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Filed 9/ 30/ 22 P. v. Hernandez CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. C0 88237 (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 defendant s ’ 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 , t he jury found defendants guilty of several participa tion 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 offense s 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 retroactive ly to defendants such that thei r case must be remanded for retrial of the participation offenses and gang

- related enhancements. We agree and remand accordingly.
Defendants further 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 conten ds his
conviction for the par

ticipation offense predicated on his misdemeanor exhibition of a
firearm conviction is not supported by sufficient evidence

. We agree with Hernandez that
there was in suffici ent evidence supporting one of his participation offense s but disagree
with both d efendants that there was in sufficien t 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 the ir 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 consider ing 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, w e 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 1 8 and th e early

- morning hours of October 19 , d efendants, 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

. A n employee of the store thought this behavior was odd and took notice of Hernandez such that t he employee

was able to identif y Hernandez a t 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 s oon left

. The employee
followed them out the door and watched them walk to their car. While walking to the car,
Hernandez turn ed 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 wh en 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 g old 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
hood ed jacket with a white and black bandana face covering , approach the convenience

stor e

. One of the me n wore black shorts and green gloves and possessed a black semiautomatic handgun , while the other wore a single gray glove and possessed a gun

. T he

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 Sweet s 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 wer e wearing hooded jackets and masks and holding gun s

. 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 hand gun at them . Another

man , dressed in blue washed jeans, went to the kitchen and forced the lin e 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 regi ster. 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 ma sk ed 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. T he 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 person5

had a ponytail and another was wearing long black shorts. The men l eft 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 demand ing 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
fe lony 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 in to 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 transfer r ed items from the gold sedan to the gray truck and covered the gold sedan with a car cover. Before leaving t he 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 surv eillance footage
from the robberies , as well as the same ponytail hairstyle worn by that suspect

. Following defendants’ arrest s , 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

. T

hey also found a red bag with white polka dots containing Cadenaz’s driver’s license , multiple jars holding a total of 539 grams of mariju a na , and the6

key to a blue se dan

. 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 w ith S wisher
S weets 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 assur ed 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

m arijuana 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 go ne into a

store that night

. During the search of the blue sedan owned by Caden az’s girlfriend, officers found two packs of Swisher Sweet s 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 backp ack 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 b lack 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 ho me , where officers believed Cadenaz and N. L. were also staying, officers found t wo hood ed 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

r obbery 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. ask ed Hernandez whether he was going to bring the rest of the money over later. Also found , were multiple text messages sent a nd received
between June and August 2016 relate d to the sell ing 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 sedan s

. A sho e print impression taken from one of the
convenien ce store robberies was a possible match to a black shoe with a white sole seized
from Hernandez

. Both the revolver and nine

- millimeter s emiautomatic 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 o f the Norteño criminal street gang. T h ey 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 B R K , and depictions of crowns. Further, gang members typically associate gang membership w ith 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 the8

Bro derick Boys, Detective Boudinot often sees members with the phrase East Yolo or East Yolo Boys tattoo ed on their bodie s

. There are various ways to becom e a gang member

. A person can grow up in side 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 commit s crimes in the presence of gang members or affiliates . The purpose of
this is to prove a p otential member’s worth and loyalty to the gang. Another way to become part of the gang is to be “ j ump ed 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. G ang tattoo s are allowed with permission and must be earned. In gang culture, reputation is everything. Detective Boudinot testified the Broderick Boys’ primary criminal activities a re : “assault with a deadly weapon, narcotics sales, vehicle theft, [and] robbery , ” as well as intimidating witnesses , burglar y , and shooting at inhabited dwellings

. The Broderi ck Boys

are financially sustain ed 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. T

ypical characteristic s of crime s committed by the Broderick Boys are that
the crimes are commit ted 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 enhancement s, and a participatio n offense

. In Detective Boudinot’s opinion, J. B. was an active Broderick Boy s
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

F urther, officers fo und 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 Boudin ot pointed to Robert V .’s 2014 no contest plea for carrying a concealed weapon and a participation offense

. In Detective B oudinot’s opinion, Robert wa s an active Broderick Boy s 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 c ontest plea of Kenneth R

. for carrying a concealed weapon and a partic ipation offense

. Detective Boudinot based his opinion that Kenneth was an active Broderick Boy s gang member at the time of his offense s based on photos of Kenneth with other gang member s , 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

. Detec tive Boudinot then pointed to t wo cases involving Michael R.

