Filed 9/26/23 P. v. Serrano 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL RAY SERRANO et al.,

Defendants and Appellants.

 H047310, H047329

 (Monterey County

 Super. Ct. Nos. SS170173)

In re JUAN CARLOS VALENZUELA 

CEJA,

on Habeas Corpus.

 H049565

 (Monterey County

 Super. Ct. Nos. SS170173B)

A jury convicted defendants Michael Ray Serrano and Juan Valenzuela Ceja of 

attempted murder and other crimes arising out of a gang-related shooting at an apartment 

complex in Salinas. Both defendants were sentenced to aggregate terms of 110 years to 

life. 

A. Serrano’s separate appellate claims (H047310)

On appeal, Serrano raises several claims of evidentiary error, specifically that the 

trial court erred in admitting: 1) a brief rap video with lyrics referencing shooting rival 

gang members; 2) expert testimony about the location of certain cell phone towers which 

was used to show where Serrano and his codefendants were before, during, and after the 

shooting; 3) expert testimony explaining how shooting a non-gang member benefits a 
2

gang; and 4) testimony by a jail classification officer regarding where Serrano was 

housed in the county jail. Serrano further argues that the prosecutor committed 

misconduct in eliciting testimony that a weapon found in Serrano’s vehicle was linked to 

two other uncharged shootings. Finally, Serrano claims that the foregoing errors resulted 

in cumulative prejudice. The Attorney General disagrees in all respects, and we agree 

there was no error. 

With respect to his sentencing, Serrano claims he is entitled to resentencing under 

recently amended versions of Penal Code sections 1170 and 1385.1, 2 The Attorney 

General concedes that Serrano is entitled to be resentenced under the operative versions 

of section 1170 and section 1385, and we agree. 

B. Ceja’s appellate claims and habeas petition (H047329, H049565)

Ceja argues separately that his trial counsel was constitutionally ineffective in a 

variety of ways. We agree with the Attorney General and find that Ceja has not 

demonstrated ineffective assistance of counsel in his appeal.3 

1 Unspecified statutory references are to the Penal Code.

2 Senate Bill No. 567 (2021-2022 Reg. Sess.) (Sen.Bill. 567) amended section 

1170 which now provides, in relevant part, that the low term should be the presumptive 

term for youthful offenders. (§ 1170, subd. (b)(6)(B); see § 1016.7 [defining “youth” as a 

person under age 26 when committing the crime].) Senate Bill No. 81 (2021-2022 Reg. 

Sess.) (Sen.Bill. 81) amended section 1385 to set forth “factors that the trial court must 

consider when deciding whether to strike enhancements from a defendant’s sentence in 

the interest of justice.” (People v. Sek (2022) 74 Cal.App.5th 657, 674 (Sek).)

3 Because Ceja is not challenging the trial court’s order denying his motion for a 

new trial, we need not and do not consider any of the materials, including several 

declarations filed under seal, he submitted in support of that motion. The California 

Supreme Court has “repeatedly stressed ‘that “[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.’ [Citations.] A claim of 

ineffective assistance in such a case is more appropriately decided in a habeas corpus 

(continued)
3

In his habeas corpus petition, which this court ordered to be considered with the 

appeal, Ceja also claims that his trial counsel rendered constitutionally ineffective 

assistance. We determine that Ceja’s petition, which includes materials outside the 

record on direct appeal, makes a prima facie showing that he is entitled to the relief 

requested in the petition. By separate order filed this day, we issue an order to show 

cause returnable in the superior court. 

With respect to his sentencing, Ceja argues the court’s oral pronouncement of 

judgment and the abstract of judgment incorrectly report his sentences as 40 years to life 

on count 1 and 35 years to life on counts 2 and 3. In his view those sentences are more 

properly described, as follows: on count 1, life with the possibility of parole, with a 

minimum parole eligibility date of 15 years, plus a consecutive indeterminate term of 25 

years to life; and as to counts 2 and 3, life with the possibility of parole, with a minimum 

parole eligibility date of 15 years, plus consecutive indeterminate terms of 20 years to 

life. The Attorney General does not agree that Ceja’s sentence on those counts was 

improperly described by the court or in the abstract. We conclude that the description of

Ceja’s sentence on these counts is accurate and does not need revision.

C. Defendants’ joint claims on appeal (H047310, H047329)

Serrano and Ceja both argue they are entitled to the retroactive application of 

amendments to sections 186.22 and 654, as well as newly enacted section 1109,4all of 

proceeding. [Citations.]” (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267

(Mendoza Tello).) Our conclusions reached on direct appeal should not be interpreted as 

an indication of our view of the ultimate viability of the habeas corpus petition.

4 Section 186.22 was amended to, among other things, modify the definitions of 

“pattern of criminal activity” and “criminal street gang,” as well as clarify what is 

required to establish that an offense “benefit[s], promote[s], further[s], or assist[s]” a 

criminal street gang. (Stats. 2021, ch. 699, § 3.) Section 654 was amended to eliminate 

the requirement that a defendant be punished under the provision providing for the 

longest term of imprisonment and granting the trial court discretion to impose 

(continued)
4

which became effective on January 1, 2022. The Attorney General concedes that the 

defendants are entitled to retroactive application of the amendments to sections 186.22 

and 654 but does not agree that they are entitled to the retroactive application of section 

1109. As discussed below, we agree with the parties that the amendments to sections 

186.22 and 654 apply retroactively. With respect to newly enacted section 1109, 

however, we need not reach the question of its retroactivity, because even if the statute 

has retroactive effect, defendants cannot show prejudice. 

Serrano and Ceja note that there is a clerical error in their abstracts of judgment in 

that they incorrectly list the firearm enhancement imposed on counts 2 and 3 as section 

12022.53, subdivision (d), instead of subdivision (c). The Attorney General agrees that 

the abstract of judgment should be corrected to identify that the proper firearm 

enhancement to counts 2 and 3 is section 12022.53, subdivision (c).

For the reasons explained below, we will reverse the judgments as to each 

defendant for the limited purpose of resentencing and to permit the district attorney to 

elect whether to retry the substantive gang offense and the gang enhancement allegations. 

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Procedure

Serrano and Ceja were charged in a third amended information with three counts 

of attempted murder (§§ 187, 664; counts 1–3), three counts of assault with a 

semiautomatic firearm (§ 245, subd. (b); counts 4–6), one count of shooting at an 

inhabited dwelling (§ 246; count 7), and one count of participation in a criminal street 

gang (§ 186.22, subd. (a); count 8).5 The information also included the following 

punishment under any of the applicable provisions. Newly enacted section 1109 provides 

that defendants may request a bifurcated trial on gang enhancements and substantive 

gang charges. 

5 The charges and associated enhancements in counts 1 through 8 were also 

alleged against codefendant Fausto Samuel Arellano. Arellano was charged individually 

(continued)
5

enhancement allegations: (1) the defendants committed counts 1 through 7 for the benefit 

of a criminal street gang (§§ 186.22, subds. (b)(1), (b)(4)); (2) the defendants personally 

used a firearm in committing counts 1 through 6 (§§ 12022.53, subds. (b), (c), 12022.5, 

subd. (a)); and (3) the defendants personally used a firearm causing great bodily injury to 

the victim in count 1 (§ 12022.53, subd. (d)). 

The jury found Serrano and Ceja guilty on all charges and found true all of the 

associated enhancement allegations. 

The trial court sentenced Serrano and Ceja to aggregate terms of 110-years-to-life 

consisting of 40-years-to-life terms on count 1 and two consecutive 35-years-to-life terms 

on counts 2 and 3. 

As to Serrano, the trial court also imposed, but stayed pursuant to section 654, the 

following terms: on count 4, a total term of 26 years, consisting of the upper term of nine 

years, with consecutive enhancements of four years (§ 12022.5, subd. (a)), three years 

(§ 12022.7, subd. (a)), and 10 years (§ 186.22, subd. (b)(1)(c)); two terms of 23 years on 

counts 5 and 6, consisting of the upper term of nine years, with consecutive terms of four 

years (§ 12022.5, subd. (a)) and 10 years (§ 186.22, subd. (b)(1)(c)); a term of 15-yearsto-life on count 7; and the upper term of three years on count 8. 

As to Ceja, the trial court also imposed, but stayed pursuant to section 654, the 

following terms: on count 4, a total term of 23 years, consisting of the middle term of six 

years, with consecutive enhancements of four years (§ 12022.5, subd. (a)), three years 

(§ 12022.7, subd. (a)), and 10 years (§ 186.22, subd. (b)(1)(c)); two terms of 20 years on 

counts 5 and 6, consisting of the middle term of six years, with consecutive terms of four 

with additional crimes involving drugs and firearms in counts 9 through 13. Arellano 

was acquitted on counts 1 through 8 but found guilty of the drug and firearm offenses in 

counts 9 through 13. As he is not a party to this appeal, we will only refer to Arellano 

where necessary to present a complete narrative of the offenses.
6

years (§ 12022.5, subd. (a)) and 10 years (§ 186.22, subd. (b)(1)(c)); a term of 15-yearsto-life on count 7; and the upper term of three years on count 8. 

The trial court imposed various fines and fees, none of which are at issue in this 

appeal.

Serrano and Ceja timely appealed. 

B. Facts

Serrano and Ceja were members of La Posada Trece (LPT), a Sureño gang subset 

operating in Salinas. Anyone who wished to join LPT was required to commit a 

shooting. Arellano was an “up and coming” LPT gang member. On April 14, 2016,6

Serrano texted Arellano that he would soon be a full-fledged member of LPT. 

On April 17, Serrano and Arellano exchanged a number of text messages 

regarding someone shooting at Serrano’s car. The following morning, Serrano texted 

Arellano asking if he wanted “to go look for em today.’ ”

7

(Sic.) After Arellano 

responded that he was “ready any time[,]’ ” Serrano said he was “waiting on the other 

toy.’ ”

8

 Serrano and Arellano met up in person later that day. 

Serrano texted another Sureño gang member named Miguel Zendejas on April 18. 

In those messages, Serrano told Zendejas he was taking “two individuals trying to come 

up in the gang to do a shooting” and asked if he could borrow a gun. 

At 6:40 p.m. on April 18, Serrano called Ceja’s phone, and 10 minutes later, 

texted Ceja the address for a Sureño gang member named Ysidro Puga. Serrano then 

texted Ceja to tell him he had gotten another gun. Ceja owned a white GMC Yukon 

6 All dates are from 2016 unless otherwise specified.

7 The gang expert testified that Serrano was referring to the person or persons who 

shot at his car. 

8 The prosecution’s gang expert testified that, in this context, “toy” meant a 

firearm.
7

Denali SUV with a sunroof and a distinctive bumper that was painted white rather than 

the standard silver. 

1. The shooting

John Doe9lived in an apartment complex in Salinas in 2016. On the evening of 

April 18, Doe went outside his apartment to play cards with his cousin10 and some friends 

in the carport. At approximately 9:00 pm, Doe and two others, including his cousin and 

MA3,11 were still playing cards. MA3’s cousin, MA4, came downstairs to let MA3 know 

he had a telephone call and stayed to watch the others play. Doe was wearing a red12 hat, 

white T-shirt, and shorts. 

A few minutes after MA4 came downstairs, MA3 noticed a “light silver” GMC 

Denali drive slowly by the carport.13 Soon thereafter, the men heard what they initially 

9 Consistent with his designation at trial, we will refer to this victim as Doe in the 

interest of privacy. (Cal. Rules of Court, Rule 8.90(b)(4).)

10 Doe’s cousin was an active member of Santa Rita Bahamas, a Norteño gang. 

11 The trial court granted the prosecution’s request to refer to MA3 and his cousin, 

MA4, by pseudonyms consistent with how they were identified in pretrial discovery. 

(Cal. Rules of Court, Rule 8.90(b)(4).)

12 The gang expert testified that Norteño gangs associate with the color red. Doe, 

MA3, and MA4 denied having any gang affiliation during their trial testimony. 

However, when they were interviewed by the investigating detective, Derek Gibson, 

during his investigation into the shooting, all three men admitted to being Norteño gang 

members. 

13 Video from a surveillance camera at a market across the street from the carport 

showed a white GMC Yukon Denali slowly driving down the street “moments before the 

shooting.” The officer who testified about the video footage noted that the vehicle was 

distinctive because it had a sunroof, white running boards, a white front bumper, and 

lacked silver metallic strips along the passenger and driver’s side doors. The officer 

testified that, during the investigation of the shooting, he had researched this particular 

vehicle model online and seen them in person. He opined that “[o]n a regular Yukon 

that [i.e., the front bumper] is, like, silver or metal, silver metal color. And in this video 

(continued)
8

thought were fireworks. MA4 heard around 20 shots which he thought came from 

different guns. Doe was shot twice and fell to the ground as the other men ran for cover. 

No one else was hit by the gunfire and none of the men saw the shooters. When he 

realized Doe had been shot, MA3 called 911. Doe was taken to the hospital and 

underwent surgery. At the time of trial, Doe could not lift one of his legs as well as 

before and walked with a limp. 

The video surveillance footage showed three people walking on the sidewalk 

toward the main entrance of the apartment complex. When they were on the driveway of 

the complex, they “opened fire” before running away. 

Police collected a total of 23 bullet casings as well as bullet fragments in and 

around the carport. The bullets were fired from three different weapons, two of which 

used nine-millimeter ammunition and one which used .40 caliber ammunition.14 

2. Serrano and Ceja are arrested and linked to the shooting

On April 27, Serrano was pulled over by Salinas police officers based on a report 

of a “suspicious vehicle.” During the stop, one of the officers saw the grip of a handgun 

in the pocket behind the front passenger seat. Officers retrieved the weapon, a Daewoo 

Lionheart LH9C 9-millimeter pistol. Subsequent ballistics testing showed that the gun 

had been fired at the April 18 shooting. Officers also seized Serrano’s cell phone from 

the vehicle. 

