Filed 1/6/23 P. v. Mendiola CA2/4

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSE MENDIOLA,

Defendant and 

Appellant.

 B313404

 (Los Angeles County

 Super. Ct. No. TA151048)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Kelvin D. Filer, Judge. Affirmed as 

modified and remanded with instructions.

Brad Kaiserman, 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, William H. Shin and Marc A. Kohm, Deputy 

Attorneys General, for Plaintiff and Respondent.
2

After a jury trial, appellant Jose Mendiola was found guilty 

of murdering Alexiz Orona; conspiring to murder and attempting 

to murder Orona’s boyfriend, Valentin Quintero; and shooting at 

an occupied motor vehicle. The jury found true various gang and 

firearm enhancements, and the court sentenced appellant to a 

total prison term of 70 years to life. 

Appellant now raises several challenges to his convictions 

and sentence. He contends all his convictions must be reversed 

because the trial court erred in denying his Batson/Wheeler1

challenge to the prosecution’s peremptory strikes of young 

Hispanic prospective jurors. He further contends his murder 

conviction must be reversed because the court erroneously 

instructed the jury it could return a verdict without deciding on 

the degree, accepted such a verdict, and deemed the conviction 

one for second degree murder under Penal Code section 1157.2

Appellant also contends the jury’s true findings on the gang 

enhancements and gang-related firearm enhancements must be 

reversed in light of Assembly Bill No. 333 (2021-2022 Reg. Sess.; 

Stats. 2021, ch. 699) (AB 333), which amended Penal Code 

section 186.22 to require proof of additional elements to establish 

a gang enhancement and added section 1109, which requires trial 

of gang allegations to be bifurcated if the defense so requests.

With regard to his sentence, appellant contends the court 

erred in sentencing him pursuant to section 190, subdivision (d)

in the absence of a jury finding that he shot Orona from a vehicle. 

1 Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. 

Wheeler (1978) 22 Cal.3d 258, overruled in part by Johnson v. 

California (2005) 545 U.S. 162 (Wheeler). 

2 All further statutory references are to the Penal Code 

unless otherwise indicated.
3

He further contends that Senate Bill No. 567 (2021-2022 Reg. 

Sess.; Stats. 2021, ch. 731, §§ 1.3, 3(c)) (SB 567) requires 

resentencing on the conviction for shooting at an occupied motor 

vehicle, because the court failed to make findings now required to 

sentence youthful offenders to the high term. Finally, he 

contends the court erred by imposing fines and fees without 

properly assessing his ability to pay them. 

Respondent Attorney General concedes AB 333 requires 

remand for retrial of the gang and gang-related firearm 

enhancements, and SB 567 and related Assembly Bill No. 124 

(2021-2022 Reg. Sess.; Stats. 2021, ch. 695) (AB 124) require 

remand for resentencing on the shooting count. We accept these 

concessions and agree that remand is required for these 

purposes. We further agree with appellant that the court erred 

in imposing sentence under section 190, subdivision (d). We 

accordingly vacate the gang and gang-related firearm 

enhancements, and remand the matter for resentencing. We 

otherwise reject appellant’s claims, including his contention that 

section 1109 is retroactive, and affirm the judgment. 

PROCEDURAL HISTORY 

On September 29, 2020, appellant was charged by amended

information with the murder of Alexiz Orona (§ 187, subd. (a), 

count 1); conspiracy to commit murder (§§ 182, subd. (a), 187, 

subd. (a), count 2); attempted willful, deliberate, and 

premeditated murder of Valentin Quintero (§§ 187, subd. (a), 664, 

count 3); and shooting at an occupied motor vehicle (§ 246, count 

4). The amended information alleged as to all counts that either 

appellant or a principal personally used a firearm (§ 12022.53, 

subds. (b), (e)(1)), personally and intentionally discharged a 

firearm (§ 12022.53, subds. (c), (e)(1)), and personally and 
4

intentionally discharged a firearm causing great bodily injury 

and death (§ 12022.53, subds. (d), (e)(1).) It also alleged that all 

counts were 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)(C) (counts 1-3); § 186.22, subd. (b)(4) (count 

4)), and counts 1, 2, and 3 were subject to sentencing under 

section 186.22, subdivision (b)(5).

Appellant proceeded to jury trial in September 2020.3 The 

jury found appellant guilty of all counts, though it failed to 

specify a degree for the murder charge in count 1. The court later 

found the conviction was of the second degree pursuant to section 

1157. The jury also found all the gang allegations true. On count 

1, it found that a principal personally and intentionally

discharged a firearm, causing death; it found that appellant did 

not personally do so. On count 2, the jury found true the 

allegations that appellant and a principal personally and 

intentionally discharged a firearm. On counts 3 and 4, the jury 

found true the allegations that appellant and a principal 

personally and intentionally discharged a firearm, causing 

death.4

The court sentenced appellant to an aggregate term of 70 

years to life. On count 1, murder, the court sentenced appellant 

to 20 years to life pursuant to section 190, subdivision (d), plus a 

consecutive term of 25 years to life for the firearm enhancement; 

3 The amended information was filed after a pre-trial 

hearing. It added personal use firearm allegations to the original 

information filed January 30, 2020. 

4 Appellant does not challenge the seemingly inconsistent 

findings on the firearm enhancements. 
5

the court struck punishment for the gang enhancement. On 

count 2, conspiracy to commit murder, the court sentenced 

appellant to 25 years to life, consecutive to the sentence on count 

1. The court struck the firearm and gang enhancements on count 

2. On count 3, attempted willful, deliberate, and premeditated

murder, the court sentenced appellant to 25 years to life, but 

stayed the sentence pursuant to section 654. It also struck 

punishment for the gang and firearm enhancements. On count 4, 

shooting at an occupied vehicle, the court imposed the high term 

of seven years, to run concurrent to the sentences on counts 1 and 

2. It struck punishment on the firearm and gang enhancements. 

The court imposed the minimum fines and assessments required 

by sections 1202.4, subdivision (b)(1), 1202.45, subdivision (a), 

1465.8, and Government Code section 70373, subdivision (a)(1). 

FACTUAL BACKGROUND

Because the issues raised in this appeal are exclusively 

legal in nature, we provide only an abbreviated summary of the 

evidence the prosecution presented at trial. Appellant did not 

present any evidence; defense counsel argued that he acted in 

self-defense.

I. Appellant’s Brother Martin is Killed

In 2016, appellant’s 18-year-old brother, Martin Mendiola, 

belonged to the Sur Trece gang. On the evening of May 27, 2016, 

Martin5 and fellow Sur Trece member Eduardo Prado were 

hanging out on West Raymond Street in Compton. Valentin 

Quintero, a member of the Barrio Trece gang who was dating 

Martin’s ex-girlfriend Alexiz Orona, approached Martin and 

Prado, said “Barrio,” and shot them both. Martin suffered a 

5 For clarity, we refer to Martin by his first name. 
6

gunshot wound to the head and died at the scene. Prado was 

shot in the neck but survived. 

Prado initially told sheriff’s deputies investigating the 

shooting that he did not know who the shooter was. More than a 

year later, after the events described below, he identified 

Quintero as the shooter. Prado also told law enforcement that 

appellant wanted to avenge Martin’s death. 

II. Appellant Looks for Quintero

Appellant became a member of the Sur Trece gang in April 

2017. On the afternoon of April 13, 2017, he went to Quintero’s 

previous residence on East Raymond Street, said he was from 

Barrio Trece, and asked if Quintero was there. A current

occupant of the home, a friend of Quintero’s, said Quintero was 

not there, but gave appellant Quintero’s phone number. The 

person also told Quintero that appellant was looking for him. 

Appellant returned to Quintero’s former residence later 

that night. One of the occupants covertly photographed appellant 

and his car and shared the photographs with Quintero. She also 

later shared them with law enforcement. 

Appellant and Quintero exchanged numerous text 

messages over the next day; appellant asked for Quintero’s 

location multiple times. Appellant also returned to Quintero’s 

former residence a third time, on the morning of April 14, 2017; 

the occupants again told him that Quintero was not there. 

III. Non-Fatal Shootings

On the afternoon of April 13, 2017, Quintero and Orona 

went to the home of Sur Trece member Johnnyne Ramirez.

Orona exchanged words with Ramirez before firing a gun at 

Ramirez and her girlfriend. Quintero urged Orona to “finish 
7

them” before he and Orona drove away, but neither Ramirez nor 

her girlfriend sustained any injuries. 

Later that day, appellant and Ramirez drove to an alley 

near the Buena Park home where Orona lived with her 

grandmother. Ramirez got out of the car and fired several shots 

into the backyard of the home, striking Orona’s dog in the face. 

The dog survived, and the bullet recovered from its body and 

another from the scene were given to law enforcement. 

IV. Fatal Shooting 

Quintero and Orona went to Quintero’s former residence on 

April 14, 2017, after appellant had left. Melissa Moreno, who 

was seeking to buy a cell phone from Orona, arrived at the home 

in a car similar to appellant’s. Moreno testified that Orona 

looked shocked when she arrived, and said she thought Moreno 

was Ramirez. Moreno drove Quintero and Orona to a nearby cell 

phone store to check the identification number on Orona’s phone. 

