1

Filed 9/30/22 P. v. Hernandez CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or 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

THIRD APPELLATE DISTRICT

(Yolo)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

RICKY GOMEZ HERNANDEZ et al.,

Defendants and Appellants.

C088237

(Super. Ct. No. CRF171795 )

Defendants Ricky Gomez Hernandez and Joshua Armond Cadenaz (defendants)1

were convicted of various crimes and numerous enhancements were found true related to a 

string of armed robberies they committed between the late-evening hours of October 18, 

2016, and early-morning hours of the following day.

2

 Among defendants’ many 

1

Joshua Armond Cadenaz-Lopez indicated at the start of trial he goes by the last name 

Cadenaz. Pursuant to his preference, we will refer to him by that last name.

2 Subsequent date references are to 2016.
2

convictions and enhancements, the jury found defendants guilty of several participation in a 

criminal street gang offenses (participation offenses) and found true numerous gang 

enhancements. Following defendants’ sentencing, the laws have changed regarding the 

evidentiary showing necessary and the procedure required to convict them of the

participation offenses and to find the gang-related enhancements true. (Assembly Bill No. 

333 (2021-2022 Reg. Sess.; Stats. 2021, ch. 699.) The People and defendants agree the new 

law applies retroactively to defendantssuch that their case must be remanded for retrial of 

the participation offenses and gang-related enhancements. We agree and remand 

accordingly. 

Defendantsfurther contend retrial of the participation offenses and gang 

enhancements is prohibited because insufficient evidence was presented under the prior 

gang statute to prove the Broderick Boys was a criminal street gang and they acted with the 

specific intent to benefit the Broderick Boys. In this vein, Hernandez also contends his 

conviction for the participation offense predicated on his misdemeanor exhibition of a 

firearm conviction is not supported by sufficient evidence. We agree with Hernandez that 

there was insufficient evidence supporting one of his participation offenses but disagree 

with both defendants that there was insufficient evidence supporting the participation 

offenses and gang-related enhancements under the former gang statute. 

As to defendants’ other claims, they contend reversal is required because they were 

prejudiced by having their substantive charges heard alongside evidence of the gang 

involvement. Defendants raise various other claims pertaining to the trial court’s 

evidentiary rulings and instructions. We conclude some of defendants’ evidentiary 

contentions are moot considering the case must be remanded for retrial on the participation 

offenses and gang-related enhancements and the rest of the contentions fail to demonstrate 

prejudicial error. Finally, we need not address defendants’ various sentencing claims of 

error because those claims can be addressed by the trial court upon remand and potential 

retrial of the matter. 
3

FACTUAL AND PROCEDURAL BACKGROUND

I

The Crimes And Investigation

Between the evening hours of October 18 and the early-morning hours of October 19, 

defendants, along with N. L.,

3 committed a series of robberies that were caught on 

surveillance cameras. Cadenaz and N. L. are half brothers and step siblings to Hernandez’s 

wife. At the time of the crimes, Hernandez was 19 years old, Cadenaz was 20 years old, and 

N. L. was a minor. 

Defendants’ crime spree started after nightfall, at approximately 7:00 p.m., at a 

convenience store in West Sacramento. Hernandez and N. L. arrived in a white or beige 

sedan and parked in a vacant parking lot next to the convenience store. An employee of the 

store thought this behavior was odd and took notice of Hernandez such that the employee

was able to identify Hernandez at trial. Hernandez and N. L. got out of the car and walked 

to the convenience store -- Hernandez wore a black shirt and hooded jacket and N. L. wore a 

red shirt. Hernandez had a few distinctive features about him caught on surveillance 

footage: a ponytail, black shoes with white soles, and a white belt. 

Hernandez and N. L. spent some time in the store but soon left. The employee

followed them out the door and watched them walk to their car. While walking to the car, 

Hernandez turned toward the employee and lifted his shirt to reveal a silver gun with a 

wooden handle tucked in his waistband. While revealing the gun, Hernandez said, “want a 

piece of this[?]” Hernandez and N. L. got in the car and sped away. Multiple witnesses

heard gunshots ring out when the car left the parking lot. 

3 N. L. was a minor at the time of the crimes and thus we will refer to him by his 

initials. (Cal. Rules of Court, rules 8.90 & 8.401.) 
4

At 10:14 p.m., a red-light camera in Citrus Heights took a photo of a gold sedan

occupied by Hernandez and Alec J. running a red light. Records showed Hernandez’s wife

owned the gold sedan. 

At approximately 12:30 a.m., a blue sedan parked in a parking lot near a convenience 

store in Sacramento. Surveillance cameras recorded two men, each dressed in a black 

hooded jacket with a white and black bandana face covering, approach the convenience 

store. One of the men wore black shorts and green gloves and possessed a black 

semiautomatic handgun, while the other wore a single gray glove and possessed a gun. The 

men kicked down the glass night-security doors to the convenience store and then one of 

them jumped over the counter and took about $30 worth of Zig-Zag cigar wraps and 

Swisher Sweets cigars. 

A little after 1:00 a.m. on October 19, three men were recorded on surveillance 

footage entering a Denny’s restaurant in West Sacramento; the men were wearing hooded 

jackets and masks and holding guns. One of the men was dressed in long black shorts, 

black shoes, and a gray tank top under his jacket. He went to a table of three guests and 

demanded money from them while pointing a semiautomatic handgun at them. Another 

man, dressed in blue washed jeans, went to the kitchen and forced the line cook to get on the 

ground while pointing a revolver at him. And the third man, wearing black shoes with white 

soles, forced an employee to empty the cash register. 

Five to 10 minutes later, the West Sacramento Police officers who were responding 

to the Denny’s robbery were called to a robbery at a convenience store across town. The 

clerk at that convenience store was working behind the counter when three masked men 

with guns came into the store. One of the men pointed a gun at the clerk and demanded he 

open the register. The clerk complied. The men took money and cigarettes from the store. 

Surveillance footage showed three people walking in front of the store and the same three 

people running in the opposite direction carrying several items seconds later. One person 
5

had a ponytail and another was wearing long black shorts. The men left behind a footprint 

and a glove. 

At approximately 2:00 a.m. on October 19, three men ran into a convenience store in 

Sacramento. They were dressed in black-hooded jackets, wore masks, and possessed guns. 

One man wore green gloves and long black shorts. A second man wore black shoes with 

white soles, a white tank top, a red bandana over his face, and a single gray glove. The first 

and second man jumped over the counter and took various items. Meanwhile, a third man 

stood by the front door pointing his revolver at a customer and demanding the customer

“empty [his] pockets.” The man pointing the revolver wore blue washed jeans and a red 

shirt poking from the bottom of his black hooded jacket. 

Defendants were arrested with J. B. and N. L. on October 20 at 6 p.m. during a 

felony traffic stop of a gray truck owned by J. B. Minutes before being stopped, defendants 

were seen with N. L. in a gold sedan driving into an apartment complex. J. B. was close 

behind them in his gray truck. Once in the parking lot, the two cars parked next to each 

other. Cadenaz got out of the car holding a red rag wrapped around a handgun and wearing 

a red hat. Hernandez got out of the car with a silver handgun concealed in the waistband of 

his pants. N. L. was seen holding a box of Swisher Sweets cigars, and J. B. was seen with a 

red belt and another box of Swisher Sweets cigars. The group transferred items from the 

gold sedan to the gray truck and covered the gold sedan with a car cover. Before leaving the 

parking lot, J. B. checked the taillights of the truck, as if he were making sure they 

functioned properly. In the surveillance footage from the apartment complex, Hernandez is 

seen wearing black shoes with white soles, similar to a suspect in the surveillance footage 

from the robberies, as well as the same ponytail hairstyle worn by that suspect. 

Following defendants’ arrests, officers searched the gray truck and found two loaded 

handguns -- a .38-caliber silver revolver with a wooden handle and a nine-millimeter black 

semiautomatic pistol. They also found a red bag with white polka dots containing 

Cadenaz’s driver’s license, multiple jars holding a total of 539 grams of marijuana, and the 
6

key to a blue sedan. Also in the cab of the truck was a digital scale. In the bed of the truck 

was a dark duffle bag full of items, including a black replica gun, similar in appearance to a 

nine-millimeter handgun. Separate from the duffle back was a large box filled with Swisher 

Sweets cigars. 

During a recorded conversation among defendants, J. B., and N. L. in an interview 

room at the police station after their arrests, the group sounded resigned to the fact they 

were going to go to jail or prison. They repeatedly warned each other not to talk to the 

police and assured each other they would not do so. They also revealed the location of the 

blue sedan and Hernandez admitted to possessing a bullet to a .38-caliber revolver. 

Throughout their time together, Hernandez could be heard calling the other men his loved 

ones. During Cadenaz’s isolated interview with an officer, he took responsibility for the 

marijuana found in the polka dot bag in the gray truck. After being told he was arrested for 

robbery, and before any other details were revealed, Cadenaz claimed he had not gone into a 

store that night. 

During the search of the blue sedan owned by Cadenaz’s girlfriend, officers found 

two packs of Swisher Sweets cigars sitting outside the passenger side door. In a search of 

the gold sedan owned by Hernandez’s wife, officers found packs of Swisher Sweets cigars, 

Zig-Zag cigar wraps, and a camouflage backpack containing one gray glove and a pair of 

black gloves. Behind the passenger seat of the gold sedan, a speaker had been removed and 

inside the hole was a green glove. 

During a search of Cadenaz’s phone, officers found photos taken on October 18 of 

Cadenaz wearing green gloves and holding a black handgun similar to the nine-millimeter 

handgun recovered from the traffic stop and seen on surveillance footage. In a video taken 

before the robberies, Cadenaz is depicted holding a black handgun. In a video taken after 

the robberies, Cadenaz is depicted loading a gun magazine. On N. L.’s phone was a picture 

of him wearing blue washed jeans similar to the jeans worn by one of the men in 

surveillance footage of the robberies. 
7

During a search of Hernandez’s home, where officers believed Cadenaz and N. L. 

were also staying, officers found two hooded black jackets, black gloves, one black and gray 

glove, and black shoes. The shoes appeared to be similar to the shoes worn by one of the 

robbery suspects in the surveillance footage. The single black and gray glove looked similar 

to the single glove worn by a suspect during the Denny’s robbery. 

During a search of Hernandez’s phone, a text message from October 16, between 

Hernandez and his wife, referenced her “brother” and a “38.” A text message sent by 

Cadenaz on October 20 at 12:43 p.m. asked Hernandez whether he was going to bring the 

rest of the money over later. Also found, were multiple text messages sent and received 

between June and August 2016 related to the selling and buying of marijuana. 

