Filed 11 / 22 / 22 P. v. Barajas CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

Plaintiff and Respondent,

v.

ROBERTO BARAJAS

,

Defendant and Appellant. 2d Crim. No . B 3 141 91 (Super. Ct. No. GA074425 ) ( Los Angeles County )

Roberto Barajas appeals f ollowing a remand for
resentencing . In 2015 , a jury convicted appellant of first

- degree

murder ( Pen

. Code

, 1 § § 187

, subd. (a)

, 189 ) and found true
allegations that the crime w as committ ed for the benefit of a
criminal street gang ( § 186.22

, subd s

. ( b) (1), (c) ) and that a principal personally used and discharged a firearm causing great bodily injury or death ( § 12022.53

, subd ( d) & (e)(1 ) )

. The trial

court sentenced him to an aggregate term of 50 years to life in

1 Unless otherwise stated, all statutory references are to

the Penal Code.2

state prison

, consisting of 25 years to life for the murder plus a
consecutive term of 25 years to life for the firearm enhancement.

A ten

- year gang enhancement was imposed and stayed pursuant

to section 654

. We affirmed appellant’s murder conviction on direct appeal,

but remanded for the trial court to consider whether to exercise

its discretion to strike appellant’s firearm enhancement pursuant

to Senate Bill No. 620, which had gone into effect while the
appeal was pending. ( People v. Barajas (

May 29, 2019

, No.

B 266151 ) [ no npub. opn.].) O n remand, the trial cour t declined to

strike the fir earm enhancement but struck fines and fees that

had been imposed against appellant.

While this appeal from the resentencing was pending

, the
Legislature enacted Assembly Bill No. 333 (AB 333)

, which
changed the substantive requirements for proving the gang and

firearm enhancement allegations found true in this case. Appellant contends, and the People correctly concede, that this

new law applies to appellant because his judgment of conviction

has yet to become final

. The parties also agree that this new law
compels the reversal of the subject enhancements because (1)

the re was no evidence that the predicate offenses offered to prove

a pattern of criminal gang activity benefitted the gang in a

manner that was more than merely reputational

, and (2 ) a true finding on the gang enhancement allegation was an essential

element of the firearm enhancement allegation. Accordingly, we
shall reverse the true findings on both enhancement allegations

and remand for further proceedings.

AB 333 also amended section 1109 to require that gang
enhancement allegations be bifurcat ed at the defendant’s

request. Appellant contends that this new procedural law also3

applies retroactively to his case and compels the reversal of his

murder conviction

. We reject this contention for lack of
prejudice

. 2

STATEMENT OF FACTS 3
In 2007 or early 2008, victim Jennifer Ortega became
romantically involved with Jaime Flores, a former member of the
Villa Boys gang in Pasadena. Flores left the gang after he was
sentenced to prison in 2006. Following his release from prison,

he met Ort ega and they began spending time together, having
sex, and using drugs.
On April 16, 2008, Ortega and Rudy Martinez, a Pacoima
gang member who was on parole, were arrested for possessing
methamphetamine. Ortega initially acknowledged that the drugs

she had been seen discarding were hers, but later told the police
the drugs belonged to Martinez.
On August 7, Villa Boys member Eddie Solario sent a letter
from prison to gang associate Debbie Garcia. The letter stated
that a fellow prisoner had “paperwork” indicating that Ortega
had blamed him for drugs found in her possession. Solario told
Garcia that Ortega “knows you ’ re not supposed to talk to cops.

Now she has to live with that for the rest of her life. Don ’ t forget
to tell all them youngsters that. That way they don ’ t make that

mistake.” In a letter dated August 17 that was never sent,

2 Because we are reversing the firearm enhancement, appellant’s claim that the trial court was unaware of its
discretion to reduce the firearm enhancement allegation to a

lesser enhancement (

People v. Tirado (2022) 12 Cal.5th 688 ) is

moot.

3 The relevant facts are recited from our 2019 unpublished opinion. (

People v. Barajas

, supra , B266151.)4

Garcia told Solario that “everyone in Pasa[dena] is looking for
[Ortega] literally cuz she ’ s fucking up and burning people.”
Appellant was also a member of the Villa Boys gang. After
Flores left the gang, appellant began leaving him threatening
voicemail messages. In one message appellant told Flores, “We ’re
goin g to get you guys.” A few days prior to Ortega ’s murder, she
and Flores saw appellant at an apartment building frequented by
members of the Villa Boys. Appellant called Ortega and Flores

“snitches” and told them “we ’re going to get you.” Flores told

Ort ega to stay home with her family and avoid neighborhoods
occupied by the Villa Boys.
At 2:00 a.m. on August 19

