Filed 4/3/23 P. v. Batres CA2/1

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

ANDREW BATRES,

Defendant and Appellant.

 B313908

 (Los Angeles County

 Super. Ct. No. TA139632)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Ricardo R. Ocampo, Judge. Affirmed in 

part, reversed in part, and remanded with directions. 

Tanya Dellaca, under appointment by the Court of Appeal, 

for Defendant and Appellant. 

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

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Roberta L. Davis and Marc A. Kohm, Deputy 

Attorneys General, for Plaintiff and Respondent.

____________________________
2

Andrew Batres appeals from his convictions for the gangrelated second degree murder of Stephen Johnson and possession 

of a firearm by a felon. Batres was tried along with codefendants 

Cedrick Devontae Parker and Deandray Bonner, who were 

charged not only with the Johnson murder, but also with 

multiple other murders, attempted murders, and other violent 

crimes including robbery, carjacking, and assault with a firearm, 

none of which involved Batres.

On appeal, Batres argues the trial court erred by trying 

him jointly with his codefendants. Batres contends the extensive 

evidence of Parker’s and Bonner’s violent acts and gang 

affiliation was inflammatory and prejudicial to him, and led the 

jury to find him guilty by association.

Batres further argues substantive amendments to the 

criminal street gang statute enacted after his conviction are 

retroactive, and require reversal of the gang findings against him 

as well as the firearm enhancement that relies on those gang 

findings. Batres asserts the new requirement under Penal Code 

section 1109 that gang enhancements be tried separately from 

the underlying offense similarly is retroactive, and entitles him to 

a new trial on the murder charge as well.

Finally, Batres argues other amendments to the Penal 

Code, as well as recent Supreme Court authority require reversal 

and resentencing on the firearm enhancement and the firearm 

possession count.

We find no error or unfairness in the trial court’s decision 

to try Batres jointly with Parker and Bonner. The prosecution’s 

theory was that the Johnson murder was a planned, gangmotivated murder in which Batres was a willing and knowing 

participant. Evidence of Parker’s and Bonner’s other gang-
3

motivated crimes around the same time tended to show the 

murder was part of a pattern of planned, gang-motivated 

violence, and not a spontaneous and unplanned event of which 

Batres might have been ignorant. Evidence of Parker’s and 

Bonner’s other crimes also was relevant because ballistic 

evidence from the Johnson murder matched ballistic evidence at 

the scenes of those other crimes.

The Attorney General concedes, and we agree, that the 

gang findings and firearm enhancement must be reversed in light 

of amendments to the Penal Code, which have changed the 

elements of the gang enhancement. We hold, however, that any 

failure to bifurcate under section 1109 was harmless, given that 

much of the gang evidence would have been admissible to prove 

the murder charge, and the evidence against Batres apart from 

the gang evidence was strong.

Finally, we agree with Batres that changes to the Penal 

Code affecting the trial court’s discretion in selecting the lower, 

middle, or upper term for sentencing require resentencing on the 

firearm possession count.

Accordingly, we affirm in part, reverse in part, and remand 

for retrial on the gang and firearm enhancements and for 

resentencing. 

BACKGROUND

1. Charges

On August 21, 2018, the People filed a 27-count 

information based on offenses committed between January 17, 

2016, and March 22, 2016. Count 10 charged Batres, Parker, and 

Bonner with the murder of Steven Johnson on or about March 21, 
4

2016 (Pen. Code,1 § 187, subd. (a)). The information alleged 

firearm enhancements against all defendants based both on 

personal discharge of a firearm and a principal’s discharge of a 

firearm (§ 12022.53, subds. (c)–(e)). The information further 

alleged the murder was committed for the benefit of, at the 

direction of, and in association with a criminal street gang 

(§ 186.22, subd. (b)(1)(C)).2 Count 27 of the information charged 

Batres with one count of possession of a firearm by a felon 

(§ 29800, subd. (a)(1)). 

The remaining counts in the information did not involve 

Batres. Parker and Bonner were jointly charged with conspiracy 

to commit murder (§ 182, subd. (a)(1)), carjacking (§ 215, 

subd. (a)), second degree robbery (§ 211), two counts of attempted 

murder (§§ 664/187, subd. (a)), driving or taking a vehicle without 

consent (Veh. Code, § 10851, subd. (a)); and assault with a 

firearm (§ 245, subd. (a)(2)).3

The information charged Parker individually with an 

additional count of murder (§ 187, subd. (a)), shooting at an 

occupied vehicle (§ 246), and five counts of possession of a firearm 

by a gang member (§ 25850, subd. (a)). 

1 Unspecified statutory citations are to the Penal Code.

2 As to the Johnson murder, the information alleged 

special circumstances based on multiple murders and gangrelated murder (§ 190.2, subds. (a)(3), (a)(22)), but these 

allegations were not presented to Batres’s jury. 

3 Deandre Clayton was charged as an additional defendant 

on the conspiracy and two attempted murder counts. Clayton 

was not tried with Batres, Parker, and Bonner, and is not party 

to this appeal. 
5

The information charged Bonner individually with robbery 

(§ 211), assault with a firearm (§ 245, subd. (a)(2)), burglary 

(§ 459), an additional count of murder (§ 187, subd. (a)), 

attempted murder (§§ 664/187, subd. (a)), shooting at an occupied 

vehicle (§ 246) (count 25), and four counts of possession of a 

firearm by a felon (§ 29800, subd. (a)(1)). 

As with the Johnson murder, for these additional crimes 

the information alleged criminal street gang enhancements on all 

counts except the firearm possession counts, and various firearm 

enhancements on all counts except the firearm possession counts 

and the count for driving or taking a vehicle without consent. 

The information further alleged special circumstances under 

section 190.2, subdivisions (a)(3), (21), and (22) on the murders 

for which Parker and Bonner were individually charged. 

2. Structure of trial

The prosecution sought to try Batres jointly with Parker 

and Bonner, and successfully moved to consolidate the cases. 

The prosecution requested, however, that Batres have a separate 

jury from Parker and Bonner, because the prosecution intended 

to introduce statements Batres made to an undercover agent, and 

those statements would not be admissible against Parker and 

Bonner. 

Batres moved to sever his trial from that of Parker and 

Bonner, arguing that in a joint trial, Batres’s jury would hear 

“voluminous evidence” concerning Parker’s and Bonner’s other 

gang-related offenses, in which Batres was uninvolved. Batres 

argued this created a risk that his jury would find him guilty 

merely based on his association with Parker and Bonner. 

The prosecution argued evidence of Parker’s and Bonner’s 

other charged offenses was cross-admissible in Batres’s case, 
6

including ballistic evidence linking the firearms used in the 

Johnson murder to other crimes perpetrated by Parker and 

Bonner, and evidence of Parker’s and Bonner’s gang affiliation to 

show motive for the Johnson murder and to show it was 

committed for the benefit of a criminal street gang. 

