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

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

RON SIMMONS

,
Defendant and Appellant. B3 07747

(Los Angeles County Super. Ct. No. BA464696 )

A PPEAL 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 , Su pervising Deputy Attorney General, and Kathy S. Pomerantz

, Deputy Attorney General, for Plaintiff and Respondent.2 INTRODUCTION

A jury convicted Ron Simmons o n 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 allegation s 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 o f 15 years to life.
Simmons contends substantial evidence did not support
most of his convictions or the true finding s on the gang allegation s 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 contentio n only and remand for
the trial court to correct this and a nother sentencin g error

. Meanwhile, w hile 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 ask s us to direct the t rial court to impose the middle term instead of the upper term on two of his
convictions . We agree Senate Bill No. 567 applies retroactively3

and direct the trial court to resentence Simmons under this and

a ny 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
commi tted a series of burglaries in the San Gabriel Valley

. Because in f

our 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 f our 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 th e evening , and dr ove 15 to 20 miles to a city in the San Gabriel Valley . A fter nightfall, without knocking on the door they br oke a glass door or window to get into the house; ransack ed the rooms and stole as much jewelry, cash, and other transportable it ems as they c ould ; usually left
within 10 minutes ; and dr o ve back to the Long Beach area before dispersing

. If people were home during the burglary, the gang members intimidated, threatened, and sometimes beat the m 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 t he 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 crim es “happening close” to those areas of phone activity. C all detail records show ed 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 travel ed back to the nei ghborhood 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 proceed ed 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 1 1 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 victim s , Bong Rhee (§ 368,
subd. (b)(1), count 10); mayhem of ano ther victim, T ran Truong (§ 203, count 14); and torture of Truong (§ 206, count 20). 4

D. The People Present Evidence of Simmons’s Guilt
T he 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 i n the indictment for the jury.

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

was present during the commission of the burgla ry

. 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 burglar y.” (S ee People v. Denard (2015) 242 Cal.App.4th 1012, 1025.)

4 The People did not proceed on count 2 ( whi ch involved the burglary of Amy Ning’s residence ) . I nstead , 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 h ouse. The victims who were present when the burglar ies occurred described the perpetrators as two to three young men
who wore black clothing, black shoes, and a mask that reveal ed only the black skin around the eyes underneath the mask. The
two victims w ho 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 . B oth 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 . A t 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 T ruong 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, “Y ou 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, th ree 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 Brim s , or Harvard Park Brims

, was a criminal street gang named after its territory of 6 2nd Street and
Harvard Park and that the gang aligns with other Brims gangs in the surrounding neighb orhoods of south central Los Angeles.
He stated t he 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 lic ks,” which in “ street vernacular ”

mean t “robbing or doing shootings

. ” He stated that w hen 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 atm osphere 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, a nd 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 photo graph on Simmons’s social media account showed him holding out “a handful of money.”
T he o fficer stated that this photo graph benefit s the gang because
it showed “success” and that it “entices” younger kids to join the

gang . T he photo graph also depict ed a bottle of promethazine,
which the officer explained gang members usually obtain ed through burglaries and s old for income. Officer Navarro testified
that Simmons drove a “higher

- end gold Jaguar” and that d riving
such a car benefits gang members because “it bo lsters 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, e ven if a gang member who commit ted a burglary did not end up s tealing anything, such conduct still would benefit the gang and enhance the gang member’s reputation because the
crime indicate d 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 commit s a burglary, th e crime benefits the gang because t he 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 s uch as burglar y , 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 peopl e in the house” to enable them to cover more ground and
steal more items. Officer Navarro stated gang members li k e to commit crimes with other gang members because “they’re already vetted,” which mean t
, 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 (w ho has a police scanne r), 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 amoun ts of

. . . expensive jewelry. ” Detective Yzabal also d escribed the distinguishing features of burglaries committed by the members of the Six
Deuce Bri ms: The burglaries occur at night, and the gang members do not knock on the door to see if anyone is ho me before they break in. The burglary crews also usually carr y a crowbar, as opposed to knives

, screwdriver s , or other concealable tools that other gangs like to use

. Detective Yzabal mapped the cell phone activity of
Simmons and his associates in the gan g and concluded the activity corresponded to the burglaries and robberies in this case. The detective explained that, w hen a person makes a cell phone call, the signal is sent to the strongest cell tower, which can10

indicate the general location of the cell phone. Using maps and diagrams, D etective Yzabal explained how Simmons’s phone
records showed that

, in each instance, his phone and the phones
of his fellow gang member s 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, o n December 27, 2017 the call detail records of Simmons’s phone showed that h is phone and the phone of Devin Garner, another member of the Six Deuce Brims gang , established an open li ne from 5:11 p.m. to 5:27 p.m. B oth phones
transmitted off the sa me cell tower approximately 0.2 miles away from the residence of Tracy Luong , wh ich was burglarized that evening between 5:09 p.m. and 5:36 p.m

