Filed 5/23/22 P. v. Nava CA5

(unmodified opinion attached)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

FRANCISCO ANTONIO NAVA,

Defendant and Appellant.

F080965

(Super. Ct. No. VCF361905C)

ORDER MODIFYING OPINION

[No Change in Judgment]

THE COURT:

It is ordered that the opinion filed herein on May 2, 2022, be modified as follows:

1. On page 2, the sixth sentence in the first paragraph beginning “He saw the 

black car” is modified to read as follows:

He saw the black car on the left side of his car and the back 

passenger window rolled down.

2. On page 9, the fifth sentence in the first full paragraph beginning “In addition, 

both predicate offenses” is deleted and the following sentences are inserted in its place:

In addition, the last of the predicate offenses must have “occurred 

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

the date the current offense is alleged to have been committed.” 

The predicate offenses must have been committed by gang 

“members,” and must have been for the “common[] benefit[] [of] 

a criminal street gang.”
2.

3. In the paragraph commencing at the bottom of page 11 and ending on page 12, 

the third sentence beginning “Neither predicate offense” is modified to read as follows:

The last predicate offense did not occur within three years of the 

date the currently charged offense was committed—February 3, 

2018—as required by amended section 186.22.

4. On page 12, the words of the first sentence of the first full paragraph—

“Excluding evidence of these offenses,”—are deleted and the word “Accordingly,” is 

inserted in their place.

Except for the modifications set forth, the opinion previously filed remains 

unchanged. There is no change in the judgment.

PEÑA, Acting P. J.

WE CONCUR:

SMITH, J.

DE SANTOS, J.
Filed 5/2/22 P. v. Nava CA5 (unmodified opinion)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

FRANCISCO ANTONIO NAVA,

Defendant and Appellant.

F080965

(Super. Ct. No. VCF361905C)

OPINION

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

Paden, Judge.

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

Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief 

Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. 

Vasquez, Robert K. Gezi, Darren K. Indermill, Lewis A. Martinez and William K. Kim, 

Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-
2.

INTRODUCTION

Francisco Antonio Nava and three codefendants—Robert Ramos, Stephen Lopez, 

and Ruben Perez—engaged in a confrontation at a convenience market with E.D. and his 

girlfriend, C.A. They yelled rival gang slurs at E.D.; Lopez and Perez threw drinks into 

E.D. and C.A.’s car; and Lopez grabbed E.D.’s shirt and struck him in the back of the 

head, scratching his neck. Perez also tried to grab E.D. E.D. drove away. When E.D. 

stopped at an intersection, he saw a black car speeding toward him, heard two gunshots 

and glass breaking, and felt an impact on his car. He saw the black car on the left side of 

his car and a man pointing his hand out of the back passenger window.

The four defendants were charged with multiple offenses in relation to the 

incident. At trial, the prosecution presented expert testimony on criminal street gangs, 

evidence of the defendants’ prior contacts with police, and certified records of 

convictions of Norteño gang members as proof of a pattern of gang activity to prove the 

street gang enhancements.

The jury acquitted the four defendants of attempted murder of E.D. and C.A.

(counts 1 and 2, respectively) and was deadlocked on the lesser included offense of 

attempted voluntary manslaughter. The jury convicted all four defendants of shooting 

into an occupied motor vehicle in violation of Penal Code section 246 (count 3) and 

found true allegations a principal used a firearm (§ 12022.53, subds. (c) & (e)(1)) and that 

the offense was committed for the benefit of a criminal street gang (former § 186.22, 

subd. (b)(1)(C)). The jury was deadlocked as to all four defendants on count 4, criminal 

street gang conspiracy in violation of section 182.5. The jury convicted Lopez and Perez 

of battery in violation of section 242 in count 5 and found the offense was committed for 

the benefit of a criminal street gang (former § 186.22, subd. (b)(1)(C)). The jury 

convicted Lopez of possession of a firearm by a convicted felon in violation of section 

29800, subdivision (a)(1) (count 6). (Undesignated statutory references are to the Penal 

Code.)
3.

Nava argues the court erred in imposing both the firearm enhancement and the 

gang enhancement even though it stayed the former. He further challenges the validity of

the gang enhancement and firearm enhancement under Assembly Bill No. 333 (2021–

2022 Reg. Sess.) (Assembly Bill 333), which, in part, amended the language of section 

186.22 to modify the showing necessary to sustain a gang enhancement. Nava asserts the 

changes enacted by Assembly Bill 333 are retroactive and, accordingly, his gang 

enhancement should be reversed and retried under the new requirements of section 

186.22.

