Filed 4/10/23 P. v. Ware CA4/1

OPINION ON REMAND FROM THE CALIFORNIA SUPREME COURT

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,

v. VICTOR WARE et al.,
Defendants and Appellants. D072515

(Super. Ct. No. SCD255884)

ORDER MODIFYING OPINION

NO CHANGE IN JUDGMENT

THE COURT: It is ordered that the opinion filed o n March 27 , 202 3 , be modified as follows:
1. In the Disposition on pages 78

- 79, delete the second paragraph and insert the following:

“As to appellant Ware, we reverse his conviction on count 9 (gang conspiracy, § 182.5). On counts 1, 10, and 14, we vacate the true findings on the gang enhancement allegations (§ 186.22, subd. (b)). On count 10, we vacate the gang

- related firearm enhancement allegations. (§ 12022.53, subds. (b)

– (d) & (e)(1)). Ware’s sentence is vacated and the matter is remanded to the superior court. On2

remand, the court is directed to strike (1) the unpaid balance of the $154 criminal justice fee and (2) Ware’s one

- year prior prison term enhancement under section 667.5, subdivision (b) for a prior prison term resulting from drug convictions in violation of Health and Safety Code sections 11350, subdivision (a), and 11351.5. The People shall de cide whether to retry Ware on the gang enhancement allegations (§ 186.22, subd. (b)), and gang related firearm enhancement allegations (§ 12022.53, subds. (b)

– (d) & (e)(1)). Upon determination as to the status of these allegations (no retrial, or retrial and final resolution) Ware is to be sentenced consistent with current law. In all other respects, Ware’s judgment is affirmed.”
There is no change in the judgment.

HUFFMAN, Acting P. J.
Copies to: All partiesFiled 4/6/23 P. v. Ware CA4/1 (u nmodified opinion)

OPINION ON REMAND FROM THE CALIFORNIA SUPREME COURT

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,

v. VICTOR WARE et al.,
Defendants and Appellants. D072515

(Super. Ct. No. SCD255884)

ORDER MODIFYING OPINION

NO CHANGE IN JUDGMENT

THE COURT: It is ordered that the opinion filed o n March 27 , 202 3 , be modified as follows:
2. On page 4, line 1 of the first full paragraph, delete the first sentence and replace with the following sentence :

“In an unpublished opinion originally issued on July 21, 2020, 2 w e reverse Simpson ’ s and Hoskins ’ s gang conspiracy convictions, but reject appellants ’ remaining arguments regarding their convictions.”

2 We subsequently modified the opinion on July 29, 2020, and again modified the opinion after denial of rehearing on August 12, 2020.3. In the D isposition on page 79, delete the first paragraph and

insert the following:

“ As to appellant Simpson, we reverse his conviction on count 6 (gang conspiracy, § 182.5). On counts 1 thr ough 5, we vacate the true findings on the gang enhancement allegations (§ 186.22, subd. (b)). On counts 2 and 3, we vacate the true findings on the gang

- related firearm enhancement allegations (§ 12022.53, subds. (b)

– (d) & (e)(1)). Simpson’s sentence is vacated and the matter is remanded to the superior court. On remand, the court is directed to strike the unpaid balance of the $154 criminal justice fee and the People shall decide whether to retry Simpson on the gang enhancement allegations (§ 186.22,

s ubd. (b)), and gang

- related firearm enhancement allegations (§ 12022.53, subds. (b)

– (d) & (e)(1)). Upon determination as to the status of these allegations (no retrial, or retrial and final resolution) Simpson is to be sentenced consistent with current la w. In all other respects, Simpson’s judgment is affirmed .” There is no change in the judgment.

HUFFMAN , Acting P. J.
Copies to: All PartiesFiled 3/27/23 P. v. Ware CA4/1 (unmodified opinion)

Opinion on remand from Supreme Court OPINION ON REMAND FROM THE CALIFORNIA SUPREME COURT

NOT TO BE PUBLISHED IN 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 or dered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,

v.

VICTOR WARE et al. , Defendant s and Appellant s

. D072515

(Super. Ct. No. SCD255884 )

APPEAL S from judgment s of the Superior Court of San Diego County, Leo Valentine, Jr., Judge. A ffirmed in part, reversed in part , and remanded for resentencing. Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant Dionte Simpson. David L. Polsky, under appointment by the Court of Appeal, for Defendant and Appellant Victor Ware. Rob Bonta , Attorney General, Lance E. Winters , Chief Assistant Attorney General , Charles C. Ragland , Assistant Attorney General , A. Natasha Cortina ,2

Warren J. Williams , and Christine Levingston Bergman , Deputy Attorney s General , for Plaintiff and Respondent. Dionte Simpson, Victor Ware , and Nicholas Hoskins (collectively appellants) are members of 5/9 Brim (Brim), a criminal street gang in San Diego that is a set of the Bloods gang. The Neighborhood Crips (NC) and West Coast Crips (WCC ) , ( together, the Crips) , other criminal street gang s, are the main rivals of the Brims. A jury found appellants guilty of the following crimes related to their gang involvement :

Count 1 (all appellants): Between January 1, 2012 and April 23, 2014 , conspired to commit murder (Pen. Code, 2 § § 182, subd. (a) , 187) for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).)
Counts 2 and 3 (Simpson): June 14, 2011 , attempted murder of v ictims 1 and 2 ( § § 664 , 187, subd. (a)) involving the personal use of a firearm (§ 12022.53, subds. (b), (c) and (e)(1)), and for the benefit of a street gang. (§ 186.22, subd. (b)(1).)
Counts 4 and 5 (Simpson): June 14, 2011 , assaulted

v ictims 1 and 2 with a firearm (§ 245, subd. (b)) for the benefit of a street gang. (§ 186.22, subd. (b)(1 ).)
Count 6 (Simpson): April 4, 2012 , participated in a criminal street gang conspiracy (§ 182.5) for the crime of premeditated attempted murder committed on or about April 4, 2012. (§§ 664 , 187 , 189.)
Count 7 (Hoskins): August 27, 2013 , participate d in a criminal street gang conspiracy (§ 182.5) for the crime of premeditated attempted murder committed on or about August 27, 2013. (§§ 664 , 187 , 189.)

2 Undesignated statutory references are to the Penal Code.3 Counts 8, 12 , and 13 (Ware): January 29, 2014 , and April 23, 2014 , possessing a firearm by a felon. (§ 29800, subd. (a)(1)).
Count 9 (Ware): March 25, 2014 , participated in a criminal street gang conspiracy (§ 182.5) for the crime of premeditated attempted murder committed on or about March 25, 2014. (§§ 664 , 187 , 189.)
Count 10 (Ware): March 25, 2014 , first degree attempted murder (§§ 664 , 187, subd. (a)) involving the personal use and discharge of a firearm (§ 12022.53, subds. (b), (c) and (e)(1)) for the benefit of a criminal street gang. (§ 186.22, subd. (b )(1).)
Count 14 (Ware): May 6, 2014 , assault by means likely to produce great bodily injury (§§ 245, subd. (a)(4)) for the benefit of a criminal street gang. (§186.22, subd. (b)(1).) Ware subsequently admitted a prison prior allegation. (§ 667.5, subd. (b)

. ) The court sentenced appellants to prison as follows: (1) Ware , 27 years , plus 40 years to life; (2) Simpson , 36 years , plus 25 years to life; and (3) Hoskins , 25 years to life. Appellants challenge d the sufficiency of the evidence supporting their convictions for conspiracy to commit murder (count 1) and criminal street gang conspiracy (counts 6, 7, 9). Appellants also challenge d the instruction regarding coconspirators ’ statements. Ware assert ed that the trial court erred by failing to instruct the jury that it could find multiple conspiracies existed. Simpson, joined by Hoskins, a ssert ed that their conspiracy convictions must be reversed because the jury was allowed to consider ov ert acts after the conspiracy terminated and overt acts that were not proven. Hoskins, joined by Simpson, also contend ed that their conspiracy convictions violated their right to free speech under the First Amendment because the court admitted evidence of their social media posts to establish participation in the alleged conspiracy.4

Simpson challenge d the evidence supporting his convictions for attempted
murder (counts 2 and 3 ) and assault with a firearm (counts 4 and 5). Ware challenge d the sufficiency of the evidence supporting the gang enhancement attached to his attempted murder conviction (count 10) and the evidence supporting one of his convictions for possessin g two handgun s found d uring the
search of his residence (counts 12 and 13)

. He also challenge d counts 12 and 13

on statute of limitations grounds. He further assert ed that he received ineffective assistance when his trial counsel fail ed to move to suppress the gun found durin g his January 29, 2014 , pat down search (count 8) , and for conceding his guilt on all three firearm possession counts (counts 8, 12 , and 13)

. Finally,
Ware argued that the trial court incorrectly imposed sentence for both the firearm enhancement and the g ang enhancement, and improperly imposed sentences for both conspiracy to commit murder and attempted murder. Finally, Sim ps on and Ware sought remand to allow the trial court to exercise its discretion to strike or impose the section 12022.53 firearm enhancement s attached to counts 2 and 3

. Simpson and Hoskins also claim ed cumulative error. In an unpublished opinion originally issued on July 21, 20 20 , 3 w e reverse d
Ware ’ s and Hoskins ’ s gang conspiracy convictions, but reje c t ed appellants ’ remaining arguments regarding their convictions . We agree d to vacate Simpson ’ s and Ware ’ s sentences and remanded the matter for resentencing. 4 Hoskins petitioned the California Supreme Court for review of his conviction for conspiracy to commit murder, the sole remaining conviction against him,

3 We subsequently modified the opinion on July 29, 2020, and again modified the opinion after denial of rehearing on August 12, 2020.

4 Our conclusion that the trial court did not err renders it unnecessary to address Simpson ’ s cumulative error claim.5

arguing insufficient evidence support ed his conviction. 5 (See People v. Ware (2022) 14 Cal.5th 151, 1 56 .) The Supreme Court concluded that insufficient
evidence was presented at trial to show Hoskins had the requisite intent to participate in a conspiracy to kill rival gang members , it reversed his judgment, and remanded the matter for further proceeding s. ( Id. at p. 175

. ) We accepted the parties’ stipulation for the issuance of an immediate
remittitur as to Hoskins. 6 Simpson and Ware filed supplemental briefs jointly contending: (1) their gang

- related enhancements must be reversed in light of the changes made to section 186.22 by Assembly Bill No. 333 (2021

– 2022 Reg. Sess.) (Stats. 2021, ch. 699, §§ 1

– 5) (Assembly Bill 333) ; (2) Assembly Bill No.
1869 (2019

– 2020 Reg. Sess.) (Stats. 2020, ch. 92, § 11; (A ssembly B ill 1869), requires that any unpaid portion of the c riminal j ustice f ee imposed pursuant to Government Code section 29550.1 be vacated ; and (3) upon resentencing, the trial court must apply section 1385, as amended by Senate Bill No. 81 (202 1

– 202 2 Reg. Sess.) (Stats. 2021, ch. 721, § 1) (S enate B ill 81), which lists factors courts must consider that weigh heavily in favor of striking enhancements

. Ware als o contends that (a) Assembly Bill 333 requires reversal of his gang conspiracy conviction (co unt 9) and (b) pursuant to Senate Bill N o. 483 (2021

– 2022 Reg. Sess.) (Stats. 2021, ch. 728, § 3) (Senate Bill 483) , we must order the prior prison term enhancement imposed under section 667.5, subdivision (b)
stricken. Finally, Simpson asserts that a mendments to section 654 r equire

r econsideration of his s entence on c ounts 2 through 4

.

5 The Supreme Court denied petitions for review filed by Simpson and Ware.

6 A ll arguments made by solely by Hoskins have been deleted except for his arguments pertaining to reversal of his gang conspiracy conviction

.6

The People agree with these contentions except for Ware’s argument that Assembly Bill 333 requires reversal of his gang conspiracy conviction. We
conclude that Simpson and Ware are entitled to the ameliorative benefit of these
new laws. We vacate our August 12, 2020 opinion after denial of rehearing and reissue that opinion, addressing these new arguments at the end of this opinion
in section s IV and V .D

- G

. We also made changes to the discussion in sections I.E., V.A. and V.B. , required by the vacation of the true findings on the g ang enhancement and g ang

- related f irearm e nhancements

. FACTUAL BACKGROUND We limit our summary of the factual background to the expert testimony regarding the gangs at issue , the relevant crimes of which the jury found appellants guilty , and some of the overt acts pertaining to the conspiracy
convictions

. Viewed in the light most favorable to the judgment, the ev idence was as follows.
Prosecution ’

s Gang E xpert On April 11, 2011, Dereck Peppers, a respected Brim gang member known

as an “ original gangster , ” was k illed in Brim territory

. Police suspected that a rival Crip s gang member had murdered Peppers. Simpson and Ware knew Peppers. Peppers ’ s murder sparked a gang war between Brim and WCC and spike d the number of homicides attributed to African

- American gangs

. Appellants were Brim gang members and members of a Brim subset know n a s Tiny Hit Squad

. Young Hit Squad was another Brim subset. At some point T iny Hit Squad and Young Hit Squad merged, creating a commingled group known as Hit Squad. A “ hit ” means to kill someone. Members of the Hit Squad included appellant s and alleged coconspirators , Lamont Holman, Mykein Price, Timothy Hurst, Emanu e l Peavy, Damonte Lucas, Clyde Ellis, Rahman Taylor, Nino Sanchez, Deondre Cooper, Leron Johnson, Jamon Smith, Edward7

Laplanche, Edward Paris, Aaron Hurst, Norman Sanchez, Mauri ce Chavarry, Sherbly Gordon, and Steven Mahaney

. Brandin Orchord was also a Brim member and a member of Young Hit Squad. Jontae Jones was a member of the Hit Squad. A gang that has been the target of a shooting by a rival gang is expected to
retaliate or “ get back ” at the rival gang. A rival gang graffitiing in another

gang ’ s territory would also require retaliation . Failure to retaliate would make the gang appear w eak and invite other gangs to prey on its members. The

r etaliation has to be equal to the insult suffered, but is preferably “ one step above. ” Blood gangs, including Brim , associat e with the color red. Crip s gang members traditionally wear blue

. Gang members “ put[ ] in work ” for a gang by going on missions, such as committing burglaries, robberies or shootings. For shootings, gang members go into rival gang territory to seek rival gang members. A gang member on a mission might target a particula r rival gang member. If the target cannot be located, the gang member will look for a substitute, such as someone dressed in the rival gang ’ s color. Gang member s share guns. For example, in one 24

- hour period the prosecution gang expert saw that one gun had been used by three different gang
members. When it is time to go on a mission, a gang member will pick up a gun and pass it off to the person on the mission and then return the gun so that other gang members would have access to it. Gang members often store their guns at the home of a female who is not on parole or probation. The gang expert reviewed a large amount of social media evidence pertaining to B rim gang members and explained to the jury how social media
worked. The gang expert believed that gang members in a set knew when other gang members in the same set had engaged in or were part of criminal activity8

as evidenced by social media posts. Gang membership does not end when an individual goes into custody. Gang member s in custody still have access to cellphones and social media. Gang members also monitor rival gangs on social
media. It is common for Brim gang members to replace the letter “ C ” with a “ K ” or to place the letter “ K

” after the letter “ C. ” The letter “ k ” after the letter “ c ” refers to “ Crip Killer. ” Blood gang members also replace the letter “ c ” with the letter “ b ” when writing. For example, the word “ cool ” becomes “ bool. ” “ Crab, ”

“ Nap bashing, ” “ Toasty K, ” “ wet toast , ” or “ west toast ” are derogatory terms for
NC or WCC. June 14, 2011

- Simpson ’ s Attempted Murder and Assault with Firearm Convictions (Counts 2

- 5)
On this day a group of five men , including Simpson, Orchord , Paris, and Chavarry started arguing with two Crip s gang members on a street corner. Paris and Orchord began throwing gang signs with their hands. As the two Crips started to walk away, Simpson pulled out a gun, someone said “ Fuck Crabs , ” and Simpson fired two or three shots. The two rival gang members fled

. Simpson gave the gun to Orchord, who subsequently hid it in his garage. After learning that the suspect group might be inside Orchord ’ s apartment , police officers went to the apartment where they eventually
contacted Orchord and Paris. Officer s later found Simpson and Lucas hiding in the attic and Chavarry hiding under some clothing. Officers found a loaded revolver about a foot from where Simpson had been hiding. Officers who responded to the scene located two expended .45

- caliber shell

cas ings in the front yard of a residence, and a bullet further down the street. During a search of Orchord ’ s residence officers found a loaded .45

- caliber semiautomatic firearm hidden in the garage. Subsequent ballistics tests linked
th is firearm to the sho oting.9

Police placed Simpson and Lucas in the back of a patrol car and the prosecution played their recorded conversation for the jury. The gang expert also interpreted some of the conversation

. When Lucas commented that the police have not “ found the other one, ” Simpson told him to shut up and explained to him why the police put them in the back of a patrol car together.
This was an example of an older gang member schooling a younger one on poli ce investigations

