Filed 1/15/16 P. v. Oregon CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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

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 This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JUAN CARLOS OREGON,

Defendant and Appellant.

F068964

(Super. Ct. No. BF131156C)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. Kenneth C. 

Twisselman II, Judge.

Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney 

General, Kathleen A. McKenna, Darren Indermill and William K. Kim, Deputy 

Attorneys General, for Plaintiff and Respondent.

-ooOoo-
2.

INTRODUCTION

Following a successful appeal from the first judgment entered in this case, 

appellant Juan Carlos Oregon was retried by a jury and convicted of two counts of 

attempted murder of a peace officer, two counts of assault with a semiautomatic firearm 

on a peace officer, and one count of receiving a stolen vehicle. On appeal, he challenges 

the propriety of the trial court’s instructions to the jury on the prosecution’s aiding-andabetting and uncharged-conspiracy theories of criminal liability. He also contends that 

insufficient evidence supports his convictions of attempted murder and assault with a 

semiautomatic firearm. He further contends there is insufficient evidence to support the 

gang enhancements and gang-related firearm enhancements. In addition, he challenges 

the constitutionality of the applicable provision of the firearm enhancement statute. 

Finally, he claims his aggregate sentence and restitution and parole revocation restitution 

fines violate the due process and double jeopardy clauses in the California Constitution

because they are greater than those imposed following his first trial and before his 

successful appeal. We agree with Oregon’s last claim, which the People concede, and 

will modify his sentence accordingly. In all other respects, we will affirm the judgment.1

 

1 Because the People have not raised any claims of forfeiture and we have addressed all of 

Oregon’s contentions on the merits, it is unnecessary for us to reach his claim that, if any of his 

arguments were forfeited due to the lack of objections below, his trial counsel rendered 

ineffective assistance of counsel.
3.

FACTUAL AND PROCEDURAL BACKGROUND

On the night of February 20, 2010, Oregon, while driving a stolen car, suddenly 

sped away from two Bakersfield police officers as the officers were approaching the car 

on foot during a traffic stop. A high-speed car chase ensued, during which Oregon’s 

backseat passenger, Jaime Vidal Aguirre, used a semiautomatic firearm to blow out the 

back windshield of the stolen car and fire shots at the officers’ patrol car behind them. 

When Oregon eventually stopped the stolen car in a densely populated area, 

Oregon, Aguirre, and Anthony Manuel Perez (the front seat passenger) got out and ran 

away. Police found a number of items near and inside the stolen car including: a black 

diaper bag which contained binoculars, three masks (two “Halloween masks” and a black 

ski mask), and a loaded, nine-millimeter semiautomatic handgun; a working police 

scanner “tuned into ... the Bakersfield Police Department’s Channel 1 radio traffic”; a 

key fob containing 11 shaved keys; cotton work gloves; a black hat with the letter “T” on 

it; a black T-shirt; a blue beanie cap; and a sock containing live .45-caliber bullets. 

When Oregon was eventually apprehended on April 13, 2010, he was driving 

another stolen car, had in his possession a keyring with numerous car keys on it, and 

attempted to flee officers by foot, after he ran into a tree with the car. In a police 

interview, Oregon admitted he was the driver of the stolen car during the subject incident 

and that he had used the shaved keys found in that car to steal other cars. 

In Oregon’s first trial, which was severed from that of his codefendants, a jury 

convicted him of two counts of attempted premeditated murder of a peace officer (Pen. 

Code,2 §§ 664, subds. (a) & (e), 187, 189; counts 1 & 2), two counts of assault with a 

semiautomatic firearm on a peace officer (§ 245, subd. (d)(2); counts 3 & 4), and one 

count each of being a felon in possession of a firearm (§ 12021, subd. (a)(1); count 5), 

receiving a stolen vehicle (§ 496d, subd. (a); count 8), and recklessly evading a peace 

 

2 Further statutory references are to the Penal Code unless otherwise specified.
4.

officer while operating a motor vehicle (Veh. Code, § 2800.2; count 9). The jury also 

found true the gang enhancement allegations in each count (§ 186.22, subd. (b)(1)), and 

the firearm enhancement allegations in counts 1 through 4 (§ 12022.53, subds. (c) &

(e)(1)) After striking the prior prison term allegation in each count (§ 667.5, subd. (b)) 

on the People’s motion, the trial court sentenced Oregon to an aggregate prison term of 

79 years to life. The court also imposed various fines and fees, including a restitution 

fine of $200 (§ 1202.4, subd. (b)) and a parole revocation restitution fine of $200 

(§ 1202.45). 

Oregon appealed from the judgment. We reversed his convictions on all counts

except for count 9 (reckless evasion) and remanded the case for retrial, after concluding 

that the admission of the codefendants’ out-of-court statements violated Oregon’s Sixth 

Amendment rights, and that the error was not harmless beyond a reasonable doubt. 

