Filed 4/19/22 P. v. Gonzalez CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JAMES GONZALEZ,

Defendant and Appellant.

 H046836

 (Santa Clara County

 Super. Ct. No. 214496)

A multi-agency police investigation into drug trafficking and other crimes 

committed in Santa Clara County by Norteño criminal street gangs, operating under the 

umbrella of the Nuestra Familia prison gang, led to the indictment of appellant James 

Gonzalez and 23 others. A jury convicted Gonzalez of numerous crimes including street 

terrorism, attempted murder, assault with a deadly weapon, dissuading a witness or 

victim by force, robbery, burglary, criminal threats, conspiracy, possession of 

methamphetamine for sale, and illegal possession of a firearm by a felon. The jury also 

found true several sentence enhancements. The trial court sentenced Gonzalez to 14 

years to life in prison, consecutive to 38 years.

On appeal, Gonzalez raises 15 claims of error. Stated broadly, he challenges the 

sufficiency of the evidence for his robbery and conspiracy convictions, certain jury 

instructions, evidentiary rulings, and rulings on his motion for new trial, and his sentence.
2

For the reasons explained below, we reverse the convictions for street terrorism 

(count 1), criminal threats (count 11), and conspiracy (counts 12 & 13). We also reverse 

the true findings on several of the gang enhancement allegations (counts 5–11). 

Accordingly, we vacate Gonzalez’s sentence in its entirety and remand the matter for 

further proceedings. 

I. FACTS AND PROCEDURAL BACKGROUND

A. Procedural History

In March 2015, the grand jury of Santa Clara County returned a 34-count 

indictment charging appellant Gonzalez, codefendant Carlos Roman, and 22 other 

individuals.

1

 In December 2017, the Santa Clara County District Attorney filed a third 

amended indictment (hereafter indictment) against the same 24 people. That indictment 

alleged 14 crimes against Gonzalez: Street terrorism (Pen. Code, § 186.22, subd. (a)2; 

count 1), attempted murder (§§ 187, 664, subd. (a); count 5), assault with a deadly 

weapon (§ 245, subd. (a)(1); count 6), dissuading a witness or victim by force or threat 

(§ 136.1, subd. (c)(1); counts 7 & 8), robbery (§ 211; count 9), burglary (§ 460, subd. (a); 

count 10), criminal threats (§ 422; count 11), conspiracy to sell methamphetamine (§ 182, 

subd. (a)(1); Health & Saf. Code, § 11379, subd. (a); count 12), conspiracy to sell 

marijuana (§ 182, subd. (a)(1); Health & Saf. Code, § 11360, subd. (a); count 13),

conspiracy to bring contraband into a custodial facility (§§ 182, subd. (a)(1), 4573; count 

14), possession of methamphetamine for sale (Health & Saf. Code § 11378; count 15),

and illegal possession of a firearm by a felon (§ 29800, subd. (a)(1); counts 16 & 17).

The indictment further alleged as to all counts except count 1, that Gonzalez’s

crimes were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)); as 

1 Gonzalez and Roman were ultimately tried together. Roman was convicted on 

three counts, and this court has already decided Roman’s direct appeal. (See People v. 

Roman (Mar. 10, 2021, H046210) [nonpub. opn.].)

2 Unspecified statutory references are to the Penal Code.
3

to counts 5 and 6, that Gonzalez personally inflicted great bodily injury (§§ 12022.7, 

subd. (a), 1203, subd. (e)(3)); as to count 5, that Gonzalez personally used a deadly 

weapon (§ 12022, subd. (b)(1)); as to counts 7, 8, and 10, that a principal was armed with 

a firearm (§ 12022, subd. (a)(1)); as to count 9, that Gonzalez was a principal in the 

charged crime and a principal personally used a firearm (§ 12022.53, subds. (b), (e)(1));

as to counts 12 and 15, that the quantity of methamphetamine exceeded one kilogram 

(Health & Saf. Code § 11370.4, subd. (b)); and as to count 15, that Gonzalez personally 

was armed with a handgun (§ 12022, subd. (c)). 

In January 2018, the jury found Gonzalez guilty as charged, including that the 

robbery in count 9 was in the first degree. The jury also found all of the sentence

enhancement allegations true except for the firearm enhancement in count 9. 

Following the jury’s verdict, Gonzalez, through new defense counsel, filed a 

motion for new trial. Pursuant to the motion, the trial court found there was insufficient 

evidence to support the guilty verdict on count 14 for conspiracy to bring contraband into 

a custodial facility. The court thus vacated that conviction. The court also ordered the 

first degree robbery conviction on count 9 reduced to second degree robbery, finding that 

the jury should not have been permitted to convict Gonzalez on a degree of robbery that 

had not been charged in the indictment. 

In March 2019, the trial court sentenced Gonzalez to an aggregate determinate 

sentence of 36 years. That sentence included the upper term of nine years for attempted 

murder (count 5), and consecutive terms of one year and four months for first degree 

burglary (count 10), eight months for criminal threats (count 11), one year for each

conspiracy (counts 12 & 13), and eight months for each firearm possession (counts 16 &

17). Pursuant to section 654, the court stayed the determinate terms imposed on count 1

(upper term of three years), count 6 (upper term of four years), and count 15 (middle term 

of two years). The court also ordered that the three-year determinate term imposed on 

count 9 run concurrently. 
4

As for the sentence enhancement allegations, the trial court imposed consecutive 

terms of one year for the gang enhancements attendant to counts 12, 13, 16, and 17; 

consecutive terms of one year and eight months for the gang enhancements attendant to 

counts 10 and 11; a consecutive term of four months for the arming enhancement 

attendant to count 10; and, on count 5, consecutive terms of three years for the great 

bodily injury enhancement, one year for the deadly weapon enhancement, and 10 years 

for the gang enhancement.

Consecutive to the determinate sentence, the trial court imposed for counts 7 and 8 

consecutive indeterminate terms of seven years to life (for a total of 14 years to life) plus

consecutive one-year terms (for a total of two years). 

Gonzalez timely appealed. 

B. Factual Overview

The evidence at trial generally concerned three subjects. One topic related to

Gonzalez’s involvement in drug dealing and other activity with Norteño gang members 

between January 2013 and October 2014. Another concerned Gonzalez’s stabbing of 

Curtis Garza in January 2013 over a drug debt Garza owed to Gonzalez. The third topic

related to a November 2013 home invasion committed by Gonzalez and two other gang 

members to obtain a letter that indicated Gonzalez had been keeping drugs and money in 

a safe at a friend’s home. 

As described above, the prosecution of Gonzalez was part of a larger investigation 

into gang activity in Santa Clara County. Detective Justin Harper was the lead 

investigator in the case against Gonzalez and testified as an expert in “criminal street 

gangs, the Nuestra Familia, controlled substance recognition, usable amounts of 

controlled substances, and sales of controlled substances.” He testified that, while the 

organizational structure of the Nuestra Familia (NF) prison gang has changed over the 

years, everyone within the gang during the relevant time period for this case was 

considered a Norteño regardless of rank. The highest-ranking NF members (“carnals”)
5

“put[] people in place out on the streets . . . to bring all the Norteño criminal street gangs 

within [a] region [] under the NF umbrella.” Detective Harper used the descriptor 

“Norteño criminal street gang interchangeably with the Nuestra Familia” because, under 

“new [NF] directives,” “everybody’s a Norteño.” 

The primary activities of the NF/Norteños included homicides, attempted murders, 

kidnappings, extortion, assaults with deadly weapons, drug sales, robbery, burglary,

prostitution, and identity theft. Individual Norteño gangs in a given region were required 

to pay a monthly tax of $200 or $250 to the regional “street regiment.” The street 

regiment also imposed a 25 percent tax on all illegal activity within their region. The 

money generated from all these taxes was placed in a “regiment bank” and “reinvest[ed] 

[] into guns, into drugs, and other illegal endeavors to make a profit.” Ultimately, the 

profits were “funnel[ed] [] back into the county jails and the state prison system,” to 

support the carnals, along with “contraband, narcotics[, and] . . . cell phones, so that the 

carnals could have open lines of communication out on the streets.” Detective Harper 

testified that there were “probably more than 100 [Norteño street gangs] . . . within San 

Jose,” all of which the NF sought to control. The San Jose gangs fell under the authority 

of the NF street regiment assigned to Santa Clara County. Street regiments were “made 

up of trusted members from multiple different Norte[ñ]o gangs.” 

Detective Harper opined that Gonzalez was a Norteño gang member between 

January 1, 2013, and October 30, 2014, based on Gonzalez’s prison records, 

identification of Gonzalez as someone who worked under gang member Frank Cruz, 

Gonzalez’s authorship of reports to NF leadership, that Gonzalez was tasked by the 

regiment to oversee a street gang and eventually took on a leadership role in the regiment, 

Gonzalez’s tattoos, and the clothing and gang-related paperwork found by police in 

Gonzalez’s residence. 

Gonzalez did not testify or present any witnesses to the jury. Roman, too, did not 

testify at trial, but he did present some evidence related to him by way of a stipulation. 
6

II. DISCUSSION

Gonzalez raises 15 claims of error. For ease of exposition, we have grouped the 

issues by the procedural phase of the trial to which they correspond.

A. Pre-trial Evidentiary Rulings

With respect to evidentiary error, Gonzalez contends the trial court erred by (1)

allowing evidence of Gonzalez’s attack on Arlindo Silva and (2) denying Gonzalez’s 

request for a separate trial and choosing instead to redact portions of codefendant 

Roman’s out-of-court statements to police.

1. Gonzalez’s Attack on Arlindo Silva 

The district attorney presented evidence that in December 2015, pending trial, 

Gonzalez beat fellow gang member Arlindo Silva with waist-chain restraints while the 

two were in a courthouse holding cell. Gonzalez objected to this uncharged-misconduct 

evidence under Evidence Code section 352.3

On appeal, Gonzalez contends the trial court abused its discretion and violated his 

due process rights by allowing evidence about this attack. Gonzalez asserts that the 

probative value of the evidence was substantially outweighed by the danger of undue 

prejudice and rendered his trial fundamentally unfair. He argues the probative value was 

“severely limited” because “the incident occurred so long after the dates of the charged 

offenses” and the evidence was cumulative. He further maintains that the attack on Silva 

was “particularly prejudicial” because “it was the same crime (assault with a deadly 

weapon)” for which he was charged in count 6 (involving Curtis Garza). 

3 Evidence Code section 352 provides: “The court in its discretion may 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.) 
7

a. Legal Principles

Only relevant evidence is admissible at trial. (Evid. Code, § 350.) Evidence of 

crimes or misconduct committed after the charged crimes may be relevant. (See People 

v. Balcom (1994) 7 Cal.4th 414, 425–426.) “ ‘ “The test of relevance is whether the 

evidence tends ‘logically, naturally, and by reasonable inference’ to establish material 

facts such as identity, intent, or motive.” ’ ” (People v. Jones (2013) 57 Cal.4th 899, 947 

(Jones); see also Evid. Code, §§ 210, 1101, subd. (b); People v. Ewoldt (1994) 7 Cal.4th 

380, 404 (Ewoldt).) 

“A trial court has ‘considerable discretion’ in determining the relevance of 

evidence. [Citation.] Similarly, the court has broad discretion under Evidence Code 

section 352 to exclude even relevant evidence if it determines the probative value of the 

evidence is substantially outweighed by its possible prejudicial effects.” (People v. 

Merriman (2014) 60 Cal.4th 1, 74 (Merriman).)

Evidence Code section 352 “ ‘requires the exclusion of evidence only when its 

probative value is substantially outweighed by its prejudicial effect. “Evidence is

substantially more prejudicial than probative [citation] [only] if, broadly stated, it poses 

an intolerable ‘risk to the fairness of the proceedings or the reliability of the 

outcome.’ ” ’ ” (Jones, supra, 57 Cal.4th at p. 948.) “ ‘The admission of relevant 

evidence will not offend due process unless the evidence is so prejudicial as to render the 

defendant’s trial fundamentally unfair.’ ” (Id. at p. 949.)

“An appellate court reviews a court’s rulings regarding relevancy and 

admissibility under Evidence Code section 352 for abuse of discretion. [Citation.] We 

will not reverse a court’s ruling on such matters unless it is shown ‘ “the trial court 

exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted 

in a manifest miscarriage of justice.” ’ ” (Merriman, supra, 60 Cal.4th at p. 74.)
8

b. Analysis

We are not persuaded that the trial court erred by admitting evidence of 

Gonzalez’s attack on Silva. Gonzalez believed Silva was a “snitch” and Gonzalez tried 

to get “charges brought” within the NF against Silva. The attack was relevant to show 

Gonzalez’s prolonged and enduring membership and active participation in the 

NF/Norteño gang, his intent to benefit the gang by his criminal conduct, and his loyalty 

to the gang. That the attack occurred around 13 months after the last date alleged in the 

indictment (i.e., October 30, 2014) does not significantly reduce the attack’s probative 

value. (See People v. Spector (2011) 194 Cal.App.4th 1335, 1388; see also Ewoldt, 

supra, 7 Cal.4th at p. 405.) The attack also was not cumulative because it was relevant to 

issues that otherwise were disputed by Gonzalez at trial. (See id. at p. 406.) 

Furthermore, the evidence was not unduly prejudicial because the testimony about 

the attack was relatively brief and not particularly graphic or detailed. Thus, the evidence 

was not of such a nature that it would inflame the emotions of the jurors or mislead them 

from their task of deciding whether the district attorney proved Gonzalez’s guilt of the 

charged crimes. (See People v. Cowan (2010) 50 Cal.4th 401, 475; People v. Bolin

(1998) 18 Cal.4th 297, 320.) Moreover, although there is an inherent risk of prejudice 

with evidence of uncharged misconduct (see Ewoldt, supra, 7 Cal.4th at p. 404), the 

probative value of the evidence here is significant and the trial court instructed the jurors 

not to conclude from the “evidence of gang activity” that “the defendant is a person of 

bad character or that he has a disposition to commit crime.” We presume that the jurors 

followed the court’s limiting instruction. (People v. Case (2018) 5 Cal.5th 1, 32.) 

Likewise, there was no violation of Gonzalez’s constitutional rights to due 

process. The admission here of probative evidence was both appropriate and 

unexceptional, and it did not render Gonzalez’s trial fundamentally unfair. (See Jones, 

supra, 57 Cal.4th at p. 949; see also People v. Lindberg (2008) 45 Cal.4th 1, 26; Jammal 

v. Van de Kamp (9th Cir.1991) 926 F.2d 918, 920.) 
9

For these reasons, we conclude the trial court did not abuse its discretion in 

admitting the evidence of Gonzalez’s attack on Silva; we also decide no constitutional 

violation occurred.

2. Codefendant Roman’s Out-of-Court Statement to Police 

Gonzalez contends the trial court erred and prejudicially violated his right to 

confrontation when it denied his request for a separate trial and chose instead to 

insufficiently redact and admit into evidence portions of Roman’s out-of-court statements 

to police. 

a. Background

Gonzalez moved in the trial court for a severance and separate trial from 

codefendant Roman based on the district attorney’s intent to admit Roman’s out-of-court 

statements to police. Gonzalez maintained that a joint trial would deprive him of his 

constitutional rights to confront witnesses and to due process under Bruton v. United 

States (1968) 391 U.S. 123 (Bruton) and also would violate principles set forth in section 

1098 and People v. Aranda (1965) 63 Cal. 2d 518 (Aranda). Gonzalez argued that the 

detailed statements Roman made to Detective Justin Harper (the lead investigator and 

prosecution’s gang expert) inculpating Gonzalez could not be effectively redacted from 

the interview given their nature and content. The district attorney opposed Gonzalez’s 

motion, arguing, among other things, that Roman’s statements could be admitted with 

appropriate redaction. 

Pretrial, the trial court and parties reviewed Roman’s recorded interview line-byline, and the court order certain redactions and modifications to Roman’s statements. 

The trial court then denied Gonzalez’s motion.4

Gonzalez highlights for this court certain statements that were admitted into 

evidence. The pinpointed statements include Roman’s assertions (1) about getting 

4 The trial court also denied Roman’s own motion for a separate trial. 
10

“dope” from an unidentified male gang member (whom Roman had referred to as “he” 

during this portion of the interview), (2) that Roman found out a person (who is referred 

to as “he,” pursuant to a redaction of Gonzalez’s gang moniker from the original 

statement) was operating in the NF/Norteños regional street regiment after Roman started 

dealing with him, and (3) that Roman had dealings with gang members Arlindo Silva, 

Raymond Garcia, and Lorenzo Guzman. 

Gonzalez also notes that Detective Harper testified—in accord with Roman’s 

statements—that Roman had admitted to buying “dope from someone that could have 

gotten him caught up in a gang case” and to buying methamphetamine from someone he 

knew to be a member of a NF street regiment. 

In its final instructions to the jury, the trial court instructed that the evidence of 

Roman’s out-of-court statements could only be considered “against him, not against 

defendant James Gonzalez.” 

b. Legal Principles

“There is a statutory preference for joint trials of jointly charged defendants. 

(§ 1098.) ‘ “The court may, in its discretion, order separate trials if, among other reasons, 

there is an incriminating confession by one defendant that implicates a codefendant, or if 

the defendants will present conflicting defenses. [Citations.] Additionally, severance 

may be called for when ‘there is a serious risk that a joint trial would compromise a 

specific trial right of one of the defendants, or prevent the jury from making a reliable 

judgment about guilt or innocence.’ ” ’ ” (People v. Masters (2016) 62 Cal.4th 1019, 

1048.)

Relatedly, the confrontation clause of the Sixth Amendment to the United States 

Constitution provides that “ ‘[i]n all criminal prosecutions, the accused shall enjoy the 

right . . . to be confronted with the witnesses against him . . . .’ (U.S. Const., 6th Amend.) 

As the United States Supreme Court recognized in Bruton . . . and as [our high court] 

recognized in [Aranda], . . . admitting in a joint trial out-of-court statements made by a 
11

nontestifying codefendant that incriminate the defendant poses a severe ‘hazard’ to the 

defendant’s confrontation rights. [Citation.] For that reason, courts ‘cannot accept 

limiting instructions as an adequate substitute for [the] constitutional right of crossexamination.’ ”

5

 (People v. Mendez (2019) 7 Cal.5th 680, 700–701.)

“The United States Supreme Court ‘limited the scope of the Bruton rule in 

Richardson v. Marsh (1987) 481 U.S. 200 [(Richardson)] . . . . The court explained that 

Bruton recognized a narrow exception to the general rule that juries are presumed to 

follow limiting instructions, and this narrow exception should not apply to confessions 

that are not incriminating on their face, but become so only when linked with other 

evidence introduced at trial. [Citation.] That is because, “[w]here the necessity of such 

linkage is involved, it is a less valid generalization that the jury will not likely obey the 

instruction to disregard the evidence.” ’ ” (People v. Homick (2012) 55 Cal.4th 816, 

874.)

Whether editing a statement to retain references to a coparticipant in the crime but 

remove references to the coparticipant’s name will “sufficiently protect[] a nondeclarant 

defendant’s constitutional right of confrontation may not be resolved by a ‘bright line’ 

rule of either universal admission or universal exclusion. Rather, the efficacy of this 

form of editing must be determined on a case-by-case basis in light of the other evidence 

that has been or is likely to be presented at the trial. The editing will be deemed 

insufficient to avoid a confrontation violation if, despite the editing, reasonable jurors 

could not avoid drawing the inference that the defendant was the coparticipant designated 

in the confession by symbol or neutral pronoun.” (People v. Fletcher (1996) 13 Cal.4th 

451, 456 (Fletcher).) “When, despite redaction, the statement obviously refers directly to 

5 The parties agree that Roman’s statements to Detective Harper are “testimonial” 

hearsay for the purposes of Gonzalez’s confrontation clause claim. We concur. (See 

People v. Cortez (2016) 63 Cal.4th 101, 129; People v. Hopson (2017) 3 Cal.5th 424, 

432.) 
12

the defendant, and involves inferences that a jury ordinarily could make immediately, 

even were the confession the very first item introduced at trial, the Bruton rule applies 

and introduction of the statement at a joint trial violates the defendant’s rights under the 

confrontation clause.” (People v. Burney (2009) 47 Cal.4th 203, 231 (Burney).) If a 

codefendant’s confession cannot be edited to avoid a violation of the defendant’s 

confrontation rights, “severance is required.” (Ibid.) 

We review de novo a claim of entitlement to severance involving a trial court’s 

decision to redact a nontestifying codefendant’s statement under the Aranda/Bruton

doctrine. (People v. Washington (2017) 15 Cal.App.5th 19, 26.)

c. Analysis

Gonzalez concedes that he was not mentioned by name in any of Roman’s 

admitted, edited statements. Nevertheless, Gonzalez contends that Roman’s statements 

referred to a regiment member selling drugs and Gonzalez was one of “just a handful of 

individuals who actually were members of the regiment.” Gonzalez further asserts that 

even if Roman’s statements were sufficiently redacted to avoid incriminating him directly 

in the sale of drugs, “they nonetheless were incriminating because they still established 

the existence of a NF regiment that was involved in a conspiracy to sell drugs.” 