. When Lucas said, “ they found the second one, ” Simpson commented, “ On Brims, ” asking Lucas to swear on the gang that police had found both guns. The gang expert interpreted Simpson ’ s reply , “ I got life, ” as an admission that he knew a gun would be linked t o a shooting and there may be evidence connecting him to th e shooting

. Simpson and Lucas also discussed who would take the responsibility for the gun, with Simpson t elling Lucas that he sh ould accept the ch arge and take the hit for the gang because he was the youngest

. The garage contained Brim gang graffiti that included the gang monikers for Paris, Johnson, Chavarry, Hoskins, Orchord, Ware , and Peavy

. The graffiti reference d “ CK

” meaning “ Crip Killing ” and “ crab ” which is a derogatory term for a Crip s gang member. January 2012 Shootings (Overt Acts 1

- 5) On January 3, 2012, a man with a dark complexion fired shots in WCC territory and then escaped in a vehicle. Later that day, a shooting took place in Brim territory. Two days later a third shooting took place in Brim territory. Bullet casings recovered from that shooting, matched the first shooting, suggesting to the expert that these shootings were consistent with “ get back. ” April 1, 2012

- Murder of M

. B

. (Overt Acts 4

- 6) On April 1, 2012, M

. B

. was fatally shot

. M. B

. , who was not a gang member, was in Crips territory while wearing a ll blue clothing

. The gang expert10

considered this shooting to be a “ mission ” because an armed Brim gang member went to rival gang territory and shot a person without knowing whether that

p erson was part of the rival gang. Ballistics testing conducted on cartridge

ca sings recovered at the scene tied these casings to a nine

- millimeter gun used during the shooting on April 4, 2012. Police recovered this gun on A p ril 5, 2012 , during a contact with coconspirator s Norman Sanchez , Smith , and Lucas

. April 3, 2012

- Murder of W .L. On this day , W .L. , a nongang member, was fatally shot in the face by a
B lack person driving a stolen vehicle

. Police later arrested c oconspirator Ellis with the murder weapon. April 4, 2012

- Attempted Murder of T .L. (Overt Acts 7

- 1 1 ) and Simpson Gang Conspiracy (Count 6)
On this day, N C gang member T .L., W.L. ’ s son, was shot by a memorial set up near the location of his father ’ s shooting. Police recovered nine

millimeter casings from the scene. The casings were from two separate firearms, one of which was the same firearm used to kill M. B

. three days earlier. One of the firearms was also used for return fire during the January 5, 2012 shooting. Following their arrest for possessing a firearm, police placed Smith and Norman Sanchez in a patrol car together and recorded their conversation

. Smith stated, “ They found that thing, ” referring to the gun officers found. Later in the recording, Norman Sanchez said, “ We did this ride shit for the homie. ” The gang expert explained that a “ ride ” means going on a mission for the gang

.

“ For the homie ” meant that the men did the shooting on someone ’ s behalf, such

as getting payback for a shooting that occurred in Brim territory

. Norman Sanchez and Lucas later pleaded guilty to this shooting. Police linked t he nine

- millimeter Beretta handgun recovered during Smith
and Norman Sanchez ’ s arrest to the April 1 and April 4, 2012 shootings. The11

gang expert opined that this shooting and the April 1 shooting were consistent with a gang mission because the gun was used multiple times in rival gang territory. Additionally, these shoot ings were committed at the beginning of the week that NC celebrated its gang, which is April 1 through 7. On April 9, 2012, a social media status update on Hoskins ’ s account

stat ed , “ Son was born healthy. Crossys got Hit. All I need is some Dro and my day is set. LOL. [#]Happy Easter. ” The gang expert explained that a “ crossy ” is

a rival Crip s gang member and that the post referenced the shooting of a Crip s gang member

. May 2, 2012

- Arrest of Simpson ’ s Girlfriend in Possession of Firearm Linked to Three Shootings In the early morning hours o n this day, an officer contacted Adrianna P. as she walked down the street in violation of curfew. A search of Adrianna ’ s cellphone revealed “ Blood ” gang terminology in several text messages, some of which were attributed to Simpson. The officer recovered a loaded nine

millimeter firearm from Adrianna ’ s purse. Testing revealed that this gun had been used during the January 5, 2012 shooting, the Janu ary 7, 2012 shooting, and April 4, 2012 shooting. During a police interview, Adrianna admitted that Simpson father ed her child and that he had given her the gun immediately before the officer contacted

her. 7 She stated that everyone looked up to Simps on and that he got all the

guns

. She claimed that he passed guns to lots of people including, coconspirators Norman Sanchez , Lucas , and Paris . Adrianna stated that

7 During trial, Adrianna ’ s story changed. She stated that she found the gun and decided to keep it. She admitted dating Simpson, but claimed that she did not know who fathered her child.12

Simpson called Nino Sanchez “ his son, ” and that Nino looked to Simpson as a father. May 11, 2012

- Murder of C .T. (Overt Acts 12

- 14) On this day, C .T. , a nongang member, was in N C territory when a driveby shooter shot and killed him

. The night before C. T

. was killed, a post appeared

on Hoskins ’ s social media page stating, “ I ’ m making a lot of stupid decisions but [I don ’ t give a fuck]. Deal with the consequences when they get here. # [you only Brim once]

. ” June 4, 2012

- Recovery of Smith & Wesson Handgun from a Br im Gang Member On this day, police officers arrested Brim member Calvin Hunt for an outstanding warrant. After dropp ing Hunt off at jail f or processing, officers
discovered a loaded Smith & Wesson .40

- caliber handgun on the floorboard of
the backseat of their patrol car

. The gun had been used for C.T. ’ s murder on May 11, 2012 , and contained Ellis ’ s DNA

. T he gang expert concluded that the firearm was a gang gun used by multiple Brim gang members

. June 18, 2013

- Attempted Murder of D .S. (Overt Acts 31

- 34)
On this day Orchord went to D

. S

. ’ s residence with a female companion under the premise that she had a hair appointment with D. S

. When D.S. , who was not a gang member, opened his door, Orchord stepped out from behind his companion , said “ What ’ s up Blood, ” and shot D.S. in the chest

. The next day, Paris posted on his public Facebook page a photograph of Orchord, Paris, Price, and Taylor ent itled “ Crab say the B rims a re n ’ t here, Don ’ t

near [ nigga ]. W on ’ t war with us. ” In the photograph, Orchord was tossing

“ Brim ” with one hand and “ Crip killer ” with the other hand. Paris had a revolver pointed at a “ W ” made with his other hand, which disrespected WCC

. Taylor had a gun in his waistband , and Price was spelling out “ Blood ” with his13

hands. The gang expert interpreted this post as a threat to rival Crip s gang members , leading to possible retaliation by the Crips

. Officers sought the individuals in the photograph in different Brim
locations. They located Paris and Orchord, who wore the same clothing depicted in the photograph. Simpson, Jones, another Brim member, and some girls were with them

. One officer observed Jones discard a firearm in a trashcan. The

gun, a .22

- caliber revolver , contained Orchord ’ s DNA and was the gun used to shoot D. S

. Officers placed Simpson and Paris in the back of a patrol car and recorded
their c onversation

. In the recording, Simpson sounded very angry and excited. Simpson swore loyalty to Brim and referenced Hit Squad multiple times

. Police took Si mpson into custody that da y for possessin g narcotics for sale and recklessly evading a police officer . He has remained in custody since that date. August 27, 2013

- Attempted Murder of B .T. (Overt Acts 38

- 42) and Hoskins ’ s Gang Conspiracy (Count 7)
On this date, B .T. , a Lincoln Park gang member, was walking in WCC territory when a white minivan approached him

. A passenger leaned out of the
mini van ’ s window and began firing in Taylor ’ s direction. The shooter was a
B lack male wearing a black T

- shirt with a red bandana over his face . T he driver of the minivan was a B lack male wearing a white T

- shirt with hair braided in

cornrows. Further investigation revealed that the minivan was registered to Brim gang member Timothy Hurst. Hurst was convicted for this shooting. The gang expert stated that this shooting was consistent with a hunting mission looking for a potential rival, but the person shot at was not a rival

. Officers collected .40 caliber casings from the scene. This firearm was late r used in two other shootings: (1) the October 22, 2013 driveby shooting of N.C. inside Crips territory; and (2) the October 23, 2013 shooting toward three African

American males who were inside a garage at a nearby apartment. An affiliate of14

WCC lived in an apartment adjacent to the garage. Police recovered the firearm used for this shooting from coconspirators Mahaney and Nino Sanchez.
Hurst ’ s cellphone contained Hoskins ’ s contact information. Hoskins ’ s grandmother lived next door to Hurst ’ s grandmot her. Police found Hoskins ’ s DNA on the passenger side interior door of the minivan. About six months before this shooting, Hos kins ’ s social media account displayed a photograph of Hurst in front of a W CC hangout about a mile from the August 27 shooting. In the photograph, Hurst was tossing up Brim and Crip s killer hand signs. On August 27, 2013, Paris ’ s social media account displayed two

p hotographs of Hoskins and Paris in W CC territory, also about a mile or so from the shooting location, throwing up gang signs disrespectful to Crips

. On February 27, 2014, Hoskins ’ s social media account had a post stating , “ I switch up on bitckh (N word), fast. I love my bros, but I ’ m truer t o the code shit. I turn on TB if he does some gay shit and vice versa. Nothing personal. #one Brims. ” The gang expert explained that Hoskins was accusing Timothy Hurst , aka Tim Brim (TB) , of snitching and was saying that if somebody snitched on him , he would go after them because he was truer to the code of no snitching. December 14, 2013

- Attempted Murder of N .S. and T

.W. (Overt Acts 61

- 63) On this day, the two victims, a WCC associate and an affiliate of a Brim rival, were shot in Brim territory. The gang expert explained that the rival gang members were shot because they “ trespass [ed] ” in Brim territory. He considered the shooting to be a proliferation of the war between the two rival gangs.
Officers recovered 18 expended nine

- millimeter casings from two firearms

. They also found a loaded magazine for a semiautomatic handgun that contain ed Nino Sanchez ’ s DNA.15

December 15, 2013

- Attempted Murder (Overt Acts 6 3

- 6 5 ) On this day two African

- American males approached a residence in W CC gang territory on foot and fired shots

. After the shooting, officers observed a WCC gang member yelling

. The next day, Hoskins ’ s social media account contained a post stating , “ I ’ m tired of grinding, fighting, running, jail, death, stress, betrayal, and everything else this game has to offer. But it ’ s what we signed up for. Right? ” Officers recovered one expended .40

- caliber casing and 1 1 expended nine

millimeter casings from the scene. B allistics testing linked eight of the nine

millimeter casings to the firearm used in shootings that occurred o n March 2,

2014 , April 12, 2014 , and April 15, 2014. 8 Coconspirator Peavy was charged with the April shootings and coconspirator Holman was charged with the March shooting.
Police later arrested coconspirator Price in possession of a .40 caliber semiautomatic pistol determined to be the second firearm used in this shooting and the shooting the day before . Price made a jailhouse call to coconspirator Peavy telling Peavy that he had been arrested with the gun and wou ld take the blame for the gun. January 29, 2014

- Ware Arrest for Possessing a Firearm (Count 8) On this day, officers contacted Ware and found a loaded nine

- millimeter handgun tucked into his waistband

. At trial, the parties stipulated that Ware
had a prior felony conviction

. After his arrest, Ware made a jailhouse call to a female and talked about being arrested with a gun . He said that he needed to

8 The March 2, 2014, shooting occurred in WCC gang territory toward a WCC affiliate and h is girlfriend. The day before this shooting, the following message appeared on Hoskins ’ s social media account, “ I realize why they want me off the streets. I ’ m a loose [cannon]. Unpredictable. Threat to society and myself. LOL. [#]fucK it. ”16

slow down because he was “ doing a gang of shit, ” and was glad he only got locked up for gun possession

. March 25, 2014

- Ware ’ s Attempted Murder and Gang Conspiracy Convictions (Counts 9

- 10 and Overt Acts 76

- 81) On the afternoon of March 25, 2014, Ware drove his gold Lexus into “ the most active area ” in WCC territory at the time. Based on his experience, a detective stated that this WCC territory was “ absolutely ” a good place to find rival WCC gang members. The passenger, a young African

- American male with cornrows wearing a black hoodie fired several shots at M.W., a WCC gang member. One witness then saw the shooter get out of the car and chase M.W., while firing his weapon. This witness saw no one else on the street that could
have been the shooter ’ s target. Eight minutes after the shooting and a bout a mile from where it occurred , officers found the abandoned Lexus and Ware in Brim territory.
Officers collected nine

- millimeter casings, all from the same fi rearm, from
the scene. Police did not match t he se casing s to any other shooting. Surveillance video obtained from a school showed Ware driving around WCC territory before the shooting . The gang expert opined that the shooting was gang motivated and that Ware drove around rival gang territory on a mission looki ng for the target rival gang member. Inside the Lexus, officers found a letter with the name “ Victor Boston ” on it, which was Ware ’ s nickname. The letter was addressed to M .H. , a Lincoln Park gang member

. The Lincoln Park gang is an ally of the Brim g ang. The letter referenced Ware ’ s purchase of the Lexus. In the letter, Ware states, “ I ’ m hella triv out here, squad. I might looking at some [jail] time myself. They found two challys of mine and that little sawed

- off with my print, bro. ” The

gang ex pert explained that Ware was telling M.H that they found two of his guns as well as a sawed

- off shotgun with his fingerprint. In the letter, Ware17

also wrote, “ Gon ’ learn one day. CK. ” Meaning people will learn about Crip
k illing. Ware also wrote , “ I ha ve nothing to talk about. I ’ ll take it all on the chin. Then do it again. Brim gang. ” The gang expert opined that this passage
meant Ware would not snitch, but he would take responsibility for the guns and do more shootings or Crip killing.
A few li nes down, he said, “ Bro, it ’ s snitches in the set. I ’ ll type weird shit, but I just wanted you to know I was out here and I got you. Get with me, bro, ASAP. ” Here, Ware was telling M.H. that things were weird among the gang and people in the gang might be cooperating with law enforcement. At the bottom of the letter, Ware said , “ I ’ m not on paperwork, ” which meant he was not on a probation or parole Fourth Amendment waiver status. Ware signed the letter “ H$ ” and “ THS ” which referred to Hit Squad and Tiny Hit Squad. April 12, 2014

- Murder of G .B. (Overt Acts 89

- 94) On this day two men jumped out of a car and walked up to WCC gang member G .B. and his cousin. One of the men asked, “ What ’ s that Brim life
like ? ” and both opened fire on G.B. G.B. died after being shot nine times. Officers recovered 19 expended nine

- millimeter casings from the crime
scene that had been fired from two separate firearms. Testing of the se casings uncovered t he DNA of coconspirators Peavy and Holman. Cellphone records revealed communications between Peavy and Holman before the murder. During the investigation, law enforcement recorded a holding cell conversation
between Peavy and Holman

. The men discussed th is murder and the finding of their DNA on the shell casings from the murder scene

. Holman said, “ No doubt. We fucked up, homie. ” April 15, 2014

- Attempted Murder of B .T. (Overt Acts 96

- 100)
On this day B.T. , a WCC associate and two other men were standing in an

area close to W CC gang territory

. A silver Ford Taurus that matched the18

vehicle involved in the March 2 , 2014 shooting, parked nearby. A man, later identified as coconspirator Peavy got out of the driver ’ s side of the Taurus , approached the men and asked , “ This is Crip? This is Crip? ” B.T. responded,

“ Ain ’ t nobody on no gangbanging shit out here. ” Peavy pulled a gun and fired at
B.T. , with one round hitting B.T. in the foot. Peavy ran back to the Taurus and the car sped away. Further investigation revealed that Peavy ’ s girlfriend had rented the Taurus on February 15. After th is shoo ting several social media posts appeared on Hoskins ’ s
account , including one on the day of t he shooting stating, “ I ain ’ t going to survive too much longer in Dago. Too much shit going on, and I can ’ t keep my ass out of the mix. ” The next day, the following post appeared on Hoskins ’ s
account , “ The status of an OG

. . . isn ’ t established by age o r how long you been
around. I mean it count but you need the stripes and reputation to match. Big homie. LOL. ” The gang expert explained that a gang member needs put in to work to gain OG or original gangster status. On April 17, 2014, the following appeared on Hoskins ’ s account , “ Think about it. We all young, dumb, black, and ain ’ t turning down shit. We all think we tough. All of us got too much pride to take a loss. What you think going to happen when we butt hea ds. [ Bl59d ]

. That ’ s what. ” The gang expert explained
that the author h ad too much pride to walk away or take a loss, would not turn down a fight or gunfight, and would move forward to the end. On April 20, 2014, a photograph appeared on coconspirator Gordon ’ s social media page showing Gordon tossing up “ fuck nappy heads, ” and captioned, “ The Blood, Little Bick Nick. ” A status update on this account said, “ It ’ s a new Brim and town, and he mash on everybody. Ain ’ t fucking with the Brims or him. They call him Little Bick Nick. ” The gang expert explained these posts announcing that Gordon had received the gang name “ Little Bick Nick ” and that19

he will fight any Brim rival. A comment on this post from Hoskins ’ s acco unt stated, “ I ’ m Big Bick Nick. CKA Baby Mikey. Sherb know what ’ s bracking.
Brim bidness. ” The gang expert explained that Hoskins was “ Bick Nick ” and

“ Baby Mikey ” and that “ CKA ” was a reference to Crip killing and was used instead of putting “ aka. ” The gang expert further explained that for a young gang member to take your name, such as Gordon taking Hoskins ’ s , there had to be a level of respect and it meant the older gang membe r was working toward rider or original gangster status. DISCUSSION
I. SUFFIC I ENCY OF EVIDENCE
A

. General Legal Principles Where a defendant challenges the sufficiency of the evidence supporting a conviction, we examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial
evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. ( Peop le v. Kraft (2000) 23 Cal.4th 978, 1053.) We presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence . ( Ibid. ) “ The same standard applies when the conviction rests primarily on circumstan tial evidence

. [Citation.] Although it is the jury ’ s duty to acquit a defendant if it finds the
circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court[,] that must be convinced of the defendant ’ s guilt beyond a reasonable doubt. [Citation.] ‘ “ If the circumstances reasonably justify the trier of fact ’ s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal20

of the judgment. ” ’ ” ( Id. at pp. 1053

– 1054.) Reversal for insufficient
evidence is warranted only when it appears that under no hypothesis
whatsoever is there sufficient eviden ce to support the jury ’ s verdict. ( People v. Bolin (1998) 18 Cal.4th 297, 331.)
B

. Conspiracy to Commit Murder (Count 1) 1. Conspiracy Legal Principles

“ The law of conspiracy . . . permit[s] the imposition of criminal sanctions for [an] agreement alone, plus an overt act in pursuit of it, regardless of whether the crime agreed upon actually is committed. ” ( United States v. Feola (1975) 420 U.S. 671, 694.) A conspiracy conviction “ requires proof that the defendant and another person had the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commission of an overt act ‘ by one or more of the parties to such agreement ’ in furtherance of the conspiracy. ” ( People v. Morante (1999) 20 Cal.4th 403, 416.)

