Filed 6/1/22 P. v. Garcia CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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 This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSE EPIFANIO GARCIA, JR.,

Defendant and Appellant.

F078249

(Kern Super. Ct. No. BF170661A)

ORDER MODIFYING OPINION AND 

DENYING REHEARING

[CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the opinion filed herein on May 5, 2022, be modified as follows:

1. The disposition on page 25 is deleted and the following inserted:

DISPOSITION

The judgment is reversed with respect to the enhancements and 

convictions under former section 186.22, subdivisions (a) and (b)(1) 

and sections 190.2, subdivision (a)(22), 12022.53, subdivision (e), and 

12022.7, subdivision (a). The judgment is affirmed in all other 

respects. The matter is remanded for further proceedings consistent 

with this opinion.

2. At the end of the disposition on page 25, add as footnote 7 the following:

7 We express no opinion on the constitutionality of Assembly 

Bill 333. This issue was not raised until the People’s petition for 

rehearing, filed after submitting supplemental briefing regarding the 

applicability of Assembly Bill 333, that did not raise the issue. “[A]s a 
2.

court of review, we will not ‘ “submit to piecemeal argument and will 

not consider on petition for rehearing questions not previously raised” ’

absent extraordinary circumstances, which are not present in the instant 

case.” (J.J. v. County of San Diego (2014) 223 Cal.App.4th 1214, 

1230, fn. 5; see Epperson v. Rosemond (1950) 100 Cal.App.2d 344, 

348 [petition for rehearing on questions not previously raised rejected 

because party may not change the basis of an attack on the judgment 

through piecemeal argument].)

This modification changes the judgment.

The People’s petition for rehearing is hereby denied.

HILL, P. J.

WE CONCUR:

POOCHIGIAN, J.

DETJEN, J.
Filed 5/5/22 P. v. Garcia CA5 (unmodified opinion)

Opinion following rehearing

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSE EPIFANIO GARCIA, JR.,

Defendant and Appellant.

F078249

(Super. Ct. No. BF170661A)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. John S. Somers, 

Judge.

Cliff Gardner, under appointment by the Court of Appeal, for Defendant and 

Appellant.

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

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

Vasquez, Robert Gezi, Amanda D. Cary and Lewis A. Martinez, Deputy Attorneys 

General, for Plaintiff and Respondent.

-ooOoo-
2.

Appellant Jose Epifanio Garcia, Jr., appeals his convictions following a jury trial. 

Garcia was found guilty of first degree murder (Pen. Code, § 187; count 1)

1 of Rodolfo 

Garcia;

2 assault with a firearm on Yesenia, Joel, and Maria (§ 245, subd. (a)(2); counts 3, 

5, 7, respectively); possession of a firearm by a felon (§ 29800, subd. (a)(1); count 8); and 

participating in a street gang (former § 186.22, subd. (a); count 9). The jury found true

enhancements for lying in wait (§ 190.2, subd. (a)(15)), being an active participant in a 

criminal street gang (§ 190.2, subd. (a)(22)), committing the offense to benefit a criminal 

street gang (former § 186.22, subd. (b)(1)), discharging a firearm in the commission of 

the offense (§ 12022.53, subd. (d), and personally using a firearm in a gang offense 

causing injury or death (§ 12022.53, subd. (e)(1)) as to count 1; benefiting a street gang 

(former § 186.22, subd. (b)(1)), personally using a firearm (§ 12022.5, subd. (a)), and 

inflicting great bodily injury (§ 12022.7, subd. (a)) with respect to Joel as to counts 3, 5, 

7, and 8; and benefiting a gang (former § 186.22, subd. (b)(1)) as to count 8. Garcia was 

found not guilty of attempted murder of Yesenia, Joel, and Maria (§§ 664, 187, subd. (a); 

counts 2, 4, 6, respectively).

For the reasons set forth below, we affirm in part and reverse in part.

FACTUAL AND PROCEDURAL BACKGROUND3

Early in the morning on December 2, 2017, police discovered Andy Medina had 

been shot and killed. Medina was alleged to be an active member of Lamont 13, a

criminal street gang, who went by the nickname “Viper” and was close friends with 

Garcia.

1 Undesignated statutory references are to the Penal Code.

2 For clarity, we refer to appellant by his last name and Rodolfo Garcia by his first name. 

Pursuant to California Rules of Court, rule 8.90, we refer to victims by their first names. No 

disrespect is intended.

3 We provide a general review of the facts and relevant evidence in this section. 

Additional facts relating to any specific argument raised in this appeal will be included in the 

discussion of that argument.
3.

Later in the day on December 2, 2017, Garcia approached Yesenia and Rodolfo at 

a grocery store. Rodolfo was wearing red pants and a hat with the letter “A” on it. 

Garcia initially stood in the entrance to the store, looking around, before asking Rodolfo 

and Yesenia whether they had seen a little boy. The two responded they had not. As 

Rodolfo and Yesenia exited the store, Garcia approached again and asked for a lighter 

and a cigarette. Rodolfo responded that he did not have those items. He and Yesenia

then began to walk away. At this point, Garcia stated, “Oh, hold on” and took out a gun. 

Another man also approached with a gun, and both began shooting at Rodolfo. Rodolfo 

attempted to flee but was shot dead. These incidents were caught on video surveillance 

and played to the jury.

The shooting was allegedly a retaliation for the killing of Medina. Rodolfo was 

alleged to be a former member of Arvina 13, a criminal street gang based in Arvin. 

Rodolfo had known gang tattoos on his knuckles, hands, chest, and stomach. However, 

Rodolfo had allegedly left the gang and moved to Lamont in 2014. During the police 

investigation, a cell phone found with Garcia contained messages from December 2, 

2017, stating, “They shot and killed Viper,” confirming Garcia was in Lamont near the 

time of the shooting, asking Garcia if “[he got] the name of ... who got hit,” and 

instructing Garcia to destroy the phone.

