Filed 3/25/22 P. v. Simmons CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

RON SIMMONS,

Defendant and Appellant.

 B307747

 (Los Angeles County

 Super. Ct. No. BA464696)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Curtis B. Rappe, Judge. Judgment of 

conviction affirmed and remanded with directions.

Michael S. Evans, 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, Senior 

Assistant Attorney General, Noah P. Hill, Supervising Deputy 

Attorney General, and Kathy S. Pomerantz, Deputy Attorney 

General, for Plaintiff and Respondent.
2

INTRODUCTION

A jury convicted Ron Simmons on one count of actively 

participating in a criminal street gang conspiracy, 10 counts of 

first degree burglary, two counts of first degree robbery, two 

counts of attempted first degree robbery, and one count each of 

torture and mayhem in connection with one of the burglaries. 

The jury also found true gang allegations on each of the burglary, 

robbery, and attempted robbery counts. The trial court sentenced 

Simmons to a determinate term of 46 years 4 months, and a 

concurrent indeterminate term of 15 years to life.

Simmons contends substantial evidence did not support 

most of his convictions or the true findings on the gang 

allegations on the torture and mayhem convictions. Simmons 

also contends the trial court erroneously imposed an additional 

35 years of imprisonment. And Simmons contends the court 

should have stayed execution of the sentence on his conviction for 

actively participating in a criminal street gang conspiracy

(count 1). We agree with the last contention only and remand for 

the trial court to correct this and another sentencing error.

Meanwhile, while this appeal was pending, the Legislature 

enacted Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, 

ch. 731, § 1.3), which, among other changes to the sentencing 

laws, requires that facts underlying any circumstance in 

aggravation used to impose the upper term must have been 

stipulated to by the defendant or have been found true beyond a 

reasonable doubt. Simmons argues Senate Bill No. 567 applies 

retroactively to his sentence and asks us to direct the trial court 

to impose the middle term instead of the upper term on two of his 

convictions. We agree Senate Bill No. 567 applies retroactively
3

and direct the trial court to resentence Simmons under this and 

any other newly enacted ameliorative legislation that may apply. 

FACTUAL AND PROCEDURAL BACKGROUND

A. Simmons Commits a String of Burglaries and 

Robberies

Between October 2017 and October 2018 Simmons and 

other members of the Six Deuce Brims criminal street gang 

committed a series of burglaries in the San Gabriel Valley. 

Because in four of the burglaries the occupant of the residence 

was home, Simmons and his fellow gang members also 

committed, or attempted to commit, robbery. In two of those four

robberies or attempted robberies, they brutally attacked the

victims.

Simmons and his confederates generally followed a 

common plan. They convened at the Long Beach home of 

Deondra Johnson, a member of the Six Deuce Brims gang, late in 

the afternoon or early in the evening, and drove 15 to 20 miles to 

a city in the San Gabriel Valley. After nightfall, without 

knocking on the door they broke a glass door or window to get 

into the house; ransacked the rooms and stole as much jewelry, 

cash, and other transportable items as they could; usually left 

within 10 minutes; and drove back to the Long Beach area before 

dispersing. If people were home during the burglary, the gang 

members intimidated, threatened, and sometimes beat them to 

learn where they kept cash and other valuables. None of the 

victims could identify the perpetrators.
4

B. Detectives Investigate and Conclude Simmons and 

His Fellow Gang Members Committed the Crimes

Detective Andrew Yzabal monitored social media activity of 

Six Deuce Brims gang members, analyzed the records of cell 

phones associated with members of the gang, and found evidence 

implicating Simmons in the burglaries and robberies. Based on 

his analysis of cell phone records, Detective Yzabal concluded 

that every time members of the Six Deuce Brims gang left their 

neighborhood in south central Los Angeles and traveled to the 

San Gabriel Valley, the open lines between the gang members 

corresponded to crimes “happening close” to those areas of phone 

activity. Call detail records showed that the phones of Simmons 

and other Six Deuce Brims gang members traveled to each 

targeted residence near the time of the burglary and 

subsequently traveled back to the neighborhood of the gang or 

one of its members. Video surveillance from two of the 

burglarized homes and from the apartment of one of the gang 

members provided further incriminating evidence.

C. A Grand Jury Indicts Simmons

A grand jury indicted Simmons on one count of actively 

participating in a criminal street gang conspiracy and multiple 

counts of burglary, robbery, and related crimes. The indictment 

alleged Simmons committed most of the offenses 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. (Penal Code, § 186.22, 

subd. (b).)1 The People proceeded to trial on the following 

1 Undesignated statutory references are to the Penal Code.
5

charges: one count of actively participating in a criminal street 

gang conspiracy (§ 182.5, count 1);2 11 counts of first degree 

burglary of an inhabited dwelling house (§ 459, counts 4, 5, 6, 7, 

9, 11, 13, 15, 17, 18, and 19);3 two counts of first degree 

residential robbery (§ 211, counts 3 and 16); two counts of 

attempted first degree residential robbery (§§ 211, 664, counts 8 

and 12); elder abuse of one of the victims, Bong Rhee (§ 368, 

subd. (b)(1), count 10); mayhem of another victim, Tran Truong

(§ 203, count 14); and torture of Truong (§ 206, count 20).4

D. The People Present Evidence of Simmons’s Guilt

The victims of the burglaries and robberies testified about 

what they saw when the intruders entered their home or, if they 

were not home, what they found when they returned. The mode 

of entry was usually a smashed glass door or window in the back 

2 The court renumbered the counts as they appeared in the 

indictment for the jury.

3 For five of those counts, the indictment alleged a person

was present during the commission of the burglary. First degree 

burglary is a violent felony under section 667.5,

subdivision (c)(21), “wherein it is charged and proved that 

another person, other than an accomplice, was present in the 

residence during the commission of the burglary.” (See People v. 

Denard (2015) 242 Cal.App.4th 1012, 1025.)

4 The People did not proceed on count 2 (which involved the 

burglary of Amy Ning’s residence). Instead, they introduced 

evidence of that burglary under Evidence Code section 1101, 

subdivision (b), to show identity, intent, or common plan. (See 

People v. Erskine (2019) 7 Cal.5th 279, 295.)
6

of the house. The victims who were present when the burglaries

occurred described the perpetrators as two to three young men

who wore black clothing, black shoes, and a mask that revealed

only the black skin around the eyes underneath the mask. The 

two victims who suffered physical injuries, Bong Rhee and Tran 

Truong, also described how they were attacked.

Rhee, an 84-year-old man, testified that, after he went to 

bed at 9:00 p.m. on August 24, 2018, he woke up to flashlights in 

his room. Two men had entered his home, and one of them held a 

steel crowbar. Both men proceeded to beat him with their hands. 

Rhee fell to the ground, and the men continued to beat, kick, and 

stomp on him. The two men ransacked his drawers and searched 

his closets. At some point, Rhee lost consciousness.

Truong, a 59-year-old woman who was five feet one inch 

tall, testified that on September 10, 2018, two men woke her up 

from deep sleep sometime after 9:00 p.m. The men, who 

appeared “thin and tall,” were completely covered in black. One 

of them carried a yellow crowbar, approximately one to two feet 

long. The man without the crowbar pulled her up from the bed, 

pushed her to the ground, and asked, “Where is your money?” 

Truong replied, “No, I don’t have any money.” When Truong 

looked at the man, the man hit her in the eyes multiple times and 

said, “You cannot look at me.” When Truong tried to open her 

mouth to cry because she “was in so much pain,” the man hit her 

mouth and said, “You cannot cry, you cannot cry.” The man

pinned her to the ground with one foot and repeatedly kicked her 

and stomped on her with the other. Truong thought they were 

going to beat her to death. The man then covered Truong’s face 

with a blanket and hit her in the head. Meanwhile, the other 

man started “striking everywhere” and searched the closets. 
7

Before the men left, they pushed a chest of drawers onto Truong’s 

back. The men took $3,000 in cash and jewelry. Truong suffered 

a blood bruise to her head, impaired vision, and broken ribs. She 

also lost seven or eight teeth.

In addition to the victims’ testimony, three gang experts

testified about the Six Deuce Brims’ culture of violence, the 

modus operandi its members followed when committing 

burglaries, the cell phone records that showed Simmons’s 

proximity to each of the burglaries and robberies, and 

surveillance video and social media posts that further established 

Simmons participated in the crimes. Officer Dexter Navarro 

testified that the Six Deuce Brims, or Harvard Park Brims, was a 

criminal street gang named after its territory of 62nd Street and 

Harvard Park and that the gang aligns with other Brims gangs 

in the surrounding neighborhoods of south central Los Angeles. 

He stated the primary activities of the gang are vandalism, 

armed robberies, burglaries, carjackings, shootings, narcotic 

sales, and murder. He explained a gang member earns respect 

by “putting in work” or “doing licks,” which in “street vernacular”

meant “robbing or doing shootings.” He stated that when a 

“young gangster” earns respect he can elevate his status and 

become a leader of a crew to go out and commit other crimes and 

that robberies and burglaries can earn a gang member respect. 

