Filed 5/2/22 P. v. Nava CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



### IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent,

v.

FRANCISCO A NTONIO NAVA, Defendant and Appellant. F080965 (Super. Ct. No. VCF361905C)



### OPINION

APPEAL from a judgment of the Superior Court of Tulare County. Gary L.
Paden , Judge.

Gillian Black , under appointment by the Court of Appeal , for Defendant and Appellant

. Xavier Becerra and Rob Bonta , Attorney s General , Lance E. Winters , Chief Assistant Attorney General , Michael P. Farrell , Assistant Attorney General , Louis M. Vasquez , Robert K. Gezi , Darren K. Indermill , Lewis A. Martinez and Will iam K. Kim , Deputy Attorneys General , for Plaintiff and Respondent

.

- ooOoo

-2

. INTRODUCTION
Francisco Antonio Nava and three codefendants

— Robert Ramos , Stephen Lopez , and Ruben Perez

— engaged in a confrontation at a convenience market with E.D. and his girlfr iend , C.A. They yelled rival gang slurs at E.D. ; Lopez and Perez threw drinks into
E.D. and C.A. ’ s car ; and Lopez grabbed E.D. ’ s shirt and struck him in the back of the
head , scratch ing his neck. Perez also tried to grab E.D. E.D. drove away. When E.D. stopped at an intersection , he saw a black car speeding toward him , heard two gunshots and glass breaking , and felt an impact on his car. He saw the black car on the left side of
his c ar and a man pointing his hand out of the back passenger window. The four defendants were charged with multiple offenses in relation to the
incident. At trial , the prosecution presented expert testimony on criminal street gangs , evidence of the defendant s ’ prior contacts with police , and certified records of
convictions of Norteño gang members as proof of a pattern of gang activity to prove the street gang enhancements. The jury acquitted the four defendants of attempted murder of E.D. and C.A. ( counts 1 and 2 , respectively ) and was deadlocked on the lesser included offense of attempted voluntary manslaughter. The jury convicted all four defendants of shooting into an occupied motor vehicle in violation of Penal Code section 246 ( count 3 ) and
found true allegations a principal used a firearm ( § 12022.53 , subds. ( c ) & ( e)(1) ) and that the offense was committed for the benefit of a criminal street gang ( former § 186.22 , subd. ( b)(1)(C)). The jury was deadlocked as to all four defendants on count 4 , crimina l street gang conspiracy in violation of section 182.5. The jury convicted Lopez and Perez of battery in violation of section 242 in count 5 and found the offense was committed for the benefit of a criminal street gang ( former § 186.22 , subd. ( b)(1)(C)). The jury convicted Lopez of possession of a firearm by a convicted felon in violation of section
29800 , subd ivision ( a)(1 ) ( count 6). (Undesignated statutory references are to the Penal Code.)3

.

Nava argues the court erred in imposing both the firearm enhancement and the gang enhancement even though it stayed the former. He further challenges the validity of the gang enhancement and firearm enhancement under Assembly Bill No. 333 (2021

– 2022 Reg. Sess.) (Assembly Bill 333), which , in part , amended the language of section 186.22 to modify the showing necessary to sustain a gang enhancement. Nava asserts the changes enacted by Assembly Bill 333 are retroactive and , accordingly , his gang
enhancement should be reversed and retried under the new requirements of section
186.22

. We agree Assembly Bill 333 applies retroactively and Nava is entitled to reversal of his gang enhancement and firearm enhancement on that basis. In all other respects , we affirm the judgment.
FACTUAL BACKGROUND February 3

, 2018 Incident In the evening of February 3 , 2018 , E.D. was at a convenience market with his girlfriend C.A.; E.D. was wearing a navy blue shirt. They met E.D. ’ s parents for dinner.
E.D. testified Nava and hi s codefendant Ramos approached E.D. when he was at the register checking out , though other evidence introduced suggested Ramos did not enter
the store. 1 Nava said , “ ‘ What ’ s up Ene? ’ ” E.D. smiled and said “ What ’ s up? ” E.D. walked out of the store toward his car; Lopez and Perez followed him and said , “ ‘ Fuck
Sur trece. ’ ” E.D. understood the statement to mean “ disrespect toward the Southerner

gang. ” E.D. testified all four defendants continued to holler disrespectful S outhern gang
slurs while E.D. and C.A. walked toward his car. E.D. and C.A. got in the car and reversed; E.D. saw Nava and Ramos talking to his mother as she was trying to get in her

car. E.D. testified his car had a Los Angeles Dodgers logo decal on it; he and C.A.