In addition to the shots that struck and killed Rodolfo, some of the shots fired

injured Joel and Maria as they were walking to a nearby restaurant. Maria suffered a cut 

to her face while Joel was struck more directly causing a broken jaw and additional facial 

injuries.

The police located six similar nine-millimeter shell casings in front of the nearby 

restaurant. They also recovered two bullet fragments from the area. Additional bullet 

fragments, from a different caliber weapon were later found in Rodolfo’s body.

When Garcia was eventually arrested, he was found with a semiautomatic firearm. 

The shell casings located at the scene of the shooting were determined to have been fired 
4.

from this gun. However, none of the bullet fragments located at the scene or within 

Rodolfo’s body could be matched to the weapon.

To prove the gang elements of the charges, the prosecution sought to show that 

Garcia and Medina were both friends and members of the same gang. A photograph 

found in Garcia’s apartment showed Garcia with Medina. Garcia also allegedly told a 

police officer that he and Medina grew up together and were like family. An officer 

testified to an incident in 2015 where Garcia was contacted outside Medina’s home and 

identified a photograph of Garcia with Medina where both were making an “L” sign with 

their left hands.

Prosecutors also attempted to prove Garcia’s connection to a gang through several

additional avenues. They showed he made a call from prison where he expressed

knowledge of gang culture by discussing a gang member named “Shy Boy” that was in 

protective custody. During that call Garcia stated his housing pod lacked a letter that 

would reference “LFS,” a shorthand reference to Lamont Familia Sureño, which is an 

alleged subset of Lamont 13. They showed he had been arrested and convicted in 2008 

for carrying a concealed weapon, alleging he had stated at the time that his gang moniker 

was “Joker” and that he had previously been jumped into a Lamont gang. An officer 

testified Garcia had been seen in 2015 associating with a known Lamont 13 member 

named Angel Urquidez. Another officer testified that he contacted Garcia during a traffic 

stop in 2017, saw Garcia had tattoos related to Lamont 13, and found papers and 

drawings in the trunk of the vehicle Garcia was driving containing gang art and 

references, including “Lamont, sureño, lobster, Kern lobster, KC” and “93241,” all of 

which referred to Lamont 13. Based on this evidence, the gang expert opined that Garcia 

was an active member of Lamont 13 at the time of the shooting.

Medina’s gang connection was documented in a similar manner. An officer 

testified to multiple contacts with Medina, confirmed his moniker was “Viper,” and 

confirmed that several of the prior police contacts with Medina related to investigations
5.

of Lamont 13. Pictures from Medina’s social media accounts showed gang references, 

including one for “LFS” or Lamont Familia Sureño. At the time of his death, Medina 

was considered an active member of Lamont 13.

The majority of the remaining gang evidence came in the form of expert testimony 

regarding the nature of gangs in Lamont, prior criminal gang activity, and the effects of 

gang activities on the community. Testimony showed that Lamont 13 is a gang in 

Lamont with two subsets known as Varrio Chico Lamont and Lamont Familia Sureño. 

The gang engages in regular illegal activities including murder and illegal possession of 

firearms. Members of Lamont 13 could belong to either the Varrio Chico Lamont or 

Lamont Familia Sureño subsets but did not need to be part of either.

Lamont 13’s main rival gang is Arvina 13. A Lamont 13 member who saw a rival 

Arvina 13 member in their territory would be expected to, based on the rules of the gang, 

confront that person in some manner. Moreover, one would expect that a Lamont 13 

member who saw another individual in public in their territory wearing a hat with an “A” 

and having Arvina Poor Side4tattoos would be working to benefit Lamont 13 if they 

attacked that person in part because such public attacks create fear in the community and 

allow the gang more freedom to operate.

Evidence also showed that individuals named Ricardo Ramirez, Luis Medina, and 

Javier Torres were members of Lamont 13 and had previously been convicted of criminal 

activities occurring on behalf of the gang, including a shooting that occurred in 2016. 

Another group of individuals, Dennis Ruth, Daniel Catalan, Eddie Catalan, and Roberto 

Rodriguez were identified as active members of Lamont 13 in 2014 who were convicted 

of offenses such as attempted manslaughter and assault with a deadly weapon on behalf 

of the gang, based on a robbery that occurred in 2014. Another individual, Victor Vega, 

4 Arvina 13 is also referred to as Arvina Poor Side.
6.

was identified as a Lamont 13 member with ties to the Varrio Chico Lamont subset who 

had been convicted of attempted murder with a gang enhancement in 2013.

As noted above, Garcia was convicted of all charges brought against him, save for 

the attempted murder charges, and all enhancements alleged. Garcia was sentenced to 

life without the possibility of parole, plus 25 years to life, plus 32 years and 8 months. 

This appeal timely followed.

DISCUSSION

In his initial briefing, Garcia raises five arguments against various aspects of his 

conviction, primarily focusing upon the gang enhancements imposed. In the first, Garcia 

argues the state failed to demonstrate that two predicate offenses were committed by 

members of the same gang as Garcia. Garcia principally argues that the prosecution 

failed to tie the La Familia Sureño and Varrio Chico Lamont subsets to Lamont 13. 

Second, Garcia argues the prosecutor failed to prove beyond a reasonable doubt that 

Garcia personally caused the death of Rodolfo or the great bodily injury to Joel. Third, 

Garcia argues his counsel was ineffective in failing to object to certain alleged hearsay 

evidence supporting the gang expert’s opinions. Fourth, Garcia contends a conflict in the 

jury instructions on motive impermissibly lowered the state’s burden of proof with 

respect to the gang participation charge. Finally, Garcia argues that section 190.2, 

subdivision (a)(15) is constitutionally infirm. The People concede a portion of Garcia’s 

second argument, acknowledging that the section 12022.7, subdivision (a) enhancement

for causing great bodily injury to Joel cannot stand. The People generally oppose 

Garcia’s remaining arguments.

