Filed 4/1/22 P. v. Ramirez CA2/7

Opinion following transfer from Supreme Court

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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 SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

ROBERT ANTONIO 

RAMIREZ,

Defendant and Appellant.

 B265610

 (Los Angeles County

 Super. Ct. No. VA130983-02)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Olivia Rosales, Judge. Reversed and 

remanded with instructions.

Jerome McGuire, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Kamala Harris, Xavier Becerra and Rob Bonta, Attorneys

General, Lance E. Winters, Chief Assistant Attorney General, 

Susan Sullivan Pithey, Senior Assistant Attorney General, 

Shezad H. Thakor, Michael C. Keller and Idan Ivri, Deputy 

Attorneys General, for Plaintiff and Respondent.
2

_____________________

Applying the natural and probable consequences doctrine, a 

jury convicted Robert Antonio Ramirez of two counts of attempted 

willful, deliberate and premeditated murder, two counts of assault 

with a firearm and one count of shooting at an inhabited dwelling

and found true criminal street gang and firearm-use enhancement 

allegations. We affirmed those convictions on two prior occasions 

(in 2017 and 2019) based on the law as it existed at the time of our 

decisions.1 

Directed by the Supreme Court earlier this year to 

reconsider Ramirez’s case in light of recent ameliorative 

legislation, we now reverse the convictions for attempted murder, 

as well as the criminal street gang enhancements imposed on all 

counts. Our decision is based on Senate Bill No. 1437 

(Stats. 2018, ch. 1015) (Senate Bill 1437), effective January 1, 

2019, which eliminated accomplice liability for murder under the 

natural and probable consequences doctrine; Senate Bill No. 775 

(Stats. 2021, ch. 551, § 2) (Senate Bill 775), effective January 1, 

2022, which expanded the reach of Senate Bill 1437 to include 

1 In our 2019 decision, although we affirmed Ramirez’s 

convictions, we remanded the matter for the trial court to consider 

whether to exercise its discretion pursuant to Senate Bill No. 620 

(Stats. 2017, ch. 682), effective January 1, 2018, to strike or 

dismiss the formerly mandatory firearm-use enhancements 

imposed under Penal Code section 12022.53, subdivisions (c) and 

(e)(1), and pursuant to Senate Bill No. 1393 (Stats. 2018, 

ch. 1013), effective January 1, 2019, to dismiss the formerly 

mandatory prior serious felony enhancement imposed under Penal 

Code section 667, subdivision (a). The trial court is to consider its 

discretion to dismiss these enhancements upon resentencing 

Ramirez following the remand we again order. 
3

convictions for attempted murder and voluntary manslaughter 

and provided a defendant convicted under a now invalid theory of 

murder or attempted murder may seek relief on direct appeal in 

lieu of the postjudgment petition process created by Senate 

Bill 1437; and Assembly Bill No. 333 (Stats. 2021, ch. 699, § 3) 

(Assembly Bill 333), effective January 1, 2022, which increased 

the proof requirements for imposition of a criminal street gang 

enhancement, modifying the definitions of “criminal street gang” 

and “pattern of criminal gang activity” and clarifying the evidence 

needed to establish an offense benefits, promotes, furthers or 

assists a criminal street gang.

Ramirez and the Attorney General agree these reversals are 

necessary in light of the retroactive effect of the ameliorative 

legislation cited. However, they disagree on several issues 

concerning the scope of proceedings following remand: Should the 

prosecution be afforded the opportunity to retry Ramirez on a 

still-valid theory of attempted murder? Is new Penal Code 

section 1109,2 which provides, at the election of the defense, the 

defendant’s guilt of the underlying offenses must be determined 

before trial of gang enhancements, retroactive? If section 1109 is 

retroactive, must Ramirez’s convictions for aggravated assault 

and shooting at an inhabited dwelling be reversed because those 

counts were tried together with the gang enhancement 

allegations? We agree with the Attorney General the answer to 

the first question is yes. We need not answer the second question 

because the answer to the third question is no: Even if 

2 Statutory references are to this code unless otherwise 

stated.
4

section 1109 is retroactive, any error in trying the remaining 

substantive counts with the gang enhancements was harmless. 

We reverse Ramirez’s convictions for attempted murder and 

affirm the convictions for assault with a firearm and shooting at 

an inhabited dwelling, but reverse the true findings on the 

criminal street gang enhancements associated with those counts. 

The cause is remanded to provide the prosecution an opportunity 

to retry Ramirez on a legally viable theory of attempted murder 

and to retry the criminal street gang enhancements. If the People 

elect not to do so, Ramirez is to be resentenced in accordance with 

the terms of all applicable ameliorative legislation.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Shooting

In July 2013 Joe Gandara and his sister’s boyfriend, Gilbert, 

stood outside a corner market in South Gate waiting for 

Gandara’s brother, Steve Barraza, to leave the store.

3 Gilbert 

belonged to the Grape Street Watts gang and had prominent gang 

tattoos. While they were waiting, Ramirez, a member of the 

Lynwood Young Crowd gang who also had prominent gang 

tattoos, rode his bicycle toward Gandara and Gilbert, staring at 

them, and then rode back to an apartment complex on the corner 

across from the market. After Ramirez left, Gilbert told Gandara 

that Ramirez had previously approached him, but nothing had 

come of it. 

Ramirez returned on his bicycle several seconds later and 

rode up the sidewalk within three to four feet of Gandara and 

3 Gandara was the only one of the three victims to testify. 

Gilbert (Gandara did not know his last name) and Barraza were 

never located by the police. 
5

Gilbert. Ramirez appeared calm and asked, “Where you guys 

from?” Gandara, who was not a member of a gang, understood

Ramirez was asking what gang they were from and said nothing. 