(People v. Oregon (June 25, 2013, F062593) [nonpub. opn.].)3 

On remand, count 5 was dismissed on the People’s motion and Oregon was retried 

on counts 1, 2, 3, 4, and 8. The jury found him guilty on all the counts and found all the 

special allegations to be true. The trial court found the original prior prison term 

allegations in each count to be true and sentenced Oregon to an aggregate prison term of 

80 years to life and imposed various fines and fees, including a restitution fine of $280 

and a parole revocation fine of $280. 

DISCUSSION

I. Instructional error

Oregon claims a number of prejudicial errors occurred as a result of the trial 

court’s instructions on the uncharged-conspiracy and aiding-and-abetting theories of 

liability relied on by the prosecution. We find none of these claims to be persuasive.

 

3 At Oregon’s request, we take judicial notice of our records in case No. F062593. (Evid. 

Code, §§ 452, subd. (d), 459, subd. (a).)
5.

A. CALJIC No. 3.02

Oregon first contends the trial court presented the jury with an invalid theory of 

liability when it gave, over the defense’s objection, a modified version of CALJIC 

No. 3.02, which instructed the jury that “[o]ne who either commits or aids and abets 

another in the commission of crimes is not only guilty of those crimes, but is also guilty 

of any other crime committed by the principal which is a natural and probable 

consequences of the crimes originally committed or aided and abetted.” (Italics added.)4

Oregon argues that the modified version of CALJIC No. 3.02 given here is 

erroneous because a defendant can only be liable under the natural and probable 

consequences doctrine if he aids and abets another person in committing a target offense, 

not if he commits the target offense himself. He is mistaken. The perpetrator and the 

 

4

In its entirety, the modified version of CALJIC No. 3.02 given in this case provided: 

“One who either commits or aids and abets another in the commission of crimes is not only 

guilty of those crimes, but is also guilty of any other crime committed by the principal which is a 

natural and probable consequence of the crimes originally committed or aided and abetted. [¶] 

In order to find the defendant guilty of the crimes of Attempted Murder and Assault with a SemiAutomatic Firearm on a Police Officer, under this theory, you must be satisfied beyond a 

reasonable doubt that: [¶] 1. The crimes of Reckless Evading, Permitting Someone to shoot 

from a Vehicle, or Shooting at an Occupied Motor Vehicle, were committed; [¶] 2. That the 

defendant either perpetrated or aided and abetted those crimes; [¶] 3. That a co-principal in 

those crimes committed the crimes of Attempted Murder or Assault with a Semi-Automatic 

Firearm on a Police Officer; and [¶] 4. The crimes of Attempted Murder; willful, deliberate and 

premediated attempted murder, or Assault with a Semi-Automatic Firearm on a Police Officer 

were a natural and probable consequence of the commission of the crimes of Reckless Evading, 

Permitting Someone to shoot from a Vehicle, or shooting at an Occupied Motor Vehicle. [¶] In 

determining whether a consequence is ‘natural and probable,’ you must apply an objective test, 

based not on what the defendant actually intended, but on what a person of reasonable and 

ordinary prudence would have expected likely to occur. The issue is to be decided in light of all 

of the circumstances surrounding the incident. A ‘natural’ consequence is one which is within 

the normal range of outcomes that may be reasonably expected to occur if nothing unusual has 

intervened. ‘Probable’ means likely to happen. [¶] You are not required to unanimously agree 

as to which originally contemplated crime the defendant committed or aided and abetted, so long 

as you are satisfied beyond a reasonable doubt and unanimously agree that the defendant 

committed or aided and abetted the commission of an identified and defined target crime and that 

the crime of Attempted Murder or Assault with a Semi-Automatic Firearm on a Police Officer 

was a natural and probable consequence of the commission of that target crime.” (Some italics

omitted and added.) 
6.

aider and abettor “are equally liable for the natural and foreseeable consequence of their 

crime. Both the perpetrator and the aider and abettor are principals, and all principals are 

liable for the natural and reasonably foreseeable consequences of their crimes....” 

(People v. Olguin (1994) 31 Cal.App.4th 1355, 1376 (Olguin); see also People v. Culuko 

(2000) 78 Cal.App.4th 307, 329–330.) Therefore, the trial court did not err in instructing 

the jury that Oregon could be liable for the non-target offenses of attempted murder and 

assault with a firearm on a peace officer under the natural and probable consequences 

doctrine if he directly perpetrated or aided and abetted another person in committing one 

of the alleged target offenses (i.e., recklessly evading a peace officer, permitting someone 

to shoot from a vehicle, or shooting at an occupied motor vehicle).

