Filed 5/17/23 P. v. Shinn CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion 

has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

EDWARD ALCARAZ SHINN et 

al.,

Defendants and 

Appellants.

 B316256

 (Los Angeles County

 Super. Ct. No. NA102184)

ORDER MODIFYING 

 OPINION AND DENYING 

 REHEARING

 CHANGE IN THE 

 JUDGMENT

THE COURT:

It is ordered that the opinion filed herein on April 27, 2023, be

modified as follows:
2

1. On page 2, in the last paragraph, omit the last sentence 

that begins with “We affirm their convictions” and insert

the following in its place: 

We affirm their convictions for murder and general 

conspiracy, but vacate their convictions for gang 

conspiracy as well as some of the sentencing 

enhancements and one of the special circumstances; 

we thus remand for resentencing.

2. On page 10, in the last paragraph, omit the first 

sentence that begins with “Shinn, Moreno and Landeros 

challenge” and insert the following in its place: 

In 344 pages of briefing (which does not include 192 

pages of the People’s responsive brief), Shinn, Moreno 

and Landeros challenge their convictions and 

sentences on a plethora of grounds. 

3. On page 21, in the penultimate line, immediately 

following the phrase “and (2) the gang enhancements,” 

insert the phrase “the gang conspiracy conviction, and” 

so that the full sentence reads as follows: 

Based on these changes, defendants argue that (1) 

AB 333 invalidates all of their convictions because 

the charged gang enhancements were tried at the 

same time as their guilt (rather than being 

bifurcated); and (2) the gang enhancements, the gang 

conspiracy conviction, and the special circumstance 
3

finding based on gang involvement and the firearm 

enhancements for Shinn and Moreno that also turn 

on their gang involvement, must be vacated and 

retried under AB 333’s more stringent definitions.

4. On page 24, in the section heading that starts with “B.

Invalidation” insert the phrase “gang conspiracy 

conviction,” immediately following the phrase “gang 

enhancement,” so that the full section heading reads as 

follows:

B. Invalidation of gang enhancement, gang 

conspiracy conviction, gang-related firearm 

enhancement, and gang-related special 

circumstance

5. On page 24, omit the last sentence of the page that 

continues onto page 25 and begins with “These 

amendments apply not only” and the parenthetical 

citation that immediately follows it; insert the following

in its place: 

These amendments apply not only to the gang 

enhancement itself in section 186.22, but also to the 

firearms enhancement, special circumstance, and 

gang conspiracy crime that incorporate the definition 

set forth in section 186.22. (People v. Lee (2022) 81 

Cal.App.5th 232, 244-245 (Lee), review granted Oct. 

19, 2022, S275449; People v. Lopez (2022) 82 

Cal.App.5th 1, 25.) 
4

6. On page 26, omit the sentence that begins in line 8 with 

“Because that proof is lacking here,” and insert the 

following in its place:

Because that proof is lacking here, we must vacate 

the gang enhancement and gang conspiracy 

conviction as to all three defendants, the firearm 

enhancements for Shinn and Moreno, and the gangrelated special circumstance finding as to all three 

defendants.

7. On page 39, in the second sentence of the first 

paragraph that begins with “The gang enhancements for 

all three defendants,” delete the first word of the 

sentence and replace it with “The gang conspiracy 

conviction for all three defendants, the” so that the full 

sentence reads as follows: 

The gang conspiracy conviction for all three 

defendants, the gang enhancements for all three 

defendants, the firearm enhancements for Shinn and 

Moreno, and the gang-related special circumstances 

for all three defendants are vacated; the People may 

elect whether to retry them.

8. On page 39, in the sentence that begins in line 6 with

“The sentences are to be vacated:” add the word 

“general” immediately before the phrase “conspiracy 

counts” and add the phrase “the gang conspiracy 
5

convictions,” immediately after the phrase “if the People 

elect not to retry” so that the full sentence reads as 

follows:

The sentences are to be vacated: The multipliers on 

Shinn’s and Moreno’s first degree murder LWOP 

sentences are to be eliminated; the trial court is to 

impose sentences on the general conspiracy counts; if 

the People elect not to retry the gang conspiracy 

convictions, the gang-related firearm enhancements 

(for Shinn and Moreno) and the gang-related special 

circumstances (for all defendants), they are to be 

stricken; and the court is not to impose any parole 

revocation fine.

* * *

This modification changes the judgment. 

Appellants’ petitions for rehearing are denied. 

——————————————————————————————

LUI, P. J. CHAVEZ, J. HOFFSTADT, J.
Filed 4/27/23 P. v. Shinn CA2/2 (unmodified opinion)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion 

has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

EDWARD ALCARAZ SHINN et 

al.,

Defendants and 

Appellants.

 B316256

 (Los Angeles County

 Super. Ct. No. NA102184)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Eleanor J. Hunter, Judge. Affirmed in part,

vacated in part and remanded with directions.
2

Donna L. Harris, under appointment by the Court of 

Appeal, for Defendant and Appellant Edward Alcaraz Shinn.

Eric R. Larson, under appointment by the Court of Appeal, 

for Defendant and Appellant Edgardo Moreno.

Victor J. Morse, under appointment by the Court of Appeal, 

for Defendant and Appellant Alfredo Landeros. 

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Steven D. Matthews, Supervising 

Deputy Attorney General, and Michael J. Wise, Deputy Attorney 

General, for Plaintiff and Respondent.

* * * * * *

After a Mexican Mafia gang member’s years-long practice 

of beating his mistress resulted in a beating that landed her in 

the hospital, the mistress—who was also the mother of one of his 

children—started to cooperate with law enforcement to prosecute 

him. Before she could testify at his trial on charges of domestic 

violence and attempting to dissuade a witness, he directed other 

gang members to execute her. The gang member and two other 

gang members appeal their convictions for first degree murder 

and other charges. We affirm their convictions, but vacate some 

of the sentencing enhancements and one of the special 

circumstances and also remand for resentencing.
3

FACTS AND PROCEDURAL BACKGROUND

I. Facts

A. Defendant Edward Shinn (Shinn) and Shanta 

Lucero (Lucero) have an affair in which Shinn regularly 

beats Lucero

In 2006, Shinn was married to Elysa Garcia (wife). That 

same year, he started an extra-marital affair with Lucero.

Shinn’s affair with Lucero was marked by domestic 

violence. In the more than two years between the time they met 

and her murder, Shinn beat her or burned her with cigarettes 

more than 100 times. When, in 2006, Lucero told Shinn that she 

was pregnant with his child, he urged her to abort the pregnancy 

because Shinn’s wife was pregnant at the same time. Shinn 

continued to beat Lucero, even while she was pregnant. Lucero 

left California at Shinn’s insistence.

In May 2007, Lucero returned to California; gave birth to

her child; got back together with Shinn; and he resumed beating 

her regularly.

In July 2007, Shinn was arrested on charges of beating 

Lucero. To avoid having to testify against him, Lucero moved to 

Lompoc, California, again at Shinn’s insistence. Due to her

absence, the new criminal charges were dismissed and the case 

was prosecuted solely as a parole violation; this resulted in a 

shorter sentence, and Shinn was released from custody just a few 

months later, in February 2008.

Upon Shinn’s release, Lucero moved back to town and 

moved in with Shinn. The beatings resumed. 

On June 24, 2008, Shinn chased Lucero outside their home 

while she was carrying their child and proceeded to punch her 

more than 10 times, including in the face. Shinn coaxed Lucero 
4

back into the residence, where he beat her further. Lucero’s 

injuries were severe: She had a broken nose, burst blood vessels 

in her eyes, and a swollen jaw. She was taken to a hospital for 

treatment.

While at the hospital, she told law enforcement that Shinn

had inflicted these injuries.

B. Shinn is prosecuted for the June 2008 beating 

When Shinn learned that Lucero had spoken with police, 

he took their son away, beat her, and forced her to call the 

investigating police officer to say that her June 2008 beating was 

caused—not by Shinn—but instead by a group of women. Lucero 

subsequently told the police that Shinn had forced her to call 

with a new story.