The trial court stated the trial would proceed with two 

juries, and the court would evaluate as necessary whether certain 

evidence pertinent to Parker and Bonner was inadmissible 

against Batres. On appeal, the parties do not dispute that 

Batres’s jury heard all, or nearly all evidence presented at trial, 

including the evidence pertaining to the crimes in which Batres 

was not involved.

3. Codefendants’ offenses prior to Johnson murder

We briefly summarize the circumstances underlying the 

crimes of which Parker and Bonner, but not Batres, were 

charged, evidence of which the prosecution presented at trial. 

Parker and Bonner were members of the Denver Lane 

Bloods gang. On January 17, 2016, Parker and Bonner stole a 

vehicle from Edward F. at gunpoint. Approximately 35 minutes 

later, Parker and Bonner used Edward F.’s vehicle to perpetrate 

a drive-by shooting at several persons, wounding Elliot W. The 

shooting took place in the territory of the Hoover Criminals, a 

rival gang to the Denver Lane Bloods. 

On February 21, 2016, Bonner fired multiple shots from his 

vehicle at a vehicle occupied by Nathaniel Ancar and 

Lateshia W., killing Ancar. 

On March 18, 2016, Parker fired a gun from his vehicle, 

killing Kaelen Warren, who was riding past on a minibike. 

On March 20, 2016, Parker and Bonner approached several 

individuals standing near a liquor store and displayed their 
7

handguns. One of the individuals shot at Parker and Bonner, 

who returned fire. The area was claimed by Crip gangs, rivals to 

the Denver Lane Bloods. 

On March 21, 2016, around 1 p.m., Bonner entered the 

motel room of Deon E. and robbed him at gunpoint.

4. The Johnson murder

a. Shooting and arrests

At approximately 11:20 p.m. on March 21, 2016, a witness, 

who was inside her home near the intersection of 88th Street and 

Baring Cross Street, heard gunshots. Looking out her window, 

she saw someone lying on the ground, and a young Black man 

with a gun run towards a Mercedes and climb into the back seat. 

The witness observed that the driver also was a Black male. The 

Mercedes drove off. 

The man lying on the ground was Steven Johnson. He had 

been shot five times and killed. Police found numerous spent 

ammunition cartridges at the scene in .380 and .40 caliber. 

At approximately 12:07 a.m. on March 22, 2016—less than 

an hour after Johnson was killed—a deputy sheriff in his patrol 

car observed a vehicle make a left turn without signaling. 

Intending to initiate a traffic stop, the deputy followed the vehicle 

into the parking lot of an apartment complex on San Pedro 

Street. The apartment complex was approximately a 10-minute 

drive from 88th Street and Baring Cross Street. 

Once in the parking lot, the deputy saw another vehicle, a 

silver Mercedes, backing out of a parking stall. As the deputy got 

out of his patrol car, three Black males got out of the Mercedes 

and ran away, leaving the doors open. 
8

Less than a minute later, the driver of the Mercedes got out 

and ran over to the area where the apartment complex’s trash 

receptacles were. The deputy followed, and saw the driver, later 

identified by the deputy as Parker, place a black object on the 

ground. The deputy and his partner detained Parker, and the 

deputy located a pistol at the spot where he had seen Parker drop 

the black object. The pistol was loaded with .40 caliber rounds. 

Having detained Parker, the deputy and his partner 

searched the Mercedes. They found a plastic bag with five live 

.380 caliber rounds, and an expended .380 caliber casing lying on 

top of the windshield wiper. 

As the deputy and his partner were searching the 

Mercedes, a man the deputy later identified as Batres 

approached them from the east side of the parking lot. Batres 

appeared nervous, was breathing fast, and was sweating a bit. 

He told the deputy the Mercedes was his, but two individuals had 

stolen it from him at gunpoint 45 minutes earlier, a block or two 

north from where they were. 

The deputy showed Parker to Batres and asked if he could 

identify him. Batres said he did not know Parker. 

The deputy determined the Mercedes belonged to a 

Rodolfo S. Rodolfo S., a mechanic, confirmed he had loaned the 

Mercedes to Batres while he repaired Batres’s car. The car was 

then released back to Batres. 

The next day, police encountered Bonner, who fled but was 

caught and arrested with the assistance of a K-9 unit. Police 

found a loaded .40 caliber handgun in Bonner’s vehicle. 

b. Batres’s statements to undercover agent

Months later, in August 2016, Batres was placed in custody 

in connection with a murder for which he ultimately was not 
9

charged. The police conducted a “Perkins” operation4 in which 

they placed an agent posing as a fellow inmate into a cell with 

Batres and recorded their conversation. Batres discussed both 

the uncharged murder and the Johnson murder with the Perkins

agent; the parties do not dispute that in that conversation Batres 

referred to the uncharged murder as “the first one” and the 

Johnson murder as “the second one.” Throughout the 

conversation, Batres referred to an individual nicknamed 

“Braze,” and another individual nicknamed “Kilo.” The 

prosecution established, and Batres on appeal does not dispute, 

that these nicknames referred to Bonner and Parker, 

respectively. We do not purport to summarize the entire 

conversation, but highlight relevant portions.

Batres told the agent the police had told him they had 

found his DNA at both crime scenes. Batres said, “For the first 

one, I did not touch no gun, but for the second one [i.e., the 

Johnson murder], I know I did. . . . [B]ut I know I didn’t bust it.” 

As to the “[s]econd one,” Batres said, “Braze did the whole thing.” 

Batres stated he did not know anything about the first murder, 

“[b]ut I know something about the second, for sure, for sure.” 

The agent asked if Batres might have left his fingerprints 

on any shell casings, and Batres answered, “I didn’t have no 

gloves or nothing.” The agent asked if Batres thought Bonner 

told the police that Batres was the shooter, and Batres said, “I 

don’t know. [unintelligible] I don’t ‘cause I—It’s like, it’s like I 

know what I did but I didn’t finish it though. You feel me? The 

. . . on bloods, like the . . . hop out of the car and . . . just did the 

4 Illinois v. Perkins (1990) 496 U.S. 292.
10

thing, did the whole thing.” Later, “But I already know—but I 

know what I did.” 

The agent asked if on “the second one,” in addition to 

Bonner, “Kilo” [i.e., Parker] also was there. Batres said, “Kilo 

was with me too.” Batres again said that Bonner “finished the 

whole fool off . . . . He told me. . . . Denver Lane Blood, boom, 

boom, boom.” Asked what guns they had, Batres said, “The 

second one, they had . . . a .40.” 

The agent asked what car the police had told Batres was 

involved in the Johnson shooting, and he said, “A Benz truck.” 

