Filed 4/27/22

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

ROBERT RAMIREZ RAMOS,

Defendant and Appellant.

F080916

(Super. Ct. No. VCF361905B)

OPINION

APPEAL from a judgment of the Superior Court of Tulare County. Gary L.

Paden, Judge.

John Steinberg, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief 

Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. 

Vasquez, Robert K. Gezi, Darren Indermill, Lewis A. Martinez, and William K. Kim, 

Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

*Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is 

certified for publication with the exception of parts I., III. and IV. of the Discussion.
2.

INTRODUCTION

While this appeal was pending, the Legislature enacted Assembly Bill No. 333

(2021–2022 Reg. Sess.) (Assembly Bill 333), which went into effect on January 1, 2022. 

Assembly Bill 333, in part, amended the language of Penal Code section 186.22 to 

modify the showing necessary to sustain a gang enhancement. (Undesignated statutory 

references are to the Penal Code.) It also added section 1109, which requires the 

bifurcation of the trial of gang enhancements from that of the underlying offense(s) upon 

a defendant’s request. Among other issues, we consider whether these two changes in the 

law apply retroactively to this case. In the published portion of this opinion, we conclude 

both changes apply retroactively. Under the circumstances, however, only the 

amendment to section 186.22 requires reversal and remand.

Robert Ramirez Ramos and three codefendants—Francisco Nava, Steven Lopez, 

and Ruben Perez—engaged in a confrontation at a convenience market gas station with 

E.D. and his girlfriend, C.A. They yelled rival gang slurs at E.D., Lopez and Perez threw 

drinks into the car E.D. and C.A. were sitting in, and Lopez grabbed E.D.’s shirt and 

struck him in the back of the head, scratching his neck. Perez also tried to grab E.D. 

E.D. drove away. When E.D. stopped at an intersection, he saw a black car speeding 

toward him, heard two gunshots and glass breaking, and felt an impact on his car. He 

saw the black car on the left side of his car and a man pointing his hand out of the back 

passenger window. Video surveillance footage depicted Ramos as the person in the 

driver’s seat of the black car at the gas station.

The four defendants were charged with multiple offenses in relation to the 

incident. At trial, the prosecution presented expert testimony on street gangs, evidence of 

the defendants’ prior contacts with police, and certified records of convictions of Norteño

gang members as proof of a pattern of gang activity to prove the street gang 

enhancements.
3.

The jury acquitted the four defendants of attempted murder of E.D. and C.A.

(counts 1 and 2, respectively) and was deadlocked on the lesser included offenses of 

attempted voluntary manslaughter. The jury convicted all four defendants of shooting 

into an occupied motor vehicle in violation of section 246 (count 3) and found true 

allegations a principal used a firearm (§ 12022.53, subds. (c) & (e)(1)) and that the 

offense was committed for the benefit of a criminal street gang (former § 186.22, subd.

(b)(1)(C)). The jury was deadlocked as to all four defendants on count 4, criminal street 

gang conspiracy in violation of section 182.5. (The jury convicted Lopez and Perez of 

battery in violation of section 242 in count 5 and found the offense was committed for the 

benefit of a criminal street gang (former § 186.22, subd. (b)(1)(C)).)

Ramos challenges his conviction for shooting at an occupied motor vehicle and the 

related firearm and gang enhancements on multiple grounds. First, he contends the court 

prejudicially erred in admitting evidence related to an uncharged offense requiring 

reversal of his conviction and the related enhancements. He also argues the court erred in 

imposing both the firearm enhancement and the gang enhancement even though it stayed 

the former. He further challenges the validity of the gang enhancement, firearm 

enhancement, and underlying conviction pursuant to Assembly Bill 333. Ramos asserts 

the changes enacted by Assembly Bill 333 are retroactive and, accordingly, his gang 

enhancement should be reversed and retried under the new requirements of section 

186.22. He also asserts his conviction for shooting at an occupied motor vehicle must be 

reversed and retried in a bifurcated proceeding under newly enacted section 1109. 

Finally, Ramos challenges the imposition of a restitution fine and certain court 

assessments because the court failed to hold an ability to pay hearing.

As noted above, we agree Assembly Bill 333 applies retroactively and Ramos is 

entitled to reversal of his gang and firearm enhancements on that basis. However, we 

affirm Ramos’s conviction for shooting at an occupied motor vehicle. Accordingly, we 

remand for further proceedings consistent with this opinion.
4.

FACTUAL BACKGROUND

February 3, 2018 Incident

In the evening of February 3, 2018, E.D. was at a convenience market with his 

girlfriend C.A.; E.D. was wearing a navy blue shirt. They met E.D.’s parents for dinner. 

E.D. testified Ramos and his codefendant Nava approached E.D. when he was at the 

register checking out, though other evidence introduced suggested Ramos did not enter 

the store.1 Nava said, “‘What’s up Ene?’” E.D. smiled and said “What’s up?” E.D. 

walked out of the store toward his car; codefendants Lopez and Perez followed him and 

said, “‘Fuck Sur trece.’” E.D. understood the statement to mean “disrespect toward the 

Southerner gang.” E.D. testified all four defendants continued to shout disrespectful 

Southern gang slurs while E.D. and C.A. walked toward his car. E.D. and C.A. got in the 

car and reversed; E.D. saw Ramos and Nava talking to his mother as she was trying to get 

in her car. E.D. testified his car had a Los Angeles Dodgers logo decal on it; he and C.A. 

denied any gang involvement. E.D. rolled his window down halfway to tell the

defendants he did not want any problems but, before he could, Lopez and Perez threw 

drinks into E.D.’s car. Lopez then grabbed and scratched E.D.’s neck; Perez tried to grab 

E.D., too. E.D. drove off. He saw Lopez and Perez running to their car, a black fourdoor sedan, as he left. He told C.A. to call 911 as he turned onto the road from the 

driveway. He could see the defendants’ car in his rear view mirror as they exited from 

the same driveway.

E.D. got in the far right lane. The defendants pulled up behind E.D.’s car and then 

next to it. E.D. then heard glass breaking, tires screeching, and two gunshots; he felt the 

impact of a bullet on his car. E.D. and C.A. saw the rear passenger side window of the 

defendants’ car rolled down. E.D. drove back to the convenience market and he and C.A. 

1C.A. identified defendants Nava and Lopez as the individuals who approached E.D. 

inside the store and Perez and Ramos as the individuals who approached when they were outside 

the store. Officer Michael Elliot also testified the video surveillance footage did not depict 

Ramos entering the store at any time.
5.

waited for the police. Neither E.D. nor C.A. could identify Ramos in photographic lineups following the incident.

The manager of the convenience market gave the police the surveillance videos 

from that day. Officer Elliot identified Ramos, Perez, Nava, and Lopez in the video 

shown at trial. He testified Ramos could be seen getting into the driver’s seat of the car.

Gang Expert Testimony

Before trial, defendant Perez moved to bifurcate the gang allegations. The court 

noted it would treat the objection as a joint challenge by all the defendants. The court 

considered the motion and tentatively denied it because the gang allegations and 

underlying charges overlapped. The prosecutor argued the gang evidence was 

intertwined with the charges, motive, and intent and substantive evidence of it would 

come in regarding the section 182.5 charge (count 4). The court noted it intended to 

allow the gang expert to testify about the foundational components and opinions 

regarding the gang allegations and asked for comments from the parties; no objections or 

comments were made. The court explained to the prosecutor that, with the Sanchez

[People v. Sanchez (2016) 63 Cal.4th 665] issue, she was going to have to “prove ... up 

individually ... with witnesses.”