Two days later, on April 29, Salinas police officers pulled over Ceja in his white 

GMC Yukon Denali SUV. Because Ceja’s driver’s license was suspended, officers 

removed him from his vehicle so it could be impounded. An officer began an inventory 

it’s actually white and the Yukon Denali and the colors it comes in will paint it all [sic] 

the way around the bumper.” 

14 As discussed below only two of the three weapons involved—a nine-millimeter 

and a .40 caliber—were recovered and analyzed by ballistics experts. Some of the ninemillimeter casings at the scene were fired by a weapon that had not been located. 
9

search of the vehicle and discovered a loaded .40 caliber Glock 23 between the driver’s 

seat and the center console. The officer also found a loaded magazine inside the center 

console. Ballistics testing showed that this gun had also been fired at the April 18 

shooting. 

3. Evidence from defendants’ cell phones and their service providers

Following their arrest, police obtained warrants to seize and search Serrano’s, 

Ceja’s, and Arellano’s cell phones. Police also obtained records from their respective 

cell service providers in order to map the radio frequency signals of their cell phones. 

Based on the records, Arellano’s phone was located near Ysidro Puga’s home twoand-a-half hours before the shooting. Approximately 90 minutes before the shooting, the 

phone was located near the site of the shooting. Then, between 30 to 45 minutes after the 

shooting, the phone was located near Arellano’s house. 

The records for Ceja’s phone indicated that it was located near his own residence 

two-and-a-half hours before the shooting. Fifteen minutes later, his phone was near the 

crime scene and five minutes after that, it was near Puga’s residence. A little more than 

an hour before the shooting, Ceja’s phone was near Arellano’s house. Immediately after 

the shooting, the signals from Ceja’s cell phone contacted the cell phone tower closest to 

the location of the shooting and, a few minutes later, contacted a tower further from the 

crime scene along the route to his job in Morgan Hill. According to his employer’s time 

records, Ceja clocked in to work about 9:59 p.m. on April 18. 

The cell phone records for Serrano’s and Arellano’s phones showed that, at 9:30 

p.m., they were again located near Arellano’s house. Serrano’s phone stopped 
10

communicating with any cell towers about 90 minutes before the shooting, but started 

pinging off cell phone towers again 24 minutes after the shooting, i.e., 9:31 p.m. 

In examining the calls and text messages sent and received by Ceja’s and 

Arellano’s phones over a six-week period which encompassed the date of the shooting, 

April 18 was the only date which those phones communicated with each other.

Police also examined Serrano’s internet search history for April 18 and after. 

About an hour-and-a-half after the shooting, Serrano searched the internet for “Salinas, 

California, latest news.” At 7:37 a.m. on April 19, Serrano viewed an article entitled, “

‘Man shot multiple times on North Main Street in Salinas.’ ” He viewed two other 

articles describing the shooting, one on a site entitled “KION Right Now” and another 

from a site called “the Californian.”15 Serrano also viewed articles describing shootings 

that took place prior to April 18. 

4. Gang evidence

The prosecution’s gang expert, after providing brief origin stories for Norteño and 

Sureño gangs including their longstanding rivalry, testified that LPT is a “subset of a 

Sureño criminal street gang” operating in Salinas. LPT and the other Sureño gangs in 

Monterey County typically cooperate by committing crimes together, reporting and 

paying “taxes” to an overarching leadership structure, and fighting rivals—typically 

Norteños. 

15 The testimony on this subject was unclear. The officer testified Serrano, 

beginning at 7:37 a.m. on April 19, viewed an article entitled “ ‘Man shot multiple times 

on North Main Street in Salinas,’ ” which was apparently on the “KION Right Now” site, 

a total of 31 times. The officer then said that, at around the same time on April 19, 

Serrano viewed an article on “KION Right Now” which “describes a man being shot 

multiple times on North Main Street” a total of sixteen times. The record does not make 

clear whether Serrano: 1) looked at two separate and distinct articles that day; 2) viewed 

the same article 31 times, then an additional sixteen times after it was updated; or 3) the 

officer misspoke when he initially said that Serrano viewed the article 31 times. The 

record also does not make clear what “KION Right Now” or “the Californian” are, but 

from the context, we infer they are local news sources covering Monterey County. 
11

At the time of the shooting, the primary criminal activities of Sureños in Salinas 

were “[h]omicide, attempted homicide, robberies, batteries . . . [a]nd car theft.” 

According to the gang expert, Sureños were an ongoing organization or association and 

qualified as a criminal street gang. 

The apartment complex where the shooting took place was associated with 

Norteño gang members because “multiple [Norteño] gang members [] reside in that 

complex[]” and “a large volume of Norteño gang activity [] takes place” there. 

Among the photos recovered from Serrano’s cell phone was a photograph of 

Arellano and Eric Nieto, a member of the Hebbron Street Sureño subset, which Serrano 

took on February 5. In the photo, Nieto is displaying a Sureño hand sign. Police also 

recovered a selfie, taken in February as well, in which Serrano is wearing a Pittsburgh 

Pirates16 hat, making a hand sign commonly displayed by LPT members and Sureños. 

On March 11, Arellano was pulled over while driving a Green Chevy Avalanche 

SUV with illegally tinted windows. Serrano was a passenger in the car and officers 

discovered a black gun, which turned out to be a BB gun, in the center console. 

On March 12, Serrano took a photo of himself wearing a Philadelphia Phillies hat, 

with a blue17 “P” and two blue stars on it, and a Los Angeles Dodgers jersey, whose 

apparel Sureños commonly wear because the team is located in Southern California. 

Serrano was displaying a Sureño hand sign in the photo. 

On March 25, Serrano filmed a video of himself rapping about shooting Norteño 

gang members, referring to them as “busters,” a derogatory term for Norteños used by 

Sureños. His lyrics also referenced LPT. 

16 LPT members commonly wear Pittsburgh Pirates apparel. 

17 The gang expert testified that Sureños associate with the color blue, whereas 

Norteños associate with the color red. 
12

On April 8, Serrano took a selfie in which he is wearing a blue Phillies hat and 

making a hand sign associated with Sureños and with LPT. 

On April 14, Serrano texted Arellano indicating that Arellano would soon be a 

full-fledged member of LPT. According to the text, at that time, Arellano was just an “up 

and coming” gang member. 

A couple of months after the shooting, on June 28, Serrano was a passenger in a 

car that was pulled over. Officers discovered a box of 9-millimeter ammunition in the 

car, but no weapon. 

On July 9, Serrano was the driver of a vehicle that was pulled over. Inside the car, 

officers found a tattoo gun as well as drawings of potential tattoos depicting Sureño gang 

symbols and imagery. 

On October 15, Salinas police pulled Arellano over and Serrano was a passenger 

in the vehicle. Inside a compartment beneath a cup holder in the center console, officers 

found methamphetamine, cocaine, a loaded .40 caliber firearm, and ammunition in the 

car. Arellano admitted that it was his gun. A digital police scanner was in the back seat. 

Serrano and Ceja each had a number of tattoos indicating they were members of 

Sureño gangs. 

Following their arrest for the shooting, Arellano, Ceja, and Serrano were all 

housed in one of Monterey County Jail’s two units for Sureño gang members. Inmates in 

these units who were not in good standing with the Sureños would face repercussions, 

which could mean anything from being “spoken to[]” to “a jail beating all the way up to a 

removal.”18 While in those Sureño units, Serrano, Ceja, and Arellano had not been 

assaulted. 

18 According to the correctional officer who was testifying on this subject, a 

“removal [] is a violent attack meant to say, ‘Hey, you’re not welcome back into this pod. 

You’re no longer a Sureño .... You have to leave.’ ” 
13

Based on the above information, and the facts of the shooting, the gang expert 

opined that Arellano, Ceja, and Serrano were active participants in the Sureño street gang 

in April 2016. In his opinion, a hypothetical shooting matching the facts of the crime 

would be committed for the benefit of, at the direction of, and in association with a 

criminal street gang and would promote or assist criminal conduct by Sureños. 

5. Ceja’s defense19

Ceja went to work on the night of the shooting at his employer’s plant, located in 

Morgan Hill. The HR manager testified as to how employees clock in and out of work by 

using a fingerprint scanner at the job site. 

A supervisor at the company identified Ceja at trial as someone he worked with, 

but he knew him as “Carlos Delgado.” The supervisor authenticated a timesheet for 

“Carlos Delgado” showing that he signed in for work at 9:59 p.m. on April 18.20 On 

cross-examination, the supervisor testified that employees would clock in by calling a 

telephone number and inputting their employee ID. It was only recently that employees 

would be able to clock in with a fingerprint scan. 

6. Rebuttal evidence

The district attorney’s investigator testified that on two occasions he drove from 

the last area in Salinas that Ceja’s phone pinged a cell tower (which occurred at 9:19 p.m. 

on April 18) to Ceja’s work site in Morgan Hill. The investigator left at 9:19 p.m. on 

both trips and varied his speed, driving at or just above the speed limit. The first trip took 

37 minutes and 48 seconds and the second took 33 minutes and 56 seconds. 

19 Arellano also presented a defense, but Serrano did not. In final argument, 

Serrano’s counsel focused on the lack of direct evidence demonstrating that Serrano was 

present at the scene of the shooting, arguing that the prosecution had thus failed to meet 

its burden of proof. 

20 Salinas police were dispatched to the apartment complex shooting at 9:08 p.m. 

on April 18. 
14

II. DISCUSSION

A. Serrano’s appeal

1. Admission of Serrano’s rap video and lyrics

Serrano argues that the trial court erred in allowing the prosecution to admit a 

video from his cell phone in which he “raps” about gang life in LPT. He contends the 

admission of this evidence: 1) violated his First Amendment right of free expression; 2) 

was unduly prejudicial in violation of Evidence Code section 352; and 3) violated his 

right to due process. The Attorney General counters that introducing the video did not 

inhibit Serrano’s free expression rights, the video was highly probative of his motive and 

intent, and it was not unduly prejudicial. As we explain below, we agree with the 

Attorney General on these points.

Serrano submitted an additional supplemental brief addressing recently enacted 

Evidence Code section 352.221 and citing to People v. Venable (2023) 88 Cal.App.5th 

21 Evidence Code section 352.2 provides: “(a) In any criminal proceeding where a 

party seeks to admit as evidence a form of creative expression, the court, while balancing 

the probative value of that evidence against the substantial danger of undue prejudice

under [Evid. Code] Section 352, shall consider, in addition to the factors listed in [Evid. 

Code] Section 352, that: (1) the probative value of such expression for its literal truth or 

as a truthful narrative is minimal unless that expression is created near in time to the 

charged crime or crimes, bears a sufficient level of similarity to the charged crime or 

crimes, or includes factual detail not otherwise publicly available; and (2) undue 

prejudice includes, but is not limited to, the possibility that the trier of fact will, in 

violation of [Evid. Code] Section 1101, treat the expression as evidence of the 

defendant’s propensity for violence or general criminal disposition as well as the 

possibility that the evidence will explicitly or implicitly inject racial bias into the 

proceedings. [¶] (b) If proffered and relevant to the issues in the case, the court shall 

consider the following as well as any additional relevant evidence offered by either party:

[¶] (1) Credible testimony on the genre of creative expression as to the social or cultural 

context, rules, conventions, and artistic techniques of the expression. [¶] (2) Experimental 

or social science research demonstrating that the introduction of a particular type of 

expression explicitly or implicitly introduces racial bias into the proceedings. [¶] 

(3) Evidence to rebut such research or testimony. [¶] (c) For purposes of this section, 

‘creative expression’ means the expression or application of creativity or imagination in 

(continued)
15

445, review granted May 17, 2023, S279081 (Venable). Venable held that Evidence 

Code section 352.2, which adds factors trial judges must consider before admitting forms 

of creative expression (e.g., rap lyrics and videos) as evidence, has retroactive 

application. 

We respectfully disagree with the reasoning in Venable and conclude that the 

statute is not retroactive. However, even if it were, we decide the other evidence 

implicating Serrano in the shooting was such that no reasonable jury would have 

acquitted him had the rap video and lyrics been excluded.

a. Additional background

The prosecution brought an in limine motion seeking to introduce a video from 

Serrano’s phone that he created three weeks prior to the April 18 shooting. The 

prosecution argued the video was probative of Serrano’s state of mind and intent, as well 

as his association with LPT. 

Serrano objected, arguing that the video was not relevant because: 1) the amount 

of time that elapsed between its creation and the shooting reduced its probative value; 2) 

in gangster rap culture, the lyrics22 and themes are commonplace and thus had no nexus 

to the shooting; and 3) Serrano did not disseminate the video. Serrano also argued the 

video was unduly prejudicial and inflammatory. 

the production or arrangement of forms, sounds, words, movements, or symbols, 

including, but not limited to, music, dance, performance art, visual art, poetry, literature, 

film, and other such objects or media. [¶] (d) The question of the admissibility of a form 

of creative expression shall be heard in limine and determined by the court, outside the 

presence and hearing of the jury, pursuant to [Evid. Code] Section 402. The court shall 

state on the record its ruling and its reasons therefor.”

22 The lyrics were as follows: “ ‘Creepin’, in the middle of the night. Lookin’ for a 

busta to take away his life. Why . . . would you wanna fuck wid me? My automatic will 

spray 16. We’re tossin’ it up. Not givin’ a fuck. We’re lightin’ ‘em up, bustin’ round after 

round. Holdin’ our ground, Salastown. That’s where we be found posted up in the fuckin’ 

cuts. You know where the fuck I be? 831, Salastown. LPT and I’m out bitch . . . bitch.’ ” 
16

The court admitted the video, stating that it “is highly probative” and not unduly

prejudicial. The court continued that the lyrics were evidence of Serrano’s “allegiance to 

a certain [Sureño] gang,” a “rivalry between that subset [i.e., LPT] and another gang” in 

Salinas, his willingness to “use [] a firearm,” and his “motive[.]” 

