1

Filed 3/3/23 P. v. Cyrus CA4/2

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

MAURICE CYRUS, JR.,

Defendant and Appellant.

E075271

(Super.Ct.No. FWV18004411)

OPINION ON TRANSFER

APPEAL from the Superior Court of San Bernardino County. Bridgid M. 

McCann, Judge. Affirmed in part, vacated in part, and remanded with directions.

James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant 

and Appellant.

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

Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha 

Cortina, Annie Featherman Fraser and Christine Levingston Bergman, Deputy Attorneys 

General, for Plaintiff and Respondent.
2

A jury convicted Maurice Cyrus, Jr., of being a felon in possession of a firearm 

and found true that the offense was committed for the benefit of, at the direction of, or in 

association with a criminal street gang. (Pen. Code, §§ 29800, subd. (a)(1), 186.22, 

subd. (b) (§ 186.22(b)); unlabeled statutory references are to this code.) In a bifurcated 

proceeding, the court found true that Cyrus had a prior serious felony conviction. 

(§§ 667, subd. (a)(1), 1170.12, subds. (a)-(d).) The court sentenced him to 13 years in 

state prison, consisting of the upper term of three years for the felon in possession 

conviction doubled to six years because of the strike, the low term of two years for the 

gang enhancement, and five years for the prior serious felony.

On appeal, Cyrus argues that the trial court erred by denying his motion to 

suppress evidence obtained during a search conducted pursuant to a condition of his 

parole. He also challenges the sufficiency of the evidence supporting the firearm 

possession conviction and the gang enhancement. In a prior unpublished opinion, we 

rejected the arguments and affirmed the judgment. (People v. Cyrus, Jr. (May 11, 2021, 

E075271) [nonpub. opn.].)

The Supreme Court granted review, vacated our prior opinion, and transferred the 

matter back to us with directions to reconsider the matter in light of People v. Renteria

(2022) 13 Cal.5th 951 (Renteria) and Assembly Bill No. 333 (2021-2022 Reg. Sess.) 

(Assembly Bill 333) (Stats. 2021, ch. 699), both of which concern the gang enhancement. 

On remand, Cyrus argues that Renteria supports his challenge to the sufficiency of the 

evidence concerning the gang enhancement under the law in effect at the time of his trial. 

We agree and conclude that under Renteria there is not sufficient evidence to support the 
3

gang enhancement. We consequently do not address how Assembly Bill 333 affects this

case.

We additionally asked the parties to submit supplemental briefs on the effect of 

Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567) on Cyrus’s sentence. The 

parties agree that the legislation applies to this nonfinal judgment but disagree about 

harmlessness. We vacate Cyrus’s sentence and remand for further proceedings in light of 

Senate Bill 567. We vacate the true findings on the gang enhancement. We otherwise 

affirm the judgment.

BACKGROUND

A. The Shooting 

The parties stipulated to the following facts: On September 18, 2018, a shooting

occurred at a park in the city of Ontario, California. Witnesses identified Marquis B. as 

the shooter. Before opening fire, Marquis asked others in the park where they were from 

and announced that he was from the South Side Ontario Crips. Two .40-caliber cartridge

casings were collected from the park after the shooting. 

B. The Gun

Two months after the shooting, in November 2018, law enforcement officers took 

Marquis into custody. That night, Officer Edward Flores, a member of the gang 

suppression unit for the City of Ontario Police Department, and other officers searched an 

apartment in Ontario, where Cyrus was sleeping in one of the bedrooms on a mattress 

next to the closet. There also were three children, ages eight to 12, sleeping in the same 
4

bedroom. Flores did not believe that anyone else in the apartment was associated with or 

a member of a gang.

In the closet next to the mattress where Cyrus was sleeping, officers found a bag 

on a shelf. Inside the bag, officers found a Glock .40-caliber semiautomatic handgun and 

a large-capacity magazine capable of holding 29 cartridges. The handgun was not 

registered. On the shelf directly underneath the bag, there was a wallet containing a copy 

of Cyrus’s identification card and Cyrus’s health care card dated October 2018.

Test-fired cartridge casings from the handgun were compared to the two shell 

casings discovered at the park after the September 2018 shooting. A criminalist from the 

sheriff’s department concluded that the shell casings recovered from the park were fired 

from the handgun found in the closet.

C. Gang Evidence

Officer Kyle Morgan from the gang suppression unit of the City of Ontario Police 

Department testified as a gang expert familiar with a gang known as the South Side 

Ontario Crip 9,000 or Crip 9,000, C9,000, or C9. (We refer to the organization as C9 

because that is how the witnesses primarily referred to it.) In 2018, C9 was an ongoing 

organization with at least 30 members that had engaged in a pattern of criminal activity. 

The primary activities of C9 are selling drugs, possessing firearms, committing assault, 

and committing burglaries. To identify themselves, members of C9 use different sports

team logos, such as the North Carolina Tarheels and the Baltimore Orioles baseball team. 

C9 celebrates its “hood day” on September 17. A gang’s “hood day” is akin to the 

gang’s birthday and cause for celebration.
5

A “gang gun” is a gun that is passed around the gang and used by numerous gang 

members to commit crimes. Morgan explained that a lot of gang members are felons, 

which makes it difficult for them to get guns. Unregistered guns are useful to gangs 

because an unregistered gun cannot be traced back to a person using it to commit a crime. 