Officer Joel Arjona, who was assigned to the Tulare Area Regional Gang 

Enforcement Team in February 2018, testified as a gang expert. He discussed his 

experience working with gangs and how the Norteño and Sureño gangs are structured. 

He explained both gangs have symbols and signs used to reflect their affiliation. Norteño

gang members associate with the number 14 and the color red. They use the Huelga bird 

as a symbol of the gang. Sureño members use the color blue to represent the gang and 

associate with the number 13. Arjona explained the Norteño gang derives from the 

prison gang Nuestra Familia. He also explained local street gang members of the 

Norteño gang report to an individual called a “channel.” The “channel” then reports up 

to a member of Nuestra Familia who is in charge of the county. He testified Norteño
6.

members pay “taxes” that are used for the benefit of the gang. He explained the Norteño

gang has different cliques or subsets that all identify with the color red and the number 

14. Members of different subsets work together, communicate with one another, commit 

crimes together, and share information and weapons. He discussed the subset North Side 

Visa Boys (or NSVB) and explained the symbols and tattoos they use to identify 

themselves. He stated all NSVB members are in Tulare County.

He testified to what he deemed to be “primary activities of the Norteño gang”

based on his investigations and reports and from speaking with other officers and gang 

members. The primary activities are a lot of crimes, 33 of which the Penal Code 

considers “gang crimes.” The list of gang crimes includes, but is not limited to, auto

theft, possession of firearms, murder, attempted murder, assault, assault with deadly 

weapons, kidnappings, burglary, and vandalism.

Officer Arjona testified regarding two specific predicate crimes. He discussed the 

murder of John Hernandez committed by Norteño gang members Jacob Robles and Julian 

Gonzalez at the direction of Joe Dominguez, another gang member, on May 19, 2010. 

Officer Arjona was familiar with the case through his research. Counsel for defendant 

Nava objected on “foundation” grounds when the prosecutor asked whether Officer 

Arjona had an opinion as to whether the murder fits “the pattern of Norteño street gang 

activity ... in Tulare County.” The court overruled the objection. Based on his training 

and experience, speaking with other officers, and reading reports, Officer Arjona testified 

he believed gang member Joe Dominquez directed the two other gang members to kill the 

victim, who was a gang dropout. The prosecutor then introduced a certified copy of the 

murder conviction from that case, People v. Julian Gonzalez, No. VCF241993, 

conviction date May 15, 2012.

Officer Arjona then testified regarding an attempted murder that occurred at the 

Visalia Mall on January 27, 2012, by Adrian Esquer and Anthony Hanson. Arjona was 

not on duty at the time, but he researched the incident after the fact and “it was a gang 
7.

crime.” Based on his conversations with the primary detective, study of the case, and 

review of the contacts of the suspects involved, he concluded the individuals involved 

were “gang members and that this was an intimidation shooting against a rival gang 

member. And a person who was caught in crossfire was also struck.” He further opined 

the offense fits within the pattern of Norteño street gang activity in Tulare County. The 

People then introduced the certified conviction packet for People v. Adrian Esquer, 

No. VCF263049B for convictions of attempted murder and assault with a firearm, 

conviction date of January 31, 2014.

Arjona testified he reviewed approximately seven contacts law enforcement had 

with Ramos. He testified regarding the significance of the circumstances, clothing and 

paraphernalia during each incident and their relevance to the gang inquiry. Based upon 

his evaluation of set gang criteria, Officer Arjona testified, based upon his knowledge, 

training, experience, and investigation of the case, he believed Ramos was a Norteño

gang member on February 3, 2018, when the shooting at E.D. and C.A. occurred.

Prior Contacts 

On March 5, 2010, Officer Joshua Pena conducted a field interview with Ramos. 

Ramos was wearing a Raiders shirt and a red cross necklace associated with Norteño

gang members in Visalia. He had a photograph of himself on his cell phone making gang 

signs. Police conducted a probation search of his bedroom. They found a CD showing a 

huelga bird, a pencil drawing of “1 NSVB 4,” and a red bandana known to be associated 

with the Norteño gang.

On May 24, 2011, Officer Arjona responded to a call regarding a disturbance. He 

encountered Ramos, who was wearing a black “TC” hat. Ramos identified himself as a 

Norteño.

On July 4, 2015, police conducted a traffic stop. Ramos was in a car with other 

Norteño gang members. He admitted he was an NSVB member. Ramos had multiple 
8.

gang-related tattoos including “NSV” (for North Side Visa and/or North Side Visalia), 

two dice with the numbers 1 and 4 on them, and “TC.”

On January 26, 2016, Officer Elliot testified he contacted Ramos during a traffic 

stop with known Norteño gang member Cixto Murillo. He documented Ramos’s tattoos, 

including “TC” on his hand, “Boyz” on his stomach, “Visalia” and “NSV” on his back, 

and an “N” on the left side of his neck.

Officer Michael Lombardo served in the gang unit of the Visalia Police 

Department for two years. He contacted Ramos for the first time on July 22, 2016. 

Officer Lombardo saw Ramos with Norteño gang members Daniel Contreras (who 

associates with the North Side Varrio Locos), Arthur Villegas (who associates with the 

North Side Varrio Locos), and Edgar Figueroa on a street corner drinking beer. Ramos 

gave Officer Lombardo a false name. Officer Lombardo went back to confront him and 

Ramos admitted he lied.

On November 19, 2016, police encountered Ramos with 11 known Norteño gang 

members at his house.

On May 11, 2017, Visalia police officer Aaron Hutchason encountered Ramos

during a probation search of his house after a stolen cell phone was tracked there. 

Hutchason conducted a field interview with Ramos during which he documented 

Ramos’s tattoos, including “V Boyz” on his forearm, “TC” on his right hand, “CA” on 

his left hand, “NS” above “Visalia” on his chest, a “14” on his chest, “Boyz” on his 

stomach, “NSV” on his back, “Ene” on the back of his head, a “V” and a “B” on each 

shin, and “Visalia” and “Boyz” on his back. He asked Ramos about his gang affiliation. 

Ramos reported he was a Norteño gang member who belonged to the North Side Visa 

Boyz subset and his nickname or moniker was “Little Rue.”

The People also introduced testimony about the other codefendants’ prior contacts

with law enforcement, focusing on incidents that had gang-related circumstances.
9.

Verdict and Sentencing

The jury acquitted all four defendants of attempted murder of E.D. and C.A.

(counts 1 and 2, respectively) and was deadlocked on the lesser included offense of 

attempted voluntary manslaughter. The jury convicted all four defendants of shooting 

into an occupied motor vehicle in violation of section 246 (count 3) and found true 

allegations a principal used a firearm (§ 12022.53, subds. (c) & (e)(1)) and that the 

offense was committed for the benefit of a criminal street gang (former § 186.22, subd.

(b)(1)(C)). The jury was deadlocked as to all four defendants on count 4, criminal street 

gang conspiracy in violation of section 182.5.

The jury convicted Lopez and Perez of battery in violation of section 242 in count 

5 and found the offense was committed for the benefit of a criminal street gang (former 

§ 186.22, subd. (b)(1)(C)). The jury convicted Lopez of possession of a firearm by a 

convicted felon in violation of section 29800, subdivision (a)(1) (count 6).

