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Filed 11/3/22 P. v. Barocio CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

MIGUEL BAROCIO,

Defendant and Appellant.

 B317635

 (Los Angeles County

 Super. Ct. No. BA482590)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Eleanor J. Hunter, Judge. Affirmed and 

remanded with directions.

Waldemar D. Halka, under appointment by the Court of 

Appeal, for Defendant and Appellant. 
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Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Noah P. Hill and Kathy S. Pomerantz, Deputy 

Attorneys General, for Plaintiff and Respondent.

* * * * * *

A jury convicted Miguel Barocio (defendant) of first degree 

murder after he drove to rival gang territory and gunned down a 

pedestrian walking his bicycle across the street. On appeal, 

defendant raises a number of instructional, procedural, and 

sentencing issues. Because defendant has not shown any 

prejudicial error, we affirm his convictions. However, because 

the law regarding sentencing changed while this case was on 

appeal, we remand for resentencing.

FACTS AND PROCEEDURAL BACKGROUND

I. Facts

Defendant and Eddie Hernandez are members of the 

Florencia 13 street gang. Just after midnight on November 7, 

2019, Hernandez drove them both into the territory controlled by 

the 38th Street gang, one of Florencia 13’s rivals. Defendant 

brought his .22-Ruger semiautomatic handgun, which was loaded 

with bullets stamped with the letter “F” for Florencia. They saw 

Jorge Rios, who was walking down the sidewalk with his bicycle. 

After passing Rios, Hernandez pulled to the side of the road and 

turned off his truck’s headlights. Defendant got out of the 

passenger’s side and confronted Rios. Moments later, defendant 

shot Rios once in the mouth. Rios turned to flee, and defendant 

shot Rios three more times in the back. Hernandez pulled the car 

around, defendant got in, and they drove away.

The entire incident was caught on video. 
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Later the same day, defendant was arrested while in 

possession of a .22-Ruger containing a bullet casing stamped with 

the letter “F” that had failed to properly eject after the gun was 

fired. The bullet casings recovered near Rios’s body were 

consistent with those from the gun in defendant’s possession.

In a postarrest interview, defendant admitted to the police 

that he shot Rios, but said that Rios lifted his shirt to reveal a 

gun tucked into the waistband of his pants. The video does not 

show this. 

To an undercover jail informant, defendant admitted that 

he brought his .22-Ruger with him into the rival gang territory, 

that Rios “had” a gun under his shirt “but didn’t get to use it,” 

that he shot Rios in the mouth and then emptied his clip into 

Rios’s back, and that he would tell the police that he knew 

nothing about the incident until they proved he was involved and 

would then tell them that he acted in self-defense because Rios 

was reaching for the gun in his waistband. There was no gun 

recovered at the scene; there was only a machete, which was still 

tied to the frame of Rios’s bicycle.

II. Procedural Background

In the operative first amended information, the People 

charged defendant with (1) the murder of Rios (Pen. Code, § 187, 

subd. (a)),1 and (2) being a felon in possession of a firearm (§ 

29800, subd. (a)(1)).2 The People alleged that defendant 

committed both crimes “for the benefit of, at the direction of, and 

1 All statutory references are to the Penal Code unless 

otherwise indicated.

2 The People also charged Hernandez with murder, but he 

was tried on a theory that he aided and abetted defendant, and 

the jury acquitted him.
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in association with a criminal street gang” (§ 186.22, subd. 

(b)(1)(C), (b)(1)(A).) As to the murder count, the People also 

alleged that defendant “personally and intentionally discharged a 

firearm . . . caus[ing] great bodily injury . . . or death” (§ 

12022.53, subd. (d)) and that a principal to the crime had done 

the same (id., subds. (d) & (e)(1)). 

At trial, defendant conceded that he shot Rios. 

The trial court instructed the jury on the distinction between first 

and second degree murder, instructed on perfect and imperfect 

self-defense, and instructed that a defendant loses the right to 

claim self-defense if he is the “initial aggressor” unless he tries to 

stop the fighting.

The jury convicted defendant of first degree murder, found 

the gang and firearm enhancements true, and found him guilty of 

being a felon in possession. 

