1

Filed 2/22/23 P. v. Vidales CA3

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication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

THIRD APPELLATE DISTRICT

(Yolo)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

BRANDON RYAN VIDALES,

Defendant and Appellant.

C088685

(Super. Ct. No. CRF153593)

[OPINION ON TRANSFER]

In a trial to the court, defendant Brandon Ryan Vidales was found guilty of several 

weapon and drug offenses related to his gang membership. On appeal, he requests we 

review the sealed affidavit supporting the search warrant, which includes the evidence 

giving rise to his convictions, for discoverable material that would assist him in a motion 

to suppress. He further argues he did not knowingly waive his right to a jury trial and 

that insufficient evidence established he offered to sell a machine gun and three largecapacity magazines and that he committed all the offenses for the benefit of a criminal 

street gang. 
2

We initially agreed the evidence failed to establish defendant acted to benefit his 

gang under former Penal Code1section 186.22 when possessing methamphetamine for 

sale, possessing a loaded firearm in public, and possessing a firearm while also 

possessing methamphetamine. We concluded, however, that sufficient evidence 

supported defendant’s remaining gang enhancement under the former gang enhancement

statute. We disagreed with defendant on his remaining contentions and reversed the 

judgment accordingly. (People v. Vidales (Feb. 23, 2021, C088685) [nonpub. opn.].) 

Our Supreme Court granted review and transferred the matter back to us to reconsider in 

light of People v. Renteria (2022) 13 Cal.5th 951 and Assembly Bill No. 333 (2021-2022

Reg. Sess.) (Stats. 2021, ch. 699, § 4). 

Upon transfer, the parties filed supplemental briefs agreeing defendant’s 

remaining gang enhancements must be reversed because of amendments to the gang 

enhancement statute (§ 186.22) enacted by Assembly Bill No. 333 (2021-2022 Reg. 

Sess.) (Stats. 2021, ch. 699, § 4). While we concluded there was sufficient evidence 

supporting the remaining gang enhancements under the former gang enhancement statute, 

we agree there is insufficient evidence under the current gang enhancement statute. 

Accordingly, we vacate defendant’s remaining gang enhancements and afford the 

prosecution the opportunity to retry defendant upon remand for the remaining gang 

enhancements under current law. (See People v. Eagle (2016) 246 Cal.App.4th 275, 

280.) 

FACTUAL AND PROCEDURAL BACKGROUND

On June 25, 2015, Woodland Police Officers executed a search warrant of 

defendant’s parents’ home, his own home, and his car, finding several incriminating 

items. At his parents’ home, in a gun safe, officers found a black AR-15 rifle with an 

1 Undesignated section references are to the Penal Code. 
3

eight-inch barrel and an after-market device in the triggering mechanism allowing the 

rifle to fire as a fully automatic weapon. The firearm did not have any manufacturing 

marks or a serial number. Because the weapon lacked markings, a gun expert with the 

Yolo County District Attorney’s Office believed the weapon was purchased 80 percent 

complete, basically consisting of only the lower portion of the weapon. A person then 

manufactured the remainder of the weapon by mounting an eight-inch barrel on the lower 

portion and drilling a space for a trigger mechanism the person also installed. There was 

no evidence in defendant’s parents’ home indicating the AR-15 rifle was manufactured 

there. Also in the safe, and capable of fitting into the AR-15 rifle, was a loaded largecapacity magazine holding 100 rounds. There was also a black canister containing 250 

rounds of “steel core ammunition” for the AR-15 rifle. 

Officers also seized from the safe a semiautomatic .45-caliber handgun. This gun 

was not registered to defendant or his father. Attached to the top of the handgun’s barrel 

was a sighting device, while attached to the bottom was a flashlight. Officers recovered 

50 rounds of .45-caliber ammunition compatible with this handgun. 

Officers further seized from the safe a semiautomatic .40-caliber handgun with the 

serial number removed. A serial number is commonly removed to hide the identity of a

weapon. Thirteen rounds of loose ammunition as well as a loaded 29-round magazine 

compatible with the .40-caliber handgun were also found in the safe. 

Additionally, officers found a loaded large-capacity magazine for a ninemillimeter handgun with 20 rounds of live ammunition in the safe, as well as three “speed 

loaders,” which are designed to assist in rapidly reloading revolver-style handguns, each 

containing six rounds of live ammunition. Finally, as it pertains to weapons and

ammunition, there were 260 rounds of .38-caliber ammunition capable of fitting into a

revolver. 

Also in the safe, was a red folder appearing to belong to defendant that contained 

drawings, news articles, and various other documents from over the years. The drawings 
4

included gang indicia, while the news articles pertained to crimes committed by local 

Norteño gang members. Defendant’s mother testified she collected these items over the 

course of the last 16 years to remind defendant of the path she did not want him to take. 

Officers also recovered a large quantity of money and what defendant’s mother testified 

was defendant’s tax return. This money was given back to defendant following the civil 

forfeiture process. 

At defendant’s home, officers found a digital scale on the refrigerator with 

remnants of a white substance. In the closet near the front door, officers also found a bag 

containing marijuana and numerous empty bags commonly used to package drugs. In 

what appeared to be a child’s room, there were envelopes with the names of known

former gang members. In the master bedroom, officers found a red hat with the letter W 

and a red jacket with the letter B, both appearing to be gang related. 

In defendant’s car, officers found a loaded .357-caliber revolver and just over 21 

grams of methamphetamine, as well as defendant’s cell phone. Upon a later search of 

defendant’s cell phone, officers found several photos and videos indicating defendant 

belonged to the largest criminal street gang in Woodland⸺the Varrio Bosque Norteño 

subset of the Norteño criminal street gang.2 In the photos and videos, defendant can be 

seen with several known Varrio Bosque members, all wearing gang clothing and 

displaying gang signs and tattoos. His phone contained several other photos of known 

Varrio Bosque members. Defendant also had two gang-related tattoos, including “Nor” 

and “Cal” on the back of each calf, and a pair of dice inside of one calf⸺one die with one 

dot and the other with four to signify the number 14, a number associated with the 

Norteño criminal street gang. 