The rap video was played for the jury. In both her opening and final arguments, 

the prosecutor referenced the video and its lyrics several times, particularly the line “ 

‘Looking for a busta to take away his life’ ” which she characterized as an “ongoing 

theme” for the trial, demonstrating Serrano’s motive and intent. 

b. Applicable legal principles

We review the trial court’s evidentiary rulings for an abuse of discretion. (People 

v. Waidla (2000) 22 Cal.4th 690, 717 (Waidla).) A court has broad discretion 

under Evidence Code section 352 to exclude relevant evidence if it determines the 

probative value is substantially outweighed by its possible prejudicial effects. (People 

v. Merriman (2014) 60 Cal.4th 1, 74 (Merriman), citing People v. Clark (2011) 52 

Cal.4th 856, 893.)

“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, 

quoting People v. Brown (2003) 31 Cal.4th 518, 534.) Generally, the application of 

ordinary rules of evidence does not implicate the federal Constitution; accordingly, we 

review allegations of error under the “reasonable probabilit[y]” standard of People 

v. Watson (1956) 46 Cal.2d 818, 837 (Watson), unless the erroneous admission 

of evidence affects the fundamental fairness of the trial, in which case we apply the de 

novo standard of review. (People v. Marks (2003) 31 Cal.4th 197, 227; People 

v. Albarran (2007) 149 Cal.App.4th 214, 224, fn. 7.)
17

c. Admission of the evidence did not infringe Serrano’s First Amendment rights

It is axiomatic that Serrano’s freedom of expression is protected under both the 

First Amendment to the United States Constitution as well as Article I, section 2 of the 

California Constitution.23 Although these constitutional provisions limit the 

government’s ability to regulate the content of speech, they do “not prohibit the 

evidentiary use of speech to establish the elements of a crime or to prove motive or 

intent.” (Wisconsin v. Mitchell (1993) 508 U.S. 476, 489 [113 S.Ct. 2194, 124 L.Ed.2d 

436].) If the evidence is relevant to the issues being tried, its use does not violate 

the First Amendment. (People v. Quartermain (1997) 16 Cal.4th 600, 629; People v. 

Smith (2003) 30 Cal.4th 581, 626 [admission of evidence that is “relevant to actual 

criminal conduct . . . does not violate [a defendant’s] constitutional free speech rights”].)

Serrano’s First Amendment challenge is premised on his claim that “[t]he threat of 

admitting fictional, artistic writings into evidence to prove generalized notions of intent 

in criminal trials will have an impermissible chilling effect.” This analysis overlooks the 

fact that Serrano’s rap video and lyrics were not admitted simply to prove his generalized 

intent; rather, they were admitted to show that he considered himself a member of LPT 

and, as part of that affiliation, participated in a nighttime shooting of rival Norteño gang 

members. 

In Serrano’s view, the probative value of the video and lyrics was minimal, 

because rap lyrics commonly refer to shooting rival gang members, and the details of his 

lyrics did not closely track the circumstances of the shooting.24 In this case, we are not 

23 Serrano does not argue the free speech protections of Article I, section 2 of the 

California Constitution are, at least in this context, meaningfully different from the 

protections afforded by the First Amendment of the U.S. Constitution. We will likewise 

treat those protections as congruent. 

24 For example, the rap lyrics referred to “the middle of the night[,]” but the 

shooting occurred at 9:00 p.m. Serrano said in his rap that his weapon was an 

“automatic”, which could fire 16 rounds, but the gun found in Serrano’s car was a semiautomatic with a 10-round magazine. 
18

persuaded that the differences significantly reduce the probative value of the evidence. 

While the lyrics might have more probative value had they precisely mirrored the 

shooting, there were enough similarities to warrant its consideration by the jury. 

Serrano’s lyrics indicated his allegiance to LPT, a Sureño subset, and spoke of “[l]ookin’ 

for a busta [i.e., a Norteño gang member] to take away his life.” The shooters here 

walked up on the victims, in an apartment complex associated with Norteños, and opened 

fire without warning which could be considered “creepin[g].”25 While the shooting may 

have taken place earlier in the evening, and not the middle of the night, it was dark 

outside. As for the weapon’s firing mechanism and magazine size, the differences 

between an automatic weapon with a 16-round magazine and a semi-automatic weapon 

with a 10-round magazine are a matter of degree not kind. Even with semiautomatic 

weapons, the shooters were able to fire 23 shots at the victims, who initially thought they 

were hearing firecrackers, in a matter of seconds. 

Further, State v. Skinner (2014) 218 N.J. 496 (Skinner), on which Serrano relies, is 

distinguishable and thus has little persuasive value here. In Skinner, the New Jersey 

Supreme Court examined whether evidence of rap lyrics seized from the defendant’s 

vehicle could be admitted to show motive and intent under the applicable state rule of 

evidence (N.J.R. Evid. 404, subd. (b)) regarding “ ‘[o]ther crimes, wrongs or acts’ ”. 

(Skinner, supra, 218 N.J. at pp. 512.) The evidence in question was contained in three 

notebooks and, although there was no evidence offered as to when the defendant 

composed the various lyrics which were recited to the jury, the prosecution conceded that 

“many of the lyrics ... were composed long before the circumstances underlying the 

instant offense took place.” (Id. at p. 503.) At trial, a prosecution witness “read 

extensively from defendant’s lyrics[,] ... [t]he trial transcript of that uninterrupted 

25 Merriam-Webster’s defines “creeping” to mean “developing or advancing by 

slow imperceptible degrees.” (Merriam-Webster’s Dict. Online https://www.merriamwebster.com/dictionary/creeping [as of March 7, 2023].)
19

reading stretches thirteen pages. The material was replete with expletives and included 

graphic depictions of violence, bloodshed, death, maiming, and dismemberment.” (Id. at 

p. 504.)

Unlike Skinner, Serrano’s lyrics were brief and not particularly graphic in nature. 

In Skinner, the court also emphasized there was no evidence that the defendant had 

engaged in any of the events described in his rap lyrics and observed that the prosecution 

had presented no evidence undermining the conclusion that “[t]he lyrics can only be 

regarded as fictional accounts.” (Id. at p. 251.) Here, Serrano rapped about “[h]oldin’

our ground, Salastown”26 and “LPT” thus reflecting his focus on protecting Sureño 

territory by attacking and killing Norteños. 

d. The trial court did not abuse its discretion in admitting the evidence under 

Evidence Code section 352

In addition to his First Amendment challenge, Serrano alternatively argues that the 

trial court erred in its analysis of the evidence under Evidence Code section 352. In his 

view, the highly prejudicial impact of his rap lyrics “far outweighed any probative value” 

that the evidence had. 

There is no blanket prohibition in California law against admitting rap lyrics into 

evidence and several cases involving gang offenses have concluded that the probative 

value of such evidence can outweigh its unfair prejudice. In People v. Olguin (1994) 31 

Cal.App.4th 1355 (Olguin), the court affirmed the trial court’s admission of rap lyrics, 

indicating that the lyrics demonstrated the defendant’s gang membership, “his familiarity 

with gang culture, and, inferentially, his motive and intent on the day of the killing.” (Id. 

at p. 1373.) Although the lyrics also “might be interpreted as reflective of a generally 

26 Detective Gibson, the investigating officer, testified that the line, “ ‘831, 

Salastown’ ” referred to the 831 area code prefix for Monterey County and that 

“Salastown” referred to Salinas. 
20

violent attitude[,]” that prejudicial impact “could not be said [to] ‘substantially’ [] 

outweigh their considerable probative value.” (Ibid.) 

Similarly in People v. Zepeda (2008) 167 Cal.App.4th 25 (Zepeda), the prosecutor 

introduced evidence of defendant, a Norteño gang member, singing rap lyrics describing 

committing violent acts against Sureños. (Id. at pp. 33-34.) In rejecting defendant’s 

Evidence Code section 352 argument on appeal, the court concluded the “evidence was 

probative of defendant’s state of mind and criminal intent, as well as his membership in a 

criminal gang and his loyalty to it.” (Id. at p. 35.) That evidence, in conjunction “with 

the other evidence of defendant’s gang membership and his animosity towards Sureños,” 

took the lyrics outside the realm of “mere fiction” and revealed the defendant’s “state of 

mind, his motives and intentions, and his fealty to furthering his criminal gang’s 

activities.” (Ibid.)

In this case, Serrano was charged with multiple offenses, all of which were alleged 

to have been committed for the benefit of a criminal street gang. As a result, evidence of 

Serrano’s membership in a gang was highly relevant to the case. Serrano’s gang 

affiliation went to the prosecution’s theory of his motive for the shooting, and “[a] trial 

court has wide latitude to admit evidence relevant to motive.” (People v. Johnson (2019) 

32 Cal.App.5th 26, 62.) Where, as here, a crime is alleged to be gang related, “evidence 

tending to show” gang membership is “highly relevant.” (Olguin, supra, 31 Cal.App.4th 

at p. 1373.)

Beyond the question of gang membership, however, the rap video and lyrics were 

also probative of Serrano’s motive, i.e., using a gun to kill Norteños. The prosecution’s 

gang expert testified that gang members use music, and rapping in particular, to 

“communicate with each other[,]” “promote their own criminal conduct[,]” and “show 

their loyalty to their gang[.]” The gang expert also confirmed that the rap video was one 

of the pieces of evidence he relied upon in forming the opinion that Serrano was an active 

member of LPT on the day of the shooting. 
21

It is also significant that the video was made just 24 days before the shooting and 

the details closely resembled that of the shooting itself. The lyrics described coming 

upon Norteños in Salinas at night and, without warning, firing multiple rounds at them in 

an attempt to kill them. As a result, these lyrics were highly probative of Serrano’s 

motive and his intent that night.

On the other side of the ledger, the lyrics themselves were not particularly graphic, 

nor were they lengthy which might have made the evidence more prejudicial. The video 

was brief, did not show Serrano’s face at all, just his torso and one of his hands keeping 

the rhythm of the song. 

On these facts, we conclude that the trial court did not abuse its discretion in 

admitting the rap video and lyrics. (Olguin, supra, 31 Cal.App.4th at pp. 1372-1372; 

Zepeda, supra, 167 Cal.App.4th at p. 35.)

e. Even assuming error, admission of the evidence was not prejudicial

To show reversible error under state law, Serrano must show a reasonable 

probability of obtaining a more favorable result at trial if the evidence had been excluded. 

(Watson, supra, 46 Cal.2d at p. 836.) Serrano also asserts that we should examine 

prejudice under the stricter federal standard set forth in Chapman v. California (1967) 

386 U.S. 18 (Chapman) in which the burden would be on the Attorney General to show 

the error was harmless beyond a reasonable doubt. Because we have already determined 

that there was no violation of the First Amendment in admitting the video and lyrics and 

Serrano has not shown that introduction of the evidence rendered his trial fundamentally 

unfair, we will apply the standard set forth in Watson although we conclude there was no 

prejudice under either approach. 
22

In this case, the jury was instructed with CALCRIM No. 30327 not to consider any 

of the gang activity evidence, including the rap video and lyrics, as evidence of Serrano’s 

bad character or his propensity to commit crimes. The prosecutor emphasized this part of 

the instruction in rebuttal argument, stating “we’re not here to prosecute individuals for 

making gangster rap. Yes, it’s offensive. But on its own it really isn’t anything.” 

According to the prosecutor, the rap video’s value as evidence was tied to the other 

evidence showing Serrano’s motivation for shooting at Norteños, specifically his 

membership in, and loyalty to, LPT. 

Ultimately, Serrano cannot show prejudice under either Watson or Chapman due 

to the ample evidence aside from the rap video establishing his guilt. When Serrano was 

arrested, one of the guns used in the shooting was found in his vehicle. Serrano’s text 

messages on April 17 discussed organizing a shooting, both as retaliation and as a means 

of increasing an “up and coming” member’s gang status. His texts on April 18 were 

about his efforts to obtain another weapon, after which the shooting could proceed. 

On the night of April 18, around 7:00 p.m., Serrano’s cell phone was located near 

another Sureño member’s home, as were Ceja’s and Arellano’s phones. Serrano’s phone 

stopped communicating with any cell towers about 90 minutes before the shooting and 

began pinging off cell phone towers 24 minutes after the shooting, i.e., 9:31 p.m. At that 

time, both Serrano’s and Arellano’s phones were located near Arellano’s house. Less 

27 CALCRIM No. 303 provides in relevant part, as follows: “You also may 

consider the evidence presented of gang activity only for the limited purpose of deciding 

whether: [¶] A defendant acted with the intent, purpose, and knowledge that are required 

to prove the gang-related crimes and enhancements or allegations charged; [¶] OR, [¶] A 

defendant had a motive to commit the crimes charged. [¶] You may also consider this 

evidence when you evaluate the credibility or believability of a witness and when you 

consider the facts and information relied on by an expert witness in reaching his or her 

opinion. [¶] You may not consider this evidence for any other purpose. You may not 

conclude from this evidence that a defendant is a person of bad character or that he has a 

disposition to commit crime.” 
23

than an hour later, Serrano began searching for news about the shooting and, over the 

next two days, viewed two news articles about the shooting multiple times. 

In addition, the prosecution’s gang expert opined that Serrano was a member of 

LPT, corroborated by photographs of him displaying LPT gang signs and showing his 

gang-related tattoos. A jail classification officer testified, based on his personal 

knowledge, that Serrano was housed in one of the two Sureño pods following his arrest in 

this case. 

In light of the overwhelming evidence of guilt, any error in the admission of the 

rap video was not prejudicial applying either state or federal constitutional standards of 

prejudice. (Watson, supra, 46 Cal.2d at p. 836; Chapman, supra, 386 U.S. at p. 24.)

f. Evidence Code section 352.2 is not retroactive

In supplemental briefing, Serrano argues that newly enacted Evidence Code 

section 352.2 retroactively applies and the matter must be remanded to the trial court for 

it to consider the admissibility of the rap video and lyrics pursuant to that statute. He 

cites Venable, supra, 88 Cal.App.5th 445, in support of this argument. We disagree with 

Venable and conclude that Evidence Code section 352.2 is not retroactive.