B. Instructions on uncharged-conspiracy theory of liability

Oregon next contends the trial court erred in instructing the jury it could find him 

guilty of attempted murder as a natural and probable consequence of entering into a 

conspiracy to commit assault or robbery. The court, over the defense’s objection 

instructed on this theory pursuant to CALJIC No. 6.10.5 (conspiracy and overt act not 

pleaded as a charged crime)5 and CALJIC No. 6.11 (conspiracy—joint responsibility).6 

 

5 CALJIC No. 6.10.5 provided: “A conspiracy is an agreement between two or more 

persons with the specific intent to agree to commit the crimes of Robbery or Assault and with the 

further specific intent to commit those crime[s], followed by an overt act committed in this state 

by one or more of the parties for the purpose of accomplishing the object of the agreement. 

Conspiracy is a crime, but is not charged as such in this case. [¶] In order to find a defendant to 

be a member of a conspiracy, in addition to proof of the unlawful agreement and specific intent, 

there must be proof of the commission of at least one of the following overt acts to accomplish 

robbery or assault: [¶] 1. Unlawfully acquired a blue Honda Civic, [¶] 2. Removed the license 

plates from it. [¶] 3. Acquired three face masks, [¶] 4. Acquired one radio scanner capable of 

monitoring police channels, [¶] 5. Tuned the above scanner to monitor the Bakersfield Police 

Departments channel one. [¶] 6. Acquired one pair of binoculars, [¶] 7. Acquired multiple pairs 

of gloves, [¶] 8. Acquired at least one 9mm semi-automatic handgun, [¶] 9. Put items listed in 3, 

4, 6, 7, and 8 into the Honda Civic. [¶] 10. Drove the Honda Civic in the direction of Varrio 

Baker territory, [¶] 11. Fled from police in a high-speed pursuit, [¶] 12. Fired multiple rounds at 

the pursuing officers; [¶] AND [¶] 13. At least one of these overt acts was committed in 

California. [¶] It is not necessary to such a finding as to any particular defendant that defendant 

personally committed the overt act, if he was one of the conspirators when the alleged overt act 
7.

Relying on People v. Baker (1999) 74 Cal.App.4th 243 (Baker), Oregon contends 

the trial court’s conspiracy instructions presented the jury with an invalid theory of 

attempted felony murder. In Baker, the defendants were charged with murder, attempted 

murder, assault with a deadly weapon, conspiracy to commit assault with a deadly 

weapon, and residential burglary. (Id. at p. 247.) The defendants claimed the instruction 

presented to the jury on the theory of conspiracy felony murder was legally insufficient, 

as assault with a deadly weapon was not one of the listed felonies in section 189 that 

governs the felony murder rule. (Baker, at p. 248.) The court in Baker agreed and 

reversed the judgment. (Ibid.) Oregon argues: “Section 189 does not list a murder 

committed in the perpetration of a conspiracy or attempted assault as the basis for first 

degree murder. Thus, there is no crime of attempted felony murder based upon a 

 

was committed. [¶] The term ‘overt act’ means any step taken or act committed by one or more 

of the conspirators which goes beyond mere planning or agreement to commit a crime and which 

step or act is done in furtherance of the accomplishment of the object of the conspiracy. [¶] To 

be an ‘overt act,’ the step taken or act committed need not, in and of itself, constitute the crime or 

even an attempt to commit the crime which is the ultimate object of the conspiracy. Nor is it 

required that the step or act, in and of itself, be a criminal or unlawful act.” 

6 CALJIC No. 6.11 stated: “Each member of a criminal conspiracy is liable for each act 

and bound by each declaration of every other member of the conspiracy if that act or declaration 

is in furtherance of the object of the conspiracy. [¶] The act of one conspirator pursuant to or in 

furtherance of the common design of the conspiracy is the act of all conspirators. [¶] A member 

of a conspiracy is not only guilty of the particular crime that, to his knowledge his confederates 

agreed to and did commit, but is also liable for the natural and probable consequences of any 

crime of a co-conspirator to further the object of the conspiracy, even though that crime was not 

intended as a part of the agreed upon objective. [¶] You must determine whether the defendant 

is guilty as a member of a conspiracy to commit the originally agreed upon crime or crimes, and, 

if so, whether the crime alleged in Counts One through Four were perpetrated by a coconspirator in furtherance of that conspiracy and was a natural and probable consequence of the 

agreed upon criminal objective of that conspiracy. [¶] In determining whether a consequence is 

‘natural and probable’ you must apply an objective test based not on what the defendant actually 

intended but on what a person of reasonable and ordinary prudence would have expected would 

be likely to occur. The issue is to be decided in light of all of the circumstances surrounding the 

incident. A ‘natural consequence’ is one which is within the normal range of outcomes that may 

be reasonably expected to occur if nothing unusual has intervened. ‘Probable’ means likely to 

happen.” 
8.

conspiracy to commit an assault. Additionally, in California, there is no crime of 

attempted felony murder.” 