We are not persuaded by Gonzalez that the introduction of Roman’s edited 

statements violated Gonzalez’s constitutional right to confrontation. The jury heard 

evidence that the street regiment, over time, comprised multiple and different members 

from various Norteño gangs. Roman’s edited statements did not obviously refer to or 

implicate Gonzalez, and a reasonable juror could have concluded from the challenged 

statements that Roman was referring to a person who was not Gonzalez but some other 

member of the street regiment. Thus, Roman’s edited statements do not violate the 

confrontation clause. (See Burney, supra, 47 Cal.4th at pp. 231–232; People v. Lewis 

(2008) 43 Cal.4th 415, 467 (Lewis); Fletcher, supra, 13 Cal.4th at p. 466.)
13

Further, there is no merit to Gonzalez’s additional assertion that Roman’s admitted 

statements violated Gonzalez’s right to confrontation because the statements incriminated 

him generally with regard to the regiment’s conspiracy to sell drugs. Such general 

statements do not implicate Gonzalez’s constitutional rights. “Ordinarily, a witness 

whose testimony is introduced at a joint trial is not considered to be a witness ‘against’ a 

defendant if the jury is instructed to consider that testimony only against a codefendant.” 

(Richardson, supra, 481 U.S. at p. 206.) Bruton recognized a narrow exception to the 

power of a limiting instruction when a nontestifying codefendant’s statements 

“powerfully incriminate the defendant on their face because they directly implicate the 

defendant by name or do so in a manner the jury could not reasonably be expected to 

ignore.” (Lewis, supra, 43 Cal.4th at p. 506; see also Richardson, at p. 207; Gray v. 

Maryland (1998) 523 U.S. 185, 195–196.) 

Here, Roman’s statements about his dealings with other NF/Norteño gang 

members did not place any incriminating focus on Gonzalez. Like the situation 

addressed in Richardson—where the codefendant’s confession was not incriminating on 

its face and became so only when linked with evidence introduced later at trial

(Richardson, supra, 481 U.S. at p. 208)—it is a “less valid generalization” that 

Gonzalez’s jurors would have disobeyed the trial court’s instruction to disregard 

Roman’s statements when determining Gonzalez’s guilt. (Ibid.) We thus conclude that 

the challenged statements fall outside the ambit of the Aranda/Bruton exception and 

Gonzalez’s assertion regarding incrimination in the drug conspiracy fails to demonstrate 

a violation of the confrontation clause. (See People v. Hajek and Vo (2014) 58 Cal.4th 

1144, 1177, abrogated on other grounds by People v. Rangel (2016) 62 Cal.4th 1192, 

1216 (Rangel); People v. Mitcham (1992) 1 Cal.4th 1027, 1047.)

For these reasons, we decide the trial court did not err in denying Gonzalez’s 

motion for a severance and separate trial or by admitting Roman’s edited out-of-court 

statements to police. 
14

B. Jury Instructions

With respect to instructional error, Gonzalez contends (1) the trial court erred by 

failing to instruct on whether there was a single conspiracy; (2) the trial court erred by 

failing to instruct on the lesser included offense of attempted criminal threat; (3) the trial 

court erred by failing to instruct on all of the elements for witness or victim dissuasion; 

(4) the trial court erred by including felonies that did not qualify as felonious criminal 

conduct in its instruction on street terrorism; and (5) the jury instructions for the gang 

enhancements on counts 5–11 did not satisfy recent, retroactively applicable changes 

made to section 186.22 by Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Assembly Bill 

333).

As described below, we agree that the trial court erred in the instructions identified 

by Gonzalez on appeal. Nevertheless, we conclude only the errors in the instructions for 

conspiracy (counts 12 and 13), criminal threats (count 11), and street terrorism (count 1) 

require vacatur of Gonzalez’s convictions for those crimes. We further decide that the 

district attorney is not barred from retrying those crimes. We also decide that the changes 

made to section 186.22 by Assembly Bill 333 require reversal of the true findings on the 

gang enhancement allegations attached to counts 5–11 and that the district attorney may 

retry the allegations.

1. Conspiracy 

At trial, Gonzalez did not request that the jury be instructed to decide the number 

of conspiracies proven by the prosecution. However, on appeal, Gonzalez contends the 

trial court erred by not sua sponte instructing the jury to decide whether, as a matter of 

fact, there was a single conspiracy underlying counts 12 and 13. Alternatively, Gonzalez 

asserts that his trial counsel provided constitutionally ineffective assistance of counsel by 

failing to request an instruction on the number of conspiracies. 

The Attorney General counters that the trial court did not have a sua sponte duty to 

instruct on the number of conspiracies because “the question of whether multiple 
15

conspiracies or a single conspiracy exists is not a factual one for the jury.” The Attorney 

General argues further that Gonzalez forfeited his claim of error and has failed to 

demonstrate any ineffective assistance of counsel. In addition, the Attorney General 

concedes the following: “We do not assert [], on this record, that there was conclusive 

evidence of either of a single, or multiple, conspiracies. [Citation.] Accordingly, should 

this Court rule that the instruction was required, [this court’s decision in People v. Jasso

(2006) 142 Cal.App.4th 1213, 1223 (Jasso)] ruled that the proper remedy would be to 

remand the case to the trial court for further proceedings.” 

a. Procedural Background

In count 12, Gonzalez and 16 other people were charged with conspiring to sell 

methamphetamine on or about and between January 1, 2013, and October 30, 2014. In 

count 13, Gonzalez and four others—who also were charged in count 12—were accused 

of conspiring to sell marijuana during the same period. Additionally, the four overt acts 

alleged in each count were nearly identical, except that two of the four overt acts in each 

count involved different but overlapping groups of people; two overt acts in each count 

respectively specified the different drug relevant to that count (i.e., methamphetamine or 

marijuana); and one overt act in each count respectively referenced “the sale of 

methamphetamine” or “the sale of drugs.” 

The prosecution presented evidence through numerous witnesses regarding the 

structure and activities of the NF/Norteños during the relevant period. The witnesses 

included Detective Harper and five witnesses who had been part of the NF/Norteños 

before cooperating with law enforcement, Ulises Jimenez, Aaron Mendoza, Jacob 

Dominguez, Joshua Morreira, and Albert Lee.

6

 The witnesses described the gang’s and 

Gonzalez’s involvement in the sale of methamphetamine and marijuana.

6 The five witnesses had pleaded guilty to criminal charges leveled against them. 

They did not receive any promises from law enforcement on the outcome of their cases 

but testified under a grant of immunity. 
16

The trial court gave the jury several instructions related to the conspiracy counts. 

The instructions under CALCRIM No. 415 described each of the three conspiracies 

charged in counts 12, 13, and 14 as separate conspiracies and separately instructed the 

jury on the elements for each count. The court further provided instructions on the 

underlying crimes of selling methamphetamine, selling marijuana, and bringing 

contraband into a jail facility. In addition, the court instructed with CALCRIM No. 3515, 

which told the jury that each of the counts charged is a separate crime. None of the 

instructions gave the jurors the authority to decide that only one conspiracy existed.

b. Analysis

We turn first to the question whether the trial court had a sua sponte duty to 

instruct on the number of conspiracies in this case. “ ‘[A] trial court in a criminal case is 

required—with or without a request—to give correct jury instructions on the general 

principles of law relevant to issues raised by the evidence.’ [Citation.] [¶] California 

courts are divided on whether a trial court has a sua sponte duty to instruct the jury to 

determine how many conspiracies were committed. [Citation.] Most decisions, 

including the most recent cases, have held that the trial court has a duty to instruct the 

jury to determine the number of conspiracies committed where there is evidence to 

support alternative findings.” (People v. Kopp (2019) 38 Cal.App.5th 47, 84 (Kopp), 

review granted on another issue Nov. 13, 2019, S257844; see People v. Meneses (2008) 

165 Cal.App.4th 1648, 1668–1669 (Meneses); see also People v. Williams (2015) 61 

Cal.4th 1244, 1270.) Those decisions include two by different panels of this court. (See 

Jasso, supra, 142 Cal.App.4th at p. 1220; People v. Vargas (2001) 91 Cal.App.4th 506, 

554 (Vargas).) 

In Vargas, this court stated: “A trial court is required to instruct the jury to 

determine whether a single or multiple conspiracies exist only when there is evidence to 

support alternative findings.” (Vargas, supra, 91 Cal.App.4th at p. 554.) In Jasso, this 

court explained further: “Specifically, an instruction is warranted where the evidence 
17

could support a finding that there was one overall agreement among the various parties to 

perform various functions in order to carry out the objectives of the conspiracy.” (Jasso, 

supra, 142 Cal.App.4th at p. 1220.) The defendant in Jasso did not request an instruction 

on the number of conspiracies at trial, and the Attorney General “d[id] not argue that the 

court has no duty to give such an instruction.” (Ibid., fn. 5.) 

In the present case, we are not persuaded by the Attorney General to reject the 

reasoning of our colleagues in Vargas and Jasso on the duty to instruct in favor of an 

earlier approach taken by other Courts of Appeal in People v. Liu (1996) 46 Cal.App.4th 

1119, 1133, and People v. McLead (1990) 225 Cal.App.3d 906, 921 (McLead). We agree 

with the Court of Appeal in Kopp “that the better reasoned decisions are those concluding 

that the number of conspiracies is a question of fact and imposing a duty upon the trial 

court to instruct the jury, sua sponte, to determine the number of conspiracies ‘where the 

evidence supports alternative findings.’ ”

7

 (See Kopp, supra, 38 Cal.App.5th at p. 85, 

review granted.)

Having concluded that the trial court had a sua sponte duty to instruct the jury to 

determine the number of conspiracies if the evidence could support a finding of a single 

conspiracy, we must next decide whether such evidentiary support exists in this case. As 

noted above, the Attorney General concedes that there is support in this record for the 

instruction Gonzalez proposes and the failure to instruct on the number of conspiracies 

was prejudicial to Gonzalez. Based on our review of the record, we accept the Attorney 

General’s concession and conclude the trial court prejudicially erred by failing to instruct 

7 We note that CALJIC contains an instruction titled “Conspiracy—Issue Whether 

One or Several Conspiracies” (CALJIC No. 17.05). CALCRIM, however, does not 

include a corresponding instruction. To aid our trial courts in dealing with this potential 

issue, the Advisory Committee on Criminal Jury Instructions may wish to consider 

adding an instruction like CALJIC No. 17.05 to CALCRIM.
18

the jury to decide whether there was one or more conspiracies underlying counts 12 and 

13.8

c. Remedy 

In light of this conclusion that prejudicial error occurred and Gonzalez’s separate 

claim that there was insufficient evidence to show the existence of more than one 

conspiracy, we must ascertain whether there is sufficient evidence to support both 

conspiracy convictions, such that the district attorney may have the option following 

remand of retrying both conspiracy counts. (See Jasso, supra, 142 Cal.App.4th at 

p. 1223.)

“A conspiracy consists of two or more persons conspiring to commit any crime. 

(§ 182, subd. (a).) ‘A conviction of conspiracy requires proof that the defendant and 

another person had the specific intent to agree or conspire to commit an offense, as well 

as the specific intent to commit the elements of that offense, together with proof of the 

commission of an overt act “by one or more of the parties to such agreement” in 

furtherance of the conspiracy. [Citations.] [¶] Criminal conspiracy is an offense distinct 

from the actual commission of a criminal offense that is the object of the conspiracy.’ ” 

(People v. Joseph (2021) 63 Cal.App.5th 1058, 1065.) However, “[c]ommission of the 

target offense in furtherance of the conspiracy satisfies the overt act requirement.” 

(People v. Jurado (2006) 38 Cal.4th 72, 121.) Moreover, “[t]he act of one conspirator is 

the act of all. Each is responsible for everything done by his coconspirators, including 

those things that follow as the probable and natural consequence of the execution of the 

conspiracy.” (People v. Zacarias (2007) 157 Cal.App.4th 652, 657.) “It is well-settled 

that the essence of the crime of conspiracy is the agreement, and thus it is the number of 

the agreements (not the number of the victims or number of statutes violated) that 

8 Given our conclusion on the merits of Gonzalez’s claim, we need not address the 

alternative issue of ineffective assistance of counsel.
19

determine the number of the conspiracies.” (Meneses, supra, 165 Cal.App.4th at 

p. 1669.)

“ ‘Where two or more persons agree to commit a number of criminal acts, the test 

of whether a single conspiracy has been formed is whether the acts “were tied together as

stages in the formation of a larger all-inclusive combination, all directed to achieving a 

single unlawful end or result.” ’ [Citation.] ‘Relevant factors to consider in determining 

this issue include whether the crimes involved the same motives, were to occur in the 

same time and place and by the same means,’ and targeted a single or multiple victims.” 

(Meneses, supra, 165 Cal.App.4th at p. 1672, quoting McLead, supra, 225 Cal.App.3d at 

p. 920; ibid. [“[T]hese factors are not determinative, and we may consider other facts.”].) 

“ ‘ “Performance of separate crimes or separate acts in furtherance of a conspiracy is not 

inconsistent with a ‘single overall agreement.’ [Citation.] The general test also 

comprehends the existence of subgroups or subagreements.” ’ ” (Kopp, supra, 38 

Cal.App.5th at p. 84, review granted.)

We consider the question whether multiple conspiracies have been proved as an 

issue of the sufficiency of the evidence. (See People v. Vega-Robles (2017) 9 

Cal.App.5th 382, 419, disapproved of on other grounds by People v. Valencia (2021) 11 

Cal.5th 818; see also United States v. Montgomery (9th Cir. 1998) 150 F.3d 983, 990.)

We review the entire record in the light most favorable to the verdict to determine 

whether it contains substantial evidence supporting the conviction. (See People v. Powell

(2018) 5 Cal.5th 921, 944 (Powell).)

Gonzalez argues that the NF only had one objective in selling methamphetamine 

and marijuana, i.e., “to generate revenue.” He acknowledges that “methamphetamine 

appears to have been the main drug that made the most money for the NF” and 

“[m]arijuana appears to have been a secondary drug,” but he contends “only one crime 

was intended – the sale of drugs; the only difference being the type of drug.” In support 

of his argument, Gonzalez points to the similarity of the overt acts alleged in the 
20

indictment and statements made by Detective Harper in his testimony and the prosecutor 

in his closing argument about the NF’s sale of drugs.9 

We conclude there is sufficient evidence for a finding of more than one conspiracy 

under counts 12 and 13. Generally speaking, drug dealers—be they gang members or 

not—sell drugs because they want to make money. Hence, the fact that NF members had 

the universal objective of generating revenue through drug sales does little to bolster 

Gonzalez’s argument that there was a single conspiracy here. Mindful of the universality 

of the goal of drug dealing, we examine the record for evidence about the way the NF 

executed its operations to sell methamphetamine and marijuana. (See Meneses, supra, 

165 Cal.App.4th at p. 1672.)

The evidence showed that the NF utilized different supply lines for their 

methamphetamine and marijuana sales operations. The prosecution proved that Frank 

Cruz (one of the gang members charged in counts 12 and 13) had five live marijuana 

plants growing outside his home and possessed 12 pounds of marijuana in his home when 

it was searched on October 30, 2014. Similarly, Gonzalez told Albert Lee that he 

(Gonzalez) had an outdoor grow operation and wanted Lee to sell some of that product. 

By contrast, according to Ulises Jimenez, the methamphetamine sold by the street 

regiment was not manufactured by the NF. Rather, the NF purchased their 

9

In his briefing, Gonzalez emphasizes a four-factor test for deciding his claim, 

which was mentioned by a different panel of this court in Vargas, supra, 91 Cal.App.4th 

at p. 554. The four factors derive from United States v. Zemek (9th Cir.1980) 634 F.2d 

1159. They are: “the nature of the scheme; the identity of the participants; the quality, 

frequency and duration of each conspirator’s transactions; and the commonality of time 

and goals.” (Id. at p. 1169.) In Vargas, this court applied the Zemek factors, upon 

defendant’s suggestion, and ultimately rejected defendant’s claim of multiple 

conspiracies. This court, however, noted that it had “not [been] pointed to any California 

case adopting the Zemek factors, nor ha[d] our own research disclosed such a case.” 

(Vargas, at p. 554.) The same is true currently. For this reason, we do not apply the 

Zemek factors in this case. We instead rely on the relevant factors described in Meneses, 

supra, 165 Cal.App.4th at p. 1672.
21

methamphetamine from Mexican cartels and other suppliers. Thus, the NF’s sales 

operations were not wholly dependent on each other and one operation could remain 

successful despite a disruption in the other’s supply line. Furthermore, a few witnesses 

testified about their own use of different drugs at different times, supporting the inference 

that not all drug purchasers would buy both marijuana and methamphetamine. Thus, 

there is evidence demonstrating a difference in the means by which the NF and its street 

regiment procured the marijuana and methamphetamine they sold and a difference in 

their target purchaser population. For these reasons, we conclude there is substantial 

evidence to support two separate conspiracy convictions on counts 12 and 13.

As we have decided that there is sufficient evidence to support both conspiracy 

convictions, but the evidence also could support a finding of a single conspiracy and thus 

the trial court failed to properly instruct the jury on counts 12 and 13, we conclude “the 

jury should have been directed to decide the factual issue that would have been posed by 

the omitted instruction” regarding the number of conspiracies. (Jasso, supra, 142 

Cal.App.4th at p. 1223.)

Given these determinations, Gonzalez contends that we should reverse one of the 

two conspiracy convictions, namely, count 13 for conspiracy to sell marijuana. By 

contrast, the Attorney General requests that we provide the district attorney the option to 

either retry both counts or accept the jury’s verdict on one of the two counts. Adhering to 

the approach of this court in Jasso, supra, 142 Cal.App.4th at page 1223, we agree with 

the Attorney General and reverse the convictions on counts 12 and 13 and remand the 

matter with directions.

On remand, the district attorney shall have the option to either retry counts 12 and 

13 or accept the jury’s conviction and any true findings on attached allegations on one of 

those two counts, after which the other count and its attached allegations shall be 

dismissed. 
22

In light of the vacatur of these convictions, we vacate Gonzalez’s sentence entirely 

and direct the trial court to fully resentence Gonzalez upon the conclusion of any further 

proceedings. (See People v. Navarro (2007) 40 Cal.4th 668, 681 (Navarro).)

2. Attempted Criminal Threat 

The trial court instructed the jury under CALCRIM No. 1300 on the criminal 

threat made to Vidal Santellano, charged in count 11. The jurors convicted Gonzalez on 

that count, finding a violation of section 422. On appeal, Gonzalez contends the trial

court erred by failing to instruct the jury sua sponte on the lesser included offense of 

attempted criminal threat. 

Factual Background

Cecilia Lozano and Gonzalez were close friends who had known each other since

childhood. Gonzalez kept some things in a safe at Lozano’s house. Lozano was married 

to but separated from Gabriel Zavala, who had been accused of molesting their children. 

Lozano learned from her friend, Ida Santellano, that Santellano’s mother, Dorothy Ybarra 

(who had a relationship with Gabriel Zavala), possessed a letter accusing Lozano of 

storing Gonzalez’s property at her house. Ybarra had plans to turn the letter over to 

Gabriel Zavala’s lawyer to besmirch Lozano and get Zavala “off the hook” on the 

molestation case. Lozano told Gonzalez about the letter and said Gonzalez needed to get 

his things from her house. Gonzalez then removed the safe from Lozano’s house. Both 

Lozano and Gonzalez were worried about the letter, and Gonzalez said that he was going 

to try to get it. 

Ida Santellano’s husband, Vidal Santellano, testified that in November 2013 Ida 

told him that Ybarra had gotten a letter about Lozano. Vidal Santellano was a former 

gang member. He contacted Lozano because he was concerned about “the kids” and told 

her that the letter would “most likely” be used against her. Later that night Vidal

Santellano received a phone call about the letter from Lozano and a man who identified 

himself as Lozano’s cousin. It was a “serious conversation” and the man “was saying it 
23

was important to get the letter back, pretty much.” Santellano testified that he “wasn’t, at 

any time, threatened at all” during the phone call. 

Dorothy Ybarra testified that she obtained the letter about Lozano sometime in 

November 2013 and told Ida Santellano about it. Later that month, Ybarra’s daughter,

Crystal Martinez, told Ybarra that a couple of men had come to their home trying to get 

the letter. Martinez, Damien Zavala, their child, and a neighbor girl were in the home at 

the time the men entered. The men pushed the door in and chased Zavala into a 

bedroom. The men asked for Ybarra and then for the letter; they told Martinez that they 

were going to keep coming back until they got the letter. One of the men had a gun. On 

their way out of the home, the men stole Martinez’s purse and a tablet computer (tablet). 

