Filed 9/12/22 P. v. Guzman CA2/8

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

GUSTAVO GUZMAN,

Defendant and Appellant.

B303524

(Los Angeles County

Super. Ct. No. BA400013-01)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, George G. Lomeli, Judge. Convictions and 

non-gang-related enhancement affirmed; gang-related

enhancements and gang-related special circumstance vacated 

and remanded for a new trial.

Stephen M. Vasil, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Kenneth C. Byrne, Jr. and David A. Wildman, 

Deputy Attorneys General, for Plaintiff and Respondent.

_______________________
2

Gustavo Guzman was convicted of the first degree murders 

of Steven Robinson, Aric Lexing, and Scott Grant (Pen. Code, 

§ 187)1 and sale of methamphetamine (Health & Saf. Code, 

§ 11379, subd. (a)), with associated enhancements and special 

circumstances found true. On appeal, Guzman contends: (1) the 

court should have excluded evidence obtained by an undercover 

informant; (2) the court erred in admitting evidence pertaining to 

a traffic stop of the car in which Guzman was riding shortly after 

the Lexing and Grant murders; (3) the prosecutor committed 

error by failing to disclose evidence to the court; (4) the court 

erred in excluding evidence that a weapon was used in another 

shooting; and (5) statutory changes made by Assembly Bill 

No. 333 (2021–2022 Reg. Sess.) (Stats. 2021, ch. 699) require 

reversal of all gang enhancements, gang-murder special 

circumstances, and gang-related firearm enhancements. We 

affirm the convictions, but vacate the gang-related special 

circumstance and enhancement findings and remand for further 

proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Robinson was shot to death on March 9, 2007; Grant and 

Lexing were shot to death on July 20, 2007. The killings took 

place near the territory of the 18th Street gang, and the .45 

caliber bullets that struck Robinson, Lexing, and Grant were 

fired from the same handgun.

The crimes went unsolved for several years, until an FBI 

informant within the 18th Street gang recorded a conversation 

between two members of 18th Street gang leadership, Guzman 

1 Undesignated statutory references are to the Penal Code.
3

and Edgar Lopez. Guzman and Lopez reminisced about two 

shootings they had carried out, and they provided enough detail 

about the crimes and subsequent events to permit the Los 

Angeles Police Department to determine upon further 

investigation that Guzman and Lopez were discussing the 

killings of Robinson, Grant, and Lexing.

Guzman was charged with the murders of Robinson 

(count 1), Grant (count 2), and Lexing (count 3), with multiple 

firearm enhancements and a gang enhancement alleged for each 

murder charge (§§ 187, 186.22, subd. (b)(1)(C), 12022.53, subds. 

(b)–(e)(1)). Two special circumstances were alleged: (1) Guzman

intentionally committed each murder while he was an active 

participant in a criminal street gang and the murder was

committed to further the activities of the gang (§ 190.2, 

subd. (a)(22)); and (2) Guzman was convicted of multiple murders 

(§ 190.2, subd. (a)(3)). Guzman was also charged with three

counts of selling methamphetamine, each with a gang 

enhancement allegation (Health & Saf. Code, § 11379, subd. (a), 

§ 186.22, subd. (b)(1)(A)) (counts 6, 7, and 8). Finally, the 

indictment charged Guzman with two counts of possession of a 

firearm by a felon, again with gang enhancement allegations

(§§ 12021, subd. (a)(1), 186.22, subd. (b)(1)(A)) (counts 9 and 10).

For all counts, the indictment alleged Guzman had previously 

been convicted of robbery (§ 211), which qualified both as a prior 

strike offense (§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)) and a 

prior serious felony (§ 667, subd. (a)(1)).

Before trial, Guzman pleaded no contest to the firearm 

possession counts and admitted the associated enhancement 

allegations.
4

With the exception of count 8, on which the jury was unable 

to reach a verdict, the jury convicted Guzman on all counts and

found true both special circumstances and all allegations of the 

indictment. The court declared a mistrial on count 8.

Although the prosecution sought the death penalty, the 

jury was unable to agree on a penalty determination, leading the 

court to declare a mistrial on the penalty phase. The prosecution 

elected not to retry the penalty phase. For each of the three 

murders, the trial court imposed consecutive sentences of life in 

prison without the possibility of parole, plus 25 years to life for 

the firearms enhancement. For the remaining counts on which 

Guzman was found guilty, the court imposed a total determinate 

term of 16 years, 8 months. The court dismissed count 8 and 

struck the prior serious felony enhancement for all counts. 