On June 30, 2008, the People charged Shinn with domestic 

violence and with dissuading a witness. Shinn was arrested and 

held in custody pending trial. 

In the days prior to the preliminary hearing on those 

charges, Shinn warned Lucero that he would have her killed if 

she testified at the hearing. Lucero testified anyway. While she 

testified, Shinn “smirk[ed]” and “sort of laugh[ed]” in the 

courtroom. Immediately after she testified, Shinn called to tell 

her, “I’m done with you, bitch. And fuck that kid, too.”

C. Shinn’s active role in the Mexican Mafia

For many years up to and including 2008, Shinn was a 

member of the Oxnard-based Chiques gang, which was one of the 

many Southern California-based gangs under the umbrella of the 

Mexican Mafia. The Mexican Mafia oversees many street gangs 

in California, including the Chiques gang and the West Side 

Longos gang. Shinn enjoyed an elevated stature within the 
5

Mexican Mafia because he worked directly with some of its 

leaders. 

By mid-2008, Edgardo Moreno (Moreno), Albaro Miranda

(Miranda), and Alfredo Landeros (Landeros) were all members of 

the West Side Longos gang. Moreno was a “shot caller” (or “key 

holder”) of the gang—that is, a member who directed the gang’s 

members regarding which crimes to commit. Miranda was the 

gang’s armorer; he was a repository of the gang’s firearms and 

would loan or sell them to the gang’s members as directed. 

Landeros was a younger gang member anxious to “earn his 

stripes” by committing crimes for the gang.

A key policy of the Mexican Mafia—and hence of the street 

gangs under its control—is that cooperating with law 

enforcement against gang members is punishable by death.

D. Shinn tries to persuade Lucero not to testify, 

while simultaneously hinting he might have her killed

Because Shinn had two prior “strike” convictions within the 

meaning of our “Three Strikes” law, he believed that he was 

“fighting . . . 175 to life” in the pending domestic violence case 

involving Lucero.

Shinn took a two-track approach to his “fight.”

On one track, Shinn repeatedly called Lucero from jail to 

encourage her to change her testimony. Specifically, he told 

Lucero that she needed to be “school[ed]” on how to change her 

testimony so as to blame her injuries on someone else. Shinn 

reassured her that he did not want anything to happen to her, 

and even said that he had divorced his wife so that he and Lucero 

could be together. Shinn was lying: The day after Shinn told 

Lucero about his divorce, he called his wife to ask her to forge 

paperwork making it look like they were getting a divorce. Shinn 
6

later bragged to others that he was trying to “brainwash” Lucero 

into testifying in a way that exonerated him.

On the other track, Shinn strongly hinted to Lucero that 

she would be killed if she rejected his “schooling.” He 

“threatened her a lot of times”: He told her that she might have 

trouble if she was informing on anyone, bragged that he had the 

names and booking numbers of over 2,000 “homies,” and told her 

that “it’s going to be all bad” for Lucero if his “people . . . get in 

touch with Moreno.”

E. Shinn arranges to have Lucero killed

On August 10, 2008, Shinn called his wife from jail to ask 

her to copy and transmit some “paperwork” to various “shot 

callers” in the West Side Longos, East Side Longos, and Wilmas 

street gangs. Around that time, Moreno approached a “shot 

caller” in the West Side Longos named Lewis Guerrero 

(Guerrero) with “paperwork” showing that Lucero had made 

statements to police against “her baby daddy” (that is, Shinn) as 

well as against another gang member out of Compton. Moreno 

told Guerrero that Lucero “had to go.” Guerrero declined to take 

action against Lucero, telling Moreno that it was a “domestic” 

matter rather than a matter affecting the neighborhood.

On August 22, 2008, Lucero told Shinn that she was not 

inclined to change her testimony because, in her view, Shinn 

needed to “take responsibility” for his conduct in beating her.

On September 13, 2008, Moreno called Miranda and told 

him that two people would be coming by Miranda’s residence and 

needed to borrow one of his firearms. Moreno was miles away in 

La Mirada at the time. Around 5 p.m., Moreno called Landeros. 

Around 6 p.m., Landeros showed up at Miranda’s residence with 
7

another gang member named Little Blanco. Miranda gave 

Landeros a loaded revolver.

Around an hour later, Landeros called Lucero from a 

location near her residence, and did so while blocking his phone 

number. Landeros and Lucero traveled together to a nearby 

alley. Landeros had Lucero get out of his car and get down on 

her knees at the alley’s mouth. Landeros then shot her three 

times in the back, killing her. Cell phone records confirmed 

everyone’s movements.

The following day, Landeros and Little Blanco returned the 

empty revolver to Miranda. The two men pantomimed someone 

getting on their knees in prayer and “bragg[ed]” about how they 

had executed her. Because the revolver had been used to “smoke 

some girl,” Miranda disposed of it.

A few days after Lucero’s death, Moreno told others that 

Lucero was a “rat” who got “smoked,” and that Moreno had had 

“his torpedoes take care of it.”

F. Post-arrest statements

After his arrest, Landeros told police that he did not know 

Lucero. Landeros had no explanation for the calls between his 

phone and Lucero’s on the night of Lucero’s killing or how their 

phones were traveling in tandem in the minutes before her death. 

After his arrest, Miranda told a cell mate in a jail cell that 

was equipped with a recording device that Lucero had been killed 

because she had “snitch[ed]” on the “fool” who had hit her in the 

face.

II. Procedural Background

A. Charges

In February 2021, the People charged Shinn, Moreno and 

Landeros (collectively, defendants) with (1) the murder of Lucero 
8

(Pen. Code, § 187, subd. (a)),1 (2) conspiracy to commit murder (§§

182, subd. (a)(1), 187, subd. (a)), and (3) criminal street gang 

conspiracy to commit murder (§§ 182.5, 187, subd (a)). The 

People alleged two special circumstances for the murder count—

namely, that (1) the victim was a witness to a crime who was 

killed to prevent her testimony (§ 190.2, subd. (a)(10)), and (2) the 

defendants committed the killing while active participants in a 

criminal street gang (id., subd. (a)(22)). The People further 

alleged that defendants either personally discharged a firearm 

causing death (as to Landeros) (§ 12022.53, subd. (d)), or were 

principals in a gang-related crime when a fellow principal 

discharged a firearm causing death (as to Shinn and Moreno) (id.,

subds. (d), (e)(1)). The People alleged that all three crimes had 

been committed for the benefit of, at the direction of, or in 

association with a criminal street gang (§ 186.22, subd. (b)(1)(C)). 

As to Shinn, the People alleged that his two robbery convictions 

each constituted “strikes” within our Three Strikes law (§§ 

1170.12, subds. (a)-(d), 667, subds. (b)-(j)); as to Moreno, the 

People alleged that his prior assault with a deadly weapon count 

constituted a “strike”; the People further alleged that these prior 

felonies constituted “prior serious felonies” (§ 667, subd. (a)).

B. Trial

The matter proceeded to a four-week joint jury trial.

Shinn took the stand. He admitted to beating Lucero 

regularly, but claimed that he was trying to protect her. Lucero 

joined the West Side Longos after she had testified against a 

1 All further statutory references are to the Penal Code 

unless otherwise indicated. 

The People also charged Miranda, but his appeal is not 

before us.
9

gang member in Compton; according to Shinn, this automatically 

meant she put a death warrant over her head the moment she 

joined the gang. Shinn testified that he was trying to protect

Lucero and was asking Moreno for help in doing so. Although 

Shinn, on various jail calls, repeatedly stated his belief that 

Lucero was the “only witness” against him and that he would 

“walk” if she did not show up at his trial, Shinn testified that he 

had no reason to kill Lucero because Shinn knew that Lucero’s 

preliminary hearing testimony could still be admitted at trial 

against him under the former testimony exception to the hearsay 

rule.

Moreno took the stand. Although Moreno had previously 

stated on jailhouse calls that Landeros had killed Lucero at 

Moreno’s behest (and that Moreno himself was at a family vow 

renewal ceremony in La Mirada at the time of the killing), and 

although Moreno’s cell phone was pinging towers in La Mirada, 

Moreno testified that he had killed Lucero and had done so solely 

because she had cooperated with the police in the case regarding 

the Compton gang member. Moreno said he did not care about 

Lucero’s cooperation in the domestic violence case involving 

Shinn.