-- one where he

was convict ed 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 marijuan a for sale

. In Detective Boudinot’s opinion,
Michael was an active Broderick Boy s gang member on the date of his crimes because
Michael had been class ified as a validated gang member by police officers and he had multiple tattoos associated with the Norte ño 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 participati o n offense

. Detective Boudin ot believed Joel was an active Broderick Boys gang member
because he committed the crimes with other active Broderick Boys gang members, h e had10

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
member s. 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 Alec 4 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, a ll three men can be seen flashing handful s of cash

. In the video s , both before and af ter 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 f irearm in the center console, and a small amount of marijuana

. Officers also found a loaded modified r ifle in the trunk. Officers found a rap video entitled “Active” posted online showing Cadenaz and known gang members

. T h e video was filmed in West Sac ramento 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 gre w 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 . T o Detective Boudinot, this was significant because it referenced the
number 14 and showed Cadenaz was continu ing to participate in gang activ ity 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 traf fic 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 tattoo ed 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 w ere ri ding public transit without the proper fare. Hernandez was wearing red items of clothing at the time

. He rnandez was also contacted by police i n July 2014 after he was involved in a fight that included the presence of a knife

. Th re e other people were con tacted with Hernandez , two of whom were validated Norteño gang members , although not members of the Broderick Boys subs et

. One of the validated Norteño gang members and the other
individual wer e Hernandez’s brothers.
In April 201 6, Hernandez was contacted by police in connection with a report of a large fight in d owntown 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 enco untered 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 add ition to his police contacts, Hernandez had several tattoos indicative of gang membership. Across his chest i s the word Turlock in bold lettering , on his right shoulder i s12

the letter N, and on his left shoulder is the letter X and the number 4. On Hernandez’s r ight
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 t ext messages referencing the 14 bonds , which is important in Norteño culture and c onstitute s the gang’s governing rules. Hernandez also communicated with known Broderick Boys gang mem be rs via text message , including Cadenaz, and referred to them as “carnal,” meaning brother , which is common
among closely affiliated gang members.
Fi nally, as to Hernandez, Detective Boudinot found a rap video on the internet posted by a n 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 m ember, while they were pointing a green laser into the sky a t a California Highway P atrol 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 spitti ng on him twice. There were other people present and

one of them record ed the assault. J. B. said Broderick to the camera during the assault. During a search of a b ag filled with J. B.’s clothing , officers found a b elt buckle with
the letter B on it , shoes with r ed soles, and a red canvas belt. J. B . had multiple photos on
his social media profile of him f lashing gang signs a ssociat ed 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 include d
the term Broderick and the area code 916, which is the area code of the Broderick Boys ’
claimed territory.13

As it relat ed to N. L., he was arrested in January 2014 with two other juvenile s for spraying graffiti depict ing the number 14 , the acronym BRK, dot s representing the number
14 , the term North Side , and the word Broderick. In August 2015, N. L. was arrested after
de manding 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
th os e 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 ba g of marijuana while wearing red and flashing gang signs. Following the crimes , N. L. was in several gang

- related rap videos posted online , which
contain ed documented Broderick Boys gang members

. As for the robberies themselves, Detective Boud inot believed they were committed for the benefit of a criminal street gang. T o D etective Boudinot , the r obberies appear ed 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 w as a loosely structured gang and e ach member decide d on his own the day

- to

day criminal activities to engage in with out coordinati ng with the larger gang structure

. Detective Boudinot also thought it significant the group used guns during the
commission of the robberi es

. The fact that defendants did not flash gang signs or w ear 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 commit ting the crime s and conceal ing th e i r criminal activity

. That bond was made evident by defendants’ associat ion with gang14

members around the time of the crime , possession of gang clothing , and reliance on the
gang principle of loyalty during the police interviews

. II I
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

- rel ated
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 e ach of these offenses , except for the possession of marijuana for sale offense , the jury found true attached gang enhancements

