People v. Molina CA1/2 ( 2022 )


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  • Filed 6/24/22 P. v. Molina CA1/2
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS
    California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
    publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
    ordered published for purposes of rule 8.1115.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    FIRST APPELLATE DISTRICT
    DIVISION TWO
    THE PEOPLE,
    Plaintiff and Respondent,                                     A147875
    v.
    (San Francisco County
    LANCE MOLINA,
    Super. Ct. No. 217223)
    Defendant and Appellant.
    THE PEOPLE,
    Plaintiff and Respondent,                                     A147925
    v.
    (San Francisco County
    WILLIAM JONES,
    Super. Ct. No. 217223)
    Defendant and Appellant.
    In the early morning of Sunday, October 4, 2009, three men, Kedric
    Green, Michael Bailey and Kevin Harrell, all in their 20’s, agreed to drive two
    women home from a San Francisco nightclub upon learning that one of them,
    Ariael Kittles, had lost her car keys. The driver, Green, was visiting the Bay
    Area from Baton Rouge, Louisiana with his friend, Bailey, and they were
    staying with Bailey’s cousin, Harrell. At the end of the drive, the three would
    be assaulted and robbed by a group of strangers, and Bailey would be fatally
    shot.
    1
    Four defendants—appellants William Jones and Lance Molina
    (defendants), and two other defendants who are not parties to this appeal,
    Maurice Lige and Kittles—were arrested and charged in December 2009 with
    crimes related to this incident.1 After a 2014 trial, Jones and Molina were
    convicted of all the counts against them that were presented to the jury and
    some, but not all, of the accompanying enhancement allegations were found
    to be true. Kittles was acquitted, and Lige, besides receiving an acquittal on
    one count, was the beneficiary of a hung jury. In 2016, the trial court
    sentenced Jones to 57 years to life and Molina to 44 years and 4 months to
    life in state prison.
    Jones and Molina each appealed on numerous grounds.2 During the
    pendency of this appeal, the parties, with our permission, filed supplemental
    briefing on several subjects, most of which involve legislative changes enacted
    after trial that apply retroactively to defendants’ cases. This has resulted in
    voluminous briefing and this unusually long opinion, in which we address the
    following:
    First, defendants claim we must reverse all their convictions because
    the trial court violated their confrontation rights under Crawford v.
    Washington (2004) 
    541 U.S. 36
     (Crawford) by admitting the perjured
    preliminary hearing testimony of Arnold Biggins, a purported eyewitness to
    the incident and to the perpetrators’ actions immediately afterward.
    Relatedly, they contend the trial court erroneously instructed the jury about
    1Kenya Moore was also charged as an accessory after the fact, but she
    was not tried and testified at trial under a grant of immunity.
    2 Jones and Molina have filed separate appeals, but they were tried
    together below, and they make overlapping arguments and/or join in certain
    appellate claims. Therefore, we have consolidated these cases for purposes of
    this opinion.
    2
    Biggins’s perjury in the preliminary hearing and contend the prosecutor
    committed misconduct by withdrawing Biggins’s immunity and charging him
    with unprovable crimes so he would decline to testify at trial. We conclude
    these arguments are without merit.
    Second, defendants contend we must reverse their first degree murder
    convictions (count I) based on the retroactive application of post-trial
    legislative amendments to Penal Code sections 188 and 189,3 which as of
    January 1, 2022, defendants could raise on direct appeal rather than by
    petition to the superior court as previously required. These legislative
    amendments eliminate the imposition of murder liability under the natural
    and probable causes doctrine and limit it under the felony-murder doctrine.
    We reject defendants’ claims that their first degree murder convictions are
    improperly based on the natural and probable consequence doctrine because
    the trial court’s instructions permitted them only to convict defendants of
    second degree murder under that theory. The jury instead convicted them of
    first degree murder, indicating it did not rely on a natural and probable
    consequences theory. However, we vacate defendants’ first degree murder
    convictions and remand the case based on the retroactive application of the
    felony-murder doctrine as revised by Senate Bill No. 1437. (2017-2018 Reg.
    Sess.) (Senate Bill No. 1437). We also reject defendants’ claim that the
    People are barred from retrying them for first degree murder under the
    felony-murder doctrine.
    Third, Molina contends the trial court prejudicially erred by failing sua
    sponte to instruct the jury on two lesser included offenses to the conspiracy to
    commit robbery count (count II). We conclude this argument has no merit.
    3   Statutory references are to the Penal Code unless otherwise stated.
    3
    Fourth, defendants claim we must reverse the jury’s findings that
    certain criminal street gang allegations made against them were true and
    that they committed certain criminal street gang crimes. Defendants base
    their claims on the retroactive application of post-trial legislative changes to
    section 186.22 and the erroneous admission of inadmissible hearsay and
    testimonial hearsay under Crawford and People v. Sanchez (2016) 
    63 Cal.4th 665
     (Sanchez). We conclude that the retroactive application of section 186.22
    and the admission of significant amounts of inadmissible hearsay and
    testimonial hearsay in violation of Crawford and Sanchez constitute error
    that prejudiced defendants. Therefore, we vacate the jury’s gang-related
    findings and convictions as specified in part IV of the Discussion section, post.
    We conclude the People are not barred from retrying defendants on these
    gang-related charges.
    Fifth, regarding the firearm enhancement allegation the jury found
    true as part of Jones’s conviction for participation in a conspiracy to commit
    robbery (count II), we reject Jones’s claim that this allegation cannot as a
    matter of law be included in a conspiracy count. We agree with him that we
    should remand his case, based on the retroactive application of a post-trial
    amendment of section 12022.5, for the trial court to exercise its recently
    authorized discretion to strike or dismiss this firearm enhancement; we need
    not address his claims regarding other firearm enhancements that we have
    vacated as a result of our felony murder and gang-related rulings.
    Sixth, we agree with Molina and the People that we must vacate the
    upper-term sentences Molina received for counts II (conspiracy to commit
    robbery), III (the robbery of Bailey) and IV (the robbery of Green) and
    remand these counts to the trial court for resentencing because of the
    retroactive application of the Legislature’s post-trial amendment of
    4
    section 1170, subdivision (b), which now requires the trial court to consider
    certain matters it did not consider at sentencing.
    Seventh, Jones claims the trial court imposed certain enhancement
    sentences on him that were unauthorized by law. To provide guidance for the
    trial court on resentencing, we address Jones’s claim regarding the
    section 186.22, subdivision (b)(1)(C) 10-year enhancements the court imposed
    as part of his robbery convictions (counts III, IV and V), even though we have
    ordered the enhancements vacated as gang-related in part IV of the
    Discussion section, post. We conclude the imposition of the enhancements
    violated section 12022.53, subdivision (e)(2). We further conclude that the
    stayed, one-year firearm enhancement the court imposed on Jones as part of
    his count III robbery conviction must be vacated, and the 10-year
    enhancement sentence the court imposed under section 186.22 as part of
    Jones’s count VII assault with a pistol conviction must be stricken. We
    conclude Jones has forfeited his claim regarding section 1385.
    We otherwise affirm the two judgments.
    BACKGROUND
    I.
    The Charges Against the Defendants
    In a second amended information filed in May 2014, Jones, Molina,
    Kittles and Lige were charged with willful, deliberate and premeditated
    murder of Bailey (count I; § 187, subd. (a)); conspiracy to rob Bailey, Green
    and Harrell (count II; § 182, subd. (a)(1), § 211); and the second degree
    robberies of Bailey, Green and Harrell (counts III, IV and V; § 211). It was
    alleged regarding counts I, III, IV and V that each defendant was a principal
    in the offense and that the defendant or another principal was personally
    armed with a firearm (§ 12022, subd. (a)(1)), that a principal personally used
    5
    a firearm for the benefit of a criminal street gang (§ 12022.53, subds. (b),
    (e)(1)), and that each defendant acted for the benefit of a criminal street gang
    (§ 186.22, subd. (b)(1)(C)). It was also alleged regarding count II that each
    defendant committed the offense for the benefit of a criminal street gang
    (§ 186.22, subd. (b)(1)(B)). Molina, Jones and Lige were also charged with the
    offense of active participation in a criminal street gang (count X; § 186.22,
    subd. (a)).
    There were additional special circumstance and sentence enhancement
    allegations against Jones alone: regarding count I, that he murdered Bailey
    while engaging in the commission of a robbery in violation of section 211
    (§ 190.2, subd. (a)(17)), that he intentionally committed the murder as a
    member of a criminal street gang to further the activities of the gang
    (§ 190.2, subd. (a)(22)), that he personally and intentionally discharged a
    firearm (§ 12022.53, subd. (c)), and that he personally and intentionally
    discharged a firearm proximately causing great bodily injury and death
    (§ 12022.53, subd. (d)); regarding count II, that he personally used a firearm
    (§ 12022.5, subd. (a)); and regarding counts III through V, that he personally
    and intentionally discharged a firearm causing great bodily injury
    (§ 12022.53, subd. (d)) and that a principal personally and intentionally
    discharged a firearm for the benefit of a criminal street gang causing great
    bodily injury and death to a person other than an accomplice (§ 12022.53,
    subds. (d), (e)(1)). Jones was also charged with assaulting Bailey with an
    assault pistol (count VI; § 245, subd. (b)), assaulting Green with a firearm
    (count VII; § 245, subd. (a)(2)) and possession of a firearm by a felon
    (count VIII; § 12021, subd. (a)(1),), each accompanied by the allegation that
    he acted for the benefit of a criminal street gang (§ 186.22, subd. (b)).4
    4   A count IX was also charged but not pursued at trial.
    6
    Regarding count VI, he was also alleged to have committed great bodily
    injury on Bailey (§ 12022.7, subd. (a)).
    A jury trial of the four defendants began in May 2014.
    II.
    The Evidence Presented at Trial
    After dropping off Kittles’s friend, Green, Harrell and Bailey drove
    Kittles at her direction to a residential cul-de-sac in the Alice Griffith
    Housing Development, also known as “Double Rock”, a gated housing project
    in the Hunters Point area of San Francisco. The cul-de-sac, Double Rock
    Court, also called the “Horseshoe,” was a common gathering place on
    weekend nights. Kittles and the men arrived there at approximately
    3:20 a.m. Kittles exited the car and the men were soon ordered out of the car
    at gunpoint and confronted by a group of individuals, which the prosecution
    contended included Jones and Molina.
    A. The Victims’ Accounts
    1. Green’s Trial Testimony
    Green testified that he was 23 years old, a college student and airline
    employee at the time of the incident. Near closing time at the night club, he
    saw a young woman walking around who said she was looking for lost keys.
    He offered her a ride home in exchange for her phone number, which she
    accepted after checking with her friend who lost the keys, whom Green
    identified as Kittles. The group got into Green’s rental car. Harrell sat in
    the front passenger seat, and Green was driving when they left the nightclub.
    Kittles sat directly behind Green in the rear driver’s side seat, her friend sat
    in the rear middle seat and Bailey sat in the rear passenger-side seat.
    Before leaving the area, Green had Kittles direct him to where she had
    parked her car to make sure it had not been stolen. They found the car and
    7
    drove on. Kittles talked on the phone for a time, but Green could not hear
    what she said. After stopping at a gas station convenience store, the group
    dropped off the friend at her home. Green was surprised when Kittles did not
    also exit and only then realized she did not live with her friend.
    The group continued on. Kittles directed Green to drive onto the
    interstate as she talked on her phone. Green testified, “I hear she is saying,
    ‘Yeah, they’re cool’ and I kind of—I can hear that it’s a male voice so I am
    talking loud, ‘Yeah, yeah, don’t worry about us. We’re cool.’ ” Bailey and
    Harrell also said reassuring things. As they exited the interstate, Green
    heard Kittles say, “ ‘We’re almost there,’ ” and she got off the phone. The
    group exited onto Third Street between 3:00 a.m. and 3:30 a.m. and drove for
    another three or four minutes. Kittles said they were in Hunters Point and
    directed them to a housing project she identified as “Double Rock.”
    The group pulled into the entrance to Double Rock, turned left and soon
    turned into the Horseshoe. Three to four individuals dressed in black were
    there. Green, on “red alert,” pulled the car only partly up to the curb and left
    it in neutral in order to leave quickly. Kittles took “a long time” to talk to
    Bailey in the rear seats and gave him her phone number and a hug before
    leaving. She left the rear driver’s-side door open as a man approached the
    car with a second man a few steps behind him, both of whom she walked past
    without saying anything. She then disappeared between two buildings.
    The first man who approached the car was dressed in black, wearing a
    skull cap, had “dreads,” was of “average” build and was “[a]round” six feet or
    six feet one inch tall (a physical description that apparently was consistent
    with Jones’s appearance,5 as well as that of a prosecution witness we will
    5Darnetta Coleman testified that at the time that she overheard Jones
    and Molina talking, a few days after the incident, Jones had “dreads” in his
    8
    discuss, Quentin Simonton). He leaned into the car’s open door and said,
    “ ‘Appreciate you dropping my little sister off,’ ” got into the car, shook hands
    with the three men and asked where they were from. Each man replied.
    Green said they were about to go. The man said, “ ‘Okay, I’m going to let you
    guys go,’ ” then pulled out a gun that looked like a “Tech 9” (described at trial
    as an assault pistol that fires nine-millimeter bullets), yelled “Double Rock or
    Devil Rock” and told Green to turn off the car.
    Green turned off the car. The second man, who had followed behind
    the gunman, opened Green’s driver’s-side front door, put his hands in Green’s
    front pockets, took a chain from Green’s neck and reached across Green to
    take a phone from the car’s console. Green had a “fairly good look” at the
    man. He was dressed in black, was about 5 feet 9 or 10 inches tall and had a
    short haircut like Green’s, perhaps with “a little more hair but low cut,”
    which Green called “a fade or a taper.” His complexion was possibly a little
    lighter than Green’s. Green did not see any tattoos on him, although it was
    established at trial that Molina had tattoos on his hands. Green testified
    that Molina’s hair was braided in a photo shown to him at trial, which style
    was different than a fade.
    Green testified that about 10 people in the area at the Horseshoe
    surrounded the car. The gunman, in the backseat, ordered Bailey and Green
    (who sat in the driver’s seat) to get out. The two exited and stood next to
    each other a few feet from the car. Four individuals, including the gunman,
    stood around them. Green could not see much and did not get a “good look”
    at the gunman, who was taller than he was—about six feet tall—and had
    about the same skin tone as he did.
    hair and was “[t]all.” She said Molina had “half braids” in his hair, “[a]s if
    [he] was getting his hair braided or taking it down.”
    9
    The gunman also ordered Harrell out of the car, where he pointed his
    gun at Harrell’s sternum, checked Harrell’s pockets and asked about his
    phone, which Harrell said he did not have. Four individuals searched the
    inside of the car. As the gunman stood by Harrell, three others stood by
    Green and Bailey. Another individual stood by the rear of the car as others
    told him to “pop” the trunk. Green could not recall much else about the
    trunk, other than that it contained only alcohol, could only be opened with a
    key hidden in the car’s console and that because of that probably was not
    opened during the incident. He acknowledged testifying at the preliminary
    hearing that someone popped the trunk open and two people looked in it.
    One of the assailants ordered Bailey and Green to get down on the
    ground, and the two sat down. Green told his assailants they had everything
    and should let the three men walk away but was told to “ ‘shut up.’ ” The
    individuals around them “were saying, ‘These n---as ain’t got shit,’ ” and
    someone said to take their clothes. Green and Bailey refused to take off their
    clothes or get on their stomachs, and three assailants (one attacking Green
    and two attacking Bailey) pushed, kicked and punched them.
    Bailey stood up and started fighting with the two individuals who
    attacked him. He pushed one away and gave the other “one good licking”
    before both attacked him again. Green tried to stand up and fight, but he
    was hit in the back of the head and fell back, momentarily stunned. He
    assumed he was hit with the butt of a gun because “[i]t hurt pretty hard” and
    the gunman, the only armed individual Green saw that night, immediately
    walked around him holding a gun.
    Green saw Bailey standing by the gunman and three other individuals,
    including the two who had fought with him. One “[s]eemed to be a little kid”
    of perhaps 12 or 13 years old in an oversized red shirt. Another was wearing
    10
    black, was in his early 20’s, stood about 5 feet 10 inches tall and had a dark
    skin tone, and the third had a similarly dark skin tone. Green did not get a
    good look at any of them or the other assailants.
    The gunman put his gun by Bailey’s head and ordered him to get back
    down on the ground. The two men by Bailey moved away, and they and
    others said, “ ‘Take him out. Fuck it. Shoot him. Take him out.’ ” Bailey
    backed up, fell backward and started to get back up, and the gunman shot
    him in the stomach. Bailey again tried to stand up and the gunman shot him
    two more times, called him a “bitch” and walked away.
    Green picked up the bleeding Bailey and put him in the back of the car
    and Harrell, after picking up their identification cards from the ground, drove
    the car out of the projects. They found police, Bailey was taken to a hospital,
    and Green and Harrell returned with police to the scene of the incident.
    There was no one there.
    Green received four stitches in the back of his head at a local hospital.
    He testified that in the hours after the incident police showed him
    photographs of possible suspects, but he was unable to identify anyone
    because he just wanted to go home.
    The next morning, Green pointed out Kittles’s Honda to police, which
    led them to Kittles, and Green identified her. That morning, Green was also
    shown a photo spread that included a photograph of Molina, and in
    December 2009 he was shown photo lineups that included photographs of
    Simonton and Biggins, two trial witnesses whose testimony we will discuss.
    He was not able to positively identify anyone in these lineups.
    2. Harrell’s Trial Testimony
    Kevin Harrell testified consistent with Green’s account about agreeing
    to drive the two women home from the San Francisco nightclub, where
    11
    everyone sat in the car, going by Kittles’s car as they left the area of the
    nightclub and dropping the friend off at her home. He testified that, after
    dropping off the friend, the group traveled on the freeway for 5 or 10 minutes
    as Kittles talked to Bailey. At some point, she said something on the phone
    like, “ ‘I’m almost there. I’ll be there shortly.’ ” After the group exited the
    freeway, they discussed their apartment complexes and Harrell saw Kittles
    glance at her phone, but he did not see her text anyone.
    Harrell recalled driving into a gated community with one way in and
    one way out. When Kittles opened the door, Bailey said someone was
    walking to the car and Kittles said it was her brother. A man approached
    who was in his early 20’s, about six feet or six feet one inch tall and of
    medium build. He wore a beanie and had his hair in dreadlocks, his
    complexion was a little darker than Harrell’s and lighter than Green’s, and
    his cheeks were “scruffy.” He was followed by a “shorter, dark-skinned”
    African-American man in his early 20’s wearing what looked like a black pea
    coat and a beanie. This second man was “[k]ind of heavy set,” had a
    complexion like Green’s dark complexion, and was shorter than Harrell, who
    was 5 feet 9 or 10 inches tall.
    Kittles exited the car, left the car door open, gave the first man who
    approached the car a hug, “did not pay . . . any mind” to the second man and
    walked in the direction from which the two men had come. The first man
    leaned into the open rear door of the car and said, “ ‘Thank you for giving my
    sister a ride. A lot of crazy people out there.’ ” He got in the car, shook
    everyone’s hand and asked where they were from. When Green said they
    were from Louisiana’s capital city, the man responded, “ ‘I’m from Double
    Rock. You see it? You see it?’ ” He pulled out what looked like an Uzi with
    an extended clip and ordered Bailey and Green out of the car. As Harrell sat
    12
    in the car, two other individuals took his earrings, watch and phone. Both
    were skinny, one was a teenager and one was about Harrell’s height.
    Harrell saw Bailey and Green “face down” outside the car and resisting
    as “they were punched and kicked” by three or four individuals. The gunman
    ordered Harrell out of the car. Harrell exited the driver’s-side door and stood
    in its doorway. The gunman pointed the gun inches from Harrell’s face and
    said, “ ‘Where’s the money?’ ” He grabbed Harrell’s wallet and searched
    through it. Bailey told the gunman to take the car. Others searched through
    the car, looking in the glove compartment and middle console, but they were
    not “as successful as they hoped they’d be.”
    The gunman told Bailey to shut up. He and Bailey started “tussling”
    over the gun. Harrell went to the passenger side of the car and got down to
    avoid being shot. He saw Bailey lose his footing, fall and then be struck by
    two gunshots. Harrell did not see who fired the shots but saw the gunman
    who had first approached the car say, “ ‘Double Rock, bitch,” and walk off.
    Bailey was bleeding from the neck. Harrell scooped up some things off
    the ground as Green put Bailey into the car. They drove away and found
    police.
    Police took Harrell to a police station. There, at about 9:00 a.m., he
    was shown a six-man photo lineup. Harrell identified one photo, in the top
    middle position, as the gunman. Harrell further testified that he identified
    another man in the lineup, in the bottom middle position, as having punched
    and kicked Bailey and Green. This was Jones. Harrell testified that he told
    police this person was “ ‘with the group.’ ”
    At about 11:00 p.m., Harrell was shown another six-man photo lineup,
    which included a photograph of Jones in the top middle position (where a
    13
    photo of Harrell’s gunman had been in the first lineup).6 He identified the
    photograph of Jones as being of “[o]ne of the gentlem[e]n kicking my cousin.”
    He also testified that he later called police to say that man was a part of the
    group at the incident and that he recognized him.7
    Harrell further testified that about two and a half months later, on
    December 16, 2009, police showed him additional photographs. He did not
    recognize the people in those photographs. One of the photographs was of
    Molina. A police inspector testified that at some point Harrell was shown a
    photo lineup that included Biggins and Simonton. He did not identify them.
    At trial, Harrell identified a sketch of the gunman drawn from his
    description that showed a man wearing “a hoody and a beanie” and had hair
    that “was falling down towards his shoulders.” He described the gunman to
    the police as “6’, 6’ 2” ” and in his mid-20’s, 165 to 170 pounds,” “[m]uscular,
    mustache, beard, medium color” and wearing blue jeans. Jones’s and
    Molina’s attorneys both contended the sketch was of Simonton, who was
    wearing a hoodie on the night of the incident.
    Harrell also identified photographs of two earrings, a cell phone, a cell
    phone battery and a wallet insert as items that were stolen from him. He
    said Green wore a neck chain that night, but Bailey did not. He identified in
    two videos the rental car he, Green and Bailey used that night. One video
    6  According to a police inspector who showed Harrell the first photo
    lineup, different police showed Harrell the second lineup. The inspector
    “most likely” would have made the decision to include the photo of Jones from
    the first lineup in the second lineup.
    7 A police inspector who heard the call testified that Harrell left a
    message in which he stated, “ ‘I keep having the middle guy. I’ll have to show
    you. I need to see more pictures. Because every time that—like that he
    might have been involved.” Harrell continued, “ “His face is in my mind as
    the shooter, but his facial hair wasn’t fully grown out.’ ” The inspector had
    Harrell work with a sketch artist to create a depiction of the gunman.
    14
    showed the car at a time stamp of 3:18:10 turning left inside Double Rock’s
    entrance, and another video showed the car leaving Double Rock at a time
    stamp of 3:25:06.
    B. The Cause of Bailey’s Death
    Bailey died from a gunshot wound suffered during the incident. An
    autopsy of his body identified a gunshot wound on the head, a second on the
    left flank and a third on the left flange, and numerous lacerations, bruises,
    scrapes, contusions and abrasions. The gunshot wound to the head broke the
    skull and went into the brain, causing Bailey’s death. The other wounds
    were survivable.
    C. Evidence Found at the Scene
    Police retrieved various items scattered about the scene of the incident,
    including possessions, business cards and credit cards belonging to the
    victims. These items and the rental car were tested for fingerprints. Prints
    belonging to Lige were found on a business card of Bailey’s. Prints of
    Simonton were found on a soda can. There were no fingerprint matches for
    Molina or Jones.
    Three expended cartridge casings and one unfired, all stamped
    “Remington-Peters Luger” and nine millimeters in diameter, were found at
    the scene close to pooled blood. The three expended casings were determined
    to have been fired from the same firearm.
    D. Statements to Police by Molina, Jones and Kittles
    Molina, Jones and Kittles made recorded statements to the police in the
    aftermath of the incident, which were played for the jury. Molina told police
    on October 15, 2009, that he arrived at the home of his girlfriend, Kittles, on
    Esquina Street at 2:00 or 3:00 p.m. the afternoon before the incident and
    stayed there through the night. Kittles and her friend left at about 9 p.m. to
    15
    go to a club and he remained in Kittles’s room watching television after they
    left, leaving it only to use the bathroom. Kittles phoned him from the club
    and said she lost her keys. At around 3 a.m., a cousin who lived in Double
    Rock called to say he had heard shots outside and asked if Molina was okay.
    Molina was not at the scene of the incident and knew nothing about it. He
    did not hang out at Double Rock and went there only to see relatives. He did
    not know who hung out at Double Rock.
    Jones told police, also on October 15, 2009, that on the night of the
    incident he sat in a car on Nichols Street in Double Rock, seeing no one in
    particular, from about 11:00 p.m. until he left for his girlfriend’s house on
    George Court, where he arrived no later than 1:00 a.m. He stayed at his
    girlfriend’s house for the rest of the night, watching television until he fell
    asleep about 3:30 or 4:00 a.m. He was not present at the incident. He
    sometimes went to the Horseshoe but did not go there that night.
    Kittles told police later in the morning of the incident, October 4, 2009,
    that she and her friend had gone to a San Francisco club, where she had “a
    lot” to drink. Three men gave her and her friend a ride from the club after
    she lost her car key. She sat in the back of the car with her friend and
    “Mike,” who was from Louisiana. At different points in the ride, Mike gave
    her his phone number, she reluctantly gave him hers, and he asked if he
    could see her later that day before he left for Louisiana. The group stopped
    at a gas station convenience store and dropped off her friend first, then went
    to Double Rock. Kittles spoke on the phone to her friend and to Kenya
    Moore, who had a child with Kittles’s brother Deshaun.
    Kittles said when the car arrived at Double Rock about 50 people were
    outside, like always. At the Horseshoe, she told Mike she would call him,
    said goodbye to the men, exited the car, walked past some people she did not
    16
    know and went to Moore’s house in the Horseshoe. Moore’s daughter
    answered the door and let her in. Kittles talked on the phone until Moore
    arrived 30 minutes to an hour later and gave her a ride home. She arrived
    home at about 4:30 a.m. and called an emergency locksmith to help open her
    car. She went to sleep and woke up at about 8:00 a.m. to try to get her car
    opened.8
    E. Defendants’ Recorded Jail Phone Calls
    The prosecution played jail phone call recordings between the
    defendants for the jury. In an October 2009 call, Jones, in jail, told a woman
    he had to tell Molina “he didn’t see me that night.” Molina then got on the
    line and Jones told him, “You didn’t see your lil brother the whole day.”
    Molina responded, “Oh ok . . . yeah . . . yeah . . . yeah . . . yeah . . . yeah.”
    Molina also said he was at “Muck’s” house all day (an apparent reference to
    Kittles’s house), so he did not see anyone.
    In a couple of calls on October 5, 2009, Kittles, in jail, described to
    Molina her account to police that she did not want a ride to her home from
    the club because her boyfriend was there, and did not know what occurred
    after she exited the car of the men who gave her a ride. Molina replied,
    “Okay that’s your story then. You don’t know.” Molina also asked Kittles if
    the police asked or told her what kind of gun was used.
    F. Kenya Moore’s Trial Testimony
    Kenya Moore testified at trial under a grant of immunity about her
    actions on the night of the incident, as well as about the inaccuracies in her
    initial statements to police during a series of interviews that extended over
    several months. Moore said she lived in a house in the Horseshoe. On the
    8 Police held another recorded interrogation of Kittles on December 24,
    2009, but she told them she did not remember anything relevant to the
    investigation.
    17
    evening of the incident, at around 9:00 p.m., she saw Molina, Jones,
    Simonton, who was her boyfriend, and “Bey Wey” hanging out in the
    Horseshoe. At some point, she also saw a little boy wearing a red hoodie with
    them, but acknowledged she told police he wore a black hoodie. At
    Simonton’s request, she brought a bottle of Hennessy liquor and gave it to
    Jones between 10:30 and 11:00 p.m. She did not recall Jones wearing a black
    hoodie, dark jacket or hat, or having a gun. Simonton told her he had taken
    two to three Ecstasy pills.
    At about 3:00 a.m., Kittles called Moore and said she had lost her car
    keys and needed a ride home. Moore, outside of Double Rock at the time, did
    not believe her. About 45 minutes later, Kittles called again and Moore
    agreed to give her a ride. She drove to Nichols Street in Double Rock, where
    she found Molina and Jones waiting with Kittles.9 She dropped Kittles and
    Molina off on Esquina and dropped Jones off on George Court.
    Moore was heading home when Simonton called her for a ride from
    where Moore had just picked up Kittles, Molina and Jones. Moore picked up
    Simonton, as well as Lige, dropped off Lige at his home and took Simonton
    back to her own home in the Horseshoe, which the police had taped off.
    Simonton said he did not know what had happened.
    That morning, Kittles called her. She told Moore that, if anyone asked,
    she should say that Kittles had been at her house the night before. Moore did
    not agree to do that. She told police that she figured Kittles told her that
    because she had been with someone other than her boyfriend.
    Moore was arrested by police on December 23, 2009, and charged with
    being an accessory after the fact. Police interrogated her before that day, on
    9 Moore first testified that she picked them up on Cameron but said
    she picked them up on Nichols Street after reviewing a transcript of one of
    her police interrogations.
    18
    that day and a few months later. She initially did not tell the police the
    truth. For example, she denied being Simonton’s girlfriend and picking up
    Molina or Simonton the night of the incident, and she denied that Simonton
    stayed at her house on the night of the incident. She said she stayed at her
    mother’s house in another neighborhood without a phone that night, and that
    she had not seen Simonton for a long time. She denied lying to protect
    Simonton.
    Moore also acknowledged that she had been convicted of theft multiple
    times between 2001 and 2008 and had been convicted of giving false
    information to a police officer in 2002.
    G. Quentin Simonton’s Trial Testimony
    Quentin Simonton testified at trial after the prosecution granted him
    immunity, placed him in the witness protection program for a time and paid
    approximately $63,000 in program expenses for him from November 2009 to
    August 2011.
    At the time of the incident, he lived with his girlfriend, Kenya Moore,
    and her children in a house on the Horseshoe and worked in the Job Corps
    program with Jones and Molina. On the night of the incident, he went
    outside at Jones’s urging, where he encountered others talking and drinking.
    Among them were Jones, Lige, a “young kid” in a red shirt and a “Samoan
    guy” with a gap between his two front teeth whose name Simonton did not
    know at the time. Simonton drank a little and bought three Ecstasy pills
    from one of the men. He took one of the pills, gave another to Jones and gave
    the third to Lige, whom he knew as “Wink.” He wore a camouflage jacket,
    underneath which he wore a black, red and gold hoodie.
    Molina answered a phone call from Kittles, Molina’s girlfriend. Molina
    told her it was “ ‘[h]ella stupid’ ” for her to lose her keys and said, “ ‘Stupid
    19
    bitch.’ ” He asked her if she was getting a ride and told her to call when she
    got there. Molina gave the phone to Jones, who spoke on it, and then “they
    hung up, and then we were standing around still talking.” There was no talk
    about what to do when Molina’s girlfriend arrived.
    A car came into the Horseshoe about 15 minutes later. Jones told
    Simonton to stand by a gate, and Jones, followed by Molina, walked up to the
    car. Kittles exited the car and walked behind a building. Simonton could not
    recall if she spoke to Molina as she exited but she did not speak to anyone
    else. Jones pulled out a gun and told the three men to get out of the car.
    Molina pulled a man out of the front passenger’s seat and Lige pulled a man
    out of the back seat. Simonton walked to the front of the car to join in what
    he understood was a robbery. The Samoan and the young kid remained on
    the sidewalk.
    The three men who exited the car stood on the driver’s side and got
    down on the ground at Jones’s order. Simonton reached inside the car and
    pushed a button that was supposed to open the trunk but it failed to open.
    He went to the back of the car and tried to open the trunk but could not. He
    then retreated to the sidewalk and watched.
    Jones told the three men to lie face down on the ground. One of them
    did not put his face on the ground and Jones “kept slapping [him] with the
    gun.” The man stood up and wrestled with Jones over the gun. As Simonton
    moved away to find cover, Jones recovered control of his gun, and Molina and
    Lige started punching and kicking the man to the ground. Jones “went over
    and shot [the man] three times,” after which everyone walked away.
    Simonton told police in the weeks after the incident that a man with
    dye-tipped dreadlocks and holding a phone, whom he eventually identified as
    Lige, “stomped” on the man. But he testified at trial that he could not recall
    20
    what Lige looked like on the night of the incident.10 He told police that
    Biggins had “just kind of wavy b[l]ack” hair but testified he did not recall
    Biggins’s hairstyle or having dreadlocks on the night of the incident.
    After the incident, Simonton tried unsuccessfully to go inside Moore’s
    house in the Horseshoe, so he went to a nearby house that he saw Jones and
    the Samoan enter. He found Jones, Molina, Kittles, Lige and the Samoan
    sitting on a bed in the Samoan’s bedroom. Jones and the Samoan each had a
    black gun that looked like a “Mac.” Jones’s gun had a black shoestring
    around it and an extended clip and was bigger than the Samoan’s gun.
    Shown a photograph of an individual named Terry Franklin holding a gun,
    Simonton testified it looked like the gun Jones had with him that night.
    At the Samoan’s house, as the Samoan turned on a video game console,
    Kittles asked Jones, “ ‘Why did you have to kill the dude?’ ” Jones replied,
    “ ‘Can’t let nobody take my gun,’ ” and went to the bathroom. He returned
    and gave the Samoan his gun and jacket. At trial, Simonton identified a
    jacket Jones wore in a photograph as the one he wore the night of the
    incident. Simonton left his army fatigue jacket at the house as well.
    The group split up four dollars, and Molina had a phone. Simonton did
    not see the Samoan touch anything taken from the robbery. It looked like no
    one was keeping anything because “ ‘it was fake and stuff.’ ” Shown a
    photograph of the neck chain seized from Biggins’s bedroom drawer, he said
    it was Bailey’s. Shown a photograph of a gun, he said it was similar to the
    one Jones had during the incident.
    At Jones’s request, Simonton called Moore to pick up Jones. Simonton
    called, and Jones, Molina and Kittles left a short time later. About 10 or 15
    10Other evidence presented at trial included a photograph (the date of
    which defendants do not establish) indicating Biggins had dye-tipped
    dreadlocks at some point in time.
    21
    minutes later, Moore picked up Lige and Simonton, dropped off Lige and
    returned to her house in the Horseshoe with Simonton, and they went to
    sleep.
    Simonton also testified that after the robbery, Lige threw a chain Lige
    said was fake onto the top of a roof. Other trial testimony indicated a search
    of the roof several days after the incident did not uncover a chain.
    Simonton recounted that the next morning, he looked out the window of
    Moore’s house and saw a soda can at the scene that he knew had his
    fingerprints on it. (His DNA was later found on a Welch’s soda can.) He
    realized he “[n]eeded to come up with me not being there or alibi or
    something like that.” He used Moore’s phone to call Molina and told him
    they needed to meet. Later that morning, he went to his mother’s house and
    told her and a friend of hers that he had been forced to participate in a
    robbery, which was not true, and that someone had been shot. They urged
    him to talk to the police. Simonton did not want to be a “snitch” and fled to
    the South Bay instead.
    A few days later, Simonton’s mother told him the police were looking
    for him. He went to talk with them, worried about being charged with
    murder because he had been present at the incident, looked like Jones (both
    were African-American, the same height and had dreadlocks) and had left his
    fingerprints on the car’s trunk. The police interviewed him on October 8,
    2009 (four days after the incident), October 30, 2009, and November 5, 2009.
    In the October 8 interview, he deliberately concealed the identity of Molina
    but identified Jones; both were his friends. He identified Jones because he
    did not think the police would let him leave until he identified the shooter,
    Jones was the shooter, and the description of the shooter circulating “pretty
    much” was a description of Simonton.
    22
    Simonton identified others in subsequent interviews. He told the police
    that Wink (meaning Lige) had a phone and “stomped on the person,”
    apparently meaning Bailey. He described the Samoan and showed police
    what he said was the Samoan’s house on Nichols Street (he identified the
    wrong house).
    Simonton testified that he lied to the police at different times about
    several things. This included saying Jones ordered him to open the car’s
    trunk during the incident; that he did not associate with the people he had
    identified because they were “shady”; that Kittles was not yet at the
    Samoan’s house when Simonton arrived there; that Jones’s gun was a Mac
    10, not a Tec 9; and that he had never handled or shot a gun before, when in
    fact he had handled a .40-caliber gun and fired a .22-caliber gun. (He
    testified he did not have a gun during the incident.) He lied when he told
    police he had just happened to see Moore driving around and flagged her
    down shortly after the incident.
    Simonton further testified about his criminal conduct in the period
    before the trial. He was convicted once in 2012 and twice in 2013 of
    possession of crack cocaine, including for sale, and in 2012 he beat and
    robbed a man in a motel room with the help of a prostitute, for which he was
    arrested and charged. He also had a pending assault with a deadly weapon
    case and a pending probation violation case, both in Santa Clara County.
    H. Biggins’s Preliminary Hearing Testimony and the Events
    That Followed
    Arnold Biggins testified under a grant of immunity at the preliminary
    hearing in this case. He denied participating in the incident but said that he
    was present for it, incriminated all the defendants, and said that participants
    in the incident went to his house immediately afterwards. He said he
    23
    initially told the police numerous falsehoods to protect himself and then told
    them the truth about what he witnessed.
    As we will detail further in the Discussion section, post, Biggins
    changed a part of his account in interviews with the prosecution on the eve of
    trial, leading to the prosecution’s withdrawal of immunity and decision to
    charge him in a separate case with crimes resulting from the incident. The
    prosecution relied on his preliminary hearing testimony at trial over defense
    objections. The prosecution in Biggins’s case reached a negotiated disposition
    of his case under which he was found guilty of felony grand theft with a gang
    enhancement. Subsequently, defendants filed a motion for new trial in this
    case for purported prosecutorial misconduct.
    I. Texts and Phone Calls Between Molina and Kittles
    Expert testimony and phone records were presented at trial regarding
    texts and phone calls between Molina and Kittles on the night of the incident
    involving Molina’s Sprint and Kittles’s Metro PCS phone numbers.
    Both Molina and the People indicate in their briefs that Kittles and
    Molina exchanged texts during the time when Kittles rode in Green’s car to
    Double Rock, but neither indicates where in the record these texts are
    located, and we have not found them. The People give a fuller account of the
    texts. According to them, Kittles texted Molina at 2:20 a.m., “ ‘Wats up babe
    I am still at da club.’ ” Molina received this text around the time he was
    making phone calls using towers that serviced the areas of Double Rock and
    his home. Between 2:54 a.m. and 2:59 a.m., Kittles texted Molina, “ ‘U really
    want me 2,’ ” and Molina replied, “ ‘Yea for real kum on.’ ” Kittles responded,
    “ ‘Dnt do nutin stupid ma n---a 4real.’ ” Molina did not text back and Kittles
    texted, “ ‘Lance do u c wat im sayin.’ ”
    24
    As for phone calls, expert trial testimony indicated that cell phones
    continually monitor which cell tower site is the strongest—generally the
    closest to the caller—and use that tower for phone calls, particularly in low
    traffic times like late at night. From 11:40 p.m. to 2:47 a.m. on the night of
    the incident, Kittles’s cell phone interacted with Metro PCS towers serving
    the area of the San Francisco nightclub. Her phone then interacted with
    towers at 2:50 a.m., 2:52 a.m., 2:55 a.m., 2:56 a.m., 3:14 a.m. and 3:15 a.m. in
    a manner consistent with her traveling south towards Double Rock. At
    3:18 a.m., phone records indicate she made a call via a tower, number 588,
    that was about four-tenths of a mile from Double Rock. At 3:21 a.m. she
    made a call via a tower that was about seven-tenths of a mile from Double
    Rock. From 3:28 a.m. to 4 a.m. she made a series of calls via tower 588 again,
    and after that time, until approximately 11 a.m. that day, including three
    times between 4:06 a.m. and 4:10 a.m., the calls she made were from
    tower 52, which was near her home.
    On the night of the incident, Molina’s phone interacted with several
    Sprint cell towers. Sprint cell tower 3139 served the area of the Horseshoe
    (specifically 18 Double Rock Court), which was on the edge of that cell tower’s
    coverage but would be unlikely to serve the nearby area where Biggins’s
    home was located at a low traffic time and would not serve the area of
    Kittles’s home, which was three-quarters of a mile away. Molina’s phone
    indicated a call via tower 3139 at 1:55 a.m. on the night of the incident. His
    phone also indicated calls at 3:15 a.m. made via Sprint cell tower 3220, a call
    two seconds shy of 3:19 a.m. via cell tower 3139 again, and a call at 3:25 a.m.
    via Sprint cell tower 2127.11 These calls were consistent with a person being
    11 The reporter’s transcript states that the expert witness referred first
    to tower “2527,” but it appears from what follows that he was referring to
    tower 2127 all along.
    25
    in the area of the Horseshoe because 18 Double Rock was in the middle of
    these three towers, and the calls indicated some movement.
    J. The Rocawear Jacket and Jones
    Inspector Engler of the San Francisco Police Department testified that
    he participated in a warranted search of Kittles’s home at 12 Esquina Drive
    soon after the incident. Police seized Molina’s Palm phone, from which they
    obtained certain photographs, including one of Jones wearing a black
    Rocawear jacket and a horizontally striped shirt. There was evidence that
    the photograph was taken or was received by Molina’s phone at 7:44 p.m. on
    the night of the incident. In a warranted search of Jones’s home soon after
    the incident, police seized the striped shirt and found many Rocawear jackets
    but not the one in the photograph.
    Engler further testified at trial that, pursuant to another search
    warrant, he led a search of Biggins’s house about five weeks after the
    incident on November 11, 2009. The search uncovered a neck chain in a
    drawer in Biggins’s bedroom. At the time, Biggins said the chain was his and
    was not stolen. Police seized the chain, a .45-caliber gun they found on his
    bed, a black Rocawear jacket from a young man trying to exit the residence
    (who was Biggins’s brother) and a camouflage jacket.
    DNA testing indicated the Rocawear jacket had Bailey’s blood on it but
    did not contain a DNA match for any of the suspects. Jones and Molina were
    excluded as DNA contributors. DNA from an unknown male major
    contributor and at least one minor contributor was found on the jacket’s
    collar. A police criminalist testified that she could extract DNA from
    someone who wore a collared garment for a couple of hours as long as the
    collar touched the skin.
    26
    The defense presented the testimony of a San Francisco police officer
    who was assigned to patrol the Double Rock area at the time of the incident.
    He testified that on October 8, 2009, three days after the incident occurred,
    he was shown a photograph in which Jones was wearing “a black kind
    of . . . [z]ipper up sweat jacket.” He told another officer that day that he had
    seen Jones wearing that jacket before. He could not recall when he actually
    observed Jones wearing it but knew “it was sometime in and around that
    date,” meaning October 8, 2009. He had seen Jones “close to October 4th.”
    He could not recall if it was after October 4 or not.
    K. Darnetta Coleman’s Trial Testimony
    Darnetta Coleman testified that she was Lige’s aunt, attended middle
    school with Jones and Molina, saw the two almost every day in the
    neighborhood and was Molina’s neighbor. Several days after the incident,
    she saw through a window of her second-floor Double Rock home that police
    were going into a house by the Horseshoe area and some people, including
    Jones, were coming from that area to a basketball court behind her house.
    She then heard Jones and Molina talking on the court. Molina said his
    girlfriend and a friend had gotten a ride, the friend had been dropped off and
    the girlfriend had been taken to Double Rock, where Molina went “to rob a
    guy.” “[T]he guy was tussling with him” and “he had to pull the banger out,”
    meaning a gun. Jones said, “he tried to get him too, but he thinks he
    missed.” Both said they planned to leave town.
    Coleman called the police using a false name and was subsequently
    located and interviewed by Inspector Engler. Coleman acknowledged making
    changes to her account over time, saying she had initially lied out of fear.
    She also testified that some of what she recalled about the basketball court
    conversation may have been what she “heard off the street.” She further
    27
    testified that she moved out of Double Rock after her windows were broken
    and “stuff like that,” and that the district attorney’s office had paid
    $24,596.40 for such things as her clothing and housing, none of it in cash.
    She was on probation for a 2011 felony assault conviction.
    L. Gang Evidence
    As we will discuss in detail in part V of the Discussion section, post,
    both the People and the defense presented the testimony of experts and other
    evidence regarding the claims that Jones and Molina, as well as Lige, had
    committed the charged crimes for the benefit of the Double Rock criminal
    street gang.
    III.
    The Jury’s Verdicts, Post-Trial Motions, Sentencing and Appeals
    The jury found Jones guilty of the first degree murder of Bailey
    (count I) and found true the allegations that the murder was committed for
    the benefit of a criminal street gang, a principal was personally armed with a
    firearm, and a principal personally used a firearm for the benefit of a
    criminal street gang. The jury found not true the special circumstance
    allegation that the murder was committed by Jones himself while he was
    engaged in the commission of a robbery, that the murder was intentional
    while Jones was an active participant in a criminal street gang to further the
    gang’s activities, that Jones personally and intentionally discharged a
    firearm and that Jones personally and intentionally discharged a firearm
    causing great bodily injury.
    The jury also found Jones guilty of conspiracy to commit robbery
    (count II) and three counts of robbery (counts III through V) and found true
    the allegations that he committed these offenses for the benefit of a criminal
    street gang, that he personally used a firearm regarding count II, and,
    28
    regarding counts III through V, that a principal was armed with a firearm
    and a principal personally used a firearm to benefit a criminal street gang.
    Also, regarding counts III through V, the jury found not true the allegations
    that Jones personally and intentionally discharged a firearm causing great
    bodily injury and that a principal personally and intentionally discharged a
    firearm for the benefit of a criminal street gang.
    Finally, the jury found Jones guilty of counts VI (assault with an
    assault pistol against Bailey), VII (assault with an assault pistol against
    Green), and VIII (possession of a firearm by a felon). The jury found true the
    allegations that he committed these offenses for the benefit of a criminal
    street gang and found him guilty of count X (active participation in a criminal
    street gang).
    The jury found Molina guilty of first degree murder, conspiracy to
    commit robbery, three counts of robbery and one count of active participation
    in a criminal street gang (counts I through V and X) and found true that he
    committed the murder and robbery offenses for the benefit of a criminal
    street gang. Regarding the murder and robbery counts, the jury found not
    true that a principal personally used a firearm for the benefit of a criminal
    street gang and that a principal was personally armed with a firearm.
    The jury found Kittles not guilty on all counts (counts I through V). It
    found Lige not guilty of actively participating in a criminal street gang
    (count X) and hung, with eight voting guilty and four voting not guilty, on
    each of counts I through V. The court declared a mistrial as to Lige on
    counts I through V.
    As we will detail further in subpart I.D of the Discussion section, post,
    months after the trial defendants moved for a new trial, in part based on the
    prosecution’s purported misconduct in charging Biggins with murder and
    29
    robbery in a separate case (allegedly to prevent him from testifying at the
    trial of this case) and in dropping the charges against Biggins after
    defendants’ trial was completed. The court denied the motion.
    In March 2016, the trial court sentenced Jones to a total state prison
    term of 57 years to life, comprised of (1) 25 years to life for count I, the first
    degree murder of Bailey, plus a consecutive 10-year term for the allegation
    that a principal personally used a firearm; (2) a consecutive two-year term for
    count IV, the robbery of Green, with two consecutive 10-year terms for the
    criminal street gang and personal use of a firearm allegations; and (3) either
    concurrent terms or stayed sentences under section 654 for the remaining
    counts and allegations.
    The trial court sentenced Molina to a total state prison term of 44 years
    and 4 months to life, comprised of (1) 25 years to life for count I, the first
    degree murder of Bailey; (2) a consecutive five-year term, for the robbery of
    Green (count IV), a consecutive 10-year term for the gang enhancement
    allegation; (3) a consecutive one-year term for the robbery of Harrell
    (count V), with a consecutive 3 year, 4 month term for the gang enhancement;
    and (4) either concurrent terms or stayed sentences under section 654 for the
    remaining counts and allegations.
    Jones and Molina timely filed notices of appeal. We have allowed a
    significant amount of supplemental briefing during the pendency of this
    appeal to address changes in the law that have taken place since these
    appeals were filed. Most notably, Molina submitted supplemental briefing
    regarding the enactment of Senate Bill No. 1437, which modified the Penal
    Code to limit the application of felony murder and to eliminate natural and
    probable consequences murder and enacted a procedure by which already
    convicted defendants could petition the superior courts for resentencing.
    30
    Subsequently, on October 18, 2021, as we were preparing to issue our
    opinion, Molina requested permission to file a supplemental brief based on
    the recent passage of Senate Bill No. 775 (2021-2022 Reg. Sess.) (Senate Bill
    No. 775), which further amended the law to allow defendants to address on
    direct appeal the impact of Senate Bill No. 1437. Molina’s brief also
    addressed the impact on his case of Assembly Bill No. 333 (2021-2022 Reg.
    Sess.) (Assembly Bill No. 333), which added elements that need to be proven
    under the criminal street gang statutes. Senate Bill No. 775 and Assembly
    Bill No. 333 went into effect on January 1, 2022. (Stats. 2021, ch. 551, § 2;
    Stats. 2021, ch. 666, § 2.) Since our opinion would not become final until
    after January 1, 2022 (People v. Vieira (2005) 
    35 Cal.4th 264
    , 306 [a
    “ ‘judgment is not final until the time for petitioning for a writ of certiorari in
    the United States Supreme Court has passed’ ”]; People v. Lizarraga (2020)
    
