Filed 7/31/23 P. v. Paredes 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.

MIGUEL A. PAREDES,

Defendant and Appellant.

B315125

(Los Angeles County

Super. Ct. No. BA472690)

APPEAL from a judgment of the Superior Court of Los 

Angeles County. Mark Arnold, Judge. Affirmed in part and 

remanded in part.

Jin H. Kim, 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, Steven D. Matthews and Yun K. Lee, Deputy 

Attorneys General, for Plaintiff and Respondent.

_______________________
2

Appellant Miguel A. Paredes was convicted of several gangrelated violent crimes involving firearms. On appeal, he argues 

the trial court erroneously refused to consider the District 

Attorney’s Special Directives when it considered the prosecution’s 

motion to dismiss the gang and firearm allegations and when it 

allowed the introduction of preliminary hearing testimony of an 

unavailable witness. He also contends the gang enhancements 

should be vacated due to changes in the law. We affirm the 

convictions, vacate the true findings on the gang and firearm 

enhancement allegations, and remand the matter for a new 

hearing on the prosecution’s motion to dismiss those allegations.

FACTUAL AND PROCEDURAL BACKGROUND

At approximately 1:30 a.m. on October 27, 2018, Paredes 

walked through a tent encampment and encountered Audriana 

Sandoval, Rene Figueroa, and a man called “Joe Joe.” Paredes 

asked Figueroa where he was from; Figueroa denied being a gang 

member. Paredes demanded Figueroa lift his shirt, and when 

Figueroa hesitated, Paredes pulled out a gun and pointed it at 

Figueroa’s head. Figueroa, concerned for his safety, complied.

Paredes asked Joe Joe if he was a gang member, and Joe Joe said 

no. Paredes walked away toward a bridge, tagging a pillar with 

spray paint as he went. When Paredes painted on the pillar, he 

crossed out “Avenues” and painted “HLP.”

Omar Herrera1 was under the bridge with Anahi Flores

when Paredes walked by holding a flashlight in one hand and a 

gun in the other. Paredes pointed the gun at Herrera’s face, 

1 Herrera also used the last name “Barrera” and other 

aliases.
3

asked what gang Herrera belonged to, and identified himself as a 

member of the Highland Park gang. Herrera was afraid for his 

safety. Herrera denied gang membership, and Paredes laughed 

and walked on. Paredes next approached Jesus Baena, who was 

either a former or current member of the Avenues gang. Baena 

and Paredes exchanged words, and then Paredes fatally shot 

Baena.

Figueroa heard gunfire, then saw Paredes walking back the 

way he had entered the encampment. As he passed Figueroa, 

Paredes smiled and said, “[A]ll right, good night.”

Herrera ran after Paredes and saw him enter a truck.

Herrera described the truck to the police, and a truck matching 

Herrera’s description was seen in surveillance video from the 

night of the shooting. The surveillance video also depicted the 

license plate of the truck, which led police to an address where 

they found the truck. The police began surveillance and Paredes

was arrested.

After Paredes’s arrest, he was placed in a cell with an 

undercover agent pretending to be a fellow inmate. Their 

conversations were recorded. Paredes identified himself as a 

Highland Park gang member, said he “popped” an “enemy” from 

“A-V-E-S” (the Avenues gang) under the bridge, and told the 

agent he had gone to the encampment for that purpose. During 

the conversation, Paredes described where he parked and how he 

entered the area. He also demonstrated how he shot the victim.

Paredes expressed the hope that the police did not find his 

clothes or “all the [gun]powder.” The agent asked if he got rid of 

his clothes, and Paredes admitted he had kept his pants and had 

his belt with him. Paredes asked the agent to contact his family 

and ensure his pants were destroyed.
4

A few days after the shooting, Figueroa identified 

photograph numbers three and six in a photographic lineup, 

saying the man he saw had the facial structure of the person in 

photograph six but his face was more rounded, like the face of the 

person in photograph three. Paredes’s photo was number six.

Figueroa also selected a photograph in a second photographic 

lineup that did not include Paredes.