Cadenaz’s DNA was detected on the green glove found in the gold sedan, and N. L.’s

DNA was detected on a black bandana. Defendants’ and N. L.’s fingerprints were detected 

on both the blue and gold sedans. A shoeprint impression taken from one of the 

convenience store robberies was a possible match to a black shoe with a white sole seized 

from Hernandez. Both the revolver and nine-millimeter semiautomatic handgun were 

stolen. 

II

Gang Evidence

The prosecution called West Sacramento Police Detective Matthew Boudinot as an 

expert on the Broderick Boys, the most prominent criminal street gang in West Sacramento. 

The Broderick Boys are a subset of the Norteño criminal street gang. They identify with the 

color red, the letter N, the number 14, and share with other Norteño subsets a rival with the 

Sureño criminal street gang. The Broderick Boys also identify with the letter B, the 

acronym BRK, and depictions of crowns. Further, gang members typically associate gang 

membership with their neighborhood or physical location, and thus it is common for 

members to have tattoos of the area codes and regions in which they live. In the case of the 
8

Broderick Boys, Detective Boudinot often sees members with the phrase East Yolo or East 

Yolo Boys tattooed on their bodies. 

There are various ways to become a gang member. A person can grow up inside of 

the gang culture or join from the outside. A common feature of becoming a gang member, 

however, is for a person to “put in work” with gang members or gang affiliates

-- the person commits crimes in the presence of gang members or affiliates. The purpose of 

this is to prove a potential member’s worth and loyalty to the gang. Another way to become 

part of the gang is to be “jumped in” -- assaulted by other gang members, after which the

person is accepted as a gang member. In Detective Boudinot’s opinion, a person who is 

merely affiliated with a gang cannot get a tattoo referencing the gang. Gang tattoos are 

allowed with permission and must be earned. In gang culture, reputation is everything. 

Detective Boudinot testified the Broderick Boys’ primary criminal activities are: 

“assault with a deadly weapon, narcotics sales, vehicle theft, [and] robbery,” as well as 

intimidating witnesses, burglary, and shooting at inhabited dwellings. The Broderick Boys

are financially sustained by selling narcotics and committing robberies. Violent crimes help 

sustain the gang because it shows its members’ propensity for violence and instills fear in 

the community. Typical characteristics of crimes committed by the Broderick Boys are that 

the crimes are committed with other gang members and while armed with guns. Members 

of the gang often share ownership of a gun and pass it to other members. If someone were 

to inform the police of the gang’s criminal activity, i.e., snitch, that person would be 

retaliated against with an assault or murder. 

Detective Boudinot pointed to several convictions of known Broderick Boys gang 

members, starting with J. B.’s no contest plea stemming from the instant events for

possession of marijuana for sale, with attached gun and gang enhancements, and a 

participation offense. In Detective Boudinot’s opinion, J. B. was an active Broderick Boys 

gang member on October 20. He based this opinion on the fact J. B. committed the crimes 

while assisting three other gang members to conceal evidence related to the robberies. 
9

Further, officers found several items of gang indicia in J. B.’s car and J. B. was wearing a 

red belt with the letter B on it. Upon booking into the county jail, J. B. admitted to 

affiliating with the Norteño criminal street gang. 

Next, Detective Boudinot pointed to Robert V.’s 2014 no contest plea for carrying a 

concealed weapon and a participation offense. In Detective Boudinot’s opinion, Robert was 

an active Broderick Boys gang member given his multiple contacts with police officers and 

gang-related photos on his social media profile. Further, Robert admitted to affiliating with 

the Norteño criminal street gang during a jail classification interview. 

Detective Boudinot also pointed to the no contest plea of Kenneth R. for carrying a 

concealed weapon and a participation offense. Detective Boudinot based his opinion that 

Kenneth was an active Broderick Boys gang member at the time of his offenses based on 

photos of Kenneth with other gang members, his multiple tattoos affiliated with the Norteño

criminal street gang and Broderick Boys subset, and his admission during a jail 

classification interview that he associated with the Norteño gang. 

Detective Boudinot then pointed to two cases involving Michael R. -- one where he 

was convicted of premeditated attempted murder with an attached gang and gun

enhancement and another where he was convicted of carrying a concealed firearm, unlawful 

taking of a vehicle, and possession of marijuana for sale. In Detective Boudinot’s opinion, 

Michael was an active Broderick Boys gang member on the date of his crimes because 

Michael had been classified as a validated gang member by police officers and he had 

multiple tattoos associated with the Norteño criminal street gang and the Broderick Boys 

subset. 

Finally, Detective Boudinot cited to the no contest plea of Joel M., in which he pled 

to dissuading a witness, assault with an attached gang enhancement, and a participation

offense. Detective Boudinot believed Joel was an active Broderick Boys gang member 

because he committed the crimes with other active Broderick Boys gang members, he had
10

tattoos demonstrating an affiliation with the Broderick Boys, and he admitted to affiliating 

with the Norteño criminal street gang in a jail classification interview.

In Detective Boudinot’s opinion, defendants were also active Broderick Boys gang 

members. As for Cadenaz, his cell phone contained videos taken several hours before and 

several hours after the robberies. In the videos taken before the robberies, Cadenaz is seen 

with brothers Alec4 and Victor J. Alec wore his hair in a braided ponytail. Cadenaz is 

depicted in the videos recorded after the robberies wearing a red shirt and in the presence of 

N. L. and Victor. In the videos recorded after the robberies, all three men can be seen 

flashing handfuls of cash. In the videos, both before and after the robberies, the men 

exhibited gang signs representative of the Broderick Boys. Also on Cadenaz’s phone was a 

video from September 21, depicting Alec displaying gang signs. Detective Boudinot 

testified he believed Alec to be a Broderick Boys “associate.” 

In March, Cadenaz was stopped with Alec and N. L. for driving a car with an expired 

registration. Upon a search of the car and the men in it, officers found bullets to a .38-

caliber revolver in N. L.’s pocket, an imitation firearm in the center console, and a small 

amount of marijuana. Officers also found a loaded modified rifle in the trunk. 

Officers found a rap video entitled “Active” posted online showing Cadenaz and

known gang members. The video was filmed in West Sacramento and featured a sign that 

said Broderick, as well as lyrics celebrating the Broderick Boys criminal street gang. 

Cadenaz’s girlfriend knew Cadenaz to associate with Alec, Victor, N. L., and 

Hernandez. She had seen the five men exhibit gang signs and wear red. Cadenaz had in the 

past identified himself to his girlfriend as a Broderick Boy, but only because he had grown 

up in the neighborhood. Cadenaz never told his girlfriend he was involved in a gang. Alec 

and Victor also grew up in the Broderick neighborhood. 

4 Alec is the same Alec photographed with Hernandez driving through a red traffic

light in Citrus Heights. 
11

At trial, Cadenaz exhibited a “114th percent” tattoo on one hand, which he did not 

have before his arrest. To Detective Boudinot, this was significant because it referenced the 

number 14 and showed Cadenaz was continuing to participate in gang activity after his 

arrest. 

As it pertained to Hernandez, he had multiple police contacts indicating gang 

affiliation. In June 2013, Hernandez was involved in a traffic stop with two other 

individuals. As a result of the traffic stop, all three individuals were validated by police 

officers as Norteño gang members. Hernandez’s validation was based on his wearing of red 

shorts under his jeans and a red belt buckle with the letter N on it. He also had the word 

Turlock tattooed across his chest and four dots on his left hand. Further, Hernandez 

admitted to being a member of the Norteño gang. 

In June 2014, the police contacted Hernandez while he and two validated Norteño

gang members were riding public transit without the proper fare. Hernandez was wearing 

red items of clothing at the time. 

Hernandez was also contacted by police in July 2014 after he was involved in a fight 

that included the presence of a knife. Three other people were contacted with Hernandez,

two of whom were validated Norteño gang members, although not members of the 

Broderick Boys subset. One of the validated Norteño gang members and the other 

individual were Hernandez’s brothers. 

In April 2016, Hernandez was contacted by police in connection with a report of a 

large fight in downtown Sacramento. Hernandez was in the presence of a validated Norteño

gang member, although that gang member did not belong to the Broderick Boys subset. 

Police encountered another individual in connection with the fight who was also a validated 

Norteño gang member. That individual possessed a knife. When officers asked Hernandez 

about his criminal history, he responded he had “done his dirt” in “the 209.” 

In addition to his police contacts, Hernandez had several tattoos indicative of gang 

membership. Across his chest is the word Turlock in bold lettering, on his right shoulder is
12

the letter N, and on his left shoulder is the letter X and the number 4. On Hernandez’s right 

hand is a single dot, on his left hand are four dots, and behind his ear is a crown with his 

wife’s name under it. 

A search of Hernandez’s phone revealed text messages referencing the 14 bonds, 

which is important in Norteño culture and constitutes the gang’s governing rules. 

Hernandez also communicated with known Broderick Boys gang members via text message, 

including Cadenaz, and referred to them as “carnal,” meaning brother, which is common 

among closely affiliated gang members. 

Finally, as to Hernandez, Detective Boudinot found a rap video on the internet posted 

by an active Broderick Boys gang member paying respect to Hernandez and N. L. entitled 

“Free Ricky, Turlock, 209, Free Lil [N. L.].” Hernandez, however, was not present in the 

rap video. 

In addition to defendants, Detective Boudinot believed N. L. and J. B. were active 

Broderick Boys gang members. J. B. was encountered on April 15, 2014, with three other 

people, one of whom was an active Broderick Boys gang member, while they were pointing 

a green laser into the sky at a California Highway Patrol aircraft. The next month, J. B.

assaulted his sister’s boyfriend by knocking the boyfriend’s glasses off his face, kicking and 

punching him several times, and spitting on him twice. There were other people present and

one of them recorded the assault. J. B. said Broderick to the camera during the assault. 

During a search of a bag filled with J. B.’s clothing, officers found a belt buckle with 

the letter B on it, shoes with red soles, and a red canvas belt. J. B. had multiple photos on 

his social media profile of him flashing gang signs associated with the Norteño criminal 

street gang and the Broderick Boys subset, wearing gang clothing, and associating with 

other individuals flashing gang signs. The username associated with the picture included

the term Broderick and the area code 916, which is the area code of the Broderick Boys’

claimed territory. 
13

As it related to N. L., he was arrested in January 2014 with two other juveniles for 

spraying graffiti depicting the number 14, the acronym BRK, dots representing the number 

14, the term North Side, and the word Broderick. In August 2015, N. L. was arrested after 

demanding money from several people and a cashier at a convenience store while pointing a 

concealed water hose nozzle at them from under his shirt. N. L. wore a red shirt during 

those attempted robberies. 