Baker is inapposite. The trial court’s instructions here did not present the jury 

with a felony-murder theory of attempted murder but properly instructed the jury as to the 

natural and probable consequences doctrine under a valid conspiracy theory. Under this 

theory and pursuant to CALJIC Nos. 6.10.5 and 6.11, the prosecution was required to 

establish that Oregon formed an agreement with Aguirre or Perez (or both) to commit 

robbery or assault, committed one of the enumerated overt acts, and that the attempted 

murder of a peace officer was the natural and probable consequence of the conspiracy 

itself. The instructions were correct. Under a conspiracy theory, each conspirator is 

responsible for everything done by his coconspirators, including the natural and probable 

consequences of the conspiracy. (People v. Zacarias (2007) 157 Cal.App.4th 652, 657.)

We also reject Oregon’s suggestion that the natural and probable consequences 

doctrine is inapplicable to attempted murder because the doctrine does not require proof 

of specific intent to kill. Although attempted murder requires express malice, i.e. specific 

intent to kill, not implied malice (People v. Collie (1981) 30 Cal.3d 43, 62), our courts 

have held that the natural and probable consequences doctrine in aiding and abetting 

situations can support a conviction of attempted murder (see People v. Prettyman (1996) 

14 Cal.4th 248, 262–263). The specific intent necessary for conviction of an aider and 

abettor is not “the specific intent to kill, but the intent to ‘encourage and bring about 

conduct that is criminal.’” (Olguin, supra, 31 Cal.App.4th at p. 1379 [rejecting implied 

malice arguments for aider and abettor liability].)

As discussed in People v. Medina (2009) 46 Cal.4th 913, it is quite foreseeable 

that a gang-related assault will result in murder or attempted murder, even if the aider and 

abettor does not know the principal is armed. “‘A person who knowingly aids and abets 

criminal conduct is guilty of not only the intended crime [target offense] but also of any 

other crime the perpetrator actually commits [nontarget offense] that is a natural and 
9.

probable consequence of the intended crime. The latter question is not whether the aider 

and abettor actually foresaw the additional crime, but whether, judged objectively, it was 

reasonably foreseeable.’” (Id. at p. 920, italics omitted.)

Oregon cites no published case holding that the natural and probable consequences 

doctrine is inapplicable to attempted murder. There are, however, “a number of 

California cases which hold murder or attempted murder can be a natural and probable 

consequence of [aiding and abetting a] robbery.” (People v. Cummins (2005) 127 

Cal.App.4th 667, 677.) We similarly conclude that the jury was correctly instructed that 

Oregon could be found guilty of attempted murder under a conspiracy theory of liability 

if it found the natural and probable consequence of the uncharged conspiracy to commit 

robbery or assault was the attempted murder of a peace officer.

C. Evidence of uncharged conspiracy to commit robbery or assault

Oregon contends there is insufficient evidence to support the theory that he was 

guilty of the crimes of attempted murder of a peace officer and assault with a deadly 

weapon on a peace officer based on a conspiracy to commit robbery or assault because 

there was no evidence he entered into such conspiracy. Accordingly, he argues the trial 

court should not have instructed the jury on his theory and committed prejudicial error by 

doing so. 

“[A] trial court in a criminal case is required―with or without a request―to give 

correct jury instructions on the general principles of law relevant to issues raised by the 

evidence.” (People v. Mutuma (2006) 144 Cal.App.4th 635, 640.)

A conspiracy may be found where two or more people agree to commit a crime, 

they specifically intend both to agree and to commit the crime, and one of them performs 

an overt act in furtherance of their agreement. (People v. Austin (1994) 23 Cal.App.4th 

1596, 1603, disapproved on another ground in People v. Palmer (2001) 24 Cal.4th 856.) 

The agreement may be proved by circumstantial evidence, without showing a meeting or 

an express or formal agreement. (People v. Zamora (1976) 18 Cal.3d 538, 559.) The 
10.

agreement may be inferred from the defendants’ conduct in mutually carrying out an 

illegal purpose, the nature of the acts committed, the relationship of the parties, and the 

interests of the alleged conspirators. (People v. Superior Court (Quinteros) (1993) 13 

Cal.App.4th 12, 20.) An inference of a conspiracy may also be supported by, though not 

exclusively based on, the defendants’ membership in the same gang. (Ibid.) “[E]vidence 

of conspiracy may be admitted even if the defendant is not charged with the crime of 

conspiracy.” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1134 (Rodrigues).)

“Once there is proof of the existence of the conspiracy there is no error in 

instructing the jury on the law of conspiracy.” (Rodrigues, supra, 8 Cal.4th at p. 1134.) 

“To determine whether there was sufficient proof of a conspiracy in this case, we apply 

the following rules. ‘Although the existence of the conspiracy must be shown by 

independent proof [citation], the showing need only be prima facie evidence of the 

conspiracy. [Citation.] The prima facie showing may be circumstantial [citation], and 

may be by means of any competent evidence which tends to show that a conspiracy 

existed. [Citation.]’ (People v. Jourdain [(1980) 111 Cal.App.3d 396,] 405.)” (Id., at 

p. 1134, italics added.) “Evidence is sufficient to prove a conspiracy to commit a crime 

‘if it supports an inference that the parties positively or tacitly came to a mutual 

understanding to commit a crime. [Citation.] The existence of a conspiracy may be 

inferred from the conduct, relationship, interests, and activities of the alleged conspirators 

before and during the alleged conspiracy.’” (Id. at p. 1135.)

