luis nor Roberto had applied for a U visa.

In sum, the cases cited by Villasenor do not persuade us that the trial court 

committed error when it ruled to prohibit cross-examination about Luis or Roberto’s 

possible intention to apply for a U visa or some sort of immigration relief.

Evidence Code Section 352

A balancing of the probative value of the cross-examination at issue against its 

potential prejudice, pursuant to Evidence Code section 352, also supports our conclusion 

to affirm the trial court’s ruling. Evidence Code section 352 authorizes a court to 

exercise its discretion to exclude evidence if the evidence’s probative value is 

substantially outweighed by its prejudicial impact.

In People v. Villa (2020) 55 Cal.App.5th 1042 (Villa), the Fourth District affirmed 

a trial court's decision to exclude evidence that a victim had an outstanding application 

for a U visa at the time of trial. (Id. at pp. 1047-1048.) At an Evidence Code section 402 

hearing, the victim stated that she learned about the U visa program after she testified at 

the preliminary hearing. (Villa, at p. 1048.) She completed the U visa application and 

“understood she would have to cooperate with the prosecution of the case, testify if she 

was subpoenaed, and testify truthfully.” (Ibid.) The trial court excluded the evidence 

under Evidence Code section 352, finding that its probative value was “far outweighed by 

‘the tendency of that particular item to open up a massive inquiry requiring an undue 

consumption of court time and tending to confuse issues and invite jury speculation.’ ” 

(Villa, at p. 1048.) Recognizing that the victim’s application for a U visa was relevant 

impeachment evidence, the trial court observed that the victim’s trial testimony was 

similar in all material respects to her preliminary hearing testimony during which she was 

unaware of the U visa process. (Id. at p. 1052.) The trial court then balanced the limited 

probative value of the evidence against the “ ‘huge chunk of time’ ” necessary to evaluate 

the victim’s motivation, such as whether she changed her story after the preliminary 
39.

hearing when she learned of the U visa program, her beliefs about what the prosecution 

expected from her, and the status of her application. (Id. at p. 1053.) The trial court 

affirmed the exclusion of the evidence, explaining that, among other reasons, the 

evidence could prejudice the jury against the undocumented victim. (Ibid.)

Villasenor attempts to distinguish Villa from his own case, noting that the trial 

court in Villa conducted an analysis on the record pursuant to Evidence Code section 352, 

which was not done here. However, even if a trial court does not conduct such an 

analysis, the section provides grounds to affirm the correctness of the trial court's ruling 

on appeal. (People v. Zapien (1993) 4 Cal.4th 929, 976.)

Accordingly, we find the marginal probative value of cross-examining Luis and 

Roberto about any possible intention to apply for a U visa was substantially outweighed 

by the probability that the issue would have created a substantial danger of undue 

prejudice at trial. (Evid. Code, § 352.) First, the collateral nature of the issue, by itself, 

minimized its probative value and emphasized the possibility of it prejudicing or 

confusing the jury. (See People v. Lavergne (1971) 4 Cal.3d 735, 742.) It is also clear 

the proffered cross-examination issue presented a significant potential for prejudice 

because it would have involved discussing Luis and Roberto’s right to be present in this 

country. (Romero-Perez, supra, 492 S.W.3d at p. 906 [“In short, the U visa creates a 

pathway whereby an illegal immigrant may be able to obtain lawful permanent residency 

within three years”]; cf. Evid. Code, § 351.4 [“[E]vidence of a person's immigration 

status shall not be disclosed in open court” prior to an in camera hearing conducted to 

determine the admissibility of the evidence].) Indeed, our Legislature, enacting Evidence 

Code section 351.4 (Stats. 2018, ch. 12, § 2), recognized that the issue of illegal 

immigration is a sensitive one in this state. (Id. § 3, reprinted at Historical and Statutory 

Notes, 29B pt. 1A, West’s Ann. Evid. Code (2019 supp.) foll. Evid. Code, § 351.4, p. 53 

[“In order to immediately help protect undocumented residents of California and their 

ability to participate in the California justice system, it is necessary that this act take 
40.

effect immediately”].) Accordingly, we find no abuse of discretion on the trial court’s 

part in ruling to exclude the evidence, because the probable prejudicial effect of the 

proposed cross-examination issue substantially outweighed its probative value pursuant 

to Evidence Code section 352.