The trial court sentenced defendant to prison for 50 years 

to life, comprised of a base sentence of 25 years to life for the first

degree murder count plus a consecutive 25 years to life for the 

firearm enhancement. The court imposed a concurrent, upper 

term sentence of three years on the felon-in-possession count.

Defendant filed this timely appeal.

DISCUSSION

I. Instructional Issues

Defendant argues that the trial court made two 

instructional errors. We independently review such claims. 

(People v. Mataele (2022) 13 Cal.5th 372, 419.)

A. Initial aggressor instruction

After instructing the jury on perfect and imperfect selfdefense, the trial court gave the following instruction based on 

CALCRIM No. 3471:
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“3471. Right to Self-Defense: Mutual Combat or Initial 

Aggressor

“A person who starts a fight has a right to self-defense only

if:

1. He actually and in good faith tried to stop fighting;

AND

2. He indicated, by word or by conduct, to his opponent, in 

a way that a reasonable person would understand, that he 

wanted to stop fighting and that he had stopped fighting.

If a defendant meets these requirements, he then had a right to 

self-defense if the opponent continued to fight.”

Defendant argues that his first degree murder conviction 

must be vacated because the trial court erred in giving this 

instruction. Specifically, he argues that (1) there was no 

evidentiary basis for finding that he was the initial aggressor, 

and (2) the trial court left the words “mutual combat” in the title 

of the instruction, even though the court did not instruct on 

“mutual combat” as a bar to the use of self-defense.3 Neither 

argument has merit.

The court did not err in giving the initial aggressor 

instruction. A trial court has a duty to instruct only if 

substantial evidence supports the instruction at issue. (People v. 

Villanueva (2008) 169 Cal.App.4th 41, 49.) In evaluating 

whether substantial evidence supports a defense, we ask whether 

the evidence presented at trial, when viewed in the light most 

3 Defendant argued in his opening brief that the court had 

instructed on “mutual combat” but failed to define the term, but 

after the People pointed out that the court had not instructed on 

“mutual combat” and merely left the words “mutual combat” in 

the title of the instruction, defendant backed away from his 

initial argument.
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favorable to the defense, is enough for a reasonable jury to find 

that the elements of the defense have been established. (People 

v. Breverman (1998) 19 Cal.4th 142, 159; People v. Mentch (2008) 

45 Cal.4th 274, 290.) In evaluating whether substantial evidence 

supports a limitation on a defense (such as being the initial 

aggressor), we view the record in the light most favorable to the

People, as we would any other issue on which the People would 

be seeking an instruction. (See People v. Ross (2007) 155 

Cal.App.4th 1033, 1050, citing Jackson v. Virginia (1979) 443 

U.S. 307, 318-319.) Because the propriety of the “initial 

aggressor” instruction turns on whether defendant “start[ed] a 

fight” (CALCRIM No. 3471 [so defining the term]), we must ask: 

Is there substantial evidence, when viewing the evidence in the 

light most favorable to the verdict, that defendant started a fight 

with Rios? There is. Defendant drove by Rios in a car, then the 

car stopped, defendant got out, and defendant walked right up to 

Rios with a .22-Ruger in hand. A jury could reasonably infer that 

this type of aggressive approach constitutes starting a fight, 

thereby warranting the initial aggressor instruction. Defendant 

resists this conclusion, asserting that it is “completely unknown 

what happened at the scene right before the shooting”; however, 

the video shows the entire interaction, and is sufficient to support 

a finding that defendant started the melee between himself and 

Rios.

The court also did not err in failing to delete the words 

“mutual combat” from the title of the instruction. It is 

undisputed that the court did not instruct on the substance of 

mutual combat as a limitation on self-defense; what we have is 

superfluous language in the title that is never explained. This is 

not reversible error in the absence of “affirmative evidence 
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showing” that the jury somehow misused this language. (People 

v. Ortiz (2012) 208 Cal.App.4th 1354, 1370; People v. Staten 

(2000) 24 Cal.4th 434, 459, fn. 7 [failure to omit language from 

instruction title not prejudicial error].) There is no such evidence 

here. Although the prosecutor mentioned “mutual combat” in his 

closing argument, it was merely to argue that it did not apply 

here. Even if we were to assume that this argument somehow 

put the “mutual combat” limitation before the jury despite the 

absence of an instruction on it, the instruction is at most 

irrelevant—and hence not prejudicial. (People v. Cross (2008) 45 

Cal.4th 58, 67 [“Giving an instruction that is correct as to the law 

but irrelevant or inapplicable is error . . . [but] is generally ‘“only 

a technical error which does not constitute ground for 

reversal.”’”].) 