The evidence here was sufficient to support instructing on conspiracy to commit 

robbery or assault as a theory of liability. As discussed in greater detail below, the 

prosecutor’s gang expert testified that Oregon, Aguirre, and Perez were active members 

of the same gang (i.e., the Varrio Bakers) and that robbery and assault with a deadly 

weapon were among the gang’s primary activities. Oregon and the codefendants were 

travelling together in a stolen car inside which was found, among other things, a

functioning police scanner tuned to one of the police department’s channels. After the 
11.

three men abandoned the stolen car, a black diaper bag containing three masks, 

binoculars, and a loaded, nine-millimeter semiautomatic firearm was found near the car. 

The foregoing circumstances, considered together, were sufficient to make a prima facie 

showing of a conspiracy to commit robbery or assault and, therefore, the trial court did 

not err by instructing on this theory.

II. Sufficiency of the evidence to support Oregon’s convictions of attempted 

murder and assault with a semiautomatic firearm on a peace officer

Next, Oregon contends there was insufficient evidence to support his convictions 

of attempted murder of a peace officer and assault upon a peace officer with a 

semiautomatic firearm under any of the prosecution’s three theories of liability; i.e., 

direct aiding and abetting, natural and probable consequences doctrine of aiding and 

abetting, and uncharged conspiracy to commit robbery or assault. We disagree.

We review a claim of insufficient evidence by determining whether, viewing the 

whole record in the light most favorable to the prosecution, the record discloses 

substantial evidence—evidence which is reasonable, credible, and of solid value—from 

which a reasonable trier of fact could have found the essential elements of the crime 

beyond a reasonable doubt. (People v. Osband (1996) 13 Cal.4th 622, 690.) “‘We 

“‘presume in support of the judgment the existence of every fact the trier could 

reasonably deduce from the evidence.’”’” (Ibid.) 

“In making our determination, we do not reweigh the evidence .... We simply 

consider whether ‘“‘any rational trier of fact could have found the essential elements of 

[each conviction challenged] beyond a reasonable doubt.’” [Citations.]’ [Citation.] 

Unless it is clearly shown that ‘on no hypothesis whatever is there sufficient substantial 

evidence to support the [jury’s] verdict[s,]’ we will not reverse.” (People v. Stewart

(2000) 77 Cal.App.4th 785, 790, second bracketed insertion added.)

Oregon first contends there was insufficient evidence to support his convictions on 

a direct aiding and abetting theory of liability. He argues that the evidence he was 
12.

driving a stolen car and possessed shaved keys used to steal other cars at the time of the 

traffic stop suggested he had “reason—that was independent of the interests of Aguirre 

and Perez—to try and evade the police.” However, Oregon claims there was no evidence 

he had the requisite intent to kill to find him guilty of attempted murder on an aiding and 

abetting theory. In fact, Oregon asserts, “his act of continuing to accelerate the vehicle 

while his backseat passenger was shooting at the officers demonstrates a lack of an intent 

to kill. If [he] possessed the intent to kill he would not have been attempting to distance 

his vehicle from [the] officers’ vehicle while his backseat passenger was shooting at the 

patrol vehicle.” (Italics added.) 

In essence, Oregon seems to be arguing that his conduct in driving the stolen car to 

escape the police officers was factually incompatible with a finding he was 

simultaneously trying to help Aguirre shoot and kill the officers or otherwise aiding and 

abetting the shooting offenses in this case. However, the two were not mutually 

exclusive and a rational juror could infer from all the circumstances that Oregon was 

attempting to avoid capture by the police officers while at the same time intentionally 

facilitating the commission of the shooting offenses and that he shared the shooter’s 

intent to kill.

Contradicting Oregon’s suggestion that he was acting completely independently of 

his codefendants during the crimes, there was evidence that Oregon, Aguirre and Perez 

conferred or communicated with one another immediately before Oregon sped away from 

the police officers. One of the officers testified, that as they were walking up to the car, 

he observed a lot of movement among all three occupants of the car. There was also 

evidence that, near the end of the car chase, Oregon drove onto a partially paved alley 

where Aguirre fired additional shots at the patrol car. According to the officers’ 

testimony, visibility in the alley was low partly because the lights on the stolen car were 

turned off after it entered the alley. A reasonable factfinder could have inferred from all 

the circumstances that Oregon intentionally shut off the lights on the stolen car to help 
13.