Asked if it was his, he said, “Yeah, yeah, it was, it was my car. I 

got robbed. I’m saying I got robbed.”5

The agent suggested Parker and Bonner must be talking to 

the police for the police to know so much. Batres said, 

“Somebody’s telling.” The agent asked if there might be other 

witnesses, asking, “When ya’ll got through popp’n, did you see 

anybody outside?” Batres answered, “Hell no, it wasn’t—I feel 

there wasn’t nobody outside.” 

The agent asked how Parker and Bonner were acting when 

they drove away after the shooting. Batres said, “[T]hey did some 

crazy shit, man. They did some, crazy shit. Kilo froze up, once he 

see the police coming into the uh, to the apartments. Then, it’s 

crazy ‘cause, he still . . . had a chance to run . . . .” Batres 

explained that Parker got caught with a .40 caliber pistol, and 

the police found the gun Bonner used “probably the next night.” 

5 Given Batres’s unequivocal statements to the agent that 

he was present with Bonner and Parker at the Johnson shooting, 

his statement that the car was stolen from him appears to be 

Batres telling the agent his explanation to the police, rather than 

actually claiming to have had the Mercedes stolen from him.
11

The agent suggested Batres should have “popped” Parker and 

Bonner before they snitched on him, and Batres said, “I should 

have, I should have, and should have popped Kilo for just 

freezing up . . . . What the fuck? You got a burner.” 

Batres said he never touched the .40 caliber pistol, and 

did not do any shooting. “I didn’t do nothing. [unintelligible] I 

feel like I’m being framed right now.” The agent said the police 

probably wanted the “trigger man,” and suggested Batres tell 

them Parker and Bonner did the shooting. Batres said, “That’s 

still conspiracy [to commit murder], though.” The agent said it 

wouldn’t be conspiracy if Batres was unaware of what Parker and 

Bonner planned to do. Batres said the police would ask, “[W]hy 

was y’all going on that side? What was the purpose of you guys 

even going around that area?” 

The agent told Batres it was a mistake to tell the police he 

had been carjacked, because someone had identified Batres as 

being at the Johnson shooting. Batres said, “But I know, but I 

know for a fact I wasn’t over there . . . .” The agent sought to 

clarify that Batres was talking about the first, uncharged murder 

not the Johnson killing. Batres said, “I wasn’t there either, so 

that’s like I got robbed. So basically I’m getting framed, I’m 

getting framed.” 

The agent asked if the police had the “burners” from the 

Johnson killing. Batres said, “[N]ot the .380, but I know for a 

fact they got the .40, the fuck’n .45.[6] That I didn’t even touch.” 

The agent asked if the .380 caliber weapon was “in the hood,” and 

Batres said, “Hell naw, that shit gone.” The agent urged Batres 

6 It is unclear to what .45 caliber weapon Batres refers. 

He may have mistakenly believed one of the two .40 caliber 

handguns used by Parker and Bonner was of a different caliber.
12

to be sure about that, and Batres said, “[H]ell naw that 

motherfucker is clean. I cleaned that motherfucker real good. 

Hell yeah.” 

The agent and Batres continued to discuss the events of the 

Johnson killing. The agent asked if Batres got out of the car 

during the shooting, and Batres said, “Hell naw, I didn’t get out 

of the car with them, hell naw.” Later, “I was in the car the 

whole time.” He reiterated, “I didn’t do nothing. I didn’t do no 

shooting.” 

c. Other evidence

The area in which Johnson was shot was claimed by the 

Hoover Criminals gang. A detective testified he learned in his 

investigation that Johnson was affiliated with that gang. When 

police later returned to the crime scene, they found writing on a 

fence indicating Johnson’s nickname, “Stelo,” with the letters 

“H.I.P.,” meaning “Hoover in Peace.” 

Ballistics evidence linked the shell casings found in the 

Mercedes and at the scene of the Johnson murder to other crimes 

committed by Parker and Bonner. Casings in .40 caliber found at 

the March 20, 2016, liquor store shootout matched casings at the 

Johnson murder, and were all fired from the gun Parker 

discarded. Different .40 caliber casings recovered from the 

Warren killing and the liquor store shootout matched casings 

found at the Johnson murder, and all were fired from the gun 

found in Bonner’s car. The .380 caliber casings matched casings 

recovered from the shooting of Elliot W. and the killing of 

Nathaniel Ancar, and all were fired from the same weapon. 

Police never found that weapon. 

Security camera footage showed Batres in the Mercedes the 

afternoon before Johnson’s murder. Other surveillance video 
13

showed a silver Mercedes SUV, similar to the one the mechanic 

loaned to Batres, being driven near the area of the Johnson 

shooting shortly before and shortly after the shooting. 

Batres’s cell phone records indicated he terminated his 

account the day after the Johnson killing. His records showed at 

some point he had made a call to a number associated with 

Parker. 

5. Gang evidence

To prove Parker and Bonner were members of the Denver 

Lane Bloods gang, the prosecution called Detective Christian 

Mrakich to opine on pages from Bonner’s Facebook account as 

well as videos from that account showing Parker and Bonner 

singing together while throwing gang signs, Bonner throwing 

gang signs by himself, and Bonner displaying his tattoos. 

Mrakich explained how the Facebook posts and messages 

indicated Parker’s and Bonner’s affiliation with the Denver Lane 

Bloods. For example, he interpreted language used in the 

Facebook posts and messages to indicate either Bonner’s fealty to 

the Denver Lane Bloods or disrespect to rivals of that gang, 

including the Hoover Criminals. Posts referred to a “homie” 

called “Keylow,” whom Mrakich explained was Parker. Some 

posts referred to firearms, and in three posts, Parker referred to 

himself or his friends as a “shooter” or “shooterz.” In several 

posts, Bonner purported to be in rival gang territory. In one 

exchange, someone reported being shot by the Hoover Criminals. 

The Facebook posts included some photographs of Bonner 

wearing clothing referencing the Denver Lane Bloods, making 

hand gestures disrespectful to the Hoover Criminals, or standing 

in front of Denver Lane Bloods graffiti. Parker was in one of the 

photographs also making gestures disrespectful to the Hoover 
14

Criminals. Another photograph showed Bonner and Parker with 

other individuals Mrakich identified as Denver Lane Bloods 

members. Mrakich interpreted some of the Facebook messages 

as Bonner attempting to obtain a gun. 

Mrakich testified regarding the Facebook videos, which he 

explained showed Bonner, or Bonner and Parker together, 

throwing gang signs, and Bonner displaying his tattoos. He also 

analyzed for the jury photographs of Bonner’s tattoos, and 

explained how the tattoos were connected to the Denver Lane 

Bloods. Mrakich stated that Parker’s tattoos were not gang 

related. 