B. Unity of act and intent

The trial court instructed the jury with CALCRIM No. 252 

as follows:

“The crimes and other allegation charged in this case 

require proof of the union, or joint operation, of act and wrongful 

intent.

“The following crime requires general criminal intent: felon 

in possession of a firearm, as charged in Count 2. For you to find 

a person guilty of this crime, that person must not only commit 

the prohibited act, but must do so with wrongful intent. A person 

acts with wrongful intent when he intentionally does a prohibited 

act; however, it is not required that he intend to break the law.

The act required is explained in the instruction for that crime.

“The following crime and allegations require a specific 

intent or mental state: murder, as charged in Count 1, and the 

gun and gang allegations. For you to find a person guilty of this 
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crime or to find the allegations true, that person must not only 

intentionally commit the prohibited act but must do so with a 

specific intent and mental state. The act and the specific intent 

and mental state required are explained in the instruction for 

that crime or allegations.”

Defendant argues that this instruction is defective because 

the court did not list “deliberation and premeditation”—the 

intent necessary to find him guilty of first degree murder—as a 

“specific intent” in this instruction. This argument is without 

merit. This instruction lists which “crimes” and “allegations” 

require “general criminal intent” and which require “specific 

intent or mental state.” The instruction properly lists “murder” 

among the crimes requiring “specific intent or mental state.” The 

instruction’s failure to list the various types of specific intent that 

define murder (express malice and implied malice) or that 

distinguish first degree murder from second degree murder (such 

as premeditation and deliberation) is in no way misleading in 

light of CALCRIM No. 252’s explicit entreaty that “[t]he act and 

the specific intent and mental state required are explained in the 

instruction for the crime or allegations.” (Italics added.) (Cf. 

People v. Hill (1967) 67 Cal.2d 105, 117-119 [trial court errs when 

it gives a general intent instruction when the only charged crimes 

are specific intent].)

II. Bifurcation

The trial court tried the murder charge and the gang 

enhancement allegation (§ 186.22, subd. (b)) in the same 

proceeding. Although the court had the discretion to bifurcate 

trial on the gang enhancement, defendant never asked the court 

to exercise that discretion. Defendant now claims that the trial 

court’s failure to bifurcate on its own is reversible error under the 
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newly enacted section 1109, which requires trial courts to 

bifurcate gang enhancements charged under § 186.22, 

subdivision (b), “[i]f requested by the defense.” (§ 1109, subd. (a), 

added by Stats. 2021, ch. 699, § 5). The People respond that 

defendant has forfeited the right to claim nonbifurcation as error 

by not requesting it when he could have; that section 1109 is not 

retroactive; and that the failure to bifurcate was harmless 

because nearly all of the evidence underlying the gang allegation 

was also admissible to prove his motive—and hence his intent—

for the murder charge.

We need not decide whether there was a forfeiture, and we 

need not join the fray regarding the retroactivity of section 1109 

because we conclude the trial court’s failure to bifurcate was 

harmless beyond a reasonable doubt. We recognize that People v. 

Burgos (2022) 77 Cal.App.5th 550, 568 (Burgos) held that the 

failure to bifurcate “likely constitutes ‘structural error’” that is 

per se reversible because bifurcation “‘“affect[s] the framework 

within which the trial proceeds,”’” but we disagree with Burgos

on this point: Every other court to consider the matter has found 

that the failure to bifurcate a gang allegation can be harmless 

error, at least where—as here—the question is whether the 

admission of the gang-related evidence would have come in 

anyway to prove issues relevant to the underlying charges. 