1 C.A. identified Nava and Lopez as the individuals who approached E.D. inside the store and Perez and Ramos as the individuals who approached when they were outside the store. Officer Michael Elliot also testified the video surveillance footage did not dep ict Ramos entering the store at any time

.4

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denied any gang involvement. E.D. rolled his window down halfway to tell them he did not want any problems but , before he could , Lopez and Perez threw drinks into E.D. ’ s

car. Lopez then grabbed and scratched E.D. ’ s neck; Perez tried to grab E.D. , too. E.D.
drove off. He saw Lopez and Perez running to their car , a black four

- door sedan , as he
left. He told C.A. to call 911 as he turned onto the road from the driveway. He could see
the defendants ’ car in his rear view mirror as they exited from the same driveway

. E.D. got in the far right lane. The defendants pulled up behind E.D. ’ s car and then next to it. E.D. then heard glass breaking , tires screeching , and two gunshots ; he felt the impact of a bullet on his car

. E.D. and C.A. saw the rear passenger side window of the
defendants ’ car rolled down. E.D. drove back to the convenience market and he and C.A. waited for the police

. The manager of the convenience market gave the police the surveillance videos from that day. Officer Elliot identified Ramos , Perez , Nava , and Lopez in the video
shown at trial

. Gang Expert Testimony
Before trial , Perez moved to bifurcate the gang allegations. The court noted it would treat the objection as a joint challenge by all the defendan ts. The court considered the motion and tentatively denied it because the gang allegations and underlying charges overlapped. The prosecutor argued the gang evidence was intertwined with the charges , motive , and intent and substantive evidence of it woul d come in with regard to the section 182.5 charge. The court noted it intended to allow the gang expert to testify about the foundational components and opinions regarding the gang allegations and asked for comments from the parties; no objections or comm ents were made. The court explained to the prosecutor that , with the Sanchez [ People v. Sanchez (2016) 63 Cal.4th 665] issue , she was going to have to “ prove

... up individually ... with witnesses. ”
Officer Joel Arjona , who was assigned to the Tulare Area Re gional Gang Enforcement Team in February 2018 , testified as a gang expert. He discussed his5

.

experience working with gangs and how the Norteño and Sureño gangs are structured. He explained both gangs have symbols and signs they use to reflect their affili ation.

Norteño gang members associate with the number 14 and the color red. They use the
h uelga bird as a symbol of the gang. Sureño members use the color blue to represent the gang and associate with the number 13. Arjona explained the Norteño gang de rives from the prison gang Nuestra Familia. L ocal street gang members of the Norteño gang report to an individual called a “ channel. ” The “ channel ” then reports up to a member of Nuestra Familia who is in charge of the county. He testified Norteño members pay

“ taxes ” that are used for the benefit of the gang. T he Norteño gang has different cliques
or subsets that all identify with the color red and the number 14. M embers of different subsets work together , communicate with on e another , commit crimes together , and share information and weapons. He discussed the subset North Side Visa Boys ( or NSVB ) and explained the symbols and tattoos they use to identify themselves. He stated a ll NSVB members are in Tulare County

. He expla ined what he deemed to be “ primary activities of the Norte ñ o gang ” based on his investigations and reports and from speaking to other officers and gang
members. T he primary activities are a lot of crimes , 33 of which the Penal Code
considers “ gang crimes. ” The list of gang crimes includes , but is not limited to , auto theft , possession of firearms , murder , attempted murder , assault , assault with deadly

weapons , kidnappings , burglary and vandalism

. Officer Arjona testified regarding two specific predicate crimes. He discussed the murder of John Hernandez committed by Norteño gang members Jacob Robles and Julian
Gonzale z at the direction of Joe Dominguez , another gang member , on May 19 , 2010. Officer Arjona was familiar with the case through his research. C ounsel for Nava objected on “ foundation ” grounds when the prosecutor asked whether Officer Arjona had an opinion as to whether the murder fits “ the pattern of Norte ñ o street gang activity ... in Tulare County. ” The court overruled the objection. Based on his training and6