N. L. has four dots tattooed on one hand and one dot tattooed on the other. Multiple 

photographs of N. L. were discovered on his phone showing him possessing a handgun, 

exhibiting gang signs, showing off large amounts of cash, and wearing red. There was also 

a photo of N. L. holding a large bag of marijuana while wearing red and flashing gang signs. 

Following the crimes, N. L. was in several gang-related rap videos posted online, which 

contained documented Broderick Boys gang members. 

As for the robberies themselves, Detective Boudinot believed they were committed 

for the benefit of a criminal street gang. To Detective Boudinot, the robberies appeared to 

be defendants and N. L. proving their worth to one another and earning respect and money

to further the gang’s enterprise. Detective Boudinot, however, did not know of any

information demonstrating the money taken during the robberies went up the Broderick 

Boys chain of command. It was Detective Boudinot’s understanding that the Broderick 

Boys gang was a loosely structured gang and each member decided on his own the day-today criminal activities to engage in without coordinating with the larger gang structure. 

Detective Boudinot also thought it significant the group used guns during the 

commission of the robberies. The fact that defendants did not flash gang signs or wear

obvious gang-related clothing during the robberies did not change Detective Boudinot’s 

opinion about defendants’ intent to benefit the gang. To Detective Boudinot, the group 

relied on their shared gang connection when committing the crimes and concealing their 

criminal activity. That bond was made evident by defendants’ association with gang 
14

members around the time of the crime, possession of gang clothing, and reliance on the 

gang principle of loyalty during the police interviews. 

III

Verdicts And Sentencing

The jury found defendants engaged in a conspiracy and committed a variety of 

offenses against different victims related to the robberies recounted above, including second 

degree robbery, attempted second degree robbery, and assault with a firearm. The jury 

further found defendants guilty of possession of marijuana for sale and two gun-related

offenses pertaining to the guns seized upon defendants’ arrests. The jury found Hernandez 

guilty of an additional gun-related offense based on his exhibition of a firearm at a West 

Sacramento convenience store before the robbery spree began. As to each of these offenses, 

except for the possession of marijuana for sale offense, the jury found true attached gang

enhancements. As to the second degree robberies and attempted robberies, the jury also 

found true various gun enhancements. In Cadenaz’s case, the jury found true both personal 

use of a firearm enhancements and the gang-related gun enhancements; while in 

Hernandez’s case, the jury found true only gang-related gun enhancements. Defendants

were each found guilty of multiple participation offenses, and, for one of those offenses, the 

jury found true an attached personal use of a firearm enhancement for each defendant. 

The trial court sentenced Hernandez to a term of 45 years 8 months in prison and 

Cadenaz to 56 years 4 months in prison. It further imposed various fines and fees.5 

Defendants appeal. 

5 Because we must remand defendants’ case for retrial on the participation offenses 

and gang-related enhancement, we need not go into the particulars of the sentences or the 

imposed fines and fees. 
15

DISCUSSION

I

Assembly Bill No. 333 Requires Defendants Be Retried

On Only The Participation Offenses And Gang-Related Enhancements

Defendants contend the changes enacted by Assembly Bill No. 333 require all of the 

convictions and enhancements to be reversed. We agree with defendants that the

participation offenses and the gang-related enhancements must be vacated but disagree as to 

the other convictions and enhancements.

A

Applicable Law

Penal Code6section 186.22, subdivision (b)(1), provides for enhanced punishment 

when the defendant is convicted of an enumerated felony committed “for the benefit of, at 

the direction of, or in association with a criminal street gang, with the specific intent to 

promote, further, or assist in criminal conduct by gang members.” The section also provides 

for a substantive participation offense when the defendant “actively participates in a 

criminal street gang with knowledge that its members engage in, or have engaged in, a 

pattern of criminal gang activity, and who willfully promotes, furthers, or assists in 

felonious criminal conduct by members of that gang . . . .” (§ 186.22, subd. (a).)

Assembly Bill No. 333 amended section 186.22 in several fundamental ways. As 

relevant here, Assembly Bill No. 333 “redefines ‘pattern of criminal gang activity’ to 

require that the last of the predicate offenses ‘occurred within three years of the prior 

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

committed,’ and that the predicate offenses ‘were committed on separate occasions or by 

two or more members, the offenses commonly benefited a criminal street gang, and the 

common benefit of the offenses is more than reputational.’ ” (People v. Lopez (2021) 73 

6 Further undesignated section references are to the Penal Code. 
16

Cal.App.5th 327, 345.) In addition, the currently charged offense cannot be used as a 

predicate offense under the amendments made by Assembly Bill No. 333. (Lopez, at p. 345)

Subdivision (g) of section 186.22 now defines the term “to benefit, promote, further, 

or assist” a criminal street gang to mean “to provide a common benefit to members of a 

gang where the common benefit is more than reputational,” which may include “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.” Previously, proof of a 

reputational benefit to the gang would have sufficed. (See People v. Ramirez (2016) 244 

Cal.App.4th 800, 819.)

Assembly Bill No. 333 also added section 1109, which allows for a defendant 

charged with a gang enhancement under section 186.22, subdivision (b) or (d) to request the 

enhancement be tried in a separate phase of the trial. (§ 1109, subd. (a).) If a defendant is 

charged with a participation offense (§ 186.22, subd. (a)), then the charge “shall be tried 

separately from all other counts that do not otherwise require gang evidence as an element 

of the crime. This charge may be tried in the same proceeding with an allegation of an 

enhancement under subdivision (b) or (d) of Section 186.22.” (§ 1109, subd. (b).)

B

Defendants Must Be Retried On The 

Participation Offenses And Gang-Related Enhancements

Defendants contend the changes enacted by Assembly Bill No. 333 apply 

retroactively to them. The People agree in part. The People concede the amendments 

having to do with the elements of the participation offenses and gang-related enhancements

apply retroactively, but argue the addition of section 1109, which allows for a bifurcated 

trial on gang-related enhancements and participation offenses is not retroactive. We agree 

Assembly Bill No. 333’s amendments to section 186.22 are retroactive and, that as a result 

of the retroactive application of the amendments, defendants must be retried on the

participation offenses and gang-related enhancements. As it pertains to Assembly Bill No. 
17

333’s enactment of section 1109, we need not decide whether this provision is retroactive 

because, even if we assume it is, defendants cannot show the failure to hold a bifurcated 

proceeding contributed to the jury’s guilty verdicts for the participation offenses or its true 

findings on the gang-related enhancements. 

In In re Estrada (1965) 63 Cal.2d 740, 744-746, our Supreme Court held that, absent 

evidence to the contrary, the Legislature intended amendments to statutes that reduce 

punishment for a particular crime to apply retroactively to all whose judgments are not yet 

final on the amendments’ operative date. (People v. Superior Court (Lara) (2018) 4 Cal.5th 

299, 307-308; People v. Brown (2012) 54 Cal.4th 314, 323.) This principle also applies 

when an enhancement has been amended to redefine the conduct subject to the enhancement

in a defendant’s favor. (People v. Figueroa (1993) 20 Cal.App.4th 65, 68, 70-71.)

Recently, the Second Appellate District, Division Eight, in Lopez, applying In re 

Estrada, held the amendments made by Assembly Bill No. 333 to section 186.22 are 

retroactive to nonfinal judgments. (People v. Lopez, supra, 73 Cal.App.4th at pp. 343-344.)

Lopez reasoned Assembly Bill No. 333 increased the “threshold for conviction of the section 

186.22 offense and the imposition of the enhancement.” (Lopez, at p. 344.) Accordingly,

the Lopez court concluded “ ‘[A] defendant is entitled to the benefit of an amendment to an 

enhancement statute, adding a new element to the enhancement, where the statutory change 

becomes effective while the case was on appeal, and the Legislature did not preclude its 

effect to pending case[s].’ ” (Ibid., quoting People v Figueroa, supra, 20 Cal.App.4th at p. 

68.) Several recent appellate decisions have applied this reasoning and have also concluded 

the amendments to section 186.22 are retroactive. (See e.g., People v. Perez (2022) 78 

Cal.App.5th 192, 206-207; People v. Ramos (2022) 77 Cal.App.5th 1116, 1126-1128; 

People v. Rodriguez (2022) 75 Cal.App.5th 816, 291; People v. E.H. (2022) 75 Cal.App.5th 

467, 478; People v. Delgado (2022) 74 Cal.App.5th 1067, 1087; People v. Vasquez (2022) 

74 Cal.App.5th 1021, 1032 & fn. 9; People v. Sek (2022) 74 Cal.App.5th 657, 666-667.)
18

We agree with the parties and conclude Assembly Bill No. 333’s amendments to section 

186.22 apply retroactively to defendants.

As a result, defendants are entitled to a retrial on the participation offenses and gangrelated enhancements unless the People can show beyond a reasonable doubt the jury would 

have found them guilty under the amended version of section 186.22. (See People v. Sek, 

supra, 74 Cal.App.5th at p. 668.) The People concede, and we agree, the record does not 

demonstrate beyond a reasonable doubt that the jury would have found defendants guilty of 

the gang-related offenses and enhancements. Indeed, none of the predicate offenses 

identified by Detective Boudinot were ever shown to have been committed for the benefit of 

a criminal street gang as that phrase is now defined, and some of the offenses no longer

qualify as predicate offenses under amended section 186.22. 

Further, Detective Boudinot based his opinion that defendants’ charged crimes were 

committed for the benefit of the Broderick Boys gang on the benefit to the reputation of the 

gang members committing the crimes. Otherwise, Detective Boudinot testified the 

Broderick Boys gang was a loosely organized gang and he had no knowledge that any

money produced from illegal activities went to the larger criminal gang network. Under the 

amendments to section 186.22, the prosecution must prove the benefit the gang derives from 

the charged offenses is “more than reputational.” (§ 186.22, subd. (g).) Given Detective 

Boudinot’s focus on the reputational benefit the crimes had on defendants within the gang, 

in addition to the failings of the predicate offenses under the new law, defendants’ 

participation offenses and gang-related enhancements, including the gang-related gun 

enhancement under section 12022.53, subdivision (e), must be reversed.

As it pertains to Assembly Bill No. 333’s addition of section 1109, the Courts of 

Appeal are split on whether the provision applies retroactively. Several courts have 

concluded section 1109 applies retroactively given the legislative history demonstrating the 

intended effect of a bifurcated trial was to lessen the prejudice gang allegations carry. (See 

e.g., People v. Burgos (2022) 77 Cal.App.5th 550, 564-568; People v. Ramos, supra, 77 
19

Cal.App.5th at pp. 1125-1131.) But others have concluded section 1109 operates only 

prospectively given the procedural posture of the provision. (See e.g., People v. Perez, 

supra, 78 Cal.App.5th at pp. 192, 207; People v. Ramirez (2022) 79 Cal.App.5th 48, 65.)