Later, Ida Santellano told her husband Vidal about the home invasion, which he 

thought was “very serious” and scared him. That night, Vidal Santellano obtained the 

letter and took it to Lozano. Santellano admitted having told Detective Harper that he 

was “ ‘scared shitless’ ” and testified that he was fearful for “[n]ot that long. It was more 

of a shock type of thing to hear” about the home invasion. Santellano further testified 

that he feared retaliation for testifying because he knew that gangs retaliate against 

people who report crimes to police or testify. 

Detective Harper testified that when he spoke to Vidal Santellano in December 

2014, Santellano seemed to know who Gonzalez was and indicated he had been told of 

Gonzalez’s name by Lozano. Santellano told Harper that the man on the phone “sounded 

threatening” but did not make any express threats. Santellano also said he knew “it was 

serious” from the way the man spoke, and that the situation was “not a game.” 

Santellano “took the conversation” to be “aggressive” and “intimidating.” Santellano 

also assumed, based on his gang experience, that the people who wanted the letter were 

“beyond the street level.” 

At the time of gang member Ulises Jimenez’s arrest in April 2014, police seized a 

kite written by Gonzalez about the home invasion (hereafter “the kite” or “Gonzalez’s 
24

kite”).10 The kite was entered into evidence at trial. It said that Ybarra had had a letter 

regarding Gonzalez’s storage of a safe containing drugs and money at Lozano’s home,

and Ybarra was going to provide the letter to her boyfriend’s lawyer. The kite also 

detailed the actions Gonzalez and others had taken to obtain the letter. The kite stated: “I 

began to threaten [Vidal Santellano’s] life and his family members[,] [s]pecifically 

[Dorothy Ybarra’s,] if she so much as thinks to turn that letter in. I told [Santellano] 

before the night[’]s over she will be a victim and that was entirely up to her depending on 

the decisions she makes. He said okay I’ll get the letter back.” The kite also documented 

that Gonzalez had gone to the home with two Norteños, Peter Avila (“Payaso”) and Juan 

Garcia (“Monster”). Gonzalez recounted telling Martinez during the incident that he 

“was there to talk” and asking about Ybarra and the letter “she was going to give to the 

cops.” Regarding Martinez’s purse, Gonzalez wrote, “On the way out monster grabbed 

her [purse]. As soon as we got back to [the] car I said we didn’t go there for that. Get rid 

of it.” 

Legal Principles

Based on these facts, Gonzalez contends the trial court erred by failing to give a 

jury instruction on the lesser included offense of attempted criminal threat. “A trial court 

has a sua sponte duty to ‘instruct on a lesser offense necessarily included in the charged 

offense if there is substantial evidence the defendant is guilty only of the lesser.’ 

[Citation.] Substantial evidence in this context is evidence from which a reasonable jury 

could conclude that the defendant committed the lesser, but not the greater, offense.” 

(People v. Shockley (2013) 58 Cal.4th 400, 403 (Shockley).) In reviewing the sufficiency 

of the evidence for this purpose, we resolve any doubts in defendant’s favor and do not 

weigh the credibility of the witnesses. (People v. Tufunga (1999) 21 Cal.4th 935, 944.)

10 Detective Harper described a “kite” as a gang incident report or other written 

communication between gang members inscribed in micro-writing on strips of paper. 
25

Section 422 (criminal threats) requires proof of the following elements: (1) the 

defendant willfully threatened to commit a crime that would result in death or great 

bodily injury to another person; (2) the defendant made the threat with the specific intent 

that the statement be taken as a threat, even if he or she had no intent to actually carry it 

out; (3) the threat was, on its face and under the circumstances in which it was made, so 

unequivocal, unconditional, immediate, and specific as to convey to the person threatened 

a gravity of purpose and an immediate prospect of execution of the threat; (4) the threat 

actually caused the person threatened to be in sustained fear for his or her own safety or 

for his or her immediate family’s safety; and (5) the threatened person’s fear was 

reasonable under the circumstances. (§ 422; People v. Toledo (2001) 26 Cal.4th 221, 

227–228 (Toledo).)

The sustained fear element of section 422 refers to the victim’s state of mind in 

response to the defendant’s threat. (People v. Fierro (2010) 180 Cal.App.4th 1342, 

1349.) The element “has a subjective and an objective component. A victim must 

actually be in sustained fear, and the sustained fear must also be reasonable under the 

circumstances.” (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1140.) The term 

“ ‘sustained’ ” “means a period of time that extends beyond what is momentary, fleeting, 

or transitory.” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.)

Attempted criminal threat is a lesser included offense of the crime of criminal 

threats under section 422. (Toledo, supra, 26 Cal.4th at p. 230.) “[A] defendant properly 

may be found guilty of attempted criminal threat whenever, acting with the specific intent 

to commit the offense of criminal threat, the defendant performs an act that goes beyond 

mere preparation and indicates that he or she is putting a plan into action.” (Ibid.)

By way of example, our Supreme Court in Toledo explained that an attempted 

criminal threat would exist where a defendant “acting with the requisite intent, makes a 

sufficient threat that is received and understood by the threatened person, but, for 

whatever reason, the threat does not actually cause the threatened person to be in 
26

sustained fear for his or her safety even though, under the circumstances, that person 

reasonably could have been placed in such fear.” (Toledo, supra, 26 Cal.4th at p. 231.) 

In this circumstance, “only a fortuity, not intended by the defendant, has prevented the 

defendant from perpetrating the completed offense of criminal threat itself.” (Ibid.)

We review independently whether the trial court improperly failed to instruct on a 

lesser included offense. (People v. Banks (2014) 59 Cal.4th 1113, 1160, overruled on 

other grounds by People v. Scott (2015) 61 Cal.4th 363, 391, fn. 3.)

In a noncapital case, a failure to instruct sua sponte on a lesser necessarily

included offense that is supported by the evidence is state law error that we review for 

prejudice under People v. Watson (1956) 46 Cal.2d 818 (Watson). (People v. Breverman

(1998) 19 Cal.4th 142, 169 (Breverman).) “ ‘[U]nder Watson, a defendant must show it 

is reasonably probable a more favorable result would have been obtained absent the 

error.’ ” (People v. Beltran (2013) 56 Cal.4th 935, 955 (Beltran).) “[T]he Watson test 

for harmless error ‘focuses not on what a reasonable jury could do, but what such a jury 

is likely to have done in the absence of the error under consideration. In making that 

evaluation, an appellate court may consider, among other things, whether the evidence 

supporting the existing judgment is so relatively strong, and the evidence supporting a 

different outcome is so comparatively weak, that there is no reasonable probability the 

error of which the defendant complains affected the result.’ ” (Id. at p. 956, italics 

omitted; see also People v. Larsen (2012) 205 Cal.App.4th 810, 831.)

Analysis

Gonzalez asserts there is substantial evidence supporting his guilt of an attempted 

criminal threat but not a completed criminal threat. He acknowledges that the kite 

documents his threat to Vidal Santellano’s life and the life of his family and concedes 

there is “substantial evidence that Vidal was threatened.” But he claims that there is no 

substantial evidence that Santellano was “actually placed in sustained fear.” Gonzalez 

maintains that Santellano was not made afraid by the person he spoke to on the phone and 
27

“to the extent [Santellano] felt fear, it had nothing [to] do with the phone call.” Hence, 

according to Gonzalez, the jury could have concluded that his threat, “for whatever 

reason,” did not cause Santellano “to subjectively be in sustained fear.” Thus, the jury 

would have convicted Gonzalez of only attempted criminal threat. Gonzalez further 

contends that if the failure to instruct on attempted criminal threat is deemed state law 

error, he suffered prejudice because it is reasonably probable the jury would have found 

him guilty of attempted criminal threat if presented with that alternative.11

The Attorney General counters that the evidence did not support an inference that 

“Santellano was never in fear, nor . . . that his fear was not sustained.” The Attorney 

General further contends that any error in failing to instruct on attempted criminal threat 

was harmless under Watson. 

We agree with Gonzalez that the trial court should have instructed the jury on the 

lesser included offense of attempted criminal threat. Vidal Santellano testified that he 

was not expressly threatened during the phone call and did not feel threatened by the 

call—which he described as a “serious conversation” about obtaining the letter. 

Moreover, Santellano testified that the fear he felt after the call was not based on the call 

itself. Rather, Santellano explained that his fear stemmed from the subsequent “very 

serious” home invasion incident—after which he proceeded to collect the letter and 

deliver it to Cecilia Lozano. 

This evidence supports a conclusion that Santellano was not actually placed in 

sustained fear by Gonzalez’s admitted threat during the phone call and the evidence is 

sufficient to have warranted an instruction on attempted criminal threat. (See Shockley, 

supra, 58 Cal.4th at pp. 403–404.) Given this evidence, and the lack of any direct 

11 Gonzalez also argues that the instructional error here violated his constitutional 

right to due process. His argument, however, is foreclosed in this court by our Supreme 

Court’s decision in Breverman, supra, 19 Cal.4th at page 169. (See Auto Equity Sales, 

Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
28

evidence that Santellano was placed in sustained fear, we further conclude that Gonzalez 

has established there is a reasonable probability of a different outcome had the instruction 

been given. (See Beltran, supra, 56 Cal.4th at p. 955.) 

However, we agree with the Attorney General that substantial evidence supports 

the conviction of the greater offense when the entire record is viewed in the light most 

favorable to the verdict. We know from the jury’s verdict that the jurors credited 

Gonzalez’s admission about threatening Santellano over Santellano’s testimony and other 

statements that no express threat was uttered during the phone call. Furthermore, there 

was evidence upon which the jurors could reasonably conclude that Gonzalez’s threats 

actually caused Santellano to be in sustained fear for his or his family’s safety, despite his 

statements to the contrary. (See People v. Davison (1995) 32 Cal.App.4th 206, 214–

215.) 

The evidence supporting a finding that Santellano experienced actual (and 

reasonable) sustained fear as a result of the threatening phone call includes how 

Santellano acted after the call. (See People v. Brugman (2021) 62 Cal.App.5th 608, 634–

635 [concluding that a victim’s actions after the threatening incident supported a finding 

of sustained fear].) Gonzalez’s kite states that after he made his threats to Santellano, 

Santellano said he would obtain the letter. Later, when Santellano received a call from 

his wife, he learned about the home invasion incident. Santellano testified that he was 

scared after this, though “[n]ot [for] that long.” He then went out, obtained the letter, and 

took it to Lozano. 

In light of our conclusions that the court should have instructed on the lesser 

included offense and sufficient evidence supports the greater offense, we decide the 

appropriate remedy on remand is that the prosecutor must be given the option of retrying 

the greater offense, or accepting a reduction to the lesser offense. (People v. Richards

(2017) 18 Cal.App.5th 549, 560–561.) 
29

3. Witness or Victim Dissuasion

The trial court instructed the jury with modified versions of CALCRIM Nos. 2622 

and 2623 on the offense of witness or victim dissuasion by force or threat of force or 

violence (§ 136.1, subd. (c)(1)), as charged in counts 7 and 8. The jurors convicted 

Gonzalez on those counts, relating to Damien Zavala and Crystal Martinez, respectively. 

On appeal, Gonzalez contends the trial court erred because it “effectively failed to 

instruct the jury on all of the elements of the offense of witness dissuasion.”12 We agree 

that the trial court erred but conclude that the error was harmless.

a. Factual Background

As described above, there was substantial evidence presented at trial from which 

the jury could infer that Gonzalez learned that Ybarra possessed a letter indicating that 

Gonzalez was involved in illegal drugs. Ybarra planned to turn the letter over to a lawyer 

for use in an unrelated criminal case, presumably to use as a bargaining chip with the 

district attorney. Thereafter, three men (Gonzalez, Peter Avila, and Juan Garcia; one of 

whom was armed) entered Ybarra’s house without permission, asked for the 

incriminating letter, and stole a purse and tablet. Crystal Martinez and Damien Zavala 

were in the home at the time, and the men specifically demanded the letter.

13

12 Trial counsel failed to object to or request modification of the trial court’s 

instructions on witness or victim dissuasion. Gonzalez, however, raised a claim of 

instructional error in his motion for new trial, and the trial court summarily rejected it. 

On appeal, Gonzalez asserts that his claim is not forfeited because his substantial rights 

were affected by the court’s instructions. (See § 1259.) Alternatively, he asserts that his 

trial counsel was ineffective for failing to object to the instructions. The Attorney 

General does not argue forfeiture. We conclude that Gonzalez’s claim is properly raised 

in this appeal. (See People v. Mil (2012) 53 Cal.4th 400, 409; § 1259.) Because we 

decide Gonzalez’s claim on the merits, we need not address his alternate ineffective 

assistance of counsel claim.

13 Damien Zavala admitted to having friends who were affiliated with a gang and 

that he previously considered himself as “northern Hispanic” or a “Northerner.” Zavala 

also admitted that he did not want to testify in this case and that calling the police or 

testifying about what happened would be considered snitching. 
30

b. Legal Principles

“In criminal cases, even in the absence of a request, a trial court must instruct on 

general principles of law relevant to the issues raised by the evidence and necessary for 

the jury’s understanding of the case.” (People v. Martinez (2010) 47 Cal.4th 911, 953.) 

That obligation includes instructing on all elements of a charged offense. (People v. 

Cummings (1993) 4 Cal.4th 1233, 1311, overruled on another ground in People v. Merritt

(2017) 2 Cal.5th 819, 831 (Merritt).) 

“An appellate court reviews the wording of a jury instruction de novo and assesses 

whether the instruction accurately states the law.” (People v. O’Dell (2007) 153 

Cal.App.4th 1569, 1574 (O’Dell).) “In considering a claim of instructional error we must 

first ascertain what the relevant law provides, and then determine what meaning the 

instruction given conveys. The test is whether there is a reasonable likelihood that the 

jury understood the instruction in a manner that violated the defendant’s rights. In 

making this determination we consider the specific language under challenge and, if 

necessary, the instructions as a whole.” (People v. Andrade (2000) 85 Cal.App.4th 579, 

585 (Andrade); see also People v. Rivera (2019) 7 Cal.5th 306, 329 (Rivera).) “ ‘ “The 

absence of an essential element in one instruction may be supplied by another or cured in 

light of the instructions as a whole.” ’ ” (People v. Castillo (1997) 16 Cal.4th 1009, 

1016.) 

“When a court fails to instruct the jury on an element of an offense, the error 

violates the federal Constitution because a jury must find the defendant guilty of every 

element of the crime of conviction beyond a reasonable doubt.” (People v. Gonzalez

(2018) 5 Cal.5th 186, 198–199 (Gonzalez); see Neder v. United States (1999) 527 U.S. 1, 

8–15 (Neder).) Accordingly, “[w]e must determine whether it is clear beyond a 

reasonable doubt that a rational jury would have rendered the same verdict absent the 

error.” (Merritt, supra, 2 Cal.5th at p. 831; see also Neder, at pp. 17, 19.)
31

Section 136.1, subdivision (c)(1) (hereafter section 136.1(c)(1)) provides that 

every person who knowingly and maliciously commits an act described in section 136.1, 

subdivision (a) or (b), where the act is accompanied by force or by an express or implied 

threat of force or violence, is guilty of a felony.14 Based on counts 7 and 8 of the 

indictment, the underlying acts required here, under section 136.1(c)(1), are those 

described by section 136.1, subdivision (b)(1) and (2). 

Section 136.1, subdivision (b)(1) and (2) provide, in pertinent part: “[E]very 

person who attempts to prevent or dissuade another person who has been the victim of a 

crime or who is witness to a crime from doing any of the following is guilty of a public 

offense . . .: [¶] (1) Making any report of that victimization to any peace officer or state 

or local law enforcement officer or probation or parole or correctional officer or 

prosecuting agency or to any judge. [¶] (2) Causing a complaint, indictment, 

information, probation or parole violation to be sought and prosecuted, and assisting in 

the prosecution thereof.” (§ 136.1, subd. (b)(1), (2).) Under section 136.1, subdivision 

(b), the “prosecution must [] establish that ‘the defendant’s acts or statements [were] 

intended to affect or influence a potential witness’s or victim’s testimony or acts.’ 

[Citation.] In other words, ‘section 136.1 is a specific intent crime.’ ” (People v. 

Navarro (2013) 212 Cal.App.4th 1336, 1347; see also People v. McDaniel (1994) 22 

Cal.App.4th 278, 284.)

c. Procedural Background

In this case, the jury instruction on section 136.1(c)(1)—provided through a 

modified version of CALCRIM No. 2623—stated, in full: “James Gonzalez is charged in 

14 Section 136.1, subdivision (c) states, in relevant part: “Every person doing any 

of the acts described in subdivision (a) or (b) knowingly and maliciously under any one 

or more of the following circumstances, is guilty of a felony punishable by imprisonment 

in the state prison for two, three, or four years under any of the following circumstances: 

[¶] (1) Where the act is accompanied by force or by an express or implied threat of force 

or violence, upon a witness or victim or any third person or the property of any victim, 

witness, or any third person.” (§ 136.1(c)(1).)
32

Counts 7 and 8, with dissuading a witness or victim of a crime by use of force or threat of 

force [citation to section 136.1(c)(1)]. [¶] To prove the defendant is guilty of this crime, 

the People must prove that: [¶] 1. The defendant acted maliciously; [¶] AND [¶] 2. 

The defendant used force or threatened, either directly or indirectly, to use force or 

violence on the person or property of a witness, a victim, or any other person; [¶] A 

person acts maliciously when he or she unlawfully intends to annoy, harm, or injure 

someone else in any way, or intends to interfere in any way with the orderly 

administration of justice.”15

Following the modified CALCRIM No. 2623 instruction, the trial court instructed 

the jury on the firearm allegations attendant to counts 7 and 8 (among other counts) using 

CALCRIM No. 3115. (See § 12022, subds. (a)(1), (c).) Thereafter, the court instructed 

the jury on section 136.1, subdivision (b) with a modified version of CALCRIM No. 

2622.16 The court’s instruction stated, in relevant part: “Dissuading or attempting to 

dissuade a witness or victim of a crime [citation to section 136.1, subdivisions (a) and 

(b)] is a lesser included offense to dissuading a witness or victim of a crime by use of 

force or threat of force, as charged in Counts 7 and 8, against James Gonzalez. [¶] To 

prove [the defendant] is guilty of this crime, the People must prove that: [¶] 1. The 

defendant maliciously tried to prevent or discourage, or prevented or discouraged Damien 

Zavala (Count 7) and/or Crystal Martinez (Count 8) from making a report that he or she 

and/or someone else was the victim of a crime to any state or local law enforcement

officer, or prosecuting agency; [¶] 2. Damien Zavala and/or Crystal Martinez was a 

witness and/or crime victim; [¶] AND [¶] 3. The defendant knew he was trying to 

prevent Damien Zavala (Count 7) and/or Crystal Martinez (Count 8) from making a 

15 The written instruction was titled “2623. Intimidating a Witness: Sentencing 

Factors [¶] (Pen. Code, § 136.1(c))” (some capitalization omitted). 

16 This written instruction was titled “2622. Dissuading a Witness [¶] (Pen. Code, 

§ 136.1(a) & (b))” (some capitalization omitted). 
33

report that he or she and/or someone else was the victim of a crime to any state or local 

law enforcement officer, or prosecuting agency and intended to do so.” The jury 

instruction also restated the definition of “maliciously” identically to that in the modified 

CALCRIM No. 2623 instruction. Further, as for who is a witness, the instruction under 

CALCRIM No. 2622 read, “witness means someone or a person the defendant reasonably 

believed to be someone: [¶] Who knows about the existence or nonexistence of facts 

relating to a crime.” 

The trial court did not instruct the jury regarding the additional charged act of 

dissuading a victim or witness from “[c]ausing” a charging instrument to be sought and 

prosecuted, and from assisting to prosecute that action. (§ 136.1, subd. (b)(2).) The 

court, however, did provide the jury a modified copy of the indictment (along with the 

jury instructions) that included language in counts 7 and 8 alleging this particular 

underlying act. Further, despite having provided this additional language to the jury in 

writing, the court did not read that language to the jury when it orally read the indictment 

during its instructions. 

The prosecutor argued to the jury on counts 7 and 8 that Gonzalez “intimidated 

both Damien Zavala and Crystal Martinez” and “maliciously tried to discourage them 

from making a report [that] they were victims of crime to the police,” namely about “the 

home invasion.” The prosecutor also argued that the charged crimes were otherwise 

proved because Gonzalez “maliciously tried to discourage them from cooperating or 

providing information that a criminal charge could be sought and prosecuted and from 

helping to prosecute that action.” The prosecutor explained that the latter theory applied 

to the home invasion and “also to the drug dealing, [because Gonzalez was] discouraging 

them from turning over this letter or providing information that they know about his 

activities.” In addition, the prosecutor described the definition of maliciously in accord 

with the jury instructions (i.e., that Gonzalez “intended to interfere with the orderly 
34

administration of justice”) and argued that “Mr. Gonzalez knew what he was doing and 

he intended to do it, which, again, in this case, is not really at issue.” 