. On Augus t 24, 2018 at approximately 7 :00 p.m., the
tele phones associated with Simmons, Johnson, and two other

gang members registered activity in Johnson’s neighborhood in Long Beach

. At 8:30 p.m. t he signals transmitting from the four cell phones indicate d the phones had traveled together to the
area of Rhee’s house in Temple City. A n open line between two of the ga ng members ’ pho n es 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 o ff 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 miles11

away) and travel ed back to the Long Beach area after the burglary

. A n open line between the phones of two of the gang
members transmitt ed off the same cell tower less than a quarter mile from Truong’s home and corresponded to the time of the
bu rglary . T he 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 intr oduced 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 h is phone traveled
from an area in s outh c entral Los Angeles to an area near Amy Ning’s house in Temple City

. Simmons’s cell phone received a
call close to t he time of the burglary at 7:10 p. m. that lasted approximately 18 minutes, which matched the time of the
bu rglary, and the cell tower that transmitted the call was only

0.2 miles from Ning’s residence. A fter the burglary, at approximately 7:30 p.m., the call detail records show ed
Simmons ’s phone traveled back to an area in s outh c entral
Los Angeles, where poli ce arrested Simmons

— two blocks from where police found a safe Ning reported had been stolen

. One of
the officer s 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.
S urveillance 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 surveillan ce video of Simmons walking
around Johnson’s apartment ). A still image from a surveillance12

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 im ag e 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

rece ived 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 Ju ry Convicts Simmons, and the Trial Court
Sentences Him The jury found Simmons guilty on the counts
, except for the burglary of one of the residence s and elder abuse of Rhee13

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

. As we will discuss in more detail, t he trial court sentenced
Simmons to a n 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 finding s on the gang allegation s on his torture and mayhem
convictions. He also contends the trial court committed two sentencing errors. We concl ude that s ubstantial evidence supported the challenged convictions and true finding s 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 dir ect 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. Sta ndard 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 fact14

could have found the essential elements of the crime be yond 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 inference s 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 b e 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 9 19, 937 , review granted
Dec. 9, 2020, S263923 .)

B. Substantial Evidence Supported Simmons’s Conviction for Torture

1. The Perpetrator Had the Specific Intent T o 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 the15

person of another

, is guilty of torture.” 5 ( See People v. Pears on (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, 4 19

. ) The crime of t orture 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
Tr uong . 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.
H e 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 amp ly support ed the jury’s finding. “Intent is rarely susceptible of direct proof and usually must b e 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 p p. 246

- 247 .) Here, the gang member who

attac k ed Truong hi t 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 pu t a heavy chest of drawers on her back to make
sure she could not m ove 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 s atisfy 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 ,” i ncluding the use of differ ent methods of inflict ing 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 n ature 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
h im 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 conten t’ after he kicked or hit her”] .)17 Moreover , the bulk of the attack occurred after Tr uong had told the gang members she did not have any money in the house. The jury reasonabl y could have inferred the perpetrator continued to beat up Truong to persuade her to disclose the
location of money or items to steal o r to punish h er 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

r easonable inference that the defendant “intentionally inflict ed 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

. ” T he 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

. Tr uo ng never resisted or posed a physical
threat to her assailant or his crowbar

- wielding confederate

.

2. Torture Was a Natural and P robable 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, s ubstantial evidence support ed 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, 9 2; see People v. Flores, supra , 2 Cal.App. 5th at p p

. 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 rea sonably 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 p p. 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 bee n 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 me mbers 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

corresp ondingly secure. The result is all too often the infliction of other crimes on the helpless victim.’” ].) 7
Moreover

, member s 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 ana lysis” 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 p revious] attempted burglary

. . . it was certainl y predictable that [the accomplice] would again attempt to evade police after the [later] burglary”].) Indeed, because t he 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 hear d about it

. And, as Officer Navarro explained,

t he perpetrators had every reason to brag about the additional crimes they committed inside Rhee’s home to earn respect within the gang. Simmon s, at a minimum, would have known all that. Without citing a ny 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 infli ct 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 hom e . 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 gan g’s penchant for violence m ight lead to conduct amounting to torture

. (See People v. Nguye n , 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 20 3 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 tongu e, 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 t he “ evidence presented at trial was not sufficient to show the mayhem was a natural and probable consequence of the residential robbery and burgla ry 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 t he Six Deuce Brims’
culture of violence , as well as the myriad of ways violence
benefit ted the gang

, leave s 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. 4th22

40, 91 [“a juror reasonably cou ld have found that aggravated mayhem was a natural and probable consequence of either the robbery [the defendants] attempted to perpetrate