In addition to using guns to commit crimes, gang members use firearms to intimidate 

others. One such intimidation tactic is to post photographs and video recordings of the

gang’s firearms online to show rival gangs what weapons the gang possesses.

Morgan opined that Cyrus is a member of C9 based on Cyrus’s tattoos, Cyrus

“talking jail politics on the phone with other C9 gang members,” and photographs of 

Cyrus on social media. Cyrus has various tattoos indicating his membership in C9, 

including “C9” on his stomach, the hand symbols of the letter C and the number 9 on his 

biceps, and “West Side” on the top of his shoulders, with the letter C and the number 9 

forming into the letter S in one of the words. On the basis of a recorded telephone 

conversation Cyrus made from jail, Morgan deduced that Cyrus’s gang moniker is 

“Pistol.” 

In January 2019, when Cyrus was in jail, he made a phone call to Jamal B., a 

presumed member of C9, and a recording of that conversation was played for the jury. 

Jamal asked, “what they did, they—they they had got the odie thang?” Cyrus answered 

the question in the affirmative. Jamal then said that he had told “T-Mac to go grab that. 

You feel what I’m saying? . . . Cuh, and he—and he left it off to you. I mean that shit 

wasn’t cool. What they had did, a sweep on you or something?” Cyrus answered, “No. 

This is. They didn’t do no sweep. My cousin did some bullshit sent them to the house.”
6

Cyrus said that “they got [his] cousin on that other shit” and that he was in jail for “felony

possession of a firearm.” Morgan testified that he believed that “odie thang” was coded 

language for the 40-caliber handgun recovered at the apartment.

On the day of the shooting, Flores assisted in the investigation of the shooting at 

the park. Flores encountered Nicholas A., a C9 member, approximately 50 yards away 

from the scene of the shooting. Flores downloaded information from Nicholas’s cell 

phone. The download included a photograph of Nicholas taken on September 16, 2018, 

with a Glock .40-caliber handgun with an extended magazine. 

The download also contained a group photograph including Cyrus, which the 

parties stipulated was taken on September 17, 2018 (C9’s hood day and the day before 

the shooting). In the photograph, Cyrus displayed the hand symbol for the letter C. Also 

pictured were Jamal, Nicholas, Marquis, Timothy W. (T-Mac), and two other individuals. 

Jamal was pictured wearing a blue bandana and a shirt with the letter C and “9,000 

inside.” Nicholas was pictured wearing a blue shirt and appeared to be making a hand 

gesture of the number 5, which Morgan opined “would be for Five Times Crip gang, 

which is a Crip gang in San Bernardino.” Marquis was wearing a shirt with a bag of 

money on it.

A music video that had been posted online was played for the jury. Timothy and 

Jamal were in the video, but Cyrus was not. Some of the common signs and symbols 

used by C9 were used in the video. Timothy referred to “a 40 with a 30 clip.” Morgan

opined that the reference was significant because it demonstrated that “a 40 caliber with 

an extended magazine was going around to Crip 9,000.” 
7

The parties stipulated that in 2016 Cyrus was convicted of being a felon in 

possession of a firearm. In 2016, Nicholas was convicted of attempted robbery. And in 

2018 another member of C9 was convicted of being a felon in possession of a firearm.

The prosecutor asked Morgan hypothetical questions based on the following facts: 

A gang celebrates its hood day on September 17, 2018. The next day, member A of this 

gang goes to a park known to be frequented by rival gang members and asks people in 

the park where they are from. “Member A then claims his gang, shoots the firearm, and 

the other party to the shooting is an associate of this rival gang.” Someone else drives

member A away from the park after the shooting. On November 27, 2018, during the 

course of investigating the shooting, law enforcement officers go to an apartment where 

member B, a member of the same gang as member A, is sleeping in an upstairs bedroom. 

In a closet “next to where member B is sleeping there’s a bag. And below that bag is 

member B’s wallet and identification.” The bag contains a .40-caliber handgun with an 

extended magazine. Ballistic testing reveals that the gun was used in the gang shooting 

in the park by member A. After member B is arrested for possessing the gun, another 

member of the gang refers to the gun being found and says that “another member was 

supposed to come pick up that gun.”

On the basis of these facts, Morgan opined that the gang benefitted from member 

B’s possession of the firearm. The possession of the firearm benefitted the gang by

ensuring that the gun remained “readily available” to the gang in the event of “a gang 

shooting or something else that goes off.” Morgan also opined that possessing the 

firearm was in association with the gang because it shows that the person who was 
8

keeping the gun was trusted and was “putting in work for that particular gang.” In 

addition, Morgan opined that member B would be assisting member A by ensuring that 

member A would not be in possession of the firearm if law enforcement arrested member 

A in connection with the shooting at the park.

DISCUSSION

A. Parole Search

Cyrus argues that the trial court erred by denying his motion to suppress evidence 

of the gun, because he claims that the warrantless search of the apartment where the gun 

was found violated his Fourth Amendment right to be free from unreasonable searches. 

He contends that (1) law enforcement did not have a reasonable belief that he was 

residing at the apartment, and (2) the search was unreasonable because it was conducted 

for the purpose of harassing him. We are not persuaded by either contention.