“ It is seldom possible for the prosecution to offer direct evidence of an agreement to commit a crime. The agreement to commit the crime is usually made in secrecy. The conspiracy must be inferred by the trier of fact from all
the circumstances that are proven, and if the inference is a reasonable one it will not be disturbed on appeal. ” ( People v. Chavez (1962) 208 Cal.App.2d 248, 253.)

“ Common design is the essence of a conspiracy an d the crime can be committed whether the parties comprehend its entire scope, whether they act in separate groups or together, by the same or different means known or unknown to them, if their actions are consistently leading to the same unlawful result

. . . . ” ( People v. Means (1960) 179 Cal.App.2d 72, 80.) Evidence is sufficient to prove an agreement “ ‘ “ if it supports an inference that the parties positively or tacitly came to a mutual understanding to commit a crime. [Citation.] The existence of21

a conspiracy may be inferred from the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy. ” ’ ” (

People v. Maciel (2013) 57 Cal.4th 482, 515

– 516 ( Maciel ) .) Each
member of the conspiracy i s liable for the acts of other members in carrying out the common purpose of the conspiracy

. ( In re Hardy (2007) 41 Cal.4th 977, 1025.)

“ While mere association does not prove a criminal conspiracy [citation], common gang membership may be part of circumstantial evidence supporting the inference of a conspiracy. ” ( People v. Superior Court (Quinteros) (1993) 13 Cal.App.4th 12, 20 ( Quinteros ).) Where “ the evidence establishes that a particular gang has a specific illegal objective . . . evidence of gang membership may help to link gang members to that objective. ” ( United States v. Garcia (9th
Cir. 1998) 151 F.3d 1243, 1247 ( Ga r cia ).)

“ Other than the agreement, the only act required is an overt act by any of the conspirators, not necessarily the defendant, and that overt act need not itself
be criminal. ” (

People v. Smith (2014) 60 Cal.4th 603, 616.) “ ‘ [A]n overt act is an outward act done in pursuance of the crime and in manifestation of an intent or design, looking toward the accomplishment of the crime. ’ ” ( People v. Zamora (1976) 18 Cal.3d 538, 549, fn. 8.) “ The purpose of the overt act is simply to show that the agreement has pro ceeded beyond the meeting of the minds stage to some direct or physical act, however innocent in itself, tending toward the furtherance of the objective of the conspiracy. ” ( People v. Saugstad (1962) 203 Cal.App.2d 536, 549

– 550.) A conspiracy conviction can rest on a single overt act. ( People v. Jurado (2006) 38 Cal.4th 72, 122 ( Jurado ) .)22

2. Analysis a. General i ntroduction The amended information alleged that appellants conspired, “ [o]n or about and between January 1, 2012 and April 23, 2014 ” with each other and other unknown persons to commit murder. Police identified 18 other Brim gang members, who were also Hit Squad members as coconspirators. The amended information alleged the commission of 104 overt acts in furtherance of the conspiracy

. The object of the conspiracy was to kill suspected rival N C and W CC gang members. The jury convicted a ppellants of conspiracy to commit murder . It is undisputed that the prosecution relied exclusively on circumstanti al evidence and presented no direct evidence of a conspiracy to commit murder. Simpson and Ware challenge their convictions, generally contending that the prosecution presented insufficient evidence showing they entered into any agreement to commit murder, claiming their guilt was based on their gang membership and virtually nothing else. Simpson a nd Ware claim that the evidence did not show they possessed the specific intent to commit murder. Simpson also assert s that his conspiracy conviction must be reversed because the jury was allowed to consider overt acts after the conspiracy terminated , and
overt acts that the prosecution failed to prove. Finally, Simpson argue s that his conspiracy conviction violate d his free speech rights under the F irst A mendment and the California Constitution.

b. Existence of and p articipation in a c onspiracy We have e xamin ed the entire record in the light most favorable to the judgment, including the relationship, interests, conduct and activities of the alleged conspirators and coconspirators before and during the alleged conspiracy

. (

Maciel , supr a , 57 Cal.4th at p p . 515

– 516.) W e conclude that the23

record supports the reasonable inference that Simpson and Ware and their coconspirators tacitly came to a mutual understanding to murder rival NC and WCC gang members and that they part icipated in the conspiracy

. The prosecution gang expert was the detective investigating Brim from October 2011 through October 2015. At any given time, Brim had between 200
and 220 members. Simpson and Ware and their coconspirators were Brim gang members, and members of a Brim subset known as the Hit Squad. A “ hit ”
means to kill someone. Some of the primary activities of Brim included murder and assaults with firearms.
The main rivals of the Brims are the Crips, specifically NC and WCC. In
2011 , Peppers ’ s murder sparked a gang war between Brim and WCC. Simpson and Ware knew Peppers. In June 2011, about two months after Peppers ’ s death, Simpson shot at two Crip s gang members and was subsequently convicted of two counts each of attempted murder and assault with a firearm

. 9 With Simpson during the shooting were coconspirators Paris, Chavarry , and Lucas. Paris pleaded guilty to aiding and abetting this shooting. Simpson argues that the June 2011 shooting cannot be considered as evidence of a conspiracy b ecause the prosecution did not allege the shooting as an overt act and the shooting preceded the alleged start date for the conspiracy

. Simpson is wrong. Incidents occurring before the start of the conspiracy may be considered as circumstantial evidence supporting the existence of the conspiracy. (

Maciel , supra , 57 Cal.4th at p p . 515

– 516.) Notably, sometime between the date of the Ju ne shooting and February 2012, Simpson got “ CK ” or

“ Crip Killer ” tattoos on his elbows.

9 As d iscussed post , the evidence supports these convictions. ( Post , pt. I.D.)24

After Adrianna ’ s arrest in May 2012, her statements to police provided further circumstantial evidence from which the jury cou ld infer the existence of a conspiracy to commit murder. 10 Namely, she stated that Simpson placed a gun in her purse, everybody looked up to Simpson, that he got all the guns and passed the guns to lots of people including, coconspirators Norman Sanchez, Lucas, and Paris. 11 Coconspirators Norman Sanchez and Lucas pleaded guilty to the April 4, 2012 attempted murder of NC gang member, T.L. (overt acts nos.
7

- 11) Coconspirator Timothy Hurst was convicted of the August 2013 attempted murder of B.T., a Lincoln Park gang member who was walking in WCC territory (overt acts nos. 38

- 42) . Although B.T. was not a rival Crip s gang member, the gang expert stated that this shooting was consistent with a hunting mission looking for a potential rival, but the person shot at was not a riv al. The jury convicted Ware of attempting to murder a WCC gang member in March 20 1 4 based on his participation in this shooting (overt acts nos. 76

- 81) . Ware ’ s

10 Simpson ’ s focus on Adrianna ’ s trial testimony where she recanted her earlier statements to police is misplaced because we may not reweigh the evidence or substitute our own asse ssment of the witnesses ’ credibility for the determination made by the jury. ( People v. Snow (2003) 30 Cal.4th 43, 66.)

11 We reject Simpson ’ s contention that Adrianna ’ s testimony regarding putting the gun in her purse cannot be considered because it is uncorroborated accomplice testimony. The instructions required jurors to decide whether Adrianna was an accomplice to the crimes alleged against appellants. Assuming the jury found Adrianna was an accomplice, the testimony that Simpson put a gun in her purse, evidence that goes to the existence of the conspiracy, need not be corroborated. ( People v. Cooks (1983) 141 Cal.App.3d 224, 312 ( Cooks ); People v. Buono (1961) 191 Cal.App.2d 203, 215

– 216, fn. omitted [ “ [T]he corroboration required by Penal Code section 1111 does not include the corpus delicti and is confined to the matter of connection of the individual defendant with the crime. ” ].)25

moniker, CK (Crip Killer) Vick, evidenced his motive to kill rival Crip s gang members.
This evidence amply supported the jury ’ s finding that Simpson and Ware and their coconspirators entered into a tacit agreement to murder rival NC or WCC gang members. This evidence also established Simpson and Ware ’ s participation in the conspiracy and their attempted murder convictions show that they harbored an intent to kill. ( People v. Lee (2003) 31 Cal.4th 613, 623

– 624 [attempted murder “ requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing ” and an aider and abettor must share the specific intent of the direct perpetrator ].) The overt act requirement is also satisfied by Simpson ’ s and Ware ’ s convictions of attempted murder. 12

c . Overt acts after conspi racy ended or not prove n Simpson allege s that hi s conspiracy conviction s must be reversed because the court allowed the jury to consider overt acts 15, 44, 103 , and 104 which were not proved or occurred after the conspiracy terminated. He claim s that the jury

12 Simpson notes that only two of the 104 overt acts named him, and out of the remaining 100 overt ac ts, he was in custody for 69 of them, he was not depicted in photographs or involved in any of the social media messages, and there was no evidence he knew or was aware of the social media posts. These points are not persuasive because a conspirator need not personally participate in any of the overt acts as long as he or she conspired to commit the crime and a coconspirator committed an overt act. ( People v. Morante (1999) 20 Cal.4th 403, 417.) Moreover, “ [a]lthough a defendant ’ s arrest and incarceratio n may terminate his participation in an alleged conspiracy, his arrest does not terminate, or constitute a withdrawal from, the conspiracy as a matter of law. ” ( Cooks , supra , 141 Cal.App.3d at p. 316.) Rather, “ [o]nce the defendant ’ s participation in the conspiracy is shown, it will be presumed to continue unless he is able to prove, as a matter of defense, that he effectively withdrew from the conspiracy. ” ( Ibid. ) Simpson failed to make such a showing.26

could have based the conspiracy convictions on one of the improperly included overt acts because the verdict form did not require that the jury reveal which

overt act they found had been committed and there was no requirement that the jury u nanimously agree on the same overt act to support a conspiracy conviction. (

People v. Valdez (2012) 55 Cal.4th 82, 154 , fn. 40 .) The People

argue that any error in presenting these four overt acts was harmless. We agree with the People. The People alleged that the conspiracy ended “ on or about ” April 23, 2014. Overt acts 103 and 104 contain statements admitted as declarations of a coconspirator (Evid. Code, § 1223) that took place in May 2014 , after the conspiracy alleged ly ended. 13 A c onspiracy usually ends when the substantive crime for which the coconspirators are being tried is either attained or defeated. ( People v. Leach (1975) 15 Cal.3d 419, 431.) N onetheless, it is a question for the
fact finder to determine when a charged cons piracy has ended, “ considering the unique and the nature and purpose of the conspiracy of each case. ” ( People v. Saling (1972) 7 Cal.3d 844, 852.) The precise date on which an offense was committed need not be stated in an accusatory pleading unless the date is material to the offense. (§ 955.) For example, in People v. Peyton (2009) 176 Cal.App.4th 642 ( Peyton ), the defendant had been charged with committing certain sex offenses against a child “ ‘ on or about October 1, 2005 , ’ ” but the evid ence showed that the offenses occurred in the fall of 2004. (

Id. at p. 660.) The appellate court upheld the convictions

13 Overt act 103 alleged, “ On or about May 9, 20 14, Emanuel Peavy posed in a photograph with a firearm wearing a red ‘ THS ’ (Tiny Hit Squad) shirt with ‘ Brims, ’ and ‘ Fuck Crabs ’ on the back of the shirt. ’ ” Overt act 104 alleged, “ On or about May 10, 2014, the message, ‘ Fuck Wet Toast!!!!!!!!! 3

- 11 Till My Motherfuckin DEATH, ’ was posted to Leron Johnson ’ s Facebook account. ”27

despite this variance, finding that “ evidence is not insufficient merely because it shows the offense was committed on another date, ” the October 1, 2005 date was not material to any of the charged offenses , and defendant showed no prejudice. ( I bi d. ) Here, t he alleged April 23, 2014 end date was not material to the conspiracy charge, nor were the jurors instructed on the beginning or end date of the conspiracy. Rather, the court instructed the jurors that the crime required the commission of one of the 104 alleged overt acts , but did not require all jurors to agree on the specific act or acts committed. Additionally, the jurors were instructed that they could only consider statements of coconspirators “ made before or during the time that the defendants were participating in the conspiracy. ” (CALCRIM No. 418.) Thus, it was up to the jury to determine the precise end date of the conspiracy and whether the coconspirators statements alleged in overt acts 103 and 104 were part of the conspiracy. Simpson next complain s that the evidence did not support overt acts 15 and 44, noting that the prosecution failed to present any evidence to support

overt act 15. 14 Overt act 44 alleged that “ on or about October 1, 2013 ” Simpson and Paris posed in a photograph with Simpson dis playing Crip Killer hand signs and Paris imitating shooting a gun with his hand, but this was inaccurate because Simpson was in custody on that date and could not have posed for a photograph. We fail to discern any prejudice based on the inclusion of ov ert acts 15 and 44 in the instructions. The court instructed the jurors that the People were

14 Overt act 15 alleged, “ On or about June 6, 2012, Dionte Simpson posed in a video posted onto Youtube displaying Fuck Neighborhood Crips hand signs with his right hand in the shape of a gun pointed at Neighborhood Crips hand sign. ”28

required to prove the commission of at leas t one overt act, but that they did not need to agree on which specific over act or acts were committed. If the evidenc e did not support overt acts 15 and 44, then none of the jurors could not have relied on the se two overt acts to support the conspiracy conviction s

.

d . Right to free speec h Simpson join ed in Hoskins’s argument h is conspiracy conviction violated his right to free speech under the First Amendment and the California
constitution because the prosecution presented evidence of his social media postings to support the conviction as overt acts 11, 21 , and 73

. The People
contend Simpson forfeited this claim by failing to object to the social media evidence on this ground post . Even assuming the issue is properly before us, the People assert the argument is meritless because Simpson is not being punished
for h is social media posts, but for a conspiracy to commit murder. We decline to deem this constitutional challenge forfeited because we easily reject the argument on its merits. As the People correctly note, Simpson is being punished for his participation in a conspiracy , not for his social media posts

. Evidence Code section 1220 allows evidence of a statement by a declarant that is offered against him. Simpson’s social media post s qualif y as an admission under th is
section and were admissible to pro ve his participation in the conspiracy. ( People v. Hardy (1992) 2 Cal.4th 86, 142 [ defendants ’ statements admissible to prove participation in a conspiracy ].) The “ admission of

. . . evidence, relevant to
actual criminal conduc t, does not violate [a defendant ’ s] constitutional free speech rights. ” (

People v. Smith (2003) 30 Cal.4th 581, 626 ; People v. Quartermain (1997) 16 Cal.4th 600, 629 [ “ evidence [of racial epithets] was relevant to the issues being tried, and thus its use did not violate the First Amendment ” ].)29

C

. Gang Conspiracy (Count s 6, 7 , 9 ) Appellants challenge their gang conspiracy convictions under section 182.5 on different grounds. We start our discussion by reviewing the gang conspiracy statute. We then turn to a joint argument made by Simpson and Ware, before addressing each appellant separately. 1. Gang Conspiracy Legal Principles Enacted by voter initiative, section 182.5 “ created a new form of conspiracy that is distinct from the traditional unde rstanding of the crime . . . . ” ( People v. Johnson (2013) 57 Cal.4th 250, 261 ( Johnson ).) The statute provides:

“ [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 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. ” (§ 182.5 , italics added .)

