Filed 12/2/22

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

CHRISTOPHER ALEXANDER VELEZ,

Defendant and Appellant.

F081839

(Super. Ct. No. DF013807D)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. Charles R. 

Brehmer, Judge.

Scott N. Cameron, under appointment by the Court of Appeal, for Defendant and 

Appellant.

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

General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and 

Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is 

certified for publication with the exception of parts I., II., III., IV., V., and VII. of the 

Discussion. 
2.

INTRODUCTION

Defendant and appellant Christopher Alexander Velez (Christopher)1 and 

codefendants Alejandro Alvarado (Alejandro) and Gerardo Alvarado (Gerardo)2 were 

each charged with attempted murder (Pen. Code,3 §§ 187, subd. (a), 664 [count 1]); 

carrying a loaded firearm in public as an active participant in a criminal street gang 

(§ 25850, subd. (c)(3) [count 2]); active participation in a criminal street gang (§ 186.22, 

subd. (a) [count 3]); and misdemeanor unlawful driving or taking of a vehicle without the 

owner’s consent (Veh. Code, § 10851, subd. (a) [count 5]). As to count 1, the 

information alleged in part that the attempted murder was willful, deliberate, and 

premeditated (§ 189); Christopher committed the offense for the benefit of, at the 

direction of, and/or in association with a criminal street gang (§ 186.22, former subd. 

(b)(1)); and at least one principal in the attempted murder personally and intentionally 

discharged a firearm and caused great bodily injury (§ 12022.53, subds. (d), (e)(1)). 

Following trial, the jury found Christopher guilty as charged and found true the 

special allegations. The trial court imposed 15 years to life “with a minimum parole 

eligibility date of 7 years” plus 10 years for vicarious “use of the firearm”4 on count 1 

and a concurrent one year on count 5. The court stayed execution of punishment on 

counts 2 and 3 pursuant to section 654. 

While this case was pending, the Legislature enacted Assembly Bill No. 333 

(2021-2022 Reg. Sess.) (Assembly Bill No. 333), which amended section 186.22 and 

1 To avoid confusion, we identify individuals who share the same surname by their

given name.

2 Alejandro (case No. F081842) and Gerardo (case No. F082048) each filed a 

separate appeal.

3 Unless otherwise indicated, subsequent statutory citations refer to the Penal 

Code.

4 Exercising its discretion, the court struck the vicarious firearm discharge 

enhancement. 
3.

added section 1109 (Stats. 2021, ch. 699, §§ 3, 5). The new laws became effective on 

January 1, 2022. (See Cal. Const., art. IV, § 8, subd. (c)(1); Gov. Code, § 9600, 

subd. (a).) In addition, on June 23, 2022, the United States Supreme Court decided New

York State Rifle & Pistol Assn., Inc. v. Bruen (2022) 597 U.S. ___ [142 S.Ct. 2111] 

(Bruen), which held that New York’s “proper cause” requirement for an unrestricted 

license to carry a handgun outside the home impermissibly infringed on the right of lawabiding citizens to bear arms in public for self-defense.

Christopher makes the following contentions on appeal: (1) the trial court 

erroneously denied his motion to bifurcate the gang charges and the gang enhancement 

allegations; (2) the prosecution’s expert witness improperly opined that he intended for 

the victim to be shot; (3) the evidence did not support his misdemeanor unlawful driving 

or taking of a vehicle without the owner’s consent conviction; (4) section 1109 applies 

retroactively and requires all convictions and enhancements be reversed; (5) amended 

section 186.22 applies retroactively and requires all gang-related convictions and 

enhancements be reversed; (6) the court failed to instruct the jury on the elements of 

carrying a loaded firearm in public as an active participant in a criminal street gang; 

(7) he was improperly convicted of both carrying a loaded firearm in public as an active 

participant in a criminal street gang and the necessarily included offense of active 

participation in a criminal street gang; (8) the court imposed an unauthorized sentence on 

count 1; (9) Bruen rendered unconstitutional California’s licensing scheme (§ 26150 et 

seq.) and—by extension—section 25850, which criminalizes possession of a firearm 

without a license; and (10) the cumulative effect of the aforementioned errors deprived 

him of due process. 

In the published portion of this opinion, we reject Christopher’s assertion that 

California’s licensing scheme and section 25850 are unconstitutional.

In the unpublished portion of this opinion, we conclude the trial court did not 

abuse its discretion when it denied Christopher’s bifurcation motion; assuming arguendo 
4.

that the gang expert expressed an improper opinion, such an error was not prejudicial;

substantial evidence supported the misdemeanor conviction on count 5; and, even if we 

assume arguendo that section 1109 is retroactive, reversal is unwarranted. Additionally, 

we accept the Attorney General’s concessions that: Christopher’s gang-related 

convictions on counts 2 and 3 as well as the gang enhancement on count 1 must be 

reversed in view of amended section 186.22; the court failed to instruct the jury on the 

elements of carrying a loaded firearm in public as an active participant in a criminal street 

gang; Christopher was improperly convicted of both carrying a loaded firearm in public 

as an active gang participant and the necessarily included offense of active participation

in a criminal street gang; and the court imposed an unauthorized sentence on count 1. 

Finally, we conclude there was no cumulative error. 

STATEMENT OF FACTS

I. Testimony of Antonio H.5

a. Gang affiliation and relationships

When he was 15 years of age, Antonio—also known as “Clever”—was initiated 

into Delano Norte, a Norteño street gang that claims Delano as its territory. As a 

Norteño, he identified with the color red, the letter N, and the number 14. Antonio 

subsequently joined 21st Street, a Delano Norte subset, with the backing of his best friend 

and fellow gang member Oswaldo “Little Baby Boy” Guzman. 

21st Street is organized into a three-tiered hierarchy comprised of “soldiers,” 

“squad leader[s],” and the “channel.” A soldier receives orders and “do[es] whatever 

need[s] to be done.” A squad leader “run[s] [his] own squad” of soldiers. The channel—

“the main one from the hood”—oversees the subset, relays information to squad leaders 

from “[w]hoever is running the town,” collects “[t]axes,” and determines how a member 

who “mess[es] up” should be punished. Antonio began as a soldier in 2014, was elevated 

5

In exchange for his testimony, Antonio was granted use immunity. 
5.

to squad leader at some point, and became the channel in early 2018. However, in or 

around June 2018, he was demoted to squad leader without any explanation. While 

Antonio was a member of 21st Street, Ivan “Evil” Rodriguez was the Norteño “running 

the town” and “in charge of” “everything that goes on” in Delano. Rodriguez received 

correspondences “[f]rom homies in jail” in the form of “kite[s],” i.e., “long and narrow” 

“rolled up” “piece[s] of paper” with “small writing.” 

By “putting in work” for the gang, i.e., by participating in shootings, robberies, 

and drug sales, Antonio earned many Norteño-related tattoos, including “21st Street” on 

his face and left arm; “1” and “4” on his biceps; “NKC” and four dots on his left arm; one

dot on his right hand and four dots on his left hand; two horizontal lines underneath four 

dots (the Mayan numeral for 14) on his left ring finger; “Delano” on his chest; “KC” on 

his stomach; and “banging” above the kneecap. He also had “LB Boy”—Guzman’s

moniker—on his arm. 

Antonio met Alejandro, also known as “Peanut,” through 21st Street. The latter 

became a member of the subset “[s]omewhere between 2017 and 2018” by “putting in 

work,” i.e., by “go[ing] after [the gang’s] enemies” and “shoot[ing] somebody.” 

Alejandro served as the “bank,” the soldier who “hold[s] the money” amassed by 21st 

Street. He had gang-related tattoos such as “Norte[ñ]o” and “Delano Norte.” Antonio 

considered Alejandro a friend and hung out with him “[m]ostly every day” around 

September 2018. 

Antonio also met Alejandro’s brother Gerardo, also known as “Little Knocker,” 

through 21st Street. The latter became a member of the subset before the former and had 

gang-related tattoos such as “Norteño” and “Delano Norte.” Antonio and Gerardo hung 

out “maybe once, twice a week” around the time of September 2018. 

Antonio met Christopher, also known as “Baby Sisco,” through Jose “Little Sisco” 

Velez (Jose), the latter’s older brother and 21st Street’s channel. Prior to September 
6.

2018, Christopher was an associate of the subset and did not have any gang-related 

tattoos. 

b. The shooting

On the night of September 9, 2018, Antonio, Alejandro, and Christopher attended 

a party at another gang member’s house. Sometime later, Guzman arrived in his black 

sedan to pick up Alejandro and Christopher. Antonio noticed that Gerardo and Jose were 

also in Guzman’s car and “thought it was weird” that the five “just left” and “didn’t say 

nothing” to him. At or around midnight, Antonio returned to his home in Delano. At 

approximately 2:00 a.m., Alejandro and Christopher visited him and asked for a ride to 

Richgrove “[t]o see some girls.” Although Antonio initially refused, he relented when 

Alejandro and Christopher indicated that they “were just going to walk.” 

Roughly five minutes after Antonio started driving, Alejandro said, “Oh, I need to 

throw up.” Christopher added, “[Y]eah, me, too.” Antonio pulled his 2011 Honda 

Accord over near some fields and the two passengers exited the vehicle. He heard 

“overexaggerat[ed]” “gagging noises” and “knew they weren’t throwing up.” Antonio 

then saw Guzman’s sedan passing by and “started flashing [the Accord’s] lights,” but the 

sedan “just kept going.” After Alejandro and Christopher returned, Antonio told them 

about what had happened, but the pair ignored him. The trip resumed. 

Eventually, Christopher instructed Antonio to turn onto a dirt road surrounded by 

grapevines. Alejandro and Christopher then claimed that “they needed to throw up 

again.” Antonio parked and all three men exited the vehicle. While Alejandro and 

Christopher were pretending to vomit in the grapevines, Antonio used the Snapchat 

application on his cell phone to film a video.6 He sat down in the driver’s seat and was 

about to upload the recording when he was shot from behind. Antonio “immediately 

6 The record indicates that Antonio filmed the video at 3:00 a.m. on September 10, 

2018. The jury watched this footage. 
7.

grab[bed] [his] face” and observed “all the blood.” He “thought it was an accident” and 

told Alejandro and Christopher, “Get back in the car. Let’s go to the hospital. You just 

shot me.” Neither man responded. 

Antonio turned around and saw Alejandro and Christopher standing outside the 

Accord. Alejandro was pointing a .22-caliber semiautomatic firearm at “arm’s length” 

while Christopher was “shaking.” Alejandro pulled the trigger, but the gun jammed and 

did not fire. Antonio recognized that the weapon was a malfunctioning “hood gun” 

shared amongst 21st Street members that no longer ejected a spent casing and required 

the user to manually remove said casing so that another live round can be fired. As 

Alejandro was attempting to reload the gun, Antonio got out of the car and cried, “What 

are you doing? What the fuck are you doing[?]” Antonio then spotted Guzman’s sedan 

approaching “with [the] lights off” and realized that “they set [him] up.” 