Guzman appeals.

DISCUSSION

I. Statements to Undercover Informant

On January 27, 2010, a conversation among Guzman, 

Lopez, and others was recorded by a confidential informant 

within Guzman’s gang who had been sent to Guzman’s residence 

by an FBI agent as part of an interagency investigation of the 

gang and its connections to the Mexican Mafia. On the covert 

recording, Guzman and Lopez reminisced about two shootings 

they had committed, and they spoke in sufficient detail to permit 

the Los Angeles Police Department to determine they were 

discussing the killings of Robinson, Grant, and Lexing.

In several motions, Guzman moved to suppress the 

recorded statements on the ground they were obtained in 

violation of the Fourth Amendment to the United States 
5

Constitution. In 2014, the trial court conducted a hearing on the 

motion. The evidence before the court was that the property 

where the recording took place contained a front structure, an 

attached smaller back structure, and a detached garage. The 

confidential informant’s family lived in the front house.

Guzman’s girlfriend lived in the back structure, and the court 

assumed for purposes of the motion that Guzman lived there as 

well. Whether the confidential informant lived at the property 

was contested, but the informant had at least one car parked at 

the property, he kept his weights in the garage, and he identified 

the front house as his home on several occasions.

The confidential informant recorded conversations while in 

the detached garage with Guzman and Lopez. The FBI’s 

understanding was that the informant and his family had access 

to the garage and the family dogs lived in the garage. On the 

recording, both Guzman and the informant made reference to the 

house being the informant’s house. Guzman purchased beer for 

the group, and he and the informant agreed the informant would 

contribute money for the beer, which the informant then did. The 

informant suggested the participants in the conversation enter

the garage, and Guzman agreed, saying he would talk to them 

about his court appearance earlier that day. The men went into 

the garage, and Guzman and the informant then discussed 

whether they should lock others out of the garage. During the 

gathering in the garage, Guzman and Lopez made statements 

tending to incriminate themselves in several murders with 

details matching the murders of Robinson, Grant, and Lexing.

The trial court did not make a finding as to whether the 

informant resided on the property and thus had a right to be in 

the garage. Instead, the court found that even if the informant 
6

did not have the right to be in the garage, Guzman, who was a 

resident of the property, had permitted the informant to remain 

in the garage without objection and had therefore implicitly 

consented to his presence there. The court explained, “Courts 

have long recognized that no privacy interest exists when one 

voluntarily reveals certain information to a government agent, 

whether said statements be recorded or not. [¶] That Mr. 

Guzman may have had a misplaced belief that [the confidential 

informant], to whom he voluntarily revealed information, would 

not violate his confidence and/or trust is a risk that he assumed.”

The court denied Guzman’s motion to suppress the recorded 

statements.

Guzman contends his murder convictions should be 

reversed because his recorded incriminating statements were 

obtained in violation of the Fourth Amendment. We review the 

court’s factual findings for substantial evidence, but exercise our 

independent judgment in determining the legality of the search 

on the facts so found. (People v. Tully (2012) 54 Cal.4th 952, 979

(Tully).)

The Fourth Amendment guarantees the right to be secure 

in one’s person, houses, papers, and effects against unreasonable 

searches and seizures by the government, and the California 

Constitution also protects against unreasonable government 

searches. (U.S. Const., 4th Amend.; Cal. Const., art. I, § 13.) 

Both state and federal claims are measured by the same 

standard. (People v. Camacho (2000) 23 Cal.4th 824, 829–830.) 

Central to the Fourth Amendment analysis is whether a person 

has a constitutionally protected reasonable expectation of 

privacy; that is, “a subjective expectation of privacy in the object 

of the challenged search [that] society [is] willing to recognize . . . 
7

as reasonable.” (California v. Ciraolo (1986) 476 U.S. 207, 211.) 