(People v. Ramos (2022) 77 Cal.App.5th 1116, 1131-1133 [so 

holding]; People v. Montano (2022) 80 Cal.App.5th 82, 108-109 

[same].) Given the constitutional mandate only to reverse where 

there is a “miscarriage of justice” (Cal. Const., art. VI, § 13), and 

given that we are tasked here with examining the impact of the 

allegedly erroneous admission of evidence on a trial (which is the 
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archetypical trial error (and hence not a structural error)), we 

join the emerging majority rule. 

The failure to bifurcate the gang allegation in this case was 

harmless (either under Chapman v. California (1967) 386 U.S. 

18, 24 or People v. Watson (1956) 46 Cal.2d 818, 836-837) because 

evidence of defendant’s membership in Florencia 13, its rivalry 

with the 38th Street gang, the significance of the locale of the 

shooting, and the fact that defendant used bullets stamped with 

his gang’s initial, all would have been admitted at his trial on the 

murder charge because the evidence was relevant to show his 

motive for gunning down Rios in his rival gang’s territory, which 

tends to prove defendant’s intent to kill, defendant’s deliberation 

and premeditation, and his potential need for self-defense. 

(Accord, People v. Hernandez (2004) 33 Cal.4th 1040, 1049-1050 

[bifurcation unnecessary where “the evidence supporting the 

gang enhancement would be admissible at a trial of guilt”].) 

What is more, because defendant freely admitted that he was the 

shooter, there was no danger that the jury identified him as the 

shooter merely because of his gang membership. Indeed, the trial 

court specifically instructed the jury that the “evidence of gang 

activity” was admissible “only for the limited purposes” of 

deciding defendant’s intent supporting the gang enhancement, 

his motive, and his subjective belief in the need for self-defense, 

and not admissible “for any other purpose.” To be sure, some 

portions of the People’s gang evidence would not have come in 

during defendant’s murder trial, such as the fact that other gang 

members committed predicate crimes. But that evidence was far 

less significant and so far removed from the main issues at 

trial—whether defendant acted in self-defense and whether he 

acted with premeditation and deliberation—that we are 
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convinced that its admission was harmless beyond a reasonable 

doubt.

III. Cumulative Error

Defendant argues that the instructional errors he asserts 

as well as the failure to bifurcate cumulatively undermine his 

murder conviction. Because we conclude that the trial court 

committed no prejudicial error, there is no error to cumulate. 

(People v. Carpenter (1999) 21 Cal.4th 1016, 1064.)

IV. Sentencing Issues

A. Firearm enhancement

At sentencing, defendant asked the trial court to exercise 

its discretion to strike the 25-year-to-life firearm enhancement 

entirely, or to impose either of the lesser 20-year or 10-year 

enhancements available under the statute. At that time, the 

Courts of Appeal were split over whether the trial court’s 

discretion to strike this enhancement permitted it to impose a 

lesser enhancement. In People v. Tirado (2021) 12 Cal.5th 688, 

our Supreme Court clarified that trial courts do have the 

discretion to impose either of the lesser firearm enhancements. 

(Id. at p. 692.) Defendant urges that the trial court’s denial of his 

request to strike the enhancement may have been based on the 

view that it lacked the power to impose a lesser enhancement, 

and that a remand is warranted to permit the court to exercise 

the full range of its discretion.

Although a remand is appropriate for a trial court to 

exercise its sentencing discretion when it is clear that the court 

during a prior sentencing did not appreciate the full extent of its 

discretion (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391), 

remand is not warranted if the trial court’s statements at the 

prior sentencing “clearly indicate” that it would not exercise its 
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discretion any differently on remand (People v. McDaniels (2018) 

22 Cal.App.5th 420, 425). That is the case here. In denying 

defendant’s request to strike the firearm enhancement, the trial 

court remarked that defendant’s conduct in “rid[ing] up on [Rios]” 

was a “cold-blooded” “execut[ion of] an innocent person”; that 

defendant committed this “execution” as part of a mission for his 

gang; and that he is a “grown man” in his 30s who “wears” his 

gang membership “proudly.” In the court’s view, this rendered 

defendant “a danger to all humanity.” The court concluded that 

it did “not find that it would be in the interest of justice in any 

way, shape, or form . . . to exercise its discretion to strike” the 

firearm enhancement. These comments constitute a clear 

indication that the result of any remand to give the trial court a 

chance to reduce the 25-year enhancement to something lesser is 

a foregone conclusion.