Gilbert answered he was from Grape Street Watts. Ramirez, who 

had the letters Y and C tattooed on his face, said, “This is 

Lynwood Young Crowd” or, perhaps, “I am Lynwood Young 

Crowd.” Gandara and Gilbert answered, “OK,” and Ramirez 

returned to the apartment complex.4 

At this point Barraza came out of the market; and Gandara, 

Barraza and Gilbert began walking down the block to their house, 

which was five lots from the corner. Gandara told Barraza “some 

guy” had just “hit [them] up.” Barraza, a member of the South

Side Lynwood gang, told him not to worry about it. Looking back

at the apartment complex as they passed, Gandara saw Ramirez 

on his bike and three men standing next to the building, one with 

his hand tucked inside his waistband. That man began running 

toward Gandara, Barraza and Gilbert and yelled, “Hey, fuck Fake 

Street” (a derogatory name for Grape Street). Barraza said, “He’s 

got a gun. Hurry up. Let’s go.” Gandara, who had a bike, began 

pedaling harder. Barraza and Gilbert ran. As they fled, Gandara 

saw the man with the gun running after them, followed by one of 

the other two men. Ramirez, still on his bike, was slowly 

following the man with the gun, who was never identified, and a 

man later identified as Ramirez’s brother, Andres, down the 

street. Gandara never saw Ramirez talk or gesture to the man 

with the gun. 

4 At the preliminary hearing Gandara stated he had not been 

concerned after the exchange with Ramirez because “it was like a 

friendly-type encounter.” 
6

Gandara followed Barraza and Gilbert into their driveway 

toward the rear building where they lived. As Gilbert ran up the 

stairs to their apartment, Gandara again looked back and saw 

Ramirez was still “way back” toward the market, weaving back 

and forth on his bike. The man with the gun, who had reached 

the driveway, shot twice from the street toward the rear building. 

No one was struck. Abandoning his bike, Gandara climbed onto a 

neighbor’s roof. He saw Andres standing across the street from 

the driveway. He did not see Ramirez after the shots were fired. 

2. The Investigation

Responding South Gate police officers recovered a bullet 

fragment on the driveway next to the wall of the rear structure, 

located a bullet impact mark on the wall of the structure above 

the fragment and found two expended cartridge casings in the 

front yard adjacent to the street. At the apartment complex 

officers found Ramirez’s brother, Andres, an Elm Street Watts 

gang member, and Efrain Parra, a Willow Street gang member, as 

well as a black BMX bike, in an apartment rented to Ramirez’s 

mother. Later, Ramirez and his mother arrived in her car and 

parked in the complex carport. In the carport near Ramirez’s 

mother’s car a detective found two semiautomatic handguns 

wrapped in a rag. Four live rounds and two expended shell 

casings were recovered from the handguns. Forensic examination 

confirmed the cartridge casings and bullet fragments recovered 

from the shooting scene had been fired by one of the guns found in 

the carport.

In a field show-up Gandara identified Andres, Ramirez and 

Parra as the men who had watched the shooter and the bike found 

in the Ramirez apartment as the one ridden by Ramirez. Later 
7

that day Gandara identified Ramirez in a photographic lineup as 

the one who had ridden the bike. 

3. The Information

Ramirez was charged with two counts of attempted willful, 

deliberate and premeditated murder (§§ 187, subd. (a), 664)

(counts 1 and 2), two counts of assault with a firearm (§ 245, 

subd. (a)(2)) (counts 3 and 4), and one count of shooting at an 

inhabited dwelling (§ 246) (count 5). As to all counts the 

information alleged the crimes had been committed for the benefit 

of a criminal street gang (§ 186.22, subds. (b)(1)(B) & (C), (b)(4)).

As to counts 1, 2 and 5 the information alleged a principal had 

personally used and intentionally discharged a firearm 

(§ 12022.53, subds. (c), (e)(1)). The information further alleged 

Ramirez had suffered a prior conviction for a serious or violent 

felony within the meaning of the three strikes law (§§ 667, 

subds. (b)-(i), 1170.12) and a serious felony conviction under 

section 667, subdivision (a)(1), and had served two prior prison 

terms for felonies within the meaning of section 667.5, 

subdivision (b). 

Ramirez pleaded not guilty and denied the special 

allegations. 

4. The People’s Gang Evidence

The People presented evidence from two gang experts. 

South Gate Police Detective Christian Perez, an investigator with 

six years of experience investigating gang-related crimes in South 

Gate, had previous contact with Ramirez, who had admitted to 

Perez he was a member of the Lynwood Young Crowd gang with a 

moniker of “Snoops.” Perez testified the area near the corner 

market was claimed by numerous gangs. Without identifying 

members of the gang other than Ramirez, Perez stated members 
8

of Lynwood Young Crowd who lived in the area claimed the area 

as their territory. Gang members claim territory by “hitting up” 

other gang members in the area, that is, asking where others are 

from; stating where the gang member is from; assaulting other 

gang members with fists, weapons or guns; or tagging the area 

with graffiti. Gang members try to instill fear and intimidation in 

residents of the community and in rival gang members to 

establish respect for themselves and their gangs. 

Los Angeles County Sheriff’s Detective Marc Boisvert, 

assigned to the Sheriff’s gang investigation unit, testified he had 

once patrolled Lynwood and was familiar with the Lynwood 

Young Crowd gang. According to Detective Boisvert, South Gate, 

and specifically the corner market, was not in territory 

traditionally claimed by Lynwood Young Crowd. That gang’s 

principal rivals were South Side Lynwood, South Side Gangsters, 

Lynwood Neighborhood Crips and Lynwood 211 Crips. According 

to Boisvert, it was not uncommon for family members to belong to 

different—even rival—gangs and to assist one another in 

committing crimes. The primary activities of the Lynwood Young 

Crowd gang include felony vandalism, shootings, assaults, drug 

sales, weapons possession and murder. 

Although Detective Boisvert did not personally know 

Ramirez and had no experience with South Gate gangs, his 

research (including conversations with other officers) revealed 

Ramirez was an active member of Lynwood Young Crowd. 

Boisvert also testified that the question “Where are you from?” is 

a challenge that usually leads to a violent altercation, especially 

when the gang member questioned claims his gang. If a gang 

member issuing such a challenge was outnumbered, he might 

wait until he had the support of others to initiate violence. If a 
9

gang member lives in territory claimed by other gangs, he would 

still be expected to represent his gang and make his name and the 

gang’s name known in the area. In gang culture disrespect leads

to violence. “Fake Street” is a derogatory term for the Grape 

Street gang. 