Effective January 1, 2023, Assembly Bill No. 2799 (2021-2022 Reg. Sess.) added 

section 352.2 to the Evidence Code. (Stats. 2022, ch. 973, § 2.) The newly enacted 

statute provides additional procedures and factors to consider in a criminal proceeding

before admitting evidence of creative expression under Evidence Code section 352, and 

its purpose is to guard against introducing stereotypes or activating bias and to exclude 

character or propensity evidence against the defendant. (Stats. 2022, ch. 972, § 1, subd. 

(b).) 

In Venable, the court concluded that Evidence Code section 352.2 has 

ameliorative effect and thus applies to cases not yet final on appeal. (Venable, supra, 88 

Cal.App.5th at p. 456.) In that case, which involved a gang-related murder, the 

prosecution introduced into evidence a rap video, found on YouTube, featuring the 
24

defendants’ younger brother, the defendant, and other gang members, flashing gang signs 

and displaying guns, drugs, and money. (Id. at p. 452.) The lyrics included a line that the 

prosecution’s gang expert testified meant that the defendant’s younger brother had heard 

that a gang member shot someone in the head on the street where the charged murder 

occurred. (Id. at pp. 452-453.) 

In finding that Evidence Code section 352.2 has retroactive application, Venable

relied heavily on People v. Frahs (2020) 9 Cal.5th 618 (Frahs), in which the California 

Supreme Court explained that ‘ “[t]he Estrada rule rests on an inference that, in the 

absence of contrary indications, 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.” ’ (Frahs, supra, 9 

Cal.5th at p. 628.)” (Venable, supra, 88 Cal.App.5th at p. 456.) Although the statute at 

issue in Frahs, which gave trial courts discretion to grant pretrial diversion in certain 

cases “was procedural and ... didn’t directly reduce punishment ... the [California] 

Supreme Court dug deeper.” (Venable, supra. At p. 456.) The Venable court was 

persuaded that the appropriate consideration is whether the amendment “ ‘by design and 

function’ ” provides the potential for an ameliorative effect even where the “legislative 

changes ... did not directly or necessarily affect punishment.” (Id. at pp. 456-457, 

quoting Frahs, supra, at p. 624.)28

Venable was further persuaded by this court’s majority opinion in People v. 

Burgos (2022) 77 Cal.App.5th 550, review granted July 13, 2022, S274743 (Burgos), 

which found newly enacted section 1109, which permitted defendants to request a 

28 The Venable court also cited People v. Superior Court (Lara) (2018) 4 Cal.5th 

299 (Lara) in which the California Supreme Court concluded that Proposition 57, which 

changed certain juvenile court procedures, had retroactive application. (Venable, supra, 

88 Cal.App.5th at p. 457.) Again, it was the Supreme Court’s emphasis on how the 

“effect of the change was to increase the likelihood of a lesser sentence for a class of 

defendants” that was important to the analysis in Venable. (Ibid.)
25

bifurcated trial of gang charges and enhancements, to have retroactive effect. (Venable, 

supra, 88 Cal.App.5th at p. 457.) The important point, according to Venable, was that 

“bifurcation increases the possibility of acquittal, ‘which necessarily reduces possible 

punishment.’ (Burgos, at p. 567, review granted.) ” (Venable, supra, 88 Cal.App.5th at 

pp. 457-458.) 

Respectfully, we do not agree with the conclusion reached in Venable that 

Evidence Code section 352.2 is retroactive. The Legislature, acting within its authority, 

has determined that additional safeguards are necessary before “creative expression” 

(which clearly includes rap lyrics and videos of such lyrics being performed) can be 

introduced by “a party.” (Evid. Code, § 352.2, subd. (a).) Although the new statute 

requires trial courts to exercise heightened caution in deciding whether to admit such 

evidence, in enacting Evidence Code section 352.2, the Legislature has not prohibited rap 

lyrics or other forms of creative expression from being utilized in a criminal proceeding. 

“Generally, statutes are presumed to apply only prospectively. [Citation.]” 

(Frahs, supra, 9 Cal.5th at p. 627.) In Estrada, the California Supreme Court held 

“that amendatory statutes that lessen the punishment for criminal conduct are ordinarily 

intended to apply retroactively.” (Frahs, supra.) In assessing whether Evidence Code 

section 352.2 is retroactive, we believe the statute is considerably different from the 

changes in law made in the cases relied upon by Venable. For example, we are not 

dealing here with an amendatory act that “ameliorated the possible punishment for a class 

of persons.” (Lara, supra, 4 Cal.5th at p. 308 [i.e., juveniles] (italics added); see also 

Frahs, supra, 9 Cal.5th at p. 631 [i.e., defendants who suffer from a qualifying mental 

disorder].) Evidence Code section 352.2 applies to any criminal proceeding in which “a

party” seeks to introduce evidence of creative expression. (Id. at subd. (a), italics added.) 

We conclude that any link between Evidence Code section 352.2’s additional lens for 

evaluating evidence of creative expression and a lessening of punishment for criminal 

conduct is too attenuated to warrant retroactive application. Although the Legislature, in 
26

enacting Evidence Code section 352.2, may have been concerned about bias against 

people of color and people who express themselves through rap, the statute is not so 

narrow in scope. While it will likely be utilized most frequently in gang cases, the statute 

itself does not contain any such limitation, nor is it limited to any particular form of 

creative expression, e.g., rap. Even more importantly, in our view, the statute may be 

used by any party to a criminal proceeding, not just a defendant. For example, the 

prosecution could invoke Evidence Code section 352.2 in a case where a defendant offers 

the creative expression of a codefendant or a third party in an attempt to implicate that 

other person for the crime(s) at issue. Assuming the prosecution succeeded in excluding 

creative expression evidence offered by a defendant in such a case, the impact of the 

statute would be the opposite of ameliorative. 

Our research has disclosed no case, aside from Venable, which has held that an 

amendment to the Evidence Code has retroactive application.29 In Frahs, the statutory 

changes at issue were to the Penal Code. (Frahs, supra, 9 Cal. 5th at pp. 626-627.) In 

Lara, the changes were to the Penal Code and the Welfare and Institutions Code by way 

of Proposition 57. (Lara, supra, 4 Cal.5th at p. 303.) In criminal cases, the prosecution, 

the defense, and the trial courts apply the existing rules of evidence to determine what 

evidence is and is not admissible. We conclude that the changes imposed by Evidence 

Code section 352.2 do not apply retroactively. 

Even if Evidence Code section 352.2 were retroactive, Serrano cannot show that 

he was prejudiced by the failure to apply it at his trial in light of the considerable 

evidence of his guilt as we discussed in detail above. 

29 We do not foreclose the possibility that a future change to the Evidence Code 

could be deemed ameliorative and within the spirit of Estrada. More recently, the Fourth 

District Court of Appeal, Division One, and the Third District Court of Appeal disagreed 

with Venable and held that Evidence Code section 352.2 is not retroactive. (People v. 

Ramos (2023) 90 Cal.App.5th 578, 596 (Ramos); People v. Slaton (Sept. 11, 2023, 

C096437) __ Cal.App.5th ___ [2023 Cal. App. LEXIS 696] (Slaton).) We agree with the 

reasoning in Ramos and Slaton.
27

2. Prosecutorial misconduct

Serrano’s next claim of error is that the prosecutor committed misconduct by 

eliciting testimony from an investigating officer that the weapon found in Serrano’s 

vehicle was linked to two other shootings. We conclude there was no misconduct, but 

even if there were, Serrano cannot show prejudice.

a. Additional background

Detective Gibson was assigned to investigate the April 18 shooting. During the 

prosecution case, the prosecutor asked Gibson about a ballistics memorandum he had 

received relating to this case. Before Gibson began to describe the memorandum, the 

prosecutor asked for a bench conference30 and advised the court he wanted to caution 

Gibson to limit his testimony about that memo to the facts of this case. Although defense 

counsel asked for a recess so that the prosecutor could have a discussion with Gibson 

without the jurors in the room, the trial court had the prosecutor turn off his microphone 

and speak to Gibson quietly in the courtroom. 

When Gibson resumed his testimony, he said he received information that the 

firearm recovered in Serrano’s vehicle had a high probability of being linked to “this case 

as well as two others.” Defense counsel objected and the trial court confirmed that the 

testimony was for “this case only.” The court immediately instructed the jury that 

“[a]nything related to anything else is stricken. The jury is to disregard that.” 

During a break in the proceedings, the trial court chastised both the prosecutor and 

the witness for his reference to other shootings, cautioning them both that “if it happens 

again you run the risk of a mistrial and you definitely run the risk of sanctions. ... [¶] By 

that when I say ‘again’ I mean not just this case.” 

30 Outside the presence of the jury, the court subsequently summarized the bench 

discussion on the record. 
28

b. Applicable legal standards

A prosecutor engages in prosecutorial misconduct under state law if he or she uses 

deceptive or reprehensible methods to attempt to persuade either the trial court or the 

jury. (People v. Morales (2001) 25 Cal.4th 34, 44.) Under both California law and the 

federal Constitution, a prosecutor may commit misconduct warranting reversal of a 

judgment by intentionally eliciting inadmissible testimony. (People v. Fuiava (2012) 53 

Cal.4th 622, 679; People v. Smithey (1999) 20 Cal.4th 936, 959-960.) “ ‘Improper 

comments violate the federal Constitution when they constitute a pattern of conduct so 

egregious that it infects the trial with such unfairness as to make the conviction a denial 

of due process.’ ” (People v. Bell (2019) 7 Cal.5th 70, 111.) “A defendant’s conviction 

will not be reversed for prosecutorial misconduct, however, unless it is reasonably 

probable that a result more favorable to the defendant would have been reached without 

the misconduct.” (People v. Crew (2003) 31 Cal.4th 822, 839.)

c. Analysis

In this case, the record of what occurred is relatively clear. The prosecutor, with 

the knowledge that the ballistics memo referred to additional uncharged shootings, 

admonished Gibson to restrict his testimony about the report to the facts of this case. 

However, on the stand, Gibson testified that the memo indicated there was a high 

probability the weapon found in Serrano’s vehicle was linked to this shooting and two 

others. Serrano’s counsel immediately objected and the court both struck the testimony 

relating to “anything else” other than the April 18 shooting and admonished the jury to 

disregard the stricken testimony. 

On this record, it cannot be said with any certainty that the prosecutor intentionally 

sought to elicit inadmissible testimony. Gibson’s testimony, which may or may not have 

been inadvertent, was both brief and immediately stricken by the court. The court then 

admonished the jury to disregard any testimony related to anything aside from the April 

18 shooting. 
29

We disagree with Serrano that any prejudice from Gibson’s testimony could not be 

cured by the court’s admonition. The bulk of Gibson’s testimony was focused on the 

evidence seized from Serrano’s cell phone, specifically the texts, photographs, rap video, 

and browser history. The expert testimony matching the weapon found in Serrano’s 

vehicle with the April 18 shooting was proffered by a different witness. “Witnesses 

sometimes blurt things out or, as here, testify in unanticipated ways. We have to trust the 

trial court to take corrective measures when necessary, as the court here did, and the jury 

to follow the court’s instructions.” (People v. Melendez (2016) 2 Cal.5th 1, 33.) 

It was not reasonably probable that the brief reference to other shootings affected 

the outcome of the proceedings as required under state law to establish prejudice. 

(Watson, supra, 46 Cal.2d at p. 836.) Furthermore, there is no showing that the reference 

to other shootings, which was never repeated, infected the trial with unfairness sufficient 

to violate due process under the federal standard for prosecutorial misconduct. (People v. 

Morales (2001) 25 Cal.4th 34, 44.)

Accordingly, we conclude there was no prosecutorial error, but even assuming 

there was, it was not prejudicial.

3. Cell phone expert witness testimony was admissible

Serrano contends the testimony of the prosecutor’s cell phone expert witness 

regarding the location of cell phone towers in Monterey County was inadmissible casespecific hearsay. We disagree. The expert’s testimony was neither hearsay nor case 

specific.

a. Additional background

Before trial, Arellano, joined by Serrano and Ceja, filed a motion in limine 

objecting to the prosecutor’s cell phone expert’s qualifications “such that he is going to 

offer an opinion about Radio Frequency Coverage Areas related to cell phone towers,” 

and to “any testimony about specific coverage areas to specific towers” as case-specific 

hearsay as set forth in People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez). The trial court 
30

ruled that the expert could be called by the prosecution subject to defense voir dire on his 

qualifications and, with respect to the locations of cell towers and coverage areas, the 

witness “would have to establish a non-hearsay basis for that type of specific 

information.” 

At trial, the expert, Peter Austen, testified that, in addition to his experience 

evaluating cell phone evidence as a police officer, he had an additional 100 hours or so of 

formal training in cell phone analysis, including radio frequency (RF) coverage. During 

voir dire, Austen testified that he downloads the location of relevant cell phone towers 

through a website maintained by the U.S. Department of Justice. Austen confirmed that 

he had not personally observed the locations of the cell phone towers for this case.31 

Instead, Austen relied on the federal database and explained that “the cell phone 

providers are required by law to provide that [information] straight to the Department of 

Justice website.” He then confirmed that he is able to determine whether a particular cell 

phone is “pinging off” a particular tower by correlating the phone’s call detail records 

obtained from the service provider with the records from the federal database. The trial 

court ruled that Austen could testify regarding “[t]he locations of the cell towers, [and] 

the pinging of the cell phone off a particular tower” without violating Sanchez. 

At trial, Serrano and the other defendants raised a continuing objection to Austen’s 

testimony on RF coverage on “hearsay and foundational grounds.” Austen testified that, 

in analyzing the cell phone data and RF coverage in this case, he uploaded the call detail 

records from the providers into a program called ZetX. That program mapped the data, 

showing where the cell phone “ping[ed]” different cell phone towers, and based on this 

information Austen estimated the coverage area. Austen next discussed the various 

exhibits displaying the coverage areas around cell phone towers to which each of the 

31 The following day, during cross-examination, Austen testified that he had

subsequently visited “the three [cell tower locations] that were important” to the case. 
31

defendants’ phones had connected at various times both before and after the crime. The 

trial court then overruled defendants’ hearsay and foundational objections. 

b. Applicable legal standards

An expert is permitted to relate hearsay statements regarding general background 

information that contributes to his or her opinion, but not testimonial hearsay statements 

that present case specific facts. (Sanchez, supra, 63 Cal.4th at p. 675; see Crawford v. 