Here, it is unnecessary to decide whether section 1109 applies retroactively or only 

prospectively. Even if the statute applies retroactively, neither defendant was prejudiced by 

the failure to bifurcate the trial on the participation offenses and gang-related enhancements.

Relying on dicta in People v. Burgos, supra, 77 Cal.App.5th 550 at page 568 (review 

granted July 13, 2022, S274743), defendants argue the failure to bifurcate gang-related

charges and enhancements in accordance with section 1109 constitutes structural error

requiring reversal of the remaining convictions and attached enhancements. We find that 

analysis unpersuasive. (See People v. Montano (2022) 80 Cal.App.5th 82, 108; People v. 

Ramos, supra, 77 Cal.App.5th at pp. 1131-1133 [concluding § 1109 error was harmless 

under People v. Watson (1956) 46 Cal.2d 818, 836].) First, “[t]here is a strong presumption 

that any error falls within the trial error category,” i.e., is not structural and thus “subject to 

harmless error analysis.” (People v. Anzalone (2013) 56 Cal.4th 545, 554.) Second, the 

right to bifurcation under section 1109 is purely statutory. (Cf. People v. Hinton (2006) 37 

Cal.4th 839, 873-874 [describing right to a separate proceeding under § 190.1 as “merely 

statutory, not constitutional”].) “ ‘Typically, a defendant who has established error under 

state law must demonstrate there is a reasonable probability that in the absence of the error 

he or she [or they] would have obtained a more favorable result.’ ” (Anzalone, at p. 553; 

accord, People v. Epps (2001) 25 Cal.4th 19, 29 [where the error “is purely one of state law, 

the Watson harmless error test applies”].)

Defendants alternatively claim the alleged error violated their constitutional due 

process rights. We also disagree with this contention, but conclude the alleged error is 

harmless under the standard of Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705]. 

Starting with Hernandez’s conviction for exhibition of a firearm, surveillance 

cameras recorded Hernandez inside a convenience store and a witness identified Hernandez 
20

at trial as the person he saw in the convenience store who later pulled up his shirt to flash 

the handle of a gun tucked in his waistband. Based on the eyewitness identification in 

addition to the surveillance footage, we are convinced beyond a reasonable doubt the gang 

evidence did not contribute to the guilty verdict rendered on the exhibition offense.

As it pertains to defendants’ convictions for possessing guns in a car, defendants 

were arrested while in the presence of those loaded and concealed guns. Similarly, 

defendants were arrested with a large amount of marijuana in a polka dot bag owned by 

Cadenaz with a digital scale in the vicinity. Cadenaz admitted to owning the polka dot bag

in his police interview. Further, Hernandez’s cell phone revealed multiple text messages 

pertaining to the sale of marijuana. Thus, as to the gun and marijuana offenses, we are 

convinced beyond a reasonable doubt the gang evidence did not contribute to defendants’ 

convictions for these offenses.

Finally, as to the conspiracy and the robbery-related offenses, defendants were 

recorded on surveillance cameras either committing the robberies or entering/leaving the 

places that were robbed. While the videos were grainy, shoes similar to the black shoes

with white soles one of the suspects wore on the surveillance footage were found in 

Hernandez’s possession and a shoe print taken from one of the convenience stores possibly

matched that shoe. The suspect with the black shoes with white soles on the surveillance 

footage also wore a ponytail hairstyle similar to Hernandez’s ponytail hairstyle. Items 

stolen from the convenience stores were found in the gold sedan owned by Hernandez’s 

wife and used by Hernandez. Items stolen from the convenience store were also found in 

the truck defendants were arrested in, as well as near the blue sedan owned by Cadenaz’s 

girlfriend, which Cadenaz borrowed at the time the crimes were committed. Gloves 

matching the gloves worn by the robbery suspects were found in the car owned by 

Hernandez’s wife, and clothes matching those worn by the suspects were found at 

Hernandez’s home. 
21

Cadenaz was pictured around the time of the robberies wearing bright green gloves 

and holding a black semiautomatic handgun. A suspect recorded on the surveillance footage 

also wore bright green gloves and possessed a black semiautomatic handgun. Further, 

defendants attempted to conceal evidence used during the crime by covering both the gold 

sedan and blue sedan with car covers. Given this strong evidence distinct from the evidence 

related to defendants’ gang involvement, we are convinced beyond a reasonable doubt the 

gang evidence did not contribute to the jury’s determination that defendants committed the 

robbery-related offenses. Accordingly, reversal of defendants’ convictions and 

enhancements not pertaining to the gang affiliation is unwarranted. 

For these same reasons, we find unpersuasive defendants’ claim the prejudicial 

spillover doctrine adopted by the Third Circuit Court of Appeals, if applied here, results in 

reversal of defendants’ convictions and enhancements unrelated to their gang involvement. 

(See U.S. v. Wright (3d Cir. 2012) 665 F.3d 560, 575 [utilizing a four-factored test to 

determine whether evidence pertaining to insufficiently proven charges influenced the 

findings on the remaining charges].) As demonstrated, the evidence of defendants’

involvement in the nongang related offenses and enhancements was overwhelming and 

distinct from the participation offenses and gang-related enhancements. Defendants’ 

defense was that they were not the ones depicted in the surveillance footage and it could 

have been men also affiliated with the Broderick Boys gang. Thus, the jury did not believe 

defendants were the men depicted in the surveillance footage, as opposed to the other men, 

simply because of their gang involvement. Finally, the trial court frequently instructed the 

jury that the gang evidence offered by the prosecution was to be considered only in 

connection with the participation offenses and gang-related allegations and not when 

considering whether defendants were guilty of the substantive charges and enhancements. 

We presume the jury followed these instructions. (People v. Fuiava (2012) 53 Cal.4th 622, 
22

669.) Taken together, defendants’ due process rights were not infringed upon by the gang 

evidence admitted at trial.7

II

Hernandez Cannot Be Retried For The Participation Offense That Relies On His Exhibition 

Of A Firearm Conviction; Defendants Can Otherwise Be Retried

On All Participation Offenses And Gang-Related Enhancements

Defendants contend insufficient evidence was presented under the former version of 

section 186.22 (Stats. 2017, ch. 561, § 179) to prove the Broderick Boys was a criminal 

street gang, as required for both the participation offense and gang enhancement, or that 

they had the specific intent to benefit a criminal street gang, as required for the gang 

enhancement. As a result, defendants argue, they cannot be retried on the participation 

offenses and the gang-related enhancements. The People concede insufficient evidence 

supports Hernandez’s gang participation conviction predicated on his misdemeanor 

exhibition of a firearm conviction, but otherwise argue sufficient evidence was presented 

such that defendants can be retried for all other participation offenses and gang-related 

enhancements. We agree with the People. 

7 We do not need to address Hernandez’s challenges to the trial court’s admission of 

the rap video referring to him or of Detective Boudinot’s testimony to facts outside his 

personal knowledge, e.g., facts contained in jail classification records and gang 

questionnaires, because Hernandez’s participation offenses and gang-related enhancements 

must be retried. We have already determined the gang evidence did not contribute to 

defendants’ convictions on the substantive offenses and gun enhancements not related to 

their gang involvement, and thus any error in admitting the rap video or Detective 

Boudinot’s improper testimony was necessarily harmless as to the jury’s findings on those 

convictions and enhancements as well. Hernandez is free to argue for exclusion on remand 

when the trial court addresses evidentiary arguments anew and considers any intervening 

authority, including People v. Valencia (2021) 11 Cal.5th 818, in rendering its decisions.
23

A

Sufficiency Of The Evidence

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

entire record to determine whether it discloses reasonable and credible evidence to allow a 

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

(2020) 53 Cal.App.5th 102, 119, fn. 11.) “We draw all reasonable inferences in favor of the 

judgment.” (Ibid.) “Matters of credibility of witnesses and the weight of the evidence are ‘ 

“ ‘the exclusive province’ ” ’ of the trier of fact.” (Ibid.) 

For purposes of assessing the sufficiency of the evidence, we consider all the 

evidence presented at trial, including any evidence that should have been excluded. (People 

v. Story (2009) 45 Cal.4th 1282, 1296 [“when reviewing the sufficiency of the evidence for 

purposes of deciding whether retrial is permissible, the reviewing court must consider all of 

the evidence presented at trial, including evidence that should not have been admitted”].)

B

Evidence Demonstrated The Broderick Boys Is A Criminal Street Gang

A “criminal street gang,” as formerly defined for both the participation offense and 

gang-related enhancements, was “any ongoing organization, association, or group of three 

or more persons, whether formal or informal, having as one of its primary activities the 

commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), 

inclusive, or (31) to (33), inclusive, of subdivision (e) [of former section 186.22], having a 

common name or common identifying sign or symbol, and whose members individually or 

collectively engage in or have engaged in a pattern of criminal gang activity.” (Former § 

186.22, subd. (f).)

Thus, the prosecutor was required to prove three essential elements: “(1) that there 

be an ‘ongoing’ association involving three or more participants, having a ‘common name 

or common identifying sign or symbol’; (2) that the group has as one of its ‘primary 

activities’ the commission of one or more specified crimes; and (3) the group’s members 
24

either separately or as a group ‘have engaged in a pattern of criminal gang activity.’ ” 

(People v. Vy (2004) 122 Cal.App.4th 1209, 1222.) The criminal acts enumerated by the 

statute included murder, robbery, burglary, weapons possession, assault with a deadly 

weapon, and other felonies. (Former § 186.22, subd. (e).)

Defendants contend the prosecutor failed to make an adequate showing on the second 

element.8 Under former section 186.22, “[t]he phrase ‘primary activities,’ as used in the 

gang statute, implie[d] that the commission of one or more of the statutorily enumerated 

crimes [wa]s one of the group’s ‘chief’ or ‘principal’ occupations.” (People v. 

Sengpadychith, supra, 26 Cal.4th at p. 323; see People v. Duran (2002) 97 Cal.App.4th 

1448, 1464.) “Proof that a gang’s members consistently and repeatedly have committed 

criminal activity listed in [former] section 186.22, subdivision (e) is sufficient to establish 

the gang’s primary activities. On the other hand, proof of only the occasional commission 

of crimes by the gang’s members [wa]s insufficient.” (Duran, at pp. 1464-1465; see 

Sengpadychith, at pp. 323-324.) Past offenses, as well as the circumstances of the charged 

crime, were used to prove the group’s primary activities. (Sengpadychith, at p. 323; Duran, 

at p. 1465.)

It was settled that expert testimony could establish the primary activities element. 