In supplemental briefing submitted in conjunction with this court’s grant of 

Garcia’s motion for rehearing, Garcia raises additional gang-related concerns based on 

recently passed Assembly Bill No. 333 (2021–2022 Reg. Sess.) (Assembly Bill 333),

which modified the requirements for proving gang enhancements. Garcia asserts these 

changes apply retroactively and contends that several gang-related charges must be 
7.

vacated, specifically, “(1) the count [9] gang participation conviction in violation of 

[former] section 186.22, subdivision (a)[](2)[,] the true finding on the section 190.2, 

subdivision (a)(22) gang special circumstance associated with the count [1] murder 

charge, (3) the true findings on the section 182.22, subdivision (b) gang enhancements in 

counts [1], [3], [5], [7], and [8] and (4) the gang-related section 12022.53, subdivision (e) 

firearm enhancement in count [1].” In response, the People concede retroactivity but 

argue remand is unnecessary “because the jury would have convicted appellant of the 

substantive gang charge and found the gang enhancement and special circumstance to be 

true even under [Assembly Bill] 333’s more stringent new requirements.” We ultimately 

agree with the parties that the modifications are retroactive and with Garcia that remand 

is necessary on this supplemental issue. As the People’s ability to retry Garcia turns on 

whether they obtained a proper conviction under the prior law, we begin by reaffirming 

our analysis of the issues raised in Garcia’s initial briefing before turning to the effect of 

Assembly Bill 333.

Alleged Prunty5 Error Regarding Evidence of Predicate Crimes

Garcia challenges the evidence offered to prove the predicate crimes required for 

conviction under former section 186.22, subdivisions (a) and (b), and section 190.2, 

subdivision (a)(22). At the time of Garcia’s trial, these gang-related statutes each 

required proof of two predicate offenses committed either by members of the same gang 

as the defendant or by members of a gang affiliated with the defendant’s gang. In this 

case, Garcia argues the prosecutor proved, at best, that he was a member of Lamont 

Familia Sureño but that the predicate offenses were committed by members of Varrio 

Chico Lamont or Lamont 13. Garcia further argues the prosecutor provided no evidence 

tying these three gangs together.

5 People v. Prunty (2015) 62 Cal.4th 59 (Prunty).
8.

Standard of Review and Applicable Law

On each relevant count, the jury found Garcia committed the charged offense to 

further the activities of a street gang under section 190.2, or “for the benefit of, at the 

direction of, or in association with, Lamont 13, a criminal street gang and with the 

specific intent to promote, further or assist in criminal conduct by gang members, within 

the meaning of [former] Penal Code section 186.22(b)(1),” or as a participant in a street 

gang. A criminal street gang under this statutory scheme is “any ‘ongoing organization, 

association, or group of three or more persons’ that shares a common name or common 

identifying symbol; that has as one of its ‘primary activities’ the commission of certain 

enumerated offenses; and ‘whose members individually or collectively’ have committed 

or attempted to commit certain predicate offenses.” (Prunty, supra, 62 Cal.4th at p. 67, 

quoting former § 186.22, subd. (f).)

“In reviewing a sufficiency of evidence claim, the reviewing court’s role is a 

limited one. ‘ “The proper test for determining a claim of insufficiency of evidence in a 

criminal case is whether, on the entire record, a rational trier of fact could find the 

defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the 

evidence in the light most favorable to the People and must presume in support of the 

judgment the existence of every fact the trier could reasonably deduce from the 

evidence.” ’ ” (People v. Smith (2005) 37 Cal.4th 733, 738–739.)

Sufficient Evidence Connects Garcia and Those Connected to the Predicate 

Offenses to Lamont 13

In Prunty, the California Supreme Court held that “where the prosecution’s case 

positing the existence of a single ‘criminal street gang’ for purposes of [former] 

section 186.22[, subdivision ](f) turns on the existence and conduct of one or more gang 

subsets, then the prosecution must show some associational or organizational connection 

uniting those subsets.” (Prunty, supra, 62 Cal.4th at p. 71.) This showing demands more 

than a shared ideology or philosophy, a common name, a common enemy, and/or 
9.

common symbols. (Id. at pp. 70–72.) “The prosecution’s evidence must permit the jury 

to infer that the ‘gang’ that the defendant sought to benefit, and the ‘gang’ that the 

prosecution proves to exist, are one and the same.” (Id. at p. 75.) Thus, the prosecutor 

must adduce evidence that “allow[s] the jury to reasonably infer that the ‘criminal street 

gang’ the defendant sought to benefit—or which directed or associated with the 

defendant—included the ‘group’ that committed the primary activities and predicate 

offenses.” (Id. at p. 76.)

Garcia argues that the evidence suggesting he was part of an alleged Lamont 13

subset demonstrates the prosecution’s theory turned on the existence and conduct of one 

or more gang subsets. We do not agree. Nothing about the existence of a potential gang 

subset necessitates the prosecution allege that subset is the gang Garcia represents. 

Indeed, in Prunty itself, despite evidence that multiple Norteño subsets existed in the 

Sacramento area, the court found the prosecution properly sought to prove that Prunty 

acted “to benefit the Sacramento-area Norteños” generally, and not any particular subset. 

(Prunty, supra, 62 Cal.4th at p. 82.) Having made this election, the prosecution then 

relied on evidence of crimes committed by various gang subsets to prove the predicate 

offense requirements, without adequately demonstrating those subsets were part of the 

Sacramento-area Norteño gang. (Id. at pp. 82–83.)