Officer Navarro explained, “The more violent the act, . . . the 

more respect you get.” Detective Allen Hsiao testified that 

members of the Six Deuce Brims gang establish authority and 

create an atmosphere of fear and intimidation that will make 

potential victims and witnesses reluctant to report crimes 

committed by members of the gang.
8

Officer Navarro also testified, based on more than two 

dozen contacts with Simmons since 2016, Simmons’s tattoos, and 

the people with whom Simmons associated, that Simmons was a

member of the Six Deuce Brims gang with a moniker of “Tiny E,” 

which was short for Tiny Evil. A photograph on Simmons’s social 

media account showed him holding out “a handful of money.” 

The officer stated that this photograph benefits the gang because 

it showed “success” and that it “entices” younger kids to join the 

gang. The photograph also depicted a bottle of promethazine, 

which the officer explained gang members usually obtained

through burglaries and sold for income. Officer Navarro testified 

that Simmons drove a “higher-end gold Jaguar” and that driving 

such a car benefits gang members because “it bolsters the 

reputation with the hood, within their gang, their territory, [and]

their allies.” Officer Navarro said he commonly saw gang 

members with “higher-end vehicles” and jewelry after someone in 

the gang had been arrested for burglary. Officer Navarro added 

that, even if a gang member who committed a burglary did not 

end up stealing anything, such conduct still would benefit the 

gang and enhance the gang member’s reputation because the 

crime indicated the gang member was “willing to go . . . down” for 

the gang and helped him gain the trust of fellow gang members. 

The officer concluded that, hypothetically, if a Six Deuce Brims 

gang member, accompanied by two or three fellow gang members, 

drives to the San Gabriel Valley and commits a burglary, the

crime benefits the gang because the items taken can be converted 

to cash, and the cash can be used to rent vehicles and purchase

firearms or narcotics, which gang members can sell to “further 

fund their criminal activity.”
9

Officer Navarro further testified that, “when committing a 

crime such as burglary, each gang member can assume different 

roles,” such as the driver, the contact person who “verifies to see 

if there is anybody home,” and the lookout. Then, the officer 

explained, “once entry is made,” the gang can have “two or three 

people in the house” to enable them to cover more ground and 

steal more items. Officer Navarro stated gang members like to 

commit crimes with other gang members because “they’re already 

vetted,” which meant, if they get caught, “they know how not to 

snitch or tell on each other.”

Detective Yzabal testified that, typically, four gang 

members drive to the location of the burglary in a rental car with 

tinted windows. The gang members keep an “open line” between 

the lookout (who has a police scanner), the driver, and at least 

one person inside the house. Gangs like the Six Deuce Brims 

target people of Asian descent “because of the belief that many 

Asians don’t believe in banks and keep large amounts of cash on 

hand and typically have . . . large amounts of . . . expensive 

jewelry.” Detective Yzabal also described the distinguishing 

features of burglaries committed by the members of the Six 

Deuce Brims: The burglaries occur at night, and the gang 

members do not knock on the door to see if anyone is home before 

they break in. The burglary crews also usually carry a crowbar, 

as opposed to knives, screwdrivers, or other concealable tools that 

other gangs like to use.

Detective Yzabal mapped the cell phone activity of 

Simmons and his associates in the gang and concluded the 

activity corresponded to the burglaries and robberies in this case. 

The detective explained that, when a person makes a cell phone 

call, the signal is sent to the strongest cell tower, which can 
10

indicate the general location of the cell phone. Using maps and 

diagrams, Detective Yzabal explained how Simmons’s phone

records showed that, in each instance, his phone and the phones 

of his fellow gang members convened at Johnson’s apartment in 

Long Beach, traveled to a city in the San Gabriel Valley, 

remained in the vicinity of the targeted residence for the precise

amount of time of the burglary, and then travelled back to the 

Long Beach area.

For example, on December 27, 2017 the call detail records

of Simmons’s phone showed that his phone and the phone of 

Devin Garner, another member of the Six Deuce Brims gang, 

established an open line from 5:11 p.m. to 5:27 p.m. Both phones 

transmitted off the same cell tower approximately 0.2 miles away 

from the residence of Tracy Luong, which was burglarized that 

evening between 5:09 p.m. and 5:36 p.m.

On August 24, 2018 at approximately 7:00 p.m., the 

telephones associated with Simmons, Johnson, and two other 

gang members registered activity in Johnson’s neighborhood in 

Long Beach. At 8:30 p.m. the signals transmitting from the four 

cell phones indicated the phones had traveled together to the 

area of Rhee’s house in Temple City. An open line between two of 

the gang members’ phones at 9:12 p.m. corresponded to the time 

of the 9:10 p.m. burglary that evening. Video surveillance of 

Rhee’s residence showed an SUV parked in front of the residence 

for the duration of the burglary and then sped off around the 

time the phones ended the open line call.

And on September 10, 2018 call detail records of phones 

associated with Simmons, Johnson, and another gang member

showed they all traveled together to the location of Truong’s 

home (after having committed another burglary a few miles 
11

away) and traveled back to the Long Beach area after the 

burglary. An open line between the phones of two of the gang 

members transmitted off the same cell tower less than a quarter 

mile from Truong’s home and corresponded to the time of the 

burglary. The call lasted 43 minutes, much longer than most of 

the other open line calls, which was consistent with the extra 

time it took for Truong’s assailant to beat and torture her.

To confirm the reliability of the call detail records, the 

People introduced the call detail records of Simmons’s phone 

related to an uncharged burglary. Detective Yzabal explained

that, on October 27, 2017, at approximately 5:15 p.m., the call 

detail records of Simmons’s phone indicated his phone traveled 

from an area in south central Los Angeles to an area near Amy 

Ning’s house in Temple City. Simmons’s cell phone received a 

call close to the time of the burglary at 7:10 p.m. that lasted 

approximately 18 minutes, which matched the time of the 

burglary, and the cell tower that transmitted the call was only 

0.2 miles from Ning’s residence. After the burglary, at

approximately 7:30 p.m., the call detail records showed

Simmons’s phone traveled back to an area in south central 

Los Angeles, where police arrested Simmons—two blocks from

where police found a safe Ning reported had been stolen. One of 

the officers found two crowbars nearby and recovered $35,000 of 

cash strewn across the street; Simmons had in his possession 

$8,000, five rings, a Rolex watch, pendants, and earrings.

Surveillance video from one of the burglarized homes

showed an image of one of the intruders wearing shoes with 

distinctive markings that were consistent with shoes Simmons 

wore (as captured by surveillance video of Simmons walking 

around Johnson’s apartment). A still image from a surveillance 
12

video of another burglary showed three individuals, one of whom 

(again) wore shoes that resembled the shoes Simmons wore at 

Johnson’s apartment. Another still image showed an individual 

who had facial features that resembled Simmons’s, including a

distinctive gap in the middle of his mustache. Finally, still 

images from surveillance video of Johnson’s apartment shortly 

after one of the burglaries showed Simmons carrying a box of 

“miscellaneous items” into the apartment.

Simmons’s social media account provided further evidence 

that pointed to his participation in at least one of the burglaries. 

On September 25, 2018, shortly before 7:00 p.m., Simmons 

received a message on his social media account: “Where you at?” 

Simmons replied, “OMW to work,” which Detective Yzabal 

explained stands for “On my way to work.” According to the 

detective, gang members commonly refer to crimes they commit 

as “work” because “they do it on such a regular basis and that’s 

their main income that they depend on.” Less than two hours 

after that social media message, call detail records indicated

Simmons and his fellow gang members burglarized the home of 

Baoying Zhang.

E. The Jury Convicts Simmons, and the Trial Court 

Sentences Him

The jury found Simmons guilty on the counts, except for

the burglary of one of the residences and elder abuse of Rhee
13

(counts 7 and 10). The jury also found true all the gang 

allegations.

As we will discuss in more detail, the trial court sentenced 

Simmons to an aggregate determinate prison term of 46 years 

4 months and a concurrent indeterminate term of 15 years to life.

Simmons timely appealed.

DISCUSSION

Simmons argues substantial evidence did not support his 

convictions for torture, mayhem, burglary, or robbery, or the true 

findings on the gang allegations on his torture and mayhem 

convictions. He also contends the trial court committed two 

sentencing errors. We conclude that substantial evidence 

supported the challenged convictions and true findings and that,

except for the sentence on the conviction for actively participating 

in a criminal street gang conspiracy and one of the burglary 

convictions, the trial court did not err in sentencing Simmons. In 

supplemental briefing, Simmons argues Senate Bill No. 567,

which became effective January 1, 2022, applies to his sentence 

and asks us to remand the matter and direct the trial court to 

impose the middle term instead of the upper term on two of the 

counts. We conclude Senate Bill No. 567 applies retroactively to 

this case and direct the trial court to correct the sentencing errors 

and to resentence Simmons.