While they were gone, appellant, Prado, and Ramirez arrived at 

Quintero’s former residence in appellant’s car. They parked on 

the street nearby and sat in the car. According to Prado, 

appellant was armed with a “22 revolver,” Prado was armed with 

a “38,” and Ramirez was armed with a “9mm.”

Moreno, Quintero, and Orona returned about 30 to 40

minutes later. Moreno was driving, Orona was in the front 

passenger seat, and Quintero was in the back behind Orona. 

Moreno testified that as they neared the home, Orona said,

“Babe, babe. That’s the car.” Quintero responded, “Shoot, 

momma, shoot,” and Orona fired at appellant’s car. Shots were 

returned immediately. Within seconds, the car was hit several 

times, and Orona slumped onto the dashboard. 
8

Moreno drove to the hospital, where Orona was pronounced 

dead. A deputy medical examiner who performed an autopsy on 

Orona testified she sustained two shots, one to the armpit and 

one to the back. Both were fatal. A bullet and a bullet fragment 

were retrieved from Orona’s body and given to law enforcement. 

V. Investigation

After arresting Quintero on April 18, 2017 and searching 

his cell phone, law enforcement obtained a search warrant for 

appellant’s cell phone subscriber information and certain location 

data. They located appellant on April 24, 2017 using cell phone 

location data and a ruse phone call. 

Historic cell phone location data was consistent with 

appellant’s and Ramirez’s presence at Orona’s home on April 13, 

2017 and at the scene of the April 14, 2017 shooting. 

Law enforcement searched appellant’s home on April 26, 

2017 and recovered loose 9mm ammunition and a revolver loaded 

with .32 caliber ammunition. They also recovered a t-shirt 

resembling the one appellant was photographed in while looking 

for Quintero at his former residence.

A senior criminalist examined bullets recovered from the 

Buena Park shooting, including the one from the dog; the bullet 

and bullet fragment retrieved from Orona’s body; and a bullet 

core and fragment retrieved from the vehicle in which Orona was 

riding when she was shot. She determined that the bullets from 

the Buena Park shooting were consistent with bullets loaded into 

.32 auto caliber cartridges and were fired from the gun recovered 

from appellant’s home. The bullet fragment from Orona’s body 

was consistent with a 9mm caliber luger bullet. The criminalist 

was unable to determine the caliber of the other items she 

examined.
9

The prosecution introduced evidence that Sur Trece is a 

gang whose primary activities include possession of firearms, 

assaults, robberies, carjackings, attempted murders, murders, 

and drug sales. It also introduced evidence that four Sur Trece 

members were convicted of felonies after incidents in 2015 and 

2017, and Sur Trece and Barrio Trece became rivals after Martin 

was killed. When presented with a hypothetical mirroring the 

facts of the case, the prosecution’s gang expert opined that the 

April 14, 2017 shooting was gang-related and benefited the Sur 

Trece gang by bolstering its reputation for violence in the 

community. 

DISCUSSION 

I. Batson/Wheeler

Appellant contends the trial court erred in denying his 

Batson/Wheeler motion during jury selection. He argues the 

prosecutor improperly dismissed three prospective jurors because 

they, like appellant, were young and Hispanic. He asserts the 

prosecutor failed to offer credible, non-discriminatory reasons for 

striking the jurors in question, and the trial court failed to make 

a sincere and reasoned inquiry into the prosecutor’s asserted 

reasons. We conclude the trial court properly denied the motion.

A. Background

Prior to the exercise of peremptory challenges in this case, 

the court and counsel questioned approximately 104 prospective 

jurors over the course of three days. On the fourth day, the court 

seated a group of 20 prospective jurors so the parties could 

exercise peremptory challenges. 

With his first peremptory challenge, the prosecutor excused 

Panelist No. 3457. After the prosecutor’s fourth peremptory 

challenge, with which the prosecutor excused Panelist No. 9846, 
10

defense counsel requested a sidebar and made a Batson/Wheeler 

motion asserting that the prosecutor was impermissibly excusing 

“young, male Hispanics; the same demographic as my client.”

The court stated it did not think there was an “inference or 

pattern of discriminatory use of peremptory challenges, but out of 

abundance of caution” invited the prosecutor to state the reasons 

for the strikes. 

The prosecutor stated that he struck Panelist No. 3457 

because “he indicated that he had a problem with gang 

prosecution, a question I asked early on I believe of this group. 

Didn’t get to follow up and delve into it more, but without more 

information that was a clear flag for me. And so based on that, 

based on that compared to everyone else - - and my preference is 

not to put people on a jury who have an issue with prosecuting 

gang members or gangs.” The prosecutor gave the following 

explanation for striking Panelist No. 9846: “I don’t have much

information on him except I understand that he said he was a 

glazer at first and then he talked about installing glass and then 

he indicated that he cut hair for a hobby. . . . I had a defendant . 

. . back in Long Beach - - who was a glass installer and whatnot. 

And from just - - and obviously I can’t generalize, but this is the 

only information I have. I didn’t get a sense from him that he 

would have been a juror - - well, first of all, from that experience 

I just had a bad experience with him and learning things about 

that defendant who was itinerant and also . . . there’s some 

profession[s] and people that sometimes have flags. For me that 

became a flag. [¶] And the other more obvious thing of the jurors 

remaining, the next juror is a juror who has had a verdict and I 

have much more information about. And so compared to that 

juror and this juror, I’d rather have the juror that’s coming in.”
11

Defense counsel asserted that these reasons were “bogus, 

made-up, manufactured excuses . . . that make absolutely no 

sense,” and the prosecutor could have asked more questions if he 

needed more information. The prosecutor maintained that his 

reasons were non-discriminatory, and pointed out that there were 

“a few other[s] who fit that demographic . . . I’m planning to 

keep.” Defense counsel responded that the standard was animus 

toward any one juror, and “I think we have that here.” The court 

denied the motion, stating, “I don’t think we have that here. It’s 

non racial reasons provided for the exercise of the peremptory 

challenge. So the motion is denied. Thank you.”

The parties continued exercising their peremptory 

challenges in alternating fashion. After each dismissed four 

additional prospective jurors, defense counsel objected to the 

prosecutor’s request to dismiss Panelist No. 7903. She stated, 

“Your Honor, he keeps kicking off young Latinos. And this juror -

- she has an uncle who is a lieutenant. She has friends that are 

part of the police department. And, again, this is just all racial 

animus toward kicking off anyone who could have any type of 

sympathy because of race for my client.” The court again stated 

that it was “not finding a pattern has been established,” but 

asked the prosecutor for his reasons so “the record [can] be clear.”

The prosecutor explained that Panelist No. 7903 “has a Facebook 

page which I was able to see and - - indicating a personality that 

is very opinionated. And although I will admit she hasn’t posted 

since maybe 2015, 2016 but based on the comments on her 

Facebook page. Despite the fact that . . . I do like actually a lot of 

the things about her, I don’t at this point feel comfortable keeping 

her based on that.” He added that the panelist in line to replace 
12

her was “someone who has had a verdict,” and “I like those 

people.”

The court stated, “I’ve heard enough. I think there’s been . 

. . race neutral reasons. Most of the jurors here are Hispanics. 

Most of the proposed venire.” The prosecutor then added that 

there were several panelists “who fit that profile” that he 

expected to remain on the jury “unless they’re kicked by the 

defense.” He further stated that he considered the personalities 

and experiences of the entire venire, and he “tend[ed] to be 

hesitant keeping” those with “strong personalities . . .especially 

when there’s someone else who has already gone through the 

process and appears to have been able to come to verdict with 

other people.” Defense counsel responded, “I again believe this is 

all made up. Looking at a Facebook page, you can’t tell anyone’s 

personality. He’s just coming up with excuses because the reason 

he keeps kicking these people are young Latinos [sic] and he will 

continue to do it unless the court stops him.” The court 

reiterated that the challenge was denied. 

As jury selection progressed, the prosecutor made two 

Batson/Wheeler motions, alleging that defense counsel was 

impermissibly striking white and older Hispanic panelists. The 

court denied both motions. 

After jury selection concluded, the prosecutor stated for the 

record that at least five of the 12 jurors in the box were young 

individuals who appeared to be Hispanic or Latino. The court 

stated that it had noted “six Latinos in the jury of twelve and five 

of our six alternates are Latino.” The court also noted that four 

of the 12 jurors were Black, as was the remaining alternate. 
13

B. Governing Law

“The law is clear and firmly established. ‘“Both the federal 

and state Constitutions prohibit any advocate’s use of peremptory 

challenges to exclude prospective jurors based on race.”‘

[Citation.] ‘“Doing so violates both the equal protection clause of 

the United States Constitution and the right to trial by a jury 

drawn from a representative cross-section of the community 

under article I, section 16 of the California Constitution.”‘

[Citation.] The law also recognizes ‘“a rebuttable presumption 

that a peremptory challenge is being exercised properly, and the 

burden is on the opposing party to demonstrate impermissible 

discrimination.” [Citation.] “A three-step procedure applies at 

trial when a defendant alleges discriminatory use of peremptory 

challenges. First, the defendant must make a prima facie 

showing that the prosecution exercised a challenge based on 

impermissible criteria. Second, if the trial court finds a prima 

facie case, then the prosecution must offer nondiscriminatory 

reasons for the challenge. Third, the trial court must determine 

whether the prosecution’s offered justification is credible and 

whether, in light of all relevant circumstances, the defendant has 

shown purposeful race discrimination. [Citation.] ‘The ultimate 

burden of persuasion regarding [discriminatory] motivation rests 

with, and never shifts from, the [defendant].’”‘“ [Citation.]”