Washington (2004) 541 U.S. 36; Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305.) 

Pursuant to Sanchez, an expert may testify about “background information regarding his 

knowledge and expertise and premises generally accepted in his field.” (Sanchez, supra, 

63 Cal.4th at p. 685.) An expert may not, however, “relate as true case-specific facts 

asserted in hearsay statements, unless they are independently proven by competent 

evidence or are covered by a hearsay exception.” (Id. at p. 686.) 

In People v. Veamatahau (2020) 9 Cal.5th 16 (Veamatahau), the California 

Supreme Court clarified the approach trial courts must use in determining whether expert 

testimony is case-specific, explaining “[t]he focus of the inquiry is on the information 

conveyed by the expert’s testimony, not how the expert came to learn of such 

information. Thus, regardless of whether an expert testified to certain facts based on 

composite knowledge ‘acquired from sources too numerous to distinguish and quantify’ 

or if the expert simply looked up the facts in a specific reference as part of his or her 

duties in a particular case, the facts remain the same. The background or case-specific 

character of the information does not change because of the source from which an expert 

acquired his or her knowledge.” (Id. at p. 30.) In Veamatahau, the expert witness 

testified that pills found in defendant’s possession contained controlled substances. (Id. 

at p. 23.) On cross-examination, the expert testified that he did not test the pills 

themselves but relied on a federal database describing distinctive imprints the federal 

Food and Drug Administration (FDA) requires be placed on pharmaceutical products 

which identify the controlled substances they contain. (Ibid.) On appeal, the California 
32

Supreme Court concluded that the expert’s testimony did not fall afoul of Sanchez

because the federal database on which the expert relied for general information to form 

an opinion, while hearsay, is not case-specific. (Veamatahau, supra, at p. 27.)

c. Analysis

In this case as well, the federal database on which Austen relied for the locations 

of cell phone towers in Salinas was not case-specific evidence. As Austen made clear, 

that database includes location information for all cell phone towers throughout the 

country, not just those in Monterey County,32 and cell phone service providers are 

required by statute to provide this information to the Department of Justice. Upon 

obtaining the tower location information and the cell phone data records obtained from 

defendants’ service providers,33 Austen utilized a proprietary program to plot the 

locations of the relevant cell towers. Austen also confirmed on cross-examination that, 

although he had not personally verified the tower locations before his first day of 

testimony, he had in fact driven to the three most relevant towers before he testified a 

second day, thereby curing any possible hearsay problems. 

Serrano also seeks to distinguish Veamatahau by noting the drug database in that 

case “contained information applicable to all pills manufactured for distribution in the 

United States” whereas in this case “the cell tower location database revealed substantial 

32 Serrano seeks to distinguish the drug database in Veamatahau from the cell 

tower database in this case by asserting that the former “contained information applicable 

to all pills manufactured for distribution in the United States” whereas the latter “did not 

apply to all cell phone towers in the United States.” While Austen’s testimony was not 

explicit on the database’s scope, the clear implication is that the federal database includes 

all cell phone towers in the United States. Austen only downloaded the data for the cell 

phone towers in and around Salinas, just as the expert in Veamatahau looked up 

“tablet[s] that ha[ve]—in this case GG32—or 249 [as an imprint]” rather than the entire 

universe of imprints available in the FDA database. (Veamatahau, supra, at p. 23.) 

33 The parties stipulated to the admission of this information as business records 

under Evidence Code section 1271.
33

information about the particular events being tried—the defendants’ locations at various 

times—and contained information about the very cell towers that the defendants 

contacted in this specific case.” This is inaccurate. The cell phone tower location was 

useful only when combined with Serrano’s cell phone data records, which provided the 

time and place of the connection as well as the direction of the connection between the 

phone and the tower. The case-specific facts were derived from the records which 

Serrano stipulated were admissible as business records. 

Accordingly, we conclude that Austen’s testimony was admissible based on his 

personal knowledge of the location of the three most relevant cell phone towers, his 

reliance on a federal database identifying the location of cell phone towers, as well as the 

cell phone records which Serrano stipulated were admissible business records pursuant to 

Evidence Code section 1271.

4. Gang expert testimony regarding targeting non-gang members

Serrano next argues that the trial court erred in admitting testimony from the 

prosecution’s gang expert explaining how shooting or killing a non-gang member 

benefits a gang because that evidence was unduly prejudicial under Evidence Code 

section 352 and violated his due process rights. The Attorney General counters that 

Serrano has forfeited this argument by not raising a timely and specific objection at trial. 

Alternatively, the Attorney General argues the testimony was admissible as it was 

generalized background information and was more probative than prejudicial since there 

was evidence the victims were not rival gang members.

a. Additional background

Serrano moved in limine to limit any gang expert testimony on the historical 

background of Sureño and Norteño gangs. The trial court ruled that it would allow 

testimony on this subject. However, the court advised that it would “be watching for any 

[Evidence Code section] 352 issues[]” during that testimony and would entertain any 

such objections made by the defense. 
34

At trial, the prosecution’s gang expert testified as to how a shooting would 

generally benefit a gang, stating that such an act: 1) enhances the status of the gang 

member who commits it; 2) serves as an initiation into the gang, increasing its 

membership; and 3) bolsters the reputation of both the gang and the shooter in the 

community. When the prosecutor asked whether gang members “kill or only to try to kill 

or shoot at just other gang members,” Arellano’s counsel objected on relevance grounds. 

The court excused the jury and took a recess while the parties discussed the matter off the 

record.34 

When trial resumed, the trial court overruled the objection, stating, “[i]t’s a limited 

area of relevance.” The gang expert then testified that gang members do not just target 

other gang members and, depending on the circumstances, killing or shooting a non-gang 

member can benefit the gang. According to the gang expert, such an act intimidates 

members of the community, thus making them less likely to report crimes or cooperate 

with the police. 

b. Forfeiture

We first examine whether Serrano forfeited his claim of error by failing to assert a 

timely and specific objection to admission of the testimony in the trial court. (People v. 

Demetrulias (2006) 39 Cal.4th 1, 22 (Demetrulias).) Evidence Code section 353, 

subdivision (a), permits reversal of a judgment because of the erroneous admission of 

evidence only if an objection to the evidence was “timely made and so stated as to make 

clear the specific ground of the objection.” (Evid. Code, § 353, subd. (a).) The 

California Supreme Court “ ‘ “ha[s] consistently held that the ‘defendant’s failure to 

make a timely and specific objection’ on the ground asserted on appeal makes that 

ground not cognizable.” ’ ” (Demetrulias, supra, 39 Cal.4th at p. 20.) “ ‘When the 

nature of a question indicates that the evidence sought is inadmissible, there must be an 

34 After the jury was excused for the day, the parties did not make a record of this 

discussion. 
35

objection to the question; a subsequent motion to strike is not sufficient.’ ” (Id. at p. 21.) 

“The purpose of this rule ‘is to encourage a defendant to bring any errors to the trial 

court’s attention so the court may correct or avoid the errors and provide the defendant 

with a fair trial.’ [Citation.] Thus, an objection will be deemed sufficient so long as it 

‘fairly apprises the trial court of the issue it is being called upon to decide.’ ” (People v. 

Carrillo (2004) 119 Cal.App.4th 94, 101.) “Moreover, ‘[a] motion to strike must be 

directed with precision to the matter sought to be stricken. [Citation.] A motion to strike 

out inadmissible evidence may properly be denied where it is general and embraces 

evidence which is admissible as well as that which is inadmissible.’ ” (Rayii v. 

Gatica (2013) 218 Cal.App.4th 1402, 1414.)

Here, Arellano’s counsel, not Serrano’s, raised a relevance objection to the 

prosecutor’s question about gang members possibly attacking non-gang members. Even 

assuming Serrano joined in that objection at the bench conference, there is nothing in the 

record indicating that anyone raised an objection to this testimony based on Evidence 

Code section 352.35 

The relevance objection failed to fairly apprise the trial court about what testimony 

Serrano believed was objectionable. Under these circumstances, we conclude that the 

objection, even assuming he joined in it, did not adequately preserve his current claim for 

appellate review.

c. The evidence was more probative than prejudicial

Assuming Serrano did not forfeit his Evidence Code section 352 argument, we 

would still find on the merits that the evidence was more probative than prejudicial. 

35 Even had Serrano joined in Arellano’s relevance objection, he may not argue on 

appeal that his due process rights were violated because the trial court should have 

excluded the evidence under Evidence Code section 352. (People v. Partida (2005) 37 

Cal.4th 428, 436.)
36

The gang expert’s testimony explained why Sureño gang members, after arriving

at an apartment complex known to be a locus of Norteño activity, would fire at a group of 

people congregated in that complex, even without any clear indication that all of those 

people were gang members.36 

In addition, the challenged testimony was not particularly prejudicial, as it was 

brief, not cumulative, and not particularly inflammatory. The actual facts of the shooting 

were more inflammatory than generalized testimony of how gang members will attack 

non-gang members to benefit their gang. 

Serrano notes that, although the three victims denied gang membership when they 

testified, they admitted such membership to Gibson. Even if there was some evidence to 

show that Serrano knew these three men were Norteños, he and his co-defendants 

indiscriminately fired at least 23 rounds towards an apartment complex without regard to 

whether anyone else in the line of fire could be hit. 

On these facts, the trial court did not err in admitting this testimony even had 

Serrano raised an objection under Evidence Code section 352. 

5. Evidence of Serrano’s jail housing classification

Finally, Serrano claims the trial court erred in allowing a jail classification officer 

to testify that Serrano and his codefendants were housed in a Sureño unit of the Monterey 

County jail while awaiting trial. He argues the testimony was unduly prejudicial as it 

undermined the presumption of innocence, it was cumulative of the other evidence 

establishing his Sureño gang membership, and it violated his Fifth Amendment privilege. 

a. Additional background

At trial, Monterey County Deputy Omar Rubio testified that he was assigned to 

the classification unit of the Monterey County jail. According to Rubio, the classification 

unit is tasked with ensuring that inmates were placed in a housing unit that would keep 

36 Of the three victims, only Doe was wearing an article of clothing, i.e., a red hat, 

that a Sureño gang member would associate with a Norteño.
37

them safe from assault by other inmates. For their own safety, certain inmates such as 

sex offenders and gang members, including their associates, friends, and sympathizers, 

are kept separate from other inmates. In order to make the best housing decision, 

classification officers try to gather as much information as they can, starting at intake. 

After the initial screening, inmates who may need to be placed in housing apart from the 

general population are interviewed by a classification officer. Rubio testified that the 

purpose of their interviews was not to “validate” gang members but simply to make sure 

the inmates would be safe in their housing assignment. For example, even an inmate who 

is not a gang member but is “simply an associate, a family member of a gang member, a 

sympathizer, but someone that’s still in good enough standing” will be placed in the 

corresponding gang housing unit. 

Rubio testified that the Monterey County jail has two units for inmates who had 

been classified as members or associates of Sureño street gangs. One unit, called “C 

pod[,]” was for maximum security and housed inmates charged with more serious crimes, 

whereas the other, “E pod[,]” was medium security. 

Rubio testified that he was personally aware that Serrano was housed in the C pod 

at the jail.37 To his knowledge, Serrano had not been assaulted while he was in custody 

and, according to Rubio, this indicated that Serrano was in good standing with Sureños. 

Prior to deliberations, the trial court instructed jurors with CALCRIM No. 303 on 

limited purpose evidence, and specifically referred to the evidence introduced regarding 

Serrano’s custodial status. In closing argument, in summarizing the evidence proving 

Serrano’s active participation in a criminal street gang, the prosecutor mentioned 

Serrano’s “jail housing status and where he’s currently lodged” along with his prior 

contacts with law enforcement, his tattoos, photos of him throwing gang signs, and his 

rap video. 

37 The trial court overruled Serrano’s objections, based on the Fifth and Sixth 

Amendment, to this testimony. 
38

b. Analysis

With respect to Serrano’s argument that Rubio’s testimony on his gang affiliation 

was cumulative, we conclude that Serrano has forfeited that claim on appeal as he did not 

timely raise that objection at trial. (Demetrulias, supra, 39 Cal.4th at p. 22.) 

Accordingly, we will consider only his contentions that the testimony undermined the 

presumption of innocence under the Sixth Amendment and violated his Fifth Amendment 

privilege against self-incrimination. 

As to Serrano’s Sixth Amendment claim, he asserts that Rubio’s testimony was 

analogous to his wearing jail clothes during trial, citing People v. Valdez (2004) 32 

Cal.4th 73, 121 (Valdez). In his view, Rubio’s testimony was both “cumulative and 

minimally probative” in light of all the other evidence showing that he was a Sureño gang 

member, such as the photos, video, and text messages seized from his phone. 

We disagree that the evidence was not probative, particularly as Serrano was being 

tried for the crime of active participation in a criminal street gang (§ 186.22, subd. (a);

count 8). In Valdez, the California Supreme Court made clear that “the mere fact that the 

jury is made aware of a defendant’s custodial status does not deprive the defendant of his 

constitutional rights.” (Valdez, supra, 32 Cal.4th at p. 121.) Before deliberating, the jury 

was instructed that “[a]ctive participation means involvement with a criminal street gang 

in a way that is more than passive or in name only,” but also that the offense does not 

require proof of actual gang membership. Rubio testified that he knew Serrano was 

housed in C pod, a Sureño housing unit, and that he had not been assaulted. This 

testimony was not conclusive proof that Serrano was a Sureño gang member, but formed 

the basis of Rubio’s opinion that Serrano was, at a minimum, affiliated with, sympathized 

with, or was friends with Sureño gang members and was in good standing with such 

members. From these facts, the prosecutor could argue that the jury could infer Serrano’s 

active participation in a criminal street gang. The disclosure of Serrano’s custodial status 

did not violate his Sixth Amendment rights. (Valdez, supra, 32 Cal.4th at p. 121.)
39

Serrano’s claimed Fifth Amendment violation is equally without merit. Citing 

People v. Elizalde (2015) 61 Cal.4th 523 (Elizalde), Serrano contends that Rubio’s 

testimony about the classification process “led to the unavoidable conclusion” he 

“admitted” being a Sureño gang member to jail staff. We find Elizalde distinguishable.