Gonzalez’s trial counsel argued to the jury that the instructions provided for a 

greater crime involving the use of force or threat of force and a “lesser included” crime. 

Counsel maintained that there was no evidence from either Zavala or Martinez that “force 

or violence [was] used in any way to get them not to come forward if they believed that 

that was appropriate.” As for the “lesser included crime,” counsel similarly argued there 

was no evidence that Gonzalez tried to prevent Zavala or Martinez from making a report 

to authorities. Counsel noted Zavala’s intoxication at the time of the home invasion and 

Martinez’s memory problems, asserted based on the kite that “the perpetrator told 

[Martinez] that he was only there to talk,” and maintained that the prosecutor had failed 

to meet his burden to prove guilt on either count 7 or 8.

The jury’s verdicts on counts 7 and 8 stated that Gonzalez was guilty under section 

136.1(c)(1), “in that . . . the defendant did knowingly and maliciously prevent or 

dissuade, or attempt to prevent or dissuade a witness or victim, [Zavala and Martinez], by 

use of force or threat of force.” 

d. Analysis

Gonzalez contends the modified CALCRIM No. 2623 instruction purported to 

comprise the elements for the charged crimes of dissuasion by force or threat under 

section 136.1(c)(1). Gonzalez argues that the instruction did not include the requisite 

elements for the underlying offense stated in section 136.1, subdivision (b)(1), namely 

that Gonzalez intentionally tried to prevent Damien Zavala and Crystal Martinez from 

making a report. Gonzalez acknowledges that the instruction under CALCRIM No. 2622 

included the elements that he contends were missing from the modified CALCRIM No. 

2623 instruction. However, he notes that the CALCRIM No. 2622 instruction described 

itself as “a lesser included offense” of the greater crimes for which he was convicted 

(§ 136.1, subd. (c)(1)). He further asserts that nothing in the instructions told the jurors to 
35

“impute the elements listed in CALCRIM [No.] 2622 into CALCRIM [No.] 2623.” In 

addition, Gonzalez points out that, as to the jury’s deliberations on any lesser included 

offenses, the jurors were instructed that it was up to them “ ‘to decide the order’ ” in 

which they would “ ‘consider each crime and the relevant evidence,’ ” and the prosecutor 

argued that the jurors should “ ‘only consider lesser included offenses if [they] find that 

the charged offenses were not proven.’ ” Gonzalez finally contends the erroneous 

instruction on the charged dissuasion offenses was prejudicial under both Chapman v. 

California (1967) 386 U.S. 18, 24 (Chapman) and Watson, supra, 46 Cal.2d at page 836. 

The Attorney General counters that “there was no substantial likelihood that the 

jury misunderstood the required elements” of section 136.1(c)(1) and, under the 

Chapman test, “there is no reasonable possibility that this jury would have decided the 

case differently had it been instructed differently.” 

We agree with Gonzalez that the trial court’s instructions on the charged violations 

of section 136.1(c)(1) are flawed in ways that make it reasonably likely the jurors 

understood the instructions in a manner violating Gonzalez’s rights. Contrary to the 

CALCRIM pattern instruction, the trial court modified CALCRIM No. 2623 in a way 

that failed to require proof of the requisite elements of the underlying acts of dissuasion, 

i.e., those acts set forth in section 136.1, subdivision (b), which were necessary to find 

Gonzalez guilty of violating section 136.1(c)(1), i.e., that he had acted knowingly and 

maliciously when committing the underlying acts and did so with force or a threat of 

force or violence. (See § 136.1(c)(1).) The trial court’s modified CALCRIM No. 2623 

instruction did not mention any underlying act of dissuasion specifically. Rather it said 

the People had to prove that Gonzalez “acted maliciously” and further defined 

maliciously as including when one “intends to interfere in any way with the orderly 

administration of justice.” This direction was insufficient because simply acting with an 

intent to interfere with the orderly administration of justice does not equate to acting with 
36

an intent to try and prevent Damien Zavala or Crystal Martinez from making a report of 

victimization, as the People were required to prove for counts 7 and 8. 

It is true that the trial court’s instruction under CALCRIM No. 2622 included as 

elements both the underlying act of dissuasion from making a report of victimization and 

the requirement that Gonzalez acted intentionally when attempting to prevent or dissuade 

Zavala and Martinez from making such a report. But that separate jury instruction was 

described as pertaining to “a lesser included offense” to the charged crime and the jury 

was not instructed on the legal definition of a lesser included offense. Further, there is an 

inconsistency in the instructions regarding exactly what underlying act or acts formed the 

basis of the charges in counts 7 and 8. As described above, the trial court gave the jurors 

a copy of the indictment that mentioned both the act of dissuasion from making a report 

of victimization and the act of dissuasion from causing a charging instrument to be 

sought and prosecuted. But the court did not include the latter act in its oral recitation of 

the indictment or in its instruction under CALCRIM No. 2622. Although the prosecutor 

mentioned in his closing argument the act of dissuasion from causing a charging 

instrument to be prosecuted, Gonzalez’s trial counsel did not. Moreover, neither counsel 

addressed in argument the discrepancy between the indictment and the trial court’s 

instruction under CALCRIM No. 2622. And neither counsel made it completely clear 

that the elements stated in the modified CALCRIM No. 2622 instruction had to be proved 

in order to find Gonzalez guilty under the modified CALCRIM No. 2623 instruction. 

Given the imprecision and discrepancies in the trial court’s instructions on the 

underlying acts for counts 7 and 8, the lack of definition on the legal doctrine of lesser 

included offenses and possibility the jurors did not consider the lesser offense before 

considering the greater offense, and the lack of clear explanation in the parties’ closing 

arguments regarding the requisite elements for the charged crimes, we decide there is a 

reasonable likelihood that the jurors did not understand they needed to impute the 

elements provided them in the CALCRIM No. 2622 instruction into the modified 
37

CALCRIM No. 2623 instruction in order to find Gonzalez guilty of violating section 

136.1(c)(1).

Having concluded that the trial court erroneously failed to instruct the jury on the 

requisite elements of the charged dissuasion offenses, we must decide whether the error 

was harmless beyond a reasonable doubt. (See Gonzalez, supra, 5 Cal.5th at pp. 198–

199.) “[A] Chapman harmless error analysis for instructional error typically includes 

review of the strength of the prosecution’s case. [Citation.] Indeed, the harmless error 

inquiry for the erroneous omission of instruction on one or more elements of a crime 

focuses primarily on the weight of the evidence adduced at trial. Under Neder, . . . such 

an error is deemed harmless when a reviewing court, after conducting a thorough review 

of the record, ‘concludes beyond a reasonable doubt that the omitted element was 

uncontested and supported by overwhelming evidence.’ ” (People v. Aranda (2012) 55 

Cal.4th 342, 367; see also Neder, supra, 527 U.S. at pp. 17, 19.) 

We are convinced that Gonzalez was not prejudiced by the trial court’s 

instructional error. We acknowledge there is no evidence demonstrating that Gonzalez or 

his cohorts explicitly tried to prevent or discourage Zavala or Martinez from reporting the 

home invasion to law enforcement. However, “ ‘[t]here is, of course, no talismanic 

requirement’ ” that a defendant explicitly state a warning to a victim or witness about not 

reporting victimization or a witnessed crime. (See People v. Mendoza (1997) 59 

Cal.App.4th 1333, 1344.) There is no serious dispute that Gonzalez’s actions (and those 

of his two cohorts) during the home invasion were forceful, intimidating, and fearinducing. Gonzalez was motivated to get the incriminating letter (that he understood 

revealed his storage of drugs and money) from Dorothy Ybarra before she could disclose 

it. Although Ybarra was not home at the time of the home invasion, Gonzalez menaced 

Martinez and Zavala with a gun and demanded the letter that he believed Ybarra was 

going to “give to the cops.” As documented by Gonzalez’s kite, Martinez admitted to 

knowing about the letter, and Gonzalez believed Zavala knew about it, too. Gonzalez 
38

also wrote that he and his cohorts “were very effective in the message [they] sent” during 

the home invasion. 

The prosecution’s evidence demonstrated that Gonzalez reasonably believed

Martinez and Zavala knew about the incriminating letter and that Gonzalez tried to 

prevent or discourage them (along with Ybarra) from cooperating with law enforcement 

authorities or disclosing any information about the letter that could cause him to be 

prosecuted for his drug dealing. Moreover, as to the home invasion incident more 

generally, by making it clear that he did not want the letter to be disclosed, Gonzalez 

betrayed a further intention that he did not want Martinez and Zavala to report his and his 

cohort’s criminal effort to get the letter by forcibly entering their home with a gun. Thus, 

there is overwhelming evidence here that Gonzalez acted during the home invasion with 

the concurrent intention to prevent or dissuade Martinez and Zavala from reporting his 

criminal victimization to law enforcement authorities and causing a prosecution of his 

drug dealing and crimes related to the home invasion. In addition, the evidence 

demonstrates that Gonzalez committed these acts while using force or a threat of force or 

violence on Martinez and Zavala. 

Under these circumstances, we conclude, beyond a reasonable doubt, that the 

omitted elements for violation of section 136.1(c)(1) were uncontested and were 

supported by overwhelming evidence, such that the jury’s verdicts on counts 7 and 8 

would have been the same absent the instructional error. (See Neder, supra, 527 U.S. at

p. 17.)

4. Street Terrorism Offense 

The trial court instructed the jury with a version of CALCRIM No. 1400 on the 

offense of street terrorism (§ 186.22, subd. (a)), as charged in count 1 of the indictment. 

The instruction told the jurors that “felonious criminal conduct” under section 186.22, 

subdivision (a) meant the commission or attempted commission of murder, assault with a 

deadly weapon, identity theft, and/or possession of methamphetamine for sale. On 
39

appeal, Gonzalez contends his conviction for street terrorism should be reversed because 

the trial court erred by listing four felonies that did not qualify as felonious criminal 

conduct under section 186.22.17 We agree that the trial court’s instruction was erroneous 

and reverse the conviction on count 1.

a. Background and Legal Principles

In count 1, the indictment charged Gonzalez (and others, including codefendant 

Roman) with violating section 186.22, subdivision (a) (hereafter section 186.22(a)).18 

Regarding “felonious criminal conduct,” the indictment alleged “a violation of California 

Penal Code Section 182[, subd.] (a)(1) (conspiracy between defendant and others), in that 

on or about and between January 1, 2013 and October 30, 2014, . . . they did conspire 

together and with others to commit a crime, a violation of section [] 11379[, subd.] (a) of 

17 Trial counsel failed to object to or request modification of the trial court’s 

instruction on street terrorism. Gonzalez, however, raised a similar claim of instructional 

error and a related claim of ineffective assistance of counsel in his reply to the district 

attorney’s opposition to the motion for new trial. The trial court did not address 

Gonzalez’s claims in its written ruling on the new trial motion. On appeal, Gonzalez 

asserts that his current claim is not forfeited because his substantial rights were affected 

by the court’s instruction. (See § 1259.) Alternatively, he asserts that his trial counsel 

was ineffective for failing to object to the instruction. The Attorney General does not 

argue forfeiture in his respondent’s brief. Under these circumstances, we will review 

Gonzalez’s claim on the merits. (See People v. Townsel (2016) 63 Cal.4th 25, 59–60;

People v. Andersen (1994) 26 Cal.App.4th 1241, 1249; People v. Mitchell (2008) 164 

Cal.App.4th 442, 465; § 1259.) Because we decide Gonzalez’s claim on its merits, we 

need not address Gonzalez’s alternate ineffective assistance of counsel claim.

18 At the time of the charged crimes, section 186.22, subdivision (a) (section 

186.22(a)) provided: “Any person who actively participates in any criminal street gang 

with knowledge that its members engage in or have engaged in a pattern of criminal gang 

activity, and who willfully promotes, furthers, or assists in any felonious criminal 

conduct by members of that gang, shall be punished by imprisonment in a county jail for 

a period not to exceed one year, or by imprisonment in the state prison for 16 months, or 

two or three years.” (See Stats. 2011, ch. 361, § 1.) The Legislature has not made any 

substantive changes to the wording of this provision since the period relevant to this case, 

i.e., January 1, 2013 through October 30, 2014. (See Stats. 2011, ch. 361, § 1; Stats. 

2013, ch. 508, § 1; Stats. 2016, ch. 887, § 1; Stats. 2017, ch. 561, § 178; Stats. 2021, ch. 

699, §§ 3, 4.)
40

the Health & Safety Code of the State of California (selling methamphetamine); . . . a 

violation of section [ ] 11360[, subd.] (a) of the Health & Safety Code of the State of 

California (selling marijuana), and . . . a violation of section 4573 of the Penal Code of 

the State of California (bringing contraband into a custodial facility)” (some 

capitalization omitted). 

“The elements of the gang participation offense in section 186.22(a) are: First, 

active participation in a criminal street gang, in the sense of participation that is more 

than nominal or passive; second, knowledge that the gang’s members engage in or have 

engaged in a pattern of criminal gang activity; and third, the willful promotion, 

furtherance, or assistance in any felonious criminal conduct by members of that gang.” 

(People v. Rodriguez (2012) 55 Cal.4th 1125, 1130 (Rodriguez).) “[L]iability under this 

provision is limited ‘to those who promote, further, or assist a specific felony committed 

by gang members and who know of the gang’s pattern of criminal gang activity.’ 

[Citation.] In other words, the provision ‘requir[es] the promotion or furtherance of 

specific conduct of gang members and not inchoate future conduct.’ ” (People v. 

Valenzuela (2019) 7 Cal.5th 415, 422.) “Following the Supreme Court’s decision in 

Rodriguez, a conviction for gang participation under section 186.22(a) requires the 

prosecution to prove the alleged gang member engaged in felonious conduct with another 

member of his or her gang.” (People v. Strike (2020) 45 Cal.App.5th 143, 149–150.)

Regarding the felonious criminal conduct element of section 186.22(a), the trial 

court here instructed “the People must prove” “[t]he defendant willfully assisted, 

furthered, or promoted felonious criminal conduct by members of the gang either by: [¶] 

a. directly and actively committing a felony offense; [¶] OR [¶] b. aiding and abetting a 

felony offense. [¶] At least two members of that same gang must have participated in 

committing the felony offense. The defendant may count as one of those members if you 

find that the defendant was a member of the gang.” The court also instructed that 

“[f]elonious criminal conduct means committing or attempting to commit the following 
41

crime: murder ([§§] 187, 664/187), assault with a deadly weapon ([§] 245), unlawful use 

of personal identifying information ([§] 530.5), and/or possession for sale of 

methamphetamine ([Health & Saf. Code, §] 11378).” The court referred the jurors to the 

separate instructions it provided for the listed offenses, in order for the jurors to decide 

whether a member of the gang committed any of those offenses. 

Relatedly, in count 15, the indictment charged Gonzalez (alone) with a violation of 

Health and Safety Code section 11378, “in that on or about October 30, 2014, . . . he did 

possess methamphetamine, a controlled substance, for sale.” The jurors found Gonzalez 

guilty on that count and found true the allegation that the quantity of methamphetamine 

exceeded one kilogram (Health & Saf. Code § 11370.4, subd. (b)).

19

“A trial court must instruct the jury on every theory that is supported by 

substantial evidence, that is, evidence that would allow a reasonable jury to make a 

determination in accordance with the theory presented under the proper standard of proof. 

[Citation.] We review the trial court’s decision de novo. In so doing, we must determine 

whether there was indeed sufficient evidence to support the giving of a [particular] 

instruction. Stated differently, we must determine whether a reasonable trier of fact 

could have found beyond a reasonable doubt that defendant committed” the charged 

offense based on the theory advanced. (People v. Cole (2004) 33 Cal.4th 1158, 1206.) 

However, “[i]t is error to give an instruction which, while correctly stating a 

principle of law, has no application to the facts of the case.” (People v. Guiton (1993) 4 

Cal.4th 1116, 1129 (Guiton).) “[I]nstructions not supported by substantial evidence 

should not be given.” (People v. Ross (2007) 155 Cal.App.4th 1033, 1050.) “We 

consider the challenged instruction in the context of the instructions and record as a 

whole to ascertain whether there is a reasonable likelihood the jury impermissibly applied 

the instruction.” (Rivera, supra, 7 Cal.5th at p. 329.)

19 The indictment also charged Gonzalez with conspiring to sell methamphetamine

on or about and between January 1, 2013, and October 30, 2014 (count 12). 
42

When the jury has been instructed on “ ‘a factually inadequate theory,’ or, also 

phrased slightly differently, cases in which there was an ‘insufficiency of proof’ ” 

(Guiton, supra, 4 Cal.4th at p. 1128), reversal is not required “if at least one valid theory 

remains.” (Ibid.) Put differently, “instruction on an unsupported theory is prejudicial 

only if that theory became the sole basis of the verdict of guilt; if the jury based its 

verdict on the valid ground, or on both the valid and the invalid ground, there would be 

no prejudice, for there would be a valid basis for the verdict.” (Id. at p. 1130.) Thus, in 

cases where the inadequacy of a theory is factual, “the appellate court should affirm the 

judgment unless a review of the entire record affirmatively demonstrates a reasonable 

probability that the jury in fact found the defendant guilty solely on the unsupported 

theory.” (Ibid.; see also People v. Canizales (2019) 7 Cal.5th 591, 612–613.)

b. Analysis

Gonzalez contends the trial court erred by including in its instruction on count 1 

the offenses of attempted murder (§§ 187, 664, subd. (a)) and assault with a deadly 

weapon (§ 245, subd. (a)(1))—crimes presumably relating to the stabbing of Curtis 

Garza—because those offenses were committed by him alone. He further asserts that the 

“same is true” for the possession of methamphetamine for sale offense (Health & Saf. 

Code § 11378), because “there was no evidence of any other gang members present at the 

time” of his possession who were “in joint possession” of the methamphetamine he 

possessed. Regarding the identity theft offense (§ 530.5) listed in the trial court’s 

instruction, Gonzalez claims he is unaware of any evidence showing that he was guilty of 

that offense and, even if his “possession of debit and identification cards could be 

construed as evidence of identity theft, there was no evidence that [he] committed this 

offense in conjunction with another person as required by Rodriguez.” As to prejudice, 

Gonzalez contends that the erroneous inclusion of these four offenses as felonious 

criminal conduct amounts to a misdescription of an element under section 186.22(a) and 

implicates his Sixth Amendment right to have the jury determine every element of the 
43

charged offense. Hence, according to Gonzalez, the Chapman harmless error standard 

applies to his claim of error. 

The Attorney General counters that Gonzalez’s claim does not assert a legal error 

in the instruction. Rather, the Attorney General views the claim as one asserting that 

“there was no factual basis for finding the [listed] offenses.” The Attorney General 

concedes that there was no evidence Gonzalez committed identity theft and no evidence 

proving that Gonzalez committed the attempted murder and assault with a deadly weapon 

with another gang member. However, the Attorney General argues there is substantial 

evidence Gonzalez “committed the methamphetamine-related offense in league with 

other gang members.” The Attorney General asserts further that Gonzalez has not shown 

any prejudice, under Watson, from the trial court’s instruction on the three factually 

unsupported theories of liability and one valid, factually supported theory. 

We begin by stating our agreement with the parties that the trial court erred by 

including in its instruction the three predicate offenses of attempted murder, assault with 

a deadly weapon, and identity theft. As for the nature of the court’s error, we concur with 

the Attorney General that the error is one of factual inadequacy for the felonious criminal 

conduct instruction, not one of a legal inadequacy. (See Rivera, supra, 7 Cal.5th at 

p. 329 [“A factually inadequate theory involves a mistake about a fact that the ‘jury is 

fully equipped to detect’ [citation] or a theory that ‘while legally correct, has no 

application to the facts of the case’ ”]; People v. Aledamat (2019) 8 Cal.5th 1, 7–8 

(Aledamat).) The trial court correctly instructed on the felonious criminal conduct 

element, generally, and listed predicate offenses that, on their face, could qualify as such 

conduct. Thus, as to all four theories of liability for the felonious criminal conduct 

element, the court’s instruction was not contrary to law or an incorrect statement of law. 