(People v. Holmes, McClain and Newborn (2022) 12 Cal.5th 719, 

759-760.) 

“[W]here (1) the trial court has determined that no prima 

facie case of discrimination exists, (2) the trial court allows or 

invites the prosecutor to state his or her reasons for excusing the 

juror for the record, (3) the prosecutor provides 

nondiscriminatory reasons, and (4) the trial court determines 
14

that the prosecutor’s nondiscriminatory reasons are genuine, an 

appellate court should begin its analysis of the trial court’s denial 

of the Batson/Wheeler motion with a review of the first-stage 

ruling.” (People v. Scott (2015) 61 Cal.4th 363, 391 (Scott).) 

At the first step, the defendant must set forth a prima facie 

case of discrimination “by showing that the totality of the 

relevant facts gives rise to an inference of discriminatory 

purpose.” (Scott, supra, 61 Cal.4th at p. 383.) The bar is 

relatively low; “[i]t is satisfied simply by evidence sufficient to 

permit us to draw an inference that discrimination may have 

occurred.” (People v. Battle (2021) 11 Cal.5th 749, 773.) The

ultimate issue is not whether there is systematic exclusion of a 

protected class, but rather whether a particular panelist has been 

challenged on the basis of group bias. (Ibid.) 

Applying the substantial evidence standard,6 “[w]e examine 

the entire record before the trial court to determine whether it 

supports an inference of such group bias.” (People v. Battle, 

supra, 11 Cal.5th at pp. 772-773.) Facts relevant to this showing 

include “that a party has struck most or all of the members of the 

identified group from the venire, that a party has used a 

disproportionate number of strikes against the group, that the 

party has failed to engage these jurors in more than desultory 

voir dire, that the defendant is a member of the identified group, 

and that the victim is a member of the group to which the 

majority of jurors belong.” (Scott, supra, 61 Cal.4th at p. 384.) 

6 We reject appellant’s suggestion that we should apply the 

de novo standard of review here because the trial court failed to 

make a sincere and reasoned effort to evaluate the 

nondiscriminatory justifications offered. (People v. Mai (2013) 57 

Cal.4th 986, 1048-1049.) 
15

We also may consider nondiscriminatory reasons for the 

challenge that are “apparent from and ‘clearly established’ in the 

record.” (Ibid.) We “may not rely on a prosecutor’s statement of 

reasons to support a trial court’s finding that the defendant failed 

to make out a prima facie case of discrimination.” (Id. at p. 390.) 

C. Analysis 

Appellant contends he established a prima facie case 

because he asserted his challenges immediately after Hispanic 

panelists were excused, he established that he was Hispanic, 

there was nothing in the panelists’ voir dire responses that 

“supported excusal” by “suggest[ing] a bias against the 

prosecution,” and the prosecutor failed to appropriately follow up 

on Panelist No. 3457’s assertion that he had a problem with gang 

prosecutions. We disagree. 

The record reflects that Hispanic panelists made up “most

of” the approximately 104-person jury pool. A significant 

percentage of the jurors ultimately selected, either 40 or 50 

percent, was Hispanic. Five of the six alternate jurors ultimately 

selected were Hispanic. Appellant’s assertion that the prosecutor

demonstrated racial animus by using three of his first four 

strikes on Hispanic panelists—one of whom appellant did not 

challenge at the time—is thus minimally persuasive. (See People 

v Bonilla (2007) 41 Cal.4th 313, 344 [“the statistical frequency 

with which the prosecution struck Hispanics from the juror pool 

provides no basis at all to infer discrimination” where frequency 

of strikes aligned with composition of panel].) Appellant 

demonstrated that he was Hispanic, but appears to disregard the 

racial identities of victims Quintero and Orona, both of whom the 

record suggests were also Hispanic. 
16

All three panelists at issue stated during voir dire that they 

had never served on jury duty before. Lack of jury experience is a 

valid, nondiscriminatory reason to exercise a peremptory 

challenge. (See People v. Manibusan (2013) 58 Cal.4th 40, 83.) 

Panelist No. 7903 also stated that she was working two jobs 

while attending college. The prosecutor reasonably could 

conclude that such a busy panelist might not be the most 

attentive juror during this lengthy, complex case. 

Appellant suggests that the prosecutor engaged the 

challenged jurors in only superficial voir dire. However, the 

record shows that he asked Panelist No. 3457 about prejudging

the testimony of certain witnesses, his feelings about the concept 

of self-defense, and his feelings about gang prosecutions. The 

prosecutor asked Panelist No. 7903 about judging the credibility 

of witnesses by their occupations, whether she would be affected 

by displays of emotion or remorse, and whether she could follow 

instructions regarding self-defense. The prosecutor asked 

Panelist No. 9846 about judging the credibility of witnesses by 

their occupations, whether his verdict would be influenced by his 

feelings toward the victims, and whether he had any problems 

with the concept of coconspirator liability. By the time the 

prosecutor asked these questions, the panelists already had been 

questioned by the court and defense counsel; the court also placed 

time limits on both sides’ questioning. The prosecutor’s failure to 

specifically follow up with Panelist No. 3457 on the gang question 

does not on this record suggest desultory questioning or 

discrimination. Panelist No. 3457’s generalized answer to the 

question likewise cannot be characterized as “explicitly racetied.” (Contra People v. Silas (2021) 68 Cal.App.5th 1057, 1099 

[panelist’s view that Black defendants are sentenced more 
17

harshly was “explicitly race-tied” and did not constitute a 

nondiscriminatory reason dispelling an inference of bias].) 

II. Degree of Murder

A. Background

Count 1 of the amended information charged appellant 

with murder of unspecified degree. The jury was instructed on 

both first and second degree murder, as well as the lesser 

included offense of voluntary manslaughter. One of the 

instructions, CALCRIM No. 520, stated, “If you decide that the 

defendant committed murder, it is murder of the second degree 

unless the People have proved beyond a reasonable doubt that it 

is murder of the first degree as defined in INSTRUCTION 521.”

Another, CALCRIM No. 640, instructed the jury that it could 

consider first degree murder, second degree murder, and 

voluntary manslaughter “in whatever order you wish, but I can 

only accept a verdict of guilty or not guilty for second degree 

murder and voluntary manslaughter only if all of you have found 

the defendant not guilty of first degree murder and I can accept a 

verdict of guilty or not guilty of voluntary manslaughter only if 

all of you have found the defendant not guilty of both first and 

second degree murder. [¶] As with all of the charges in this case, 

to return a verdict of guilty or not guilty on a count, you must all 

agree on that decision.” CALCRIM No. 640 further instructed 

the jury how to complete the verdict forms under various 

scenarios, including: “If all of you cannot agree whether the 

defendant is guilty of first degree murder, inform me that you 

cannot reach an agreement and do not complete or sign any 

verdict forms for that count,” and “If all of you agree that the 

defendant is not guilty of first degree murder but cannot agree 

whether the defendant is guilty of second degree murder, 
18

complete and sign the form for not guilty of first degree murder 

and inform me that you cannot reach further agreement. Do not 

complete or sign any other verdict forms for that count.”

Defense counsel expressly agreed that CALCRIM No. 520 

“looks fine.” Defense counsel also agreed with giving CALCRIM 

No. 640 instead of CALCRIM No. 641 or 642, after expressing 

concern about past juror confusion over CALCRIM No. 641. At 

the conclusion of the jury instructions conference, the court asked 

counsel if there were further objections to the instructions. Both 

sides said there were none. 

The jury was given one guilty verdict form and one not 

guilty verdict form for count 1. The guilty verdict form included a 

space for the jury to write in the degree of murder of which it 

found appellant guilty: “We further find it to be MURDER of the 

_______ degree.” The jury was also given guilty and not guilty 

forms for the lesser included offense of voluntary manslaughter. 

There is no indication in the record that either the prosecutor or 

defense counsel objected to the verdict forms.

During deliberations, the jury sent a note to the court 

asking, “The instructions say leave the form blank? So do you 

want us to fill in the spaces or leave them blank. [¶] We put a 

tab on the instruction sections.” The court “conferred with both 

counsel to get their suggestions and their input as to how we 

should respond,” sent counsel a proposal, and expressly asked for 

objections before sending the following written response: “If you 

have found the defendant ‘not guilty’ of murder in count one, then 

sign the form for ‘Not Guilty’ as to that count. [¶] If you have 

found the defendant ‘guilty’ of murder in count one but cannot 

agree on whether it is 1st or 2nd degree, then sign the form for 
19

‘guilty’ as to that count and leave the space blank where it asks 

for degree.” Neither side objected. 