Using equipment to hear confidential communications that are 

inaudible to the unaided ear generally violates reasonable 

expectations of privacy; however, when communications are not 

confidential, this rule does not apply. (People v. Henderson (1990) 

220 Cal.App.3d 1632, 1643–1644; United States v. White (1971) 

401 U.S. 745, 751; People v. Phillips (1985) 41 Cal.3d 29, 53

(Phillips).) “[A] defendant cannot look to the law to redeem him 

from the untrustworthiness of a friend who may be a government 

informant, and who records or transmits their private 

conversations.” (Henderson, at pp. 1652–1653.) As the Supreme 

Court has explained, “[H]owever strongly a defendant may trust 

an apparent colleague, his expectations in this respect are not 

protected by the Fourth Amendment when it turns out that the 

colleague is a government agent regularly communicating with 

the authorities,” and “[i]f the conduct and revelations of an agent 

operating without electronic equipment do not invade the 

defendant’s constitutionally justifiable expectations of privacy, 

neither does a simultaneous recording of the same conversations 

made by the agent or by others from transmissions received from 

the agent to whom the defendant is talking and whose 

trustworthiness the defendant necessarily risks.” (White, at 

pp. 749, 751; see also Hoffa v. United States (1966) 385 U.S. 

293, 302 (Hoffa).)

Guzman has not established a violation of the Fourth 

Amendment. Substantial evidence supported the court’s 

conclusion that Guzman impliedly consented to the informant’s 

presence. Guzman voluntarily accompanied the informant into 

the garage, where they pooled money for the beers they shared 

and engaged in group conversation about a wide range of 
8

subjects. Guzman spoke directly to the informant and knowingly 

carried on conversations in his presence. Guzman did not tell the 

informant to leave, nor did he take any steps to exclude or 

remove the informant. Because Guzman impliedly consented to 

the informant’s presence, he did not have a legitimate 

expectation that statements he made in the informant’s presence 

would be kept confidential. The Fourth Amendment does not 

protect a person’s “misplaced belief that a person to whom he 

voluntarily confides his wrongdoing will not reveal it.” (Hoffa, 

supra, 385 U.S. at p. 302 [finding no interest protected by the 

Fourth Amendment where the defendant made incriminating 

statements to an informer who was in the defendant’s hotel suite

by invitation and heard conversations directed to him or 

knowingly carried on in his presence].) As the California 

Supreme Court has explained, “There is simply no constitutional 

principle that prohibits the recipient of a confidence from 

breaching the trust reposed in him not to disclose it to others, 

including the police.” (Phillips, supra, 41 Cal.3d at p. 53.) 

Because Guzman had no reasonable expectation of privacy in the 

conversations he carried out with and in the presence of the 

informant, there was no Fourth Amendment violation here. (See 

People v. Pride (2019) 31 Cal.App.5th 133, 141 [“long-standing 

United States Supreme Court precedent hold[s] the Fourth 

Amendment affords no protection for voluntary communications 

with individuals who are secret government informers or 

agents”].)

Guzman argues that these Fourth Amendment principles 

apply only when the government has a reasonable suspicion that 

the target is engaged in criminal activity. Neither the California 

courts nor the United States Supreme Court has imposed any 
9

such requirement, and, moreover, the government had 

reasonable suspicion that gang shot-caller Guzman was engaged 

in criminal activity: an FBI agent testified the informant was 

dispatched with recording equipment by an interagency task 

force on violent crimes in the course of an investigation of the 

gang and its connections to the Mexican Mafia pursuant to the 

federal Racketeer Influenced and Corrupt Organizations Act

(RICO). Guzman also raises a series of arguments about whether 

the informant had actual or apparent authority to consent to a 

search and whether the informant’s authority was valid or 

invalid, but these arguments are irrelevant because the basis of 

the court’s ruling was not the informant’s authority or the 

validity of the informant’s consent to a search; it was Guzman’s 

consent to the informant’s presence. Finally, Guzman urges us to 

abandon the undercover informant line of cases based on trends 

in constitutional jurisprudence, the overcriminalization of 

everyday life, and developments in constitutional historiography.

We are bound by the decisions of the California Supreme Court 

and the United States Supreme Court. (Auto Equity Sales, Inc. v. 

Superior Court (1962) 57 Cal.2d 450, 455.)