, S.K. was in a building in
Pomona when she saw appellant holding a silver semiautomatic
handgun. S.K. watched appellant as he removed a magazine
from the gun and reloaded it. She subsequently saw him leave in

a PT Cruiser.
At about 9:45 p.m. that night, Aaron Gomez saw a black PT
Cruiser enter the parking lot of a closed store in Pasadena. A
short time later, Gomez heard two or three gunshots, t hen saw
the PT Cruiser and a red car drive away. As the PT Cruiser was
leaving, the front passenger door was opened. Guillermina
Alvarez also heard the gunshots and saw a dark PT Cruiser
speed away with its headlights off, followed by a red car.
Shortly after both cars left, Gomez and Alvarez heard a
woman screaming and saw Ortega crawling out of the parking lot

toward the sidewalk. She had been shot three times in the bac k

and later died of her injuries.
The police recovered three expended casings from the scene
of the shooting. Testing confirmed that the casings were all fired

from the same 9

- millimeter semiautomatic handgun. The casings5

were placed onto a gauze pad in a clean and sterile scent transfer
unit (STU) for possible dog trailing. The pad was subsequently
placed in a heat

- sealed bag for possible future use.
The police also obtained surveillance video from a gas
station located at the intersection where the shooting occurred.

The video shows the driver of a black PT Cruiser make a U

- turn,

turn off the car ’s headlights, and back into the parking lot where

Orte ga was shot less than two minutes later. After the shots
were fired, the PT Cruiser is seen speeding away with the front
passenger door slightly open. Shortly thereafter, another car is
seen leaving the parking lot with its headlights off.
On August 28, Pasadena Police Detective William
Broghamer saw a black PT Cruiser in the parking lot of a motel

in Pasadena . After the detective determined that the PT Cruiser
was registered to appellant he observed appellant, Villa Boys

associate Maria Herrera, and thr ee other females get into the

vehicle

. As appellant was about to drive away, Detective
Broghamer stopped the vehicle and detained its occupants.
Appellant was arrested and t aken to the police station. That
same night, the police searched appellant ’s bed room and found a
computer that had been used to access a news article about
Ortega ’s murder. The computer had also recently been used to
visit the website for Kelly Blue Book, which provides estimates
regarding the resale value of used vehicles. On Septe mber 1,
during a dog scent test conducted with the gauze pad in which
the shell casings from the crime scene had been placed

, the dog
alerted to appellant

. Villa Boys associate Richshawna Whitten told the police

she had heard prior to Ortega ’ s murder that she had been
“snitch[ing]” and identified appellant as the driver of a black PT6

Cruiser. Whitten initially denied being present when the
shooting occurred but said she had heard that appellant and
another Villa Boys member she knew only as “ Mono” had

committed the crime. Whitten eventually admitted she was
present when Ortega was killed. She arrived at the scene in a
red car along with Garcia, Herrera, and another female known as

“Charms.” Garcia and Herrera had arranged for Ortega to meet

them there. Garcia and Herrera walked up to Ortega, grabbed
her, and accused her of being a snitch. Garcia and Herrera let go
of Ortega as appellant drove up in his PT Cruiser. Mono exited
the front passenger seat and repeatedly shot Ortega. Mono then
got back into the PT Cruiser and appellant drove away.
Lisette Reyes, another Villa Boys associate, was
interviewed by the police later the same day as Whitten ’ s
interview. Prior to Ortega ’ s murder, Reyes had seen appellant
and two or three other young m ales physically assault Mono as
punishment for bringing Ortega into the gang. The day after the
murder, appellant and Mono came to her house. Both men were
acting paranoid and appellant was holding a gray semiautomatic
handgun. They bragged about the gu n, said they had to get rid of
it because it was “hot,” and asked Reyes to give them a
screwdriver so they could take the gun apart. Reyes
subsequently identified appellant as the getaway driver and said

that after the murder he brought a semiautomatic ha ndgun to

her house and disassembled it.

Detective Andrea Perez testified as the prosecution ’s gang
expert. The Villa Boys gang is a criminal street gang with
approximately 100 documented members and six subsets,
including the Krazy Boys. The gang ’s primary activities include
robberies, shootings, drug sales, and car theft. Detective Perez7

opined that appellan t was a member of the Villa Boys. She
reached that opinion based on photographs of appellant ’s tattoos
and her review of departmental resources.
When presented with a hypothetical tracking the facts of
the case, Detective Perez opined that Ortega was kill ed at the
direction of the Villa Boys, in association with other members of
the gang, and for the benefit of the gang. The detective opined
that the crime benefitted the gang by instilling fear in the
community and by sending the message that the gang was “not

afraid to clean their own messes.”

DISCUSSION

I.
Appellant contends that his gang and firearm
enhancements must be reversed pursuant to AB 333, which went

into effect while this appeal was pending. The People correctly

concede the issue

. “[ AB ] 333 made the following changes to the law on gang

enhancements: First, it narrowed the definition of a ‘ criminal

street gang ’ to require that any gang be a n ‘ ongoing, organized
association or group of three or more persons. ’ (§ 186.22, subd.
(f), italic s added.) Second, whereas section 186.22, former
subdivision (f) required only that a gang ’s members ‘ individually

or collectively engage in ’ a pattern of criminal activity in order to

constitute a ‘ criminal street gang, ’ [ A B] 333 requires that any
such pattern have been ‘ collectively engage[d] in ’ by members of
the gang. (§ 186.22, subd. (f), italics added.) Third, [ AB ] 333 also

narrowed the definition of a ‘ pattern of criminal activity ’ by
requiring that (1) the last offens e used to show a pattern of
criminal gang activity occurred within three years of the date
that the currently charged offense is alleged to have been8

committed; (2) the offenses were committed by two or more gang

‘ members, ’ as opposed to just ‘ persons ’ ; (3 ) the offenses commonly
benefitted a criminal street gang; and (4) the offenses
establishing a pattern of gang activity must be ones other than
the currently charged offense. (§ 186.22, subd. (e)(1), (2).)
Fourth, [