. As to the second degree robber ies and attempted robber ies , the jury also
found true various gun enhancements. In Cadenaz’s case, the jury found true both personal

use of a firearm enh ancement s and the gang

- related gun enhancement s ; while in
Herna n dez’s case, the jury found true only gang

- related gun enhancement s

. Defendant s were each found guilty of multiple pa rticipation offenses, and, for one of those offenses , the jury found true a n 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 e nhancement, we need not go into the particulars of the sentences or the imposed fines and fees.15 DISCUSSION
I Assembly Bill No. 333 Require s Defendants Be Retried
On Only The Participation Offenses And Gang

- Related Enhancements
Defendant s 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 b e vacat ed but disagree as to
the other convictions and enhancements

. A Applicable Law
Penal Code 6 s ection 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 directi on 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 “financ ial 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 suffice d

. ( See Peop le 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 b e tried in a separate phas e 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. T

his 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 conten d 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 enhancement s apply retr oactive ly , but argue the addition of section 1109 , which allow s 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 th is provision is retroactive
because , even if we assum e it is , defendants cannot show the failure to hold a bifurcated proceeding contributed to the jury’s gui lty verdict s 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 statu tes 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 Eig ht , 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 ame ndment 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; Peopl e 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 an d gang

related 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, a nd we agree, th e 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 t hat 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 Boy s gang was a loosely organize d ga ng 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 re putational.” (§ 186.22, subd. ( g).) Given Detective Boudinot’s focus on the reputational benefit the crime s 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 , 7719

Cal.App.5th at pp. 1125

- 1131.) But others have concluded section 1109 operates only prospectively given the pr ocedural 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

- r elated enhancements

. Relying on dicta in People v. Burgos , supra , 77 Cal.App.5th 550 at page 568 (rev iew granted July 13, 2022, S274743), defendants argue the failure to bifurcate gang

- related charges and enhancements in accordance with section 1109 consti tutes 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 [concludin g § 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 err or 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 He rnandez’s conviction for exhibition of a firearm, surveillance
cameras recorded Hernandez inside a convenience store and a witness identified Hernandez20

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 th e exhibition offense.
As it pertains to defendants’ conviction s 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 consp iracy and the robbery

- related offenses, defendants were
recorded on surveillance cameras either committing the robberi es or entering/leaving the places that were robbed. While the video s were grainy, shoes similar to the black shoes
with white soles one o f the suspect s w ore on the surveillance footage were found in
Hernandez ’s possession and a shoe print taken from one of the convenience stores possibly
matched that sho e

. T

he 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

t he truck defendants were arrested in , as well as near the blue sedan owned by C a denaz’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
Hernan dez’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 surveillan ce footage also wore bright green gloves and possessed a black semiautomatic handgun. Further,
defendants attempted to conceal evidence used during the crime by cover ing both the gold
sedan and blue sedan with car covers. Given this strong evidence disti nct from the evidence related to defendants’ gang involvement , we are convinced beyond a reasonable doubt the gang evidence did not contribute to t he jury’s determination that defendants committed the robbery

- related offenses. Accordingly, reversal of defendants’ conviction s and
enhancements not pertaining to the gang affiliation is unwarranted. For these same reasons, we find unpersuasive defendants’ claim the prejudicial

s pillover doctrine adopted by the Third Circuit Court of Appeals , if applie d here, results in reversal of defendants’ convictions and enhancements unrelated to their gang involvement

. (See U.S. v. Wright (3d Cir. 2012) 6 6 5 F.3d 560 , 575 [ utilizing a four

- f actored test to
determine whether evidence pertaining to insufficiently proven charges influenced the findings on the remaining charges ] .) As demonstrated, t he 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 i n the surveillance footage and it coul d
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 fre que ntly 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 ch arges and enhancements

. We presume the jury followed these ins t ructions. ( 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 Retrie d
On All Participation Offenses And Gang

- Related Enhancements Defendants contend insufficient evidence was p resented under the former version of
section 186.22 ( Stats

. 2017, ch. 561, § 17 9 ) 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 agr ee with the People.