2 The parties stipulated the Varrio Bosque Norteño gang was a subset of the 

Norteño criminal street gang and constituted a criminal street gang for the purposes of 

former section 186.22. 
5

Defendant also communicated with several known gang members on his phone 

through text messages and social media. For example, defendant took a screenshot of a 

conversation he had with a known Varrio Bosque member, in which the known member 

explained he cheated the legal system to get probation instead of prison and any 

statements to the contrary were gossip because he was loyal to the gang “till the day [he]

die[s].” In another screenshot of a social media conversation with known Varrio Bosque 

members, defendant described himself as “#WARREADY” and stated, “Me and my three 

brothers will tear this town down and anybody who wants it. #fullys with 100 round 

drums, #Glock with 30 sticks, 45 with extended clips, tre pounds that knock your whole 

family down on #God . . . , yall don’t want to pistol play.”

In yet another conversation, this time with an unknown individual, defendant 

appeared to be discussing an investigation the Varrio Bosque were conducting into an 

affiliated member who testified against active gang members in another jurisdiction. The 

conversation appeared to pertain to collecting evidence to justify an assault against the 

affiliate; however, the “paperwork” had not come through the appropriate channels to 

justify the hit. 

The gang expert testified the primary criminal activities of the Varrio Bosque were

crimes of violence, drug sales, assaults, and possession and sale of illegal firearms. It is 

common in gangs, as well as this one, for guns to be passed around from one gang 

member to another. With some exception, gang members who are allowed to possess 

firearms will commonly hold them for the gang and then relinquish possession to other 

members upon request. 

There were several photos and videos of guns found on defendant’s phone, many 

of which appeared to be of weapons seized during the search. One such photo showed 

two known Varrio Bosque gang members, one of whom was holding the revolver 

recovered from defendant’s car with the sighting device recovered from the safe attached 

to it. Another photo depicted three short-barrel, AR-15 rifles, similar to one found in the 
6

safe, with 40-round magazines and foregrips positioned near a placard stating “City of 

Trees,” which is sometimes used by the Varrio Bosque to signify their gang and local 

affiliation. Also, on a video taken from defendant’s cell phone showing a weapon and 

ammunition later seized by police, defendant can be seen with several jars of marijuana 

and packages of methamphetamine prepared for sale.3 

During a September 3, 2014, conversation on Facebook with an unknown 

individual, defendant said, “I got a plug on something better, but it is pricey.” Then

continued, “Mini AR-15s, fully auto with stock that pulls straight out, four grip laser, and 

hundred round drums[4] with all American parts, no serial numbers. Everything illegal. 

It’s pricey, though. $1,800 to two grand.” When the individual expressed hesitation, 

defendant justified the price because “the guy who builds them takes a risk putting them 

together, and they are fully auto.” Further, “there are no serial numbers.” The unknown 

individual appeared to want to purchase a legal weapon, to which defendant responded,

“I don’t do the legal stuff, but do your thing my dude.” 

On March 14, 2015, defendant texted with multiple individuals, some of whom 

were known Varrio Bosque members. The messages appeared to be attempts at rallying

Varrio Bosque members to fight at a park or at someone’s home about a conflict within 

the gang. Defendant could not participate because he was watching his children, and 

nothing seemed to have come of the conversation. During the conversation, however, 

defendant texted he would “bring the toy,” referring to a gun, and there were other 

references to weapons and attack strategy. 

3 Further evidence of defendant’s drug sale activity was found in a Facebook 

conversation with an unknown individual who greeted defendant with language 

commonly used among gang members and asked “how much for 4oz.” A photo was also 

recovered from defendant’s phone showing a large quantity of pills and a bottle of 

codeine syrup with the words “Who need there FIX $$$” typed across it. 

4 A “drum” is a type of magazine for a firearm. 
7

On April 1, 2015, defendant took a screenshot with his cell phone of a photograph 

of an AR-15 rifle with a 100-round magazine attached to it. Also, in the photo were a 

subcompact handgun with a magazine sticking out of it, along with other magazines, two 

of which held over 20 rounds, and a separate 50 round magazine. Two other firearms and 

other ammunition appeared in the photo as well. Written over the photograph in a 

typewritten banner appear the words “Everything goin[,] hit me.” The cell phone expert 

testified he was able to find the photo on defendant’s phone without the added banner of 

text. It appeared as a thumbnail, meaning the image was downloaded from an external 

source or the product of a screenshot from that source. When an image appears as a 

thumbnail, however, it does not mean the image was not also taken on that phone. It is 

possible to download or take an image, add graphics and text, and then take a screenshot 

of the resulting image. While the cell phone download provided a lot of information, it 

did not recover everything, leaving some doubt about where some of the images came 

from or from where the images were sent. No testimony established defendant sent the 

image in either of its forms to others. The pistols in the photo were not recovered, but a 

similar AR-15 rifle, the extended magazines, and other ammunition were recovered from 

the safe at defendant’s parents’ home. 

On June 16, 2015, a known Varrio Bosque gang member texted defendant asking 

what guns he possessed. Defendant responded, “H.k. 45 two tone with a sleeve that goes 

over the barrel its got a green beam with flash light and like a x target thing u look into. 

[¶] That glock 40 with the 30 and a beam . . . [¶] . . . And two 357s.” Around this time,

which was also when officers searched defendant’s property, three other validated Varrio 

Bosque gang members in the Woodland area were caught selling short-barrel, fully 

automatic AR-15 rifles to different police agencies. 

The gang expert testified that possession of fully automatic weapons and largecapacity magazines would benefit a criminal street gang because it contributed to the 

intimidation the gang exerted to accomplish its crimes. Weapons, especially illegal 
8

weapons, add to the intimidation targeted toward rival gangs and the community, 

accomplishing fear. Guns also garner respect for individuals within the gang by elevating 

that individual to a higher status. 

Based on this evidence, the court found defendant guilty of “selling or 

manufacturing or converting a firearm into a machine gun,” possessing a controlled 

substance for sale, four counts of being a felon in possession of a firearm, three counts of 

selling large-capacity magazines, possessing a controlled substance while armed, and 

carrying a loaded firearm in public. The court also found the gang enhancements 

attached to each count true and the firearm enhancement attached to defendant’s 

possession of a controlled substance for sale conviction true. The court also found 

defendant had previously been convicted of a felony within the meaning of the three 

strikes law but struck the prior serious felony conviction enhancement based on the same 

conviction. The court sentenced defendant to an aggregate term of 18 years 4 months on 

this case. 