Detective Boisvert testified about two predicate convictions

involving Lynwood Young Crowd gang members who were each 

found guilty of second degree murder. Given a hypothetical based 

on the evidence presented against Ramirez, Boisvert opined the 

shooting had been committed on behalf of a criminal street gang: 

A gang member had hit up the victims and claimed his own gang; 

the crime was committed in association with a criminal street 

gang because the gang member was assisted by other individuals, 

one of whom yelled a derogatory reference to the gang claimed by 

one of the victims; and instilling fear benefits the gang, in this 

case, Lynwood Young Crowd. 

5. The Defense Evidence

Ramirez did not testify at trial. Martin Flores, the director 

of a center providing services to at-risk youth who had worked in 

Watts for many years and knew South Gate well, testified on 

behalf of the defense. Flores agreed with Detective Boisvert’s 

description of Lynwood Young Crowd’s territory and confirmed 

that the gang’s territory was far from the area of the incident. He 

also opined a gang member who moves into another gang’s 

territory must “respect that neighborhood,” then “you have a pass 

. . . to go from your house to . . . the bus stop, the market” and 

“other places in the neighborhood.” A gang member claiming the 

area around the corner market for Lynwood Young Crowd would 

be “looking for trouble.” 
10

Considering the same hypothetical posed to Detective 

Boisvert, Flores believed it would be important to know the gang 

affiliation of the shooter, as well as those of the other men who 

participated in the incident, to understand whether the crime 

benefited Lynwood Young Crowd. Although he acknowledged 

gang members from different gangs do commit crimes together, he 

“disagree[d] that those crimes are done on behalf of a hood.” In 

light of the participants’ differing gang affiliations, Flores opined 

the shooting did not have to do with a particular gang; instead, 

“very likely” the shooting was “a personal response” tied to the 

shooter’s rivalry with Grape Street Watts. Lynwood Young Crowd 

and Grape Street are not rivals.

Flores also disagreed with Detective Boisvert’s assertion 

that any time a gang member hits someone up, violence is likely 

to result. In Flores’s experience many such encounters do not 

result in violence and are simply inquiries, particularly when a 

gang member moves into a new area.

6. Jury Instructions and Verdict

The jury was instructed with CALCRIM No. 400, advising it 

a person is guilty of a crime whether he or she “committed it 

personally or aided and abetted the perpetrator,” and CALCRIM 

No. 401, defining the elements for finding the defendant guilty of 

a crime based on aiding and abetting that crime. Over Ramirez’s 

objection that there was insufficient evidence for the jury to find 

Ramirez had committed the uncharged (target) crime of 

disturbing the peace in violation of section 415 by challenging 

someone to a fight, the court instructed the jury pursuant to

CALCRIM No. 403 that, “[b]efore you may decide whether the 

defendant is guilty of attempted murder and/or assault with a 

firearm and/or shooting at an inhabited dwelling, you must decide 
11

whether he is guilty of disturbing the peace.” If Ramirez is guilty 

of disturbing the peace (the target offense), the court continued, 

he may be found guilty of attempted murder and/or assault with a 

firearm and/or shooting at an inhabited dwelling (the nontarget 

offenses) if the People proved that, during the commission of the 

target offense, a coparticipant in the target offense committed one 

or more of the nontarget offenses and “[u]nder all the 

circumstances, a reasonable person in the defendant’s position 

would have known that the commission of [one or more of those 

offenses] was a natural and probable consequence of the 

commission of disturbing the peace.”5 The court defined 

“coparticipant” in the language of CALCRIM No. 403 as “the 

perpetrator or anyone who aided and abetted the perpetrator. It 

does not include a victim or innocent bystander.”

In closing argument the prosecutor read the jury excerpts 

from CALCRIM No. 403 and argued, relying on 

Detective Boisvert’s testimony that a hit-up usually leads to gang 

violence, Ramirez’s apparent communication with the shooter 

regarding Gilbert’s affiliation with Grape Street Watts and the 

discovery of the handguns in the carport, that Ramirez and the 

shooter were coparticipants in unlawfully challenging Gandara 

and Gilbert to fight and that shooting at the three men was the 

natural and probable consequence of that uncharged offense.

The jury convicted Ramirez on all counts, found the 

attempted murders had been committed willfully, deliberately and

5 The court separately instructed on the elements necessary 

to prove disturbing the peace (CALCRIM No. 2688), attempted 

murder (CALCRIM Nos. 600 & 601), assault with a firearm 

(CALCRIM No. 875) and shooting at an inhabited house 

(CALCRIM No. 965). 
12

with premeditation, and found true the special firearm-use and 

criminal street gang enhancement allegations. Ramirez waived 

trial and admitted the prior conviction and prison term 

allegations. Ramirez moved unsuccessfully for a new trial on the 

ground there was insufficient evidence to support a conviction for 

attempted murder as a natural and probable consequence of the 

offense of disturbing the peace. The court sentenced Ramirez to 

an aggregate term of 14 years to life plus 25 years in state prison. 

DISCUSSION

1. Senate Bills 1437 and 775 Require Reversal of Ramirez’s 

Convictions for Attempted Murder

As discussed, Senate Bill 1437 eliminated the natural and 

probable consequences doctrine as a basis for finding a defendant 

guilty of murder. (People v. Gentile (2020) 10 Cal.5th 830, 842-

843.)6 In addition to substantively amending sections 188 and 

189, Senate Bill 1437 added section 1170.95, which provides a 

procedure for individuals convicted of murder who could not be 

convicted under the law as amended to retroactively seek relief. 

(See People v. Lewis (2021) 11 Cal.5th 952, 959; Gentile, at p. 843.) 

The ameliorative provisions of Senate Bill 1437 as enacted, 

however, did not apply on direct appeal to convictions that were 

not yet final before the law became effective. (Gentile, at p. 852.) 

“Such convictions may be challenged on Senate Bill 1437 grounds 

only through a petition filed in the sentencing court under 

section 1170.95.” (Ibid.)

