People v. Casillas CA2/7 ( 2022 )


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  • Filed 6/20/22 P. v. Casillas CA2/7
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
    California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
    not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
    has not been certified for publication or ordered published for purposes of rule 8.1115.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION SEVEN
    THE PEOPLE,                                               B306934
    Plaintiff and Respondent,                       (Los Angeles County
    Super. Ct. No. KA098865-02)
    v.
    FRANCISCO JAVIER
    CASILLAS,
    Defendant and Appellant.
    APPEAL from a judgment of the Superior Court of Los
    Angeles County, Steven D. Blades, Judge. Remanded with
    directions.
    Rudolph J. Alejo, under appointment by the Court of
    Appeal, for Defendant and Appellant.
    Rob Bonta, Attorney General, Lance E. Winters, Chief
    Assistant Attorney General, Susan Sullivan Pithey, Senior
    Assistant Attorney General, Amanda V. Lopez and Allison H.
    Chung, Deputy Attorneys General, for Plaintiff and Respondent.
    ______________________
    INTRODUCTION
    A jury convicted Francisco Javier Casillas of three counts of
    attempted premeditated murder, three counts of assault with a
    semiautomatic firearm and one count of carrying a loaded
    firearm while an active gang member. The jury also found true
    the allegations supporting firearm and gang enhancements.
    Casillas appealed, asserting instructional, sentencing and
    cumulative errors.
    During the pendency of his appeal, the Legislature
    amended various statutory provisions governing gang
    enhancements and the requisite proof for gang-related crimes.
    The parties agree Casillas is entitled to the retroactive benefit of
    certain of these changes, necessitating the vacatur of his
    conviction for carrying a loaded firearm while an active gang
    member and other gang enhancements. The parties also agree
    the trial court erred in imposing a 15-year minimum parole
    eligibility period on the attempted murder counts.
    We vacate the gang enhancement findings, vacate the
    firearm enhancement findings under section 12022.53 (but not
    the firearm enhancements on the aggravated assault counts),
    strike the 15-year parole eligibility minimum, reverse the gang
    crime conviction and remand to provide the People an
    opportunity to retry the enhancements and the gang crime count
    pursuant to these new statutory requirements. If the People
    elect not to retry Casillas, the trial court shall resentence him
    accordingly. We otherwise affirm Casillas’s conviction for
    attempted murder and assault.
    2
    FACTUAL AND PROCEDURAL BACKGROUND
    A. Casillas and His Friend Open Fire in a Liquor Store
    Parking Lot
    On the evening of July 4, 2012, Casillas and his friend
    Raymond Montanez went to a liquor store in the City of Pomona
    to buy beer. While they were inside, the store’s external
    surveillance cameras captured a silver sedan pulling into the
    parking lot and parking to the right of Casillas’s dark sedan. As
    Casillas and Montanez exited the store, they walked in front of
    the silver sedan as they headed to Casillas’s car. Montanez got
    into the front passenger seat, and Casillas got into the driver’s
    seat of his car. Three unidentified men (Does 1-3) exited the
    silver sedan and began walking in the direction of the store
    before turning toward Casillas’s car as it was reversing out of its
    parking spot. Montanez’s window rolled down, and some sort of
    exchange, verbal or visual, transpired between Montanez and the
    Does. Casillas stopped his car when it was nearly perpendicular
    to, and blocking, the parked silver sedan. Both Casillas and
    Montanez got out. Casillas walked toward the back of his car,
    while Montanez exited on the passenger side, which was closest
    to the Does and their vehicle. The Does began backing away from
    Casillas and Montanez, toward the liquor store, and moved
    behind the passenger side of their own car. What happened next
    occurred quickly and was captured on the liquor store
    surveillance video camera in granulated pixelation, without
    audio. The critical details were vigorously contested between the
    parties at trial and remain so on appeal.
    At trial, Casillas’s attorney asserted Doe 1 pulled a gun and
    “point[ed] that gun in the direction of either Montanez or
    Casillas” and Casillas fired to defend himself and Montanez
    “from being shot and possibly killed.” The prosecutor posited
    3
    that Casillas and Montanez implicitly or verbally agreed, while
    still in the car, that “they were about to get into a gunfight” and
    then “[Casillas] walks around the rear of his car and immediately
    opens fire.” On appeal the People suggest that Doe 1 “pointed
    toward” Montanez and Montanez ducked down.