Antonio ran into the grapevines for cover. He saw Gerardo exit Guzman’s sedan 

and talk to Alejandro. At one point, Gerardo told Alejandro, “Give me the gun, give me 

the gun.” While the two bickered, Antonio headed back to the Accord to retrieve his cell 

phone. Gerardo, who had taken possession of the hood gun, noticed Antonio and tried to 

shoot him, but the firearm jammed again. Antonio fled the scene. He reached Richgrove 

and started knocking on doors. One resident finally responded and called 911.7 Antonio 

was transported to a hospital, where he was treated for at least five hours. 

c. The aftermath

A day or two after the shooting, Jose got ahold of Antonio by calling the latter’s 

nephew’s cell phone and accused him of being an informant.8 Antonio was aware that 

“snitching,” i.e., “tell[ing] on somebody” to law enforcement, is prohibited by 21st Street 

7 The jury listened to a recording of the 911 call. 

8 Antonio used another cell phone to video record the conversation. The jury 

watched and listened to this recording. 
8.

and punishable by death. A snitch is ascertained through “paperwork” such as “police 

reports” and “papers from court.” Antonio recalled that—prior to the shooting—he had 

been questioned by a police officer about a stolen vehicle parked in front of his place and 

granted access to his surveillance camera footage when advised that law enforcement was 

“going to take it regardless.” Thereafter, Rafael “Rafa” Valdez (Rafael), a member of 

Delano Norte, was arrested and charged with possession of a stolen vehicle. Antonio 

believed that the conversation with Jose confirmed that “they were going to kill [him].” 

As 21st Street’s channel, Jose would have received the order to kill from Rodriguez and 

assigned the task to other people. 

Antonio contacted the Kern County Sheriff’s Office. He provided Alejandro’s 

phone number ending in -08 as well as photographs of Alejandro, Gerardo, Christopher, 

and Guzman. Antonio left the gang and moved out of Kern County. He was afraid to 

return to Delano. At some point, Antonio learned that his Accord had been incinerated. 

At trial, he testified that he did not give anyone permission to drive or take his vehicle. 

II. Testimony of law enforcement personnel

a. Events preceding the shooting

On May 4, 2018, Officer Rivera of the Delano Police Department encountered 

Rafael wearing a red shirt and sitting in a vehicle that had been reported stolen. After 

apprehending Rafael, Rivera went to a nearby residence and knocked on the door. 

Antonio answered. Rivera asked Antonio “if he had anything to do with the vehicle that 

was outside.” Antonio replied that Rafael “had arrived at his house and offered him some 

tires to buy,” but he told him to leave. Antonio later provided surveillance camera 

footage. Rafael was subsequently convicted of possession of a stolen vehicle.9 

9 The prosecution presented Rafael’s conviction as one of six predicate gang 

offenses. 
9.

On June 20, 2018, Kern County Probation Department Supervisor Baameur 

conducted a search at the residence of Ivan Gutierrez Rodriguez, also known as “Little 

Evil.” He found a “kite,” i.e., a small note written by an inmate and “smuggled out” “to 

communicate with individuals that are outside of the facilit[y].” It read:

“I send mine in regards to Antonio H[.] aka Clever D/Delano 21st. He 

stated that Rafa D/Delano was trying to sell him tires . . . and he told him to 

leave. This is all I remember. [¶] . . . Antonio H[.], Clever 21st, 

Delano/Kern County now I exit.” 

The kite was addressed to “La Casa,” labeled as an “IR,” and signed by Ezekiel “Tone” 

Burciaga, a member of Delano Norte’s Varrio Delano Locos (VDL) subset. 

b. The day of the shooting

On September 10, 2018, at 4:26 a.m., Deputy Cordova of the Kern County 

Sheriff’s Office arrived at the hospital and met Antonio in the emergency room. Cordova 

photographed “a visible gunshot wound to [Antonio’s] top lip.” The two discussed the 

shooting. 

At approximately 7:45 a.m., Officer Aguirre of the California Highway Patrol was 

dispatched to a rural area roughly 10 miles north of Delano, where he found Antonio’s 

“smoldering” Accord. 

c. Arrests

On October 7, 2018, Officer Santaella of the Delano Police Department assisted 

with a traffic stop of a vehicle occupied by Alejandro and Gerardo, among others. Both 

were wearing red clothing. Alejandro and Gerardo were arrested on outstanding 

warrants. 

On October 9, 2018, Deputy Lovan of the Kern County Sheriff’s Office arrested 

Christopher at a residence. Guzman was present at the scene. 
10.

d. Cell phone location data

Sergeant Colbert of the Kern County Sheriff’s Office analyzed the location data of 

the phone number ending in -08 on September 10, 2018, between 2:00 a.m. and 4:30 a.m. 

At trial, he presented his findings in a slideshow presentation. 

i. Phone calls

At 2:05 a.m., the phone made an outgoing call that connected to a cell tower in 

Delano facing west. At 2:39 a.m., the phone received an incoming call that connected to 

a tower in northern Delano. At 3:07 a.m., the phone made an outgoing call that 

connected to the northern Delano tower. At 3:17 a.m., the phone received an incoming 

call that connected to a tower in southern Earlimart. At 3:21 a.m. and 3:23 a.m., the 

phone made outgoing calls that connected to the southern Earlimart tower. At 3:23 a.m., 

3:26 a.m., and 3:29 a.m., the phone made outgoing calls that connected to a tower in 

Alpaugh. At 3:29 a.m., the phone received an incoming call that connected to the 

Alpaugh tower. At 3:38 a.m., the phone received an incoming call that connected to the 

southern Earlimart tower. At 3:39 a.m. and 3:40 a.m., the phone made outgoing calls that 

connected to the southern Earlimart tower. At 3:44 a.m., 3:45 a.m., and 3:46 a.m., the 

phone received incoming calls that connected to the southern Earlimart tower. At 4:29 

a.m. and 4:30 a.m., the phone made outgoing calls that connected to the westward facing 

tower in Delano. 

ii. Internet usage

At 3:02 a.m., the phone accessed the Internet and connected to a cell tower east of 

the site of the shooting. Between 3:03 a.m. and 3:54 a.m., the phone accessed the 

Internet multiple times and connected to a tower in northern Pixley. At 3:54 a.m., the 

phone accessed the Internet and connected to the westward facing tower in Delano. 

e. Additional predicate gang offenses

On April 15, 2015, Officer Bursiaga of the Delano Police Department pursued 

Kristofer Hernandez on foot through an alleyway. At some point, Bursiaga heard a loud 
11.

noise emanating from a Dumpster in Hernandez’s proximity. After Hernandez was 

detained, Bursiaga returned to the Dumpster, where he found a .22-caliber revolver. 

Based on prior encounters with Hernandez and various Norteños, conversations with 

other officers, and past training, Bursiaga opined that Hernandez was a Norteño. 

Hernandez subsequently pled nolo contendere to carrying a loaded firearm in public as an 

active participant in a criminal street gang. 

On November 21, 2016, Officer Bautista of the Delano Police Department assisted 

with a traffic stop of a vehicle occupied by Alejandro, Gerardo, Jesse Orozco, and 

Edgardo Rosales. A .22-caliber semiautomatic pistol was found inside. In prior 

conversations, Orozco informed Bautista that he was a Norteño. Both Gerardo and 

Orozco subsequently pled nolo contendere to active participation in a criminal street gang 

and carrying a loaded firearm in public as a nonregistered owner. Rosales subsequently 

pled nolo contendere to active participation in a criminal street gang. 

On August 27, 2017, Officer Bautista pulled over a vehicle to conduct a traffic 

stop. When that vehicle stopped, Omar Valdez (Omar)—the front passenger—got out, 

discarded a semiautomatic pistol, and unsuccessfully attempted to flee. Omar sported 

numerous Norteño-related tattoos. The driver, Damian Cardenas, was an admitted 

Norteño. T-shirts bearing images of deceased gang members, San Francisco 49ers 

jerseys, Chicago Bulls caps, and a red handkerchief were found inside the vehicle. Omar 

subsequently pled nolo contendere to possession of a firearm by a convicted felon. 

On February 20, 2018, Officer Galutira of the Delano Police Department pursued 

a vehicle occupied by Burciaga, among others. The vehicle eventually stopped and a red 

bandana was found inside. Burciaga subsequently pled nolo contendere to unlawful 

driving or taking of a vehicle without the owner’s consent, evading a pursuing peace 

officer, and active participation in a criminal street gang. 

On July 22, 2018, Officer Santaella observed Antonio Montemayor arriving in a 

car and wearing red shorts outside the residence of Brandon Santana, an admitted 
12.

Norteño. In the back seat, Santaella saw a nine-millimeter handgun. He entered the 

residence and came across Montemayor, Santana, Cardenas, and Andrew Lomeli, among 

others. Santaella opined that each of these individuals was a Norteño. Montemayor 

subsequently pled nolo contendere to possession of a firearm by a convicted felon.

f. Other gang encounters

On June 23, 2015, Officer Strand of the Delano Police Department contacted Jose 

and Guzman. Jose had tattoos of “DN” and “KC” on his chest; “SF 49ers” on his right 

arm; “DN” on his hands; and four dots on his wrist. Guzman had tattoos of “KC” on his 

left arm; “D” and “NKC” on his right arm; “21st” and “2-1” on his right elbow; one dot 

on one elbow and four dots on the other elbow; “1-661” on his right wrist; and four dots 

on his fingers. 

On May 21, 2016, Officer Alvarez of the Delano Police Department pulled over a 

vehicle occupied by Gerardo and Jose Luis Torres, among others. Torres had a tattoo of 

four dots on his left elbow. 

On May 25, 2016, Officer Santaella encountered Gerardo, Omar, and Julian 

Valenzuela. He opined that Omar and Valenzuela were Norteños based on previous 

conversations and their tattoos. Santaella arrested all three men for violating a court 

order restricting associations with other gang members. 

On November 8, 2016, Officer Santaella conducted a traffic stop of a vehicle 

occupied by Gerardo and Lomeli. He opined that Lomeli was a Norteño based on prior 

conversations and his tattoos, which included “DN,” “Delano,” and “14.” Santaella 

arrested Gerardo for violating juvenile probation terms prohibiting associations with 

other gang members. 

On November 11, 2016, Officer Santaella contacted Guzman and Francisco 

Arreola. Guzman, who wore a red belt, acknowledged that he was a Norteño and a 

member of 21st Street. In addition to the tattoos previously documented, he had a tattoo 
13.

of Antonio’s moniker “Clever.” Santaella opined that Arreola was a Norteño based on 

prior conversations. 

On January 7, 2018, Officer Murguia of the Delano Police Department came 

across Alejandro, who was wearing a red-striped shirt. 

On July 8, 2018, Officer Murguia conducted a traffic stop of a vehicle occupied by 

Antonio, Christopher, and Guzman. 

g. Expert testimony

Deputy Geherty of the Kern County Sheriff’s Office was the prosecution’s gang 

expert. At the time of trial, he was assigned to the High-Intensity Drug Trafficking Areas 

unit, which specialized in “violent fugitive apprehension,” “undercover operations,” and 

“gang investigation[s].” At the time of the shooting, Geherty was a member of the Gang 

Suppression Unit. In that capacity, he conducted “numerous investigations in regard to 

both Norte[ñ]os and Sure[ñ]os” and communicated with gang members on a regular 

basis. Geherty also attended various seminars on gangs and gang culture and became a 

certified instructor on those subjects. 

i. Background on Nuestra Familia and the Norteños

Geherty testified that Nuestra Familia is a prison gang that exerts control over 

“northern Hispanics” “not just inside the prison system but outside as well.” Norteños 

are the “foot soldiers” “outside of the prison system” whose activities are governed by the 

“14 Bonds.” Geherty detailed:

“Ranging from they touch on education and not in the fact of how 

we are educated, getting good grades in math or something like that. They 

educate themselves on their movement. They further themselves in the 

education on the Norte[ñ]os movement, on their beliefs and their 

upbringing as well as their history and their past, their people, so to say.

“So they touch on education. They touch on treason. No treason. 

No cowardness. You cannot be a coward and be a Norte[ñ]o. Treason 

ranging from snitching to going and siding with the enemy, which includes 

law enforcement. From there they touch on no red-on-red violence, which 
14.

is no Norte[ñ]o should lay hands on another Norte[ñ]o unless it’s 

sanctioned. A violation of that rule could get the violator assaulted as 

well.” 