In Johnson , our high court explained that g ang conspiracy under section 182.5 differs from criminal conspiracy in five ways . ( Johnson , supra , 57 Cal.4th at pp. 261

– 262.) First, the defendant “ must be an active gang participant with knowledge of other members ’ pattern of criminal gang activity. ” ( Id. at p. 262.) Second, a gang conspiracy requires the commission or attempted commission of
felonious criminal conduct. ( Ibid. ) Third, a gang conspiracy does not require any prior agreement among the conspirators to promote, further, or assist in the commission of a particular target crime. Accordingly, “ an active and knowing gang participant who acts with the required intent to promote, further, or assist in the commission of a felony by other gang members can violate section 182.5. ” ( Ibid. ) Fourth, a gang conspiracy “ requires the actual commission of felonious criminal conduct as either an attempt or a completed crim e. ” ( Ibid. ) F ifth, a gang conspiracy includes “ not only a gang member who promotes, furthers, or30

assists in the commission of a felony, but also an active and knowing participant who merely benefits from the crime ’ s commission, even if he or she did not promote, further, or assist in the commission of that particular substantive offense. ” (

Ibid. ) The court explained, “ [d]ue to the organized nature of gangs, active gang participants may benefit from crimes committed by other gang
members. When such benefits are proven along with the other elements of the statute, section 182.5 permits those benefitting gang participants to be convicted of conspiracy to commit the specific offense from which they benefitted. ” ( Ibid. )
2

. Analysis

a. Gang c onspiracy to c ommit a ttempted m urder Citing People v. Iniguez (2002) 96 Cal.App.4th 75 ( Iniguez ), Simpson and Ware contend that their gang conspiracy convictions must be reversed because there is no such crime as conspiracy to commit attempted murder. In Iniguez , the appellate court concluded that the crime of conspiracy to commit attempted murder does not exist. ( Id. at p. 79 .) The court explained that “ the crime of attempted murder requires a specific intent to actually commit the murder, while the ag reement underlying [a] conspiracy [to commit attempted murder] contemplate[s] no more than an ineffectual act. No one can simultaneously intend to do and not do the same act, here the actual commission of a murder. ” ( Ibid. ) Put differently, “ one cannot conspire to try to commit a crime ” because conspiracy requires an agreement to commit a crime, not an agreement to attempt to commit a crime. ( Johnson , supra , 57 Cal.4th at p. 264.) Simpson and Ware ’ s reliance on Iniguez is misplaced because traditional conspiracy, at issue in Iniguez , requires evidence of an agreement. ( Iniguez , supra , 96 Cal.App.4th at p. 78 .) Gang conspiracy, however, does not require evidence of an agreement. Rather, as our hig h court explained, gan g conspiracy

“ does not contemplate an agreement to commit an ineffectual act. . . . Unlike31

Iniguez , there is no logical impossibility or absurdity in recognizing the crime of conspiracy to actively participate in a gang. ” ( Johnson , supra , 57 Cal.4th at

p

. 264.) Instead, for gang conspiracy, the “ act of assistance or promotion replaces the required prior agreement to commit a crime that is ordinarily at the heart of a traditional conspiracy. ” ( Id

. at p. 262.) Accordingly, it is possible to
be guilty of a gang conspiracy to commit an attempted offense.

b

. Ware (Count 9) The jury found Ware guilty of attempted murder and gang conspiracy arising out of the shooting on March 25, 2014, where he drove his car into WCC territory and his passenge r fired a gun at a WCC gang member. Ware submits that to find him liable for gang conspiracy the jury was required to find that his passenger, the direct perpetrator of the shooting, was a Brim gang member . He
claims that his conviction must be reversed because the identity of the shooter
was never uncovered. 15 The People disagree, claiming we should reject Ware ’ s interpretation that a section 182.5 crime must be committed by multiple members of the gang, because this interpretation narrow s the application of the law when it was meant to expand liability. In any event, the People assert that the evidence demonstrated that Ware ’ s accomplice in the driveby shooting was also a Brim gang member. As we shall explain, we agree with Ware that the jury was required to find that his passenger, the direct perpetrator of the shooting, was a member of Brim , but reject his assertion that the evidence did not support this finding

. The statute requires the prosecution prove that the defendant “ willfull y promote[ ], further[ ], assist[ ], . . . any felonious criminal conduct by members of

15 Simpson joins in Ware ’ s argument because it supports his argument that overt acts 76 to 81 arising out of this shooting were not proven.32

that gang

. . . . ” (§ 182.5, italics added.) Thus, the plain language of the statute requires that Ware ’ s passenger, the shooter, be a Brim gang member. The jury
inst ruction for this crime follows this interpretation. For Ware, the trial court instructed the jury as follows:

“ 1. Defendant actively participated in a criminal street gang;

“ 2. When the defendant participated in the gang, he knew that the members of the gang engage in or have engaged in a pattern of criminal gang activity;

“ 3. On March 25, 2014 members of the criminal street gang committed Deliberate and Premeditated Attempted Murder in violation of Penal Code Sections 664/187/189;

“ AND

“ 4. Defendant willfully promoted, furthered, assisted or benefitted from, the commission of the March 25, 2014 Deliberate and Premeditated Attempted Murder by members of the gang

. ” (Italics added.) There is no evidence regarding the shooter, other than he was an African

American male with hair in cornrows. Nonetheless, based on the totality of the evidence presented during trial the jury could reasonably infer that the shooter,
Ware ’ s passenger , was a Brim gang member

. The gang expert testified that Brim and WCC were in a gang war and that Ware was part of a Brim subset known a s the Hit (or kill) Squad with a number of other Brim gang members. The gang expert testified that gang members put
in wo rk for the gang by going on missions. Shooting missions involve gang members going into rival gang territory seek ing a rival gang member or a substitute, such as someone dressed in the rival gang ’ s color. The gang expert testified that gang members tend to work with people they trust.33

Additionally, gang members work with “ ‘ backup ’ or ‘ someone[ ] [who has] your back. No matter what happens out there, somebody, one of your trusted, one of your chosen few is going to be behind you. When shots are fired, when the fight goes down, no matter what, they ’ re not going to turn and run and leave you hanging by yourself. ’ ” The expert noted that gang members in the same set are expected to back each other up and that the failure to do so would result in

so me type of disciplinary action because failure to backup another gang member
makes the set look weak. The gang expert opined that this particular shooting was gang motivated and that Ware drove around rival territory on a mission looking for a rival gang member. The expert noted that Ware an d coconspirator Nino Sanchez were arrested together in August 2009 in a stolen car. Ware was
also arrested in 2010 with coconspirator Holman. Brim and Crips gang members were in a gang war. Th e gang expert testifi ed that this particular shooting , targeting a WCC gang member, was a gang mission, that gang members take “ backup ” and these individuals are people that the gang member trusts. From this evidence, the jury could reasonably infer that Ware drove a trusted Brim gang member into rival gang territory to commit the shooting. Accordingly, we reject Ware ’ s argument that the evidence failed to support his gang conspiracy conviction.

c

. Simpson (Count 6 ) The jury found Simpson guilty of gang conspiracy arising out of a shooting on April 4, 2012, where two individuals shot NC gang member T.L. while he stood near a memorial set up for his father, who had been murdered in a driveby shooting the day before. Brim gang members Norman Sanchez a nd Lucas later pleaded guilty to this shooting. Simpson argues that his gang conspiracy conviction must be reversed for two reasons. First, he contends that the nature of Norman Sanchez ’ s and Lucas ’ s convictions was not presented to the jury;34

thus, there was no prior jury finding that the crime of premeditated and deliberate attempted murder was committed on April 4, 2012. Second, he argues that there is no evidence he willfully participated, promoted, assisted, or
benefit t ed from the April 4, 2012 shooting in any manner. 16 He asserts we should reject any argument that he benefitted from the shooting without doing anything to obtain that benefit because such a finding would condemn him for his associations, not for his actions. The People ignore Simpson ’ s first argument, which we conclude is dispositive. Accordingly, we need not address whether Simpson willfully promoted, furthered, assisted, or benefit t ed from the April 4, 2012 shooting.
T he prosecution must prove that the defendant “ willfully promote[ d ], further[ e d ], assist[ e d ], or benefit[ t ed] from any felonious criminal conduct by members of that gang. . . . ” (§ 182.5, italics added.) Regarding this element, the court instructed the jury that to find Simpson guilty of g ang conspiracy it must find that “ [o]n April 4, 2012, members of the criminal street gang committed Deliberate and Premeditated Attempted Murder in violation of

. . . Sections
664/187/189. ” The elements of attempted murder are “ specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intend ed killing. ” (

People v. Lee (2003) 31 Cal.4th 613, 623.) “ [A]ttempted murder and premeditated attempted murd er are the same offense. ” ( People v. Sedillo (2015) 235 Cal.App.4th 1037, 1049.) Premeditation constitutes a penalty provision that

16 The only evidence of Simpson ’ s possible involvement in this shooting is the fact that Simpson drove a gold colored Lexus, and the statement of a witness that he saw a gold car in the area and that the shooters ran in the direction of the gold car. This same witness testified that the men got into a tan or whi t e 90 ’ s model Ford Crown Victoria. Additionally, about a month after this shooting Simpson gave the gun involved in this shooting to his girlfriend. The girlfriend stated the Simpson passed guns to lots of people.35

prescribes an increase in punishment, but this “ ‘ penalty provision is separate from the underlying offense and does not s et forth elements of the offense or a greater degree of the offense charged. ’ ” ( Ibid. ) To convict Simpson of gang conspiracy the jury needed to find that the April 4, 2012 shooting was an attempted murder committed by a Brim gang
member. While it is undisputed that Norman Sanchez and Lucas were Brim gang members, t here is no evidence in the record regarding to what crime these individuals pleaded guilty , or whether th is crime constituted a felony. It is not within the common knowledge of laypersons to be able to determine from the testimony to what crime Norman Sanchez and Lucas pleaded guilty, or whether that crime constituted a felony. Without any evidence regarding the nature of
the crime s commi tted by these Brim gang members the jury is left with speculation. “ ‘ But speculation is not evidence, less still substantial evidence. ’ ” ( People v. Waidla (2000) 22 Cal.4th 690, 735.) Th e lack of evidence regarding the nature of Norman Sanchez ’ s and L ucas ’ s convictions constitutes a failure of proof regarding an element of the crime of gang conspiracy. Accordingly, Simpson ’ s gang conspiracy conviction must be reversed . ( People v. Diaz (2005) 125 Cal.App.4th 1484, 1490

– 1491 [ “ The prosecution bears the burden of proving all elements of the offense, and must persuade the fact finder beyond a reasonable doubt of the facts necessary to establish those elements. ” ].)

d

. Hoskins (Count 7 ) i. Additional b ackground The jury found Hoskins guilty of gang conspiracy arising out of a shooting on August 27, 2013, where a white minivan approached B.T., a Lincoln Park gang member walking in WCC territory, and the minivan ’ s passenger, who wore a red bandana over his face, fired a gun in B. T. ’ s direction. Further36

investigation revealed that the minivan was registered to Brim gang member Timothy Hurst and Hurst was later convicted for this shooting. During opening statement, the prosecutor told the jurors that he would present Timothy Hur st ’ s free talk and that Hurst would testify at trial about the information he provided in that free talk. He claimed that Timothy Hurst would testify that Hoskins instigated the shooting because the Crips had disrespected Brim by coming into Brim territor y to take photographs, that Nino Sanchez was the shooter in the red bandana and Hoskins was a back seat passenger. Ultimately, Timothy Hurst refused to testify, was held in contempt, and none of the evidence from the free talk was presented at trial. D uring closing argument, the prosecution used social media postings and Hoskins ’ s contact with, B.T., the victim of the shooting after Timothy Hurst ’ s arrest to support the gang conspiracy charge. Specifically, the evidence against Hoskins consists of
the following:

“ About six months before the August 27 shooting, Hoskins was in WCC territory, about a mile from where the shooting occurred, and he posted on social media a photograph of Timothy Hurst tossing up Brim and Crip killer hand signs. The morning of August 27 a posting on fellow gang member Paris ’ s social media account showed two photographs of Hoskins and Paris in the same location making gang

- related hand signs, including flipping off WCC.

“ The unknown shooter wore a red bandana around his face. At some unknown time a photograph was posted on Hoskins ’ s social media account showing Hoskins with a bandana over his face captioned, “ Rags around our face to beat the case in case the N wor d look 5/9 Brim gang. Nap bashing. Toe smashing. 3k, 4k, YH[$]. ” The gang expert interpreted the caption as meaning you should hide your face in case another person sees you. Nap bashing means bashing in NC. Toe smashing means smashing on WCC.37 30k references WCC and 40k represents NC. The YHS with the doll ar sig n means Young Hit Squad.

“ The gang expert stated that Timothy Hurst and Hoskins grew up next to each other and concluded that the men

were “ extremely close friends. ” Hoskins ’ s DNA was found on the passenger side of Hurst ’ s minivan. After Hurst ’ s arrest, Hoskins and Hurst ’ s girlfriend discussed the case against Hurst that included photographs of witness statements by B.T., the shooting victim.

“ Hoskins reached out to B.T., the shooting victim, through social media asking him not to testify so that Hurst could beat the case. The response from B.T. ’ s account read, “ I ’ m not testifying on Blood what the paperwork say? ” The expert explained the response as swearing on the gang to not testify. This was followed by a series of communications betwee n the two accounts culminating with the person using the Hoskins account to challenge and then threaten the person using B.T. ’ s account. ” ii. Analysis
To establish Hoskin s ’ s guilt of gang conspiracy t he prosecution was required to prove that Hoskins “ willfully promote[d], further[ed], assist[ed], or benefit[ed] from any felonious criminal conduct by members of that gang. . . . ” (§ 182.5, italics added.) Regarding this element, the court instructed the jury that to find Hoskins gui lty of gang conspiracy it must find that “ [o]n August 27, 2013, members of the criminal street gang committed Deliberate and Premeditated Attempted Murder in violation of

. . . Sections 664/187/189. ” Although the record established that Timothy Hurst was a Brim gang member, we located no evidence in the record of what crime Timothy Hurst pleaded guilty regarding this shooting. We requested and received supplemental briefing from the parties on: (1) whether the jury received any evidence informing them of what crime Timothy Hurst pleaded guilty as related to his involvement in the August 27, 201338

shooting; and (2) assuming the jury received no evidence informing them of what crime Timothy Hurst pleaded guilty as related to his involvement in the August 27, 2013 shooting, whether sufficient evidence supports the jury ’ s verdict against Hoskins on c ount 7, gang conspiracy. All parties agree that the jury received no evidence informing them of what crime Timothy Hurst pleaded guilty as relat ed to his involvement in the August 27, 2013 shooting. Hoskins claims that this omission requires his gang conspiracy conviction be reversed because the evidence fails to show that any Brim gang member suffered a felony conviction related to this shooting

. We agree. ( See a nte , pt. I.C.3.c.) Based on this failure of proof, we reverse Hoskins ’ s gang conspiracy conviction

. D. Simpson ’

s Attempted Murder and Assault Convictions (Counts 2

- 5) Simpson challenges the sufficiency of the evidence supporting his convictions for attempted murder (counts 2 and 3) and assault with a semiautomatic firearm (counts 4 and 5) arising from the June 14, 2011 shooting.
He claims the evidence does not establish that he was the shooter and intended to kill, or that he aided and abetted the shooting. Specifically, he argues that T.J., an accomplice and admitted liar , was the only witness to identify him as
the shooter , claiming that all other witness es gave differing descriptions of the
shooter

. Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. ( People
v. Ervine (2009) 47 Cal.4th 745, 785.) Attempted m urder also requires express malice, meaning the assailant desires the victim ’ s death or knows to a substantial certainty that the victim ’ s death will occur. ( People v. Booker (2011) 51 Cal.4th 141, 178.) “ Intent to unlawfully kill and express malice are, in

essence, ‘ one and the same. ’ ” ( People v. Smith (2005) 37 Cal.4th 733, 739.)39

Intent to kill may be inferred from the defendant ’ s acts and the circumstances of the crime. (

Id. at p. 741.) “ The act of shooting a firearm toward a victim at close

range in a manner that could have inflicted a mortal wound had the shot been on target is sufficient to support an inference of an intent to kill. ” ( People v.
Houston (2012) 54 Cal.4th 1186, 1218.) The circumstance that the bullet misses
its mark or fails to prove lethal is not dispositive. ( S mith , at pp. 741

– 742.)
A ttempted murder does not necessarily require a specific target an d an indiscriminate would