A. Standard of Review

“‘When reviewing a challenge to the sufficiency of the 

evidence, we ask “‘whether, after viewing the evidence in the 

light most favorable to the prosecution, any rational trier of fact 
14

could have found the essential elements of the crime beyond a 

reasonable doubt.’” [Citation.] Because the sufficiency of the 

evidence is ultimately a legal question, we must examine the 

record independently for “‘substantial evidence—that is, evidence 

which is reasonable, credible, and of solid value’” that would 

support a finding beyond a reasonable doubt.’ [Citation.] In 

doing so, we ‘view the evidence in the light most favorable to the 

jury verdict and presume the existence of every fact that the jury 

could reasonably have deduced from that evidence.’ [Citation.] 

‘We must also “accept logical inferences that the jury might have 

drawn from the circumstantial evidence.”’ [Citation.] We do not 

question the credibility of a witness’s testimony, so long as it is 

‘not inherently improbable,’ nor do we reconsider the weight to be 

given any particular item of evidence.” (People v. Navarro (2021) 

12 Cal.5th 285, 302.) “‘A reversal for insufficient evidence “is 

unwarranted unless it appears ‘that upon no hypothesis 

whatever is there sufficient substantial evidence to support’” the 

jury’s verdict.’” (People v. Penunuri (2018) 5 Cal.5th 126, 142; see 

People v. Ware (2020) 52 Cal.App.5th 919, 937, review granted 

Dec. 9, 2020, S263923.) 

B. Substantial Evidence Supported Simmons’s

Conviction for Torture 

1. The Perpetrator Had the Specific Intent To 

Commit Torture

Section 206 provides: “Every person who, with the intent 

to cause cruel or extreme pain and suffering for the purpose of 

revenge, extortion, persuasion, or for any sadistic purpose, 

inflicts great bodily injury as defined in Section 12022.7 upon the 
15

person of another, is guilty of torture.”5 (See People v. Pearson

(2012) 53 Cal.4th 306, 325; People v. Odom (2016) 

244 Cal.App.4th 237, 246; People v. Pre (2004) 117 Cal.App.4th

413, 419.) The crime of torture has two elements: “‘(1) [A] person 

inflicted great bodily injury upon the person of another, and 

(2) the person inflicting the injury did so with specific intent to 

cause cruel and extreme pain and suffering for the purpose of 

revenge, extortion, persuasion, or for any sadistic purpose.’”6 

(People v. Flores (2016) 2 Cal.App.5th 855, 871.) 

Simmons does not challenge the jury’s finding on the first 

element, that the perpetrator inflicted great bodily injury on 

Truong. Nor does he challenge the jury’s finding on the first part 

of the second element, that the perpetrator inflicted injury with 

the specific intent to cause cruel and extreme pain and suffering. 

He argues the evidence “did not show that the perpetrator had 

the necessary specific intent to commit torture upon the victim” 

because there was no evidence the perpetrator “had a motive or 

reason to seek revenge,” tried “to persuade the victim . . . or 

extort money or property from her,” or had “a sadistic purpose.”

The evidence amply supported the jury’s finding. “Intent is 

rarely susceptible of direct proof and usually must be inferred 

from the facts and circumstances surrounding the offense.” 

(People v. Pre, supra, 117 Cal.App.4th at p. 420; see People v. 

Flores, supra, 2 Cal.App.5th at p. 871; People v. Odom, supra, 

5 Section 12022.7, subdivision (f), defines great bodily injury 

as “a significant or substantial physical injury.”

6 Sadistic purpose means “‘the infliction of pain on another 

person for the purpose of experiencing pleasure.’” (People v. 

Smith (2015) 61 Cal.4th 18, 53.)
16

244 Cal.App.4th at pp. 246-247.) Here, the gang member who 

attacked Truong hit her in the face with enough force to knock 

out at least seven of her teeth, kicked her hard enough to crack

her ribs, stomped on her, covered her with a blanket and hit her 

in the head with sufficient force to cause a blood bruise, and for 

good measure put a heavy chest of drawers on her back to make 

sure she could not move when the gang members left. A 

reasonable jury could conclude from this evidence that the only 

purpose for these repeated blows, inflicted in different ways, was 

to satisfy the perpetrator’s perverse desire to see Truong suffer. 

(See People v. Massie (2006) 142 Cal.App.4th 365, 373, 375-376 

[“a reasonable jury could have concluded that the gratuitous and 

repeated acts of extreme brutality,” including the use of different 

methods of inflicting pain, “were committed for the sadistic 

purpose of providing defendant pleasure”]; People v. Misa (2006) 

140 Cal.App.4th 837, 843 [the level of violence, the nature of the 

victim’s injuries, and the manner in which the defendant inflicted 

them, and the defendant’s “callous indifference” to the victim’s 

need for medical intervention, provided sufficient evidence the 

defendant acted with “‘the cold-blooded intent to inflict pain for 

personal gain or satisfaction’”].) That Truong’s assailant

preceded each punch with a warning not to do something that 

was beyond her control, such as crying out in pain or looking at 

him as he stood in front of her, reinforced the sadistic nature of 

the beating. (See People v. Healy (1993) 14 Cal.App.4th 1137, 

1142 [under section 206, “the trial court could reasonably have 

found that [the defendant] derived a perverse pleasure from 

beating [the victim],” who “did nothing to provoke the beatings,

and testified [the defendant] would ‘seem content’ after he kicked 

or hit her”].) 
17

Moreover, the bulk of the attack occurred after Truong had 

told the gang members she did not have any money in the house. 

The jury reasonably could have inferred the perpetrator 

continued to beat up Truong to persuade her to disclose the 

location of money or items to steal or to punish her for not 

revealing where she kept her money. (See People v. Flores, supra, 

2 Cal.App.5th at p. 872 [“there was evidence from which a jury 

could have inferred [the defendants] inflicted great bodily injury 

on the victims with the intent to cause cruel and extreme pain 

and suffering for the purpose of persuasion”]; People v. Massie, 

supra, 142 Cal.App.4th at p. 375 [sequence of events supported a 

reasonable inference that the defendant “intentionally inflicted

cruel and extreme pain in an effort to persuade [the victim] to 

relent and submit to rape”].) 

Simmons argues “there was no evidence of a sadistic 

purpose” because “the force used during the assault was 

undertaken to subdue and instill fear in the victim to commit the 

robbery.” The record does not support Simmons’s argument. As 

discussed, Truong complied with all of the perpetrator’s demands, 

and even after he had pinned her to the ground with his foot, he 

continued to beat her. Truong never resisted or posed a physical 

threat to her assailant or his crowbar-wielding confederate. 

2. Torture Was a Natural and Probable 

Consequence of the Target Crimes

Simmons next argues the “evidence presented at trial was 

not sufficient to show the torture was a natural and probable 

consequence of the residential robbery and burglary that occurred 

in the Truong residence.” Again, substantial evidence supported

the jury’s finding.
18

“‘[A] defendant may be held criminally responsible as an 

accomplice not only for the crime he or she intended to aid and 

abet (the target crime), but also for any other crime [nontarget

crime] that is the “natural and probable consequence” of the 

target crime.’ [Citation.] To find an aider and abettor guilty of a 

nontarget crime under the natural and probable consequences 

theory, the jury must find that the defendant aided and abetted 

the target crime, that a coparticipant in the target crime also 

committed a nontarget crime, and that this nontarget crime was 

a natural and probable consequence of the target crime the 

defendant aided and abetted.” (People v. Hardy (2018) 5 Cal.5th

56, 92; see People v. Flores, supra, 2 Cal.App.5th at pp. 866-867.) 

“‘A nontarget offense is a “‘natural and probable 

consequence’” of the target offense if, judged objectively, the 

additional offense was reasonably foreseeable. [Citation.] The 

inquiry does not depend on whether the aider and abettor 

actually foresaw the nontarget offense. [Citation.] Rather, 

liability “‘is measured by whether a reasonable person in the 

defendant’s position would have or should have known that the 

charged offense was a reasonably foreseeable consequence of the 

act aided and abetted.’” [Citation.] Reasonable foreseeability “is 

a factual issue to be resolved by the jury.”’” (People v. Smith

(2014) 60 Cal.4th 603, 611; see People v. Flores, supra, 

2 Cal.App.5th at pp. 867-868; People v. Weddington (2016) 

246 Cal.App.4th 468, 486-487.) “‘[T]o be reasonably foreseeable 

“[t]he consequence need not have been a strong probability; a 

possible consequence which might reasonably have been

contemplated is enough.”’” (People v. Medina (2009) 46 Cal.4th

913, 920; see People v. Abelino (2021) 62 Cal.App.5th 563, 581.)
19

Substantial evidence supported the jury’s finding Simmons

reasonably should have contemplated that torture was a possible 

consequence of the planned burglary and robbery. According to 

Officer Navarro, the methodology of Six Deuce Brims gang 

members when committing a burglary included forcibly entering 

a residence at night without knocking, just as the gang members

who burglarized Truong’s residence did. The perpetrators also 

covered themselves completely in black, indicating they 

anticipated Truong would see them once they broke into her 

house, and carried a long crowbar to strike anyone or anything in 

their way. (See People v. Nguyen (1993) 21 Cal.App.4th 518, 

532-533 [“‘When robbers enter the home, the scene is all too often 

set for other and more dreadful crimes. . . . In the home, the 

victims are particularly weak and vulnerable and the robber is 

correspondingly secure. The result is all too often the infliction of 

other crimes on the helpless victim.’”].)7

Moreover, members like Simmons of a criminal street gang 

like the Six Deuce Brims should expect additional violence may

occur, as happened during the burglary of Rhee’s house three 

weeks prior to the burglary of Truong’s house. (Cf. People v. 