Aguirre to better see and take aim at the officers behind them, while at the same time 

facilitating their escape by continuing to drive at a high rate of speed. Although there 

was also evidence supporting the other theories of liability presented to the jury in this 

case, in light of our conclusion that substantial evidence supports Oregon’s convictions 

on at least one theory, it is unnecessary to reach his sufficiency of the evidence challenge 

to the other two.

III. Sufficiency of the evidence to support the gang and gang-related firearm 

enhancements

Oregon contends there was insufficient evidence to support the gang 

enhancements (§ 186.22, subd. (b))7 and gang-related firearm enhancements (§ 12022.53, 

subd. (e)).8 Specifically, he claims the evidence was insufficient to show he committed 

the charged offenses with the specific intent to assist, further, or promote criminal 

conduct by gang members. We disagree.

A. Background

Bakersfield Police Sergeant Brent Stratton testified as a gang expert and described 

the Varrio Bakers, which he identified as a southern (or Sureño) Hispanic criminal street 

gang in Bakersfield. The primary activities of the Varrio Bakers gang include murder, 

assault with a deadly weapon, possession of firearms, possession of stolen vehicles, 

burglary, carjacking, and robbery. 

 

7 Section 186.22, subdivision (b)(1), states: “[A]ny person who is convicted of a felony 

committed for the benefit of, at the direction of, or in association with any criminal street gang, 

with the specific intent to promote, further, or assist in any criminal conduct by gang members, 

shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed 

for the felony or attempted felony of which he or she has been convicted, be punished as 

follows ....”

8 Section 12022.53 provides: “(e)(1) The enhancements provided in this section shall 

apply to any person who is a principal in the commission of an offense if both of the following 

are pled and proved: [¶] (A) The person violated subdivision (b) of Section 186.22. [¶] 

(B) Any principal in the offense committed any act specified in subdivision (b), (c), or (d) ....”
14.

Stratton opined that Oregon and the codefendants were active members of the 

Varrio Bakers gang and explained the bases for his opinion. In support of his opinion 

regarding Oregon’s gang membership, Stratton described Oregon’s numerous contacts 

with law enforcement between August 2004 and April 2013.

On August 5, 2004, and, again, on October 14, 2006, Oregon was contacted within 

Varrio Bakers territory. 

On April 27, 2007, during a firearm possession investigation, Oregon was 

contacted in the company of the Varrio Bakers gang member who was ultimately arrested 

for the crime. 

On July 20, 2008, Oregon was arrested for vehicle burglary and was found in the 

company of a Varrio Bakers gang member at the time of his arrest. Vehicle burglary is 

one of the primary activities of the gang. 

On March 30, 2009, officers made contact with Oregon when responding to a 

citizen calling that there had been a gang fight and providing a vehicle description. When 

officers stopped the vehicle, Oregon was inside it. 

On April 5, 2009, Oregon was arrested for charges related to automobile theft, 

which is one of the primary activities of the Varrio Bakers gang. At the time of his arrest, 

Oregon was wearing a hat with the letters KC on the front, which is an article of clothing

often worn by Varrio Bakers and southern gang members. 

On January 24, 2010, Oregon and two other active Varrio Bakers members—

Jaime Aguirre, Oregon’s codefendant in the instant case, and Joey Gonzales—were 

identified at the perpetrators of a home invasion-style robbery where shots were fired at 

the victim. The crime was also committed in Varrio Baker territory. 

On February 4, 2010, Oregon was arrested for grand theft auto. 

On April 13, 2010, at the time of his arrest for the current offenses, Oregon was 

driving a stolen vehicle. 
15.

Following Stratton’s description of Oregon’s previous contacts with law 

enforcement, Stratton summarized the bases for his opinion that Oregon was an active 

member of the Varrio Bakers gang as follows:

“The fact that he’s been contacted with Varrio Bakers gang members. He’s 

been contacted in Varrio Bakers territory. He’s been arrested for crimes 

that, in my opinion, are the primary activities committed by Varrio Bakers 

gang members. He’s been arrested in the company of Varrio Bakers gang 

members, committing primary activities. So based on all those factors, it’s 

my opinion that he is a Varrio Bakers gang member or was at least at the 

time of this offense.” 

After being presented with a hypothetical based on the February 20, 2010, 

incident, Stratton rendered the following opinions: 

“My opinion is that, based on the totality of the circumstances of 

everything you have advised in that hypothetical, that that crime, 

hypothetically, would be done in association with and for the benefit of the 

Varrio Bakers criminal street gang. [¶] ... [¶] 

“I based it on my experience as a gang investigator. And the things 

that I look at at this point would be the type of crimes that are in your 

hypothetical, the stolen vehicle, the firearms possession, the shooting, the 

area in which these crimes occur, as well as the presence of the gang 

members themselves. [¶] ... [¶]

“In my opinion, crimes like this enhance not only the individual 

gang member’s reputation for lawlessness and crime but the entire gang as 

a whole, that their reputations are enhanced not only amongst other gang 

members but amongst citizens as a whole. I believe that, again, firearms 

possession are used to advance the interests of the gang as well as in that 

stolen vehicles are also used to advance the interests of the gang; that those 

are used hand-in-hand to benefit and to associate with the Varrio Bakers.” 