Similar to Prunty, here the prosecutor sought to prove Garcia was acting as part of 

and to benefit the larger Lamont 13 gang, and not any particular subset. The prosecutor 

elicited a direct opinion that Garcia was a Lamont 13 member. Indeed, upon a review of 

the record, the primary focus of the prosecutor’s questioning and the primary opinions 

and facts elicited focused upon Lamont 13 generally, and not any particular subset. 

While subset evidence was elicited and discussed at times, it was not utilized as the basis 

for any specific gang findings but, much more commonly, as additional background 

evidence on the nature of the various activities conducted by Lamont 13 members and the 

associations between them. Additional evidence in the form of tattoos associated with 
10.

Lamont 13, Garcia’s statement that he was in a Lamont gang, gang art associated with 

Lamont 13 generally, and direct contact with alleged Lamont 13 members further 

supported the prosecutor’s position. Upon review of the record, we conclude this 

evidence was sufficient for a rational trier of fact to conclude Garcia was part of 

Lamont 13, exclusive of any suggestion he may have also been part of an alleged subset 

called Lamont Familia Sureño.

Distinguishing this case from Prunty, the prosecution further introduced evidence 

of predicate offenses committed by others classified as Lamont 13 members and 

supported that assertion with evidence of some combination that the perpetrators selfidentified as Lamont 13, possessed Lamont 13 tattoos, or had been previously classified 

as Lamont 13 members. While Garcia now complains that the prosecution introduced no 

evidence showing the Lamont Familia Sureño subset committed legally acceptable 

predicate offenses, his argument again assumes the prosecution must proceed on a theory 

of related subsets where evidence of subsets exists. Similarly, while Garcia suggests that 

the relevant gang was Medina’s potential subset of Lamont Familia Sureño, he fails to 

counter the additional evidence showing Medina was a part of Lamont 13 generally.

Prunty itself demonstrates there is no obligation to proceed on a subset theory just 

because subset evidence may exist, as the court noted the expert in that case failed to 

demonstrate “that the subsets that committed the predicate offenses, or any of their 

members, self-identified as members of the larger Norteño association that the defendant 

sought to benefit.” (Prunty, supra, 62 Cal.4th at pp. 82–83.) The unmistakable point of 

the Prunty court’s discussion is that the prosecution may proceed on the theory that the 

relevant gang is Lamont 13 generally, where the evidence supports this conclusion. 

Consistent with this analysis, where the evidence is sufficient to demonstrate that 

members of Lamont 13 committed the predicate offenses, we see no reason why the 

prosecution cannot rely on that evidence to support its theory.
11.

Here, the evidence and opinions concerning the predicate offenses showed that the 

persons committing them were part of Lamont 13 when they committed their crimes, not 

some particular subset. Having already demonstrated Garcia was also a member of 

Lamont 13, this evidence demonstrated there were at least three individuals, associating 

with the same gang, who had participated in criminal activity in support of that gang. 

This evidence was sufficient to satisfy the contested portion of the statutory scheme’s 

definition for a criminal street gang. As such, there is no conflict in the evidence 

presented qualifying as Prunty error.

Personal Use of a Firearm and Great Bodily Injury Enhancements

Garcia’s second argument focuses on the enhancement to the murder charge 

alleging Garcia personally and intentionally discharged a firearm which proximately 

caused Rodolfo’s death and the similar enhancement to the assault charge related to Joel 

alleging Garcia personally inflicted great bodily injury on Joel. Garcia contends there is 

insufficient evidence to support these enhancements because no bullet fired from his gun 

can be connected to the injuries caused. The People concede the great bodily injury 

enhancement cannot stand but argue that the enhancement related to the murder charge is 

properly supported.

Applicable Law

To prove the great bodily injury enhancement to the assault, the People were 

required to show Garcia “personally inflict[ed] great bodily injury on” Joel. (§ 12022.7, 

subd. (a).) As the People acknowledge, this enhancement carries with it a requirement of 

direct causation, meaning the accused must actually commit the great bodily injury. (See 

People v. Ollo (2021) 11 Cal.5th 682, 688 [noting that in assault context that personal 

infliction of injury requires the defendant to administer a blow on the victim, not through 

an intermediary, in a manner that is not minor, trivial, or insubstantial].) Nor can one 

who aids and abets another in causing the injury be subjected to the enhancement. (Id. at

p. 692.)
12.

With respect to the discharge of a firearm enhancement to the murder charge, the 

People were required to show Garcia “personally and intentionally discharge[d] a firearm 

and proximately cause[d] great bodily injury ... or death” to Rodolfo. (§ 12022.53, 

subd. (d).) “Proximately causing and personally inflicting harm are two different things. 

The Legislature is aware of the difference. When it wants to require personal infliction, it 

says so.” (People v. Bland (2002) 28 Cal.4th 313, 336 (Bland).) “A person can 

proximately cause a gunshot injury without personally firing the weapon that discharged 

the harm-inflicting bullet.” (Id. at p. 337.)

The Evidence Supports the Jury’s Finding on Proximate Cause

As noted, the People concede that the evidence in this case does not demonstrate 

that Garcia actually caused the injury to Joel. We accept this concession. Only one 

bullet struck Joel and there is no record evidence tying Garcia to that bullet. 

Accordingly, the conviction under section 12022.7, subdivision (a) for personally 

inflicting great bodily injury on Joel cannot stand.

The People contend, however, that a different outcome exists for the personal use 

of a firearm enhancement attached to Rodolfo’s death. Relying on the analysis in Bland,

the People contend that Garcia did personally discharge a firearm and that his conduct 

proximately caused great bodily injury or death to Rodolfo. The People rely, in part, on 

the fact that Rodolfo suffered multiple gunshot wounds, some of which did not result in 

the recovery of bullet fragments, and the related fact that two gunmen were involved, 

leaving some wounds unaccounted for. The People further state that, at a minimum, the 

evidence shows that Garcia and another individual both fired at Rodolfo and that at least 

three bullets fired by the unknown individual were lethal wounds.