B. Challenge to restitution fine, assessments, and 

direct restitution

At sentencing, the trial court imposed direct restitution in a 

stipulated amount of $5,162.61; a $5,000 restitution fine; a $40 

court security fee4; and a $60 criminal conviction assessment. 

Although People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) 

had been on the books for nearly two years, defendant did not 

4 Section 1465.8 requires a $40 court operations assessment 

to be imposed on every criminal conviction. (§ 1465.8, subd. (a).) 

Defendant was convicted on two counts, therefore the correct 

assessment is $80, not $40. We may correct a trial court's failure 

to impose a mandatory fee on appeal. (People v. 

Castellanos (2009) 175 Cal.App.4th 1524, 1530.) We order the 

clerk of the superior court to prepare an amended abstract of 

judgment that reflects a total of $80 in court security fees. 

(People v. Chan (2005) 128 Cal.App.4th 408, 425-426.)
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invoke Dueñas to ask the trial court to determine whether he had 

the ability to pay any of these financial obligations. Defendant 

now contends this was error.

We reject defendant’s contention for two reasons. First, 

defendant forfeited the issue by failing to raise it. (People v. 

Speight (2014) 227 Cal.App.4th 1229, 1248-1249.) Second, we 

have held that Dueñas was wrongly decided. (People v. Hicks

(2019) 40 Cal.App.5th 320, 322, review granted Nov. 26, 2019, 

S258946.) The propriety of Dueñas is currently before our 

Supreme Court. Third, a remand for a hearing on ability to pay 

would be futile. Dueñas does not apply to direct restitution 

awards (Dueñas, supra, 30 Cal.App.5th at p. 1169 [distinguishing 

restitution fines from direct restitution and clarifying that direct 

restitution was “not at issue”]; People v. Allen (2019) 41 

Cal.App.5th 312, 326), so the full amount defendant must pay is 

$5,140. A defendant's ability to pay includes “the defendant's 

ability to obtain prison wages and to earn money after his release 

from custody.” (People v. Hennessey (1995) 37 Cal.App.4th 1830, 

1837; People v. Gentry (1994) 28 Cal.App.4th 1374, 1376-1377.) 

Prisoners earn wages of at least $12 per month. (Cal. Code 

Regs., tit. 15, § 3041.2, subd. (a); Cal. Dept. of Corrections, 

Operations Manual, §§ 51120.6, 51121.10 (Jan. 1, 2020).) At 

even this minimum rate, defendant will have enough to pay the 

$5,140 he owes after 429 months (that is, 35 years and 9 months), 

which is long before his 50-year sentence would end. Even if 

defendant does not voluntarily use his wages to pay the amounts 

due, the state may garnish between 20 and 50 percent of those 

wages to pay the restitution fine. (§ 2085.5, subds. (a) & (c); 

People v. Ellis (2019) 31 Cal.App.5th 1090, 1093.) Because 

defendant “points to no evidence in the record supporting his 
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inability to pay” (People v. Gamache (2010) 48 Cal.4th 347, 409), 

and hence no evidence that he would suffer any consequence for 

nonpayment, a remand on this issue would serve no purpose.

C. Sentence for being a felon in possession

The trial court imposed a high-term sentence of three years 

for the felon-in-possession count. Although this was appropriate 

at the time, our Legislature has since enacted Senate Bill No. 

567, which requires imposition of the middle-term sentence 

unless the trial court cites circumstances in aggravation (other 

than certified records of the defendant’s prior convictions) that 

are found by a jury or admitted by the defendant. (§ 1170, subd. 

(b)(3).) Because this ameliorative law applies to nonfinal 

sentences, and because the trial court (understandably) did not 

articulate any circumstances in aggravation, the trial court’s 

high-term sentence must be vacated so that defendant may be 

resentenced in accordance with Senate Bill No. 567’s terms. 

(People v. Jones (2022) 79 Cal.App.5th 37, 44; People v. Garcia

(2022) 76 Cal.App.5th 887, 902.)