.

experience , speaking with other officers , and reading reports , Officer Arjona testified he believed gang member Joe Dominquez directed the two other gang members to kill the
victim , who was a gang dropout. The prosecutor then i ntroduced a certified copy of the
murder conviction from that case , People v. Julian Gonzale z , No. VCF241993 , conviction date May 15 , 2012

. Officer Arjona then testified regarding an attempted murder that occurred at the Visalia Mall on January 27 , 2012 , by Adrian Esquer and Anthony Hanson. Arjona was not on duty at the time but he researched the incident after the fact and “ it was a gang
crime. ” B ased on his conversations with the primary detective , study of the case , and
review of the contacts of the s uspects involved , Arjona concluded the individuals
involved were “ gang members and that this was an intimidation shooting against a rival gang member. And a person who was caught in crossfire was also struck. ” He further opined the offense fits within the pattern of Norteño street gang activity in Tulare County. The People then introduced the certified conviction packet for People v. Adrian Esquer , No

. VCF263049B for convictions of attempted murder and assault with a
firearm , conviction date of January 3 1 , 2014

. Arjona testified he reviewed contacts law enforcement had with Nava. Based upon his evaluation of set gang criteria , Officer Arjona testified , based upon his knowledge , training , experience , and invest igation of the case , he believed Nava was a

Norte ñ o gang member on February 3 , 2018 , when the shooting at E.D. and C.A.
occurred. He explained it was not common to see someone who associates with Sure ñ os

to start associating with Norte ñ os. T he fact Nava and his family moved from Dinuba to
Visalia could have affected his affiliation

. Prior Contacts Officer Dirk Alfano conducted a field interview with Nava on February 24 , 2010.
Nava stated he affiliated with a sub set of a Sure ñ o gang out of Dinuba called Brown7

.

Pride Mexican. Nava had a “ BPM ” tattoo on his chest. He reported that his brother , with
who m Nava did not get along , was a Norte ñ o

. On April 13 , 2010 , officer Josh Speer conducted a field interview with Nava after learning Nava had thrown items , including a rock , at a security guard at the juvenile counseling center. Speer testified Nava identified himself as a Sure ñ o from Dinuba

. In December 2010 , Officer Ge orge Weaver contacted Nava at his home and conducted a probation search. Nava denied any gang affiliation

. On February 9 , 2013 , Officer Alfano encountered Nava again after initiating a traffic enforcement stop of a speeding car ; the car eventually stop pe d in front of Nava ’ s house after running three stop signs

. Nava was driving the car; Norte ñ o associates Ryan R. and Christian C. were in the backseat. Officer Alfano testified , based upon his knowledge , training , and experience in the gang unit , he knew Nava to be a Norteño gang member at that time

. Officer Michael Elliot also testified regarding his prior contacts with Nava. In the evening of February 9 , 2013 , Officer Elliot responded to a disturbance at Nava ’ s house. Family members and gang members were present including North Side Visa Boy s members Christian C. and Cixto M

. On April 11 , 2017 , Officer Elliot was involved in an investigation into a shooting
that occurred at Nava ’ s house between Nava ’ s brother and seve ral members of the Oriental Troop s treet gang. Nava ’ s brother was arrested and police searched the house; Nava was present at the time. Officer Elliot described Nava ’ s house as a “ frequent

Norteño hangout. ” He had encountered “ different sets of Norteño gangs or gang members at that house, ” including individuals from North Side Varrio Locos , Youngsters , North Side Visa Boys , and North Side Visa. Detective Jacob Soren se n executed a search warrant at the house. He , too , encountered Nava. Nava informed hi m there were two firearms in his room ( the firearms were registered). Nava denied being an active gang member but reported he affiliated with Norte ñ os

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The People also introduced testimony about the other codefendants ’ prior contact s with law enforcement , focusing on incidents that had gang