    56 Cal.App.5th 201
    , 206 [“a petition for writ of certiorari is timely filed within
    90 days after entry of judgment of a state court of last resort”]), we granted
    the request and established a briefing schedule for all parties who wanted to
    address the issues raised by Senate Bill No. 1437, Senate Bill No. 775 and
    Assembly Bill No. 333.
    We subsequently also allowed additional supplemental briefing
    regarding the application of a firearm enhancement to the conspiracy to
    commit robbery charge brought against Jones; legislative changes to certain
    sentencing provisions under Senate Bill No. 567 (2021-2022 Reg. Sess.)
    (Senate Bill No. 567) (Stats. 2021, ch. 731) and Assembly Bill No. 124 (2021-
    2022 Reg. Sess.) (Assembly Bill No. 124) (Stats. 2021, ch. 695) that became
    effective on January 1, 2022; and certain enhancement sentences imposed on
    Jones that he contends were unauthorized by law.
    31
    DISCUSSION
    As we have discussed, defendants Jones and/or Molina make several
    claims of prejudicial error.12 We turn now to a discussion of each of these
    claims.
    I.
    Defendants’ Claims Regarding Biggins’s Preliminary Hearing
    Testimony
    On the eve of trial, Biggins disclosed to the prosecution that he had
    incorrectly testified at the preliminary hearing that a neck chain police seized
    from his bedroom drawer belonged to him when it in fact was taken in the
    incident from one of the victims. The prosecution, after confirming with
    Bailey’s widow that the chain belonged to Bailey, revoked Biggins’s immunity
    and began the process of charging him with murder, robbery and perjury.
    Biggins invoked his Fifth Amendment right not to testify, and the trial court
    determined that he was unavailable to testify and allowed the presentation of
    Biggins’s preliminary hearing testimony to the jury over defense objections.
    Evidence of Biggins’s eve-of-trial change in his account about the chain was
    also presented to the jury.
    Jones and Molina argue that the trial court violated their rights to
    confront witnesses under the confrontation clause of the Sixth Amendment
    by admitting Biggins’s preliminary hearing testimony at trial. Defendants,
    relying on Crawford, supra, 
    541 U.S. 36
     and its progeny, argue that, because
    Biggins did not indicate until after the preliminary hearing that he had, as
    defendants characterize it, perjured himself at that hearing, they did not
    12 The trial court used an opt-out procedure, by which all defendants
    were deemed to have joined objections and motions by the others unless they
    opted out. The People do not contend that either defendant opted out of any of
    the trial court matters we discuss in this opinion, and we have seen no
    indication in the record that either did.
    32
    have a meaningful opportunity to cross-examine him. Additionally, Jones
    argues the trial court prejudicially erred in its instruction to the jury
    regarding Biggins’s perjury and the prosecution committed prejudicial
    misconduct that violated his confrontation rights by manipulating events to
    ensure Biggins’s unavailability as a trial witness and present his perjurious
    preliminary hearing testimony instead.
    We begin by discussing Biggins’s preliminary hearing testimony and
    subsequent change of his account.
    A. Biggins’s Preliminary Hearing Testimony and Subsequent
    Change of His Account
    After the incident occurred, police inspectors questioned Biggins over
    many months, during which he repeatedly changed his account of what he
    knew about the incident and its aftermath. Biggins testified at the
    preliminary hearing under a grant of use immunity.
    At trial, the court told the jury that Biggins “was granted use immunity
    for his testimony at the preliminary hearing in this case. Prior to this trial
    the district attorney declined to offer a grant of use immunity to Mr. Biggins’s
    testimony at this trial. As a result, Mr. Biggins is unavailable to testify at
    this trial.” Biggins’s preliminary hearing testimony was then read to the
    jury.
    1. Biggins’s Preliminary Hearing Testimony
    At the preliminary hearing, Biggins sometimes testified with his hand
    in front of his mouth and in low tones. He said he was Samoan, five feet
    eight inches tall, had dreadlocks at the time of the incident and lived on
    Nichols Way, about 50 yards from the Horseshoe. On the night of the
    incident, he was in the Horseshoe among a “crowd” of people, talking with his
    close friend Lige and with Simonton, whom he had known for a long time but
    33
    with whom he was not friends. The crowd included Molina and Jones.
    Biggins drank and smoked marijuana that day.
    A car with three men and a woman came into the Horseshoe and
    parked in front of the group. The woman, who was Molina’s girlfriend, exited
    the car as Jones and Molina walked up to it and started talking to the men
    inside. Biggins was not sure if the woman talked to anyone when she got out
    of the car. As she walked past Biggins, she said to someone sitting by him,
    “[T]hey have chains and wallets and phones.”
    As he stood on the sidewalk with Lige and Simonton about 27 feet away
    from the car, Biggins saw three men exit the car and two of them sit down.
    He did not see anyone go into the car’s trunk or open the trunk. One of the
    men fought with Jones over Jones’s gun. Molina and Lige joined in the fight.
    As Lige went to join in, he tapped Biggins and said, “come on.” Biggins took
    about five steps forward intending to join in the fight, touching a .380 Mac 12
    gun he had hidden on a shoestring around his neck as he stepped, but he
    stopped, did not take out his gun and retreated to the sidewalk instead. He
    saw Jones, Molina and Lige force the resisting man to the ground and, when
    the man tried to get back up, saw Jones shoot him twice with a “Mac 11 or
    something like that.” Everyone walked away.
    After the shooting, Biggins said, a group of participants in the incident,
    including Jones, Molina, Lige and Simonton, walked to Biggins’s house.
    Biggins asked Jones, “[W]hy you didn’t do the other two?” because Biggins
    felt “it was going to come back on everybody.” Jones did not answer. At
    Biggins’s house, a cell phone and wallet taken in the incident were passed
    around, and Molina “had a chain” from it. The group played a video game.
    Kittles arrived about 30 minutes later. She asked what had happened and no
    one said anything. She called for a ride and someone in a green car picked
    34
    her up, along with Jones and Molina. Soon after, someone driving the same
    car returned and picked up Lige and Simonton.
    Jones left his gun and sweater with Biggins to “watch” them. Biggins
    took them to prove his loyalty to everyone. Later, Biggins said, Lige picked
    up the gun from Biggins’s house and Biggins put the sweater in the laundry
    but did not wash it. Police seized the sweater despite Biggins’s effort to
    conceal it. He identified a sweater Jones was wearing in a photograph as the
    one Jones left at his house. He also said Simonton left an “Army coat” at his
    house that night.
    At his house, Biggins compared Jones’s Mac 11 to Biggins’s Mac 12 and
    saw that the Mac 11 was two times bigger than his gun. His Mac 12 was
    given to him by someone in the neighborhood. He denied firing the gun that
    killed Bailey and said he did not see anyone else besides Jones with a gun.
    He knew that, while his gun fired .380-caliber bullets, Jones’s Mac 11 did not.
    Over the ensuing months, police inspectors repeatedly questioned
    Biggins and eventually arrested him for possession of stolen property after
    seizing an illegal gun and a laptop from his house. Biggins acknowledged
    that he “beat around the bush,” “[m]aybe a lot,” during this questioning. He
    told numerous lies to “protect” himself before telling what he knew about the
    items found in his house and about the incident. For example, he lied that he
    found the .45-caliber pistol in some bushes behind his house and about who
    sold him the laptop. He told police that on the night of the incident he only
    went to the scene of the shooting after everything was over and after he
    heard shots fired as he was walking to a candy store. He told them that he
    had never seen Jones with a gun; that the gun Biggins had during the
    incident was smaller and different than the one he actually had; that he got
    that smaller gun in Oakland and kept it in his pants pocket during the
    35
    incident13; and that he did not know who left a Rocawear jacket at his house.
    He also falsely denied recognizing Simonton’s photograph when it was first
    shown to him; omitted Simonton in his first account to the inspectors; lied
    that Simonton had never been to his house and lied when he later said
    Simonton was “glorifying” at his house after the incident; lied that he,
    Biggins, did not have a gun with him the night of the incident; and lied that
    his only gun was the .45-caliber gun police found in his house.
    Much of Biggins’s testimony about his lies and his changing account of
    what happened on the night of the incident was elicited during cross-
    examination by Jones’s counsel, the first among the four defense counsel (the
    others being counsel for Molina, Lige and Kittles) to cross-examine him. Two
    hours into the cross-examination, the court made clear that, although it was
    “only” a preliminary hearing, it was giving Jones’s counsel “a lot of leeway”
    because of “the implications of this witness.” The court added, “I’m not going
    to give all defense attorneys this kind of leeway for cross-examination
    because we’ll be here for a month.”
    While cross-examining Biggins about his lies to police, Jones’s counsel
    showed Biggins a photograph of the neck chain police had seized from his
    bedroom. Asked if he recalled the chain being in his room when the police
    seized it, Biggins indicated he did. This exchange followed:
    “Q. Okay. That chain belong to you?
    “A. It belong to me.
    “Q. I’m sorry?
    “A. Yeah.
    “Q. It belong to you. Okay. And is that—was that chain stolen?
    13  At first, Biggins testified that he told the police inspectors he had a
    .22 pistol in his pocket that night. Then, after reviewing a transcript of his
    interview with police, he testified that he told them it was a .380.
    36
    “A. Chain ain’t stolen.
    “Q. That chain has nothing to do with this incident?
    “A. It don’t got nothing to do with this incident.
    “Q. Okay. Was that chain taken from anybody?
    “A. It wasn’t taken from nobody. It was given to me.”
    This cross-examination by Jones’s counsel was followed by cross-
    examination by Molina’s counsel, who questioned Biggins without
    interruption by the court until he had no more questions. This was followed
    by cross-examination by counsel for Lige and Kittles and a brief re-direct,
    after which defense counsel indicated they had no further questions. No one
    besides Jones’s counsel asked Biggins about the neck chain.
    Biggins also testified on cross-examination at the preliminary hearing
    that the police inspectors attempted to coerce him to tell a certain story about
    the incident. According to Biggins, they said they had no doubt he saw Jones
    with a gun at the incident and that the Rocawear jacket found at Biggins’s
    house had evidence on it, and they pressured him to identify Jones in a photo
    lineup as having been at the incident, threatening to bring criminal charges
    against him if he did not. Over the course of his many months of questioning,
    the inspectors made clear that his story was not good enough and told him
    what they believed happened, giving him bits of information as they did so.
    Also, the prosecutor later told him they had enough to charge him with
    murder but had decided not to prosecute him.
    Biggins also testified that he accused the inspectors of putting words in
    his mouth and manipulating what he said, and that their repeated
    indications that he could either be a witness or a suspect in the case made
    him uncomfortable. He was testifying in part out of a concern that he might
    otherwise be considered guilty of possessing stolen property or of the alleged
    37
    crimes. He was worried about his potential liability for robbery or murder for
    just watching the incident and for being an accessory after the fact because
    “[e]verybody came to my house.”
    Biggins acknowledged he had been involved in robberies in the past.
    He was facing charges for possession of stolen property but denied those
    charges. He denied stealing anything in the incident and said he received
    nothing taken from the victims. He said he gave the Mac 12 gun he had that
    night to a cousin who was jailed because of it. He acknowledged police found
    bullets in a box in his bedroom. He said he did not want to testify at the
    hearing because if “[y]ou tell on somebody, it’s going to come back on you,”
    but felt he had to testify because otherwise there would be “[a] lot of time”
    “hanging over [his] head.”
    2. Biggins’s Eve-of-Trial Change in His Account
    Inspector Engler testified that shortly before trial, on April 12, 2014, he
    and the prosecutor interviewed Biggins in the presence of his lawyer. They
    asked Biggins about his recollection that Molina came to his house right after
    the incident and showed the others there a chain taken in the incident.
    Biggins said something like, “ ‘Lance brings out a chain. I thought it looked
    like the one I had.’ ” Engler thought this was a peculiar statement, so he had
    a photograph of the chain seized from Biggins’s bedroom drawer emailed to
    Bailey’s widow. She recognized the chain’s unique characteristics and said it
    had belonged to Bailey, later testifying that it had distinctive yellow stones
    and small holes.
    In his pre-trial meeting with the prosecutor and Engler, Biggins also
    said for the first time that, in addition to the people he had already identified,
    12-year-old Terry Franklin and Franklin’s uncle, Lonnell Britton, also known
    as “Bey Wey,” had come to his house immediately after the incident.
    38
    Engler further testified that on April 29, 2017, he and the prosecutor
    again interviewed Biggins in the presence of Biggins’s lawyer. Biggins asked
    to examine the chain, which Engler had not shown him before. Upon
    examining it, Biggins said it did not belong to him because its clasp worked
    and his did not, that it belonged to the victim in the incident and that he did
    not know how it got into his bedroom drawer. The prosecutor immediately
    ended the interview.
    Engler said the prosecutor instructed him to draft an arrest warrant for
    Biggins for murder, three counts of robbery, arming allegations and perjury
    based primarily on his change of his account about the seized chain. He had
    prepared an affidavit for the warrant and submitted it to the district
    attorney’s office before Biggins’s testimony was read to the jury but had not
    yet been authorized to take a final warrant to a judge to be signed. Several
    days later, during the cross-examination of another witness, the prosecutor
    stipulated that Biggins was at that moment being arrested for murder.
    3. Further Relevant Proceedings Below
    After Biggins changed his account and the prosecutor withdrew his
    immunity, the prosecutor moved in limine for admission of Biggins’s
    preliminary hearing testimony at trial. He argued that the People were not
    required to offer immunity to a witness who incriminated himself (by
    indicating the neck chain found in his bedroom belonged to the victim) and
    that the defense had sufficient opportunity to cross-examine Biggins at the
    preliminary hearing. Jones filed a written opposition to this motion.
    Subsequently, Biggins invoked his Fifth Amendment right to refuse to
    testify at trial at a hearing held outside the presence of the jury. The defense
    moved for the trial court to grant Biggins judicial immunity or, alternatively,
    to require him to invoke his Fifth Amendment right in front of the jury. The
    39
    defense opposed admission of Biggins’s preliminary hearing testimony
    because it included perjured testimony about material facts, the prosecution
    had improperly procured Biggins’s unavailability at trial, and the defense
    had not had an adequate opportunity to cross-examine Biggins.
    The court denied the defense motions, admitted Biggins’s preliminary
    hearing testimony and indicated defense counsel could comment on Biggins’s
    possible role in the incident based on the evidence, including Inspector
    Engler’s testimony of Biggins’s changed account.
    After Biggins’s preliminary hearing testimony was read to the jury,
    defendants moved for a mistrial, arguing that since Biggins was now charged
    with perjury as well as murder, his prior testimony was unreliable and
    prejudiced the defense. After a hearing, the trial court denied the motion,
    relying in significant part on People v. Hollinquest (2010) 
    190 Cal.App.4th 1534
    , 1546-1547 (Hollinquest).
    Later, the parties revisited their Crawford-related arguments in
    connection with defendants’ post-trial motion for a new trial, which we
    discuss further in subpart I.D of the Discussion section, post. The trial court
    again rejected these arguments.
    B. The Trial Court’s Admission of Biggins’s Preliminary
    Hearing Testimony Did Not Violate Crawford.
    We are not persuaded by defendants’ arguments that the admission of
    Biggins’s preliminary hearing testimony at trial violated their confrontation
    rights because it prevented them from cross-examining Biggins after his eve-
    of-trial revelation that the neck chain police seized from his bedroom drawer
    belonged to one of the victims.
    The United States Supreme Court has instructed that “[w]here
    testimonial evidence is at issue . . . the Sixth Amendment demands what the
    common law required: unavailability and a prior opportunity for cross-
    40
    examination.” (Crawford, 
    supra,
     541 U.S. at p. 68, italics added.)
    Defendants had a prior, meaningful opportunity to cross-examine Biggins at
    the preliminary hearing. Defense counsel thoroughly cross-examined him,
    and Jones’s counsel specifically cross-examined him about the neck chain
    police seized from his bedroom drawer. Rather than imposing any limitations
    on this questioning, the magistrate informed Jones’s counsel it was giving
    him a lot of leeway and imposed no limits on his cross-examination or that of
    Molina’s counsel, which followed. Further, defendants do not contend, and
    there is no indication, that the prosecution withheld any information from
    them about Biggins and his statements to the police prior to the preliminary
    hearing. Rather, Biggins’s eve-of-trial change in his account appears to have
    been as much a surprise to the prosecution as to the defense.
    Under these circumstances, for the reasons we discuss below, we
    conclude the trial court did not violate defendants’ rights under the
    confrontation clause in admitting Biggins’s preliminary hearing testimony at
    trial.14
    1. Legal Standards
    We review de novo the court’s denial of the defendants’ motions
    asserting their confrontation clause rights were violated. (People v. Sweeney
    (2009) 
    175 Cal.App.4th 210
    , 221 [appellate courts should generally apply the
    de novo standard to confrontation clause claims], citing People v. Seijas
    (2005) 
    36 Cal.4th 291
    , 304.) To the extent there are mixed questions of law
    and facts, “we defer to the trial court’s determination of ‘the historical facts’—
    which ‘will rarely be in dispute’—but not the court’s ‘application of [the]
    14Jones asserts that, if we conclude that he did not sufficiently raise
    his appellate claim below, he received ineffective assistance of counsel. We
    conclude Jones sufficiently raised this claim below and, therefore, do not
    address his ineffective assistance claim.
    41
    objective, constitutionally based legal test to [those] historical facts.’ ” (People
    v. Giron-Chamul (2016) 
    245 Cal.App.4th 932
    , 964, quoting People v. Cromer
    (2001) 
    24 Cal.4th 889
    , 900 (Cromer).)
    In Crawford, the United States Supreme Court held that the
    confrontation clause “applies to ‘witnesses’ against the accused—in other
    words, those who ‘bear testimony.’ ” (Crawford, 
    supra,
     541 U.S. at p. 51.)
    “Testimonial” statements made before trial, including at a preliminary
    hearing, are admissible at trial only if the witness is unavailable and the
    defendant has had a prior opportunity to cross-examine him or her. (Id. at
    p. 68.) As the California Supreme Court has further instructed, “ ‘ “ ‘[a]
    criminal defendant states a violation of the Confrontation Clause by showing
    that he was prohibited from engaging in otherwise appropriate cross-
    examination designed to show a prototypical form of bias on the part of the
    witness, and thereby, “to expose to the jury the facts which jurors . . . could
    appropriately draw inferences relating to the reliability of the witness.” ’ ” ’ ”
    (People v. Hamilton (2009) 
    45 Cal.4th 863
    , 943, quoting Delaware v. Van
    Arsdall (1986) 
    475 U.S. 673
    , 680.) Delaware v. Van Arsdall drew support for
    its reference to a “prototypical form of bias” from Davis v. Alaska (1974)
    
    415 U.S. 308
    , 318, which further explained that “[c]ross-examination is the
    principal means by which the believability of a witness and the truth of his
    testimony are tested,” including “by means of cross-examination directed
    toward revealing possible biases, prejudices, or ulterior motives of the
    witness as they may relate directly to the issues or personalities at hand.”
    (Id. at p. 316.)
    In Hollinquest, Division One of this court summarized Crawford and
    the relevant California law that followed it: “ ‘ “[T]he right of confrontation
    and cross-examination is an essential and fundamental requirement for the
    42
    kind of fair trial which is this country’s constitutional goal. . . . The ‘right of
    confrontation is not absolute, however [citations], “and may, in appropriate
    cases, bow to accommodate other legitimate interests in the criminal trial
    process.” [Citation.]’ [Citations.] In particular, the right of confrontation
    ‘does not preclude the prosecution from proving its case through the prior
    testimony of a witness who is unavailable at trial, so long as the defendant
    had the right and the opportunity to cross-examine the witness during the
    earlier proceeding at which the witness gave this testimony.’ [Citation.] ‘ “If
    a witness is unavailable at trial and has testified at a previous judicial
    proceeding against the same defendant and was subject to cross-examination
    by that defendant, the previous testimony may be admitted at trial.”
    [Citations.]’ [Citation.]
    “Also indisputable is the principle that a witness, upon proper assertion
    of the privilege against self-incrimination, is unavailable as a witness at trial.
    [Citation.] ‘Evidence Code section 240, subdivision (a) defines unavailable
    witnesses as any of five types of witnesses. A witness who is exempted from
    testifying on the ground of privilege is defined as one type.’ [Citation.] ‘A
    witness who successfully asserts the privilege against self-incrimination is
    unavailable to testify for these purposes.’ [Citation.]” (Hollinquest, supra,
    190 Cal.App.4th at pp. 1546-1547, fn. omitted.)
    The Hollinquest court further explained that Evidence Code
    section 1291, regarding the admission of former testimony, codified the
    “recognized exception to the rule that a criminal defendant has the right to
    confront the witnesses against him . . . . ‘When the requirements of Evidence
    Code section 1291 are met, “admitting former testimony in evidence does not
    violate a defendant’s right of confrontation under the federal Constitution.
    [Citations.]” [Citation.] [¶] Evidence Code section 1291, subdivision (a)(2),
    43
    provides that former testimony is not rendered inadmissible as hearsay if the
    declarant is “unavailable as a witness,” and “[t]he party against whom the
    former testimony is offered was a party to the action or proceeding in which
    the testimony was given and had the right and opportunity to cross-examine
    the declarant with an interest and motive similar to that which he has at the
    hearing.” ’ [Citations.]
    “ ‘The recent decision of Crawford v. Washington (2004) 
    541 U.S. 36
    ,
    although changing the law of confrontation in some respects, left these
    principles intact.’ [Citation.] ‘ “[A]s long as a defendant was provided the
    opportunity for cross-examination, the admission of preliminary hearing
    testimony under Evidence Code section 1291 does not offend the
    confrontation clause of the federal Constitution simply because the defendant
    did not conduct a particular form of cross-examination that in hindsight
    might have been more effective.” [Citations.]’ [Citations.] . . . [¶] ‘Under
    these rules,’ the California Supreme Court has ‘ “routinely allowed admission
    of the preliminary hearing testimony of an unavailable witness.” [Citation.]’
    [Citation.]” (Hollinquest, supra, 190 Cal.App.4th at pp. 1548-1549; see also
    People v. Brock (1985) 
    38 Cal.3d 180
    , 190 [pre-Crawford case concluding
    preliminary hearing testimony by an unavailable trial witness is admissible
    under section 1291 “where the defendant had a meaningful opportunity to
    cross-examine the witness in the former proceeding”].)
    In short, “[t]he preference for face-to-face cross-examination at trial has
    been found to be outweighed by recognized competing interests that warrant
    dispensing with the right of confrontation under circumstances where the
    defense had the opportunity to cross-examine the witness at the previous
    hearing with an interest and motive similar to that which he has at the
    subsequent hearing. [Citations.] ‘[I]t is settled that the preference for live
    44
    testimony gives way when the witness properly invokes the privilege against
    self-incrimination and a prior appropriate opportunity for cross-examination
    existed.’ ” (Hollinquest, supra, 190 Cal.App.4th at pp. 1550-1551, quoting
    People v. Williams (2008) 
    43 Cal.4th 584
    , 623.)
    Of particular importance to the present case, our Supreme Court has
    explained that events occurring after the first proceeding in which the
    testimony is given does not mean cross-examination must be reopened: “ ‘a
    defendant’s interest and motive at a second proceeding is not dissimilar to his
    interest at a first proceeding within the meaning of Evidence Code
    section 1291, subdivision (a)(2), simply because events occurring after the
    first proceeding might have led counsel to alter the nature and scope of cross-
    examination of the witness in certain particulars. [Citation.] The “ ‘motives
    need not be identical, only “similar.” ’ ” [Citation.] “Both the United States
    Supreme Court and [the California Supreme Court] have concluded that
    ‘when a defendant has had an opportunity to cross-examine a witness at the
    time of his or her prior testimony, that testimony is deemed sufficiently
    reliable to satisfy the confrontation requirement [citation], regardless whether
    subsequent circumstances bring into question the accuracy or the completeness
    of the earlier testimony.’ ” [Citations.]’ ” (People v. Valencia (2008) 
    43 Cal.4th 268
    , 293-294, italics added, quoting People v. Samayoa (1997) 
    15 Cal.4th 795
    ,
    850; People v. Wilson (2005) 
    36 Cal.4th 309
    , 343; and People v. Harris (2005)
    