7 W e do not need to address Hernandez’s challenges to the trial court’s admission of the rap video referring to hi m 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 address es evidentiary argument s anew and c onsider s 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 t o 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 .)
F or 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 a dmitted”].)
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 enhancement s , wa s “any ongoing organization, association, or group of three

o r 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 spe cified crimes; and (3) the group ’ s members24

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 include d murder, robbery, bu rglary, 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 P eople 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 th e 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 wa s settled that expert testimony could establish the primary activities element. ( P eople 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 argument s 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 failur e 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] suff icient 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 polic e 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 f ellow 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.4 th 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 ga ng members about gang ’ s activities, and testified about two predicate offenses].) Conversely, i n 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, a uto/vehicle burglaries, felony graffiti,26

narcotic violations.’ ” (

Id . at p. 611.) T

he expert , however, “did not directly testify that criminal activities constituted [the gang ’ s] primary activities.” ( Id . at pp. 611

- 612.) No further questions were aske d about the primary activities, and no specifics were elicited as to the circumstances of the crimes or how the expert obtained the information. Further, t he
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 year s. H e 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 member s and community members regarding local gangs o ver 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 ide ntification 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 assault s with a deadly weapon, narcotics sales, vehicle thef t s , robber ies , shooting s 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 includ ed 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 crim es

. The evidence also demonstrated Hernandez’s past criminal activity involv ed assaults with other known gang27

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 gan g members, including N. L. , made rap videos promoting the gang’s criminal activities , including narcotics sales , gun possession, assau lts , and robberie s

. Many of the crimes articulated by Detective Boudinot from his experience , as well as those revealed in certified record s , 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
testif ied to the crimes he knew some Broderick Boys gang members had commit ted, 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

c rimes 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 th rough its reputation and violent crimes , including those outlined by Detective Boudinot

. A reasonable inference from this testimony is that Detective Boudinot bel ieved the primary activity of the Broderick Boys gang was criminal activit y

. Relying on People v. Perez (2004) 118 Cal.App.4th 151, d efendants further contend the evidence was insufficient to establish the Broderick Boy s’ primary activit y w as criminal

act iv iti es 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.
I n 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 p p. 153

- 154.) In total, t he prosecution presented evidence that six years earlier gang members had been involved in the attempted28

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 w ere the commission of the enumerated offenses in former section 18 6.22, 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 o f [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

. T he prosecution relied

on Detective Boudi not’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 findin g the Broderick Boys consistently and repeatedly committed criminal activit ies listed in former section 186.22 , s ubdivision (e) a s required by Sengpadychith

.29 C Evidence Demonstrated Defendants Specifically
Inten ded To Benefit The Broderick Boys Gang
Former section 186.22 , subdivision (b) enhanced punishment when the defendant

wa s 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).)
T h is 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) 5 1 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 as sociation 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 wi th 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 committ ed 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 1 86.22, 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, wh ile the prosecution
argue d defendants committed the crime s to enhance their reputation within the gang , Detective Boudinot’s testimony did not support this contention and instead pointed merely30

to the fact defendants were gang members to demonstrate their commission of the alleged crimes was gang related. Not so. As described, D etective 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 willing ness to put oneself at risk for the gang and keep th e 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 indivi dual 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 bon d 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 thos e photos he was holding a gun similar to the gun used in the robberies. In a pictur e 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 th e s e photo s is that Cadenaz shared with Broderick Boys affiliate s th e fact he committed robberies , and thus bolstered his reputation
with those affiliate s

. Similarly, when defendants were arrested , they relied upon gang themes of l oyalty 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 bolsterin g 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 bo a sting 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 finding s defendants intended to benefit the Broderick Boys gang during the commission of the charged crimes

. D
Evidence Did Not Demo nstrate Hernandez Participated In A Criminal Street Gang When Exhibit ing A Firearm Under the former gang statute, “ l iability [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[e d ] 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 [, sub division ] (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 par ticipation 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 th e 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 Opinion s 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
de fendants ’ robbery

- related offenses to testify about how the crimes affected them beyond
the event itself

. The P eople 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 through out trial to this type of evidence , and the trial court repeatedly overruled the objection s