The police also showed Sandoval a photographic lineup. As 

soon as she saw the photographs, Sandoval looked scared and 

began to cry. Sandoval initially said, “I think that looks like 

him,” but when the detective asked her which photograph she 

meant, she claimed not to know and said none of the photographs 

looked like the man she saw. The detective encouraged Sandoval 

to be strong and tell the truth and promised she would not have 

to write anything down. Sandoval pointed to Paredes’s 

photograph and acknowledged she pointed at the photograph in 

position six.

Herrera selected Paredes’s photograph from a photographic 

lineup but said he did not see the man well. When the detective 

asked Herrera to write down his identification, Herrera froze, his 

eyes widened, and he appeared frightened. The detective assured 

Herrera he did not have to write anything down, thanked him, 

and asked where he wanted to be dropped off. Herrera looked 

down, and then, after an awkward silence, he laughed nervously 

and said Paredes’s photograph did not look like the man he had 

seen.

After a jury trial, Paredes was convicted of first degree 

murder (Pen. Code,2 § 187, subd. (a)), two counts of assault with a

2 Undesignated statutory references are to the Penal Code.
5

semiautomatic firearm (§ 245, subd. (b)), and possession of a 

firearm by a felon (§ 29800, subd. (a)(1)), all committed for the 

benefit of a criminal street gang (§ 186.22, subd. (b)(1)).

Additionally, the jury found true the allegations that in the 

commission of the murder Paredes used and personally 

discharged a firearm, causing death (§ 12022.53, subds. (b)–(d)), 

and that he personally used a firearm in the commission of the 

assaults with a semiautomatic firearm (§ 12022.5). Paredes was 

sentenced to 50 years to life plus 15 years in state prison. He

appeals.

DISCUSSION

I. Motion to Dismiss Special Allegations

Section 1385, subdivision (a), provides that a judge may,

upon the motion of the prosecutor, “ ‘and in furtherance of 

justice’ ” order an enhancement allegation dismissed. (People v. 

Bonnetta (2009) 46 Cal.4th 143, 145–146.) Prior to trial, the 

prosecutor filed a motion to dismiss the firearm and gang 

enhancements pursuant to section 1385 based on Los Angeles 

County District Attorney Special Directives 20-08, 20-08.1, 20-

08.2, and 20-14. The court held a hearing at which the 

prosecutor confirmed he was seeking to dismiss the enhancement

allegations solely because of the new District Attorney’s policy.

The court denied the motion, stating, “These allegations . . . have 

been enacted into law by the Legislature. Just because it’s 

something that the newly elected district attorney doesn’t like or 

doesn’t agree with, that is not legal authority. It’s not legal 

precedent. It does not rise to the level required in [section] 1385.

[¶] I do not find that the motion to dismiss comports with the 

interest of justice, and therefore the motion is denied.”
6

Paredes argues the court abused its discretion by refusing 

to consider the Special Directives. The Attorney General agrees.

We review an order denying a motion to dismiss a sentence 

enhancement under section 1385 for an abuse of discretion. 

(Nazir v. Superior Court (2022) 79 Cal.App.5th 478, 490 (Nazir).)

“A trial court may abuse its discretion where ‘its decision is so 

irrational or arbitrary that no reasonable person could agree with 

it,’ ‘where the trial court was not “aware of its discretion” ’ to 

dismiss a sentencing allegation under section 1385, or ‘where the 

court considered impermissible factors in declining to dismiss.’ ” 

(Ibid.)

In deciding whether to dismiss an enhancement, “a court 

considers the same factors considered ‘ “when handing down a 

sentence in the first instance.” ’ [Citations.] These factors 

include those listed in California Rules of Court, rule 4.410 

(general objectives in sentencing), rules 4.421 and 4.423 

(circumstances in aggravation and mitigation), and rule 4.428(b) 

(discretion in striking an enhancement and punishment for an 

enhancement under section 1385). These rules refer to 

circumstances specific to the crime and the defendant’s criminal 

history, as well as to broader societal objectives, such as 

‘[d]eterring others from criminal conduct by demonstrating its 

consequences’ and ‘[i]ncreasing public safety by reducing 

recidivism through community-based corrections programs and 

evidence-based practices.’ (Cal. Rules of Court, rule 4.410(a)(4) 