6 Senate Bill 1437 also significantly narrowed the felonymurder exception to the malice requirement for murder. 

(See §§ 188, subd. (a)(3), 189, subd. (e); People v. Lewis (2021) 

11 Cal.5th 952, 957.)
13

As amended by Senate Bill 775 section 1170.95, 

subdivision (a), now provides, “A person convicted of felony 

murder or murder under the natural and probable consequences 

doctrine or other theory under which malice is imputed to a 

person based solely on that person’s participation in a crime, 

attempted murder under the natural and probable consequences 

doctrine, or manslaughter may file a petition with the court that 

sentenced the petitioner to have the petitioner’s murder, 

attempted murder, or manslaughter conviction vacated and to be 

resentenced on any remaining counts . . . .”7 In addition, new 

subdivision (g) of section 1170.958 authorizes a defendant on direct 

appeal to challenge his or her conviction based on the new limits 

on accomplice liability for homicide: “A person convicted of 

murder, attempted murder, or manslaughter whose conviction is 

not final may challenge on direct appeal the validity of that 

conviction based on the changes made to Sections 188 and 189 by 

Senate Bill 1437.” 

Ramirez’s convictions for attempted murder, as well as for 

aggravated assault and shooting at an inhabited dwelling, were

based on the natural and probable consequences doctrine. As 

discussed, the court instructed the jury it could convict Ramirez of 

attempted murder, assault with a firearm and shooting at an 

7 In an uncodified statement of its intent in enacting Senate 

Bill 775, the Legislature declared the legislation “[c]larifies that 

persons who were convicted of attempted murder or manslaughter 

under a theory of felony murder and the natural probable 

consequences doctrine are permitted the same relief as those persons 

convicted of murder under the same theories.”

8 Former subdivision (g) of section 1170.95 was redesignated 

subdivision (h).
14

inhabited dwelling if he was guilty of the uncharged target offense 

of disturbing the peace, a coparticipant in that crime committed 

one or more of the charged offenses, and those offenses were the 

natural and probable consequence of the target offense. 

Although the court also instructed the jury generally on 

direct aiding and abetting, in closing argument the prosecutor did 

not argue Ramirez was guilty as a principal in the attempted 

murders, instead explaining the People’s case rested on the 

natural and probable consequences instruction. Ramirez should 

be found guilty of the charged nontarget offenses, the prosecutor 

asserted, because he challenged Gandara and Gilbert to fight, 

committing the uncharged target offense of disturbing the peace. 

Ramirez then returned to his apartment building and apparently 

told the shooter that Gilbert belonged to Grape Street Watts. The 

shooter participated in the challenge to fight by yelling, “Fuck 

Fake Street,” and then committed the charged nontarget offenses 

of attempted murder, aggravated assault and shooting at an 

inhabited dwelling, all of which were the natural and probable 

consequence of the gang/fight challenges. 

While questioning the evidentiary support for the 

prosecutor’s theory, defense counsel agreed Ramirez could be 

convicted only if the jury found the unnamed shooter’s actions 

were the natural and probable consequence of Ramirez’s limited 

role in the incident. Defense counsel argued, without objection, 

the prosecutor has “given up on the fact that this is some sort of 

aider and abettor situation.” 

Ramirez and the Attorney General agree, as do we, that 

because Ramirez’s convictions for attempted murder are not yet 

final and were based on instructions incorporating a now invalid 

legal theory, they must be reversed. (See People v. Aledamat
15

(2019) 8 Cal.5th 1, 3 [conviction that may have been predicated on 

erroneous or invalid legal theory must be reversed unless, based 

on all the circumstances, the reviewing court determines the error 

was harmless beyond a reasonable doubt]; People v. Chiu (2014) 

59 Cal.4th 155, 168 (Chiu) [same].) 

Generally, whether or not an alternate theory of liability 

was proffered at trial, when we reverse convictions due to a 

retroactive change in the law, not insufficient evidence, retrial 

remains theoretically possible if the People believe the evidence 

would support a conviction on a viable legal theory. (See Chiu,

supra, 59 Cal.4th at p. 168 [allowing the People to retry charge of 

first degree murder on a direct aiding and abetting theory when 

jury may have improperly based prior verdict on natural and 

probable consequences doctrine]; see also People v. Gutierrez

(2018) 20 Cal.App.5th 847, 857 [permitting new trial on charge of 

unauthorized taking of an automobile when evidence of value of 

automobile not introduced at original trial and Supreme Court 

had not yet ruled on Proposition 47’s applicability to Vehicle Code 

section 10851]; People v. Figueroa (1993) 20 Cal.App.4th 65, 71-72, 

fn. 2 [permitting new trial where statutory amendments added 

new element to offense after original trial].) Ramirez, however,

insists this principle does not apply here, and permitting a retrial 

would place him in double jeopardy, because the prosecutor and 

defense counsel “effectively stipulated that there was insufficient 

evidence to support a direct aiding and abetting conviction.” 

Moreover, Ramirez argues, the evidence presented at his trial 

would have been legally insufficient to convict him on a direct 

aiding and abetting theory. 

Ramirez, who provides no legal support for this novel 

argument, overstates the record. The prosecutor certainly agreed 
16

his case was predicated on the natural and probable consequences 

doctrine and Ramirez’s role in the uncharged target misdemeanor 

offense. And the People’s evidence at trial was directed to that 

theory of culpability. But the prosecutor never stipulated (either 

actually or effectively) there was insufficient evidence to proceed 

on a theory of direct aiding and abetting. It may be that, in fact,

there is no such evidence. If so, we presume there will be no new 

trial for attempted murder. However, the People are entitled to 

an opportunity to evaluate the case and to proceed on a legally 

viable theory of attempted murder if, in good faith, a prosecution 

should be pursued. 