The penalty for snitching is “pretty much death.” 

Norteños “associate themselves with red” and the letter N, which stands for 

“Nuestra Familia” and/or “Norteños.” Because “the 14th letter of the alphabet” is N, they 

identify with the number 14. Norteños are “forever rivals” with Sureños, also known as 

the “southern gang,” who “align themselves with [the prison gang] La eMe or Mexican 

Mafia” and “associate themselves with blue,” the letter M, and the number 13. Norteños 

refer to Sureños as “Scrap[s]” and often wear San Francisco 49ers apparel to display the 

initials “SF,” which means “Scrap Free.” 

Norteño kites “can come from any active Norte[ñ]o member” “from all different 

places,” including prisons and detention facilities, and “can cover a list of things.” 

Geherty specified:

“They often have monthly checks as to what is happening within the prison 

system, within jail settings[,] out on the streets, who has been put on freeze, 

who has been ordered to do cleanup, who has paperwork on them.” 

Geherty reviewed the kite addressed to “La Casa,” labeled as an “IR,” and signed by 

Burciaga. He explained that (1) “La Casa” referred to “the head of the house or the house 

representative, at the time, wherever [the author’s] being kept, in what facility [he’s] in”;

and (2) “IR” meant “incident report,” which “document[s] events that have occurred that 

have violated rules or committed a crime against the gang and it’s documenting exactly 

what transpired.” 

ii. Background on Delano Norte

Geherty testified that Delano Norte is a street gang that “falls within the Norte[ñ]o 

structure” and claims “Delano as a whole” as its territory. The gang’s primary activities 

include homicides, robberies, illegal weapons possessions, narcotics sales, and 

automobile theft. Common gang symbols include the letters “DN” for “Delano Norte,” 
15.

“D” for “Delano,” “KC” for “Kern County,” and “NKC” for “North Kern County” and 

the number 14, which can be expressed in different Arabic, Roman, or Mayan numerals. 

Delano Norte is composed of various subsets, including 21st Street and VDL. Per 

the 14 Bonds, subsets cooperate with one another. 

iii. Opinion on gang affiliation

1. Perpetrators of the predicate gang offenses

Geherty opined that Hernandez was an active member of Delano Norte on 

April 15, 2015, based on Hernandez’s plea of nolo contendere to carrying a loaded 

firearm in public as an active participant in a criminal street gang. 

Geherty opined that Orozco was an active member of Delano Norte on 

November 21, 2016, based on (1) Geherty’s earlier investigations involving Orozco; 

(2) Orozco’s gang-related tattoos; and (3) Orozco’s plea of nolo contendere to unlawful 

possession of a firearm—one of Delano Norte’s primary activities—as well as active 

participation in a criminal street gang. 

Geherty opined that Rosales was an active member of Delano Norte on 

November 21, 2016, based on (1) conversations with Rosales; and (2) Rosales’s plea of 

nolo contendere to active participation in a criminal street gang. 

Geherty opined that Omar was an active member of Delano Norte on August 27, 

2017, based on (1) prior contacts with Omar; (2) Omar’s gang-related tattoos; and 

(3) Omar’s plea of nolo contendere to unlawful possession of a firearm, one of Delano 

Norte’s primary activities. Geherty pointed out that Omar made a “21” hand sign in a 

photograph uploaded to Facebook. 

Geherty opined that Burciaga was an active member of Delano Norte on 

February 20, 2018, based on (1) prior contacts with Burciaga; (2) the red bandana found 

in the car that Burciaga occupied on the aforementioned date; (3) Burciaga’s plea of nolo 

contendere to active participation in a criminal street gang; and (4) Burciaga’s signature 

on the Norteño kite detailing the May 4, 2018 incident that led to Rafael’s arrest. 
16.

Geherty opined that Rafael was an active member of Delano Norte on May 4, 

2018, based on (1) Rafael’s red shirt on the aforementioned date; (2) Rafael’s conviction 

for possession of a stolen vehicle, one of Delano Norte’s primary activities; (3) Antonio’s 

testimony regarding Rafael’s gang membership; (4) Rafael’s moniker “Rafa”; and 

(5) Rafael’s identification in the Norteño kite signed by Burciaga. 

Geherty opined that Montemayor was an active member of Delano Norte on 

July 22, 2018, based on (1) prior contacts with Montemayor; (2) Officer Santaella’s 

testimony that Montemayor was in the company of other Norteños; and 

(3) Montemayor’s plea of nolo contendere to unlawful possession of a firearm, one of 

Delano Norte’s primary activities. 

2. Christopher and codefendants

Geherty opined that Alejandro was an active member of Delano Norte on 

September 10, 2018. Alejandro had numerous gang-related tattoos, including 

(1) “1-661”—a local area code consisting of numbers that add up to 14—on his stomach; 

(2) “1” on the right bicep and “4” on the left bicep; (3) one dot on his right elbow; 

(4) “21st Street” and four dots on his left arm; (5) four dots on his left hand; (6) “KC” on 

the right shin; and (7) a “brand new,” “still scabbing” Mayan “14” on the left ring finger. 

In prior encounters with law enforcement, Alejandro wore red apparel and was in the 

company of other Norteños. At the time of the September 10, 2018 shooting, he and 

other gang members worked together. At the time of his arrest, Alejandro was dressed in 

red clothing. 

Geherty opined that Gerardo was an active member of Delano Norte on 

September 10, 2018. Gerardo had numerous gang-related tattoos, including (1) “21st” 

and “KC” on his chest; (2) “Delano” on his stomach; (3) “D” on his right shoulder; 

(4) one dot on his right hand and four dots on his left hand; (5) “Peanut”—Alejandro’s 

moniker—on his left hand; (6) “NKC” and “always active” on his fingers; (7) “LB 

Boy”—Guzman’s moniker—on his right arm; (8) “1-661” on his right shin; (9) a Mayan 
17.

“14” on his left hand; and (10) “Norte[ñ]o” and a “huelga bird”10 on his back, both of 

which were unfinished. In prior encounters with law enforcement, Gerardo was in the 

company of other Norteños. Following the November 21, 2016 traffic stop, he pled nolo 

contendere to active participation in a criminal street gang and carrying a loaded firearm 

in public as a nonregistered owner. At the time of the September 10, 2018 shooting, 

Gerardo and other gang members worked together. At the time of his arrest, he was 

dressed in red clothing. Geherty pointed out that Gerardo made various hand signs, 

including “N,” “4,” and “21,” in photographs uploaded to Facebook. 

Geherty opined that Christopher actively participated in the Delano Norte gang on 

September 10, 2018. A few months before the shooting, Christopher was seen in the 

company of gang members. At the time of the shooting, he cooperated with gang 

members. Although Antonio testified that Christopher was not a gang member at the 

time of the shooting, Geherty remarked that a gang associate “who hasn’t officially been 

put into the gang” can still “assist with committing crimes with full-fledged members,”

which would help the associate become a member. He added:

“[Gang members are] not going to bring somebody who is not associated or 

trying to put themselves on with the gang because it opens them up to 

snitching. Somebody who is not about that life has more chances to snitch, 

as well as assist in the operation of the incident, that being the shooting.” 

In a photograph uploaded to Facebook on September 12, 2018, Christopher and his 

brother Jose made “21st” hand signs. Geherty pointed out that Christopher made a “4” 

hand sign in a different Facebook photograph. At the time of his arrest, Christopher was 

in the company of a gang member. While Christopher did not have any tattoos prior to 

the shooting, he apparently “earned the right to put [gang-related tattoos] on his body” 

thereafter. At the time of trial, his tattoos included (1) the emblem of the San Francisco 

10 Geherty testified that Norteños “often align themselves with the huelga bird” 

because Sureños refer to “subjects who did not align with them as farmers” and the bird 

is associated with the United Farm Workers labor union. 
18.

49ers on his chest; (2) “21st” on his biceps; (3) a clock with the hands “broken at the 1 

and the 4” on his right forearm; and (4) “Dela” and the Mayan “14” on his right shin. 

Geherty, who was familiar with Christopher’s family, explained the significance of his 

gang moniker:

“Christopher Velez’s brother, Jose Velez, is Little Sisco. And his 

father . . . goes by Sisco. [¶] . . . [¶]

“. . . It signifies kind of a structure. So you have the high or big 

homie, who has the moniker, then the little homie has a ‘little’ in front of 

the moniker. They take on the big homie name as a sign of respect as well 

as like a third would be a ‘baby,’ Baby Sisco.” 

3. Other persons of interest

Geherty opined that Jose was an active member of Delano Norte on September 10, 

2018, based on (1) Jose’s gang-related tattoos; (2) Antonio’s testimony that Jose was 21st 

Street’s channel; and (3) the September 2018 phone conversation between Jose and 

Antonio, in which the latter accused the former of being a snitch. As mentioned, in a 

Facebook photograph, Jose and his brother Christopher made “21st” hand signs. 

Geherty opined that Guzman was an active member of Delano Norte on 

September 10, 2018, based on (1) Guzman’s gang-related tattoos; (2) Officer Santaella’s 

testimony that Guzman admitted being a Norteño; and (3) Guzman’s participation in the 

September 10, 2018 shooting. Geherty pointed out that Guzman wore gang-related 

apparel, including a San Francisco 49ers jacket and red clothing, in photographs uploaded 

to Facebook. 

iv. Opinion on whether Alejandro and codefendants committed the 

September 10, 2018 shooting for the benefit of, at the direction 

of, and/or in association with Delano Norte

The prosecutor asked Geherty the following hypothetical question:

“You have two active Delano Norte members and an associate 

driving around in a rural area outside of Delano in the middle of the 
19.

night/early in the morning; that vehicle is being followed by a separate 

vehicle with at least one other active Delano Norte member.

“The driver of the first car is told to turn down a dirt road, then told 

to stop so that two passengers can vomit. When this happens, one of those 

passengers shoots the driver, an active member, in the head causing 

significant injury. The gun that is used to shoot the driver jams.

“While the driver is trying to get away, the third active member in 

the second car arrives that was following the victim. That active member 

demanded the gun and tries to clear the jam and shoots at the victim. 

However, the gun is still jammed. The driver successfully flees on foot.

“Do you have an opinion as to whether the crimes in this 

hypothetical were committed for the benefit of, at the direction of, or in 

association with the Delano Norte criminal street gang?” 

Geherty opined that the crimes “were committed for the benefit of and in association with 

Delano Norte criminal street gang.” He explained:

“This is a classic-case hypothetical that is eliminating somebody 

who is not conforming to the rules of the Delano Norte criminal street gang. 

That active member has violated one of their rules and is now dealing with 

the consequences of it.

“This benefits the Delano Norte criminal street gang entirely because 

it instills fear within their own ranking structure, that if you violate one of 

our rules, you are killed. And, therefore, they get compliance from all other 

active Delano Norte criminal street gang members.

“It furthers their movement. If they have unity, they have a more 

solid movement. That way it benefits the Delano Norte criminal street 

gang. [¶] . . . [¶]

“. . . It doesn’t just benefit the criminal street gang in and of itself 

but it also benefits all who were involved in it because they are now earning 

that respect and status within the gang to move up the ranks.

“They’re showing that they’re able to commit heinous offenses for 

the benefit of that gang to further their movement, so that individual gang 

members or associates, for that matter, are now making their way through 

the ranks. The higher they rise, the more power they get, the more 

influence they get.
20.

“. . . [Y]ou have two active members acting in, as well as an 

associate, acting all together to conduct this shooting which greatly benefits 

the chances of success in the incident in the shooting.