Defendant appeals. 

DISCUSSION

I

There Is No Discoverable Material Contained In The Warrant Affidavit

Defendant requests we independently review the search warrant and 

accompanying sealed affidavit for discoverable evidence that may support a motion to 

suppress. The People concede defendant is entitled to this review. 

“When a defendant seeks to quash or traverse a warrant where a portion of the 

supporting affidavit has been sealed, the relevant materials are to be made available for in 

camera review by the trial court.” (People v. Galland (2008) 45 Cal.4th 354, 364; 

accord, People v. Hobbs (1994) 7 Cal.4th 948, 963 (Hobbs); see Evid. Code, § 915, 

subd. (b) [providing for in camera review of confidential information].) “The court 

should determine first whether there are sufficient grounds for maintaining the 
9

confidentiality of the informant’s identity. If so, the court should then determine whether 

the sealing of the affidavit (or any portion thereof) ‘is necessary to avoid revealing the 

informant’s identity.’ ” (Galland, at p. 364; accord, Hobbs, at p. 972.)

Once the trial court determines the affidavit was properly sealed, it “should 

proceed to determine ‘whether, under the “totality of the circumstances” presented in the 

search warrant affidavit and the oral testimony, if any, presented to the magistrate, there 

was “a fair probability” that contraband or evidence of a crime would be found in the 

place searched pursuant to the warrant’ (if the defendant has moved to quash the warrant) 

or ‘whether the defendant’s general allegations of material misrepresentations or 

omissions are supported by the public and sealed portions of the search warrant affidavit, 

including any testimony offered at the in camera hearing’ (if the defendant has moved to 

traverse the warrant).” (People v. Galland, supra, 45 Cal.4th at p. 364, quoting Hobbs, 

supra, 7 Cal.4th at pp. 975, 974.) We independently review the record and sealed portion 

of the affidavit to determine whether there was a “reasonable probability” defendant

could prevail on his motion to traverse or quash the search warrant. (Hobbs, at p. 975.)

We have reviewed the entire record, including the sealed search warrant affidavit 

presented to the trial court in camera. We conclude the trial court did not err in refusing 

to unseal the sealed affidavit providing probable cause for issuance of the search warrant 

because disclosure of its contents would reveal the identity of the confidential informant. 

(Hobbs, supra, 7 Cal.4th at p. 971; People v. Camel (2017) 8 Cal.App.5th 989, 1009 [trial 

court did not err in refusing to unseal entire search warrant affidavit or in determining 

which portions had to remain under seal to protect confidentiality of confidential 

informants].)

Additionally, there is nothing in the sealed search warrant affidavit to suggest the 

affiant made any misrepresentations or omissions in applying for the search warrant. 

(Hobbs, supra, 7 Cal.4th at p. 977.) The sealed affidavit further provided an adequate 

basis to establish the informant’s reliability, and the information provided by the 
10

confidential informant supported the magistrate’s finding of probable cause for issuance 

of the search warrant. (Id. at p. 975.) The trial court properly denied the motions to 

unseal the search warrant affidavit.

II

Defendant Intelligently Waived His Jury Trial Right

Defendant contends the record lacks any showing he intelligently waived his right 

to a jury trial, requiring reversal. We disagree. 

A

Background

At the start of the trial readiness conference, both the prosecution and defense

indicated they had decided to waive a jury trial. The court asked defendant whether he 

understood that the court would try his case and defendant answered in the affirmative. 

The court then accepted defendant’s waiver of his trial right. 

At sentencing, defendant asked to be heard regarding his counsel’s ineffectiveness. 

He explained he “never wanted to have a bench trial, but [his attorney] pressured, 

conned, and persuaded [him] into doing so by falsely advising [him] that it [wa]s [his

only] option of beating some of [his] charges, and that [counsel and the court] ha[d] a 

great rapport and relationship, so that w[ould] play a huge part in [his] trial. [¶] [His 

attorney] also explained to [defendant] and informed [him] that the difference between a 

bench trial and jury trial is that when you have a jury trial, the jury can convict [him] on 

their feelings and emotions while a bench trial with the judge has to uphold the law and 

can only convict [him] on evidence and facts. This [wa]s all propaganda, and [he] was 

misled into believing that [counsel] had [his] best interest at hand.” Defendant listed 

several other problems he had with his attorney’s representation not pertinent to his jury 

trial waiver. 
11

Given defendant’s statements, the court scheduled a Marsden5 hearing. At the 

Marsden hearing, defense counsel responded to defendant’s concerns. As it pertained to 

defendant’s jury trial waiver, trial counsel stated, “I did not feel I pressured [defendant], 

though, I could see how he would feel pressure. I did advise him on that. Interestingly 

enough, prior counsel, according to his mother, had also advised him to waive jury in 

this. The reason was that the sheer number of guns and the connection, however tenuous, 

to gangs I felt was going to make such an impression on the jury that [it] would be --

have a tendency to lose focus and be very, very prejudic[ial]. I felt that that was going to 

be lessened with a court trial. May have been wrong, but that was my thinking on it and 

that’s why we did it. [¶] As far as his statement that I told him I had a special 

relationship with you, I never said that. And one of the interesting things that you may 

remember, but we did this at sidebar, both [the prosecutor] and I indicated we would only

waive a jury if you handled it. Both sides wanted you to handle it.” 