(People v. Sengpadychith, supra, 26 Cal.4th at p. 324; People v. Vy, supra, 122 Cal.App.4th 

at p. 1226; People v. Duran, supra, 97 Cal.App.4th, at p. 1465.) “The testimony of a gang 

8 The heading of one of Hernandez’s arguments purports to contend the prosecutor 

failed to make an adequate showing as to the Broderick Boys’ pattern of criminal activity. 

Hernandez, however, relies on People v. Sengpadychith (2001) 26 Cal.4th 316, for his 

argument, which pertains to the primary activities element of section 186.22, subdivision (e) 

and not the pattern element. (Sengpadychith, at p. 324.) Hernandez does not analyze the 

pattern element using the correct standard of examining the sufficiency of the predicate 

offenses offered by the prosecution. (Former § 186.22, subd. (e).) We repeatedly have held 

that the failure to provide legal authorities to support arguments forfeits contentions of error. 

(See In re S.C. (2006) 138 Cal.App.4th 396, 408; Akins v. State of California (1998) 61 

Cal.App.4th 1, 50.)
25

expert, founded on his or her conversations with gang members, personal investigation of 

crimes committed by gang members, and information obtained from colleagues in his or her 

own and other law enforcement agencies, [were] sufficient to prove a gang’s primary 

activities.” (Duran, at p. 1465; Sengpadychith, at p. 324.)

Our Supreme Court observed in Sengpadychith, for example, that the expert 

testimony in People v. Gardeley (1996) 14 Cal.4th 605, was sufficient: “There, a police 

gang expert testified [the defendant’s gang] was primarily engaged in the sale of narcotics 

and witness intimidation, both statutorily enumerated felonies. [Citation.] The gang expert 

based his opinion on conversations he had with [the defendant] and fellow gang members, 

and on ‘his personal investigations of hundreds of crimes committed by gang members,’ 

together with information from colleagues in his own police department and other law 

enforcement agencies.” (People v. Sengpadychith, supra, 26 Cal.4th at p. 324; see also 

People v. Martinez (2008) 158 Cal.App.4th 1324,1330 [gang expert’s specific testimony 

that gang’s primary activities included robbery, assault, theft and vandalism was sufficient 

to prove primary activities element in light of expert’s training and experience]; People v. 

Margarejo (2008) 162 Cal.App.4th 102, 107, 112 [expert’s testimony that gang’s activities 

ranged from vandalism and battery, carjackings, weapons offenses, robberies, and murder, 

was sufficient]; In re Ramon T. (1997) 57 Cal.App.4th 201, 207 [primary activities element 

proved by expert’s testimony that gang “engaged in several of the crimes listed in section 

186.22 as a primary activity,” where he had personally investigated cases involving those 

offenses, talked to gang members about gang’s activities, and testified about two predicate 

offenses].)

Conversely, in Alexander L. (2007) 149 Cal.App.4th 605, the defendant allegedly 

committed vandalism based on his “tagging” activities. When asked about the gang’s 

primary activities, the expert testified, “ ‘I know they’ve committed quite a few assaults 

with a deadly weapon, several assaults. I know they’ve been involved in murders. [¶] I 

know they’ve been involved with auto thefts, auto/vehicle burglaries, felony graffiti, 
26

narcotic violations.’ ” (Id. at p. 611.) The expert, however, “did not directly testify that 

criminal activities constituted [the gang’s] primary activities.” (Id. at pp. 611-612.) No 

further questions were asked about the primary activities, and no specifics were elicited as 

to the circumstances of the crimes or how the expert obtained the information. Further, the 

basis for the expert’s knowledge of the gang’s primary activities was never elicited. (Id. at 

p. 612.)

Defendant’s case is more like Gardeley. Detective Boudinot testified he had been a 

member of the West Sacramento Police Department for nine years and served on the gang

task force for three years. He based his knowledge on his formal education in criminal 

justice, his additional law enforcement training in gang investigations, and numerous 

conversations with other gang experts in Yolo County. He further had hundreds of 

conversations with gang members and community members regarding local gangs over the 

course of his entire career with the West Sacramento Police Department. Specific to this 

case, Detective Boudinot reviewed a variety of court documents, social media platforms, 

pictures, and field identification cards associated with the people who had been convicted of 

the predicate offenses. 

To that end, Detective Boudinot testified the primary crimes committed by the 

Broderick Boys were assaults with a deadly weapon, narcotics sales, vehicle thefts, 

robberies, shootings at inhabited dwellings, intimidating witnesses, and burglaries. He then

pointed to the certified records of five Broderick Boys gang members, all of whom pled to a 

gang enhancement or participation offense when admitting to their substantive offenses. 

The substantive offenses these Broderick Boys gang members admitted to included

attempted murder, assault, intimidating a witness, theft of a vehicle, three convictions of 

carrying a concealed weapon, and two convictions of possession of marijuana for sale. 

Further, defendants were alleged to have committed multiple robberies and assaults,

and to have used stolen firearms during the commission of those crimes. The evidence also

demonstrated Hernandez’s past criminal activity involved assaults with other known gang 
27

members and the use of deadly weapons. The evidence further demonstrated an assault 

committed by J. B. during which J. B. yelled out the term “Broderick” in the presence of 

other people. And finally, other known Broderick Boys gang members, including N. L., 

made rap videos promoting the gang’s criminal activities, including narcotics sales, gun 

possession, assaults, and robberies. Many of the crimes articulated by Detective Boudinot 

from his experience, as well as those revealed in certified records, the circumstances of the 

current offenses, and other evidence admitted at trial involve offenses listed in former 

section 186.22. (Former § 186.22, subd. (e).) 

Defendants point to the fact that Detective Boudinot did not specifically testify the 

primary activity of the Broderick Boys gang was criminal activity, arguing that he merely 

testified to the crimes he knew some Broderick Boys gang members had committed, without 

demonstrating criminal activity was the gang’s primary business operation. Not so. 

Detective Boudinot testified that “putting in work” for the Broderick Boys meant to commit 

crimes for the Broderick Boys and that the gang sustained itself financially through the 

selling of narcotics and committing robberies. Detective Boudinot further testified the 

Broderick Boys gang sustained itself as a dominant presence in the community through its 

reputation and violent crimes, including those outlined by Detective Boudinot. A reasonable 

inference from this testimony is that Detective Boudinot believed the primary activity of the 

Broderick Boys gang was criminal activity.

Relying on People v. Perez (2004) 118 Cal.App.4th 151, defendants further contend 

the evidence was insufficient to establish the Broderick Boys’ primary activity was criminal 

activities given Detective Boudinot’s testimony regarding the certified records of conviction 

for five gang members. To defendants, this seems like a low number of convictions given 

the number of members Detective Boudinot testified belonged to the gang. 

In Perez, a member of a gang was prosecuted for the attempted murder of an Asian 

youth. (People v. Perez, supra, 118 Cal.App.4th at pp. 153-154.) In total, the prosecution 

presented evidence that six years earlier gang members had been involved in the attempted 
28

murder of a youth and that a few weeks prior to the charged offense, after a fellow member 

of the gang was murdered by members of an Asian gang, three Asian men were shot one 

night and a fourth was shot a subsequent night. (Id. at pp. 156-157.) 

In finding the evidence insufficient to show the primary activities of the gang in 

question were the commission of the enumerated offenses in former section 186.22, 

subdivision (e), the Perez court noted that no expert testimony was presented on the issue. 

It then stated, “[e]ven if we assume that the [gang in question] was responsible for the 

shootings of Asians on February 16 and 18, as well as the shooting of [the victim in the case 

before the court], such evidence of the retaliatory shootings of a few individuals over a 

period of less than a week, together with a beating six years earlier, was insufficient to 

establish that ‘the group’s members consistently and repeatedly have committed criminal 

activity listed in the gang statute.’ ” (People v. Perez, supra, 118 Cal.App.4th at p. 160.)

As an initial matter, we observe there is no requirement the prosecution prove a 

gang’s primary activities through the certified records of conviction alone. Indeed, the 

prosecution here relied on more than the certified records of conviction to demonstrate the 

Broderick Boys’ primary activities, contrary to defendants’ analysis. The prosecution relied 

on Detective Boudinot’s personal knowledge gained by working as a gang officer in West 

Sacramento for three years, social media profiles, videos, as well as the circumstances of the

current crimes, including the past conduct of defendants’ and their known associates. Taken

together, the prosecution presented much more evidence than the prosecution in Perez, such 

that sufficient evidence supports the jury’s finding the Broderick Boys consistently and 

repeatedly committed criminal activities listed in former section 186.22, subdivision (e) as 

required by Sengpadychith. 
29

C

Evidence Demonstrated Defendants Specifically

Intended To Benefit The Broderick Boys Gang

Former section 186.22, subdivision (b) enhanced punishment when the defendant 

was convicted of an enumerated 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 . . . .” (Former § 186.22, subd. (b)(1).) 

This provision did not “depend on membership in a gang at all. Rather, it applie[d] when a 

defendant ha[d] personally committed a gang-related felony with the specific intent to aid 

members of that gang.” (People v. Albillar (2010) 51 Cal.4th 47, 67-68.) “A gang expert’s 

testimony alone is insufficient to find an offense gang related. [Citation.] ‘[T]he record 

must provide some evidentiary support, other than merely the defendant’s record of prior 

offenses and past gang activities or personal affiliations, for a finding that the crime was 

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

gang.’ ” (People v. Ochoa (2009) 179 Cal.App.4th 650, 657; accord, Albillar, at p. 63.) 

Further, general testimony regarding gang culture fails to draw “any distinction 

between crimes in general and crimes carried out with the specific intent to promote, further, 

or assist gang activity.” (In re Daniel C. (2011) 195 Cal.App.4th 1350, 1364.) “[S]uch 

general opinion testimony as to intent” serves to expand “the gang enhancement statute to 

cover virtually any crime committed by someone while in the company of gang affiliates, no 

matter how minor the crime, and no matter how tenuous its connection with gang members 

or core gang activities.” (Ibid., italics omitted.) If such general opinion testimony were

allowed, section 186.22, subdivision (b)(1), would be impermissibly converted into a 

general intent crime. (In re Daniel C., at p. 1364.)

Defendants argue the evidence was insufficient because, while the prosecution 

argued defendants committed the crimes to enhance their reputation within the gang, 

Detective Boudinot’s testimony did not support this contention and instead pointed merely 
30

to the fact defendants were gang members to demonstrate their commission of the alleged 

crimes was gang related. Not so. As described, Detective Boudinot testified that “putting in 

work” for the Broderick Boys meant to commit crimes with fellow gang members. The 

purpose of this conduct was to show other gang members a willingness to put oneself at risk 

for the gang and keep the confidences of the gang. To that end, “putting in work,” i.e., 

committing crimes, was also a way to become a member of the Broderick Boys gang. 