- related circumstances

. Verdict and Sentencing The jury acquitted all four defendants of attempted murder of E.D. and C.A. ( counts 1 and 2 , respectively ) and was deadlocked on the lesser included o ffense of attempted voluntary manslaughter. The jury convicted all four defendants of shooting into an occupied motor vehicle in violation of section 246 ( count 3 ) and found true allegations a principal used a firearm ( § 12022.53 , subds. ( c ) & ( e)(1) ) and that the offense was committed for the benefit of a criminal street gang ( former § 186.22 , subd. ( b)(1)(C)). The jury was deadlocked as to all four defendants on count 4 , criminal street gang conspiracy in violation of section 182.5. The jury convicted Lopez and Perez of battery in violation of section 242 in count 5 and found the offense was committed for the benefit of a criminal street gang ( former § 186.22 , subd. ( b)(1)(C)). The jury convicted Lopez of possession of a firearm by a
convicted felon in violation of section 29800 , subd ivision ( a)(1 ) ( count 6). On February 26 , 2020 , the court sentenced Nava to 15 years to life in prison for

count 3. DISCUSSION

I. Nava I s Entitled to Reversal of His Gang Enhancement Under Assembly Bill 333 In supplemental briefing , Nava argues the imposed criminal street gang enhancement must be reversed as a result of changes made to section 186.22 by the recent enactment of Assembly Bi ll 333. The People agree. We also conclude Nava is entitled to reversal of his gang enhancement under Assembly Bill 333

. A. Assembly Bill 333
While Nava ’ s appeal was pending , the Legislature enacted Assembly Bill 333 , the
STEP Forward Act of 2021 , whic h , in part , amends section 186.22 to impose new9

.

substantive and procedural requirements for gang enhancements. The Legislation went into effect on January 1 , 2022

. First , Assembly Bill 333 amended the definition of a “ ‘ criminal street gang, ’” requiring p roof that the gang is an organized association , whose members collectively

engage in , or have engaged in , a pattern of criminal activity ( § 186.22 , subd. ( f)). Next , the law created a stricter requirement for proof of “ a pattern of criminal gang activity, ” which is necessary to prove that the group with which the defendant is associated is indeed a criminal street gang. ( See § 186.22 , subd s

. ( e )

– (f)

. ) Previously , the prosecution needed to prove only that those associated with the gang had committed at least two offenses from a list of predicate crimes on separate occasions within three years of one
another. ( See former § 186.22 , subd. ( e). ) Under the newly amended l aw , the offense with which the defendant is currently charged cannot be used as one of the two predicate
offenses. ( § 186.22 , subd. ( e)(2). ) In addition , both predicate offenses must have been
committed “ within three years of the date the current offense is alleged to have been committed, ” by gang “ members, ” and must have been for the “ common[] benefit[] [of] a criminal street gang. ” ( § 186.22 , subd. ( e)(1). ) Assembly Bill 333 also narrowed the list
of offenses that may be used to establish a pat tern of criminal gang activity ( compare former § 186.22 , subd. ( e)(1)

– (33 ) with current § 186.22 , subd. ( e)(1)(A)

– (Z)). Additionally , it defines “ to benefit , promote , further , or assist ” throughout section 186.22

to mean “ to provide a common benefit to me mbers of a gang where the common benefit
is more than reputational. ” ( Id

. , subd. ( g). ) The legislation notes examples of a common benefit that are more than reputational “ may include , but are not limited to , financial gain

or motivation , retaliation , targeting a perceived or actual gang rival , or intimidation or silencing of a potential current or previous witness or informa nt

. ” ( Ibid .) Finally , Assembly Bill 333 adds section 1109 , which requires gang enhancements charged under section 1 86.22 , subdivision ( b ) or ( d ) to be tried separately from the underlying charges upon request from the defense. ( Stats. 2021 , ch. 699 , § 5. ) Section10

.

1109 also requires the substantive offense of active participation in a criminal street gang ( § 186.22 , subd. ( a) ) to be tried separately from all other counts that do not require gang
evidence as an element of the crime

. B. The Amendments to S ect ion 186.22 Apply Retroactively and Nava is Entitled to Reversal of H is Gang Enhancement
First , the parties agree Assembly B ill 333 ’ s amendments to section 186.22 that alter the substantive requirements necessary to prove a gang enhancement operate

retroac tively. Because the legislation increased the evidentiary burden necessary to prove

a gang

- related enhancement , we agree it was an ameliorative change in the law that appl ies retroactively to cases not yet final on appeal

. Ordinarily , “ a new statute is p resumed to operate prospectively absent an express declaration of retrospectivity or a clear indication that the electorate , or the Legislature , intended otherwise. ” ( Tapia v. Superior Court ( 1991 ) 53 Cal.3d 282 , 287 ( Tapia ). )

However , in In re Estrada ( 1965 ) 63 Cal.2d 740 ( Estrada ) , our Supreme Court recognized an exception to this rule. The court explained that “ [w]hen the Legislature
amends a statute so as to lessen the punishment it has obviously expressly determined
that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be suf

ficient should apply to every case to which it constitutionally could apply. The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting
the defendant of the act is not final. This intent seems obvious , because to hold otherwise
would be to conclude that the Legislature was motivated by a desire for vengeance , a conclusion not permitted in view of modern theories of penology. ” ( Id

. at p. 745.)