The jury also sent a note stating, “If we find the defendant 

guilty of count 1, do we have to select 1 or 2nd degree murder? [¶] 

Also on the count 1 verdict form do we have to all agree on the 

true or not true answers.” The court responded, in writing, 

“‘YES’ – your findings on the degree and the allegations must be 

unanimous. I have flagged the instructions.” The jury sent a 

separate note stating, “We cannot agree on 1st or 2nd degree 

murder.” The court provided the following written response: “If 

you have reached a unanimous verdict on any of the counts, sign 

the verdict forms for those counts. If you decide that the 

defendant committed murder, it is murder of the second degree 

unless the People have proved beyond a reasonable doubt that it 

is murder of the first degree. [¶] If you cannot agree whether it is 

first or second degree murder, then leave that space on the 

verdict form blank.”

It is unclear in what order these questions were asked and 

answered, and the court’s discussions with counsel occurred off

the record. However, minute orders indicate that the court 

conferred with counsel as to all jury questions, and “both agree 

with the court’s response.” The court stated on the record that 

“everyone agreed in regards to their question about the form and 

I guess the degree of murder it appears they’re making reference 

to.”

After the jury indicated it had reached a verdict, the 

prosecutor notified the court he had “concerns about what the 

court was going to do in terms of its answer with regards to the 

jurors [sic] latest questions. Or question.” The prosecutor 

explained that he had located, read, and shared with defense 
20

counsel and the court People v. Avalos (1984) 37 Cal.3d 216 

(Avalos), which gave him a “change of mind of how . . . the court 

should respond to the question that was asked by the jury.”

Specifically, he stated, “I think we could have just indicated to 

them that they have to have a unanimous decision as to the 

degree and left it at that. I’m just a little concerned about some 

of the language in the Avalos case given the current posture of 

where the jury was at the time.”

Defense counsel stated that after reviewing Avalos, “I kind 

of agree with what he said. . . . I don’t know how we interact in a 

situation when the jury is hung as to the degree of murder. But 

that’s what this case says. So probably they should have been 

brought out, inquired whether they were hung and then for the 

court to take – if they were hung – to take the hand or whatever 

was necessary for the court to assist them.” The prosecutor then 

stated that he was “not sure whether or not they mean they have 

a verdict except for the degree of murder or whether, you know, 

they actually came to some sort of agreement. My concern is if 

they think they have a verdict as to count 1 but they have not 

agreed on the degree, I’m concerned about the legal effect of 

that.”

The court responded that “if they can’t agree on the degree 

of murder, then it’s going to be deemed to be second degree 

murder pursuant to Penal Code section 1157.”

7 The court added 

7 Section 1157 states: “Whenever a defendant is convicted of 

a crime or attempt to commit a crime which is distinguished into 

degrees, the jury, or the court if a jury trial is waived, must find 

the degree of the crime or attempted crime of which he is guilty. 

Upon the failure of the jury or the court to so determine, the 

degree of the crime or attempted crime of which the defendant is 

guilty, shall be deemed to be of the lesser degree.” Notably, as 
21

that it had not wanted to influence the jury when answering its 

questions. It continued, “If anything, it should be favored 

towards the – giving the defendant the benefit of the doubt which 

is why I included the first part if you find the defendant not 

guilty in count 1, then sign the verdict form not guilty as to that 

count. And then if you find the defendant guilty, then you should 

sign the guilty form. But if you can’t agree on first or second 

degree, you don’t put anything because they could not agree. 

Obviously that’s where 1157 kicks in. If they cannot agree then 

it’s murder of the second degree. I mean, I don’t know what other 

option we could have given them.”

Defense counsel responded, “No.” The court then 

reiterated, “We had to answer their question,” to which defense 

counsel responded, “Yes.” The court then stated that it found 

Avalos distinguishable, because there the court “gave them a 

different instruction, additional instruction. Then the court 

offered to provide separate verdict forms for the three possible 

findings in this case. That’s totally different from what we did. 

All I did is reiterate really what was contained in the instruction 

they already had and that is murder is murder of the second 

degree unless the People have proven it’s murder in the first 

degree. [¶] And so if they don’t fill out that form, my intention at 

discussed more fully below, Avalos expressly reiterates the 

Supreme Court’s earlier holding that section 1157 “was not 

intended to apply to cases in which the jury does not fix the 

degree of a crime because it cannot reach a unanimous verdict on 

that issue.” (Avalos, supra, 37 Cal.3d at p. 220; see also id. at p. 

228 [“it is improper for a trial court to instruct a jury that it can 

avoid reaching a unanimous verdict on the question of degree by 

returning a general verdict finding the defendant guilty of an 

unspecified degree of murder”].) 
22

the time of sentencing would be to deem that it’s murder of the 

second degree which is what we do if that’s the case.”

The court then invited defense counsel to respond. She 

stated, “the way I read Avalos, it doesn’t really need any rule for 

when the jurors are hung and that was what I was concerned 

about. So if the jurors are hung, there has to be a mechanism for 

that to happen.” The court stated, “the verdict form says that if 

they found him guilty of murder, then they would decide the 

degree.” After defense counsel agreed, the court continued, “they 

only get to the degree if they find him guilty of murder.” Defense 

counsel said, “Correct. So if they are hung on the degree of 

murder, there has to be a mechanism for that to happen, right?”

The court said “Yes, section 1157.” Defense counsel responded, 

“Okay.” The court then quoted section 1157, and defense counsel 

said, “That was my understanding.”

The court asked defense counsel what she was “asking or 

suggesting that I could have done other than what I did which 

was just reiterate what the law says?” Defense counsel 

responded, “I wish I had just thought about requesting that they 

be brought back, questioned. But obviously now they’ve reached 

a verdict; so that might be too late. But . . . I think if they can’t 

agree on the degree of it, they can’t agree on the degree of it, and 

that is what happens. You’re right.” The court asked the 

prosecutor if he had anything further; he did not. 

After a recess, however, the prosecutor raised the issue 

again, asking if it was the court’s and defense counsel’s 

understanding that the jury’s failure to designate a degree would 

result in a conviction for second degree murder. The court said it 

was, and the prosecutor said he did not “have a quibble with it”

“so long as counsel and the court are on the same page about 
23

that.” Defense counsel responded, “The instruction specifically 

tells them if it’s not of the first degree then it’s of the second 

degree.” The court then asked both sides if they had anything 

further; neither did. 

The following day, before the jury was brought to the 

courtroom for the verdict to be read, the prosecutor raised the 

issue a third time, indicating he had “misgivings about the 

Avalos case.” He explained, “I don’t want us to have instructed 

the jury the way that we have and to receive the verdicts the way 

that we have and later on for the defense to argue that . . . if the 

jury has not come back with a decision on the degree of murder 

then in fact that is a hang on the entire count of count 1.” The 

court asked the prosecutor if he had any cases that “even come[ ] 

close to saying that.” The prosecutor clarified he was not arguing 

for any particular outcome, but rather expressing “concern [that] 

an argument can be made that . . . if they don’t come back with 

the degree of murder that this is a mistrial or that’s a hang, 

mistrial on that complete count and the People would have the 

burden to retry the entire count.” The court responded, “I don’t 

think there’s any case to say that. Not the way the verdict forms 

are made out. The situation in that case [presumably Avalos] is 

not the type of verdict forms we used.” The prosecutor reiterated 

his concern about the potential need to retry the entire count, 

and added, “That’s why I think if it is in fact blank we need to go 

through the - -” Before he finished, the court interjected, “No. 

That’s not going to happen. I know exactly what I’m going to do if 

that happens. I’m not going to ask them if they want to 

deliberate further on that. Absolutely not. I will ask them what 

the tally was if we reach that point.”
24

The prosecutor responded that he wanted “to be clear so 

counsel has an opportunity to make a record one way or the 

other.” After the court interjected that the prosecutor had “made 

it an issue now,” the prosecutor specifically requested that the 

court direct further deliberations if the jury failed to reach a 

verdict on the degree. The court asked defense counsel if she 

wanted to be heard. After she said “no,” the court ordered the 

jury brought to the courtroom for the verdicts to be read. 

On count 1, the jury completed the guilty form for murder 

but left the degree line blank. After polling the jury and ordering 

the verdicts recorded, the court at the prosecutor’s request asked 

the jury foreperson what the jury’s vote had been on the degree.

The foreperson answered that 11 jurors voted for first degree and 

one voted for second degree. Neither the prosecution nor the 

defense made any further statements on the issue. At 

sentencing, the court deemed the conviction on count 1 to be for 

second degree murder pursuant to section 1157. No objections 

were raised. 