“And so you have two active members who are all associating, as 

well as an associate, all associating with each other to complete this 

shooting and to complete it successfully. [¶] . . . [¶]

“. . . Even though . . . [some] members or associates didn’t fire the 

firearm, in the hypothetical it says that they were actively assisting in the 

commission of the crime by asking to pull over and puke and that is setting 

up the shooting.

“So they’re all acting in association inside that crime to get the 

completion of the crime done successfully, which ultimately benefits every 

single one of them. Just being there and helping out with the crime benefits 

that associate as well.” 

DISCUSSION

I. The trial court did not abuse its discretion when it denied 

Christopher’s bifurcation motion.*

a. Background

Christopher’s attorney filed a pretrial motion to bifurcate “[t]he gang sentencing 

enhancements and substantive gang counts (counts 2 and 3)” arguing that “[i]n a unitary 

trial, the jury will be presented with highly inflammatory evidence of ‘predicate offenses’ 

allegedly committed by members of Delano Norteño gangs, which are completely 

independent of any action by [Christopher].” At the motion hearing, the prosecutor 

countered:

“Your Honor, the People would object to any bifurcation. This case 

is a true gang case where the motive for the shooting is gang related, the 

relationship between the victim and the defendants is gang related, and that 

the entire case has evolved [sic] . . . the relationship between the gang and 

the defendants and the victim and there would be no way to really bifurcate 

those issues.” 

The trial court denied the motion. 

* See footnote, ante, page 1.
21.

Prior to closing arguments, the court instructed the jury in part:

“[CALCRIM No. 1403 (Limited Purpose of Evidence of Gang 

Activity):] You may consider evidence of gang activity only for the limited 

purpose of deciding whether the defendant acted with the intent, purpose, 

and knowledge that are required to prove the gang-related crimes and 

enhancements charged or that the defendant had a motive to commit the 

crimes charged. You may also consider the evidence when you evaluate 

the credibility or believability of a witness and when you consider the facts 

and information relied upon by an expert witness in reaching his or her 

opinion.

“You may not consider this evidence for any other purpose. You 

may not conclude from this evidence that the defendant is a person of bad 

character or that he has a disposition to commit crime.” 

b. Analysis

“It shall be the duty of the judge to control all proceedings during the trial, and to 

limit the introduction of evidence and the argument of counsel to relevant and material 

matters, with a view to the expeditious and effective ascertainment of the truth regarding 

the matters involved.” (§ 1044.) Pursuant to section 1044, a trial court possesses 

“[g]eneral authority to bifurcate trial issues” (People v. Calderon (1994) 9 Cal.4th 69, 

74), including gang enhancement allegations (People v. Hernandez (2004) 33 Cal.4th 

1040, 1049 (Hernandez)).

“[T]he trial court’s discretion to deny bifurcation of a charged gang enhancement 

is . . . broader than its discretion to admit gang evidence when the gang enhancement is 

not charged.” (Hernandez, supra, 33 Cal.4th at p. 1050.) “In the context of severing 

charged offenses, . . . ‘additional factors favor joinder. Trial of the counts together 

ordinarily avoids the increased expenditure of funds and judicial resources which may 

result if the charges were to be tried in two or more separate trials.’ [Citation.] 

Accordingly, when the evidence sought to be severed relates to a charged offense, the 

‘burden is on the party seeking severance to clearly establish that there is a substantial 

danger of prejudice requiring that the charges be separately tried. [Citations.] When the 
22.

offenses are joined for trial the defendant’s guilt of all the offenses is at issue and the 

problem of confusing the jury with collateral matters does not arise. The other-crimes 

evidence does not relate to [an] offense for which the defendant may have escaped 

punishment. That the evidence would otherwise be inadmissible may be considered as a 

factor suggesting possible prejudice, but countervailing considerations that are not 

present when evidence of uncharged offenses is offered must be weighed in ruling on a 

severance motion. The burden is on the defendant therefore to persuade the court that 

these countervailing considerations are outweighed by a substantial danger of undue 

prejudice.’ [Citation.]” (Ibid.; see ibid. [“The analogy between bifurcation and 

severance is not perfect. . . . But much of what we have said about severance is relevant 

. . . .”].) Hence, “[e]ven if some of the evidence offered to prove the gang enhancement 

would be inadmissible at a trial of the substantive crime itself . . . a court may still deny 

bifurcation.” (Ibid.)

“We review the trial court’s denial of the motion to bifurcate for abuse of 

discretion, based on the record as it stood at the time of the ruling.” (People v. Franklin

(2016) 248 Cal.App.4th 938, 952 (Franklin).) “Our review is guided by the familiar 

principle that ‘[a] court abuses its discretion when its rulings fall “outside the bounds of 

reason.” ’ [Citations.]” (Ibid.; see People v. Turner (2020) 10 Cal.5th 786, 807 [“ ‘ “If 

right upon any theory of the law applicable to the case, [a ruling or decision] must be 

sustained regardless of the considerations which may have moved the trial court to its 

conclusion.” ’ ”].) “If the trial court’s ruling was correct on the record before it, the 

ruling is subject to reversal only upon a showing that ‘ “joinder actually resulted in ‘gross 

unfairness’ amounting to a denial of due process.” ’ [Citation.]” (Franklin, supra, at 

pp. 952-953.)

The California Supreme Court has held that—in cases not involving the gang 

enhancement—“evidence of gang membership is potentially prejudicial and should not 

be admitted if its probative value is minimal.” (Hernandez, supra, 33 Cal.4th at p. 1049.) 
23.

However, “evidence of gang membership is often relevant to, and admissible regarding, 

the charged offense. Evidence of the defendant’s gang affiliation—including evidence of 

the gang’s territory, membership, signs, symbols, beliefs and practices, criminal 

enterprises, rivalries, and the like—can help prove identity, motive, modus operandi, 

specific intent, means of applying force or fear, or other issues pertinent to guilt of the 

charged crime.” (Ibid.; accord, Franklin, supra, 248 Cal.App.4th at p. 953; People v. 

Funes (1994) 23 Cal.App.4th 1506, 1518 (Funes); see People v. Montes (2014) 58 

Cal.4th 809, 859 [“While gang membership evidence does create a risk the jury will 

impermissibly infer a defendant has a criminal disposition and is therefore guilty of the 

offense charged [citation], ‘nothing bars evidence of gang affiliation that is directly 

relevant to a material issue.’ ”].) “To prove the existence of a criminal street gang itself, 

section 186.22, subdivision (f), requires proof of ‘a pattern of criminal gang activity.’ 

‘The offenses comprising a pattern of criminal gang activity are referred to as predicate 

offenses.’ [Citation.]” (People v. Rodriguez (2022) 75 Cal.App.5th 816, 822.) “[A] 

‘pattern’ is established by the commission of two or more enumerated offenses 

committed on separate occasions or by two or more persons.” (People v. Williams (2009) 

170 Cal.App.4th 587, 609; see § 186.22, subd. (e); see also People v. Rivas (2013) 214 

Cal.App.4th 1410, 1436 [“The statute speaks of a ‘pattern’ and permits the prosecution to 

introduce evidence of ‘two or more’ offenses.”].)

Here, the gang evidence was probative to show Christopher’s specific intent and 

motivation for facilitating the shooting (Franklin, supra, 248 Cal.App.4th at p. 953;

Funes, supra, 23 Cal.App.4th at p. 1518) and therefore “cross-admissible to prove the 

commission of the attempted murder” (People v. Pettie (2017) 16 Cal.App.5th 23, 45). 

While bifurcation may be warranted where the predicate offenses are “unduly 

prejudicial” (Hernandez, supra, 33 Cal.4th at p. 1049), the details of those offered in the 

instant case—which included unlawful firearm possessions, automobile thefts, active 

gang participation, and police evasion—were no more inflammatory than the 
24.

circumstances surrounding the charged crimes. (See People v. Doolin (2009) 45 Cal.4th 

390, 439 [“ ‘[E]vidence should be excluded as unduly prejudicial when it is of such 

nature as to inflame the emotions of the jury, motivating them to use the information, not 

to logically evaluate the point upon which it is relevant, but to reward or punish one side 

because of the jurors’ emotional reaction. In such a circumstance, the evidence is unduly 

prejudicial because of the substantial likelihood the jury will use it for an illegitimate 

purpose.’ ”].) Moreover, the court instructed the jury that it (1) “may consider evidence 

of gang activity only for the limited purpose of deciding whether the defendant acted with 

the intent, purpose, and knowledge that are required to prove the gang-related crimes and 

enhancements charged” or “had a motive to commit the crimes charged”; and (2) “may 

not consider this evidence for any other purpose” such as “conclud[ing] from this 

evidence that the defendant is a person of bad character or that he has a disposition to 

commit crime.” (Accord, Pettie, supra, at pp. 41-42.) “We presume that the jury 

followed these limiting instructions, and there is nothing in this record to rebut that 

presumption.” (Franklin, supra, at p. 953; see Pettie, supra, at p. 45.) Finding no gross 

unfairness amounting to a denial of due process (Franklin, supra, at pp. 952-953), we 

conclude the trial court did not abuse its discretion when it denied the bifurcation motion.

II. Assuming arguendo Deputy Geherty expressed an improper opinion, 

the alleged error was not prejudicial.

*

a. Background

The following exchange occurred on direct examination of Geherty:

“Q. . . . [D]oes the fact of what you heard about Mr. Gerardo 

Alvarado’s involvement within the current crime, so the shooting of 

Antonio . . . , was there anything significant about that involving his 

membership?

“A. Can you ask it again?

* See footnote, ante, page 1.
25.

“Q. Is there anything from what you’ve heard about Mr. Gerardo 

Alvarado’s involvement in the shooting of Antonio . . . that is significant to 

you as a gang investigator? 

“A. Absolutely.

“Q. What?

“A. So he, from what I’ve heard, Mr. Gerardo Alvarado arrives 

and assists Alejandro Alvarado and Chris Velez. They’re acting in 

association with each other to complete the task of shooting [Antonio]. 

[¶] . . . [¶]

“Q. Now going to the facts of the case that we’re at. Is Mr. 

Alejandro Alvarado, his interaction or his involvement in the shooting of 

Antonio . . . , is that significant to you for the same reasons you described 

for Gerardo Alvarado?

“[ALEJANDRO’S ATTORNEY]: I would object. Conclusion as to 

shooting.

“THE COURT: As to whether the victim was shot?

“[ALEJANDRO’S ATTORNEY]: Isn’t that what we’re here – well, 

the shooting, isn’t that what we’re here to decide, Your Honor?

“THE COURT: I’m pretty sure he was shot.

“[ALEJANDRO’S ATTORNEY]: But it’s not that. It’s the intent.

“THE COURT: As I heard the question, just looking back on it, 

involvement in the shooting of Antonio . . . , whatever that involvement 

may be.

“[ALEJANDRO’S ATTORNEY]: I think it characterizes it as an 

intentional act.

“THE COURT: Okay. He may give his opinion as to what he 

believes the evidence shows. There’s a specific jury instruction that I’ll 

read to the jury that I read in every case where there’s expert testimony.

“Part of that jury instruction has to do with whether you believe or 

whether you find that the information upon which the expert relied was 

proven beyond a reasonable doubt. If you don’t find it is, then you treat the 

opinion accordingly.
26.

“If you do find it is, then it’s a different option. I’ll read the actual 

instruction to you at the end of the case. That way it’s easier for [you to] 

put it in context with the law and whatever the testimony is that you’ve 

heard and will continue to hear.

“The objection is overruled.

“You may continue.