& (8).) The rules state the trial court ‘should be guided by 

statutory statements of policy, the criteria in [the Rules of Court], 

and any other facts and circumstances relevant to the case.’ (Id., 

rule 4.410(b).)” (Nazir, supra, 79 Cal.App.5th at p. 497.)
7

In Nazir, the prosecutor moved to dismiss firearm 

enhancements alleged under sections 12022.5 and 12022.53 

based on the Los Angeles District Attorney’s Special Directive 

20-08, which “instructed deputy district attorneys in pending 

cases to move to dismiss or withdraw sentence enhancement 

allegations.” (Nazir, supra, 79 Cal.App.5th at p. 486.) The trial 

court denied the motion based on its belief that it was not 

permitted to rely on the directive under People v. Williams (1998) 

17 Cal.4th 148. (Nazir, at pp. 497–498.) The Nazir Court held 

Williams did not preclude the trial court from relying on the 

Special Directive, and therefore the trial court “misunderstood 

the scope of its discretion when it refused to consider Special 

Directive 20-08 in determining whether to grant the motion to 

dismiss the firearm enhancements.” (Id. at pp. 497–498.) By its 

terms, the directive “was based on research showing that existing 

sentence enhancements do not deter crime or reduce recidivism, 

objectives of the criminal justice system which a court may 

consider in determining whether to impose a firearm 

enhancement under section 12022.5 or 12022.53, and thus are 

relevant to determining whether to dismiss an enhancement.” 

(Nazir, at p. 497.)

Here, the trial court’s comments that the Special Directives 

were not “legal authority” or “legal precedent” and did not “rise to 

the level” required for section 1385 indicate it refused to consider 

the Special Directives in determining whether to dismiss the 

gang and firearm allegations in the furtherance of justice. As in 

Nazir, this refusal demonstrates the court misunderstood the 

scope of its discretion. (See Nazir, supra, 79 Cal.App.5th at 

pp. 497–498.) The matter must be remanded for the trial court to 

consider the Special Directives, as well as the other relevant 
8

factors, in determining whether dismissing the enhancement

allegations is in furtherance of justice.

II. Admission of Preliminary Hearing Testimony

Herrera was the victim in count 4, one of the counts 

alleging assault with a semiautomatic firearm. Herrera testified 

at the preliminary hearing, but he had been deported by the time 

of trial, approximately 18 months later. The trial court found 

Herrera was unavailable because he was absent, the court was 

unable to compel his attendance by its process (Evid. Code, § 240, 

subd. (a)(4)), and the prosecution had exercised due diligence in 

securing his attendance at trial (Evid. Code, § 240, subd. (a)(5)).

Herrera’s preliminary hearing testimony was read to the jury.

Paredes argues the court erred and his conviction on count 4 

must be reversed.

A. Factual Background and Hearing

Herrera was incarcerated when he testified at Paredes’s 

preliminary hearing on February 6, 2020. On February 7, 2020, 

the court held Paredes to answer. Paredes was arraigned on 

February 21, 2020, and the court set the trial for April 21, 2020.

Over the following year and a half, the trial was repeatedly 

delayed. At the March 16, 2020 pretrial conference, the court 

continued the trial to April 30, 2020 at Paredes’s request. Due to 

the COVID-19 emergency, the court later continued the case to 

June 17, 2020, and then to August 3, 2020. On August 3, 2020, 

at the request of counsel, the court set the trial for August 10, 

2020. At the August 10, 2020, hearing, based on the COVID-19 

emergency and Paredes’s request, the court set the case for 

pretrial conference on September 1, 2020.
9

At the September 1, 2020 pretrial conference, the court set 

a pretrial conference for October 5, 2020, at both counsel’s 

request. On October 5, 2020, Paredes asked for a continuance, 

and the court set the pretrial conference for November 5, 2020.

The case was continued to December 7, 2020, and to January 12, 

2021, at both parties’ request.

Paredes missed court on January 12, 2021, and at the 

request of both counsel, the pretrial conference was trailed to 

January 28, 2021, then February 17, 2021, and then March 18, 

2021. Due to quarantine, Paredes missed court on March 18, 

2021, and the court trailed the hearing to March 25, 2021. At 

Paredes’s request, the court continued the case three more times: 

to May 3, 2021, May 10, 2021, and May 19, 2021. On May 19, 

2021, the court set a trial setting date of June 8, 2021.