V. ENACTMENTS TO SECTION 1170 REQUIRE REMAND

Villasenor next claims that his case must be remanded to the trial court for 

resentencing under amended section 1170, subdivision (b)(6). The People concede the 

issue, and we remand for resentencing.

Background

As applicable here, Villasenor was sentenced to state prison for an aggregate 

determinate term of 12 years, which included the middle term of two years on count 5, 

the middle term of four years on the corresponding firearm enhancement, and the middle 

term of three years on the corresponding gang enhancement. Villasenor was also 

sentenced to the middle term of two years on count 7, the middle term of four years on 

the corresponding firearm enhancement, and the middle term of three years on the 

corresponding gang enhancement, to be served concurrent with count 5. Villasenor was 

21 years old at the time he committed the offenses. 

Applicable Law and Analysis

Effective January 1, 2022, our determinate sentencing law, section 1170, was 

amended in several fundamental ways. (See Sen. Bill No. 567 (2020–2021 Reg. Sess.); 

Stats. 2021, ch. 731, § 1.3; Assem. Bill No. 124 (2020–2021 Reg. Sess.); Stats. 2021, ch. 

695, § 5.) Relevant here, Senate Bill No. 567 amended section 1170, former subdivision 

(b) by making the middle term the presumptive sentence for a term of imprisonment 

unless certain circumstances exist. (Stats. 2021, ch. 731, § 1.3, adding § 1170, subd. 

(b)(1), (2).) This bill also created a presumption in favor of a low prison term when a 

defendant is under 26 years of age at the time of the offense. (Stats. 2021, ch. 695, § 4, 

adding § 1016.7; Stats. 2021, ch. 695, § 5.1, adding § 1170, subd. (b)(6)(B).) 
41.

Section 1170, subdivision (b)(6) provides: “[U]nless the court finds that the 

aggravating circumstances outweigh the mitigating circumstances that imposition of the 

lower term would be contrary to the interests of justice, the court shall order imposition 

of the lower term if any of the following was a contributing factor in the commission of 

the offense: [¶] ... [¶] (B) The person is a youth, or was a youth as defined under 

subdivision (b) of Section 1016.7 at the time of the commission of the offense.” (§ 1170, 

subd. (b)(6); see § 1016.7, subd. (b) [“A ‘youth’ for purposes of this section includes any 

person under 26 years of age on the date the offense was committed”].)

Section 1170, subdivision (b)(6)(B) does not require imposition of the lower term 

in every case in which the defendant was under age 26 at the time the crime was 

committed. Rather, this provision establishes a presumption of the lower term if the 

defendant’s youth was “a contributing factor” in his or her commission of the crime 

“unless the court finds that the aggravating circumstances outweigh the mitigating 

circumstances that imposition of the lower term would be contrary to the interests of 

justice.” (§ 1170, subd. (b)(6).) 

The People correctly concede the amended version of section 1170, subdivision 

(b) that became effective on January 1, 2022, applies retroactively in this case as an 

ameliorative change in the law applicable to all nonfinal convictions on appeal. (People 

v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308.) Under established law, we “assume, 

absent evidence to the contrary, that the Legislature intended an ‘amended statute to 

apply to all defendants whose judgments are not yet final on the statute’s operative 

date.’ ” (People v. Lopez (2019) 42 Cal.App.5th 337, 341.) “For the purpose of 

determining the retroactive application of an amendment to a criminal statute, the finality 

of a judgment is extended until the time has passed for petitioning for a writ of certiorari 

in the United States Supreme Court.” (Id. at pp. 341-342, citing People v. Vieira (2005) 

35 Cal.4th 264, 305-306.) 
42.

Villasenor was 21 years old at the time he committed the offenses in July of 2018. 