    37 Cal.4th 310
    , 333.)
    In other words, the confrontation clause “is a procedural rather than a
    substantive guarantee. It commands, not that evidence be reliable, but that
    reliability be assessed in a particular manner: by testing in the crucible of
    cross-examination. The Clause thus reflects a judgment, not only about the
    desirability of reliable evidence (a point on which there could be little
    45
    dissent), but about how reliability can best be determined.’ ([Crawford],
    supra, 541 U.S. at p. 61.) In other words, ‘[w]here testimonial statements are
    at issue, the only indicium of reliability sufficient to satisfy constitutional
    demands is the one the Constitution actually prescribes: confrontation.’ (Id.
    at pp. 68-69.)” (People v. Wilson, 
    supra,
     36 Cal.4th at p. 343.)
    2. Analysis
    Defendants’ Crawford arguments fail because they had a meaningful
    opportunity to cross-examine Biggins at the preliminary hearing, including
    about the neck chain police seized from Biggins’s bedroom drawer and his
    numerous lies to police. At the preliminary hearing, defendants had an
    interest and motive to question Biggins that was similar, if not identical, to
    their interests at trial. At the time of the preliminary hearing, the relevance
    of Biggins’s testimony to the prosecution’s case against Molina and Jones was
    known and obvious. He directly implicated both Molina and Jones in the
    incident, asserting that they approached the victims’ car together when it
    stopped in the Horseshoe; that upon exiting the car, Molina’s girlfriend
    indicated the victims had phones and wallets; that Jones and Molina (along
    with Lige) fought with Bailey; that Jones shot Bailey; that Molina displayed a
    neck chain immediately thereafter at Biggins’s house; and that Jones left his
    Mac 11 gun and his jacket with Biggins that night.
    Biggins’s biases and ulterior motives were also obvious at the time of
    the preliminary hearing. His own involvement in the incident, his concerns
    that he could be prosecuted for robbery and murder and his efforts to
    downplay his role to avoid such charges were also known and obvious. He
    implicated himself by testifying that those involved in the incident retreated
    to his house immediately thereafter, where they displayed stolen items to
    each other, that he took Jones’s gun and Rocawear jacket, and that he had
    46
    changed his story during many months of police questioning to obscure his
    own potential culpability. He also acknowledged he was arrested and
    charged for possessing stolen property based on what police found in their
    search of his home, suggesting he had a further incentive to testify in a way
    that advanced his own personal interests.
    The defense also had both the means and the opportunity to challenge
    Biggins’s credibility at the preliminary hearing. Biggins admitted he had
    repeatedly lied to police inspectors over the course of their investigation. He
    testified that he felt coerced by the inspectors to tell the story they wanted to
    hear and that they suggestively informed him of facts they claimed to know.
    He admitted having been present and armed at the scene of the shooting and
    having hosted the gathering at which the spoils from the robbery were
    displayed. And he essentially admitted he had a motive to lie. By pinning
    blame for the shooting on Jones and the other violence on Molina and others,
    and denying any active role in the robbery, Biggins could avoid being charged
    and convicted and serving “[a] lot of time.”
    Further, the magistrate allowed counsel for Jones and Molina virtually
    unlimited time to cross-examine Biggins. Jones’s counsel cross-examined
    him for over two hours, much of that time exploring Biggins’s admitted lies to
    police (and asking him about the seized neck chain), and Molina’s counsel
    cross-examined Biggins without interruption by the court until he was out of
    questions. Together, their cross-examination of Biggins occurred over two
    days and went on for 123 pages of reporter’s transcript and defense counsel
    for Kittles and Lige cross-examined him for another 50 pages. Defendants
    were afforded a meaningful opportunity to cross-examine Biggins on all
    subjects. (Cf. People v. Cloyd (1997) 
    54 Cal.App.4th 1402
    , 1409 [nine
    47
    transcript pages of cross-examination indicated defense counsel was provided
    “full-opportunity” to cross-examine witness at preliminary hearing].)
    In short, it was obvious at the time of the preliminary hearing that
    Biggins exhibited a prototypical form of bias, and defense counsel employed
    the evidence of his bias and ulterior motives to attack his credibility.
    Defendants thoroughly cross-examined him about his dishonesty and his
    motives.
    Defendants nonetheless contend that his hearing testimony should not
    have been admitted because they did not have the opportunity to cross-
    examine him about his eve-of-trial admission that the neck chain police found
    in his bedroom belonged to one of the victims in the incident. They
    characterize his preliminary hearing testimony that the chain was his own as
    “perjury.” Defendants’ effort to elevate this change in story about the gold
    chain into a Crawford violation is not persuasive.
    First, as we have just discussed, even “subsequently discovered
    impeaching evidence” generally does not render inadequate a defendant’s
    opportunity for cross-examination at a preliminary hearing. (People v.
    Valencia, supra, 43 Cal.4th at pp. 294-295.) The fact that Biggins evidently
    was in possession of a part of the spoils from the robbery arguably implicated
    him in the incident and underscored his desire to avoid criminal liability.
    But the evidence available at the time of the preliminary hearing, including
    his testimony about his presence at the scene and the post-incident meeting
    at his house, already provided defense counsel ample grist for cross-
    examining him about his motive for testifying against them: to avoid a
    prison sentence for his own involvement. And the presence of the chain in
    Biggins’s home, even though he initially denied it was taken in the robbery,
    was another basis for suspicion of his involvement, as the cross-examination
    48
    on that point suggested. The bottom line is that it is doubtful that Biggins’s
    eve-of-trial change in his account would have added to his cross-examination
    significantly had it been made at the time of the preliminary hearing or had
    Biggins been available at trial.
    Second, to the extent defendants claim Biggins’s change in his account
    demonstrates that his preliminary hearing testimony about the chain
    amounted to “perjury” and made his entire testimony unreliable to admit at
    trial, we disagree. The court admitted not only Biggins’s preliminary hearing
    testimony but also the testimony of Inspector Engler that Biggins later said
    his claim that the chain belonged to him was false. The jury could assess
    whether the admitted falsity rendered all, some or none of his testimony
    unreliable. Further, the chain evidence was only indirectly relevant to the
    core of Biggins’s testimony about defendants’ role in the robbery and murder.
    Along with repeated lies he had earlier made to police, which Biggins also
    admitted, the jury could decide whether he was a liar across the board or a
    liar only regarding his own involvement in the crime.
    Third, defendants do not establish that anyone acted improperly in the
    chain of events that led to Biggins’s absence from trial. Defendants argue,
    but fail to demonstrate, that the People withdrew the offer of immunity to
    Biggins in bad faith—an issue we address and reject in subpart I.D, post.
    They do not contend that the law required the trial court to order that
    immunity be restored to Biggins or that Biggins could not lawfully assert his
    Fifth Amendment right not to testify at trial.
    Fourth, the case relied on by the trial court here, Hollinquest, supra,
    
    190 Cal.App.4th 1534
    , and a California Supreme Court case, People v. Carter
    (2005) 
    36 Cal.4th 1114
     (Carter), support the conclusion that the trial court
    properly admitted Biggins’s preliminary hearing testimony. In Hollinquest,
    49
    Buchanan, the lover of the victim, Smith, conspired with the defendant,
    Hollinquest, for Hollinquest to rob Smith while Smith was in his car with
    Buchanan. (Id. at pp. 1540-1542.) This attempted robbery went awry.
    Hollinquest shot the fleeing Smith eight times, killing him, and was
    subsequently charged with murder and robbery. (Ibid.) After he received use
    immunity, Buchanan testified at Hollinquest’s preliminary hearing. (Id. at
    p. 1540.) He said he initially lied to police to conceal his involvement in the
    robbery claiming he too was a victim, but at the hearing he detailed his
    participation. (Id. at pp. 1540-1542.) He also denied that he knew
    Hollinquest planned to kill Smith and said he had run inside a nearby house
    of a friend just before Hollinquest shot Smith outside. (Id. at pp. 1541-1542.)
    Buchanan further testified that after he spoke to police, he told Hollinquest
    by phone that police had questioned him. (Id. at p. 1542.)
    After the preliminary hearing and before trial, for reasons not
    discussed in the opinion, the prosecution charged Buchanan with murder and
    revoked his use immunity, and Buchanan asserted his Fifth Amendment
    right not to testify against Hollinquest at the latter’s trial. (Hollinquest,
    supra, 190 Cal.App.4th at p. 1546.) At the prosecution’s request, the trial
    court admitted Buchanan’s preliminary hearing testimony at trial, which
    Buchanan contended on appeal violated his confrontation rights. (Ibid.)
    Hollinquest argued that cell phone records showed that in the moments after
    the murder Buchanan attempted seven calls to Hollinquest and had one
    connected call (thereby suggesting Buchanan was more involved in the
    murder than he admitted), but that those records did not become available
    until after the preliminary hearing, making it impossible for his counsel to
    properly cross-examine Buchanan at the hearing about his account of the
    robbery/murder. (Id. at pp. 1544-1545, 1549, 1550.)
    50
    The Hollinquest court disagreed. It was not convinced that
    Hollinquest’s cross-examination at the preliminary hearing was compromised
    by the lack of prior access to cell phone records because Hollinquest’s interest
    and motive at trial were “not dissimilar” to those he had at the time of the
    preliminary hearing “ ‘ “simply because events occurring after the first
    proceeding might have led counsel to alter the nature and scope of cross-
    examination of the witness in certain particulars.” ’ ” (Hollinquest, supra,
    190 Cal.App.4th at p. 1549.) The court noted that the defense probed
    Buchanan’s calls to Hollinquest at the preliminary hearing. (Ibid.) “Thus,”
    the court continued, “the defense had a reason and at least the opportunity to
    elicit testimony from Buchanan about the extent of his cell phone
    conversations with defendant at the preliminary hearing. We also do not
    think any cross-examination of Buchanan on the subject of cell phone records
    by the defense at trial would have resulted in a more successful challenge to
    the reliability of his testimony. [Citation.] ‘ “As long as defendant was given
    the opportunity for effective cross-examination, the statutory requirements
    were satisfied; the admissibility of this evidence did not depend on whether
    defendant availed himself fully of that opportunity.” [Citation.]’ [Citation.]
    Further, at trial the defense had the cell phone records, and managed to
    engage in cross-examination and argument as to their import in the case.”
    (Id. at pp. 1549-1550, fn. omitted.)
    The Hollinquest court also rejected Hollinquest’s assertions that it was
    necessary to cross-examine Buchanan at trial to “bring out ‘whether
    Buchanan was expecting or being given any benefits in his own case in
    exchange for his testimony’ ” and so that the jury could observe his demeanor.
    (Hollinquest, supra, 190 Cal.App.4th at p. 1550.) Regarding the former, the
    court concluded the defense had the chance to explore the issue at trial
    51
    through other witnesses and that nothing indicated a pre-existing agreement
    between Buchanan and the prosecution. (Ibid.) Regarding the latter, the
    court observed that, while live testimony was always preferable to former
    testimony, it had been “found to be outweighed by recognized competing
    interests that warrant dispensing with the right of confrontation under
    circumstances where the defense had the opportunity to cross-examine the
    witness at the previous hearing with an interest and motive similar to that
    which he has at the subsequent hearing,” and when a witness “ ‘properly
    invokes the privilege against self-incrimination and a prior appropriate
    opportunity for cross-examination existed.’ ” (Id. at pp. 1550-1551.)
    As in Hollinquest, the defense here had ample opportunity to cross-
    examine Biggins at the preliminary hearing about his lies to police and his
    interest in protecting himself and had the same interest and motive for doing
    so as it had at trial. As with the phone records in Hollinquest, both the
    prosecution and the defense here received additional information only after
    the preliminary hearing that raised further questions about the credibility of
    Biggins’s testimony, i.e., that Biggins, by his own admission, had falsely
    testified at the preliminary hearing that the neck chain seized from his
    bedroom drawer belonged to him rather than having been stolen from the
    murder victim, Bailey. As with Buchanan, Biggins, upon being charged and
    having his immunity withdrawn by the prosecution, invoked his Fifth
    Amendment right not to testify. As in Hollinquest, the trial court here
    allowed all the pertinent evidence to be presented to the jury, including
    Inspector Engler’s testimony recounting Biggins’s change in his account, and
    allowed the import of this evidence to be argued by counsel. Under these
    circumstances, Jones and Molina’s confrontation rights were not violated by
    52
    the trial court’s decision to admit Biggins’s preliminary hearing testimony at
    trial.
    Defendants attempt to distinguish Hollinquest by arguing that the
    phone records discovered after the preliminary hearing in that case were not
    particularly important to the defense. But on appeal, Hollinquest argued the
    phone records suggested Buchanan had been more complicit in the murder of
    Smith than he indicated at the preliminary hearing, at the very least
    rendering him an unreliable witness against Hollinquest. The import of the
    later discovered evidence in Hollinquest is strikingly similar to that of Jones
    and Molina, who sought to use Biggins’s changed account about the seized
    neck chain to argue that he perjured himself and that none of his preliminary
    hearing testimony should be believed. In any event, defendants had plenty of
    opportunity to argue the import of Biggins’s eve-of-trial change in his account
    at trial because all of Biggins’s statements about the neck chain, including
    that it belonged to the murder victim, were presented to the jury.
    Carter, another case the trial court cited, is also instructive. There, the
    prosecution sought to introduce the preliminary hearing testimony of a
    witness, Blevins, the former boyfriend of a woman, Kim, whom Carter was
    accused of killing. Blevins died before trial but had testified at the
    preliminary hearing that he saw Kim and Carter together before her death
    and that certain objects found by police in Carter’s car were similar to objects
    he had seen in Kim’s apartment. (Carter, 
    supra,
     36 Cal.4th at pp. 1171,
    1173.) Carter moved to exclude Blevins’s hearing testimony at trial on the
    ground that his counsel failed to engage in any meaningful cross-examination
    at the preliminary hearing, which motion the trial court denied. (Id. at
    p. 1171.)
    53
    On appeal, Carter argued the trial court should have excluded Blevins’s
    testimony for lack of meaningful cross-examination because his counsel made
    no effort to focus on Blevins as a third-party suspect in Kim’s murder despite
    knowing at the time that Blevins and Kim had argued bitterly just before her
    death. (Carter, supra, 36 Cal.4th at pp. 1171-1172.) Our Supreme Court
    rejected defendant’s argument, concluding that, because Carter’s motive and
    interest in cross-examining Blevins at the preliminary hearing was “closely
    similar, if not identical to, [Carter’s] objectives at . . . trial,” and because the
    defendant “ ‘was provided the opportunity for cross-examination, the
    admission of preliminary hearing testimony . . . [did] not offend the
    confrontation clause of the federal Constitution simply because the defendant
    did not conduct a particular form of cross-examination that in hindsight
    might have been more effective.’ ” (Id. at pp. 1173-1174, italics added.)
    Similarly, at the preliminary hearing counsel for Jones asked Biggins,
    an admitted liar, relatively little about the neck chain police seized from his
    bedroom drawer, and Molina’s counsel asked him nothing at all about it.
    This is so even though the neck chain could have been used to suggest that
    Biggins, not Molina (who Biggins said had shown a chain to the others at his
    house), had taken the chain from the murder victim that night. In other
    words, regardless of what defendants’ counsel later learned would be a more
    effective cross-examination of Biggins after his eve-of-trial change in his
    account about the neck chain, like Carter, their motives and interests in
    cross-examining Biggins at the preliminary hearing were the same as at trial,
    and they had ample opportunity to cross-examine him. Hollinquest and
    Carter establish that under these circumstances, the admission of Biggins’s
    preliminary hearing testimony at trial did not violate defendants’
    confrontation rights.
    54
    Defendants do not cite case law suggesting Hollinquest and Carter were
    wrongly decided or should not be relied on here. The only California case
    they lean into is People v. Garner (1989) 
    207 Cal.App.3d 935
     (Garner). There,
    after a preliminary hearing, a witness who provided the only evidence
    connecting Garner to the crime confessed that he had perjured himself in his
    preliminary hearing testimony accusing defendant (id. at pp. 937-938) and
    invoked his Fifth Amendment right not to testify at trial for fear he would be
    charged with perjury. The trial court ruled that the witness was unavailable
    to testify, but nonetheless admitted his preliminary hearing testimony—
    while barring the admission of evidence regarding the witness’s perjury
    confession and instructing the jury not to draw any inferences about his
    credibility based on his refusal to testify so as not to incriminate himself, in
    this case for perjury. (Garner, at p. 938.) The appellate court found the trial
    court’s action wanting, holding: “When the People wish to go forward in
    reliance upon the testimony of a recanting witness, fundamental fairness
    would require, at a minimum, that the jury (1) be advised precisely why the
    witness is being allowed to refuse to testify, i.e., an alleged fear of a perjury
    prosecution, and (2) be instructed that they should draw all reasonable and
    appropriate inferences therefrom concerning the witness’s credibility and the
    guilt or innocence of the accused.” (Id. at p. 941.)15
    15  Jones emphasizes the dicta in Garner that the “truly preferable
    approach” would have been to condition the prosecution’s request to introduce
    the perjured preliminary hearing testimony upon the prosecution’s granting
    Garner immunity to testify. (Garner, supra, 207 Cal.App.3d at p. 941.)
    Garner is plainly distinguishable. The language Jones quotes is prefaced,
    “[w]hen the People wish to go forward in reliance upon the testimony of a
    recanting witness.” (Ibid. [italics added]) In Garner, the witness’s
    identification of the defendant was the only evidence connecting Garner to
    the crime, the witness thereafter recanted that very testimony, and the fact
    55
    Here, the trial court did what the Garner court required. The jury was
    fully aware of both Biggins’s preliminary hearing testimony and his eve-of-
    trial change of account, and that he had lost his immunity to testify, was in
    the process of being charged with murder and perjury and, as a result, was
    unavailable to testify at trial. The jury was instructed that, “[i]f you decide
    that a witness deliberately lied about something significant in this case, you
    should consider not believing anything that witness says. Or if you think a
    witness lied about some things but told the truth about others, you may
    simply accept the part that you think is true and ignore the rest.”
    Defendants, particularly Jones, also cite numerous cases from other
    jurisdictions in support of their confrontation claim. These cases are, of
    course, not binding authority (see, e.g., People v. Bradford (1997) 
    15 Cal.4th 1229
    , 1292) and, in any event, none are on point or persuasive. Harre v. A.H.
    Robins Co., Inc. (11th Cir. 1985) 
    750 F.2d 1501
    , vacated in part on other
    grounds, 
    866 F.2d 1301
    ; U.S. v. McLaughlin (E.D. Pa. 2000) 
    89 F.Supp.2d 617
    ; and Harrington v. City of Council Bluffs (S.D. Iowa 2012) 
    902 F.Supp.2d 1181
     involve post-trial discoveries of perjured testimony that have nothing to
    do with the admission of prior testimony at a criminal trial or Crawford
    issues. U.S. v. Wilmore (9th Cir. 2004) 
    381 F.3d 868
     involves the admission
    of a witness’s prior testimony before a grand jury, when the defendant
    obviously had no opportunity to cross-examine the witness. Commonwealth
    v. Bazemore (1992) 
    531 Pa. 582
     and People v. Torres (Ill. 2012) 
    962 N.E.2d 919
     each held that prior preliminary hearing testimony should not have been
    that he recanted (as opposed to refusing to testify at trial for some other
    reason) was entirely withheld from the jury. (Id. at pp. 937-938.) None of
    that is true here. Biggins’s testimony was not the only evidence connecting
    defendants to the crime, his changed his testimony did not recant his
    testimony about Jones and Molina, and the jury was fully apprised of his
    changed testimony.
    56
    admitted at a subsequent criminal trial, but in doing so relied heavily on the
    prosecution’s failure to disclose all known, relevant information to the
    defense prior to the preliminary hearing, and Torres also involved the court’s
    discouragement of cross-examination at the hearing. None of these
    circumstances exist in the present case.
    Defendants also contend that the magistrate only afforded them a
    limited opportunity to cross-examine Biggins at the preliminary hearing.
    This is factually incorrect. As we have discussed, the magistrate, despite
    expressing reservations about time, gave defendants a full opportunity to
    cross-examine Biggins. He twice indicated he was allowing defense cross-
    examination of Biggins to continue at great length, stating that he was doing
    so because of the obvious implications of Biggins’s testimony and even if he
    had to cancel the remainder of the scheduled hearing calendar. For example,
    he said during Jones’s counsel’s cross-examination, “We have gone over two
    hours with cross-examination. It is only a preliminary hearing. I understand
    the implications of this witness, and that is why I am giving that leeway.”
    Molina points to several statements by the magistrate during the cross-
    examination of Biggins by counsel for Kittles, which Molina construes as
    inhibiting cross-examination. We fail to see how the court’s statements cited
    by Molina could have inhibited counsel for Jones and Molina when they had
    already completed their extensive cross-examinations. Further, the court did
    not limit Kittles’s counsel regarding the subjects at issue here. Its
    statements were in response to questions that veered away from the incident,
    such as who Biggins feared such that he carried a gun and why he bought a
    .45 pistol when he already had a Mac 12, or questions that were cumulative,
    such as about Biggins arming himself with a Mac 12 on the night of the
    57
    incident, a subject that already had been fully explored by other counsel at
    the hearing.
    In short, defendants’ argument that the trial court’s admission of
    Biggins’s preliminary hearing testimony violated their confrontation rights
    under Crawford because they were denied a meaningful opportunity to cross-
    examine him is without merit. In light of our conclusion, we do not address
    defendants’ claim that the error was prejudicial.16
    C. Any Error by the Trial Court in Instructing the Jury
    Regarding Biggins’s Possible Perjury Was Harmless.
    Jones also argues that the trial court committed prejudicial error by
    instructing the jury that the People, in order to prove their “charge” that
    Biggins (a witness and not a defendant in this case) had perjured himself
    regarding the neck chain police seized from his bedroom drawer, had to prove
    all of the elements of the crime of perjury beyond a reasonable doubt. The
    People argue that Jones is not entitled to raise this appellate claim and that
    it lacks merit. We conclude that, under either party’s legal theory, we must
    determine whether any claimed court error was prejudicial, and further
    16  Molina, joined by Jones, also briefly and somewhat confusedly
    argues that the prosecution erred at trial by presenting what he knew was
    Biggins’s “tainted and perjurious” preliminary hearing testimony (an
    apparent reference to his testimony about the neck chain seized from his
    bedroom drawer). Molina contends the error violated the immunity statute,
    section 1324 and Molina’s federal constitutional due process right to a fair
    trial by presenting false evidence. Molina’s argument fails because the
    prosecution did not admit Biggins’s preliminary hearing testimony about the
    neck chain to prove its truth; to the contrary, the prosecution argued Biggins
    had committed perjury in that part of his testimony. Further, both Biggins’s
    preliminary hearing testimony about the necklace and the evidence
    regarding his changed account were admitted at trial. Under these
    circumstances, we fail to see any prosecutor error that violated defendants’
    due process right to a fair trial.
    58
    conclude that any such error was harmless. Therefore, Jones’s contention
    that we must reverse for instructional error lacks merit.
    1. Background
    We have already recounted Biggins’s preliminary hearing testimony
    that the neck chain police seized from his bedroom drawer was his own and
    not from the incident; his eve-of-trial change in this account; the People’s
    withdrawal of testimonial immunity to Biggins and decision to charge him
    with murder, conspiracy to commit robbery, robbery, assault with a deadly
    weapon and perjury; his refusal to testify at trial based on his
    Fifth Amendment rights; the court’s ruling that he was unavailable to testify
    at trial; and the trial court’s admission of his preliminary hearing testimony,
    as well as its uncontested admission of the evidence of his eve-of-trial change
    in his account.
    In addition to the arguments we have already discussed, Jones argued
    below in moving to exclude Biggins’s preliminary hearing testimony that, if
    the court admitted the testimony, “a curative instruction [was] needed to
    inform the jury that Biggins perjured himself at the preliminary hearing.
    His testimony . . . was . . . highly incriminating of all four defendants. Absent
    such an instruction, the jurors will have no reason to disbelieve his perjured
    testimony and will not be able to weigh his testimony against the factors
    outlined in CALCRIM [No.] 226 [regarding witness credibility]. Specifically,
    the jurors may give undue weight to Biggins’[s] testimony because they will
    not know that he ‘deliberately lied about something significant to this case.’
    Without the benefit of cross-examination, a curative instruction describing
    the nature of the perjury is the only mechanism for informing the jury that
    Biggins lied under oath. [¶] The defense is currently drafting an instruction
    59
    for review by the court based on CALCRIM [No.] 2640, the instruction on
    perjury.” (Fn. omitted.)
    The court denied this motion but did not directly address the request
    for a curative instruction, saying it would discuss jury instructions with
    counsel “later.” The parties do not identify any further discussion between
    the court and counsel about the matter, nor indicate anyone submitted a
    proposed instruction to the court.
    By the time it began deliberations, the jury appears to have understood
    that Biggins had been charged with perjury in a separate case. Inspector
    Engler testified that the district attorney was preparing to charge Biggins
    with murder, robbery and perjury. Several days later, still during the trial,
    the prosecutor stipulated that on that day, Biggins was being arrested for
    “murder.” Presumably, he was arrested on all the charges against him,
    including perjury and robbery.
    In any event, Biggins was not on trial in this case. Nonetheless, the
    trial court instructed the jury as follows based on CALCRIM No. 2640:
    “Arnold Biggins has been charged with perjury. To prove that Mr.
    Biggins has committed this crime the People must prove that:
    “One, Mr. Biggins took an oath to testify truthfully before a competent
    tribunal under circumstances in which the oath of the State of California
    lawfully may be given.
    “When Mr. Biggins testified, he willfully stated that the information
    was true even though he knew it was false.
    “The information was material.
    “Mr. Biggins knew he was making the statement under oath.
    “And when Mr. Biggins made the false statement he then intended to
    testify falsely while under oath.”
    60
    The court further instructed, “The People allege that Mr. Biggins made
    the following false statements: [¶] The chain seized from Mr. Biggins’ dresser
    drawer was his and was not stolen.”
    The court gave other jury instructions that are relevant to this claim of
    error. Specifically, it instructed that, “[w]henever I tell you the People must
    prove something, I mean they must prove it beyond a reasonable doubt
    unless I specifically tell you otherwise” and that, “[i]f you decide that a
    witness deliberately lied about something significant in this case, you should
    consider not believing anything that witness says. Or if you think the
    witness lied about some things but told the truth about others, you may
    simply accept the part that you think is true and ignore the rest.”
    In closing argument, the prosecutor acknowledged possible concerns
    with Biggins’s and Simonton’s testimony. He argued the prosecution had
    proved the charges against Jones with other evidence, such as Harrell’s
    identification of Jones as one of the assailants. He also said, “[A] play cast in
    hell is going to have bad angels. . . . They are bad people.”
    Most notably, the prosecutor agreed that Biggins lied in his
    preliminary hearing testimony, accused him of having committed perjury and
    “aided and abetted a robbery.” Responding to defense counsel’s contentions
    that he was trying to win at all costs by presenting Biggins’s “perjurious”
    testimony, the prosecutor said, “No, Arnold Biggins lied. Arnold Biggins lied.
    He broke his agreement. His agreement was if you lie, you’re going to get
    prosecuted for this murder. That’s exactly what I did in this.” He added,
    “Yes, it is perjury regarding the necklace,” and argued the jury could
    nonetheless decide what it found believable about the remainder of Biggins’s
    testimony.
    61
    Jones’s counsel argued in closing that Jones was being framed for a
    shooting that Simonton committed. He told the jury not to rely on anything
    Biggins said, as Biggins had been arrested “not just for what happened in
    this robbery/murder but for perjury. For perjury.”
    As we have already discussed, the jury convicted Jones on most, but not
    all, of the charges brought against him. It found him guilty of the first degree
    murder of Bailey (count I) and found that he committed the murder for the
    benefit of a criminal street gang.17 It also found that a principal was armed
    with a firearm and that a principal used a firearm for the benefit of the gang
    or to further its activities. However, it found not true that Jones himself
    murdered Bailey while he was engaged in the commission of a robbery or
    while he was an active participant in a criminal street gang and in order to
    further the activities of the gang, that Jones personally and intentionally
    discharged a firearm, and that he personally and intentionally discharged a
    firearm causing great bodily injury.
    The jury further found Jones guilty of conspiracy to commit robbery
    (count II). It found true that he acted for the benefit of a criminal street gang
    and personally used a firearm in engaging in this conspiracy.
    The jury also found Jones guilty of the robberies of Bailey, Green and
    Harrell (counts III to V). It further found that in the commission of these
    robberies, a principal was armed with a firearm, a principal personally used a
    firearm, an assault pistol, for the benefit of a criminal street gang to further
    criminal conduct by gang members, and Jones committed the robberies for
    this same gang purpose. However, the jury found not true that in committing
    17 As we will discuss in part IV, post, we must reverse the jury’s gang
    findings and convictions because the court committed prejudicial error by
    admitting material hearsay testimony by a gang expert.
    62
    these robberies, Jones personally and intentionally discharged a firearm that
    caused great bodily injury or benefitted a criminal street gang.
    The jury further found Jones guilty of assault with an assault pistol
    (count VI), assault with a firearm (count VII), and possession of a firearm by
    a felon (count VIII), all of which the jury concluded he committed for the
    benefit of a criminal street gang. It also found him guilty of active
    participation in a criminal street gang (count X).
    2. Analysis
    a. Forfeiture
    We first address the People’s contentions that Jones invited any error
    below and has forfeited this instructional error claim, particularly regarding
    the instruction on Biggins’s possible perjury that the court based on
    CALCRIM No. 2640. The People contend Jones’s counsel “requested and
    composed” that perjury instruction, and that in any event the instruction was
    a correct statement of law. We disagree.
    Invited error occurs when a defendant requests an incorrect instruction
    as part of a conscious and deliberate tactical choice. (People v. DeHoyos
    (2013) 
    57 Cal.4th 79
    , 138.) Here, Jones asked the trial court to instruct the
    jury that Biggins had perjured himself at the preliminary hearing regarding
    the neck chain found in his bedroom drawer in order to “cure” the damage
    done by that testimony’s admission at trial. We are not called on to evaluate
    whether such an instruction would have been appropriate in the absence of
    an admission by Biggins that he deliberately lied at the preliminary hearing.
    We note only that Jones requested an instruction that is materially different
    from the one given by the trial court, which refers only to the standards the
    People had to meet to prove a perjury charge against Biggins. There was no
    invited error.
    63
    The People also argue Jones has forfeited his instructional error claim
    because “ ‘[a] party may not complain on appeal that an instruction correct in
    law and responsive to the evidence was too general or incomplete unless the
    party has requested appropriate clarifying or amplifying language.’ ” (People
    v. Landry (2016) 
    2 Cal.5th 52
    , 99-100.) Jones responds that the instruction is
    not legally correct because the court should not have instructed the jury that
    the prosecution had to prove Biggins’s perjury beyond a reasonable doubt in
    this case. Jones further contends that the court’s error was prejudicial to him
    and, therefore, is reviewable under section 1259,18 and that case law suggests
    a defendant’s mere contention that his substantial rights were violated is
    sufficient to defeat a claim of forfeiture (see People v. Boyce (2014) 
    59 Cal.4th 672
    , 691, fn. 12 [“no objection was necessary because, if [the defendant] were
    correct, such an error would have affected his substantial rights”]; People v.
    Benavides (2005) 
    35 Cal.4th 69
    , 111 [“[T]o the extent defendant asserts
    instructional error affected his substantial rights, he is not precluded from
    raising the claim on appeal even absent an objection in the trial court”]).
    The People do not concede that a mere claim of a substantial rights
    violation (as opposed to an actual violation) defeats a forfeiture claim.
    Nonetheless, they acknowledge that, even under their forfeiture theory, we
    must review the merits of Jones’s claim, if only to determine whether the
    trial court committed a prejudicial error that actually violated Jones’s
    substantial rights under section 1259. We need not resolve this dispute
    regarding the forfeiture standard because, regardless, the parties agree we
    must examine the merits of Jones’s claim. (See People v. Cruz (2016)
    18   Section 1259 states, in relevant part: “Upon an appeal taken by the
    defendant, . . . [t]he appellate court may . . . review any instruction given,
    refused or modified, even though no objection was made thereto in the lower
    court, if the substantial rights of the defendant were affected thereby.”
    64
    
