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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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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. B314191

(Super. Ct. No. GA074425)

(Los Angeles County)

Roberto Barajas appeals following 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 was committed for the benefit of a

criminal street gang (§ 186.22, subds. (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.

B266151) [nonpub. opn.].) On remand, the trial court declined to

strike the firearm 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)

there 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 bifurcated at the defendant’s

request. Appellant contends that this new procedural law also
3

applies retroactively to his case and compels the reversal of his

murder conviction. We reject this contention for lack of

prejudice.

2

STATEMENT OF FACTS3

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 Ortega 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

going 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 

Ortega 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, then 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 back 

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 casings 
5

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 

Ortega 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 three 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 taken to the police station. That 

same night, the police searched appellant’s bedroom 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 September 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 PT 
6

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 males 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 gun, 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 handgun 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 Perez 
7

opined that appellant 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 killed 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 an ‘ongoing, organized

association or group of three or more persons.’ (§ 186.22, subd. 

(f), italics 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,’ [AB] 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 offense 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 been 
8

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).)

The parties agree that this new law applies retroactively to 

appellant’s case. (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 

enhancement 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 trials 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 to 
9

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 event 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 pp. 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 affiliation—

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 

pertinent to guilt of the charged crime. [Citation.] To the extent

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 a 
10

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 of appellant’s 

guilt is strong. 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; People 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 the 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.
Suzette 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 Attorney General, Wyatt E. Bloomfield, and Michael C. 

Keller, Deputy Attorneys General, for Plaintiff and Respondent.