Miranda took the stand. He denied that Moreno ever asked 

him to supply Landeros with a gun, denied knowing Landeros at 

all, and denied the statements he made in jail to an undercover 

informant admitting to giving Landeros the gun.

The jury found defendants guilty of all charges, including 

for first degree murder, and found true all allegations. 

Shinn waived his right to a jury, and the judge found the 

prior “strike” convictions true. Moreno admitted his prior “strike” 

conviction.
10

C. Sentencing

The trial court sentenced Shinn to three terms of life 

without the possibility of parole (LWOP) on the first degree 

murder charge (comprised of one LWOP sentence, but tripled 

because it was a third strike), plus 25 years for the firearm 

enhancement, plus 10 years for the two prior serious felony 

convictions. The court did not orally pronounce any sentence as 

to the remaining conspiracy counts, but “stayed” them under 

section 654. The court also imposed $11,295.50 in victim 

restitution, a $10,000 restitution fine, and court fees and 

assessments totaling $210.

The trial court sentenced Moreno to two LWOP sentences 

(comprised of one LWOP sentence, but doubled because it was a 

second strike), plus 25 years for the firearm enhancement, plus 

five years for the prior serious felony conviction. The court did 

not orally pronounce any sentence as to the remaining conspiracy 

counts, but “stayed” them under section 654.

The trial court sentenced Landeros to LWOP, plus 25 years 

for the firearm enhancement. The court did not orally pronounce 

any sentence as to the remaining conspiracy counts, but “stayed” 

them under section 654.

D. Appeal

Shinn, Moreno and Landeros filed timely notices of appeal.

DISCUSSION

Shinn, Moreno and Landeros challenge their convictions 

and sentences on a number of grounds. We have broken these 

challenges into three broad categories—namely, challenges to 

evidentiary rulings, challenges based on Assembly Bill No. 333

(2021-2022 Reg. Sess.) (AB 333), and challenges to various 

aspects of their sentences.
11

I. Evidentiary Challenges

Shinn raises three challenges to the trial court’s 

evidentiary rulings. We review such rulings for an abuse of 

discretion. (People v. Mataele (2022) 13 Cal.5th 372, 413.)

A. Admission of wife’s statement

1. Pertinent facts

During a July 21, 2019, jailhouse telephone call, Shinn and 

his wife got into an argument over a “star witness” in the 

upcoming trial in this case. After a heated back-and-forth 

exchange where the wife kept cutting Shinn off as he was urging 

her to contact that witness, the following exchange occurred:

[Wife:] “If you fuckin’ mak[e] this shit worse, I’m

gonna tell the fuckin’ people I—”

[Defendant:] “Please, listen, Mom—”

[Wife:] “—still have—”

[Defendant:] “—mira (look).”

[Wife:] “—the fuckin’ letter.”

[Defendant:] “Mira (Look).”

[Wife:] “I still have the letter when you sent those

guys to fuckin’ kill—”

[Defendant:] “—Mamita (Little Momma)—”

[Wife:] “—that bitch.”

[Defendant:] “Mama (Mommy).”

[Wife:] “So I’m gonna call the fuckin’—”

[Automated

operator:] “Thank you for using GTL.”

(Italics added.)

Over Shinn’s hearsay objection, the trial court ruled that 

the jury could hear the snippet of the call containing the 

italicized language and decide for itself whether the wife’s 
12

statement—in light of Shinn’s decision to hang up on her rather 

than refute her statement—could be treated as his tacit 

admission that he did, in fact, send a letter directing Lucero’s 

murder. The court instructed the jury using CALCRIM No. 357, 

leaving the jury to decide for itself whether to believe that Shinn 

would have “naturally ... denied the statement if he thought it 

was not true” and whether he “could have denied it but did not.”

2. Analysis

The hearsay rule bars the admission of out-of-court 

statements for their truth. (Evid. Code, § 1200.) The rule does 

not, however, bar the admission of a party’s statements when 

offered against that party—whether the party makes those 

statements himself (Evid. Code, § 1220) or whether the party 

adopts statements made by someone else (Evid. Code, § 1221). A 

party is deemed to adopt someone else’s statement as his own—

and hence have it admitted against him notwithstanding the 

hearsay rule—if the other person’s statement “‘“would normally 

call for a response if the statement were untrue,”’” yet the party 

instead remained silent, evasive, or equivocal. (People v. 

Jennings (2010) 50 Cal.4th 616, 661 (Jennings); People v. Riel

(2000) 22 Cal.4th 1153, 1189.) A trial court properly allows a 

“‘jury to decide’” whether to treat a party’s statement as an 

adoptive admission as long as “‘the evidence supports a 

reasonable inference that an accusatory statement was made 

under circumstances affording a fair opportunity to deny the 

accusation.’” (People v. Geier (2007) 41 Cal.4th 555, 590, quoting 

People v. Edelbacher (1989) 47 Cal.3d 983, 1011.)

Here, the trial court did not abuse its discretion in 

concluding that the evidence sufficiently supported a reasonable 

inference that Shinn had adopted his wife’s statement when he 
13

hung up on her, such that it should go to the jury. Shinn hung up 

on his wife immediately after she said, “I still have the letter 

when you sent those guys to fuckin’ kill . . . that bitch.” Whether 

an accusation of orchestrating a murder, if untrue, would 

“normally call for a response” is certainly reasonable enough to go 

to the jury. Whether Shinn’s act of hanging up rather than 

denying the wife’s accusation constitutes an adoption of that 

accusation through requisite silence, evasiveness, or equivocality 

is also reasonable enough to go to the jury. (Accord, In re Jordan 

R. (2012) 205 Cal.App.4th 111, 136 [defendant’s conduct in 

hanging up when accused of misconduct rendered the statements 

“adoptive admission[s]”].)

Shinn responds with three groups of arguments. 

First, he argues there was insufficient evidence to submit 

the issue of whether this was an adoptive admission to the jury. 

He points to the transcript, urging that his wife kept interrupting 

him and thus prevented him from denying the truth of her 

statement. Although his wife certainly interrupted him several 

times, once she got out her full statement, Shinn did not even try 

to correct her; he simply hung up. Shinn posits that the trial 

court’s ruling was based on incorrect facts because the court 

stated that Shinn hung up “the moment [his wife] mentioned 

anything [potentially about] this case” and because Shinn and his 

wife talked about the case during the call for several minutes 

before she made the italicized statement. Shinn misreads the 

transcript. What the transcript shows is that Shinn and his wife 

discussed his efforts to have her contact a “star witness” for many 

minutes before he hung up on her; the topic of Shinn’s “kill order” 

did not come up until the very end of the conversation, right 

before he hung up on his wife. It is clear from the context of the 
14

court’s ruling that what it meant by “anything [potentially about]

this case” was the kill order, not the prior discussions about the 

star witness. Shinn lastly asserts that it was unclear who hung 

up on whom. We disagree. The transcript reflects that the end of 

the call cut off the wife mid-sentence; a jury could reasonably 

conclude that she did not hang up on herself mid-sentence. 

Similarly, the prosecutor proffered—without dispute—that 

defendant had ample money on his phone card to avoid having 

the call cut short due to lack of money; and even if that proffer 

may not be considered, the jury could look at the context as a 

whole and reasonably conclude that Shinn hung up on his wife. 

That is all that is needed to send this question to the jury.

Second, Shinn argues that the statement should have been 

excluded under Evidence Code section 352. That section 

empowers a trial court to “exclude 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.” (Evid. Code, § 352.) Here, Shinn’s 

adoptive admission is very probative of his intent to kill Lucero 

and his involvement in directing others to kill her. Shinn is 

correct that this statement is prejudicial to him (as all relevant 

evidence introduced by the People typically is), but Evidence 

Code section 352 is concerned with whether it is unduly 

prejudicial, and undue prejudice turns on whether the evidence is 

emotionally evocative. (E.g., People v. Schultz (2020) 10 Cal.5th 

623, 670.) This evidence is not. 