    2 Cal.App.5th 1178
    , 1183 [considering the merits of the defendant’s
    contentions because under section 1259, “there is no other way of
    determining whether the instruction was reversibly erroneous” and,
    therefore, affected the defendant’s substantial rights].) We turn to that
    examination now.19
    b. Any Error by the Trial Court in Giving the Biggins
    Perjury Instruction Was Harmless.
    The trial court did not give the jury the perjury instruction Jones
    requested, presumably because the court did not think there was evidence
    presented at trial that Biggins deliberately lied about the neck chain at the
    preliminary hearing. However, the court, perhaps in a misguided effort to
    accommodate Jones’s request, instead gave the pattern instruction
    addressing perjury that Jones’s counsel had proposed be modified, CALCRIM
    No. 2640. That instruction is designed for use in a trial in which a defendant
    is charged with perjury. The parties debate at length whether the trial
    court’s instruction was error in this case, in which Biggins was not on trial for
    perjury or any other crime.
    Jones argues the trial court erred because, read with its instruction
    that the prosecution was obliged to prove its contentions beyond a reasonable
    doubt, the court directed the jury to conclude Biggins perjured himself only if
    the prosecution proved it beyond a reasonable doubt. Therefore, he contends,
    the court imposed on the jury an erroneous barrier to finding Biggins was not
    credible and lowered the prosecution’s burden of proof. Jones further argues
    19  Given our decision to examine the merits of Jones’s instructional
    error claim and our conclusion that any error was not prejudicial, we have no
    need to address Jones’s alternative claim that any forfeiture resulting from
    his counsel’s failure to object to the instruction was ineffective assistance of
    counsel.
    65
    the instruction violated his federal constitutional rights by impairing the
    jury’s Sixth Amendment function as the sole judge of witness credibility.
    The People respond that there was no error because the instruction was
    a correct statement of law. Also, there was no reasonable likelihood that the
    jury would fail to understand it held the prerogative to evaluate witness
    credibility because of the court’s other instructions, particularly that the jury
    was free to determine whether a witness was lying, and because of the
    obvious “untenability” of requiring the prosecution to prove weaknesses in its
    own witness’s credibility. The People further contend that at most any error,
    in effect, amounted to an exclusion of possible evidence of perjury and
    therefore constituted mere state law error.
    We need not resolve the merits of Jones’s instructional error claim
    because, as we shall discuss, we conclude any such error was harmless under
    both the state standard for prejudice that the People argue applies here
    (People v. Watson (1956) 
    46 Cal.2d 818
    , 836) and the federal standard that
    Jones argues applies (Chapman v. California (1967) 
    386 U.S. 18
    , 23-24
    (Chapman)). As we will discuss in more detail below, we so conclude for
    several reasons. First, even aside from his change of account about the seized
    neck chain, Biggins cast ample doubt on his own credibility by testifying that
    he repeatedly lied to police in order to protect himself and that he felt coerced
    by his interrogators to tell the story they wanted to hear. Second, the People
    did not dispute that Biggins’s testimony about the neck chain at the
    preliminary hearing was false. Third, and relatedly, the prosecution and the
    defense both argued that Biggins had perjured himself in that testimony.
    Fourth, the jury’s verdicts make plain it did not find Biggins to be credible in
    several respects. Finally, other strong evidence points to Jones’s active
    participation in the incident.
    66
    As we have discussed, in his preliminary hearing testimony, Biggins
    testified that he lied to his police interrogators repeatedly in order to protect
    himself, including telling them he was not at the scene of the incident, had
    never seen Jones with a gun, did not know who left the Rocawear jacket at
    his house, did not recognize a photograph of Simonton, did not have a gun
    with him at the incident, had only a small gun with him at the incident, and
    owned only a .45-caliber gun. Further, he testified at the hearing that the
    police inspectors who interrogated him attempted to coerce him to tell a
    certain story about the incident, including by pressuring him to identify
    Jones as having been at the incident, threatening to bring criminal charges
    against him if he did not, telling him his story was not good enough and
    feeding him bits of information as they questioned him. He also testified that
    he was worried about his own potential liability for robbery or murder for
    being present at the incident and because “[e]verybody came to my house”
    immediately after the incident. He admitted he had been involved in
    robberies in the past. All of this gave the jury ample reason to doubt
    Biggins’s preliminary hearing testimony, even without the falsity of his
    testimony about the neck chain. The jury was free to decide whether Biggins
    had lied in that other testimony because the perjury instruction applied only
    to his testimony about the neck chain.
    Further, the evidence regarding the neck chain indisputably showed
    Biggins’s testimony about it was untrue. He acknowledged this on the eve of
    trial. Even if he implied to the prosecution team that he did not deliberately
    lie but confused a chain he owned with the one stolen in the robbery, his false
    testimony, as well as other aspects of his testimony, in particular, his
    admission that he lied to police in many instances to protect himself from
    67
    prosecution and his claimed lack of knowledge about how the chain ended up
    in his bedroom drawer, raised many problems with his credibility.
    As we have indicated, both parties told the jury Biggins had perjured
    himself in his testimony about the neck chain. The prosecutor specifically
    told the jury Biggins had lied, aided and abetted in the robbery, broken his
    agreement with the prosecution and committed “perjury” about the necklace,
    while arguing the jury could nonetheless find the remainder of his
    preliminary hearing testimony believable.
    Given this testimony and argument, it is no wonder that the jury’s
    verdicts indicate it found Biggins’s testimony not credible in several respects.
    Despite his account of the incident, which implicated all four defendants, the
    jury acquitted Kittles on all charges, acquitted Lige on one charge and hung
    on the other charges against Lige. Further, in finding not true that Jones
    personally and intentionally discharged a firearm in the course of the
    murder, the jury rejected either Biggins’s and Simonton’s testimony that
    Jones personally shot Bailey or at the very least their testimony indicating
    that the shooting was intentional. On the other hand, the jury appears to
    have relied in part on Biggins’s testimony (which was consistent with
    Simonton’s, as well as with Green’s and Harrell’s testimony about an armed
    man assaulting Green and Bailey) to conclude that Jones assaulted Green
    and Bailey with an assault pistol. The jury thus plainly understood that it
    could assess Biggins’s credibility and reject any part of his testimony it did
    not believe was true.
    Finally, evidence other than Biggins’s testimony (as well as Simonton’s)
    firmly supports Jones’s convictions. Along with Green’s and Harrell’s
    testimony about the assaults, the evidence established that on the same day
    as the incident, Harrell specifically identified Jones from photo lineups as
    68
    one of the assailants who attacked Bailey and that Green provided a
    description of the gunman who approached his car that was consistent with
    Harrell’s description and, apparently, with Jones’s physical appearance. It
    also includes the particularly damning photographic evidence showing that
    on the night of the incident, Jones wore a Rocawear jacket matching the
    jacket police seized from Biggins’s house that, as revealed by later testing,
    had Bailey’s blood on it. It includes Moore’s testimony that she brought some
    liquor to Jones at the Horseshoe the night of the incident and picked him,
    Molina and Kittles up on Nichols Street, where Biggins lived, shortly after
    the incident. Not only did Moore’s testimony place Jones at the Horseshoe on
    the night of the crime and, later that night, at or near Biggins’s house, it
    showed he lied to police by denying he was present at the Horseshoe at all in
    the hours before the incident and claiming he was at his girlfriend’s house
    throughout that night. Likewise damning for Jones was his jail cell call
    instructing Molina to say he had not seen Jones on the day of the incident,
    which indicated he was concocting a false story.
    In light of the other evidence against Jones and the absence of any
    dispute that Biggins testified falsely about the chain, the issue of whether
    Biggins committed perjury by knowingly misidentifying the seized neck chain
    as his own was of little consequence. The jury did not unqualifiedly accept all
    of Biggins’s testimony; nor, given the ample other evidence against Jones, did
    it need to do so to convict him. We conclude, therefore, that any error by the
    trial court in instructing the jury about Biggins’s possible perjury was
    harmless beyond a reasonable doubt.
    D. Jones’s Claim That the Prosecutor Did Not Show He Acted
    Diligently to Obtain Biggins’s Trial Testimony Lacks Merit.
    Finally, Jones argues the prosecutor failed to meet his burden of
    showing he acted diligently to obtain Biggins’s testimony at trial. Instead,
    69
    Jones contends, the prosecutor in bad faith charged Biggins with murder so
    as to deliberately render him unavailable to testify at trial, thereby
    preventing the jury from observing Biggins’s poor demeanor and preventing
    the defense from cross-examining him, all in violation of Jones’s
    Sixth Amendment right to confrontation. Specifically, Jones contends the
    prosecutor included a murder charge against Biggins that he knew he could
    not prove so that Biggins would invoke his Fifth Amendment right not to
    testify and the court would find him unavailable, enabling the prosecution to
    rely on Biggins’s perjured preliminary hearing testimony alone to prove its
    case. Jones contends the prosecutor’s bad faith is shown by his negotiated
    disposition of Biggins’s case a few months after the trial in this case, which
    resulted in Biggins receiving only three years’ probation for felony grand
    theft with a gang enhancement. Jones also cites the prosecutor’s
    representations to Biggins’s sentencing court that the People lacked sufficient
    evidence to try Biggins on the charges originally filed against him. We
    conclude Jones’s claim lacks merit, particularly in light of the outcome of the
    trial in this case.
    1. Relevant Proceedings Below
    We have already discussed the events that occurred before and during
    the trial in this case regarding Biggins’s testimony, as well as the jury’s
    mixed verdicts.
    In September 2014, about three months after the end of the trial in this
    case, the prosecution and Biggins agreed to a disposition of the separate
    criminal case brought against him. Biggins pleaded guilty to a new charge,
    felony grand theft (§ 487, subd. (c)),20 and admitted to a gang enhancement
    20 Section 487, subdivision (c) provides that grand theft is committed
    “[w]hen the property is taken from the person of another.”
    70
    allegation in return for dismissal of the originally filed charges, a suspended
    sentence and three years’ probation. The parties stipulated there was a
    factual basis for his plea without citing any evidence. The court accepted this
    stipulation and Biggins’s plea, agreed that the filed charges would be
    dismissed if he complied with certain conditions and found him guilty of
    grand theft.
    At Biggins’s sentencing hearing, the judge, who was not the judge who
    had accepted his plea, asked the prosecutor, who also prosecuted this case,
    “why the charges were reduced and the People are going to make this offer.”
    The prosecutor responded:
    “Your honor, this case dealt with four co-defendants that were arrested
    for the murder of Mr. Michael Bailey.
    “Mr. Biggins was cooperating with the defense, with the police
    department, and myself during the investigation of this case.
    “As we got closer to trial, Mr. Biggins had made several inconsistent
    statements, and on the eve of trial . . . we believe he made an inconsistent
    statement regarding the discovery of the victim’s property in his residence.
    “Based on that at that time we refused to give Mr. Biggins immunity
    and proceed[ed] with charging him as an accomplice in this murder.
    “As we began to investigate the murder more and began to conduct a
    trial in which two co-defendants were convicted of the murder, and we did not
    call Mr. Biggins to testify in this case, arguments were made by the defense
    counsel regarding accomplice liability, and Mr. Biggins’ role in this case that
    didn’t support a theory of accomplice liability based on any evidence, except
    maybe the possession of the stolen property.
    71
    “And after speaking with the jury in that subsequent case they were of
    the opinion that they disregarded Mr. Biggins’ testimony completely, not
    knowing whether or not it was truthful or false.
    “And Mr. Biggins also provided a picture to myself from his defense
    counsel that showed a very similar necklace to the recovered necklace.”
    The court interrupted “to make a long story short” to say, “Essentially
    you did not have the evidence to go forward with the murder charge against
    this defendant” under a theory of accomplice liability, and so pursued the
    negotiated disposition. The prosecutor agreed that he had “proof issues” and
    said the negotiated disposition was a reasonable way to resolve the matter.
    He agreed with the court that, as the court put it, he was dismissing the
    original charges brought against Biggins “purely because the evidence didn’t
    support a murder charge in this case[.]”
    The court accepted the prosecutor’s explanation. It sentenced Biggins
    to seven years in state prison, comprised of an upper term of three years for
    felony grand theft and four years for the gang enhancement, suspended
    imposition of sentence, placed Biggins on probation for three years, subject to
    certain terms and conditions, including 100 days in county jail, and awarded
    him the same number of days in custody credits. The court further ordered
    that, if Biggins successfully completed probation, his gang enhancement, a
    strike, would be stricken.
    Several months later, in March 2015, Jones (as well as Molina)21 moved
    for a new trial based in part on the argument that the prosecution had
    engaged in misconduct by wrongfully procuring Biggins’s unavailability as a
    witness in the trial in the case and instead obtaining admission of his
    21 Molina has not argued prosecutorial misconduct in his appeal or
    joined Jones’s appellate claim.
    72
    perjured preliminary hearing testimony. Jones emphasized that the
    prosecutor represented to the trial court in this case that he had adequate
    proof to charge Biggins for murder, thereby ensuring that Biggins would
    assert his Fifth Amendment right not to testify and be declared unavailable
    to testify, but that several months later the prosecutor represented to the
    sentencing court in Biggins’s case that he lacked the evidence to try Biggins
    on the charges filed against him. To Jones, this indicated the prosecutor
    never had the evidence to charge or try Biggins for murder, since the
    evidence had not changed in the time between the prosecutor’s
    representations to the two different courts. Molina made similar arguments
    in his new trial motion, and both their counsels argued the matter before the
    court.
    The prosecutor who made all the representations about Biggins
    opposed these motions. He argued he had exercised his discretion to charge
    Biggins and decided later not to pursue those charges, both times acting in
    good faith. He contended he had met three times with Biggins before the
    trial in the present case to prepare him to testify but charged him, and
    denied him witness immunity, when Biggins changed his account about the
    seized neck chain based on the conclusion that Biggins had lied about the
    chain and been a more active participant in the incident than he had claimed.
    The prosecutor also emphasized that the jury acquitted one defendant,
    Kittles, even though the prosecutor believed he had more evidence of her
    participation than of Biggins’s and that the jury hung on charges against a
    second defendant, Lige, even though the prosecutor had presented physical
    evidence of his involvement (his fingerprint was found on a business card of
    Bailey’s). He contended these decisions indicated “the jurors had their
    issues” with Simonton, who was “going to point the finger at Mr. Biggins
    73
    being an active participant.” The jury’s actions led the prosecution to
    reevaluate its case.
    After hearing the remainder of the defense arguments for a new trial,
    the court denied Jones’s and Molina’s new trial motions. Among other
    things, the court found there was no prosecutorial misconduct.
    2. Analysis
    Jones’s appeal regarding this claim is from the trial court’s denial of
    those parts of his and Molina’s motions for a new trial that argued the
    prosecutor had engaged in misconduct that violated their confrontation rights
    by deliberately rendering Biggins unavailable as a witness at trial. On
    appeal, Jones, relying on Cromer, supra, 
    24 Cal.4th 889
     at page 901, argues
    we should conduct a de novo review of the court’s ruling because it involves
    his confrontation clause rights and, relying on People v. Sánchez (Edgardo)
    (2016) 
    63 Cal.4th 411
    , 440 and People v. Foy (2016) 
    245 Cal.App.4th 328
    , 338,
    339, that we should bear in mind that the prosecutor had the burden of
    proving below that (along with proving Biggins’s unavailability, which is not
    in question) he undertook a good faith, reasonable effort to secure Biggins’s
    attendance at trial.
    The cases Jones relies on regarding the burden of proof in the trial
    court are inapposite. They involve appeals from trial court rulings admitting
    prior testimony of unavailable witnesses. In each case, the appellate court
    held either that the People showed due diligence in trying obtain the
    witness’s live testimony (Cromer, supra, 24 Cal.4th at p. 893; People v.
    Sánchez (Edgardo), supra, 63 Cal.4th at pp. 440-448) or did not (People v.
    Foy, supra, 245 Cal.App.4th at pp. 340-341). At trial the People were the
    moving party seeking the admission of evidence, and it was in that context
    that they were required to show due diligence. Here, on the other hand,
    74
    Jones moved for a new trial based on alleged prosecutorial misconduct that
    he claimed violated his confrontation rights. As the moving party, Jones had
    the burden below of establishing that the prosecutor engaged in misconduct.
    (See People v. Watts (2018) 
    22 Cal.App.5th 102
    , 116-117 [“On a motion for a
    new trial, the defendant has the burden of showing both the ineffectiveness of
    counsel and the prejudice it caused”].)
    Further, as this court recently noted, “We review a court’s ruling on a
    motion for a new trial ‘under a deferential abuse of discretion standard,’
    which, regarding a constitutional claim, means ‘the asserted abuse of
    discretion is the asserted failure of the trial court to recognize violations of
    defendant’s constitutional rights.’ ” (People v. Ramirez Ruiz (2020)
    
    56 Cal.App.5th 809
    , 825.) Put differently, we review the denial of a motion
    for a new trial de novo when claimed errors of constitutional magnitude are
    involved (see People v. Ault (2004) 
    33 Cal.4th 1250
    , 1260-1262 [regarding
    defendant’s constitutional right to a fully impartial jury]), but we defer to the
    trial court’s express or implied findings if supported by substantial evidence.
    (People v. Taylor (1984) 
    162 Cal.App.3d 720
    , 724.) This standard of review is
    essentially the same as that stated in Cromer, the case Jones relies on for his
    assertion of de novo review. (See Cromer, 
    supra,
     24 Cal.4th at pp. 900-901
    [outlining a two-step review in which the reviewing court “appl[ies] a
    deferential standard of review to the trial court’s factual findings” and then
    conducts an independent review of a trial court’s determination that the
    prosecution’s efforts are sufficient to justify an exception to the defendant’s
    confrontation rights at trial].)
    With these principles in mind, we examine the merits of Jones’s
    argument. His analysis is fatally flawed because it is based on the false
    premise that the prosecutor’s agreement with Biggins’s sentencing court that
    75
    he was dismissing the charges brought against Biggins “purely because the
    evidence didn’t support a murder charge” shows the prosecutor charged
    Biggins in bad faith in the first place, since the evidence did not change
    between when the charges were filed in June 2014 and the sentencing
    hearing occurred in October 2014 in Biggins’s case. Jones places too much
    reliance on the prosecutor’s assent to the court’s summary of his reasons for
    reducing the charges while ignoring the prosecutor’s other statements and
    the context in which they were made. As the prosecutor later discussed with
    the trial court in opposing defendants’ motions for a new trial in the present
    case (and alluded to before the Biggins sentencing court when he referred to
    the jury’s disregard of Biggins’s preliminary hearing testimony in this case),
    a highly significant event occurred between when the prosecutor filed the
    original charges against Biggins and when he agreed to the negotiated
    disposition of Biggins’s case that caused him to reevaluate the strength of the
    evidence against Biggins: the jury in the present case returned a decidedly
    mixed set of verdicts regarding Jones, Molina, Kittles and Lige.
    The jury acquitted Kittles altogether, acquitted and hung on the
    charges against Lige, and found not true that in committing the murder
    Jones personally and intentionally discharged a firearm causing great bodily
    injury and personally and intentionally discharged a firearm for the benefit of
    a criminal street gang or to promote criminal conduct by gang members
    which caused great bodily injury. As the prosecutor contended in opposing
    Jones’s motion for a new trial, the jury’s verdicts unquestionably indicated its
    discomfort with relying on Simonton’s testimony (as well as Biggins’s). The
    jury was not convinced of several factual contentions the prosecution made
    for which Simonton’s testimony provided particularly important support,
    namely that Lige participated in the robbery (Simonton testified that Lige
    76
    participated in fighting with Bailey, later threw a “fake” necklace taken in
    the incident onto the roof of a building and went to the “Samoan’s” house
    (meaning Biggins’s) immediately after the incident), that Kittles also was
    involved (Simonton testified that she came to Biggins’s house immediately
    afterwards as the group looked at what had been taken in the robbery) and
    that Jones shot Bailey dead (Simonton testified that he saw Jones shoot
    Bailey and later leave his jacket and gun with Biggins).
    According to the prosecutor in opposing defendants’ motions for a new
    trial, the jury’s obvious discomfort caused him to reevaluate his ability to
    prove a robbery/murder case against Biggins. The prosecutor’s assertion is
    supported by the record. No one presented evidence at the trial in this case
    that suggested Biggins was the shooter (the defense pointed at Simonton
    rather than Biggins, based on Simonton’s apparent resemblance, like Jones,
    to the victims’ description of the armed man who confronted them). The
    evidence other than Simonton’s and Biggins’s testimony suggested the
    robbers went together to Biggins’s house immediately after the incident (as
    indicated by Moore’s testimony that she picked up Jones, Molina and others
    on the street where Biggins lived soon after the incident) and indicated that
    Biggins kept Bailey’s neck chain in his bedroom drawer. These post-robbery
    facts tend to show Biggins’s involvement, but a jury might find them
    insufficient to establish beyond a reasonable doubt that Biggins participated
    in the robbery. To prove Biggins’s involvement, the prosecutor could not
    necessarily rely on Biggins’s prior testimony, since it was given in exchange
    for immunity. Moreover, Biggins did not directly implicate himself and there
    was evidence suggesting he believed the chain he retained was not the stolen
    one but a similar one he already owned. And Biggins’s statements to police
    were many and varied and could have been portrayed, as they were in this
    77
    trial, as having been suggested by police and given under duress. Instead,
    the prosecutor would have needed to rely on Simonton, whose testimony
    placed Biggins at the scene of the crime. However, Simonton testified only
    that Biggins observed the incident from a nearby sidewalk and did not
    implicate him in the robberies or the murder. Further, as the prosecutor
    indicated, the jury apparently did not find Simonton’s testimony credible in
    this case, as indicated by its rejection of his (and Biggins’s) testimony that
    Jones was the shooter.
    In short, there were legitimate reasons, arising after the prosecutor
    charged Biggins with murder and other crimes, for the prosecutor to become
    concerned he would be unable to prove Biggins participated in the robbery.
    Without being able to establish Biggins’s participation in the robbery, the
    prosecutor would not be able to prove he was guilty of murder. The jury’s
    verdict in the present case made the prosecutor aware that, as he told
    Biggins’s sentencing court, he had “proof issues,” i.e., that “the evidence did
    not support a murder charge.”22 The evidence supports the trial court’s
    finding that the prosecutor acted in good faith when he charged Biggins with
    murder and other crimes and when he later decided to approve a plea
    agreement involving much less serious charges against Biggins.
    Jones largely ignores the prosecutor’s assertion in opposing the new
    trial motions below that the jury’s discomfort with relying on Simonton’s
    testimony was a significant reason he decided not to prosecute Biggins on the
    originally filed charges. Instead, Jones points out various confusing
    statements the prosecutor made to the sentencing court in Biggins’s case
    22 For this reason, Jones’s argument in his reply brief that the People
    violated section 1197, subdivision (a)(2), which authorizes a negotiated
    disposition of a serious felony charge only when there is insufficient evidence
    to support the charge, lacks merit.
    78
    when the court asked him the reasons for dismissing the original charges.
    For example, Jones contends that the prosecutor told the sentencing judge
    that his views of Biggins’s case were affected by Biggins having cooperated
    with the defense (as well as the prosecution and the police) prior to the
    change in his account about the chain, but there is no indication in the record
    that Biggins cooperated with the defense. Jones asserts that the prosecutor’s
    statements to the court that he was affected by further investigation of the
    murder made no sense, since Biggins was first charged after the prosecution
    already had investigated and prepared for trial for a period of five years.
    Jones also asserts that the prosecutor inexplicably referred to Biggins
    providing a photograph of his own, “very similar necklace” when Biggins
    provided this photograph before he was charged (apparently to criticize the
    prosecutor’s decision to drop the perjury charge against Biggins as part of the
    negotiated disposition of his case). These statements may have been
    incorrect and/or not made much sense, but the trial court did not attribute
    them to deliberate, bad faith conduct on the part of the prosecutor, nor do we.
    In light of the verdict and what it indicated about the relative weakness of
    the evidence that remained available, these assertions are not grounds for
    holding there is insufficient evidence to support the trial court’s finding.
    Jones also relies on several cases, both within California and in other
    jurisdictions, that held a violation of confrontation or due process rights had
    occurred under various circumstances. None of these cases involved the
    circumstances present here, where the prosecutor provided a reasonable
    explanation for both his decision to charge Biggins and his later decision to
    dismiss those charges. (See State v. Herrera (1979) 
    286 Or. 349
     [
    594 P.2d 823
    , 827-828] [prosecution failed to explain why it withdrew a witness’s
    immunity to testify after the witness testified at a preliminary hearing];
    79
    People v. Shapiro (N.Y.App.Div.1980) 
    50 N.Y.2d 747
     [
    409 N.E.2d 897
    , 902-
    905] [prosecutor’s threats to charge exculpatory witnesses with perjury if
    they testified differently than before violated defendant’s due process rights];
    People v. Robinson (1983) 
    144 Cal.App.3d 962
    , 969-972 [prosecutor’s threat
    that defense witness would be charged if she testified improperly deprived
    defendant of that witness, but was harmless]; State v. Finley (2000) 
    268 Kan. 557
     [
    998 P.2d 95
    , 100-104] [prosecutor deprived defendant of his due process
    and fair trial rights by threatening to refile charges against defense witness
    that had been dropped in exchange for her agreement to testify, resulting in
    her refusal to testify]; People v. Bryant (1984) 
    157 Cal.App.3d 582
    , 587-594
    [prosecutor’s remarks to pending defense witness about present and possible
    future perjury charges against him, which led to witness refusing to testify,
    constituted government intimidation that violated defendant’s constitutional
    right to call witnesses on his behalf].) Therefore, these cases are inapposite.
    Jones further argues that the fact that the robbery charges against
    Biggins were purportedly barred by the three-year statute of limitations on
    robbery is evidence of the prosecutor’s bad faith. Assuming for the sake of
    argument that Jones’s assertion about the statute of limitations is correct,
    the prosecutor’s inclusion of the robbery charges does not establish bad faith.
    First, as Jones concedes, Biggins could have waived the statute of limitations
    as part of a negotiated disposition of his case. (Cowan v. Superior Court
    (1996) 
    14 Cal.4th 367
    , 372-373.) Further, the prosecutor may have included
    the robbery charges because robbery is an element of the felony-murder
    doctrine even if it could not be separately prosecuted. (People v. Morris
    (1988) 
    46 Cal.3d 1
    , 14 [“It is well settled that the statute of limitations
    applicable to the underlying felony is immaterial to the charge and conviction
    of felony murder”], disapproved on other grounds in In re Sassounian (1995)
    80
    
    9 Cal.4th 535
    , 543, fn. 5, 545, fn. 6; People v. Garule (2002) 
    28 Cal.4th 557
    ,
    638 [“ ‘[t]he courts have long permitted felony-murder prosecutions
    notwithstanding the expiration of the felony statute of limitations for the
    simple reason that the prosecution is for murder, not for the underlying
    felony,’ ” quoting Morris, at p. 17].)
    Finally, Jones argues that, given that the only legitimate charge
    against Biggins was perjury, the prosecution should have been required to
    provide him with immunity so that he could testify at trial. He relies
    primarily on dicta in Garner that the “truly preferable approach” is to
    condition a prosecution’s request to introduce perjured preliminary hearing
    testimony upon the prosecution’s granting the witness immunity to testify.
    (Garner, supra, 207 Cal.App.3d at p. 941.) We have already rejected this
    argument. (See footnote 15, ante, pages 55-56.) Further, we have already
    concluded that substantial evidence supports the trial court’s finding that in
    filing the murder and robbery charges against Biggins the prosecutor did not
    act in bad faith. For this reason, we need not address Jones’s argument that
    the prosecutor’s misconduct was prejudicial.
    II.
    Defendants’ First Degree Murder Convictions Must Be Vacated Under
    Section 189 As Amended and Retroactively Applied to Their Cases.
    Defendants next argue that we must vacate their first degree murder
    convictions for multiple reasons. As we will explain, we agree that these
    convictions must be vacated because of the Legislature’s post-trial
    amendments of the felony-murder doctrine outlined in section 189, which
    apply retroactively to defendants’ cases.
    After defendants’ trial, the Legislature passed Senate Bill No. 1437,
    which became effective January 1, 2019 (People v. Lewis (2021) 
    11 Cal.5th 952
    , 959 (Lewis). Senate Bill No. 1437 amended sections 188 and 189 to,
    81
    among other things, incorporate the elements of the felony murder special
    circumstance in section 190.2, subdivision (e) into the crime of felony murder.
    (See §§ 189, subd. (e), 190.2, subd. (d).) As amended, section 189 allows
    imposition of first degree murder liability under a felony murder theory only
    on the actual killer and on persons who are not the actual killer but who
    either (1) aided and abetted, with the intent to kill, murder in the first
    degree23 or (2) were major participants in the underlying felony and acted
    with reckless indifference to human life. (§ 189, subds. (a), (e).) It prohibits
    the imputation of malice to a person based solely on his participation in a
    crime. (Stats. 2018, ch. 1015, § 1, subd. (f); §§ 188, subd. (a)(3), 189,
    subds. (a), (e).) As a result of the amendments, murder liability can no longer
    be imposed on a non-killer under the natural and probable consequences
    doctrine at all and can only be imposed under the felony-murder doctrine in
    limited circumstances. (Lewis, at p. 957.)
    Senate Bill No. 1437 also added section 1170.95 to the Penal Code
    (Stats. 2018, ch. 1015, § 4), which provides that a person who has been
    convicted of first degree murder under the natural and probable
    consequences or felony-murder doctrines can petition the superior court for
    resentencing. In People v. Gentile (2020) 
    10 Cal.5th 830
     at pages 852 to 859,
    our Supreme Court held this petition procedure was the exclusive remedy for
    those previously convicted of first degree murder, including those whose
    convictions had not yet become final when Senate Bill No. 1437 was enacted.
    However, Gentile was superseded when Senate Bill No. 775 took effect on
    January 1, 2022. It provides that a defendant whose conviction has not yet
    23  Specifically, a person who “was not the actual killer, but, with the
    intent to kill, aided, abetted, counseled, commanded, induced, solicited,
    requested, or assisted the actual killer in the commission of murder in the
    first degree.” (§ 189, subd. (e)(2).)
    82
    become final may challenge on direct appeal the validity of a murder
    conviction under sections 188 and 189, as amended by Senate Bill No. 1437,
    without first petitioning the superior court.24 (Stats. 2021, ch. 551, § 2(g);
    § 1170.95, subd. (g).) After the Governor signed Senate Bill No. 775 in
    October 2021, we allowed defendants to file supplemental briefing regarding
    the impact of section 189, as amended by Senate Bill No. 1437, on their
    appeals.
    In their supplemental briefing, defendants argue that: (1) the jury may
    have convicted them of first degree murder based on the natural and
    probable consequences doctrine and, if not, based on the felony-murder
    doctrine, (2) the legislative amendments of sections 188 and 189 apply
    retroactively to their cases under In re Estrada (1965) 
    63 Cal.2d 740
    (Estrada), (3) these amendments require reversal of their convictions, and (4)
    their constitutional protections against double jeopardy bar the prosecution
    from retrying them for murder.
    The People respond that defendants were convicted under the felony-
    murder doctrine and that, while the instructions given were erroneous in
    light of the retroactive application of the legislative amendments, the error
    was harmless given the evidence and the jury’s verdicts. Therefore, we
    should affirm the convictions.
    We agree that the legislative amendments to sections 188 and 189
    apply retroactively to defendants’ cases under Estrada. Newly enacted
    legislation lessening criminal punishment or reducing criminal liability
    24Subdivision (g) of section 1170.95 now states: “A person convicted of
    murder, attempted murder, or manslaughter whose conviction is not final
    may challenge on direct appeal the validity of that conviction based on the
    changes made to Sections 188 and 189 by Senate Bill [No.] 1437
    (Chapter 1015 of the Statutes of 2018).”
    83
    presumptively applies to all cases not yet final on appeal at the time of the
    legislation’s effective date. (Estrada, supra, 63 Cal.2d at pp. 744-745.) This
    presumption “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.”
    (People v. Conley (2016) 
    63 Cal.4th 646
    , 657; see People v. Frahs (2020)
    
    9 Cal.5th 618
    , 628-629; Estrada, at p. 745; People v. Superior Court (Lara)
    (2018) 
    4 Cal.5th 299
    , 308-309 [applying Estrada rule and concluding
    Proposition 57 applied retroactively because it was an ameliorative change to
    the criminal law and nothing in the law rebutted inference of intent to extend
    the benefit as broadly as possible].) There are no indications that the
    Legislature intended to prevent the retroactive application of Senate Bill
    No. 1437 or Senate Bill No. 775 to cases pending on appeal when they were
    enacted, and the People do not contend otherwise. On the contrary, the latter
    senate bill makes plain the Legislature’s intent that the former senate bill
    would be fully retroactive. Therefore, we apply Senate Bill No. 1437 to
    defendants’ cases.
    We reject defendants’ contentions that the jury convicted them of first
    degree murder under the natural and probable consequences doctrine. 25 We
    agree, however, that the jury likely convicted them under a felony-murder
    doctrine that, upon retroactive application of the legislative amendments to
    25 We need not address defendants’ additional claim that they were
    improperly convicted of first degree murder under the natural and probable
    consequences doctrine in violation of People v. Chiu (2014) 
    59 Cal.4th 155
    because our Supreme Court has concluded the more recent legislative
    changes contained in Senate Bill No. 1437 supersede Chiu. (People v. Gentile,
    supra, 10 Cal.5th at pp. 847-849.)
    84
    sections 188 and 189, was not legally valid. We further conclude this
    erroneous instruction prejudiced defendants, requiring vacatur of their
    convictions. We also conclude that the prosecution is not barred from
    retrying defendants for murder.
    A. The Legislature’s Elimination of Murder Liability Under the
    Natural and Probable Consequences Doctrine Does Not
    Require Reversal.
    Defendants first contend that the jury may have convicted them of first
    degree murder based on the natural and probable consequences doctrine and
    that, since Senate Bill No. 1437 eliminated murder liability under this
    doctrine altogether, we must reverse their convictions. We disagree. The
    trial court instructed the jury that it could convict them of murder under the
    natural and probable consequences doctrine,26 but it did not instruct that
    such a murder was murder of the first degree. The court’s basic malice
    murder instruction informed the jury that, if it decided a defendant
    committed murder, “it is murder of the second degree, unless the People have
    proved beyond a reasonable doubt that it is murder of the first degree.” The
    two instructions that allowed the jury to find a defendant guilty of first
    26  Specifically, using former CALCRIM No. 402, the court told the jury
    that the defendants were charged with three counts of robbery (against
    Bailey, Green and Harrell) and one count of murder. It instructed that, if the
    jury found a defendant guilty of robbery, it should also decide if he or she was
    guilty of murder under the theory that, “[u]nder certain circumstances, a
    person who is guilty of one crime may also be guilty of other crimes that were
    committed at the same time.” Similarly, using both former CALCRIM
    No. 402 and former CALCRIM No. 417, the court instructed that the jury
    could find a defendant guilty of murder under the natural and probable
    consequences instruction if (1) he was guilty of robbery, (2) during the
    commission of robbery or to further the conspiracy, a co-participant in the
    robbery committed the crime of murder and (3) murder was a natural and
    probable consequence of the commission of the robbery.
    85
    degree murder required the People to prove the elements of either
    premeditated murder or felony murder. Neither implicated the natural and
    probable consequences doctrine.27
    Thus, even though the jury was erroneously instructed that it could
    convict the defendants of murder under the natural and probable
    consequences doctrine, the error does not require reversal because the court’s
    natural and probable consequences instructions did not permit the jury to
    find defendants guilty of first degree murder, the charge for which the jury
    found defendants guilty. The court’s instructions permitted the jury to find
    first degree murder only for premeditated murder or felony murder. “We
    presume jurors follow a court’s instructions.” (People v. Johnson (2022)
    