On June 8, 2021, the defense announced ready for trial, but 

over defense objection the court continued the case to July 8, 

2021 because the People indicated there were outstanding 

discovery issues and asked for a continuance. On July 8, 2021, 

Paredes waived his speedy trial right and agreed the trial could 

begin within five days of July 12, 2021; the court transferred the 

case for trial.

Paredes was a medical miss-out on July 12, 2021. The 

defense requested the matter be sent out for trial nonetheless, 

but the court put it over to July 15, 2021, with instructions to 

defense counsel to alert the court if Paredes left quarantine 

sooner. Paredes was still medically unable to appear on July 15, 

2021, and the case was trailed to July 19, 2021, at defense 

request.

The case was transferred for trial on July 19, 2021, and the 

next day the court held a hearing on Herrera’s unavailability to 
10

testify. Jason Roberts, a district attorney investigator, testified 

he was assigned to locate and serve Herrera with a subpoena on 

June 24, 2021, and began searching for him that day. Roberts

searched computer databases looking for addresses for Herrera.

He began with the Consolidated Criminal History Reporting 

System, which tracks arrest records. He checked for Department 

of Motor Vehicles information and searched for Herrera using a 

prominent search engine and social media services.

When Roberts visited the encampment and the area where 

the crime occurred, witness Victor Concepcion told him Herrera 

was in state custody. At a separate location, Roberts spoke with 

Flores, Figueroa, and Sandoval. All said Herrera was in custody.

The Department of Corrections and Rehabilitation 

confirmed for Roberts that Herrera had been in state custody but 

was released on September 1, 2020, at which time he was 

deported. Roberts called Immigration and Customs Enforcement 

(ICE), which confirmed Herrera had been deported on September 

1, 2020.

Roberts contacted Herrera’s mother and sister. Herrera’s 

mother told Roberts she believed Herrera was in Tijuana, Mexico.

Herrera’s sister did not have Herrera’s phone number but agreed 

to convey a message to him to call Roberts. Roberts came to 

suspect Herrera might be avoiding service based on his call with 

Herrera’s sister. Herrera’s sister said she did not trust what 

Roberts was saying and that Herrera had been tricked into 

meeting with some law enforcement agencies, leading to his 

deportation. She felt Roberts might be trying a similar ruse.

Roberts first spoke with Herrera’s sister July 15, 2021, and 

he followed up with her the day before the hearing, July 19, 2021.

Although Roberts had located a Los Angeles city address for 
11

Herrera’s mother and sister, Roberts did not go to that address, 

nor did he send a letter or subpoena to Herrera there.

Roberts advised ICE agent Christopher Bourdas that he 

was trying to locate Herrera, and Bourdas was working with an 

official in Tijuana to locate Herrera so Roberts could contact him.

Roberts also contacted Adolfo Batres, a Los Angeles Police 

Department officer on the U.S. Marshal’s Fugitive Task Force.

Batres, too, had a contact in the Tijuana area and was

attempting to locate Herrera. To date, neither contact had 

located Herrera.

Roberts checked local county custody records for the 

counties of Los Angeles, Orange, Riverside, San Bernardino, and 

Ventura. He learned from his database searches that Herrera

used multiple names, and he ran numerous name variations 

through the databases to see if Herrera was present in any 

systems or institutions within the jurisdiction. Roberts found no 

sign of Herrera in the databases.

Roberts did not speak with the parole department about 

Herrera because he knew Herrera had been deported. The Los 

Angeles County Probation Department gave Roberts an address 

for Herrera, but when he went to that location, the person who 

answered the door said she had lived there for two years and did 

not know Herrera.

After Roberts testified, the prosecutor argued in a brief, 

one-sentence argument, that under People v. Herrera (2010) 

49 Cal.4th 613, due diligence is satisfied for the purposes of the 

Evidence Code by making efforts to locate the witness in the 

jurisdiction, finding information from the Department of 

Homeland Security that the individual was deported, and 

continuing to look for the witness.
12

Defense counsel argued the investigator was insufficiently 

diligent because he telephoned Herrera’s mother and sister but 

did not visit, send a subpoena, or send a letter to their address.