AB ] 333 narrowed what it means for an offense to have
commonly benefitted a street gang, requiring that any ‘ common
benefit ’ be ‘ more than reputational. ’ (§ 186.22, subd. (g).) ”
( People v. Tran (2022) 13 Cal.5th 1169, 1206 ( Tran ).)

Th e parties agree that this new law applies retroactively to
appellant’s cas e . ( Tran

, supra , 13 Cal.5th at p. 1206; People v.
Rodriguez ( 2022 ) 75 Cal.App.5th 816

, 822.) The parties also
agree, as do we, that in light of this new law both the gang

enhancement and the firearm enhancement ( an essential element
of which is the true finding on the gang enhancement allegation)

must be reversed for insufficient evidence. We remand to give

the People an opportunity to retry the gang and firearm

enhanceme nt allegations under the new law. ( People v. Lopez
(2021) 73 Cal.App.5th 327, 345; People v. Figueroa (1993) 20
Cal.App.4th 65, 71

- 72, fn. 2; People v. Sek (2022) 74 Cal.App.5th

657, 669 .)

II.
As we have noted, AB 333 also amended section 1109 to
provide that trial s on gang enhancement allegations must be
bifurcated at the defendant’s request

. (§ 1109 , subd. (a); Tran

,
supra , 13 Cal.5th at p. 1206 .) If the defendant makes such a

request, “[t]he question of the defendant ’s guilt of the underlying
offense shall be first determined,” and “(2) If the defendant is
found guilty of the underlying offense and there is [gang
enhancement allegation], there shall be further proceedings to9

the trier of fact on the question of the truth of the enhancement .”
(§ 1109 , subd. (a).)
Appellant contends that this new law is an ameliorative
change that should apply retroactively to his case under In re

Estrada (1965) 63 Cal.2d 740 ( Estrada ) , and that the error in
declining to bifurcate the gang enhancement allegation compels

the reversal of his murder conviction. The People respond that

section 1109 is merely a procedural change that applies
prospectively only and that any error in not bifurcating the
proceedings was in any ev ent harmless. We need not address
whether the new law applies retroactively because we conclude it
is not reasonably probable that appellant would have achieved a
more favorable result had the gang enhancement allegation been
bifurcated. ( Tran

, supra , 15 Cal.5th at p p

. 1207

- 1208

. )
Our Supreme Court has recognized that “evidence of gang
membership is often relevant to, and admissible regarding, the
charged offense. Evidence of the defendant’s gang affiliatio n

— including evidence of the gang’s territory, membership, signs,
symbols, beliefs and practices, criminal enterprises, rivalries, and

the like

— can help prove identity, motive, modus operandi,
specific intent, means of applying force or fear, or other issues

pert inent to guilt of the charged crime. [Citation.] To the e xtent
the evidence supporting the gang enhancement would be
admissible at a trial of guilt, any inference of prejudice would be
dispelled . . . .” (

People v. Hernandez ( 2004 ) 33 Cal.4th 1040,

1049

- 1050.)
Here, evidence of appellant’s gang membership and

activities was relevant and admissible to prove his motive for
participating in the murder. The People aptly note that “as
appellant and his fellow gang member killed Ortega for being a10

snitch, the vast majority of the gang evidence would have been

admitted even if the gang allegation had been bifurcated under

section 1109 .” Moreover, the independent evidence o f appellant’s
guilt is s trong

. We also presume the jury understood and

followed the court’s instruction not to consider the gang

- related

evidence as proof that appellant was a person of bad character or
had a criminal disposition. ( CALCRIM No. 1403 ; Peop le v. Arauz
( 2012) 210 Cal.App.4th 1394, 1404.) Accordingly, appellant
suffered no prejudice due to the fact that the trial on the gang enhancement allegation was not bifurcated.

DISPOSITION

The true findings on th e section 186.22 gang enhancement
allegation and the section 12022.53 firearm enhancement
allegation are reversed

. The sentence is vacated and the matter

is remanded to the trial court for further proceedings

. In all
other respects, the judgment is affirmed.

NOT TO BE PUBLISHED.

CODY , J. *

We concur:

GILBERT, P.J

. BALTODANO , J.

* Judge of the Ventura Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California

constitution.S uzette Clover , Judge
Superior Court County of Los Angeles

______________________________

Gregory L. Rickard , under appointment by the Court of
Appeal, for Defendant and Appellant.

Rob Bonta , Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior

Assistant Attorne y General, Wyatt E. Bl oo mfield

, and Michael C.

Keller , Deputy Attorney s General, for Plaintiff and Respondent.