We agree Assembly Bill 333 applies retroactively and Nava is entitled to reversal 

of his gang enhancement and firearm enhancement on that basis. In all other respects, we 

affirm the judgment.

FACTUAL BACKGROUND

February 3, 2018 Incident

In the evening of February 3, 2018, E.D. was at a convenience market with his 

girlfriend C.A.; E.D. was wearing a navy blue shirt. They met E.D.’s parents for dinner. 

E.D. testified Nava and his codefendant Ramos approached E.D. when he was at the 

register checking out, though other evidence introduced suggested Ramos did not enter 

the store.1 Nava said, “‘What’s up Ene?’” E.D. smiled and said “What’s up?” E.D. 

walked out of the store toward his car; Lopez and Perez followed him and said, “‘Fuck 

Sur trece.’” E.D. understood the statement to mean “disrespect toward the Southerner 

gang.” E.D. testified all four defendants continued to holler disrespectful Southern gang 

slurs while E.D. and C.A. walked toward his car. E.D. and C.A. got in the car and 

reversed; E.D. saw Nava and Ramos talking to his mother as she was trying to get in her 

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

1C.A. identified Nava and Lopez as the individuals who approached E.D. inside the store 

and Perez and Ramos as the individuals who approached when they were outside the store. 

Officer Michael Elliot also testified the video surveillance footage did not depict Ramos entering 

the store at any time.
4.

denied any gang involvement. E.D. rolled his window down halfway to tell them he did 

not want any problems but, before he could, Lopez and Perez threw drinks into E.D.’s 

car. Lopez then grabbed and scratched E.D.’s neck; Perez tried to grab E.D., too. E.D. 

drove off. He saw Lopez and Perez running to their car, a black four-door sedan, as he 

left. He told C.A. to call 911 as he turned onto the road from the driveway. He could see 

the defendants’ car in his rear view mirror as they exited from the same driveway.

E.D. got in the far right lane. The defendants pulled up behind E.D.’s car and then 

next to it. E.D. then heard glass breaking, tires screeching, and two gunshots; he felt the 

impact of a bullet on his car. E.D. and C.A. saw the rear passenger side window of the 

defendants’ car rolled down. E.D. drove back to the convenience market and he and C.A. 

waited for the police.

The manager of the convenience market gave the police the surveillance videos 

from that day. Officer Elliot identified Ramos, Perez, Nava, and Lopez in the video 

shown at trial.

Gang Expert Testimony

Before trial, Perez moved to bifurcate the gang allegations. The court noted it 

would treat the objection as a joint challenge by all the defendants. The court considered 

the motion and tentatively denied it because the gang allegations and underlying charges 

overlapped. The prosecutor argued the gang evidence was intertwined with the charges, 

motive, and intent and substantive evidence of it would come in with regard to the section 

182.5 charge. The court noted it intended to allow the gang expert to testify about the 

foundational components and opinions regarding the gang allegations and asked for 

comments from the parties; no objections or comments were made. The court explained 

to the prosecutor that, with the Sanchez [People v. Sanchez (2016) 63 Cal.4th 665] issue, 

she was going to have to “prove ... up individually ... with witnesses.”

Officer Joel Arjona, who was assigned to the Tulare Area Regional Gang 

Enforcement Team in February 2018, testified as a gang expert. He discussed his 
5.

experience working with gangs and how the Norteño and Sureño gangs are structured. 

He explained both gangs have symbols and signs they use to reflect their affiliation. 

Norteño gang members associate with the number 14 and the color red. They use the 

huelga bird as a symbol of the gang. Sureño members use the color blue to represent the 

gang and associate with the number 13. Arjona explained the Norteño gang derives from 

the prison gang Nuestra Familia. Local street gang members of the Norteño gang report 

to an individual called a “channel.” The “channel” then reports up to a member of 

Nuestra Familia who is in charge of the county. He testified Norteño members pay 

“taxes” that are used for the benefit of the gang. The Norteño gang has different cliques 

or subsets that all identify with the color red and the number 14. Members of different 

subsets work together, communicate with one another, commit crimes together, and share 

information and weapons. He discussed the subset North Side Visa Boys (or NSVB) and 

explained the symbols and tattoos they use to identify themselves. He stated all NSVB 

members are in Tulare County.