Weddington, supra, 246 Cal.App.4th at p. 488 [“[g]iven [the 

7 That the perpetrator did not actually use the crowbar to hit 

Truong does not mean the jury could not consider it, along with 

the other circumstances of the crime, to find Simmons should 

have anticipated additional crimes of violence might occur. (See 

People v. Ayala (2010) 181 Cal.App.4th 1440, 1451-1452 [where

gang members brought a baseball bat to attack rival gang 

members, the “fact that the baseball bat was never actually used 

in the confrontation does not change the analysis” that the 

defendant was “properly found liable for the homicide as a 

natural and probable consequence of the planned gang assault”].)
20

defendants’] flight from police after [a previous] attempted 

burglary . . . it was certainly predictable that [the accomplice] 

would again attempt to evade police after the [later] burglary”].) 

Indeed, because the call detail records indicated Simmons 

participated in the Rhee burglary, the jury reasonably could have 

inferred Simmons either personally assaulted Rhee, witnessed 

the assault, or heard about it. And, as Officer Navarro explained, 

the perpetrators had every reason to brag about the additional 

crimes they committed inside Rhee’s home to earn respect within 

the gang. Simmons, at a minimum, would have known all that.

Without citing any authority, Simmons argues that, 

“[w]ithout previous knowledge that anyone would be inside the 

residence, it is not reasonably foreseeable that the perpetrator 

would assault someone and/or inflict injuries upon her during the 

commission of the burglary.” Simmons’s argument mistakenly 

assumes the People had to prove he had actual knowledge 

Truong would be home. The People only had to prove a person in 

Simmons’s position should have foreseen the possibility that, 

after 9:00 p.m., Truong would be home and that the gang’s

penchant for violence might lead to conduct amounting to torture. 

(See People v. Nguyen, supra, 21 Cal.App.4th at p. 530 [“For a 

criminal act to be ‘reasonably foreseeable’ or a ‘natural and 

probable’ consequence of another criminal design it is not 

necessary that the collateral act be specifically planned or agreed 

upon, nor even that it be substantially certain to result from the 

commission of the planned act.”].) The Six Deuce Brims’ plan and 

method of burglary—nighttime entry, use of a crowbar, and 

taking as much cash and jewelry in a short span of time in the 

presence of the homeowner—indicated the very real possibility of 

additional crimes of violence.
21

C. Substantial Evidence Supported Simmons’s

Conviction for Mayhem

Section 203 provides: “Every person who unlawfully and 

maliciously deprives a human being of a member of his body, or 

disables, disfigures, or renders it useless, or cuts or disables the 

tongue, or puts out an eye, or slits the nose, ear, or lip, is guilty of 

mayhem.” (See People v. Abelino, supra, 62 Cal.App.5th at 

p. 581.) 

Simmons does not challenge the jury’s finding that one of 

the gang members who attacked Truong committed mayhem by, 

among other things, breaking her ribs, knocking out her teeth,

and damaging her vision. He argues only the “evidence 

presented at trial was not sufficient to show the mayhem was a 

natural and probable consequence of the residential robbery and 

burglary that occurred in the [Truong] residence.”

Mayhem, however, was a natural and probable 

consequence of the burglary and attempted robbery of Truong for 

the same reason torture was. Simmons and his colleagues chose 

a time when they would likely encounter Truong in her home and 

woke her up in bed to attack her and try to beat out of her where 

she kept cash at home. The gang members brought with them a 

yellow crowbar, which was available not only to break into the 

home and break things in the house, but to inflict disabling, 

disfiguring, and crippling injuries on any uncooperative 

occupants (or even cooperative ones). And the Six Deuce Brims’ 

culture of violence, as well as the myriad of ways violence 

benefitted the gang, leaves little doubt a person in Simmons’s 

position should have anticipated the gang members who broke 

into the residence to steal things would also commit other crimes, 

including mayhem. (Cf. People v. Manibusan (2013) 58 Cal.4th
22

40, 91 [“a juror reasonably could have found that aggravated 

mayhem was a natural and probable consequence of either the 

robbery [the defendants] attempted to perpetrate . . . or their 

purpose to shoot someone for sadistic pleasure”]; People v. 

Fagalilo (1981) 123 Cal.App.3d 524, 532 [jury reasonably could 

have inferred the natural and probable consequence of a robbery 

was assault by means of force likely to produce great bodily 

injury because the defendants would need to resist to avoid 

capture].)

D. Substantial Evidence Supported the Jury’s Finding 

Simmons Aided and Abetted the Residential 

Robberies and Burglaries

Section 31 provides: “All persons concerned in the 

commission of a crime, . . . whether they directly commit the act 

constituting the offense, or aid and abet in its commission, or, not 

being present, have advised and encouraged its commission, . . . 

are principals in any crime so committed.” (See People v. Smith, 

supra, 60 Cal.4th at p. 611.) “‘[A] person aids and abets the 

commission of a crime when he or she, acting with (1) knowledge 

of the unlawful purpose of the perpetrator; and (2) the intent or 

purpose of committing, encouraging, or facilitating the

commission of the offense; (3) by act or advice aids, promotes, 

encourages, or instigates, the commission of the crime.’” 

(People v. Johnson (2016) 62 Cal.4th 600, 630; accord, People v. 

Mullins (2018) 19 Cal.App.5th 594, 606.) “‘[A] person who aids 

and abets the commission of a crime is a “principal” in the crime, 
23

and thus shares the guilt of the actual perpetrator.’” (Smith, at 

p. 611; accord, People v. Koenig (2020) 58 Cal.App.5th 771, 799.) 

“‘The “act” required for aiding and abetting liability need 

not be a substantial factor in the offense.’” (People v. Franzen

(2012) 210 Cal.App.4th 1193, 1216.) “‘Whether a person has 

aided and abetted in the commission of a crime ordinarily is a 

question of fact.’” (People v. Nguyen (2015) 61 Cal.4th 1015, 

1054; see People v. Frandsen (2019) 33 Cal.App.5th 1126, 

1147-1148.) “‘Among the factors which may be considered in 

making the determination of aiding and abetting are: presence at 

the scene of the crime, companionship, and conduct before and 

after the offense’” (Nguyen, at p. 1054; see People v. Johnson

(2019) 32 Cal.App.5th 26, 60), including flight (People v. Lara

(2017) 9 Cal.App.5th 296, 322). “‘Evidence of a defendant’s state 

of mind is almost inevitably circumstantial, but circumstantial 

evidence is as sufficient as direct evidence to support a 

conviction.’” (Nguyen, at p. 1055.)

Substantial evidence supported the jury’s finding that, even 

if Simmons did not step inside any of the targeted residences, he 

knew of his fellow gang members’ unlawful purpose, intended to 

assist them in their enterprise, and aided them in committing 

each burglary and robbery. Detective Yzabal’s description of his 

investigation of the crime spree by Six Deuce Brims gang 

members from 2017 to 2018 provided substantial evidence from 

which the jury could reasonably infer Simmons’s culpability. 

Records of two cell phones associated with Simmons showed that 

the user of the phones traveled with Six Deuce Brims gang 

members (or at least with people using their phones) from 

Johnson’s apartment in Long Beach to the San Gabriel Valley, 

stayed in the vicinity of the residence burglarized (and at times 
24

established an open line with the phone of another gang member 

during the commission of the burglary), then traveled back to 

south or south central Los Angeles right before the police or 

homeowner arrived on the scene. The jury easily and reasonably 

could have concluded Simmons was the person who used those 

cell phones and traveled along the routes at the times mapped by 

Detective Yzabal.8 The jury also reasonably could have inferred 

that, at a minimum, Simmons accompanied the perpetrators on 

each of the trips to the targeted residences and participated in 

the crimes as a driver, lookout, or general assistant. (See 

People v. Mullins, supra, 19 Cal.App.5th at p. 606 [even though 

the defendant “was not the person who provided force” to 

accomplish the robbery, “he was there to intimidate the 

victims . . . and thereby deprive them of their property”]; People v. 