B. Analysis

Under existing case law, the fact that Oregon, a member of the Varrio Bakers 

gang, committed the current offenses in the company of two other members of the same 

gang, supports an inference that his crimes were gang related. (See People v. Miranda

(2011) 192 Cal.App.4th 398, 412–413 [commission of crime accompanied by gang 
16.

members or associates supports inference defendant intended to benefit gang]; People v. 

Villalobos (2006) 145 Cal.App.4th 310, 322 [nongang member’s commission of crime in 

association with known gang member supports inference crime was gang related]; People 

v. Morales (2003) 112 Cal.App.4th 1176, 1198–1199 [commission of crime with fellow 

gang members supports inference crime was committed in association with gang].)

In challenging this conclusion, Oregon argues that, although the evidence was 

sufficient to establish that Aguirre and Perez were both members of the Varrio Bakers 

gang, it was insufficient to establish that he was a member of the gang at the time of the 

offenses in February 2010. In this regard, Oregon notes that he “did not have any gang 

tattoos, he had not previously been convicted and ordered to register as a gang member, 

... no gang roll call sheets containing [his] name or photographs showing [him] making 

any gang signs were introduced” and “[t]here was no evidence [he] at any time had 

actually claimed membership in the gang.” 

Despite Oregon’s contrary assertions, the gang expert’s testimony regarding his

numerous prior contacts with law enforcement was more than sufficient to support a 

finding that he was an active member of the Varrio Bakers gang at the time of the current 

offenses. As Oregon acknowledges, there was evidence that, on more than one occasion, 

he committed crimes with other members of the Varrio Bakers gang, including the 

commission of a robbery and shooting with Aguirre in January 2010, less than a month 

before the current incident, and that the crimes he committed were crimes constituting the 

gang’s primary activities.

For reasons already discussed, we also reject Oregon’s assertion that there was 

insufficient evidence he intended to aid and abet in the commission of the shooting 

offenses. That the evidence might also support an inference that Oregon had a personal 

motive in fleeing the police does not preclude, and the evidence supports, a finding he 

acted with the requisite intent to assist any criminal conduct of gang members.
17.

IV. Constitutionality of section 12022.53, subdivision (e)(1)

Oregon claims the firearm enhancement set forth in section 12022.53, subdivision 

(e)(1) violates equal protection because it punishes aiders and abettors of crimes 

committed for the benefit of street gangs more severely than aiders and abettors of crimes 

committed for the benefit of equally or more dangerous criminal associations such as “a 

racist hate group, an organized group of drug dealers” or “a terrorist organization.”9 We 

reject Oregon’s claim and agree with the opposite conclusion reached by the appellate 

court in People v. Hernandez (2005) 134 Cal.App.4th 474, 481–482 (Hernandez). 

As the Hernandez court explained, even assuming the groups Oregon identifies are 

similar enough to street gangs to trigger equal protection analysis, yet dissimilar enough 

to fall outside the broad definition of groups subject to enhanced punishment for street 

terrorism,10 the Legislature is not required to target all analogous evils at once. 

(Hernandez, supra, 134 Cal.App.4th at p. 482.) “It may direct its attention ‘“to those 

classes of cases where the need is deemed the clearest”’” (id. at p. 482, fn. omitted), 

which the Legislature reasonably could determine was street gang violence (ibid., citing 

 

9 Section 12022.53, subdivision (d) states: “Notwithstanding any other provision of law, 

any person who, in the commission of [murder, attempted murder, or other crimes] personally 

and intentionally discharges a firearm and proximately causes ... death, to any person other than 

an accomplice, shall be punished by an additional and consecutive term of imprisonment in the 

state prison for 25 years to life.” Subdivision (c) similarly provides for a 20-year enhancement 

for discharge of a firearm without ensuing injuries or death. Subdivision (e)(1) extends these 

penalty enhancements to aiders and abettors as follows: “The enhancements provided in this 

section shall apply to any person who is a principal in the commission of an offense if both of the 

following are pled and proved: [¶] (A) The person violated subdivision (b) of section 186.22 

[i.e., committed the offense for the benefit of a criminal street gang and with the specific intent to 

promote, further or assist in any criminal conduct by gang members]. [¶] (B) Any principal in 

the offense committed any act specified in subdivision (b), (c) or (d).” Under section 31 a 

“principal” includes not only those persons who directly commit the act but also those who “aid 

and abet in its commission.”