Although defense counsel had been notified the prosecution was 

unable to find Herrera, she did not know until the day of the 

hearing that he had been deported. Defense counsel analogized 

the case to People v. Roldan (2012) 205 Cal.App.4th 969 (Roldan), 

which also involved a witness who was in custody when he 

testified at the preliminary hearing. In Roldan, she argued, the 

court “really analyzed whether or not the People did anything to 

try to secure his presence and keep his presence, knowing that he 

was subject to deportation while in custody.” Because the People 

had not made significant efforts to keep the witness in Roldan in 

custody, the Roldan court found they had not exercised 

reasonable diligence.

Defense counsel argued the People knew Herrera was in 

custody when he testified at the preliminary hearing, as they 

subpoenaed him and brought him to court to testify. She 

contended the People had not shown they “did anything to try to 

maintain contact with him, knowing that this is a murder case, 

and knowing that he may evade the system again, to try to keep 

in contact with him. [¶] There were no—at least with the 

evidence presented today—no such efforts to say, hey, where are 

you going to be? Where can we find you? What phone number 

can we get? We didn’t hear any evidence of that. The last 

contact that we know of is at the preliminary hearing, and that’s 

it. The efforts started again June 24th. And defense’s position, 

that wasn’t sufficient, knowing he was in custody and could be 

subject to deportation.”
13

The trial court found Herrera unavailable under Evidence 

Code section 240 for two reasons: “[S]ubsection (a)(4) states that 

the witness is absent from the hearing and the court is unable to 

compel his attendance by its process; and also subdivision (a)(5), 

the proponent, which is the People, they have exercised 

reasonable diligence but has been unable to procure the 

attendance by the court’s process.” The court explained, “I think 

what Investigator Roberts has done is he has absolutely done 

more than, I believe, exercise reasonable diligence. This case was 

set for trial 17 times prior to now and I think it would have been 

a waste of time and an exercise of futility to try to keep track of 

him during those 17 times. And that occurred over a year and a 

half period. [¶] I believe that the People have demonstrated that 

the witness is unavailable under Evidence Code section 240.”

Herrera’s preliminary hearing testimony was read to the 

jury during trial.

B. Applicable Law

“A criminal defendant has a state and federal 

constitutional right to confront witnesses, but the right is not 

absolute. If a witness is unavailable at trial and has given 

testimony at a previous court proceeding against the same 

defendant at which the defendant had the opportunity to crossexamine the witness, the previous testimony may be admitted at 

trial. In a criminal case, the prosecution bears the burden of 

showing that the witness is unavailable and, additionally, that it 

made a ‘good-faith effort’ [citation] or, equivalently, exercised 

reasonable or due diligence to obtain the witness’s presence at 

trial.” (People v. Sanchez (2016) 63 Cal.4th 411, 440 (Sanchez).) 

“ ‘[T]he term “due diligence” is “incapable of a mechanical 

definition,” but it “connotes persevering application, untiring 
14

efforts in good earnest, efforts of a substantial character.” ’ 

[Citation.] Relevant considerations include the timeliness of the 

search, the importance of the witness’s testimony, and whether 

leads were competently explored.” (Ibid.)