Garcia contends that this line of analysis cannot succeed for two primary reasons. 

First, although acknowledging that a proximate cause finding could be supported under 

Bland’s logic, Garcia argues the prosecution in this case specifically abandoned such an 

argument when it agreed the court did not need to instruct the jury on proximate cause 
13.

and later argued that at least one of two lethal bullets that were not recovered came from 

Garcia’s gun. Second, relying in part on a claim that the evidence showed the unknown 

accomplice shot first, Garcia argues there is insufficient evidence the injury or death 

would have occurred absent Garcia’s conduct. We are not convinced by either of 

Garcia’s arguments.

Although Bland did not involve a complex factual analysis, its discussion of the 

meaning of proximate cause with respect to section 12022.53 in the context of multiple 

unknown shooters provides substantial insight into the resolution of this case. In Bland,

two shooters had fired at three victims, but the evidence could not tie either shooter to the 

injuries sustained by the victims. (Bland, supra, 28 Cal.4th at pp. 318, 334.) The trial 

court instructed the jury on the section 12022.53 enhancement, and its requirement for a 

finding of proximate cause, but did not instruct on the meaning of proximate cause. 

(Bland, at p. 334.) Our Supreme Court found that the trial court had a sua sponte duty to 

instruct on the definition of proximate cause and determined the existing instructions 

properly stated that definition, but found the failure to instruct was harmless because a 

jury would necessarily find proximate cause in that case because the meaning of 

proximate cause is broader, not narrower, than would normally be expected. (Id. at

pp. 334, 336, 338.)

From the court’s discussion of relevant case law, it is apparent that in the event it 

can be shown multiple individuals fired gunshots at a victim and a gunshot was the 

actual, direct cause of the victim’s injury, but it cannot be determined which individual

fired the harm-inflicting bullet, a defendant is criminally liable so long as his or her 

conduct was a substantial factor contributing to the injury. (Bland, supra, 28 Cal.4th at 

pp. 337–338; see People v. Sanchez (2001) 26 Cal.4th 834, 845–849 [discussing relevant 

cases]; see also People v. Jennings (2010) 50 Cal.4th 616, 644 [“the ‘substantial factor’ 

rule for concurrent causes ‘was developed primarily for cases in which application of the 
14.

but-for rule would allow each defendant to escape responsibility because the conduct of 

one or more others would have been sufficient to produce the same result’ ”].)

Garcia’s argument in this case sidesteps the teachings in Bland by making two 

assumptions. The first requires accepting that the lethal shots known to come from the 

unknown gunman in this case were the focus of the prosecutor’s argument and jury’s 

decision to convict on the enhancement. The second is that the only relevant harm that 

occurred with respect to the enhancement arose from the three known fatal wounds tied 

to the unknown shooter because that person fired first. Both fall short for the same 

reasons; the record does not show such a narrow factual premise for conviction and the 

law does not require such a narrow focus.

On the first assumption, the record shows that the prosecutor specifically argued 

the relevant injuries were the two “through and through” shots, one of which was to 

Rodolfo’s leg, that were not tied to either shooter. The prosecutor thus argued a theory 

that wounds caused by an unknown but presumed shooter satisfied the statutory 

requirements. This theory was then submitted to the jury with a verdict form that 

required the jury find Garcia proximately caused an injury to convict.6

On the second assumption, there is no indication in the law, and Garcia has cited 

to no case stating, that there can be only one relevant injury or that only a lethal wound 

will suffice for conviction. As such, the prosecutor was free to argue that injuries that 

could not be tied to either shooter were sufficient for conviction, and Bland confirms that

6 Notably, the trial court in this case did not instruct on the meaning of proximate cause, as 

required. In his reply brief, Garcia notes that the prosecutor agreed the instruction was not 

needed, suggesting this meant only a direct cause argument was being made. The failure to

instruct is not raised as an issue in this case, presumedly because Garcia’s counsel also agreed to 

forego the instruction. However, we would find the error harmless for the reasons described in 

Bland. (Bland, supra, 28 Cal.4th at pp. 334–338.) We further see no basis in the record to 

conclude the prosecutor was not arguing proximate causation, as his argument relies on 

convicting one of causing wounds that were not tied to any particular weapon or shooter and the 

verdict form on the enhancement retained the requirement of proving proximate cause to convict. 

The prosecutor’s inference that Garcia was the shooter does not compel a different result.
15.

the jury could find proximate cause, as called for in the verdict, in such situations. 

Further, as in Bland, it does not matter who fired first. The jury would not likely convict 

Garcia of proximately causing injuries known to be caused by the unknown accomplice. 

(Bland, supra, 28 Cal.4th at p. 338.) Accordingly, we find the evidence sufficient to 

support the 12022.53, subdivision (d) enhancement to the murder charge.

Ineffective Assistance of Counsel

Third, Garcia raises an ineffective assistance of counsel claim based on counsel’s 

failure to object to allegedly inadmissible hearsay conveyed by the gang expert to prove 

Garcia committed his crimes for the benefit of his gang. Garcia alleges that the expert 

improperly relied on community conversations to support his claim that members of the 

community were less likely to cooperate with police based on crimes committed by 

Lamont 13 in their neighborhoods. Garcia contends such evidence should have been 

excluded based on a pretrial in limine ruling that excluded “any case specific out-of-court 

statements that the gang expert would relate to the jury for the truth as inadmissible 

hearsay,” and thus that any failure to object constitutes ineffective assistance of counsel.

Applicable Law

To establish ineffective assistance of counsel, Garcia must show that counsel’s 

performance “fell below an objective standard of reasonableness,” and that “there is a 

reasonable probability that, but for counsel’s unprofessional errors, the result of the 

proceeding would have been different.” (Strickland v. Washington (1984) 466 U.S. 668, 

688, 694.) “A reasonable probability is a probability sufficient to undermine confidence 

in the outcome.” (Id. at p. 694.)