Rather, the instructional error here occurred only because the evidence did not support all 

the theories provided for the jury’s consideration. (See Guiton, supra, 4 Cal.4th at 

p. 1129; cf. People v. Lamas (2007) 42 Cal.4th 516, 525–526.)
44

We turn next to the disputed issue regarding whether there was a sufficient factual 

basis for including the possession of methamphetamine for sale offense in the instruction 

on count 1. Having considered the evidence and governing law, we agree with Gonzalez 

that there is no substantial evidence showing the offense was committed along with 

another gang member.20 As alluded to above, “[t]he plain meaning of section 186.22(a) 

requires that felonious criminal conduct be committed by at least two gang members, one 

of whom can include the defendant if he is a gang member.” (Rodriguez, supra, 55 

Cal.4th at p. 1132.) “[W]ith section 186.22(a), the Legislature sought to punish gang 

members who acted in concert with other gang members in committing a felony 

regardless of whether such felony was gang-related.” (Id. at p. 1138.) 

Here, by contrast, the evidence showed that Gonzalez had a large quantity of

methamphetamine in his residence when police searched it on October 30, 2014. 

Although Gonzalez’s brother was present at the time of the search, there was no evidence 

that the brother was a gang member or that any gang member had a connection to 

Gonzalez’s residence. Furthermore, there was no evidence supporting that a gang 

member other than Gonzalez had some control or right to control the methamphetamine 

seized from Gonzalez’s residence. Thus, no one else had constructive possession of the 

methamphetamine. (See People v. Morante (1999) 20 Cal.4th 403, 417; see also People 

v. Rushing (1989) 209 Cal.App.3d 618, 621–622.) 

Moreover, although there was evidence that Gonzalez was part of the regiment 

and selling methamphetamine in October 2014, there was no evidence that Gonzalez 

involved another gang member in the acquisition of the methamphetamine he possessed

in the residence that day. (See People v. Johnson (2014) 229 Cal.App.4th 910, 922.) In 

20 We note that Gonzalez does not make any separate claim challenging the 

sufficiency of the evidence for his conviction on count 1. Rather, he frames his claim as 

one of instructional error. 
45

addition, there was evidence that gang members sometimes sold methamphetamine 

obtained from a source other than the gang. 

Nevertheless, the Attorney General contends there was substantial evidence 

showing that Gonzalez possessed methamphetamine for sale “in complicity with 

numerous other gang members.” In support of his argument, the Attorney General refers 

generally to the evidence of Gonzalez’s deep involvement “in the primary activities of 

the gang, including the sale and possession for sale of methamphetamine.” The Attorney 

General also points to the prosecutor’s closing argument, which focused on Gonzalez’s 

involvement in the conspiracy to sell methamphetamine with members of his gang. We 

acknowledge that there is ample evidence in the record of Gonzalez’s active involvement 

in the gang’s drug-sales activities. However, the felonious criminal conduct at issue in 

the trial court’s instruction on count 1 was a possession of methamphetamine for sale 

offense, which in turn was based on the methamphetamine found in Gonzalez’s residence 

on October 30, 2014. The listed predicate conduct was neither the sale of 

methamphetamine nor conspiracy to sell methamphetamine. Thus, the Attorney 

General’s reliance on general evidence that the gang members acted together to sell 

methamphetamine is not persuasive to show that the listed predicate conduct of 

possession for sale was committed by at least two gang members. 

Under the circumstances here, we conclude there was no substantial evidence 

showing that the possession of methamphetamine for sale offense listed in the instruction 

on count 1 was “felonious criminal conduct” under section 186.22(a). 

Having concluded that none of the four offenses listed in the instruction was 

factually adequate to prove the requisite element, we decide that the trial court should not 

have included those offenses in its instruction. Because there was no factually adequate 

theory of liability presented to the jury for the felonious criminal conduct element under 

section 186.22, we must reverse Gonzalez’s conviction on count 1. (See Guiton, supra, 4

Cal.4th at pp. 1128, 1130.) 
46

Regarding the remedy for this error, the general rule is that where evidence is 

insufficient to support a jury’s finding, retrial is barred. (See Burks v. United States

(1978) 437 U.S. 1, 17–18; People v. Seel (2004) 34 Cal.4th 535, 550.) But if reversal is 

predicated on instructional error, then retrial is not barred. (See People v. Hallock (1989) 

208 Cal.App.3d 595, 607.) As noted, Gonzalez has only raised a claim of instructional 

error, not a claim of insufficiency of the evidence, and he does not make any argument 

that he cannot be retried on count 1. Under these circumstances, we conclude the proper 

remedy in this circumstance is remand for retrial on count 1 if the district attorney so 

elects.

5. Gang Enhancements

Gonzalez contends post-trial legislative changes to section 186.22 require reversal 

of the jury’s findings on the gang enhancement allegations for counts 5 and 6 (the counts 

based on Gonzalez’s stabbing of Curtis Garza) and counts 7–11 (the counts related to the 

November 2013 home invasion) due to what amounts to instructional error.

21

 The jury 

found true the allegations that Gonzalez committed the crimes of attempted murder 

(§§ 187, 664, subd. (a); count 5), assault with a deadly weapon (§ 245, subd. (a)(1); count 

6), dissuading a witness or victim by force or threat (§ 136.1, subd. (c)(1); counts 7 & 8),

robbery (§ 211; count 9), burglary (§ 460, subd. (a); count 10), and criminal threats

(§ 422; count 11) “for the benefit of, at the direction of, or in association with any 

criminal street gang, with the specific intent to promote, further, or assist in any criminal 

conduct by gang members” (§ 186.22, subd. (b)(1) & (4) (hereafter § 186.22(b)).22 

21 Although we have already decided to vacate Gonzalez’s sentence entirely and 

reverse the conviction on count 11 for criminal threats (giving the prosecutor the option 

of retrying that offense or accepting a reduction to the lesser offense of attempted 

criminal threat), we will address the merits of Gonzalez’s claim for the benefit of the trial 

court at Gonzalez’s resentencing.

22 The jury also found true the gang enhancement allegations attached to counts 

12, 13, 15, 16, and 17, but Gonzalez makes no argument challenging the validity of those 

findings under the recent changes to section 186.22. 
47

With respect to the section 186.22(b) enhancements, the trial court instructed the 

jury that the prosecution must prove beyond a reasonable doubt that “1. The defendant 

committed or attempted to commit the crime for the benefit of, at the direction of, or in 

association with a criminal street gang; [¶] and [¶] 2. The defendant intended to assist, 

further, or promote criminal conduct by gang members” (some capitalization omitted). 

In October 2021, while Gonzalez’s appeal was pending in this court, the Governor 

approved Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Assembly Bill 333), which 

amended section 186.22.23 (Stats. 2021, ch. 699, §§ 3, 4.) Taking effect on January 1, 

2022, section 186.22, as amended, includes a redrafted subdivision (g), which provides, 

“As used in this chapter, 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. Examples of a common benefit that are more than reputational may include, 

but are not limited to, financial gain or motivation, retaliation, targeting a perceived or 

actual gang rival, or intimidation or silencing of a potential current or previous witness or 

informant.” (§ 186.22, subd. (g) (hereafter § 186.22(g)), added by Stats. 2021, ch. 699, 

§ 3.) 

Prior to this amendment, section 186.22 had not defined the term “benefit” or the 

phrase “promote, further, or assist,” as used in section 186.22(b), and courts had read the 

subdivision broadly. The California Supreme Court had underscored that the first prong 

of section 186.22(b) could encompass reputational effects: “Expert opinion that 

particular criminal conduct benefited a gang by enhancing its reputation for viciousness 

can be sufficient to raise the inference that the conduct was ‘committed for the benefit of 

. . . a[] criminal street gang’ within the meaning of section 186.22(b)(1).” (People v. 

Albillar (2010) 51 Cal.4th 47, 63.) Under the new subdivision (g) added by Assembly 

23 Assembly Bill 333 did not alter the relevant language of the section 186.22(b) 

enhancement itself, but it did, as explained post, alter the definition of terms in section 

186.22(b). 
48

Bill 333, such evidence is no longer sufficient (or relevant) proof of the benefit element 

of section 186.22(b).

a. Retroactivity of Assembly Bill 333

Gonzalez contends that the new section 186.22(g) enacted by Assembly Bill 333 

applies to his case under In re Estrada (1965) 63 Cal.2d 740 as an ameliorative statute 

that creates the potential for lesser punishment.

24

 The Estrada rule, which applies to 

enhancements as well as substantive offenses, “rests on the presumption that, in the 

absence of a savings clause providing only prospective relief or other clear intention 

concerning any retroactive effect, ‘a legislative body ordinarily intends for ameliorative 

changes to the criminal law to extend as broadly as possible, distinguishing only as 

necessary between sentences that are final and sentences that are not.’ ” (People v. 

Buycks (2018) 5 Cal.5th 857, 881 (Buycks).) 

We agree with Gonzalez that the text of Assembly Bill 333 does not demonstrate 

any clear legislative intent that the statute should not apply retroactively. We further 

agree that the Estrada presumption applies because, by narrowing the scope of benefit 

element of section 186.22(b)(1), Assembly Bill 333 reduces the possibility the 

enhancement will apply. (See People v. Lopez (2021) 73 Cal.App.5th 327, 344; see also 

People v. Vinson (2011) 193 Cal.App.4th 1190, 1197.) As Gonzalez’s conviction is not 

yet final on appeal, he is entitled to the benefit of the new section 186.22(g). (Lopez, at 

p. 344.)

b. Prejudice

Unsurprisingly (because section 186.22(g) had not then been enacted), the trial 

court did not include in the jury instructions for the gang enhancement the subdivision’s 

directive that the prosecution must prove beyond a reasonable doubt that the common 

benefit to the gang was “more than reputational.” In light of our conclusion that section 

24 As Assembly Bill 333 has gone into effect, we need not address Gonzalez’s 

contention that the applicability of section 186.22(g) is ripe for our review. 
49

186.22(g) applies retroactively here, this omission amounts to error, and we must decide 

its effect. With respect to the appropriate analytical framework, Gonzalez suggests that it 

either constitutes structural error, requiring automatic reversal, or is subject to the 

Chapman, supra, 386 U.S. 18, standard of harmlessness beyond a reasonable doubt. 

We reject Gonzalez’s contention of structural error, because there is no contention 

that the instructional omission was so severe that it amounted to “the total deprivation of 

a jury trial.” (Merritt, supra, 2 Cal.5th at p. 830, italics omitted.) Indeed, Gonzalez does 

not contend that the jury was misinstructed on any aspect of section 186.22(b) other than 

failure to include the new language drawn from section 186.22(g). 

When the trial court fails to instruct a jury on an element of an offense, “[w]e must 

determine whether it is clear beyond a reasonable doubt that a rational jury would have 

rendered the same verdict absent the error.” (Merritt, supra, 2 Cal.5th at p. 831.) 

Similarly, under “alternative-theory error” (where the jury is properly instructed both on 

a legally valid theory and on an erroneous one), a “reviewing court must reverse the 

conviction unless, after examining the entire cause, including the evidence, and 

considering all relevant circumstances, it determines the error was harmless beyond a 

reasonable doubt.” (Aledamat, supra, 8 Cal.5th at p. 13.) As the prejudice standard is the 

same, we need not resolve the precise nature of the error here. 

As to counts 5 and 6, Gonzalez asserts this court cannot conclude the error was 

harmless beyond a reasonable doubt because it is “likely” the jury concluded that the 

benefit the Norteños received by Gonzalez stabbing Garza was reputational. Gonzalez 

cites Detective Harper’s testimony that the stabbing would send a message and an 

arguably similar statement by the prosecutor in closing argument. Gonzalez 

acknowledges that section 186.22(g) includes “ ‘financial gain or motivation’ ” in its 

definition of “ ‘common benefit’ ” for the gang but asserts that Gonzalez did not stab 

Garza to steal money from him because Garza had no money. Instead, in Gonzalez’s 
50

view, the direct benefit to the gang flowing from the stabbing was enhancement of the 

gang’s reputation for violence. 

Regarding counts 7–11, Gonzalez again cites Detective Harper’s testimony about 

the reputational nature of the benefit to the gang stemming from the home invasion 

incident. Gonzalez acknowledges that he and his gang “served to gain by retrieving the 

incriminating letter,” which was a “specific and tangible benefit in addition to the more 

general reputational benefit.” 

To determine whether the erroneous instruction requires reversal of the true 

findings on the gang enhancement, we examine “all relevant circumstances” (Aledamat, 

supra, 8 Cal.5th at p. 13) and in particular the evidence and arguments heard by the jury. 

(Id. at p. 15.)

i. Trial Testimony and Closing Arguments

Curtis Garza testified that he sold methamphetamine obtained from Gonzalez, who 

would “front” the drugs to Garza. Prior to the stabbing, Garza had obtained drugs from 

Gonzalez three to five times. Leading up to the stabbing, Gonzalez had supplied Garza 

methamphetamine on credit, and Garza owed him $300 to $500. Gonzalez approached 

Garza, and Gonzalez asked for his money. Garza told him he did not have it. Gonzalez 

looked around and began stabbing Garza. Garza did not testify that Gonzalez said 

anything to him prior to or during the stabbing other than the request for money. 

At the time of the stabbing, Garza believed Gonzalez to be a Norteño. Garza 

thought Gonzalez “had status” in the gang and was of a higher status in the gang than 

Garza. Garza himself was not paying taxes or monetary dues to any gang. Garza was 

addicted to methamphetamine during the period in which he bought drugs from 

Gonzalez. 

Testifying as a gang expert, Detective Harper gave the following testimony about 

the benefit to the gang of Gonzalez’s stabbing of Garza, “if you’re a drug dealer and a 

Norte[ñ]o and striving to advance within the gang, and you allow people to take 
51

advantage of you, not pay their debts, disrespect you, that’s not going to be looked upon 

very well within the gang leadership and gang community.”25 The prosecutor asked, 

“Does it also benefit the NF to have it known on the street that they do not tolerate people 

not paying their debts?” Harper responded, “Absolutely, as well as the acts of violence to 

basically show that it’s not going to be tolerated. They exert control over people, 

including their own membership, through fear of violent acts and retaliation for not 

falling in line.” 

With respect to the gang enhancement allegations for counts 5 and 6, the 

prosecutor contended in closing argument, “it benefits the gang when people are in fear 

of members of the NF or Norte[ñ]os, when people know basically not to mess with them, 

and they know that they need to pay their drug debts. So we’ve heard a lot about how the 

NF relies on fear. They basically have to be a fear organization to maintain their control 

of the streets. [¶] And it was intended to assist, further, or promote criminal conduct by 

gang members, in that criminal conduct is the drug-trafficking conspiracy. Basically, you 

cannot have a drug-trafficking conspiracy if people who are drug addicts don’t pay their 

drug debts.” 

Regarding the home invasion incident (the facts of which are detailed ante (see 

section II.B.2.a.)), Detective Harper testified that the incident could benefit the gang by 

demonstrating its desire for “some level of respect and authority” and opposition to 

“let[ting] people take advantage of you and subject your criminal activities to law 

enforcement detection and prosecution.” Harper also testified that the incident was 

committed with the intent to promote criminal conduct by gang members because unless 

a gang member “can control [his] surroundings and basically show people that 

cooperation and snitching isn’t tolerated, it’s going to weaken the gang’s position.” 

25 According to Detective Harper, Gonzalez was not part of the “regiment” at the 

time of the stabbing. 
52

In the same vein, the prosecutor argued to the jury that the incident benefited the 

gang by “stop[ping] witnesses from cooperating with law enforcement” and getting 

“word . . . out on the street that if you try to mess with the NF or you try to go to the cops, 

they’ll bust into your home with a gun, put a pillowcase over your head, [and] threaten 

your life in front of your child.” Further, the prosecutor maintained that there was an 

intent to assist, further, or promote criminal conduct by gang members because the 

crimes were committed “to maintain control over the streets.” 

Gonzalez’s trial counsel argued in closing argument that there was insufficient 

evidence of the gang allegations because the crimes alleged in counts 5 and 6 occurred 

prior to Gonzalez’s joining the regiment and “before he had any gang activity.” 

Gonzalez’s trial counsel also argued generally that there was insufficient evidence to 

establish that the stabbing and home invasion incident “were done to benefit, aid, assist 

criminal street gangs” because the crimes were committed before Gonzalez met Jimenez 

or was “closely associated with the street gang.”

ii. Analysis

Having reviewed the record, we conclude that the failure to include the limitation 

added by section 186.22(g) was not harmless beyond a reasonable doubt. Although there 

was substantial evidence that the stabbing of Garza involved a “financial . . . motivation” 

(§ 186.22(g)) and that the home invasion incident was committed for the purposes of 

“intimidation or silencing of a potential current or previous witness or informant” (id.), 

Detective Harper’s testimony and the prosecutor’s argument to the jurors regarding the 

enhancement allegations underscored the reputational benefit that would flow to the gang 

from commission of the underlying crimes. 

The Attorney General argues that, on this record, a rational jury instructed under 

new section 186.22(g) would have returned the same verdict, i.e., finding that the 

stabbing and home invasion-related crimes were not merely reputational. We 

acknowledge that the evidence related to the gang enhancements went beyond reputation, 
53

in that debt collection and the suppression of cooperation and enforcement were noted by 

Detective Harper. However, the primary focus of Detective Harper’s testimony and the 

prosecutor’s argument was on the general reputation of the gang as it related to the 

crimes. Regarding the Garza stabbing, Harper and the prosecutor emphasized how a 

failure to collect a debt would be “looked upon” poorly by the “gang community” and 

how the gang benefits “when people know basically not to mess with” the gang. 

Similarly, regarding the home invasion, Harper talked about the “gang’s position” in the 

community, and the prosecutor argued about the gang getting the word “out on the street”

that cooperation with police will be met with violence. Under the stringent test for error 

we must apply, we cannot determine “that the error did not contribute to the verdict” 

(Aledamat, supra, 8 Cal.5th at p. 12) or that it is “clear beyond a reasonable doubt that a 

rational jury would have rendered the same verdict absent the error.” (Merritt, supra, 2 

Cal.5th at p. 831.) This case is like People v. E.H. (2022) 75 Cal.App.5th 467 (E.H.), 

where another Court of Appeal found prejudice even though there was testimony at trial

about financial benefits to the gang that were not merely reputational. (Id. at pp. 479–

480.) 

Accordingly, we decide the instructional error regarding the section 186.22(b) 

sentence enhancement allegations attached to counts 5–11 was not harmless. We 

therefore reverse the true findings on the gang enhancement allegations on counts 5–11.

Given our conclusion that there was prejudicial error, when resentencing Gonzalez

on remand, the trial court cannot—absent a retrial on the allegations—impose enhanced 

sentences on counts 5–11 based on the jury’s findings on the attendant section 186.22(b) 

allegations. However, our conclusion does not bar the district attorney from retrying 

Gonzalez on the gang enhancement allegations in counts 5–11, should he choose to do so. 

(See E.H., supra, 75 Cal.App.5th at p. 480; People v. Sek (2022) 74 Cal.App.5th 657, 

669–670.)
54

Having reviewed all of Gonzalez’s claims of instructional error, we now turn to 

his assertions that insufficient evidence supports his conviction for robbery.26

C. Sufficiency of Evidence of Robbery

Gonzalez contends there was insufficient evidence for his second degree robbery 

conviction on count 9, which relates to the November 2013 home invasion committed by 

Gonzalez and two other gang members, the evidence of which we have recounted above

in our discussion of the criminal threat instruction (see section II.B.2.a.). 

Gonzalez argues the evidence does not support that the taking of Crystal 

Martinez’s purse by Juan Garcia was “a natural and probable consequence of the object 

of the conspiracy” between himself, Garcia, and Peter Avila to obtain the incriminating 

letter from Dorothy Ybarra. Gonzalez further asserts that “the evidence was insufficient 

to show a causal connection between the taking of the purse and Crystal Martinez’s fear.” 

1. Background and Legal Principles

“ ‘When considering a challenge to the sufficiency of the evidence to support a 

conviction, we review the entire record in the light most favorable to the judgment to 

determine whether it contains substantial evidence—that is, evidence that is reasonable, 

credible, and of solid value—from which a reasonable trier of fact could find the 

defendant guilty beyond a reasonable doubt.’ ” (Powell, supra, 5 Cal.5th at p. 944; see 

also Jackson v. Virginia (1979) 443 U.S. 307, 318–319; People v. Jimenez (2019) 35 

Cal.App.5th 373, 392.) “In applying this test, we . . . presume in support of the judgment 

the existence of every fact the jury could reasonably have deduced from the evidence.” 

26 Gonzalez also contends there was insufficient evidence, as a matter of law, to 

show the existence of more than one conspiracy. As explained above (section II.B.1.c.), 

we have determined that the conspiracy convictions on counts 12 and 13 must be vacated 

for instructional error, but those counts were supported by substantial evidence and are 

subject to retrial. Having already rejected Gonzalez’s insufficiency claim, we do not 

address it further. 
55

(People v. Zamudio (2008) 43 Cal.4th 327, 357.) “We ‘must accept logical inferences 

that the jury might have drawn from the circumstantial evidence.’ ” (Ibid.) “ ‘We 

resolve neither credibility issues nor evidentiary conflicts; we look for substantial 

evidence. [Citation.]’ A reversal for insufficient evidence ‘is unwarranted unless it 

appears “that upon no hypothesis whatever is there sufficient substantial evidence to 

support” ’ the jury’s verdict.” (Ibid.)