II. Evidence Relating to the Traffic Stop

Lopez and Guzman were stopped by a sheriff’s deputy near 

the location of the killings shortly after they shot Grant and 

Lexing. Guzman moved to suppress evidence of the stop. The 

trial court denied the motion to suppress on multiple grounds, 

one of which was that the traffic stop had a lawful basis: the 

vehicle’s headlights were off in the middle of the night.
10

Guzman argues the court erred in ruling the traffic stop 

was lawful because its finding that the stop was based on the 

vehicle’s lights being off was not supported by substantial 

evidence. He notes the deputies involved in the traffic stop did 

not recall details of the stop when they were questioned in 2011, 

argues the sheriff’s department’s records from the stop did not 

support the inference that the stop was based on Guzman driving 

with his lights off, and claims the testimony of two deputies at 

the suppression hearing failed to establish reasonable suspicion 

for the traffic stop.

We previously considered the trial court’s ruling on this

motion to suppress in the case of Guzman’s codefendant, Lopez, 

who joined in Guzman’s motion, and we concluded the evidence 

was sufficient to support the court’s finding that the reason for 

the traffic stop was that Guzman was driving at night without 

his headlights on. (People v. Lopez (2021) 73 Cal.App.5th 327, 

338–339 (Lopez).) As we stated in Lopez, “When reviewing 

challenges to the factual findings made by the trial court at a 

suppression hearing, we defer to the superior court’s express and 

implied factual findings if they are supported by substantial 

evidence. ([Tully, supra, 54 Cal.4th at p. 979].) ‘As the finder of 

fact in a proceeding to suppress evidence [citation], the superior 

court is vested with the power to judge the credibility of the 

witnesses, resolve any conflicts in the testimony, weigh the 

evidence and draw factual inferences in deciding whether a 

search is constitutionally unreasonable.’ (People v. Woods (1999) 

21 Cal.4th 668, 673 [88 Cal.Rptr.2d 88, 981 P.2d 1019].) 

‘Accordingly, “[w]e view the evidence in a light most favorable to 

the order denying the motion to suppress” [citation], and “[a]ny 

conflicts in the evidence are resolved in favor of the superior 
11

court ruling” [citation]. Moreover, the reviewing court “must 

accept the trial court’s resolution of disputed facts and its 

assessment of credibility.” ’ (Tully, at p. 979.)

“Viewing the evidence in the light most favorable to the 

trial court’s ruling, we conclude the evidence was sufficient to 

support the court’s finding that the stop was prompted by the 

vehicle being operated at night without headlights. The deputy 

who pulled over Guzman and Lopez, Gabrielle Graves, testified 

she stopped the vehicle because it was approximately 3:00 a.m., it 

was dark outside, and the vehicle’s headlights were off. At the 

hearing, which took place nearly a decade after the traffic stop, 

the deputy testified she initially had no independent recollection 

of the stop, but her recollection had been refreshed when she 

reviewed documents. Specifically, Graves testified she had 

reviewed the testimony she had given before the grand jury and 

looked at a log that described the stop as a ‘suspicious person’

stop, and from that she was able to remember that the vehicle 

had no lights on, even though the headlights were not mentioned 

in the documents she reviewed. The trial court found Graves’s 

recollection of the reasons for the stop were ‘extremely nebulous 

and greatly suffered in terms of specificity,’ and it described her 

as ‘a horrible witness.’ However, the court rejected defendant 

Guzman’s argument that Graves had committed perjury in her 

testimony, it did not reject her testimony, and it concluded 

Graves initiated the traffic stop because the vehicle’s headlights 

were off. We ‘ “must accept the trial court’s resolution of disputed 

facts and its assessment of credibility.” ’ ” (Lopez, supra, 

73 Cal.App.5th at pp. 338–339.)
12

Guzman’s arguments do not persuade us otherwise. 

Guzman contends the trial court’s statements indicate it 

misunderstood the law concerning refreshing a witness’s 

recollection and the court improperly accepted Graves’s recitation

of the contents of a document without having personal knowledge 

of the facts being conveyed. (Frio v. Superior Court (1988) 

203 Cal.App.3d 1480, 1485, 1491–1493.) We have reviewed the 

court’s ruling and while particular phrases can be interpreted to 

support Guzman’s interpretation, it is clear overall that the court 

concluded Graves’s recollection was properly and successfully

refreshed with a document after she testified that she did not 

have an independent recollection of the stop. As the court said, 

Graves had no independent recollection; she looked at the 

document; she saw the code for the traffic stop; and “she 

remembers it.”