Committing crimes for the gang not only led to an increased reputation for the gang, but 

also for the individual members within the gang. 

What led Detective Boudinot to believe this was the case for defendants and N. L. 

during the commission of the charged crimes was that the group was obviously working 

together in a coordinated effort and relied on their bond as gang members. Contrary to 

defendants’ assertions, this opinion was supported by the evidence presented at trial. In 

pictures taken of Cadenaz before and after the robberies, he was with Broderick Boys 

affiliates flashing gang signs. In some of those photos he was holding a gun similar to the 

gun used in the robberies. In a picture discovered on Cadenaz’s cell phone, taken after the 

robbery, a friend known to flash Broderick Boys gang signs was holding a large amount of 

cash. A reasonable inference drawn from these photos is that Cadenaz shared with 

Broderick Boys affiliates the fact he committed robberies, and thus bolstered his reputation 

with those affiliates. 

Similarly, when defendants were arrested, they relied upon gang themes of loyalty 

when speaking to the police. Hernandez called Cadenaz, N. L., and J. B. his loved ones, a 

term which Detective Boudinot testified was common among gang members. The group 

also talked about the importance of not talking to the police and expressed concern other 

members of the group would “snitch” or talk to police. Finally, after his arrest, Hernandez 

and N. L. were praised by a Broderick Boys gang member in an online rap video, 

demonstrating their criminal acts had the intended effect of bolstering their reputation within 

the Broderick Boys gang. 
31

At bottom, Detective Boudinot testified the crimes were gang related because of the 

resulting benefit to the individual reputations of the gang members who committed the 

crimes. The fact Cadenaz had pictures on his phone boasting of his criminal activities with 

Broderick Boys affiliates and Hernandez was later praised by a Broderick Boys gang 

member in a gang-related rap video supplies evidence corroborating Detective Boudinot’s 

testimony defendants’ reputations were enhanced within the gang by the criminal activities. 

Accordingly, sufficient evidence supports the jury’s findings defendantsintended to benefit 

the Broderick Boys gang during the commission of the charged crimes.

D

Evidence Did Not Demonstrate Hernandez Participated

In A Criminal Street Gang When Exhibiting A Firearm

Under the former gang statute, “liability [for the participation offense was] limited 

‘to those who promote, further, or assist a specific felony committed by gang members and 

who know of the gang’s pattern of criminal gang activity.’ [Citation.] In other words, the 

provision ‘requir[ed] the promotion or furtherance of specific conduct of gang members and 

not inchoate future conduct.’ ” (People v. Valenzuela (2019) 7 Cal.5th 415, 422.) 

“Following the Supreme Court’s decision in [People v. Rodriguez (2012) 55 Cal.4th 1125], 

a conviction for gang participation under section 186.22[, subdivision ](a) require[d] the 

prosecution to prove the alleged gang member engaged in felonious conduct with another 

member of his or her gang.” (People v. Strike (2020) 45 Cal.App.5th 143, 149-150.)

In Hernandez’s case, the prosecution alleged in the participation offense charged in 

count 3 that Hernandez participated in a criminal street gang at the time he exhibited and 

shot a gun on October 18, before the commission of the robberies. The jury found 

Hernandez had exhibited a firearm, a misdemeanor, in relation to that incident and acquitted 

him of shooting from a vehicle, a felony. As a result, the prosecution failed to prove 

felonious conduct in relation to the participation offense charged in count 3. Accordingly, 

insufficient evidence supports that conviction, and it must be reversed. 
32

III

The Trial Court Did Not Abuse Its Discretion By 

Admitting Victim Impact Evidence And, To The Extent It Erred 

By Admitting Lay Opinions Of Police Officers, The Error Was Harmless

We review a trial court’s rulings on the admissibility of evidence for abuse of 

discretion. (People v. Benavides (2005) 35 Cal.4th 69, 90.)

A

Victim Impact Evidence

Defendants contend the trial court erred by permitting some of the victims of 

defendants’ robbery-related offenses to testify about how the crimes affected them beyond 

the event itself. The People argue defendants’ contentions as to some of the victims are 

forfeited for failing to object at trial. The People further argue defendants’ due process 

claim is forfeited because, to the extent they objected to the admission of this evidence, it 

was on Evidence Code section 352 grounds. 

We disagree that defendants forfeited their claim. Defendants made numerous 

objections throughout trial to this type of evidence, and the trial court repeatedly overruled 

the objections. It is reasonable defendants believed further objections would be futile (see 

People v. Powell (2018) 6 Cal.5th 136, 171-172) and, in any event, defendants made clear 

the reasons for their objection to this type of evidence and the trial court made clear its 

position the objections were meritless, such that the claim has been preserved for our review

(People v. Abbott (1956) 47 Cal.2d 362, 372-373). Further, because defendants’ due 

process claim rests on the same grounds as their Evidence Code section 352 claim, we also 

consider this claim preserved. (People v. Partida (2005) 37 Cal.4th 428, 435.) On the 

merits, however, we conclude the trial court did not abuse its discretion by admitting 

evidence of the long-term effect defendants’ crimes had on their victims.
33

1

Background

After the prosecutor elicited testimony from defendants’ victims pertaining to the 

events of the robberies, he asked several of them if they experienced any long-term effects

associated with the robberies. A victim of the Denny’s robbery testified that, for several 

months after the robbery, she had “issues” when going out of the house, especially to 

restaurants. Specifically, she always felt she needed to sit facing a door. Another victim of 

that robbery testified the robbery caused him to occasionally have nightmares and become 

more anxious. A third victim of the Denny’s robbery testified he was afraid to go places 

where there were a lot of people around, especially at night. Finally, a Denny’s employee

testified he suffered no long-term effectsfrom the robbery. A victim of the last convenience 

store robbery testified the robbery was a traumatic experience for him that has had long term 

effects. A different robbery victim testified that, since the robbery, he often gets scared. 

2

There Was No Error

Our Supreme Court has held a “defendant’s claim that . . . testimony constituted 

impermissible guilt phase victim impact testimony is simply an objection that the testimony 

was irrelevant or more prejudicial than probative.” (People v. Banks (2014) 59 Cal.4th 

1113, 1165, abrogated on another ground in People v. Scott (2015) 61 Cal.4th 363, 391, fn. 

3; see People v. Redd (2010) 48 Cal.4th 691, 731, fn. 20 [no distinction between alleged 

error in admission of victim impact evidence and admission of any other irrelevant 

evidence].) Moreover, the California Supreme Court has expressly rejected an assertion that 

the admission of victim impact evidence during the guilt phase at trial, such as that admitted 

here, violates a defendant’s constitutional rights. (Redd, at p. 732, fn. 21.) Thus, as an 

initial matter, we reject defendants’ argument that admission of victim impact evidence

during the guilt phase of trial violated the right to due process.
34

As to defendants’ state law claim, relevant evidence is that “having any tendency in 

reason to prove or disprove any disputed fact that is of consequence to the determination of 

the action.” (Evid. Code, § 210; see also People v. Kraft (2000) 23 Cal.4th 978, 1034.) The 

trial court may exclude relevant evidence if its probative value is substantially outweighed 

by the probability that its admission will create substantial danger of undue prejudice.

(Evid. Code, § 352.) That the evidence is adverse to a defendant’s case does not make it 

prejudicial within the meaning of Evidence Code section 352. (People v. Salcido (2008) 44 

Cal.4th 93, 105.) The prejudice referred to in the statute is evidence which tends uniquely 

to evoke an emotional bias against defendant as an individual and which has very little 

effect on the issues. (People v. Bolin (1998) 18 Cal.4th 297, 320.)

Here, the prosecutor asked some victims of defendants’ robberies and attempted 

robberies how the crimes affected them after the incidents. The trial court found these 

questions relevant to the victims’ credibility. Indeed, a completed robbery or attempted 

robbery requires a finding the defendant took (or attempted to take) property from another 

by force or fear. (§ 211.) The fact a victim experienced long-term adverse effects from an 

interaction such as this would tend to prove the victim was put in fear at the time of the 

incident in question. 

The evidence was further not unduly prejudicial to defendants’ case. Evidence of the 

fear the victims were placed in was already before the jury, making additional related 

evidence unlikely to bias a juror or evoke an emotional response. Also, the prosecutor 

asked minimal questions of each witness, taking up very little time and the subject was not 

the focus of their testimony. Accordingly, the trial court did not abuse its discretion by 

admitting evidence of the ongoing impact defendants’ crimes had on their victims.

B

Any Error In Admitting Police Identification And Opinion Evidence Was Harmless

Defendants contend the trial court abused its discretion by permitting several 

detectives to testify about the identity of the men recorded on surveillance footage. 
35

Hernandez raises a separate but related argument pertaining to detectives’ testimony about

his and J. B.’s conduct while in the parking lot before their arrests. To the extent the trial 

court erred by admitting identification and opinion evidence, the error was harmless. 

1

Background

During motions in limine, defendants objected to the prosecution’s plan to introduce

the testimony of police officers to identify defendants in the surveillance footage. The court 

ruled the prosecutor would be permitted to ask the officers questions related to the identity 

of the subjects captured on the surveillance footage to the extent the testimony was “based 

on their personal review and perception . . . .” 

Sacramento Police Detective Kelley Elliott testified about her investigation into the 

robberies that occurred in Sacramento. As part of her testimony, Detective Elliott said she 

reviewed photographs of evidence seized from the various searches conducted by West 

Sacramento police officers and surveillance footage of the last convenience store robbery. 

During her review of the photographs, she noticed the guns depicted in the photographs of 

items seized from defendants were similar to the guns depicted on the surveillance footage. 

This was also true as to the shoes depicted in photographs of seized items and the shoes 

depicted on the surveillance footage. On cross-examination by Cadenaz’s counsel, 

Detective Elliot testified that, in her opinion, Cadenaz was the man wearing the green gloves 

and holding a black handgun in the surveillance video of the last robbery. She based this 

opinion on “the totality of the evidence located by [the] West Sacramento [Police 

Department] and what has been presented to me, when I look at things similar, such as a 

similar pair of gloves being located, my video surveillance, the shoes, in conjunction with 

the codefendants, what they were wearing, what was seized by them, as well as their shoes, 

the gel shoe lift impression and that conclusion that was made, it leaves me to believe that is 

Mr. Cadenaz in that video.” 
36

During Detective Boudinot’s testimony, he reviewed surveillance footage of the 

robberies with the jury. During that line of testimony, the prosecutor asked Detective 

Boudinot whether he was able to identify the subjects in the surveillance footage, “based on 

[his] personal contact with any of the suspects involved in this case . . . , based on your 

personal conversations with them, based on your ability to observe in person their physical 

stature, based on your review of surveillance footage that you’ve watched in the entirety of 

this case that you were charged with investigating . . . .” Detective Boudinot answered in 

the affirmative. 