B. Contentions

Appellant now contends the court erred in instructing the 

jury it could reach a verdict on the murder charge without 

specifying a degree, and in accepting the verdict of unspecified 

degree. He contends the error is structural and requires reversal 

of his murder conviction. Appellant asserts the issue is preserved 

for review either because no objection was required or because his 

counsel “agreed with the prosecutor’s claim that the trial court’s 

handling of the jury’s inability to reach a unanimous verdict on 

the degree was incorrect.” He alternatively contends that his 

trial counsel rendered ineffective assistance to the extent she 

failed to preserve the claim. Respondent acknowledges the 
25

verdict “arguably did not comply with 1157 by failing to further 

state a unanimous verdict as to first degree murder,” but 

contends defense counsel invited the error. In reply, appellant 

asserts respondent “misconstrues the record,” and defense 

counsel sufficiently questioned the court’s procedure to preserve 

the issue for appeal. 

C. Analysis 

We agree with respondent that the invited error doctrine 

precludes substantive review of this issue. 

“‘The doctrine of invited error is designed to prevent an 

accused from gaining a reversal on appeal because of an error 

made by the trial court at his behest. If defense counsel 

intentionally caused the trial court to err, the appellant cannot be 

heard to complain on appeal. . . . [I]t also must be clear that 

counsel acted for tactical reasons and not out of ignorance or 

mistake.’” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 

49.) “In cases involving an action affirmatively taken by defense 

counsel, we have found a clearly implied tactical purpose to be 

sufficient to invoke the invited error rule.” (Ibid.)

Avalos, supra, 37 Cal.3d 216 is instructive. In Avalos, as 

here, the defendant was charged with one count of murder. (Id.

at p. 221.) During deliberations, the jury “inquired whether if 

they had determined that defendant was guilty of murder but 

disagreed upon the degree, they would have reached a verdict of 

guilty of second degree murder or no verdict at all. The jury 

further indicated that it was ‘unable to agree unanimously on 

which degree of murder the defendant is guilty of.’” (Id. at p. 

222.) As here, the record indicated that the court and counsel 

conferred off the record and agreed the jury should be instructed 

to reexamine two instructions previously given. (Id. at p. 223.) 
26

Later that day, as deliberations continued, the court stated that 

it believed its response had been inadequate and instructed the 

jury that it could return a verdict “as to those portions of the 

murder verdict upon which they unanimously agreed.” (Ibid.) 

The court then provided the jury with separate verdict forms for 

(1) guilt on the count; (2) degree of murder; and (3) firearm 

enhancements. (Ibid.) Defense counsel did not object, though the 

prosecutor “asked to place in the record that the legal basis for 

the court’s decision was Penal Code section 1157.” (Ibid.) 

“Defense counsel said nothing on the record at this point.” (Ibid.)

The jury subsequently returned a verdict of guilty on the 

murder count, and findings of true on the firearm allegations. It 

stated it was divided seven to five on the degree of murder, 

however, and that future deliberations were unlikely to resolve 

the impasse. (Avalos, supra, 37 Cal.3d at p. 223.) Both counsel 

declined a jury poll, and the court entered the verdict. (Ibid.) At 

the sentencing hearing, defense counsel emphasized that the 

defendant had not been convicted of premeditated murder and 

argued that the court should “make sure that it’s second degree.”

(Id. at p. 224.) The court subsequently invoked section 1157 and 

deemed the conviction to be for second degree murder. (Ibid.) On 

appeal, the defendant argued “for the first time that the trial 

court committed error when it told the jury that it might return a 

verdict which did not specify the degree of murder and then 

applied section 1157 to fix the degree at second.” (Ibid.)

The Supreme Court agreed that the court erred by applying 

section 1157. Relying upon and reiterating its previous decision 

in People v. Dixon (1979) 24 Cal.3d 43 (Dixon), it explained that 

section 1157 “‘should apply only to situations in which the jury 

has neglected to fix the degree, and not to situations in which 
27

express disagreement among the members of the jury on the 

matter of degree has precluded it from achieving unanimity.’”

(Avalos, supra, 37 Cal.3d at p. 225.) The court observed that 

section 1157 “‘used the word “failure” solely in the sense of 

omission to perform and not in the alternative sense of inability 

to achieve success,’” and that “a contrary conclusion would lead to 

‘absurd results, in which a clear minority favoring a lesser degree 

could effectively prevail over a clear majority favoring the greater 

degree.’” (Id. at p. 226.) 

The court further concluded, however, that the invited 

error doctrine precluded reversal of the defendant’s conviction. 

The court observed that “the court was led into error

by counsel for both the people and the defense, and . . .

the defense took full advantage of the tactical benefit made

available by the court’s error.” (Avalos, supra, 37 Cal.3d at p. 

220.) The court concluded that “defense counsel’s actions taken 

as a whole, and particularly his argument at the time of 

sentencing, show that his lack of objection to the proposed 

instruction was more than mere unconsidered acquiescence. 

Counsel had participated in a discussion of the proper response to

the jury’s request for further instruction. He agreed to the 

proposed instruction and made no objection to the verdict which 

followed. At sentencing counsel urged the court to enter a verdict 

in accord with the erroneous theory on which the instruction was 

based. Although this argument came later in time than the 

error, it shows that counsel had a deliberate tactical purpose for 

accepting the instruction and the verdict based upon it. Counsel 

thereby avoided subjecting defendant to a new trial at which he 

might possibly have been convicted of a more serious offense than 

second degree murder.” (Id. at p. 229.)
28

Avalos is virtually indistinguishable from the instant case. 

Here, defense counsel agreed to the jury instructions stating that 

murder was second degree unless the prosecution proved 

otherwise. She did not object to the verdict forms, and expressly 

agreed with the court’s responses to the jury’s numerous 

questions. When the prosecutor raised Avalos the first time, 

defense counsel equivocally said she “kind of” agreed with the 

prosecutor that perhaps the jury should have been questioned 

about a potential deadlock. However, when the prosecutor raised 

the issue for a second and then a third time, defense counsel 

agreed with the court that section 1157 would cure any infirmity 

in the verdict. Even after the prosecutor raised the specter of a 

possible mistrial, suggested making further inquiry of the jury if 

necessary, and specifically invited defense counsel to take “an 

opportunity to make a record one way or the other,” defense 

counsel expressly declined to be heard on the issue. Taken as a 

whole, particularly in light of counsel’s aggressive objections 

throughout trial, self-described strategy of disputing “every single 

thing in this case,” and the repeated, time-separated 

opportunities counsel had to review the issue and make 

objections, the record shows that counsel’s lack of objection on 

this issue was more than mere unconsidered acquiescence. 

Appellant contends there cannot have been a tactical 

purpose behind defense counsel’s conduct, because “a hung jury is 

preferable to a conviction.” We disagree. As the Avalos court 

recognized, “the defense in fact made a tactical decision that the 

erroneous instruction and the resulting verdict of second degree 

murder would be more advantageous to the defendant than a 

mistrial and subsequent retrial on the charge of first degree 

murder.” (Id. at p. 228.) The tactical nature of that decision is 
29

underscored here, where the jury split 11-1 in favor of first degree 

murder, found appellant guilty of conspiring to commit murder 

and attempted premeditated murder, and found true numerous 

personal use firearm enhancements. 

We accord great deference to tactical decisions by counsel, 

which are generally not found reversible in the context of 

ineffective assistance of counsel claims. (People v. Stanley (2006) 

39 Cal.4th 913, 954.) To establish counsel was ineffective, 

appellant must show both that trial counsel’s representation was 

deficient because it fell below an objective standard of 

reasonableness under prevailing professional norms and that he 

was prejudiced such that but for counsel’s deficient performance, 

the outcome of the proceeding would have been different. (People 

v. Mai, supra, 57 Cal.4th at p. 1009.) We presume counsel acted 

within the wide range of reasonable professional assistance 

(ibid.) and appellant has given us no reason to depart from that 

presumption here. 

III. Gang and Gang-Related Enhancements (AB 333) 

While this appeal was pending, the Governor signed AB 

333 into law, amending section 186.22 and adding section 1109, 

effective January 1, 2022. Appellant contends, and respondent 

agrees, that the amendments AB 333 made to section 186.22

apply retroactively to this case. Appellant also contends that 

section 1109, as enacted by AB 333, applies retroactively to this 

case and compels a reversal of his convictions. Respondent 

disputes this contention. We review the question of retroactivity 

de novo. (In re David C. (2020) 53 Cal.App.5th 514, 519.)

We agree with the parties that the substantive 

amendments to section 186.22 are retroactive and require the 

jury’s findings on the gang allegations and firearm allegations 
30

predicated thereon to be vacated. We remand the matter to 

afford the prosecution the opportunity to retry these allegations, 

should it choose to do so. We reject appellant’s remaining 

contention concerning section 1109.

A. Amendments to section 186.22

As relevant here, section 186.22 provides enhanced 

punishment for defendants convicted of a felony “committed for 

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

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

in criminal conduct by gang members.” (§ 186.22, subds. (b)(1), 

(b)(4).) The version of section 186.22 in effect at the time of 

appellant’s trial defined a “criminal street gang” 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).) It defined “pattern of 

criminal gang activity” 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 following 

[listed] offenses, 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).) 