In subsequent year s , the California Supreme Court has applied this doctrine broadly “ to statutes changing the law to the benefit of defendants. ” ( Tapia , supra , 5311

.

Cal.3d at p. 301; see generally People v. Frahs ( 2020 ) 9 Cal.5th 618 , 631

– 632 [pretrial diversion statute is retroactive because it provides possible benefit to class of criminal
defendants , does not contain express savings clause , and Legislature did not signal its
intent to overcome Estrada inference]; People v. Superior Court ( L ara ) (2018) 4 Cal.5th
299 , 309 [ “ Proposition 57 is an ‘ ameliorative change[] to the criminal law ’ that we infer the legislative body intended ‘ to extend as broadly as possible ’” ]

. )

Most relevant to this case , the Supreme Court in Tapia held the presumption of retroactivity applies to laws that change the substantive requirements for an enhancement
in a defendant ’ s favor. ( See Tapia , supra , 53 Cal.3d at pp. 300

– 301. ) In Tapia , the
electorate had recently passed an initiative requiring proof of i ntent to kill for certain special circumstance allegations. ( Ibid

. ) Because the initiative “ redefine[d] , to the
benefit of defendants , conduct subject to criminal sanctions, ” the court held the initiative applied retroactively. ( Id. at p. 301

. )
Like in Tapia , because Assembly Bill 333 ’ s substantive changes to section 186.22

“ redefine , to the benefit of defendants , conduct subject to criminal sanctions, ” these changes apply retroactively to all cases

— like Nava’ s

— in which the judgment of conviction is not yet final. ( Tapia , supra , 53 Cal.3d at p. 301 ; accord , People v. Sek ( 2022 ) 74 Cal.App.5th 657 , 667 [concluding Assem

. Bill 333 ’ s amendments to § 186.22

“ ‘ redefine [ d ] , to the benefit of defendants , conduct subject to criminal sanctions ’ [ c itation] , and it therefore applies retroactively under Estrada ” ]; People v. E.H

. ( 2022 ) 75 Cal.App.5th 467 , 478 [similar]; see People v. Lopez ( 2021 ) 73 Cal.App.5th 327 , 344 [concluding substantive changes in Assem

. Bill 333 apply retroactively because they

“ increase[] the threshold for conviction of the section 186.22 offense and the imposition
of the enhancement ” ]; People v. Rodriguez ( 2022 ) 75 Cal.App.5 th 816, 822 [same]. )
And here , it is undisputed Nava is entitled to reversal of the gang enhancement on this basis; that is , neither party argues , nor can we conclude , the evidence presented at trial was sufficient to sustain the gang enhancement under th e revised requirements of12

.

section 186.22. At trial , the prosecution introduced evidence of two cases committed in 2010 and 2012 as evidence of the predicate offenses necessary to establish a pattern of criminal gang activity. Neither predicate offense oc curred within three years of the date the currently charged offense was committed

— February 3 , 2018

— as required by
amended section 186.22. ( § 186.22 , subd. ( e)(1). ) Excluding evidence of these offenses , the existing record is insufficient to support the heightened evidentiary requirements set forth by amended section 186.22 following the enactment of Assembly Bill 333. As a result , the criminal gang enhancement applied

to Nava ’ s sentence must be reversed. However , the People are not foreclos ed from retrying Nava o n the gang enhancement upon remand under the new requirements of
amended section 186.22