1. Motion to Suppress

Before trial, Cyrus moved under section 1538.5 to suppress the evidence of the 

gun seized from the apartment in Ontario. The People opposed the motion, arguing that 

the search was valid because Cyrus was on parole when the search was conducted and the 

apartment’s lessee, Brianna B., consented to the search. (The People later abandoned the 

consent argument.)

At a hearing on the matter, the parties stipulated that the search was conducted 

without a warrant. The People called Flores to testify. Earlier on the day of the search, 

Flores learned that Marquis had been taken into custody on suspicion of committing 

homicide in September 2018. Flores was present when Marquis was interviewed
9

sometime that afternoon. Marquis claimed that on the day of the homicide he was in 

Ontario at the apartment of his aunt (Brianna) and his uncle (Maurice Cyrus, Sr.) with his 

cousin, Cyrus. Marquis said that he “‘possibly’” had left the apartment with Cyrus that 

day. 

After searching law enforcement records for Cyrus and his father (Cyrus, Sr.), 

Flores learned that the father was on felony probation and that Cyrus was on parole. 

Both men had provided parole and probation with the same residence address in Pomona, 

California. Flores nevertheless believed that Cyrus and his father were actually staying at 

the apartment in Ontario.

Flores and another officer arrived at the Ontario apartment around midnight. As 

they approached the apartment, they noticed a vehicle that Flores knew from the prior 

records search to be registered to Maurice Cyrus. Flores could not recall if the vehicle 

was registered to Cyrus or his father. Flores knocked on the door of the apartment and 

identified himself as a police officer. A man whom Flores recognized as Cyrus’s father

peered through the window blinds. Brianna opened the front door. Brianna confirmed 

that the man who had looked through the blinds was Cyrus, Sr., and she said that Cyrus 

was asleep upstairs. Flores initially informed Brianna that law enforcement was there to 

conduct a probation search of Cyrus, Sr. After Brianna confirmed that Cyrus was there 

too, Flores told Brianna that the officers also would be conducting a parole search on 

Cyrus. 

The trial court denied the motion to suppress, concluding that the officers 

reasonably believed that Cyrus lived at the Ontario apartment, given Marquis’s 
10

statements to law enforcement and the fact that probation and parole records listed Cyrus 

and his father as living at the same address.

2. Analysis

“The Fourth Amendment guarantees ‘[t]he right of the people to be secure in their 

persons, houses, papers and effects, against unreasonable searches and seizures’ by police 

officers and other government officials.” (People v. Robles (2000) 23 Cal.4th 789, 794, 

quoting U.S. Const., 4th Amend.) “The remedy for a violation of the Fourth Amendment 

is to render inadmissible any evidence seized during the illegal search.” (People v. 

Downey (2011) 198 Cal.App.4th 652, 657 (Downey).)

“A search without a warrant is unreasonable under the Fourth Amendment, unless 

it fits in one of a few narrow exceptions allowing for warrantless searches.” (People v. 

Vargas (2020) 9 Cal.5th 793, 814 (Vargas).) One such exception is a condition of parole 

authorizing warrantless searches, such as the condition imposed on California parolees. 

(Samson v. California (2006) 547 U.S. 843, 857 (Samson).) A valid parole search, 

however, is “limited in scope to the terms articulated in the search clause.” (People v. 

Woods (1999) 21 Cal.4th 668, 681 [probation].) Section 3067 provides that every 

California parolee, the parolee’s residence, and any property under the parolee’s control

is “subject to search or seizure by a probation or parole officer or other peace officer at 

any time of the day or night, with or without a search warrant or with or without cause.” 

(§ 3067, subd. (b)(3); Cal. Code Regs., tit. 15, § 2511, subd. (b).) Whether law 

enforcement officers reasonably believe an address to be a parolee’s residence is a 

question of fact, “‘and we are bound by the finding of the trial court, be it express or 
11

implied, if substantial evidence supports it.’” (Downey, supra, 198 Cal.App.4th at p. 658 

[probationer]; Robey v. Superior Court (2013) 56 Cal.4th 1218, 1223.) The 

reasonableness of a search “must be determined based upon the circumstances known to 

the officer when the search is conducted.” (People v. Sanders (2003) 31 Cal.4th 318, 

334.)

Even if a search is conducted pursuant to a valid condition of parole, a parole 

search is unreasonable within the meaning of the Fourth Amendment if it is “arbitrary, 

capricious or harassing.” (People v. Reyes (1998) 19 Cal.4th 743, 752 (Reyes); Samson, 

supra, 547 U.S. at p. 846.) Consequently, “‘a parole search could become 

constitutionally “unreasonable” if made too often, or at an unreasonable hour, or if 

unreasonably prolonged or for other reasons establishing arbitrary or oppressive conduct 

by the searching officer.’” (Reyes, supra, at pp. 753-754.)

“When the trial court rules on a suppression motion, it ‘“‘(1) finds the historical 

facts, (2) selects the applicable rule of law, and (3) applies the latter to the former to 

determine whether the rule of law as applied to the established facts is or is not 

violated.’”’ [Citation.] On appeal, we independently review the second and third 

determinations, but we apply ‘“‘the deferential substantial-evidence standard’”’ to the 

court’s determination of the historical facts. [Citation.] Even if our reasoning differs 

from the trial court’s, the trial court’s ruling must be upheld if there is any basis in the 

record to sustain it.” (People v. Douglas (2015) 240 Cal.App.4th 855, 860.)