“Robbery is the felonious taking of personal property in the possession of another, 

from his person or immediate presence, and against his will, accomplished by means of 

force or fear.” (§ 211.) The final element “ ‘is cast in the alternative; it may be 

accomplished either by force or by fear.’ ” (People v. Montalvo (2019) 36 Cal.App.5th 

597, 611 (Montalvo).)

“ ‘[T]he “force” required for robbery is not necessarily synonymous with a 

physical corporeal assault.’ [Citation.] However, ‘[t]he law does require that the 

perpetrator exert some quantum of force in excess of that “necessary to accomplish the 

mere seizing of the property.” ’ [Citation.] ‘[T]he force need not be great.’ [Citation.] 

‘An accepted articulation of the rule is that “[a]ll the force that is required to make the 

offense a robbery is such force as is actually sufficient to overcome the victim’s 

resistance.” ’ ” (Montalvo, supra, 36 Cal.App.5th at p. 618.)

The fear element “may be either: [¶] 1. The fear of an unlawful injury to the 

person or property of the person robbed, or of any relative of his or member of his family; 

or, [¶] 2. The fear of an immediate and unlawful injury to the person or property of 

anyone in the company of the person robbed at the time of the robbery.” (§ 212.) “ ‘To

establish a robbery was committed by means of fear, the prosecution “must present 

evidence ‘that the victim was in fact afraid, and that such fear allowed the crime to be 

accomplished.’ ” ’ [Citation.] Thus, the fear element is subjective in nature. [Citation.] 

However, the victim need not explicitly testify that he or she was afraid of injury where 

there is evidence from which it can be inferred that the victim was in fact afraid of injury. 
56

[Citation.] ‘The fear is sufficient if it facilitated the defendant’s taking of the property. 

Thus, any intimidation, even without threats, may be sufficient.’ [Citation.] However, 

given the language of section 212, the intimidation must not only produce fear, but the 

fear must be of the infliction of injury.” (Montalvo, supra, 36 Cal.App.5th at p. 612.)

Here, the indictment charged Gonzalez, Peter Avila, and Juan Garcia with robbery 

for taking a purse from Martinez. The jury instructions and prosecutor’s arguments

addressed Gonzalez’s liability for robbery based on the natural and probable 

consequences doctrine as applied to the acts of coconspirators. Specifically, the jury was 

instructed with CALCRIM No. 417 that “the People must prove that: [¶] 1. [Gonzalez] 

conspired to commit burglary; [¶] 2. A member of the conspiracy committed robbery to

further the conspiracy; [¶] AND [¶] 3. Robbery was a natural and probable

consequence of the common plan or design of the crime that the defendant conspired to 

commit.” (See In re Hardy (2007) 41 Cal.4th 977, 1025–1026; People v. Guillen (2014) 

227 Cal.App.4th 934, 998 (Guillen).) The jury was further instructed that “[a] natural 

and probable consequence is one that a reasonable person would know is likely to happen 

if nothing unusual intervenes” (italics omitted). (See People v. Prettyman (1996) 14 

Cal.4th 248, 291 (conc. & dis. opn. of Brown, J.).)

Under the natural and probable consequences doctrine, “ ‘the ultimate factual 

question is one of foreseeability.’ [Citation.] Thus, ‘ “[a] natural and probable 

consequence is a foreseeable consequence”. . . .’ [Citation.] But ‘to be reasonably 

foreseeable “[t]he consequence need not have been a strong probability; a possible 

consequence which might reasonably have been contemplated is enough. . . .”

[Citation.]’ [Citation.] A reasonably foreseeable consequence is to be evaluated under 

all the factual circumstances of the individual case [citation] and is a factual issue to be 

resolved by the jury.” (People v. Medina (2009) 46 Cal.4th 913, 920.)
57

2. Analysis

Applying the foregoing principles to the facts of this case, we reject Gonzalez’s 

challenge to the evidence supporting a robbery. Gonzalez rightly asserts that “the object 

of the conspiracy was clear – to retrieve the incriminating letter.” However, we are not 

convinced it was unforeseeable that one of Gonzalez’s coconspirators “would break rank 

and steal something when that was not the purpose of the mission.” 

Based on the facts presented to Gonzalez’s jury, and by contrast to the 

circumstances in People v. Leon (2008) 161 Cal.App.4th 149, 159–161, there is a close 

connection between the target crime (i.e., burglary to steal the incriminating letter and 

dissuade a witness from disclosing information about the actions of gang members) and 

the taking of other items from the victims during this intimidating home invasion. 

Gonzalez, Juan Garcia, and Peter Avila forcibly entered Ybarra’s and Martinez’s home 

armed with a gun that they put to the head of Damien Zavala. Detective Harper testified 

that a primary activity of the Norteños is robbery. There also was evidence presented

about Norteño gang members routinely violating laws and not abiding by their gang’s 

dictates—causing the gang to bring them “in line.” That one of Gonzalez’s gang-member 

coconspirators would avail himself of the opportunity created by this home invasion to 

take some other property—including a purse—against an occupant’s will by means of 

force or fear is reasonably foreseeable when judged objectively in this case. 

Furthermore, in his kite about this crime, Gonzalez recounted telling Martinez that 

they were “going to keep coming back till [Ybarra] gives [] up” the letter. Gonzalez also 

wrote that he and his cohorts “were very effective in the message [they] sent.” In this 

context, Juan Garcia’s taking of the purse at the tail end of a bid to get the letter 

reinforced the coconspirators’ message that they would not be deterred from getting what 

they wanted from Ybarra and her family. In addition, that Gonzalez (after the crime) told 

Garcia that they did not go to the house to get the purse and he should get rid of it is only 

marginally germane to the foreseeability issue because the foreseeability test is an 
58

objective one, not subjective. (Guillen, supra, 227 Cal.App.4th at p. 998.) Moreover, the 

jurors could have reasonably deduced from Gonzalez’s statement that he wanted to avoid 

being caught with evidence of a robbery, not that he was surprised by Garcia’s taking. 

This is especially so given that Gonzalez admitted to compensating Garcia for his 

assistance in the crime despite his theft of the purse. For these reasons, we conclude 

there is substantial evidence upon which the jurors could find, beyond a reasonable 

doubt, that a reasonable person would know one of the coconspirators on this gang 

“mission” to acquire the incriminating letter would take other property in furtherance of 

the conspiracy. 

Similarly, we are not persuaded by Gonzalez that there was insufficient evidence 

for the jurors to find that the purse was taken by means of force or fear. Although 

Martinez testified that she could not recall the home invasion, soon after the incident 

Martinez reported to her mother (Ybarra) and sister (Ida Santellano) that the men pushed 

their way into the home, chased Damien Zavala into a bedroom, demanded the letter, had 

a gun, pointed it at Martinez, and stole her purse and the tablet on the way out.27

Similarly, Damien Zavala testified that Martinez was emotional and crying immediately 

after the incident and told him that she saw a gun and the men took her purse and their 

daughter’s tablet. 

Gonzalez asserts that “[t]here certainly was no evidence that the purse was taken 

by force.” He acknowledges the evidence that one of the men pointed a gun at Martinez, 

but maintains that occurred “upon entry into the house, not when the purse was taken as 

they were leaving.” Based on our review of the trial testimony, it is not clear that the 

27 Martinez testified that she did not remember “any of that day.” She explained 

that she was in a “bad car accident about five years ago and . . . do[es]n’t remember a lot 

of stuff.” Martinez also testified that she did not want to be at the trial. In addition, 

before trial, Martinez refused to speak to Detective Harper. The district attorney 

presented testimony from other witnesses about statements Martinez had made to them 

about the home invasion. 
59

gun-pointing, in fact, occurred when the men first entered the home. Furthermore, 

Gonzalez wrote the following about the gun in his kite: “For the record there was only 1 

firearm used in the room to contain Damien Zavala.” Gonzalez also wrote that he then 

directed Martinez to enter the room, demanded the letter, and told Martinez they were 

going to keep coming back until Ybarra gave them the letter. “Then we [(the intruders)]

left. On the way out [Garcia] grabbed her purse.” In light of this evidence, Gonzalez’s 

contention that there was no support for a taking by force is contrary to precedent 

defining that element of robbery. 

Robbery is a continuing offense. “All the elements must be satisfied before the 

crime is completed. However, . . . no artificial parsing is required as to the precise 

moment or order in which the elements are satisfied.” (People v. Gomez (2008) 43 

Cal.4th 249, 254, fn. omitted.) Furthermore, although “ ‘the act of force or intimidation 

by which the taking is accomplished in robbery must be motivated by the intent to steal’ ” 

(People v. Anderson (2011) 51 Cal.4th 989, 994), “ ‘[t]he elements of force and fear do 

not need to be extreme for purposes of constituting robbery. [Citations.] [¶] This means 

that the threat of bodily harm can frequently exceed the minimum requirement necessary 

for purposes of establishing robbery.’ ” (People v. Garcia (1995) 32 Cal.App.4th 1756, 

1776.) Here, the jurors could reasonably conclude from the evidence that the threat 

posed by the gun and other intimidating acts committed during the home invasion 

amounted to a use of force by the intruders to, at minimum, prevent Martinez from 

resisting the taking of the purse as they left. (See People v. Flynn (2000) 77 Cal.App.4th 

766, 771 (Flynn) [taking by force or fear includes “ ‘simply deterring a victim from 

preventing the theft or attempting to immediately reclaim the property’ ”].)

Similarly, the victim’s fear “need not be the result of an express threat” (Flynn, 

supra, 77 Cal.App.4th at p. 771), and “[r]esistance by the victim is not a required element 

of robbery.” (People v. Morehead (2011) 191 Cal.App.4th 765, 775.) “Intimidation of 

the victim equates with fear,” and “[i]f there is evidence from which fear may be inferred, 
60

the victim need not explicitly testify that he or she was afraid.” (Ibid.) Here, the jurors

heard evidence about Martinez crying and being highly emotional after the home 

invasion. This testimony, when viewed in the context of the other evidence about the 

incident, provides substantial evidence from which the jurors could reasonably infer that

Martinez feared injury to herself or the others in the home or their property, and her fear 

facilitated Garcia’s taking of the purse on his way out. Moreover, the jurors could have 

reasonably deduced from the evidence that the property—which was located inside the 

home with Martinez—was taken from her immediate presence. (See People v. Hayes

(1990) 52 Cal.3d 577, 627.)

“If the record demonstrates adequate evidence from which the jury might have 

inferred the existence of either force or fear, the appellate court must affirm.” (People v. 

James (1963) 218 Cal.App.2d 166, 170.) Viewing the trial evidence in the light most 

favorable to the conviction, we conclude there is sufficient evidence from which a 

reasonable juror could find beyond a reasonable doubt that Gonzalez was guilty of 

robbery as charged in count 9.

D. Motion for New Trial

Gonzalez raises several claims on appeal with respect to the trial court’s denial of 

his motion for new trial. Gonzalez contends that the trial court erred by denying the 

motion for new trial on three grounds: (1) ineffective assistance of counsel for failing to 

impeach Curtis Garza; (2) witness misconduct by Detective Harper and related 

ineffective assistance of counsel; and (3) ineffective assistance of counsel for failing to 

object or otherwise remedy the prosecutor’s misstatement of law in closing argument. 

For the reasons explained below, we reject Gonzalez’s claims of error related to the 

motion for new trial.

1. Impeachment of Curtis Garza

Gonzalez contends the trial court erred by denying his motion for new trial on 

count 5 (attempted murder) and count 6 (assault with a deadly weapon) because his trial 
61

counsel was ineffective for failing to impeach Curtis Garza with prior statements that he 

did not owe Gonzalez money for a drug debt when Gonzalez stabbed him. 

a. Background

Garza testified that Gonzalez had provided him methamphetamine on credit a 

handful of times in the weeks prior to the stabbing. Before the stabbing happened, Garza 

owed Gonzalez about $300 to $500 for drugs Gonzalez had provided and Garza had 

missed an appointment to pay Gonzalez. On the day of their missed appointment, 

Gonzalez spotted Garza, approached him, and asked for the money. Garza told Gonzalez 

he did not have the money because he had been robbed. Gonzalez then suddenly stabbed 

Garza. On cross-examination of Garza, Gonzalez’s trial counsel (Koller) did not ask 

Garza anything about a prior statement to the police about the stabbing.

In his closing argument on counts 5 and 6, the prosecutor contended that Gonzalez 

acted with an intent to kill because he had “a motive” to kill Garza, “in that [Gonzalez]

was mad about the drug debt that Mr. Garza owed him. He went and found [Garza]. He 

went to his neighborhood.” The prosecutor argued further that Gonzalez did not just try 

to “send a message” or “just . . . scar” Garza. Rather, Gonzalez stabbed Garza in the 

chest, close to his heart, “trying to kill him.” Regarding the gang enhancement

allegations attendant to counts 5 and 6 (§ 186.22, subd. (b)(1)(C)), the prosecutor argued 

that the NF/Norteños benefitted from Gonzalez’s crimes because the gang instills fear 

and maintains control by letting people know “they need to pay their drug debts” and 

“not to mess with” the gang. In addition, the prosecutor asserted that the crimes were 

intended to promote, further, or assist the gang’s “drug-trafficking conspiracy,” because 

such conspiracy cannot exist if “drug addicts don’t pay their drug debts.”

Gonzalez’s trial counsel (Koller) argued to the jury that Garza was an unreliable 

witness, there was insufficient proof of Gonzalez’s identity as Garza’s assailant or that 

the assailant had an intent to kill, and, in any event, the stabbing happened before 

Gonzalez became a member of the gang’s street regiment. 
62

During their deliberations, the jurors requested a transcript of Garza’s testimony 

and the “testimony of Det. Harper related to the alleged stabbing of Curtis Garza by 

James Gonzalez or any statements or interviews with Det. Harper by Curtis Garza.” No 

prior police interview of Garza had been admitted or used at trial.28

Prior to trial, (on January 5, 2015) Detective Harper and another detective had

interviewed Garza. At the time, Garza had been in jail for a month on a “45 day 

[probation] violation.” Garza told the detectives that Gonzalez was an ex-boyfriend of 

Garza’s girlfriend (Alexis Grijalva), to whom Garza had recently become engaged. 

Garza first met and spoke to Gonzalez about two years earlier (in 2012). Garza told 

Gonzalez that he (Garza) was “from Southside San Jose, Sick-Minded” Norteños, even 

though Garza had “disbanded from them [] like the year before that” and was “chillin’ [in 

a] different hood.” Gonzalez told Garza that he (Gonzalez) was “slinging dope” (i.e., 

methamphetamine) and gave Garza his phone number. Gonzalez did not tell Garza that 

he (Gonzalez) “had status” in the Norteños at that time. 

After they first met, Garza received drugs from Gonzalez about five to seven times

under an arrangement in which Garza paid Gonzalez up front for one-half of the drugs 

provided, with the other half provided on credit which Garza would pay off when 

Gonzalez provided the next batch of drugs. The amounts provided by Gonzalez during 

an approximately two-week period before the stabbing occurred quickly increased from a 

quarter ounce, to a half ounce, and to a full ounce (which cost $600). This made Garza 

nervous, and Gonzalez did not ask Garza about taking larger amounts of 

methamphetamine. 

28 After the jury returned its verdicts, Gonzalez filed a motion for new trial that 

included a transcript of a pretrial police interview of Garza. The trial court admitted the 

interview into evidence at a hearing on the new trial motion. 
63

Garza told the detectives that the stabbing occurred about two or three weeks after 

he first met Gonzalez.

29

 Regarding the stabbing, Garza gave the following account to the 

detectives, which forms the basis of Gonzalez’s ineffective assistance of counsel claim: 

“Um, the night before I was supposed to pick - actually the - I was supposed to pay him 

on - on, uh, I forget. I mean it was – it’s been a minute too like after that. But during that 

- that three day period it was just like I got - I can barely remember I - it like - from - to 

the day after the hospital. Um, it was, uh, we kind of got - he got mad ‘cause like, uh, I -

I gave - I gave him 600 bucks right, for the zip [(i.e., a batch of drugs)]. [¶] [Detective 

Harper says, “Mm-hm.”] [¶] And, you know, obviously I expected another zip right? 

And he was like: ‘Well I don’t - I don't have a zi- I don’t have a zip right now.’ Um,

‘cause he was chillin’ with some broad right? [¶] [Detective Harper says, “Mmm.”] [¶] 

And so I was like, ‘All right well how about check this out. I have my boy go down there 

and - and give you 300,’ and he said - and I - and I told him, or I, you know, ‘Will you 

bring that other zip? I’ll shoot you 300,’ ‘cause at that - that was - that was - that was the 

verbal contract. Was, you know, half - half and half. You know? Do half and shoot me 

the other half. You know? And so I - I kept on 300 bucks. He said, ‘All right.’ He said, 

‘All right,’ you know, ‘I’ll see you tomorrow.’ ” They then agreed to meet the next day 

at 12:30. 

Garza slept that night at a drug user’s house (after having been “awake for like six 

days straight”). Someone stole Garza’s phone, three grams of “dope,” and the $300 he 

had. Garza overslept and missed his scheduled meeting with Gonzalez. Garza later

walked around the neighborhood trying to find Gonzalez. Gonzalez spotted Garza, exited 

his car, approached Garza, and they had a short conversation during which Garza 

29 In the interview, Garza said the stabbing happened in February 2012. At trial, 

Garza testified that he was stabbed and taken to the hospital on January 11, 2014. 

However, other trial evidence (including testimony from a responding police officer) 

demonstrates that Garza was in fact stabbed on January 11, 2013. 
64

apparently told Gonzalez “I ain’t tryin’ to jack you homie.” Gonzalez did not make eye 

contact with Garza and suddenly stabbed him. No one was with Gonzalez when he 

stabbed Garza, but Garza thought two guys were in the area at the time (although they 

had walked away). 

Garza told the detectives that he did not talk to police after the stabbing because he 

did not know whom he could trust; the incident made him paranoid. 

b. Gonzalez’s Motion for New Trial

In a new trial motion (motion), Gonzalez, through newly appointed counsel 

(Upton), asserted multiple grounds challenging his convictions on counts 5 and 6, 

including ineffective assistance of counsel because trial counsel (Koller) “was unaware of 

the prior inconsistent statements by Garza regarding whether he owed a drug debt to 

Gonzalez at the time of the stabbing” in January 2013 (some capitalization omitted).30 

Gonzalez argued further that evidence demonstrating Garza “did not owe a drug debt to 

Gonzalez on the day of the stabbing would have been devastating to the People’s theory 

for the motive for the stabbing” and “would also have impeached Detective Harper.” 

The district attorney opposed Gonzalez’s motion. Gonzalez filed a reply to the 

opposition, reiterating his claim of ineffective assistance of counsel for failing to impeach 

Garza and Detective Harper with what Gonzalez characterized as Garza’s prior 

inconsistent statements. Gonzalez argued that the prejudice from trial counsel’s failure 

“was obvious” because Garza and Harper “fabricate[d] a motive for the stabbing.” 

30 Gonzalez also alleged Koller was ineffective for “not presenting a defense of 

self-defense,” as requested by Gonzalez. In a declaration filed in support of his motion, 

Gonzalez declared, among other things: “I stabbed Curtis Garza on January 11, 2013.”; 

“When I stabbed Curtis Garza on January 11, 2013, Garza did not owe me any money.”; 

and “When I stabbed [] Curtis Garza on January 11, 2013, I acted in self-defense.” In his 

motion, Gonzalez alleged that he admitted the stabbing to Koller and told Koller it was 

done in self-defense. Regarding the failure to present a defense of self-defense, Gonzalez 

maintained that “[t]here is no tactical reason why [his] counsel failed to use Garza’s taperecorded statements to impeach Garza at trial” (some capitalization omitted). Gonzalez 

does not raise any claim regarding self-defense in this appeal.
65

Gonzalez also asserted that Garza’s “entire interview is exculpatory” and its admission 

into evidence “would have illuminated” Harper’s false testimony. 

At a hearing on the motion, Upton called Koller as a witness. Koller

acknowledged that his strategy to defend against the Garza stabbing included that Garza 

was an unreliable witness, there was a lack of corroboration regarding Gonzalez being the 

assailant, and Garza had failed to report the stabbing to the Norteño gang. Koller

testified that, prior to trial, he had reviewed all discovery, the prior testimony of 

witnesses, and the interviews of witnesses and victims, including Garza’s January 5, 2015 

interview. 