- be killer who fires into a crowd is just as culpable as one who targets a specific victim. ( Houston , at p. 1218.) To support a conviction, accomplice testimony must be corroborated by independent evidence which, without aid or ass istance from the accomplice ’ s testimony, tends to connect the defendant with the crime charged. ( People v.
Szeto (1981) 29 Cal.3d 20, 27.) “ ‘ Corroborating evidence may be slight, entirely circumstantial, and entitled to little consideration when standin g alone. [Citations.] It need not be sufficient to establish every element of the charged offense or to establish the precise facts to which the accomplice testified. [Citations.] It is “ sufficient if it tends to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth. ” ’ ” ( People v. Manibusan (2013) 58 Cal.4th 40, 95.) “ ‘ The trier of fact ’ s determination on the issue of corroboration is binding on the reviewing court
unless the corr oborating evidence should not have been admitted or does not reasonably tend to connect the defendant with the commission of the crime. ’ ” ( People v. Romero and Self (2015) 62 Cal.4th 1, 32

– 33.) We are satisfied that substantial evidence supports Simps on ’ s attempted murder and assault convictions. T.J. admitted that on the day of the shooting
she lied when she told an officer that she had not seen anything. During her police interview, which took place three years before she entered witness40

protection , T.J. identified Simpson as the shooter. She claimed that Orchord
was in the bathroom during the shooting and that he ran out side after the shooting. During trial, T.J. similarly stated that Simpson was the shooter, that Orchord was in the bathroom during the shooting and that he ran outside after the shooting. Assuming the jury found T.J. was an accomplice, the testimony of other witnesses suffici ently corroborated T.J. ’ s testimony that Simpson was the
shooter. Brenda, a neighbor who knew Orchord , also testified that Orchord was not outside during the initial a rgument. After the shooting, T.J. saw Simpson give the gun to Orchord who then hid the gun in side the garage. Police found a firearm in the garage and b allistics testing linked th is firearm to the shooting.
The witnesses who observed the altercation on the street testified inconsistently regarding the physical appearance of the shooter

. We examined this testimony in depth and focus ed on the consistencies in the testimony , which described a person meeting Simpso n ’ s physical description. A police officer who was patrolling the area 30 minutes before the shooting saw Paris and Simpson hanging out with a group of Brim gang members in front of Orchord ’ s garage. All the men wore blue jeans and T

- shirts, including Simpson who wore a white T

- shirt. The officer stated that Simpson did not have
a full beard and described him as about 180 to 190 pounds with short black hair. Raymond, a school worker, heard the argument. He heard the shooter say “ fu ck that, fuck that ” followed by two gunshots. After the shooting and at trial, he
described the shooter as an African

- American man in his 20 ’ s with a muscular
buil d

. Maritza, a neighbor, also heard the argument. She described the shooter on the day of the incident as about 5 feet 10 inches tall and weighs 220 pounds with a full beard. Police photographed Paris, Orchord, Chavarry, Lucas , and41

Simpson after the shooting. While Paris, Orchord, Chavarry, Lucas were relatively clean shaven, Simpson had sufficient stubble on his face to be
construed as a full beard. Carlos, a construction worker, heard the argument. H e described the shoote r as about 5 feet 10 inches or 5 feet 11 inches tall and weighing about 220 to 230 pounds. He did not mention the shooter ’ s hairstyle to the officer. Elizabeth, another school worker, looked outside her second floor window after hearing the argument and described the shooter as an African

- American man in
his mid

- 20 ’ s, with very short hair, about 5 feet 7 inches or 5 feet 8 inches

. She
l ater described the shooter as being tall. On the day of the shooting, Simpson had short hair. One officer who observed the Brim gang members after their arrests described Simpson as the largest and “ [d] e finitely the most muscular ” of the group. This officer described Lucas, who also had short hair, as about 5 feet 7 inches tall and 160 pounds. He described Paris and Orchord as being about the same height as Lucas , with
O rchord having a medium build, while Paris was thinner than Lucas and had his hair in braids. Although police detected no gun shot residue on Simpson after his arrest, Simpson ha d sufficient time to change clothes and thus had sufficient time to wash his hands

. T.J. ’ s corroborated testimony supported the verdicts against Simpson on the attempted murder and assault charges . ( In re Frederick G. (1979) 96 Cal.App.3d 353, 366 [testimony of a single witness may support a judgment,

“ even if it is contradicted by other evidence , inconsistent or false as to other portion s

. ” ].) Additionally, the testimony of the other eyewitnesses suggests that Simpson, the largest man of the group, was the shooter. “ Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it i s the exclusive province of the trial judge or jury to determine42

the credibility of a witness and the truth or falsity of the facts upon which a determination depends. ” ( People v. Maury (2003) 30 Cal.4th 342, 403.) 17
E. Ware ’

s Gang Enhancement (Count 10) Ware challenge d the sufficiency of the evidence supporting the gang enhancement connected to his March 25, 2014 , attempted murder conviction (count 10). He claim ed the evidence d id not establish that (1) the shooting was directed by, for the benefit of, or in association with, the Brim gang; and (2) conducted with the specific intent to further criminal conduct by gang members

. As we will discuss in section I.V.B.1., we vacate the jury’s true finding on the gang enhanceme nt attached to count 10, rendering this argument moot.
F. Ware Gun Possession (Counts 12 and 13) 1. Additional Background On April 23, 2014, a t about 5:00 a.m., officers executed a search warrant
at Ware ’ s apartment. SWAT officers used a bullhorn to call out the occupants of the apartment. Ware ’ s mother came out and said that other people were inside, but no one else exited the apartment. After 20 minutes of unsuccessfully calling
out the other occupant s, SWAT officers used a “ flash bang ” to clear the

17 In a passing argument, Simpson cl aims the evidence does not support the finding that he intended to kill the victims because the shooting did not take place from close range. We are not persuaded by this argument. One witness described the distance between the two groups as “ 30 feet

m ax. ” Another witness described the distance between the shooter and his intended targets as 15 to 20 feet. “ ‘ The act of firing toward a victim at a close, but not point blank, range “ in a manner that could have inflicted a mortal wound had the bullet be en on target is sufficient to support an inference of intent to kill . . . . ” ’ ” ( Smith , supra , 37 Cal.4th at p. 741.)

“ ‘ [T]he crime of attempted murder requires no physical injury to the victim.

. . . ’ ” (

People v. Bland (2002) 28 Cal.4th 313, 328

– 32 9.) Moreover, these same two witnesses described the victims as retreating. “ [F]iring at a fleeing victim reasonably reflects an intention to kill. ” ( People v. Bolin (1998) 18 Cal.4th 297, 319.)43

apartment. Ware, his sister , half

- brother, and a younger female friend of the family then came out of the apartment. After entering the apartment, officers found the door to the sister ’ s bedroom locked and forced entry into that room. I nside the sister ’ s bedroom, officers found two handguns, a .40 caliber Hi

- Point handgun and a Ruger

. The
loaded Hi

- Point was hidden between the mattress and box springs

. The Hi

Point firearm contained Ware ’ s DNA. Officers found t he unloaded Ruger inside a dresser drawer . The Ruger was one of the stolen handguns from the January 29, 2014 , residential burglary involving Nino Sanchez. The DNA results from the Ruger handgun were too low for comparison. Neither gun was connected to any of the shootin gs at issue in this case

. Counts 12 and 13 charged Ware with possession of a firearm by a felon. The information and the verdict forms did not designate which gun was
associated with each count. During trial, defense counsel conceded Ware ’ s guilt

on both counts, stating that Ware constructively p ossessed the guns found in his
sister ’ s bedroom. For purposes of analysis, we designate count 12 as pertaining
to the Ruger firearm and count 13 as pertaining to the Hi

- Point firearm.
2. Gun Possession (Count 1 2 (Ruger)) Ware contends that the evidence does not support the inference that he actually or constructively possessed the Ruger handgun because it was found in
his sister ’ s bedroom and did not contain his DNA. 18 He notes that the prosecution presented no evidence showing he lived at the apartment and that he had access, the right to access, or the means to access his sister ’ s room without her assistance and consent. He acknowledges that his counsel conceded his g uilt to this count during closing argument , but claims this concession does

18 Simpson joins in this argument because it supports his contention that overt acts numbers 70 and 71 were not supported by the evidence.44

not bar sufficiency of the evidence review. Assuming this court conclude s that defense counsel ’ s concession forfeited the sufficiency of the evidence challenge,
he contends that h is attorney rendered constitutionally ineffective assistance of
counsel. As a preliminary matter, we note that the Attorney General did not respond to th e sufficiency of the evidence issue as having been forfeited by defense counsel ’ s concession during closing argument

. “ Two of the most basic premises of our criminal justice system ” are “ the presumption of innocence and the duty of the prosecution to prove guilt beyond a reasonable doubt. ” ( People v.
Belton (1979) 23 Cal.3d 516, 520.) “ Implicit in these principles is the duty of the prosecution to prove each element of the crime charged. ‘ One of the greatest safeguards for the individual under our system of criminal justice is the requirement that the pros ecution must establish a prima facie case by its own evidence before the defendant may be put to his defense

. ’ ” ( Ibid. ) Any concession by defense counsel during closing argument did not alter this fundamental duty. Indeed, a challenge to the sufficienc y of evidence is forfeited in the trial court only by failure to file a timely notice of appeal. ( People v. Rodriguez (1998) 17 Cal.4th 253, 262.) Accordingly, we turn to the merits of Ware ’ s contention. The elements of the crime of being a felon in p ossession of a firearm are conviction of a felony and ownership or knowing possession, custody, or control of a firearm. (§ 29800, subd. (a)(1) ; CALCRIM No. 2510.) Ware does not dispute that he had suffered a prior felony conviction. He challenges his conviction on the ground insufficient evidence showed he constructiv ely possess ed the Ruger firearm found in his sister ’ s locked bedroom because it did not contain his DNA

.

“ Possession may be either actual or constructive as long as it is
intentional. ” (

People v. Spirlin (2000) 81 Cal.App.4th 119, 130.) “ ‘ Constructive possession occurs when the accused maintains control or a right to control the45

contraband; possession may be imputed when the contraband is found in a place which is immediately and exclusively accessible to the accused and subject to his dominion and control, or to the joint dominion and control of the accused and
another

. . . . The elements o f unlawful possession may be established by circumstantial evidence and any reasonable inference s drawn from such
evidence. ’ ” (

People v. Busch (2010) 187 Cal.App.4th 150, 162.) “ [T]here is no single factor or specific combination of factors which unerri ngly points to possession

. . . . [T]he question of possession turns on the unique factual circumstances of each case. ” ( People v. Land (1994) 30 Cal.App.4th 220, 228.)

“ Constructive possession means the object is not in the defendant ’ s physical posse ssion, but the defendant knowingly exercises control or the right to control the object. ” ( In re Daniel G. (2004) 120 Cal.App.4th 824, 831.)

“ Dominion and control ” cannot be inferred from the defendant ’ s mere proximity or access to the weapon. ( People v. Zyduck (1969) 270 Cal.App.2d 334, 336.)

“ [S]omething more must be shown

. . . . ” ( Ibid. ) Nonetheless, “ the necessary additional circumstances may, in some fact contexts, be rather slight. ” ( Ibid. )
That slight , something more , exists here. Police found Ware in the apartment at 5:00 a.m. with his mother, sister and half

- brother. From these facts , jurors could reasonably infer that Ware resided at the apartment. A fter officers announced their presence to execute a search warrant, Ware ’ s mo ther exited the residence while Ware, his sister and two others remained inside for 20 minutes knowing that officers were there to
search the residence for contraband

. Before Ware ’ s sister and the other occupants exited the residence someone actively used the lock on the sister ’ s bedroom door to exclude officers from this room. Ware does not dispute that he constructive ly possess ed the Hi

- Point firearm found in his sister ’ s locked bedroom at some point because this firearm46

contained his DNA. The lack of Ware ’ s DNA on the Ruger firearm does not necessarily show the opposite ; r ather, we must examine the unique
circumstances of this case . T he existence of the Hi

- Point firearm in his sister ’ s bedroom shows that Ware had access to this room and suggests that he shared dominion and control of this room with his sister . ( People v. Rushing (1989) 209 Cal.App.3d 618, 622 [ “ A defendant does not avoid conviction if his right to
exercise dominion and control over the place where the contraband was located is shared with others. ” ] .) Additionally, the Ruger firearm was one of the stolen handguns from the January 29, 2014 residential burglary involving Nino Sanchez, Ware ’ s fellow Hit Squad member

. Final ly , the gang expert testified that gang member s store their guns where officers do not have ready access. The locked bedroom of a family member count s as such a location.
We find that sufficient evidence existed from which a rational trier of fact
coul d reasonably infer that Ware knowingly exercised control , or the right to control the Ruger firearm , and therefore constructively possessed it. Accordingly, the evidence supports his conviction for being a felon in possession of the Ruger firearm.
3

. Statute of Limitations Defense (Count 1 3 (Hi

- Point ) )
Ware concedes that the evidence shows he actually possessed the Hi

- Point handgun at some point because police found his DNA on this weapon. He

argues , however, that there was no evidence that he posse ssed the Hi

- Point gun within the statute of limitations period for this offense

. He claims that he did not forfeit this issue because it pertains to the sufficiency of the evidence to support the charge. Assuming we find this issue forfeited by failure t o raise it below, Ware submits his defense attorney rendered ineffective assistance by failing to raise this issue and by conceding his guilt given the existence of a viable defense to the charged possession.47

The People argue that Ware forfeited this issue because the information was not untimely on its face. Even assuming the issue is not forfeited, the People contend that substantial evidence supports a finding that the offense was
committed within the statu te of limitations period. We agree with the People
that substantial evidence shows that the prosecution of this charge was timely

. A ccordingly , we decline to address the forfeiture argument to avoid Ware ’ s secondary argument that defense counsel was cons titutionally ineffective for failing to raise this issue, and proceed to the merits.

“ A felony prosecution commences for statute of limitations purposes when an indictment or information is filed, or an arrest warrant or bench
warrant issues

. . . . ” ( People v. Castillo (2008) 168 Cal.App.4th 364, 366.) The prosecution bears the burden of proving an offense occurred within the applicable statute of limitations period by a preponderance of the evidence. ( Id. at p. 369.) The crime of illegal firearm possession by a felon is a felony subject to a three

- year statute of limitations. (§§ 18, 801, 29800, subd. (a)(1).) Here, the prosecution commenced upon the filing of the original information on December 18, 2014, charging Ware with the possession “ [o]n or about April 23, 2014. ” Accordingly, to meet its burden, the prosecutor
needed to prove that Ware possessed the Hi

- Point handgun at some point after December 18, 2011. Ware claims that the prosecutor failed to mee t this burden because there is no evidence when he physically possessed the Hi

Point firearm and deposited his DNA on it , and the prosecution failed to establish he had constructive possession of this weapon on April 23, 2014, when police found the gun in his sis ter ’ s bedroom. As discussed a nte regarding the Ruger firearm, the presence of the Hi

- Point firearm on April 23, 2014 in his sister ’ s bedroom , established Ware ’ s constructive possession of this weapon. ( Ante , pt. I.F.2.) Accordingly, the evidence48

sufficient ly show ed that Ware ’ s possession of the Hi

- Point handgun occurred within the limitation s period.
II.

ALLEGED INSTRUCTIONAL ERROR A. CALCR I

M No. 418
1. Additional Background The information identified numerous overt acts which contained statements of oral or written expression, or nonverbal conduct. The court admitted s ome of the statements under the admissions of a coconspirator exception to the hearsay rule. (Evid. Code, § 1223.) The trial court , w ithout objection, instructed with CALCRIM No. 418, which provided:

“ In deciding whether the People have proved that the defendants committed the crime charged, you may not consider any statement made out of court by Edward Paris, Leron Johnson, Nicholas Hoskins, Dionte Simpson, Victor Ware, Damonte Lucas, Norman Sanchez, Emanuel Peavy, Lamont Holman, Maurice Chavarry, Sherbly Gordon, Steven Mahaney, Rahman Taylor, Deandre Cooper, Jamon Smith, Nino Sanchez, M y kein Pri ce, Timothy Hurst, Clyde Ellis, Edward Laplanche, Aaron Hurst,[ 19 ] or unless the People have proved by a preponderance of the evidence that :

“ 1. Some evidence other than the statement itself establishes that a conspiracy to commit a crime existed when the statement was made;

“ 2. [The co

- conspirators] were members of and participating in the conspiracy when they made the statement;

“ 3. [The co

- conspirators] made the statement in order to further the goal of the conspiracy; [¶] AND

19 We collectively refer to these individuals as “ the coconspirators. ”49 “ 4. The statement was made before or during the time that the defendants were participating in the conspiracy.

“ A statement means an oral or written expression, or

non verbal conduct intended to be a substitute for an oral or written expression. [¶] Proof by a preponderance of the evidence is a different standard of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [¶] You may not consider statements made by a person who was not a member of the conspiracy even if the statements helped accomplish the goa l of the conspiracy. [¶] You may not consider st atements made after the goal of the conspiracy had been accomplished. ” ( Bolding added.)