Guzman also argues Graves’s testimony was so inherently 

implausible and internally inconsistent that no rational trier of 

fact could have believed that she recalled stopping Guzman 

because his headlights were off. “ ‘ “ ‘To warrant the rejection of 

the statements given by a witness who has been believed by a 

trial court, there must exist either a physical impossibility that 

they are true, or their falsity must be apparent without resorting 

to inferences or deductions. [Citations.] Conflicts and even 

testimony which is subject to justifiable suspicion do not justify 

the reversal of a judgment, for it is the exclusive province of the 

trial judge or jury to determine the credibility of a witness and 

the truth or falsity of the facts upon which a determination 

depends.’ ” ’ ” (People v. Beck and Cruz (2019) 8 Cal.5th 

548, 627.) It was not physically impossible for Graves’s 

testimony to be true, nor was her testimony demonstrably false 
13

without resorting to inferences or deductions. The trial court was 

well aware of Graves’s shortcomings as a witness and put them 

on the record, but after observing Graves and listening to her 

testimony, the court did not believe she had committed perjury, 

and it believed she had stopped Guzman because his vehicle’s 

headlights were off. While another judge might have reached a 

different conclusion, the evidence before the court supported the 

court’s factual finding.

Guzman next offers a series of arguments challenging the 

sufficiency of a second deputy’s testimony to support the trial 

court’s finding. We need not address these arguments because, 

as previously discussed, the evidence provided by Graves was 

sufficient to support the court’s finding.

Finally, Guzman asserts the trial court may have declined

to consider particular sealed exhibits he attached to his motion to 

suppress, and “[a]ssuming” the court did refuse to consider the 

exhibits, such an action would have violated his right to due 

process. Guzman acknowledges the court never ruled it would 

not consider these exhibits. However, he observes that the court 

did decline to consider other exhibits he attached to his filings, 

and he speculates that the court did not consider the sealed 

exhibits because “it’s difficult to conceive” the court would have 

ruled as it did if it had considered them. We do not presume 

error from a silent record. (People v. Brown (2007) 

147 Cal.App.4th 1213, 1229.)

III. Prosecutorial Misconduct

Guzman argues the prosecutor committed misconduct 

under state and federal law in conjunction with the suppression 

hearing concerning the traffic stop. He argues the prosecutor 

knew, or should have known, that as of 2011 the deputies 
14

involved in the 2007 traffic stop had not recalled the reason for 

the stop, but the prosecutor failed to “alert the trial court to this 

evidence” in briefs or when questioning the deputies at the 

suppression hearing. “ ‘The applicable federal and state 

standards regarding prosecutorial misconduct are well 

established. “ ‘A prosecutor’s . . . intemperate behavior violates 

the federal Constitution when it comprises a pattern of conduct 

“so egregious that it infects the trial with such unfairness as to 

make the conviction a denial of due process.” ’ ” [Citations.] 

Conduct by a prosecutor that does not render a criminal trial 

fundamentally unfair is prosecutorial misconduct under state law 

only if it involves “ ‘ “the use of deceptive or reprehensible

methods to attempt to persuade either the court or the jury.” ’ ” 

[Citation.]’ [Citation.]” (People v. Hill (1998) 17 Cal.4th 

800, 819.) “A defendant’s conviction will not be reversed for 

prosecutorial misconduct, however, unless it is reasonably 

probable that a result more favorable to the defendant would 

have been reached without the misconduct.” (People v. Crew

(2003) 31 Cal.4th 822, 839 (Crew).)

It is not reasonably probable Guzman would have received 

a more favorable result without the alleged misconduct. As 

Guzman acknowledges, he included the information about the 

deputies’ lack of recall in 2011 in his suppression motion and the 

attached supporting exhibits. Also, while Guzman questioned 

Graves during the suppression hearing, Guzman (1) elicited 

Graves’s testimony that when she was questioned in 2011 she 

had not recalled the reasons for the stop, and (2) personally 

represented and argued to the court that Graves had been unable 

to recall the details of the traffic stop in 2011. Lopez’s counsel 

also questioned Graves about her testimony in 2011, even 
15

referring the court and parties to a particular page in the 

transcript of that testimony, and Graves testified that she had 

been unable to remember what she noticed about the car prior to 

the traffic stop. Because the information had been provided to 

the court, and because both the court and the parties were aware

the deputies had no independent recollection of the traffic stop, 

we see no reasonable likelihood that a more favorable outcome 

would have resulted if the People had independently raised this 

already-presented evidence.