    What is undisputed is that Casillas and Montanez
    collectively fired 15 rounds from their .40 caliber semiautomatics
    in a matter of seconds as Does 1 and 3 dove for cover behind the
    silver sedan and Doe 2 ran away. Casillas and Montanez
    promptly jumped back into Casillas’s car and sped away. Doe 1
    began shooting, firing a total of 14 rounds from a .9 millimeter
    semiautomatic firearm at Casillas’s fleeing vehicle. All three
    Does got into and then quickly exited their sedan before Does 1
    and 3 ran from the parking lot. Doe 2 surveyed the sedan’s
    exterior and drove away.
    Meanwhile, inside the store, Atalla Trad was working as a
    clerk. Trad heard what he believed to be the sound of fireworks
    until he looked and saw his arm dripping with blood from a
    gunshot wound. Paramedics transported Trad via ambulance to
    the hospital, where he spent 10 days and received five surgical
    staples in his arm.
    Approximately six years later, in 2018, Casillas was
    arrested in Hawaii and extradited to California.
    B. Casillas Is Charged, Tried, Convicted and Sentenced
    In March 2020 the Los Angeles County District Attorney
    filed an eight-count1 amended information charging Casillas with
    carrying a loaded firearm while an active street gang member
    1     For purposes of the verdict forms at trial, counts 2 through
    9 were listed as counts 1 through 8.
    4
    (Pen. Code,2 § 25850, subd. (a); count 2), attempted willful,
    deliberate, and premeditated murder (§§ 664, 187, subd. (a);
    counts 3-5), assault with a semiautomatic firearm (§ 245, subd.
    (b); counts 6-8) and shooting at an occupied building (§ 246; count
    9). As to counts 3, 4 and 5 it was further alleged that a principal
    personally and intentionally discharged a firearm, which
    proximately caused great bodily injury to Trad (§ 12022.53,
    subds. (b)-(d), (e)(1)). Regarding counts 6, 7 and 8 it was further
    alleged Casillas personally used a firearm in the commission of
    the offenses (§ 12022.5, subd. (a)). Finally, for all counts, it was
    alleged the offenses were committed for the benefit of the gang
    (§ 186.22, subds. (b)(1)(A), (b)(1)(C), (b)(4)). Casillas pleaded not
    guilty and denied the special allegations.
    At trial,3 Detective Andrew Bebon, a veteran of the Pomona
    Police Department, testified as an expert on criminal street gangs
    in the City of Pomona. Bebon identified Casillas and Montanez
    on the liquor store surveillance videos and opined Casillas and
    Montanez were “absolutely” members of a criminal street gang
    known as the Pomona 12th Street Sharkies and had the gang
    monikers of “Lil Cisko” and “Drunx” respectively.4 According to
    Bebon, the Sharkies are predominately Hispanic and the oldest
    2     Undesignated statutory references are to the Penal Code.
    3     Montanez was separately arrested and taken into federal
    custody; he was not tried with Casillas, nor did he testify at
    Casillas’s trial. The jury was instructed not to speculate as to his
    absence.
    4     Casillas’s trial counsel conceded Casillas “associated with
    members of 12th Street Sharkies” and was “not going to
    challenge” the testimony that Casillas was a gang member.
    5
    gang operating in Pomona, dating back to the 1940’s. Their
    primary activities include the sale and distribution of narcotics,
    extortion and engaging in acts of violence for the purpose of
    instilling fear and intimidation in the community and amongst
    other gangs in order to reinforce their reputation and control
    their geographic area. Bebon testified the liquor store was on the
    edge of the Sharkies’ territory, bordering that of their bitter rival
    Olive Street, another Hispanic gang. In Bebon’s opinion, if
    members of these two rival gangs encountered one another in
    public, he would expect whoever is “strapped” (carrying a
    firearm) to start shooting. Bebon further opined that if a gang
    member goes unarmed into enemy territory, or close to it, he or
    she is said to be “caught slippin’”—a situation gang members
    typically avoid so as not to be murdered. Bebon testified Casillas
    and Montanez were part of the same subset or “crew” within the
    Sharkies, which had a reputation as the most feared, and
    fearless, killers in the city who sought to take control of the drug
    trade in Pomona.
    Casillas did not testify, and the defense did not call any
    other witnesses. Casillas’s trial counsel argued Casillas fired
    only in self-defense, or in defense of Montanez, after Doe 1 raised
    his firearm in the direction of Montanez or Casillas. The liquor
    store surveillance videos were played for the jury, and the
    relevant footage was available for the jury’s review during their
    deliberations.