2 . Analysis Appellants contention that CALCRIM No. 418 informed the jury that their intent and the coconspirator ’ s statements could be proved by a preponderance of the evidence which violated their constitutional right to due process by lessening the prosecution ’ s burden of proof. Simpson asserts that this erroneous instruction affected his substantial rights so that we should reach the merits of
hi s claim despite defense counsel ’ s failure to object

. The People assert that appellants forfeited this claim by failing to object to the instruction at trial. In any event, the People claim that the instructions as a whole properly instructed the jury on the prosecution ’ s burden of proof

. We consider appellants ’ argument s on their merits because “ [a]scertaining whether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim

. . . . ” ( People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.) We review a claim of instructional error de novo. ( People v. Posey (2004) 32 Cal.4th 193, 218.) We “ first ascertain what the relevant law provides, and50

then determine what meaning the instruction given conveys. The test is whether there is a reasonable likelihood that the jury understood the instruction
in a manner that violated the defendant ’ s rights. ” ( People v. Andrade (2000) 85 Cal.App.4th 579, 585.) Where the “ determination of error depends on the meaning communicated by an instruction, we must ascertain how a hypothetical

‘ reasonable juror ’ would have, or at least could have, understood the words in question. ” (

People v. Mickey (1991) 54 Cal.3d 612, 670.) “ ‘ “ [T]he correc tness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular
instruction. ” ’ ” (

People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.) Additionally, we must in terpret the instructions at issue to support the judgment rather than defeat it, so long as the instructions are reasonably susceptible of such an interpretation. ( People v. Sy (2014) 223 Cal.App.4th 44, 59.)

“ Evidence Code section 1223 provides an exception to the hearsay rule as to statements made during the existence of a conspiracy that are in furtherance of its objective. ” (

People v. Herrera (2000) 83 Cal.App.4th 46, 59.) CALCRIM No. 418 is tied to Evidence Code section 1223 and mu st be given when a coconspirator ’ s statement has been admitted under Evidence Code section

1223. 20 (

Judicial Council of Cal. Crim. Jury Instns

. (2018), Bench Notes to

20 Evidence Code section 1223 states, “ Eviden ce of a statement offered against a party is not made inadmissible by the hearsay rule if: (a) The statement was made by the declarant while participating in a conspiracy to commit a crime or civil wrong and in furtherance of the objective of that conspir acy; (b) The statement was made prior to or during the time that the party was participating in that conspiracy; and (c) The evidence is offered either after admission of evidence sufficient to sustain a finding of the facts specified in subdivisions (a) a nd (b) or, in the court ’ s discretion as to the order of proof, subject to the admission of such evidence. ”51

CALCRIM No. 418 , p. 219 .) CALCRIM No. 418 protects criminal defendants by instructing t he jury not to consider statements made by coconspirators unless the People have proven, by a preponderance of the evidence, that there was a conspiracy, the declarant was a member of the conspiracy, the declarant made the statement to further the goal of the conspiracy, and the statement was made before or during the time the defendant was participating in the conspiracy. Appellants ’ argument is based on a misreading of the instruction. The first paragraph of CALCRIM No. 418 clearly informed the jur ors that they could not consider any coconspirator ’ s out

- of

- court statements in deciding the conspiracy charges unless the People proved by a preponderance of the evidence four requirements for considering the out

- of

- court statements. CALCRIM No.
418 did not instruct the jurors regarding what they needed to find to convict appellants of conspiracy. On this issue, the court instructed with CALCRIM No. 563 which provided that the People would have to prove four elements , the existence of an agreement, the n ecessary intent to agree and kill, and the
commission of an overt act . In turn, CALCRIM No. 220 expressly told the jury,

“ Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt unless I specifically tell y ou otherwise. ” CALCRIM
No. 418 is not confusing and , when considered with the other instructions provided to the jury, did not reduce the prosecution ’ s burden of proof. Accordingly, we reject appellants ’ claim of instructional error.
B. Multiple Conspiracies The jury found Ware guilty of conspiracy to murder suspected NC and WCC gang members (count 1). It also found him guilty of attempted murder based on the March 25, 2014 shooting (count 10) where he drove his car into WCC territory and his pa ssenger shot at a WCC gang member. To the extent the conspiracy had an objective apart from the attempted murder in count 10,52

Ware submits that the crimes committed in furtherance of the conspiracy reveal not a single overarching conspiracy but many diffe rent conspiracies. Citing People v. Jasso (2006) 142 Cal.App.4th 1213, 1220 ( Jasso ), Ware asserts that the question whether there were multiple conspiracies, or a single conspiracy, was an issue of fact for the jury to decide if evidence existed to suppor t alternative findings. He claims that because there were multiple conspiracies, the trial court erred in failing to sua sponte instruct the jury that it could find the existence of multiple conspiracies. The People contend that Ware forfeited the purp orted error by failing to ask the court to amplify the instructions provided. Assuming we determine the claim is cognizable, the People argue that there is a split of authority whether the existence of a single conspiracy, as opposed to multiple conspirac ies, is one of law for the trial court or one of fact for the jury. Even assuming the question is one for the jury to decide, the People assert that a sua sponte duty to instruct on multiple conspiracies exists only when there is evidence to support alter native findings and the facts here support only one conspiracy. In addressing whether a trial court has a sua sponte duty to instruct the jury to determine the number of conspiracies committed, another panel of this court noted that trial courts are req uired to give correct jury instructions on the general principles of law relevant to issues raised by the evidence, with or without a request. (

People v. Kopp (2019) 38 Cal.App.5th 47, 84 , review granted Nov. 13, 2019, S257844 ( Kopp ) 21 .) Accordingly, we decline to fin d the claim

21 The Supreme Court has limited review in Kopp , supra , 38 Cal.App.5th 47 to the following questions: “ (1) Must a court consider a defendant ’ s abi lity to pay before imposing or executing fines, fees, and assessments? (2) If so, which party bears the burden of proof regarding the defendant ’ s inability to pay? ” We may cite Kopp for its persuasive value while review is pending. (Cal. Rules of Court, rule 8.1115(e)(1).)53

forfeited and turn to the issue whether the existence of a single conspiracy, as opposed to multiple conspiracies, is one of law for the trial court or one of fact for the jury. On this issue, we follow Kopp and conclude “ that the number of conspiracies is a question of fact ” and that a trial court has a duty “ to instruct the jury, sua sponte, to determine the number of conspiracies ‘ where the evidence supports alternative findings. ’ ” ( Id. at p. 85.)
For purposes of analysis, we will assume, without deciding, that the evidence supported alternative findings regarding the existence of a single, or multiple conspiracies. However, we conclude that because the People charged a single conspiracy, Ware suffere d no prejudice in the court ’ s failure to instruct the jury to determine if there were multiple conspirac ies

. 22 As another court explained, “ we fail to see how charging defendant with one count of conspiracy, instead of multiple counts, could prejudice def endant. Any error would therefore be harmless. [¶] Furthermore, assuming there were multiple conspiracies, we do not see how the existence of the uncharged conspiracies can result in the reversal of a guilty finding in the one conspiracy that was charge d. If the evidence submitted to the jury supports the guilty finding on the charged conspiracy, the fact that the same evidence might also have supported other conspiracies, which were not charged, is of no consequence to the issue of innocence or guilt o n the charged conspiracy. ” ( People v. Vargas (2001) 91 Cal.App.4th 506, 553.) We agree with this assessment and conclude that any
assumed error was harmless.

22 The cases Ware cites to show prejudicial error involved situations where the defendant was convicted of multiple conspiracies and the issue presented was whether the trial court erred in not instructing the jury on whether a single conspiracy existed. (See People v. Meneses (2008) 165 Cal.App.4th 1648, 1651, 1671; Jasso , supra , 142 Cal.App.4th at p. 1215; Kopp , supra , 38 Cal.App.5th at pp. 55, 88.)54 II I

. WARE ’ S A LLEGED INEFFECTIVE ASSISTANCE OF COUNSE L C L AIMS

A. General Legal Principles A defendant seeking reversal for ineffective assistance of counsel must prove both deficient performance and prejudice. ( Strickland v. Washington (1984) 466 U.S. 668, 687 ( Strickland ) .) To demonstrate prejudice, defendant must show a reasonable probability that he would have received a more favorable result had counsel ’ s performance not been deficient. ( Id. at

pp. 694

– 695.) “

A reasonable probability is a probability sufficient to undermine confidence in the outc ome. ” ( Id. at p. 694.) “ The likelihood of a different result must be substantial, not just conceivable. ” ( Harrington v.
Richter (2011) 562 U.S. 86, 112.)

“ On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the reco rd affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding. ” ( People v. Mai (2013) 57 Cal.4th 986, 1009.) Where counsel ’ s trial tactics “ for challenged decisions do not appear on the record, we will not find ineffective assistance of couns el on appeal unless there could be no conceivable reason for counsel ’ s acts or omissions. ” (

People v. Weaver (2001) 26 Cal.4th 876, 926.)
B

. Pat Down Search on January 29, 2014 1. Additional Background On this date, a gang suppression team officer observed Ware and another African

- American male walking down the street in an area claimed by the Lincoln Park gang. The officer , who had never seen or contacted Ware55

before , noticed that Ware wore a black hat with a white “ W ” on it, leading
him t o suspect that Ware might be affiliated with WCC, a Lincoln Park rival. The officer stopped the men and let Ware ’ s companion leave after determining that this individual was not involved in gang activity. The officer handcuffed Ware and searched him, des pite Ware stating that he did
not want to be searched. During the search, the officer found a loaded gun. At trial, the parties stipulated that on the date of this incident Ware had a prior felony conviction. In count 8, t he jury convicted Ware of being a felon in unlawful possession of a firearm based on the discovery of the gun during th is stop and frisk. Before this matter was assigned for trial, Ware requested at least three
Marsden 23 hearings “ maybe more. ” After being assigned for trial, Ware requested three Marsden hearing s . At the first hearing , Ware complained about the following: (1) pressure to accept a 20

- year plea agreement; (2) violations of the Fourteenth and Eighth Amendments; (3) excess ive bail; (4) failure to visit; and (5) failure to provide discovery. After hearing from
defense couns el, the court denied the motion. At the second hearing, Ware raised several issues, including that he wanted counsel to challenge “ a gang

- enhancement issue that had illegal
search

- and

- seizure issues. ” After hearing Ware ’ s other complaints, the court commented “ we ’ ve had one attorney in this matter file various motions, none of which have had any merit. So attorneys shouldn ’ t file motions that don ’ t have merit, right. You need to fight where you can fight and concede whe re you need to concede. It ’ s like a

— like a smart football game, all right. Sometimes you don ’ t want the guy to get a touchdown, but you don ’ t care if

23 People v. Marsden (1970) 2 Cal.3d 118.56

he gets five yards, so you concede the five yards. Play smart, all right. I mean, that ’ s the way I loo k at it. And [your defense counsel is] a good tactician that way. He ’ s been around a long time. ” At a third pretrial Marsden hearing, Ware complained about certain motions he wanted filed, a lack of communication, and withholding exculpatory evidence. After hearing from defense counsel, the court denied the motion, comm enting that Ware had “ a very good attorney ” representing him. During a posttrial proceeding regarding Ware ’ s prior convictions, Ware requested a nother Marsden hearing

. At this hearing, Ware argued, among other things, that counsel improperly admitted his guilt on this possession charge because the officer illegally obtained the gun during the search and that the gun was “ fruit from a poisonous tree. ” Defense counsel res ponded that he conceded guilt on the possession charges for tactical reasons, stating this was “ a tactical decision that someone could second

- guess. ” Counsel also
noted that he did not file “ a search and seizure motion ” because he did not

“ believe such a motion was there . . . based on the nature of the search and the circumstances surrounding it. ” At the end of the hearing, defense counsel

state d that he and Ware had disagreements about certain legal issues, he
believe d the issues raised were all “ tactical decisions that [he] made consciously and intentionally based on the state of the facts and the state of
the law. ” At a second posttrial Marsden hearing, Ware indicated his desire to request a new trial to argue, am ong other things, ineffective assistance of counsel. The court continued the matter to conduct its own research. At the subsequent hearing, the court concluded that Ware lacked ground s for the57

appointment of counsel to review the record for the possible filing of a new trial motion based on ineffective assistance of counsel. 2. Analysis
Ware concedes that defense counsel thoroughly cross
- examined the detaining officer at trial regarding the reason for stop ping and search ing him

. He contends , however, that defense counsel provided constitutionally ineffective assistance by failing to file a suppression motion because the stop
and search violated his Fourth Amendment right to be free from unlawful
searches and seizures

. 24 Ware submits that the record on appeal is sufficiently complete to reveal there could be no rational basis for failing to challenge the detention and search. Specifically, he claims that defense counsel addressed his reason for not filing a suppression motion at the Marsden hearing , but failed to provide a meaningful response. The People disagree, arguing that Ware failed to rebut the presumption that defense counsel rendered reasonable professional assistance and cannot show that a motion to suppress the firearm would have been successful

. Ware has the burden of establishing “ that counsel made errors so serious that counsel was not functioning as the ‘ counsel ’ guaranteed the defendant by the Sixth Amendment. ” ( Strickland , supra , 466 U.S. at p. 687 .)
W are admits that it is “ particularly challenging ” to show ineffective assistance on direct appeal. Ware is correct. This standard is “ highly demanding ” and requires that a defendant prove “ gross incompetence. ” ( Kimmelman v. Morrison (1986) 477 U.S. 365, 382.) “ [A] court must indulge a

24 Simpson joins in this argument clai ming that the failure to move to exclude the gun as evidence allowed inadmissible evidence to be admitted to prove his conviction of count 1 which denied him due process of law and constituted a miscarriage of justice.58

strong presumption that counsel ’ s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the chal lenged action ‘ might be considered sound trial strategy. ’ ” ( Strickland , at p. 689.)
In People v. Mendoza Tello (1997) 15 Cal.4th 264, the Supreme Court unanimously reversed the Court of Appeal ’ s reversal of the defendant ’ s conviction on the grounds th at counsel was ineffective for failing to file a suppression motion; the court did so due to gaps in the record: “ On this record, we do not know what [the deputy] would have said had he been asked at a suppression hearing why he did what he did. . . . [P ]erhaps he did have a reason, of which defense counsel was aware, and which justified counsel ’ s actions. Perhaps there was some other reason not to suppress the evidence. ” ( Id. at p. 267. ) “ No one gave [the deputy] the opportunity to point to any specific and articulable facts justifying his actions. Nor did the prosecution have the opportunity to offer some other possible reason not to suppress the
evidence. ” (

Ibid. ) We decline to resolve Ware ’ s ineffectiveness of counsel claim because
the re cord does not “ affirmatively disclose[ ] ” that W are ’ s counsel had no rational tactical purpose for his allege omission. ( People v. Fosselman (1983) 33 Cal.3d 572, 581.) Here, the record suggests that counsel made a tactical decision to not to file a supp ression motion based on “ the nature of the search and the circumstances surrounding it. ” Accordingly, we reject this ineffective
assistance claim “ without prejudice to any rights [Ware] may have to relief by way of a petition for writ of habeas corpus. ” ( People v. Garrido (2005) 127 Cal.App.4th 359, 367.)59

C

. Concession of Guilt Firearm Possession (Counts 8, 12, 1 3 ) 1. Additional Background During opening statement, defense counsel conceded Ware ’ s guilt for unlawfully possessing the firearms as alleged in counts 8, 12 , and 13 (collectively the possession charges). Counsel instead focused on why the
evidence would not establish th e other counts against his client. At closing argument, defense counsel again addressed the possession ch arges , stating:

“ Let ’ s turn to Count 12 and 13, possession of the firearms. I told you in opening statements. I ’ ll tell you again. I ’ m not going to stand up here and argue that because they were locked in his sister ’ s bedroom that they were not his at least constructively. Mr. Ware is guilty of those counts. Those firearms were found in his house.

“ All of the banter about, well, he didn ’ t come out fast enough. He didn ’ t do all those things. Doesn ’ t really matter

. He ’ s responsible for those firearms. His sister was not packing guns in her bedroom.

“ But on April 23, 2014, . . . two weapons were found

. . . . There are some important facts to remember about these weapons. Neither of these guns was used in any of the 18 shootings presented in this case.

“ Ware ’ s prints and DNA were not even on the gun from the 1

- 29

- 14 burglary that was found. No prints or DN A from any other person were found on these guns, especially no one from the specific conspiracy group that we are here to talk about.

“ Turning to Count 8. January 29, 2014. Another news flash. He ’ s guilty. He was carrying that weapon when he was sto pped on the street. Don ’ t need to argue about why he was stopped. I would point out he wasn ’ t with anyone from this group. And, again, the same points. That gun was not involved in any of the 18 shootings. There was no DNA or prints from any other per son found on that gun. ”60

When addressing the lack of evidence tying Ware to the charged conspiracy, defense counsel acknowledged the two occasions that Ware illegally possessed firearms and concentrated on the lack of evidence against Ware on the conspir acy charge. 2. Analysis
Ware asserts defense counsel provided constitutionally deficient assistance during opening and closing arguments by admitting the possession charges

. He claim s that he had viable defenses to the possession charges; namely, grounds existed to suppress the gun found during t he January 2014 pat down search and the evidence did not show he constructively possessed the two guns found in his sister ’ s bedroom. 25 The People argue that d efense
counsel made a reasonabl e tactical decision to concede Ware ’ s guilt on the possession charge s

. Further, the People assert that Ware failed to demonstrate a reasonable probability that, but for counsel ’ s alleged error, the result of the proceedings would have been different

.