Guzman, in his reply brief, contends that during the 

suppression hearing, the prosecutor should have confirmed 

Guzman’s representation to the court that when Graves had been 

questioned in 2011 about the basis of the stop, she did not 

remember the reason for the stop even after an attempt to 

refresh her recollection. We have reviewed the portion of the 

transcript to which Guzman refers. While cross-examining 

Graves, Guzman (who was representing himself at the time) 

attempted to ask Graves why she now remembered the reason for 

the traffic stop when she had not remembered it in 2011, but the 

court sustained the prosecutor’s objection that the question posed 

was argumentative and compound. Guzman told the court he 

was asking his question because he had the transcript of Graves’s 

2011 testimony.

The trial court responded, “That may well be. I will accept 

her representation that she has no recollection of it.” The court 

explained the process of refreshing recollection to Guzman.

Guzman said the prosecutor “asked her [Graves] the same 

question and refreshed her memory then.”
16

“Right,” said the court.

Guzman said, “And back then—I got it right here, ‘No, 

ma’am, I don’t’—she didn’t remember.”

The court said, “I agree. Perhaps no one refreshed her 

recollection then.”

According to Guzman, the prosecution at this point should 

have confirmed Guzman’s representation that the prosecutor had 

attempted to refresh Graves’s memory in 2011. Even if the 

prosecutor should have done so, as Guzman posits, Guzman has 

failed to establish that it is reasonably probable that a result 

more favorable to him would have been reached if the prosecutor 

had confirmed that Guzman was correct about the effort to 

refresh Graves’s recollection in 2011. (Crew, supra, 31 Cal.4th at 

p. 839.) The trial court was aware and accepted that Graves had 

not recalled the reason for the traffic stop when she testified in 

2011. The existence or nonexistence of efforts to refresh her 

recollection in 2011 was collateral and of marginal relevance, and 

Graves has not established, nor do we believe, that it is 

reasonably possible that the trial court would have weighed the 

evidence differently or made different credibility determinations 

if the prosecutor had reiterated to the court that the prosecutor 

had attempted to refresh Graves’s recollection years before.

IV. Exclusion of Firearms Evidence

The same .45 caliber firearm was used in the Robinson 

murder in March 2007 and the Grant/Lexing murders in July 

2007. The People moved to exclude evidence that on the night of 

June 10, 2007, the same weapon was fired into the home of Javier 

Carrillo at 210 E. 93rd Street. An unidentified person reported 

hearing gunshots and “observed what appeared to be a male 

black figure standing in front of 208 E. 93rd Street.” She 
17

reported the “male black figure got into an unknown type [b]lack 

vehicle and drove off.” The trial court repeatedly excluded this

evidence as inadmissible third party culpability evidence, and we 

affirmed the ruling in Lopez’s appeal. (Lopez, supra, 

73 Cal.App.5th at pp. 340–341.)

Nevertheless, Guzman argues the evidence was not third

party evidence at all, but rather evidence that tended to disprove 

the theory that the .45 caliber Sig Sauer gun discussed by Lopez 

and Guzman in the recorded conversation was the same 

.45 caliber gun used in the charged shootings. Guzman argues 

the evidence tended to “negate the material fact of identity” and 

was admissible because it was relevant. (Evid. Code, § 351).

Guzman reasons that negating the inference that the .45 caliber 

weapon he discussed on the recording would then support an 

inference that he was not involved in the charged murders, or at 

least the Lexing and Grant murders. He asserts the court abused 

its discretion in excluding this evidence and in doing so, deprived 

him of his constitutional right to a defense. We review the trial 

court’s evidentiary ruling for an abuse of discretion. (People v. 

Alvarez (1996) 14 Cal.4th 155, 201.)

The trial court did not err. The fact that the .45 caliber gun 

used in the Robinson shooting was used in another shooting the 

month before the Lexing and Grant shooting did not tend to 

disprove the gun used in the shootings was the one Guzman and 

Lopez discussed in the recorded conversation. The evidence had 

no bearing on the question of identity for the Robinson shooting, 

because where the gun was in June (the time of the Carrillo 

shooting) is not evidence of where it was or who had it in March 

when Robinson was shot. All the evidence tends to prove is that 

the gun was out of Guzman’s hands for a period of time after the 
18

Robinson shooting and before the Grant and Lexing shootings, 

which is not inconsistent with and could explain Guzman’s 

statement in the recorded conversation that he “kinda sold it, 

but . . .” followed by laughter. There was evidence, as Guzman 

notes, that guns involved in a murder are typically either 

destroyed or sold to other gangs, but that does not mean the gun 

could not have been returned to Guzman or someone else after it 

was used in the Carrillo shooting.