“The reviewing court defers to the trial court’s 

determination of the historical facts if supported by substantial 

evidence, but it reviews the trial court’s ultimate finding of due 

diligence independently, not deferentially.” (Sanchez, supra, 

63 Cal.4th at p. 440.)

C. Analysis

1. Prior to Deportation

Paredes argues the prosecution did not undertake 

reasonable efforts before Herrera was deported to secure his 

presence at trial. He relies on Roldan, supra, 205 Cal.App.4th at 

page 980, in which the court held that due diligence requires the 

prosecution to undertake reasonable efforts in order to prevent a

witness who is going to be deported from becoming unavailable

before trial. The witness in Roldan had finished serving his 

sentence and was being held on a federal immigration hold when 

he testified at the preliminary hearing. (Id. at p. 976.) The 

prosecution “knew the federal government intended to deport 

[the witness] following the preliminary hearing,” (id. at p. 981), 

but did nothing; and after the hearing, the witness “was promptly 

released to federal authorities and deported to Mexico.” (Id. at 

p. 976.) Given their knowledge of the witness’s “impending 

deportation,” the court ruled that due diligence required the 

People to take steps to “forestall his deportation prior to trial,” or, 

if that was not possible, at least to “increase the chances of his 

returning for trial.” (Id. at p. 985.)
15

Here, Herrera was in state custody when he testified at the 

preliminary hearing, not on an immigration hold. There is no 

evidence the prosecution knew Herrera would be deported upon 

the conclusion of his prison term, and therefore the due diligence 

obligations outlined in Roldan for imminent deportations did not 

arise here.

Paredes does not contend there was actual evidence the 

prosecution knew Herrera would be deported. Instead, he argues 

such knowledge should be imputed to the prosecution because at 

the hearing, the prosecutor did not contest defense counsel’s 

statement that it was the “defense’s position, that [starting to 

look for Herrera on June 24, 2021] wasn’t sufficient, knowing he 

was in custody and could be subject to deportation.” (Italics 

added.) According to Paredes, the prosecutor’s failure to contest 

this statement constituted an admission.

We strongly question whether it would be appropriate to 

treat the prosecution’s silence here as an admission, but even if 

we were inclined to do so, defense counsel did not actually allege 

the prosecution knew Herrera was going to be deported. She 

argued the prosecution knew Herrera “was in custody and could 

be subject to deportation.” “Could be” is conditional. Any person 

in custody could be subject to deportation; whether that inmate 

actually is deportable depends on whether he or she is an 

American citizen and on the offense committed. (See, e.g.,

8 U.S.C. § 1227 [classes of deportable aliens]; § 1016.5, subd. (a) 

[advising defendants prior to plea of potential immigration 

consequences if they are not citizens].) Knowing someone is in 

custody and “could be” subject to deportation is not the same as 

knowing that person is going to be deported upon their release. 
16

Paredes fails to demonstrate the prosecution knew Herrera was 

going to be deported or that Roldan applies to this case.

2. Post-Deportation

Paredes’s other argument is that the prosecution failed to 

exercise due diligence attempting to locate Herrera after his

deportation. We conclude the trial court properly ruled the 

prosecution exercised reasonable diligence in attempting to locate 

Herrera.

Roberts competently pursued the leads he had concerning 

Paredes’s whereabouts. He spent nearly one month searching for 

Herrera across Southern California and in Mexico, checking 

databases, looking for witnesses, contacting Herrera’s family, and 

reaching out to government officials to try to locate him in 

Mexico. Roberts checked criminal history and motor vehicle 

records; he searched the records of five Southern California 

counties. He ran searches using Herrera’s many aliases. He 

went to the location of the crime, and he spoke to multiple 

witnesses to attempt to identify Herrera’s location. Roberts also 

spoke with family members and tried to have a message relayed 

to Herrera through them.

Paredes argues the People “unreasonably delayed” its 

search for Herrera because the defense had announced it was 

ready for trial on June 8, 2021, but the investigator was not 

assigned to investigate until June 24, 2021. But on June 8, 2021, 

the court had yet again continued the matter to July 8, 2021, 

because of outstanding discovery issues. Given the many

continuances and delays in this matter over the prior 17 months, 

we cannot say that waiting until two weeks before trial was an 

unreasonable delay. The People began the search a reasonable 

period of time before the trial was to start.
17

Paredes emphasizes the importance of Herrera’s testimony, 

characterizing it as “critically important” to one of the two 

charges of assault with a semiautomatic firearm. This is 

unquestionably true, but the assault with a firearm charge was 

only one of four counts alleged against Paredes, and it was less 

serious than the primary charge, first degree murder.

Paredes argues the People should have exhausted the 

Bourdas and Batres leads, but this does not change our 

conclusion that the prosecution exercised reasonable diligence. 