AB 333 narrowed both these definitions, effectively 

heightening the prosecution’s burden to prove the enhancement 
31

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

Under the current version of section 186.22, a “criminal street 

gang” is defined as “an ongoing, organized 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 subdivision (e) [a shorter list than 

previously], having a common name or common identifying sign 

or symbol, and whose members collectively engage in, or have 

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

(f), emphasis added.) The statute also more narrowly defines 

“pattern of criminal gang activity” 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 

following offenses, 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 of the prior offense and 

within three years of the date the current offense is alleged to have 

been committed, the offenses were committed on separate 

occasions or by two or more members, the offenses commonly 

benefited a criminal street gang, and the common benefit of the 

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

emphases added.) 

In light of the amendments, “imposition of a gang 

enhancement [now] requires proof of the following additional 

requirements with respect to predicate offenses: (1) the offenses 

must have ‘commonly benefited a criminal street gang’ where the 

‘common benefit . . . is more than reputational’; (2) the last 

predicate offense must have occurred within three years of the 

date of the currently charged offense; (3) the predicate offenses 

must be committed on separate occasions or by two or more gang 
32

members, as opposed to persons; and (4) the charged offense 

cannot be used as a predicate offense.” (People v. Lopez (2021) 73 

Cal.App.5th 327, 345, quoting § 186.22, subds. (e)(1)-(2).) The 

statute also sets forth examples “of a common benefit that are 

more than reputational,” which include “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.” (§ 186.22, subd. (g).)

The parties agree, and our Supreme Court has held, that 

these changes ameliorate punishment and thus apply 

retroactively to all cases not yet final as of the statute’s January 

1, 2022 effective date. (See Tran, supra, 13 Cal.5th at pp. 1206-

1207, citing In re Estrada (1965) 63 Cal.2d 740 (Estrada).) 

“When a substantive change occurs in the elements of an offense 

and the jury is not instructed as to the proper elements, the 

omission implicates the defendant’s right to a jury trial under the 

Sixth Amendment, and reversal is required unless ‘it appears 

beyond a reasonable doubt’ that the jury verdict would have been 

the same in the absence of the error.” (Id. at p. 1207.) Here, 

respondent concedes reversal is required, reasoning that the 

evidence presented at trial failed to establish that the predicate 

offenses commonly benefitted the gang in a way that was more 

than merely reputational, as required by section 186.22 as newly 

amended. We agree. On this record, reversal of the gang 

enhancements is required, and the prosecution must be given the 

opportunity to establish the additional elements on remand, 

should it choose to do so.8 (See People v. Eagle (2016) 246 

Cal.App.4th 275, 280.) 

8 We note that the court struck punishment for each of the 

gang enhancements. Should the prosecution successfully retry 
33

The same rationale applies to the jury’s findings on the 

section 12022.53, subdivision (e)(1) firearm allegations, which 

require findings under section 186.22, subdivision (b). (See 

People v. Lopez, supra, 73 Cal.App.5th at pp. 346-348.) Section 

12022.53, subdivision (e)(1) provides for enhanced firearm 

penalties for “any person who is a principal in the commission of 

an offense” if the prosecution pleads and proves that (1) the 

person violated section 186.22, subdivision (b), and (2) any 

principal in the offense committed a firearm violation specified in 

section 12022.53, subdivisions (b), (c), or (d). (§ 12022.53, subd. 

(e)(1).) Here, the jury found section 12022.53, subdivision (e)(1) 

allegations true on all four counts. Because this enhancement 

depends on a finding that the principal was “convicted of a felony 

committed for the benefit of, at the direction of, or in association 

with any criminal street gang, with the specific intent to promote, 

further, or assist in any criminal conduct by gang members” as 

set forth in section 186.22, subdivision (b) (§ 12022.53, subd. 

(e)(1)(A)), the changes to section 186.22 made by AB 333 require 

that the true findings on these enhancements, too, be vacated 

and the matter remanded to the trial court. 

We note, however, that with respect to all charges except 

the murder of Orona, the jury separately found true allegations

that appellant personally and intentionally discharged a firearm 

(count 2, conspiracy to commit murder) or “personally and 

intentionally discharged a firearm . . . which proximately caused 

bodily injury and death to Alexiz Orona” (counts 3 and 4, 

attempted murder and shooting at an occupied vehicle). These 

findings, which appellant does not challenge, remain intact. 

the gang allegations, the court is not bound by these previous 

sentencing choices. 
34

B. Section 1109

In addition to amending section 186.22, AB 333 added 

section 1109, which requires trial of gang enhancement 

allegations to be bifurcated from trial of the underlying offenses if 

the defendant so requests. (See § 1109, subd. (a).) Appellant 

requested bifurcation here, but the trial court denied the request. 

He now contends that his convictions must be vacated and the 

offenses retried separately from the gang allegations, because 

section 1109 applies retroactively under Estrada, supra, 63 

Cal.2d 740. We agree with respondent that the exception 

provided in Estrada does not apply to section 1109, and the 

statute does not apply retroactively to this appeal. We further 

conclude that even if section 1109 does apply retroactively, the 

failure to bifurcate was harmless here.

Our Supreme Court has explained that Estrada

“established an exception to the general rule that no part of the 

Penal Code is retroactive. (§ 3 [no part of the Pen. Code is 

retroactive ‘unless expressly so declared’]; [citation].) In Estrada, 

we held that ‘where [an] amendatory statute mitigates 

punishment and there is no saving clause, the rule is that the 

amendment will operate retroactively so that the lighter 

punishment is imposed.’ [Citation.] [¶] . . . Estrada represents 

‘an important, contextually specific qualification to the ordinary 

presumption that statutes operate prospectively: When the 

Legislature has amended a statute to reduce the punishment for 

a particular criminal offense, we will assume, absent evidence to 

the contrary, that the Legislature intended the amended statute 

to apply to all defendants whose judgments are not yet final on 

the statute’s operative date.’ [Citation.]” (People v. Hajek and Vo
35

(2014) 58 Cal.4th 1144, 1195-1196 (Hajek), overruled on another 

ground in People v. Rangel (2016) 62 Cal.4th 1192.)

The Estrada presumption applies where an amended 

statute mitigates or eliminates punishment for a criminal offense 

or enhancement. (People v. Buycks (2018) 5 Cal.5th 857, 882; 

Estrada, supra, 63 Cal.2d at pp. 743-744; Hajek, supra, 58 

Cal.4th at p. 1196; see also People v. Wright (2006) 40 Cal.4th 81, 

95–96 [Estrada applied to statute creating a new affirmative 

defense]; People v. Babylon (1985) 39 Cal.3d 719, 721-722, 728 

[Estrada applied to statute narrowing class of prohibited acts]; 

People v. Frahs (2020) 9 Cal.5th 618, 631 [Estrada applied to 

statute that offered “a potentially ameliorative benefit for a class 

of individuals”].)

The Courts of Appeal are currently split as to whether 

section 1109 applies retroactively to nonfinal judgments, and the 

Supreme Court declined to resolve the matter in People v. Tran, 

supra, 13 Cal.5th at p. 1208. (Compare, e.g., People v. Montano

(2022) 80 Cal.App.5th 82, 105-108 [§ 1109 applies retroactively]; 

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

People v. Burgos (2022) 77 Cal.App.5th 550, 564-568, rev. granted 

July 13, 2022, S274743 [same]; with People v. Ramirez (2022) 79 

Cal.App.5th 48, 65, rev. granted Aug. 17, 2022, S275341 [§ 1109 

does not apply retroactively]; People v. Perez (2022) 78 

Cal.App.5th 192, 207, rev. granted Aug. 17, 2022, S275090 

[same].) We agree with the courts that have held Estrada does 

not apply to section 1109. 

Section 1109 does not reduce or eliminate punishment for 

an offense or enhancement, provide a new affirmative defense to 

a charged crime, or otherwise ameliorate the punishment for a 

class of individuals. It modifies trial procedures for defendants
36

who have been charged with a gang enhancement and choose to 

request a bifurcated trial. When used in an appropriate case, 

section 1109 will require adjudication of a defendant’s guilt of an 

underlying offense before further adjudicating “the question of 

the truth of the [gang] enhancement.” (§ 1109, subds. (a)-(b).) 

The Estrada presumption does not apply to this type of 

procedural rule.

We are not persuaded otherwise by appellant’s alternative 

contentions that section 1109 must be applied retroactively to 

ensure equal protection of the laws and receipt of due process. As 

appellant acknowledges, “[t]he instant case does not involve a 

classification scheme in which persons, or classes of persons, are 

expressly treated differently.” There is thus no basis to apply 

strict scrutiny here, as appellant urges. Moreover, there is a 

rational basis for applying section 1109 prospectively: 

“[r]equiring retrial of the substantive offenses in every case in 

which there were gang allegations would be both disruptive and 

wasteful of judicial resources.” (People v. Burgos, supra, 77 

Cal.App.5th at p. 575 (dis. opn. of Elia, J.).) Appellant claims his 

due process rights were violated by a “unitary trial in which 

prejudicial gang evidence [was] presented.” Yet the court 

expressly instructed the jury that it could consider the gang 

evidence only for limited purposes, and could “not conclude from 

this evidence that a defendant is a person of bad character or 

that he has a disposition to commit crime.” (CALCRIM No. 