He explained what he deemed to be “primary activities of the Norteño gang”

based on his investigations and reports and from speaking to other officers and gang 

members. The primary activities are a lot of crimes, 33 of which the Penal Code 

considers “gang crimes.” The list of gang crimes includes, but is not limited to, auto 

theft, possession of firearms, murder, attempted murder, assault, assault with deadly 

weapons, kidnappings, burglary and vandalism.

Officer Arjona testified regarding two specific predicate crimes. He discussed the 

murder of John Hernandez committed by Norteño gang members Jacob Robles and Julian 

Gonzalez at the direction of Joe Dominguez, another gang member, on May 19, 2010. 

Officer Arjona was familiar with the case through his research. Counsel for Nava

objected on “foundation” grounds when the prosecutor asked whether Officer Arjona had 

an opinion as to whether the murder fits “the pattern of Norteño street gang activity ... in 

Tulare County.” The court overruled the objection. Based on his training and 
6.

experience, speaking with other officers, and reading reports, Officer Arjona testified he 

believed gang member Joe Dominquez directed the two other gang members to kill the 

victim, who was a gang dropout. The prosecutor then introduced a certified copy of the 

murder conviction from that case, People v. Julian Gonzalez, No. VCF241993, 

conviction date May 15, 2012.

Officer Arjona then testified regarding an attempted murder that occurred at the 

Visalia Mall on January 27, 2012, by Adrian Esquer and Anthony Hanson. Arjona was 

not on duty at the time but he researched the incident after the fact and “it was a gang 

crime.” Based on his conversations with the primary detective, study of the case, and 

review of the contacts of the suspects involved, Arjona concluded the individuals 

involved were “gang members and that this was an intimidation shooting against a rival 

gang member. And a person who was caught in crossfire was also struck.” He further 

opined the offense fits within the pattern of Norteño street gang activity in Tulare 

County. The People then introduced the certified conviction packet for People v. Adrian 

Esquer, No. VCF263049B for convictions of attempted murder and assault with a 

firearm, conviction date of January 31, 2014.

Arjona testified he reviewed contacts law enforcement had with Nava. Based 

upon his evaluation of set gang criteria, Officer Arjona testified, based upon his 

knowledge, training, experience, and investigation of the case, he believed Nava was a 

Norteño gang member on February 3, 2018, when the shooting at E.D. and C.A. 

occurred. He explained it was not common to see someone who associates with Sureños 

to start associating with Norteños. The fact Nava and his family moved from Dinuba to 

Visalia could have affected his affiliation.

Prior Contacts 

Officer Dirk Alfano conducted a field interview with Nava on February 24, 2010.

Nava stated he affiliated with a subset of a Sureño gang out of Dinuba called Brown 
7.

Pride Mexican. Nava had a “BPM” tattoo on his chest. He reported that his brother, with 

whom Nava did not get along, was a Norteño.

On April 13, 2010, officer Josh Speer conducted a field interview with Nava after 

learning Nava had thrown items, including a rock, at a security guard at the juvenile 

counseling center. Speer testified Nava identified himself as a Sureño from Dinuba.

In December 2010, Officer George Weaver contacted Nava at his home and 

conducted a probation search. Nava denied any gang affiliation.

On February 9, 2013, Officer Alfano encountered Nava again after initiating a 

traffic enforcement stop of a speeding car; the car eventually stopped in front of Nava’s 

house after running three stop signs. Nava was driving the car; Norteño associates 

Ryan R. and Christian C. were in the backseat. Officer Alfano testified, based upon his 

knowledge, training, and experience in the gang unit, he knew Nava to be a Norteño gang 

member at that time.

Officer Michael Elliot also testified regarding his prior contacts with Nava. In the 

evening of February 9, 2013, Officer Elliot responded to a disturbance at Nava’s house.

Family members and gang members were present including North Side Visa Boys

members Christian C. and Cixto M.