D. Gang enhancement and gang-related firearm 

enhancement

The firearm enhancement the trial court imposed was 

based on defendant’s personal discharge of a firearm. Although 

the jury also found true the gang enhancement as well as the 

gang-related firearm enhancement based on a principal’s 

discharge of a firearm, the trial court did not factor the latter two 

enhancements into defendant’s sentence, and instead dismissed 

them without prejudice. In supplemental briefing, defendant 

argues that this was error and that in light of statutory changes 

to the gang enhancement, the trial court was obligated to dismiss 

those enhancements with prejudice. Specifically, defendant 
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argues that a recent decision by our Supreme Court, People v. 

Renteria (2022) 13 Cal.5th 951 (Renteria) more specifically 

defined how to apply the gang enhancement when the defendant 

is a “lone actor”; that defendant was a “lone actor” in this case; 

that the evidence adduced at trial does not constitute substantial 

evidence of the elements of the gang enhancement under 

Renteria’s “lone actor” standard; and that the People are 

accordingly barred from retrying defendant on these 

enhancements, thereby necessitating that they be dismissed 

without prejudice.

We are not persuaded. 

To begin, this is not a “lone actor” case. Renteria involved a 

gang member defendant who fired off two gunshots at two houses 

in a neighborhood. (Renteria, supra, 13 Cal.5th 951, 957-958.) 

No other gang members were involved at all. Thus, he was a 

“lone actor.” Defendant was not a lone actor. Instead, he had a 

cohort who was also a gang member. That cohort drove him into 

rival gang territory, pulled the car over, waited for defendant, 

and then drove off after defendant emptied his gun into Rios. 

Defendant resists this conclusion, arguing that Hernandez’s 

acquittal somehow means defendant was a lone actor. But 

Hernandez’s acquittal of murder does not mean that the 

undisputed evidence of Hernandez’s gang membership or his 

conduct in this case somehow ceases to exist. Defendant 

responds that Hernandez’s acquittal necessarily relies on the 

jury’s rejection of his gang membership or what he did. Given 

that the jury’s verdict was a general verdict, we cannot draw the 

inference defendant urges as the acquittal could—and most likely 

did—rest on Hernandez’s lack of murderous intent. (United 

States v. Watts (1997) 519 U.S. 148, 155 [unless specific findings 
16

are made, “the jury cannot be said to have ‘necessarily rejected’ 

any facts when it returns a general verdict of not guilty”]; In re 

Coley (2012) 55 Cal.4th 524, 554 [acquittal “does not constitute a 

finding that the defendant is factually innocent of the offense or 

establish that any or all of the specific elements of the offense are 

not true”], original italics.) 

And even if we were to ignore all of these facts and treat 

this case as a “lone actor” fact pattern, there is still more than 

substantial evidence that defendant acted with the intent to 

benefit his gang and engaged in conduct that benefited his gang. 

Defendant urges that there is no evidence he “intended his 

actions to be attributed to his gang” or “identified himself or his 

gang during the shooting or took credit for it on behalf of his gang 

afterwards.” But the record is to the contrary. Defendant drove 

into his rival gang’s territory, accosted someone walking along 

the street in view of anyone who happened to walk by, and 

without provocation shot him dead using bullets stamped with 

his gang’s initial. From this conduct, a jury could reasonably 

infer that defendant was on a “gang” mission to intimidate his 

rival gang by entering its territory and committing an act of 

violence as a warning, leaving the gang-initial-stamped bullets as 

a calling card. This is not like Renteria, where the defendant—

who happened to be a gang member—shot at two random houses.
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DISPOSITION

The judgment of conviction is affirmed. The matter is 

remanded for a new sentencing hearing to allow the superior 

court the opportunity to resentence in accordance with Senate 

Bill No. 567. Following resentencing, the superior court is 

directed to prepare and transmit an abstract of judgment to the 

Department of Corrections and Rehabilitation, which shall 

include $80 in court security fees (rather than $40).

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.

HOFFSTADT

We concur:

_________________________, P. J.

LUI

_________________________, J.

ASHMANN-GERST