On January 23, 2020, the court held a sentencing hearing on two cases involving 

Ramos, including the current case. The court sentenced Ramos to 15 years to life in 

prison for count 3 in this case pursuant to former section 186.22, subdivision (b)(4)(B). 

Ramos was ordered to pay a $5,000 restitution fine, $40 operations assessment, and a $30 

criminal conviction assessment.2 Ramos did not object to the imposition of the fines and 

fees.

DISCUSSION

I. The Trial Court Did Not Prejudicially Err in Admitting Evidence of Ramos’s 

Prior Bad Acts*

Ramos challenges the admission of evidence of his uncharged conduct as 

irrelevant and more prejudicial than probative. For the reasons that follow, we cannot 

2After the court sentenced Ramos on the second case, it noted it found “no ability to pay 

attorney’s fees.”

*See ante, page 1.
10.

conclude the court abused its discretion in permitting limited evidence of a 2009 incident

or that Ramos was prejudiced as a result.

A. Relevant Procedural History

Before trial, the court held the prosecutor could impeach Ramos with a 2016 

conviction for a felony violation of section 273.5 for willful infliction of corporal injury. 

However, the court noted the prosecutor could not ask if it was a crime of moral 

turpitude; rather, the prosecutor was limited to bringing out the fact Ramos had a felony 

conviction from 2016.

During trial, Officer Arjona testified regarding his prior contacts with the 

defendants. He explained he had known Ramos for 11 to 12 years, since Ramos was 11 

or 12 years old. Officer Arjona testified that on November 3, 2009, he was dispatched to 

a fight in progress. When he arrived, an individual named Alex G. was lying on the 

ground in the street and his face was injured. Alex G. was upset and flustered; he had 

been assaulted by three males and appeared relieved to see Officer Arjona. Alex G. 

reported he was pushed down to the ground; one person kicked him in the face.

Ramos’s counsel objected and moved to strike all of Arjona’s testimony pursuant 

to Evidence Code section 352, arguing, “It is prejudicial. No identification has been 

provided. It is a statement from the victim being allowed in.” The court agreed with 

Ramos’s counsel at that point and granted his motion to strike.

Arjona then testified his investigation into the incident involving Alex G. led him 

to contact Ramos. He arrested Ramos. After Ramos was advised of his Miranda rights, 

he admitted he and two others, Patrick B. and Andres R., assaulted the victim and took 

his iPod.

At that point in the testimony, Ramos’s counsel asked to approach the bench. The 

court excused the jury. Ramos’s counsel then objected to the entire line of questioning,

arguing it was inadmissible character evidence:

“There’s no indication of [Evidence Code section] 1101(b) regarding my 

client that there was a 211 [robbery], a 275.5 [sic]. The Court sanitized if 
11.

that was going to come in as to my client. We’re now talking about a tenyear old event when my client was 13 or 14 years old, a 211 charge, and an 

assault. What is the offer of proof? If it is about a gang contact that he was 

associating with people, fine, but it seems as though it is being offered for 

[Evidence Code section] 1101(b), that my client is a violent individual. I 

object to the entire line of questioning.”

The prosecutor asserted the evidence was being offered to establish Ramos’s gang 

association:

“It is being offered as a prior gang contact. Defense counsel was put 

on notice of when it was included in the gang packet, as well as the 

People’s motions in limine outlining all of the prior gang contacts. This 

shows his association with the criminal street gang.

“If he testified further, Officer Arjona would testify he’s familiar 

with the two other people and knows them to be Northern associates at the 

very least, as well as it shows a gang-related crime, which is also one of the 

criteria for establishing whether someone is a gang member.

“One step further, an actual element of ... Section 182.5 requires 

that the defendant know that members of the Norteno gang engage in or 

have engaged in criminal activity. Surely, it would be direct evidence, if 

there ever was one, of [Ramos]’s knowledge as to this situation.”

Defense counsel agreed evidence Ramos was associating with members of the 

street gang is “[f]ine,” but the criminal activity “should be sanitized.” He argued the 

prosecutor was “getting into the actual facts of what happened here.” But “[i]t was 

already testified by Officer Arjona about a 211 and 245 occurring,” so was “being offered 

for dual purposes.” He asserted the evidence was not being offered for “the gang,” but 

rather as Evidence Code section 1101, subdivision (b) evidence “to say [Ramos] is 

violent and accused of a crime.” However, it was “ten years ago,” and is prejudicial.

The court agreed with Ramos’s counsel and held it would “exclude everything 

about the element of the crime except for the gang contacts.” Pursuant to Ramos’s 

counsel’s request, the court agreed to admonish the jury. Accordingly, it advised:

“Ladies and gentlemen, we have had a discussion about the testimony we 

just received. I’m going to give you a limiting instruction, which means 

that the evidence you just heard by this officer about the Defendant Ramos 

can only be considered by you in establishing a contact associated—well, 
12.

with Defendant Ramos’s association with the criminal street gang. For that 

limited purpose only.”

Officer Arjona then testified he was familiar with Patrick B. and Andres R. 

Patrick B. was a Norteño gang member and Andres R. associated with Northern gang 

members.

The court later instructed the jury, “During the trial, certain evidence was admitted 

for a limited purpose. You may consider that evidence only for that purpose and no 

other.” It further instructed the jury that it may not conclude from the gang evidence 

“that [Ramos] is a person of bad character or that he has a disposition to commit a 

crime.”

B. Standard of Review and Applicable Law

Evidence of prior criminal acts is ordinarily inadmissible to show a defendant’s 

disposition to commit such acts. (Evid. Code, § 1101.) Evidence Code section 1101, 

subdivision (a) states the general rule that “evidence of a person’s character or a trait of 

his or her character (whether in the form of an opinion, evidence of reputation, or 

evidence of specific instances of his or her conduct) is inadmissible when offered to 

prove his or her conduct on a specified occasion.”

Evidence Code section 1101, subdivision (b), however, authorizes the admission 

of evidence that “a person committed a crime, civil wrong, or other act when relevant to 

prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, 

identity, absence of mistake or accident, or whether a defendant in a prosecution for an 

unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith 

believe that the victim consented) other than his or her disposition to commit such an 

act.” (Ibid.)

“[T]o be admitted, evidence of other crimes must be relevant to some material fact 

at issue, must have a tendency to prove that fact, and must not contravene other policies 

limiting admission, such as those contained in Evidence Code section 352.” (People v. 

Thompson (1988) 45 Cal.3d 86, 109.) Evidence Code section 352 affords the trial court 
13.

discretion to exclude such evidence if its probative value is “substantially outweighed by 

the probability that its admission will (a) necessitate undue consumption of time or (b) 

create substantial danger of undue prejudice, of confusing the issues, or of misleading the 

jury.” (Ibid.)

A trial court’s rulings under Evidence Code sections 1101 and 352 are reviewed 

for abuse of discretion. (People v. Lewis (2001) 25 Cal.4th 610, 637.)