Because the trial court imposed the middle terms for Villasenor’s sentences on counts 5 

and 7, as well as the corresponding firearm enhancements14, we agree with the parties 

that under section 1170, subdivision (b), Villasenor’s sentence must be vacated and 

remanded to the trial court to decide under the newly amended law whether he is entitled 

to the lower term on count 5 and 7.

VI. SECTION 654

Villasenor contends that the matter must also be remanded to permit the trial court 

to exercise new sentencing discretion provided by Assembly Bill No. 518 (2021-2022 

Reg. Sess), which amended section 654 and passed while this appeal was pending. 

(Stats. 2021, ch. 441, § 1.) The People agree the new law applies here, but contend that, 

since this case is being remanded already, we need not address the issue further and 

Villasenor can raise the claim at the time of resentencing. We agree with the parties that 

Assembly Bill No. 518 applies retroactively to Villasenor’s nonfinal sentence and remand 

the matter. 

Applicable Law and Analysis

Effective January 1, 2022, “Assembly Bill 518 amended Penal Code section 654, 

subdivision (a) to provide, in pertinent part: ‘An act or omission that is punishable in 

different ways by different provisions of law may be punished under either of such

provisions, but in no case shall the act or omission be punished under more than 

one provision.’ (Italics added.) Previously, where Penal Code section 654 applied, the 

sentencing court was required to impose the sentence that ‘provides for the longest 

potential term of imprisonment’ and stay execution of the other term. (Pen. Code, § 654, 

former subd. (a).) As amended by Assembly Bill 518, Penal Code section 654 now 

14 As addressed in part III., ante, the gang enhancements attached to counts 5 and 7 

are reversed. 
43.

provides the trial court with discretion to impose and execute the sentence of either term, 

which could result in the trial court imposing and executing the shorter sentence rather 

than the longer sentence.” (People v. Mani (2022) 74 Cal.App.5th 343, 379.) 

Assembly Bill No. 518 applies retroactively to Villasenor’s nonfinal sentence. 

(See People v. Mani, supra, 74 Cal.App.5th at p. 379.) 

Defendants “ ‘are entitled to sentencing decisions made in the exercise of the 

“informed discretion” of the sentencing court. [Citations.] A court which is unaware of 

the scope of its discretionary powers can no more exercise that “informed discretion” 

than one whose sentence is or may have been based on misinformation regarding a 

material aspect of a defendant's record.’ [Citation.] In such circumstances, [our Supreme 

Court has] held that the appropriate remedy is to remand for resentencing unless the 

record ‘clearly indicate[s]’ that the trial court would have reached the same conclusion 

‘even if it had been aware that it had such discretion.’ ” (People v. Gutierrez (2014) 58 

Cal.4th 1354, 1391.) 

At Villasenor’s 2021 sentencing, the trial court followed the then relevant 

statutory dictate by staying the shorter sentence on the section 186.22, subdivision (a) 

offense and corresponding firearm enhancement in lieu of the greater punishment for the 

false imprisonment convictions. Although the trial court gave no reason for selecting the 

longer term, it did state at sentencing that it had reviewed and considered the probation 

officer’s report which recommended the sentence on count 8 be stayed pursuant to 

section 654 as it “arise[s] from the same set of operative facts as other counts with a 

greater punishment being recommended.” Thus, the trial court was “unaware of the 

scope of its discretionary powers” and the appropriate remedy is to remand for 

resentencing. (People v. Gutierrez, supra, 58 Cal.4th at p. 1391.) We express no opinion 

on how the trial court should exercise its discretion.

We note, however, that here, as discussed in part III., ante, we reverse the section 

186.22, subdivision (a) substantive offense due to the changes in Assembly Bill 333 and 
44.

remand to allow the prosecution to retry the offense if they so choose. Taking the section 

186.22, subdivision (a) out of the sentencing equation essentially moots the issue as now 

framed by Villasenor. However, on remand, Villasenor is able to raise his sentencing 

claims at resentencing, as the trial court may revisit all of its prior sentencing decision 

under section 654, as amended. (People v. Valenzuela (2019) 7 Cal.5th 415, 424-425 

[“[T]he full resentencing rule allows a trial court to revisit all prior sentencing decisions 

when resentencing a defendant”]; see also People v. Jones (2022) 79 Cal.App.5th 37, 46 

[where a defendant’s sentence is potentially affected by recent amendments to sections 

654 and 1170, subdivision (b), remand for a full resentencing is appropriate].)