Lastly, Shinn argues that admission of this evidence 

violated due process. Because it complied with the Evidence 

Code, however, it did not violate due process. (People v. 
15

Hawthorne (1992) 4 Cal.4th 43, 58; People v. Lawley (2002) 27 

Cal.4th 102, 154-155.)

B. Admission of Carlos Ponce’s statement

1. Pertinent facts

a. Jailhouse calls

Moreno was placed in a jail cell with Carlos Ponce (Ponce) 

and Raul Aguilar (Aguilar), two other West Side Longos gang 

members. The cell contained a hidden recording device. 

i. March 26, 2010, Conversation

On March 26, 2010, the three men discussed Lucero’s 

killing. Moreno told Ponce and Aguilar that Landeros wanted to 

“do it” because he wanted to “earn [his] stripes” in the gang, and 

that Moreno had consequently “told [Landeros] to do it alone.” 

Ponce then noted that prosecutors could still “try to get [Moreno] 

for the conspiracy to commit murder” unless Moreno got 

Landeros “to say that he didn’t do it” and unless Moreno came up 

with an alibi. Moreno responded that he had an alibi because he 

was “at a wedding” when the killing went down. Moreno later 

reported that Miranda had supplied the gun used to kill Lucero 

and had called Moreno afterwards to tell him that “[t]he . . . (job)” 

was “done.”

ii. May 3, 2010, Conversation

Five weeks later, the three men again discussed Lucero’s 

killing. Moreno again reminded Ponce and Aguilar of his alibi for 

the killing as well as the fact that Landeros was “the one that did 

her.” Ponce again responded that prosecutors could “still get 

[Moreno] for conspiracy.” After Ponce recounted that Shinn had 

passed the “paperwork” on Lucero to his wife, so that the wife

could pass that paperwork on to Moreno, Ponce seemingly 

expressed admiration for Shinn, noting “He had his baby’s mom 
16

killed. He killed his baby’s mom. That’s gangster.” (Italics 

added.) Moreno did not dispute that statement; instead, Moreno 

explained how he would avoid responsibility for his role in 

Lucero’s killing by denying knowing Shinn (because Shinn was 

“from Oxnard”) and by asserting his alibi.

b. Severance motion

Prior to trial, Shinn made two motions to sever his trial 

from his codefendants. Shinn also objected to the introduction of 

Ponce’s May 3, 2010, statements italicized above.2 The People 

opposed severance, and argued that Moreno had adopted Ponce’s 

statement and Moreno’s adoptive admission was against his 

penal interest. The trial court denied the severance motion and 

ruled that Ponce’s statement was admissible.

 2. Analysis

Although Shinn urged that severance was appropriate 

because the admission of Ponce’s statement violated the 

Confrontation Clause and because it was inadmissible hearsay,3

Shinn on appeal presses only the hearsay objection as well as a 

new objection that admission of this evidence contravenes 

Evidence Code section 352. 

2 Shinn’s motions also opposed the introduction of 

statements made by other codefendants, but Shinn does not 

appeal the introduction of those other statements. 

3 The Confrontation Clause objection is not well taken 

anyway. The jailhouse conversations were recorded 

surreptitiously, and it is now well settled that the Confrontation 

Clause after Crawford v. Washington (2004) 541 U.S. 36 only 

applies if an out-of-court statement is “testimonial” and that 

statements between friends who do not realize they are being 

recorded are not “testimonial” statements. (People v. Washington 

(2017) 15 Cal.App.5th 19, 28-29 [so holding].)
17

a. Admissibility of Ponce’s May 3, 2010,

statement under the hearsay rule

Hearsay is generally inadmissible. (Evid. Code, § 1200, 

subd. (b).) Two exceptions to this general rule of inadmissibility 

are pertinent to—and together justify—the admission of Ponce’s 

statement during the May 3, 2010, conversation. 

The first pertinent exception is the adoptive admission 

exception. As noted above, a party is deemed to adopt someone 

else’s statement as his own if the other person’s statement “would 

normally call for a response if the statement were untrue” and if 

the party—rather than dispute the statement—instead remains 

silent, evasive, or equivocal. (Evid. Code, § 1221; Jennings, 

supra, 50 Cal.4th at p. 661.) Here, Ponce asserted that Shinn 

had committed the crime of murder by “ha[ving] his baby’s mom 

killed,” yet Moreno—rather than denying the truth of this 

statement—merely reaffirmed that he would deny knowing 

Shinn and would assert an alibi. Contrary to what Shinn argues 

on appeal, Ponce knew Moreno was potentially liable for Lucero’s 

murder (1) because Moreno had previously told Ponce—during 

their March 26, 2010, conversation—that he had ordered 

Landeros to do the killing, (2) because Shinn had transmitted the 

paperwork on Lucero to Moreno, and (3) because Moreno had 

gotten confirmation of the killing from Miranda. Indeed, Ponce 

had repeatedly remarked that Moreno could still be liable for 

Lucero’s murder as a coconspirator. Because Moreno had 

admitted to Ponce that Moreno had orchestrated Lucero’s murder 

after Shinn gave him the “paperwork” on her, Ponce’s statement 

that Shinn “had his baby’s mom killed” implicated Moreno in the 

murder. Because a person liable for a murder (whether on a 

theory of direct liability or a theory of conspiratorial liability) 
18

would normally dispute his involvement, Moreno adopted Ponce’s 

statement when he failed to dispute Ponce’s reaffirmation of 

Shinn’s role in making the kill order that Moreno subsequently 

carried out. As a result, Ponce’s statement became Moreno’s

statement.

The second pertinent hearsay exception is the exception for 

declarations against interest. Evidence Code section 1230 

provides that a hearsay statement is admissible if (1) the 

declarant is unavailable, (2) the declaration was against the 

declarant’s penal interest when made, and (3) the declaration is 

sufficiently reliable. (People v. Duarte (2000) 24 Cal.4th 603, 610-

611.) In applying this hearsay exception, the appropriate 

question is whether each statement to be admitted is “specifically 

disserving to the interests of the declarant.” (People v. Leach

(1975) 15 Cal.3d 419, 441.) Because Moreno adopted Ponce’s 

statement, the declarant is Moreno. Moreno was unavailable to 

testify at the joint trial due to his privilege against selfincrimination. The statement that Shinn had directed Lucero’s 

murder—stated immediately after Moreno had admitted his role 

in carrying out that murder as well as Ponce’s (accurate) 

assessment that Moreno could be held liable for the murder as a 

conspirator—was against Moreno’s penal interest when Moreno 

adopted it. And because it was, as far as Moreno and Ponce 

knew, a statement between fellow gang members who had no 

incentive to exaggerate or to minimize their roles, it was 

sufficiently reliable. (People v. Greenberger (1997) 58 Cal.App.4th 

298, 335 (Greenberger) [“the most reliable circumstance is one in 

which the conversation occurs between friends in a noncoercive 

setting that fosters uninhibited disclosures”].) Under California 

law, if a statement constitutes a declaration against penal 
19

interest as to one party and “implicates” another party at the 

same time, that statement is admissible in a joint trial against 

both of those parties notwithstanding the hearsay rule as long as 

it meets the “constitutional requirement of trustworthiness.” (Id.

at pp. 332-335; People v. Cervantes (2004) 118 Cal.App.4th 162, 

176-177.) Here, the trial court did not abuse its discretion in 

finding that Moreno’s adoptive admission implicated both himself 

and Shinn in Lucero’s murder and, as noted above, was reliable 

and hence trustworthy.