C. Analysis 

Ramos asserts “the prior attack stood alone as the only evidence that [he] or any of 

the other three defendants had previously been involved in a group attack.” He asserts 

evidence of the prior attack was inadmissible character evidence subject to exclusion as 

“extremely remote” and “unduly prejudicial and cumulative to less prejudicial evidence 

of his gang membership.” Ramos acknowledges the court gave the jury a limiting 

instruction but he contends the instruction “was insufficient to dispel the prejudice from 

the highly inflammatory evidence.” He asserts “the jury was bound to conclude that, if 

[he] was involved in a previous, violent group attack, then he was the type of person who 

would have knowingly aided and abetted in the charged shooting.” He argues the 

admission of such evidence violated his constitutional right to due process, and it was not 

harmless beyond a reasonable doubt. He also contends, absent the erroneous admission 

of such evidence, it was reasonably probable he would have obtained a better result. The 

People assert Ramos’s contention is forfeited because, though his counsel objected to the 

evidence, he did not move for a mistrial. They further contend the evidence was properly 

admitted and not prejudicial, particularly since the jury acquitted Ramos of the attempted 

murder counts and conspiracy charge. We cannot conclude the court abused its 

discretion in admitting limited evidence of the 2009 incident or that Ramos was 

prejudiced as a result.3

3Because we reject this claim on the merits, we need not address the People’s contention 

Ramos’s point of error is forfeited because his counsel failed to move for a mistrial, citing 

People v. Reeder (1978) 82 Cal.App.3d 543.
14.

Here, the proffered evidence that the court held was admissible—evidence of 

Ramos’s documented association with two other Norteño gang members in 2009—was 

relevant to prove Ramos’s gang affiliation. This was a disputed issue at trial that was 

material to the charged crimes that were alleged to be gang related. (See People v. Funes

(1994) 23 Cal.App.4th 1506, 1518 [“[I]t is proper to introduce evidence of gang 

affiliation and activity where such evidence is relevant to an issue of motive or intent”].) 

Because the uncharged conduct evidence was relevant to prove facts other than Ramos’s 

disposition to commit criminal acts, it was admissible pursuant to Evidence Code section 

1101, subdivision (b), subject to a section 352 analysis.

And we cannot conclude the probative value of such evidence was substantially 

outweighed by the probability its admission would necessitate undue consumption of 

time or create substantial danger of undue prejudice, of confusing the issues, or of 

misleading the jury such that the court abused its discretion in admitting it. Here, the 

details of the uncharged offense, which were not unduly shocking or inflammatory, were 

held to be inadmissible and the court struck the challenged evidence. (See People v. 

Samuels (2005) 36 Cal.4th 96, 124 [“‘We have described the “prejudice” referred to in 

Evidence Code section 352 as characterizing evidence that uniquely tends to evoke an

emotional bias against a party as an individual, while having only slight probative value 

with regard to the issues’”].) Additionally, the court instructed the jury on the limited 

purpose for which evidence of the prior incident was admitted, and we presume the jury 

followed that instruction. (See People v. Orloff (2016) 2 Cal.App.5th 947, 957.) “If 

defendant believed a more extensive instruction was needed, it was his burden to request 

one.” (People v. Chhuon (2021) 11 Cal.5th 1, 33.)

Ramos argues the 2009 incident was “extremely remote” and cumulative.4 In 

support, he relies upon People v. Leon (2008) 161 Cal.App.4th 149. In Leon, the 

4We note Ramos did not object to the proffered evidence on the grounds that it was 

cumulative. Typically, a specific objection is required to preserve error, but because the 

California Supreme Court has analyzed the cumulative nature of Evidence Code section 1101, 
15.

defendant objected to the admission of evidence of a juvenile true finding for robbery he 

suffered in 1999, arguing it was prejudicial and cumulative. (Id. at p. 164.) The court 

admitted the evidence “for the purpose of establishing the predicate offenses necessary to 

establish the section 186.22, subdivision (b)(1) gang sentence enhancements and the gang 

membership elements charged in connection with counts 3 and 4.” (Id. at p. 165.) On 

appeal, the Leon court concluded there was ample evidence apart from the defendant’s 

1999 juvenile offense to establish both the elements of a criminal street gang and that the 

defendant was a gang member. (Id. at p. 169.) Because of the “other overwhelming 

evidence establishing both of these facts,” the Leon court concluded the trial court abused 

its discretion in admitting evidence of the uncharged offense. (Ibid.) However, the error 

was harmless in light of the considerable other evidence of the defendant’s relationship 

with his codefendant and his intent. (Id. at p. 170.)

Even if the issue of Ramos’s gang association was not reasonably subject to 

dispute such that the admitted evidence could be deemed cumulative, we conclude, as the 

Leon court did, Ramos was not prejudiced by its admission. (See People v. Leon, supra, 

161 Cal.App.4th at p. 170.) Here, like in Leon, there was extensive evidence of Ramos’s 

gang association and strong evidence of his intent to aid and abet the shooting. There 

was evidence Ramos drove the car from which the shots emanated. As the driver, he 

followed the victims’ car and positioned his car next to it, permitting the passenger to 

subdivision (b) evidence when weighing prejudice in a section 352 analysis, we assume for 

purposes of our analysis Ramos’s section 352 objection preserved error on this issue. (See

People v. Ewoldt (1994) 7 Cal.4th 380, 405–406 [“In many cases the prejudicial effect of 

[uncharged act] evidence [to demonstrate the existence of a common design or plan] would 

outweigh its probative value, because the evidence would be merely cumulative regarding an 

issue that was not reasonably subject to dispute”]; accord, Evid. Code, § 353 [“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”]; People v. Williams (2008) 43 

Cal.4th 584, 620 [“‘“[Q]uestions relating to the admissibility of evidence will not be reviewed on 

appeal in the absence of a specific and timely objection in the trial court on the ground sought to 

be urged on appeal”’”].)
16.

shoot at the victims. We further note the jury acquitted Ramos of multiple charges, 

demonstrating they did not aggregate all the evidence to convict Ramos of all the charged 

crimes. Additionally, as discussed, the 2009 incident was not uniquely inflammatory,

and the jury was instructed it should only consider it for a limited purpose. (See People 

v. Franklin (2016) 248 Cal.App.4th 938, 955 [“The California Supreme Court has 

consistently found vague and fleeting references to a defendant’s past criminality to be 

curable by appropriate admonition to the jury”].) Indeed, the prior uncharged offense 

was less inflammatory than the charged offense, decreasing the possibility the jury’s 

passions were inflamed by it. (See People v. Case (2018) 5 Cal.5th 1, 41 [“The danger of 

undue prejudice is ... lessened if evidence of the uncharged acts was ‘no more 

inflammatory than the testimony concerning the charged offenses’”]; accord, People v. 

Daveggio and Michaud (2018) 4 Cal.5th 790, 825–826; People v. Whisenhunt (2008) 44

Cal.4th 174, 205.) The jury was further instructed it should not consider the gang 

evidence as evidence Ramos is a person of bad character or that he had a disposition to 

commit a crime. Ramos has not shown the jury disregarded the instructions nor has he 

persuaded us the evidence was so inherently prejudicial as to render the curative 

instructions ineffective. For all these reasons, we cannot conclude it is reasonably 

probable Ramos would have obtained a more favorable verdict absent the presentation of 

such evidence. (See People v. Watson (1956) 46 Cal.2d 818, 836.)

II. Ramos Is Entitled to Reversal of His Gang Enhancement in Light of 

Assembly Bill 333

In supplemental briefing, Ramos argues the imposed criminal street gang 

enhancement must be reversed because of changes made to section 186.22 by the recent 

enactment of Assembly Bill 333. He also contends newly enacted section 1109 (pursuant 

to Assem. Bill 333) requires reversal and retrial of his conviction for shooting at an 

occupied vehicle in a bifurcated proceeding. We conclude Ramos is entitled to reversal 

of his gang enhancement, but we affirm his conviction for shooting at an occupied 

vehicle.
17.