    12 Cal.5th 544
    , 632.) Defendants give us no reason to conclude otherwise.
    Defendants posit that they could have been convicted of first degree
    murder based on the natural and probable consequences doctrine, asserting
    factual bases on which they claim the jury might have done so. The problem
    with all of these theories is that they ignore the verdict finding them guilty of
    first degree murder and the instructions limiting first degree murder to
    premeditated murder and felony murder.28
    27  Indeed, the felony murder instruction stated that “[a] person may be
    guilty of felony murder even if the killing was unintentional, accidental or
    negligent,” a much broader parameter than a killing done as a natural and
    probable consequence of another act.
    28  For example, defendants contend the jury could have found them
    guilty of first degree murder based on the court’s natural and probable
    consequence instruction by finding that they participated in a robbery and
    assault, the natural and probable consequence of which was murder. Molina
    further contends the jury could have found he only wanted to “humiliate” the
    men who gave Kittles a ride and walked away from the Horseshoe area
    before the robbery occurred.
    86
    Molina also argues that the jury’s finding that the firearm
    enhancements alleged against him were not true suggests it found him guilty
    of murder based on the natural and probable consequences doctrine. We
    cannot readily explain the jury’s finding not true as to Molina, but true as to
    Jones, that a principal was personally armed with and personally used a
    firearm in connection with the incident. Defendants were charged with, and
    found guilty of, first degree murder, conspiracy to commit robbery, and
    robbery regarding the same incident and the evidence unequivocally showed
    Bailey died from gunshot wounds. But we need not explain the
    inconsistencies to resolve the issues raised by defendants. (See People v.
    Carbajal (2013) 
    56 Cal.4th 521
    , 533 [“ ‘The system accepts the possibility that
    “the jury arrived at an inconsistent conclusion through ‘mistake, compromise,
    or lenity’ ” ’ ”]; People v. Gonzalez (2018) 
    5 Cal.5th 186
    , 207 [“[w]here a jury’s
    findings are irreconcilable, we normally attribute such tensions to
    compromise, lenity, or mistake, and give effect to all of the jury’s findings”].)
    Molina also contends that the jury could have improperly convicted him
    of first degree murder under the natural and probable consequences doctrine
    based on the felony murder instructions, which permitted conviction of
    defendants who were accomplices to a robbery or participated in a conspiracy
    to rob in which one of the perpetrators causes a death to occur. Molina is
    incorrect. He conflates the felony murder instructions with a natural and
    probable consequences instruction. The trial court’s felony murder
    instructions nowhere refer to or require any finding of “natural and probable
    consequences”; nor did they need to. (People v. Escobar (1996) 
    48 Cal.App.4th 999
    , 1020 [felony-murder doctrine has “no requirement that killings which
    occur during the perpetration of a felony be a natural and probable
    consequence of the felony aided and abetted”], abrogated on another point in
    87
    People v. Mendoza (2000) 
    23 Cal.4th 896
    , 911.) Prior to Senate Bill No. 1437,
    felony murder encompassed “a variety of unintended homicides” and
    “condemn[ed] alike consequences that are highly probable, conceivably
    possible, or wholly unforeseeable.” (People v. Dillon (1983) 
    34 Cal.3d 441
    ,
    477, overruled on another point in People v. Chun (2009) 
    45 Cal.4th 1172
    ,
    1185-1188.) Here, consistent with the law at the time, the felony murder
    instruction required only that the defendant be an accomplice to, or part of a
    conspiracy to commit, robbery and that a death occur in the commission of
    that offense.29
    In short, because of the retroactive application of Senate Bill No. 1437,
    the trial court’s instructions that the jury could convict defendants of murder
    under the natural and probable consequences doctrine were erroneous.
    However, the jury could not and did not rely on this theory to convict
    defendants of first degree murder, and the error was thus harmless under
    any standard. Defendants’ contentions to the contrary are without merit.
    B. The Legislature’s Amendments to Section 189 Render the
    Trial Court’s Felony-Murder Instruction Incomplete.
    Defendants further argue that, should we conclude they were convicted
    under the felony-murder doctrine, the Legislature’s amendments to
    29  As we will discuss, since Senate Bill No. 1437’s adoption, more is
    required to convict a defendant of felony murder, and for this reason the case
    must be remanded for a new trial. Under the law as amended, felony murder
    can be a basis for a first degree murder conviction of a robbery participant
    only if the person (1) was the actual killer, (2) with the intent to kill, aided,
    abetted, counseled, commanded, induced, solicited, requested, or assisted the
    actual killer in the commission of murder in the first degree, or (3) was a
    major participant in the robbery who acted with reckless indifference to
    human life. (Lewis, supra, 11 Cal.5th at p. 957; §§ 188, 189.) But the
    amendments to the felony murder law, which we will address in greater
    detail below, present an issue distinct from the natural and probable
    consequences doctrine.
    88
    section 189 require vacatur of their convictions. We agree. Although the
    trial court also instructed the jury that it could convict defendants of first
    degree murder if the murder was willful, deliberate and premeditated—a
    valid legal theory—the People do not contend, and we have no reason to
    conclude, that the jury convicted defendants under that theory. Rather, the
    record indicates that the jury convicted defendants under an invalid legal
    theory—the trial court’s felony murder instructions—because, given the
    retroactive application of the Legislature’s amendments to section 189, those
    instructions were incomplete. This error was prejudicial to defendants,
    requiring vacatur of their first degree murder convictions.
    1. The Trial Court’s First Degree Murder Instructions
    The trial court instructed the jury that it could find defendants guilty of
    first degree murder under two theories. First, under CALCRIM No. 521, it
    could find them guilty if the People proved they acted “willfully, deliberately,
    and with premeditation” to commit a murder; otherwise, “the murder [was]
    second degree murder.”
    Second, the jury was instructed it could convict defendants of first
    degree murder under the felony-murder doctrine. Specifically, the jury was
    told it could convict Jones under CALCRIM No. 540A if he “committed
    robbery” intentionally and, “[w]hile committing the robbery, . . . caused the
    death of another person.” Under CALCRIM No. 540B, the jury was further
    told it could find any defendant guilty of first degree murder if he or she
    aided and abetted the “perpetrator” of “the act that resulted in the death,”
    and the prosecution proved that: (1) “[the defendant] committed, attempted
    to commit, aided and abetted or was a member of a conspiracy to commit
    robbery”; (2) “[h]e or she intended to commit or intended to aid and abet the
    perpetrator in committing or intended that one or more of the members of the
    89
    conspiracy commit robbery”; (3) “[i]f the defendant did not personally commit
    or attempt to commit robbery, then a perpetrator, whom the defendant was
    aiding and abetting or with whom the defendant conspired, personally
    committed or attempted to commit robbery”; and (4) “[w]hile committing or
    attempting to commit robbery, the perpetrator caused the death of another
    person.”30
    Third, the general murder instruction, CALCRIM No. 520, as revised
    later by the court in response to a question by the jury during its
    deliberations (additions indicated by brackets), stated, “If you decide the
    defendant committed murder, it is murder of the second degree, unless the
    People have proved beyond a reasonable doubt that it is murder of the first
    degree as defined in [either] CALCRIM number 521 [and/or 540(a) and/or
    540(b)”].
    2. We Review the Effect of the Court’s Incomplete Instruction
    Under the Chapman Prejudice Standard.
    When the court instructs the jury on two theories of potential criminal
    liability, one of which is legally valid and the other legally invalid, we must
    determine whether the error—meaning the legally invalid instruction—was
    harmless beyond a reasonable doubt. (People v. Aledamat (2019) 
    8 Cal.5th 1
    ,
    12-13.) To assess this, we consider whether the evidence supported either
    theory and whether there are indicia in the record indicating that the jury
    based its verdict on one or the other. (Ibid.) We must reverse unless it
    appears beyond a reasonable doubt that the error did not contribute to the
    verdict. (Id. at p. 13 [when legally valid and legally invalid theories are
    30  In both of these felony murder instructions, the court told the jury to
    refer to the court’s separate instructions on robbery, aiding and abetting and
    conspiracy.
    90
    presented to a jury, “[t]he reviewing court must reverse the conviction unless,
    after examining the entire cause, including the evidence, and considering all
    relevant circumstances, it determines the error was harmless beyond a
    reasonable doubt”].)
    Here, the trial court gave the jury a legally valid theory—premeditated
    murder—and a legally invalid theory—felony murder—upon which the jury
    could rely to convict defendants of first degree murder. If we conclude beyond
    a reasonable doubt that the jury convicted defendants under the
    premeditated murder theory, the court’s invalid felony murder instruction,
    obviously, would be harmless. Therefore, we address this issue first.
    3. We Cannot Conclude Beyond a Reasonable Doubt That the
    Jury Convicted Defendants of Premeditated Murder.
    The evidence and jury verdicts here indicate that the jury convicted
    defendants of first degree murder under a felony murder theory rather than a
    premeditated murder theory.
    It is telling that the People do not argue on appeal that the jury relied
    on a premeditated murder theory. It is even more telling that in closing
    arguments, the prosecutor did not argue that the jury should convict Jones or
    Molina of first degree murder under a premeditated murder theory, instead
    focusing entirely on a felony murder theory. The jury had been instructed
    that premeditated murder required not only that the killing was
    premeditated, meaning the defendant “decided to kill before completing the
    acts that caused death” but also that the defendant “acted deliberately,”
    meaning he “carefully weighed the considerations for and against his or her
    choice and, knowing the consequences, decided to kill.” The prosecutor’s
    failure to argue for conviction under these instructions indicates he did not
    believe the evidence supported a premeditated murder theory.
    91
    And indeed, the evidence does not. It indicates that the entire incident,
    from the time the three victims arrived in their car until they drove away,
    lasted only seven minutes. This includes the car arriving at the Horseshoe,
    Kittles’s last conversation with Bailey and her exit from the car, and the men
    approaching the car, talking to the victims, robbing them and looking for
    other valuables in the car, ordering them out of the car, looking on their
    persons for additional items to take, attempting to get them down on the
    ground, attempting to take their clothes, fighting with them, and after the
    shooting, fleeing as Green and Harrell carried Bailey to the car, put him in it,
    got in themselves and drove away.
    The evidence further indicates that the sequence of events immediately
    around the shooting, at most, lasted a few minutes, and there is no evidence
    that this sequence was planned. It involved a gunman fighting with a
    resistant Bailey over the gun and holding a gun to Bailey’s head, others in
    the vicinity urging the gunman to kill Bailey, Bailey backing up and falling to
    the ground, attempting to get up, the gunman shooting Bailey in the side or
    abdomen, Bailey trying to get up a second time and the gunman shooting him
    again, twice.
    This evidence does not suggest premeditated murder, which requires proof
    beyond a reasonable doubt of both deliberation and premeditation.
    “ ‘ “Deliberation” refers to careful weighing of considerations in forming a course
    of action; ‘ “premeditation” means thought over in advance. [Citations.]’
    [Citation.] “Premeditation and deliberation can occur in a brief interval. ‘The
    test is not time, but reflection. “Thoughts may follow each other with great
    rapidity and cold, calculated judgment may be arrived at quickly.” ’ ” ’ ” (People
    v. Solomon (2010) 
    49 Cal.4th 792
    , 812.) Thus, it is legally possible for a jury to
    find a murder that occurred in a matter of a few minutes was nonetheless
    premeditated. Nonetheless, here there is virtually no evidence that Molina
    92
    or Jones acted with premeditation, and certainly none beyond a reasonable
    doubt. For example, there is no evidence that the perpetrators had any plan
    to kill the men upon robbing them. The jury found “not true” that Jones
    personally and intentionally discharged a firearm in connection with the
    murder, and there was no evidence that Molina was the shooter. Further,
    the shooter only shot Bailey, the one victim who tried to take the shooter’s
    gun and repeatedly resisted the demand to get down on the ground. The
    shooter fired the fatal shot only when Bailey persisted in getting back up off
    the ground even after being shot once and sustaining a non-fatal wound.
    The jury conceivably might have thought other perpetrators of the
    robberies acted as aiders and abettors in Bailey’s shooting by urging the
    shooter to “take [Bailey] out” when he put a gun to Bailey’s head during their
    fight. It might have thought these perpetrators could have included Molina
    and/or Jones, although no evidence identifies the specific participants who
    urged the killing. But the evidence indicates the comments were made in
    the heat of the moment, in the excitement caused by the unplanned fighting
    between Bailey and the shooter. Thus, even if Molina and Jones had urged
    the gunman to shoot Bailey, that would not establish premeditation.31
    Further, even assuming arguendo that the jury could have found
    premeditation, the evidence does not support a finding that the killing was
    deliberate—that the shooter or any arguable accomplices “carefully weighed
    the considerations for and against his or her choice, and knowing the
    consequences, decided to kill,” as required by the court’s premeditated
    31
    An aider and abettor can only be convicted of first degree murder if
    he or she “acted willfully, deliberately, and with premeditation, having
    formed his own culpable intent. Such an aider and abettor, then, acts with
    the mens rea required for first degree murder.” (People v. Chiu, supra,
    59 Cal.4th at p. 166.)
    93
    murder instruction. Again, the sequence of events suggests the opposite—
    that any decision to kill was made reactively, “rashly, impulsively, or without
    careful consideration,” as the instruction states. (See People v. Thomas
    (1945) 
    25 Cal.2d 880
    , 901 [“The word ‘deliberate’ is an antonym of ‘Hasty,
    impetuous, rash, impulsive’ ”]; People v. Brooks (2017) 
    3 Cal.5th 1
    , 58 [“ ‘the
    express requirement for a concurrence of deliberation and premeditation
    excludes from murder of the first degree those homicides . . . which are the
    result of mere unconsidered or rash impulse hastily executed’ ”].)
    Specifically, the evidence, particularly the testimony of Green and
    Harrell, indicates that Bailey fought with some of the perpetrators and got
    the better of one of them, and then attempted to take the gun from the
    shooter. According to Green, at some point, the shooter pointed the gun at
    Bailey’s head and ordered him to get down on the ground, while the men
    Bailey had fought with moved away and, with others, said, “ ‘Take him out.
    Fuck it. Shoot him. Take him out.’ ” But the shooter did not shoot Bailey at
    that point. Instead, Bailey backed up and fell backwards. It was only as he
    tried to get back up again that the gunman first shot him, and that first shot
    was to his flank or abdomen. Only after, having thus been wounded, Bailey
    again tried to stand up did the gunman shoot him two more times (including
    the shot to the head that killed him). Further, the gunman did not shoot
    Bailey’s companions; he and his accomplices fled and the robbery victims left
    in their car, taking the dying Bailey with them. This sequence of events
    suggests that any decision to kill was made quickly and hastily by the shooter
    in response to Bailey’s resistance to staying down on the ground. Nothing
    about the circumstances indicates this was a calculated decision to kill made
    after any reflection.
    94
    Finally, the evidence and the jury’s verdicts indicate it did conclude the
    evidence met the required elements of felony murder in effect at the time.
    The jury concluded that defendants participated in a conspiracy to rob, and in
    the armed robberies of, Bailey, Green and Harrell, and the evidence indicates
    that Bailey was murdered, albeit not necessarily by Jones or Molina, in the
    commission of those crimes. These conclusions are supported by evidence
    showing that Molina encouraged his girlfriend, Kittles, to direct the three
    men to the Horseshoe, where a group, which included Jones and Molina,
    immediately commenced to rob them at gunpoint. As we have already
    described, the perpetrators searched the three men for phones, jewelry and
    other valuables and rummaged through their car as the men were ordered to
    get out of the car and to lie down on the ground. The violence escalated after
    Bailey refused to stay down and instead fought with the gunman and others,
    struggled for control of the gun and was then shot. The group immediately
    dispersed and, according to Biggins and Simonton, and as strongly suggested
    by Moore’s testimony, they along with Jones, Molina and others retreated to
    Biggins’s home. There, according to Biggins and/or Simonton, they displayed
    the stolen loot, and Jones acknowledged shooting Bailey and left his gun and
    Rocawear jacket with Biggins for safe keeping. This evidence strongly
    supports a finding that Bailey was murdered while defendants were engaged
    in robbery.
    Further indicating the jury relied on felony murder to convict
    defendants is the jury’s question to the court, late in its deliberations, about
    the role of section 189 (the felony murder statute) in the murder charges, and
    the court’s response that first degree murder could be found under the felony-
    murder doctrine. This interchange indicates the jury was focused on felony
    murder.
    95
    Thus, considering the evidence, verdicts and other relevant
    circumstances, we cannot conclude beyond a reasonable doubt that the jury
    relied on a premeditated murder theory rather than a felony murder theory
    in reaching its first degree murder verdict. We now turn to the felony
    murder instructions themselves.
    4. The Court’s Felony-Murder Instructions Do Not Include the
    Elements Later Added to Section 189 and, Retroactively
    Applying the Amended Statute, Are Erroneous.
    The trial court’s felony murder instructions under CALCRIM No. 540A
    and CALCRIM No. 540B are consistent with the former version of section 189
    that was in effect at the time of defendants’ trial. Former section 189 stated
    in relevant part, “All murder . . . which is committed in the perpetration of, or
    attempt to perpetrate . . . robbery . . . is murder of the first degree.”
    (Stats. 2018, ch. 423, § 42.) In its instructions, the court did not include the
    elements required to prove felony murder under section 189 as subsequently
    amended by Senate Bill No. 1437 because those amendments had not yet
    been enacted. Section 189 as thus amended applies retroactively to
    defendants’ cases and, as a result of the passage of Senate Bill No. 775, can
    be raised in a direct appeal. (§ 1170.95, subd. (g).) These elements,
    contained in a newly created section 189, subdivision (e) (Stats. 2018,
    ch. 1015, § 3), are as follows:
    “(e) A participant in the perpetration or attempted perpetration of a
    felony listed in subdivision (a) [robbery, et cetera] in which a death occurs is
    liable for murder only if one of the following is proven:
    “(1) The person was the actual killer.
    “(2) The person was not the actual killer, but, with the intent to kill,
    aided, abetted, counseled, commanded, induced, solicited, requested, or
    assisted the actual killer in the commission of murder in the first degree.
    96
    “(3) The person was a major participant in the underlying felony and
    acted with reckless indifference to human life, as described in subdivision (d)
    of Section 190.2.”32
    C. Given the Retroactive Application of the Elements Later
    Added to Section 189, the Court’s Instructions on the Felony-
    Murder Doctrine Are Incomplete and Require Vacatur of
    Defendants’ Murder Convictions.
    Both the People and defendants agree that, if we conclude the trial
    court’s felony murder instructions were incomplete, we should undertake a
    harmless error analysis under the federal standard for constitutional error
    established in Chapman, supra, 
    386 U.S. 18
     at page 24. We agree. (See
    People v. Mil (2012) 
    53 Cal.4th 400
    , 409, 415, 417 (Mil) [applying Chapman
    harmless error standard to determine whether failure to instruct on reckless
    disregard requirement for special circumstance required reversal]; People v.
    Merritt (2017) 
    2 Cal.5th 819
    , 827 (Merritt) [incursion on right to jury trial
    occurs whether instruction omits one element or multiple elements of offense
    and requires harmless error analysis].) We must determine whether, if the
    omitted elements had been included in the instructions, we can conclude
    beyond a reasonable doubt that the jury would have reached the same verdict
    on defendants’ felony murder convictions. (Mil, at p. 417.) “ ‘If other aspects
    of the verdict or the evidence leave no reasonable doubt that the jury made
    the findings necessary for [major participation and reckless indifference to
    human life], the erroneous felony-murder instruction was harmless.’ ”
    (People v. Aledamat, supra, 8 Cal.5th at p. 10, quoting People v. Chun, 
    supra,
    32  The court told the jury it could find Jones guilty of felony murder if
    he “caused” Bailey’s death under CALCRIM No. 540A, but the court did not
    instruct the jury to find Jones was the actual killer or acted with an intent to
    kill in doing so.
    97
    45 Cal.4th at pp. 1204-1205.)33 In other words, we must determine whether
    the verdict in defendants’ trial “ ‘was surely unattributable to the error.’ ”
    (People v. Harris (2004) 
    9 Cal.4th 407
    , 440.)
    Undertaking a Chapman harmless error analysis here, we conclude
    that the erroneous felony murder instructions resulted in prejudice to both
    defendants, requiring that we vacate their murder convictions. The
    admissible evidence presented at their trial is not strong enough for us to
    conclude beyond a reasonable doubt that the jury would have found Molina or
    Jones guilty of first degree murder under a proper instruction that included
    the felony murder elements later added to section 189 by Senate Bill
    No. 1437.
    33  There are appellate decisions addressing circumstances in which the
    erroneous omission of elements from an instruction resulted from legislation
    that added new elements to an offense after the defendant was convicted but
    before the conviction was final. (People v. Figueroa (1993) 
    20 Cal.App.4th 65
    ,
    69 (Figueroa); People v. Ramos (2016) 
    244 Cal.App.4th 99
    , 102-103 (Ramos).)
    In both cases, the courts held the defendant was entitled to retroactive
    application of the ameliorative legislation and remanded the case for a
    retrial. (Figueroa, at pp. 69-70, 71; Ramos, at pp. 103, 105.) The court in
    Figueroa did not address whether harmless error analysis should be applied,
    neither party apparently having raised it. (See id. at p. 71.) The court in
    Ramos applied the harmless error analysis under Chapman, concluded the
    omission was not harmless beyond a reasonable doubt, and remanded for
    possible retrial. (Ramos, at pp. 103-104, 105.) The Ramos court, in part
    based on Figueroa, questioned whether it was “proper to assess the problem
    under the harmless error rubric.” (Ramos, at pp. 103-104.) However, it did
    not discuss the California Supreme Court’s decisions in Mil and Merritt or
    provide any analysis of whether or why the omission from instructions of
    elements to a crime should be treated differently where the omission was
    erroneous at the time of trial or became erroneous because of a subsequent
    change in the law. We see no reason to treat the omission of elements from
    an instruction differently based on whether the error was made at trial or the
    result of a retroactive application of a subsequent change in the law, and the
    parties do not suggest any. We therefore follow the rule of Mil and Merritt
    and apply the Chapman standard here.
    98
    1. The Relevant Instructions
    As we have discussed, the jury was not properly instructed because the
    felony murder instruction it was given did not indicate that, as the amended
    section 189 requires, a defendant who participates in a robbery in which a
    death occurs is liable for first degree murder only if it is proven that (1) the
    defendant was the actual killer; (2) the defendant, if not the actual killer,
    “with the intent to kill, aided, abetted, counseled, commanded, induced,
    solicited, requested, or assisted the actual killer in the commission of murder
    in the first degree”; or (3) the defendant “was a major participant in the
    underlying felony and acted with reckless indifference to human life, as
    described in subdivision (d) of Section 190.2.” (§ 189, subd. (e)(1)-(3).)
    Therefore, we must determine whether the record indicates beyond a
    reasonable doubt that the jury, if properly instructed, would have found any
    of these alternative elements were met.
    Section 189, subdivision (e)(3), which allows imposition of first degree
    murder liability on a non-killer who, as a major participant in a robbery in
    which a person was killed, acted with reckless indifference to human life, is
    modeled after, and incorporates, section 190.2. Section 190.2 is the special
    circumstance statute that authorizes the imposition of death or
    imprisonment in state prison for life for “every person, not the actual killer,
    who, with reckless indifference to human life and as a major participant,
    aids, abets, counsels, commands, induces, solicits, requests, or assists in the
    commission of a felony [such as robbery] . . . “which results in the death of
    some person or persons, and who is found guilty of murder in the first
    degree.” (§ 190.2, subds. (d), (a)(17)(A).)
    As we have discussed, in the murder count brought against Jones
    (count I), the People alleged as special circumstance allegations under
    99
    section 190.2, subdivision (a)(17) that Jones did an act that caused the death
    of Bailey while engaging in the commission of a robbery and, under
    section 190.2, subdivision (a)(22), that he murdered Bailey as a member of a
    criminal street gang to further the activities of the gang. The jury decided
    these allegations were not true. The jury was not instructed under
    section 190.2, subdivision (d) to determine whether, if it did not find Jones
    was the actual killer, he was a major participant in a robbery in which a
    person was killed and acted with reckless indifference to human life. At the
    time of trial, these were the elements of the special circumstance for non-
    killers but were not elements of what became the crime of felony murder
    itself. (See Stats. 1998, ch. 629, § 2 [§ 190.2, subds. (a)(17), (b)-(d)]; People v.
    Price (2021) 
    71 Cal.App.5th 1128
    , 1139, 1142-1143, review granted, (2022)
    
    504 P.3d 259
    .) No special circumstance allegation under section 190.2 was
    made against Molina.
    We cannot say that the guilty verdict as to Jones actually rendered in
    this trial “was surely unattributable to” the omission of the new elements of
    felony murder in section 189, subdivision (e). The jury’s rejection of
    allegations that Jones personally and intentionally discharged his firearm
    during the incident indicates it rejected the prosecution’s contention that he
    was Bailey’s actual killer,34 and there is no evidence that Molina was Bailey’s
    34  As we have discussed, theoretically, the jury also could have rejected
    the firearm allegations if it concluded that Jones was the shooter but
    discharged the firearm unintentionally at Bailey. However, no rational juror
    could reach this conclusion based on the evidence. In particular, Green
    testified that, after Bailey fell back in the midst of fight with the shooter that
    included the shooter putting a gun to Bailey’s head, Bailey tried to get up and
    the shooter fired one shot at him, hitting him in the side or abdomen. Only
    when Bailey continued his efforts to get up did the shooter fire two more
    shots, including a fatal shot to Bailey’s head.
    100
    actual killer either. The only evidence that Jones or Molina, acting with the
    intent to kill, aided and abetted another participant in committing the first
    degree murder of Bailey was that some or all of the non-shooters in the group
    urged the gunman to kill Bailey while he was pointing the gun at Bailey’s
    head.35 We cannot say with any degree of certainty based on that evidence
    that the jury in this case, if instructed under the current statute, would have
    found defendants were non-killers but harbored the intent to kill. Therefore,
    we focus on the third alternative basis for conviction of felony murder under
    the current murder statute. The question we will address is whether under
    Chapman the trial record indicates beyond a reasonable doubt that the jury,
    if properly instructed, would have found that either Jones or Molina was a
    major participant in a robbery in which Bailey was killed and acted with
    reckless indifference of human life.
    2. Relevant Factors
    Not surprisingly, we have not found any appellate decisions addressing
    whether the failure to instruct under section 189 as amended by Senate Bill
    No. 1437 and retroactively applied was prejudicial because a defendant’s
    right to raise such an issue on direct appeal only became effective as of
    January 1, 2022. Therefore, we turn to case law discussing these same
    elements under section 190.2 for guidance. (See People v. Price, supra,
    71 Cal.App.5th at p. 1143 [Senate Bill No. 1437 “limited felony-murder
    liability to murders that fall within the felony-murder special-circumstances
    provisions of section 190.2”], review granted (Feb. 9, 2022, S272572); In re
    Taylor (2019) 
    34 Cal.App.5th 543
    , 561 [standard under § 189, subd. (e)(3) for
    35 Aiding and abetting can consist of words as well as acts, and
    includes promoting, encouraging and instigating a crime. (See CALCRIM
    No. 401.)
    101
    holding defendant liable for felony murder is same standard for finding a
    special circumstance under § 190.2, subd. (d), as the former provision
    expressly incorporates the latter].)
    Our Supreme Court has interpreted the “major participant” and
    “reckless indifference to human life” elements in section 190.2 in two cases,
    People v. Banks (2015) 
    61 Cal.4th 788
    , 798, 805-811 (Banks) and People v.
    Clark (2016) 
    63 Cal.4th 522
    , 608-623 (Clark). In those cases, the court
    outlined a series of factors that appellate courts have since considered
    regarding these two elements, which it acknowledged often overlap, in
    reviewing defendants’ substantial evidence challenges to juries’ section 190.2
    findings. (Banks, at pp. 803, 805-811; Clark, at pp. 615, 618-623.) Here we
    employ a harmless error rather than a substantial evidence standard of
    review. Nonetheless, we review these factors because they are relevant to
    our determination of whether we can conclude, beyond a reasonable doubt,
    that the jury, if properly instructed on the current felony-murder doctrine,
    would have concluded Molina and/or Jones were major participants in a
    robbery who acted with reckless indifference to human life.
    The Banks court instructed regarding whether a defendant was a
    “major participant” in the underlying felony that “a defendant’s personal
    involvement must be substantial, greater than the actions of an ordinary
    aider and abettor to an ordinary felony murder.” (Banks, supra, 61 Cal.4th at
    p. 802.) The court rejected the argument that participation in planning with
    the intent of facilitating a felony’s commission or in conduct integral to its
    commission alone constituted major participation because this “would sweep
    in essentially every felony murderer . . . whether an actual killer or not.” (Id.
    at p. 803.) The court outlined several factors to consider instead. “What role
    did the defendant have in planning the criminal enterprise that led to one or
    102
    more deaths? What role did the defendant have in supplying or using lethal
    weapons? What awareness did the defendant have of particular dangers
    posed by the nature of the crime, weapons used, or past experience or conduct
    of the other participants? Was the defendant present at the scene of the
    killing, in a position to facilitate or prevent the actual murder, and did his or
    her own actions or inaction play a particular role in the death? What did the
    defendant do after lethal force was used? No one of these considerations is
    necessary, nor is any one of them necessarily sufficient. All may be weighed
    in determining the ultimate question, whether the defendant’s participation
    ‘in criminal activities known to carry a grave risk of death’ [citation] was
    sufficiently significant to be considered ‘major.’ ” (Id. at p. 803, fn. omitted.)
    The Banks court held that the “reckless indifference to human life”
    element required that the defendant “be aware of and willingly involved in
    the violent manner in which the particular offense is committed,
    demonstrating reckless indifference to the significant risk of death his or her
    actions create.” (Banks, supra, 61 Cal.4th at p. 801.) The Clark court noted
    that our United States Supreme Court has provided “some indication” in
    related cases that preceded, and led to, Banks and Clark that “reckless
    indifference” “encompasses a willingness to kill (or assist another in killing)
    to achieve a distinct aim, even if the defendant does not specifically desire
    that death as the outcome of his actions.” (Clark, supra, 63 Cal.4th at
    pp. 616-617.)36
    The Clark court further addressed the “reckless indifference” element.
    (Clark, supra, 63 Cal.4th at pp. 618-623.) As later summarized by an
    appellate court, it outlined certain factors to consider, such as a “defendant’s
    36 See Tison v. Arizona (1987) 
    481 U.S. 137
     and Enmund v. Florida
    (1982) 
    458 U.S. 782
    .
    103
    knowledge of weapons used in the crime, and their actual use and number;
    [the] defendant’s proximity to the crime and opportunity to stop the killing or
    aid [the victim or victims]; the duration of the crime; [the] defendant’s
    knowledge of [the actual killer’s] propensity to kill; and [the] defendant’s
    efforts to minimize the possibility of violence during the crime.” (In re Miller
    (2017) 
    14 Cal.App.5th 960
    , 975.)
    3. The Error Was Prejudicial to Molina.
    If it had been properly instructed, the jury might have found that
    Molina was a major participant in the robberies who acted with reckless
    indifference to human life, but the evidence of this was not so overwhelming
    that we can conclude beyond a reasonable doubt that the jury would have so
    found.
    Regarding the major participant factors, the jury might have
    reasonably inferred from Molina’s texts and phone calls with Kittles while
    she was traveling to Double Rock, and from the testimony of Green, Harrell,
    Simonton and Biggins about subsequent events, that Molina was a leader of
    the conspiracy to commit armed robbery who directed Kittles to the
    Horseshoe in order to rob the men who thought they were driving her home.
    Further, Biggins and Simonton testified that Molina himself approached the
    car with the gunman (whom they identified as Jones) and immediately began
    robbing the men.
    The jury also might have reasonably concluded that Molina
    participated in, encouraged, or at least did nothing to stop, the violence that
    led to Bailey’s shooting. Simonton and Biggins testified that Molina was
    among those who, rather than attempt to restrain the gunman, fought with
    Bailey when he refused to stay down on the ground, and Green testified that
    those men (and others), whom he did not identify, urged the gunman to shoot
    Bailey. (See In re McDowell (2020) 
    55 Cal.App.5th 999
    , 1003, 1012 [sufficient
    104
    evidence that petitioner was a major participant in a burglary in which he
    did not try to restrain an armed accomplice who fired a warning shot and
    shot the victim].)
    As for whether Molina acted with reckless indifference to human life,
    the jury might have reasonably inferred from the evidence that he developed
    the plan to rob, accompanied a gunman to the car and initiated the robberies
    knowing at least one person was armed, but this was not alone sufficient to
    establish reckless indifference. (See In re Miller, supra, 14 Cal.App.5th at
    pp. 966-967 [finding insufficient evidence of reckless indifference in part
    because there was no evidence the petitioner “knew lethal force was
    appreciably more likely than that inherent in a ‘garden-variety armed
    robbery’ ”].) There was no evidence that Molina himself used a gun (see In re
    Moore (2021) 
    68 Cal.App.5th 434
    , 451-452 [noting the petitioner, although he
    knew a robbery accomplice was armed, did not use a gun in concluding it was
    not shown that he acted with reckless indifference]), or that he knew anyone
    else participating in the incident had a history of violence. Further, the jury’s
    rejection of the firearm enhancement allegations against Molina, while not
    readily explainable, suggests a hesitation on its part to hold Molina fully
    culpable for the gun violence that occurred during the incidents.
    On the other hand, as we have discussed, the jury might have
    reasonably inferred from the evidence that Molina was close enough to the
    gunman to stop the growing violence and instead actively encouraged it or at
    least did nothing to stop it. (See Clark, supra, 63 Cal.4th at p. 619
    [“Proximity to the murder and the events leading up to it may be particularly
    significant where . . . the murder is a culmination or a foreseeable result of
    several intermediate steps . . .”]; People v. Williams (2015) 
    61 Cal.4th 1244
    ,
    1282 [defendant acted with reckless indifference when he repeatedly
    105
    instructed other carjackers to shoot a resisting victim]; In re McDowell,
    supra, 55 Cal.App.5th at pp. 1014-1015 [petitioner acted with reckless
    indifference in part because he “was present when the violence ensued but
    took no steps to prevent it”].)37
    In short, the evidence as to Molina is mixed and could have resulted in
    a verdict either way on the major participant and reckless disregard
    elements. Its incriminating power is somewhat diluted because it rests in
    part on the testimony of Simonton and Biggins, of which the jury was
    obviously skeptical (as we have discussed in subparts I.C.2.b and I.D.2, ante).
    Nor do we know what the People could have shown to establish these
    elements if they had been aware of them when the case was tried. In short,
    we cannot conclude beyond a reasonable doubt that the jury, if properly
    instructed, would have concluded Molina was a major participant in the
    robberies and acted with a reckless indifference to human life. Therefore, we
    must vacate his first degree murder conviction.
    4. The Error Was Prejudicial to Jones.
    There is also evidence from which the jury might have reasonably
    inferred that Jones was a major participant in the robberies, though it too is
    mixed.
    37 In arguing harmless error, the People contend that Molina acted in
    the company of multiple, armed Double Rock criminal street gang members,
    that gang members had a history of violence and that the robbery was of
    three able-bodied men whose submission foreseeably would require firearm
    use. These contentions are unpersuasive because, as we will discuss shortly
    in part IV, post, the jury’s gang-related verdicts and findings must also be
    vacated based on the retroactive application of another legislative change in
    the law and because much of the gang expert testimony is inadmissible
    and/or testimonial hearsay. (See also In re Ramirez (2019) 
    32 Cal.App.5th 384
    , 405 [petitioner’s knowledge of gang participation “says nothing about
    petitioner’s knowledge of his cohorts’ likelihood of killing”].)
    106
    The jury determined that Jones committed first degree murder and
    that a principal was personally armed with and personally used an assault
    pistol in connection with the murder. The jury might have concluded that
    Jones was the principal who was armed and used a firearm in connection
    with the murder, but even if it had, it specifically found not true that he
    intentionally discharged a firearm. Thus, even though a firearm obviously
    was used to shoot and kill Bailey, the jury concluded that the prosecution had
    not proven beyond a reasonable doubt that Jones was the one to kill him.38
    The jury also found that Jones was guilty of the robberies of Bailey and
    Green, that a principal was personally armed with and personally used an
    assault pistol in the robberies of Bailey, Green and Harrell, but that Jones
    did not personally and intentionally discharge such a weapon in robbing any
    of the three and a principal did not personally and intentionally discharge a
    weapon in robbing any of the three.
    The jury also concluded that Jones was guilty of the murder of Bailey,
    the murder was committed while Jones was engaged in robbery and Jones
    was armed with and used an assault pistol. There was also circumstantial
    evidence that Jones participated in planning the robberies and played a lead
    role in robbing the three victims. Simonton testified that, while talking to
    Kittles earlier in the evening, Molina had handed his phone to Jones, who
    also spoke with her; that when the victim’s car arrived Jones told Simonton
    to stay by a gate; and that Jones, followed by Molina, approached the car,
    took out a gun, ordered the men out of the car and down onto the ground.
    The jury apparently did not believe Simonton’s and Biggins’s testimony
    38  As we have discussed, the firearm discharge instruction allowed the
    jury to find the allegation that Jones discharged a firearm was not true if it
    concluded that Jones did shoot Bailey, but only unintentionally. However,
    there is no evidence that the shooting was unintentional.
    107
    enough to conclude beyond a reasonable doubt that Jones was the gunman
    who shot Bailey. But Harrell identified Jones as one of the men who fought
    with Bailey.39 From his testimony, as well as Green’s testimony that two
    men who fought with Bailey, along with other participants, urged the
    gunman to shoot Bailey, the jury might have reasonably concluded that Jones
    was among those who urged the shooter to kill Bailey. And there is evidence
    indicating that, after the shooting, Jones accompanied several people to
    Biggins’s house, where they displayed the items stolen from the victims, and
    that Jones, Molina and Kittles left Biggins’s house together.
    All of this evidence, if believed, would support a finding that Jones was
    a major participant in the robberies, even if he was not the shooter.
    Nonetheless, we cannot find beyond a reasonable doubt that the jury would
    have so found if it had been instructed on the new elements of felony murder,
    especially since, again, some of the evidence came from Simonton and
    Biggins, whom the jury viewed skeptically.
    There is also evidence from which the jury might have inferred that
    Jones acted with reckless indifference to human life. Most significantly, a
    jury might have reasonably concluded from Jones’s use of his firearm to
    assault Bailey and Green and from the encouragement by those who fought
    with Bailey (in which it could have concluded Jones participated) that the
    shooter should “take [Bailey] out,” that Jones escalated the violence and
    encouraged the shooter to murder Bailey, even if he was not himself the
    shooter. But there was no evidence—perhaps because the prosecution had no
    39 Jones contends Harrell’s identification is suspect in light of the
    circumstances surrounding it, such as the inclusion of Jones’s photo in
    multiple photo lineups shown to Harrell. We need not address his
    contentions other than to say that, regardless, a jury could have reasonably
    relied on Harrell’s identification.
    108
    reason to present any or because it focused on the theory was that Jones was
    the shooter—that Jones was aware anyone else participating in the robberies
    had a history of lethal violence.
    The People’s arguments regarding Jones are similar to their arguments
    regarding Molina. They are equally unconvincing.
    In short, we cannot conclude beyond a reasonable doubt that the jury
    would have found that Jones acted with reckless indifference to human life
    had it been instructed on that element.
    For all of these reasons, we conclude the instructional error was
    prejudicial to Jones.40
    D. The People Are Not Barred from Retrying Defendants for
    First Degree Murder Under the Felony-Murder Doctrine.
    Defendants also argue that any retrial of them on murder charges
    would be a violation of their rights against double jeopardy because there is
    insufficient evidence of their guilt. We disagree.
    “Double jeopardy forbids retrial after a reversal due to insufficient
    evidence to support the verdict. Where the prosecution makes its case under
    the law as it stood at trial, double jeopardy is not implicated as it would
    otherwise be where there is evidentiary insufficiency. (People v. Shirley
    (1982) 
    31 Cal.3d 18
    , 71; see Burks v. United States (1978) 
    437 U.S. 1
    , 11-15
    [retrial permitted for procedural error where evidentiary insufficiency not
    40  Jones requests that we should remand his case to the trial court to
    give him the opportunity to make a record of information that will be
    relevant to a future parole board’s fulfillment of its obligations under
    section 3051 to conduct a youth offender parole hearing when he becomes
    eligible for parole under that conviction. (See People v. Franklin (2016)
    