. Put differently , “ ‘ [b]ecause we do not reverse based on the insufficiency of the evidence required to prove a violation of the statute as it re ad at the
time of trial , the double jeopardy clause of the Constitution will not bar a retrial. ’ ” ( People v. Sek , supra , 74 Cal.App.5th at p. 669; accord, P eople v. Figueroa ( 1993 ) 20 Cal.App.4th 65 , 72 [ “ Where , as here , evidence is not introduced at trial because the law

at that time would have rendered it irrelevant , the remand to prove that element is proper and the reviewing court does not treat the issue as one of sufficiency of the evidence ” ];

see People v. Eagle ( 2016 ) 246 Cal.App. 4th 275 , 280 [ “ When a statutory amendment
adds an additional element to an offense , the prosecution must be afforded the opportunity to establish the additional element upon remand ” ].) In so concluding, we reject Nava ’s argument that because the introduce d evidence of the predicate crimes i s no longer sufficient to establish a pattern of criminal gang activity under the amended
statute, the People should be barred from retrying him and introducing additional
evidence to prove the predicate offenses within the parameters of the new law. (See People v. Figueroa , supra , at pp. 71

– 72 & fn. 2 [remand appropriate to allow prosecution to establish additional element retroactively added by statutory amendment; no violation
of the double jeopardy clause or constitutional restrictions against ex post facto13

.

legislation]; accord People v. Lopez , supra , 73 Cal.App.5th at pp. 346

– 348 [vacating enhancements in light of A ssem. B ill 333 and remanding for limited retrial]; People v. Vasquez (2022) 74 Cal.App.5th 1021 , 1033 [same].)

II. Nava ’ s Firearm Enhancement Must be Reversed In his opening brief , Nava asserted the court should have struck instead of stayed
the section 12022.53 gang

- related firearm enhancement. In his supplemental brief , Nava argues this firearm enhancement should be reversed under Assembly Bill 333. We conclude this gang

- related enhancement must also be reversed because of our reversal of
the section 186.22 , subdivision ( b ) enhancement.
A. Standard of Review and Applicable L aw Section 12022.53 provides for sentence enhancements for persons convicted of certain enumerated felonies who use a firearm during the commission of the crime. A
violation of section 246 is not one of the felonies enumerated in subdivision ( a) of secti on 12022.53

. However , a section 12022.53 enhancement may apply under subdivision ( a)(17 ) of that section , where the penalty has been elevated to a life term through application of an alternate penalty provision. ( People v. Jones ( 2009 ) 47 Cal.4th 566 , 56 9 , 579 ; accord , People v. Brookfield ( 2009 ) 47 Cal.4th 583 , 590

– 591. )
Section 12022.53 , subdivision ( e)(1 ) extends liability to aiders and abettors where

“ the prosecution has both ‘ pled and proved ’ that the defendant committed a felony on behalf of a street gang ( see

... § 186.22) and that a ‘ principal in the offense committed any act specified in subdivision ( b) , ( c) , or ( d) ’

— that is , an act that would trigger a
firearm enhancement had the defendant committed th at act personally. ( § 12022.53(e)(1).) ” ( People v. Anderson ( 2020 ) 9 Cal.5th 946 , 953. ) Section 12022.53 , subdivision ( e)(2 ) states:

“ An enhancement for participation in a criminal street gang pursuant to Chapter 11 ( commencing with section 186.20 ) of Title 7 of Part 1 sh all not be imposed on a person in addition to an enhanc e ment imposed pursuant to14

.

this subdivision , unless the person personally used or personally discharged a firearm in the commission of the offense. ”

In Brookfield , the California Supreme C ourt held “ the trial court may not impose
the sentence enhancement under section 12022.53 in addition to a life term under section 186.22(b)(4). ” ( People v. Brookfield , supra , 47 Cal.4th at p. 592. ) Rather , a defendant
who was an accomplice to a gang

- related offense specified in section 12022.53 in which , as here , another principal , not the defendant , personally used or discharged a firearm is

“ subject to additional punishment under either section 12022.53 or the gang

- related

se ntence increases under section 186.22 , but not both

. ” ( Brookfield , at p. 594. ) The Brookfield court relied upon section 12022.53 ’ s subdivision ( j ) in determining the trial court should have imposed the greater penalty ( the life term under § 186.22 , subd. (b)(4) ) , rather than the lesser punishment ( the 10

- year sentence enhancement under § 12022.53 ’ s subds

. ( b ) & ( e)(1)). ( Brookfield , at p

. 596

. ) That provision states in part: “ When an enhancement specified in this section has been admitted or found to be true , the court shall impose punishment for that enhancement pursuant to this section rather than imposing punishment authorized under any other provision of law , unless another enhancement provides for a greater penalty or a longer term of imprisonment

. ” ( § 12022.53, subd. (j), i talics added. ) Because the Brookfield court held the trial court erred in sentencing the defendant to both the life term under section 186.22 , subdivision (b)(4 ) and the 10

- year sentence enhancement under subdivisions ( b ) and ( e)(1 ) of section
12022.53 , it affirmed the decision of the Court of Appeal striking the 10

- year sentence enhancement. ( People v. Brookfield , supra , 47 Cal.4th at p. 597.)