“BY [THE PROSECUTOR]:

“Q. Is Alejandro Alvarado’s involvement that we heard about –

based on the evidence that came in through this case, is that significant to 

you in your determination of whether Mr. Alejandro Alvarado was an 

active member of Delano Norte on September 10, 2018?

“A. Absolutely.

“Q. Is that for the same reasons you described for Gerardo 

Alvarado?

“A. That’s correct. [¶] . . . [¶]

“Q. . . . [Y]ou heard testimony from Antonio . . . that, at the time 

of the shooting, [Christopher] Velez did not have any Norte[ñ]o-related 

tattoos.

“Do you remember that?

“A. I do remember that.

“Q. Now, two weeks ago, he has quite a few that you’re referring 

to, in your opinion, are Delano Norte criminal street gang tattoos; correct?

“A. That’s correct.

“Q. Is that significant to you?

“A. It is.

“Q. Why?

“A. It signifies he’s earned the right to put those tattoos on his 

body between the shooting and today. So he has earned those tattoos, at 

some point, from this incident to today’s date.
27.

“[ALEJANDRO’S ATTORNEY]: I would object as to ‘shooting.’ 

Calls for a conclusion.

“THE COURT: I understand. There was a gun. Something came 

out of the gun and hit somebody. 

“BY [THE PROSECUTOR]:

“Q. Now, going to significant reports, there is the report regarding 

the incident that we’re here today; correct?

“A. Yes.

“Q. You stated already in terms of Alejandro Alvarado and 

Gerardo, the significance to you, as a gang investigator, does that also 

apply to [Christopher] Velez?

“A. It does. [¶] . . . [¶]

“Q. When you look at that photo, beginning your testimony of 

Christopher Velez with his brother, both of them throwing up 21st Street 

signs – or hand signs two days after the shooting.

“Is that significant to you?

“A. Yes.

“Q. Why?

“A. He’s affiliating himself and he’s displaying he backs up 21st 

Street, a subset of Delano Norte criminal street gang two days after the 

shooting occurred.

“[ALEJANDRO’S ATTORNEY]: Same objection.

“THE COURT: Understood. Overruled. [¶] . . . [¶]

“Q. Then we heard testimony, in this case, regarding . . . 

Guzman’s car being the one that dropped off Gerardo Alvarado.

“Do you remember that?

“A. I do remember that.

“Q. That car was the same car that Antonio . . . saw following 

them when they first pulled over the first time, too?
28.

“A. That’s correct.

“Q. Is that significant to you?

“A. Yes.

“Q. Why?

“A. It’s significant because . . . Guzman is an active criminal 

street gang member for Delano Norte and he – his vehicle is seen at the 

scene of an attempted homicide or a shooting that involved three other 

associates and members of Delano Norte.

“[ALEJANDRO’S ATTORNEY]: Objection. Conclusion as to 

attempted homicide.

“THE COURT: I understand this is the officer’s opinion. There’s a 

specific jury instruction about this issue.” 

Prior to closing arguments, the court instructed the jury in part:

“[CALCRIM No. 251 (Union of Act and Intent: Specific Intent or 

Mental State):] The acts and other allegations charged in this case require 

proof of the union or joint operation of act and wrongful intent.

“For you to find a person guilty of the crimes in this case of 

attempted murder as charged in Count 1, that person must not only 

intentionally commit the prohibited act, but must do so with a specific 

intent. The act and the specific intent required are explained in the 

instruction for that crime.

“For you to find the allegation of premeditation true as charged in an 

enhancement to Count 1, that person must not only intentionally commit 

the prohibited act, but must do so with a specific intent. The act and the 

specific intent required are explained in the instruction for each of those 

enhancements. [¶] . . . [¶] 

“[CALCRIM No. 332 (Expert Witness Testimony):] Witnesses 

were allowed to testify as experts and to give opinions. You must consider 

the opinions, but you’re not required to accept them as true or correct. The 

meaning and importance of any opinion are for you to decide. In 

evaluating the believability of an expert witness, follow the instructions 

about the believability of witnesses generally. In addition, consider the 

expert’s knowledge, skill, experience, training, and education, the reasons 

the expert gave for any opinion, and the facts or information upon which 
29.

the expert relied in reaching that opinion. You must decide whether 

information on which the expert relied was true and accurate.

“You may disregard any opinion that you find unbelievable, 

unreasonable, or unsupported by the evidence.

“An expert witness may be asked a hypothetical question. A 

hypothetical question asks the witness to assume certain facts are true and 

to give an opinion based on the assumed facts. It is up to you to decide 

whether an assumed fact has been proved. If you conclude that an assumed 

fact is not true, consider the effect of the expert’s reliance on that fact in 

evaluating the expert’s opinion. [¶] . . . [¶] 

“[CALCRIM No. 600 (Attempted Murder):] Each of the defendants 

is charged in Count 1 with attempted murder.

“To prove that the defendant is guilty of attempted murder, the 

People must prove that:

“One, the defendant took at least one direct, but ineffective step 

toward killing another person;

“And, two, the defendant intended to kill that person.

“A direct step requires more than merely planning or preparing to 

commit murder or obtaining or arranging for something needed to commit 

murder.

“A direct step is one that goes beyond planning or preparation and 

shows that a person is putting his plan into action.

“A direct step indicates a definite and unambiguous intent to kill. It 

is a direct movement toward the commission of the crime after preparations 

are made. It is an immediate step that puts the plan in motion so that the 

plan would have been completed if some circumstance outside the plan did 

not interrupt the attempt.

“A person who attempts to commit murder is guilty of attempted 

murder even if, after taking the direct step towards killing, he abandons 

further efforts to complete the crime or his attempt fails or is interrupted by 

someone or something beyond his control. On the other hand, if a person 

freely and voluntarily abandons his plans before taking a direct step toward 

committing the murder, then that person is not guilty of attempted murder.
30.

“[CALCRIM No. 601 (Attempted Murder: Deliberation and 

Premeditation):] If you find the defendant guilty of attempted murder 

under Count 1, you must then decide whether the People have proved the 

additional allegation that the attempted murder was done willfully and with 

deliberation and premeditation.

“The defendant acted willfully if he intended to kill when he acted.

“The defendant deliberated if he carefully weighed the 

considerations for or against this choice and, knowing the consequences, 

decided to kill.

“The defendant acted with premeditation if he decided to kill before 

completing the acts of attempted murder.

“The length of time the person spends considering whether to kill 

does not alone determine whether the attempted killing is deliberate and 

premeditated. The amount of time required for deliberation and 

premeditation may vary from person to person and according to the 

circumstances. A decision to kill made rashly, impulsively, or without 

careful consideration of the choice and its consequences is not deliberate 

and premeditated. On the other hand, a cold, calculated decision to kill can 

be reached quickly. The test is the extent of the reflection, not the length of 

time.

“The People have the burden of proving this allegation beyond a 

reasonable doubt. If the People have not met this burden, you must find 

this allegation has not been proved. [¶] . . . [¶] 

“[CALCRIM No. 3404 (Accident):] The defendant is not guilty of 

any crime if he acted without the intent required for that crime, but acted 

instead accidentally. You may not find the defendant guilty of any crime 

unless you are convinced beyond a reasonable doubt that he acted with the 

required intent.” 

b. Analysis

“If a witness is testifying as an expert, his testimony in the form of an opinion is 

limited to such an opinion as is . . . [¶] . . . [r]elated to a subject that is sufficiently 

beyond common experience that the opinion of an expert would assist the trier of fact; 

and [¶] . . . [b]ased on matter (including his special knowledge, skill, experience, training, 

and education) perceived by or personally known to the witness or made known to him at 
31.

or before the hearing, whether or not admissible, that is of a type that reasonably may be 

relied upon by an expert in forming an opinion upon the subject to which his testimony 

relates, unless an expert is precluded by law from using such matter as a basis for his 

opinion.” (Evid. Code, § 801.)

“A witness may not express an opinion on a defendant’s guilt. [Citations.] The 

reason for this rule is not because guilt is the ultimate issue of fact for the jury, as opinion 

testimony often goes to the ultimate issue. [Citations.] ‘Rather, opinions on guilt or 

innocence are inadmissible because they are of no assistance to the trier of fact. To put it 

another way, the trier of fact is as competent as the witness to weigh the evidence and 

draw a conclusion on the issue of guilt.’ [Citation.]” (People v. Coffman and Marlow

(2004) 34 Cal.4th 1, 77.) “The erroneous admission of expert testimony only warrants 

reversal if ‘it is reasonably probable that a result more favorable to the appealing party 

would have been reached in the absence of the error.’ ” (People v. Prieto (2003) 30 

Cal.4th 226, 247, quoting People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)

On appeal, Christopher contends that “the trial court errored [sic] by allowing 

[Geherty] to testify that each of the defendants harbored the specific intent that [Antonio] 

be shot, or even killed.” Assuming arguendo that Geherty expressed an improper 

opinion, we find no reasonable probability that a result more favorable to Christopher

would have been reached.

“Attempted murder requires the intent to kill and a direct but ineffectual act 

toward accomplishing the intended killing.” (People v. Juarez (2016) 62 Cal.4th 1164, 

1170.) Attempted murder is aggravated where it is willful, deliberate, and premeditated. 

(See § 189, subd. (a); People v. Villegas (2001) 92 Cal.App.4th 1217, 1223.) “ ‘[T]he 

test on appeal is whether a rational trier of fact could have found premeditation and 

deliberation beyond a reasonable doubt based upon the evidence presented.’ The three 

categories of evidence for a reviewing court to consider with respect to premeditation and 

deliberation are: (1) prior planning activity; (2) motive; and (3) the manner of killing. 
32.

‘The process of premeditation and deliberation does not require any extended period of 

time. “The true test is not the duration of time as much as it is the extent of the reflection. 

Thoughts may follow each other with great rapidity and cold, calculated judgment may 

be arrived at quickly . . . .” [Citations.]’ ” (People v. Villegas, supra, at pp. 1223-1224, 

fns. omitted.) “Direct evidence of a deliberate and premeditated purpose to kill is not 

required; the elements of deliberation and premeditation may be inferred from proof of 

such facts and circumstances as will furnish a reasonable foundation for such an 

inference.” (People v. Miller (1969) 71 Cal.2d 459, 477.)

“ ‘[A] person who aids and abets a crime is guilty of that crime even if someone 

else committed some or all of the criminal acts.’ [Citation.]” (People v. Maciel (2013) 

57 Cal.4th 482, 518.) “ ‘[A] person aids and abets the commission of a crime when he or 

she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the 

intent or purpose of committing, encouraging, or facilitating the commission of the 

offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of 

the crime.’ [Citation.]” (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 295-296.) 

“Thus, proof of aider and abettor liability requires proof in three distinct areas: (a) the 

direct perpetrator’s actus reus—a crime committed by the direct perpetrator, (b) the aider 

and abettor’s mens rea—knowledge of the direct perpetrator’s unlawful intent and an 

intent to assist in achieving those unlawful ends, and (c) the aider and abettor’s actus 

reus—conduct by the aider and abettor that in fact assists the achievement of the crime.” 

(People v. Perez (2005) 35 Cal.4th 1219, 1225.) “ ‘[T]o be guilty of attempted murder as 

an aider and abettor, a person must give aid or encouragement with knowledge of the 

direct perpetrator’s intent to kill and with the purpose of facilitating the direct 

perpetrator’s accomplishment of the intended killing—which means that the person guilty 

of attempted murder as an aider and abettor must intend to kill. [Citation.]’ [Citation.]” 