In Elizalde, supra, 61 Cal.4th 523, the California Supreme Court determined that 

questions about gang affiliation during a jail classification booking interview are 

reasonably likely to elicit incriminating responses, making the interview a custodial 

interrogation under the Fifth Amendment. (Elizalde, at pp. 527, 541; U.S. Const., 5th 

Amend.) As a custodial interrogation, the Elizalde court found that answers to such 

questions are inadmissible in the prosecution's case-in-chief unless preceded by 

a Miranda advisement. (Elizalde, at pp. 527, 541.) The court made clear, however, that 

“it is permissible to ask arrestees questions about gang affiliation during the booking 

process. Jail officials have an important institutional interest in minimizing the potential 

for violence within the jail population and particularly among rival gangs, “ ‘which 

spawn a climate of tension, violence and coercion.’ ” Instead, it is “defendant’s answers 

to the unadmonished gang questions” that are “inadmissible in the prosecution’s case-inchief.” (Elizalde, supra, 61 Cal.4th at p. 541, internal quotation and edit marks omitted.)

In this case, nothing Serrano said to Rubio (who did not testify that he personally 

interviewed Serrano) or to the intake officer were introduced at trial. Rubio testified 

about the intake and classification process in general before stating that Serrano was 

housed in the C pod and had not been assaulted. Rubio did not testify that C pod was 

restricted to active Sureño gang members, but that the unit also housed associates, 

friends, family members, and sympathizers, meaning the jury could just as easily infer 

that Serrano had claimed to fall into one of those other categories. 

As Serrano cannot show that any statement, he made to jail officials was admitted 

in evidence, the assertion that Rubio’s testimony violated his Fifth Amendment privilege 

against self-incrimination must fail.
40

6. Cumulative Error

Serrano contends that the cumulative effect of the purported errors discussed 

above warrants reversal of the judgment. As we have found no individual error, we reject 

his cumulative error argument.

7. Serrano is entitled to resentencing under amended sections 1170 and 

1385

Serrano raises two additional claims challenging his sentence and seeking remand 

in light of changes in law which took effect January 1, 2022. First, he claims he is 

entitled to resentencing in light of Senate Bill No. 567 (2021-2022 Reg. Sess.) (Sen.Bill. 

567) which amended section 1170 to provide, in relevant part, that the low term should 

be the presumptive term for youthful offenders. (§ 1170, subd. (b)(6)(B); see § 1016.7, 

subd. (b) [defining “youth” as a person under age 26 on the date the offense is 

committed].) Second, he argues he is entitled to be resentenced pursuant to section 1385, 

as amended by Senate Bill No. 81 (2021-2022 Reg. Sess.) (Sen.Bill. 81). That 

amendment sets forth “factors that the trial court must consider when deciding whether to 

strike enhancements from a defendant’s sentence in the interest of justice.” (Sek, supra,

74 Cal.App.5th 657at p. 674.) The Attorney General concedes that Serrano is entitled to 

be resentenced under the operative versions of section 1170 and section 1385, and we 

agree. 

As we discuss below, we are remanding the matter for possible retrial of count 8 

and the gang enhancements alleged in connection with counts 1 through 7. At 

resentencing, the trial court should apply current law, including sections 1170 and 1385. 

B. Ceja’s appeal and habeas petition

In his appeal, Ceja argues that he received ineffective assistance of trial counsel, a 

claim he originally brought by way of an unsuccessful motion for new trial. Ceja 

expressly “does not challenge the [trial] court’s exercise of discretion in denying the 
41

motion as the motion failed to present instances of deficient performance to consider.”38 

He instead seeks to raise those “specific instances of deficient performance” by his trial 

counsel for the first time on appeal. 

Ceja’s petition for a writ of habeas corpus, supported by several sealed 

declarations, including a declaration from trial counsel, also raises claims of ineffective 

assistance of counsel and we address that petition by separate order. The additional 

materials presented in the habeas petition—which we cannot consider in resolving the 

appeal—convince us it should be examined in the trial court. (See People v. Snyder

(1993) 14 Cal.App.4th 1166, 1171 [“[W]hen the appellate record does not, or cannot, 

reflect the grounds for a claim of ineffective assistance of counsel, the issue is 

appropriately raised by a petition for writ of habeas corpus. [Citation.].”) We will

therefore issue a separate order to show cause returnable to the trial court. 

1. Overview of Ceja’s claims on direct appeal

Ceja claims that counsel rendered ineffective assistance in the following ways: 1) 

counsel elicited testimony from the firearms database technician that he was certain some 

of the casings recovered from the scene of the shooting matched the weapon seized from 

Ceja’s vehicle; 2) counsel failed to preclude similar testimony by a tool marks expert; (3) 

counsel failed to object to the tool marks expert’s hearsay testimony that his supervisors 

had approved and agreed with the conclusions in his report; 4) counsel failed to object to 

the investigating detective’s testimony about distinctive features of Ceja’s SUV that 

matched features of an SUV shown in the surveillance video just before the shooting; 5) 

counsel failed to object to testimony about his tattoos under Evidence Code section 352 

as more prejudicial than probative; 6) counsel failed to adequately prepare his alibi 

38 As noted, ante, in footnote 3, because Ceja has not contested the order denying 

his motion for a new trial, we do not consider any of the materials, including declarations 

filed under seal, he submitted in support of that motion as part of the record in his direct 

appeal. 
42

witness or investigate his alibi defense; and 7) counsel was “emotional and bizarre” in her 

opening and closing statements. For the reasons discussed below, we conclude that, 

based on the record in his direct appeal, Ceja has not shown constitutionally deficient 

performance by trial counsel because the record demonstrates a rational tactical purpose 

underlying each of the acts or omissions that Ceja challenges on appeal. 

b. Applicable legal principles

To prevail on an ineffective assistance of counsel claim, a defendant must 

establish that trial counsel’s performance was deficient, and that defendant suffered 

prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 [104 S.Ct. 2052, 80 

L.Ed.2d 674] (Strickland).) The deficient performance component of an ineffective 

assistance of counsel claim requires a showing that “counsel’s representation fell below 

an objective standard of reasonableness” under prevailing professional norms. (Id. at p. 

688.) Regarding prejudice, a “defendant must show that there is a reasonable probability 

that, but for counsel’s unprofessional errors, the result of the proceeding would have been 

different.” (Id. at p. 694.)

“On direct appeal, a conviction will be reversed for ineffective assistance only if 

(1) the record affirmatively discloses counsel had no rational tactical purpose for the 

challenged act or omission, (2) counsel was asked for a reason and failed to provide one, 

or (3) there simply could be no satisfactory explanation. All other claims of ineffective 

assistance are more appropriately resolved in a habeas corpus proceeding.” (People v. 

Mai (2013) 57 Cal.4th 986, 1009.) 

c. Analysis

Ceja argues that his trial counsel rendered ineffective assistance through her: 1) 

cross-examination of Mark Babione, one of two witnesses who testified about firearms; 

2) failure to bring an in limine motion precluding Babione and Scot Graham Armstrong, 

an expert in tool mark and firearm identification, from opining that bullet casings found 

at the scene had been fired by the weapon associated with Ceja; and 3) failure to object to 
43

Armstrong’s testimony that his supervisors had reviewed his report and agreed with his 

conclusions. 

i. Trial counsel’s examination of Babione

Babione, a “crime gun intelligence coordinator” for the Bureau of Alcohol, 

Tobacco, Firearms, and Explosives testified that he had been assigned to the Salinas 

Police Department to work with a ballistics database known as the Integrated Ballistics 

Identification System (IBIS), that tracks firearms and ammunition, similar to a database 

used for fingerprints. Ceja argues that trial counsel elicited improper opinion testimony 

from Babione establishing that he was certain that some of the casings left at the shooting 

had been fired by the .40-caliber Glock 23 pistol that was discovered in Ceja’s 

possession. 

We are not persuaded that counsel’s questioning of Babione, considered as a 

whole, demonstrates deficient performance by counsel. She began her cross-examination 

by noting that Babione’s examination of the shell casings was used to identify firearms 

that could have been used in the shooting, not to identify a match between a particular 

firearm and the casings found at the scene. Counsel then elicited Babione’s admission 

that he had tested only some of the casings found at the scene, that the database he used 

did not encompass all the particular firearms that used .40 caliber ammunition, and 

finally emphasized that Babione could only use the phrase “in all likelihood” to support 

his opinion that the casings were “fired by the same firearm.” “[N]ormally the decision 

to what extent and how to cross-examine witnesses comes within the wide range of 

tactical decisions competent counsel must make. [Citation.] ‘Even where defense 

counsel may have “ ‘elicit[ed] evidence more damaging to [the defendant] than the 

prosecutor was able to accomplish on direct’ ” [citation], we have been “reluctant to 

second-guess counsel” [citation] where a tactical choice of questions led to the damaging 

testimony.’ [Citation.]” (People v. Cleveland (2004) 32 Cal.4th 704, 746.)
44

On this record, counsel’s examination sought to undermine Babione’s credibility 

and point the jury toward the possibility that another weapon could have fired the casings 

discovered at the scene. This was a reasonable tactic under the circumstances and does 

not show counsel was ineffective. 

ii. Failure to move in limine to preclude opinion evidence by a qualified expert 

in tool mark and firearm identification 

Ceja next argues that trial counsel was ineffective for failing to move to preclude 

testimony by Armstrong, a tool mark and firearm identifications expert, that casings test 

fired from Ceja’s gun matched some of the casings recovered from the shooting. We 

disagree that this could amount to ineffective assistance because the expert in question 

was qualified to render such an opinion and any objection to his testimony on this matter 

would have been overruled. 

After the prosecution voir dired Armstrong about his work experience, his 

training, and his experience testifying as an expert, the prosecution moved to designate 

Armstrong “as an expert in the area of [tool mark] and firearm identifications” without 

objection from any of the three defense counsel. 

On direct examination, Armstrong testified about how he compared tool marks on 

the casings recovered from the crime scene with the casings recovered from test firing the 

firearms seized from Ceja and Serrano. According to Armstrong, individual 

characteristics he observed on the casings from the shooting would not be present in other 

guns of the same make and manufacturer. Based on his knowledge and experience 

Armstrong described his conclusion that the casings from the shooting and those testfired from Ceja’s gun were a match. 

It is well-settled that “[r]epresentation does not become deficient for failing to 

make meritless objections.” (People v. Ochoa (1998) 19 Cal.4th 353, 463 (Ochoa).) In 

this case, it is clear that any attempt to preclude Armstrong’s testimony would have been 

futile. This conclusion is further supported by the fact that neither Serrano’s nor 
45

Arellano’s defense counsel apparently believed there was any arguable merit bringing 

such an in limine motion on behalf of their clients. 

People v. Azcona (2020) 58 Cal.App.5th 504 (Azcona) is not of assistance to Ceja. 

In that case, the expert (coincidentally Armstrong as well) was comparing casings from 

two crime scenes and opining that those casings were fired by the same (unrecovered) 

weapon. (Id. at p. 509; see id. at p. 518 (conc. opn. of Greenwood, P.J.).) The 

concurring opinion, which would have precluded all expert testimony regarding tool 

marks, contended there was no evidence of general acceptance by the scientific 

community of tool marks as a method to compare firing pin marks on shell casings. (Id. 

at p. 525 (conc. opn. of Greenwood, P.J.).) However, it was the fact that there was no 

weapon recovered which could be test-fired that was critical to distinguish the technique 

in Azcona from the reliable and generally accepted technique discussed in People v. 

Cowan (2010) 50 Cal.4th 401 (Cowan). The concurring opinion in Azcona noted that 

“Armstrong did not have the gun used in the offenses, and he compared two shell casings 

with each other, not a bullet with a barrel. The methods bear some abstract similarity in 

that both involved ‘ “essentially a tool mark type of examination when one looks at 

impressed or striated materials, marks, and that is not a new technique’ (Cowan, supra, 

50 Cal.4th at p. 470), but the similarity ends there.” (Azcona, supra, 58 Cal.App.5th at 

pp. 525–526 (conc. opn. of Greenwood, P.J).) In this case, Armstrong had the weapon 

seized from Ceja to test-fire and could thus directly compare the casings. 

iii. References to supervisors’ agreement with expert report 

Finally, Ceja argues his trial counsel was ineffective for not objecting when 

Armstrong testified that his report had been reviewed by his supervisors and that those 

supervisors agreed with his conclusions. 

The first such instance occurred when the prosecutor was establishing a 

foundation for Armstrong to testify about his report. The prosecutor asked how 

Armstrong’s report was generated and Armstrong explained that after he drafted the 
46

report, it was reviewed by another qualified examiner, and the revised draft report was 

reviewed again by the laboratory supervisor. When Armstrong added, “[s]o the three 

people have about 90 years of experience in the field[,]” there was no objection from any 

defense counsel. 

The next two instances were elicited by Arellano’s counsel, who asked Armstrong 

why he did not have just one photograph that showed both the tool marks from the gun 

and the fired cartridge case. After Armstrong explained he probably had photographed 

the markings on the gun using a handheld camera, Arellano’s counsel challenged 

Armstrong that “the jury has to ... take your word for it; correct?” Armstrong responded 

that his “comparison [] was reviewed by two other people that we have an identification.” 

On recross-examination, Arellano’s counsel again confronted Armstrong about the 

subjective nature of his conclusions, to which Armstrong responded that that “a chain of 

reviewers[,]” who were also “competent forensic scientists” had agreed with him. 