2. Substantial Evidence Supported Ramirez’s Remaining 

Convictions Under the Natural and Probable 

Consequences Doctrine

In his prior appeals, in addition to challenging the 

continued validity of the natural and probable consequences 

doctrine for charges of attempted willful, deliberate and 

premeditated murder, Ramirez argued the evidence was 

insufficient to support application of the doctrine to any of the 

nontarget offenses for which he was convicted. He raised three 

distinct points: There was insufficient evidence to convict him of 

the target offense, disturbing the peace; he was the sole 

perpetrator of that offense (if it was committed), not an aider and 

abettor or coparticipant within the meaning of the natural and 

probable consequences doctrine; and the target offense was too 

trivial to support the serious felonies with which he was charged. 

As we have twice before—and in the absence of any new 

legislation or case law affecting our prior analysis—we again 

reject each of these contentions. 
17

a. Governing law

In People v. Prettyman (1996) 14 Cal.4th 248 the Supreme 

Court—after noting, “It sometimes happens that an accomplice 

assists or encourages a confederate to commit one crime, and the 

confederate commits another, more serious crime (the nontarget 

offense)” (id. at p. 259)—explained the elements of the natural and 

probable consequences doctrine: “[T]he jury must decide: 

whether the defendant (1) with knowledge of the confederate’s 

unlawful purpose; and (2) with the intent of committing, 

encouraging, or facilitating the commission of any target crime(s); 

(3) aided, promoted, encouraged, or instigated the commission of 

the target crime(s). The jury must also determine whether (4) the 

defendant’s confederate committed an offense other than the 

target crime(s); and whether (5) the offense committed by the 

confederate was a natural and probable consequence of the target 

crime(s) that the defendant encouraged or facilitated.” (Id. at 

p. 271; accord, Chiu, supra, 59 Cal.4th at p. 158 [“‘under the 

natural and probable consequences doctrine, an aider and abettor 

is guilty not only of the intended crime, but also “for any other 

offense that was a ‘natural and probable consequence’ of the crime 

aided and abetted”’”].)

“A nontarget offense is a ‘“natural and probable 

consequence”’ of the target offense if, judged objectively, the 

additional offense was reasonably foreseeable. [Citation.] The 

inquiry does not depend on whether the aider and abettor actually 

foresaw the nontarget offense. [Citation.] Rather, liability ‘“is 

measured by whether a reasonable person in the defendant’s 

position would have or should have known that the charged 

offense was a reasonably foreseeable consequence of the act aided 

and abetted.”’ [Citation.] Reasonable foreseeability ‘is a factual 
18

issue to be resolved by the jury.’” (Chiu, supra, 59 Cal.4th at 

pp. 161-162.)

In People v. Smith (2014) 60 Cal.4th 603 (Smith) the 

Supreme Court rejected the defendant’s argument that principals 

in the target crime may not be found guilty of nontarget crimes, 

even if those nontarget crimes are otherwise foreseeable, if they 

did not intend to aid and abet the perpetrator of the nontarget 

offenses. The defendant had been convicted of the murders of 

two of his fellow gang members who were shot by members of a 

rival gang as the outgrowth of an incident in which the two rival 

gangs had cooperated in staging a “jump out”9 and, in doing so, 

had aided and abetted each other in committing the target crimes 

of disturbing the peace and assault or battery. (Id. at pp. 611-

612.) As described by the Supreme Court, “The prosecutor had 

argued that during the commission of the target crimes, a 

principal in those crimes (a member of [the rival gang]) committed 

the murders, and the murders were the natural and probable 

consequence of the target crimes.” (Id. at p. 612.) Affirming 

Smith’s convictions, the Court noted his liability “was based on his 

being a principal [in the target offenses] under Penal Code 

section 31” (ibid.) and concluded the jury could have reasonably 

found that all the possible shooters had been aiders and abettors

in the target offenses (disturbing the peace and assault), and 

therefore principals in those offenses, regardless of their gang 

affiliation. (Id. at p. 619.) Thus, at least in the context of gang 

violence, the Supreme Court sanctioned the use of the natural and 

9 “‘[I]n order to get out of a gang, a member must be “jumped 

out,” which typically involves a beating of that member by the 

same members who jumped him or her into the gang.’” (People v.

Smith, supra, 60 Cal.4th at p. 608.)
19

probable consequences doctrine to impose liability on any 

principal (whether perpetrator or aider-or-abettor) in the target 

offense when another principal (whether perpetrator or aider-orabettor) in that offense commits a reasonably foreseeable 

nontarget offense. 

b. Substantial evidence supported the jury’s implied 

finding Ramirez committed the target offense of 

disturbing the peace

The target offense identified by the court in instructing the 

jury was disturbing the peace, a violation of section 415, 

subdivision (1), which imposes misdemeanor liability on “[a]ny 

person who unlawfully fights in a public place or challenges 

another person in a public place to fight.” As discussed, Ramirez 

first rode his bicycle toward Gandara and Gilbert while staring at 

them. He returned shortly thereafter, rode close to them and 

asked, “Where you guys from?” When Gilbert answered he was 

from Grape Street Watts, Ramirez identified either the territory 

or himself as Lynwood Young Crowd. Citing Gandara’s testimony 

acknowledging the lack of aggression or threat in Ramirez’s

conduct—thereby purportedly negating any intent to provoke a 

fight—and his expert’s testimony that similar questions 

frequently do not result in violence, Ramirez argued the 

prosecution’s evidence was insufficient to support a finding he had 

challenged Gilbert and Gandara to a fight. 

Ramirez’s subjective intent in hitting up Gilbert and 

Gandara is irrelevant. Specific intent to provoke a fight is not 

required to establish culpability under section 415, 

subdivision (1): “A challenge to fight is prohibited because such a 

challenge may provoke a violent response that endangers not only 

the challenger but any other persons who may be in the public 
20

place where the challenge occurs. . . . The mere fact that the 

challenger may naively believe that his challenge will go 

unanswered does not reduce the danger that the challenge poses 

to both the challenger and the public. Since the danger that a 

challenge to fight creates, and that the Legislature intended to 

prohibit, is unaffected by the challenger’s subjective intent to 

actually cause a fight or his subjective belief that a fight will not 

occur or is unlikely to occur, no specific intent is required.” 

(In re Cesar V. (2011) 192 Cal.App.4th 989, 998-999, fns. omitted.) 