On April 11, 2017, Officer Elliot was involved in an investigation into a shooting 

that occurred at Nava’s house between Nava’s brother and several members of the 

Oriental Troop street gang. Nava’s brother was arrested and police searched the house; 

Nava was present at the time. Officer Elliot described Nava’s house as a “frequent 

Norteño hangout.” He had encountered “different sets of Norteño gangs or gang 

members at that house,” including individuals from North Side Varrio Locos, 

Youngsters, North Side Visa Boys, and North Side Visa. Detective Jacob Sorensen 

executed a search warrant at the house. He, too, encountered Nava. Nava informed him 

there were two firearms in his room (the firearms were registered). Nava denied being an 

active gang member but reported he affiliated with Norteños.
8.

The People also introduced testimony about the other codefendants’ prior contacts

with law enforcement, focusing on incidents that had gang-related circumstances.

Verdict and Sentencing

The jury acquitted all four defendants of attempted murder of E.D. and C.A.

(counts 1 and 2, respectively) and was deadlocked on the lesser included offense of 

attempted voluntary manslaughter. The jury convicted all four defendants of shooting 

into an occupied motor vehicle in violation of section 246 (count 3) and found true 

allegations a principal used a firearm (§ 12022.53, subds. (c) & (e)(1)) and that the 

offense was committed for the benefit of a criminal street gang (former § 186.22, subd.

(b)(1)(C)). The jury was deadlocked as to all four defendants on count 4, criminal street 

gang conspiracy in violation of section 182.5.

The jury convicted Lopez and Perez of battery in violation of section 242 in count 

5 and found the offense was committed for the benefit of a criminal street gang (former 

§ 186.22, subd. (b)(1)(C)). The jury convicted Lopez of possession of a firearm by a 

convicted felon in violation of section 29800, subdivision (a)(1) (count 6).

On February 26, 2020, the court sentenced Nava to 15 years to life in prison for 

count 3.

DISCUSSION

I. Nava Is Entitled to Reversal of His Gang Enhancement Under Assembly Bill 

333

In supplemental briefing, Nava argues the imposed criminal street gang 

enhancement must be reversed as a result of changes made to section 186.22 by the 

recent enactment of Assembly Bill 333. The People agree. We also conclude Nava is 

entitled to reversal of his gang enhancement under Assembly Bill 333.

A. Assembly Bill 333 

While Nava’s appeal was pending, the Legislature enacted Assembly Bill 333, the 

STEP Forward Act of 2021, which, in part, amends section 186.22 to impose new 
9.

substantive and procedural requirements for gang enhancements. The Legislation went 

into effect on January 1, 2022.

First, Assembly Bill 333 amended the definition of a “‘criminal street gang,’”

requiring proof that the gang is an organized association, whose members collectively

engage in, or have engaged in, a pattern of criminal activity (§ 186.22, subd. (f)). Next, 

the law created a stricter requirement for proof of “a pattern of criminal gang activity,”

which is necessary to prove that the group with which the defendant is associated is 

indeed a criminal street gang. (See § 186.22, subds. (e)–(f).) Previously, the prosecution 

needed to prove only that those associated with the gang had committed at least two 

offenses from a list of predicate crimes on separate occasions within three years of one 

another. (See former § 186.22, subd. (e).) Under the newly amended law, the offense 

with which the defendant is currently charged cannot be used as one of the two predicate 

offenses. (§ 186.22, subd. (e)(2).) In addition, both predicate offenses must have been 

committed “within three years of the date the current offense is alleged to have been 

committed,” by gang “members,” and must have been for the “common[] benefit[] [of] a 

criminal street gang.” (§ 186.22, subd. (e)(1).) Assembly Bill 333 also narrowed the list

of offenses that may be used to establish a pattern of criminal gang activity (compare

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

Additionally, it defines “to benefit, promote, further, or assist” throughout section 186.22

to mean “to provide a common benefit to members of a gang where the common benefit

is more than reputational.” (Id., subd. (g).) The legislation notes examples of a common

benefit that are more than reputational “may include, but are not limited to, financial gain

or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or

silencing of a potential current or previous witness or informant.” (Ibid.)

Finally, Assembly Bill 333 adds section 1109, which requires gang enhancements 

charged under section 186.22, subdivision (b) or (d) to be tried separately from the 

underlying charges upon request from the defense. (Stats. 2021, ch. 699, § 5.) Section 
10.

1109 also requires the substantive offense of active participation in a criminal street gang

(§ 186.22, subd. (a)) to be tried separately from all other counts that do not require gang 

evidence as an element of the crime.