VII. PROSECUTORIAL MISCONDUCT/INEFFECTIVE ASSISTANCE OF 

COUNSEL

Villasenor joins Ulloa’s argument that the prosecutor engaged in deception, which 

caused the trial court to improperly deny the motion to sever and bifurcate the gang 

allegations. Villasenor also contends that, if we find the issue of prosecutorial 

misconduct has been waived, defense counsel was ineffective for failing to object to the 

prosecutor’s alleged misstatement. 

Background

At the preliminary hearing, Cisneros, the owner of the corrals where the incident 

took place, testified that he first noticed “something unusual” on the evening of July 26, 

2018, when he saw a truck belonging to Villasenor leave the corral. The truck was being 

driven by Ulloa, whom Cisneros knew as “little Casper,” because that was what 

“[e]verybody in Arvin” called him. Cisneros had known Ulloa since he was a child. 

Prior to trial, as addressed in part III., ante, Ulloa filed a written motion, joined by 

Villasenor, asking that the gang allegations and evidence be severed or bifurcated. At the 

hearing on the motion to bifurcate, the prosecutor explained that, while she was not aware 

of anything said or any gang signs displayed at the time of the incident about Arvina 13, 

Mosqueda had visible gang-related tattoos “plastered on his face and his head”, which 
45.

would have been apparent to the victims. Ulloa’s counsel countered that neither Ulloa 

nor Villasenor had any visible tattoos, none of the victims knew Mosqueda’s tattoos to be 

gang-related, none of them had any idea whether the crime was committed by gang 

members, and there was no other evidence to indicate to the victims that the perpetrators 

were gang members. Villasenor’s counsel joined in these comments. 

The prosecutor then cited page 215 of the preliminary hearing transcript and 

referred to testimony “of a victim” who knew Ulloa was known as “Lil Casper,” his gang 

moniker. The prosecutor reasoned that “these victims know who these individuals are, 

they know what their monikers are” and, because the victims were aware the perpetrators 

were gang members, bifurcation was not appropriate. The prosecutor argued against 

bifurcation, reasoning that, “Based on the fact that at least one victim knows of Mr. 

Ulloa’s moniker does show that they are aware that these people may be gang members 

and goes to the fear and whether or not they fight back or not.” 

Ulloa’s counsel repeated that the evidence showed the victims “said they had no 

idea who [Ulloa] was.” Villasenor’s counsel also noted that the page in the preliminary 

hearing transcript cited by the prosecutor did not reference Ulloa being a gang member or 

demonstrate any knowledge that he was a gang member, only that Ulloa had a moniker. 

The trial court reviewed and recited the relevant pages of the preliminary hearing 

transcript and then discussed relevant case law and legal concepts applicable to a 

bifurcation motion. In denying the motion to bifurcate, the trial court found that gang 

evidence, generally speaking, was relevant, admissible, and, “at this point,” was not more 

prejudicial than probative. 

Applicable Law and Analysis

Villasenor alleges the prosecutor’s labeling of Cisneros as a “victim” and his 

knowledge of Ulloa’s gang moniker as evidence that the victims knew the perpetrators 

were gang members was intentionally deceptive. The People argue Villasenor failed to 

object to the prosecutor’s designation of Cisneros as a victim and thereby forfeited the 
46.

claim. To the extent this claim is forfeited, Villasenor claims he received ineffective 

assistance of counsel, which we will address. 