Because Ponce’s statement was properly admitted into 

evidence and was admissible against both Moreno and Shinn, the 

trial court properly admitted that statement and did not abuse its 

discretion in denying Shinn’s severance motion because the crossadmissibility of that evidence counseled strongly in favor of a 

joint trial. (People v. Holmes, McClaine & Newborn (2002) 12 

Cal.5th 719, 801-802 [noting that “joint trials are preferred” and 

that severance “may be appropriate” only “‘if there is an

incriminating confession’” admissible against one—but not all—

defendants to be jointly tried]; People v. Sanchez (2016) 63 

Cal.4th 411, 463-464 [same].)

b. Admissibility of Ponce’s May 3, 2010,

statement under Evidence Code section 352

The trial court also did not abuse its discretion in admitting 

Ponce’s statement—as adopted by Moreno—under Evidence Code 

section 352. The statement was probative of Shinn’s role in 

getting the ball rolling on Lucero’s murder. It was also not 

unduly prejudicial.

c. Lack of prejudice

The erroneous admission of evidence and the failure to 

sever defendants can be harmless if there is no reasonable 
20

probability that the defendant would have obtained a better 

result if the matter had been severed. (People v. McLain (1988) 

46 Cal.3d 97, 105-106; People v. Wheeler (1973) 32 Cal.App.3d 

455, 461; People v. Partida (2005) 37 Cal.4th 428, 439.) Shinn 

argues that we must apply the harmless error test reserved for 

federal constitutional errors; we reject this argument, as the 

alleged error here is purely one of state evidentiary law. But 

even if we were to apply the more stringent harmless error test 

and ask whether the admission of Ponce’s statement was 

harmless beyond a reasonable doubt, it was. That is because the 

evidence of Shinn’s involvement in Lucero’s murder was very 

strong. Shinn had the motive to kill her due to her upcoming 

testimony in his trial that would put him away for “175 to life.” 

Shinn told Lucero she was in trouble if “his people” got hold of 

Moreno, and Shinn proceeded to make good on that threat by 

transmitting Lucero’s “paperwork” to Moreno to facilitate 

Lucero’s killing. Shinn’s wife stated on the later jailhouse call 

that the paperwork Shinn gave her was effectively a kill order. 

Ponce’s statement regaling Shinn for issuing that kill order does 

not undercut this otherwise overwhelming evidence of Shinn’s 

involvement.

d. Shinn’s further arguments

Shinn makes three further arguments. 

First, he argues that Ponce’s statement is not admissible 

because it is not admissible against Ponce’s penal interest. This 

is irrelevant. What matters, as noted above, is that Moreno 

adopted Ponce’s statement as his own and that Moreno’s 

acknowledgment that Shinn had directed a murder that Moreno 

had—in front of Ponce—already taken responsibility for carrying 

out, was certainly against Moreno’s penal interest.
21

Second, Shinn argues that Greenberger is not factually “on 

all fours” with this case. Again, this is irrelevant because 

Greenberger set forth the applicable test for admitting one 

defendant’s declaration against interest against another 

defendant during their joint trial; as noted above, that test is 

satisfied here.

Lastly, Shinn argues that Ponce’s statement would have 

mattered to the outcome of his trial. Again, we disagree for the 

reasons stated above.

C. Cumulative error

Shinn argues that these two errors, even if not sufficient on 

their own to justify reversal of his convictions, do so when 

considered cumulatively. We disagree. Because we conclude that 

the trial court did not commit two evidentiary errors, there is no 

error to cumulate. (People v. Carpenter (1999) 21 Cal.4th 1016, 

1064.)

II. AB 333-Based Challenges

Effective January 1, 2022, AB 333 (1) alters the 

requirements of the street gang enhancement set forth in section 

186.22, which had the ripple effect of altering the requirements of 

the firearm enhancement and special circumstance that borrow 

section 186.22’s definition (People v. Lopez (2021) 73 Cal.App.5th 

327, 346 (Lopez)); and (2) requires that adjudication of the gang 

enhancement be bifurcated to a separate stage of trial following 

the adjudication of guilt (Pen. Code, § 1109). (Stats. 2021, ch. 699, 

§§ 4, 5.) Based on these changes, defendants argue that (1) AB 

333 invalidates all of their convictions because the charged gang 

enhancements were tried at the same time as their guilt (rather 

than being bifurcated); and (2) the gang enhancements, as well as 

the special circumstance finding based on gang involvement and 
22

the firearm enhancements for Shinn and Moreno that also turn 

on their gang involvement, must be vacated and retried under AB 

333’s more stringent definitions. Because resolution of these 

issues requires statutory interpretation, constitutional questions, 

and the application of the law to undisputed facts, our review is 

de novo. (People v. Tirado (2022) 12 Cal.5th 688, 694 (Tirado) 

[statutory interpretation]; County of Santa Clara v. Superior 

Court (2023) 87 Cal.App.5th 347, 358 (County of Santa Clara) 

[constitutional interpretation]; Martinez v. Brownco Construction 

Co. (2013) 56 Cal.4th 1014, 1018 (Martinez) [application of law to 

undisputed facts].) 

A. Invalidation of all convictions due to failure to 

bifurcate the gang enhancement (and other enhancements 

and special circumstances based on the gang 

enhancement)

AB 333 added section 1109, which requires that the “truth” 

of the gang enhancement allegation contained in section 186.22 

be adjudicated “in [a] separate phase[]” after guilt is adjudicated. 

(§ 1109, subd. (a).) Currently, the appellate courts in California 

are divided over whether section 1109 applies retroactively to 

persons, like defendants, whose convictions are not yet final but 

who were tried prior to AB 333’s effective date. (Compare People 

v. Burgos (2022) 77 Cal.App.5th 550, 564 (Burgos) [section 1109 

is retroactive], review granted July 13, 2022, S274743; People v. 

Ramos (2022) 77 Cal.App.5th 1116, 1128 [same]; People v. 

Montano (2022) 80 Cal.App.5th 82, 108 [same] with People v. 

Perez (2022) 78 Cal.App.5th 192, 207 [section 1109 is not 

retroactive]; People v. Bourkes (2022) 83 Cal.App.5th 937, 948 

[same]; People v. Ramirez (2022) 79 Cal.App.5th 48, 65 [same],
23

review granted Oct. 12, 2022, S275341.) Our Supreme Court has 

granted review in Burgos, ostensibly to resolve this split. 

We need not wade into this split of authority, or try to read 

the tea leaves about what our Supreme Court will do, because our 

Supreme Court has held that any error in the failure to bifurcate 

the gang enhancement under section 1109 is harmless if it is not 

reasonably likely the exclusion of evidence related solely to the 

gang enhancement would have changed the jury’s verdicts on 

guilt. (People v. Tran (2022) 13 Cal.5th 1169, 1208-1210 (Tran).) 

The vast majority of gang-related evidence in this case was 

directly relevant to the charged crimes of murder, conspiracy to 

commit murder, and gang conspiracy to commit murder. Thus, 

even if the gang enhancements, gang-related firearm 

enhancements and gang-related special circumstances had been 

bifurcated, much of the gang-related evidence would still have 

been admitted during the guilt phase of the trial. This includes 

the evidence regarding Shinn’s elevated role in the Mexican 

Mafia, that gang’s tenets against snitching, the organization of 

that gang as well as the West Side Longos, and the positions of 

Moreno, Landeros and Miranda within the West Side Longos. 

The only evidence that would have been excluded—because it 

was relevant solely to the gang enhancement—was the evidence 

of (1) the four crimes committed in the past by two Mexican 

Mafia gang members and two West Side Longos gang members—

none of whom had any role in Lucero’s murder—relevant to prove 

the pattern of gang activity; (2) the gang experts’ testimony

regarding the Mexican Mafia’s and West Side Longos’ primary 

activities (which included murder, attempted murder, assault 

with a deadly weapon, possession of illegal firearms, and witness 

intimidation) relevant to prove the gang’s purpose; and (3) the 
24

gang expert testimony regarding the symbols and sizes of the two 

gangs. Yet this evidence is either less egregious than the crimes 

charged in this case or wholly irrelevant to whether the charged 

defendants committed the crimes charged in this case. (Accord, 

Tran, at pp. 1208-1210 [finding failure to bifurcate harmless]; 

People v. E.H. (2022) 75 Cal.App.5th 467, 480 [same].) The 

evidence of defendants’ guilt of Lucero’s murder is also incredibly 

strong, and is comprised of the wealth of recorded jailhouse calls 

where Shinn and Moreno admitted to their roles in the killing, of 

cell phone records, and of the recorded statements of others 

complicit in the crime. Thus, the failure to bifurcate provides no 

basis for disturbing defendants’ convictions.