(People v. Pettie, supra, 16 Cal.App.5th at p. 52.) “Aiding and abetting may be shown 

by circumstantial evidence. It is well settled that the presence at the scene of the crime 
33.

and failure to prevent it, companionship and conduct before and after the offense . . . are 

relevant to determining whether a defendant aided and abetted in the commission of the 

crime.” (People v. Glukhoy (2022) 77 Cal.App.5th 576, 599 (Glukhoy).) “Motive is 

another circumstance to be considered in determining aiding and abetting liability.” 

(Ibid.)

The record shows that on the night of September 9, 2018, Antonio (a 21st Street

member) attended a party along with Alejandro (a 21st Street member) and Christopher 

(a 21st Street associate). At some point, Jose (21st Street’s channel and Christopher’s 

brother) and Antonio’s then-best friend Guzman (a Delano Norte member) arrived and 

picked up Alejandro and Christopher. In the wee hours of September 10, 2018, 

Alejandro and Christopher dropped by Antonio’s home and convinced him to give them a 

ride to Richgrove. Near the beginning of the trip, Alejandro and Christopher had Antonio 

pull over and the pair left the Accord and pretended to vomit. At the same time, 

Guzman’s sedan passed by. When the trip resumed, Antonio followed Christopher’s

directions and drove onto a dirt road surrounded by grapevines. (See People v. Lopez

(2013) 56 Cal.4th 1028, 1070 [the defendant orchestrated the victim’s presence in the 

alley where she was murdered], overruled in part by People v. Rangel (2016) 62 Cal.4th 

1192, 1216.) In this secluded area, Alejandro and Christopher once again had Antonio 

pull over, left the Accord, and pretended to vomit. However, while Antonio was 

preoccupied and sitting in the driver’s seat, he was shot from behind by Alejandro, who 

fired a .22-caliber semiautomatic “hood gun” from a short distance. (See People v. 

Manriquez (2005) 37 Cal.4th 547, 578 [gunshots fired at close range]; People v. Hawkins

(1995) 10 Cal.4th 920, 956–957 [victim shot “execution-style” in the back of the head 

and neck], overruled on other grounds by People v. Blakeley (2000) 23 Cal.4th 82, 89;

People v. Pensinger (1991) 52 Cal.3d 1210, 1237 [total vulnerability of the victim and 

remote area].) Both Alejandro and Christopher ignored Antonio’s plea to go to the 

hospital. (See People v. Koontz (2002) 27 Cal.4th 1041, 1082 [impeding victim from 
34.

getting medical help]). After Alejandro’s second attempt to fire the gun failed due to a 

mechanical malfunction, Guzman’s sedan—with Gerardo inside—approached with its 

lights off. (See People v. Perez (1992) 2 Cal.4th 1117, 1126 [evidence of planning 

shown by surreptitious entry].) Gerardo exited the vehicle, quarreled with Alejandro, and 

eventually took the hood gun. Spotting Antonio, who was trying to retrieve his cell 

phone from the Accord after emerging from the grapevines, Gerardo tried to fire, but the 

gun jammed once more. (See People v. Juarez, supra, 62 Cal.4th at p. 1170.) At no 

point did Christopher intervene to stop either Alejandro or Gerardo from shooting the 

gun. (See Glukhoy, supra, 77 Cal.App.5th at p. 599.) Antonio fled on foot to Richgrove 

and contacted the citizen who phoned 911. Meanwhile, Antonio’s vehicle was 

transported to a distant rural location and burned. The location data of Alejandro’s cell 

phone provided a timeline of these events.

The record also shows that on May 4, 2018, Officer Rivera arrested Rafael (a 

Delano Norte member), who was in a stolen vehicle next to Antonio’s residence. After 

speaking with Rivera, Antonio—the then-channel of 21st Street—provided surveillance 

camera footage. Rafael was subsequently convicted of possession of a stolen vehicle. In 

or around June 2018, Antonio was removed from his position of authority, which was 

later taken up by Jose. On June 20, 2018, a probation search of the residence of Gutierrez 

Rodriguez revealed a Norteño “incident report” kite signed by Burciaga (a VDL 

member), which detailed what had transpired on May 4, 2018. A day or two after the 

September 10, 2018 shooting, Jose contacted Antonio and accused him of being an 

informant. According to the testimonies of Antonio and Geherty, cooperation with law 

enforcement is prohibited by 21st Street and punishable by death. (See Franklin, supra,

248 Cal.App.4th at p. 953 [“[G]ang evidence is ‘relevant and admissible when the very 

reason for the underlying crime, that is the motive, is gang related.’ ”]; Funes, supra, 23 

Cal.App.4th at p. 1518 [“Cases have repeatedly held that it is proper to introduce 
35.

evidence of gang affiliation and activity where such evidence is relevant to an issue of 

motive or intent.”].)

Absent the disputed portions of Geherty’s testimony, it is still likely the jury 

would have convicted Christopher of attempted premeditated murder.11

III. Substantial evidence supported Christopher’s conviction for 

misdemeanor unlawful driving or taking of a vehicle without the 

owner’s consent on count 5.

*

a. Standard of review

“To determine the sufficiency of the evidence to support a conviction, we review 

the entire record in the light most favorable to the prosecution to determine whether it 

contains [substantial] evidence that is reasonable, credible and of solid value, from which 

a rational trier of fact could find that the elements of the crime were established beyond a 

reasonable doubt.” (People v. Tripp (2007) 151 Cal.App.4th 951, 955.) We “presume in 

support of the judgment the existence of every fact the trier could reasonably deduce 

from the evidence.” (People v. Redmond (1969) 71 Cal.2d 745, 755.) “We need not be 

convinced of the defendant’s guilt beyond a reasonable doubt; we merely ask whether 

‘ “any rational trier of fact could have found the essential elements of the crime beyond a 

reasonable doubt.” [Citation.]’ ” (People v. Tripp, supra, at p. 955, italics omitted.) 

“This standard of review . . . applies to circumstantial evidence. [Citation.] If the 

circumstances, plus all the logical inferences the jury might have drawn from them, 

reasonably justify the jury’s findings, our opinion that the circumstances might also 

reasonably be reconciled with a contrary finding does not warrant a reversal of the 

judgment.” (Ibid.)

11 Having deemed the purported error harmless, we need not address either the 

Attorney General’s forfeiture claim or Christopher’s ineffective-assistance-of-counsel 

claim, which is premised on a finding of forfeiture. 

* See footnote, ante, page 1.
36.

“Before the judgment of the trial court can be set aside for insufficiency of the 

evidence to support the verdict of the jury, it must clearly appear that upon no hypothesis 

what[so]ever is there sufficient substantial evidence to support it.” (People v. Redmond, 

supra, 71 Cal.2d at p. 755.) “ ‘Conflicts and even testimony which is subject to 

justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive 

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

falsity of the facts upon which a determination depends. [Citation.] We resolve neither 

credibility issues nor evidentiary conflicts; we look for substantial evidence.’ ” (People 

v. Lee (2011) 51 Cal.4th 620, 632.)

b. Analysis

In general, “[t]o establish a defendant’s guilt of violating Vehicle Code section 

10851, subdivision (a), the prosecution is required to prove that the defendant drove or 

took a vehicle belonging to another person, without the owner’s consent, and that the 

defendant had the specific intent to permanently or temporarily deprive the owner of title 

or possession.” (People v. O’Dell (2007) 153 Cal.App.4th 1569, 1574, fn. omitted.) One 

“who is . . . an accomplice in the driving or unauthorized taking or stealing” is also 

criminally liable. (Veh. Code, § 10851, subd. (a); accord, People v. Garza (2005) 35 

Cal.4th 866, 875-876.)

As previously stated, “ ‘[A] person who aids and abets a crime is guilty of that 

crime even if someone else committed some or all of the criminal acts.’ [Citation.]” 

(People v. Maciel, supra, 57 Cal.4th at p. 518.) “ ‘[A] person aids and abets the 

commission of a crime when he or she, acting with (1) knowledge of the unlawful 

purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or 

facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages 

or instigates, the commission of the crime.’ [Citation.]” (People v. Gonzales and Soliz, 

supra, 52 Cal.4th at pp. 295-296.) “Thus, proof of aider and abettor liability requires 

proof in three distinct areas: (a) the direct perpetrator’s actus reus—a crime committed 
37.

by the direct perpetrator, (b) the aider and abettor’s mens rea—knowledge of the direct 

perpetrator’s unlawful intent and an intent to assist in achieving those unlawful ends, and 

(c) the aider and abettor’s actus reus—conduct by the aider and abettor that in fact assists 

the achievement of the crime.” (People v. Perez, supra, 35 Cal.4th at p. 1225.) “Aiding 

and abetting may be shown by circumstantial evidence. It is well settled that the presence 

at the scene of the crime and failure to prevent it, companionship and conduct before and 

after the offense . . . are relevant to determining whether a defendant aided and abetted in 

the commission of the crime.” (Glukhoy, supra, 77 Cal.App.5th at p. 599.) “Motive is 

another circumstance to be considered in determining aiding and abetting liability.” 

(Ibid.)

As noted, the record demonstrates that Christopher, Alejandro, and Gerardo 

carried out a scheme to bring Antonio to a secluded area near Richgrove under cover of 

darkness and kill him. However, the plan went awry and Antonio abandoned his Accord 

and fled on foot. (See ante, at pp. 33-34.) A few hours later, the Accord was found 

scorched north of Delano. At trial, Antonio testified that he did not give anyone—let 

alone Christopher, Alejandro, or Gerardo—permission to drive or take his vehicle. The 

severity of the damage inflicted on the Accord evinced an intent to permanently deprive 

Antonio of title or possession. Although it is unclear if Christopher himself drove or took 

the Accord, the evidence sufficiently established that he was—at a minimum—an aider 

and abettor. Christopher, then a gang associate, was present along with gang members 

Alejandro and Gerardo when Antonio abandoned the Accord. (Cf. People v. Clark

(1967) 251 Cal.App.2d 868, 873-874 [the defendant did not know that he was riding in an 

illegally acquired car until the police pursued it].) Given the remoteness of this site, the 

time of day, and the relatively prompt relocation of the Accord, a trier of fact could 

reasonably infer that Christopher, Alejandro, and Gerardo were responsible for the 

vehicle’s asportation. Given that these men had worked together to kill Antonio, albeit 

unsuccessfully, one could rationally surmise that they once again joined forces to 
38.

accomplish a much less grisly task. Therefore, we conclude substantial evidence 

supported Christopher’s conviction on count 5.

IV. Even if we assume arguendo that section 1109 is retroactive, reversal is 

unwarranted.*

Section 1109, subdivision (a) provides:

“If requested by the defense, a case in which a gang enhancement is 

charged under subdivision (b) or (d) of Section 186.22 shall be tried in 

separate phases as follows: [¶] (1) The question of the defendant’s guilt of 

the underlying offense shall be first determined. [¶] (2) If the defendant is 

found guilty of the underlying offense and there is an allegation of an 

enhancement under subdivision (b) or (d) of Section 186.22, there shall be 

further proceedings to the trier of fact on the question of the truth of the 

enhancement. Allegations that the underlying offense was committed for 

the benefit of, at the direction of, or in association with, a criminal street 

gang and that the underlying offense was committed with the specific intent 

to promote, further, or assist in criminal conduct by gang members shall be 

proved by direct or circumstantial evidence.”

Christopher makes two contentions. First, section 1109 applies retroactively and 

the case must be “remanded for a bifurcated trial on all charges and enhancements.” 

(Italics omitted.) Second, if a showing of prejudice is required, he “would have had a 

more favorable result had the trial been bifurcated . . . .” 