B. The Amendments to Section 186.22 Apply Retroactively and Nava is 

Entitled to Reversal of His Gang Enhancement

First, the parties agree Assembly Bill 333’s amendments to section 186.22 that 

alter the substantive requirements necessary to prove a gang enhancement operate 

retroactively. Because the legislation increased the evidentiary burden necessary to prove 

a gang-related enhancement, we agree it was an ameliorative change in the law that 

applies retroactively to cases not yet final on appeal.

Ordinarily, “a new statute is presumed to operate prospectively absent an express

declaration of retrospectivity or a clear indication that the electorate, or the Legislature,

intended otherwise.” (Tapia v. Superior Court (1991) 53 Cal.3d 282, 287 (Tapia).)

However, in In re Estrada (1965) 63 Cal.2d 740 (Estrada), our Supreme Court

recognized an exception to this rule. The court explained that “[w]hen the Legislature

amends a statute so as to lessen the punishment it has obviously expressly determined

that its former penalty was too severe and that a lighter punishment is proper as

punishment for the commission of the prohibited act. It is an inevitable inference that the

Legislature must have intended that the new statute imposing the new lighter penalty now

deemed to be sufficient should apply to every case to which it constitutionally could

apply. The amendatory act imposing the lighter punishment can be applied

constitutionally to acts committed before its passage provided the judgment convicting

the defendant of the act is not final. This intent seems obvious, because to hold otherwise

would be to conclude that the Legislature was motivated by a desire for vengeance, a

conclusion not permitted in view of modern theories of penology.” (Id. at p. 745.)

In subsequent years, the California Supreme Court has applied this doctrine

broadly “to statutes changing the law to the benefit of defendants.” (Tapia, supra, 53
11.

Cal.3d at p. 301; see generally People v. Frahs (2020) 9 Cal.5th 618, 631–632 [pretrial 

diversion statute is retroactive because it provides possible benefit to class of criminal 

defendants, does not contain express savings clause, and Legislature did not signal its 

intent to overcome Estrada inference]; People v. Superior Court (Lara) (2018) 4 Cal.5th 

299, 309 [“Proposition 57 is an ‘ameliorative change[] to the criminal law’ that we infer 

the legislative body intended ‘to extend as broadly as possible’”].)

Most relevant to this case, the Supreme Court in Tapia held the presumption of

retroactivity applies to laws that change the substantive requirements for an enhancement

in a defendant’s favor. (See Tapia, supra, 53 Cal.3d at pp. 300–301.) In Tapia, the

electorate had recently passed an initiative requiring proof of intent to kill for certain

special circumstance allegations. (Ibid.) Because the initiative “redefine[d], to the

benefit of defendants, conduct subject to criminal sanctions,” the court held the initiative

applied retroactively. (Id. at p. 301.)

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

“redefine, to the benefit of defendants, conduct subject to criminal sanctions,” these 

changes apply retroactively to all cases—like Nava’s—in which the judgment of 

conviction is not yet final. (Tapia, supra, 53 Cal.3d at p. 301; accord, People v. Sek

(2022) 74 Cal.App.5th 657, 667 [concluding Assem. Bill 333’s amendments to § 186.22 

“‘redefine[d], to the benefit of defendants, conduct subject to criminal sanctions’

[citation], and it therefore applies retroactively under Estrada”]; People v. E.H. (2022) 75 

Cal.App.5th 467, 478 [similar]; see People v. Lopez (2021) 73 Cal.App.5th 327, 344

[concluding substantive changes in Assem. Bill 333 apply retroactively because they 

“increase[] the threshold for conviction of the section 186.22 offense and the imposition 

of the enhancement”]; People v. Rodriguez (2022) 75 Cal.App.5th 816, 822 [same].)

And here, it is undisputed Nava is entitled to reversal of the gang enhancement on 

this basis; that is, neither party argues, nor can we conclude, the evidence presented at 

trial was sufficient to sustain the gang enhancement under the revised requirements of 
12.

section 186.22. At trial, the prosecution introduced evidence of two cases committed in 

2010 and 2012 as evidence of the predicate offenses necessary to establish a pattern of 

criminal gang activity. Neither predicate offense occurred within three years of the date 

the currently charged offense was committed—February 3, 2018—as required by 

amended section 186.22. (§ 186.22, subd. (e)(1).)