“ [A] defense attorney ’ s concession of his client ’ s guilt, lacking any reasonable tactical reason to do so, can constitute ineffectiveness of counsel. ” ( People v. Gurule (2002) 28 Cal.4th 557, 61 1 .) However, defense counsel cannot be faulted for adopting “ a more realistic approach ” based on the
evidence

. (

Id. a t p. 612.) Partial concessions of culpability are a legitimate tactical choice by defense counsel where the i ncriminating evidence is strong. (See, e.g., People v. Hart (1999) 20 Cal.4th 546, 631; People v. Bolin (1998) 18 Cal.4th 297, 334

– 335.)

25 Simpson joins in Ware ’ s argument claiming that the concession of the firearm possession counts allowed inadmissible or defensible evidence to be admitted to prove his conviction of count 1.61

Here, Ware undisputedly had a firearm on his person during the January 2014 pat down search (count 8) 26 and possessed the Hi

- Point firearm (count 1 3 ) found in his sister ’ s bedroom at one point because it
contained his D NA. Defense counsel ’ s concession on counts 8 and 1 3 simply reflected the reality of the evidence, and the recognition that to argue Ware did not possess these firearms would likely damage counsel ’ s credibility with the jury. Thus, it was a reasonable tactical decision. ( Gurule , supra , 28 Cal.4th at p. 61 2.) For the same reasons, Ware cannot show prejudice from defense counsel ’ s tactical decision on these counts , because it is not reasonably probable that in the absence of counsel ’ s concession, he would
have received a better verdict. (See Strickland , su pra , 466 U.S. at pp. 693

– 696.) Regarding the Ruger firearm also found in Ware ’ s sister ’ s bedroom (count 1 2 ) , defense counsel similarly had a tactical reason for conceding
Ware ’ s guilt . N amely, the evidence suggested Ware placed both guns in his sister ’ s bedroom to thwart the officers during the pending search. ( Ante , pt. I.F.2

. ) Again, to argue otherwise, would likely damage counsel ’ s credibility with the jury. On the record before us, we cannot conclude that defense counsel had no rational tactical purpose for making the concession he did regarding count 12. Finally, for the first time in his reply brief, Ware cites McCoy v.
Louisiana (2018) ___U.S.___, 138 S.Ct. 1500 ( McCoy ) to assert that defense
counsel ’ s concessions violated the Sixth Amendment and constitute a structural error warranting a new trial

. Presumably, Ware tendered this

26 The question whether defense counsel provided ineffective assistance by failing to move to suppress this gun cannot be resolved on this record. (See, ante , pt. II.B.2.)62

new argument in his reply brief because the Attorney General argued in his respondent ’ s brief that McCoy did not apply.
In McCoy , defense counsel informed defendant two weeks before trial that he intended to concede defendant ’ s guilt of a triple homicide. ( McCoy , supra , ___U.S. ___, 138 S.Ct. at p. 1506.) Defendant was “ ‘ furious ’ ” insist ing
he was innocent and had bee n out of state when the murders occurred. ( Ibid. ) Two days before trial , the court denied defendant ’ s request to terminate his counsel ’ s representation based on counsel ’ s intent to concede guilt. ( Ibid. ) During counsel ’ s opening statement, out of earshot of the jury, defendant again informed the court he disagreed with counsel ’ s concession of guilt. ( Id. at p. 1507.) Nevertheless, defense counsel told the jury it was

“ ‘ unambiguous ’ ” that “ ‘ my client committed three murders. ’ ” ( I bi d. )
The Supreme Court reversed the conviction, holding that, “ [A] defendant has the right to insist that counsel refrain from admitting guilt,
even when counsel ’ s experienced

- based view is that confessing guilt offers the
defendant the best chance to avoid the dea th penalty. . . . [I]t is the defendant ’ s prerogative, not counsel ’ s, to decide on the objective of his defense

. . . . ” (

McCoy , supra , ___U.S. ___, 138 S.Ct. at p. 1505.) The Court stated that defense counsel provides assistance, but some decisions are reserved to the client, including whether “ the objective of the defense is to
assert innocence

. . . . ” ( Id. at p. 1508.) Having reviewed McCoy , supra , ___U.S. ___ , 138 S.Ct. 1500 and its progeny, we find no Sixth Amendment violation because the record in the Marsden hearings make clear that Ware disagreed with defense counsel ’ s tactical decision to concede guilt on the possession charges. Ware never objected to the concession clai ming factual innocence.63

A s noted in McCoy , “ ‘ [n]o blanket rule demand[s] the defendant ’ s explicit consent ’ to implementation of that strategy [of concession]. ” ( McCoy , supra , ___U.S. ___, 138 S.Ct. at p. 1505.) Rather, McCoy makes clear that for a Sixth Amendment violation to exist , a defendant must make his intention to maintain innocence clear to his counsel, and counsel must override that objective by conceding guilt. ( Id. at p. 1509 [ “ When a client expressly asserts that the objective of ‘ his defence ’ is to maintain innocence of the charged criminal acts, his lawyer must abide by that objective and may not override it by conceding guilt ” [second italics added].) Here, nothing in the record
demonstrates Ware ’ s unambiguous intent to maintain his factual innocence of the possession charges. Rather, the record shows that Ware had a gun on his person during the January 2014 stop and that one of the guns found during the April 2014 search contained his DNA. The issue was not one of innocence, but of how to best defend Ware against these charges and the third possession charge. No violation of Ware ’ s constitution al right to counsel
occurred.
Ware ’ s reliance on People v. Eddy (2019) 33 Cal.App.5th 472 ( Eddy ) is misplaced. During a posttrial Marsden hearing, defense counsel in Eddy admitted kn owing defendant ’ s desire to claim innocence as his defense, but as

a tactical decision , explained he would conced e guilt on the lesser offense at closing argument

. (

Id. at p. 478.) Defendant told the trial court that he
advised counsel “ not to go that route, and he had done it anyway. ” ( Id. at

pp. 478

– 4 79.) The appellate court, consistent with McCoy , supra , ___U.S. ___, 138 S.Ct. at p. 1505 , “ conclude[d] that defendant has established a violation of his right to decide the objective of his defense under McCoy , and because this violation constitutes structural error, ” reversed the murder conviction. ( Eddy , at p. 483.)64

Thus, i n Eddy , “ the rec ord establishe[d] that defendant instructed his counsel to maintain his innocence before the closing argument and that this
instruction was not honored. ” ( Eddy , supra , 33 Cal.App.5th at p. 482.) Here, however, Ware never argued that he was factually innocent of the possession charges. Accordingly, Eddy is not controlling. ( Accord , People v. Flores (2019) 34 Cal.App.5th 270, 280 [ “ Flores ’ s objective at both trials was express and unambiguous: to maintain his innocence o f the acts alleged as the actus reus of the charged crimes

— i.e. , driving the car and possessing the

weapons

— irrespective of the weight of the evidence against him

. ” ].)
IV. IMPACT OF ASSEMBLY BILL 333 A. Assembly Bill 333 Amendments to Section 186.22 “ ‘In 1988, the Legislature enacted the California Street Terrorism Enforcement and Prevention Act (STEP Act; § 186.20 et. seq.) to eradicate criminal activity by street gangs.’ ” [Citation.] Among other t hings, the STEP Act created ‘a sentencing enhancement for a felony committed “for the benefit of, at the direction of, or in association with any criminal street gang” (§ 186.22, subd. (b)(1)).’ ” (

People v. Tran (2022) 13 Cal.5th 1169, 1205

– 1206 ( Tran ).) The purpose of the STEP Act was to increase punishment for defendants who commit felonies in furtherance of criminal street gang activity. ( People v. Fuentes (2016) 1 Cal.5th 218, 223.) In 2000, in an initiative measure known as Proposition 21 , voters amended the STEP Act. ( People v. Lopez (2022) 12 Cal.5th 957, 969 .) Among other things, Proposition 21 added section 182.5 to the Penal Code to create the crime of gang conspiracy

. ( Ibid. ) 27 Section 182.5 provides, in relevant part,

27 Proposition 21 also added a list of new special circumstances in which the punishment for first degree murder is set at death or life in prison65

“[A]ny person who actively participates in any criminal street gang, as defined in subdivision (f) of Section 186.22, with knowledge that its members engage in or have engaged in a pattern of criminal gang activity , as defined in subdivision (e) of Section 186.22, 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
subd ivision (a) of Section 182.” Thus, section 185.2 expressly incorporates specific provisions of section 186.22. “ Proposition 21 also amended the existing gang enhancement in section 186.22, subdivision (b)(1) to create a new tiered system of enhancements with five

- year enhancements for individuals convicted of serious felonies and 10

- year enhancements for individuals convicted of violent felonies. ” (

People v. Lopez , at pp. 969

– 970 .) In 2021, the Legislature passed Assembly Bill 333, which became effect ive on January 1, 2022. ( Tran , supra , 13 Cal.5th at p. 1206.) Assembly Bill 333 made several amendments to section 186.22, subdivisions (e) and (f) which are integral to the interpretation of gang conspiracy statute and the gang and gang

related firearm enhancement s. When defendants were tried, former section 186.22 defined a “ ‘criminal street gang’ ” as “any ongoing organization, association, or group of three or more persons . . . whose members individually or collectively engage in, or have engaged i n, a pattern of criminal gang activity.” (Former § 186.22, subd. (f), italics added.) Assembly Bill 333 narrowed the definition to “an ongoing, organized association or group of three or more

without the possibil ity of parole, including a gang murder enhancement where “ ‘[t]he defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang, as defined in subdivision (f) of Section 186.22, and the murder was carried out to further the activities of the criminal street gang.’ (Prop. 21, § 11; see § 190.2, subd. (a)(22).)” ( People v. Rojas (2022) 80 Cal.App.5th 542, 550 ( Rojas ) review granted Oct. 19, 2022, S275835.)66

persons . . . whose members collectively engage in, or have engaged in, a pattern of criminal gang activity.” (§ 186.22, subd. (f), italics added.) This change requires that the People “prove that two or more gang members committed each predicate offense.” (

People v. Delgado (2022) 74 Cal.App .5th 1067, 1072.) Under the former version of section 186.22, the phrase “pattern of criminal gang activity” was defined as “the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or
convic tion of

, two or more of [specified] offenses, provided at least one of these offenses occurred after the effective date of this chapter , and the last of those offenses occurred within three years after a prior offense, and the offenses were
committed on se parate occasions, by two or more persons .” (Former § 186.22, subd. (e), italics added.) Assembly Bill 333 changed this definition. Now, the predicate offenses must have been committed by two or more “members” of the gang (as opposed to any persons) an d must have “ commonly benefited a criminal street gang” and “the common benefit of the offense [must be] more than reputational. (§ 186.22, subd. (e)(1), italics added.) Additionally, at least one of these predicate offenses must occur after the effectiv e date of this chapter, and the last of those offenses must have occurred within three years of the prior offense and within three years of the date the current offense is alleged to have been committed. ( Ibid. ) The currently charged offense no longer co unts as a predicate offense. (§ 186.22, subd. (e)(2).) The new law also reduced the number of qualifying offenses that can be used to establish a pattern of criminal gang activity, removing vandalism, looting and several fraud

- related offenses from the l ist. (§ 186.22, subd. (e)(1)(A)

- (Z).) Assembly Bill 333 requires the prosecution to prove the benefit the gang derives from the current offenses is “more than reputational.” (Stats. 2021, ch.67

699, § 3 [enacting § 186.22, subd. (g)].) “Examples of a c ommon benefit that are more than reputational may include, but are not limited to, financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a potential current or previous witness or informant.” (§ 186.22, subd. (g).) Finally, Assembly Bill 333 added section 1109 requiring bifurcation of gang enhancements charged under section 186.22, subdivision (b) or (d) to be tried separately from the underlying charges upon request from the defense. (Stat s. 2021, ch. 699, § 5.) The defendant’s guilt on the underlying offense must first be determined, and a trial on the gang enhancement is held if the defendant is first found guilty of the underlying offense. (§ 1109, subds. (a)(1) & (a)(2).)
The chang es to section 186.22 made by Assembly Bill 333 “ affect not only the gang enhancement allegations under that statute but other statutes that expressly incorporate provisions of section 186.22.” ( People v. Lopez (2021) 73 Cal.App.5th 327, 346.) As we noted above, a gang conspiracy under section 182.5 incorporates the proof requirements for “criminal street gang” as defined
in section 186.22. Additionally, the gang

- firearm enhancement (§ 12022.53, subd. (e)(1)(A)) and gang

- murder special circumstance (§ 190.22, subd. (a)(22)) incorporate the proof requirements of section 186.22

. B. Analysis 1. G ang and G ang

- F irearm E nhancements The jury found true that Simpson committed the crimes alleged in counts
1 through 5 in a ssociation with , and to benefit , a gang. ( § 186.22 , subd. (b)(1 ) .)
T he jury also found true the allegations that the offenses Ware committed in counts 1, 10, and 14 were gang crimes under subdivision (b) of section 186.22. All parties agree that Assembly Bill 333 applies retroactively to Simpson and Ware, and a remand is required to afford the prosecution an opportunity to68

prove the gang and gang

- firearm enhancements under the amended law. We

agree and remand for possible retrial of these enhanc ements. The trial court instructed the jury based on the old requirements of section
186.22. As relevant here, the jury was instructed that to determine whether a “pattern of criminal gang activity” existed, they needed to find the most recent predicat e offense occurred within three years of one of the earlier crimes and that the crimes “need not be gang

- related.” The jury was also informed and “if you find a defendant guilty of a crime in this case” it may be considered to decide the “group’s primary activities

. ” Also, t he jury was not instructed they needed to find the predicate offenses benefited the gang or that the benefit was more than reputational as required under the amended statute

. (§ 186.22, subd. (e)(1) .)

“ [T]he absence of instruction on the amended version of section 186.22 requires reversal unless ‘it appears beyond a reasonable doubt that the error did not contribute to th[e] jury ’ s verdict.’ ” ( People v. E.H. (2022) 75 Cal.App.5th 467, 479.) We cannot conclude that the se instructional errors were harmless. For example, the prosecution presented evidence of three predicate offense s but
th e se convictions cannot qualify as predicates under the new requirements of Assembly Bill 333 because there was no testimony about how those crimes benefited the Brim gang. (§ 186.22, subd. (e)(1).) T he jurors were also permitted to consider the current offenses in determining whether the prosecution had proven a pattern of criminal gang activity

. A ccordingly, we vacate the jury ’ s
true findings for the section 186.22 gang enhancement allegations and remand the matter for the People to determine whether to retry Simpson and Ware
under the amended law. The jury also found true gang

- related firearm enhancements under section 12022.53, s ubdivision (e)(1) ( which requires a finding that a person “violated subdivision (b) of Section 186.22” ), attached to counts 2 and 3 for Simpson and69

count 10 for Ware

. Because the gang enhancements must be reversed for instructional error, the se vicarious, gang

- related firearm enhancements must
also be stricken since they may be imposed only if the gang enhancement has already been found true. (§ 12022.53, subd. (e)(1).) In conclusion, the proper remedy is to vacate the section 186.22 gang
enh ancement s and the section 12022.53, subdivision (e)(1) gang

- related firearm
enhancement s and remand to allow the prosecution an opportunity to retry these enhancements and meet its burden of proof pursuant to the new requirements in Assembly Bill 333

. (Se e People v. Lopez , supra , 73 Cal.App.5th at pp. 346

– 347 .)
2

. Gang Conspiracy Ware contends that A ssembly B ill 333 requires his conviction for actively participating in a gang conspiracy (§ 182.5 , count 9) be reversed

. He notes that section 182.5 incorporates the proof requirements for “criminal street gang” as defined in section 186.22. Because Assembly Bill 333 changed the definition of a “criminal street gang” he contends that for the same reasons the gang and gang

r elated firearm enhancement s must be reversed, his gang conspiracy conviction

must also be reversed. 28 In a lengthy argument, the Attorney General disagrees that Ware’s gang conspiracy conviction must be reversed. He contends that

s ubdivision (c) of artic le II, section 10 of the California Constitution restricts the Legislature from amending “an initiative statute by another statute” unless the subsequent statute is “approved by the electors” or “the initiative statute permits amendment .