    63 Cal.4th 261
    .) We need not address this issue in light of our decisions,
    which require that the trial court hold a resentencing hearing. The court
    should of course consider the requirements of section 3051 and Franklin on
    remand.
    109
    implicated].)” (In re D.N. (2018) 
    19 Cal.App.5th 898
    , 902-903.) There is a
    “settled rule that the double jeopardy clause does not prohibit retrial after a
    reversal premised on error of law.” (Shirley, 31 Cal.3d at p. 71; accord, People
    v. Otto (1992) 
    2 Cal.4th 1088
    , 1116.) In Mil, after concluding that omission of
    the reckless disregard element from the trial court’s jury instruction was
    prejudicial under Chapman, our Supreme Court remanded the case to the
    Court of Appeal “with directions to remand to the trial court for resentencing
    or retrial on the issue of the special circumstances at the option of the
    prosecuting attorney.” (Mil, 
    supra,
     53 Cal.4th at pp. 419-420.)
    As several courts have held, these principles apply when legal error
    results because the Legislature added new elements to the crime post-trial
    and those elements must be applied retroactively to a defendant’s not-yet-
    final case. In such circumstances, the courts have held the defendant is not
    entitled to a “windfall” (Figueroa, supra, 20 Cal.App.4th at p. 71) and “[t]he
    People are entitled to an opportunity to prove beyond a reasonable doubt”
    robbery with the new elements included and to proffer evidence that may not
    have been necessary or relevant under the law in effect at the time of trial.
    (Ibid.; People v. Lopez (2020) 
    57 Cal.App.5th 409
    , 416; People v. Eagle (2016)
    
    246 Cal.App.4th 275
    , 280 [“When a statutory amendment adds an additional
    element to an offense, the prosecution must be afforded the opportunity to
    establish the additional element on remand”].) The courts have also held
    that a remand and retrial are not barred by the double jeopardy clause.
    (Figueroa, at p. 72, fn. 2; Ramos, supra, 244 Cal.App.4th at p. 104; Eagle, at
    p. 280.) Defendants cite no contrary authority. On the basis of these
    authorities, we reject defendants’ double jeopardy argument.
    110
    III.
    Molina’s Claim That the Court Should Have Instructed on
    Lesser Included Conspiracy Offenses Lacks Merit.
    Next, Molina argues the trial court prejudicially erred by not
    instructing sua sponte on conspiracy to commit assault and conspiracy to
    commit battery as lesser included offenses to conspiracy to commit robbery.
    We disagree.
    The parties acknowledge that appellate courts have disagreed over
    whether trial courts should consider overt acts alleged in a conspiracy
    charge41 in determining whether to instruct sua sponte on lesser conspiracy
    offenses. On the one hand, in People v. Fenenbock (1996) 
    46 Cal.App.4th 1688
     (Fenenbock), Division One of this court held that, because the essence of
    conspiracy is the co-conspirators’ agreement itself and overt acts need not be
    committed by the defendants or- even be criminal, such acts “do not
    necessarily reveal the criminal objective of the conspiracy,” and, therefore, do
    not provide notice of any allegedly lesser included offenses. (Id. at p. 1709.)
    The Fenenbock court concluded, “[I]t is the description of the agreement
    within the accusatory pleading, not the description of the overt acts, which
    must be examined to determine whether a lesser offense was necessarily the
    target of the conspiracy.” (Ibid.) The court concluded that, because the
    conspiracy charge before it alleged only that the defendants “conspired to
    murder [the victim],” it did not necessarily include any conspiracies to
    commit an assault, battery, or mayhem as lesser included offenses.
    Therefore, the trial court did not err in failing to give instructions of
    conspiracy to commit lesser offenses. (Ibid.)
    41 “A criminal conspiracy exists when two or more persons agree to
    commit a crime and do some overt act in furtherance of the agreement.”
    (People v. Cockrell (1965) 
    63 Cal.2d 659
    , 667, italics added.)
    111
    On the other hand, in People v. Cook (2001) 
    91 Cal.App.4th 910
    , the
    Third Appellate District held that a trial court should consider the overt acts
    alleged in a conspiracy charge to determine whether to instruct on any lesser
    conspiracy offenses. There, the defendants appealed their convictions for
    conspiracy to commit assault with a firearm on the ground that the trial
    court erred under Fenenbock in instructing that offense was a lesser included
    offense to the murder conspiracy charged in the information. (Cook, at
    pp. 913-915.) The court noted that the information alleged as overt acts that
    the conspirators acquired a gun and used it to seek revenge against the
    victims. (Id. at pp. 921-922.) Based on these overt acts, the court concluded
    the trial court did not err in instructing on the lesser included offense
    because, “[l]ooking to the accusatory pleading as a whole, the information
    gave notice that defendants were charged with conspiracy to commit murder
    by means of a firearm and therefore also gave notice of the lesser included
    offense of conspiracy to commit assault with a firearm.” (Id. at p. 922.)
    We need not choose between the different approaches taken in
    Fenenbock and Cook to resolve Molina’s claim because, assuming for the sake
    of argument that Cook controls, the trial court here still had no duty to
    instruct the jury on conspiracy to commit assault or conspiracy to commit
    battery. The People charged Molina and the other defendants in count II
    with committing “CONSPIRACY TO COMMIT A CRIME, to wit: Violating
    Section 182[, subdivision] (a)(1) of the California Penal Code, a Felony, in
    that the said defendants did willfully and unlawfully conspire together and
    with another person(s) whose identify is unknown, to commit the crime of
    ROBBERY, in violation of section 211 of the Penal Code, a felony . . . .” The
    People then listed 12 overt acts committed “pursuant to and for the purpose
    112
    of the aforesaid conspiracy,” of which Molina relies on the following for his
    “lesser included” argument:
    “6. ON OR ABOUT OCTOBER 4, 2009, WILLIAM JONES AND
    LANCE MOLINA APPROACH THE ALTIMA OCCUPIED BY MICHAEL
    BAILEY, KEDRIC GREEN AND KEVIN HARRELL.
    “7. . . . WILLIAM JONES TELLS MICHAEL BAILEY, KEDRIC
    GREEN AND KEVIN HARRELL THAT HE’S FROM ‘DOUBLE ROCK’ AND
    POINTS AN ASSAULT PISTOL FIREARM AT THEM AND ORDERS THEM
    OUT OF THE ALTIMA AND ONTO THE GROUND.
    “8. . . . LANCE MOLINA, MAURICE LIGE, WILLIAM JONES AND
    SEVERAL MEN SURROUND MICHAEL BAILEY, KEDRIC GREEN AND
    KEVIN HARRELL AND REMOVE PROPERTY FROM THEIR PERSON
    INCLUDING WATCH, NECKLACE, WALLETS, CELL PHONES, MONEY
    AND MISCELLANEOUS CARDS.
    “9. . . . WILLIAM JONES STRIKES KEDRIC GREEN ON THE HEAD
    WITH THE ASSAULT PISTOL.
    “10. . . . LANCE MOLINA, MAURICE LIGE AND WILLIAM JONES
    PREVENT MICHAEL BAILEY FROM TAKING THE ASSAULT PISTOL
    AWAY FROM WILLIAM JONES.”
    Molina does not, and cannot, contend that assault or battery are lesser
    included offenses to the crime of robbery. (See People v. O’Malley (2016)
    
    62 Cal.4th 944
    , 984 [“assault is not a lesser included offense of robbery under
    the statutory elements test, because robbery can be committed by ‘force or
    fear’ (§ 211, italics added), and a robbery committed by fear does not involve
    the use of force, which is an element of the crime of assault”]; People v.
    Wolcott (1983) 
    34 Cal.3d 92
    , 99 [assault is not a lesser included offense of
    113
    robbery because “[n]either an attempt to inflict violent injury, nor the present
    ability to do so, is required for the crime of robbery”].)
    Instead, Molina relies on Cook and the overt acts alleged in the
    information that we have quoted to argue the trial court should have
    instructed on the lesser conspiracy offenses of assault and battery. This
    argument is unpersuasive because nothing in the conspiracy to commit
    robbery allegations, including regarding overt acts, suggest Molina agreed to
    a conspiracy to commit those lesser offenses.
    In Cook, the appellate court found it significant that the charging
    document alleged overt acts by all the conspirators to obtain a firearm in
    order to exact revenge against the victim as part of a conspiracy to commit
    murder by use of a firearm. (Cook, supra, 91 Cal.App.4th at pp. 921-922.)
    Based on these particular allegations, the court concluded that conspiracy to
    commit assault with a firearm was necessarily a lesser included offense of the
    conspiracy to commit murder that was charged.
    There is nothing equivalent in the pleadings in this case. As we have
    discussed, assault and battery are not lesser included offenses of robbery.
    (People v. O’Malley, supra, 62 Cal.4th at p. 984; People v. Wolcott, supra,
    34 Cal.3d at p. 99.) Nothing in the information’s allegations transforms
    conspiracy to commit either assault or battery into a lesser included offense
    to the alleged conspiracy to commit robbery. That conspiracy is alleged as
    simple robbery, without reference to any weapons or use of force. While there
    is an overt act allegation that Jones ordered the robbery victims out of their
    car with the use of a pistol and struck Bailey with that pistol, there is no
    indication that Molina conspired for this to occur; while there is an allegation
    that Molina and others prevented Bailey from taking the pistol from Jones,
    114
    again, there is no indication that Molina conspired to assault Bailey with
    anyone else.
    Therefore, unlike in Cook, the information’s overt act allegations do not
    transform the offenses cited by Molina into lesser included offenses of the
    charged robbery conspiracy, and the court had no sua sponte duty to instruct
    on them. (See People v. Cortez (2018) 
    24 Cal.App.5th 807
    , 819-821 [agreeing
    with Cook that overt act allegations may be considered in determining lesser
    included offense instructions but rejecting appellant’s argument that certain
    lesser included instructions should have been given because there were “no
    allegations of the requisite element of defendant agreeing or conspiring to
    commit those [lesser] offenses”].) Molina’s argument that the court erred by
    not instructing on lesser included conspiracy offenses is without merit.42
    IV.
    Defendants’ Gang-Related Convictions and Enhancements
    Must Be Vacated.
    Jones and Molina argue that we must reverse the jury’s findings
    regarding the gang enhancement allegations brought against them, and the
    jury’s verdict that they were guilty of active participation in a criminal street
    gang. Jones argues in his initial briefs that there was insufficient evidence of
    the existence of the Double Rock street gang. In supplemental briefing, he
    further argues that the court committed instructional error by failing to give
    the jury a definition of what it means to be “in association” with a criminal
    street gang.
    Molina, joined by Jones, argues in his initial briefs that “abundant
    case-specific hearsay” was presented to the jury as a basis for the prosecution
    gang expert’s opinions that there was a Double Rock gang composed of
    42 In light of our conclusion, we do not address Molina’s contention that
    the court’s error was prejudicial.
    115
    certain residents of Double Rock, that crimes by those residents constituted
    predicate offenses of a criminal street gang, and that defendants were
    affiliated with the gang, all in violation of Crawford, supra, 
    541 U.S. 36
     and
    Sanchez, supra, 
    63 Cal.4th 665
    . They contend admission of the hearsay
    evidence was prejudicial under the standard for federal constitutional error
    established in Chapman, 
    supra,
     386 U.S. at pages 23-24.
    In 2021, the Legislature adopted Assembly Bill No. 333, which modified
    section 186.22, a part of the Street Terrorism Enforcement and Prevention
    Act, to add and/or revise the elements that must be proven to establish the
    existence of a criminal street gang and a defendant’s commission of crimes on
    behalf of one, which changes became effective January 1, 2022. (Stats. 2021,
    ch. 699, § 3.) Beginning in October 2021, we allowed the parties to file
    supplemental briefs regarding the impact of these changes on defendants’
    cases. In their supplemental briefs, defendants argue these changes apply
    retroactively and also require reversal of their gang offenses and
    enhancements.
    The People have argued throughout that we should affirm the jury’s
    verdicts finding defendants liable for certain gang offenses and
    enhancements. They contend that regardless of any errors made, the
    prosecution provided ample admissible evidence to support the jury’s verdicts
    under both the old and present versions of section 186.22 and that, should we
    vacate the jury’s verdicts, they should have the opportunity to retry
    defendants on the gang offenses and enhancements.
    We conclude that vacatur of the jury’s verdicts regarding the gang
    offenses and enhancements is necessary, because of both instructional error
    resulting from the retroactive application of the recent modifications to
    section 186.22 and the considerable Sanchez and Crawford error that
    116
    occurred here. As we will discuss, we conclude these errors are prejudicial to
    both Molina and Jones. However, we conclude that the People are not barred
    from retrying defendants regarding the gang offenses and enhancements.
    A. The Jury Verdicts
    For Molina, the jury found true the gang enhancement allegations
    attached to the conspiracy to commit robbery (count II) and the robbery
    counts (counts III through V).43 The court imposed stayed sentences of 5 and
    10 years for the enhancements attached to counts II and III, an additional 10
    years for the enhancement attached to count IV and an additional 3 years
    and 4 months for the enhancement attached to count V. Molina was also
    convicted of actively participating in a criminal street gang under
    section 186.22, subdivision (a) (count X), for which a three-year sentence was
    also stayed.
    For Jones, the jury found gang enhancement allegations made under
    section 186.22, subdivision (b)(1) to be true for the same offenses as Molina
    (counts II through V) as well as for his convictions of assault with an assault
    pistol against Bailey (count VI), assault with an assault pistol against Green
    (count VII) and possession of a firearm by a felon (count VIII). He received
    stayed sentences of 5, 10, 10, 4 and 4 years for the section 186.22,
    subdivision (b)(1) enhancements attached to counts II, III, V, VII and VIII
    respectively, and an additional 10 years for the enhancement attached to
    43  We do not specifically address here the jury’s finding true the
    allegations of gang enhancement for both Molina and Jones regarding their
    first degree murder convictions (count I) because we have concluded that we
    must vacate those convictions in the Discussion section, part IV, ante. Had
    we affirmed them, we would have reversed the count I gang enhancement
    findings based on the same analysis we present here.
    117
    count IV.44 The court did not impose a sentence for the section 186.22,
    subdivision (b)(1) enhancement found to be true regarding Jones’s count VI
    conviction.
    In addition, enhancement allegations made under section 12022.53,
    subdivision (b) that a principal personally used a firearm for the benefit of a
    criminal street gang, were found true regarding Jones’s count III, IV and V
    convictions, for which he received sentences of 10 years stayed, 10 years
    consecutive and 10 years concurrent respectively.
    Like Molina, Jones was also convicted of actively participating in a
    criminal street gang under section 186.22, subdivision (a) (count X), for which
    his three-year sentence was also stayed.
    B. The Relevant Law Regarding the Gang Contentions
    1. The Law Regarding Criminal Street Gang Activities
    The parties agree that, like the changes to the law of felony murder
    contained in Senate Bill No. 1437 and Senate Bill No. 775, the changes to
    section 186.22 contained in Assembly Bill No. 333 apply retroactively to
    defendants’ cases as newly enacted legislation lessening criminal punishment
    44 As we discuss in subpart VII.A of the Discussion section, post, the
    section 186.22, subdivision (b)(1)(C) enhancement sentences imposed on
    Jones for the robbery counts (III, IV and V) were also improper because they
    violated section 12022.53, subdivision (e)(2).
    Also, the court imposed on Jones a 10-year stayed sentence for a second
    section 186.22 enhancement purportedly attached to count VII, in addition to
    the one we have mentioned. This second section186.22 enhancement
    sentence is also listed on the abstract of judgment, but we have found no jury
    verdict or information charge regarding it. It is unclear what this refers to,
    as neither the jury’s verdict nor the sentencing court’s oral summary of the
    jury’s findings and convictions include a finding for a second section 186.22
    enhancement under count VII. The parties do not address it. This sentence
    must be stricken for reasons we discuss in subpart VII.C of this Discussion
    section, post.
    118
    or reducing criminal liability, which presumptively applies to all cases not yet
    final on appeal at the time of the legislation’s effective date. (Estrada, supra,
    
    63 Cal.2d 740
    , 744-745.) We agree, as there are no indications that the
    Legislature intended to prevent the retroactive application of Assembly
    Bill No. 333 to cases pending on appeal at the time of its enactment.
    Therefore, we discuss the law regarding the gang offenses and enhancements
    as modified by Assembly Bill No. 333.
    Section 186.22 proscribes the substantive offense of active participation
    in a criminal street gang, as set forth in subdivision (a),45 and includes
    enhancement provisions, which are found in subdivision (b).46 (People v.
    45  Section 186.22, subdivision (a) provides: “A person who actively
    participates in a criminal street gang with knowledge that its members
    engage in, or have engaged in, a pattern of criminal gang activity, and who
    willfully promotes, furthers, or assists in felonious criminal conduct by
    members of that gang, shall be punished by imprisonment in a county jail for
    a period not to exceed one year, or by imprisonment in the state prison for
    16 months, or two or three years.”
    46  Section 186.22, subdivision (b)(1) states: “Except as provided in
    paragraphs (4) and (5), a person who is convicted of a felony committed for
    the benefit of, at the direction of, or in association with a criminal street
    gang, with the specific intent to promote, further, or assist in criminal
    conduct by gang members, shall, upon conviction of that felony, in addition
    and consecutive to the punishment prescribed for the felony or attempted
    felony of which the person has been convicted, be punished as follows:
    “(A) Except as provided in subparagraphs (B) and (C), the person shall
    be punished by an additional term of two, three, or four years at the court’s
    discretion.
    “(B) If the felony is a serious felony, as defined in subdivision (c) of
    Section 1192.7, the person shall be punished by an additional term of five
    years.
    “(C) If the felony is a violent felony, as defined in subdivision (c) of
    Section 667.5, the person shall be punished by an additional term of 10
    years.”
    119
    Elizalde (2015) 
    61 Cal.4th 523
    , 538-539.) The elements of the offense are:
    “First, active participation in a criminal street gang, in the sense of
    participation that is more than nominal or passive; second, knowledge that
    the gang’s members engage in or have engaged in a pattern of criminal gang
    activity; and third, the willful promotion, furtherance, or assistance in any
    felonious criminal conduct by members of that gang.” (People v. Rodriguez
    (2012) 
    55 Cal.4th 1125
    , 1130.) The enhancement provisions apply when a
    felony is committed “for the benefit of, at the direction of, or in association
    with a criminal street gang, with the specific intent to promote, further, or
    assist in criminal conduct by gang members.” (§ 186.22, subd. (b).)
    In addition, section 12022.53, subdivisions (b) and (e)(1) together
    authorize a gang-related firearm enhancement sentence for any person who
    is a principal in the commission of an offense such as robbery if that person
    has violated section 186.22, subdivision (b) and any principal in the offense
    has personally used a firearm.47
    A criminal street gang is defined in section 186.22 as “an ongoing,
    organized association or group of three or more persons, whether formal or
    47 Section 12022.53, subdivision (b) states: “Notwithstanding any
    other law, a person who, in the commission of a felony specified in
    subdivision (a), personally uses a firearm, shall be punished by an additional
    and consecutive term of imprisonment in the state prison for 10 years. The
    firearm need not be operable or loaded for this enhancement to apply.”
    Section 12022.53, subdivision (e)(1) states in relevant part: “The
    enhancements provided in this section shall apply to any person who is a
    principal in the commission of an offense if both of the following are pled and
    proved:
    “(A) The person violated subdivision (b) of Section 186.22.
    “(B) Any principal in the offense committed any act specified in
    subdivision (b) . . . .”
    120
    informal, having as one of its primary activities the commission of one or
    more of the criminal acts enumerated in subdivision (e), having a common
    name or common identifying sign or symbol, and whose members collectively
    engage in, or have engaged in, a pattern of criminal gang activity.” (§ 186.22,
    subd. (f).) In People v. Prunty (2015) 
    62 Cal.4th 59
     (Prunty), our Supreme
    Court construed the phrase “organization, association, or group . . . , whether
    formal or informal,” as used in this subsection, as “contemplat[ing] some kind
    of relationship, or degree of ‘togetherness,’ uniting those individuals” (id. at
    p. 72). The Prunty court did not also consider the meaning of the terms “an
    ongoing, organized association or group” or “members collectively engaging in,
    or having engaged in, a pattern of criminal gang activity” because the
    italicized terms were not added to the subdivision until 2021. (Stats. 2021,
    ch. 699, § 3, italics added.) However, in discussing the statutory language of
    section 186.22, subdivision (f) that was in effect at the time of defendants’
    trial in the present case,48 the Prunty court pointed out that “the words the
    Legislature chose to describe the collection of people who constitute a
    ‘criminal street gang’—‘organization, association, or group, whether formal or
    informal’—contemplate some kind of relationship, or degree of togetherness,
    uniting those individuals. [§ 186.22(f).] Dictionary definitions of ‘association’
    emphasize the existence of some connection among members, i.e., ‘[a]n
    organized body of people who have an interest, activity, or purpose in
    48  The former subdivision in effect at the time of defendants’ trial
    stated that a criminal street gang was “any ongoing organization, association,
    or group of three or more persons, whether formal or informal, having as one
    of its primary activities the commission of one or more of the criminal acts
    enumerated in . . . subdivision (e), having a common name or common
    identifying sign or symbol, and whose members individually or collectively
    engage in or have engaged in, a pattern of criminal gang activity.”
    (Stats. 2013, ch. 508 § 1, italics added.)
    121
    common’ (American Heritage Dict. (4th ed. 2000) p. 109), or ‘an organization
    of persons having a common interest’ (Merriam-Webster’s Collegiate Dict.
    (11th ed. 2003) p. 75). The same is true of definitions of ‘organization,’ which
    describe, for example, ‘[a] group of persons organized for a particular
    purpose . . .’ (American Heritage Dict., supra, at p. 1239), and persons
    comprising a ‘functional structure’ (Merriam-Webster’s Collegiate Dict.,
    supra, at p. 874). Both terms envision some measure of connection among
    members, such as unity of purpose, shared activities, or other manifestations
    of a common relationship.” (Prunty, at p. 72, italics added.)
    “The phrase ‘primary activities,’ . . . implies that the commission of one
    or more of the statutorily enumerated crimes is one of the group’s ‘chief’ or
    ‘principal’ occupations,” as opposed to the occasional commission of those
    crimes by one or more of the group’s members. (People v. Sengpadychith
    (2001) 
    26 Cal.4th 316
    , 323.) “Sufficient proof of the gang’s primary activities
    might consist of evidence that the group’s members consistently and
    repeatedly have committed criminal activity listed in the gang statute.” (Id.
    at p. 324.) “A gang engages in a ‘pattern of criminal gang activity’ when its
    members participate in ‘two or more’ statutorily enumerated criminal
    offenses (the so-called ‘predicate offenses’) that are committed within a
    certain time frame and ‘on separate occasions, or by two or more persons.’ ”
    (People v. Zermeno (1999) 
    21 Cal.4th 927
    , 930.)
    Further, as used in section 186.22, “ ‘pattern of criminal activity’ means
    the commission of, attempted commission of, conspiracy to commit, or
    solicitation of, sustained juvenile petition for, or conviction of, two or more” of
    certain enumerated offenses, “provided at least one of these offenses occurred
    after the effective date of this chapter, and the last of those offenses occurred
    within three years of the prior offense and within three years of the date the
    122
    current offense is alleged to have been committed, the offenses were
    committed on separate occasions or by two or more members, the offenses
    commonly benefited a criminal street gang, and the common benefit of the
    offense is more than reputational . . . .” (§ 186.22, subds. (e), (g).) The list of
    qualifying offenses is found in section 186.22, subdivision (e)(1)(A)–(Z) and
    includes robbery (§ 186.22, subd. (e)(1)(B).) Notably, section 186.22 as
    modified by Assembly Bill No. 333 provides that, unlike before the
    modification, “[t]he currently charged offense shall not be used to establish
    the pattern of criminal activity.” (§ 186.22, subd. (e)(2); see People v. Tran
    (2011) 
    51 Cal.4th 1040
    , 1046 [discussing the law prior to the statute’s recent
    modification].)
    As we will discuss, several parts of section 186.22 that we have outlined
    above became effective only as of January 1, 2022, as a result of the
    enactment of Assembly Bill No. 333 and modified certain aspects of the old
    section 186.22 that were in effect at the time of defendants’ trial.
    Understandably, the trial court’s jury instructions did not incorporate these
    not yet enacted modifications, but they nonetheless apply retroactively to
    defendants’ cases under Estrada.
    In their supplemental briefing, defendants contend that the trial court’s
    failure to instruct on the subsequently modified section 186.22, amounts to
    instructional error that is prejudicial under Chapman, supra, 386 U.S. at
    pages 23-24. The People agree that, to the extent the court did not instruct
    on the subsequently modified section 186.22, we must determine whether the
    error is harmless, but they argue that the state standard for error applies
    under People v. Watson, supra, 
    46 Cal.2d 818
    , 836 without citing any other
    authority.
    123
    As we discussed in part II of the Discussion section, ante, in analyzing
    the instructional error resulting from the retroactive application of
    amendments adding elements to a crime, we apply the Chapman standard.
    2. The Law Regarding Gang Expert Testimony
    Gang expert testimony has long played an important role in
    prosecution efforts to establish the commission of gang-related crimes.
    “Expert testimony is admissible to establish the existence, composition,
    culture, habits, and activities of street gangs; a defendant’s membership in a
    gang; . . . the ‘motivation for a particular crime, generally retaliation or
    intimidation’; and ‘whether and how a crime was committed to benefit or
    promote a gang.’ ” (People v. Hill (2011) 
    191 Cal.App.4th 1104
    , 1120.)
    Prior to Crawford and Sanchez, testifying gang experts, often police
    officers engaged in gang investigations in the community in which an
    incident occurred, were able to testify about a wide range of facts and
    circumstances culled from police investigations and reports that went beyond
    the expert’s personal knowledge. Case law held such evidence was not
    offered for its truth, but only to identify the foundational basis for the
    expert’s testimony. (See, e.g., People v. Thomas (2005) 
    130 Cal.App.4th 1202
    ,
    1210.) Crawford and Sanchez significantly restricted the use of gang expert
    testimony predicated on hearsay.
    Crawford, 
    supra,
     
    541 U.S. 36
    , did not involve gang expert testimony,
    but is significant in defining its parameters. As we have already indicated, in
    Crawford, the United States Supreme Court held that the Sixth Amendment
    bars the introduction of a witness’s “testimonial hearsay” statements at trial
    unless the witness is unavailable and the defendant has had an opportunity
    to cross-examine the witness. (Crawford, at pp. 68-69.) “ ‘Crawford did not
    define the term “testimonial,” but it mentioned several possible definitions,
    124
    by several sources, of statements that are testimonial in nature, including
    “ ‘extrajudicial statements . . . contained in formalized testimonial materials,
    such as affidavits, depositions, prior testimony, or confessions,’ [citation];
    [and] ‘statements that were made under circumstances which would lead an
    objective witness reasonably to believe that the statement would be available
    for use at a later trial . . .’ [citation].” (Id. at pp. 51-52.)’ ” (People v. Pearson
    (2013) 
    56 Cal.4th 393
    , 462 (Pearson.)
    Since Crawford, our Supreme Court has construed information
    contained in police reports as testimonial because such reports “relate
    hearsay information gathered during an official investigation of a completed
    crime.” (Sanchez, supra, 63 Cal.4th at p. 694.) Thus, a statement about a
    completed crime made to an investigating officer by a nontestifying declarant
    is generally testimonial unless an exception applies. (Ibid.)
    In Sanchez, our Supreme Court specifically addressed gang expert
    testimony and limited the parameters of permissible testimony based both on
    Crawford’s confrontation clause ruling and on hearsay principles. We
    explained the significance of Sanchez in People v. Anthony (2019)
    