Lara, supra, 9 Cal.App.5th at p. 322 [presence at the scene, 

companionship, and flight can support a finding the defendant 

aided and abetted a crime]; People v. Franzen, supra, 

210 Cal.App.4th at p. 1216 [“‘“‘[l]iability attaches to anyone 

“concerned,” however slight such concern may be, for the law 

establishes no degree of concern required to fix liability as a 

principal’”’”]; People v. Swanson-Birabent (2003) 114 Cal.App.4th 

8 The People provided extensive evidence the phones 

belonged to Simmons and his fellow gang members. In his social 

media postings, which included photographs of Simmons and 

identification of his gang moniker, Simmons gave the numbers

associated with the cell phones to individuals who asked for his 

phone number. Surveillance video of Johnson’s apartment 

showed Simmons making a call on a cell phone, and the cell 

phone registered activity at the exact time and location where 

Simmons made the call.
25

733, 743-744 [lookouts, getaway drivers, and persons present to 

divert suspicion are principals].)

Still images from surveillance videos of some of the 

targeted residences provided further incriminating evidence. 

Images from two different burglaries depicted a man who had

facial features resembling Simmons’s and who wore shoes similar 

to shoes Simmons had worn in the past. An image from 

surveillance video of Johnson’s apartment depicted Simmons 

carrying a box filled with assorted items walking toward the 

apartment shortly after one of the burglaries. Simmons’s 

suggestion, that perhaps he was along for the ride of the gang’s 

crime spree as an innocent bystander, is highly implausible. As 

Officer Navarro testified, gang members like to commit crimes 

with other gang members because they know they will not snitch 

on each other. 

Finally, police arrested Simmons shortly after the burglary 

of Ning’s residence and found him near Ning’s safe and in 

possession of an unusual amount of cash and jewelry. Those 

facts, along with the cell phone records placing him in the vicinity 

of Ning’s home at the time of the burglary, proved his 

participation in that uncharged crime. (See People v. Grimes

(2016) 1 Cal.5th 698, 731 [“We have recognized that ‘[p]ossession 

of recently stolen property is so incriminating that to warrant 

conviction there need only be, in addition to possession, slight 

corroboration in the form of statements or conduct of the 

defendant tending to show his guilt.’”].) The jury reasonably 

found Simmons aided and abetted the burglaries and robberies of 

the other victims in this case. (See People v. Chhoun (2021) 

11 Cal.5th 1, 27 [“‘“‘We have long recognized “that if a person acts 

similarly in similar situations, he probably harbors the same 
26

intent in each instance” . . . . [T]he inference to be drawn is that, 

in light of the first event, the actor, at the time of the second 

event, must have had the intent attributed to him by the 

prosecution.’”’”]; People v. Johnson (2013) 221 Cal.App.4th 623, 

635-636 [evidence of prior home invasion robbery involving the 

same modus operandi as the charged crime “was highly probative 

evidence”].)

Simmons argues that there was “no evidence presented 

that [he] was inside any of the residences, stole any jewelry or 

money inside the residences, or was the driver of any of the 

vehicles used to commit these crimes” and that, “[a]t most, the 

evidence showed [he] was merely present near the residences 

which were burglarized.” Physical presence at the precise scene 

of the crime, however, is not required for aiding and abetting 

liability. (See People v. Beeman (1984) 35 Cal.3d 547, 554-555 

[“The term ‘aider and abettor’ is now often used to refer to 

principals other than the perpetrator, whether or not they are 

present at the commission of the offense.”]; People v. Pelayo

(1999) 69 Cal.App.4th 115, 121 [“A person can be convicted of an 

offense even if he is not in the room when the crime occurs.”].) In 

addition, the evidence showed Simmons’s presence near each 

crime scene was more than a coincidence. The burglars, wearing 

all black and armed with a crowbar, followed essentially the 

same plan every time. The jury reasonably could have inferred 

that Simmons knew the purpose and goal of the plan and that, 

based on his social media posts, he planned and carried out the 

“work” of aiding and abetting the burglaries and robberies in this 

case. (See People v. Johnson, supra, 32 Cal.App.5th at p. 57 

[“‘The focus of the substantial evidence test is on the whole record 

of evidence presented to the trier of fact, rather than on “‘isolated 
27

bits of evidence.’”’”]; People v. Weddington, supra, 

246 Cal.App.4th at p. 481 [same].)

E. Substantial Evidence Supported the Jury’s True 

Finding on the Gang Allegation on the Torture and 

Mayhem Convictions

Simmons asserts substantial evidence did not support the 

jury’s finding he intended to assist, further, or promote criminal 

conduct by gang members because the “evidence presented at 

trial showed the crimes of mayhem and torture were not 

committed to assist, further or promote the Six Deuce Brim 

gang.” The record refutes this assertion.

Section 186.22, subdivision (b)(1), provides for additional or 

alternate punishment for “any person who is 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.”9

(See People v. Vargas (2020) 9 Cal.5th 793, 821; People v. Albillar

(2010) 51 Cal.4th 47, 54.) “There are two prongs to the gang 

enhancement under section 186.22, subdivision (b)(1), both of 

which must be established by the evidence. [Citation.] The first 

prong requires proof that the underlying felony was ‘gang 

9 Effective January 1, 2022 the Legislature amended section 

186.22 “to require proof of additional elements to establish a gang 

enhancement.” (People v. Lopez (2021) 73 Cal.App.5th 327, 343; 

see Stats. 2021, ch. 699, § 3 (Assem. Bill No. 333).) We quote the 

version of section 186.22, subdivision (b)(1), in effect at the time 

of Simmons’s trial and sentencing for purposes of addressing 

Simmons’s argument substantial evidence did not support the 

jury’s finding under this version of the statute.
28

related,’ that is, the defendant committed the charged offense ‘for 

the benefit of, at the direction of, or in association with any 

criminal street gang.’ [Citations.] The second prong ‘requires 

that a defendant commit the gang-related felony “with the 

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

conduct by gang members.”’” (People v. Franklin (2016)

248 Cal.App.4th 938, 948; see Vargas, at p. 821; People v. Rivera

(2019) 7 Cal.5th 306, 331; People v. Gonzalez (2021) 

59 Cal.App.5th 643, 648.)

“In considering a challenge to the sufficiency of the 

evidence to support an enhancement, we review the entire record 

in the light most favorable to the judgment to determine whether 

it contains substantial evidence—that is, evidence that is 

reasonable, credible, and of solid value—from which a reasonable 

trier of fact could find the defendant guilty beyond a reasonable 

doubt.” (People v. Albillar, supra, 51 Cal.4th at pp. 59-60; see 

People v. Rivera, supra, 7 Cal.5th at p. 331; People v. Franklin, 

supra, 248 Cal.App.4th at p. 947.) “As with all sufficiency claims,

‘“[w]e presume every fact in support of the judgment”’ that can be 

‘“reasonably deduced from the evidence.”’” (People v. Vargas, 

supra, 9 Cal.5th at p. 822; see Rivera, at p. 331.)

Substantial evidence supported the jury’s finding on the 

first prong of the gang enhancement statute, that Simmons aided 

and abetted torture and mayhem for the benefit of the gang. As 

discussed, torture involves cruel or extreme pain and suffering 

(see § 206), and mayhem involves disfiguring or disabling injuries

(see § 203). Both are crimes of violence. (See People v. Chatman

(2006) 38 Cal.4th 344, 393 [“‘it is the continuum of sadistic 

violence that constitutes the torture’”]; People v. Reed (1984) 

157 Cal.App.3d 489, 492 [mayhem is “a crime involving 
29

destructive violence toward another”].) Detective Hsiao testified 

the Six Deuce Brims gang created an atmosphere of fear and 

intimidation to discourage potential victims and witnesses from 

reporting crimes committed by the gang. Officer Navarro 

described the importance to the gang of committing violent 

crimes. The jury reasonably could have inferred that committing 

torture and mayhem contributed to the fear and intimidation the 

gang sought to create, which in turn enabled the members to 

commit further crimes with impunity. (See People v. Pettie (2017) 

16 Cal.App.5th 23, 51 [gang expert’s testimony that, “when the 

gang commits an act of violence, the enhanced reputation for 

violence ‘speaks loudly’ to members of the community,” supported 

the finding of benefit to the gang]; People v. Vazquez (2009)

178 Cal.App.4th 347, 354 [violent crimes “elevate the status of 

the gang within gang culture and intimidate neighborhood 

residents who are, as a result, ‘fearful to come forward,’” and this 

“intimidation, obviously, makes it easier for the gang to continue 

committing the crimes for which it is known”].)