“A prosecutor’s conduct violates the Fourteenth Amendment to the federal 

Constitution when it infects the trial with such unfairness as to make the conviction a 

denial of due process. Conduct by a prosecutor that does not render a criminal trial 

fundamentally unfair is prosecutorial misconduct under state law only if it involves the 

use of deceptive or reprehensible methods to attempt to persuade either the trial court or 

the jury.” (People v. Morales (2001) 25 Cal.4th 34, 44; see People v. Mendoza (2007) 42 

Cal.4th 686, 700.) “The focus of the inquiry is on the effect of the prosecutor’s action on 

the defendant, not on the intent or bad faith of the prosecutor.” (Mendoza, supra, at p. 

700.) “ ‘A defendant’s conviction will not be reversed for prosecutorial misconduct,

however, unless it is reasonably probable that a result more favorable to the defendant 

would have been reached without the misconduct.’ ” (People v. Tully, supra, 54 Cal.4

th

at p. 1010.) 

As a threshold matter, Villasenor acknowledges that a defendant may not 

complain on appeal of prosecutorial misconduct unless he objected on the same ground 

and timely requested an adequate remedy. (People v. Samayoa (1997) 15 Cal.4th 795, 

841.) However, he argues that, to the extent his claim regarding prosecutorial 

misconduct is forfeited, his counsel provided ineffective assistance in failing to object. 

“ ‘A defendant whose counsel did not object at trial to alleged prosecutorial misconduct 

can argue on appeal that counsel’s inaction violated the defendant’s constitutional right to 

the effective assistance of counsel.’ ” (People v. Centeno (2014) 60 Cal.4th 659, 674; see 

People v. Lopez (2008) 42 Cal.4th 960, 966.) 

A criminal defendant has a Sixth Amendment right to the effective assistance of 

counsel. (Strickland v. Washington (1984) 466 U.S. 668, 687.) To prove ineffective 

assistance of counsel, a defendant must satisfy Strickland's two-part test requiring a 

showing of counsel’s deficient performance and prejudice. (Ibid.) A defendant bears the 
47.

burden of showing by a preponderance of the evidence that (1) counsel’s performance 

was deficient because it fell below an objective standard of reasonableness under 

prevailing professional norms, and (2) counsel's deficiencies resulted in prejudice. (Id. at 

pp. 688, 694; People v. Centeno, supra, 60 Cal.4th at p. 674; People v. Ledesma, supra, 

39 Cal.4th 641, 746.) 

As to deficient performance, a defendant “must show that counsel's representation 

fell below an objective standard of reasonableness” measured against “prevailing 

professional norms.” (Strickland v. Washington, supra, 466 U.S. at p. 688.) “Unless a 

defendant establishes the contrary, we shall presume that ‘counsel's performance fell 

within the wide range of professional competence and that counsel's actions and inactions 

can be explained as a matter of sound trial strategy.’ [Citation.] If the record ‘sheds no 

light on why counsel acted or failed to act in the manner challenged,’ an appellate claim 

of ineffective assistance of counsel must be rejected ‘unless counsel was asked for an 

explanation and failed to provide one, or unless there simply could be no satisfactory 

explanation.’ ” (People v. Ledesma, supra, 39 Cal.4th at p. 746.) A “mere failure to 

object to evidence or argument seldom establishes counsel’s incompetence.” (People v. 

Ghent (1987) 43 Cal.3d 739, 772; see People v. Centeno, supra, 60 Cal.4th at pp. 674-

675.)

The prejudice prong requires a defendant to establish “there is a reasonable 

probability that, but for counsel's unprofessional errors, the result of the proceeding 

would have been different.” (Strickland v. Washington, supra, 466 U.S. at p. 694.) “A 

reasonable probability is a probability sufficient to undermine confidence in the 

outcome.” (Ibid.) Prejudice must be affirmatively proved. (People v. Maury (2003) 30 

Cal.4th 342, 389.) Where a defendant fails to show prejudice, a reviewing court may 

reject a claim of ineffective assistance of counsel without reaching the issue of deficient 

performance. (See Strickland, at p. 697.)
48.

Here, the record reflects that Villasenor’s counsel was aware of the prosecutor’s 

inaccurate description of the evidence, but instead of formally objecting, relied on Ulloa’s 

counsel’s argument, which addressed the inaccuracy of the prosecutor’s comment and 

highlighted the evidence that the victims “had no idea who [Ulloa] was.” Villasenor’s 

counsel then further noted to the court that the statement referenced by the prosecutor did 

not establish Ulloa was a gang member, only that he was referred to by his moniker. 