    32 Cal.App.5th 1102
     (Anthony): “In Sanchez, . . . the [California] Supreme
    Court . . . created a new paradigm for the presentation of gang expert
    testimony. (Sanchez, supra, 63 Cal.4th at p. 679.) Before Sanchez, an expert
    was given the latitude to testify both about general background information
    and about case-specific out-of-court statements in order to explain the basis
    for his or her expert opinion, and the court typically would instruct the jury
    to consider the information for that purpose only, and not for its truth. (Id. at
    p. 683, citing People v. Gardeley (1996)
    14 Cal.4th 605
    .) In Sanchez, the court
    eliminated this latitude with respect to case-specific facts, which it defined as
    facts ‘relating to the particular events and participants alleged to have been
    125
    involved in the case being tried.’ (Id. at p. 676.) It reasoned that when no
    other and competent evidence of those facts is offered, ‘there is no denying’
    that the hearsay statements relayed by the expert are being offered for their
    truth. (Id. at p. 684.) Indeed, the jury in Sanchez had been instructed that,
    in assessing the believability of the expert, it ‘ “must decide whether
    information on which the expert relied was true and accurate.” ’ (Id. at
    p. 684; CALCRIM No. 332.) While the jury had also been instructed that the
    hearsay statements on which the expert relied should not be considered ‘
    “proof that the information contained in those statements was true,” ’ that
    instruction was in conflict with the first one and could not logically have been
    applied. ‘[The jury] cannot decide whether the information relied on by the
    expert “was true and accurate” without considering whether the specific
    evidence identified by the instruction, and upon which the expert based his
    opinion, was also true.’ (Sanchez, at p. 684.) The state law evidentiary rule
    established in Sanchez, simply stated, is that out-of-court statements about
    case-specific facts may not be relayed by an expert witness unless they fall
    within an exception to the hearsay rule. Absent an exception, the case-
    specific facts must be established by competent (non-hearsay) evidence
    presented by other witnesses and the expert’s opinion may be based on a
    hypothetical question that assumes those facts. (Ibid.)
    “In Sanchez, the court also addressed the Sixth Amendment’s
    confrontation clause, as interpreted by the United States Supreme Court in
    Crawford and its progeny. (Sanchez, supra, 63 Cal.4th at pp. 685-686.)
    Admission through an expert of hearsay statements concerning case-specific
    facts, the court opined, violates the Evidence Code and, if the hearsay
    statements were testimonial and Crawford’s exceptions do not apply, also
    violates the Sixth Amendment. (Sanchez, at p. 685.) A ‘testimonial’
    126
    statement is one made when the circumstances objectively indicate there is
    no ongoing emergency, and the ‘primary purpose’ of the interrogation or other
    conversation ‘ “is to establish or prove past events potentially relevant to
    later criminal prosecution.” ’ (Ohio v. Clark (2015) 576 U.S. [237] [
    135 S.Ct. 2173
    , 2179-2180].)
    “The Sanchez court established a two-step analysis for determining the
    admissibility of out-of-court statements. ‘The first step is a traditional
    hearsay inquiry: Is the statement one made out of court; is it offered to prove
    the truth of the facts it asserts; and does it fall under a hearsay exception? If
    a hearsay statement is being offered by the prosecution in a criminal case,
    and the Crawford requirements of unavailability, as well as cross-
    examination or forfeiture, are not satisfied, a second analytical step is
    required. Admission of such a statement violates the right to confrontation if
    the statement is testimonial hearsay, as the high court defines that term.’
    (Sanchez, supra, 63 Cal.4th at p. 680.)
    “The Sanchez court’s hearsay analysis focused on an expert’s testimony
    about the truth of case-specific facts, and not on the expert’s reliance on these
    facts to form his or her expert opinion. The court emphasized that an expert
    ‘may still rely on hearsay in forming an opinion and may tell the jury in
    general terms that he did so.’ (Sanchez, supra, 63 Cal.4th at p. 685.) ‘What
    an expert cannot do is 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.)” (Anthony, supra,
    32 Cal.App.5th at pp. 1129-1131, fn. omitted.)
    Although the Sanchez court held that an expert may not relate case-
    specific facts as true, it reaffirmed “the long-standing rule that expert
    witnesses have greater latitude than lay witnesses to testify about ‘generally
    127
    accepted background information’ ([Sanchez, supra, 63 Cal.4th], at p. 676),
    even when that information is based on hearsay: ‘In addition to matters
    within their own personal knowledge, experts may relate information
    acquired through their training and experience, even though that information
    may have been derived from conversations with others, lectures, study of
    learned treatises, etc.’ (Id. at p. 675.) ‘An expert may . . . testify about more
    generalized information to help jurors understand the significance
    of . . . case-specific facts.’ (Id. at p. 676.)” (Anthony, supra, 32 Cal.App.5th at
    p. 1131.)
    Recently, in People v. Valencia (2021) 
    11 Cal.5th 818
    , 831 (Valencia),
    our Supreme Court further distinguished between testimony that relates
    mere background information and testimony that relates case-specific facts.
    The issue in that case was whether testimony about predicate offenses fell on
    the case-specific or general background side of the line. The court held that
    predicate offense testimony is the kind of case-specific fact about which an
    expert cannot testify based on hearsay. “Hallmarks of background facts,” the
    court said, “are that they are generally accepted by experts in their field of
    expertise, and that they will usually be applicable to all similar cases.” (Id.
    at p. 836.) Testimony about such facts may concern “ ‘background
    information regarding [the expert’s] knowledge and expertise and premises
    generally accepted in his field.” (Id. at p. 835.) Thus, a physician may
    “ ‘relate generally accepted medical knowledge that will assist the jury’ ”
    without “ ‘personally replica[ting] all medical experiments dating back to the
    time of Galen.’ ” (Id. at p. 836.) Another example the court drew was from its
    recent decision in People v. Veamatahau (2020) 
    9 Cal.5th 16
    , in which it held
    an expert’s testimony about an FDA requirement that pills containing
    controlled substances bear distinct markings and a database relied on by
    128
    experts in the field to determine the controlled substances in pills bearing
    particular markings. (Valencia, at pp. 836-838.) The court also reiterated
    statements it had made in Sanchez that “general testimony about a gang’s
    behavior, history, territory, and general operations is usually admissible,” as
    is also the case regarding “the gang’s name, symbols, and colors.” (Valencia,
    at p. 838.) The court added a caveat that such information “can be admitted
    through an expert’s testimony, even if hearsay, if there is evidence that it is
    considered reliable and accurate by experts on the gang.” (Ibid., italics
    added.)
    The court contrasted with these types of information “information
    regarding the commission of a particular offense on a specific occasion” and
    held that experts with no personal knowledge of that information and “who
    do not rely on other admissible evidence” cannot relay that information to a
    jury. (Valencia, supra, 11 Cal.5th at p. 838.) Only if “independent admissible
    evidence of the particulars of the predicate offenses” is offered may an expert
    testify about them. (Ibid.)
    The admission of testimonial hearsay regarding case-specific facts is
    reviewed for prejudice under the “harmless beyond a reasonable doubt”
    federal standard for error established in Chapman, 
    supra,
     386 U.S. at pages
    23-24. (See Valencia, supra, 11 Cal.5th at p. 840.) The admission of
    nontestimonial hearsay is reviewed for prejudice under the less stringent
    “reasonably probable” state standard for error established in People v.
    Watson, supra, 46 Cal.2d at p. 836. When there is a combination of federal
    and state law errors, we apply the Chapman standard. (See Sanchez, supra,
    63 Cal.4th at p. 698 [applying the federal standard because “much of the
    hearsay was testimonial”]; People v. Martinez (2018) 
    19 Cal.App.5th 853
    , 861
    129
    [“Because the instant case involves a mix of testimonial and nontestimonial
    hearsay, we will apply the federal standard”].)
    C. Relevant Pre-Trial Proceedings
    Prior to trial, the prosecution moved in limine to introduce gang
    evidence through the testimony of its gang expert, San Francisco Police
    Sergeant Derrick Jackson. Defendants opposed the motion based in part on
    hearsay objections. The court held a hearing under Evidence Code
    section 402 to consider the prosecution’s proffer and heard argument from the
    parties.49
    The prosecutor sought to use Molina’s and Jones’s association with
    purported members of the Double Rock criminal street gang to prove the
    gang charges brought against them. In doing so, he sought to introduce
    Jackson’s testimony about gang “validation sheets” and other documents
    used by San Francisco police to identify gang members other than the
    defendants. Defense counsel specifically objected to testimony regarding the
    contents of validation sheets and field identifications. Jackson testified at
    the section 402 hearing that the information recorded on the validation
    sheets “comes directly from incident reports generated by patrol officer[s]. [¶]
    It comes from investigations from other investigative units. [¶] It comes from
    my own investigation in response to incidents and crimes. [¶] And it can also
    come from outside agencies.” The prosecutor did not seek admission of the
    validation sheets themselves but sought, in essence, to convey their content
    to the jury through Jackson’s testimony. The court ruled that Jackson could
    testify regarding certain non-defendants, including from information
    49 The main focus of the hearing, which took place before our Supreme
    Court issued Sanchez and the Legislature modified section 186.22 via
    Assembly Bill No. 333, was on the admissibility of the proffered evidence
    under Evidence Code section 352.
    130
    garnered from validation sheets and similar documents, to establish that
    those individuals were gang members.
    D. The Gang Evidence Presented at Trial
    1. The Testimony of the Prosecution’s Gang Expert,
    Sergeant Jackson
    Sergeant Jackson testified that he had patrolled Double Rock from
    2000 to around 2002 or 2003, after which he became a member of a gang task
    force and was responsible for directly monitoring the Double Rock gang. He
    had both spoken to Double Rock gang members and investigated Double Rock
    gang crimes hundreds of times. He agreed he was “the expert in terms of
    gang activity” at Double Rock and had created the first validation sheets for
    members of the Double Rock gang.
    a. Jackson’s Testimony About the Double Rock Gang
    According to Jackson, the Horseshoe was in the Double Rock gang’s
    territory. The primary purposes of the gang included illegal possession of
    weapons, narcotics, assaults, burglaries and robberies. There was no specific
    initiation process, but someone became a member of the gang by hanging out
    with the gang, committing increasingly serious crimes and remaining silent
    when arrested with other gang members. Committing murder elevated a
    member’s status in the gang. Jackson identified photographs he took in
    2005, and other photographs taken in 2008, of gang graffiti in the area,
    including graffitied lyrics Jackson said were labelled “murder music.”
    Jackson also testified about a sketch, stipulated as having been found in the
    residence of someone associated with the Double Rock gang, of a skeleton
    holding a gun, with the slogan “[L]ive by the gun” and referring to “rock” and
    “RS.” He testified that the sketch supported his opinion that one of the
    primary purposes of the gang was the illegal possession and use of guns. He
    could not say how many crimes committed in Double Rock between 2004 and
    131
    2009 were gang related. Jackson also testified that Double Rock gang
    members used a “2 Rock” hand sign, which consisted of “showing two fingers,
    the pinky finger and the ring finger.”
    b. Jackson’s Testimony About Double Rock Gang
    Members
    As we have discussed, the prosecution sought to prove its gang
    allegations against defendants largely through their associations with non-
    defendants whom Jackson identified as members of or affiliated with the
    Double Rock gang. Much of Jackson’s testimony was regarding what he
    considered to be gang-related activities, associations and displays by non-
    defendants and, in turn, their associations with the defendants. This
    testimony was derived in large part from his review of validation sheets,
    police reports and other documents. He discussed his reliance on the
    department’s gang validation sheets, which listed 11 criteria, of which two
    needed to be satisfied in order for an individual to be classified as a gang
    member; these criteria included self-admission of gang membership, tattoos,
    crimes of a gang character, association with other gang members and
    observed presence in gang territory. Jackson indicated that his
    determination of whether a person met these criteria included his reading
    and reviewing incident reports. Jackson also referred to “field
    identifications” and “field interviews.” He said, “field identifications” were
    “computer generated reports for officers’ conduct with subjects in the field.”50
    Asked the purpose of field identifications, he said they were “a way of
    tracking the behavior and contacts with individuals, where they were, what
    time, who they were with, was there any criminal activity that was being
    committed during the contact.”
    50 Considering this statement in its context, it may be that Jackson
    actually said “contact” instead of “conduct.”
    132
    In our summary of these aspects of Jackson’s testimony, we will
    indicate when he stated he was relying on personal knowledge; otherwise, it
    appears he was relying on hearsay.
    First, Jackson identified numerous non-defendants as Double Rock
    gang members:
    Darius Perkins, deceased, was a “validated” Double Rock gang member
    that Jackson had investigated numerous times in his career. Perkins had a
    gang moniker and felony convictions for two burglaries. In an interview with
    Jackson, Perkins admitted he was a gang member. Jackson identified in
    photographs of Perkins that he had a “Rock Solid” and a “Double Rock”
    tattoo, which were gang tattoos. Jackson said a printout of a “field interview
    contact” shown to him at trial indicated that Perkins was contacted in the
    company of Carl Bradley and Lance Molina, and a May 2007 field contact
    found Perkins in the company of a documented gang member. Jackson
    believed Perkins was a gang member based on “his contacts and his criminal
    activity in the area combined with his convictions which are the predicate
    crimes and established by the tattoos that he’s documented himself as being a
    member of that gang.”
    Jackson had numerous personal contacts and interviews with Damon
    Grayson, investigated him and executed a search warrant of Grayson’s home,
    where he had collected indicia of gang membership, including photographs.
    Also, a March 20, 2008 parole search by other officers found Double Rock
    gang members, including Lonnel Howard and D’Angelo Winston, in
    Grayson’s home and evidence of firearms, narcotics and other contraband.
    Grayson was a Double Rock gang member, based on the validation sheet
    Jackson created for him, which was based on Grayson’s criminal history, his
    convictions and his association with Double Rock members.
    133
    Delvon Lewis was a Double Rock gang member, based on Jackson’s
    review of validation sheets and Lewis’s documented contacts, criminal
    activity, photographs in which he displayed “the Double Rock gang hand
    sign,” and his conviction for possession of cocaine, a predicate crime.
    Marquez Benson, also deceased, was a member of the Double Rock
    gang, based on Jackson’s review of Benson’s validation sheet, his associations
    “with the gang itself” and Benson’s conviction for unlawful possession of a
    pistol.
    Paul Belazain was a Double Rock gang member, based on Jackson’s
    own investigation, including Belazain’s criminal activity in gang territory, his
    association with other gang members and his convictions of predicate crimes.
    Jackson was shown an abstract of conviction for Belazain that was later
    admitted into evidence, for possession of a concealed firearm in a vehicle.
    Jackson described other officers’ encounter with Belazain that led to this
    conviction. Also, in August 2005, Jackson responded to a scene, where he
    saw a car upside down with damage from a high-powered rifle. Jackson
    investigated and found a semiautomatic pistol and assault rifle in a vehicle
    that contained Belazain’s coat and identification.
    Roland Black was a “documented” Double Rock gang member who
    Jackson had contacted, investigated and arrested numerous times in his
    career. Jackson was shown an abstract of conviction for Black that was later
    admitted into evidence, for assault on a police officer.
    Jackson was shown an abstract of conviction for Anthony Mims that
    was later admitted into evidence, for possession of an assault pistol. Also, in
    August 2004, Mims was stopped in the company of Benson, and arrested for
    possession of marijuana. A rifle scope, a bullet resistant vest and a black
    facemask were found in the vehicle. In January 2006, Mims, Benson and a
    134
    third individual were investigated for burglary, and Mims was identified by a
    witness as having attempted to enter a residence. In June 2008, Mims was
    in the company of Benson and several others; he was searched and found to
    be in possession of a “remote” to a vehicle that police then searched, and in
    which they found a semiautomatic pistol; Mims pleaded guilty to a firearms
    charge. Mims was a Double Rock gang member.
    Carl Bradley was found with Black and Lewis on December 22, 2007, in
    the course of a traffic stop for a stolen vehicle. Bradley was arrested in
    February 2008 for negligent discharge of a firearm, in March 2008 for
    residential burglary, and in April 2008 for residential burglary and
    possession of stolen property, and he was convicted of possession of stolen
    property. Based on these incidents, Jackson concluded that Bradley was a
    Double Rock gang member.
    Jovan Marshall fought officers and discarded cocaine base in an
    incident, and as a result was convicted of possession of cocaine base for sale
    and battery on a peace officer. Jackson saw Marshall at the station house
    and observed several tattoos on Marshall’s body “that represented Double
    Rock.” In April 2005, Marshall was found in the company of Grayson, Black
    and Mims, and Mims and Black were arrested for possession of marijuana for
    sale. Jackson relied on these facts to conclude that Marshall was a Double
    Rock gang member.
    Photographs of Jamal Butler, Durrell Samuels and Albert Marlborough
    showed they had gang tattoos; Butler’s stated, “Rock Solid”; Samuels’s
    included “Rock” and “Double,” and Marlborough’s stated, “2 Rock.” Butler
    was a “document[ed]” Double Rock gang member.
    According to Jackson, Arnold Biggins and Quentin Simonton, whose
    testimony we have discussed, were associates of the Double Rock gang in
    135
    October 2009, which is when the incident occurred. Biggins had at some
    point also been a member of another gang but was more affiliated with the
    Double Rock gang.
    Jackson also testified about field interviews conducted by San
    Francisco police with non-defendants who were noted to be Double Rock
    street gang members, including Bradley and Grayson. Another field
    interview indicated that Mims was arrested with a bulletproof vest.
    Lige had a “Rock in Peace” tattoo on his forearm in a photograph and
    was known to associate with Double Rock gang members. These, and the
    absence of a relevant conviction, indicated he was an associate but not a
    member of the Double Rock gang.
    A photograph showed that Molina had a “Rock in Peace” gang tattoo. It
    supported Jackson’s conclusion that Molina was a member of the Double
    Rock gang. On cross-examination, however, Jackson acknowledged that
    below that tattoo was the name “J-Ray” and three basketballs and that a 16-
    year-old girl by that name, who was not a gang member, had been shot to
    death. He nonetheless testified that Molina’s “Rock in Peace” tattoo, with its
    use of the word “rock” instead of “rest” was “indicative of gang behavior and
    gang culture.”
    Jackson also testified about photographs taken in 2009 of a list of
    names painted on a wall behind 37 Cameron Way in Double Rock. He
    testified that “this wall with all the names is basically an official roster of
    who has been associated with Double Rock past and present. It also is their
    wall of fame. It describes ‘Double Rock for Life.’ It has the gang’s graffiti
    ‘Rock Solid’ on it again, and it contains the names of persons we spoke of
    today.” Jackson acknowledged, however, that in 2009 he did not seek to
    136
    interview the wall’s creator who, he had since learned, was not a gang
    member.
    c. Jackson’s Testimony About Gang Members Associating
    with Each Other
    Jackson also testified about other incidents in which individuals he
    identified as Double Rock gang members were found with each other (other
    than defendants Molina and Jones, discussed post), including:
    An April 2005 incident involving Benson and Mims and a June 2008
    incident involving Mims, Benson and others, in which Mims was arrested
    and pled guilty to possession of a semiautomatic pistol;
    A July 2008 incident in which Grayson, Marshall and Lige were found
    together at a traffic stop, and Grayson was in possession of powder cocaine;
    An instance in which Grayson and Lige displayed a gang sign next to
    Jovan Marshall, which was depicted in a photograph obtained from the
    warranted search of Grayson’s home; and
    A November 2008 incident in which Grayson, Marshall, Bradley and
    Lige were together, and Grayson was found to be in possession of marijuana.
    d. Jackson’s Testimony About Other Gang Member
    Convictions
    Jackson further testified about other convictions suffered by
    individuals he identified as gang members. Belazain had pleaded guilty to
    possession of an assault rifle. Mims had pleaded guilty to possession of a
    semiautomatic pistol. Howard had been convicted in 2002 of possession of
    cocaine base rock for sale. Black had been convicted in 2004 and 2005 of
    possession of cocaine base rock for sale. Mims had been convicted in 2006 of
    burglary and in 2008 of a firearms offense. Belazain had been convicted of
    possession of a concealed firearm in a vehicle after a guilty plea.
    137
    e. Jackson’s Testimony About Defendants’ Associations
    with Gang Members
    Jackson also testified about one or more of the defendants associating
    with individuals he identified as gang members:
    A San Francisco police officer (other than Jackson) testified that on
    December 20, 2007, he arrested Molina, along with Bradley, Lewis and Jones,
    after he saw Jones drop a handgun and a phone on the street. Jackson
    testified that as a result of this incident, Jones pleaded guilty to a firearm
    charge, which Jackson said was a predicate offense; although the record is
    not entirely clear, it appears Jackson was shown an abstract of conviction for
    Jones that was later admitted into evidence. He further testified that Jones
    was a Double Rock gang member as of October 2009.
    Another San Francisco police officer testified that during a traffic stop
    at about 1:00 a.m. on September 29, 2008, he found Molina, Lewis, and
    Albert Marlborough, along with an assault rifle, in a car. Jackson testified
    that this incident showed Molina’s association with Double Rock gang
    members, and he cited it as support for his view that Molina was a Double
    Rock gang member.
    Photographs showed Molina, with his “Rock in Peace” gang tattoo, and
    Marshall and others throwing Double Rock gang signs (the pinky and ring
    finger extended to indicate “2 Rock”) in a photo with Jones, Howard and
    Lewis. Another photograph showed Marshall, Lewis and Jones showing
    hand gang signs, with Molina also in the photograph.
    Field identifications indicated Molina was in the company of Perkins
    and Bradley in June 2007, Marlborough and Grayson in November 2008, and
    Bradley, Jones and another individual in January 2009.
    Photographs shown to Jackson showed Jones with Lewis, who was
    displaying a gang sign; Jones with Lewis and another person who had a
    138
    “Solid” tattoo; and Jones displaying a gang sign in the company of Marshall
    and Lewis.
    On October 4, 2009, a lanyard was found in Jones’s home with a picture
    of Marquez Benson, deceased, which showed association with the Double
    Rock gang. Jackson said the lanyard was a “memorial lanyard commonly
    worn by gang members to respect and honor the deceased gang member.”
    In February 2005, Jackson responded to a report of a shooting. Perkins
    was identified as a suspect, and Jones was present according to the police
    report.
    f. Jackson’s Conclusions Regarding Defendants
    As we have mentioned, Jackson opined that Molina was a Double Rock
    gang member, which designation Jackson changed from associate as a result
    of the incident in the present case. Along with Molina’s tattoo and the
    photographs of Molina displaying gang signs, Jackson relied on Molina’s
    “consistent” associations with Double Rock gang members, associations that
    Jackson based on his review of field interviews and validation sheets.
    However, Jackson conceded that at the time of trial Molina had no relevant
    conviction.
    Jackson testified that, based on the “totality of the circumstances,” he
    believed Jones was a member.
    The prosecutor asked Jackson about a hypothetical that closely tracked
    the events of the October 4, 2009 incident (except that the prosecutor referred
    to the victims as “unknown gang members”) and assumed the perpetrators
    were gang members and associates. Jackson testified that the
    robbery/murder benefited the gang because “it advertises the gang’s strength
    and its power,” “shows that the gang has the capacity and ability to commit
    murder,” and “shows that the other gang members are willing to take part in
    support of the gang.” The killing of one of the victims “basically advertised
    139
    [the gang’s] strength and its power in the community” and “will intimidate
    the community.” The robbery benefits the gang “by money, jewelry and
    whatever they can generate from the victim,” which can be “sold rapidly to
    generate income.” One member giving orders creates a cohesive unit, and
    those who help rob the victims are aiding and abetting the gang in the
    completion of the crime.
    2. The Defense Gang Expert’s Testimony
    Mark Harrison, a police practices expert, testified that criminal street
    gang members may commit crimes that are not for the benefit of their gang.
    There has to be a group of some cohesive nature that uses its resources to
    facilitate crimes for the betterment of the group, which is different from
    merely individuals engaging in criminal behavior. There are recognized
    comprehensive methodologies for determining whether a gang exists,
    whether criminal activity is gang-related and whether individuals are gang
    members. Those methods are designed to prevent misidentifications.
    Harrison thought the San Francisco Police Department’s validation sheet
    approach with its 11 criteria was useful but, pointing out that validation
    under that approach could be based on activity occurring in one day, testified
    that validation should occur based on “an ongoing pattern of criminal activity
    evaluation, not just the one day.”
    Harrison further testified that there are consistent ways to define gang
    members that should be used in order to avoid using capricious and arbitrary
    methods to reach a predetermined result. Harrison did not think consistent
    methods were used in the present case to validate Double Rock gang
    members, “[j]ust inconsistent or . . . capricious and arbitrary methods.”
    Harrison thought, for example, that it was “a leap to a conclusion” to say that
    Molina’s “Rock in Peace” tattoo was gang related. He also found it significant
    140
    that there was no evidence of Double Rock gang crime convictions between
    2004 and 2009.
    Harrison further testified that people often identify with where they
    grew up, but that did not necessarily mean that if they commit a crime that
    identification turns them into a gang member. There was evidence that
    people who live in Double Rock, a multigenerational community, identified
    strongly with their neighborhood, which he had seen in his own experience
    there prior to 2004.
    Harrison acknowledged that he was not saying the Double Rock gang
    did not exist as of 2009. Also, he agreed that someone working in the
    neighborhood from 2004 to 2009 had sufficient time to conclude whether or
    not the Double Rock gang existed. A person flashing gang hand signs in a
    photograph was “something important for validation.” Possession of a
    memorial lanyard could be evidence of gang membership but did not
    establish membership by itself. Location of a crime was not a critical factor.
    A gang member stating a gang name during a crime committed with gang
    members and associates would give Harrison a “high index of suspicion” that
    it was a gang-related crime.
    3. Ben Molina’s Testimony
    Molina’s uncle, Ben Molina (Ben),51 testified that he was 62 years old
    and had lived at Double Rock since 1963, a year after it opened, and that the
    housing project was known as “2 Rock” or “Double Rock.” He lived at
    37 Cameron Way with family and had lived there for “[q]uite a few years.”
    He put a basketball court up behind his residence in 1994 or 1995, and
    neighborhood kids came to play there. There was a retaining wall there as
    51 We refer to Ben Molina by his first name for clarity’s sake and mean
    no disrespect by doing so.
    141
    well, on which he put names of people in order “to keep kids from painting on
    the wall there.” The only requirement for kids to get their names on the wall
    is to be in high school. He also put on the wall, “no alcohol, no drugs, no
    fighting” in four-inch red letters so it could be seen. “Rock solid hardheads,”
    which he also painted on the wall, was the name of the first group of kids he
    had invited to play basketball there, and likewise “school of hard knocks
    since 1963” referred to basketball only. Defendant Molina’s name was on the
    wall because he graduated from high school. The names of females and
    several community leaders were on the wall as well.
    Ben also testified that “rock solid” had been a term used by many
    people to describe being a part of Double Rock, and it also referred to playing
    basketball, as in “ ‘pass me the rock.’ ”
    Ben further testified that “J Ray” was on the wall, and that she was
    very fond of playing basketball, including with defendant Molina. Shown a
    photograph, Ben said it was taken on her birthday after she died, when the
    entire community came together. The photo showed Ben making a hand sign
    with two fingers, which he said could have been “a peace sign or Double Rock
    sign.”
    4. The Prosecutor’s Concession in Closing Argument
    In closing argument, the prosecutor implicitly conceded that the wall of
    names at 37 Cameron Way was not a roster of Double Rock gang members.
    The prosecutor stated: “So we’re proud of Mr. [Ben] Molina for the names he
    puts on the wall. That’s important. And if we had more people like
    him in the community this crime wouldn’t have happened. [¶] But when
    certain individuals wear the tattoos and flash the signs and are committing
    crimes, there’s a difference. It takes them out of the realm of people who are
    on the wall for going to high school and doing well. Because a lot of them are
    on that wall, and it takes them into the realm of criminality.”
    142
    E. Analysis
    1. Given the Retroactive Application of Assembly Bill No. 333,
    the Trial Court Committed Multiple Instructional Errors.
    As we have already discussed, when a statutory enactment is
    retroactive to cases that are not yet final on appeal, an instruction that did
    not include elements required by the new statute is treated as instructional
    error. (People v. Sek (2022) 
    74 Cal.App.5th 657
    , 669 (Sek); see People v.
    Wright (2006) 
    40 Cal.4th 81
    , 98-99 (Wright); Ramos, supra, 
    244 Cal.App.4th 99
    , 102-104.) We conclude, based on the retroactive application of Assembly
    Bill No. 333 to their cases, there were multiple instructional errors.
    As we have discussed, a criminal street gang is defined in
    section 186.22 as “an ongoing, organized association or group of three or more
    persons, whether formal or informal, having as one of its primary activities
    the commission of one or more of the criminal acts enumerated in
    subdivision (e), having a common name or common identifying sign or
    symbol, and whose members collectively engage in, or have engaged in, a
    pattern of criminal gang activity.” (§ 186.22, subd. (f).) However, the trial
    court did not instruct the jury that a criminal street gang was an “an
    ongoing, organized association or group of three or more persons” because the
    italicized term was not made an element of proving the existence of a
    criminal street gang under section 186.22, subdivision (b) until the
    enactment of Assembly Bill No. 333. It may be that, as suggested by the
    Prunty court’s discussion of similar language in a prior version of
    subdivision section 186.22, subdivision (f), that this amended language does
    not differ in a material respect from that which preceded it. Nonetheless the
    jury was not given the opportunity to consider this amended language and we
    cannot confidently determine what decisions it would have made if it had, as
    143
    there was little admissible evidence presented by the prosecution that the
    Double Rock gang was “organized.”
    We add that, although defendants do not note it, the trial court also did
    not instruct the jury that it was required to find that the gang’s “members
    collectively engage in or have engaged in a pattern of criminal conduct” under
    this same subdivision because the phrase in effect at the time of trial only
    required that the gang’s “members individually or collectively engage in or
    have engaged in a pattern of criminal gang activity.” (Stats. 2013, ch. 508
    § 1, italics added.)
    The trial court failed to instruct the jury that it could not include a
    defendant’s present offenses in considering whether, regarding that
    defendant, gang members had committed the two or more predicate offenses
    necessary to establish a pattern of criminal activity, another limitation that
    did not go into effect until January 1, 2022 as part of the enactment of
    Assembly Bill No. 333. (See § 186.22, subd. (e)(2).) Instead, the jury was
    allowed to consider defendants’ current offenses in determining whether two
    or more predicate offenses had been committed by gang members, as was the
    law at the time of their trial. (See People v. Tran, 
    supra,
     
    51 Cal.4th 1040
    ,
    1046.) The People argue that, regardless of this recent modification to
    section 186.22, subdivision (e)(2), Molina’s presently charged offenses could
    be considered as predicate offenses with regard to Jones, and vice versa. (See
    People v. Loeun (1997) 
    17 Cal.4th 1
    , 10 [“when the prosecution chooses to
    establish the requisite ‘pattern’ by evidence of ‘two or more’ predicate offenses
    committed on a single occasion by ‘two or more persons,’ it can, as here, rely
    on evidence of the defendant’s commission of the charged offense and the
    contemporaneous commission of a second predicate offense by a fellow gang
    member”].) We will assume for the sake of argument that this is the case
    144
    without deciding the issue because, as we will discuss, it will not matter in
    our analysis.
    Finally, the trial court failed to instruct the jury that, in evaluating if
    these predicate offenses were committed for the common benefit of a criminal
    street gang, this benefit had to be more than reputational, a limitation that
    also did not go into effect until January 1, 2022, as part of the enactment of
    Assembly Bill No. 333. (See § 186.22, subds. (e), (g).)
    Under Sek, Wright and Ramos, the court’s failure to instruct on these
    retroactively applied elements was error. The People do not seriously contest
    this error occurred. Instead, they argue any error was harmless. We turn
    now to a discussion of this issue.
    2. Significant Evidentiary Errors Were Made.
    As our extensive summary of Jackson’s testimony demonstrates, in
    establishing that predicate crimes were committed by gang members and
    that Molina and Jones associated with those individuals—case-specific facts
    that cannot be proven by hearsay under Sanchez and Valencia—Jackson
    relied extensively on evidence that was hearsay, much of it testimonial, and
    for those reasons was inadmissible under Crawford, Sanchez and Valencia.
    Jackson testified about facts derived from such hearsay sources as validation
    sheets, field interviews, field contacts, police reports and out-of-court
    statements, the kind of information that frequently contains testimonial
    hearsay.52 He also testified about other out-of-court sources that he was not
    asked to, and did not, identify, and relied on facts from such sources to assert
    that many individuals were gang members who committed predicate offenses,
    52 See Sanchez, supra, 63 Cal.4th at pp. 694-695 (police reports); cf. id.
    at pp. 672, 696-698 (STEP-notice and possibly field identification or “FI”
    cards); Pearson, supra, 56 Cal.4th at p. 462, quoting Crawford, 
    supra,
    541 U.S. at pp. 51-52.
    145
    engaged in violence, and associated with each other and with Molina and
    Jones.
    Further, the trial court erred by allowing the jury to consider each of
    defendants’ charged crimes as predicate offenses in determining whether that
    defendant was liable for the gang offenses and enhancements, which is now
    prohibited. Also, the jury was allowed to consider the testimony by Jackson
    that Double Rock gang members committed crimes for reputational reasons,
    such as to elevate a member’s individual status in the gang or, in the case of
    defendants’ alleged offenses, to advertise “the gang’s strength and its power.”
    The court should not have allowed the jury to consider any of this evidence
    under the recently modified section 186.22.
    3. The Court’s Errors Were Prejudicial.
    We conclude the court’s instructional and evidentiary errors were
    prejudicial under Chapman.
    The prosecution had no reason to present, and did not focus on
    presenting, evidence that there was an “organized” Double Rock street gang
    whose members “collectively” engaged in a pattern of criminal conduct as
    shown by predicate offenses that did not include those charged in this case
    and which were undertaken for the gang’s common benefit beyond the
    reputational, elements only added recently by Assembly Bill No. 333. Given
    the voluminous amount of criminal activity that Jackson alluded to in his
    testimony, some of which may have been committed by multiple individuals
    together, all of whom Jackson identified as gang members, the prosecution
    may well have been able to establish these elements if it had focused on
    them—provided that they also complied with the confrontation and hearsay
    requirements imposed by Crawford, Sanchez and Valencia. However, the
    prosecution did not comply with these requirements, either.
    146
    When we put aside the inadmissible testimony given by Jackson, we
    are left with a relatively sparse amount of evidence to determine whether the
    number of gang members and predicate crimes necessary to establish the
    existence of the Double Rock street gang were proven and whether Molina
    and Jones were affiliated with the gang. There is admissible evidence that
    several non-defendants (such as Marshall, Marlborough, Perkins and
    Grayson) displayed what Jackson identified as gang tattoos in photographs
    and that Lige and Molina had “Rock in Peace” tattoos that Jackson testified
    were gang tattoos. Jackson testified that numerous people committed
    predicate offenses, but the only admissible evidence of them were abstracts of
    convictions for Belazain, Black, Mims and Jones; of these, there was
    admissible evidence only of Jones’s gang affiliation. This evidence consisted
    of photographs in which Jones was making, or was with others who were
    making, gang signs, and the circumstances surrounding the robberies alleged
    in the present case (but not the alleged murder, since we have vacated
    defendants’ murder convictions), including the gunman’s identification of
    “Double Rock” at the beginning of the attack, the shooter’s reference to
    “Double Rock” after shooting Bailey and the multiple participants. Thus, the
    only predicate offense established by admissible evidence—other than the
    robberies that occurred in the present case—was Jones’s conviction for a
    firearm offense.
    The evidence of Jones’s gang affiliation, besides the predicate offense
    (at which Molina was present), consisted of the photographs and the nature
    of the alleged crimes in the present case committed by Molina, that he was
    present in 2005 at a shooting incident in which Perkins was a suspect and
    that he was depicted in one photograph with a person bearing a “solid” tattoo.
    147
    The evidence of Molina’s gang affiliation, besides his presence when
    Jones was arrested, his “Rock in Peace” tattoo and the nature of the crimes
    alleged in the present case against Jones, consisted of photographs of him
    making, or with others making, gang signs, including one with Marshall, and
    that he was found in a car with Marlborough and an assault rifle.
    Arguably, this evidence is substantial enough to support the jury’s gang
    findings and convictions under the old version of section 186.22, or even
    under the recently modified version. But that is not the question we must
    answer here. Given the instructional errors and the improper admission of
    hearsay and testimonial hearsay evidence here, we must determine whether
    there is sufficient evidence to render these federal constitutional errors
    harmless. As we have discussed in part II of the Discussion section, ante, the
    People, as the beneficiary of these errors, must “prove beyond a reasonable
    doubt that the error complained of did not contribute to the verdict obtained.”
    (Chapman, 
    supra,
     386 U.S. at p. 24.) Reversal is required if there is a
    “ ‘reasonable possibility’ ” that the errors “ ‘might have contributed to the
    conviction.’ ” (Id. at p. 23.) In other words, we must determine whether the
    errors influenced the jury’s determinations. (See People v. Pettie (2017)
    
    16 Cal.App.5th 23
    , 65.) “The test is not whether a hypothetical jury, no
    matter how reasonable or rational, would render the same verdict in the
    absence of the error, but whether there is any reasonable possibility that the
    error might have contributed to the [verdicts] in this case.” (People v. Lewis
    (2006) 
    139 Cal.App.4th 874
    , 887; accord, Pearson, supra, 
    56 Cal.4th 393
    , 463.)
    The People have not provided us with this level of certainty for three
    reasons. As we have indicated, Sergeant Jackson testified to an
    overwhelming amount of hearsay and testimonial hearsay evidence that, if
    believed, established an extensive and disturbing web over several years of
    148
    violent weapons offenses and other offenses committed by numerous Double
    Rock members and associates who were often associating with one another,
    including Molina and Jones. In our view, it very likely this evidence
    influenced the jury’s determinations.
    Further, while the circumstances of the crimes alleged against Molina
    and Jones indicate they may have been gang crimes, the admissible evidence
    does not indicate that any other gang members participated in them (given
    that Lige was not convicted of any of the charges against him). Nor does the
    admissible evidence (other than Jackson’s own opinion) make clear that
    Molina or Jones acted in these crimes to benefit the Double Rock gang.
    For these reasons, we conclude the court’s instructional errors, along
    with the improper admission of significant amounts of hearsay and
    testimonial hearsay evidence, require that we vacate the gang enhancement
    findings and the gang convictions for Molina and Jones.
    4. The People Are Not Barred from Retrying Defendants for
    the Alleged Gang Offenses and Enhancements.
    In his initial briefing, Jones argues, based on the old version of
    section 186.22 and People v. Prunty, supra, 
    63 Cal.4th 59
    , that the
    prosecution did not present sufficient evidence of the existence of a criminal
    street gang. The argument was based on all the evidence, including the
    evidence we now hold was inadmissible under Crawford and Sanchez.
    Presumably, Jones makes this contention in order to argue below that the
    prosecution cannot renew its gang charges and allegations because of Jones’s
    constitutional protection against double jeopardy. (See Lockhart v. Nelson
    (1988) 
    488 U.S. 33
    , 34 “[W]here the evidence offered by the State and
    admitted by the trial court—whether erroneously or not—would have been
    sufficient to sustain a guilty verdict, the Double Jeopardy Clause does not
    preclude retrial”]; accord, People v. Story (2009) 
    45 Cal.4th 1282
    , 1296-1297;
    149
    see also People v. Lara (2017) 
    9 Cal.App.5th 296
    , 328, fn. 17, 335-337
    [appellate court must consider all evidence presented, including improperly
    admitted testimonial hearsay, in deciding whether evidence was sufficient to
    support gang enhancement findings].)
    We disagree. Jones’s arguments in effect ask us to reweigh the
    evidence and reconsider Jackson’s credibility, which are inappropriate under
    a substantial evidence standard of review. (E.g., People v. Nelson (2011)
    