Substantial evidence also supported a finding Simmons 

committed torture and mayhem in association with his fellow 

gang members. Simmons does not dispute he and his 

confederates were members of the Six Deuce Brims criminal 

street gang. As discussed, the call detail records of Simmons’s 

phone placed the user of the phone at times and locations

consistent with him traveling to, remaining at, and leaving the 

Truong burglary site with the other members of the gang. 

(See People v. Weddington, supra, 246 Cal.App.4th at p. 484 [the 

first prong “may be established with substantial evidence that 

two or more gang members committed the crime together, unless 

there is evidence that they were ‘on a frolic and detour unrelated 
30

to the gang’”]; People v. Morales (2003) 112 Cal.App.4th 1176, 

1198 [“the jury could reasonably infer the requisite association 

from the very fact that defendant committed the charged crimes 

in association with fellow gang members”].)

Substantial evidence also supported the jury’s finding on 

the second prong of section 186.22, subdivision (b)(1). Contrary 

to Simmons’s assertion the prosecutor had to prove Simmons

intended to assist, further, or promote the “primary activities” of

the Six Deuce Brims, “‘specific intent to benefit the gang is not 

required.’” (People v. Leon (2008) 161 Cal.App.4th 149, 162; see 

People v. Thompkins (2020) 50 Cal.App.5th 365, 403.) What is 

required is that the prosecutor proved the defendant “specifically 

intended to ‘“promote, further or assist in any criminal conduct 

by gang members.”’” (Thompkins, at p. 403; see Leon, at p. 162.) 

The evidence here was that the perpetrator tortured Truong and 

inflicted disfiguring and disabling injuries in part to force her to 

say where she hid her money, which furthered the “criminal 

conduct” of the burglary and robbery. A reasonable jury could 

have inferred that, in aiding and abetting the burglary and 

robbery, Simmons specifically intended his fellow gang members 

to take any action necessary, including committing further crimes 

of violence, to accomplish their criminal objectives. (See

Thompkins, at p. 403 [“[s]pecific intent ‘“is rarely susceptible of 

direct proof and usually must be inferred from the facts and

circumstances surrounding the offense”’”]; People v. Miranda 

(2011) 192 Cal.App.4th 398, 411 [“‘we routinely draw inferences 

about intent from the predictable results of action’”].) In 

addition, as discussed, because substantial evidence supported

the jury’s finding Simmons aided and abetted the commission of 

torture and mayhem by other members of the Six Deuce Brims
31

gang, “the jury may fairly infer that [he] had the specific intent to 

promote, further, or assist criminal conduct by those gang 

members.” (People v. Albillar, supra, 51 Cal.4th at p. 68; see

People v. Weddington, supra, 246 Cal.App.4th at p. 485.)

F. The Trial Court Erred in Failing To Stay Execution of 

the Sentence on Simmons’s Conviction for Actively 

Participating in a Criminal Street Gang Conspiracy 

Simmons contends that, because the charge of actively 

participating in a criminal street gang conspiracy (count 1) “has 

the same objectives as the underlying crimes charged,” the trial 

court should have stayed his sentence on count 1 under 

section 654. Simmons is correct.

Section 182.5 provides that “any person who actively 

participates in any criminal street gang, . . . with knowledge that 

its members engage in or have engaged in a pattern of criminal 

gang activity, . . . and who willfully promotes, furthers, assists, or 

benefits from any felonious criminal conduct by members of that 

gang is guilty of conspiracy to commit that felony and may be 

punished as specified in subdivision (a) of Section 182.” (See 

People v. Johnson (2013) 57 Cal.4th 250, 261; People v. Abbate

(2020) 58 Cal.App.5th 100, 107-108.) The “intended effect of the 

measure” enacted by the voters in 2000 as part of Proposition 21, 

Gang Violence and Juvenile Prevention Act of 1998 (People v. 

Arroyo (2016) 62 Cal.4th 589, 592), “was to expand the law [on 

conspiracy] to encompass gang-related activities more broadly.” 

(Johnson, at p. 261; see Abbate, at p. 108.)
32

“‘Because of the prohibition against multiple punishment in 

section 654, a defendant may not be sentenced “for conspiracy to 

commit several crimes and for each of those crimes where the 

conspiracy had no objective apart from those crimes. If, however, 

a conspiracy had an objective apart from an offense for which the 

defendant is punished, he may properly be sentenced for the 

conspiracy as well as for that offense.” [Citations.] Thus, 

punishment for both conspiracy and the underlying substantive 

offense has been held impermissible when the conspiracy 

contemplated only the act performed in the substantive offense 

[citations], or when the substantive offenses are the means by 

which the conspiracy is carried out [citation].’ [Citation.] On the 

other hand, ‘[p]unishment for both conspiracy and substantive 

offenses has been upheld when the conspiracy has broader or 

different objectives from the specific substantive offenses.’” 

(People v. Beman (2019) 32 Cal.App.5th 442, 446-447; see 

People v. Vargas (2001) 91 Cal.App.4th 506, 570-571.)

“‘In the absence of any reference to . . . section 654 during 

sentencing, the fact that the court did not stay the sentence on 

any count is generally deemed to reflect an implicit 

determination that each crime had a separate objective.’” (In re 

Raymundo M. (2020) 52 Cal.App.5th 78, 94.) “Intent and 

objective are factual questions for the trial court, which must find 

evidence to support the existence of a separate intent and 

objective for each sentenced offense.” (People v. Jackson (2016) 

1 Cal.5th 269, 354.) “A trial court’s express or implied 

determination that two crimes were separate, involving separate 

objectives, must be upheld on appeal if supported by substantial 

evidence.” (People v. Brents (2012) 53 Cal.4th 599, 618; see

Raymundo M., at p. 94.)
33

The People presented evidence of 11 charged and one 

uncharged burglaries, two robberies, two attempted robberies, 

and one count each of elder abuse, torture, and mayhem.

10 As 

discussed, except for the elder abuse and one of the burglary 

counts, the jury found Simmons guilty on all counts, and the 

court imposed a sentence on each conviction. These crimes were 

the extent of the conspiracy under section 182.5.11 Thus, 

substantial evidence did not support the trial court’s implied 

finding to the contrary, and the court should have stayed 

execution of the sentence on count 1. (See In re Cruz (1966) 

64 Cal.2d 178, 181 [trial court violated section 654 where “it [did] 

not appear that the conspiracy had any objective apart from the 

grand thefts for which petitioner was sentenced to prison”]; 

People v. Briones (2008) 167 Cal.App.4th 524, 529 [trial court 

should have stayed execution of the sentence on a conspiracy 

conviction because “[s]ection 654 prohibits multiple punishment 

for both the conspiracy and the substantive offenses that were its 

object”]; People v. Ramirez (1987) 189 Cal.App.3d 603, 617 

[because “the evidence necessarily shows an agreement to commit 

sex offenses as well as murder, . . . punishment for both the sex 

offenses and the conspiracy violated the prohibition of section 654 

just as would punishment for both conspiracy and attempted 

murder” (fn. omitted)].)

10 As we will discuss, the indictment did not allege the gang

conspiracy included elder abuse, torture, or mayhem.

11 The jury could not use evidence of the Ning burglary to find

the conspiracy had a broader objective than the substantive 

crimes the jury found Simmons committed because the jury 

instructions, in particular CALCRIM No. 375, limited the jury’s 
34

The People argue the gang conspiracy encompassed 

broader objectives than the substantive crimes the jury convicted

Simmons of committing. For example, the People point out that,

while the “gang conspiracy charged in count 1 of the indictment 

included 69 overt acts,” Simmons “was not convicted of any 

crimes involving the break[-]in at the home of Robert Bigleman” 

and “was acquitted of the charges committed against Fuyang 

Gao.” The People’s argument proves the opposite. Although the 

indictment alleged 69 overt acts, the jury did not hear evidence of 

any acts other than those related to the burglary and robbery 

counts in this case. As for the Gao burglary, the jury’s not guilty 

verdict on that count confirms the conspiracy did not extend 

beyond the crimes the jury found Simmons committed. (Compare 

People v. Beman, supra, 32 Cal.App.5th at pp. 445, 448

[section 654 did not bar punishment for both conspiracy to 

commit human trafficking and two counts of the substantive 

offenses of human trafficking where “the objectives of defendant’s 

conspiracy with his codefendants to commit human trafficking 

went far beyond the specific conduct for which defendant was 

convicted in” those two counts]; People v. Vargas, supra, 

91 Cal.App.4th at p. 571 [“there is strong evidence that the 

[gang], of which defendant was a member, conspired to kill not 

only [the victim], but other persons as well, in addition to the 

gang’s overriding conspiracy”].)

consideration of that evidence to determine identity, intent, or 

common plan and precluded the jury from considering that 

evidence for any other purpose. (See In re Romano (1966) 

64 Cal.2d 826, 828-829.)
35

G. The Court Did Not Improperly Add 35 Years to 

Simmons’s Sentence

Simmons agues the trial court improperly added 35 “extra 

years” to his sentence by ordering the determinate sentences to 

run “consecutive to the sentence imposed in Count 20[,] thereby 

increasing the sentence that should have been imposed.” But 

that’s not what happened. 