A. Assembly Bill 333

While Ramos’s appeal was pending, the Legislature enacted Assembly Bill 333, 

the STEP Forward Act of 2021, which, in part, amends section 186.22 to provide new 

substantive and procedural requirements for imposing gang enhancements. The 

legislation went into effect on January 1, 2022.

First, Assembly Bill 333 amended the definition of a “‘criminal street gang,’”

requiring proof that the gang is an organized association, whose members collectively

engage in, or have engaged in, a pattern of criminal activity (§ 186.22, subd. (f)). Next, 

the law created a stricter requirement for proof of “a pattern of criminal gang activity,”

which is necessary to prove that the group with which the defendant is associated is 

indeed a criminal street gang. (See § 186.22, subd. (e).) Previously, the prosecution 

needed to prove only that those associated with the gang had committed at least two 

offenses from a list of predicate crimes on separate occasions within three years of one 

another. (See former § 186.22, subd. (e).) Under the newly amended law, the offense 

with which the defendant is currently charged cannot be used as one of the two predicate 

offenses. (§ 186.22, subd. (e)(2).) In addition, both predicate offenses must have been 

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

committed,” by gang “members,” and must have been for the “common[] benefit[] [of] a 

criminal street gang.” (§ 186.22, subd. (e)(1).) Assembly Bill 333 also narrowed the list

of offenses that may be used to establish a pattern of criminal gang activity (compare

former § 186.22, subd. (e)(1)–(33) with § 186.22, subd. (e)(1)(A)–(Z)). Additionally, it

defines “to benefit, promote, further, or assist” throughout section 186.22 to mean “to

provide a common benefit to members of a gang where the common benefit is more than

reputational.” (Id., subd. (g).) The legislation notes examples of a common benefit that

are more than reputational “may include, but are not limited to, financial gain or

motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or

silencing of a potential current or previous witness or informant.” (Ibid.)
18.

Finally, Assembly Bill 333 adds section 1109, which requires gang enhancements 

charged under section 186.22, subdivision (b) or (d) to be tried separately from the 

underlying charges upon request from the defense. (Stats. 2021, ch. 699, § 5.) Section 

1109 also requires the substantive offense of active participation in a criminal street gang

(§ 186.22, subd. (a)) to be tried separately from all other counts that do not otherwise 

require gang evidence as an element of the crime.

B. The Amendments to Section 186.22 Apply Retroactively and Ramos Is 

Entitled to Reversal of His Gang Enhancement

First, the parties agree Assembly Bill 333’s amendments to section 186.22 altering

the substantive requirements necessary to prove a gang enhancement operate 

retroactively. Because the legislation increased the evidentiary burden necessary to prove 

a gang-related enhancement, we agree it was an ameliorative change in the law that 

applies retroactively to cases not yet final on appeal.

Ordinarily, “a new statute is presumed to operate prospectively absent an express 

declaration of retrospectivity or a clear indication that the electorate, or the Legislature, 

intended otherwise.” (Tapia v. Superior Court (1991) 53 Cal.3d 282, 287 (Tapia).)

However, in In re Estrada (1965) 63 Cal.2d 740 (Estrada), our Supreme Court 

recognized an exception to this rule. The court explained that “[w]hen the Legislature 

amends a statute so as to lessen the punishment it has obviously expressly determined 

that its former penalty was too severe and that a lighter punishment is proper as 

punishment for the commission of the prohibited act. It is an inevitable inference that the 

Legislature must have intended that the new statute imposing the new lighter penalty now 

deemed to be sufficient should apply to every case to which it constitutionally could 

apply. The amendatory act imposing the lighter punishment can be applied 

constitutionally to acts committed before its passage provided the judgment convicting 

the defendant of the act is not final. This intent seems obvious, because to hold otherwise 

would be to conclude that the Legislature was motivated by a desire for vengeance, a 

conclusion not permitted in view of modern theories of penology.” (Id. at p. 745.)
19.

In subsequent years, the California Supreme Court has applied this doctrine 

broadly “to statutes changing the law to the benefit of defendants.” (Tapia, supra, 53 

Cal.3d at p. 301; see generally People v. Frahs (2020) 9 Cal.5th 618, 631–632 [pretrial 

diversion statute is retroactive because it provides possible benefit to class of criminal 

defendants, does not contain express savings clause, and Legislature did not signal its 

intent to overcome Estrada inference]; People v. Superior Court (Lara) (2018) 4 Cal.5th 

299, 309 [“Proposition 57 is an ‘ameliorative change[] to the criminal law’ that we infer 

the legislative body intended ‘to extend as broadly as possible’”].)

Most relevant to this case, the Supreme Court in Tapia held the presumption of 

retroactivity applies to laws that change the substantive requirements for an enhancement 

in a defendant’s favor. (See Tapia, supra, 53 Cal.3d at pp. 300–301.) In Tapia, the 

electorate had recently passed an initiative requiring proof of intent to kill for certain 

special circumstance allegations. (Ibid.) Because the initiative “redefine[d], to the benefit 

of defendants, conduct subject to criminal sanctions,” the court held the initiative applied 

retroactively. (Id. at p. 301.)

Like in Tapia, because Assembly Bill 333’s substantive changes to section 186.22 

“redefine, to the benefit of defendants, conduct subject to criminal sanctions,” these 

changes apply retroactively to all cases—like Ramos’s—in which the judgment of 

conviction is not yet final. (Tapia, supra, 53 Cal.3d at p. 301; accord, People v. Sek

(2022) 74 Cal.App.5th 657, 667 [concluding Assem. Bill 333’s amendments to § 186.22 

“‘redefine[d], to the benefit of defendants, conduct subject to criminal sanctions’

[citation], and it therefore applies retroactively under Estrada”]; People v. E.H. (2022) 75 

Cal.App.5th 467, 478 [similar]; see People v. Lopez (2021) 73 Cal.App.5th 327, 344

[concluding substantive changes in Assem. Bill 333 apply retroactively because they 

“increase[] the threshold for conviction of the section 186.22 offense and the imposition 

of the enhancement”]; People v. Rodriguez (2022) 75 Cal.App.5th 816, 822 [same].)
20.

And here, it is undisputed Ramos is entitled to reversal of the gang enhancement 

on this basis; that is, neither party argues, nor can we conclude, the evidence presented at 

trial was sufficient to sustain the gang enhancement under the revised requirements of 

section 186.22. At trial the prosecution introduced evidence of two cases committed in 

2010 and 2012 as evidence of the predicate offenses necessary to establish a pattern of 

criminal gang activity. Neither predicate offense occurred within three years of the date 

the currently charged offense was committed—February 3, 2018—as required by 

amended section 186.22. (Stats. 2021, ch. 699, § 3.)

Excluding evidence of these offenses, the existing record is insufficient to support 

the heightened evidentiary requirements set forth by amended section 186.22 following 

the enactment of Assembly Bill 333. As a result, the criminal gang enhancement applied 

to Ramos’s sentence must be reversed. However, the People are not foreclosed from 

retrying Ramos on the gang enhancement upon remand under the new requirements of

amended section 186.22. Put differently, “‘[b]ecause we do not reverse based on the

insufficiency of the evidence required to prove a violation of the statute as it read at the

time of trial, the double jeopardy clause of the Constitution will not bar a retrial.’”