In People v. Gonzale z ( 2008 ) 43 Cal.4th 1118 ( Gonzale z ) , the California Supreme
Co urt concluded the word “ impose ” used throughout section 12022.53 “ must be interpreted as shorthand for ‘ impose and then execute ’ to make sense. ” ( Gonzale z , at p. 1127. ) The Gonzale z court rejected an interpretation of section 12022.53 , subdivision ( f)

— which prohibits the imposition of enhancements pursuant to certain other sections in addition to an enhancement imposed pursuant to that section

— “ that would have the trial15

.

court strike , rather than stay , the prohibited firearm enhancements. ” ( Ibid

. ) The court explained , this is “ because the rules of statutory construction mandate that we interpret the statute in a manner that does not create unnecessary disharmony between subdivision ( f ) and subdivision ( h ) of section 12022.53. ” ( Id . at p p. 1127

– 1128. ) The Gonzale z court noted , requiring a court to strike rather than stay the prohibited enhancements would

“ mak [ e ] it more difficult , if not impossible , to impose and execute the term of imprisonment for an initially prohibited firearm enhanc ement in the event the section 12022.53 enhancement with the longest term of imprisonment is invalidated on appeal. ” ( Id . at p. 1128.)

B. Analysis

Nava argues the court erred , pursuant to section 12022.53 , subdivision ( e)(2) , in imposing and staying the firearm enhancement. He argues this section prohibits the imposition of both the firearm enhancement and a gang enhancement unless the
defendant was the actual shooter. The People respond the court did not err in imposing
and staying the firearm enhancement , relying on Gonzale z , supra , 43 Cal.4th 1118 , but they agree Nava is entitled to reversal of this enhancement under Assembly Bill 333. They further contend the prosecution should be afforded an opportunity to retry this

ga ng

- related enhancement. We conclude Nava is entitled to reversal of this enhancement
under Assembly Bill 333.

W e have already concluded Nava ’ s gang enhancement imposed pursuant to section 186.22 must be reversed. Because the imposed section 12022.53 enh ancement applied to Nava under subdivision ( a)(17 ) of that section only because his penalty had been elevated to a life term through application of the alternate penalty provision provided for in section 186.22 , the section 12022.53 enhancement is no longe r supported. Additionally, because the section 12022.53 enhancement depends on a finding the principal violated section 186.22, subdivision (b), and we vacate that finding as discussed

ante , the changes to section 186.22 made by Assembly Bill 333 require that the imposed16

.

firearm enhancement must be vacated. (See People v. Lopez , supra , 73 Cal.App.5th at p. 34 8 [vacating firearm enhancement based on gang

- related enhancement findings in light
of A ssem. B ill 333 and remanding for limited retrial]; People v. Vasquez , supra , 74 Cal.App.5th at p. 1033 [same].) On remand , the prosecution may also seek to retry this

gang

- related enhancement. Because we strike the enhancement on other grounds , we do
not address Nava ’ s arguments further.
DISPOSITION

T he section 186.22 , subdivision ( b ) gang enhancement and the section 12022.53
firearm enhancement are reversed . The matter is remanded to the trial court for further proceedings. The Peopl e shall have 60 days from the date of the remittitur in which to file an election to retry Nava on these enhancements. If the People elect not to retry him , the trial court shall modify the judgment by striking the enhancements and shall

resentence Nava a ccordingly. Following the conclusion of proceedings , the court shall amend the abstract of judgment in a manner consistent with this disposition and forward copies of the amended abstract to the appropriate law enforcement and custodial officials.
In all other respects , the judgment is affirmed.

PEÑA, Acting P. J. WE CONCUR:

SMITH, J.

DE SANTOS, J.