1. Relevant Proceedings

The trial court imposed the following sentences: on count 1 

(actively participating in a criminal street gang conspiracy), a 

term of six years; on counts 3 and 4 (first degree robbery and 

burglary of Tracy Luong), a term of 16 years for the burglary and 

a (stayed) term of four years eight months for the robbery;

12 on 

count 5 (burglary of Therina Lin), a term of three years, stayed 

under section 654;

13 on count 6 (burglary of Yapei Xiong), a term 

of three years; on counts 8 and 9 (attempted residential robbery 

and burglary of Rhee), a term of four years eight months for the 

burglary and a (stayed) term of two years four months for the 

12 On count 3, the court initially sentenced Simmons to one 

year four months, plus three years four months for the gang 

enhancement. Nine days later, the court modified the sentence

on that count. The court explained the sentence on count 3 

should have been the full term and imposed the upper term of six 

years, plus 10 years under section 186.22, subdivision (b)(1)(C).

13 The court should not have stayed execution of this term. It 

appears the court incorrectly believed counts 3, 4, and 5 all 

related to Tracy Luong, but in fact count 5 related to a different 

victim, Therina Lin.
36

attempted robbery; on count 11 (burglary of Jun Xuan, § 459), a

term of three years; on counts 12, 13, and 14 (attempted 

residential robbery, burglary, and mayhem of Truong), terms of 

two years four months for attempted robbery, four years eight 

months for the burglary, and four years eight months for 

mayhem, all stayed; on count 15 (burglary of Brian Chen, § 459), 

a term of three years; on counts 16 and 17 (attempted residential 

robbery and burglary of Baoying Zhang), a term of four years 

eight months for burglary and a (stayed) term of four years eight 

months for the robbery; on count 18 (burglary of Iling Sun), a 

term of three years; on count 19 (burglary of Yuan Zhang, § 459), 

a term of three years; and on count 20 (torture of Truong, § 206), 

15 years to life.

The court ordered that, “with the exception of the counts 

that were stayed pursuant to 654 on the determinate sentences,” 

the determinate sentences “will be consecutive to each other,” but 

“concurrent to count 20” (the indeterminate sentence). The clerk 

stated the aggregate determinate sentence was 46 years four 

months, and the court ordered Simmons to serve the determinate 

sentences first.

2. The Trial Court Did Not Err

“Section 669 requires that when a person has been 

convicted of two or more offenses (whether in the same or 

separate proceedings), the court must decide whether the terms 

are to run concurrently or consecutively.” (People v. Black (2007) 

41 Cal.4th 799, 820-821; see People v. Clancey (2013) 56 Cal.4th

562, 579 [trial court has “broad discretion” to decide whether to 

run the prison terms on multiple offenses concurrently or 

consecutively].) “When the defendant is sentenced to 
37

determinate and indeterminate terms, the determinate term is 

served first.” (People v. Rodriguez (2012) 207 Cal.App.4th 204, 

211; see People v. Garza (2003) 107 Cal.App.4th 1081, 1094.) The 

court properly ordered Simmons to serve the determinate 

sentences first, and the clerk correctly computed the aggregate 

determinate term. Thus, the court ordered Simmons to serve the 

determinate term of 46 years four months first, with Simmons to 

serve the indeterminate life term after that (with the 15 years 

already served). 

H. Senate Bill No. 567 Applies to Simmons, and the 

Erroneous Denial of a Jury Trial Is Not Harmless

While this appeal was pending, the Legislature made broad 

changes to the sentencing laws and the gang enhancement 

statute. Effective January 1, 2022, Senate Bill No. 567 

(2021-2022 Reg. Sess.) amended section 1170 to (among other 

things) limit the trial court’s discretion to impose the upper term 

of imprisonment and to require the court in certain 

circumstances to impose the lower term. (Stats. 2021, ch. 731, 

§ 1.3.) Assembly Bill No. 518 (2021-2022 Reg. Sess.) amended 

section 654 to no longer require the court to impose a sentence 

based on the longest possible term where an act or omission is 

punishable in different ways by different provisions of the law. 

(Stats. 2021, ch. 441, § 1.) And Assembly Bill No. 333 (2021-2022 

Reg. Sess.) amended section 186.22 to alter the requirements for 

proving the gang enhancement under section 186.22, 

subdivision (b)(1), and the offense of actively participating in a 
38

criminal street gang conspiracy under section 182.5. 

(Stats. 2021, ch. 699, § 3.) 

We notified counsel for the parties of these new provisions 

and asked them to submit supplemental briefs on “the 

applicability, if any, of these recently enacted laws to this 

appeal.” Simmons filed a letter brief asserting: “Appellant 

should receive the mid-term instead of the high term sentence for 

both counts one and eight per the newly enacted amendments to 

Penal Code § 1170, subdivision (b)(2).”

14 We agree with Simmons 

(and the People) that section 1170, subdivision (b)(2), applies 

retroactively to Simmons’s sentences.

“‘When the Legislature amends a statute so as to lessen the 

punishment[,] it has obviously expressly determined that its 

former penalty was too severe and that a lighter punishment is 

proper as punishment for the commission of the prohibited act. It 

is an inevitable inference that the Legislature must have 

intended that the new statute imposing the new lighter penalty 

now deemed to be sufficient should apply to every case to which it 

constitutionally could apply. The amendatory act imposing the 

lighter punishment can be applied constitutionally to acts 

committed before its passage provided the judgment convicting 

the defendant of the act is not final.’”15 (People v. Esquivel (2021) 

14 As discussed, because the trial court renumbered for the 

jury the counts in the indictment, count 8 from the indictment 

was count 3 for purposes of the trial (the robbery of Tracy Luong, 

not the attempted robbery of Bong Rhee).

15 “‘For the purpose of determining the retroactive application 

of an amendment to a criminal statute, the finality of a judgment 

is extended until the time has passed for petitioning for a writ of 
39

11 Cal.5th 671, 674; see People v. Superior Court (Lara) (2018) 

4 Cal.5th 299, 307; In re Estrada (1965) 63 Cal.2d 740, 745; 

People v. Flores (2022) 73 Cal.App.5th 1032, 1039.)

Prior to January 1, 2022, section 1170, subdivision (b), 

provided in relevant part: “When a judgment of imprisonment is 

to be imposed and the statute specifies three possible terms, the 

choice of the appropriate term shall rest within the sound 

discretion of the court. . . . The court shall select the term which, 

in the court’s discretion, best serves the interests of justice.” 

(See People v. Sasser (2015) 61 Cal.4th 1, 8; People v. Estrada

(2020) 58 Cal.App.5th 839, 843.) Senate Bill No. 567 amended 

this provision so that it now provides: “(1) When a judgment of 

imprisonment is to be imposed and the statute specifies three 

possible terms, the court shall, in its sound discretion, order 

imposition of a sentence not to exceed the middle term, except as 

otherwise provided in paragraph (2). [¶] (2) The court may 

impose a sentence exceeding 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 court 

trial.”16 (§ 1170, subd. (b), added by Stats. 2021, ch. 731, § 1.3; 

see People v. Flores, supra, 73 Cal.App.5th at p. 1038 & fn. 10.)

certiorari in the United States Supreme Court.’” (People v. Flores

(2022) 73 Cal.App.5th 1032, 1039.)

16 Prior to the enactment of section 1170, subdivision (b)(2), 

the People only had to prove an aggravating fact by a 

preponderance of the evidence. (See People v. Towne (2008) 
40

Because new section 1170, subdivision (b)(2), limits the 

trial court’s discretion to impose the upper term of imprisonment, 

it is an “‘ameliorative’” change in the law (People v. Frahs (2020) 

9 Cal.5th 618, 628) that applies retroactively to nonfinal 

sentences like Simmons’s. (See People v. Flores, supra, 

73 Cal.App.5th at p. 1039 [“the amended version of section 1170, 

subdivision (b) . . . applies retroactively in this case as an 

ameliorative change in the law applicable to all nonfinal 

convictions on appeal”]; see also People v. Nasalga (1996) 

12 Cal.4th 784, 793 [“amendments . . . that mitigate punishment 

by increasing the dollar amount for certain crimes or 

enhancements should be applied retroactively, in the absence of a 

saving clause or other indicia of a contrary legislative intent”].) 

Simmons argues that he “did not admit or stipulate to any 

circumstances in aggravation, and the jury did not make any 

findings beyond a reasonable doubt regarding circumstances in 

aggravation as to these counts.” The People argue Simmons 

“effectively stipulated to all the facts underlying the aggravating 

circumstances. Because amended section 1170, 

subdivision (b)(1), does not require a jury trial when the 

defendant stipulates to the facts, [Simmons] is not entitled to 

relief.”