He then identified Cadenaz based on his height and build, and Hernandez based on 

his ponytail and the shoes Detective Boudinot seized from him that matched the shoes worn

by one of the suspects in the surveillance footage. In conjunction with these identifications, 

Detective Boudinot extensively testified about the items in the surveillance footage that 

appeared similar to items discovered during searches of defendants’ property and in other 

surveillance footage. 

Detective Boudinot also identified Hernandez’s voice in one of the videos based on 

his interactions with Hernandez and testified to his belief that Hernandez was the subject in 

the video who was in the position to most likely utter the words “come on, come on.” West 

Sacramento Police Detective Anthony Herrera also testified he recognized defendants in the 

surveillance footage depicting the robberies based on his review of the surveillance footage, 

personal interactions with them, and knowledge of their heights and builds. 

Detective Herrera further testified about his observations of the surveillance footage 

depicting defendants with N. L. and J. B. in the apartment complex parking lot before their 

arrests. Detective Herrera identified defendants on the surveillance footage and testified 

that Hernandez’s movements particular to his waistline led Detective Herrera to believe 

Hernandez was concealing a gun in the waistband of his pants. Detective Herrera explained 

he had previously attended a class called “Notice Armed Subjects” where he learned how to 

identify people concealing firearms. Specific to Hernandez, Detective Herrera explained 
37

that Hernandez was touching his waistline “to make sure the gun is still there, the movement 

of the gun, make sure [it] didn’t shift, it is called stat patting, and he definitely did that when 

he got out of the vehicle, when he walked around the front of the hood of the car, and now 

you can see the bulge in the shirt, and then you can still see kind of towards the right side of 

the front side.” Later in the video, Detective Herrera again identified an instance of 

Hernandez “stat patting.” Detective Herrera also pointed out Hernandez’s movements while

parking his car in the parking lot and getting out of the driver’s seat that signaled to him 

Hernandez was concealing a gun in his pants. Indeed, Detective Herrera testified he could 

see a small portion of a silver gun at various points in the surveillance footage. Detective 

Boudinot also testified he believed Hernandez was concealing a weapon in his waistband 

but did not reveal his thought process in reaching that conclusion.9 

During Detective Herrera’s testimony, he also identified J. B. and described his 

movements as “checking the lights in the back of the car to make sure that they’re working.” 

The trial court allowed the testimony over a speculation objection because the jury was able 

to view the video and tell for itself whether Detective Herrera’s impressions of J. B.’s 

conduct were accurate. Detective Herrera further testified that, based on his training and 

experience, he thought J. B.’s conduct was suspicious “in the realm of somebody who has 

committed a crime and doesn’t want to get pulled over, but usually would check to make 

sure that the vehicle that they are driving in will not get pulled over [by] the cops for like a 

headlight being out or taillights or signal lights not working.” The trial court allowed this 

testimony over a speculation objection, noting its admission was a close call. 

Detective Boudinot testified he saw defendants, N. L., and J. B. conducting a brake

check of the gray truck. In his opinion, “this [wa]s to avoid law enforcement detection.” He 

later used this conduct to demonstrate how the group relied on their gang connection to 

conceal evidence. Specifically, “[y]ou have an individual working the brake pedal and an 

9 Hernandez does not challenge Detective Boudinot’s opinion on appeal. 
38

individual on the outside checking the brake lights. This is to ensure that they elude law 

enforcement detection.” 

2

Police Identification Of Defendants

“A lay witness may offer opinion testimony if it is rationally based on the witness’s 

perception and helpful to a clear understanding of the witness’s testimony. (Evid. Code, § 

800.) ‘[T]he identity of a person is a proper subject of nonexpert opinion . . . .’ (People v. 

Perry (1976) 60 Cal.App.3d 608, 612 . . . (Perry); accord, People v. Mixon [(1982)] 129 

Cal.App.3d [118,] 127 (Mixon).)” (People v. Leon (2015) 61 Cal.4th 569, 601.)

In Leon, a detective identified the defendant in surveillance videos. (People v. Leon, 

supra, 61 Cal.4th at p. 600.) The detective was familiar with the defendant based on the 

detective’s postarrest contacts with the defendant. (Id. at pp. 600-601.) That is, the 

detective was the one who arrested the defendant, saw him nearly 10 times thereafter, and 

spent about two hours with him. (Id. at p. 600.) Moreover, the jacket the defendant was 

wearing when he was arrested appeared to be the same jacket worn by the suspect in the 

surveillance videos, and the car in the videos looked like the car the defendant was in when

he was arrested. (Id. at pp. 600-601.) Our Supreme Court concluded this identification was 

properly admitted. (Id. at p. 601.)

Our Supreme Court in Leon cited Perry, where a police officer reviewed video 

surveillance of a robbery. (People v. Perry, supra, 60 Cal.App.3d at p. 612.) The officer 

was able to identify the defendant as one of the robbers based on the officer’s “numerous” 

prior contacts with the defendant in the five years before the robbery and based on the 

defendant’s “abnormal-appearing eye.” (Id. at p. 610.) Other people who did not witness 

the robbery but who knew the defendant (e.g., his apartment manager, the defendant’s 

former employer, and brother) also gave their opinions on whether the defendant was the 

person in the video surveillance, reaching different conclusions. (Id. at pp. 611-612.) In 

upholding the identifications, the court said the witnesses’ opinions were sufficiently based 
39

on personal knowledge, and that the degree of knowledge went to the weight rather than the 

admissibility of the opinions. (Id. at p. 613; accord, People v. Mixon, supra, 129 

Cal.App.3d at pp. 131-132 [officer’s identification of the defendant from surveillance 

photographs admissible because the officer was familiar with the defendant from prior

contacts].)

Defendants do not challenge Detectives Herrera’s or Boudinot’s identifications based 

on their personal knowledge. Defendants challenge their identifications on the ground the 

identifications were not helpful to the jury’s determination of guilt because defendants had 

not changed their appearances since the robberies, as was the case in Leon, Perry, and 

Mixon. Defendants misread these cases. In Leon, our Supreme Court concluded the 

detective’s identification aided the jury because the defendant’s appearance had changed; it 

did not hold that the only reason an officer’s identification would aid the jury was if the 

defendant’s appearance had changed. (People v. Leon, supra, 61 Cal.4th at p. 601.)

In that vein, defendants argue the detectives’ identifications were not helpful because 

the subjects in the surveillance footage covered their faces, thus an identification based on 

facial features was impossible. But Detectives Herrera and Boudinot did not identify 

defendants based on facial features; instead they were identified based on their height, build, 

gait, voice, and clothing. This, in particular, was why Detectives Herrera’s and Boudinot’s 

identifications were helpful. (See People v. Mixon, supra, 129 Cal.App.3d at p. 125 

[identification helpful because robbery suspect wore a ski cap pulled down to his earlobes, 

and the camera angle was such that his face was visible from the middle of the nose down].) 

Although jurors were able to observe defendantsin the courtroom, defendants were sitting 

and the jurors might not have been able to study their movements, height, or build to the 

extent the detectives were able to before trial. For this same reason, we find unpersuasive

defendants’ argument the jury was in a similar position to Detectives Herrera and Boudinot

to assess the identity of the men in the surveillance footage. 
40

Moreover, no witnesses from the robberies were able to identify defendants as the 

robbers. Detectives Herrera’s and Boudinot’s testimony was helpful to the jury because 

they were able to highlight their “ ‘awareness of [certain] physical characteristics’ ” such as

the clothing worn on the day of the burglary. (See People v. Leon, supra, 61 Cal.4th at 

p. 601.) Their identification also assisted the jury to the extent that the quality of the 

footage was unclear or grainy. (See People v. Ingle (1986) 178 Cal.App.3d 505, 513 [layopinion testimony is admissible to aid the trier of fact where a photo is “unclear,” a 

defendant’s appearance has changed, or where a photo is inconclusive as to identity].) In 

addition, “because the surveillance video was played for the jury, jurors could make up their 

own minds about whether the pe[ople] shown w[ere] defendant[s].” (Leon, at p. 601.)

Finally, defendants argue Detectives Herrera’s and Boudinot’s opinions that 

defendants were the people in the surveillance footage was tantamount to an opinion they

committed the offense and, as such, were inadmissible as opinions on guilt. (See People v. 

Torres (1995) 33 Cal.App.4th 37, 47 [witness not permitted to express opinion on 

defendant’s guilt or innocence].) There is a difference between giving an opinion on a 

person’s guilt and giving evidence tending to show guilt. Defendants’ argument fails to 

appreciate that difference by suggesting that any evidence linking a defendant to a crime is 

inadmissible because it supports guilt. That is not the law.

As it relates to Detective Elliott’s identification of Cadenaz in the surveillance 

footage of one of the robberies, she based that identification on evidence collected by other 

officers and not her personal perceptions of Cadenaz. Admission of her identification was 

thus error.10 The error, however, was harmless under any standard. Detectives Herrera and 

Boudinot also identified Cadenaz in that footage and pointed to several items of clothing 

worn by the person in the surveillance footage that were seen in photographs of Cadenaz 

10 We note this evidence was not elicited by the prosecution, but by Cadenaz’s attorney 

on cross-examination. The People do not argue invited error or forfeiture. 
41

and were recovered from cars or houses Cadenaz had access to around the time of the 

robberies. Given the multiple other identifications of Cadenaz in the videos and other 

evidence linking him to the robberies, it is not reasonable the jury relied on Detective 

Elliott’s identification of Cadenaz when it found him guilty of the robberies. 

3

Purported Meaning Of Hernandez’s And J. B.’s Conduct

Hernandez contends the trial court abused its discretion by admitting improper expert 

and/or lay opinion testimony when it permitted Detective Herrera to testify Hernandez had a 

gun in the waistband of his pants and when it permitted both Detectives Herrera and 

Boudinot to testify J. B.’s checking of the brake lights on the gray truck was done for the 

purpose of avoiding detection from police. The People argue Hernandez forfeited the issue 

because he never argued the detectives’ testimony constituted improper expert and/or lay 

opinion at trial, instead he argued only that the testimony was speculative. We agree with 

the People, but also conclude any error was harmless. 