Substantial evidence supports the trial court’s finding that it was reasonable for the 

officers to believe that Cyrus resided at the Ontario address on the basis of the facts they 
12

knew before the search. Given that Marquis told officers that the apartment belonged to 

his aunt and uncle (i.e., Cyrus’s father), it was reasonable for officers to believe that 

Cyrus’s father lived there even though he had told probation that he lived at an address in 

Pomona. It also was reasonable for the officers to believe that Cyrus lived in the Ontario 

apartment with his father. Cyrus had given parole the same residence address as his 

father, so it was reasonable for officers to believe that the two men lived together. 

Moreover, Marquis told law enforcement that he had spent time with Cyrus at the 

apartment two months ago. In addition, a car registered to Cyrus or his father was parked 

in front of the apartment, and Cyrus was sleeping at the apartment in the middle of the 

night. From this information known to the officers before they conducted the parole 

search, we conclude that there was substantial evidence supporting the trial court’s 

finding that the officers reasonably believed that Cyrus lived at the apartment in Ontario.

We reject Cyrus’s contention that the search was conducted with the “major 

purpose” of harassing him because it occurred in the middle of the night. Cyrus did not 

make that argument in the trial court, so it is forfeited. (People v. Tully (2012) 54 Cal.4th 

952, 979-980.) In any event, there is no evidence that the officers conducted the search 

to harass Cyrus. In the afternoon, a homicide suspect told law enforcement that he had 

been with Cyrus at that apartment, and the officers searched the apartment that night. 

There is no evidence that the officers delayed or stalled or otherwise chose to conduct the 

search late at night as a form of harassment. Moreover, it was reasonable for the officers 

to conduct the search as soon as practicable to ensure that any evidence that still existed 

would not be destroyed or hidden once others discovered that Marquis was in custody.
13

For all of these reasons, we conclude that the trial court did not err by denying 

Cyrus’s motion to suppress evidence.

B. Firearm Possession 

The prosecution contended that Cyrus constructively possessed the firearm found 

in the closet next to the mattress where he was sleeping. Cyrus argues that the 

prosecution failed to introduce substantial evidence that he either knew about the gun or 

had the right to control it. We are not persuaded.

“In reviewing a sufficiency of the evidence claim, our role is limited. We review 

the entire record to determine whether it discloses reasonable and credible evidence to 

allow a rational trier of fact to determine guilt beyond a reasonable doubt.” (People v. 

Cardenas (2020) 53 Cal.App.5th 102, 119, fn. 11 (Cardenas); Renteria, supra, 13 Cal.5th 

at p. 970.) “We draw all reasonable inferences in favor of the judgment.” (Cardenas, 

supra, at p. 119, fn. 11.) “If the circumstances reasonably justify the trier of fact’s 

findings, reversal of the judgment is not warranted simply because the circumstances 

might also reasonably be reconciled with a contrary finding.” (People v. Albillar (2010) 

51 Cal.4th 47, 60 (Albillar).)

Section 29800 prohibits any felon from possessing or having in his or her custody 

or control any firearm. (§ 29800, subd. (a).) “The elements of this offense are conviction 

of a felony and ownership or knowing possession, custody, or control of a firearm.” 

(People v. Osuna (2014) 225 Cal.App.4th 1020, 1029, disapproved on another ground by 

People v. Frierson (2017) 4 Cal.5th 225, 240, fn. 8.; People v. Bay (2019) 40 Cal.App.5th 

126, 132 (Bay).) “Possession may be actual or constructive.” (Bay, supra, at p. 132.) 
14

“‘To establish constructive possession, the prosecution must prove a defendant 

knowingly exercised a right to control the prohibited item, either directly or through 

another person.’” (Ibid.) “Although a defendant may share possession with other people, 

‘mere proximity’ or opportunity to access the contraband, ‘standing alone, is not 

sufficient evidence of possession.’” (Ibid.) “With respect to the elements of possession 

or custody, it has been held that knowledge is an element of the offense.” (People v. 

Snyder (1982) 32 Cal.3d 590, 592 [former felon in possession statute].) 

The record contains substantial evidence from which a reasonable jury could infer 

that Cyrus knowingly and constructively possessed the firearm. The gun was in a bag in 

a closet next to the mattress where Cyrus was sleeping, and the bag was on top of a wallet 

containing Cyrus’s health care card and a copy of his identification. The jury could 

reasonably infer from the contents of the wallet that the wallet belonged to Cyrus. The 

jury also could reasonably infer from the placement of the bag on top of the wallet and 

next to the mattress where Cyrus was sleeping that the bag also belonged to Cyrus and 

that Cyrus had placed the bag atop the wallet in order to keep his belongings together and 

close by. 

In addition to the proximity of the gun to Cyrus and his wallet, the gun was used 

two months earlier by another member of C9 in a gang-related shooting. There was 

further evidence that C9 treated the gun as a gang gun—another gang member had been 

photographed with a Glock .40-caliber handgun with a large capacity magazine.