“Effectively” stipulating was not, in these circumstances, 

stipulating. It is true the People argued in a sentencing 

memorandum that six aggravating circumstances justified

imposing the upper term of imprisonment, including that the 

crimes involved “great violence, great bodily harm, threat of great 

bodily harm, or other acts disclosing a high degree of cruelty, 

44 Cal.4th 63, 86; People v. Hicks (2017) 17 Cal.App.5th 496, 512; 

People v. Weber (2013) 217 Cal.App.4th 1041, 1065.)
41

viciousness, or callousness”; that “[m]any of the victims were 

elderly and particularly vulnerable”; and that the “crime involved 

an attempted or actual taking or damage of great monetary 

value.” (See Cal. Rules of Court, rule 4.421.) And counsel for 

Simmons did take the position in a sentencing memorandum 

that, for purposes of sentencing under the law at the time, it 

“would be disingenuous for counsel to argue that those 

circumstances [in aggravation] do not exist. They clearly do and 

unfortunately for the defendant none of the factors in mitigation 

set forth in Rule 4.423 appear to apply.” And at the sentencing 

hearing, when the trial court stated, “As I recall, you conceded 

that the People were correct on their enumeration of the 

aggravating factors,” counsel for Simmons stated, “That is 

correct, Your Honor.”

But counsel’s concession was not a stipulation to the facts 

underlying the circumstances in aggravation that justify 

imposition of the upper term, within the meaning of section 1170, 

subdivision (b)(2). (See People v. Mendias (1993) 17 Cal.App.4th 

195, 206, fn. 8 [distinguishing between a concession and a 

stipulation].) At the time counsel for Simmons decided not to 

contest the statements in the People’s sentencing memorandum, 

the new law had not become effective. It is hard to see how 

counsel for Simmons could have intended to stipulate to facts 

justifying the upper term under section 1170, subdivision (b)(2), 

before the Legislature added this provision to require proof of 

such facts beyond a reasonable doubt. (See People v. Jackson

(2005) 129 Cal.App.4th 129, 161 [“Oral statements of counsel 

may be treated as judicial admissions if they were intended to be 

such or reasonably construed by the court or the other party as 

such. This rule, however, does not apply to ‘admissions which are 
42

improvidently or unguardedly made, or which are in any degree 

ambiguous.’”].)

Citing People v. Sandoval (2007) 41 Cal.4th 825, 839 

(Sandoval) the People argue that, even if Simmons did not 

stipulate to the circumstances in aggravation, any error in 

imposing the upper term was harmless because a jury 

“‘unquestionably’” would have found true an aggravating 

circumstance to support the upper term of imprisonment. The 

record does not support the People’s argument. 

In Sandoval, supra, 41 Cal.4th 825 the Supreme Court 

held: “The denial of the right to a jury trial on aggravating 

circumstances is reviewed under the harmless error standard set 

forth in Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 

705, 87 S.Ct. 824]. . . .” (Id. at p. 838.) “[I]f a reviewing court 

concludes, beyond a reasonable doubt, that the jury, applying the 

beyond-a-reasonable-doubt standard, unquestionably would have 

found true at least a single aggravating circumstance had it been 

submitted to the jury, the Sixth Amendment error properly may 

be found harmless.” (Id. at p. 839; see People v. Boyce (2014) 

59 Cal.4th 672, 728-729; People v. Flores (Feb. 3, 2022, A164257) 

___ Cal.App.5th ___, ___ [2022 WL 557517, p. 5]; see also Cal. 

Const., art. VI, § 13.) The Supreme Court, however, cautioned 

that “the reviewing court cannot necessarily assume that the 

record reflects all of the evidence that would have been presented 

had aggravating circumstances been submitted to the jury.” The 

Court observed that the defendant’s incentive and opportunity at 

the sentencing hearing to contest any aggravating circumstance 

“were not necessarily the same as they would have been had the 

aggravating circumstances been tried to a jury” and that, “to the 

extent a potential aggravating circumstance at issue in a 
43

particular case rests on a somewhat vague or subjective 

standard, it may be difficult for a reviewing court to conclude

with confidence that, had the issue been submitted to the jury, 

the jury would have assessed the facts in the same manner as did 

the trial court.” (Sandoval, at pp. 839-840; see Boyce, at pp. 728-

729.) These concerns weigh against finding the error harmless

here.

Although Simmons did not call any witnesses in his 

defense, his trial counsel may have cross-examined the 

prosecution’s witnesses more extensively had the law at the time 

required the prosecution to prove the circumstances in 

aggravation to a jury beyond a reasonable doubt. For example, 

trial counsel for Simmons largely left unchallenged the amount of 

cash and jewelry the perpetrators took in each of the burglaries 

and robberies, and counsel did not question the victims about any 

matters that had little to do with the elements of the crimes, such 

as the victims’ vulnerability. (See Cal. Rules of Court, 

rule 4.421(a)(3), (9); compare People v. DeHoyos (2013) 57 Cal.4th 

79, 154 [“Because [the] circumstances [in aggravation] clearly 

were relevant to defendant’s intent in committing the crimes 

against [the victim], defendant had both reason and opportunity 

to challenge them at trial.”].)

In addition, the different standard of proof may have 

affected counsel for Simmons’s incentives. For example, had the 

standard of proof been beyond a reasonable doubt under 

section 1170, subdivision (b)(2), rather than by a preponderance

of the evidence, trial counsel for Simmons may have chosen to 

contest the facts relevant to the aggravating factors described in 

the prosecutor’s sentencing memorandum. The evidence 

regarding whether the crimes involved “great violence” or “great 
44

bodily harm” (Cal. Rules of Court, rule 4.421(a)(1)) was not as 

clear-cut as the People suggest in their harmless error argument. 

The People rely on evidence the perpetrators violently beat Rhee 

and Truong. But on count 1 (actively participating in a criminal 

street gang conspiracy), the indictment did not allege the crimes 

of physical violence against Rhee and Troung were overt acts of 

the conspiracy. On count 3 (the robbery of Luong), the People did 

not present evidence the crime involved great violence or great 

bodily harm, and Luong did not testify the perpetrators 

physically injured her. She did state the perpetrators threatened

her, but counsel for Simmons did not cross-examine Luong on 

this point (and there was no reason to do so under former 

section 1170, subdivision (b)). We cannot conclude the jury 

unquestionably would have found beyond a reasonable doubt that 

count 1 or count 3 involved great violence or great bodily harm. 

(Cf. People v. Myles (2012) 53 Cal.4th 1181, 1222 [“Given the 

undisputed evidence regarding defendant’s gun use, counsel’s 

concessions, and that the jury convicted defendant of first degree 

murder rather than a lesser offense, we conclude beyond a 

reasonable doubt that, under the same standard, the jury also 

would have found the aggravating circumstances that defendant 

used two firearms, fired multiple shots, and had not been 

provoked.”].)

Finally, the other aggravating circumstances listed in the 

People’s sentencing memorandum rest on the kind of vague or

subjective standards the Supreme Court in Sandoval, supra, 

41 Cal.4th at page 840 pointed out make it difficult for a 

reviewing court to determine how a jury would have assessed the

evidence. As the Supreme Court explained, “Many of the 

aggravating circumstances described in the rules,” such as
45

whether the victim “‘was particularly vulnerable’” or whether the 

crime involved a “‘taking or damage of great monetary value,’” 

“require an imprecise quantitative or comparative evaluation of 

the facts.” (Ibid.; accord, People v. Boyce, supra, 59 Cal.4th at pp. 

728-729 [same]; see People v. Lincoln (2007) 157 Cal.App.4th 196, 

204 [“making assessments of what a jury would have decided 

with respect to ‘somewhat vague or subjective standard[s]’ is a 

thorny task”].) We cannot conclude beyond a reasonable doubt 

the jury unquestionably would have found true any of the 

aggravating circumstances here.

Because the trial court’s error in imposing the upper term 

on counts 1 and 3 was not harmless, we vacate the sentences on 

these counts and remand for the court to resentence Simmons in 

accordance with section 1170, subdivision (b)(2). On remand, the 

court shall conduct a “‘full resentencing’” (People v. Buycks (2018) 

5 Cal.5th 857, 893), including applying the terms of any other 

ameliorative legislation that became effective January 1, 2022.

DISPOSITION

The convictions are affirmed. The trial court is directed to 

stay the execution of the sentence on count 1 under section 654

and to impose a sentence on count 5 of three years (which 

consists of one-third of the middle term of four years, plus onethird of the five-year term for the gang enhancement) that is

consecutive to the other determinate sentences. The trial court is 
46

also directed to resentence Simmons under section 1170, 

subdivision (b)(2), and the terms of all applicable, newly enacted 

ameliorative legislation.

SEGAL, J. 

We concur: 

PERLUSS, P. J.

FEUER, J.