    The jury convicted Casillas on counts 1 through 7 and
    found the firearm and gang allegations to be true. The court
    declared a mistrial as to count 8 due to jury deadlock.
    The trial court sentenced Casillas to state prison for an
    aggregate term of 127 years to life. The sentence was comprised
    6
    of the following terms: on count 2, seven years (the upper term of
    three years, plus four years pursuant to section 186.22,
    subdivision (b)(1)(A)); on counts 3-5, consecutive life terms plus
    25 years to life pursuant to section 12022.53, subdivisions (d) and
    (e)(1), plus a minimum parole eligibility period of 15 years
    pursuant to section 186.22, subdivision (b)(5); and on counts 6-8,
    concurrent upper terms of nine years, stayed pursuant to section
    654, plus 10-year concurrent gang and firearm enhancements,
    stayed pursuant to section 654.
    Casillas appealed.
    DISCUSSION
    A. Standard of Review
    In assessing whether jury instructions correctly state the
    law, we apply a de novo standard of review. (People v. Mitchell
    (2019) 
    7 Cal.5th 561
    , 579; People v. Posey (2004) 
    32 Cal.4th 193
    ,
    218; accord, People v. Morales (2021) 
    69 Cal.App.5th 978
    , 990.)
    “‘A court’s discretionary decision to dismiss or strike a sentencing
    allegation under section 1385 is’ reviewable for abuse of
    discretion.” (People v. Carmony (2004) 
    33 Cal.4th 367
    , 373;
    accord, People v. Pearson (2019) 
    38 Cal.App.5th 112
    , 116.)
    B. The Jury Instruction on Justifiable Homicide Was
    Correct
    The trial court, with no objection from defense counsel,
    instructed the jury on the elements of perfect self-defense in
    accordance with CALCRIM No. 505.5 The instruction stated, in
    pertinent part: “The defendant is not guilty of attempted
    5     The trial court and the parties augmented the pattern jury
    instruction slightly to reflect that the crimes at issue here were
    attempted murder and attempted manslaughter.
    7
    murder, attempted manslaughter, assault with a semiautomatic
    firearm, and shooting at an occupied building if he was justified
    in attempting to kill someone in self-defense or defense of
    another. The defendant acted in lawful self-defense or defense of
    another if: [¶] 1. The defendant reasonably believed that he or
    someone else was in imminent danger of being killed or suffering
    great bodily injury. [¶] 2. The defendant reasonably believed that
    the immediate use of deadly force was necessary to defend
    against that danger. [¶] AND [¶] 3. The defendant used no more
    force than was reasonably necessary to defend against that
    danger. . . . Defendant’s belief must have been reasonable and he
    must have acted only because of that belief. . . .” (Italics added.)
    Casillas asserts the requirements that a defendant’s belief
    was reasonable, and he or she acted only because of that belief,
    only applies to claims of self-defense under section 197,
    subdivisions (2) and (3). Casillas argues the trial court’s use of
    CALCRIM No. 505 thus improperly imposed the italicized
    limitations (found in section 198) on his claim of self-defense
    under section 197, subdivision (1). Casillas’s argument is
    predicated on the interplay between sections 197 and 198.
    Section 197 in relevant part provides: “Homicide is
    justifiable when committed by any person in any of the following
    cases: [¶] (1) When resisting any attempt to murder any person,
    or to commit a felony, or to do some great bodily injury upon any
    person. [¶] (2) When committed in defense of habitation,
    property, or person, against one who manifestly intends or
    endeavors, by violence or surprise, to commit a felony . . . . [¶] (3)
    When committed in the lawful defense of such person . . . when
    there is a reasonable ground to apprehend a design to commit a
    felony or to do some great bodily injury, and imminent danger of
    8
    such design being accomplished; but such person, or the person in
    whose behalf the defense was made, if he or she was the assailant
    or engaged in mutual combat, must really and in good faith have
    endeavored to decline any further struggle before the homicide
    was committed . . . .”
    Section 198 provides: “A bare fear of the commission of any
    of the offenses mentioned in subdivisions 2 and 3 of Section 197,
    to prevent which homicide may be lawfully committed, is not
    sufficient to justify it. But the circumstances must be sufficient
    to excite the fears of a reasonable person, and the party killing
    must have acted under the influence of such fears alone.”