The court denied defendant’s Marsden motion and motion for a new trial based on 

ineffective assistance of counsel, to the extent defendant moved for such relief.6 

B

The Record Demonstrates Defendant Was 

Informed Of The Meaning Of A Jury Trial

A criminal defendant has the constitutional right to a jury trial. (U.S. Const., 6th 

Amend.; Cal. Const., art. I, § 16; People v. Sivongxxay (2017) 3 Cal.5th 151, 166

(Sivongxxay).) The defendant may waive his constitutional right to a jury trial, provided 

5 People v. Marsden (1970) 2 Cal.3d 118.

6 Defendant does not argue on appeal his waiver was involuntary, as his trial court 

argument implied. Indeed, the trial court accepted counsel’s version of events. What 

remains from defendant’s allegations is that defendant discussed with his counsel the pros 

and cons of a court trial compared to a jury trial, and he failed to see how the reasons 

underpinning those discussions benefited him at trial. 
12

the waiver is “ ‘knowing and intelligent, that is, “ ‘ “made with a full awareness both of 

the nature of the right being abandoned and the consequences of the decision to abandon 

it,” ’ ” as well as voluntary “ ‘ “in the sense that it was the product of a free and deliberate 

choice rather than intimidation, coercion, or deception.” ’ ” ’ [Citation.] ‘[W]hether or 

not there is an intelligent, competent, self-protecting waiver of jury trial by an accused 

must depend upon the unique circumstances of each case.’ ” (Sivongxxay, at p. 166.) 

Our Supreme Court has “persistently declined to mandate any specific admonitions 

describing aspects of the jury trial right.” (People v. Daniels (2017) 3 Cal.5th 961, 992; 

see Sivongxxay, at p. 167 [“Our precedent has not mandated any specific method for 

determining whether a defendant has made a knowing and intelligent waiver of a jury 

trial in favor of a bench trial”].) 

In Sivongxxay, our Supreme Court provided guidance for trial courts taking jury 

trial waivers. The guidance included “that trial courts advise a defendant of the basic 

mechanics of a jury trial in a waiver colloquy, including but not necessarily limited to the 

facts that (1) a jury is made up of 12 members of the community; (2) a defendant through 

his or her counsel may participate in jury selection; (3) all 12 jurors must unanimously 

agree in order to render a verdict; and (4) if a defendant waives the right to a jury trial, a 

judge alone will decide his or her guilt or innocence.” (Sivongxxay, supra, 3 Cal.5th at 

p. 169.)

Our Supreme Court also recommended “the trial judge take additional steps as 

appropriate to ensure, on the record, that the defendant comprehends what the jury trial 

right entails. A trial judge may do so in any number of ways -- among them, by asking 

whether the defendant had an adequate opportunity to discuss the decision with his or her 

attorney, by asking whether counsel explained to the defendant the fundamental 

differences between a jury trial and a bench trial, or by asking the defendant directly if he 

or she understands or has any questions about the right being waived. Ultimately, a court 

must consider the defendant’s individual circumstances and exercise judgment in 
13

deciding how best to ensure that a particular defendant who purports to waive a jury trial 

does so knowingly and intelligently.” (Sivongxxay, supra, 3 Cal.5th at pp. 169-170.) The 

court was careful to emphasize that this “guidance is not intended to limit trial courts to a 

narrow or rigid colloquy.” (Id. at p. 170.)

The test of a valid waiver turns on whether the record affirmatively shows that the 

waiver is voluntary and intelligent under the totality of the circumstances. (Sivongxxay, 

supra, 3 Cal.5th at p. 167.) We independently examine the record to determine whether 

this standard has been met. (People v. Burgener (2009) 46 Cal.4th 231, 241.)

Defendant relies on Jones and Blanchett. (People v. Jones (2018) 26 Cal.App.5th 

420; People v. Blancett (2017) 15 Cal.App.5th 1200.) In these cases, the records did not 

affirmatively show the defendants’ jury waivers were intelligent and voluntary. (Jones, 

at pp. 435-437; Blancett, at pp. 1204-1207.) In both cases (1) the waiver colloquies were 

limited to asking the defendants whether they agreed to have, or were “okay” with 

having, their cases decided by the court rather than a jury; (2) the defendants were not 

advised of any of the other “significant attributes” or basic “mechanics” of a jury trial; 

and (3) the trial courts did not ask the defendants whether they had had sufficient 

opportunities to discuss their jury waivers with their counsel. (Jones, at pp. 428, 434, 

437; see Blancett, at pp. 1203, 1205-1206.) Additionally, the defendant in Jones had no 

prior experience with the criminal justice system. (Jones, at p. 437.) Similarly, the 

record in Blancett did not show the defendant, a mentally disordered offender facing his 

first civil commitment proceeding, was “legally sophisticated” or knew he was entitled to 

a jury trial. (Blancett, at p. 1206.) 

We agree with defendant to the extent he argues the trial court’s colloquy was 

sparse and did not inform him of the mechanics of a jury trial. The record as a whole, 

however, demonstrates defendant voluntarily and knowingly waived his right to a jury 

trial. When describing to the court his counsel’s inadequacies, defendant indicated he 

had discussed the pros and cons of choosing a court trial with a judge, over a jury trial. 
14

Specifically, he explained he understood the judge would likely view the evidence in the 

context of the law, while a jury would likely view it with bias and emotion. We can 

understand this to mean defendant discussed with his attorney what a jury trial consisted 

of and why his case would be better suited for a court trial, having his case heard by a

judge alone. Thus, while the waiver colloquy may not have informed defendant of the 

basic mechanisms of a jury trial and what that entailed, the record demonstrates his 

attorney did. 

Defendant disagrees, arguing we cannot infer he was adequately informed of his 

jury trial right simply because he was represented by counsel. We do not infer defendant 

was adequately informed because he was represented, we infer he was adequately 

informed because defendant said he spoke to his attorney about the tactical implications 

of choosing a court trial over a jury trial. This provides the evidence lacking in Jones and 

Blancett. (See People v. Jones, supra, 26 Cal.App.5th at pp. 435-437; see also People v. 

Blancett, supra, 15 Cal.App.5th at pp. 1204-1207.) While counsel did not state on the 

record he explained the basic mechanics of a jury trial to defendant, we can infer a 

tactical discussion as described by defendant would also include those topics. 

Further, while arguing to the court his counsel was inadequate, defendant 

displayed a relatively high level of knowledge regarding the legal system. He cited 

specific code sections to the court as well as long-standing legal principles of due process 

and the right to effective counsel. Defendant also indicated he was heavily involved in 

the strategy of his case by suggesting witnesses, including expert witnesses, and motions. 