“The question of whether section 1109 applies retroactively is the subject of a split 

of authority among the Courts of Appeal.” (People v. Tran (2022) 13 Cal.5th 1169, 

1208.) We need not address the issue here because we conclude Christopher “cannot 

show it is ‘reasonably probable’ he would have obtained a more favorable result if his

trial had been bifurcated.” (People v. E.H. (2022) 75 Cal.App.5th 467, 480, citing 

Watson, supra, 46 Cal.2d at p. 836; see People v. Tran, supra, 13 Cal.5th at pp. 1208-

1210 [Watson standard].) As previously discussed, the gang evidence was more 

* See footnote, ante, page 1.
39.

probative than prejudicial and cross-admissible to prove the commission of the attempted 

murder and the court issued a limiting instruction. (See ante, at pp. 20-24.)12

V. The Attorney General concedes numerous issues.*

a. Section 186.22

Amended subdivision (g) of section 186.22 now reads: 

“[T]o benefit, promote, further, or assist means to provide a common 

benefit to members of a gang where the common benefit is more than 

reputational. 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.”

Christopher makes two contentions. First, the amended section 186.22 applies 

retroactively. Second, his “gang related convictions and enhancements must be reversed” 

(boldface & capitalization omitted) and retried. The Attorney General concedes these 

points. We accept this concession.

b. Instructional error

Christopher argues that the trial court failed to instruct the jury on the elements of 

carrying a loaded firearm in public as an active participant in a criminal street gang. (See 

People v. Bush (2017) 7 Cal.App.5th 457, 483 [“[A] ‘trial court must instruct the jury on 

all elements of the charged offenses.’ ”].) The Attorney General concedes the matter.13 

We accept this concession.

12 We had deferred Christopher’s request for judicial notice of certain legislative 

history pending consideration of this appeal on its merits. In light of our disposition, we 

deny the request.

* See footnote, ante, page 1.

13 Given the Attorney General’s concession, we need not address Christopher’s 

ineffective-assistance-of-counsel claim, which is premised on a finding of forfeiture. 
40.

c. Necessarily included offense rule

Christopher asserts that “a violation of section 186.22, subdivision (a) . . . is a 

necessarily lesser included offense of . . . [a violation of] section 25850, subdivision 

(c)(3)” and his “conviction on count 3 for a violation of section 186.22, subdivision (a), 

must be reversed because a defendant may not be convicted of both the greater and the 

necessarily lesser offenses.” (See People v. Ortega (1998) 19 Cal.4th 686, 692 

[“ ‘[M]ultiple convictions may not be based on necessarily included offenses.’ ”]; People 

v. Flores (2005) 129 Cal.App.4th 174, 184 [the defendant had been convicted of both 

active gang participation and carrying a firearm while he was an active gang participant; 

the appellate court reversed the former].) The Attorney General concedes the matter. We 

accept this concession.

d. Unauthorized sentence

Christopher argues the trial court improperly imposed 15 years to life pursuant to 

section 186.22, subdivision (b)(5) and 10 years pursuant to section 12022.53, subdivision 

(e)(2) on count 1. (See People v. Brookfield (2009) 47 Cal.4th 583, 590 [“A defendant 

who personally uses or discharges a firearm in the commission of a gang-related offense 

is subject to both the increased punishment provided for in section 186.22 and the 

increased punishment provided for in section 12022.53. In contrast, when another 

principal in the offense uses or discharges a firearm but the defendant does not, there is 

no imposition of an ‘enhancement for participation in a criminal street gang . . . in 

addition to an enhancement imposed pursuant to’ section 12022.53.”].) The Attorney 

General concedes the matter. We accept the concession.

VI. Bruen does not foreclose a retrial on the charge of carrying a loaded 

firearm in public as an active participant in a criminal street gang.

In a supplemental brief, Christopher contends that he cannot be retried on the 

charge of carrying a loaded firearm in public as an active gang participant (§ 25850,

subd. (c)(3)) because the United States Supreme Court’s recent holding in Bruen “renders 
41.

California’s general gun carrying licensing statutes (§§ 26150, 26155) unconstitutional as 

they contain the same fatal flaws as New York’s licensing statute.” (Fns. omitted.) We 

disagree. 

a. Pertinent state statutes

In California, “[a] person is guilty of carrying a loaded firearm when the person 

carries a loaded firearm on the person or in a vehicle while in any public place or on any 

public street in an incorporated city or in any public place or on any public street in a 

prohibited area of unincorporated territory.” (§ 25850, subd. (a).) “Carrying a loaded 

firearm in violation of this section is punishable, as follows: [¶] . . . [¶] . . . Where the 

person is an active participant in a criminal street gang, . . . as a felony.” (Id., subd. 

(c)(3).) “Section 25850 does not apply to the carrying of any handgun by any person as 

authorized pursuant to Chapter 4 (commencing with Section 26150) of Division 5.” 

(§ 26010.)

Section 26150, subdivision (a) states:

“When a person applies for a license to carry a pistol, revolver, or other 

firearm capable of being concealed upon the person, the sheriff of a county 

may issue a license to that person upon proof of all of the following:

“(1) The applicant is of good moral character.

“(2) Good cause exists for issuance of the license.

“(3) The applicant is a resident of the county or a city within the county, or 

the applicant’s principal place of employment or business is in the county 

or a city within the county and the applicant spends a substantial period of 

time in that place of employment or business.

“(4) The applicant has completed a course of training as described in 

Section 26165.[14]”

14 For “new license applicants,” an “acceptable” course must “be no less than 

eight hours, but shall not be required to exceed 16 hours in length”; “include instruction 

on firearm safety, firearm handling, shooting technique, and laws regarding the 

permissible use of a firearm”; and “include live-fire shooting exercises on a firing range” 
42.

Section 26155, subdivision (a) similarly provides: 

“When a person applies for a license to carry a pistol, revolver, or other 

firearm capable of being concealed upon the person, the chief or other head 

of a municipal police department of any city or city and county may issue a 

license to that person upon proof of all of the following:

“(1) The applicant is of good moral character.

“(2) Good cause exists for issuance of the license.

“(3) The applicant is a resident of that city.

“(4) The applicant has completed a course of training as described in 

Section 26165.”

Before a license is issued, “[t]he fingerprints of each applicant shall be taken . . . .” 

(§ 26185, subd. (a)(1).) A license “shall not be issued if the Department of Justice 

determines that the person is prohibited by state or federal law from possessing, 

receiving, owning, or purchasing a firearm.” (§ 26195, subd. (a).) A license “shall be 

revoked by the local licensing authority if at any time either the local licensing authority 

is notified by the Department of Justice that a licensee is prohibited by state or federal 

law from owning or purchasing firearms, or the local licensing authority determines that 

the person is prohibited by state or federal law from possessing, receiving, owning, or 

purchasing a firearm.” (Id., subd. (b)(1).)

b. The Bruen decision

Bruen concerned New York’s licensing scheme. (See Bruen, supra, 142 S.Ct. at 

pp. 2122-2124.) Under that scheme, an applicant who wants to possess a firearm at home 

or his or her place of business “must convince a ‘licensing officer’—usually a judge or 

law enforcement officer—that, among other things, he is of good moral character, has no 

history of crime or mental illness, and that ‘no good cause exists for the denial of the 

and “a demonstration by the applicant of safe handling of, and shooting proficiency with, 

each firearm that the applicant is applying to be licensed to carry.” (§ 26165, subd. (a).)
43.

license.’ [Citation.]” (Id. at pp. 2122-2123.) To secure an unrestricted license to carry a 

firearm outside the home or place of business, an applicant pre-Bruen needed to prove 

that “ ‘proper cause’ ” existed. (Id. at p. 2123.) The phrase “proper cause” was 

construed by the state courts to require the applicant to “ ‘demonstrate a special need for 

self-protection distinguishable from that of the general community.’ [Citation.]” (Ibid.) 

This was generally established by “evidence ‘of particular threats, attacks or other 

extraordinary danger to personal safety.’ [Citations.]” (Ibid.)

The petitioners—law-abiding residents of New York—applied for unrestricted 

licenses to carry handguns in public for general self-defense. However, their requests 

were denied for failure to satisfy the “proper cause” requirement. (Bruen, supra, 142 

S.Ct. at pp. 2124-2125.) The petitioners sued for declaratory and injunctive relief, 

alleging that the respondents—state officials in charge of the processing of licensing 

applications and the enforcement of licensing laws—“violated their Second and 

Fourteenth Amendment rights by denying their unrestricted-license applications on the 

basis that they had failed to show ‘proper cause,’ i.e., had failed to demonstrate a unique 

need for self-defense.” (Id. at p. 2125, italics omitted.) The federal district court 

dismissed the complaint and the Second Circuit Court of Appeals affirmed. (Ibid.)

The United States Supreme Court reversed the Second Circuit’s judgment, 

concluding that “the State’s licensing regime violates the Constitution” “[b]ecause the 

State of New York issues public-carry licenses only when an applicant demonstrates a 

special need for self-defense.” (Bruen, supra, 142 S.Ct. at p. 2122.) The high court 

applied the following “text-and-history standard” (id. at p. 2138):

“When the Second Amendment’s plain text covers an individual’s conduct, 

the Constitution presumptively protects that conduct. The government 

must then justify its regulation by demonstrating that it is consistent with 

the Nation’s historical tradition of firearm regulation. Only then may a 

court conclude that the individual’s conduct falls outside the Second 

Amendment’s ‘unqualified command.’ [Citation.]” (Bruen, supra, 142 

S.Ct. at pp. 2129-2130.)
44.

Since (1) “[t]he Second Amendment’s plain text . . . presumptively guarantees petitioners 

. . . a right to ‘bear’ arms in public for self-defense” (id. at p. 2135) and (2) “the historical 

record . . . does not demonstrate a tradition of broadly prohibiting the public carry of 

commonly used firearms for self-defense” or “any . . . tradition limiting public carry only 

to those law-abiding citizens who demonstrate a special need for self-defense” (id. at 

p. 2138, fn. omitted), “New York’s proper-cause requirement violates the Fourteenth 

Amendment in that it prevents law-abiding citizens with ordinary self-defense needs from 

exercising their right to keep and bear arms” (id. at p. 2156).