(People v. Sek, supra, 74 Cal.App.5th at p. 669; accord, People v. Figueroa (1993) 20

Cal.App.4th 65, 72 [“Where, as here, evidence is not introduced at trial because the law

at that time would have rendered it irrelevant, the remand to prove that element is proper

and the reviewing court does not treat the issue as one of sufficiency of the evidence”];

see People v. Eagle (2016) 246 Cal.App.4th 275, 280 [“When a statutory amendment

adds an additional element to an offense, the prosecution must be afforded the

opportunity to establish the additional element upon remand”].)

C. Section 1109 Is Retroactive but Ramos Is Not Entitled to Reversal of 

His Underlying Conviction

Ramos also argues newly enacted section 1109 should apply retroactively to his

case and requires reversal of his underlying conviction for shooting at an occupied

vehicle. He asserts the new statute, which, in part, requires bifurcation of the trial on the
21.

gang enhancement(s) from the trial on the underlying charge(s) upon a defendant’s

request, entitles him to a reversal and retrial of his underlying conviction. The People

deny section 1109 should apply retroactively because it is a procedural rather than

substantive change in the law. Irrespective, they contend Ramos is not entitled to

reversal of this conviction because he was not prejudiced by the failure to bifurcate the

gang enhancement. We agree with Ramos that section 1109 should apply retroactively

but conclude he is not entitled to reversal of his conviction for shooting at an occupied

vehicle because he was not harmed by the failure to bifurcate. Accordingly, we affirm

this conviction.

As discussed, Assembly Bill 333 amends section 186.22 and creates section 1109.

(Stats. 2021, ch. 699, §§ 3–5.) Pursuant to section 1109, subdivision (a), upon a 

defendant’s request, a case in which a gang enhancement is charged under section 

186.22, subdivision (b) or (d) must be tried in separate phases. Section 1109, subdivision

(b) provides that “[i]f a defendant is charged with a violation of subdivision (a) of Section 

186.22, this count shall be tried separately from all other counts that do not otherwise 

require gang evidence as an element of the crime. This charge may be tried in the same 

proceeding with an allegation of an enhancement under subdivision (b) or (d) of Section 

186.22.”

On its face, the legislation states, in part, that according to the Committee on 

Revision of the Penal Code’s 2020 report, “Gang enhancement evidence can be 

unreliable and prejudicial to a jury because it is lumped into evidence of the underlying 

charges which further perpetuates unfair prejudice in juries and convictions of innocent 

people.” (Stats. 2021, ch. 699, § 2, subd. (d)(6).) The legislation expressly declares:

“(e) “California courts have long recognized how prejudicial gang 

evidence is. (See, e.g., People v. Williams (1997) 16 Cal.4th 153, 193.) 

Studies suggest that allowing a jury to hear the kind of evidence that 

supports a gang enhancement before it has decided whether the defendant is 

guilty or not may lead to wrongful convictions. (Eisen, et al., Examining 

the Prejudicial Effects of Gang Evidence on Jurors (2013) 13 J. Forensic 
22.

Psychol. Pract. 1; Eisen, et al., Probative or Prejudicial: Can Gang 

Evidence Trump Reasonable Doubt? (2014) 62 UCLA L.Rev. disc. 2; see 

also, 2020 Annual Report, p. 46 [‘Studies show that even merely 

associating an accused person with a gang makes it more likely that a jury 

will convict them’].) The mere specter of gang enhancements pressures 

defendants to accept unfavorable plea deals rather than risk a trial filled 

with prejudicial evidence and a substantially longer sentence.

“(f) Bifurcation of trials where gang evidence is alleged can help 

reduce its harmful and prejudicial impact.” (Stats. 2021, ch. 699, § 2, 

subds. (e), (f).)

Thus, by its plain language, Assembly Bill 333 is an ameliorative change to the 

criminal law intended to benefit a class of criminal defendants by reducing the potential 

harmful and prejudicial impact of gang evidence through bifurcation. The legislation is 

geared to address wrongful convictions and mitigate punishment resulting from the 

admission of irrelevant gang evidence at trial; accordingly, the logic of Estrada applies. 

(See People v. Frahs, supra, 9 Cal.5th at pp. 634–635; accord, People v. Superior Court

(Lara), supra, 4 Cal.5th at p. 309 [Estrada inference of retroactivity applies to 

ameliorative change in criminal law].) And the Legislature did not include an express 

savings clause limiting Assembly Bill 333 to prospective-only application or clearly 

signal its intent for section 1109 to apply prospectively thereby overcoming the Estrada

inference. (See People v. Frahs, supra, at p. 634 [“Our prior decisions have ... made 

clear that in order to rebut Estrada’s inference of retroactivity concerning ameliorative 

statutes, the Legislature must ‘demonstrate its intention with sufficient clarity that a 

reviewing court can discern and effectuate it’”].) Because Estrada’s inference of 

retroactivity is not rebutted, we conclude section 1109 must apply retroactively to all 

cases not yet final on appeal. (See Frahs, at p. 631 [diversion statute is retroactive 

because it provides a possible benefit to a class of criminal defendants, does not contain 

an express savings clause, and Legislature did not signal its intent to overcome Estrada

inference]; People v. Superior Court (Lara), supra, at p. 309 [“Proposition 57 is an 

‘ameliorative change[] to the criminal law’ that we infer the legislative body intended ‘to 

extend as broadly as possible’”]; cf. People v Brown (2012) 54 Cal.4th 314, 325 [“[A] 
23.

statute increasing the rate at which prisoners may earn credits for good behavior does not 

represent a judgment about the needs of the criminal law with respect to a particular 

criminal offense, and thus does not support an analogous inference of retroactive 

intent”].)

The People, however, argue the changes instituted by section 1109 govern trial 

procedure and do not alter the substantive requirements of the gang allegations; 

accordingly, they apply prospectively only. In support, they cite our court’s decision in 

People v. Cervantes (2020) 55 Cal.App.5th 927, 940.

We are not persuaded. In Cervantes, our court considered whether amendments 

made to section 859.5—which until then only required electronic recording of custodial 

interrogations of minors but was then amended to apply to custodial interrogations of 

adults—applied retroactively to render the defendant’s confession inadmissible and, 

accordingly, entitled him to reversal of his convictions. (People v. Cervantes, supra, 55 

Cal.App.5th at pp. 936–937.) We noted “our high court has declined to extend the reach 

of Estrada to legislative action that does not alter or reduce criminal punishment or 

treatment for past criminal conduct.” (Id. at p. 939.) We held the amendments to the 

statute were not retroactive because they did not “alter the substantive requirements for 

conviction, nor affect the available punishments in the event of conviction.” (Cervantes,

at p. 940.) The changes also did not “alter or reduce criminal punishment or treatment.”

(Ibid.) Our court further held the logic of Estrada did not apply because “the amendments 

[at issue] were not designed to provide a clear and significant benefit to defendants; they 

were designed to reduce biased interpretation of, and ensure the accuracy of the evidence 

of, the communication that occurs in an interrogation.”

5

(Cervantes, at p. 941.)

5Notably, in Cervantes, our court further explained the California Supreme Court did not 

hold procedural changes are subject only to prospective application in Tapia, supra, 53 Cal.3d 

282. (People v. Cervantes, supra, 55 Cal.App.5th at p. 940, fn. 8.) Rather, the Tapia court held 

statutory changes affecting the conduct of a trial that had not yet taken place did not involve a 

question of retroactivity. (Tapia, at p. 288.)
24.