This was also not defendant’s first encounter with the legal system, having been 

convicted of a prior strike-qualifying felony conviction. The whole of the evidence 

suggests defendant had a level of legal sophistication such that he knew what the jury 

right entailed. Accordingly, the record reflects defendant voluntarily and intelligently 

waived his right to a jury trial. 
15

III

Sufficiency Of The Evidence

“In assessing a claim of insufficiency of evidence, the reviewing court’s task is to 

review the whole record in the light most favorable to the judgment to determine whether 

it discloses substantial evidence -- that is, evidence that is reasonable, credible, and of 

solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a 

reasonable doubt.” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) “The standard of 

review is the same where the prosecution relies primarily on circumstantial evidence. 

(In re Alexander L. (2007) 149 Cal.App.4th 605, 610.) “ ‘An appellate court must accept 

logical inferences that the [trier of fact] might have drawn from the evidence even if the 

court would have concluded otherwise.’ ” (People v. Halvorsen (2007) 42 Cal.4th 379, 

419.) Before a verdict may be set aside for insufficiency of the evidence, a party must 

demonstrate “ ‘that upon no hypothesis whatever is there sufficient substantial evidence 

to support [the conviction].’ ” (People v. Bolin (1998) 18 Cal.4th 297, 331.) The 

sufficiency of the evidence to support an enhancement is reviewed using the same 

standard applied to a conviction. (People v. Wilson (2008) 44 Cal.4th 758, 806.) 

A

Sufficient Evidence Established Defendant Offered To 

Sell A Machine Gun And Its Compatible Large-Capacity Magazine

Defendant was convicted of offering to sell a machine gun (§ 32625, subd. (b)), as 

well as three violations of section 32310, which includes among its prohibitions the 

offering for sale of a large-capacity magazine. He argues the evidence does not support

the theory he offered to sell the prohibited items. We agree in part. 

The parties agree the only evidence potentially showing defendant offered to sell a 

machine gun and three large-capacity magazines was the image from his cell phone with 

the phrase “Everything goin[,] hit me” and the Facebook conversation with an unknown 
16

individual in which defendant indicated he had a “plug” on where to buy a machine gun

with a 100-round magazine. 

We agree with defendant that the photo of multiple firearms and three largecapacity magazines with the phrase “Everything goin[,] hit me” is insufficient to show he

offered these items for sale. The evidence showed defendant downloaded the unedited 

image from an external source and took a screenshot of the image as edited. The expert 

explained that although the unedited image appeared on defendant’s phone through an 

external source, it could have also been taken on defendant’s phone. It is also possible to 

edit an image on a cell phone and take a screenshot of the result. Further, a similar 

machine gun and high-capacity magazines to those appearing in the photo were seized 

from the safe at defendant’s parents’ home. From this evidence, we can infer that

defendant took the photo and composed an advertisement to sell these items, but not that 

he sent the advertisement as an offer to sell them. 

The People disagree and argue the evidence is sufficient because it is a more 

reasonable inference that defendant sent the edited image to at least one person than 

“keeping it hidden on his phone.” Not so. While the expert testified the results of the 

cell phone download were incomplete, we cannot infer the existence of an entry that may

not exist without some evidence supporting it. No evidence was introduced showing

another person received the advertisement from defendant or saw it posted on a social 

media platform. The fact that some of the weapons appearing in the advertisement were

not recovered from the search, does not necessarily mean defendant relinquished these 

items through sale, thus implying the advertisement was sent. The evidence 

overwhelmingly suggested defendant kept an arsenal of weapons for ready use by fellow 

gang members. Indeed, around the time the advertisement appeared on defendant’s cell

phone, he had two conversations wherein he implied to fellow gang members they could 

have access to his arsenal. Because no evidence tends to corroborate the People’s 

conclusion defendant sent or posted the advertisement, we believe that conclusion equally 
17

true to its counter⸺that defendant kept the advertisement on his phone. Thus, the finding 

defendant offered to sell the items in the screenshot on his cell phone was unsupported by 

the evidence. (See People v. Sifuentes (2011) 195 Cal.App.4th 1410, 1416-1417

[“ ‘ “ ‘[a] finding of fact must be an inference drawn from evidence rather than . . . a 

mere speculation as to probabilities without evidence’ ” ’ ”], disapproved on other 

grounds in People v. Farwell (2018) 5 Cal.5th 295, 304, fn. 6.) 

As to the Facebook conversation between defendant and an unknown individual in 

which defendant indicated he knew where to purchase a machine gun and “hundred 

round drums,” we believe that sufficient to establish he offered to sell a machine gun and 

a 100-round magazine. During the conversation, defendant showed his extensive 

knowledge of the machine gun by listing its characteristics and price, indicating his 

knowledge extended beyond knowing of a potential source for the machine gun. When 

the unknown individual expressed hesitation at purchasing such an expensive weapon, 

defendant became a salesman by justifying the price by pointing to the gun’s illegal but 

desirable characteristics and the risk involved in its manufacturing. The evidence also 

showed defendant possessed a machine gun and large-capacity magazine similar to the 

one he described in the conversation and that he was a member of a gang whose primary 

criminal activity was the sale of this assault weapon. Taken together, it was reasonable to 

infer the “fully auto” weapon and “hundred round drum[]” defendant offered to the 

unknown individual was the machine gun and the 100-round magazine he possessed or 

could be sourced from the criminal enterprise in which he participated. Accordingly, 

sufficient evidence supports defendant’s convictions for offering to sell a machine gun 

(count 1) and the 100-round, large-capacity magazine (count 7). 
18

B

Sufficient Evidence Supports Defendant’s Convictions Regarding 

The Large-Capacity Magazines Compatible With The Handguns

Former section 32310 provided at the time of defendant’s arrest in June 2015 that 

“any person . . . who manufactures or causes to be manufactured, imports into the state, 

keeps for sale, or offers or exposes for sale, or who gives, lends, buys, or receives any 

large-capacity magazine is” guilty of either a misdemeanor or a felony. (Stats. 2013, 

ch. 728, § 1.) Other than the conviction for the 100-round magazine, we concluded

defendant offered to sell, he was also convicted of two other offenses under this section

based on the large-capacity magazines found in the safe. 