When asked to explain why he rejected self-defense in favor of a defense that 

Garza was an unreliable witness, Koller said that “in reviewing Garza’s transcript, it 

appears he’s all over the map with regard to things that had happened. My concern was 

in pursuing certain avenues, I would open up doors that would hurt us in other areas. For 

example, the gang aspect, because as it stood, there wasn’t as much evidence 

. . . presented at trial as what [Garza] talks about within the transcript. And so I was 

trying to show also that this was not gang-related.” Further, when asked if Garza’s 

changing story would be considered a prior inconsistent statement, Koller acknowledged

that it would but reiterated that he “didn’t really want to get into the transcript aspect of 

things, because it opened up a lot of other doors and avenues for [Garza] to say things 

that could be harmful.” In addition, Koller testified that Garza’s prior statement about his 

interaction with Gonzalez leading up to the stabbing evinced Garza’s confusion and, thus,

Koller did not “know if [Garza] met with [Gonzalez] the day before” the stabbing. 

In a written decision, the trial court denied Gonzalez’s motion for new trial as to

counts 5 and 6 and the attendant sentence enhancements. Regarding Gonzalez’s 

argument that there was no support for the prosecutor’s theory that the stabbing was 

committed to collect a drug debt, the court found that “Garza’s [interview] statement was 

not clear. As Koller testified, Garza’s statement was confusing and he was not sure 
66

regarding when he’d met with [Gonzalez], though current counsel asserts that it was 

clearly the day before the stabbing. Also, contrary to [Gonzalez]’s assertion that no drug 

debt existed, Garza’s testimony at trial was that he did owe money to [Gonzalez] for 

drugs. At best, Koller could only have attempted to impeach Garza’s testimony with the 

prior statement. Koller was concerned that such questioning could have led to Garza 

being questioned on other areas, including gang activity by [Gonzalez], which Koller

stated would have been detrimental to [Gonzalez]’s interests. The court finds that 

Koller’s decision not to cross examine Garza on this issue to be reasonable and not IAC”

(ineffective assistance of counsel).

c. Standard of Review and Other Legal Principles

The parties disagree on the standard we should use to review the trial court’s 

denial of Gonzalez’s new-trial motion claim of ineffective assistance of counsel (IAC). 

Gonzalez urges us to follow a “two-step process” set forth by a sister Court of Appeal in 

People v. Taylor (1984) 162 Cal.App.3d 720 (Taylor). Under that approach, we defer to 

any express or implied factual finding supported by substantial evidence and accept that 

“all presumptions favor the trial court’s exercise of its power to judge the credibility of 

witnesses, resolve any conflicts in testimony, weigh the evidence, and draw factual 

inferences.” (Id. at p. 724.) From there, we exercise our independent judgment to 

measure the facts as found by the trial court against the constitutional standard for IAC 

claims. (Id. at p. 725.)

By contrast, the Attorney General asks us to use the abuse of discretion standard

when reviewing Gonzalez’s IAC-based claim. The California Supreme Court recently 

applied that standard in People v. Hoyt (2020) 8 Cal.5th 892 (Hoyt). There, our Supreme 

Court reviewed a trial court’s denial of a new trial motion that included IAC claims. (Id. 

at p. 957.) The court stated, “ ‘ “ ‘ “We review a trial court’s ruling on a motion for a 

new trial under a deferential abuse-of-discretion standard.” [Citations.] “ ‘A trial court’s 

ruling on a motion for new trial is so completely within that court’s discretion that a 
67

reviewing court will not disturb the ruling absent a manifest and unmistakable abuse of 

that discretion.’ ” ’ ” ’ ” (Ibid.) In Hoyt, our Supreme Court did not mention Taylor

when describing its standard of review or deciding the defendant’s challenge to the denial 

of his IAC claims. (See id. at pp. 957–962.)

In the present case, each party contends he should prevail regardless of the 

standard of review we choose to apply. Under these circumstances, we will apply 

Taylor’s two-step, mixed standard of review to Gonzalez’s IAC-based new-trial motion 

claim (rather than the abuse of discretion standard), without deciding whether our

Supreme Court in Hoyt overruled, sub silentio, the standard set forth in Taylor.

Although IAC claims are “[u]sually . . . ‘more appropriately decided in a habeas 

corpus proceeding[,]’ . . . a defendant may raise the issue of counsel’s effectiveness as a 

basis for a new trial, and, to expedite justice, a trial court should rule ‘[i]f the court is able 

to determine the effectiveness issue on such motion.’ [Citation.] To make out a claim 

that counsel rendered constitutionally ineffective assistance, ‘the defendant must first 

show counsel’s performance was deficient, in that it fell below an objective standard of 

reasonableness under prevailing professional norms. Second, the defendant must show 

resulting prejudice, i.e., a reasonable probability that, but for counsel’s deficient 

performance, the outcome of the proceeding would have been different.’ ” (Hoyt, supra, 

8 Cal.5th at p. 958; see also Strickland v. Washington (1984) 466 U.S. 668, 687

(Strickland).) We can reject an IAC claim if the defendant fails to establish either 

element of the Strickland standard. (See Strickland, at p. 687; People v. Kirkpatrick

(1994) 7 Cal.4th 988, 1008, disapproved on another ground in People v. Doolin (2009) 45 

Cal.4th 390, 421, fn. 22.)

“[T]o what extent and how to cross-examine witnesses” are among “the wide 

range of tactical decisions competent counsel must make.” (People v. Cleveland (2004) 

32 Cal.4th 704, 746 (Cleveland).) “ ‘As to whether certain witnesses should have been 

more rigorously cross-examined, such matters are normally left to counsel’s discretion 
68

and rarely implicate inadequacy of representation.’ ” (People v. Williams (1997) 16 

Cal.4th 153, 217 (Williams).) A “ ‘trial counsel’s tactical decisions are accorded 

substantial deference’ ” and “ ‘[a] reviewing court will not second-guess trial counsel’s 

reasonable tactical decisions.’ ” (People v. Riel (2000) 22 Cal.4th 1153, 1185 (Riel); 

Strickland, supra, 466 U.S. at pp. 689–690.) When the reason for counsel’s actions 

appears in the record, “the court will determine whether that reason reflects reasonably 

competent performance by an attorney acting as a conscientious and diligent advocate.” 

(People v. Coddington (2000) 23 Cal.4th 529, 652 (Coddington), overruled on another 

ground by Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.)

d. Analysis

We reject Gonzalez’s contention that Koller’s failure to cross-examine Garza with 

his prior statements regarding the state of his drug dealings with Gonzalez before the 

stabbing amounted to deficient performance. To be sure, Garza testified (and the district 

attorney argued) that Garza owed Gonzalez about $300 to $500 for methamphetamine

that Gonzalez had provided, and Garza intended to meet with Gonzalez to pay him

money. We also acknowledge that if Koller had cross-examined Garza about his 

statements on the state of the drug transactions, that examination would not necessarily 

have opened the door to other statements made by Garza that were irrelevant to 

rehabilitation on the contested point. (See People v. Riccardi (2012) 54 Cal.4th 758, 

802–803, abrogated on other grounds by Rangel, supra, 62 Cal.4th at p. 1216.) 

Nevertheless, we agree with Koller’s and the trial court’s assessment that Garza’s 

prior statements were “confusing” and “all over the map.” Garza claimed in the police 

interview that he could “barely remember” the days surrounding the stabbing and he did 

not clearly state when he gave Gonzalez “600 bucks . . . for the zip.” Garza also did not 

make clear exactly what the $600 covered. Was it a full payment for an ounce of 

methamphetamine previously provided completely on credit? Or did the $600 comprise a 

$300 credit payment for one-half of a previously provided batch of drugs, and a $300 
69

upfront payment for one-half of the next batch of drugs, under their “pay half now, half 

later” arrangement? After stating that he “gave” Gonzalez “600 bucks,” Garza made 

more opaque statements about expecting “another zip” (which Gonzalez could not then 

provide) and proposing to have his unidentified “boy” meet with Gonzalez and give him

$300. But it is not clear from Garza’s statement whether this delivery occurred. Garza 

also proposed “shoot[ing]” Gonzalez $300 as half payment for more drugs and further 

said that he (Garza) “kept on 300 bucks.” Again, the meaning of this statement is not 

clear. 

We do not agree with Gonzalez that Garza’s prior statements show that he did not 

owe Gonzalez any money for previously provided methamphetamine at the time of the 

stabbing. Thus, Garza’s prior statements about the circumstances leading up to the 

stabbing were not clearly inconsistent with Garza’s trial testimony about owing some

$300 to $500 to Gonzalez. Regardless of whether Koller unreasonably harbored

concerns about opening the door to other potentially harmful information, there is a 

significant lack of clarity in Garza’s prior statements. Given the opacity of Garza’s 

statements, we conclude that Koller acted within an objective standard of reasonableness 

for a conscientious and diligent advocate when he declined to impeach Garza with his 

prior statements to police about the state of his drug dealings with Gonzalez leading up to 

the stabbing.

Because Gonzalez has failed to demonstrate that Koller’s performance was 

deficient with regard to Garza’s prior statements, we reject Gonzalez’s claim that the trial 

court erred in denying his motion for new trial on that IAC ground for counts 5 and 6.

2. Detective Harper’s Testimony

Gonzalez contends the trial court erred by denying his motion for new trial on 

counts 5 and 6 “because the jury never should have heard from [Detective] Harper that 

Garza told him that he was warned not to mess with [Gonzalez] because he was a 

member of the NF.” According to Gonzalez, “[Detective] Harper was at fault for 
70

injecting inadmissible information into his answer that was not responsive to defense 

counsel’s question” (i.e., “witness misconduct”) and “counsel was also at fault for even 

asking the question in the first place and then in failing to correct the misleading nature of 

[Detective] Harper’s response” (i.e., IAC).

a. Background

Detective Harper testified on direct examination that he did not believe Gonzalez 

was a member of Ulises Jimenez’s street regiment at the time of the Garza stabbing (in 

January 2013), but Gonzalez was then a Norteño gang member. Detective Harper also 

said that, in his expert opinion, the stabbing benefited Gonzalez and the gang because it 

demonstrated that disrespect or a failure to pay debts to the gang would not be tolerated 

and the gang used fear of violence and retaliation against people who did not “fall[] in 

line.” On cross-examination, Koller asked if Detective Harper knew “whether Mr. 

Gonzalez was actually selling regimental dope” at the time of the stabbing. Detective 

Harper answered, “I do not. I know that Mr. Garza was warned not to mess with Mr. 

Gonzalez or his money for that reason.”

31

 Koller then asked, “Because it’s regimental 

dope?” And Detective Harper answered, “Because he was working with the NF.” 

Thereafter, Koller posed additional questions that prompted Detective Harper to confirm

his understanding that, even after the subsequent home invasion (in November 2013), 

Gonzalez was not “part of” or “a member of” the street regiment. 

During his January 2015 police interview, Garza stated that his fiancée’s sister 

Risa had told him not to “ ‘fuck with’ ” Gonzalez’s money because Gonzalez presumably 

was getting it from others. Risa, however, did not specifically say that Gonzalez’s source 

31 Koller’s entire question posed to Detective Harper read: “Now, during one of 

the hypotheticals, you were asked about the stabbing of Mr. Garza, and one of the 

hypotheses -- or one of the facts that was given to you was that if a person is selling 

regimental dope. Do you know, at that time, whether Mr. Gonzalez was actually selling 

regimental dope?” We are not aware of any hypothetical question in the record that 

asked Harper to assume a person was selling regimental dope at the time of a stabbing. 
71

was the “Regiment.” Garza also said that Gonzalez “wasn’t pickin’ it up” from 

“Southsiders” or “paisas”—presumably meaning that Garza believed Gonzalez was 

getting his money and supply of methamphetamine from the Norteño gang. Gonzalez 

never told Garza that he (Gonzalez) “was working with the Regiment.” 

In his motion for new trial, Gonzalez asserted that Koller was ineffective for 

failing to object to Detective Harper’s “false” responses to Koller’s cross-examination 

questions and that Detective Harper’s answers amounted to “People v. Sanchez [(2016) 

63 Cal.4th 665] error,” in that they were non-responsive, violated a prior in limine ruling, 

were hearsay, and violated Gonzalez’s right to confrontation.

32 In his reply to the 

prosecution’s opposition to the motion, Gonzalez further faulted the prosecutor for not 

moving to strike Detective Harper’s false answers.

At the hearing on the new trial motion, Koller confirmed that his “defense theory” 

was that Gonzalez “had no relationship with the NF, that [Gonzalez], if anything, was 

freelancing selling drugs,” and that there was no evidence “Gonzalez ever paid the NF 

any taxes or any contributions, and at the very best, he was an inactive Norte[ñ]o, who 

may or may not have been selling drugs.” Koller did not otherwise provide any specific 

testimony on the reason he had asked Detective Harper the specific questions at issue in 

this claim.

Additionally, Gonzalez’s new counsel Upton argued variously at the hearing that 

Gonzalez was prejudiced by Detective Harper’s improper, false responses to Koller’s 

questions and that, if Koller had been aware of related information in Garza’s interview 

and Detective Harper’s police report, Koller would not have asked the initial question 

32 Gonzalez moved in limine for the prosecution to admonish its witnesses to 

“make no statements that would be inadmissible” (capitalization and bolding omitted). 

The trial court apparently granted Gonzalez’s in limine request to the extent that “[a]ll 

parties are required to advise their witnesses of the Court’s in limine rulings.”
72

about regimental dope or, alternatively, would have objected to Detective Harper’s 

response or attempted to impeach him.

During the hearing, the trial court noted its view that, “at least for argument’s 

sake,” Detective Harper’s initial answer “perhaps[] implied” that Gonzalez “was selling 

regimental dope.” However, the court explained that Koller specifically followed up on 

the issue of regimental dope and Detective Harper clarified that he knew Garza had been 

warned not to mess with Gonzalez “ ‘[b]ecause he was working with the NF.’ ” 

In its written denial of Gonzalez’s motion, the trial court found Gonzalez’s claims 

regarding Detective Harper’s testimony about Garza’s statements “not persuasive.” The 

court concluded there was sufficient evidence that Garza’s identification of Gonzalez “as 

the stabber was credible” and “to support a finding the stabbing was gang related.” 

Further, the court explained that there was evidence to support that Gonzalez “was 

working with the NF and that Garza had been warned not to deal with [Gonzalez] 

because [he] was with NF.” 

b. Standard of Review and Other Legal Principles

As discussed, ante, we review the trial court’s denial of a new trial motion alleging 

an IAC claim using Taylor’s mixed standard of review. (Taylor, supra, 162 Cal.App.3d 

at pp. 724–725.) For other alleged claims, “a trial court’s ruling on a motion for new trial 

is subject to review for abuse of discretion.” (People v. Clair (1992) 2 Cal.4th 629, 667.)

Regarding a claim of “witness misconduct,” our Supreme Court has stated that,

“[a]lthough most cases involve prosecutorial or juror misconduct as the basis for [a 

mistrial] motion, a witness’s volunteered statement can also provide the basis for a 

finding of incurable prejudice.” (People v. Wharton (1991) 53 Cal.3d 522, 565

(Wharton).) “ ‘A mistrial should be granted if the court is apprised of prejudice that it 

judges incurable by admonition or instruction. [Citation.] Whether a particular incident 

is incurably prejudicial is by its nature a speculative matter, and the trial court is vested 

with considerable discretion in ruling on mistrial motions.’ ” (Ibid.)
73

Regarding IAC claims, a failure to object generally “is a matter of trial tactics as to 

which we will not exercise judicial hindsight.” (People v. Kelly (1992) 1 Cal.4th 495, 

520.) The same is true for challenges to a trial counsel’s questions on cross-examination.

(See Cleveland, supra, 32 Cal.4th at p. 746; Williams, supra, 16 Cal.4th at p. 217.) There 

is a “strong presumption that counsel’s conduct falls within the wide range of reasonable 

professional assistance.” (Strickland, supra, 466 U.S. at p. 689.) “If the record on appeal 

‘ “ ‘sheds no light on why counsel acted or failed to act in the manner challenged[,] 

. . . unless counsel was asked for an explanation and failed to provide one, or unless there 

simply could be no satisfactory explanation,’ the claim on appeal must be rejected.” ’ ” 

(People v. Vines (2011) 51 Cal.4th 830, 876, overruled on other grounds by People v. 

Hardy (2018) 5 Cal.5th 56, 104; see also Hoyt, supra, 8 Cal.5th at pp. 958–960.)

c. Analysis

Gonzalez asserts that Detective Harper’s answer to Koller’s yes-or-no question 

about whether Detective Harper knew Gonzalez was selling regimental dope amounted to 

witness misconduct because the answer was non-responsive and provided inadmissible 

hearsay to prove that Gonzalez “had ties to the regiment or, at least, the NF.”33 In 

addition, Gonzalez contends that Koller performed deficiently because he 

misremembered Detective Harper’s direct examination and failed to correct the 

misimpression “that Garza was given a warning that expressly linked [Gonzalez] to the 

[NF] gang.” Gonzalez claims that Koller could have “alleviated the prejudice stemming 

from [Detective] Harper’s answer by clarifying that Garza was, in fact, not told that 

[Gonzalez] was working with the NF.” For this reason, according to Gonzalez, it was 

reasonably probable that, given the otherwise limited evidence of Gonzalez’s Norteño 

33 We note that the Attorney General makes no argument that Gonzalez’s witness 

misconduct claim is not properly preserved for appellate review because it was not raised 

in the trial court. Because the Attorney General does not assert forfeiture, we will 

assume arguendo that forfeiture is inapplicable here and address the merits of Gonzalez’s 

claim.
74

membership status in January 2013, the jury’s verdicts on counts 5 and 6 and the 

attendant gang enhancements would have been different if Koller had pursued the alleged 

clarification. 

We are not persuaded by Gonzalez’s arguments. As to his claim of witness 

misconduct, Gonzalez relies on precedent that is inapposite for two reasons. First,

Gonzalez cites California Supreme Court cases addressing alleged witness misconduct 

that was contemporaneously challenged by defendants at trial through mistrial motions. 

(See, e.g., Wharton, supra, 53 Cal.3d at pp. 564–566; People v. Harris (2013) 57 Cal.4th 

804, 847–849; People v. Dement (2011) 53 Cal.4th 1, 37–40, abrogated on other grounds 

by Rangel, supra, 62 Cal.4th at p. 1216; Williams, supra, 16 Cal.4th at pp. 211–212; but 

see People v. Schiers (1971) 19 Cal.App.3d 102, 112.) Here, by contrast, Gonzalez did 

not move for a mistrial (or even object) after Detective Harper provided his answers.

Gonzalez makes no argument why the witness misconduct protections addressed by our 

Supreme Court in the cited cases should extend to a case like his, in which no objection

or mistrial motion was made at the time of the alleged misconduct. Second, and more 

importantly, Gonzalez fails to provide any convincing reason why Detective Harper’s 

testimony was so prejudicial that the harm it caused could not have been cured by a

contemporaneous admonition or instruction to the jury. Given the lack of a motion for 

mistrial and the inadequate showing of incurable prejudice flowing from Detective 

Harper’s answers, we conclude that the trial court did not abuse its discretion when it 

denied Gonzalez’s new-trial motion claim of witness misconduct.

Turning to Gonzalez’s IAC claim, at the hearing on the new trial motion, Koller 

was not asked why he cross-examined Detective Harper the way he did. In the absence 

of an explanation from Koller, we discern a plausible reason for Koller’s initial question, 

his failure to object to Detective Harper’s answer, and his follow-up questions. Namely, 

Koller may have been trying to show that Gonzalez was not connected to the regiment at 

the time of the stabbing—despite the fact that Detective Harper had testified Gonzalez
75

was then a Norteño gang member. Koller’s actions in this regard were consistent with his 

overall strategy to show that there was little evidence of Gonzalez’s direct involvement 

with the NF/Norteños gang or the regiment until a later point in 2014. Accordingly, we 

must reject Gonzalez’s IAC claim. (See Williams, supra, 16 Cal.4th at pp. 217–218.)

Even assuming for the sake of argument that Koller performed deficiently when he

cross-examined Detective Harper, and further assuming that Detective Harper committed 

misconduct when he volunteered knowing that Garza had been warned not to mess with 

Gonzalez or his money because he was either “selling regimental dope” or (as clarified) 

“working with the NF,” we are not convinced that Detective Harper’s testimony 

prejudiced Gonzalez. This portion of Detective Harper’s testimony was brief and 

unaccompanied by any basis for Detective Harper’s knowledge of the warning Garza had 

received. Further, we agree with the trial court that Garza’s testimony credibly 

established that Gonzalez was the stabber and there was other evidence (beyond 

Detective Harper’s challenged testimony) to support that Gonzalez was an active Norteño 

gang member at the time of the stabbing. On this record, we conclude there is no 

reasonable probability that the outcome of the trial on counts 5 and 6 and the attendant 

gang enhancements would have been different absent the challenged testimony. We 

further conclude that there is no reasonable probability of a different result if Koller had 

questioned Detective Harper further using Garza’s interview statements that Risa did not 

tell him Gonzalez was working with the regiment or that Garza surmised Gonzalez was 

getting his money and methamphetamine from the Norteño gang. 