B. Invalidation of gang enhancement, gangrelated firearm enhancement, and gang-related special 

circumstance

AB 333 also amends the definition of the gang 

enhancement in several ways because it now requires: (1) the 

commission of two or more prior offenses within three years of 

the date of the current offense, and does not include the crimes 

charged in this case in that tally; (2) the benefit of the charged 

crime(s) to the gang be “more than reputational”; and (3) proof 

that the gang members “collectively engage in, or have engaged 

in, a pattern of criminal gang activity.” (§ 186.22, subds. (f), (g).) 

These amendments apply retroactively to cases, like defendants’, 

that are not yet final. (Tran, supra, 13 Cal.5th at pp. 1206-1207.) 

Because these amendments effectively impose new requirements 

of proof, jury instructions that omit them are defective. (Id. at p. 

1207.) These amendments apply not only to the gang 

enhancement itself in section 186.22, but also to the firearms 

enhancement and special circumstance that incorporate the 
25

definition set forth in section 186.22. (People v. Lee (2022) 81 

Cal.App.5th 232, 244-245 (Lee), review granted Oct. 19, 2022, 

S275449.) The People assert that AB 333 cannot amend the 

special circumstance because doing so would unconstitutionally 

amend a voter-enacted initiative (namely, Proposition 21). The 

Courts of Appeal are also currently split on this question. 

(Compare People v. Rojas (2022) 80 Cal.App.5th 542, 547, 557

(Rojas) [AB 333 unconstitutionally amends Proposition 21],

review granted Oct. 19, 2022, S275835 with Lee, supra, at pp. 

240-245 [AB 333 does not unconstitutionally amend Proposition 

21]; People v. Lopez (2022) 82 Cal.App.5th 1, 24-25 [same].) This 

question is also currently before our Supreme Court. (Rojas,

supra, 80 Cal.App.5th 542; Lee, supra, 81 Cal.App.5th 232.) 

However, we are more persuaded by the reasoning of the cases 

holding that AB 333 may constitutionally be applied to the 

special circumstance; because the People’s arguments to the 

contrary are ably dealt with in those cases, we will not repeat 

them here.

Of course, the omission of elements is subject to harmless 

error analysis under Chapman v. California (1967) 386 U.S. 18, 

24 (Chapman). (Tran, supra, 13 Cal.5th at pp. 1207-1209.) In 

this context, Chapman’s harmless beyond a reasonable doubt 

analysis requires us to ask: Is the evidence of the missing 

elements undisputed and overwhelming? (People v. Merritt 

(2017) 2 Cal.5th 819, 828.) We conclude the answer is “no.” 

Here, nearly all of the prior convictions admitted in this case 

were committed by a single person; they were not committed 

“collectively.” Although the Courts of Appeal are split on what 

the term “collectively” means (compare People v. Delgado (2022) 

74 Cal.App.5th 1067, 1088-1089 [“collectively” requires proof that 
26

the prior offenses were “committed by more than one person”]; 

Lopez, supra, 73 Cal.App.5th at pp. 344-345 [same] with People v. 

Clark (2022) 81 Cal.App.5th 133, 145-146 [“collective[]” action 

may also be shown by “two gang members who separately 

committed crimes on different occasions”]), we are more 

persuaded by the cases holding that collectively means that each 

prior crime must be committed by more than one gang member. 

Because that proof is lacking here, we must vacate the gang 

enhancements as to all three defendants, the firearm 

enhancements for Shinn and Moreno, and the gang-related 

special circumstance finding as to all three defendants.

III. Sentencing Challenges

Defendants raise a number of challenges to their sentences. 

Trial court rulings involving the interpretation of statutes or the 

application of undisputed facts to the law are reviewed de novo. 

(Tirado, supra, 12 Cal.5th at p. 694 [statutory interpretation]; 

County of Santa Clara, supra, 87 Cal.App.5th at p. 358 

[constitutional interpretation]; Martinez, supra, 56 Cal.4th at p. 

1018 [application of law to undisputed facts].) Factual findings 

are reviewed for substantial evidence. (E.g., People v. Jones

(2002) 103 Cal.App.4th 1139, 1143.) And sentencing decisions 

involving the exercise of discretion are reviewed for an abuse of 

that discretion. (E.g., People v. Panozo (2021) 59 Cal.App.5th 

825, 837.)

A. Allocution

Shinn argues that the trial court violated his statutory and 

due process-based rights to speak (or allocute) at his sentencing 

hearing.
27

1. Pertinent facts

At his November 1, 2021, sentencing hearing, Shinn was 

represented by counsel. At the outset of the hearing, the trial 

court confirmed that Shinn’s counsel had filed a motion for new 

trial that needed to be resolved prior to sentencing. Shinn’s 

counsel noted that Shinn himself was “requesting” a continuance 

of the sentencing hearing because Shinn had consulted a new 

attorney about filing a second motion for new trial and Shinn was 

“working on legal filings of his own.” After confirming with 

Shinn that his attorney’s representations were correct, the trial 

court denied the request for a continuance. The court then 

invited argument on the previously filed new trial motion and 

ultimately denied the motion.

The court then asked, “Defendant waive time for judgment, 

arraignment for sentencing, no legal cause?” Shinn’s counsel 

responded, “Yes, your honor.” Shinn then asked, “Can I address 

the court?” but the trial court proceeded to impose sentence. (The 

record does not reflect whether the court heard defendant’s 

question.) The court imposed sentence. When the court asked 

the prosecutor for the current tally of Shinn’s custody credits, 

Shinn twice interjected, “I want to address the judge.” The court 

then imposed direct restitution and informed Shinn of his right to 

appeal.

When the court asked Shinn’s counsel if he had “anything 

further,” counsel noted an objection to the amount of the $10,000 

restitution fine and then said that Shinn “would like to address

the court.” The court responded, “No.” The following colloquy 

occurred:

[Shinn:] “I can’t address the court?”

[The court:] “No.”
28

[Shinn:] “There’s no bias? Conflict of interest? 

Huh?”

[The court:] “That’s what you want to address, bias?”

[Shinn:] “You’re biased. Yeah, you’re biased.”

Shinn then opined that the trial judge had been “prejudicial” 

“from the get-go,” and that he was “gonna appeal.”

2. Analysis

Before a trial court may impose a criminal sentence, the 

court must ask the defense “whether [there is] any legal cause to 

show why judgment should not be pronounced against him.” (§ 

1200.) “Legal cause” to prevent the pronouncement of judgment 

is statutorily defined to include that (1) the defendant “is insane,” 

or (2) the defendant has “good cause to offer, either in arrest of 

judgment or for a new trial.”4 (§ 1201.) A defendant also has the 

right to present evidence in support of a mitigated sentence by 

testifying on his own behalf under oath and subject to crossexamination. (§ 1204; People v. Evans (2008) 44 Cal.4th 590, 598 

(Evans).) However, a defendant does not have the right to argue 

mitigating factors other than as a witness, particularly when 

represented by counsel. (Evans, at pp. 599-600; Tran, supra, 13 

Cal.5th at pp. 1225-1226.) 

The trial court did not transgress any of these rules. The 

court asked Shinn’s counsel if there was “any legal cause” not to 

impose sentence, and counsel responded, “No.” That is 

sufficient—by itself—to constitute compliance with section 1200. 

4 A motion “in arrest of judgment” tests whether the court 

lacks “jurisdiction of the offense” charged, whether the facts 

“constitute a public offense,” or whether there is a “legal bar” to 

prosecution. (§§ 1185, 1004; People v. Morgan (1977) 75 

Cal.App.3d 32, 39-40.) 
29

(Tran, supra, 13 Cal.5th at p. 1225 [“Here, the trial court asked 

whether there was ‘any legal cause as to why [the] sentence 

should not be imposed’ [and] . . . Tran’s counsel replied, ‘No.’ 

That satisfies section 1200”].) Defendant also did not at any 

point offer or ask to testify on his own behalf at the sentencing 

hearing. Thus, there was no violation of section 1204. And, as 

noted above, defendant has no other statutory or constitutional 

right to address the court at sentencing.