The People argue those convictions are supported by the evidence because the 

statute prohibits the receiving of a large-capacity magazine, in addition to its sale, and the 

evidence, at a minimum, established defendant received the large-capacity magazines 

before putting them in the safe. Defendant counters the evidence was insufficient under 

this theory because receiving and purchasing large-capacity magazines became illegal in 

January 2014 (compare Stats. 2013, ch. 728, § 1 with Stats. 2012, ch. 43 § 107), and the 

prosecution did not establish he received or purchased the large-capacity magazines after 

the prohibition was enacted. We agree with defendant. The evidence established 

defendant was a long-time member of the Varrio Bosque gang and often possessed 

firearms and large-capacity magazines. Given this evidence, it is not clear he received or 

purchased the large-capacity magazines after 2014 when the statute prohibited such 

conduct. 

The evidence, however, does show defendant kept the two large-capacity 

magazines for sale. During defendant’s Facebook conversation where he offered to sell 

an automatic assault weapon and its compatible large-capacity magazine, defendant

indicated he had access to other illegal weapons to sell. Defendant further manifested an 

intent to sell these particular large-capacity magazines by composing an advertisement to 
19

sell them. Considered with defendant’s participation in the illegal weapons trade, the 

evidence sufficiently established defendant kept the large-capacity magazines for the 

purposes of selling them. Thus, the evidence shows a violation of former section 32310 

as it pertains to the large-capacity magazine compatible with the .40-caliber handgun 

(count 8) and the large-capacity magazine compatible with a nine-millimeter handgun 

(count 9). 

C

Sufficient Evidence Supports Most Of Defendant’s Gang Enhancements Under 

The Gang Enhancement Statute In Effect At The Time Of Defendant’s Trial

Defendant contends insufficient evidence established he committed all the 

offenses for the benefit of a criminal street gang. We agree sufficient evidence did not 

establish defendant acted for the benefit of a criminal street gang (1) when he possessed 

methamphetamine for sale or (2) when he possessed a loaded firearm in public and while 

in possession of drugs. We disagree as to defendant’s other contentions. 

1

Applicable Law

The “enhancement [formerly] set forth in section 186.22[, subdivision ](b)(1) does 

not . . . depend on membership in a gang at all. Rather, it applies when a defendant has 

personally committed a gang-related felony with the specific intent to aid members of 

that gang.” (People v. Albillar (2010) 51 Cal.4th 47, 67-68.) To prove the crime was 

“gang related,” the prosecution needed to only prove one of three alternatives: the crime 

was committed “(1) for the benefit of, (2) at the direction of, or (3) in association with a 

gang.” (People v. Morales (2003) 112 Cal.App.4th 1176, 1198, italics omitted.)

“Second, there must be evidence that the crimes were committed ‘with the specific intent 

to promote, further, or assist in any criminal conduct by gang members.’ ” (People v. 

Rios (2013) 222 Cal.App.4th 542, 561.)
20

The prosecution was permitted to rely on expert testimony regarding criminal 

street gangs to establish a gang enhancement. (People v. Vang (2011) 52 Cal.4th 1038, 

1048.) “A gang expert’s testimony alone[, however,] is insufficient to find an offense 

gang related. [Citation.] ‘[T]he record must provide some evidentiary support, other 

than merely the defendant’s record of prior offenses and past gang activities or personal 

affiliations, for a finding that the crime was committed for the benefit of, at the direction 

of, or in association with a criminal street gang.’ ” (People v. Ochoa (2009) 

179 Cal.App.4th 650, 657; accord, People v. Albillar, supra, 51 Cal.4th at p. 63.) 

“[P]urely conclusory and factually unsupported opinions” that the charged crimes are for 

the benefit of the gang because committing crimes enhances the gang’s reputation are 

insufficient to support a gang allegation. (People v. Ramirez (2016) 244 Cal.App.4th 

800, 819-820.)

Defendant relies on four cases to illustrate this point. First, in Rios, a jury found

the defendant guilty of carrying a loaded firearm in a vehicle and unlawful taking of a 

vehicle, finding the gang enhancement allegations attached to those crimes true under the 

former gang enhancement statute. (People v. Rios, supra, 222 Cal.App.4th at p. 545.) 

An officer saw the defendant driving a car, which was later determined to have been 

stolen, and pulled the vehicle over based on a cracked windshield. (Id. at pp. 547-548.) 

Because the defendant, the vehicle’s sole occupant, did not have a driver’s license, the 

officer decided to impound the car. (Ibid.) During an inventory search, the officer found 

gang-related paraphernalia and a loaded, unregistered gun wrapped in a T-shirt under the 

front passenger seat. (Id. at p. 548.) Defendant admitted to gang membership and 

association during the booking process but denied membership at trial. (Id. at p. 549-550, 

554.) “[T]here was no evidence that any victim in this case or anyone in the local 

community knew defendant was a gang member, was affiliated with a gang, or was 

acting with a gang purpose.” (Id. at p. 573.) The gang expert in Rios testified as to the 

value and uses of a gun, especially an unregistered gun that “cannot be traced back to the 
21

gang member.” (Id. at pp. 550, 553.) It was his opinion that “a gang member with a 

firearm promotes, furthers and assists felonious conduct by other gang members.” (Id. at 

p. 553.) The appellate court held this testimony and the evidence presented insufficient 

under the former statute because “in a case such as this, where the defendant acts alone, 

the combination of the charged offense and gang membership alone is insufficient to 

support an inference on the specific intent prong of the gang enhancement” because 

“[o]therwise, the gang enhancement would be used merely to punish gang membership.” 

(Id. at pp. 573-574.) 

Also pertaining to the specific intent element, defendant points to Ramon. 

(People v. Ramon (2009) 175 Cal.App.4th 843.) In Ramon, the defendant, a gang 

member, was stopped by police in his gang’s territory while driving a stolen truck. A 

fellow gang member was his passenger, and an unregistered firearm was found under the 

driver’s seat. (Id. at pp. 846-847, 849.) The prosecution’s gang expert testified at trial 

that the stolen truck and the unregistered firearm could be used to commit gang crimes. 