Moreover, in a recorded jailhouse telephone conversation, another member of the same 

gang spoke about the gun (albeit in coded language) and indicated that yet another gang 
15

member was supposed to pick up the gun from Cyrus before it was found by law 

enforcement, which Cyrus did not deny or disavow. Cyrus was the only gang member in 

the apartment when the gun was found. From all of this evidence, the jury could 

reasonably infer that the gun was a C9 gang gun and that Cyrus, as a C9 member, 

possessed the gun for the gang when the gun was found.

Cyrus argues that there was insufficient evidence that he knowingly possessed the 

firearm because there was no evidence about who placed the gun in the closet, when the 

gun was placed in the closet, what Marquis did with the gun after the shooting, that 

Marquis and Cyrus communicated after the shooting, that Cyrus knew of the gun before 

the search, or that all gang members are aware of the location of a gang gun at all times. 

The absence of that hypothetical evidence is not relevant to our review of the sufficiency 

of the evidence. We analyze “whether the evidence was sufficient, not whether 

hypothetical evidence would have strengthened the prosecution’s case.” (Vargas, supra, 

9 Cal.5th at p. 822.)

Cyrus also suggests various nonincriminating reasonable inferences that could 

have been drawn from the evidence, such as that he was not currently using the wallet 

because it did not contain money or his actual identification card, or that Marquis may 

have placed the bag in the closet without telling Cyrus about it. But in conducting 

substantial evidence review, we draw all reasonable inferences in support of the 

judgment, not against it. (Cardenas, supra, 53 Cal.App.5th at p. 119, fn. 11.) We are 

only concerned with whether “‘the circumstances reasonably justify the trier of fact’s 
16

finding.’” (People v. Kraft (2000) 23 Cal.4th 978, 1054.) It is therefore irrelevant

whether the evidence might also support a contrary finding. 

We also reject Cyrus’s contention that the present case is factually 

indistinguishable from People v. Sifuentes (2011) 195 Cal.App.4th 1410 (Sifuentes), 

disapproved on another ground by People v. Farwell (2018) 5 Cal.5th 295, 304, fn. 6. In 

Sifuentes, a firearm was discovered in the same room as the defendant, who was found to 

constructively possess it. (Id. at pp. 1413-1414.) Unlike Cyrus, however, the defendant 

in Sifuentes was one of two gang members in the room where the gun was found, and the 

gun was found under the mattress near where the other gang member was located. (Id. at 

p. 1414.) There also was expert testimony about gang guns in Sifuentes. (Id. at p. 1415.)

But in the present case the gun was found among Cyrus’s belongings, so the evidence 

about gang guns was not the only evidence of Cyrus’s possession of the gun (cf. id. at 

p. 1417 [“Even assuming the firearm [that the other person in the room] possessed fell 

into the gang gun category, no evidence showed [that the defendant] had the right to 

control the weapon”]).

For all of these reasons, we conclude that there was sufficient evidence to support 

the firearm possession conviction.

C. Gang Enhancement—Sufficiency of the Evidence

Cyrus argues that under Renteria, supra, 13 Cal.5th 951, the evidence is 

insufficient to sustain the jury’s true finding on the gang enhancement allegation under 

the law as it existed when he was tried. We agree. “‘We review the sufficiency of the 
17

evidence to support an enhancement using the same standard we apply to a conviction.’” 

(People v. Rivera (2019) 7 Cal.5th 306, 331.)

Subdivision (b)(1) of section 186.22 (section 186.22(b)(1)), as it existed when 

Cyrus was tried in 2020, prescribed a sentence enhancement for “‘any person who is 

convicted of a felony committed for the benefit of, at the direction of, or in association 

with any criminal street gang, with the specific intent to promote, further, or assist in any 

criminal conduct by gang members.’” (Renteria, supra, 13 Cal.5th at p. 962; former 

§ 186.22(b)(1).) Effective January 1, 2022, Assembly Bill 333 amended the gang 

enhancement statute in several important respects. (People v. E.H. (2022) 75 

Cal.App.5th 467, 477-478.) Those amendments are not relevant, however, to Cyrus’s 

challenge to the sufficiency of the evidence under the law as it existed when he was tried. 

(Renteria, at p. 961, fn. 6.) Our discussion in this section consequently refers only to that 

prior version of the statute.

When Cyrus was tried, section 186.22(b)(1) set forth a two-pronged requirement 

that a felony must “be committed (1) for the benefit of, at the direction of, or in 

association with [any] criminal street gang, and (2) with the specific intent to promote, 

further, or assist in any criminal conduct by gang members.” (Renteria, supra, 13 Cal.5th

at p. 964.) In Renteria, our Supreme Court examined the showing needed to satisfy the 

requirements in “a lone-actor case” (ibid.), which the court defined as a case involving 

“the gang-related conduct of an individual who acts alone” (id. at p. 962) and not one 

concerning “the conduct of individuals acting in concert with other gang members” (id. at 

p. 963). As Renteria explained, the distinction is important because “the joint nature of 
18

the alleged conduct frequently affects the type of evidentiary showing that is sufficient to 

demonstrate the conduct was gang-related and committed to promote the criminal activity 

of gang members, as section 186.22 requires.”1(Ibid.) In cases in which “multiple gang 

members were involved in the charged offense, the fact of their joint involvement in a 

crime often provides sufficient evidence of association and benefit, as well as 

circumstantial evidence of an intent to promote the criminal activity of other gang 

members, in connection with the very same criminal offense.” (Ibid.) The same does not 

hold true for lone-actor cases. (Id. at p. 964.) 