The United States Supreme Court pointed out that six states—New York, 

California, Hawaii, Maryland, Massachusetts, and New Jersey—and the District of 

Columbia “have ‘may issue’ licensing laws, under which authorities have discretion to 

deny concealed-carry licenses even when the applicant satisfies the statutory criteria, 

usually because the applicant has not demonstrated cause or suitability for the relevant 

license.” (Bruen, supra, 142 S.Ct. at pp. 2123-2124.) “Aside from New York, . . . only 

California, the District of Columbia, Hawaii, Maryland, Massachusetts, and New Jersey 

have analogues to [New York’s] ‘proper cause’ standard.”15 (Bruen, at p. 2124, fn. 

omitted.) By contrast, 43 states “are ‘shall issue’ jurisdictions, where authorities must 

issue concealed-carry licenses whenever applicants satisfy certain threshold 

requirements, without granting licensing officials discretion to deny licenses based on a 

perceived lack of need or suitability.” (Id. at p. 2123, fn. omitted.) In a footnote, the 

high court stated that “nothing in [its] analysis should be interpreted to suggest the 

unconstitutionality of the 43 States’ ‘shall-issue’ licensing regimes, under which ‘a 

general desire for self-defense is sufficient to obtain a [permit].’ [Citation.]” (Id. at 

p. 2138, fn. 9.) It emphasized that those schemes—“which often require applicants to 

15 The high court identified section 26150’s “ ‘[g]ood cause’ ” condition. (Bruen, 

supra, 142 S.Ct. at p. 2124, fn. 2.)
45.

undergo a background check or pass a firearms safety course”—“do not require 

applicants to show an atypical need for armed self-defense”; “are designed to ensure only 

that those bearing arms in the jurisdiction are, in fact, ‘law-abiding, responsible 

citizens’ ”; and “appear to contain only ‘narrow, objective, and definite standards’ 

guiding licensing officials . . . rather than requiring the ‘appraisal of facts, the exercise of 

judgment, and the formation of an opinion’ ” “that typify proper-cause standards like 

New York’s.” (Ibid.)

c. Applying Bruen

In view of Bruen, subdivision (a)(2) of sections 26150 and 26155, which 

conditions issuance of a license on—among other things—a showing of “[g]ood cause” 

and was deemed by the United States Supreme Court to be equivalent to New York’s 

invalid “proper cause” standard, is clearly unconstitutional. However, Christopher goes 

even further and argues that “[t]he ‘may issue’ language renders [California’s] entire

licensing scheme unconstitutional on its face because the licensing authority has 

discretion to deny a public carry license even if all the criteria have been met.” (See ante, 

at pp. 41-42.) The majority opinion in Bruen made no mention of—let alone rely upon—

the presence of “may issue” or language to that effect in the challenged New York 

statute. In fact, no such wording was used. (See N.Y. Penal Law former § 400.00(2) 

(2021) [“A license for a pistol or revolver, other than an assault weapon or a disguised 

gun, shall be issued to . . . (f) have and carry concealed, without regard to employment or 

place of possession, by any person when proper cause exists for the issuance thereof 

. . . .” (italics added)].) Notably, at least two of the “shall issue” licensing regimes 

identified by the high court utilize the permissive “may” in their statutes. (See, e.g., 

Conn. Gen. Stat. § 29-28(b) (2021); Del. Code, tit. 11, § 1441 (2022).) Finally, while the 

high court stated in a footnote that its holding should not be construed to render 

unconstitutional the “shall issue” licensing schemes, nowhere does it indicate that its 
46.

holding should be construed to invalidate “may issue” licensing schemes in their 

entirety.16

Christopher also argues that Bruen invalidated “good moral character” conditions 

because they entail “ ‘appraisal of facts, the exercise of judgment, and the formation of an 

opinion . . . .’ ” Once again, the majority opinion in Bruen made no such pronouncement. 

At most, the opinion related in passing that “good moral character” is one of three 

prerequisites for a license to possess a firearm at one’s home or place of business. (See 

Bruen, supra, 142 S.Ct. at pp. 2122-2123.) Notably, at least two of the “shall issue” 

licensing regimes identified by the high court impose an explicit “good moral character” 

requirement. (See, e.g., Ga. Code Ann. § 16-11-129(d)(4) (Supp. 2021); Me. Rev. Stat. 

Ann., tit. 25, § 2003 (Cum. Supp. 2021).)

To reiterate, Bruen only struck down one specific provision of New York’s gun 

licensing scheme that impermissibly burdened law-abiding citizens’ Second Amendment 

rights by mandating proof of a special need beyond general self-defense. We decline to 

expand Bruen’s scope to the degree Christopher urges.

d. Severability

“ ‘Generally speaking, when confronting a constitutional flaw in a statute, we try 

to limit the solution to the problem,’ severing any ‘problematic portions while leaving the 

remainder intact.’ [Citation.] Because ‘[t]he unconstitutionality of a part of an [a]ct does 

not necessarily defeat or affect the validity of its remaining provisions,’ [citation], the 

‘normal rule’ is ‘that partial, rather than facial, invalidation is the required course,’ 

[citation].” (Free Enterprise Fund v. Public Company Accounting Oversight Bd. (2010) 

561 U.S. 477, 508.) “In determining whether the invalid portions of a statute can be 

severed, we look first to any severability clause. The presence of such a clause 

16 Christopher often cites Justice Kavanaugh’s concurring opinion. However, 

statements in a concurrence do not constitute binding precedent. (Maryland v. Wilson

(1997) 519 U.S. 408, 412-413.)
47.

establishes a presumption in favor of severance. [Citation.] We will, however, consider 

three additional criteria: ‘[T]he invalid provision must be grammatically, functionally, 

and volitionally separable.’ [Citation.]” (California Redevelopment Assn. v. Matosantos 

(2011) 53 Cal.4th 231, 270-271; see Leavitt v. Jane L. (1996) 518 U.S. 137, 139 

[“Severability is of course a matter of state law.”].)

“To be grammatically separable, the valid and invalid parts of the statute can be 

separated by paragraph, sentence, clause, phrase, or even single words.” (Abbott 

Laboratories v. Franchise Tax Bd. (2009) 175 Cal.App.4th 1346, 1358.) “To be 

functionally separable, the remainder after separation of the invalid part must be 

‘ “ ‘complete in itself’ ” ’ and ‘capable of independent application.’ [Citation.]” (Ibid.) 

“The issue, when assessing volitional separability, is not whether a legislative body 

would have preferred the whole to the part . . . . Instead, the issue is whether a legislative 

body, knowing that only part of its enactment would be valid, would have preferred that 

part to nothing, or would instead have declined to enact the valid without the invalid.” 

(California Redevelopment Assn. v. Matosantos, supra, 53 Cal.4th at p. 273.)

Here, while there is no severability clause, the criteria for severability are 

otherwise satisfied. The invalid “good cause” condition in subdivision (a)(2) of sections 

26150 and 26155 is grammatically detached from the other requirements for licensure. 

(See ante, at pp. 41-42.) Both sections 26150 and 26155 are complete in themselves and 

capable of independent application without subdivision (a)(2). As for volitional 

separability, we believe the Legislature would prefer a licensing scheme minus the “good 

cause” condition to nothing at all. As discussed, section 25850 criminalizes carrying a 

loaded firearm in public, but this provision does not apply to licensed possession. 

(§ 26010; see ante, at p. 41.) Other exemptions from section 25850 only cover particular 

individuals and/or deal with distinct circumstances.17 Thus, excising the entire licensing 

17 Specifically, these exemptions are for peace officers (§ 25900); military 

personnel (§ 26000); persons using target ranges to practice shooting (§ 26005, 
48.

scheme would render section 26010 nugatory and—in further contravention of Bruen—

“impair[] the right of the general population to peaceable public carry.” (Bruen, supra, 

142 S.Ct. at p. 2145.) We doubt the Legislature would embrace this absurdity. Having 

concluded the “good cause” condition is severable, California’s licensing scheme remains 

valid post-Bruen.

e. Standing

Moreover, “ ‘ “[o]ne who seeks to raise a constitutional question must show that 

his rights are affected injuriously by the law which he attacks and that he is actually 

aggrieved by its operation.” [Citation.]’ [Citation.]” (People v. Conley (2004) 116 

Cal.App.4th 566, 576; see People v. Perry (1931) 212 Cal. 186, 193 [“It is well-settled 

law that the courts will not give their consideration to questions as to the constitutionality 

of a statute unless such consideration is necessary to the determination of a real and vital 

controversy between the litigants in the particular case before it. It is incumbent upon a 

party to an action or proceeding who assails a law invoked in the course thereof to show 

that the provisions of the statute thus assailed are applicable to him and that he is 

injuriously affected thereby.”].) Here, unlike the petitioners in Bruen, the record does not 

subd. (a)); members of shooting clubs hunting on club property (id., subd. (b)); armored 

vehicle guards (§ 26015); retired federal officers (§ 26020); certain persons who have 

completed a regular course in firearms training approved by the Commission on Peace 

Officer Standards and Training, i.e., patrol special police officers, animal control officers 

or zookeepers, humane officers, and harbor police officers (§ 26025); certain persons 

issued a certificate of completion of courses in the carrying and use of firearms and the 

exercise of powers of arrest by the Department of Consumer Affairs, i.e., guards, private 

investigators, private patrol operators, and alarm company operators (§ 26030); persons 

carrying a loaded firearm at his or her place of business or private property (§ 26035); 

lawful hunting (§ 26040); persons carrying a loaded firearm who reasonably believe that 

“any person or the property of any person is in immediate, grave danger” and “the 

carrying of the weapon is necessary for the preservation of that person or property” 

(§ 26045, subd. (a)); persons under threat from the subject of a restraining order (id., 

subd. (b)); persons making lawful arrests (§ 26050); persons carrying a loaded firearm at 

his or her place of residence (§ 26055); and persons storing rockets, rocket propelled 

projectile launchers, or the like aboard a vessel or aircraft (§ 26060).
49.

show, nor does Christopher claim, that he applied for and was denied a license to possess 

the gun in question.18 (See U.S. v. Decastro (2d Cir. 2012) 682 F.3d 160, 164 [“ ‘As a 

general matter, to establish standing to challenge an allegedly unconstitutional policy, a 

plaintiff must submit to the challenged policy.’ ”].) Thus, he lacks standing to challenge 

the constitutionality of California’s licensing scheme.19

VII. There was no cumulative error.

*

Finally, Christopher contends the cumulative effect of multiple trial errors requires 

reversal of the judgment. “[A] series of trial errors, though independently harmless, may 

in some circumstances rise by accretion to the level of reversible and prejudicial error.” 

(People v. Hill (1998) 17 Cal.4th 800, 844.) “A claim of cumulative error is in essence a 

due process claim . . . .” (People v. Rivas, supra, 214 Cal.App.4th at p. 1436.) “ ‘The 

“litmus test” for cumulative error “is whether defendant received due process and a fair 

trial.” ’ ” (Ibid.) “[T]he reviewing court must ‘review each allegation and assess the 

cumulative effect of any errors to see if it is reasonably probable the jury would have 

reached a result more favorable to [the] defendant in their absence.’ ” (People v. 

Williams, supra, 170 Cal.App.4th at p. 646.) Having reviewed and analyzed each 

18 The record does show that Christopher was 19 years of age at the time of the 

September 10, 2018 shooting. Accordingly, he would have been unable to acquire a gun 

lawfully. (See §§ 27505, subd. (a) [“No person, corporation, or firm shall sell, loan, or 

transfer a firearm to a minor, nor sell a handgun to an individual under 21 years of age.”]; 

27510, subd. (a) [“A person licensed under Sections 26700 to 26915, inclusive, shall not 

sell, supply, deliver, or give possession or control of a firearm to any person who is under 

21 years of age.”].) 

19 Christopher cites Shuttlesworth v. Birmingham (1969) 394 U.S. 147—a First 

Amendment case—for the proposition that “it is irrelevant that the record is devoid of 

any effort by [him] to obtain a license to carry a firearm.” (Boldface & some 

capitalization omitted.) That case is inapposite as it involved an ordinance that was 

unconstitutional on its face. (See Shuttlesworth v. Birmingham, at pp. 150-151.)

* See footnote, ante, page 1.
50.

purported error, we cannot conclude that the cumulative effect was such that Christopher 

was deprived of due process and a fair trial. Therefore, we reject his argument.

DISPOSITION

The convictions on counts 2 and 3 and the gang and vicarious firearm use 

enhancements on count 1 are reversed.20 The matter is remanded back to the trial court 

to give the People an opportunity to retry these substantive charges and allegations. 

(People v. E.H., supra, 75 Cal.App.5th at p. 481.) Following retrial, or if the People elect 

not to retry, the trial court shall resentence Christopher. In all other respects, the 

judgment is affirmed.

DETJEN, J.

WE CONCUR:

POOCHIGIAN, Acting P. J.

DE SANTOS, J.

20 A violation of section 186.22, subdivision (b), is a prerequisite for vicarious 

liability under section 12022.53, subdivision (e)(1). (See § 12022.53, subd. (e)(1)(A).)