Excluding evidence of these offenses, the existing record is insufficient to support 

the heightened evidentiary requirements set forth by amended section 186.22 following 

the enactment of Assembly Bill 333. As a result, the criminal gang enhancement applied 

to Nava’s sentence must be reversed. However, the People are not foreclosed from 

retrying Nava on the gang enhancement upon remand under the new requirements of 

amended section 186.22. Put differently, “‘[b]ecause we do not reverse based on the

insufficiency of the evidence required to prove a violation of the statute as it read at the

time of trial, the double jeopardy clause of the Constitution will not bar a retrial.’”

(People v. Sek, supra, 74 Cal.App.5th at p. 669; accord, People v. Figueroa (1993) 20

Cal.App.4th 65, 72 [“Where, as here, evidence is not introduced at trial because the law

at that time would have rendered it irrelevant, the remand to prove that element is proper

and the reviewing court does not treat the issue as one of sufficiency of the evidence”];

see People v. Eagle (2016) 246 Cal.App.4th 275, 280 [“When a statutory amendment

adds an additional element to an offense, the prosecution must be afforded the

opportunity to establish the additional element upon remand”].) In so concluding, we

reject Nava’s argument that because the introduced evidence of the predicate crimes is no

longer sufficient to establish a pattern of criminal gang activity under the amended

statute, the People should be barred from retrying him and introducing additional

evidence to prove the predicate offenses within the parameters of the new law. (See

People v. Figueroa, supra, at pp. 71–72 & fn. 2 [remand appropriate to allow prosecution 

to establish additional element retroactively added by statutory amendment; no violation 

of the double jeopardy clause or constitutional restrictions against ex post facto 
13.

legislation]; accord People v. Lopez, supra, 73 Cal.App.5th at pp. 346–348 [vacating 

enhancements in light of Assem. Bill 333 and remanding for limited retrial]; People v. 

Vasquez (2022) 74 Cal.App.5th 1021, 1033 [same].)

II. Nava’s Firearm Enhancement Must be Reversed

In his opening brief, Nava asserted the court should have struck instead of stayed 

the section 12022.53 gang-related firearm enhancement. In his supplemental brief, Nava

argues this firearm enhancement should be reversed under Assembly Bill 333. We 

conclude this gang-related enhancement must also be reversed because of our reversal of 

the section 186.22, subdivision (b) enhancement.

A. Standard of Review and Applicable Law

Section 12022.53 provides for sentence enhancements for persons convicted of 

certain enumerated felonies who use a firearm during the commission of the crime. A 

violation of section 246 is not one of the felonies enumerated in subdivision (a) of section 

12022.53. However, a section 12022.53 enhancement may apply under subdivision

(a)(17) of that section, where the penalty has been elevated to a life term through 

application of an alternate penalty provision. (People v. Jones (2009) 47 Cal.4th 566, 

569, 579; accord, People v. Brookfield (2009) 47 Cal.4th 583, 590–591.)

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

“the prosecution has both ‘pled and proved’ that the defendant committed a felony on 

behalf of a street gang (see ... § 186.22) and that a ‘principal in the offense committed 

any act specified in subdivision (b), (c), or (d)’—that is, an act that would trigger a 

firearm enhancement had the defendant committed that act personally.

(§ 12022.53(e)(1).)” (People v. Anderson (2020) 9 Cal.5th 946, 953.) Section 12022.53, 

subdivision (e)(2) states:

“An enhancement for participation in a criminal street gang pursuant to 

Chapter 11 (commencing with section 186.20) of Title 7 of Part 1 shall not 

be imposed on a person in addition to an enhancement imposed pursuant to 
14.

this subdivision, unless the person personally used or personally discharged 

a firearm in the commission of the offense.”

In Brookfield, the California Supreme Court held “the trial court may not impose 

the sentence enhancement under section 12022.53 in addition to a life term under section 

186.22(b)(4).” (People v. Brookfield, supra, 47 Cal.4th at p. 592.) Rather, a defendant

who was an accomplice to a gang-related offense specified in section 12022.53 in which, 

as here, another principal, not the defendant, personally used or discharged a firearm is 

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

sentence increases under section 186.22, but not both.” (Brookfield, at p. 594.) The 

Brookfield court relied upon section 12022.53’s subdivision (j) in determining the trial 

court should have imposed the greater penalty (the life term under § 186.22, subd. (b)(4)), 

rather than the lesser punishment (the 10-year sentence enhancement under § 12022.53’s 

subds. (b) & (e)(1)). (Brookfield, at p. 596.) That provision states in part: “When an 

enhancement specified in this section has been admitted or found to be true, the court 

shall impose punishment for that enhancement pursuant to this section rather than 

imposing punishment authorized under any other provision of law, unless another 

enhancement provides for a greater penalty or a longer term of imprisonment.”