To avoid the constitutional limitation on “the state’s power to criminalize 

membership in particular groups” (Renteria, supra, 13 Cal.5th at p. 964), Renteria 

emphasized that there must be “‘a nexus to gang activity sufficient to alleviate due 

process concerns’” (id. at p. 965). In describing the means of proving that nexus, 

Renteria discussed two aspects of section 186.22(b)(1)’s intent requirement that are

“particularly relevant in lone-actor prosecutions.” (Renteria, at p. 965.) The first is that

“the specific intent to aid the criminal activities of a gang’s members implies knowledge 

of the nature of at least some of those activities.” (Ibid.) Renteria explained that this 

aspect of the intent requirement is important because due process necessitates that “there 

be a significant connection between the defendant’s ‘guilty knowledge and intent’ and the 

criminal conduct of the defendant’s associates.” (Ibid.) “Reading the statute against this 

backdrop,” Renteria inferred that in a lone-actor case a defendant “must at least be aware 

1 Renteria, like this case, dealt with the gang enhancement statute before it was 

amended by Assembly Bill 333. (Renteria, supra, 13 Cal.5th at p. 961, fn. 6.)
19

of the type of criminal activity the gang members pursue; without such awareness, the 

defendant cannot intend to aid in such activity.” (Ibid.) 

Renteria noted that the second particularly relevant feature of the intent 

requirement in lone-actor cases is that former section 186.22(b)(1) “refers to the intent to 

promote ‘criminal conduct by gang members,’” which means “the promotion of criminal 

conduct by more than one member of the gang.” (Renteria, supra, 13 Cal.5th at p. 965.) 

Because a lone-actor case necessarily involves criminal conduct of an individual acting 

alone, in a lone-actor case this requirement “necessarily means the promotion of conduct 

other than the commission of the underlying felony.” (Id. at pp. 965-966.) 

Renteria also disapproved of the prosecution’s practice of relying “on expert 

opinion about the potential for a gang member’s crime to benefit the gang by, among 

other things, enhancing a gang’s reputation for violence among rival gangs or in the 

community more generally” to establish the requisite intent in a lone-actor case. 

(Renteria, supra, 13 Cal.5th at p. 966.) The court explained: “Without more, evidence 

that committing a violent crime can enhance the gang’s reputation for viciousness in the 

community does not support an inference that the defendant committed a particular 

violent crime for the benefit of the gang and with the intent to facilitate known criminal 

activity by other gang members.” (Id. at p. 967.) Renteria nevertheless approved the use 

of “expert opinion to connect the defendant’s crime with the conduct of the gang and its 

members” so long as the opinion is “‘“rooted in facts shown by the evidence.”’” (Ibid.) 

The court outlined the type of expert opinion that remains permissible. (Id. at pp. 967-

968.)
20

Turning to the facts before it, Renteria concluded that there was not sufficient 

evidence to support either element of the gang enhancement statute for the two alleged

gang enhancements. (Renteria, supra, 13 Cal.5th at p. 973.) There, the defendant had 

shot at two inhabited residences while he was with an unidentified person who was not 

identified as a gang member. (Id. at pp. 958, 970.) The defendant had admitted to being 

a gang members years earlier and also when he was arrested for the underlying offenses. 

(Id. at pp. 958, 972.) “A ‘little while’” before the shooting a neighbor saw the defendant 

with a group of men walking in a nearby field while yelling the name of the gang to 

which the defendant admitted belonging. (Ibid.) 

Renteria found that there was no substantial evidence from the circumstances of 

the crime showing that the defendant “intended his actions to be attributed to his gang.” 

(Renteria, supra, 13 Cal.5th at p. 971.) In particular, the court noted that “the description 

of events” did “not support the inference that, by walking along with the group earlier in 

the night, [the defendant] intended the later shootings to be attributed to the gang.” 

(Ibid.) “There was no evidence that [the defendant] identified himself or his gang during 

the shooting or took credit for it on behalf of his gang afterwards.” (Ibid.) The court also 

concluded that there was no substantial evidence that (1) the defendant “could have 

reasonably anticipated the community would perceive a gang connection,” given that

there was no evidence that anyone had perceived such a connection, or (2) the defendant 

“intended the shooting to contribute to his gang’s rivalry with” another gang. (Ibid.) 

Finally, as to the expert’s testimony that the defendant “may have engaged in the 

shooting to maintain his own respect within the gang,” Renteria reasoned that “such 
21

evidence fails to explain how enhancing his personal reputation within the gang would 

facilitate the criminal activities of the gang and its members, as section 186.22(b) 

requires.” (Id. at p. 972.) Renteria therefore concluded that there was no evidence “from 

which the jury could infer that [the defendant] knew of and thus might have intended to 

promote the criminal activities of his gang’s members.” (Ibid.) 