Mrakich opined that Bonner was a member of the Denver 

Lane Bloods based on his tattoos, Facebook posts and messages 

with gang jargon, photographs and videos of Bonner displaying 

gang signs, Bonner’s association with other gang members, and 

recorded calls to which Mrakich had listened in which Bonner 

used gang jargon. Mrakich further opined that Bonner was an 

active gang member given how active he was on Facebook with 

gang-related messages. 

Mrakich similarly opined that Parker was an active 

member of the Denver Lane Bloods based on Bonner’s Facebook 

postings referring to Parker, the photographs and videos, 

Parker’s association with other gang members, and recorded calls 

to which Mrakich had listened. 

As for Batres, Mrakich opined that he was an active 

member of the Athens Park Bloods gang, which was a 

“neighboring Blood gang” to the Denver Lane Bloods and one of 

the Denver Lane Bloods “closest allies.” Mrakich said Batres’s 

moniker was “Wolf or Wolfy.” Mrakich discussed Batres’s tattoos 

and explained that several indicated affiliation with the Athens 
15

Park Bloods and enmity towards rival Crip gangs. Mrakich 

referred to photographs of Batres with other gang members 

throwing gang signs that were derogatory to the East Coast 

Crips, the primary rivals of the Athens Park Bloods. Mrakich 

had also listened to recorded conversations in which Batres used 

gang-related slang. 

Mrakich opined that, although Batres was an active gang 

member, Mrakich would “probably not” “put him on the same 

level as Mr. Parker and Mr. Bonner,” “but maybe aspiring to be 

or on his way to be.” 

Mrakich also provided background information about the 

Denver Lane Bloods. He described the gang’s primary activities 

as murder, robbery, drug sales, extortion of businesses, witness 

intimidation, pimping or pandering, sex trafficking, and white 

collar crime including fraud and forgery. 

To establish the gang’s predicate felonies, Mrakich testified 

about a robbery committed in 2015 by Joseph Quentin Tarver, 

whom Mrakich opined was a gang member. Mrakich knew of the 

crime because he was involved in the investigation. Mrakich also 

testified about a series of crimes, including robberies, committed 

by Kwabente Smith, whom Mrakich testified also was a gang 

member. Mrakich explained he knew about Smith’s case because 

the division in which Mrakich worked was not particularly large, 

and “when you’ve been there a long time, there’s people you know 

and you take interest in their arrests and there are certain 

events that happened in the arrest that make them of interest, 

interesting or exciting; and this just happened to be one of them.” 

Mrakich said there was no active feud or war between the 

Athens Park Bloods and Hoover Criminals, but in the past 

Athens Park members had joined with Denver Lane members to 
16

commit crimes against Hoovers, and Hoovers had committed 

crimes against the Athens Park and Denver Lane gangs as well. 

Mrakich explained that murder, assault, robbery, and other 

violent crimes benefit gangs because the crimes “promote [the 

gang’s] reputation as a fearsome gang,” which then allows the 

gang to “operate[ ] [it’s] criminal empire . . . with impunity 

without having any fear of people telling on them or snitching on 

them, because [the gang has] shown what the consequences could 

be.” Mrakich explained that the reputations of individual gang 

members similarly benefit from commission of violent crimes. 

The prosecution presented Mrakich with hypotheticals 

mirroring the various crimes preceding the Johnson murder of 

which Parker and Bonner were accused. Mrakich opined that 

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

the direction of a criminal street gang. 

The prosecution then presented a hypothetical mirroring 

the circumstances of the Johnson shooting, namely two Denver 

Lane Bloods members and an Athens Park Bloods member 

driving into Hoover Criminals territory and shooting a Hoover 

Criminals member at close range. Mrakich again opined that the 

shooting was committed for the benefit of, in association with, or 

at the direction of a criminal street gang. He opined the 

circumstances showed planning, with three gang members 

arming themselves, obtaining a vehicle, and driving into rival 

territory. “[T]hat means there is no misunderstanding between 

the occupants of that vehicle what they are there to do.” 

Mrakich opined that the benefit of the Johnson shooting to 

the gang and to the gang members would be “reputation amongst 

each other, building a strong bond between individual gang 

members, showing their ruthless reputation, their willingness 
17

and eagerness . . . to go into a rival hood to execute somebody.” 

“[M]urder is the ultimate crime, and committing that crime, 

obviously, will skyrocket the reputation of that particular gang.” 

It did not affect Mrakich’s opinion that the perpetrators were 

members of allied gangs rather than all members of the same 

gang. 

The prosecution asked Mrakich to assume that all of the 

prosecution’s hypotheticals were “connected” in that one or more 

of the same individuals was involved in each of the crimes. 

Mrakich stated that if the crimes were connected in that way, it 

“bolster[ed]” his opinion the crimes were for the benefit of, at the 

direction of, or in association with a criminal street gang. He 

explained that although even one crime increases the reputation 

of a gang, a “series of violent crimes together” has an 

“exponential” benefit in increasing the gang’s fearsome 

reputation. Gang members committing crimes together also 

serves as a “training tool” to “learn and practice their . . . trade or 

their skill,” and the gang’s improved reputation is a “very 

attractive recruitment tool.” 

6. Conviction and sentencing

Batres’s jury convicted him of second degree murder, and 

found true the allegation that he committed the crime for the 

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

street gang. The jury found not true the allegation that Batres 

personally discharged a firearm causing injury and death, but 

found true the allegation that a principal in the offense 

discharged a firearm causing great bodily injury. The jury also 

convicted Batres of possession of a firearm by a felon. 

At sentencing, the trial court found as factors in 

aggravation that the crime involved great violence, great bodily 
18

harm, a threat of great bodily harm, or other acts disclosing a 

high degree of cruelty, viciousness or callousness; the victim was 

particularly vulnerable; the circumstances of the crime indicated 

planning, sophistication, or professionalism; and Batres had 

engaged in violent conduct indicating a serious danger to society. 

As factors in mitigation, the trial court found Batres had a lesser 

role than his codefendants in the crime, and he had no significant 

prior record of criminal conduct. 

The trial court sentenced Batres to 15 years to life for the 

murder, with a consecutive term of 25 years to life for the firearm 

enhancement. Finding the factors in aggravation outweighed the 

factors in mitigation, the court imposed the high term of three 

years for the firearm possession count, to be served concurrently 

with the indeterminate sentence. Batres’s total sentence 

therefore was 40 years to life. The court awarded credit and 

imposed fines and fees.7

Batres timely appealed.