. . without the electors ’ approval.” Additionally, Proposition 21 expressly states , “ ‘ The provisions of this measure shall not be

28 Simpson does not join in this argument becaus e our original opinion concluded that insufficient evidence supported his gang conspiracy conviction. (See ante , pt. I.C.2.c.)70

amended by the Legislature except by a statute passed in each house by rollcall vote entered in the journal, two

- thirds of the m embership of each house concurring, or by a statute that becomes effective only when approved by the

voters. ’ ” (

People v. Lopez (2022) 82 Cal.App.5th 1, 17

– 18.) “There is no dispute that Assembly Bill 333 ‘was enacted without voter approval, and without the requisite two

- thirds votes in both houses of the Legislature.’ ” ( Id. at p. 18.) Thus, the Attorney General asserts Assembly Bill 333 appears to be an unconstitutional amendment to the offense of gang conspiracy enacted by the voters via Proposition 21 . He contends we can invalidate the amendments made by Assembly Bill 333 as applied to the gang conspiracy offense, rather than severing and invalidating those amendments in their entirety

. The arguments made by the Attorney General have been addressed by several courts in the context of gang conspiracy and the gang

- murder special circumstance , and their conclusions are split. In Rojas , supra , 80 Cal.App. 5th 542, a divided panel of the Fifth District held Assembly Bill 333 could not alter the proof requirements for a “criminal street gang” from those in effect at the time the voters enacted Proposition 21. (See Rojas , at pp. 550

– 558 [because Assembly Bill 333 was passed without voter approva l and without the requisite

two

- thirds vote in both houses of the state Legislature, it cannot amend section 190.2, subdivision (a), without violating the constitutional prohibition on legislative amendment of a statute adopted by initiative].) In contras t, in People
v. Lee (2022) 81 Cal.App.5th 232 ( Lee ), review granted Oct ober 19, 2022, S275449 , the Second District, Division 4 rejected the analysis in Rojas

. The Lee court reasoned the voters “did not contemplate a time

- specific incorporation of the the n
- current version of section 186.22, subdivision (f), into the gang

- murder special

- circumstance statute.” ( Lee , supra , 81 Cal.App.5th at p. 241 .) It explained, “Section 186.22 was originally enacted by the Legislature71

in 1987. [Citation.] As part of Proposition 21, in March 2000 the electorate amended certain provisions of section 186.22 by increasing the sentences of the gang enhancements provided by subdivisions (b), (c), and (d). [Citation.] The electorate also updated the list of predicate offenses to be used to determine a

‘ “pattern of criminal gang activity” ’ in subdivision (e). However, the voters reenacted section 186.22, subdivision (f) without substantive change. [Citation.] As such, subdivision (f) of section 186.22 cannot be deemed ‘among the
initiative ’ s statutory provisions’ made immune from legislative amendment by force of article II, section 10 of the state Constitution.” ( Lee , at p. 242.) “In short, the voters left intact the Legislature ’ s power to amend the definition of a criminal street gang in section 186.22, subdivision (f).” ( Lee , at p. 242.)
In People v. Lopez , supra , 82 Cal.App.5th 1, relying on Lee , supra , 81 Cal.App. 5th 232 , a nother panel from th e Fifth District court determined there was no time

- specific provision in Proposition 21 for section 182.5 as there was for other provisions of the criminal law. ( People v. Lopez , at pp. 23

– 24.) Th e Lopez court concluded, “[W]e agree with Lee ’ s conclusion that ‘the electorate clearly knew how to express the intent to freeze a statutory definition,’ ” and “[t]he absence of such time

- specific language in section 182.5 leads to our rejection of the People ’ s claim.” ( People v. Lopez , at pp. 24

– 25.) Because our high court will resolve this split of authority, we need not belabor the Attorney General’s contentions in this appeal. We agree with the analysis in Lee , supra , 81 Cal.App.5th 232 and People v. Lopez , supra , 82 Cal.App.5th 1 and conclude that Assembly Bill 333 applies retroactively to section 182.5. T he Attorney General does not argue that the prosecution presented evidence that would meet the new evidentiary r equirements of section 186.22, subdivisions (e) and (f) as now incorporated into section 182.5 . We conclude that Ware is entitled to the benefit of the ameliorative changes in the72

law made by Assembly Bill 333 for purposes of his criminal gang conspiracy
conviction. We reverse the gang conspiracy conviction and remand the matter to allow the prosecution the opportunity to elect whether to retry this charge under current law.
V

. SENTENCING ISSUES A. Gun Use Enhancement s U nder S ection 12022.53 The jury found true firearm use allegations attached to counts 2 and 3 for Simpson and count 10 for Ware . (§ 12022.53 , subds. (b), (c) , and (e)(1).) The court imposed sentences, of 20 years, and six years eight months for Simpson and 20 years for Ware. Effective January 1, 2018, approximately five months after the sentencing hearing, Senate Bill No. 620 amended sections 12022.5 and 12022.53 to provide that trial courts may, “ in the interest of justice pursuant to Section 1385 and at the time of sentencin g, strike or dismiss an enhancement otherwise required to be imposed

. . . . ” (§§ 12022.5, subd. (c), 12022.53, subd. (h).) The new legislation granted trial courts discretion they did not previously possess to strike firearm enhancements. ( People v. Woods (2018) 19 Cal.App.5th 1080, 1090.) We vacated the true findings for the section 12022.53 gang

- related firearm
enhancem ent s and remand ed the matter to allow the prosecution an opportunity to retry these enhancements and meet its burden of proof pursuant to the new requirements in Assembly Bill 333

. ( Ante , pt. IV.B.1.) Should the P eople retry Simpson and Ware and these al legations are again found true, they must be
sentenced under the current law

. B. Ware ’

s P ersonal Gun Use Enhancement (Count 10)

In c ount 10 the jury found Ware guilty of attempted premedi t ated murder and found true a gang enhancement allegation under section 186.22, subdivision73

(b)(1), and two firearm enhancement allegations under sections 12022.53, subdivisions (b) and (e)(1), and 12022.53, subdivisions (c) and (e)(1). At sentencing, the trial court set the minimum parole eligibility period for count 10 at 15 years, pursuant to subdivision (b)(5) of section 186.22

. It also imposed and stayed a 10

- year firearm enhancement under section 12022.53, subdivision (b), and imposed a 20

- year firearm enhancement under section 12022.53, subdivision (c). Ware asserts that the matter must be remanded for resentencing because he did not personally use the firearm in count 10 ; thus, he claims that the trial court was statutorily barred from imposing increased punishments under both section 186.22 and section 12022.53. The People concede d the error. We vacated the true findings for the section 12022.53 gang

- related firearm
enhancement s and remand ed the matter to allow the prosecution an opportunity to retry these enhancements and meet its burden of proof pursuant to the new requirements in Assembly Bill 333

. ( Ante , pt. IV.B.1.) Should the People retry
Ware and this allegation is again found true, he must be sentenced under the
current law. C

. Ware ’

s S entences for C onspiracy (Count 1) and A ttempted M urder (Count 10

) The jury found Ware guilty of conspiracy to murder suspected N C and
W CC gang members (count 1)

. It also found him guilty of attempted murder based on the March 25, 2014 shooting ( count 10 ) where he drove his car into WCC territory and his passenger shot at a WCC gang member

. The trial court sentenced Ware to 25 years to life in prison for the conspiracy , plus an addi tional enhanced life term for the attempted murder. Ware contends that section 654 barred the trial court from imposing sentences for both the conspiracy and the substantive offense because they shared the same objective

. The People disagree, arguing tha t Ware could be punished for both conspiracy74

and attempted murder because the conspiracy was not limited to the single attempted murder charged in count 10, but extended to an agreement to kill rival Crip s gang members, spanning several years

. We agree wi th the People.

“ Section 654 bars multiple punishment for separate offenses arising out of a single occurrence where all of the offenses were incident to one objective. ” ( People v. Lewis (2008) 43 Cal.4th 415, 519, disapproved on another ground in People v. Black (2014) 58 Cal.4th 912, 919

– 920.) “ ‘ Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one. ’ ” ( People v. Correa (2012) 54 Cal.4th 331, 336.)

“ Because of the prohibit ion 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 objectiv e 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 impermissibl e 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]. Punishment for both conspiracy and
substantive offenses has been upheld when the conspiracy has broader or different objectives from the specific substantive offenses. ” ( People v. Ramirez (1987) 189 Cal.App.3d 603, 615

– 616, fn. omitted .) The question whether defendant had the same objective in committing more than one offense is a75

question of fact for the trial court, and we review the court ’ s finding under the substantial evidence standard. ( People v. Osband (1996) 13 Cal.4th 622, 730.) In count 10, Ware aided and abetted the attempted murd er of WCC gang
member , M.W. , on March 25, 2014

. Count 1 alleged that Ware conspired to murder suspected NC and WCC gang members with numerous coconspirators. The charged conspiracy consisted of 104 overt acts, 13 of which were shootings , including the Ma rch 25, 2014 shooting

. The conspiracy charge had a broader objective beyond the attempted murder of the specific individual charged in count 10. Where, as here, a conspiracy has “ an objective apart from an offense for which the defendant is punished, [ the defendant] may properly be sentenced for the conspiracy as well as for that offense. ” (

In re Cruz (1966) 64 Cal.2d 178, 181; see also, People v.
Amadio (1971) 22 Cal.App.3d 7, 15 [conspiracy to receive stolen property included more than receipt of property in substantive counts]; People v. Collins (1966) 242 Cal.App.2d 626, 640 [conspiracy went beyond instances of theft for which defendant was convicted] ; People v. Scott (1964) 224 Cal.App.2d 146, 152 [conspiracy lasted for months; evidence of numerous incidents other than those comprising the substantive offenses].) The fact both count 1 and 10 had a single objective, killing a WCC or NC gang member, “ d oes not bar multiple punishment for separate crimes. ” ( People v. Lochmiller (1986) 187 Cal.App.3d 151, 153.) To accept Ware ’ s argument would allow him to escape punishment that is commensurate with his culpability. (See People v. Latimer ( 1993 ) 5 Cal.4t h
1203 , 1211 , compare, People v. Cavanaugh (1983) 147 Cal.App. 3d 1178 , 1182 [multiple punishment is prohibited where the substantive offenses are merely the means of achieving the conspiracy ’ s objective].) Accordingly, the trial court
did not err when it punished Ware for both the conspiracy and the attempted
murder.76

D

. Unpaid Portion of Criminal Justice Fee Must Be Vacated
The court ordered Simpson and Ware to pay a $154 criminal justice fee under Government Code section 29550. Assembly Bill 1869 “added section 1465.9 and Government Code section 6111, which provide that on and after July 1, 2021, the unpaid balance of such fees imposed by the court ‘shall b e unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated.’ (§ 1465.9, subd. (a); Gov. Code, § 6111, subd. (a).)” ( People v. Pacheco (2022) 75 Cal.App.5th 207, 215.) The parties agree and we conclude, that on remand, the trial court must vacate any unpaid portion of the criminal justice fee

. E

. Sentencing Discretion Under Amended Section 1385 The jury found true firearm enhancements on counts 2 and 3 for Simpson
and count 10 for Ware. (§ 12022.53, subds. (b), (c), & (e)(1).) In our prior opinion, we remanded for resentencing to allow the trial court to exercise its discretion to strike the firearm use enhancements attached to these counts under section 1385

. Effective January 1, 2022, Senate Bill 81 amended section
1385 “to specify factors that the trial court must consider when deciding whether to strike enhancements from a defendant ’ s sentence in the interest of justice.” (

People v. Sek (2022) 74 Cal.App.5th 657, 674 ( Sek ) .) Under the amended law, unless dismissal is prohibited under an initiative statute, trial courts are now required to dismiss an enhancement if it is in the furtherance of justice to do so. (§ 1385, subd. (c)(1).) I n exercising its discretion, the court must “consider and afford great weight to” evidence of the mitigating circumstances listed in subparagraphs (A) through (I), “unless the court finds that dismissal of the enhancement would endanger public safety.” (§ 1385, subd. (c)(2).) Simpson and Ware contend that, on remand for resentencing, the trial court must comply with that new provision. The People agree that Simpson and77

Ware can raise any claims regarding the changes to section 1385 on remand

. Because any resentencing in this case will take place after Senate Bill 81 became effective on January 1, 2022, the trial court must apply the new law in any such proceeding. ( Sek , supra , 74 Cal.App.5th at p. 674 .) 

### F

. Ware’s Prior Prison Term Enhancement Must Be Stricken At sentencing, the trial court imposed a one

- year enhancement under section 667.5, subdivision (b) ( section 667.5(b)), for a prior prison term resulting from drug convictions in violation of Health and Safety Code sections 11350, subdivision (a), and 11351.5. Effective January 1, 2020, Senate Bill No. 136 (2019

– 2020 Reg. Sess.) (Stats 2019, ch. 590, § 1) (Senate Bill 136) , limited prior prison term enhancements to those terms served for specified sexually violent

o ffenses. (

People v. Jennings (2019) 42 Cal.App.5th 664, 681.) Ware argued that
th is change applie d retroactively and requested that the section 667.5 , subdivision (b) enhancement be stricken. In our prior opinion , we declined to do
so because we had vac ated Ware’s sentence and he could raise the matter at his resentencing hearing. Ware contends that, due to another change in the law, we should reconsider his request. The parties agree and we conclude, that on remand, the trial court must strike the prior prison term enhancement imposed
under section 667.5 , subdivision (b).
I n 2021, the Legislature enacted Senate Bill 4 83 which sought to make the changes implemented by S enate Bill 136 retroactive. (Stats. 2021, ch. 728, § 1 [“it is the intent of the Legislature to retroactively apply

. . . Senate Bill 136 of
the 2019

- 20 Regular Session to all persons currently serving a term of incarceration in jail or prison for the se repealed sentence enhancements”].)
Senate Bill 483 added former section 1171.1, now section 1172.75, to the Penal Code. (Stats. 2021, ch. 728, § 3, eff. Jan. 1, 2022; Stats. 2022, ch. 58, § 12, eff. June 30, 2022.) Subdivision (a) of s ection 1172.75 states that “[a]ny sentence78

enhancement that was imposed prior to January 1, 2020, pursuant to [ section
667.5 , subd ivision (b )] , except for any enhancement imposed for a prior conviction for a sexually violent offense .

. . is legally invalid.”
Because Ware served his prison prior term for drug

- related offenses, not a sexually violent offense , he is entitled to the benefit of Senate Bill s 136 and 483

. On remand, the trial court is directed to strike Ware’s one

- year prior prison term enhancement resulting from drug convictions in violation of Health and Safety Code sections 11350, subdivision (a) and 11351.5. G

. Recent Amendment to Section 654 Applies Retroactively to Simpson Simpson asks us to remand the matter on the ground his sentence fails to comply with the ameliorative change to former section 654. The Attorney
General concedes the new discretion afforded by Assembly Bill 518 applies and that a remand is required. The People’s concession is proper. At the time of Simpson’s sentencing in 20 17 , former section 654, subdivision (a) required that a defendant who committed an act punishable by two or more pr ovisions of law be punished under the provision that provided for the longest possible term. (Stats. 1997, ch. 410, § 1.) “As amended by Assembly Bill 518, . . . section 654 now provides the trial court with discretion to impose
and execute the sentence of [any] term, which could result in the trial court imposing and executing [a] shorter sentence rather than the long e [st] sentence.” ( People v. Mani (2022) 74 Cal.App.5th 343, 379.) These amendments apply retroactively to Simpson’s nonfinal sentence. ( See Ibid. ) Simpson’s sentence is vacated and the matter remanded for further proceedings, after which the trial court may reconsider all sentencing choices.79 DISPOSITION As to appellant Simpson , we reverse his conviction on count 9 (gang conspiracy, § 182.5). On counts 1 through 5 , we vacate the true findings on the gang enhancement allegations (§ 186.22, subd. (b))

. On counts 2 and 3 , we vacate the true findings on the gang

- related firearm enhancement allegations (§ 12022.53, subds. (b)

– (d) & (e)(1))

. Simpson’s sentence is vacated and the matter is remanded to the superior court. On remand, the court is directed to strike the unpaid balance of the $154 criminal justice fee and the People shall decide whether to retry Simpson for gang conspiracy , the gang enhancement allegations (§ 186.22, subd. (b)), and gang

- related firearm enhancement allegations (§ 12022.53, subds. (b)

– (d) & (e)(1)). Upon determination as to the status of co unt 9 and these allegations (no retrial, or retrial and final resolution) Simpson is to be sentenc ed consistent with current law. In all other respects, Simpson’s judgment is affirm ed

. As to appellant Ware , o n counts 1, 10, and 14 , we vacate the true findings on the gang enhancement allegations (§ 186.22, subd. (b)) . On count 10, we

vacate the gang

- related firearm enhancement allegations

. (§ 12022.53, subds. (b)

– (d) & (e)(1))

. Ware’s sentence is vacated and the matter is remanded to the superio r court. On remand, the court is directed to strike (1) the unpaid balance of the $154 criminal justice fee and (2) Ware’s one

- year prior prison term enhancement under section 667.5 , subdivision (b) for a prior prison term resulting from drug convictions in violation of Health and Safety Code sections 11350, subdivision (a), and 11351.5 . The People shall decide whether to retry
Ware on the gang enhancement allegations (§ 186.22, subd. (b)), and gang

related firearm enhancement allegations (§ 1 2022.53, subds. (b)

– (d) & (e)(1)).
U pon determination as to the status of these allegations (no retrial, or retrial80

and final resolution) Ware is to be sentenc ed consistent with current law. In all other respects, Ware’s judgment is affirm ed

. After sentencing, the clerk of the superior court shall prepare an amended abstract of judgment for each appellant reflecting the appropriate modifications, as set forth above, and forward it to the California Department of Corrections
and Rehabilitation.

O ’ ROURKE, J.

WE CONCUR:

HUFFMAN, Acting P. J.

DO, J.