Based on Detective Boisvert’s testimony that the question “Where 

are you from?” initiated a challenge to fight, the jury could 

reasonably conclude Ramirez committed a violation of section 415, 

subdivision (1).

Ramirez’s additional argument that violence was only a 

possible, not a probable, result of his conduct was an invitation for 

us to reweigh the evidence. We once again decline that invitation. 

(See, e.g., People v. Medina (2009) 46 Cal.4th 913, 922 [gang 

member’s question “‘where are you from?’” must be understood as 

“‘what gang are you from?’” and is “a verbal challenge, which 

(depending on the response) could lead to a physical altercation 

and even death”].)

c. The jury could reasonably conclude Ramirez did not 

act alone in committing the target offense

As discussed, the jury was instructed that to find Ramirez 

guilty of aiding and abetting the charged offenses it had to first 

decide whether he was guilty of the target offense (disturbing the 

peace) and find that “[d]uring the commission of disturbing the 

peace a coparticipant in that disturbing the peace committed the 

crime of attempted murder and/or assault with a firearm and/or 

shooting at an inhabited dwelling.” (CALCRIM No. 403.) A 
21

“coparticipant” was defined to include “anyone who aided and 

abetted the perpetrator.” (Ibid.) Ramirez contends, even if he 

challenged Gilbert and Gandara to fight, he was the sole 

perpetrator of the target offense. Without the shooter also 

participating in that offense, Ramirez argued, he (Ramirez) could 

not be convicted of the charged felonies as a natural and probable 

consequence of the challenge.

Viewing the evidence in the light most favorable to the 

verdict, as we must (People v. Morales (2020) 10 Cal.5th 76, 88), 

there was sufficient evidence to support the jury’s conclusion 

Ramirez committed the crime of disturbing the peace as a 

coparticipant in a common plan with the shooter to start a fight. 

Ramirez first rode his bike by Gilbert and Gandara, evaluating

them, before returning to the apartment complex where the other 

gang members awaited. He reemerged and hit up Gilbert and 

Gandara, asking “Where are you from?” before announcing his 

own affiliation with Lynwood Young Crowd. He then returned to 

the complex only to emerge again with the other gang members 

who commenced the assault. The jury could reasonably infer from 

Ramirez’s actions, as well as the shooter’s shouted gang slur, that 

Ramirez was acting at the instigation or with the encouragement 

of the shooter and his associates when he approached Gilbert and 

his friends the second time and attempted to provoke a fight and 

that he had thereafter identified Gilbert as a member of Grape 

Street Watts to his coparticipants, who proceeded to commit the 

nontarget offenses.

d. The target crime was not too trivial to support the 

convictions on the charged crimes

Ramirez also contended the People could not rely on the

natural and probable consequences doctrine to obtain convictions 
22

for serious crimes, such as shooting at an inhabited dwelling,

when the defendant had only committed a “trivial” misdemeanor, 

here, disturbing the peace. In advancing this argument Ramirez

relied on language from People v. Montes (1999) 74 Cal.App.4th 

1050 in which the court of appeal affirmed the defendant’s 

conviction for attempted murder during a gang fight that had

originated with a gang challenge and ended in a shooting. (Id. at 

p. 1053.) Reviewing People v. Prettyman, supra, 14 Cal.4th 248 

and its progeny, the Montes court first observed that “decisions 

applying [the natural and probable consequences doctrine] ‘most 

commonly involved situations in which a defendant assisted or 

encouraged a confederate to commit an assault with a deadly 

weapon or with potentially deadly force, and the confederate not 

only assaulted but also murdered the victim.’” (Montes, at 

p. 1055.) Continuing, the court stated: “On the other hand, it is 

rarely, if ever, true that ‘an aider and abettor can “become liable 

for the commission of a very serious crime” committed by the aider 

and abettor’s confederate [where] “the target offense contemplated 

by his aiding and abetting [was] trivial.”’ [Citation.] ‘Murder, for 

instance, is not the natural and probable consequence of trivial 

activities. To trigger application of the “natural and probable 

consequences” doctrine, there must be a close connection between 

the target crime aided and abetted and the offense actually 

committed.’” (Ibid.) The Montes court concluded the threats and 

initial fighting between the rival gangs in the case before it were

not trivial in nature and were closely connected to the escalation 

of the fight by the gang member who pulled a gun, a “textbook 

example of how a gang confrontation can easily escalate from 

mere shouting and shoving to gunfire.” (Ibid.) 
23

The extended discussion in Montes clarifies that a gang 

challenge that precipitates a gang fight can be a nontrivial 

instigator of more serious crimes resulting from that fight. There 

simply is no per se rule that precludes use of the natural and 

probable consequences doctrine when the target offense is 

disturbing the peace through a gang challenge. The question in 

each case is whether substantial evidence supports the jury’s 

findings. (See People v. Ayala (2010) 181 Cal.App.4th 1440, 1449 

[“[j]urors in a number of cases have found shootings to be 

foreseeable consequences of gang confrontations, and those 

findings have been affirmed on appeal”].) As explained, the jury

here had sufficient evidence to support its conclusion a gang 

challenge was issued by Ramirez as a coparticipant in a common 

plan to start a fight, which led to the serious felonies committed 

by his confederate.

3. Assembly Bill 333 Requires Reversal of the True Findings 

on the Criminal Street Gang Enhancements

Section 186.22. subdivision (b), provides for enhanced 

punishment when a defendant is convicted of a felony committed 

“for the benefit of, at the direction of, or in association with a 

criminal street gang, with the specific intent to promote, further,

or assist in any criminal conduct by gang members.” Assembly 

Bill 333 made a number of significant modifications to the 

requirements for proving a criminal street gang enhancement. 

Ramirez and the Attorney General agree, and we have previously 

held (see People v. Delgado (2022) 74 Cal.App.5th 1067), that, 

under the principles enunciated in In re Estrada (1965) 63 Cal.2d 

740, Assembly Bill 333’s amendments to section 186.22 apply 

retroactively to defendants whose convictions are not yet final. 