Further, to the extent that use of the .45 caliber gun in the 

later shooting was relevant to prove Guzman could not have been 

the one who used it to kill Lexing and Grant, its exclusion from 

the evidence before the jury was not prejudicial in light of the 

overwhelming evidence straight from Guzman and Lopez that 

they killed Lexing and Grant. Guzman and Lopez were recorded 

reminiscing and boasting about the murders, and they described 

the circumstances and aftermath of the murder in detail that 

corresponded to the other evidence at trial. Guzman described 

killing two people and then immediately being pulled over a few 

blocks away, near the intersection of Overhill and Slauson, by a 

female sheriff’s deputy. The deputy did not know about the 

shooting because it had taken place just outside the Sheriff’s 

Department jurisdiction in Los Angeles Police Department 

territory, and the two agencies did not share radio calls. They 

hid their large guns in a hiding place inside the car shortly before 

they were handcuffed and placed in a patrol car. They feared the 

guns would be found during the search, and they knew they 

would be subject to the death penalty for multiple murders if they 

were caught, but the weapons were not located and they were 

allowed to leave.
19

All these details corresponded to evidence presented at 

trial: the Lexing and Grant murders involved large caliber guns; 

the traffic stop took place shortly after the shooting of Lexing and 

Grant; the stop occurred near the site of the shooting but in the 

jurisdiction of the Los Angeles County Sheriff’s department, 

while the shooting had occurred within the jurisdiction of the Los 

Angeles Police Department; the deputy who pulled them over was 

female; the responding deputies were not aware of anything 

urgent or dangerous happening that night; they were placed in a 

patrol car; their car was searched; no weapons were found; and 

they were permitted to leave. In the face of this overwhelming 

evidence of identity, any error in excluding evidence that the gun 

was out of Guzman’s hands at some point during the three 

months between the Robinson and Grant/Lexing killings was 

harmless under either the Watson or Chapman test for prejudice. 

(People v. Watson (1956) 56 Cal.2d 818, 836; Chapman v. 

California (1967) 386 U.S. 18.)

V. Assembly Bill No. 333

Assembly Bill No. 333 (2021–2022 Reg. Sess.) (Assembly 

Bill 333) amended section 186.22 to require proof of additional 

elements to establish a gang enhancement. (See Stats. 2021, 

ch. 699, §§ 1–4.) A “ ‘criminal street gang’ ” was formerly defined 

in section 186.22 as “any ongoing organization, association, or 

group of three or more persons, whether formal or informal, 

having as one of its primary activities the commission of one or 

more [enumerated criminal acts], having a common name or 

common identifying sign or symbol, and whose members 

individually or collectively engage in, or have engaged in, a 

pattern of criminal gang activity.” (§ 186.22, former subd. (f), 

italics added.) Effective January 1, 2022, Assembly Bill 333 
20

narrowed the definition of “ ‘criminal street gang’ ” to “an 

ongoing, organized association or group of three or more persons, 

whether formal or informal, having as one of its primary 

activities the commission of one or more [enumerated criminal 

acts], having a common name or common identifying sign or 

symbol, and whose members collectively engage in, or have 

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

subd. (f), italics added.)

“Assembly Bill 333 also altered the requirements for 

proving the ‘pattern of criminal gang activity’ necessary to 

establish the existence of a criminal street gang. [Formerly], a 

‘pattern of criminal gang activity’ mean[t] ‘the commission of, 

attempted commission of, conspiracy to commit, or solicitation of, 

sustained juvenile petition for, or conviction of two or more of 

[enumerated] offenses, provided at least one of these offenses 

occurred after the effective date of this chapter and the last of 

those offenses occurred within three years after a prior offense, 

and the offenses were committed on separate occasions, or by two 

or more [persons].’ (§ 186.22, [former] subd. (e).) As of the 

effective date, Assembly Bill 333 redefine[d] ‘pattern of criminal 

gang activity’ to require that the last of the predicate offenses 

‘occurred within three years of the prior offense and within three 

years of the date the current offense is alleged to have been 

committed,’ and that the predicate offenses ‘were committed on 

separate occasions or by two or more members, the offenses 

commonly benefited a criminal street gang, and the common 

benefit of the offenses is more than reputational.’ (Assem. Bill 

333, § 3; amended § 186.22, subd. (e)(1), eff. Jan. 1, 2022.) In 

addition, the currently charged offense cannot be used as a 
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predicate offense under the amendments. (Id., subd. (e)(2).)” 