Accordingly, we reject Gonzalez’s claim that the trial court erred in denying his 

motion for new trial as to counts 5 and 6 on the grounds of witness misconduct or 

ineffective assistance of counsel. 

3. Prosecutor’s Alleged Misstatement of Law on Lesser Included Offenses

Gonzalez contends the trial court erred by denying his motion for new trial 

because his trial counsel was ineffective for failing to object to or otherwise clarify the 
76

prosecutor’s alleged misstatement of law regarding how the jurors should consider the

lesser included offenses. 

a. Background

The trial court instructed the jurors on several lesser included offenses, including 

for counts 6 through 9, and 15. The court also instructed the jurors with CALCRIM No. 

3517, which listed the offenses/counts covered by the instruction and told the jurors, inter 

alia: “It is up to you to decide the order in which you consider each crime and the 

relevant evidence, but I can accept a verdict of guilty of a lesser crime only if you have 

found the defendant not guilty of the corresponding greater crime.”

Near the end of his closing argument, the prosecutor addressed the issue of lesser 

included offenses. He told the jurors that the prosecution had proven all of the counts 

and allegations against both Gonzalez and his codefendant Roman and said the following 

about the lesser included offenses: “I’m going to make it simple for you and tell you 

don’t consider the lesser included offenses, because what I’m going to ask you to do is to 

follow the evidence. If you follow the evidence, there is enough evidence to convict of 

the charged offenses. And the judge explained to you, you only consider lesser included 

offenses if you find that the charged offenses were not proven. [¶] So if you determine 

there’s enough evidence to convict of the charged offenses in the indictment, you don’t 

even need to consider the lesser included offenses.” Additionally, using assault with a 

deadly weapon (count 6) as an example, the prosecutor explained that if the jurors found 

the greater offense proven, they “move on” and “don’t get to [the] lesser included of 

simple assault. [¶] Now, if you look at it and you say it was not proven, that’s the only 

time you need to consider the lesser included offense of assault, which in this case would 

be kind of odd” given the evidence. Koller did not object to the prosecutor’s remarks.

During Koller’s testimony at the hearing on the new trial motion, Upton raised the

issue of alleged prosecutorial error in argument based on People v. Kurtzman (1988) 46 
77

Cal.3d 322, 335 (Kurtzman).

34 Upton asked Koller if he had a tactical reason for not 

objecting to the prosecutor’s “misstatement” of CALCRIM No. 3517. Koller responded, 

“I believe that the Court had properly instructed on that issue, and felt that highlighting 

[the prosecutor]’s [remarks] was not necessary.” 

Later, when orally arguing the motion, Upton reiterated that the prosecutor’s 

remarks “constitute[d] a Kurtzman error, and it had a prejudicial impact on this case, 

particularly with regard to the [offenses in counts 7 and 8 under section] 136.1(c)(1).”

Gonzalez does not point us to any mention of Kurtzman error made in his written 

new trial motion or reply to the district attorney’s opposition. Moreover, the trial court

did not address this particular claim of error in its written decision on Gonzalez’s motion. 

However, the court stated in its written ruling: “As to any claim or argument or basis 

asserted in support of the motion for new trial not specifically discussed herein, the 

motion is denied.” 

b. Standard of Review and Other Legal Principles

As discussed, ante, we use the Taylor mixed-standard of review when evaluating a 

trial court’s denial of a new trial motion alleging an IAC claim. (Taylor, supra, 162 

Cal.App.3d at pp. 724–725.)

In Kurtzman, the California Supreme Court held “that a court may ‘restrict [] a 

jury from returning a verdict on a lesser included offense before acquitting on a greater 

offense’ but may not ‘preclude [it] from considering lesser offenses during its 

deliberations.’ (Italics in original.) We thereby impliedly rejected a ‘strict acquittal-first 

rule under which the jury must acquit of the greater offense before even considering 

lesser included offenses.’ ” (People v. Berryman (1993) 6 Cal.4th 1048, 1073 [quoting 

34 In Kurtzman, the California Supreme Court addressed a situation in which the 

trial court told the jury “that it must unanimously agree on whether defendant was guilty 

of second degree murder before ‘considering’ voluntary manslaughter.” (Kurtzman, 

supra, 46 Cal.3d at p. 324.)
78

Kurtzman, supra, 46 Cal.3d at p. 333], overruled on another ground by People v. Hill

(1998) 17 Cal.4th 800, 823, fn. 1.)

As for prosecutorial error, “it is misconduct for a prosecutor, during argument, to 

misstate the law.” (People v. Whalen (2013) 56 Cal.4th 1, 77, disapproved of on another 

ground by People v. Romero and Self (2015) 62 Cal.4th 1, 44, fn. 17.) “ ‘A defendant

whose counsel did not object at trial to alleged prosecutorial misconduct can argue on 

appeal that counsel’s inaction violated the defendant’s constitutional right to the effective 

assistance of counsel.’ ” (People v. Centeno (2014) 60 Cal.4th 659, 674 (Centeno).) We 

accord “ ‘substantial deference’ ” to counsel’s tactical decisions and “ ‘will not secondguess trial counsel’s reasonable tactical decisions.’ ” (Riel, supra, 22 Cal.4th at p. 1185; 

see also Coddington, supra, 23 Cal.4th at p. 652.)

c. Analysis

Gonzalez asserts that Koller acted unreasonably when he withheld objection to the 

prosecutor’s argument for the reasons he articulated, i.e., because the trial court’s 

instruction on lesser included offenses was proper and he believed it was unnecessary to 

highlight the prosecutor’s remarks. Gonzalez further maintains that Koller’s failure to 

object was prejudicial as to the convictions on counts 7, 8, and 9. 

We are not persuaded that the reasons Koller provided for his failure to object 

places his performance outside the range of reasonably professional assistance. As 

Gonzalez concedes, the trial court’s instruction with CALCRIM No. 3517 was correct. 

Further, the trial court instructed the jurors that if they “believe that the attorneys’

comments on the law conflict with [the court’s] instructions, you must follow [the 

court’s] instructions.” (CALCRIM No. 200.) Although the prosecutor arguably 

contradicted the court’s instruction by arguing that the jurors should only consider the 

lesser included offenses if they first decided to acquit on the charged offenses, the 

prosecutor concurrently urged the jurors to “follow the evidence” to a conclusion that the 

People proved Gonzalez’s guilt on the offenses as charged. In this circumstance, it would 
79

not be unreasonable for an attorney to conclude that the jurors would follow the direction 

in CALCRIM No. 3517 that they could decide the order for consideration of the offenses 

and relevant evidence. (See Centeno, supra, 60 Cal.4th at p. 676.)

Moreover, in his closing argument, Koller did not ask the jurors to return a guilty 

verdict on any lesser included offense. Rather, Koller urged the jurors to find Gonzalez

not guilty on counts 6 through 9, and further asked the jurors to “look at that evidence 

and make [a] determination” on count 15 (methamphetamine possession for sale). Given 

the chosen strategies of persuading the jurors to completely acquit Gonzalez on counts 6 

through 9, given the People’s failure of proof, and essentially conceding guilt on count

15, from the defense perspective the importance of the prosecutor’s remarks regarding 

the jury’s consideration of the lesser included offenses was minimal. Under these

circumstances, we conclude that Gonzalez fails to show Koller’s reason for withholding 

an objection is unreasonable or that Koller’s inaction—evaluated “from counsel’s 

perspective at the time”—amounts to deficient performance. (See Strickland, supra, 466 

U.S. at p. 689.)

We thus reject Gonzalez’s claim that the trial court erred by denying his new-trial 

motion IAC claim grounded on prosecutorial error in argument.

E. Sentencing Claims

Although we have already concluded that Gonzalez’s sentence should be vacated 

in its entirety based on our reversal of some of his convictions, for the benefit of the trial 

court at resentencing we address Gonzalez’s claims of sentencing error with respect to 

counts and enhancements that we have not ordered vacated. Gonzalez contends (1) the 

concurrent sentence imposed for his robbery conviction (count 9) must be stayed under 

section 654; and (2) a post-trial change made to section 1170, subdivision (b), by Senate 
80

Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567) requires vacatur of the sentence 

for his attempted murder conviction (count 5).

35

1. Robbery

Gonzalez contends the trial court erred under section 654 by imposing an unstayed 

concurrent sentence on count 9 for his robbery conviction related to the home invasion. 

a. Legal Principles

“Section 654 precludes multiple punishments for a single act or indivisible course 

of conduct.” (People v. Assad (2010) 189 Cal.App.4th 187, 200.) Even concurrent 

sentences on convictions subject to section 654 are prohibited; the sentence on one of the

two applicable convictions must be imposed and then stayed. (People v. Deloza (1998) 

18 Cal.4th 585, 591–592.) “[T]he purpose of section 654 ‘is to insure that a defendant’s 

punishment will be commensurate with his culpability.’ ” (People v. Latimer (1993) 5 

Cal.4th 1203, 1211.)

Application of section 654 “requires a two-step inquiry, because the statutory 

reference to an ‘act or omission’ may include not only a discrete physical act but also a 

course of conduct encompassing several acts pursued with a single objective.” (People v. 

Corpening (2016) 2 Cal.5th 307, 311.) Only if the case involves more than one act does 

a court consider whether the case involves a course of conduct. (Ibid.) “At step one, 

courts examine the facts of the case to determine whether multiple convictions are based 

35 Gonzalez also contends that the enhanced seven-years-to-life sentences imposed 

on counts 7 and 8 must be vacated because the jury did not expressly find that the 

dissuasion underlying his convictions on those counts was accompanied by “threats” (in 

contrast to “force”), as allegedly required by section 186.22, subdivision (b)(4)(C). 

Because we have already concluded that, under Assembly Bill 333, the jury’s section 

186.22(b) gang enhancement findings on counts 7 and 8 cannot stand (section II.B.5., 

ante), we need not address Gonzalez’s additional claim about the need for a jury finding 

under section 186.22, subdivision (b)(4)(C). We express no opinion on this issue and 

leave it to the parties and trial court to address as necessary on remand, should the district 

attorney decide to retry the enhancement allegation under section 186.22, subdivision 

(b)(4)(C).
81

upon a single physical act.” (Id. at p. 312.) “Whether a defendant will be found to have 

committed a single physical act for purposes of section 654 depends on whether some 

action the defendant is charged with having taken separately completes the actus reus for 

each of the relevant criminal offenses.” (Id. at p. 313.) If the convictions involve more 

than one act, the court reaches “step two of the section 654 analysis: whether the [course 

of conduct] involved multiple intents and objectives.” (Id. at p. 316.)

At step two, whether crimes arise from an indivisible course of conduct turns on 

the perpetrator’s intent and objective, not the temporal proximity of his or her crimes. 

(People v. Harrison (1989) 48 Cal.3d 321, 335.) “If all of the offenses were incident to 

one objective, the defendant may be punished for any one of such offenses but not for 

more than one.” (Neal v. State (1960) 55 Cal.2d 11, 19, overruled in part on another 

ground in People v. Correa (2012) 54 Cal.4th 331, 341.) Whether a defendant harbored a 

single intent—and thus a single objective—is a factual question; the applicability of 

section 654 to settled facts is a question of law. (Harrison, at p. 335.) We review the 

record for substantial evidence to support implied findings sufficient to uphold the 

sentence under section 654. (See People v. Osband (1996) 13 Cal.4th 622, 730–731.)

b. Analysis

At trial, Gonzalez requested that his punishment on count 9 be stayed under 

section 654, as related to count 7. For count 9, the trial court imposed a midterm 

sentence of three years and ten years consecutive for the gang enhancement under section 

186.22, subdivision (b)(1)(C), for a total of 13 years concurrent. The court explained that 

it imposed a concurrent midterm sentence because the offense involved “the same course 

of conduct as in Count[s] 7 and 8 and did appear to be an afterthought as the parties were 

leaving the residence.” Regarding count 10 (burglary), the court imposed a consecutive 

sentence “because the purpose of the entry of the home was to commit a theft”—

presumably referring to the intent to steal the incriminating letter.
82

On appeal, Gonzalez relies principally on People v. Bradley (2003) 111 

Cal.App.4th 765 (Bradley) to argue that, because his liability for the robbery committed 

by his coconspirator Juan Garcia was based on the theory that the robbery was a 

foreseeable consequence of the objective of the conspiracy (i.e., “to ensure that the letter 

did not wind up in the hands of the authorities”), Gonzalez may not be separately 

punished for the robbery offense. 

In Bradley, the defendant was a young woman who agreed to participate in a 

scheme to entice a “prosperous looking customer” at a casino into leaving with her “so 

her two male accomplices could rob him” and their plan was for her “to persuade the 

target to take her in his car” and “then get him to stop somewhere along the way.” 

(Bradley, supra, 111 Cal.App.4th at p. 767.) The defendant was convicted of robbery as 

an aider and abettor and of attempted murder as a natural and probable consequence of 

the robbery she aided and abetted. (Id. at pp. 767–769.) The trial court imposed 

consecutive sentences for the two offenses. (Id. at p. 767.) The appellate court explained

that the defendant “had only one objective and one intent—to aid and abet a robbery of 

the victim” (id. at p. 768) and, because she was waiting in another vehicle when the 

victim was shot, she was “unaware that second crime was occurring until after it was 

completed and thus didn’t have an opportunity to prevent or even protest its commission. 

As a result, there simply was no evidence [defendant] exhibited the more dangerous 

mental state warranting a consecutive sentence under [section] 654.” (Id. at p. 771.) The 

court concluded that “[section] 654 denies the trial court discretion to impose consecutive 

sentences on [defendant] for the robbery and attempted murder convictions.” (Id. at 

p. 770.)

We are not persuaded that the present case is like Bradley. Here, Gonzalez wrote 

in his kite that “[o]n the way out [Garcia] grabbed her [purse].” From this admission and 

other evidence concerning Crystal Martinez’s descriptions of the home invasion, the trial 

court could have reasonably inferred that Gonzalez was aware of the robbery as it 
83

occurred and could have done something about it before he and his cohorts left the home. 

Simply put, the trial evidence includes substantial evidence of separate objectives 

harbored personally by Gonzalez during the home invasion. (See People v. Cummins

(2005) 127 Cal.App.4th 667, 682; People v. Nguyen (1988) 204 Cal.App.3d 181, 189–

190.)

Accordingly, we conclude the trial court’s implied determination that section 654 

did not bar multiple punishment for the robbery conviction is sufficiently supported by 

the evidence and the robbery sentence on count 9 need not be stayed.

2. Attempted Murder

Gonzalez contends a post-trial legislative change to section 1170, subdivision (b) 

(hereafter section 1170(b)) requires vacatur of the sentence on count 5. 

For that count, the trial court instructed the jury “James Gonzalez is charged in 

Count 5 with attempted murder. [¶] To prove that he is guilty of attempted murder, the 

People must prove that: [¶] 1. James Gonzalez took at least one direct but ineffective 

step toward killing Curtis Garza; [¶] AND [¶] 2. James Gonzalez intended to kill Curtis 

Garza.” The instruction also defined “direct step,” but did not specify that the jury must 

find more than one direct step. In connection with the allegation attached to count 5 that 

Gonzalez personally used a deadly weapon (§ 12022, subd. (b)(1)), the jury was 

instructed that it needed to determine whether Gonzalez “personally used a deadly 

weapon” during the commission of the attempted murder. 

With respect to the sentence on count 5, the trial court stated it was imposing the 

upper term of nine years. It selected the upper term “because of the violence involved, 

multiple stab wounds, and that the victim was not armed.” 

In October 2021, while Gonzalez’s appeal was pending in this court, Senate Bill 

567 amended section 1170. (Stats. 2021, ch. 731, § 1.3.) Taking effect on January 1, 

2022, section 1170, as amended, includes a new subdivision, (b)(2), which provides,

“The court may impose a sentence exceeding the middle term only when there are 
84

circumstances in aggravation of the crime that justify the imposition of a term of 

imprisonment exceeding the middle term, and the facts underlying those circumstances 

have been stipulated to by the defendant, or have been found true beyond a reasonable 

doubt at trial by the jury or by the judge in a court trial.” (§ 1170, subd. (b)(2).)

The Attorney General concedes that the amendments made by Senate Bill 567 to 

section 1170, subdivision (b) apply to Gonzalez. We agree. (See People v. Flores (2022) 

73 Cal.App.5th 1032, 1038–1039 (Flores); see also People v. Superior Court (Lara) 

(2018) 4 Cal.5th 299, 308.) 

Regarding the remedy, Gonzalez contends that we should vacate his sentence and 

remand for a new sentencing hearing because, in the absence of a jury finding, his upperterm sentence on count 5 “cannot stand no matter what the evidence may show in the 

record.” By contrast, the Attorney General argues that no remand for resentencing is 

necessary because the record shows, beyond a reasonable doubt, that the jury, if properly 

instructed, would have found true the aggravating factors relied on by the trial court. 

Because we otherwise vacate Gonzalez’s sentence entirely and remand the matter for full 

resentencing (see Navarro, supra, 40 Cal.4th at p. 681; Buycks, supra, 5 Cal.5th at 

p. 893), we need not address the dispute between the parties regarding whether the 

absence of a jury finding on the circumstances in aggravation here requires a remand for 

resentencing or was harmless error. 

Furthermore, we need not address the Attorney General’s assertion that, on 

remand, the district attorney should be “given the election of proceeding under the new 

version of Penal Code section 1170, subdivision (b), or accepting resentencing.” Rather, 

we direct the trial court at Gonzalez’s resentencing to impose a new sentence on count 5 

in accordance with Senate Bill 567. We express no opinion regarding the district 

attorney’s potential elections at resentencing or the trial court’s application of new 

section 1170, subdivision (b), leaving it to the trial court to determine Gonzalez’s

appropriate sentence in the first instance. (See Flores, supra, 73 Cal.App.5th at p. 1039.)
85

F. Summary of Conclusions

For the benefit of the parties and trial court, we summarize our conclusions:

Count 1 (street terrorism) is reversed for instructional error and, on remand, the 

district attorney may elect to retry Gonzalez this count. (See section II.B.4., ante.)

Count 11 (criminal threats) is reversed for instructional error and, on remand, the 

district attorney may elect to retry Gonzalez on this count as charged or accept a 

reduction of the conviction to the lesser offense of attempted criminal threat. (See 

section II.B.2., ante.)

Counts 12 and 13 (conspiracy) are reversed for instructional error and, on remand, 

the district attorney may either retry both counts 12 and 13 or accept the jury’s conviction 

and any true findings on attached allegations on one of those two counts, after which the 

other count and its attached allegations shall be dismissed. (See section II.B.1., ante.)

The convictions on the remaining counts are affirmed.

The true findings on the gang enhancement allegations attached to counts 5–11

(§ 186.22, subd. (b)) are reversed. On remand, the district attorney may retry these gang 

enhancement allegations under the law as amended by Assembly Bill 333. (See section 

II.B.5., ante.)

Gonzalez’s sentence is vacated entirely, and the trial court must fully resentence 

Gonzalez upon the conclusion of any further proceedings on remand. (See section 

II.B.1.c., ante.) 

Regarding the sentence on count 5, we direct the trial court at Gonzalez’s 

resentencing to impose a new sentence on that count under the law as amended by Senate 

Bill 567. (See section II.E.2., ante.)

As the gang enhancements attached to counts 5–11 have been reversed, they 

cannot be used to enhance Gonzalez’s sentence on those counts at his resentencing absent 

retrial and in accordance with the jury findings at that proceeding. 
86

III. DISPOSITION

The convictions on counts 1, 11, 12, and 13 are reversed. The true findings on the 

gang enhancement allegations attached to counts 5–11 are reversed. The convictions on 

the remaining counts and the true findings on the remaining enhancements are affirmed. 

Gonzalez’s sentence is vacated in its entirety, and the matter is remanded to the 

trial court for a possible retrial on counts 1, 11, 12, and/or 13 and the gang enhancement 

allegations (Pen. Code, § 186.22, subd. (b)) attached to counts 5–11. As to counts 12 and 

13 (conspiracy), if the prosecutor elects not to retry those counts, the trial court shall 

provide the prosecutor the opportunity to accept the jury’s previous conviction and true 

allegation findings on either count 12 or count 13 and then reinstate the conviction and 

allegation findings on the count the prosecutor accepts and dismiss the other count and its 

attendant allegations. If the prosecutor elects not to retry Gonzalez, or at the conclusion 

of any retrial, the trial court is directed to resentence Gonzalez in a manner consistent 

with this opinion.
______________________________________

Danner, J.

WE CONCUR:

____________________________________

Elia, Acting P.J.

____________________________________

Grover, J.

H046836

People v. Gonzalez