Defendant resists this conclusion with two arguments.

First, defendant seems to argue that he is entitled to 

countermand his counsel’s representation to the court that there 

was no “legal cause” to forestall the imposition of sentence. He is 

wrong. A criminal defendant who is represented by an attorney 

is bound by his attorney’s representations to the court. (People v. 

Merkouris (1956) 46 Cal.2d 540, 554-555 (Merkouris); Townsend 

v. Superior Court (1975) 15 Cal.3d 774, 780-781; cf. McCoy v. 

Louisiana (2018) __U.S.__ [138 S.Ct. 1500, 200 L.Ed.2d 821]

[defendant not bound by counsel’s tactical decisions about the 

theory of the defense].) The defendant will not be permitted to 

contradict his attorney. (Merkouris, supra, at pp. 554-555.) 

Indeed, California cases specifically recognize that counsel may 

declare “no legal cause” on behalf of the client. (E.g., People v. 

Cross (1963) 213 Cal.App.2d 678, 681-682; People v. Wiley (1976) 

57 Cal.App.3d 149, 166.) At most, a defendant in this situation 

would be left to argue that his counsel’s representation 

constituted ineffective assistance of counsel. To prevail on such a 

claim, however, a defendant would need to show that his 

counsel’s performance was deficient and that, but for the 

deficiency, it is reasonably probable that the result of the 

proceeding would have been different. (People v. Mickel (2016) 2 
30

Cal.5th 181, 198.) Even if we assume for the sake of argument 

that Shinn’s counsel was somehow constitutionally deficient for 

representing that there was no legal cause to forestall sentencing, 

defendant has not established that counsel’s conduct was 

prejudicial. Contrary to defendant’s intimation that we must 

presume prejudice because we do not know what defendant was 

trying to put on the record, it is Shinn’s burden to show prejudice. 

(People v. Ledesma (1987) 43 Cal.3d 171, 217-218; accord, People 

v. Nelson (1967) 257 Cal.App.2d 282, 285 [“Omission of the 

allocution is in itself not necessarily prejudicial,” particularly 

where the defense is represented by counsel]; People v. Billets

(1979) 89 Cal.App.3d 302, 310-311 [even outside of the ineffective 

assistance of counsel context, defendant must prove that the 

failure to allocute was prejudicial].) Although Shinn’s counsel 

said that Shinn himself and perhaps a new lawyer would be 

making additional filings, Shinn has not established—either 

before the trial court or this Court—that those filings would have 

forestalled the imposition of sentence, particularly when those 

filings would constitute defendant’s second and third motions for 

new trial. At most, Shinn seemed to indicate that he thought the 

trial judge was biased, but this argument was a recurring 

complaint of Shinn’s and, on the record here, falls woefully short 

of what is necessary to invalidate any of the trial court’s rulings.

Second, Shinn argues that the court separately erred in not 

allowing him to address the court by taking the stand again as he 

had at trial. But there is nothing in the record to indicate that 

Shinn asked to testify a second time; indeed, all Shinn offers on 

that point in his briefs is speculation. 
31

B. Doubling and Tripling of LWOP Sentences

Shinn and Moreno argue that the trial court erred in 

tripling (in Shinn’s case) and doubling (in Moreno’s case) the 

LWOP sentence imposed on the first degree murder conviction. 

The Courts of Appeal are divided over whether an LWOP 

sentence may be doubled or tripled under our Three Strikes law. 

The majority rule is that it is inappropriate to do so. (People v. 

Smithson (2000) 79 Cal.App.4th 480, 503-504; People v. 

Mason (2014) 232 Cal.App.4th 355, 367-368; People v. Coyle 

(2009) 178 Cal.App.4th 209, 219.) These cases rely on the plain 

language of the governing statute: That statute mandates the 

doubling (due to one prior “strike”) or tripling (due to two prior 

“strikes”) of (1) the “determinate term” or (2) the “minimum term 

for an indeterminate term.” (§ 667, subd. (e)(1).) Because an 

LWOP sentence is by definition not a “determinate term” and 

does not have a “minimum term,” these cases reason, the 

statutory mandate to double or triple a sentence simply does not 

apply to LWOP sentences. The minority rule provides that 

doubling or tripling the sentence is permissible because the 

statutory language is ambiguous and the overarching purpose of 

the Three Strikes law is to increase sentences. (People 

v. Hardy (1999) 73 Cal.App.4th 1429, 1433-1434 (Hardy).) As 

between the two lines of authority, we conclude that the majority 

rule is better reasoned: It is more consistent with the language of 

the statute; further, doubling or tripling an LWOP sentence does 

not in any meaningful sense increase a sentence because, as the 

saying goes, we only have one life to live. The sole impediment to 

this conclusion is that Hardy is a prior decision of this Division. 

The People contend that this fact means that the stare decisis 

forever binds us. We disagree. Although we agree that “stare 
32

decisis teaches that a court usually should follow prior judicial 

precedent even if the current court might have decided the issue 

differently,” particularly when it comes to “issue[s] of statutory 

construction” (Bourhis v. Lord (2013) 56 Cal.4th 320, 327), that 

principle is “not absolute” and may be overcome “for good reason” 

(ibid.). Here, we find such good reason—chiefly, that Hardy was 

decided without the benefit of reasoning set forth in the later 

cases and that disregarding Hardy harmonizes the law in 

California and brings uniformity (and hence certainty) to the law 

on this issue. We accordingly reverse the trial court’s sentences 

on the first degree murder counts with directions to impose a 

single LWOP sentence instead.

C. Application of Assembly Bill No. 518 (2021-2022 

Reg. Sess.) (AB 518)

Moreno and Landeros argue that they are entitled to a 

remand to allow the trial court to reconsider whether to stay 

their LWOP sentences instead of staying their two conspiracy 

convictions, which ostensibly carry a lower sentence. At the time 

of their initial sentencing, section 654 required trial courts—

when confronted with multiple counts of conviction for the same 

conduct—to impose the sentence “under the provision that 

provide[d] for the longest potential term of imprisonment” and to 

stay the other counts. (Former § 654, subd. (a).) However, our 

Legislature subsequently enacted AB 518, which took effect on 

January 1, 2022, and which is retroactive to non-final 

convictions. (People v. Mani (2022) 74 Cal.App.5th 343, 379-380 

(Mani) [AB 518 is retroactive].) AB 518 amends section 654 to 

give trial courts the discretion to choose which of two terms to 

impose and which to stay (rather than being obligated to impose 
33

sentence on the count with the longer term of imprisonment). (§ 

654.) 

We reject Moreno and Landeros’s argument for two 

reasons. 

First, applying the amended version of section 654 in a 

manner that would empower a trial court to stay an LWOP 

sentence in favor of a lower sentence would violate section 

1385.1. That section provides that, “[n]otwithstanding Section 

1385 or any other provision of law, a judge shall not strike or 

dismiss any special circumstance which is admitted by a plea of 

guilty or nolo contendere or is found by a jury or court as 

provided in Sections 190.1 to 190.5, inclusive.” (§ 1385.1, italics 

added.) Because applying AB 518 to section 654 when one of the 

sentences is an LWOP sentence would give a trial court the 

power to functionally strike and/or dismiss the special 

circumstance that mandates that LWOP sentence, section 

1385.1’s instruction that it applies “[n]otwithstanding . . . any 

other provision of law” means that it takes precedence over the 

newly amended section 654. (Accord, People v. Garcia (2022) 83 

Cal.App.5th 240, 257-258.) Moreno resists this conclusion, 

countering that striking a special circumstance or an 

enhancement is not the same as staying the resulting LWOP 

sentence under section 654. Whether it is technically the same or 

not, it has the same effect and would, in effect, nullify section 

1385.1. We decline to construe AB 518 to do an end run around a 

statute that takes precedence.

