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Filed 2/6/24 P. v. Franco CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

RICKY CAMPOS FRANCO,

Defendant and Appellant.

E079952

(Super.Ct.No. RIF1408130)

OPINION

APPEAL from the Superior Court of Riverside County. F. Paul Dickerson III, 

Judge. Affirmed. 

Jason L. Jones, under appointment by the Court of Appeal, for Defendant and 

Appellant.

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

General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson, Paige B. 

Hazard, Felicity Senoski and Elana W. Miller, Deputy Attorney Generals, for Plaintiff 

and Respondent.
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In 2014, defendant shot three people. In 2019, a jury convicted defendant of 

three counts of attempted voluntary manslaughter. (Pen. Code, §§ 192, subd. (a), 664.)1

The jury found the gang enhancement allegations untrue. (§ 186.22, subd. (b).) At 

defendant’s original sentencing hearing, the trial court sentenced defendant to prison for 

a term of 25 years, eight months. 

In defendant’s first appeal, in 2021, this court reversed defendant’s sentence and 

directed the trial court to grant defendant’s motion for counsel for the sentencing 

hearing and then resentence defendant. (People v. Franco (May 26, 2021, E073793) 

[nonpub. opn] [2021 WL 2125885, *12] (Franco).)2 Upon remand, in October 2022, 

the trial court again sentenced defendant to prison for a term of 25 years, eight months. 

In January 2022, section 1109 was enacted, which specifically provides for 

bifurcation of gang enhancement allegations. (§ 1109, subd. (a).) Defendant contends 

his convictions should be reversed so that he can have a trial on the shootings that is not 

tainted with gang evidence. We affirm. 

FACTS

While selling marijuana in a fast-food parking lot, defendant’s nephew (Nephew) 

was robbed by two men (the robbers). Afterward, the robbers’ cousin (Cousin) began 

sending Nephew death threats. Defendant and others drove around until they saw 

1

 All further statutory references are to the Penal Code unless otherwise 

indicated.

2

 We cite to our unpublished opinion in this case for factual and procedural 

background purposes. (In re Nelson (2020) 56 Cal.App.5th 114, 119, fn. 2; People v. 

Heard (2022) 83 Cal.App.5th 608, 613, fn. 3.)
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Cousin and the robbers in another car. While in their separate vehicles, defendant shot 

at Cousin and the robbers. At trial, defendant said he did not “throw up a gang sign” 

during the shooting and neither did Cousin and the robbers. Defendant asserted the 

shooting “ha[d] nothing to do with gangs”; “[i]t just ha[d] to do with family.” (Franco, 

supra, 2021 WL 2125885, *1-4.)

The jury found defendant not guilty of the greater charges of three counts of 

attempted murder. (§§ 187, subd. (a) & 664.) The jury found untrue the allegations that 

(A) the three attempted killings were willful, deliberate, and premeditated (§ 189); and 

(B) the three attempted killings were committed for the benefit of, at the direction of, or 

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

On remand in the trial court for resentencing, defendant did not raise the issue of 

bifurcating the gang enhancement allegations, which had been found untrue during the 

jury trial.3

DISCUSSION

Defendant contends section 1109 applies retroactively so he should have a retrial 

on the 2014 shootings. There is a split of authority on this issue, and it is currently 

pending before our Supreme Court.4 A majority of this court has held that section 1109 

is not retroactive (People v. Boukes (2022) 83 Cal.App.5th 937, 946-948, review 

3

 The People contend defendant forfeited the bifurcation issue by failing to raise 

it in the trial court. We choose to address defendant’s contention. 

4

 The lead case at the Supreme Court is People v. Burgos (2022) 77 Cal.App.5th 

550, review granted July 13, 2022, S274743.) The Supreme Court declined to decide 

the issue in People v. Tran (2022) 13 Cal.5th 1169, 1208 (Tran).
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granted December 14, 2022, S277103), although Justice Slough disagreed with that 

holding (id. at p. 949 (conc. opn. of Slough, J.)). We need not delve into the issue in 

this case. 

A majority of this court has also held that, when the sentence is the only part of a

judgment that is reversed, then, on remand, the trial court lacks jurisdiction to 

readjudicate gang enhancements (People v. Lopez (2023) 93 Cal.App.5th 1110, 1119-

1120, review granted Nov. 15, 2023, S281488); however, Justice Raphael disagreed 

with that holding (id. at pp. 1121, 1123 (dis. opn. of Raphael, J.)). In the instant case, 

on remand, the only issue before the trial court was resentencing. However, we need 

not address the split regarding jurisdiction. 

If the Supreme Court decides that section 1109 is not retroactive or that the trial 

court lacks jurisdiction over the issue at resentencing, then there was no error. 

However, if section 1109 is retroactive and applies on remand for resentencing, then the 

error is harmless. We apply the prejudice standard set forth in Watson (Tran, supra, 13 

Cal.5th at p. 1209), which requires reversal when “it is reasonably probable that a result 

more favorable to the appealing party would have been reached in the absence of the 

error.” (People v. Watson (1956) 46 Cal.2d 818, 836.)

Section 1109 does not mandate exclusion of gang evidence in the non-gang 

portion of a bifurcated proceeding. Rather, gang evidence may be admitted “to prove 

other facts related to a crime.” (Tran, supra, 13 Cal.5th at p. 1208.) Defendant 

presented a theory of self-defense. The prosecutor used the gang evidence to counter 

that theory, asserting it was a gang shooting—not self-defense. 
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During opening statements, the prosecutor told the jury, “They don’t call the 

police to say ‘Hey, I was robbed and these are the guys that robbed us, and it was at 

gunpoint.’ What you’ll find is that this family took it into their own hands and went 

gangster, right, because that’s what they know.” The prosecutor continued, “You’re 

going to learn that three young men were very seriously hurt because these men decided 

to go to gangster [sic].” 