While Armstrong’s references to his supervisors’ review of his report and their 

agreement with his conclusions were subject to an objection as case-specific hearsay, the 

failure to object does not rise to constitutionally deficient representation. (Azcona, supra, 

58 Cal.App.5th at p. 514; Sanchez, supra, 63 Cal.4th at p. 675.) 

As a threshold matter, Armstrong’s most direct testimony about what his 

supervisors did was elicited on cross-examination by co-defense counsel, and none of the 

three defense attorneys raised an objection when that testimony came out. Not objecting 

was a reasonable tactical decision because Armstrong’s testimony could reasonably be 

seen by the jury as defensive in that he needed to buttress the accuracy of his report by 

these references to other authorities. 

“[W]hen a testifying expert offers an independently formed opinion, erroneously 

admitted evidence that a supervisor agrees with the opinion will often be harmless.” 

(Azcona, supra, 58 Cal.App.5th at p. 515.) In contrast to this case, the evidence was not 

found harmless in Azcona because “the expert’s independent opinion was itself 
47

inadmissible” and, thus, “[t]aken together,” the expert’s conclusion “and the hearsay 

statements about the supervisor approval gave the impression that the expert’s opinion 

was entitled to more weight than it would otherwise deserve.” (Ibid.) 

Here, Armstrong’s opinion that some of the casings at the scene were fired by 

Ceja’s weapon was admissible. (Cowan, supra, 50 Cal.4th at pp. 470-471.) In addition, 

significant circumstantial evidence aside from Armstrong’s report linked Ceja to the 

crime, including his phone records and the surveillance video of his vehicle at the crime 

scene. Armstrong’s brief references to his supervisor’s opinions were not so pivotal or 

decisive that their admission unduly swayed the jury.

iv. Gibson’s testimony about Ceja’s Denali SUV 

Ceja also contends that trial counsel was ineffective for failing to object to 

Gibson’s testimony that Ceja’s vehicle was “unique” because Gibson lacked the expertise 

to render such an opinion. 

Ceja was driving a GMC Yukon Denali SUV, registered to his address, when he 

was arrested after the shooting. Gibson testified that, in investigating the shooting, he 

retrieved and viewed a surveillance video from a nearby market which showed “a white 

GMC Yukon Denali ... enter[] ... the view of the camera moments before the shooting.” 

According to Gibson, he believed the SUV was possibly related to the shooting because 

in the video “I actually observed that vehicle slow down and pull to the right-hand curb 

line prior to the entry or the driveway to the complex.” 

As Gibson began to describe the vehicle’s distinctive features, Serrano’s counsel 

objected based on lack of foundation, and the trial court sustained the objection. The 

prosecutor then asked Gibson a series of questions to demonstrate his familiarity “with 

the Yukon model Denali in the mid-to late-2000s or, I guess, early 2000, mid-2000 

models[.]” Gibson testified that he researched that model of vehicle during the 

investigation and had personally viewed such vehicles. He then identified what he found 

distinctive about the vehicle shown in the video: “You have the sunroof and the white 
48

running boards. It lacks the silver metallic strip along the passenger and driver’s side 

door. [¶] And it’s cut off in there, but if you look at the front bumper of the vehicle it’s 

actually completely painted white. On a regular Yukon that is, like, silver or metal, silver 

metal color. And in this video it’s actually white and the Yukon Denali and the colors it 

comes in will paint it all the way around the bumper.” 

As a threshold matter, Gibson’s observations did not necessarily require 

qualification of an expert as they were not “[r]elated to a subject that [was] sufficiently 

beyond common experience.” (Evid. Code, § 801, subd. (a).) It does not require an 

expert to notice that a vehicle has a sunroof, tinted windows, a painted bumper, or other 

special features. 

Ceja’s claim of error must be rejected as this is not a circumstance in which there 

is no satisfactory explanation for failing to object. (Mendoza-Tello, supra, 15 Cal.4th at 

p. 266.) Any such objection would have invited further examination into the specifics of 

Gibson’s research into GMC Yukon Denali SUVs which would have reinforced the 

conclusion that the features of Ceja’s vehicle were distinctive and it was unlikely that 

another GMC Yukon Denali SUV appeared on the video. Accordingly, we cannot say 

the failure to object demonstrates deficient performance or was constitutionally 

ineffective. (Strickland, supra, 466 U.S. at p. 688-689.)

v. Expert testimony about gang-related tattoos

Ceja claims that his counsel rendered ineffective assistance by failing to object to 

the testimony by the prosecution’s gang expert, Justin Salinas, that gang tattoos were 

significant to show that gang members had committed shootings or violent acts. 

Specifically, Ceja claims his counsel should have interposed objections when: 1) the 

prosecutor elicited background information about gang tattoos; 2) Arellano’s counsel 

elicited information about the meaning of specific tattoos; and 3) Arellano’s counsel 

argued in closing argument that Arellano had no tattoos, in contrast to Ceja, and repeated 

Salinas’s testimony that Ceja’s tattoo was “this Salinas symbol . . . that signifies either 
49

shooting or hurting specifically a Norteño.” Because any objection to this testimony 

would have been overruled, the failure to object cannot amount to ineffective assistance 

of counsel. (Ochoa, supra, 19 Cal.4th at p. 463.)

In Sanchez, supra, the California Supreme Court held that expert testimony about 

the significance of particular gang tattoos was admissible “background information.” 

(Sanchez, supra, 63 Cal.4th at p. 677, 685.) Salinas’s testimony about the meaning of 

Ceja’s tattoos was within his expertise and, thus, admissible. (Evid. Code §§ 720, 801, 

802; People v. Valencia (2021) 11 Cal.5th 818, 835.)

Salinas testified about Sureño tattoos in general, and Ceja’s tattoos in particular, 

based on photographs that were independently admitted. (Sanchez, supra, 63 Cal.4th at 

p. 677, 685.) He confirmed that gang tattoos are significant, especially “hood specific 

tattoos or other types of symbols that come out of the prison system.” As to the photos of 

Ceja’s tattoos, Salinas testified about their symbolism and how he relied on them in 

concluding that Ceja was an active participant in the Sureño criminal street gang at the 

time of the crime. According to Salinas, a tattoo of a broken star or a star with holes in it 

would sometimes indicate that the person has shot a Norteño. 

In Arellano’s counsel’s closing argument, he merely referenced Salinas’s 

admissible testimony that gang tattoos have to be earned as proof that Arellano, who had 

no tattoos, was not a gang member. 

Because the argument accurately reflected admissible evidence, there was no basis 

for Ceja’s trial counsel to object. (People v. Seumanu (2015) 61 Cal.4th 1293, 1331.)

Ceja’s alternative argument that counsel should have objected to the argument as 

impermissible character evidence under Evidence Code section 1101, subdivision (a), or 

as unduly prejudicial without probative value under Evidence Code section 352, is also 

meritless. Even if such objections had merit, Ceja cannot demonstrate counsel had no 

tactical reason for failing to assert them. It is clear from the record that Ceja’s defense 
50

strategy was not based on refuting his gang affiliation but rather to show that he could not 

have been present when the shooting occurred.

Furthermore, both the nature and meaning of Ceja’s tattoos were highly probative 

because the charges arose from a gang-related shooting. (People v. Hernandez (2004) 33 

Cal.4th 1040, 1049 (Hernandez).) “Evidence of the defendant’s gang affiliation—

including evidence of the gang’s territory, membership, signs, symbols, beliefs and 

practices, criminal enterprises, rivalries, and the like—can help prove identity, motive, 

modus operandi, specific intent, means of applying force or fear, or other issues pertinent 

to guilt of the charged crime.” (Ibid.)

vi. Trial counsel’s examination and investigation of Ceja’s alibi witness 

Ceja claims that his counsel rendered deficient performance by not fully 

investigating how his alibi witness, Cristobal Gonzalez, would establish the means by 

which he “clock[ed]-in” at work on the day of the murder. In Ceja’s view, if defense 

counsel knew Gonzalez could establish that Ceja could clock-in for his shift by 

telephone, but only from a telephone at his work site, then his counsel was deficient for 

not eliciting such testimony more clearly at trial, thus strengthening his alibi defense. 

Alternatively, if counsel had known that it was possible for Ceja to have clocked-in 

remotely from any telephone, rather than at the worksite, then counsel was deficient for 

attempting to present an alibi defense at all. 

Ceja’s alibi defense was that he was at work in Morgan Hill shortly after the 

shooting, and to that end, the defense introduced Ceja’s work records showing he had 

“clocked in” to his job at 9:59 p.m. In support of its case, the prosecution had introduced 

cell phone records showing that Ceja was actually near the apartment complex at the time 

of the shooting and was still in Salinas at 9:19 p.m. The defense sought to show that it 

was impossible for Ceja to have arrived in Morgan Hill within 40 minutes of leaving 

Salinas. In rebuttal, the prosecution’s investigating officer, John Coletti, testified that on 

two test drives from Salinas to Ceja’s job site in Morgan Hill, both beginning at 9:19 
51

p.m., he arrived within 37 minutes with his cruise control set at 65 miles per hour and 

within 33 minutes when he set it to 70 miles per hour. 

During the defense case, Ceja’s counsel first called, Gloristela Morales, the 

custodian of records for Ceja’s employer. Through Morales, trial counsel introduced a 

timekeeping report for “Carlos Delgado” on April 18, 2016, the day of the shooting, as a 

business record. This record indicated that “Carlos Delgado” had clocked in to work at 

9:59 p.m. that evening. On cross-examination, Morales testified that employees “have to 

go to a specific area” where the supervisor placed a time clock to “clock in.” 

The next defense witness, Cristobal Gonzalez, testified that he was the area 

supervisor when Ceja worked at a site in Morgan Hill, and he knew Ceja as “Carlos 

Delgado.” Gonzalez testified on cross-examination that he did not specifically remember 

working on April 18, and, regardless, would not have witnessed Ceja clock in since he 

was not his direct supervisor. 

On redirect, Ceja’s counsel elicited Gonzales’s admission that he could not 

remember where he was on April 18, 2016, only “[b]ecause it’s been almost two years.” 

Counsel then asked more questions about the “clock in” procedure, presumably to rebut 

any inference that someone else might have been able to clock in for Ceja. Gonzales said 

that an employee “would clock in or punch in through the telephone, a company 

telephone” and enter a code. If the telephone system was not working, the employee 

would have to sign in on arrival. Although the clock in system presently required the 

employee’s fingerprint, defense counsel confirmed that the fingerprint clock in was not in 

place when Ceja worked there. 

On recross-examination, Gonzalez testified that Ceja’s time sheet showed that 

9:59 p.m. was “the time that [Ceja] called into the phone number to clock in,” as 

Gonzalez had just described. 

Ceja appears to claim that his counsel’s performance was deficient because, 

without proper investigation, she asked Gonzalez questions that prompted him to testify 
52

that an employee could clock-in by telephone, thereby weakening his alibi defense. On 

the other hand, if the clock-in system required use of a company phone, then, his counsel 

was deficient in not making clear that Ceja had to be at work to clock in. 

As a threshold matter, the record shows that the reason counsel called Gonzalez 

was to establish that Ceja was “Carlos Delgado,” the employee on the timecard who 

clocked in at 9:59 p.m. the night of the shooting. When Gonzalez admitted on crossexamination that he would not have observed Ceja clock in as he was not his direct 

supervisor, defense counsel sought to rebut the inference that someone might have 

clocked in for Ceja by inquiring further into the procedure on redirect. On its face, the 

decision to call Gonzalez as a witness was rational and, in fact, necessary as otherwise 

there would be no evidence to tie Ceja to the timecard ostensibly showing when he 

arrived at work that night. Consequently, we do not find that such actions indicate 

deficient performance by counsel. 

vii. Trial counsel’s opening statement and closing argument 

Ceja asserts that trial counsel’s conduct was “emotional and bizarre at times.” 

At the outset of her opening statement, trial counsel talked about circumstantial 

evidence. Just before informing jurors of her intention to present an alibi defense, she 

stated: “So maybe now you want to know what [Ceja] was doing, where he was or what 

his story is about April 18. [¶] Well, in order to have a story to tell you, my client has to 

tell me where he was and what he was doing. And he can’t do that. But what we do 

know is he wasn’t there. [¶¶] But what we do know is that [Ceja] was at work that 

night. What we do know is that he checked in at 10, because there’s a time card. [Sic.] 

And he checked out at 6:30 a.m. We do know that. [¶] And, by the way, [Ceja] works in 

Morgan Hill.” 

Next, Ceja claims that in closing argument, trial counsel argued against his interest 

by stressing the importance of the weapon found in his possession. Finally, the court 

interrupted trial counsel when she made the following statement to the jury, “What you 
53

saw here the last two weeks was a person [counsel] who underestimated the difficulty in 

this matter and overestimated her ability—.” At this point, the trial court asked the 

parties for a sidebar conference, following which the court instructed jurors “to disregard 

that last comment.” 

Again, the record shows that counsel’s decisions to focus on Ceja’s alibi defense 

and the circumstantial nature of the evidence—just as Serrano’s counsel did—were 

reasonable tactical choices. Her attempt to suggest to the jury that she was not up to the 

task of defending Ceja was also a rational tactic in seeking to have the jury blame her, 

rather than her client, for not presenting Ceja’s case as well as the prosecution might have 

presented theirs.

39

 

C. Ceja’s indeterminate sentencing on counts 1 through 3

On September 20, 2019, the court imposed a total sentence of 110 years to life on 

counts 1 through 3, as follows: (1) on count 1, the court imposed a sentence of 40 years to 

life in prison, consisting of a term of 15 years to life due to the gang enhancement 

(§ 186.22, subd. (b)(5)), plus a consecutive term of 25 years to life due to the firearm 

enhancement (§ 12022.53, subd. (d)); and (2) on counts 2 and 3, the court imposed 

identical consecutive terms of 35 years to life in prison, consisting of 15 years to life 

terms due to the gang enhancement (§ 186.22, subd. (b)(5)), plus consecutive terms of 20 

years to life due to the firearm enhancement (§ 12022.53, subd. (c).) These sentences are 

repeated in the abstract of judgment. 

39 Finally, Ceja argues that the cumulative effect of the errors by trial counsel 

warrant reversal even if each error, standing alone, would not be sufficiently prejudicial. 