. 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 cl ear 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, becaus e 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 i ts 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 e ffect s 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 ho use , especially to

restaurants. S pecifically, s he a lways felt she needed to sit facing a door. Another victim of that robbery testified the robbery caused him to o ccasionally ha ve 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 effects from 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
O ur 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 , r elevant evidenc e 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 ev idence 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
ef fect 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 a ffected 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 t ook (or attempted to take) property from another by force or fear. (§ 211.) The fact a victim experienced long

- term adverse e ffects 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 bef ore the jury, making additional related
evidence unlikely to bias a juror or evoke an emotional response

. Also, t he prosecutor asked minimal questions of each witness, taking up very little time and the subject was not the focus of their testimony

. Accor dingly, the trial court did not abuse its discretion by admitting evidence of the ongoing impact defendants’ crimes had on the ir 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 ab out 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

. T o the extent the trial court erred by admitting identification and opinion evidence, the error was harmless

. 1 Background
D uring motions in limine, d efendants 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 identi ty of the subjects captured on the su rveillance footage to the extent the testimony wa s “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 testim ony, Detective Elliott sai d she

re viewed photo graphs 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 gun s depicted on the surveillance footage

. This was also true as to the shoes depicted in phot o graphs of seized item s 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 las t 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

D uring 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 [h is] 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 su bject 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 height s and build s

. 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 peop le concealing firearms. Specific to Hernandez , Detective Herrera explained37

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 d id 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 pa nts. 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 co urt 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 trainin g 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 Hernan d ez does not challenge Detective Boudinot’s opinion on a ppeal.38

individual on the outside checking the brake lights. This is to e nsure that they elude law enforcement detection.”
2
Police Identification Of Defendants “A lay witness may offer opinion testimony if it is rati onally 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 whe n 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 , s upra , 60 Cal.App.3d at p. 61 2 .) 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 surve illance, reaching different conclusions

. ( Id . at pp. 611

- 612.) In upholding the identifications, the court said the witnesses’ opinions were sufficiently based39

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 gui lt 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 , sup ra , 61 Cal.4th at p. 601.)
In that vein , defendants argue the detectives’ iden t ification s 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,
ga i t, 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 juror s were able to observe defendant s in 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 unpersuasi ve defendants’ argument the jury was in a similar position to Detectives Herrera and Boudinot to assess the identity of the m e n i n 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 [lay

opinion testimony is admissible to aid the trier of fact where a pho to 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] de fendant [s] .” ( Leon , at p. 601.)
F inally, defendants argue D etectives Herrera ’ s and Boudinot’s opinion s that
defendants w ere the pe ople in the surveillance footage was tantamount to an opinion t he y committed the offense and, as such, w ere inadmissible as opinion s 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 identificatio n was thus error. 10 The error, however, was harmless under any standard. Detectives Herrera and
Boudinot also identified Cadenaz i n that footage and pointed to several items of clothing worn by the person in the surveillance footage that were seen in pho tographs 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 r ecovered from cars or houses Cadenaz had access to around the time of the
robberies. Given the multiple other identifi c ations 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 t he 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 te stify 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 la y 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.4 th 325, 333 [ t he 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 no w 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 Herna ndez 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 robber ies 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

- c aliber 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 revolv er 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
enf orcement when they check ed 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 deter mination.43 IV Any Error Pertaining To CALCRIM No. 417 Was Harmless Beyond A Reasonable Doubt
Hernandez contend s 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 conspir acy by relying on an attempted commission of a crime, which is not a valid the ory 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 inval id 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 co c onspira tor , 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 th e 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 consp iracy

. . . . [¶] . . . [¶] 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 of44

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.)
“ ‘ M isdescription 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.) T o conclud e 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 , w e 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 beyo nd 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 di d 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 ; c f. 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 techn ical 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 consi dered, 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 th e “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’ at torneys 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 a n 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 contend s cumulative error resulted from the combine d 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.)
W e have already concluded Her nandez’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. W e , however, deter

mined the trial court did err in giving the conspiracy instruction and assumed the trial court erred by permitting officers to testify t o certain lay

- opinion testimony

. Considering the instructional and evidentiary error s in conjunction with the gang evid ence, 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.)

retro actively 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 discreti on 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 re versed and the gang

related 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.