“ ‘Tactical errors are generally not deemed reversible; and counsel’s 

decisionmaking must be evaluated in the context of the available facts. [Citation.] To 

the extent the record on appeal fails to disclose why counsel acted or failed to act in the 

manner challenged, we will affirm the judgment “unless counsel was asked for an 

explanation and failed to provide one, or unless there simply could be no satisfactory 
16.

explanation ....” ’ ” (People v. Hart (1999) 20 Cal.4th 546, 623–624.) “An attorney may 

choose not to object for many reasons, and the failure to object rarely establishes 

ineffectiveness of counsel.” (People v. Kelly (1992) 1 Cal.4th 495, 540; accord, People v. 

Avena (1996) 13 Cal.4th 394, 421; People v. Adcox (1988) 47 Cal.3d 207, 261.)

“The Sixth Amendment to the federal Constitution guarantees a defendant’s right 

to confront adverse witnesses. [Citation.] In addition, the prosecution may not rely on 

‘testimonial’ out-of-court statements unless the witness is unavailable to testify and the 

defendant had a prior opportunity for cross-examination.” (People v. Harris (2013) 

57 Cal.4th 804, 839–840; see Crawford v. Washington (2004) 541 U.S. 36, 59.) Under 

federal confrontation clause jurisprudence, as interpreted by our California Supreme 

Court, at least two factors must be considered to determine whether a statement is 

testimonial. “First, to be testimonial the statement must be made with some degree of 

formality or solemnity. Second, the statement is testimonial only if its primary purpose 

pertains in some fashion to a criminal prosecution.” (People v. Dungo (2012) 55 Cal.4th 

608, 619.)

In People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), our Supreme Court 

considered “the degree to which the Crawford rule limits an expert witness from relating 

case-specific hearsay content in explaining the basis for his opinion.” (Id. at p. 670.) 

Sanchez reasserted the historical distinction between case-specific hearsay and the 

general hearsay relied upon by experts to detail general knowledge in the expert’s field of 

expertise. (Id. at pp. 675–679.) In doing so, it clarified that “[i]f an expert testifies to 

case-specific out-of-court statements to explain the bases for his opinion, those 

statements are necessarily considered by the jury for their truth, thus rendering them 

hearsay.” (Id. at p. 684.)

Having established this baseline, the court then considered whether certain types 

of hearsay evidence in gang cases are testimonial in nature and thus within the purview of 

Crawford’s constitutional restrictions on admissibility. (Sanchez, supra, 63 Cal.4th at
17.

p. 687.) The court detailed its understanding of the present evolution of what constitutes 

testimonial hearsay, explaining as a precursor, “[t]estimonial statements are those made 

primarily to memorialize facts relating to past criminal activity, which could be used like 

trial testimony. Nontestimonial statements are those whose primary purpose is to deal 

with an ongoing emergency or some other purpose unrelated to preserving facts for later 

use at trial.” (Id. at p. 689, fn. omitted.) It then recounted various permutations of the 

primary purpose test, before applying the overarching doctrine to certain evidence relied 

upon in reaching the gang conclusions in that matter. (Id. at pp. 689–694.) In its 

application, the court found that police reports are generally testimonial in nature, as are 

field identification cards written during the course of an active investigation. (Id. at

pp. 694–697.) The court concluded the admission of such testimonial hearsay violates 

the confrontation clause. (Id. at pp. 695–698.)

“ ‘ “ ‘Confrontation clause violations are subject to federal harmless-error analysis 

under Chapman v. California (1967) 386 U.S. 18, 24.’ [Citation.] We ask whether it is 

clear beyond a reasonable doubt that a rational jury would have reached the same verdict 

absent the error.” ’ ” (People v. Capistrano (2014) 59 Cal.4th 830, 873.) “ ‘To say that 

an error did not contribute to the ensuing verdict is ... to find that error unimportant in 

relation to everything else the jury considered on the issue in question, as revealed in the 

record.’ [Citation.] Thus, the focus is what the jury actually decided and whether the 

error might have tainted its decision.” (People v. Neal (2003) 31 Cal.4th 63, 86.)

Counsel’s Conduct Was Not Deficient

The People contend, and this court agrees, that the statements made by the gang 

expert did not rise to the level of case-specific hearsay, but rather consisted of non-casespecific hearsay properly recounted to the jury to disclose part of the basis for the 

expert’s opinion. The allegedly case-specific hearsay in this instance arose from a series 

of questions asked to the gang expert. The expert was first asked how he learned about 

and worked to understand Lamont 13. He responded he not only reads police reports and 
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contact cards but speaks “with other gang experts ... other deputies that make frequent 

contact with gang members. [He] would read police reports, talk to gang members, 

members of the community, that type of thing.” Later, the expert was asked whether he 

had spoken to members of the public about Lamont 13. After responding yes, the 

following exchange occurred:

“Q. Okay. And have you spoken to them about the criminal 

activity of Lamont 13?

“A. Yes.

“Q. Have you done so when they are potential witnesses or even 

victims?

“A. Yes.

“Q. Or even in passing where they are not the subject of any type 

of investigation or questioning or that sort of thing?

“A. Yes.

“Q. Like a consensual contact?

“A. Yes. [¶] ... [¶]

“Q. Based on your conversations with the general public, are they 

aware of ongoing criminal conduct of the Lamont 13 criminal street gang?

“A. Yes.”