(In re Gay (2020) 8 Cal.5th 1059, 1087.) As we have determined that the record shows a 

rational tactical purpose underlying each of the claimed errors or omissions, there can be 

no cumulative error. 
54

Citing People v. Wong (2018) 27 Cal.App.5th 972 (Wong), Ceja argues the trial 

court erred in expressing his sentence in this way on counts 1, 2, and 3 due to its 

reference to a minimum term of imprisonment instead of his minimum parole eligibility. 

We are not persuaded by the statements in Wong, supra, 27 Cal.App.5th 972, that 

this “shorthand pronouncement is incorrect because it indicates a minimum term exists, 

rather than a minimum parole eligibility.” (Id. at p. 977, fn. 4.) While it might be more 

precise to describe the minimum term of confinement as the minimum parole eligibility 

period, it was not clearly error for the trial court to characterize it as a minimum term of 

imprisonment. In addition, we agree with People v. Jefferson (1999) 21 Cal.4th 86

(Jefferson), that describing the minimum parole eligibility period as a minimum prison 

term accurately communicates the import of Ceja’s sentence in a straightforward way that 

may be more easily understood by those who are not criminal law specialists. 

(See Jefferson, supra, 21 Cal.4th at p. 101, fn. 3.)

D. Abstract of judgment must be corrected regarding proper firearm 

enhancement

As to counts 2 and 3, the jury found firearm enhancement allegations true pursuant 

to section 12022.53, subdivision (c). The court imposed section 12022.53, subdivision 

(c) enhancements when it sentenced Serrano and Ceja. Nevertheless, both Serrano’s and 

Ceja’s abstracts of judgment incorrectly list “PC 12022[.]53(d)” on counts 2 and 3 and

they both seek correction of their abstracts. The Attorney General concedes the errors, 

and we agree the concession is well-taken.

Discrepancies between an abstract of judgment and the actual judgment as orally 

pronounced are subject to correction at any time and should be corrected by a reviewing 

court when detected on appeal. (People v. Mitchell (2001) 26 Cal.4th 181, 188.) 

Accordingly, on remand, the trial court should ensure that the new abstract of judgment 

accurately reflects the correct statutory provision, i.e., section 12022.53, subdivision (c), 

for the firearm enhancements associated with counts 2 and 3.
55

E. Assembly Bill Nos. 333 and 518

In supplemental briefing, Serrano and Ceja argue they are entitled to the 

retroactive application of amendments to sections 186.22 and 654 which became 

effective on January 1, 2022. Assembly Bill No. 333 (2021-2022 Reg. Sess.) amended 

section 186.22, by, among other things, modifying the definitions of “pattern of criminal 

activity” and “criminal street gang,” as well as clarifying what is required to establish that 

an offense “benefit[s], promote[s], further[s], or assist[s]” a criminal street gang. (Stats. 

2021, ch. 699, § 3.) Assembly Bill No. 518 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 441, 

§ 1) amended section 654 by eliminating the requirement that a defendant shall be 

punished under the provision providing for the longest term of imprisonment and 

granting the trial court discretion to impose punishment under any of the applicable 

provisions.

Serrano and Ceja also argue that they are entitled to the retroactive application of 

Assembly Bill No. 333’s enactment of section 1109, which empowers defendants to 

request a bifurcated trial on gang enhancements. 

The Attorney General agrees that both defendants are entitled to reversal of the 

guilty verdicts on the substantive gang offense (§ 186.22, subd. (a); count 8), as well as 

the true findings on the gang enhancements (§ 186.22, subd. (b)) charged in connection 

with counts 1 through 7. The Attorney General further agrees that both defendants are 

entitled to resentencing on counts 1 through 7 for the trial court to exercise its discretion 

under section 654, as amended. However, the Attorney General does not agree that 

section 1109 is retroactive but, even if it were, the Attorney General argues that the 

defendants were not prejudiced by the failure to bifurcate the gang enhancements.

1. Amendments to section 186.22 and effect on substantive gang offense and 

gang enhancements

As explained in People v. Perez (2022) 78 Cal.App.5th 192 (Perez), “Assembly 

Bill No. 333 . . . amended section 186.22 by modifying the definitions of ‘pattern of 
56

criminal activity’ and ‘criminal street gang,’ and it clarified what is required to show an 

offense ‘benefit[s], promote[s], further[s], or assist[s]’ a criminal street gang.” (Id. at 

p. 206.) Section 186.22 now “ ‘requires proof of the following additional requirements 

with respect to predicate offenses: (1) the offenses must have “commonly benefited a 

criminal street gang” where the “common benefit . . . is more than reputational”; (2) the 

last predicate offense must have occurred within three years of the date of the currently 

charged offense; (3) the predicate offenses must be committed on separate occasions or 

by two or more gang members, as opposed to persons; and (4) the charged offense cannot 

be used as a predicate offense.’ ” (Perez, supra, at p. 206.) “With respect to common 

benefit, the new legislation explains: ‘[T]o 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.’ ” (People v. Lopez (2021) 73 Cal.App.5th 327, 345 (Lopez).)

We agree with the parties regarding the retroactive application of amended 

section 186.22. The amendments to section 186.22 by Assembly Bill No. 333 increased 

the threshold for conviction under the gang enhancement statute. “ ‘[A] defendant is 

entitled to the benefit of an amendment to an enhancement statute, adding a new element 

to the enhancement, where the statutory change becomes effective while the case was on 

appeal, and the Legislature did not preclude its effect to [a] pending case.’ ” (Lopez, 

supra, 73 Cal.App.5th at p. 344.) Accordingly, Serrano and Ceja are entitled to 

retroactive application of amended section 186.22. 

The parties agree that the record lacks substantial evidence that the defendants 

“collectively” engaged in a “pattern of criminal activity” as required by amended 

section 186.22. We agree with the parties that the record is insufficient to support the 

heightened proof requirements of amended section 186.22.
57

Based on the foregoing, we will vacate Serrano’s and Ceja’s convictions on the 

substantive gang offense (count 8) and the true finding on the gang enhancement

allegations on counts 1 through 7. We will remand the matter to allow the prosecution 

the opportunity to retry both the substantive gang offense and the gang enhancement 

allegations. (Sek, supra, 74 Cal.App.5th 657, 674.)

2. The defendants were not prejudiced by failure to bifurcate the gang 

enhancements 

Effective January 1, 2022, Assembly Bill No. 333 (2021-2022 Reg. Sess.) added 

section 1109 (Stats. 2021, ch. 699, § 5) to the Penal Code. Section 1109, subdivision (a) 

provides that, upon request by the defense, a gang enhancement charged under 

subdivision (b) or (d) of section 186.22 shall be tried separately after determination of the 

defendant’s guilt of the underlying charge. Section 1109, subdivision (b) provides that a 

violation of section 186.22, subdivision (a) shall be tried separately from all other charges 

that do not require gang evidence as an element of the offense.

In supplemental briefing, both defendants argue that the bifurcation requirement 

created by section 1109 applies retroactively to their convictions, which are not yet final. 

They further argue that the failure to bifurcate requires that we reverse the entire 

judgment entered against each of them so that the charges may be tried in a bifurcated 

proceeding in which the jury will first deliver a verdict on the underlying charges without 

being exposed to the evidence relating to the gang enhancements. The Attorney General 

disagrees on both points.40

As our Supreme Court has recently noted, case law is split on the question of 

whether section 1109 applies retroactively. (People v. Tran (2022) 13 Cal.5th 1169, 

1208 (Tran).) In Tran, our Supreme Court declined to take a position on whether section 

40 The Attorney General also argues the issue is forfeited. We decline to address 

the question of forfeiture because we reach the merits and reject the underlying claim. 

(See People v. Lua (2017) 10 Cal.App.5th 1004, 1014.)
58

1109 applies retroactively to convictions that are not yet final, as any error in failing to 

bifurcate the trial of the gang enhancements was harmless in that case. (Tran, supra, at 

p. 1208.)41 As we will explain, we take the same approach here. Assuming without 

deciding that section 1109 applies retroactively, the failure to bifurcate the trial of the 

gang enhancements was harmless error.

In their supplemental briefs, filed prior to our Supreme Court’s issuance of Tran, 

the defendants argue that the failure to bifurcate the trial of the gang enhancements 

constituted structural error and is therefore reversible per se. That position was rejected 

in Tran. (Tran, supra, 13 Cal.5th at p. 1208 [rejecting the defendant’s “contention that 

the failure to bifurcate constitutes structural error”].) Because the admission of 

prejudicial evidence typically constitutes trial court error, a reviewing court can evaluate 

the extent of the prejudice. (See, e.g., People v. E.H. (2022) 75 Cal.App.5th 467, 480 

(E.H.) [applying Watson harmless error analysis].) 

3. Evaluating the evidence here, the failure to bifurcate was harmless 

First, Serrano and Ceja still would have been convicted of all their offenses since 

there was overwhelming evidence that implicated them in the shooting, including 

possession of the weapons used, the text messages planning the shooting, cell tower 

evidence establishing their proximity to the crime scene and their codefendant, Serrano’s 

immediate search for and repeated views of news articles about the shooting, Ceja’s flight 

path to his work just after the shooting; and surveillance video of Ceja’s distinctive 

Denali SUV approaching the location of the shooting moments before it occurred. In 

such circumstances, “it is unlikely the defendant was harmed by the format of the trial.” 

(People v. E.H., supra, 75 Cal.App.5th at p. 480, citing People v. Pinholster (1992) 1 

Cal.4th 865, 931, overruled on other grounds in People v. Williams (2010) 49 Cal.4th 

41 The question of whether section 1109 applies retroactively is currently under 

review by the California Supreme Court in People v. Burgos, supra, 77 Cal.App.5th 550, 

review granted July 13, 2022, S274743. 
59

405, 459 [failure to bifurcate was harmless because of overwhelming evidence of 

defendant’s guilt on relevant charges].)

Second, section 1109 does not necessarily preclude gang-related evidence in a 

bifurcated trial if the evidence relates to the underlying charges. (People v. Ramos (2022) 

77 Cal.App.5th 1116, 1132.) Here, as in Ramos, much of the gang evidence relating to 

Serrano would have been introduced at trial on the underlying offenses because it was 

relevant to Serrano’s actions prior to the shootings, and his motive for his actions that 

night, i.e., hunting rival gang members. (Ibid.; see also People v. Hernandez, supra, 33 

Cal.4th at pp. 1049-1050 [“To the extent the evidence supporting the gang enhancement 

would be admissible at a trial of guilt, any inference of prejudice would be dispelled, and 

bifurcation would not be necessary.”].) For example, Serrano’s text messages showed 

that he intended to elevate promote an “up and comer,” i.e., Arellano, in the gang 

hierarchy. The gang expert testified that aspiring members of LPT had to commit a 

shooting to become full members. The rap video was, in the trial court’s view, highly 

probative of Serrano’s intent to shoot at rival gang members, and that it had little 

potential for prejudice. The evidence of Serrano’s gang affiliation, such as the photos of 

him wearing gang clothing, using gang signs, and even holding a gun, was therefore 

relevant to establish both his motive and intent that evening. 

Applying the Watson standard, we conclude that it is not reasonably probable that 

the outcome of the trial on the underlying charges would have been different in the 

absence of the gang evidence that would not have been otherwise admissible. Even 

assuming section 1109 is retroactively applicable in this case, the failure to bifurcate the 

trial of the gang enhancements was not prejudicial error and thus there is no basis for 

reversing Serrano’s or Ceja’s other convictions.

4. Amendment to section 654

Finally, Serrano and Ceja contend that the matter must be remanded for 

resentencing on counts 1 through 7 so that the trial court may exercise its discretion under 
60

recently amended section 654. The Attorney General concedes that remand is 

appropriate and we agree that the concession is well-taken.

Section 654 prohibits multiple punishment for a single act or omission. (See 

People v. Delgado (2017) 2 Cal.5th 544, 570.) At the time of defendants’ sentencing, 

section 654 required the trial court to punish a defendant “under the provision that 

provide[d] for the longest potential term of imprisonment.” (§ 654, former subd. (a).)

Effective January 1, 2022, section 654 was amended by Assembly Bill No. 518 to 

give the trial court discretion to select the provision under which a defendant would be 

punished. As relevant here, section 654 now provides, “An act or omission that is 

punishable in different ways by different provisions of law may be punished under either 

of such provisions, but in no case shall the act or omission be punished under more than 

one provision.” (§ 654, subd. (a), italics added.)

The amendment of section 654 effected an ameliorative change to the law as trial 

courts are no longer required to impose sentence under the provision that provides for the 

longest term of imprisonment when a defendant is convicted of multiple crimes for a 

single act or omission. We agree with the parties that Serrano and Ceja are entitled to the 

retroactive application of amended section 654 because there is no indication that the 

Legislature intended the law to apply prospectively only, and this case is not yet final. 

(See, e.g., People v. Mani (2022) 74 Cal.App.5th 343, 379-380; People v. Sek, supra, 74 

Cal.App.5th at pp. 673-674; People v. Mendoza (2022) 74 Cal.App.5th 843, 861-862.)

We will therefore remand the matter for resentencing under amended section 654.

III. DISPOSITION

The judgments are reversed. The trial court is directed to vacate the true findings 

on the gang enhancements (Pen. Code, § 186.22, subd. (b)) charged in connection with 

counts 1 through 7 and the verdicts on the substantive gang offense (Pen. Code, § 186.22, 

subd. (a); count 8). The remaining convictions for both Serrano and Ceja are otherwise 

affirmed. 
61

The matter is remanded to the trial court for a possible retrial of the gang 

enhancement allegations and substantive gang offense. If the prosecutor elects not to 

proceed with a retrial, or at the conclusion of the retrial, the trial court shall resentence 

defendants pursuant to current law.
___________________________________

Wilson, J.

WE CONCUR:

______________________________________

 Bamattre-Manoukian, Acting P.J.

______________________________________

Danner, J.

People v. Serrano

H047310

People v. Valenzuela

H047329