7 Parker and Bonner’s jury found them guilty of all 

charges, including the Johnson murder, and found all special 

circumstances and most enhancement allegations true. Parker 

and Bonner each received two terms of life without possibility of 

parole, along with determinate and indeterminate terms in 

excess of 200 years to life. (People v. Parker et al. (Sept. 24, 2021, 

B305256) [nonpub. opn.].) We affirmed the judgments against 

Parker and Bonner in an unpublished opinion. (Ibid.) 
19

DISCUSSION

A. The Trial Court Did Not Abuse its Discretion In 

Trying Batres With Parker and Bonner, Nor Was the 

Joint Trial Grossly Unfair

Batres argues the trial court’s decision to try him jointly 

with Parker and Bonner was an abuse of discretion that denied 

him a fair trial. 

Section 1098 states in relevant part, “When two or more 

defendants are jointly charged with any public offense, whether 

felony or misdemeanor, they must be tried jointly, unless the 

court order[s] separate trials.” Our Supreme Court has 

interpreted this section to indicate the Legislature’s 

“ ‘ “preference for joint trials.” [Citation.]’ [Citation.]” (People v. 

Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 378 (Bryant).)

The trial court nonetheless has the discretion to order 

separate trials “ ‘ “in the face of an incriminating confession, 

prejudicial association with codefendants, likely confusion 

resulting from evidence on multiple counts, conflicting defenses, 

or the possibility that at a separate trial a codefendant would 

give exonerating testimony.” [Citations.]’ . . . [Citation.]” 

(Bryant, supra, 60 Cal.4th at p. 379.)

“ ‘We review a trial court’s denial of a severance motion for 

abuse of discretion based on the facts as they appeared at the 

time the court ruled on the motion. [Citation.] If the court’s 

joinder ruling was proper at the time it was made, a reviewing 

court may reverse a judgment only on a showing that joinder 

“ ‘resulted in “gross unfairness” amounting to a denial of due 

process.’ ” ’ [Citation.]” (Bryant, supra, 60 Cal.4th at p. 379.)

Batres contends he was prejudiced by his jury hearing 

evidence of Parker’s and Bonner’s other crimes, to which he had 
20

no connection, as well as the extensive evidence of Parker’s and 

Bonner’s involvement with the Denver Lane Bloods. He argues, 

“The evidence related to Parker and Bonner and their other 

crimes . . . was wholly unrelated to [Batres] and any role he 

played in his charged crimes, was extensive, dominated the trial, 

forced [Batres’s] jury to sit through days of witness testimony not 

related to his charges, and prejudiced [Batres].” Batres argues 

the joint trial “prevented his jury from properly assessing [his] 

guilt, level of culpability or innocence for the Johnson murder on 

an individual and independent basis,” and “any doubt as to 

[Batres’s] role . . . was resolved by his mere association with 

Bonner and Parker and his presence in court with both men.” 

Batres contends the “central issue” before his jury was 

whether he participated in the murder of Johnson and did so for 

the benefit of the Denver Lane Bloods, “not whether the murder 

was committed as part of Bonner’s and Parker’s brazen gang 

related crime spree.” Batres argues the evidence against him 

would have been “vastly different” had he been tried separately. 

“For example,” he asserts, “tried alone, [Batres’s] jury [would] not 

hear any of the evidence used to prove Bonner’s and/or Parker’s 

guilt for the other attacks, and the amount of inflammatory gang 

evidence would have been drastically reduced, since [Batres’s]

jury would not need to find Bonner’s and Parker’s other crimes 

were gang related. As a result, the prosecution would be unable 

to aggregate the codefendants’ crimes into a global hypothetical 

question presented to the gang expert in order to ask whether the 

Johnson murder [w]as gang related. Rather, had [Batres] been 

tried separately, and the prosecution tried to introduce the 

details of his codefendants’ other unrelated crimes, such evidence 

would surely be excluded as irrelevant, cumulative and being 
21

more prejudicial than probative, or, at minimum drastically 

limited.” 

It is true that, apart from the Johnson murder, Batres 

was not charged with the other crimes of which Parker and 

Bonner were accused. This does not mean the entirety of the 

evidence of those other crimes, including the evidence they were 

gang-related, was not relevant to prove the circumstances of the 

Johnson murder such that significant portions of that evidence 

would be inadmissible in a hypothetical separate trial. 

The prosecution sought to prove that Batres joined Parker 

and Bonner in a planned, gang-motivated killing. Evidence that 

Parker and Bonner had engaged in a pattern of violent, gangmotivated crimes in the months and days preceding the Johnson 

killing, several of which Parker and Bonner committed together, 

tended to show Johnson’s murder was not an isolated, 

spontaneous incident, but part of that pattern of gang-motivated 

violence. If the prosecution established that pattern, it would 

weigh against an inference that the Johnson shooting was 

unplanned, that it was not gang-related, or that Batres was 

ignorant of Parker’s and Bonner’s intent when the three men 

drove into a rival gang’s territory that night. Thus, even if 

Batres were tried separately, evidence of Parker’s and Bonner’s 

other crimes would be relevant and admissible to show the 

Johnson murder was part of a larger pattern of gang violence 

perpetrated by Parker and Bonner, and therefore both planned 

and gang-motivated.8

8 Our conclusion does not assume or depend upon evidence 

that Batres knew of Parker’s and Bonner’s earlier crimes. 

Rather, the evidence that Parker and Bonner had planned and 

committed other gang-related crimes together suggested that the 
22

Evidence of the other crimes also was relevant because of 

the ballistics evidence connecting the weapons used in the 

Johnson shooting to other crimes in which Parker and Bonner 

were involved. The fact that the same weapons were used at 

other crime scenes at which Parker and Bonner were identified 

bolstered the prosecution’s position that Parker and Bonner 

perpetrated the Johnson murder as part of their pattern of gangmotivated violence, which in turn bolstered the prosecution’s 

position that Batres similarly had participated in a gangmotivated murder.

Given the prosecution’s theory that the Johnson killing was 

a planned, gang-motivated murder, and the cross-admissibility of 

the evidence of Parker’s and Bonner’s other crimes in support of 

that theory, the trial court did not abuse its discretion when it 

denied Batres’s motion for a separate trial. 

We further hold the trial court’s decision did not result in 

gross unfairness amounting to a denial of due process. As our 

Supreme Court has stated, “Naturally, anyone facing prosecution 

would rather be tried on a single charge, rather than multiple 

counts. Likewise, an accused would rather not be associated in 

the jury’s mind with other potentially unsavory characters.” 

(Bryant, supra, 60 Cal.4th at p. 381.) Nonetheless, a joint trial 

is not “unfair” simply because of “the possibility that one 

defendant’s chance of acquittal is reduced.” (Id. at p. 380; see 

id. at p. 381 [“Defendants are constitutionally entitled to a fair 

trial, not one that gives them the best possible chance for an 

acquittal.”].) 