It is undisputed that this is a lone-actor case. No other gang members were present 

in the apartment where the gun was found. There was substantial evidence that Cyrus 

was a member of C9 and that the gun he possessed was used in a gang-related shooting 

two months earlier and was otherwise used as a gang gun, as described ante. The People 

argue that this evidence “clearly showed [that Cyrus] possessed the weapon with the 

specific intent to promote, further, or assist criminal conduct by gang members.” (Italics 

added.) We do not agree, because the argument is foreclosed by Renteria. A reasonable 

jury could not infer from Cyrus’s gang membership and the gun’s status as a gang gun

that Cyrus was aware “of the type of criminal activity [C9] gang members pursue” 

(Renteria, supra, 13 Cal.5th at p. 965) or “that [Cyrus] knew of and thus might have 

intended to promote the criminal activities of his gang’s members” (id. at p. 972). The

evidence shows that Cyrus was a gang member who committed the crime of possessing a 

firearm that had been used in a prior gang-related shooting and was otherwise important 

to the gang. Nothing in that evidence supports an inference that Cyrus had any awareness 

“of the type of criminal activity [C9] gang members pursue,” as he must to satisfy the 

specific intent requirement of section 186.22(b)(1) under Renteria. (Renteria, at p. 965.)
22

The People contend that there was evidence that Cyrus knew of the previous 

shooting—and thus possessed the requisite knowledge of the criminal activities of C9 

members—because in the jailhouse conversation he pointed out that police had come to 

his residence and conducted a search because Marquis had sent them there. In the 

recorded jailhouse conversation, Cyrus said that he was in jail for “felony possession of a 

firearm” because his cousin, whom “they got . . . on that other shit,” had said something 

to send law enforcement to his residence. That evidence does not support the inference

Cyrus knew that Marquis “had used the gun in the shooting and then directed the police 

to the apartment where the gun was hidden,” as the People suggest. Instead, the evidence 

supports the inference that Cyrus knew that law enforcement searched his residence as a 

result of something Marquis had told them. It does not support any inference that Cyrus 

was aware of the previous shooting or that it was gang related. And there was no other 

evidence from which the jury could infer that Cyrus had an awareness of the criminal 

activities of C9 members.

Given that there was no evidence that Cyrus was “at least” aware of the type of 

criminal activities pursued by C9 members, he cannot have intended “to aid in such 

activity” by possessing the firearm. (Renteria, supra, 13 Cal.5th at p. 965.) We therefore

conclude that there was not sufficient evidence that Cyrus possessed the requisite specific 

intent to aid the criminal activities of C9’s members and that the evidence was therefore

insufficient to support the gang enhancement under the law as it existed when Cyrus was 

tried. We accordingly vacate the true finding on the gang enhancement allegation.
23

D. Senate Bill 567 

Being a felon in possession of a firearm is punishable by 16 months, two years, or 

three years in state prison. (§§ 18, 29800, subd. (a)(1).) The trial court sentenced Cyrus 

to the upper term of three years for the felon in possession conviction, doubled to six 

years because of the prior strike conviction. (§ 1170.12, subd. (c)(1).) 

Effective January 1, 2022, Senate Bill 567 amended section 1170 to impose limits 

on a trial judge’s discretion in choosing between the low, middle, and upper terms of a 

sentencing triad.

2

(Stats. 2021, ch. 731.) Before the amendments, if a statute prescribed 

a sentencing triad, the court had discretion to choose any one of the three terms. (Stats. 

2021, ch. 731; former § 1170, subd. (b).) When presented with such a choice now, the 

court must impose the low term if the defendant’s youth or another specified mitigating 

circumstance was “a contributing factor in the commission of the offense,” “unless the 

court finds that the aggravating circumstances outweigh the mitigating circumstances that 

imposition of the lower term would be contrary to the interests of justice” (§ 1170, subd. 

2 On October 8, 2021, the Governor signed into law three bills that amended section 

1170: Assembly Bill No. 124 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 695, § 5), 

Assembly Bill No. 1540 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 719, § 2), and Senate 

Bill 567 (Stats. 2021, ch. 731, § 1.3). Senate Bill 567 has the highest chapter number, so 

we presume that it was the last enacted of the bills. (Gov. Code, § 9510; People v. 

Gerson (2022) 80 Cal.App.5th 1067, 1074, fn. 2 (Gerson).) Senate Bill 567 incorporates 

the changes made to section 1170 by the other bills if all three bills were enacted and 

became effective on or before January 1, 2022, and Senate Bill 567 was the last enacted 

bill. (Stats. 2021, ch. 731, §3(c).) The conditions were satisfied. Because Senate Bill 

567 was enacted after the other two statutes, Senate Bill 567 became the operative 

legislation. (Stats. 2021, ch. 731, §§ 1.3, 3(c); Gov. Code, § 9605, subdivision (b).) We 

therefore refer to all of the changes made to section 1170 as deriving from Senate Bill 

567.
24

(b)(6)(A)-(C)). A defendant is considered a youth for purposes of this provision if the 

defendant was “under 26 years of age on the date the offense was committed.” 

(§§ 1016.7, subd. (b), 1170, subd. (b)(6)(B).) 

In addition, section 1170 now provides that the upper term shall not be imposed 

unless the facts underlying the aggravating circumstances that would justify imposing the 

upper term are (1) stipulated to by the defendant, (2) found true by the trier of fact 

beyond a reasonable doubt, or (3) based on prior convictions evidenced by a certified 

record of conviction. (§ 1170, subd. (b)(2)-(3).) The People concede that Senate Bill 567 

applies retroactively to this appeal under In re Estrada (1965) 63 Cal.2d 740, and we 

agree. (See, e.g., People v. Ross (2022) 86 Cal.App.5th 1346, 1352.) Cyrus and the 

People do not agree about whether remand for resentencing is required.