Furthermore, the remarks were not made to the jury but to the trial court, which 

was aware and specifically reviewed the preliminary hearing testimony. Villasenor’s 

counsel could have reasonably determined that the trial court was not misled by the 

prosecutor’s statement – perhaps the trial court was not so focused on Cisneros as being a 

“victim,” (as the preliminary hearing transcript was clear that Cisneros was not present at 

the time of the shooting), but rather on Cisneros’s comment that “[e]verybody in Arvin” 

called Ulloa by his moniker, meaning his gang membership was well known. 

Even if Villasenor’s counsel should have formally objected, we find Villasenor 

was not prejudiced by this failure. Villasenor incorrectly focuses his prejudice analysis 

on whether it is reasonably probable he would have received a different verdict at trial. 

But the appropriate analysis is whether it is reasonably probable he would have received 

a more favorable outcome on the trial court’s bifurcation ruling. 

To the extent Villasenor reiterates arguments that were made to support his 

bifurcation claim, we have addressed that issue in part III., ante, and affirm our decision. 

We therefore reject Villasenor’s claim of ineffective assistance of counsel. 

VIII. SUFFICIENCY OF THE EVIDENCE ON GANG ENHANCEMENTS 

Villasenor, joining Ulloa’s argument, contends there was insufficient evidence to 

support the gang-related enhancements. Specifically, he argues that, under the law as it 

existed at the time of the trial, there was “insufficient evidence he committed any crime 

for the benefit of, at the direction of, or in association with a criminal street gang, and/or 
49.

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

members.” We disagree.15

“The standard of appellate review for determining the sufficiency of the evidence 

supporting an enhancement is the same as that applied to a conviction.” (People v. 

Weddington (2016) 246 Cal.App.4th 468, 483 (Weddington).)

We address this issue in accordance with the law applicable at the time of trial. To 

establish the gang enhancement under section 186.22, subdivision (b), the prosecution 

must establish “that the underlying felonies (1) were committed for the benefit of, at the 

direction of, or in association with any criminal street gang and (2) were committed with 

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

members.” (People v. Roberts (2017) 13 Cal.App.5th 565, 572.) 

“Because the first prong is worded in the disjunctive, a gang enhancement may be 

imposed without evidence of any benefit to the gang so long as the crime was committed 

in association with or at the direction of another gang member.” (Weddington, supra, 

246 Cal.App.4th at p. 484.) 

The second prong applies to any criminal conduct and can include the conduct 

underlying the charged offense. (People v. Albillar (2010) 51 Cal.4th 47, 66 (Albillar) 

[“ ‘There is no statutory requirement that this “criminal conduct by gang members” be 

distinct from the charged offense, or that the evidence establish specific crimes the 

defendant intended to assist his fellow gang members in committing’ ”]; see also People 

v. Vasquez (2009) 178 Cal.App.4th 347, 354.) Because intent is rarely susceptible of 

15 Although we agree with the People’s concession that the ameliorative changes 

wrought by Assembly Bill 333 require we reverse the true findings on the gang 

enhancements (see, part III., ante), and allow the prosecution to retry Villasenor under 

the Assembly Bill 333’s new requirements, we address Villasenor’s contention here 

because a successful challenge on sufficiency of the evidence would bar retrial (People v. 

Sek (2022) 74 Cal.App.5th 657, 669-670 [noting that double jeopardy clause would bar 

retrial if evidence is deemed insufficient under statute as it read at the time of trial, but 

not where prosecution failed to prove elements under statute amended after trial].) 
50.

direct proof, it must be inferred from the surrounding facts and circumstances. (People v. 

Kopp (2019) 38 Cal.App.5th 47, 72.) “For this reason, ‘we routinely draw inferences 

about intent from the predictable results of action.’ ” (People v. Miranda (2011) 192 

Cal.App.4th 398, 411.) 