Johnson killing similarly was planned, which would tend to 

suggest that Batres was aware of that plan.
23

Also, the fact that some evidence is introduced in the joint 

trial that might not have been introduced in a separate trial 

does not render a joint trial unfair: “[T]he issue is not whether a 

theoretical separate trial of one defendant would have been 

different, but whether the joint trial that actually occurred was in 

some manner prejudicially unfair or unreliable.” (Bryant, supra, 

60 Cal.4th at p. 381.) Thus, “[t]he argument that some evidence 

admitted at a joint trial might not have been admitted at a 

separate trial misses the mark.” (Ibid.)

As we have explained, much of the evidence to which 

Batres objects would have been relevant and admissible in a 

separate trial, including the evidence of Parker’s and Bonner’s 

other gang-motivated crimes. Perhaps some evidence would not 

have been offered or admitted, but that does not in and of itself 

render the joint trial unfair.

We further note that on this record, there is little likelihood 

the jury convicted Batres based merely on his association with 

Parker and Bonner, rather than his individual guilt. (Cf. Bryant, 

supra, 60 Cal.4th at p. 383 [“To justify severance the 

characteristics or culpability of one or more defendants must be 

such that the jury will find the remaining defendants guilty 

simply because of their association with a reprehensible person, 

rather than assessing each defendant’s individual guilt of the 

crimes at issue.”].) The most damning evidence against Batres 

was the recording of his conversation with the jailhouse Perkins

agent, in which Batres admitted to being present at Johnson’s 

murder, handling one of the pistols used, and then cleaning and 

getting rid of it. In that conversation, Batres himself 

acknowledged the implausibility of claiming he did not know 

what Parker and Bonner intended, stating that if he made such a 
24

claim, the police would ask, “[W]hy was y’all going on that side? 

What was the purpose of you guys even going around that area?” 

Given this evidence of guilt, we cannot find that the evidence 

pertaining to Parker’s and Bonner’s gang affiliation and other 

crimes rendered the joint trial grossly unfair.

Batres argues that when the prosecution presented 

Detective Mrakich with a “global hypothetical” linking all of 

Parker’s and Bonner’s crimes as gang-motivated, the prosecution 

effectively “link[ed] [Batres] to crimes he did not commit and 

show[ed] [Batres] was guilty by association. Again, we disagree. 

Batres identifies nowhere in the record in which the prosecution 

suggested he was involved in the other crimes. The evidence of 

the other crimes, as well as Mrakich’s opinion as to the “global 

hypothetical,” would have been admissible in a separate trial, as 

we have explained, to show the Johnson murder was not 

spontaneous and random but planned and gang-motivated.

Batres cites People v. Chambers (1964) 231 Cal.App.2d 23 

(Chambers) as an example of prejudicial joinder, but that case is 

factually distinguishable and inapposite. In Chambers, the 

owner of a rest home and his supervising nurse were jointly 

charged with assaulting a patient. (Id. at pp. 24–25.) The action 

was consolidated with another action in which the supervising 

nurse was charged with three additional assaults against the 

same patient, and all four assault charges were tried together. 

(Id. at p. 25.) The jury convicted the owner of the one charge 

against him, and the nurse of the four charges against her. 

(Ibid.)

The Court of Appeal reversed the owner’s conviction, 

concluding the owner “was probably convicted by association with 

[the nurse], in trial and otherwise, rather than by evidence of his 
25

personal guilt.” (Chambers, supra, 231 Cal.App.2d at p. 28.) The 

owner’s guilt was established through the testimony of a single 

eyewitness, a nursing assistant, which the appellate court noted 

suffered from inconsistencies and possible bias, and was 

countered by testimony and documentary alibi evidence from the 

defendants. (Id. at p. 29.) Thus, “[c]onsidered in isolation, the 

thin evidence of [the owner’s] guilt may well have failed to 

convince the jury.” (Ibid.)

On the other hand, “[t]he record . . . was inflated by 

extensive evidence of [the nurse’s] brutality, tending to fasten 

[the owner], as her employer, with moral responsibility for the 

acts of his employee.” (Chambers, supra, 231 Cal.App.2d at 

p. 29.) Specifically, the prosecution introduced evidence of the 

nurse’s attacks on and mistreatment of other patients over a 

period of six or seven years, with no evidence of “joint or 

conspiratorial action” involving the owner. (Id. at pp. 26–27.) 

The prosecution also inappropriately implied through crossexamination that the owner and nurse were lovers, “thus 

intensifying the notion of joint moral responsibility.” (Id. at 

p. 29.) The appellate court rejected the notion that evidence of 

uncharged misconduct was admissible in this case to show intent 

or a common plan or scheme, when the owner’s “intent was not in 

issue; nor were these separate and unconnected acts of violence 

asserted as separate manifestations of a common plan or 

scheme.” (Id. at p. 30.)

Chambers is distinguishable from the instant case. In 

Chambers, the evidence of the nurse’s assaults on patients had no 

bearing on the owner’s guilt or innocence, apart from the single 

instance in which she and the owner were jointly charged. Thus, 

the evidence of the nurse’s other assaults was irrelevant to the 
26

charge against the owner, and served only to inflame the jury 

against him.

In the instant case, in contrast, evidence of Parker’s and 

Bonner’s other offenses was relevant to the charges against 

Batres, because, as discussed, that evidence tended to show the 

crime in which Batres participated was planned and gangmotivated. Unlike in Chambers, Batres’s intent was an issue 

before the jury, and the evidence that the Johnson murder was 

part of a gang-motivated crime spree perpetrated by Parker and 

Johnson was relevant to Batres’s intent. Also, as discussed, 

evidence of Parker’s and Bonner’s other crimes was relevant to 

the ballistic evidence found at the Johnson murder. Finally, 

unlike the inconsistent and potentially biased eyewitness in 

Chambers, Batres himself provided the greatest evidence of guilt 

in his recorded jailhouse statements, which militates against a 

conclusion that the jury found him guilty solely through his 

association with Parker and Bonner.

B. Recent Amendments to the Penal Code Require 

Reversal of the Gang and Firearm Enhancements, 

But Not the Murder Conviction

Subsequent to Batres’s trial and conviction, Assembly Bill 

No. 333 (2021–2022 Reg. Sess.) amended the Penal Code to 

change the elements to prove criminal street gang enhancements 

under section 186.22. (Stats. 2021, ch. 699, § 4.) That bill also 

added section 1109, which requires the trial court to try the gang 

enhancement separately from the underlying offense if the 

defendant so requests. (Stats. 2021, ch. 699, § 5.) 

Batres argues all of these changes are retroactive and 

applicable to his judgment, which is not yet final. He contends 

that the changes to section 186.22 require reversal of his gang 
27

and firearm enhancements, both of which depend on findings 

under section 186.22. He further asserts section 1109 requires 

reversal of his murder conviction, which the jury decided in the 

same trial as the gang enhancement allegations. 