(§ 12022.53, subd. (j), italics added.) Because the Brookfield court held the trial court 

erred in sentencing the defendant to both the life term under section 186.22, subdivision 

(b)(4) and the 10-year sentence enhancement under subdivisions (b) and (e)(1) of section 

12022.53, it affirmed the decision of the Court of Appeal striking the 10-year sentence 

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

In People v. Gonzalez (2008) 43 Cal.4th 1118 (Gonzalez), the California Supreme 

Court concluded the word “impose” used throughout section 12022.53 “must be 

interpreted as shorthand for ‘impose and then execute’ to make sense.” (Gonzalez, at p. 

1127.) The Gonzalez court rejected an interpretation of section 12022.53, subdivision

(f)—which prohibits the imposition of enhancements pursuant to certain other sections in 

addition to an enhancement imposed pursuant to that section—“that would have the trial 
15.

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

explained, this is “because the rules of statutory construction mandate that we interpret 

the statute in a manner that does not create unnecessary disharmony between subdivision

(f) and subdivision (h) of section 12022.53.” (Id. at pp. 1127–1128.) The Gonzalez court 

noted, requiring a court to strike rather than stay the prohibited enhancements would 

“mak[e] it more difficult, if not impossible, to impose and execute the term of 

imprisonment for an initially prohibited firearm enhancement in the event the section 

12022.53 enhancement with the longest term of imprisonment is invalidated on appeal.”

(Id. at p. 1128.)

B. Analysis

Nava argues the court erred, pursuant to section 12022.53, subdivision (e)(2), in 

imposing and staying the firearm enhancement. He argues this section prohibits the 

imposition of both the firearm enhancement and a gang enhancement unless the 

defendant was the actual shooter. The People respond the court did not err in imposing 

and staying the firearm enhancement, relying on Gonzalez, supra, 43 Cal.4th 1118, but 

they agree Nava is entitled to reversal of this enhancement under Assembly Bill 333. 

They further contend the prosecution should be afforded an opportunity to retry this 

gang-related enhancement. We conclude Nava is entitled to reversal of this enhancement 

under Assembly Bill 333.

We have already concluded Nava’s gang enhancement imposed pursuant to 

section 186.22 must be reversed. Because the imposed section 12022.53 enhancement 

applied to Nava under subdivision (a)(17) of that section only because his penalty had 

been elevated to a life term through application of the alternate penalty provision 

provided for in section 186.22, the section 12022.53 enhancement is no longer supported. 

Additionally, because the section 12022.53 enhancement depends on a finding the 

principal violated section 186.22, subdivision (b), and we vacate that finding as discussed 

ante, the changes to section 186.22 made by Assembly Bill 333 require that the imposed 
16.

firearm enhancement must be vacated. (See People v. Lopez, supra, 73 Cal.App.5th at p.

348 [vacating firearm enhancement based on gang-related enhancement findings in light 

of Assem. Bill 333 and remanding for limited retrial]; People v. Vasquez, supra, 74 

Cal.App.5th at p. 1033 [same].) On remand, the prosecution may also seek to retry this 

gang-related enhancement. Because we strike the enhancement on other grounds, we do 

not address Nava’s arguments further.

DISPOSITION

The section 186.22, subdivision (b) gang enhancement and the section 12022.53 

firearm enhancement are reversed. The matter is remanded to the trial court for further 

proceedings. The People shall have 60 days from the date of the remittitur in which to 

file an election to retry Nava on these enhancements. If the People elect not to retry him, 

the trial court shall modify the judgment by striking the enhancements and shall 

resentence Nava accordingly. Following the conclusion of proceedings, the court shall 

amend the abstract of judgment in a manner consistent with this disposition and forward 

copies of the amended abstract to the appropriate law enforcement and custodial officials. 

In all other respects, the judgment is affirmed.

PEÑA, Acting P. J.

WE CONCUR:

SMITH, J.

DE SANTOS, J.