(Lopez, supra, 73 Cal.App.5th at p. 345.)

“Assembly Bill 333’s changes to section 186.22 affect not 

only the gang enhancement allegations under that statute but 

other statutes that expressly incorporate provisions of section 

186.22. Here, two other statutes that refer specifically to section 

186.22 are implicated: section 190.2, subdivision (a)(22) and 

section 12022.53, subdivision (e)(1). Section 190.2, subdivision 

(a)(22) establishes a gang murder special circumstance: ‘The 

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.’ ” (Lopez, 

supra, 73 Cal.App.5th at pp. 346–347.)

“Section 12022.53 provides for sentence enhancements for 

the use of firearms in the commission of an enumerated felony. 

The statute first provides for escalating punishments depending 

on how the firearm is used. The least severe penalty is set forth 

in section 12022.53, subdivision (b), which provides for a 

consecutive 10-year term for a defendant who ‘personally uses’ a 

firearm in a felony. Next, a consecutive 20-year term is imposed 

under section 12022.53, subdivision (c), if the defendant 

‘personally and intentionally discharges a firearm’ in the 

commission of the offense. Finally, section 12022.53, 

subdivision (d) provides for a consecutive sentence enhancement 

of 25 years to life when the defendant ‘personally and 

intentionally discharges a firearm and proximately causes great 

bodily injury . . . or death’ during the commission of the offense.
22

“While these subdivisions provide punishment for offenders 

who personally use a firearm during the commission of their 

crimes, the penalties may also be imposed on any person who is a 

principal in the offense under certain gang-related circumstances: 

First, the person who is a principal must be ‘convicted of a felony 

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

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

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

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

subd. (e)(1)(A).) Second, ‘[a]ny principal in the offense’ must have 

‘committed any act specified in subdivision (b), (c), or (d),’ that is, 

any principal involved in the offense must have personally used a 

firearm in the escalating use categories provided in section 

12022.53, subdivisions (b) through (d). (§ 12022.53, subd. 

(e)(1)(B).)” (Lopez, supra, 73 Cal.App.5th at p. 347.)

We have previously found that Assembly Bill 333 should be 

applied retroactively to appellants whose judgments were not 

final as of its operative date. (Lopez, supra, 73 Cal.App.5th at 

p. 344.) Accordingly, we agree with the parties that Guzman is 

entitled to the ameliorative effects of Assembly Bill 333’s 

amendments to section 186.22 because his judgment was not 

final when the amendments took effect. (See ibid.) We also 

agree with the parties that because the definition of a criminal 

street gang has been narrowed by Assembly Bill 333 and new 

elements have been added to prove a criminal street gang and a 

pattern of criminal activity, the gang enhancement allegations,

the gang-related firearm enhancement findings under section 

12022.53, subdivision (e)(1), and the special circumstance finding 

under section 190.2, subdivision (a)(22) must be vacated; on 

remand, the People must be afforded the opportunity to prove the 
23

enhancements and the special circumstance in compliance with 

the amended section 186.22. (Lopez, at pp. 347–348.)

Although the findings that a principal discharged a firearm 

in violation of section 12022.53, subdivisions (d) and (e)(1) must 

be vacated, we note that with respect to the murders of Lexing 

and Grant, the jury separately found true the allegation under 

section 12022.53, subdivision (d) that Guzman “personally and 

intentionally discharged a firearm . . . which caused great bodily 

injury or death” to Lexing and Grant. The jury’s findings under 

section 12022.53, subdivision (d) carry the same penalty and

remain intact.

DISPOSITION

The convictions are affirmed. The gang enhancement 

allegation findings under section 186.22, the special circumstance 

findings under section 190.2, subdivision (a)(22), and the gangrelated firearm enhancement findings under section 12022.53, 

subdivision (e)(1) are vacated, and the matter is remanded to the 

trial court to permit the People to retry these allegations, if they 

so choose.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STRATTON, P. J.

We concur:

GRIMES, J. WILEY, J.