We agree, as does the Attorney General, that the gang 

and firearm enhancements must be reversed. We disagree 

section 1109 requires reversal of the murder conviction.

1. The gang and firearm enhancements must be 

reversed

Assembly Bill No. 333 made a number of changes to 

section 186.22, including narrowing the definition of “criminal 

street gang,” altering the requirements to establish predicate 

offenses, and narrowing the definition of “what it means for an 

offense to have commonly benefitted a street gang.” (People v. 

Tran (2022) 13 Cal.5th 1169, 1206 (Tran).) Because “[t]hese 

changes have the effect of ‘increas[ing] the threshold for 

conviction of the section 186.22 offense and the imposition of the 

enhancement,’ ” our Supreme Court has deemed the changes 

ameliorative, and therefore retroactive “ ‘to all cases that are not 

yet final as of the legislation’s effective date.’ [Citation.]” (Tran, 

at pp. 1206–1207.) 

Among the elements of the gang enhancement is that 

the underlying felony be committed “for the benefit of, at the 

direction of, or in association with a criminal street gang, with 

the specific intent to promote, further, or assist in criminal 

conduct by gang members . . . .” (§ 186.22, subd. (b)(1).) 

Assembly Bill No. 333 added a new subdivision (g) to the section 

stating, “As used in this chapter, to benefit, promote, further, or 

assist means to provide a common benefit to members of a gang 

where the common benefit is more than reputational. Examples 
28

of a common benefit that are more than reputational may 

include, but are not limited to, financial gain or motivation, 

retaliation, targeting a perceived or actual gang rival, or 

intimidation or silencing of a potential current or previous 

witness or informant.”

At trial, the prosecution relied on the opinion of Detective 

Mrakich to establish the “benefit” of Parker’s, Bonner’s, and 

Batres’s crimes to the Denver Lane Bloods. As the Attorney 

General concedes, in addressing the Johnson murder, the only 

benefit identified by Mrakich was reputational. Mrakich 

explained the benefit of the Johnson murder to the gang and 

gang members would be “reputation amongst each other, building 

a strong bond between individual gang members, showing their 

ruthless reputation, their willingness and eagerness . . . to go into 

a rival hood to execute somebody.” He further stated, “[M]urder 

is the ultimate crime, and committing that crime, obviously, will 

skyrocket the reputation of that particular gang.” 

Because reputational benefit no longer is a valid basis to 

impose an enhancement under section 186.22, subdivision (b), 

we reverse the true finding on Batres’s gang enhancement. 

We also reverse his firearm enhancement under section 12022.53, 

subdivision (e), which has as an element a violation of 

section 186.22, subdivision (b). (§ 12022.53, subd. (e)(1)(A); 

People v. Lopez (2021) 73 Cal.App.5th 327, 347–348 [reversal of 

true findings under § 186.22, subd. (b) requires reversal of true 

findings under § 12022.53, subd. (e)(1) as well].) On remand, the 

People may retry these allegations if the People so choose.9

9 Should the People elect to retry the firearm 

enhancement, we express no opinion whether the People must 

prove again that a principal in the offense discharged a firearm 
29

Batres argues his gang and firearm enhancements run 

afoul of additional provisions of the amended section 186.22, and 

also People v. Valencia (2021) 11 Cal.5th 818, which held that 

prosecutors cannot rely on hearsay to establish predicate 

offenses. (Id. at p. 838.) Given our holding, we decline to address 

these additional challenges.

Specific to the firearm enhancement, Batres further argues 

we should remand for resentencing because the trial court now 

has discretion under People v. Tirado (2022) 12 Cal.5th 688 to 

strike a firearm enhancement and impose a lesser uncharged 

firearm enhancement. (Id. at p. 692.) Batres also contends 

remand is necessary for the trial court to consider whether to 

impose a lesser term on the firearm enhancement under the 

guidance of the new subdivision (b)(6) of section 1170. Our 

reversal of the firearm enhancement moots these arguments, and 

we express no opinion on them. 

2. Any error in failing to bifurcate under 

section 1109 was harmless

Batres contends under section 1109, he is entitled to be 

retried on his murder charge with the gang allegations decided in 

a subsequent, separate trial. We conclude any error in failing to 

bifurcate the proceedings was harmless.

Section 1109, enacted under Assembly Bill No. 333, states, 

in relevant part, “If requested by the defense, a case in which a 

gang enhancement is charged under subdivision (b) or (d) of 

Section 186.22 shall be tried in separate phases as follows: [¶] 

causing great bodily injury or death, or only that Batres violated 

section 186.22, subdivision (b). The parties have not briefed that 

issue, and the trial court may address it in the first instance.
30

(1) The question of the defendant’s guilt of the underlying offense

shall be first determined. [¶] (2) If the defendant is found guilty 

of the underlying offense and there is an allegation of an 

enhancement under subdivision (b) or (d) of Section 186.22, there 

shall be further proceedings to the trier of fact on the question of 

the truth of the enhancement.” (§ 1109, subd. (a).)

In enacting section 1109, the Legislature expressed concern 

that “[g]ang enhancement evidence can be unreliable and 

prejudicial to a jury,” and “that allowing a jury to hear the kind of 

evidence that supports a gang enhancement before it has decided 

whether the defendant is guilty or not may lead to wrongful 

convictions.” (Stats. 2021, ch. 699, § 2, subds. (d)(6), (e).) The 

Legislature declared that “[b]ifurcation of trials where gang 

evidence is alleged can help reduce its harmful and prejudicial 

impact.” (Id., subd. (f).)

The Courts of Appeal are divided as to whether 

section 1109 is retroactive. (Compare, e.g., People v. Burgos

(2022) 77 Cal.App.5th 550, 554 [§ 1109 is retroactive], review 

granted July 13, 2022, S274743, with People v. Ramirez (2022) 

79 Cal.App.5th 48, 53 [§ 1109 is not retroactive], review granted 

Aug. 17, 2022, S275341.) The issue currently is pending before 

the Supreme Court.

We need not decide whether section 1109 is retroactive, 

however, because assuming arguendo it is, we conclude any error 

in failing to bifurcate the proceedings was harmless. (See Tran, 

supra, 13 Cal.5th at p. 1208 [declining to decide § 1109’s 

retroactivity because failure to bifurcate was harmless]). 