Although conceding the prosecutor did not elicit any specific statements from 

members of the public and that the relevant evidence did not go to a direct element of the 

enhancement, Garcia relies on Sanchez and People v. Williams (2016) 1 Cal.5th 1166, to 

contend that the generalized statements about the community’s awareness of Lamont 13’s 

criminal conduct constituted case-specific facts that had to be independently proven. We 

do not agree. Ultimately, the expert’s opinion was that the violent crimes committed by 

the gang caused fear in the community, thus lessening the community’s willingness to 

assist police in solving future crimes. While community knowledge of the gang’s 
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activities is relevant to such an opinion, it is not necessarily a case specific fact in the

same way as a statement that community members heard of the current crime or failed to 

cooperate with police because of the violent nature of the gang in this or any specific 

instance would be.

Rather, the evidence elicited is more properly seen as background information 

based on first-hand experiences in the community and falls well within the generalized 

support permitted for the expert’s opinion that violent gang behavior benefits the gang by 

spreading fear within their territory. As Sanchez explains, such general background 

evidence may be noted for the jury to explain the basis of an expert’s opinion. (Sanchez, 

supra, 63 Cal.4th at p. 675 [“In addition to matters within their own personal knowledge, 

experts may relate information acquired through their training and experience, even 

though that information may have been derived from conversations with others, lectures, 

study of learned treatises, etc.”].) The community discussions here show no indication 

they were obtained to document past criminal activity and, indeed, at least some of the 

community knowledge was shared outside of a criminal context and thus was general 

knowledge acquired through the expert’s experience. We likewise see no comparison in 

the facts to People v. Williams, supra, 1 Cal.5th 1166, where the properly excluded 

evidence was purported statements detailing the defendant’s mother’s alcoholism, offered 

to support an opinion that the mother was an alcoholic and thus that the defendant was 

more prone to alcohol abuse. Notably, even there the expert was still permitted to offer 

an expert opinion based on his diagnosis and general knowledge of a family history of 

alcoholism. (Id. at pp. 1199–1201.) We thus see no error in failing to object to the 

statements made by the expert in this situation.

CALCRIM No. 370

Fourth, Garcia claims the trial court erred by instructing the jury with CALCRIM 

No. 370, which informed the jury that the People were not required to prove Garcia had a 
20.

motive to commit any of the charged crimes. He contends this was error because motive 

is an element of the gang enhancement.

Garcia acknowledges that this court considered and rejected this contention in 

People v. Fuentes (2009) 171 Cal.App.4th 1133, 1139–1140 (Fuentes). He argues this 

decision should be reconsidered. We do not agree.

Motive and intent are not synonymous. (People v. Bordelon (2008) 

162 Cal.App.4th 1311, 1322.) “Motive describes the reason a person chooses to commit 

a crime. The reason, however, is different from a required mental state such as intent or 

malice.” (People v. Hillhouse (2002) 27 Cal.4th 469, 504.)

As we stated in Fuentes, a defendant’s intent to further criminal gang activity is 

not a motive any more than any other specific intent; just as intent to kill is not a motive. 

(Fuentes, supra, 171 Cal.App.4th at p. 1139.) While Garcia challenges the giving of 

CALCRIM No. 370 only as it applies to the gang enhancement, our decision in Fuentes

applies to the gang offense as well. (Fuentes, at p. 1139.)

CALCRIM No. 370 instructed the jury that the People were not required to prove 

any motive to commit the charged crimes. Additionally, CALCRIM No. 1401 instructed 

on the former section 186.22, subdivision (b)(1) gang enhancement and provided that the 

People must prove Garcia intended to further gang activity. These instructions correctly 

informed the jury that the People must prove Garcia “intended to further gang activity but 

need not show what motivated” him to do so. (Fuentes, supra, 171 Cal.App.4th at

pp. 1139–1140.)

Section 190.2

Finally, with respect to Garcia’s initial briefing, Garcia challenges the lying-inwait special circumstance conviction he suffered under section 190.2. Garcia contends 

that section 190.2, subdivision (a)(15) is unconstitutionally vague and overbroad, thus 

constituting cruel and unusual punishment under the Eighth Amendment because it fails 

to meaningfully distinguish lying-in-wait murder from other intentional killings. Garcia 
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recognizes that this argument was rejected by the California Supreme Court in People v. 

Morales (1989) 48 Cal.3d 527, 557. He argues, however, that Morales has been 

“severely criticized and cannot withstand careful examination,” and thus should not be 

followed.

We do not agree. None of Garcia’s citations show that Morales’s determination 

that the historical lying-in-wait special circumstance is constitutional has been discredited 

or overturned. Further, our Supreme Court again reviewed the enhancement in 2016, 

following amendments further tying the special circumstance to the underlying 

requirements of lying-in-wait murder. The court confirmed the enhancement was 

constitutional, explaining: “That a crime historically has been considered more 

reprehensible than other murders provides ‘a rational basis for distinguishing those 

murderers who deserve to be considered for the death penalty from those who do not.’ ” 

(People v. Johnson (2016) 62 Cal.4th 600, 637.) Garcia’s argument is thus foreclosed by 

binding precedent.

Assembly Bill 333

Garcia argues in supplemental briefing that Assembly Bill 333 should apply 

retroactively to his nonfinal case and that the modifications made by Assembly Bill 333 

to the requirements for proving gang enhancements were not met by the prosecution in 

this case. Garcia additionally argues that even if the elements were arguably met, the 

change in the law is substantial enough that retrial is necessary so that counsel can 

prepare and defend against the new elements, which were not relevant at the time of his 

initial trial. The People agree that Assembly Bill 333 is retroactive. However, the People 

argue retrial is not necessary because the evidence adduced at trial met the new 

requirements of Assembly Bill 333.

We note at the outset our agreement with the parties’ undisputed contention that 

Assembly Bill 333 is retroactive to nonfinal cases. Several courts have considered this 

issue and found retroactivity applicable. (See People v. Lopez (2021) 73 Cal.App.5th 
22.

327, 344 (Lopez) [“As Assembly Bill 333 increases the threshold for conviction of the

section 186.22 offense and the imposition of the enhancement, we agree with Lopez and 

the People that Lopez is entitled to the benefit of this change in the law.”].) We thus turn 

to whether a retrial is required given the new elements added to the law.