(See also People v. E.H. (2022) 75 Cal.App.5th 467.)
24

Previously, proof of a “pattern of criminal gang activity” as 

defined by section 186.22, subdivision (e), required evidence of 

two or more identified predicate offenses, “provided at least one of 

these offenses occurred after the effective date of this chapter and 

the last of those offenses occurred within three years after a prior 

offense, and the offenses were committed on separate occasions, or 

by two or more persons.” As amended, subdivision (e) now 

requires proof that (i) the last offense used to show the pattern of 

criminal gang activity occurred within three years of the date the 

currently charged offense is alleged to have been committed; 

(ii) the offenses were committed on separate occasions or by two or 

more gang members, rather than simply “persons”; (iii) the 

offenses commonly benefited a criminal street gang, and the 

common benefit was more than reputational; and (iv) the 

currently charged offense cannot be used to establish the pattern.

New section 186.22, subdivision (g), provides “to benefit, 

promote, further, or assist means to provide a common benefit to 

members of a gang where the common benefit is more than 

reputational.” The new subdivision provides as examples of a 

common benefit that is more than reputational “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.” 

The Attorney General concedes the gang evidence at 

Ramirez’s trial, presented under the old law, fell short of meeting 

these new requirements. Specifically, the Attorney General 

explains, the prosecution did not prove the predicate offenses 

identified by the People’s gang expert (two convictions for second 

degree murder) benefited the gang in ways that were more than 

reputational. Similarly, the prosecution gang’s expert, in 
25

response to a hypothetical question, testified the charged offenses 

benefited Ramirez’s gang by instilling fear in others, that is, by 

enhancing its reputation for violence. Without cataloguing

possible additional shortcomings in the gang evidence, Ramirez 

agrees with the Attorney General’s concession that a remand for 

retrial of the criminal street gang enhancements on the remaining 

counts is necessary. We agree, as well.

4. Any Error in Trying the Criminal Street Gang 

Enhancement Allegations Together with the Substantive 

Offenses Was Harmless

In addition to amending section 186.22, Assembly Bill 333

added section 1109, which, at the request of the defendant, 

requires a gang enhancement allegation be bifurcated and tried 

after the underlying charges, with the truth of the enhancement 

determined only after a guilty verdict. The Attorney General 

contends this new statute, unlike other provisions of Assembly 

Bill 333, does not apply retroactively, citing case law he argues 

stands for the proposition that changes in trial procedures apply 

prospectively if they do not alter the substantive requirements for 

proving a crime or the truth of an enhancement allegation or 

reduce the available punishment in the event of a conviction. 

(E.g., People v. Cervantes (2020) 55 Cal.App.5th 927, 939-940 [new 

requirements for interrogations not retroactive]; People v. Sandee

(2017) 15 Cal.App.5th 294, 305, fn. 7 [limitation on governmental 

search of cell phones not retroactive].)

Relying primarily on People v. Superior Court (Lara) (2018) 

4 Cal.5th 299, which held the provisions in Proposition 57 that 

modified the procedural requirements for trying a juvenile in 

adult criminal court applied retroactively to all cases not final on 

its effective date because “it ameliorated the possible punishment 
26

for a class of persons, namely juveniles” (id. at p. 308), Ramirez 

argues the ameliorative benefits of bifurcating trial of gang 

enhancement allegations “are manifest,” and the same inference 

of retroactivity should apply as in Lara. Ramirez then argues the 

failure to bifurcate trial of the criminal street gang enhancements 

in his case constituted prejudicial error because the jury would 

not have heard that two Lynwood Young Crowd members had 

committed murder (the predicate acts) or that the primary 

activities of the gang “include, but [are] not limited to . . . felony 

vandalism, shootings, weapons possession and murder.”

We need not decide whether Ramirez or the Attorney 

General is correct about the retroactive applicability of 

section 1109; for, even accepting Ramirez’s contention it was error 

to try the gang enhancements together with the substantive 

offenses, any such error was harmless. (See, e.g., Cal. Const., 

art. VI, § 13 [“[n]o judgment shall be set aside, or new trial 

granted, in any cause . . . for any error as to any matter of 

procedure, unless, after an examination of the entire cause, 

including the evidence, the court shall be of the opinion that the 

error complained of has resulted in a miscarriage of justice”];

People v. Gonzalez (2018) 5 Cal.5th 186, 195 [“We evaluate

nonstructural state law error under the harmlessness standard

set forth in [People v.] Watson [(1956)] 46 Cal.2d [818,] 836-837.

That standard requires us to evaluate whether the defendant has

demonstrated that it is ‘“reasonably probable that a result more

favorable to the appealing party would have been reached in the

absence of the error”’”].)

As Ramirez implicitly recognizes by citing only the brief 

gang expert testimony concerning the two predicate act murders 

and the listing of the Lynwood Young Crowd’s primary activities, 
27

all the other gang evidence admitted in the case would have been 

before the jury even if no gang enhancements were being tried. 

Indeed, the entirety of the case depended on such evidence, which 

was unquestionably admissible: Ramirez’s membership in the 

Lynwood Young Crowd gang, the concept of claiming territory by 

“hitting up” other gang members in the area, the significance of 

instilling fear to intimidate residents and members of other gangs, 

and the gang expert’s experience that challenges such as those 

issued first by Ramirez and then by the shooter usually lead to a 

violent altercation. Viewing the record as a whole, it is not 

reasonably probable that, with all the gang evidence admitted 

save only the testimony concerning predicate acts and primary 

activities, the jury would not have accepted the prosecutor’s 

argument that Ramirez committed the target misdemeanor of 

disturbing the peace by challenging another person in a public 

place to fight and that the shooter’s continuation of that gang 

challenge by chasing and shooting the victims was a natural and 

probable consequence of Ramirez’s conduct.

Ramirez’s reliance on this court’s divided decision in People 

v. Albarran (2007) 149 Cal.App.4th 214 to argue trial of gang 

allegations together with substantive charges, assuming error at 

all, violates a defendant’s right to due process and constitutes

federal constitutional error subject to harmless error analysis 

under Chapman v. California (1967) 386 U.S. 18 is misplaced. 