“That additional efforts might have been made or other lines of 

inquiry pursued does not affect this conclusion. [Citation.] It is 

enough that the People used reasonable efforts to locate the 

witness.” (People v. Cummings (1993) 4 Cal.4th 1233, 1298, 

overruled on other grounds in People v. Merritt (2017) 2 Cal.5th 

819, 821-822.) Due diligence does not require exhausting every 

lead. (People v. Fuiava (2012) 53 Cal.4th 622, 677 [Sixth 

Amendment does not require the prosecution to exhaust every 

avenue of inquiry].) Thus, the court did not err in determining 

Herrera was unavailable as a witness (Evid. Code, § 240), and the 

presentation of Herrera’s preliminary hearing testimony at trial 

did not violate Paredes’s statutory and constitutional rights.

D. The Gang Enhancements Must be Reversed

We agree with the People and Paredes that the gang 

enhancement findings must be reversed due to postconviction 

legislative changes to section 186.22. “In 2021, the Legislature 

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

Bill 333), which became effective on January 1, 2022 (see Stats. 

2021, ch. 699). Assembly Bill 333 made the following changes to 

the law on gang enhancements: First, it narrowed the definition 

of a ‘criminal street gang’ to require that any gang be an ‘ongoing, 
18

organized association or group of three or more persons.’ 

(§ 186.22, subd. (f), italics added.) Second, whereas section 

186.22, former subdivision (f) required only that a gang’s 

members ‘individually or collectively engage in’ a pattern of 

criminal activity in order to constitute a “criminal street gang,” 

Assembly Bill 333 requires that any such pattern have been 

‘collectively engage[d] in’ by members of the gang. (§ 186.22, 

subd. (f), italics added.) Third, Assembly Bill 333 also narrowed 

the definition of a ‘pattern of criminal activity’ by requiring that 

(1) the last offense used to show a pattern of criminal gang 

activity occurred within three years of the date that the currently 

charged offense is alleged to have been committed; (2) the 

offenses were committed by two or more gang “members,” as 

opposed to just ‘persons’; (3) the offenses commonly benefitted a 

criminal street gang; and (4) the offenses establishing a pattern 

of gang activity must be ones other than the currently charged 

offense. (§ 186.22, subd. (e)(1), (2).) Fourth, Assembly Bill 333 

narrowed what it means for an offense to have commonly 

benefitted a street gang, requiring that any ‘common benefit’ be

‘more than reputational.’ (§ 186.22, subd. (g).)” (People v. Tran

(2022) 13 Cal.5th 1169, 1206 (Tran).) These ameliorative 

changes apply retroactively to defendants whose convictions are 

not yet final. (Id. at pp. 1206–1207.)

“When a substantive change occurs in the elements of an 

offense and the jury is not instructed as to the proper elements, 

the omission implicates the defendant’s right to a jury trial under 

the Sixth Amendment and reversal is required unless ‘it appears 

beyond a reasonable doubt’ that the jury verdict would have been 

the same in the absence of the error.” (Tran, supra, 13 Cal.5th at 

p. 1207.) Here, reversal is necessary because, as the People
19

concede, Paredes’s conviction is not final and the evidence 

presented at trial failed to establish that the predicate offenses 

commonly benefited a criminal street gang, and that the common 

benefit was more than reputational, as now required by section 

186.22.

Accordingly, all gang findings and enhancements must be 

reversed. On remand, if the court does not dismiss the gang 

allegations at the hearing on the prosecution’s motion to dismiss 

the enhancement allegations, the prosecution shall have the 

opportunity to retry the gang allegations under the amended 

requirements of section 186.22. (People v. Lopez (2021) 

73 Cal.App.5th 327, 346; 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].)3

3 The parties agree the abstract of judgment contains an 

error in how firearms and gang enhancement allegations are 

listed with respect to one count. We need not direct that the 

abstract be corrected because a new abstract of judgment will be 

necessary after further proceedings in the trial court.
20

DISPOSITION

The convictions are affirmed. The gang enhancement 

allegation findings under section 186.22 and the firearm 

enhancement findings under section 12022.53 and 12022.5 are 

vacated. The matter is remanded to the trial court for a new 

hearing on the prosecution’s motion to dismiss the gang and 

firearm enhancement allegations and a new trial on the gang 

allegations if they are not dismissed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STRATTON, P. J.

We concur:

GRIMES, J.

VIRAMONTES, J.