(Id. at pp. 847-848.) He offered an opinion that possession of a gun and driving of a 

stolen truck in gang territory therefore benefited the gang and that the perpetrators of 

these offenses would intend to promote the gang. (Id. at p. 848.) The expert testified 

stolen trucks and firearms were “tools” the gang needed to commit other crimes. (Ibid.) 

The appellate court concluded this insufficient under the former statute to prove the 

defendant had the specific intent to promote, further, or assist criminal conduct by gang 

members because no facts beyond the defendant’s gang membership, association, and 

location informed the expert’s opinion as to the crimes charged. (Id. at p. 852.) “While 

the People’s expert’s opinion certainly was one possibility, it was not the only possibility. 

And, as stated ante, a mere possibility is not sufficient to support a verdict.” (Id. at 

p. 853.) 

Ochoa, on the other hand, pertains to the sufficiency of the evidence to support the 

gang benefit element of the former gang enhancement. (People v. Ochoa, supra, 
22

179 Cal.App.4th at p. 652.) There, the defendant, a gang member, acted alone in 

committing a carjacking with a shotgun. (Id. at p. 653.) The offense had not occurred in 

the defendant’s gang’s territory. (Id. at p. 662.) A divided Fourth District found the 

evidence insufficient under the former statute to sustain the benefit element of the gang 

enhancements attached to defendant’s carjacking and felon in possession of a firearm 

convictions. “[N]othing in the circumstances of the instant offenses sustain[s] the expert 

witness’s inference that they were gang related.” (Id. at pp. 661-662.) “[The gang 

expert’s testimony] was based solely on speculation, not evidence. An appellate court 

cannot affirm a conviction based on speculation, conjecture, guesswork, or supposition.” 

(Id. at p. 663.) 

In Perez, we concluded the evidence supporting both prongs was lacking under the 

former statute. (People v. Perez (2017) 18 Cal.App.5th 598, 610.) There, the defendant, 

a “validated and heavily tattooed [Norteño] gang member,” shot four students at a college 

party. (Id. at pp. 601-603.) There was no evidence, however, he was accompanied by a 

fellow gang member or the shooting took place in gang territory. (Id. at pp. 601, 609.) In 

response to the prosecutor’s hypothetical question (id. at p. 609), the gang expert testified

the shooting benefited the Norteños because “ ‘[the shooting]’s going to instill fear in 

anybody who knows about that shooting occurring’ ” and “ ‘[t]hat fear is going to be now 

attributed to the reputation of the Norteños’ ” (id. at p. 610). The evidence, though, 

undermined his opinion: the defendant did not wear gang clothing, did not yell gang 

epithets, and did not throw gang signs; the defendant’s tattoos were not visible; and the 

partygoers did not know about the defendant’s gang affiliation. (Id. at pp. 609, 613-614.)
23

2

Sufficient Evidence Supports The Gang Enhancements Under

The Former Statute, Except For Those Attached To The 

Convictions Concerning Items Seized From Defendant’s Car 

Defendant argues his case is similar to the above examples because no evidence 

linked his conduct with his gang, except the expert’s speculation and assumptions. 

Starting with defendant’s offer to sell the machine gun and its compatible large-capacity 

magazine, defendant argues the evidence is insufficient under the former statute to show 

the offenses were gang related or that his specific intent was to assist any specific 

criminal conduct. Not so. 

In addition to defendant’s offer to sell and his gang membership, the evidence 

corroborated the gang expert’s testimony gun sales were a primary criminal activity of 

the Varrio Bosque and defendant’s engagement in that activity was gang related. At the

time of defendant’s arrest, three other Varrio Bosque members were arrested for offering 

to sell short-barrel machine guns similar to the one defendant owned. One of them was 

Javier Moreno, a person featured in multiple videos on defendant’s cell phone

proclaiming his loyalty to defendant’s gang. 

Further, defendant possessed the same type of weapon those members possessed 

and offered to sell the weapon nine months before his fellow gang members were arrested

for similar conduct. This leads to the reasonable inference defendant and his fellow gang 

members sourced multiple weapons to sell as a gang. Indeed, a photo from defendant’s 

cell phone confirms this inference. The photo of three short-barrel assault weapons 

(similar in appearance to the machine gun seized from the safe) next to gang 

paraphernalia (the “City of Trees” placard) suggested defendant had access to multiple 

machine guns through his gang membership. Thus, evidence beyond defendant’s gang 

membership and the crime itself established the offer to sell was associated with the

Varrio Bosque’s criminal activity of illegally selling machine guns and that defendant 
24

intended his conduct to assist in that criminal venture. Because the evidence links 

defendant’s offer to sell the machine gun and compatible large-capacity magazine to the 

Varrio Bosque in this way, we need not address whether the evidence established the 

Varrio Bosque’s reputation for violence was benefited through this conduct as well. 

Unlike the offer to sell the machine gun and its compatible magazine, the evidence 

did not corroborate the gang expert’s testimony the Varrio Bosque also sold drugs as a

primary criminal activity. No evidence established other members were engaged in drug 

sales, nor did the videos or photos from defendant’s cell phone link defendant’s drug 

sales to his gang. True, his possession of drugs was heavily linked to his possession of 

guns, but these videos do not show defendant flashing gang signs or calling out gang 

names. The only evidence indicating defendant’s drug sales were gang related was a 

single communication where an unidentified individual asks defendant for drugs while 

referring to him by a commonly used gang term. This evidence reasonably established 

that one of defendant’s clients was a gang member, but not that defendant sold drugs as 

part of the larger Varrio Bosque criminal network and benefited the gang through his 

conduct. Because no evidence corroborated the expert’s opinion defendant’s sale of 

methamphetamine was gang related, let alone that he sold drugs with the specific intent 

to benefit the Varrio Bosque, insufficient evidence supports the gang enhancement under 

the former statute attached to that conviction. 