As an initial matter, we must determine the proper test to 

apply when assessing the assumed error in this case. Our 

Supreme Court has held that error under section 1109 is subject 
31

to the test for state-law harmless error under People v. Watson

(1956) 46 Cal.2d 818, unless the error rendered the trial 

“ ‘fundamentally unfair,’ ” in which case we apply the stricter 

harmless error standard under Chapman v. California (1967) 

386 U.S. 18. (Tran, supra, 13 Cal.5th at p. 1209, italics omitted.) 

Batres argues we should apply the Chapman standard 

“because the Legislature’s intent in enacting . . . section 1109 was 

to promote fairness to the accused, so its contravention will 

implicate[ ] the due process clause of the Fourteenth 

Amendment.” In making this argument, which is based on the 

Legislature’s intent in enacting section 1109 as opposed to the 

particular circumstances of his case, Batres seeks to apply the 

Chapman standard to any violation of section 1109. This 

argument necessarily fails, because our Supreme Court in Tran

made clear the Watson standard applies absent a case-specific 

showing of fundamental unfairness. (See Tran, supra, 13 Cal.5th 

at p. 1209 [finding constitutional prejudice “did not occur in this 

case,” and applying the Watson standard].) Because Batres 

makes no argument that under the particular circumstances of 

his case, the failure to bifurcate rendered his trial fundamentally 

unfair, we apply the Watson standard, under which we will 

uphold the judgment unless it is reasonably likely that exclusion 

of the gang evidence would change the jury’s verdict on the 

murder charge. (Tran, at p. 1209.)

We conclude it is not reasonably likely that bifurcation 

would have changed the jury’s verdict. Much of the evidence in 

support of the gang enhancement also was relevant to prove 

Batres’s murder charge, and would have been admissible for that 

purpose even in a bifurcated trial. (See People v. Ramos (2022) 

77 Cal.App.5th 1116, 1132 [“nothing in Assembly Bill 333 limits 
32

the introduction of gang evidence in a bifurcated proceeding 

where the gang evidence is relevant to the underlying charges”]; 

People v. Hernandez (2004) 33 Cal.4th 1040, 1049–1050 

(Hernandez) [“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.”].) 

For example, the evidence that Parker, Bonner, and Batres 

were active members of allied gangs, that those gangs were rivals 

of the Hoover Criminals, that the rivalry historically manifested 

in acts of violence between the rival gangs, that Parker and 

Bonner had engaged in such acts of violence numerous times in 

the months and days prior to the Johnson killing, and that 

Johnson himself was affiliated with the Hoover Criminals, tended 

to show the perpetrators’ motive and intent, and weighed against 

an inference that the murder of Johnson was anything other than 

an orchestrated gang shooting. (Hernandez, supra, 33 Cal.4th at 

p. 1049 [“Evidence of the defendant’s gang affiliation—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.”].)

Batres points out that in a bifurcated proceeding, the jury 

deciding Batres’s guilt on the murder charge would not hear 

evidence specific to the gang enhancement, such as the expert’s 

opinion as to the primary criminal activities of the Denver Lane 

Bloods and the predicate offenses committed by Tarver and 

Smith. None of this evidence was particularly prejudicial. The 

violent and criminal nature of Denver Lane Bloods members was 
33

illustrated more dramatically by the evidence of Parker’s and 

Bonner’s own actions, which as discussed would have been 

admissible in a bifurcated trial, than in Mrakich’s generic listing 

of gang crimes, or the brief mention of robberies committed by 

Tarver and Smith.

Batres further argues that in a bifurcated proceeding “the 

gang expert’s responses to hypothetical questions would be very 

different in scope since the issues of whether the shooting was for 

the benefit of, at the direction of or was in association with [the 

Denver Lane Bloods] would not be before the jury.” Given the 

need to prove, however, that Batres knowingly engaged in a 

planned attack with fellow gang members, the prosecution in the 

murder trial would still seek to establish through hypotheticals 

that when multiple gang members drive together into rival 

territory, they likely are working together to commit gangmotivated crimes. Thus, whatever damage Batres suffered from 

the expert’s assessment of the hypotheticals would exist even in a 

bifurcated trial. 

Finally, we note again that the strongest evidence of 

Batres’s guilt were his own statements to the Perkins agent, 

putting him at the scene of the murder in a vehicle with the two 

shooters, and admitting he handled, cleaned, and disposed of one 

of the weapons used. Even assuming some of the gang evidence 

would have been excluded from the guilt phase in a bifurcated 

trial, it is not reasonably likely the jury would have reached a 

different verdict given the jailhouse statements in combination 

with the other evidence we have discussed that would be 

admissible even in a bifurcated proceeding.
34

C. Changes to the Penal Code Require Resentencing on 

the Firearm Possession Count

Subsequent to Batres’s trial and conviction, the Legislature 

amended Penal Code section 1170 to add subdivision (b)(2), which 

prohibits the trial court from imposing the upper term on an 

offense based on circumstances in aggravation unless “the facts 

underlying those circumstances have been stipulated to by the 

defendant, or have been found true beyond a reasonable doubt at 

trial by the jury or by the judge in a court trial.” (Stats. 2021, 

ch. 731, § 1.3.) 

The parties agree section 1170, subdivision (b)(2) is 

retroactive to nonfinal judgments like Batres’s. (People v. Flores

(2022) 73 Cal.App.5th 1032, 1039 [amendments to § 1170, 

subd. (b) are retroactive].) The parties further agree, as do we, 

that the trial court sentenced Batres to the high term on the 

firearm possession count based on circumstances in aggravation 

the jury did not find true beyond a reasonable doubt and to which 

Batres did not stipulate. Accordingly, Batres must be 

resentenced on the firearm possession count in accordance with 

section 1170, subdivision (b)(2).

Also subsequent to Batres’s trial and conviction, the 

Legislature added another subdivision to section 1170, now 

codified as subdivision (b)(6). This subdivision requires the trial 

court to impose the lower term if certain circumstances apply, 

unless imposition of the lower term would be contrary to the 

interests of justice. The circumstances mandating imposition of 

the lower term include, inter alia, that the defendant “has 

experienced psychological, physical, or childhood trauma,” or the 

defendant was a youth when the offense was committed. (§ 1170, 

subd. (b)(6)(A), (B).) We agree with Batres that during 
35

resentencing the trial court should consider the factors under 

section 1170, subdivision (b)(6) to the extent they are applicable. 

DISPOSITION

The true findings and enhancements on count 10 under 

Penal Code sections 186.22 and 12022.53 are reversed. The 

sentence is vacated on all counts. The judgment otherwise is 

affirmed.

The matter is remanded to the trial court with directions to 

allow the People to retry defendant on the allegations under 

Penal Code sections 186.22, subdivision (b)(1) and 12022.53, 

subdivision (e) on count 10. Following retrial, or if the People 

elect not to proceed with retrial, the trial court shall resentence 

defendant, consistent with this opinion, and send a new abstract 

of judgment to the Department of Corrections and Rehabilitation.

NOT TO BE PUBLISHED.

BENDIX, J.

We concur:

ROTHSCHILD, P. J.

WEINGART, J.