Second, even if we were to conclude that the newly 

amended section 654 applied to Moreno and Landeros, remand 

for the trial court to apply its newfound discretion is not 

warranted in this case. That is because remand is not warranted 
34

if the trial court has already “clearly indicated” at sentencing 

“that it would not . . . have stricken [the] enhancement”—or, in 

this case, stayed one sentence in favor of a shorter sentence—had 

it had the discretion to do so. (See People v. McDaniels (2018) 22 

Cal.App.5th 420, 425 [applying this standard to new legislation 

granting discretion to dismiss a different enhancement].) Put 

differently, if ““‘the record shows that the trial court would 

not have exercised its discretion even if it believed it could do so, 

then remand would be an idle act and is not required.”’” (Ibid.) 

Here, the trial court made it abundantly clear that it would not 

reduce the sentences of either Moreno or Landeros if it were ever 

granted greater discretion to do so. For instance, after the court 

stated that it had the discretion to strike the firearm 

enhancements, it declared that “positively not would I ever strike 

[them]” nor would the court “even think about striking [them].” 

Anticipating any further discretion that may be conferred in the 

future, the court went on to state: “I want to make it perfectly 

clear I would never, ever, ever think of striking the special 

circumstances as to Mr. Moreno and Mr. Landeros. [¶] I would 

never think of striking the gun allegations to Mr. Moreno and Mr. 

Landeros. [¶] I would never think of striking the strikes that 

have been applied to Mr. Moreno, Mr. Landeros. And that is 

based on the totality of this evidence, how evil these two are, and 

how morally corrupt they are.” Moreno responds that the trial 

court, on remand, might have a change of heart and provide him 

“with a motive for attempted reform.” We disagree; the court’s 

intentions are crystal clear.
35

D. Failure to impose sentence on conspiracy 

counts

The trial court in this case imposed LWOP sentences on the 

first degree murder count for each defendant, and then stayed 

the remaining two conspiracy counts under Penal Code section 

654. However, the trial court never imposed any sentence as to 

those conspiracy counts. This was error. Penal Code section 654 

allows for the execution of a sentence to be stayed, not the 

imposition of that sentence. (Mani, supra, 74 Cal.App.5th at p.

380; People v. Salazar (1987) 194 Cal.App.3d 634, 640; Couzens, 

Bigelow & Prickett, Sentencing Cal. Crimes (The Rutter Group 

2021) § 13:10.) Because the trial court never imposed any 

sentence on the conspiracy counts, we must remand for the court 

to do so. 

E. Shinn’s challenge to the imposition of fines and 

assessments

At the time Shinn was sentenced in November 2021, the 

court imposed a $10,000 restitution fine (Pen. Code, § 1202.4, 

subd. (b)), a $40 per count court operations fee (Pen. Code, § 

1465.8, subd. (a)(1)), and a $30 per count court facilities fee (Gov. 

Code, § 70373, subd. (a)(1)). The court also ordered Shinn to pay 

$11,295.50 in victim restitution to the California Victim 

Compensation Board, liability to be joint and several with the 

codefendants. Citing People v. Dueñas (2019) 30 Cal.App.5th 

1157 (Dueñas), Shinn argues that the trial court was required to 

find that he had an ability to pay all of the fines, fees, and 

assessments before they were imposed, and insufficient evidence 

supports any implicit ability-to-pay determination.

We reject Shinn’s argument for three reasons.
36

First, he arguably forfeited this objection. When defendant 

objected, he merely said that it would take him a long time to pay

the fines because, with his sole income being prison wages, he 

would only be earning “pennies an hour.”5 At no point did 

defendant say he had the inability to pay the fees.

Second, we have held that Dueñas was wrongly decided. 

(People v. Hicks (2019) 40 Cal.App.5th 320, 322, review granted 

Nov. 26, 2019, S258946.) The propriety of Dueñas is currently 

before our Supreme Court. (People v. Kopp (2019) 38 Cal.App.5th 

47, review granted Nov. 13, 2019, S257844). 

Lastly, Shinn has not carried his burden of showing that he 

is unable to pay. Dueñas, by its terms, does not excuse the 

payment of victim restitution (Dueñas, supra, 30 Cal.App.5th at 

p. 1169), so Shinn’s objection—at most—reaches the $10,210 in 

fines and assessments. Yet this amount is not beyond Shinn’s 

ability to pay in light of his LWOP sentence. “[E]very ablebodied” prisoner must work while imprisoned. (Pen. Code, § 2700; 

see also Cal. Code Regs., tit. 15, § 3040, subd. (k) [“An inmate’s 

assignment to a paid position is a privilege dependent on 

available funding, job performance, seniority and conduct”].) 

Prison wages range from $12 to $56 per month. (Cal. Code. Regs., 

tit. 15, § 3041.2, subd. (a)(1).) The California Department of 

Corrections and Rehabilitation is entitled to collect victim 

restitution and the restitution fine by deducting 50 percent of a 

prisoner’s wages and trust account deposits, plus another 5 

5 Counsel stated: “I computed it out, and $10,000 is about a 

25-year undertaking before that obligation is lifted.” This 

equates to a little less than $33.34 per month, but we note 

defendant was sentenced to LWOP, not a 25-year term of 

imprisonment. 
37

percent for the administrative costs of the deduction. (Pen. Code, 

§ 2085.5, subds. (a)-(d); Cal. Code Regs., tit. 15, § 3097, subds. 

(c), (f).) Despite Shinn’s protestation that he has “no marketable 

skills” because he has “spent most of his adult life in custody,” he 

is still able to earn wages by undertaking one of the many jobs on 

the long list of paying positions in prison. (Cal. Dept. of 

Corrections and Rehabilitation, Operations Manual (Jan. 1, 2022) 

§ 51120.7.) Even the lowest paying category of jobs includes 

positions whose duties should be compatible with Shinn’s 

purported lack of skills, such as shoe shiner, kitchen helper, or 

server. (Ibid.) To be sure, it may take Shinn a significant 

amount of time to earn enough money to pay the fees, but given 

his LWOP sentence, the trial court could have reasonably 

concluded that he failed to carry his burden to “present evidence 

of his . . . inability to pay.” (People v. Castellano (2019) 33 

Cal.App.5th 485, 490; People v. Aviles (2019) 39 Cal.App.5th 

1055, 1062 [defendant sentenced to term of 82 years to life had 

ability to pay $10,600 in restitution fines, $160 in court 

operations assessments, and $120 in court facilities funding 

assessments].)

F. Imposition of parole revocation fine

Defendants argue that the trial court improperly imposed 

(but stayed) parole revocation fines against them pursuant 

to section 1202.45 because their life sentences do not include the 

possibility of parole. The People concede this was error. We 

agree. (People v. Oganesyan (1999) 70 Cal.App.4th 1178, 

1185; People v. Brasure (2008) 42 Cal.4th 1037, 1075.)

G. Correction of Abstract of Judgment

Landeros was convicted of three counts and the trial court 

was required to impose a $40 court operations assessment and a 
38

$30 criminal conviction assessment as to each count. (Pen. Code, 

§ 1465.8, subd. (a)(1); Gov. Code, § 70373, subd. (a)(1).) The trial 

court erred here because it only imposed each of those 

assessments once, not three times. We may correct a trial court’s 

failure to impose a mandatory fee on appeal. (People v. 

Castellanos (2009) 175 Cal.App.4th 1524, 1530.) Accordingly, we 

order the clerk of the superior court to prepare an amended 

abstract of judgment to reflect the appropriate fines and 

assessments. (People v. Chan (2005) 128 Cal.App.4th 408, 425-

426.)
39

DISPOSITION

The convictions for the underlying offenses are affirmed. 

The gang enhancements for all three defendants, the firearm 

enhancements for Shinn and Moreno, and the gang-related 

special circumstances for all three defendants are vacated; the 

People may elect whether to retry them. The sentences are to be 

vacated: The multipliers on Shinn’s and Moreno’s first degree 

murder LWOP sentences are to be eliminated; the trial court is to 

impose sentences on the conspiracy counts; if the People elect not 

to retry the gang-related firearm enhancements (for Shinn and 

Moreno) and the gang-related special circumstances (for all 

defendants), they are to be stricken; and the court is not to 

impose any parole revocation fine. The matter is remanded for 

these purposes.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.

HOFFSTADT

We concur:

_________________________, P. J.

LUI

_________________________, J.

CHAVEZ