The evidence is also insufficient to support the enhancements under the former 

statute attached to defendant’s convictions for possessing a loaded firearm in public and 

while possessing methamphetamine. These convictions, as well as the possession of 

methamphetamine with intent to sell, were based on the search of defendant’s car after he 

arrived at work. While the expert testified gun possession benefits a gang’s reputation 

for violence and strikes fear in the community, we share the concerns of the cases cited 

by defendant in that there is no evidence specific to defendant showing his possession of 

this loaded firearm in public and while in possession of methamphetamine benefited his 
25

gang. (See People v. Perez, supra, 18 Cal.App.5th at pp. 613-614; People v. Rios, supra, 

222 Cal.App.4th at pp. 573-574; People v. Ramon, supra, 175 Cal.App.4th at pp. 852-

853; People v. Ochoa, supra, 179 Cal.App.4th at p. 663.) No evidence showed defendant 

shared his gang affiliation in the workplace, let alone that anybody actually knew of his 

membership or possession of guns and methamphetamine. Thus, no evidence 

corroborates the expert’s testimony the Varrio Bosque’s reputation was enhanced by 

defendant’s possession of a loaded firearm at the time of his arrest. Further, we have 

already concluded the evidence was insufficient to establish defendant’s possession of 

methamphetamine for purposes of sale was gang related, thus we cannot conclude his 

possession of a loaded firearm would benefit the gang by protecting the product sold as 

its criminal activity. Accordingly, insufficient evidence supports the gang enhancements 

under the former statute attached to defendant’s convictions for possessing a loaded 

firearm in public and while in possession of methamphetamine. 

Outside of the primary criminal activities of the Varrio Bosque, the gang expert 

testified it was common among gang members to share weapons for use in criminal 

activities. Usually, the member with the shortest criminal record or risk of being caught 

would store the guns for shared use. Ample evidence established this was true for 

defendant. Defendant’s father testified defendant stored defendant’s weapons at his

(defendant’s father’s) home because defendant was not allowed to own them. Despite 

not keeping the weapons in his home, defendant had unfettered access to them, which the 

evidence established he then offered to his fellow gang members. When promoting his 

gang’s reputation for violence on social media, defendant indicated the handguns in the 

safe, along with their compatible large-capacity magazines, were available to his 

“brothers” to wage war. During a text message conversation with multiple gang 

members, defendant offered other weapons for use while planning a potential assault to 
26

solve an internal gang conflict.

7

 Similarly, during a text conversation, defendant listed 

his weapons when a fellow Varrio Bosque member inquired what “toys” he owned, as if 

taking inventory of available firearms. Further, photos on defendant’s cell phone show 

he allowed his fellow gang members to possess the weapons at least for photos. Taken 

together, the evidence established defendant was willing to share possession of his guns 

with his fellow Varrio Bosque members for the purpose of committing criminal activities, 

like the assault to resolve a gang conflict or for purposes of intimidating the community 

as shown in defendant’s Facebook posts and various photos on his cell phone. Thus, 

evidence beyond defendant’s gang membership and the expert’s testimony linked his 

possession of the firearms in the safe and his car to the Varrio Bosque. Accordingly, 

sufficient evidence supports the gang enhancements under the former statute attached to 

those convictions. 

D

Insufficient Evidence Supports Defendant’s Remaining 

Gang Enhancements Under The Current Gang Enhancement Statute

The parties agree insufficient evidence supports defendant’s still remaining gang 

enhancements under the current version of the law. We agree.

Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 699, § 4) 

amended section 186.22 in several fundamental ways. As relevant here, the definition of 

a criminal street gang requires a showing the alleged gang engages in a pattern of 

7 Defendant argues this conversation should not stand for the proposition he was 

willing to loan his guns to fellow gang members because no evidence confirms his offer 

was genuine given nothing came of the conversation. He contends his excuse he could 

not participate in an assault because he was watching his children could have been cover 

for his true intent to not get involved. Defendant’s interpretation is but one interpretation. 

Another, and more reasonable interpretation, is exactly what defendant said⸺he wanted 

to bring his weapons to assist his gang in the assault but could not because he was 

watching his children. 
27

criminal gang activity. (§ 186.22, subd. (f).) Assembly Bill No. 333 “redefines ‘pattern 

of criminal gang activity’ to require that the last of the [two or more] 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.’ ” (People v. Lopez (2021) 73 Cal.App.5th 327, 345; see § 186.22, 

subd. (e)(1).) Additionally, the currently charged offense cannot be used as a predicate 

offense under the amendments made by Assembly Bill No. 333. (Lopez, at p. 345.)

We agree with the parties that Assembly Bill No. 333’s changes are retroactive. 

(People v. Tran (2022) 13 Cal.5th 1169, 1206-1207.) We also agree with the parties that

defendant’s gang enhancements must be vacated in light of Assembly Bill No. 333. As 

noted, defendant stipulated that Varrio Bosque was a criminal street gang under the prior 

version of the gang statute. This stipulation did not include a stipulation to facts 

sufficient to establish the additional elements noted above and required by the current

version of section 186.22, subdivisions (e)(1) and (f). Defendant “has a constitutional 

right to a jury trial on every element of the charged enhancement.” (People v. Lopez, 

supra, 73 Cal.App.5th at p. 346.) Because there is no proof of numerous current 

elements of section 186.22, subdivisions (e)(1) and (f), the remaining gang enhancements 

must be vacated. (See People v. Sek (2022) 74 Cal.App.5th 657, 668.) 

On remand, the prosecution is afforded the opportunity to retry defendant under 

current law. (See People v. Lopez, supra, 73 Cal.App.5th at p. 346; see also People v. 

Eagle, supra, 246 Cal.App.4th at p. 280 [“When a statutory amendment adds . . . 

additional element[s] to an offense, the prosecution must be afforded the opportunity to 

establish the additional element[s] upon remand. [Citation.] Such a retrial is not barred 

by the double jeopardy clause or ex post facto principles because the [additional elements 
28

were] not relevant to the charges at the time of trial and accordingly, [the issue] was 

never tried.”].) 

DISPOSITION

The gang enhancements attached to defendant’s conviction for possessing 

methamphetamine for sale (count 2) and possessing a loaded firearm while in possession 

of methamphetamine (count 10) and while in public (count 11) are stricken and cannot be 

retried. The remaining gang enhancements are vacated and can be retried on remand if 

the prosecution so elects. The judgment is otherwise affirmed.

/s/ 

Robie, Acting P. J.

We concur:

/s/ 

Krause, J.

/s/ 

Boulware Eurie, J.