Proof of association with a gang may be established with substantial evidence that 

two or more gang members committed the crime together, unless there is evidence that 

they were on a frolic and detour unrelated to the gang. (Weddington, supra, 246 

Cal.App.4th at p. 484.) In the instant matter, the prosecution presented substantial 

evidence that Villasenor, Ulloa, and Mosqueda were all members of the Arvina gang. 

Both Villasenor and Mosqueda had gang tattoos; Mosqueda had multiple gang tattoos on 

his head, and the incident took place in gang territory. In fact, Mosqueda was summoned 

to “help” assault the victims. (Albillar, supra, 51 Cal.4th at p. 62 [evidence that 

defendants came together as gang members to commit crimes constituted substantial 

evidence the crimes were committed in association with a gang].) Under these 

circumstances, Villasenor, Ulloa and Mosqueda “not only actively assisted each other in 

committing these crimes, but their common gang membership ensured that they could 

rely on each other's cooperation in committing these crimes.” (Id. at pp. 61-62.) 

Accordingly, there was more than sufficient evidence to satisfy the “in association” 

requirement of the first statutory prong. (Id. at p. 62; see also People v. Morales (2003) 

112 Cal.App.4th 1176, 1198 [“the jury could reasonably infer the requisite association 

from the very fact that defendant committed the charged crimes in association with 

fellow gang members”].) 

The California Supreme Court further concluded in Albillar, supra, 51 Cal.4th 47, 

that, “if substantial evidence establishes that the defendant intended to and did commit 

the charged felony with known members of a gang, the jury may fairly infer that the 

defendant had the specific intent to promote, further, or assist criminal conduct by those 

gang members.” (Id. at p. 68.) Accordingly, the evidence outlined above also satisfies 
51.

the jury's finding that the second prong of section 186.22, subdivision (b)(1) was 

satisfied. (Ibid.; see also People v. Miranda, supra, 192 Cal.App.4th at p. 

412 [substantial evidence supported finding of specific intent to benefit gang where 

defendant gang member committed crimes with two other members or associates of the 

gang in gang territory]; cf. People v. Franklin, supra, 248 Cal.App.4th 938, 949 [noting 

“scienter requirement may be satisfied with proof ‘that the defendant intended to and did 

commit the charged felony with known members of a gang,’ ” but concluding intent 

requirement not met where defendant committed crimes with members of a different 

gang].)

We thus conclude sufficient evidence supported the gang-related enhancement 

under section 186.22, subdivision (b) under the law as it existed at the time of trial. 

IX. CUMULATIVE ERROR

Villasenor finally contends cumulative error resulted from the combined effect of 

the individual errors alleged in his opening and reply briefs, as well as those adopted 

from Ulloa’s briefs. “Cumulative error is present when the combined effect of the trial 

court’s errors is prejudicial or harmful to the defendant.” (People v. Capers (2019) 7 

Cal.5th 989, 1017.) “The ‘litmus test’ for cumulative error ‘is whether defendant 

received due process and a fair trial.’ ” (People v. Cuccia (2002) 97 Cal.App.4th 785, 

795.) 

We have already concluded Villasenor’s substantive gang offense and gang 

enhancement allegations must be reversed and remanded for retrial if the prosecutor 

chooses to do so. We also remand for resentencing. In all other respects, we have either 

rejected Villasenor’s claims of error and/or found any errors, presumed or not, were not 

prejudicial. (People v. Stitely (2005) 35 Cal.4th 514, 560.) We therefore find no 

cumulative error. 

DISPOSITION
52.

We reverse the gang enhancements attached to count 5, 6, and 7, and the count 8 

gang substantive offense (along with the section 12022.5 firearm enhancement attached 

to that count) and remand to allow the People the option of retrying the gang 

enhancements and gang substantive offense under the amended law. We also remand for 

resentencing in accordance with sections 654 and 1170 as amended. We reject 

Villasenor’s other claims of error, and affirm the judgment in all other respects. 

FRANSON, J.

WE CONCUR:

HILL, P. J.

SMITH, J.