1403.) We presume the jury followed this limiting instruction 

regarding its consideration of the gang evidence, which appellant 

has not challenged. (See People v. Ramos, supra, 77 Cal.App.5th 

at p. 1132; People v. Burgos, supra, 77 Cal.App.5th at p. 574 (dis. 

opn. of Elia, J.).) 
37

In any event, the failure to bifurcate gang allegations does 

not constitute structural error. (See Tran, supra, 13 Cal.5th at p. 

1208.) Even if we were to apply section 1109 retroactively, we 

would conclude the failure to bifurcate the gang allegations was 

harmless under both the standards of People v. Watson (1956) 46 

Cal.2d 818, 836 and Chapman v. California (1967) 386 U.S. 18, 

24. 

First, as the trial court recognized when it denied 

appellant’s motion to bifurcate, a large portion of the gang 

evidence would have been admitted in the first stage of any 

bifurcated trial. Such evidence was relevant at minimum to 

explain appellant’s relationship and history with Quintero and 

Orona, his relationship with alleged coconspirators Prado and 

Ramirez, and his motive for committing the crimes.

Second, any gang evidence that was introduced for 

purposes other than establishing motive was relatively sanitized. 

To prove that Sur Trece was a criminal street gang within the 

meaning of former section 186.22, the prosecution introduced 

certified court dockets in which other Sur Trece members had 

been convicted of predicate offenses no more serious than those 

charged here, which did not bear on appellant’s criminal conduct. 

Third, as noted above, the jury was instructed not to use any 

gang evidence to conclude appellant had bad character or was 

disposed to commit crime. Absent any showing by appellant to 

the contrary, we presume the jurors followed these instructions. 

(People v. Krebs (2019) 8 Cal.5th 265, 335; see also People v. 

Ramos, supra, 77 Cal.App.5th at p. 1132 [“the jury was given a 

limiting instruction regarding its consideration of the gang 

evidence, which we presume it followed”].)
38

Finally, there was compelling evidence of appellant’s guilt 

beyond use of gang evidence in this case. Approximately one year 

after his brother was killed, appellant began actively hunting for 

Quintero, whom he believed was the assailant. Text messages 

between appellant and Quintero and appellant and his 

coconspirators documented these efforts. Cell phone data, along 

with eyewitness testimony and photographic evidence, placed 

him not only at the scene of the shooting but also at Quintero’s 

former residence and Orona’s Buena Park home. A gun used in 

the Buena Park shooting was found during a search of appellant’s 

home, and ballistics evidence from the fatal shooting was 

consistent with ammunition found in appellant’s home. In light 

of the foregoing, we find no reasonable probability of a different 

result in a bifurcated trial, and find any purported error 

harmless beyond a reasonable doubt.

IV. Sentence for Murder (§ 190, subd. (d))

As discussed above, appellant was found guilty of second 

degree murder. Pursuant to section 190, subdivision (a), the 

default punishment for second degree murder is 15 years to life. 

(§ 190, subd. (a).) Section 190, subdivision (d) increases the 

punishment for second degree murder to 20 years to life “if the 

killing was perpetrated by means of shooting a firearm from a 

motor vehicle, intentionally at another person outside of the 

vehicle with the intent to inflict great bodily injury.” (§ 190, 

subd. (d).) The trial court imposed a sentence of 20 years to life 

pursuant to section 190, subdivision (d), citing its “recollection 

[that] defendant was inside the car when he fired those shots.”

9

9 The court appears to have considered section 190, 

subdivision (d) sua sponte; it was not mentioned in the 

prosecutor’s sentencing memorandum. 
39

Defense counsel objected that was “not a jury finding,” but the 

court overruled the objection. 

Appellant now contends the court erred in imposing the 

heightened sentence, because no section 190, subdivision (d) 

allegation was pled in the amended information or found true by 

the jury. Respondent acknowledges “[t]he information did not 

mention section 190, or include a specific allegation as to count 1 

that the killing was perpetrated by means of shooting a firearm 

from a motor vehicle,” “[t]he jury instruction as to second degree 

murder did not include an allegation that appellant fired from a 

motor vehicle,” and “the verdict form as to count 1 did not 

mention an allegation regarding shooting from an occupied motor 

vehicle.” It nevertheless contends any error was harmless beyond 

a reasonable doubt. Upon de novo review of this legal question, 

we agree with appellant that the sentence was improper. (See 

People v. Tua (2018) 18 Cal.App.5th 1136, 1140 [unauthorized 

sentence], People v. Cromer (2001) 24 Cal.4th 889, 894.)

“Other than the fact of a prior conviction, any fact that 

increases the penalty for a crime beyond the prescribed statutory 

maximum must be submitted to a jury, and proved beyond a 

reasonable doubt.” (Apprendi v. New Jersey (2000) 530 U.S. 466, 

490.) Similarly, any fact that increases the mandatory minimum 

sentence also must be submitted to a jury and proved beyond a 

reasonable doubt. (Alleyne v. United States (2013) 570 U.S. 99, 

103.) “As a rule, all sentence enhancements ‘shall be alleged in 

the accusatory pleading and either admitted by the defendant in 

open court or found to be true by the trier of fact.’” (People v. 

Anderson (2020) 9 Cal.5th 946, 953, quoting § 1170.1, subd. (e).) 

Failing to submit a sentencing factor to the jury is not structural 

error, however, and does not require reversal if the error is found 
40

to be harmless beyond a reasonable doubt. (Washington v. 

Recuenco (2006) 548 U.S. 212, 222.) 

Here, there is no dispute that the jury was not asked to find 

and did not find that appellant shot from a motor vehicle.

Respondent contends this omission was harmless because “the 

information put appellant on notice, the jury instructions 

specifically advised appellant he faced a first degree murder 

conviction if the murder was committed from a motor vehicle, [ ] 

there was no dispute that the shooting occurred from a motor 

vehicle,” and “the jury found true the allegation that a principal 

personally discharged a firearm causing death.” We reject these 

contentions.

First, as discussed above, the jury’s finding that a principal 

discharged a firearm and caused death is no longer valid in light 

of AB 333, a point respondent conceded. It is unclear in any 

event how a finding that a principal discharged a firearm implies 

or even suggests that appellant shot a firearm from a motor 

vehicle. Second, the jury was instructed that appellant would be 

“guilty of first degree murder if the people have proved that the 

defendant murdered by shooting a firearm from a motor vehicle.”

(CALCRIM No. 521.) As discussed above, the jury did not find 

appellant guilty of first degree murder. Absent some showing to 

the contrary, we presume the jury followed the instructions and 

did not fail to convict appellant of first degree murder despite 

finding he shot a firearm from a motor vehicle. (People v. Krebs, 

supra, 8 Cal.5th at p. 335.) Moreover, the instruction only gave 

appellant notice that he could be convicted of first degree murder, 

not that his sentence for second degree murder could be 

enhanced. 
41

Third, the information generically charged appellant with 

murder; no degree was specified. Respondent asserts without 

explanation that such a charge “was adequate to advise appellant 

his sentence could be increased if found guilty of second degree 

murder and to have fired from a motor vehicle, and also that such 

finding would elevate the crime to first degree murder.”

Respondent cites People v. Valenzuela (2011) 199 Cal.App.4th 

1214, 1237-1238 (Valenzuela), but the case is distinguishable. 

In Valenzuela, the defendant was charged with first degree 

murder. (See Valenzuela, supra, 199 Cal.App.4th at p. 1217.) 

During discussion of jury instructions, the court advised the 

parties it planned to instruct on the lesser included offense of 

second degree murder. (Id. at 1236.) The court noted that it had 

also added an instruction for section 190, subdivision (d), and 

explained, “I understand that normally it’s something that would 

have to be pled and proved in the information. But because we’re 

dealing with the lesser-included offense and what was charged 

originally, was first-degree murder, obviously, the allegation 

wasn’t there. I assume neither of you has any objection to me 

instructing on it or including it in the verdict form.” (Ibid.) 

Defense counsel expressly stated, “No objection, your honor.”

(Ibid.) The jury found the defendant guilty of second degree 

murder and found that he fired from a motor vehicle. The trial 

court sentenced him to 20 years to life pursuant to section 190, 

subdivision (d). (Id. at p. 1237.) The defendant then challenged 

the section 190, subdivision (d) allegation on appeal, arguing he 

lacked notice because it was not charged in the information. (Id.

at p. 1236.) The appellate court rejected this argument, finding 

there was no question that defendant was on notice that he could 

be convicted of a lesser offense, and that his counsel plainly 
42

consented to the jury’s consideration of the special allegation. 

(See id. at pp. 1237-1238.) 

Here, the generic murder charge certainly gave defendant 

notice that he could be convicted of second degree murder. No 

enhancements related to second degree murder were alleged, 

however, and counsel did not consent to asking the jury to make 

any findings pursuant to section 190, subdivision (d). The jury 

also made no such findings, further distinguishing this case from 

Valenzuela. 