Applicable Law

Effective January 1, 2022, Assembly Bill 333 “amend[ed] section 186.22 to 

require proof of additional elements to establish a gang enhancement.” (Lopez, supra,

73 Cal.App.5th at p. 343.) In part, Assembly Bill 333 narrowed the definition of 

“ ‘ “criminal street gang” ’ ” to “ ‘an[y] ongoing, organized association or group of three 

or more persons, whether formal or informal, having as one of its primary activities the 

commission of one or more [enumerated criminal acts], having a common name or 

common identifying sign or symbol, and whose members collectively engage in, or have 

engaged in, a pattern of criminal gang activity.’ ” (Lopez, at p. 344, first bracketed 

insertion added, quoting § 186.22, subd. (f), as amended by Stats. 2021, ch. 699, § 3.)

In addition, Assembly Bill 333 changed the definition for a “pattern of criminal 

gang activity.” (See § 186.22, subd. (a).) At the time of Garcia’s trial, this term was 

defined as “the commission of, attempted commission of, conspiracy to commit, or 

solicitation of, sustained juvenile petition for, or conviction of two or more of the 

following offenses, provided at least one of these offenses occurred after the effective 

date of this chapter and the last of those offenses occurred within three years after a prior 

offense, and the offenses were committed on separate occasions, or by two or more 

persons.” (Former § 186.22, subd. (e).)

Following the enactment of Assembly Bill 333, the definition has been amended 

as follows: “ ‘pattern of criminal gang activity’ means the commission of, attempted 

commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or 

conviction of [] two or more of the following offenses [§ 186.22, subds. (A)–(Z)], 

provided at least one of these offenses occurred after the effective date of this chapter, 
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and the last of those offenses occurred within three years of the prior offense and within 

three years of the date the current offense is alleged to have been committed, the offenses 

were committed on separate occasions or by two or more members [of the gang], the 

offenses commonly benefited a criminal street gang, and the common benefit of the 

offense is more than reputational ....” (§ 186.22, subd. (e)(1).)

Thus, to prove the “pattern of criminal gang activity,” the prosecution must now 

adduce evidence showing: (1) the last predicate offense occurred within three years of 

the currently charged offense; (2) the predicate offenses were committed by members of 

the gang who acted collectively; (3) the offenses commonly benefit a criminal street 

gang; and (4) that benefit is more than reputational. Subdivision (g) of section 186.22 

provides the following examples of a common benefit that is more than reputational: 

“financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or 

intimidation or silencing of a potential current or previous witness or informant.” By 

contrast, evidence of a reputational benefit would include an expert’s opinion that the 

commission of a particular violent crime would elevate a gang member’s reputation, 

which inures to the gang’s benefit by instilling fear into the community and rival gang 

members. (See, e.g., People v. Albillar (2010) 51 Cal.4th 47, 63.)

Discussion

The People readily concede that at least two of the four predicate offenses 

introduced in this case “arguably do not meet the new requirements.” However, the 

People contend that circumstantial evidence in the record allows this court to conclude 

that no reversible error arose because the remaining two predicate offenses would meet 

the new statutory requirements. These two predicate offenses were (1) an assault by 

three Lamont 13 members on two individuals whom the prosecution showed were 

“Hispanic males” who were “from Arvin, but they were in Lamont at the time of the 

assault” and (2) a cell phone robbery and stabbing committed by four Lamont 13 
24.

members. No additional information appears to have been disclosed about this later 

incident.

The People argue that these incidents meet the new requirements of Assembly 

Bill 333 based, in part, on the facts that the first offense occurred to protect gang turf 

“from perceived rivals” and the second occurred “for financial gain.” We do not agree. 

First, reviewing the record, there is no witness testimony regarding the motivations for 

these crimes specifically. At best the record shows that the People’s gang expert was 

asked about why gang members may commit murder. In response, the expert stated, “I 

know gang members commit violent crimes like assault with a deadly weapon, murders, 

shootings to enhance the gang member’s individual reputation within the gang, and the 

gang’s overall reputation within the community.” Thus, other than the facts that the 

victims in the first offense were Hispanic and from Arvin—with no indication they were 

Arvin gang members—and in the second offense a cell phone was stolen, there is no 

indication in the record the offenses took place for any reason other than enhancing the 

gang’s reputation. We find no basis to conclude these thin factual connections to asserted 

bases for the crimes are sufficient to show any error arising because the core elements of 

the offense changed after the trial occurred was harmless. The People simply had no 

reason to explore the motivations behind these offenses at trial and thus created a record 

that, as discussed above, satisfied the then current standards but failed to satisfy the new 

standards.

“We therefore conclude that the gang-related enhancement findings must be 

vacated and the matter remanded to give the People the opportunity to prove the 

applicability of the enhancements under the amendments to section 186.22.” (Lopez, 

supra, 73 Cal.App.5th at p. 346.) Here, the imposition of the former section 186.22, 

subdivision (b)(1) and section 12022.53 enhancements were based on gang-related 

enhancements findings. (See § 12022.53, subd. (e)(1)(A).) Similarly, the section 186.22, 

subdivision (a) gang participation conviction and the section 190.2, subdivision (a)(22) 
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enhancement were also based on gang-enhancement findings. We thus vacate these 

findings, noting the People may elect to retry them on remand.

DISPOSITION

The judgment is reversed with respect to the enhancements and convictions under 

former section 186.22, subdivisions (a) and (b)(1) and sections 190.2, subdivision (a)(22),

12022.53, and 12022.7, subdivision (a). The judgment is affirmed in all other respects. 

The matter is remanded for further proceedings consistent with this opinion.

HILL, P. J.

WE CONCUR:

POOCHIGIAN, J.

DETJEN, J.