“A verdict or finding shall not be set aside, nor shall the judgment or decision based 

thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] (a) There 

appears of record an objection to or a motion to exclude or to strike the evidence that was 

timely made and so stated as to make clear the specific ground of the objection or motion; 

and [¶] (b) The court which passes upon the effect of the error or errors is of the opinion that 

the admitted evidence should have been excluded on the ground stated and that the error or 

errors complained of resulted in a miscarriage of justice.” (Evid. Code, § 353, subd. (a); 

People v. Bradley (2012) 208 Cal.App.4th 64, 83 [“Appellants waived the claim of error . . . 

by failing to object on the ground [witness] testimony would constitute improper lay 

opinion.”]; People v. Stevens (2015) 62 Cal.4th 325, 333 [the failure to object to admission 

of expert opinion testimony or hearsay at trial forfeits an appellate claim that such evidence 

was improperly admitted].) Having failed to object on the specific grounds raised on 

appeal, defendant cannot now claim error by the trial court.
42

In any event, any perceived error was harmless. It is not reasonably probable the jury 

would have returned a more favorable verdict as to Hernandez had Detective Herrera been 

precluded from testifying to his belief Hernandez was concealing a gun in the waistband of

his pants in the parking lot prior to Hernandez’s arrest. The jury was able to watch the 

surveillance footage of defendants in the parking lot prior to their arrests. While in the 

parking lot, defendants and N. L. moved various items from the gold sedan to the gray truck, 

including the nine-millimeter handgun used in the robberies, which was wrapped in a red 

rag. Many of the items used by defendants during the robberies or taken from victims 

during the robberies were found in the gold sedan, which Hernandez’s wife owned, and 

Hernandez drove. A text message found on Hernandez’s phone referenced his possession of 

the .38-caliber revolver around the time of the crimes. Further, upon Hernandez’s arrest, the 

.38-caliber revolver was found in the gray truck in Hernandez’s presence and Hernandez 

admitted to possessing a bullet from the .38-caliber revolver. Taking this evidence together, 

it is clear the jury would have found Hernandez was in possession of the revolver Detective 

Herrera believed him to be concealing around the time of the robberies even if Detective 

Herrera had never testified about his opinion. 

Similarly, it is not reasonably probable the jury would have returned a more 

favorable verdict as to Hernandez had Detectives Boudinot and Herrera been precluded 

from testifying to their belief the group of men were attempting to avoid detection of law 

enforcement when they checked the brake lights on the gray truck. Before checking the 

brake lights, defendants and N. L. moved several items of incriminating evidence from the 

gold sedan to the gray truck, including packages of Swisher Sweets cigars and guns. They 

then covered the gold sedan with a car cover. These actions demonstrate defendants’ intent 

to conceal evidence of their crime or otherwise avoid detection. Their additional act of 

checking brake lights on the gray truck added little to this determination. 
43

IV 

Any Error Pertaining To CALCRIM No. 417 Was Harmless Beyond A Reasonable Doubt

Hernandez contends the trial court erred by instructing the jury with CALCRIM No. 

417 because the instruction permitted the jury to find he was part of a conspiracy by relying 

on an attempted commission of a crime, which is not a valid theory of guilt. The People 

properly recognize this issue is not forfeited. “Because [defendants’] contention is that the 

instructions caused [them] to be convicted under an invalid legal theory, this contention 

need not be preserved by objection in order to be considered on appeal.” (People v. Powell

(2021) 63 Cal.App.5th 689, 710; see People v. Valdez (2012) 55 Cal.4th 82, 151.)

A

Background

The trial court instructed the jury pursuant to CALCRIM No. 417, pertaining to the 

liability of a coconspirator, in pertinent part: “A member of a conspiracy is criminally 

responsible for the crimes that he or she conspires to commit, no matter which member of 

the conspiracy commits the crime. [¶] A member of [a] conspiracy is also criminally 

responsible for any act of any member of the conspiracy if that act is done to further the 

conspiracy and that act is a natural and probable consequence of the

common plan or design of the conspiracy. . . . [¶] . . . [¶] To prove that defendant 

Ricky Hernandez is guilty of the crimes charged [in various counts], the People must prove[, 

among other elements,] that: [¶] 1. The defendant conspired to commit one of the following 

crimes: Robbery, attempted robbery, assault with a firearm and possession of marijuana for 

sale.” (Italics added.) 

B

Any Error Was Harmless

The People concede the trial court erred by instructing the jury with CALCRIM No. 

417, in that it could find Hernandez guilty on a coconspirator theory of liability if it found 

he conspired to commit an attempted robbery. Indeed, as we have held, the crime of 
44

conspiracy to commit an attempted specific-intent offense is a “conclusive legal falsehood,” 

because “[n]o one can simultaneously intend to do and not do the same act . . . .” (People v. 

Iniguez (2002) 96 Cal.App.4th 75, 79.) In other words, “under a traditional conspiracy 

approach, one cannot conspire to try to commit a crime.” (People v. Johnson (2013) 57 

Cal.4th 250, 264.) 

“ ‘Misdescription of an element of a charged offense is subject to harmless error 

analysis and does not require reversal if the misdescription was harmless beyond a 

reasonable doubt.’ ” (People v. Brooks (2017) 3 Cal.5th 1, 69.) To conclude an 

instructional error harmless beyond a reasonable doubt, we must conclude the error “ ‘did 

not contribute to the verdict’ ” or that the error was “ ‘ “ unimportant in relation to 

everything else the jury considered on the issue in question, as revealed in the record.” ’ ” 

(Id. at p. 70.)

Recently in Powell, we held that, because the error “was ‘unimportant in relation to 

everything else the jury considered on the issue’ of [defendant’s] liability for second degree 

murder,” it was harmless beyond a reasonable doubt under Chapman. (People v. Powell

(2021) 63 Cal.App.5th 689, 718; People v. Neal (2003) 31 Cal.4th 63, 86.) “Of key 

importance to our determination that the instructional error . . . was harmless [was] the fact 

that the prosecutor did not rely on” the invalid theory, as “[c]ourts look to the prosecutor’s 

argument as a relevant circumstance in determining whether instructional error is harmless.” 

(Powell, at p. 715.) “Under the circumstances of th[e] case,” we determined, “given that the 

jury was never steered in [an invalid] direction, it [was] clear” the instructional error was 

harmless. (Id. at p. 716; cf. Boyde v. California (1990) 494 U.S. 370, 380-381 [108 L.Ed.2d 

316, 329] [because “[j]urors do not . . . pars[e] instructions for subtle shades of meaning in 

the same way that lawyers might,” a “commonsense understanding of the instructions in the 

light of all that has taken place at the trial” is “likely to prevail over technical 

hairsplitting”].)
45

Here too, the trial court’s instructional error (identifying attempted robbery as one 

object of the alleged conspiracy) was harmless beyond a reasonable doubt, because it was 

unimportant in relation to everything else the jury considered, given the evidence and 

closing argument. The prosecutor relied on the fact he believed defendants were involved in 

a conspiracy when presenting his case to the jury. His argument started out by imploring 

the jury to look at the circumstances of the “robberies” and how the method by which 

defendants arrived at the scenes of the robberies, executed their plan, and left the scenes 

looked orchestrated. When going through the facts of the crimes and alleged charges, the 

prosecutor did not refer to the events as attempted robberies but generally as robberies. The 

prosecutor further spoke of the conspiracy as a conspiracy to commit robbery and did not 

refer to other offenses defendants committed together during that discussion. Similarly, 

defendants’ attorneys characterized the events generally as robberies, and referred to the 

conspiracy as a conspiracy to rob. As a result, the jury was never steered down a path of 

finding Hernandez culpable of conspiracy on an impermissible theory of liability. 

Nor could the jury have been steered down the wrong path. The only thing that 

distinguished the robberies from the attempted robberies was that defendants were unable to 

take property from the victims they attempted to rob. In the end, the attempted robbery 

victims were in the presence of the robbery victims, making any finding defendants 

conspired to commit attempted robbery necessarily a finding they conspired to commit 

robbery. Thus, while the instruction permitted the jury to find Hernandez to be part of a 

conspiracy based on an attempted robbery, among other crimes, it is clear from the parties’ 

closing arguments and the facts of the crimes that the jury was never steered toward that

theory. 

V

There Was No Cumulative Error

Hernandez contends cumulative error resulted from the combined effect of the 

individual errors alleged in his opening brief and adopted from Cadenaz’s opening brief. 
46

“Cumulative error is present when the combined effect of the trial court’s errors is 

prejudicial or harmful to the defendant.” (People v. Capers (2019) 7 Cal.5th 989, 1017.) 

“The ‘litmus test’ for cumulative error ‘is whether defendant received due process and a fair 

trial.’ ” (People v. Cuccia (2002) 97 Cal.App.4th 785, 795.) 

We have already concluded Hernandez’s convictions for the participation offenses, 

with the exception of count 3, and his gang-related enhancements need to be retried, but that

his guilt on the other offenses was not a product of the gang evidence admitted at trial. We, 

however, determined the trial court did err in giving the conspiracy instruction and assumed 

the trial court erred by permitting officers to testify to certain lay-opinion testimony. 

Considering the instructional and evidentiary errors in conjunction with the gang evidence, 

our conclusion remains unchanged that Hernandez received a fair trial on the substantive 

offenses and gun enhancements affirmed by this opinion.

VI

The Trial Court May Address Defendants Alleged Sentencing Errors On Remand

Defendants raise several claims of error occurring at sentencing. Cadenaz argues the 

trial court erred by imposing various fines and fees without first holding an ability-to-pay 

hearing and that recent amendments enacted by Senate Bill No. 567 (2021-2022 Reg. Sess.) 

retroactively apply to him. Hernandez argues the trial court imposed an unauthorized 

sentence on one of his attempted robbery convictions, erred by imposing various fines and 

fees without first holding an ability-to-pay hearing, and was unaware of its discretion to 

strike any or all of the firearm enhancements found true by the jury.

We need not address defendants’ contentions because their case must be remanded 

for further proceedings after which the trial court will resentence them. (See People v. 

Ramirez (2019) 35 Cal.App.5th 55, 64 [when a case is remanded for resentencing, the trial 

court may consider the entire sentencing scheme and has jurisdiction to modify any aspect 

of a defendant’s sentence].) At that time, defendants will be given the opportunity to raise 

any issues they believe relevant to their sentencing.
47

DISPOSITION

Defendants’ convictions for the participation offenses are reversed and the gangrelated enhancements are vacated. The matter is remanded for retrial on those offenses and 

enhancements, except as to Hernandez’s participation offense that was predicated on his 

exhibition of a firearm (count 3). Following retrial on the gang-related offenses and 

enhancements, the trial court shall resentence defendants under all newly-enacted provisions 

in effect at the time of their resentencing and address any sentencing contentions defendants

raise at that time.

/s/ 

Robie, Acting P. J.

We concur:

/s/ 

Mauro, J.

/s/ 

Krause, J.