    Casillas argues the limitations of section 198 (i.e., that a
    defendant’s fear was objectively reasonable, and he or she killed
    solely because of that fear), do not apply to a claim of felony-
    resistance self-defense under section 197, subdivision (1), because
    section 198 only refers to subdivisions (2) and (3). Casillas
    further asserts that “[f]or more than 140 years, a California
    defendant has been entitled to rely on self-defense or defense of
    another while resisting an actual attempt to kill or cause him
    great bodily injury regardless of whether there may have been
    other motives for his actions as well.” Thus, according to
    Casillas, giving CALCRIM No. 505 here, in a purported section
    197, subdivision (1) case, constituted constitutional error, and his
    convictions on counts 3 through 8 must be reversed. 6 We
    disagree.
    6      As a threshold matter, despite the People’s assertion to the
    contrary, Casillas did not forfeit this argument by failing to raise
    it before the trial court. Generally, a party seeking additions to,
    or clarifications of, otherwise legally sound jury instructions,
    must first do so in the trial court, or forfeit the claim. (People v.
    9
    In People v. Trevino, the Court of Appeal rejected an
    attempt to parse the language of section 198 and apply its
    qualifications only to section 197, subdivisions (2) and (3).
    (People v. Trevino (1988) 
    200 Cal.App.3d 874
    , 878 (Trevino).)
    Trevino found the law “settled that ‘[t]o be exculpated on a theory
    of self-defense one must have an honest and reasonable belief in
    the need to defend. [Citations.] A bare fear is not enough; “the
    circumstances must be sufficient to excite the fears of a
    reasonable person, and the party killing must have acted under
    the influence of such fears alone.” (Pen. Code § 198.)’ [Citations.]
    Hence, an instruction which states that the party killing must act
    under the influence of such fears alone, is a correct statement of
    the law.”’ (Id. at pp. 878-879; accord, People v. Vernon (1925) 
    71 Cal.App. 628
    , 629 [“the use of the word ‘alone’ . . . limits the right
    to take the life of another in self-defense to cases where the act is
    done under the influence of fear of the danger designed. . . .
    [which is] a correct statement of the law, and conforms to the
    provisions of sections 197 and 198”].) Trevino explained “we do
    not mean to imply that a person who feels anger or even hatred
    toward the person killed, may never justifiably use deadly force
    in self-defense.” (Id. at p. 879.) Indeed, “it would be
    unreasonable to require the absence of any feelings other than
    fear, before the homicide could be considered justifiable. . . .
    Instead, the law requires that the party killing act out of fear
    alone. . . . The party killing is not precluded from feeling anger or
    other emotions save and except for fear; however, those other
    Hudson (2006) 
    38 Cal.4th 1002
    , 1011-1012.) However, here,
    because Casillas argues the instruction was an incorrect
    statement of the applicable law, he may raise the issue for the
    first time on appeal. (Id. at p. 1012.)
    10
    emotions cannot be causal factors in his decision to use deadly
    force. If they are, the homicide cannot be justified on a theory of
    self-defense. But if the only causation of the killing was the
    reasonable fear that there was imminent danger of death or great
    bodily injury, then the use of deadly force in self-defense is
    proper, regardless of what other emotions the party who kills
    may have been feeling, but not acting upon.” (Ibid.)
    More recently, the California Supreme Court endorsed the
    holding in Trevino and its analysis of the statutory phrase “such
    fears alone.” (See People v. Nguyen (2015) 
    61 Cal.4th 1015
    , 1045
    (Nguyen) [citing section 197, subdivisions (1) and (2), along with
    section 198 in discussing the law of perfect self-defense].)7 The
    Supreme Court explained “Trevino clarified that this rule does
    not ‘imply that a person who feels anger or even hatred toward
    the person killed, may never justifiably use deadly force in self-
    defense.’” (Nguyen, at p. 1045.) Consistent with the Supreme
    Court’s holding in Nguyen, we agree with Trevino’s summation of
    the law of perfect self-defense and reject Casillas’s attempt to
    parse the language of section 198 to exempt certain claims of self-
    defense from its qualifications.
    Casillas also argues the jury should have been instructed
    on perfect self-defense using only CALJIC No. 5.10,8 which he
    asserts generally reflects the language of section 197, subdivision
    7      Casillas did not address or attempt to distinguish either
    Trevino, supra, 200 Cal.App.3d at pp. 878-880 or Nguyen, supra,
    61 Cal.4th at p. 1045 in his opening brief and did not file a reply
    brief.
    8    CALJIC No. 5.10 provides: “Homicide is justifiable and not
    unlawful when committed by any person who is resisting an
    attempt to commit a forcible and atrocious crime.”