    51 Cal.4th 198
    , 210; People v. Jennings (2010) 
    50 Cal.4th 616
    , 638.) Jones
    ignores or challenges much of Jackson’s testimony, including references to
    such relevant matters as Perkins’s admission that he was a member of the
    Double Rock gang; that gang members displayed distinctive tattoos and hand
    signs signifying their gang membership in various photographs; that gang
    members or associates repeatedly associated with each other; and that gang
    members and associates, together and separately, committed multiple
    predicate offenses and engaged in patterns of activity indicative of a criminal
    street gang.
    In their supplemental briefing, Jones and the People agree that the
    People did not have reason to submit evidence to prove the recently added
    elements to section 186.22 that we have discussed and, therefore, are entitled
    to retry the gang offenses and enhancements to prove these elements. Molina
    does not address the issue. We agree with Jones and the People.
    In short, we conclude that defendants’ constitutional protections
    against double jeopardy do not bar the People from retrying Jones and
    Molina regarding the alleged gang offenses and enhancements.
    150
    V.
    Molina’s Upper-Term Sentences for Counts II, III and IV Must Be
    Vacated Because of the Recent Amendment of Section 1170.
    Molina next argues that the Legislature’s amendment of section 1170,
    subdivision (b) in Senate Bill No. 567 (2021-2022 Reg. Sess.), effective
    January 1, 2022, requires us to vacate the upper term sentences he received
    for counts II (conspiracy to commit robbery), III (the robbery of Bailey) and IV
    (the robbery of Green) and remand these counts to the trial court for
    resentencing.53 The People agree. Molina is correct.
    A. Molina’s Sentences
    As we have outlined in part III of the Background section, ante, the
    trial court sentenced Molina to a total state prison term of 44 years and
    4 months to life, comprised of 25 years to life for the first degree murder of
    Bailey (count I) and 19 years and 4 months to life for the remainder of his
    convictions. Among the determinate sentences, the trial court imposed the
    following, for which the parties agree the amendment to section 1170,
    subdivision (b) is relevant:
    (1) An upper term of five years for count II, conspiracy to commit
    robbery, which the court stayed under section 654.54 In imposing this upper
    53  Molina further argues that the amendment of section 1170,
    subdivision (b) requires that we vacate the sentences he received for the gang
    enhancements included in counts III and IV as well as his count X conviction
    (gang participation). Because we have already vacated the jury’s gang-
    related findings and convictions in part IV of this section, ante, for both
    defendants, we do not address these issues here.
    54 Section 654 states in relevant part: “(a) 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.”
    151
    term, the court indicated that there was “an aggravation stated in the
    presentencing report.”55
    (2) An upper term of five years for count III (the robbery of Bailey),
    which the court also stayed. The court imposed this upper term based on its
    finding that the robbery involved great violence and the threat of great
    violence.
    (3) An upper term of five years for count IV (the robbery of Green)
    based on its finding that “the victim was particularly vulnerable.” The court
    did not stay this sentence, which was to run consecutive to the other
    sentences imposed.
    B. Section 1170, Subdivision (b) As Amended
    At the time of Molina’s sentencing, section 1170, subdivision (b)
    provided in relevant part: “When a judgment of imprisonment is to be
    imposed and the statute specifies three possible terms, the court shall order
    imposition of the middle term, unless there are circumstances in aggravation
    or mitigation of the crime.” (Stats. 2013, ch. 32, § 6.)
    As a result of the Legislature’s enactment of Senate Bill No. 567,
    section 1170, subdivision (b) now provides in relevant part:
    “(1) When a judgment of imprisonment is to be imposed and the
    statute specifies three possible terms, the court shall, in its sound discretion,
    55 That report, relying on California Rules of Court, rule 4.421, which
    outlines circumstances in aggravation, states the following aggravating
    factors: (1) the victim was particularly vulnerable; (2) the defendant engaged
    in violent conduct that indicates a serious danger to society; (3) the crime
    involved great violence, threat of great bodily harm, or other acts disclosing a
    high degree of cruelty, viciousness, or callousness; (4) the crime involved an
    attempted or actual taking or damage of great monetary value; and (5) the
    defendant’s prior performance on probation and/or parole was unsatisfactory.
    152
    order imposition of a sentence not to exceed the middle term, except as
    otherwise provided in paragraph (2).
    “(2) The court may impose a sentence exceeding the middle term only
    when there are circumstances in aggravation of the crime that justify the
    imposition of a term of imprisonment exceeding the middle term, and the
    facts underlying those circumstances have been stipulated to by the
    defendant, or have been found true beyond a reasonable doubt at trial by the
    jury or by the judge in a court trial.”
    As amended, Section 1170, subdivision (b) further provides:
    “(6) Notwithstanding paragraph (1), and unless the court finds that the
    aggravating circumstances outweigh the mitigating circumstances that
    imposition of the lower term would be contrary to the interests of justice, the
    court shall order imposition of the lower term if any of the following was a
    contributing factor in the commission of the offense:
    “(A) The person has experienced psychological, physical, or
    childhood trauma, including, but not limited to, abuse, neglect, exploitation,
    or sexual violence.
    “(B) The person is a youth, or was a youth as defined under
    subdivision (b) of Section 1016.7 at the time of the commission of the offense.
    “(C) Prior to the instant offense, or at the time of the commission
    of the offense, the person is or was a victim of intimate partner violence or
    human trafficking.
    “(7) Paragraph (6) does not preclude the court from imposing the lower
    term even if there is no evidence of those circumstances listed in paragraph
    (6) present.”
    153
    Section 1016.7, incorporated into section 1170, subdivision (b)(6)(B)
    above, provides: “A ‘youth’ for purposes of this section includes any person
    under 26 years of age on the date of the offense committed.”56
    C. Analysis
    The Legislature’s recent amendment of Section 1170, subdivision (b)
    requires us to vacate the upper terms imposed for counts II, III and IV.
    The amendment of section 1170, subdivision (b) is ameliorative, and
    Molina’s case was not final as of the effective date of the new law, January 1,
    2022. We agree with the parties that Molina is entitled to the benefit of this
    amendment because there are no indications that the Legislature intended to
    prevent the retroactive application of this amendment. (Estrada, supra,
    56 Molina was 22 years old at the time of the incident. We need not
    address Molina’s further argument that we should remand these sentencing
    matters to the trial court to consider his age under Assembly Bill No. 124,
    also passed in 2021.
    “During the 2021-2022 legislative term, three bills proposing changes
    to section 1170 in a variety of ways were introduced. They were Assembly
    Bill No. 124 (Stats. 2021, ch. 695, § 5), Assembly Bill No. 1540 (Stats. 2021,
    ch. 719, § 2), and Senate Bill No. 567 (Stats. 2021, ch. 731, § 1.3). All three
    bills were passed by the Legislature in September 2021, and approved by the
    Governor and filed with the Secretary of State on October 8, 2021. Senate
    Bill No. 567 bears the highest chapter number and is presumed to be the last
    of the three approved by the Governor. (Gov. Code, § 9510.) As such, Senate
    Bill No. 567 prevails over Assembly Bill No. 124. (Gov. Code, § 9605,
    subd. (b).) To the extent there are conflicts between the three bills, Senate
    Bill No. 567 takes precedence. (In re Thierry S. (1977) 
    19 Cal.3d 727
    , 738-
    739.) As to subdivision (b)(6)(A) of section 1170, however, the substantive
    language in Assembly Bill No. 124, Senate Bill No. 1540, and Senate Bill
    No. 567 are not in conflict. For ease of discussion, I refer to Assembly Bill
    No. 124 rather than Senate Bill No. 567.” (People v. Banner (2022)
    
    77 Cal.App.5th 226
    , 243, fn. 2 ( conc & dis. opn. of Detjen, Acting P.J.).)
    154
    
    63 Cal.2d 740
    , 745; People v. Conley, supra, 
    63 Cal.4th 646
    , 657; People v.
    Frahs, supra, 
    9 Cal.5th 618
    , 628-629; People v. Superior Court (Lara), supra,
    
    4 Cal.5th 299
    , 308-309.)
    Given the retroactive application of this amendment, the trial court did
    not properly consider all that was necessary to determine the sentences for
    the above counts. The aggravating factors that the court cited in imposing
    upper terms, i.e., great violence (count III), the threat of great violence (also
    count III) and victim vulnerability (count IV), were neither stipulated to by
    Molina nor presented to the jury, and the record does not indicate the jury
    made any findings regarding them. The same is true for the factors listed in
    the presentencing report (see footnote 55, ante, p. 152), which the court cited
    in imposing an upper term for count II. Therefore, under any standard for
    the evaluation of error, Molina has been prejudiced. The upper terms
    imposed for counts II, III and IV are vacated and the case is remanded to the
    trial court for resentencing consistent with this opinion.
    VI.
    Jones’s Claims Regarding the Firearm Enhancement Sentence That
    Accompanies His Conspiracy Conviction
    Jones next makes two claims regarding the jury’s finding that, in
    participating in the robbery conspiracy (count II), he personally used a
    firearm in violation of section 12022.5, subdivision (a), for which the trial
    court imposed a stayed sentence of four years. Jones argues that this
    allegation should be reversed because it cannot as a matter of law be
    attached to a conspiracy charge. This is incorrect. However, we agree with
    Jones that we must vacate the sentence for this enhancement and remand for
    the trial court to exercise its newly authorized discretion under section 1170
    to strike or dismiss this enhancement.
    155
    A. The Firearm Enhancement Was Properly Included in the
    Conspiracy to Commit Robbery Count.
    In supplemental briefing, Jones argues that section 12022.5,
    subdivision (a), which allows this firearm enhancement to accompany
    convictions for felonies and attempted felonies, does not include conspiracy
    within its ambit.
    Section 12022.5, subdivision (a) states in relevant part: “[A]ny person
    who personally uses a firearm in the commission of a felony or attempted
    felony shall be punished by an additional and consecutive term of
    imprisonment in the state prison for 3, 4, or 10 years, unless use of a firearm
    is an element of that offense.”
    Under the conspiracy statute, section 182, two or more persons who
    conspire to commit a felony generally are “punishable in the same manner
    and to the same extent as is provided for the punishment of that felony.”
    (§ 182, subd. (a).) Our Supreme Court recently addressed the question “ ‘to
    what extent a court can attach a special penal provision’ [enhancing the
    penalty for a crime] ‘to conspiracy rather than to the underlying crime
    itself.’ ” (People v. Lopez (2022) 
    12 Cal.5th 957
    , 962 (Lopez).) In Lopez, the
    court opined that courts should “look[] beyond” section 182 to the special
    sentencing statute to ascertain what the Legislature intended in enacting
    that statute. (Lopez, at p. 967.)
    The sentencing statute in Lopez was a provision of the California Street
    Terrorism Enforcement and Prevention (STEP) Act. The STEP Act had been
    amended by initiative to add a sentencing provision imposing an
    indeterminate life term on a person convicted of one of several enumerated
    felonies, with the minimum term of years dependent on the underlying
    felony. (Lopez, supra, 12 Cal.5th at p. 970; § 186.22, subd. (b)(4)(B).)
    156
    The court declined to adopt a bright-line rule based solely on the
    statute because it did not spell out that conspiracy crimes were either
    excluded or included. It rejected the “general rule” urged by the People “that
    section 182 [, subd.] (a) embraces enhancements and other similar penalty
    provisions” unless the statute expressly excludes them. (Lopez, supra,
    12 Cal.5th at pp. 967-968.) It likewise rejected the defendant’s argument
    that the sentencing statute’s failure to expressly include conspiracy crimes
    should end the analysis and dictate that conspiracy crimes were not
    encompassed by the law. (Id. at pp. 971-972.) Rather, the court held the
    appropriate course was to apply “the usual tools of statutory interpretation”
    to ascertain legislative intent. (Id. at pp. 968-969.).
    The court looked at the context of the sentencing provision, as part of a
    broader measure (Proposition 21 (Primary Elec. (Mar. 7, 2000)))
    (Proposition 21) and considered that measure as whole. (Lopez, supra,
    12 Cal.5th at pp. 972-973.) In Proposition 21, it found “particular reason to
    believe that when voters authorized indeterminate life terms as alternative
    penalties for convictions of certain enumerated offenses found to be gang-
    related, they did not intend to sweep in conspiracy convictions as well.”
    (Lopez, at pp. 971-972.) Specifically, other provisions of the initiative
    Proposition 21 expressly referred to conspiracy, including one that imposed
    enhancements of two to five years for a conspiracy to commit certain gang-
    related crimes. (Lopez, at p. 972.) The court identified other provisions
    specifically addressing the law of conspiracy. (Id. at pp. 972-973.) While
    voters had addressed conspiracy law, including providing specific term
    enhancements, “they did not adopt any comparable provision with respect to
    the alternate life penalties prescribed in section 186.22 [,subd.] (b)(4).” (Id. at
    p. 972.) “Under ordinary principles of statutory interpretation, [the court]
    157
    presume[d] this was an intentional choice.” (Ibid., citing In re Jennings
    (2004) 
    34 Cal.4th 254
    , 273 “[‘ “where a statute, with reference to one subject
    contains a given provision, the omission of such provision from a similar
    statute concerning a related subject is significant to show that a different
    legislative intent existed with reference to the different statutes” ’].”)
    The court also considered the “practical considerations” of the law,
    observing that applying the indeterminate life term to all gang-related
    conspiracies would sweep in a broad range of conduct, including merely
    benefiting from a conspiracy without participating in the underlying crimes
    at all. (Lopez, supra, 12 Cal.5th at p. 974.) Those who actively participated
    in the underlying crime, on the other hand, would be subject to a term-of-
    years enhancement, a much less drastic punishment. (See ibid.) Finally,
    doubting that the voters intended such a result, the court looked to the
    legislative history of Proposition 21 and found nothing in that history to
    support the application of the indeterminate life term enhancement to gang-
    related conspiracies. (Lopez, at pp. 974-975.) And, it observed, excluding
    such crimes from that enhancement would not contravene the purpose of the
    statute, since conspirators in gang-crimes would remain subject to serious
    penalties, including a term-of-years enhancement. (Id. at p. 975.)
    The language of section 12022.5, like the sentencing provision in Lopez,
    neither expressly includes nor expressly excludes crimes of conspiracy. It
    applies to use of a firearm in the commission of a felony or attempted felony,
    excepting those for which use of a firearm is an element of the offense.57
    57  There are two exceptions to the exception. Section 12022.5
    subdivision (d) provides, “Notwithstanding the limitation in subdivision (a)
    relating to being an element of the offense, the additional term provided by
    this section shall be imposed for any violation of Section 245 [assault with
    deadly weapon or force likely to cause great bodily injury] if a firearm is used,
    158
    (§ 12022.5, subd. (a).) Robbery is a felony (see §§ 17 [felony is crime
    punishable by imprisonment in state prison], 213(a)(1)(A)&(B) [robbery, with
    certain exceptions, is punishable by imprisonment in state prison for three to
    six years]) as is a conspiracy to commit robbery. (See § 182, subd. (a)
    [persons who conspire to commit most felonies shall be punished “in the same
    manner and to the same extent as is provided for the punishment of that
    felony”].) Thus, the language of section 12022.5 is broad enough to include
    conspiracy to commit robbery. However, under the approach articulated in
    Lopez, we apply the “ordinary principles of statutory interpretation” to that
    statute.
    The gun enhancement statutes currently in effect, including
    sections 12022 and 12022.5, have their roots in the Deadly Weapons Act that
    was first enacted in 1917 and reenacted and amended repeatedly thereafter.
    (People v. McDaniels (1972) 
    25 Cal.App.3d 708
    , 712 (McDaniels).) “The
    provision for an additional period of imprisonment upon conviction of a felony
    while armed with a deadly weapon [now contained in section 12022] first
    appear[ed] in the 1923 version of the act” and “has remained a part of our
    penal law since that date.” (Id. at p. 713, italics added.) Its “ ‘obvious
    legislative purpose’ ” was “ ‘to discourage the use of guns and similar deadly
    weapons in the commission of crimes to minimize the risk of death or serious
    physical injury to the victim; an armed felon is far more dangerous than an
    unarmed one.’ ” (Ibid.)
    Section 12022.5, the statute providing a sentence enhancement for use
    of a gun, was enacted in 1969. (McDaniels, supra, 25 Cal.App.3d at p. 714.)
    It was enacted in part to overcome the limitation imposed by the California
    or for murder if the killing is perpetrated by means of shooting a firearm
    from a motor vehicle, intentionally at another person outside of the vehicle
    with the intent to inflict great bodily injury or death.”
    159
    Supreme Court on the gun arming enhancement by interpreting it not to
    apply to offenses, such as first degree robbery and assault with a deadly
    weapon, for which arming was an element of the offense. (McDaniels, at
    pp. 713-714; see People v. Chambers (1972) 
    7 Cal.3d 666
    , 672 (Chambers).)
    Early on, section 12022.5 provided that “use” of a firearm in the commission
    of six specified felonies, including robbery and assault with a deadly weapon,
    would give rise to a sentence enhancement “ ‘even in those cases where the
    use of a weapon is an element of the offense.’ ” (McDaniels, at pp. 714-715;
    see also Chambers, at pp. 671-672.) The broad purpose of section 12022.5
    was similar to that which motivated the enactment of section 12022 several
    decades earlier. The Legislature sought “to overcome in part the problem
    [created by the Court’s interpretation of section 12022]”) and to create an
    even “greater deterrent upon those who resort to the use of a firearm in the
    commission of specified crimes, including robbery.” (Chambers, at p. 672.)
    The Legislature and the public witnessed an alarming “increase in recent
    years in the number of crimes in which a firearm was used.” (McDaniels, at
    p. 714.)
    While section 12022.5 has been amended in various other respects
    along the way, for example, to broaden the crimes subject to the gun use
    enhancement from the six originally specified to “a felony or attempted
    felony,” increase the number of years added to a sentence by the
    enhancement,58 prohibit trial courts from dismissing, and then afford trial
    58  Compare § 12022.5, subds. (a) & (b) (3, 4 or 10 years for use of
    firearm and 5, 6 or 10 years for use of assault weapon or machine gun) with
    Stats. 1993, ch.611, § 31.5, quoted in In re Tameka C. (2000) 
    22 Cal.4th 190
    ,
    193 ( 3, 4 or 5 years for use of firearm).
    160
    courts discretion to dismiss, the enhancement,59 its fundamental purpose of
    deterring use of guns in crimes has not changed. “At its core
    [section 12022.5] addresses the pervasive and inherent escalation of danger
    which arises from the defendant’s act of deployment. By merely bringing a
    gun ‘into play,’ the defendant removes impediments to its actual discharge
    and thus enhances the danger of violent injury not only through an
    intentional act by the victim or a third party, but through an impulsive or
    inadvertent act by the defendant. It requires no statistical study to know
    that a gun is far more likely to go off while held in the hand than while
    resting in a pocket, holster, or waistband.” (People v. Granado (1996)
    
    49 Cal.App.4th 317
    , 326-327.) This purpose of deterrence and the underlying
    concerns about the risk of death and serious injury posed by criminals’ using
    of guns in connection with criminal activity, have led the courts to construe
    the gun use enhancement broadly. (Chambers, supra, 7 Cal.3d at p. 672
    [although “use” of firearm connotes more than bare potential for use, there
    need not be conduct which actually produces harm but only conduct which
    produces fear of harm or force]; People v. King (1993) 
    5 Cal.4th 59
    , 78-79
    [section 12022.5 permits multiple enhancements for multiple uses of firearm
    on single occasion]; In re Tameka C., supra, 22 Cal.4th at pp. 191-192, 196
    [multiple use enhancements applied to defendant who shot at police officers
    and missed them where same shot hit and injured nearby child].) The same
    considerations support the interpretation of section 12022.5 to apply to
    conspiracy offenses here.
    59 See Assembly Bill No. 1023 (2011-2012 Reg. Sess.), Stats. 2011,
    ch. 296, § 22.5 (§ 12022.5, subd. (c)); Senate Bill No. 620 (2017-2018 Reg.
    Sess.) (Senate Bill No. 620), Stats. 2017, ch. 682, § 1 (§ 12022.5, subd. (c)).
    161
    Other principles of statutory construction further support the
    conclusion that the Legislature intended to include felony conspiracies among
    those to which the gun use enhancement of section 12022.5 applies. One is
    that we construe statutes in pari materia. “It is a basic canon of statutory
    construction that statutes in pari materia should be construed together so
    that all parts of the statutory scheme are given effect. [Citations.] Two
    ‘ “[s]tatutes are considered to be in pari materia when they relate to the same
    person or thing, to the same class of person[s or] things, or have the same
    purpose or object.” ’ ” (Lexin v. Superior Court (2010) 
    47 Cal.4th 1050
    , 1090-
    1091.) Sections 12022 and 12022.5 both address sentence enhancements
    relating to guns used or carried during the commission of felonies. They
    share the same purpose of deterring the presence and use of guns and the
    violence, injury and death that may easily result when they are brought to or
    used during criminal activities. Section 12022.5 was adopted to broaden the
    gun enhancement laws in response to a judicial construction of section 12022
    viewed as too limited. In short, sections 12022 and 12022.5 are in pari
    materia. (McDaniels, supra, 25 Cal.App.3d at p. 712.)
    More than two decades ago, the Court of Appeal construed
    section 12022 to encompass crimes of conspiracy. In People v. Becker (2000)
    
    83 Cal.App.4th 294
     (Becker), the Fourth District held the arming
    enhancement applied to a defendant convicted of conspiracy to commit
    robbery and burglary. Not only is section 12022.5 in pari materia with
    section 12022, its language is parallel to that of section 12022; both
    enhancements apply when a defendant is either armed with, or uses, a
    firearm “in the commission of a felony or attempted felony.” 60 In Becker, the
    60Jones bases his argument primarily on People v. Mares (1975)
    
    51 Cal.App.3d 1013
     (Mares), a case which considers a previous version of
    162
    court rejected the defendant’s argument that a conspiracy was akin to
    solicitation, as to which the Second District had previously held the arming
    enhancement did not apply. (Becker, at pp. 297-298; see People v. Miley
    (1984) 
    158 Cal.App.3d 25
    , 32-33.) The defendant in Miley was convicted of
    soliciting three murders and had a firearm when the solicitation occurred.
    The Second District held “[a] person is ‘armed’ within the meaning of
    section 12022, subdivision (a) when he carries a weapon as an instrument of
    offense or defense at the time of the commission of the felony” and held that
    Miley did not carry the gun for offense or defense at the time of the
    solicitation of the crime for which he provided the weapon to the person he
    solicited. (Miley, at p. 32.) Becker distinguished Miley, observing that, unlike
    solicitation, conspiracy is “the classic example of a continuing offense because
    by its nature it lasts until the final overt act is complete” and that “the period
    during which the arming enhancement may attach to such an offense is very
    section 12022.5, subdivision (a). This previous version applied to persons
    who personally used a firearm in the commission of certain specified felonies
    that did not include any conspiracies. (Mares, at p. 1017; see People v.
    Strickland (1974) 
    11 Cal.3d 946
    , 959 [section 12022.5 “applies only with
    respect to the six felonies specifically enumerated therein,” i.e., robbery,
    assault with a deadly weapon, murder, rape, burglary, or kidnaping]; People
    v. Lee (2003) 
    31 Cal.4th 613
    , 625 [former section 12022.5 applied to “any one
    of several specified felonies”].) The Mares court concluded that the
    defendant’s conspiracy to commit robbery conviction “cannot be held subject
    to the provisions of Penal Code section 12022.5 because conspiracy is not one
    of the crimes enumerated therein.” (Mares, at p. 1023.) As we have
    indicated, section 12022.5 now applies to all felonies and attempted felonies,
    not to a list of specific crimes. Hence, Mares is no longer apposite.
    The same is true of other cases Jones cites for the proposition that the
    absence of a specific reference to conspiracy in section 12022.5,
    subdivision (a) means the Legislature intended its exclusion. Like Mares,
    these cases address statutory language referring to specific crimes.
    163
    broad: So long as the defendant has a weapon for use at any point during the
    course of a continuing offense, his sentence may be enhanced for being
    armed.” (Becker, at pp. 297-298.)
    By the same logic, a use allegation can attach to a conspiracy if a
    defendant uses a weapon at any point during the course of that continuing
    offense. Under the in pari materia doctrine and because the relevant
    language of the arming and use enhancements is identical, we interpret
    section 12022.5 in light of Becker’s interpretation of section 12022.
    Interpretation of section 12022 to encompass conspiracy crimes supports the
    same construction of section 12022.5.
    Our conclusion is further enforced by the presumption that the
    Legislature is aware of decisions interpreting statutes when it adopts or
    amends related statutes. The Legislature has amended sections 12022 and
    12022.5 multiple times since Becker was decided. (See, e.g., Stats. 2010,
    ch. 711, § 5 (Senate Bill No. 1080 (2009-2010 Reg. Sess.)); Stats. 2011, ch. 296,
    §§ 224, 225 (Assembly Bill No. 1023 (2011-2012 Reg. Sess.)); Stats. 2011, ch. 15,
    §§ 506, 508 (Assembly Bill No. 109 (2011-2012 Reg. Sess.)); Stats. 2011, ch. 39,
    §§ 58, 60 (Assembly Bill No. 117 (2011-2012 Reg. Sess.)); Stats. 2013, ch. 76,
    § 166 (Assembly Bill No. 383 (2013-2014 Reg. Sess.)); Stats. 2017, ch. 682, § 1
    (Senate Bill No. 620).) Yet neither statute has been narrowed in a way that
    would limit its reach to exclude crimes of conspiracy. Surely if the Legislature
    did not intend one or both of the statutes to cover conspiracy crimes, it would
    have so amended it.
    Finally, unlike in the special sentencing statute involved in Lopez,
    section 12022.5 does not involve an indeterminate life sentence. Nor has the
    Legislature specifically referred to conspiracy in any other provisions of the
    gun enhancement laws contained in part 4, title 2 of the Penal Code. (See
    §§ 12001, 12022.5, 12022-12022.95.)
    164
    For these reasons, we reject Jones’s argument that the gun use
    enhancement applied to his conviction for conspiracy to commit robbery
    cannot stand.
    B. Remand Is Necessary Regarding the Conspiracy Firearm
    Enhancement Sentence.
    Jones also requests remand for the trial court to consider, under post-
    trial changes to sections 12022.5 and 12022.53 made by Senate Bill No. 620,
    effective January 1, 2018, whether to exercise its newly authorized discretion
    to strike or dismiss the firearm enhancements found true by the jury. When
    we exclude those enhancement findings and sentences that we have already
    ordered vacated in parts II and IV of the Discussion section, ante, Jones’s
    request is relevant to the enhancement allegation finding attached to his
    count II conviction for conspiracy to commit robbery. The People address
    only Jones’s section 12022.53 enhancements and do not address
    section 12022.5. They agree that section 12022.53 as amended by Senate Bill
    No. 620 applies retroactively to Jones, but argue remand is unnecessary
    because the trial record indicates the trial court would not have dismissed
    the firearm enhancements if it had had the discretion to do so. Presumably,
    the People hold the same position regarding section 12022.5 as amended
    under the same statute, Senate Bill No. 620.
    Prior to Senate Bill No. 620, section 12022.5, subdivision (c) prohibited
    courts from striking section 12022.53 enhancements. (Stats. 2017, ch. 682,
    § 1.) Senate Bill No. 620 amended section 12022.5, subdivision (c) to read in
    relevant part: “The court may, in the interest of justice pursuant to
    Section 1385 at the time of sentencing, strike or dismiss an enhancement
    otherwise required to be imposed by this section.” (Stats. 2017, ch. 682, § 1.)
    As both the People and Jones assert, Senate Bill No. 620’s amendments apply
    165
    to Jones because his case is not final. (Estrada, supra, 63 Cal.2d at pp. 747-
    748.)
    The People do not address the count II firearm enhancement allegation
    under section 12022.5 that the jury found to be true against Jones.
    Regarding the section 12022.53 enhancement allegations that the jury found
    to be true against Jones, the People, among other things, cite People v.
    McDaniels (2018) 
    22 Cal.App.5th 420
    . In People v. McDaniels, our colleagues
    in Division One of this court concluded that remand to a trial court for that
    court to determine whether to exercise its new discretion after the passage of
    Senate Bill No. 620 “ ‘ “would be an idle act and is not required” ’ ” if “ ‘ “the
    record shows that the trial court would not have exercised its discretion even
    if it believed it could do so.” ’ ” (People v. McDaniels, at p. 425.)
    The People argue generally that the trial court would not have
    exercised its discretion to strike or dismiss any enhancement because it very
    carefully made its sentencing decisions in an effort to be fair. We disagree in
    that we cannot determine with any certainty whether the court would have
    exercised its sentencing discretion regarding the count II enhancement.
    Therefore, remand is appropriate. (See People v. McDaniels, supra,
    22 Cal.App.5th at p. 425 [remand required “unless the record shows that the
    trial court clearly indicated when it originally sentenced the defendant that it
    would not in any event have stricken a firearm enhancement”].) We will
    remand Jones’s case to the trial court to consider whether to strike or dismiss
    the count II firearm enhancement allegation under section 12022.5 that the
    jury found to be true against Jones.
    166
    VII.
    Jones’s Arguments Regarding Other Enhancement Sentences
    In supplemental briefing, Jones argues that the trial court’s imposition
    of enhancement sentences was erroneous in four respects. An unauthorized
    sentence “is subject to correction by the reviewing court despite the absence
    of an objection by either party in the trial court.” (In re Sheena K. (2007)
    
    40 Cal.4th 875
    , 882, fn. 3; see also, e.g., In re Harris (1993) 
    5 Cal.4th 813
    ,
    842, disapproved on another ground in Shalabi v. City of Fontana (2021)
    
    11 Cal.5th 842
    .) The People agree with three of Jones’s four claims. We
    address each claim separately.
    A. Jones’s 10-Year Enhancement Sentences Under
    Section 186.22, Subdivision (b)(1)(C) for His Robbery
    Convictions Were Improper.
    Jones first argues that we must strike the 10-year enhancement
    sentences the trial court imposed under section 186.22, subdivision (b)(1)(C)
    for his robbery convictions (counts III, IV and V) as prohibited under
    section 12022.53, subdivision (e)(2) in the absence of a jury finding that he
    personally used or discharged a firearm in the robberies. The People agree.
    We have already vacated these enhancement sentences in part IV of the
    Discussion section, ante, because they are gang related. Nonetheless, we
    address this claim to instruct the trial court in any resentencing. We agree
    with the parties that these sentences under section 186, subdivision (b)(1)(C)
    were improper.
    For each of Jones’s three robbery convictions, the trial court imposed
    both a 10-year enhancement sentence under section 12022.53,
    subdivisions (b) and (e) for a principal’s use of a firearm for the benefit of a
    criminal street gang, which we have also vacated as gang-related in part IV
    of the Discussion section, ante, and a 10-year enhancement sentence under
    167
    section 186.22, subdivision (b)(1)(C) for the commission of a violent felony for
    the benefit of a criminal street gang. The court ordered the section 186.22
    enhancement sentence for count III to be stayed, the sentence for count IV to
    run consecutively, and the sentence for count V to run concurrently.
    Section 12022.53, subdivision (e)(2) provides in relevant part: “An
    enhancement for participation in a criminal street gang pursuant to
    Chapter 11 (commencing with Section 186.20) of Title 7 of Part 1 shall not be
    imposed on a person in addition to an enhancement imposed pursuant to this
    subdivision, unless the person personally used or personally discharged a
    firearm in the commission of the offense.” (Italics added.)
    The jury found that Jones personally used a firearm under
    section 12022.5, subdivision (a) in participating in the robbery conspiracy
    (count II) and found that a principal personally used a firearm for the benefit
    of a criminal street gang under section 12022.53, subdivisions (b) and (e) in
    the three robberies. It was not asked to consider whether, and it did not find
    that, Jones personally used a firearm in committing the robberies, and it
    found it was not true that he personally discharged a firearm. In the absence
    of any jury finding that Jones personally used or discharged a firearm in
    committing the three robberies, the 10-year enhancement sentences imposed
    under section 186.22, subdivision (b)(1)(C) for Jones’s robbery convictions
    were improper because they were prohibited by section 12022.53,
    subdivision (e)(2). If the People retry the gang-related enhancement
    allegations and they are found to be true, the court should not reimpose these
    section 186.22 sentences if it also reimposes the enhancement sentences
    under section 12022.53, subdivisions (b) and (e).
    168
    B. Jones’s Stayed, One-Year Enhancement Sentence Under
    Section 12022 for Count III Must Be Vacated.
    Jones next argues that we should strike another sentence the trial court
    imposed with regard to count III, the stayed, one-year enhancement sentence
    under section 12022, subdivision (a)(1) for being armed with a firearm in the
    commission of a felony. Jones rightly points out that the trial court’s
    imposition of this sentence, in addition to the 10-year sentence it imposed
    under section 12022.53 that we have just ordered stricken, violates
    section 12022.53, subdivision (f). That section provides in relevant part: “An
    enhancement involving a firearm specified in Section . . . 12022 . . . shall not
    be imposed on a person in addition to an enhancement imposed pursuant to
    this section.” The People concede the court was in error.
    We vacate this one-year sentence because the court imposed it
    improperly. We do not mean to imply, however, that the trial court is barred
    from reimposing this sentence upon resentencing if doing so is consistent
    with this opinion.
    C. Jones’s Stayed, 10-Year Enhancement Sentence Under
    Section 186.22 for Count VII Must Be Stricken.
    Jones next argues regarding his conviction for assault with a pistol of
    Green (count VII) that the trial court erred by imposing a stayed, 10-year
    enhancement sentence “on the allegation 186.22” in addition to a stayed,
    four-year enhancement sentence under section 186.22, subdivision (b)(1)(A)
    for committing a felony for the benefit of a criminal street gang.
    The court did not further state the basis for this 10-year enhancement
    sentence under section 186.22, but presumably it is for the only enhancement
    allegation the jury found true—the same gang allegation for which the court
    imposed the four-year enhancement—making this 10-year sentence
    erroneously duplicative. In any event, as the People acknowledge, the court
    169
    could not impose a 10-year sentence because Jones’s assault conviction is not
    the violent felony required for imposition of such a sentence under
    section 186.22, subdivision (b)(1)(C) and section 667, subdivision (c).
    Therefore, we order that this 10-year enhancement sentence be stricken and
    not reimposed in resentencing.
    D. Jones Has Forfeited His Section 1385 Claim.
    Finally, Jones, in one sentence, argues that the trial court violated
    section 1385, subdivision (c)(3)(B) to (c)(3)(C). Section 1385, subdivision (c),
    effective January 1, 2022, instructs trial courts, in exercising their sentencing
    discretion, to consider and afford great weight in favor of the dismissal of
    enhancements that are beyond a single enhancement or which application
    will result in a sentence of over 20 years, unless the court finds that
    dismissal endangers public safety. (§ 1385, subds. (c)(2), (c)(3)(B) & (C).)
    The retroactive application of these newly adopted section 1385
    provisions to Jones’s case is in doubt, however, because, unlike the other
    recent statutory amendments that we have discussed, section 1385,
    subdivision (c)(7) provides: “This subdivision shall apply to sentencings
    occurring after the effective date of the act that added this subdivision.”
    Jones fails to address this provision and indeed, fails to provide a reasoned
    argument at all. An appellant has the burden “to support claims of error
    with meaningful argument and citation to authority. [Citations.] When legal
    argument with citation to authority is not furnished on a particular point, we
    may treat the point as forfeited and pass it without consideration. . . . We are
    not required to examine undeveloped claims or supply arguments for the
    litigants.” (Allen v. City of Sacramento (2015) 
    234 Cal.App.4th 41
    , 52.)
    Accordingly, we disregard Jones’s section 1385 argument as forfeited. That
    170
    said, this does not mean that on resentencing after any retrial the court will
    not be bound by this section as amended.61
    DISPOSITION
    The judgments are affirmed, except that we:
    (1) vacate defendants’ first degree murder convictions as discussed in
    part II of the Discussion section, ante, and remand for resentencing or retrial;
    (2) vacate the gang enhancement allegation findings and convictions
    discussed in subpart IV.A of the Discussion section, ante, which include:
    (a) the enhancement allegations found to be true under
    section 186.22, subdivision (b)(1) regarding Molina and Jones and the related
    sentences,
    (b) the enhancement allegations found to be true under
    section 12022.53, subdivisions (b) and (e)(1) regarding Jones and related the
    sentences, and
    (c) the count X convictions under section 186.22, subdivision (a)
    regarding Molina and Jones, and the related sentences; and
    (3) vacate Molina’s upper-term sentences for counts II, III and IV as
    discussed in part V of the Discussion section, ante;
    (4) remand Jones’s firearm enhancement sentence attached to his
    robbery conspiracy conviction (count II), as discussed in subpart VI.B of the
    Discussion section, ante;
    (5) instruct the trial court that Jones’s 10-year enhancement sentences
    under section 186.22, subdivision (b)(1)(C) that are part of his robbery
    61  Jones also argues separate from these sentencing issues that the
    cumulative errors below require that we reverse his convictions, arguing in
    particular that the combination of errors regarding Biggins’s preliminary
    hearing testimony and the gang expert testimony was highly prejudicial. In
    light of our conclusion that Biggins’s testimony was properly admitted at
    trial, we conclude his cumulative error argument lacks merit.
    171
    convictions (counts III, IV and V), which we have vacated as gang-related
    under part IV of the Discussion section, ante, were improper, as discussed in
    subpart VII.A of the Discussion section, ante;
    (6) vacate Jones’s stayed, one-year enhancement sentence under
    section 12022 that is a part of his count III robbery conviction, as discussed in
    subpart VII.B of the Discussion section, ante; and
    (7) strike Jones’s stayed, 10-year enhancement sentence under
    section 186.22 for count VII and order that it not be reimposed in any
    resentencing, as discussed in subpart VII.C of the Discussion section, ante.
    We remand this case to the trial court for retrial if the district attorney
    chooses to retry any of the reversed charges or enhancements and
    resentencing consistent with this opinion. Upon resentencing, the court
    should prepare amended abstracts of judgment that accurately reflect all of
    Jones’s and Molina’s sentences and provide a copy of these amended
    abstracts of judgment to the California Department of Corrections and
    Rehabilitation.
    172
    STEWART, J.
    We concur.
    RICHMAN, Acting P.J.
    MILLER, J.
    People v. Molina, People v. Jones (A147875, A147925)
    173