. . . or their purpose to shoo t someone for sadistic pleasure ”] ; People v. Fagalilo (1981) 123 Cal.App.3d 524, 532 [j ury reasonably could
have infer red 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 t he commission of a crime,

. . . whether they directly commit the act constituting the offense, or aid and abet in its commiss ion, or, not being present, have advised and e ncouraged 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 purp ose 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 (201 8) 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 1 193, 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 P eople 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 co uld reasonably infer Simmons’s culpability. Records of two cell phones associated with Simmons showed that the user of the phone s traveled with Six Deuce Brims gang
members (or at least with people using their phones) from Johnson’s apartment in Long Beac h to the San Gabriel Valley, stayed in the vicinity of the residence burglarized (and at times24

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 r ight before the police or homeowner arrived on the scene. The jury easily and reasonably
could have concluded Simmons w a s the person who used those cell phones and traveled along the routes at the times mapped by
Detective Yzabal. 8 The jury also reasona bly 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 th ere 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 s cene, 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 (20 03) 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. S urveillance video of Johnson’s apartmen t 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 drive rs, 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 res embling 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 bu rglaries. 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 t hey 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. Th ose 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 incriminati ng 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 same26

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 robber y 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 an d 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. Pe layo (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, wearin g all b l ack 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. (S ee 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 “‘is olated27

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 a n d 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 “ a ny 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 (S ee People v. Var

gas (202 0) 9 Cal. 5th 793, 821; People v. Albillar (2010) 51 Cal. 4th 47, 54 .) “There are two prongs to the gang
enhancement un der 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 ;

s ee 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, a t 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, cr edible, 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 .)
Subst antial evidence support ed 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)

. B oth 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 involving29

destructive violence toward another”].) Detective Hsiao testified
the Six Deuce Brims gang c reate d an atmosphere of fear and
intimidation t o discourage potential victims and witnesses from reporting crimes committed by the gang

. Officer Navarro described the importan ce to the gang of committing violent
crimes. The jury reasonably could have inf erred that committing torture and mayhem contribute d to the fear and intimidation the

gang s ought to create , which in turn enable d 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 f or the gang to continue committing the cri mes 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

st reet gang . A s discussed, the call detail records of Simmons’s phone place d the user of the phone a t time s 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 unrelated30

to t he gang’”]; People v. Morales (200 3 ) 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 als o support ed the jury’s finding on the second prong of section 186.22, sub division (b)(1) . Contrary
to Simmons’s assertion the prosecutor had to prove Simmons
intended to a ssist, f

urther

, or p romote 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 ‘“prom ote, further or assist in any criminal conduct by gang members.”’” ( Thompkins

, at p. 403; see Leon , at p. 162.)
T he 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 burglar y and
robber y , Simmons specifically intended his fellow gang member s to take any action necessary, including committing further crimes of violence, to accomplish their criminal objective s

. (See Thompkins , at p. 403 [“ [s] pecific intent ‘“is rarely susceptible of direct proof and usually must be inferred from the facts a n d 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 support ed the jury’s finding Simmons aided and abetted the commission of torture and mayhem by other members of the Six Deuce Brims31

gang , “the jury may fairly infer that [he] had the specific intent to promote, further, or assist criminal conduct by those gang
memb ers.” ( 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 T o 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 crimina l street gang conspiracy (count 1) “has the same objectives as the underlying crimes charged,” the trial
court shou ld have stayed his sentence on count 1 under
section 654. Simmons is correct. Section 182.5 provides that “a ny person who actively participates in any criminal street gang,

. . . with knowledge that its members engage in or have engaged in a pattern of cr iminal 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 punis hed 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
defendan t 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 ac t performed in the substantive offense [citations]

, or when the substantive offenses are the means by which the conspiracy is carried out [citation ] .’ [Citation.] O n t he other hand, ‘[p]unishment for both conspiracy and substantive
offenses has been uphe ld 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.) “In tent 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 imp lied
determination that two crimes were separate, involving separate objectives, must be upheld on appeal i f 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 pet itioner 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 s ubstantive 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 of fenses as well as murder,

. . . punishment for both the sex offenses and the conspiracy viola ted the prohibition of section 654 just as would punishment for both conspiracy and attempted
murder” (fn. omitted) ].)