    11
    (1). However, the Court of Appeal in People v. Barillas (1996) 
    49 Cal.App.4th 1012
    , 1022-1023 referred to CALJIC No. 5.10 as
    mere “surplusage,” which “added nothing to the other
    instructions, and should not have been given,” where the jury
    received multiple self-defense instructions, including CALJIC No.
    5.12 [Justifiable Homicide in Self-Defense], which we note
    expressly incorporates the limitations of section 198.9 Perhaps
    unsurprisingly, there is no CALCRIM instruction analogous to
    the “surplusage” of CALJIC No. 5.10. Rather, CALCRIM No. 505
    is the applicable, complete instruction for perfect self-defense and
    the trial court did not err in instructing the jury accordingly.
    9      CALJIC No. 5.12 provides: “The killing of another person
    in self-defense is justifiable and not unlawful when the person
    who does the killing actually and reasonably believes: [¶] 1. That
    there is imminent danger that the other person will either kill
    [him][her] or cause great bodily injury; and [¶] 2. That it is
    necessary under the circumstances for [him][her] to use in self-
    defense force or means that might cause the death of other
    person for the purpose of avoiding death or great bodily injury to
    [himself][herself]. [¶] A bare fear of death or great bodily injury is
    not sufficient to justify a homicide. To justify taking the life of
    another in self-defense, the circumstances must be such as would
    excite the fears of a reasonable person placed in a similar
    position, and the party killing must act under the influence of
    those fears alone. The danger must be apparent, present,
    immediate and instantly dealt with, or must so appear at the
    time to the slayer as a reasonable person, and the killing must be
    done under a well-founded belief that it is necessary to save one’s
    self from death or great bodily harm.”
    12
    Casillas relies on People v. Morine10 (1882) 
    61 Cal. 367
    , 371
    and People v. Young (1963) 
    214 Cal.App.2d 641
    , 644 for the
    proposition that “the jury need not make either of the inquiries
    required by section 198 . . . under section 197, subdivision 1.”
    Casillas’s reliance is misplaced. In People v. Young, the
    erroneously excluded jury instructions included the predecessor
    versions of both CALJIC 5.10 and 5.12, the latter of which
    incorporates the same limitations found in section 198, i.e., that
    one’s fear must be reasonable and the sole motivation for killing.
    (People v. Young, supra, 214 Cal.App.2d at pp. 643-644, fn. 2.)
    Likewise, in People v. Morine, supra, 61 Cal. at p. 371, while the
    trial court instructed the jury using the language of section 197,
    subdivision (1), it also incorporated subdivision (3), and section
    198. Thus, neither Young nor Morine stands for the proposition
    that a jury may properly be instructed on CALJIC 5.10 alone,
    divorced from the well-settled qualifications on perfect self-
    defense codified in section 198. And it is not definitive that
    CALJIC No. 5.10, standing alone, does not expressly include the
    section 198 qualifications contained in CALJIC Nos. 5.12 and
    5.14, because as Morine notes when evaluating the accuracy of
    jury instructions, ‘“[w]e must take the charge together, and if
    without straining any portion of the language, it harmonizes as a
    whole, and fairly and correctly presents the law bearing on the
    issues tried, we will not disturb the judgment because a separate
    instruction does not contain all the conditions and limitations
    10    In his brief Casillas cites to People v. Lewis (1882) 
    61 Cal. 367
    , a case with the same reporter cite as People v. Morine. We
    assume Casillas intended to cite Morine, as Lewis does not
    address the issues relevant here.
    13
    which are to be gathered from the entire text.’” (61 Cal. at
    p. 370.)
    Casillas further argues that when the trial court instructed
    the jury with CALCRIM No. 505 it constituted an ex post facto
    violation because the instruction retroactively abolished a
    defense that existed in 2012 when the events occurred in this
    case. Casillas’s invocation of the ex post facto clause is inapposite
    here.
    In order to establish perfect self-defense under California
    law “[i]t must appear that the circumstances were sufficient to
    excite the fears of a reasonable person, and that the party killing
    really acted under the influence of those fears, and not in a spirit
    of revenge.” (Stats. 1850, ch. 99, § 30, p. 232.) CALCRIM No.
    505 did not operate to eliminate or augment any pre-existing
    defense but rather was an accurate statement of the law of self-
    defense as it exists now and when these events occurred in 2012.