During closing argument, the prosecutor said, “[The shooting] makes no sense to 

us, but in their world it—it makes sense. That’s what you do. . . . [¶] . . . [¶] . . . And 

then they want to tell you this is . . . because they were afraid or they were scared. . . . 

They’re not afraid.” The prosecutor continued, “This was punishment for [the robbers’]

disrespect. You know, how can [defendant’s] family, these East Side Wilmas OG 

gangsters, keep selling drugs in Moreno Valley if they can get punked by a bunch of 

kids and get their drugs stolen? You can’t do that. You have to step up and you have to 

punch back; right? What kind of . . . respect are you going to have as an OG gangster 

from Wilmington? You’re not. You’re not going to be able to hit county jail and run 

things if you are seen as a punk. That’s why this happened.”

The prosecutor’s opening statement and closing argument relied on the theory 

that the shootings were motivated by defendant’s desire for respect within the gang 

culture, thereby countering defendant’s theory of self-defense. Accordingly, if a

bifurcation motion had been granted, then the jury likely would have heard gang 

evidence at the trial on the attempted killings because the gang evidence supported the 

prosecutor’s theory that the shootings were not conducted in self-defense. 
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Also, the prosecutor used the gang evidence to address the issue of witness 

credibility. The evidence of defendant’s gang involvement provided insight into the 

credibility of Nephew’s friend, Damian Nava (Nava), who participated in the shootings. 

Nava’s interview with law enforcement reads, in relevant part:

“[Sheriff’s Deputy:] And right now I’m going to help you get through this, but 

you don’t need to protect [defendant]. You know [defendant]?

“[Nava:] Yeah.

“[Sheriff’s Deputy:] Okay? He’s crazy, man. Okay? What happened, man? 

You tell me your side because you’re here for a reason, and nobody out there is going to 

care about what you have to say. That’s why I’m talking to you. Okay? What 

happened, man?

“[Nava:] I want to tell you but I just don’t want these guys to find out.

“[Sheriff’s Deputy:] They’re not going to find out, just me and you. They’re in 

jail. You know they’re in jail, right?

“[Nava:] (Nods head yes)

“[Sheriff’s Deputy:] Do you know for what?

“[Nava:] Yeah, I know for what.

“[Sheriff’s Deputy:] For what?

“[Nava:] For attempted murder or whatever it is.” 

The sheriff’s deputy told Nava, “Don’t protect people that you have nothing to 

do with. . . . Tell me what went down. They’re already in jail and I got—I have a great 
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idea about what [other people involved in the crimes did].” Nava told the deputy details 

of the shootings. Then the conversation continued:

“[Sheriff’s Deputy:] I’m going to show you some pictures. Okay?

“[Nava:] I don’t want these guys to know.

“[Sheriff’s Deputy]: Listen, bro. Right now it’s me and you talking. Okay? 

These guys are in jail. Okay? I already know Robert has something to do with it. 

Okay? And I’m going to find out who Packman is, so I got to show you pictures and 

then we’ll talk more. Okay?

“[Nava]: But I just don’t want these guys to find out that I’m the one telling you 

all this.” 

Nava knew defendant was in jail. Nevertheless, three times Nava said he did not 

want defendant to learn that Nava told the deputy details of the crime. For the jury to 

understand Nava’s fear, the jury needed some understanding of defendant’s status in the 

Mexican Mafia. The fact that Nava risked implicating a shot caller in the Mexican 

Mafia gave Nava’s statements credibility because one would not make such a statement 

lightly. 

Defendant interprets the transcript as Nava not being fearful of defendant’s 

involvement in the Mexican Mafia because Nava told the deputy details of defendant’s 

crimes after the deputy confirmed that defendant was in jail. Therefore, defendant 

contends the Mexican Mafia evidence was not probative on the issue of credibility. We 

interpret the transcript differently. In our reading, Nava remained fearful of defendant, 

while defendant was in jail; however, Nava was persuaded that law enforcement already 
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had enough evidence to arrest defendant, such that Nava could speak to the deputy 

without defendant learning that it was Nava who gave details to the police. 

In closing arguments, the prosecutor argued, “Initially [Nava] is not telling the 

truth [in the police interview]; right? But then he comes to that point where [Deputy]

Magana confronts him and he says, Okay. Okay. You know, I want to tell you but I 

don’t want these guys to find out. And if you see him and you take a look at him, he’s 

scared. . . . [¶] Of course, he’s afraid. But watch the video and you will see that he—

that he is a scared kid. Now he’s going to find himself going to county jail with them, 

and you already know that [defendant] was running things inside. I can’t imagine how 

scared that kid was.” 

The prosecutor’s argument explained that Nava had lied, but when Nava was 

visibly scared, he was telling the truth, and Nava’s fear was rooted in defendant’s gang 

status. Therefore, the gang evidence was relevant to credibility. 

In sum, if a bifurcation motion had been granted, then evidence of defendant’s 

gang involvement would still have been presented to the jury for purposes of countering 

defendant’s theory of self-defense and supporting Nava’s credibility. To the extent 

there was an error in not bifurcating, it is not reasonably probable that a result more 

favorable to defendant would have occurred absent the error. Any error in not 

bifurcating was harmless. 
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DISPOSITION

The judgment is affirmed. 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

J.

We concur:

RAMIREZ

P. J.

MENETREZ

J.