Cyrus was 22 years old when the offense was committed. In sentencing Cyrus to 

an aggregate sentence of 13 years, the trial court recognized Cyrus’s “youthfulness.” The 

court had read and considered the report of the probation officer, who recommended a 

14-year sentence. The probation officer found there to be no mitigating circumstances 

affecting Cyrus’s sentence (former Cal. Rules of Court, rule 4.423) but found the 

following aggravating circumstances present: (1) Cyrus used a weapon in committing the 

offense, (2) Cyrus’s prior convictions were “numerous and of increasing seriousness,” (3) 

Cyrus had served two prior prison terms, (4) Cyrus was on parole when the offense was 

committed, and (5) Cyrus’s conduct on parole and probation had been unsatisfactory. 

(Former Cal. Rules of Court, rule 4.421.) The court expressed concern that Cyrus had 

already been incarcerated and had not demonstrated any change in behavior as a result. 
25

The court did not believe that Cyrus’s crimes demonstrated any escalation but noted that 

he was “on parole or probation every time something happen[ed].” 

Although the court considered Cyrus’s “youthfulness” when it sentenced him, it 

did not otherwise explain how that consideration affected its sentencing decision. The 

court was not constrained by Senate Bill 567’s amendments to section 1170 at 

sentencing, because they did not yet exist. Thus, the court was not bound by the nowgoverning presumption favoring imposition of the low term if Cyrus’s age contributed to

the commission of the offense (§ 1170, subd. (b)(6)(B)), and the court consequently did 

not determine whether his age did contribute.

“When being sentenced, a defendant is entitled to decisions made by a court 

exercising informed discretion.” (People v. Tirado (2022) 12 Cal.5th 688, 694.) “‘A 

court which is unaware of the scope of its discretionary powers can no more exercise that 

“informed discretion” than one whose sentence is or may have been based on 

misinformation regarding a material aspect of a defendant’s record.’” (People v. 

Gutierrez (2014) 58 Cal.4th 1354, 1391.) When postsentencing statutory amendments 

would affect a trial court’s sentencing discretion, “the appropriate remedy is to remand 

for resentencing unless the record ‘clearly indicate[s]’ that the trial court would have 

reached the same conclusion ‘even if it had been aware that it had such discretion.’” 

(Ibid.; People v. Flores (2020) 9 Cal.5th 371, 431.) 

We cannot say on this record whether the trial court would conclude that Cyrus’s

age contributed to his commission of the offense so as to trigger the low term 

presumption in subdivision (b)(6) of section 1170. When Cyrus was sentenced, the trial 
26

court had no statutory reason to make, and Cyrus had no reason to seek, a finding that his 

age was a contributing factor to his commission of the offense. (Gerson, supra, 80 

Cal.App.5th at p. 1096.) Moreover, at that time a defendant’s youth was not listed in the 

court rules as a mitigating circumstance the court should consider in sentencing. (Former 

Cal. Rules of Court, rule 4.423(b).) The probation department consequently did not list

Cyrus’s age as a mitigating circumstance. Moreover, if the trial court did conclude that 

Cyrus’s age contributed to the commission of the offense, we cannot say with confidence 

on this record whether the trial court would then conclude that “imposition of the lower 

term would be contrary to the interests of justice.” (§ 1170, subd. (b)(6).) Because the 

record does not clearly indicate that the trial court would have imposed the same 

sentence, we vacate Cyrus’s sentence on count 1.

Because we are vacating Cyrus’s sentence on count 1, Cyrus is entitled to a full 

resentencing. (Gerson, supra, 80 Cal.App.5th at p. 1096 [vacating sentence and 

remanding for consideration of the new low-term presumption in § 1170, subd. (b)(6)]; 

People v. Flores (2022) 73 Cal.App.5th 1032, 1039 [same].) Under the full resentencing 

rule, “when part of a sentence is stricken on review, on remand for resentencing ‘a full 

resentencing as to all counts is appropriate, so the trial court can exercise its sentencing 

discretion in light of the changed circumstances.’” (People v. Buycks (2018) 5 Cal.5th 

857, 893; People v. Valenzuela (2019) 7 Cal.5th 415, 424-425.) The sentence imposed 

on resentencing may not exceed the original aggregate sentence. (People v. Jones (1994) 

24 Cal.App.4th 1780, 1783-1784; People v. Hanson (2000) 23 Cal.4th 355, 357-358.) 
27

E. Due Process

Cyrus argues that his federal due process rights were violated because the firearm 

possession conviction and the true finding on the gang enhancement were not supported 

by substantial evidence. Because we conclude that the firearm possession conviction was

supported by substantial evidence and vacate the true finding on the gang enhancement, 

this argument fails.

DISPOSITION

We vacate Cyrus’s sentence on the firearm possession conviction and remand for 

proceedings consistent with this opinion. We vacate the true finding on the gang 

enhancement because it is not supported by substantial evidence. In all other respects, 

the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MENETREZ

J.

We concur:

RAMIREZ

P. J.

McKINSTER

J.