In this regard, Cervantes is distinguishable. As discussed, by its express language, 

Assembly Bill 333 shows an intent by the Legislature to benefit a certain class of 

criminal defendants by reducing the potentially harmful and prejudicial impact of gang 

evidence through bifurcation of gang allegations. Thus, here, unlike in Cervantes, the 

logic of Estrada does apply.

The People also cite People v. Sandee (2017) 15 Cal.App.5th 294 in support of 

their argument. In that case, the Fourth Appellate District, Division One, held the 

passage of the Electronic Communications Privacy Act (§ 1546 et seq.) related to the 

prohibition of governmental searches of cellular phones (subject to exceptions), was not 

retroactive because it did not mitigate the penalty for a crime, decriminalize conduct 

altogether, or expand defenses. (People v. Sandee, supra, 15 Cal.App.5th at p. 305, fn. 

7.) Accordingly, the Estrada presumption did not apply.

Again, we conclude Sandee is distinguishable. Here, Assembly Bill 333 expressly 

reflects the Legislature’s belief “[t]he mere specter of gang enhancements pressures 

defendants to accept unfavorable plea deals rather than risk a trial filled with prejudicial 

evidence and a substantially longer sentence.” (Stats. 2021, ch. 699, § 2, subd. (e).) 

Accordingly, it is apparent from the face of the legislation that it is aimed at mitigating 

wrongful punishment resulting from the admission of prejudicial and harmful gang 

evidence; thus, the Estrada presumption is implicated.6

Nevertheless, we affirm Ramos’s conviction for shooting at an occupied vehicle 

because we cannot conclude he was prejudiced by the failure to bifurcate the gang 

enhancement from the trial on the underlying charges. That is, we cannot conclude it is 

6The Sixth Appellate District also recently concluded section 1109 is retroactive under 

Estrada, reasoning in part the new statute increases the possibility of acquittal—which 

necessarily reduces possible punishment. (See People v. Burgos (Apr. 15, 2022; H045212) __ 

Cal.App.5th __ [2022 Cal.App. LEXIS 317 at *27–*30].) The Burgos court concluded, under 

the facts of that case, the error was prejudicial. (Id. at p. __ [2022 Cal.App. LEXIS 317 at *32–

33].) Accordingly, the Burgos defendants were entitled to reversal of their underlying 

convictions based on the failure to bifurcate the gang-related allegations. (Id. at p. __ [2022 

Cal.App. LEXIS 317 at *33].)
25.

reasonably probable Ramos would have obtained a more favorable verdict in the absence 

of the gang evidence that would not have been presented had the gang enhancement been 

bifurcated.7(See People v. Watson, supra, 46 Cal.2d at p. 836.)

Any inference of prejudice resulting from the gang evidence is dispelled by the 

fact the jury acquitted all the defendants of attempted murder and could not reach a 

verdict on the attempted voluntary manslaughter charges. It is apparent from this record 

the jury did not simply rely on the gang evidence to convict the defendants of the charged 

crimes. And the evidence Ramos aided and abetted the crime was strong. As Ramos

concedes in his briefing, the evidence was uncontroverted that he was the driver of the 

defendants’ vehicle from which the gunman shot. Though he challenges whether the 

evidence established he had the requisite intent for conviction of shooting at an occupied 

vehicle as an aider and abettor, the evidence reflected that, as the driver, Ramos actively 

pursued the victims’ vehicle and positioned the defendants’ car next to the victims’ car 

before the shooting occurred. Furthermore, nothing in Assembly Bill 333 limits the 

introduction of gang evidence in a bifurcated proceeding where the gang evidence is 

relevant to the underlying charges. And here, some of the gang evidence was relevant to 

motive in that the defendants yelled derogatory gang terms at the victim to suggest they 

associated him with a rival gang, thereby injecting gang implications into the crimes. 

Thus, it is likely some, though not all, of the evidence of Ramos’s gang membership and 

the gang rivalry would have come in at a trial on just the substantive offenses. (See 

People v. Hernandez (2004) 33 Cal.4th 1040, 1049–1050 [“To the extent evidence 

supporting the gang enhancement would be admissible at a trial of guilt, any inference of 

prejudice would be dispelled, and bifurcation would not be necessary”]; People v. 

Samaniego (2009) 172 Cal.App.4th 1148, 1167 [“evidence related to gang membership is 

7We apply the Watson standard in reviewing for prejudice because Ramos does not 

argue, nor can we conclude, the failure to bifurcate the gang enhancement from the trial on the 

substantive charges violated his federal constitutional right to due process such that it rendered 

his trial fundamentally unfair.
26.

not insulated from the general rule that all relevant evidence is admissible if it is relevant 

to a material issue in the case other than character, is not more prejudicial than probative, 

and is not cumulative”]; but see People v. Hernandez, supra, 33 Cal.4th at p. 1049 [“The 

predicate offenses offered to establish a ‘pattern of criminal gang activity’ (§ 186.22, 

subd. (e)) need not be related to the crime, or even the defendant, and evidence of such 

offenses may be unduly prejudicial, thus warranting bifurcation. Moreover, some of the 

other gang evidence, even as it relates to the defendant, may be so extraordinarily 

prejudicial, and of so little relevance to guilt, that it threatens to sway the jury to convict 

regardless of the defendant’s actual guilt”].) Additionally, the jury was given a limiting 

instruction regarding its consideration of the gang evidence, which we presume it 

followed. (See People v. Franklin, supra, 248 Cal.App.4th at p. 953 [“We presume that 

the jury followed these limiting instructions [regarding considering gang evidence for a 

limited purpose], and there is nothing in this record to rebut that presumption”].)

On this record, we conclude Ramos was not prejudiced by the failure to bifurcate 

the gang enhancement allegation. (See People v. Hernandez, supra, 33 Cal.4th at p. 1051 

[“Any evidence admitted solely to prove the gang enhancement was not so minimally 

probative on the charged offense, and so inflammatory in comparison, that it threatened 

to sway the jury to convict regardless of defendants’ actual guilt”].) Thus, we affirm 

Ramos’s conviction for shooting at an occupied vehicle. (See People v. E.H., supra, 75 

Cal.App.5th at p. 480 [failure to bifurcate was harmless under Watson standard in light of 

“overwhelming” evidence in support of robbery convictions, stating “[e]ven if section 

1109 applied retroactively to his case—an issue we need not and do not decide here—

E.H. cannot show it is ‘reasonably probable’ he would have obtained a more favorable 

result if his trial had been bifurcated”].)
27.

III. Ramos’s Firearm Enhancement Must be Reversed*

In supplemental briefing, Ramos argues the court should have struck instead of 

stayed the section 12022.53 gang-related firearm enhancement. We conclude this gangrelated enhancement must also be reversed in light of our reversal of the section 186.22, 

subdivision (b) enhancement.

A. Standard of Review and Applicable Law

Section 12022.53 provides for sentence enhancements for persons convicted of 

certain enumerated felonies who use a firearm during the commission of the crime. A 

violation of section 246 is not one of the felonies enumerated in subdivision (a) of section 

12022.53. However, a section 12022.53 enhancement may apply under subdivision

(a)(17) of the statute, where the penalty has been elevated to a life term through 

application of an alternate penalty provision. (People v. Jones (2009) 47 Cal.4th 566, 

569, 579; accord, People v. Brookfield (2009) 47 Cal.4th 583, 590–591.)