Respondent finally contends the error is harmless because 

it was undisputed that appellant fired from a motor vehicle. 

Respondent points to appellant’s opening statement, in which his 

counsel asserted, “Now, the truth is the instant Valentin 

Quintero, sitting in some third party’s car with no care about 

them, same as Alexiz, orders and tells Alexiz to shoot, and she 

does shoot, the occupants of the white car shoot back in selfdefense.” It also points to her closing argument, in which she 

contended, “the people in the white car had every right to shoot 

back.” Neither opening statements nor closing arguments are 

evidence, however, and stating that appellant was “in” or an 

“occupant of” the car does not preclude him stepping outside the 

stationary vehicle. Indeed, the actual evidence presented on the 

point was unclear. While it certainly could be inferred from 

Moreno’s testimony that the shots were fired from inside the 

parked car as she drove past, she testified that she did not look 

toward the car as the shots were being fired. Prado told 

detectives that appellant “hopped out” or “came out the car 

shooting” after shots were fired at them. The jury was not 

required to believe this statement, but it certainly could have. 
43

In short, on the record before us, we cannot conclude that 

the jury’s failure to find that appellant shot from a motor vehicle

was harmless beyond a reasonable doubt. We accordingly order 

the sentence on count 1 modified from 20 years to life to 15 years 

to life. 

V. Sentence for Shooting at an Occupied Vehicle (SB 

567 & AB 124)

Appellant contends his upper term sentence on count 4 for 

shooting at an occupied vehicle may no longer be proper in light 

of recent, retroactive amendments to section 1170. Respondent 

concedes the statutory changes are retroactive and remand for 

resentencing is necessary.10 After a de novo review, we agree.

(See In re David C., supra, 53 Cal.App.5th at p. 519.)

“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.)” (People v. Flores (2022) 73 Cal.App.5th 1032, 

1038 (Flores).) SB 567 amended section 1170, subdivision (b) to 

authorize determinate sentences above the middle term “only 

when there are circumstances in aggravation of the crime that 

justify the imposition of a term of imprisonment exceeding the 

middle term, and 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 

10 We note that appellant’s opening brief discusses only SB 

567, while respondent’s brief discusses only AB 124. In his reply 

brief, appellant acknowledges that both bills contemporaneously 

amended section 1170, and notes that the parties agree remand 

for resentencing is necessary. 
44

court trial.” (§ 1170, subd. (b)(2).) Additionally, it added 

language requiring aggravating circumstances to be bifurcated 

from trial of the charges, and mandates that the jury “not be 

informed of the bifurcated allegations until there has been a 

conviction of a felony offense.” (Ibid.) 

Meanwhile, AB 124 made a low-term sentence 

presumptively appropriate under specified circumstances, 

including where a defendant was a “youth” as defined section 

1016.7, subdivision (b) at the time of the offense, unless the court 

finds that imposition of the low term would be contrary to the 

interests of justice. (See § 1170, subd. (b)(6)(B); People v. Gerson

(2022) 80 Cal.App.5th 1067, 1095 (Gerson).) Section 1016.7, 

subdivision (b) defines “youth” as “any person under 26 years of 

age on the date the offense was committed.” Appellant was 20 

years old on April 14, 2017. 

The parties agree that the changes SB 567 and AB 124 

made to section 1170 apply retroactively because they are

potentially ameliorative with respect to punishment and 

appellant’s conviction is not final. We agree. (Flores, supra, 73 

Cal.App.5th at p. 1039; Gerson, supra, 80 Cal.App.5th at p. 1095; 

see Estrada, supra, 63 Cal.2d 740.) Upon resentencing appellant, 

the trial court should consider the ameliorative changes effected

by SB 567 and AB 124. 

VI. Fines and Fees

At sentencing, the court imposed a $40 court operations 

assessment on each count (§ 1465.8), a $30 criminal conviction 

facilities assessment on each count (Gov. Code, § 70373), and the 

minimum restitution fine of $300 (§ 1202.4, subd. (b)(1)). It also 

imposed and stayed the minimum parole revocation fine of $300. 

(§ 1202.45, subd. (a).) The court told appellant, “Those 
45

mandatory fines, fees can be collected from your prison earnings.”

Appellant’s counsel, citing People v. Dueñas (2019) 30 

Cal.App.5th 1157 (Dueñas) then asserted that appellant lacked 

the ability to pay the fines and fees, particularly in light of the 

“large amount of actual restitution” she expected the court to 

impose after a future victim restitution hearing. She accordingly 

requested that the court stay the fines and fees. The court denied 

the request “at this time,” and told counsel “we can review it if it 

turns out that he can’t earn any sort of income while he’s 

incarcerated. But we’ll see.”

Appellant now contends the court violated his federal and 

state due process and equal protection rights by imposing the 

fines and fees without first finding he had the ability to pay 

them. He further contends the prosecution bore the burden of 

proving he had the ability to pay, and that the absence of such 

proof requires the assessments to be stricken and the restitution 

fine suspended. Alternatively, he contends that imposing the 

fines and fees without considering his ability to pay rendered 

them unconstitutionally excessive. We reject these contentions. 

In Dueñas, our colleagues in Division Seven concluded the 

imposition of fines and fees on an indigent unhoused mother who 

lacked the ability to pay was an unconstitutional violation of her 

due process rights. (Dueñas, supra, 30 Cal.App.5th at p. 1160.)

“Dueñas held that it violates due process under the federal and 

state Constitutions to impose . . . court operations and facilities 

fees without first determining the convicted defendant’s ability to 

pay them. [Citation.] In addition, ‘to avoid serious constitutional 

questions’ raised by the statutory restitution scheme, [Dueñas

held that] the [trial] court must stay execution of the mandatory 

restitution fine unless the court determines that the defendant 
46

has the ability to pay it.” (People v. Taylor (2019) 43 Cal.App.5th 

390, 397.)11

Even under Dueñas, however, fines and fees are properly 

imposed if a defendant has the ability to pay them. We follow the 

case law holding that a defendant bears the burden of showing he 

or she lacks an ability to pay. (E.g., People v. Castellano (2019) 

33 Cal.App.5th 485, 490 [“a defendant must in the first instance 

contest in the trial court his or her ability to pay the fines, fees 

and assessments to be imposed and at a hearing present evidence

of his or her inability to pay the amounts contemplated by the 

trial court”]; People v. Kopp, supra, 38 Cal.App.5th at p. 96.) We 

review the factual determination of ability to pay for substantial 

evidence. (People v. Nilsen (1988) 199 Cal.App.3d 344, 347.) 

““‘Ability to pay does not necessarily require existing 

employment or cash on hand.” [Citation.] “[I]n determining 

whether a defendant has the ability to pay a restitution fine, the 

court is not limited to considering a defendant’s present ability 

but may consider a defendant’s ability to pay in the future.”

[Citation.] This include[s] the defendant’s ability to obtain prison 

wages and to earn money after his release from custody.’” (People 

v. Aviles (2019) 39 Cal.App.5th 1055, 1076.) Here, the trial court 

11 The Supreme Court is currently considering whether a 

court is required to assess a defendant’s ability to pay before 

imposing fines and fees and, if so, which party bears the burden 

of proof on that issue. (People v. Kopp, (2019) 38 Cal.App.5th 47, 

96, review granted Nov. 13, 2019, S257844, Supreme Court Mins. 

Nov. 13, 2019 [“The issues to be briefed and argued are limited to 

the following: Must a court consider a defendant’s ability to pay 

before imposing or executing fines, fees, and assessments? If so, 

which party bears the burden of proof regarding defendant’s 

inability to pay?”].)
47

inferred that appellant had the ability to pay the fines and fees 

imposed upon him from his probable future wages, including his 

prison wages. That was a permissible inference supported by the 

minimal evidence before the court; appellant, who is currently 26 

years old, has no identified infirmities precluding him from 

earning wages during his imprisonment and thereafter. The 

court also expressed willingness to revisit the issue if it 

transpired that appellant was unable to earn prison wages, which 

can range from $12 to $56 per month. (See ibid.) Any error in 

the court’s failure to provide appellant an ability-to-pay hearing

based on his unsupported assertion of indigency accordingly is 

harmless beyond a reasonable doubt. (See People v. Johnson

(2019) 35 Cal.App.5th 134, 139-140, citing Chapman, supra, 386 

U.S. at p. 24.) 

DISPOSITION 

The jury’s findings on the section 186.22 and 12022.53, 

subdivision (e)(1) enhancement allegations are vacated, and the 

related sentences thereon are stricken. The sentence on count 1 

is also vacated, as is the sentence on count 4. On remand, the 

prosecution shall have the option to retry appellant on the section 

186.22 and 12022.53, subdivision (e)(1) enhancements, and after 

the status of those enhancements is resolved (either by no retrial 

or by retrial and final resolution), the trial court shall resentence 

appellant according to applicable law. In all other respects, the 

judgment is affirmed. 
48

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, J.

We concur:

WILLHITE, ACTING P.J.

CURREY, J.