The Albarran majority recognized, if gang evidence has been 

admitted in violation of state law rules, prejudice would generally 

be analyzed under the Watson harmless error standard. 

(Albarran, at p. 229.) However, the majority concluded the gang

evidence at Albarran’s trial was so inflammatory and the trial 

court’s errors in allowing the evidence and then denying 
28

Albarran’s new trial motion so egregious, that Albarran’s trial was 

“one of those rare and unusual occasions where the admission of 

evidence has violated federal due process and rendered the 

defendant’s trial fundamentally unfair.” (Id. at p. 232.) 

To reach that concededly unusual conclusion, the Albarran

majority catalogued the “panoply of incriminating gang evidence” 

presented by the prosecution, including its gang expert’s lengthy 

testimony “about the identities of other 13 Kings members, the 

wide variety of crimes they had committed and the numerous 

contacts between the various gang members (other than 

Albarran) and the police. [The expert] described a specific threat 

13 Kings had made in their graffiti to kill police officers. The jury 

heard references to the Mexican Mafia both during the 

prosecutor’s opening argument and in [the gang expert’s]

testimony.” (People v. Albarran, supra, 149 Cal.App.4th at 

pp. 227-228.) Based on the extensive amount of extremely 

prejudicial evidence introduced, the majority reasoned, “there was

a real danger that the jury would improperly infer that whether or

not Albarran was involved in these shootings, he had committed

other crimes, would commit crimes in the future, and posed a

danger to the police and society in general and thus he should be

punished. . . . In our view, looking at the effect of this evidence on 

the trial as a whole, we believe that this prejudicial gang evidence

was ‘“of such quality as necessarily prevents a fair trial.”’” (Id. at 

pp. 230-231.)

 The limited gang evidence that would not have been 

admitted in a bifurcated trial here stands in sharp contrast to the 

extensive, Mexican Mafia-infused testimony that led the Albarran 

majority to find a “rare and unusual” due process violation. 

Watson, not Chapman, provides the appropriate harmless error 
29

standard in this case. As discussed, Ramirez has failed to 

demonstrate a reasonable probability he would have achieved a 

more favorable outcome at trial for aggravated assault and 

shooting at an inhabited dwelling if the gang enhancements had 

been tried separately.

5. The Prosecutor’s Misstatement of the Evidence Was 

Rendered Harmless by the Trial Court

In his original briefing in this court, Ramirez also argued 

the trial court committed reversible error when it denied his 

motion for mistrial after the prosecutor misstated in his closing 

argument that someone had yelled “Hey, fuck Fake Street!” when 

the shooter and Ramirez were standing together at the corner and 

that it could have been Ramirez. In fact, during his testimony 

Gandara had corrected his preliminary hearing testimony and 

stated the shooter had yelled the slur while running down the 

street toward Gandara’s apartment. The trial court denied the 

motion, which was made outside the jury’s presence after the 

conclusion of the People’s initial closing argument, noting it had 

already instructed the jury that counsel’s arguments were not 

evidence. The court also stated Ramirez’s counsel was free to 

discuss the clarification of Gandara’s testimony in his closing 

argument and to tell the jury the prosecutor had misstated the 

evidence. 

The court also offered to again admonish the jury; Ramirez’s 

counsel accepted the offer. Back in the jury’s presence, the court 

stated: “[B]efore [Ramirez’s counsel] begins his closing argument, 

there was an issue regarding [the prosecutor’s] closing argument 

regarding the evidence of what Joe Gandara . . . testified . . . as to 

when the person, the shooter, said “Fuck Fake Street. . . . So 

when you hear [counsel’s] arguments, . . . they are just arguments. 
30

As part of the instructions that I gave you I told you what they 

say is not evidence. . . . These are their arguments as to how you 

should look at the facts and the evidence in relation to the law; 

however, it is your recollection, your memory, the court reporter’s 

record, the exhibits, that is the evidence that you shall base [the 

verdict] on. . . . So [Ramirez’s counsel] will be addressing that, but 

just keep that in mind. If . . . you feel that your memory of what 

the evidence is conflicts with what they’re saying, you are the 

judges of the facts and you are to determine what is true or not.” 

After this admonition Ramirez’s counsel commenced his closing 

argument and specifically addressed the discrepancy in the 

evidence and the prosecutor’s misstatement of that evidence and 

reminded the jury they could ask for the pertinent testimony to be 

read to them. In his rebuttal argument the prosecutor 

acknowledged his error and stated he in “no way” intended to 

mislead the jury. 

The jurors were properly advised of the prosecutor’s 

unintentional misstatement of the facts, the inconsistencies in 

Gandara’s preliminary hearing and trial testimony and their own 

obligation to decide the case based on the evidence and not the 

arguments of counsel. The trial court, therefore, ensured Ramirez 

suffered no harm because of any misstatements by the prosecutor 

during closing argument. (See People v. Martinez (2010) 

47 Cal.4th 911, 957 [“[e]ven if the prosecutor’s argument could be 

interpreted as . . . improper . . . , it is not reasonably probable that 

the verdict would have been more favorable to defendant without 

the misconduct”]; People v. Wallace (2008) 44 Cal.4th 1032, 1070-

1071 [“‘[a] defendant’s conviction will not be reversed for 

prosecutorial misconduct’ that violates state law, however, ‘unless 
31

it is reasonably probable that a result more favorable to the 

defendant would have been reached without the misconduct’”].)

DISPOSITION

Ramirez’s convictions for attempted deliberate, willful and 

premeditated murder, together with the associated criminal street 

gang and firearm-use enhancements, are reversed. His 

convictions for assault with a firearm and shooting at an 

inhabited dwelling are affirmed but the related true findings on 

the criminal street gang enhancement are reversed. The cause is 

remanded to provide the People an opportunity to retry Ramirez 

on a legally viable theory of attempted murder and to retry the 

criminal street gang enhancements. If the People elect not to do 

so, Ramirez is to be resentenced in a manner that is consistent 

with this opinion and with the terms of all applicable ameliorative 

legislation.

PERLUSS, P. J. 

We concur:

SEGAL, J.

FEUER, J.