10 The Hernandez court observed that although the street terrorism legislation “was aimed at 

gangs such as the Bloods, the Crips and Southside Montebello (see § 186.21), a case could be 

made it also covers the White Knights of the Ku Klux Klan, the ‘Mexican Mafia,’ and AlQaeda.” (Hernandez, supra, 134 Cal.App.4th at p. 481, fn. 40.)
18.

homicide figures). Oregon contends the liberty interest at stake in avoiding a lengthy 

sentence enhancement requires review under the strict scrutiny standard, but a defendant 

“‘does not have a fundamental interest in a specific term of imprisonment or in the 

designation a particular crime receives.’” (People v. Wilkinson (2004) 33 Cal.4th 821, 

838 (Wilkinson).) Thus, the Legislature “‘is not prohibited by the equal protection clause 

from striking the evil where it is felt the most.’” (Hernandez, at p. 482, fn. omitted.) 

Citing People v. Olivas (1976) 17 Cal.3d 236 (Olivas), Oregon argues that we 

should not adopt the rational basis test endorsed by Hernandez, supra, 134 Cal.App.4th 

474. Oregon’s argument is contrary to law. In Wilkinson, supra, 33 Cal.4th 821, the 

California Supreme Court held that the statutory scheme governing the offense of battery 

on a custodial officer did not violate equal protection principles. (Id. at pp. 838–841.) In 

reaching its conclusion, the court rejected the defendant’s argument that strict scrutiny 

was required according to Olivas, a case involving an equal protection challenge to a 

statute which gave the trial court discretion to commit a defendant, convicted as an adult 

and between the ages of 16 and 21, to the California Youth Authority for a longer term 

than the defendant would have received if he or she had been sentenced as an adult. (See 

Wilkinson, at p. 837.) 

The Wilkinson court concluded that Olivas did not stand for the proposition that 

strict scrutiny is required for an equal protection challenge on the grounds a penal statute 

authorizes different sentences for comparable offenses. The court explained that Olivas

“‘requires only that the boundaries between the adult and juvenile criminal justice 

systems be rigorously maintained. We do not read Olivas as requiring the courts to 

subject all criminal classifications to strict scrutiny requiring the showing of a compelling 

state interest therefor.’ [Citation.] Other courts similarly have concluded that a broad 

reading of Olivas, as advocated by [appellant] here, would ‘intrude[] too heavily on the 

police power and the Legislature’s prerogative to set criminal justice policy.’” 

(Wilkinson, supra, 33 Cal.4th at pp. 837–838, first & second bracketed insertions added.) 
19.

Accordingly, the rational basis test applied in Hernandez is applicable and results in the 

conclusion that section 12022.53, subdivision (e)(1) does not violate equal protection 

principles.

V. Double jeopardy

Oregon contends, and the People concede, the trial court violated the state 

constitutional prohibition against double jeopardy by imposing a longer prison sentence 

and greater fines under sections 1202.4 and 1202.45 on resentencing. We agree.

“When a defendant successfully appeals a criminal conviction, California’s 

constitutional prohibition against double jeopardy precludes the imposition of more 

severe punishment on resentencing.” (People v. Hanson (2000) 23 Cal.4th 355, 357.) A 

statutorily mandated fine constitutes punishment and, therefore, comes within the double 

jeopardy principle prohibiting the imposition of harsher punishment following a 

defendant’s successful appeal. (Ibid.)

On resentencing, Oregon received a total prison term of 80 years to life, which 

was one year longer than the total term of 79 years to life previously imposed prior to his 

successful appeal. We accept the remedy agreed upon by the parties of modifying the 

judgment by striking the one-year section 667.5, subdivision (b) enhancement imposed 

by the trial court, which will reduce his total prison term to 79 years to life.11 We will 

further modify the judgment by reducing the restitution and parole revocation restitution 

fines from $280 to $200 each.

 

11 As Oregon points out, and the People do not dispute, it appears the trial court improperly 

conducted a bench trial on the previously stricken prior prison term allegations on remand. 

However, we find it unnecessary to strike the court’s true findings on the allegations because 

only one section 667.5, subdivision (b) enhancement, which we have ordered stricken, was 

imposed and the abstract of judgment states that stricken enhancements are otherwise not listed. 

Therefore, striking the court’s true findings on enhancements not appearing in the abstract of 

judgment would make no practical difference.
20.

DISPOSITION

The judgment is modified by (1) striking the one-year Penal Code section 667.5, 

subdivision (b) enhancement, (2) reducing the Penal Code section 1202.4 restitution fine 

from $280 to $200, and (3) reducing the Penal Code section 1202.45 parole revocation 

restitution fine from $280 to $200, the latter of which is stayed pending Oregon’s 

successful completion of parole. The trial court is directed to prepare an amended 

abstract of judgment that reflects Oregon’s modified sentence and to forward a copy of 

that amended abstract of judgment to the appropriate authorities.

The judgment is affirmed in all other respects.

_____________________

HILL, P.J.

WE CONCUR:

_____________________

GOMES, J.

_____________________

POOCHIGIAN, J.