Section 12022.53, subdivision (e)(1) extends liability to aiders and abettors where 

“the prosecution has both ‘pled and proved’ that the defendant committed a felony on 

behalf of a street gang (see ... § 186.22) and that a ‘principal in the offense committed 

any act specified in subdivision (b), (c), or (d)’—that is, an act that would trigger a 

firearm enhancement had the defendant committed that act personally.

(§ 12022.53(e)(1).)” (People v. Anderson (2020) 9 Cal.5th 946, 953.) Section 12022.53, 

subdivision (e)(2) states:

“An enhancement for participation in a criminal street gang pursuant to 

Chapter 11 (commencing with section 186.20) of Title 7 of Part 1 shall not 

be imposed on a person in addition to an enhancement imposed pursuant to 

this subdivision, unless the person personally used or personally discharged 

a firearm in the commission of the offense.”

In Brookfield, the California Supreme court held “the trial court may not impose 

the sentence enhancement under section 12022.53 in addition to a life term under section 

*See footnote, ante, page 1.
28.

186.22(b)(4).” (People v. Brookfield, supra, 47 Cal.4th at p. 592.) Rather, a defendant 

who was an accomplice to a gang-related offense specified in section 12022.53 in which, 

as here, not the defendant but another principal personally used or discharged a firearm is 

“subject to additional punishment under either section 12022.53 or the gang-related 

sentence increases under section 186.22, but not both.” (Brookfield, at p. 594.) The 

Brookfield court relied upon section 12022.53, subdivision (j) in determining the trial 

court should have imposed the greater penalty (the life term under § 186.22, subd. (b)(4)), 

rather than the lesser punishment (the 10-year sentence enhancement under § 12022.53,

subds. (b) & (e)(1)). (Brookfield, at p. 596.) The provision states in part: “When an 

enhancement specified in this section has been admitted or found to be true, the court 

shall impose punishment for that enhancement pursuant to this section rather than 

imposing punishment authorized under any other provision of law, unless another 

enhancement provides for a greater penalty or a longer term of imprisonment.”

(§ 12022.53, subd. (j), italics added.) Because the Brookfield court held the trial court 

erred in sentencing the defendant to both the life term under section 186.22, subdivision 

(b)(4) and the 10-year sentence enhancement under subdivisions (b) and (e)(1) of section 

12022.53, it affirmed the decision of the Court of Appeal striking the 10-year sentence 

enhancement. (Brookfield, at p. 597.)

In People v. Gonzalez (2008) 43 Cal.4th 1118, the California Supreme Court 

concluded the word “impose” used throughout section 12022.53 “must be interpreted as 

shorthand for ‘impose and then execute’ to make sense.” (Gonzalez, at p. 1127.) The 

Gonzalez court rejected an interpretation of section 12022.53, subdivision (f)—which 

prohibits the imposition of enhancements pursuant to certain other sections in addition to 

an enhancement imposed pursuant to that section—“that would have the trial court strike, 

rather than stay, the prohibited firearm enhancements.” (Gonzalez, at p. 1127.) The 

court explained, this is “because the rules of statutory construction mandate that we 

interpret the statute in a manner that does not create unnecessary disharmony between 
29.

subdivision (f) and subdivision (h) of section 12022.53,” which previously prohibited a 

court from striking an allegation under that section. (Id. at pp. 1127–1128.) The 

Gonzalez court noted, requiring a court to strike rather than stay the prohibited 

enhancements would “mak[e] it more difficult, if not impossible, to impose and execute 

the term of imprisonment for an initially prohibited firearm enhancement in the event the 

section 12022.53 enhancement with the longest term of imprisonment is invalidated on 

appeal.” (Id. at p. 1128.)

B. Analysis

In supplemental briefing, Ramos argues the court erred, pursuant to section 

12022.53, subdivision (e)(2), in imposing and staying the firearm enhancement. He 

argues this section prohibits the imposition of both the firearm enhancement and a gang 

enhancement unless the defendant is the actual shooter. The People respond the trial 

court did not err in imposing and staying the firearm enhancement, but they agree Ramos

is entitled to reversal of this enhancement in light of the passage of Assembly Bill 333. 

They further contend the prosecution should be afforded an opportunity to retry this 

gang-related enhancement. We conclude Ramos is entitled to reversal of this 

enhancement under Assembly Bill 333.

We have already concluded Ramos’s gang enhancement imposed pursuant to 

former section 186.22 must be reversed. Because the imposed section 12022.53,

subdivision (a)(17) enhancement applied to Ramos only because his penalty had been 

elevated to a life term through application of the alternate penalty provision provided for 

in former section 186.22, the section 12022.53 enhancement is no longer supported. 

Accordingly, the imposed firearm enhancement must be vacated. On remand, the 

prosecution may also seek to retry this gang-related enhancement. Because we strike the 

enhancement on other grounds, we do not address Ramos’s arguments further.
30.

IV. Ramos May Raise His Challenge to the Imposed Restitution Fine and Court 

Assessments at Resentencing*

Ramos next argues the court violated his due process rights by imposing a $5,000 

restitution fine (Pen. Code, § 1202.4), $40 court operations assessment (Pen. Code, 

§ 1465.8), and a $30 criminal conviction assessment (Gov. Code, § 70373) without first 

determining whether he had the ability to pay these amounts. Ramos’s due process 

argument is based on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), which 

was decided after Ramos was sentenced and while his current appeal was pending. 

Dueñas held that “[d]ue process of law requires the trial court to conduct an ability to pay 

hearing and ascertain a defendant’s present ability to pay before it imposes” certain 

assessments and “the execution of any restitution fine imposed under [section 1202.4] 

must be stayed unless and until the trial court holds an ability to pay hearing and 

concludes that the defendant has the present ability to pay the restitution fine.” (Id. at p. 

1164; accord, People v. Castellano (2019) 33 Cal.App.5th 485, 488–489.) Relying on 

Dueñas, Ramos asserts the fees must be vacated and the fines must be stayed, and the 

matter remanded for the trial court to determine his ability to pay. He also argues the 

restitution fine imposed under section 1202.4 violates his state and federal constitutional 

rights against excessive fines.

Ramos concedes he did not raise his challenges below, but he argues our court can 

consider the issue for the first time on appeal because the imposition of a restitution fine 

without an ability to pay determination violates due process and was in excess of the trial 

court’s jurisdiction, resulting in an unauthorized sentence. He asserts under Dueñas,

imposition of the restitution fine without an ability to pay finding violated due process, 

equal protection, and the right to be free from excessive fines, which are fundamental 

constitutional rights not subject to traditional forfeiture rules.

*See footnote, ante, page 1.
31.

Because reversal of Ramos’s gang enhancement requires a remand to the trial 

court, we need not address his challenge to the imposition of the restitution fine and court 

assessments without an ability to pay hearing. Rather, on remand, Ramos may raise the 

argument during resentencing if he chooses to do so.

DISPOSITION

The section 186.22, subdivision (b) gang enhancement and the section 12022.53 

firearm enhancement are reversed. The matter is remanded to the trial court for further 

proceedings. The People shall have 60 days from the date of the remittitur in which to 

file an election to retry Ramos on these enhancements. If the People elect not to retry 

him, the trial court shall modify the judgment by striking the enhancements and shall 

resentence Ramos accordingly. Following the conclusion of proceedings, the court shall 

amend the abstract of judgment in a manner consistent with this disposition and forward 

copies of the amended abstract to the appropriate law enforcement and custodial officials. 

In all other respects, the judgment is affirmed.

PEÑA, Acting P. J.

WE CONCUR:

SMITH, J.

DE SANTOS, J.