10 A s we will discuss, the indictment did not allege the gang conspiracy included elder abuse, t orture, or mayhem.

11 The jury could not use e vidence 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’s34 The People argue the gang conspiracy encompassed broader objectives than th e substantive crimes the jury convict ed
Simmons of committing

. For example, the People point out that

, while the “ g ang 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 th ose related to the burglary and robbery

c ounts 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

. (C ompare People v. Beman

, supra , 32 Cal.App. 5th at p p

. 445, 448 [ section 6 54 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 n ot 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 . (S ee In re Romano (1966) 64 Cal.2d 826, 828

- 829.)35 G. The Court Did Not Improperly Add 35 Years to
Simmon s’s Sentence
Simmons agues the trial court improperly added 35 “extra years” to his sentence by ordering the determinate sentences to
run “consecutive t o the sentence imposed in Count 20[,] thereby increasing the sentence that should have been imposed

. ” B ut

t hat’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 count s 3 and 4 (first degree robbery and burglary of Tracy L uong ), 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 L in )

, a term of three years, stayed
under section 654 ; 13 on count 6 (burglary of Yapei X iong ), a term of three years; on counts 8 and 9 ( attempted residential robbery and burglary of R hee ), 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 initi ally 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 un der 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 L uong , but in fact count 5 related to a different victim, Therina L in

.36

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

ter m of three years; on counts 12, 13, and 14 (attempted residential robbery, burglary, and mayhem of T ruong ), 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 C hen , § 459),
a term of three years; on counts 16 and 17 (attempted residential robbery and burglary of Baoying Z hang ), 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 S un ), a term of three years; on count 19 ( burglary of Yuan Z hang, § 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

state d 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. Clanc e y (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 to37

determinate and indeterminate terms, the determinate term is served first.” ( People v. Rodriguez (2012) 207 Cal.App. 4th 204, 211; see People v. Ga rza (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 year s 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 enhancem ent statute. Effective January 1, 2022, Senate Bill No. 567 (2021

- 2022 Reg. Sess.) amended section 1170 to (among other things ) limit the trial c ourt’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 th e 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 un der section 186.22,
subdivision (b)(1)

, and the offense of actively participating in a38

criminal street gang conspirac y 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 brief s 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 Simm ons’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 prohibit ed 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 imposi ng 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. E s quivel (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 th e 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 o f a judgment is extended until the time has passed for petitioning for a writ of39

11 Cal.5th 671, 674; see People v. Superior Cour t ( 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

po ssible 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
circ umstances 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 U nited 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 di scretion 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. Na salga (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 ad mit 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,

st ipulating. I t is true t he 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.” (S ee Cal. Rules of Court, rule 4.421.) And c ounsel 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 aggravati on] 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 a t 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

, ” c ounsel 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 uppe r 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

c ounsel for Simmons could have intended to stipulate to facts justifying the upper term under section 1170, subdivision (b) (2)

, before the Legisl ature 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 c onstrued by the court or the other party as such. This rule, however, d oes not apply to ‘admissions which are42

improvidently or unguardedly made, or which are in any degree ambiguous.’” ].) Citing People v. Sandoval (2007) 41 Cal.4th 825, 839 ( Sandoval ) t he 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 s upport 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

conc ludes, 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 f ound 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

. ) T he 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 oppo rtunity 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 a43

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
th e trial court.” ( Sandoval , at p p. 839

- 840; see Boyce , at pp. 728

- 729.) T hese concerns weigh against finding the error harmless
here

. A lthough Simmons did not call any witnesses in his defense, his trial counsel may have cross

- examined the prosecution’s w itnesses 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 l argely left unchallenged the amount of cash and jewelry the p erpetrators 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’ vulnera bility

. ( S ee Cal. Rules of Court,
rule 4.421(a)(3) , (9) ; compare People v. DeHoyos (2013) 57 Cal.4th 79, 15 4 [ “Because [the] circumstances [in aggravation] clearly
were rel evant 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 exam ple, 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 describ ed in the prosecutor’s sentencing memorandum. The evidence regarding whether the crimes involved “great violence” or “great44

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

. T he People rely on evidence the perpetrators violently beat Rhee and Truong. B ut 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 act s of the conspiracy

. On count 3 (the robbery of Luong), the People did not present evidence th e crime involved great violence or great bodily harm , and L uong did not testify the perpetr ators 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))

. W e cannot conclude the jury

unqu estionably 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 circ umstances that defendant

use d two firearms, fired multiple shots, and had not been provoked.”] .) Finally, t he other aggravating circumstances listed in the People’s sentencing memorandum rest on the kind of vague or subjective standard s the Supreme Court i n Sandoval

, supra , 41 Cal.4th at p age 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 as45

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” ].) W e cannot conclude beyond a reasona ble 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 co urt 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 conviction s are affirmed. The trial court is directed to

s tay the ex ecution of t he sentence on count 1 under section 654
and to i mpose a sentence o n count 5 of three years (which
consists of one

- third of the middle term of four years

, plus one

third of the five

- year term for the gang enhancement ) that is
consecutive to the other determinate sentences

. The trial court is46

also dir ected 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.