    C. The Trial Court Was Not Required To Instruct on
    Principles of Aiding and Abetting
    Casillas asserts the trial court was obligated sua sponte to
    give instructions on aiding and abetting liability after the
    prosecutor made certain comments in his closing argument and
    rebuttal, and the failure to do so amounted to reversible error. In
    his closing argument, the prosecutor argued self-defense was not
    applicable “given that [Casillas] and [Montanez] were the initial
    aggressors in this case.” Casillas takes issue with the following
    excerpt from the prosecutor’s rebuttal: “Defense counsel also
    argued that there’s no evidence of a gun in [Montanez’s] hand
    when the window goes down and when he opened the front
    passenger door. If that were the case, why does John Doe 2, the
    driver, flee towards the liquor store? What causes a man like
    14
    that to run for safety? In this case there could only be one
    answer to that, and that is that the driver knew that there [were]
    impending gunshots coming, that he had to flee for his life
    because he probably was unarmed and did not have a gun on
    him. When he sees Raymond Montanez begin to open that door,
    roll down that window, it’s because Montanez, or Drunx, had a
    gun, and that [Casillas] was already out of the driver’s seat
    walking around, and that the driver knew what was about to
    happen. That is circumstantial evidence that [Montanez] had a
    gun and was initiating the gun battle.”
    Casillas contends the aiding and abetting instructions were
    necessary “after the prosecutor argued that [Casillas’s] friend’s
    conduct could cause him to lose his rights to perfect self-defense
    and defense of another.” Casillas claims without the benefit of
    instructions on aiding and abetting “the jury was simply left with
    the prosecutor’s ‘Well, his friend started it, so self-defense does
    not apply’ argument.” Casillas insists “[t]he prosecutor’s
    comments make clear that he sought to hold [Casillas]
    responsible for Montanez’s conduct under an accomplice theory of
    liability.” Casillas is incorrect.
    When we review a claim of instructional error de novo, we
    “must consider whether there is a reasonable likelihood that the
    trial court’s instructions caused the jury to misapply the law in
    violation of the Constitution.” (People v. Mitchell, supra, 7
    Cal.5th at p. 579.) The instructional challenge “is viewed ‘in the
    context of the instructions as a whole and the trial record to
    determine whether there is a reasonable likelihood the jury
    applied the instruction in an impermissible manner.’” (Ibid.) “‘It
    is settled that in criminal cases, even in the absence of a request,
    the trial court must instruct on general principles of law relevant
    15
    to the issues raised by the evidence. [Citations.] The general
    principles of law governing the case are those principles closely
    and openly connected with the facts before the court, and which
    are necessary for the jury’s understanding of the case.”’ (People v.
    Diaz (2015) 
    60 Cal.4th 1176
    , 1189.)
    “In particular, instructions delineating an aiding and
    abetting theory of liability must be given when such derivative
    culpability ‘form[s] a part of the prosecution’s theory of criminal
    liability and substantial evidence supports the theory.’” (People
    v. Delgado (2013) 
    56 Cal.4th 480
    , 488; see People v. Prettyman
    (1996) 
    14 Cal.4th 248
    , 259 [“[a]ccomplice liability is ‘derivative,’
    that is, it results from an act by the perpetrator to which the
    accomplice contributed”].) However, “the jury need not receive
    instructions on aiding and abetting when the prosecutor tries the
    case on the theory that the defendant was one of the direct
    perpetrators of the crime, neither side relies on an aiding and
    abetting theory, and no evidence is presented suggesting that the
    defendant acted merely as an aider and abettor of the crimes.”
    (People v. Whitmer (2014) 
    230 Cal.App.4th 906
    , 926; see People v.
    Young (2005) 
    34 Cal.4th 1149
    , 1201 [“[i]nstructions on aiding and
    abetting are not required where ‘[t]he defendant was not tried as
    an aider and abettor, [and] there was no evidence to support such
    a theory”].)
    Here, the prosecution’s theory was that both Casillas and
    Montanez were working in concert as direct perpetrators:
    “What’s also relevant here is that as [Montanez] exits the car,
    simultaneously [Casillas] also exits the driver’s area. You see,
    it’s not that [Casillas] was in the driver’s seat unaware of
    [Montanez’s] intentions. . . . [Casillas] simultaneously, in tandem,
    working together, exited the driver’s seat to walk around the car.
    16
    . . ., whether they said it verbally to one another, or understood it
    implicitly, that they were about to get into a gunfight. Watch as
    [Casillas] walks around the rear of his car and immediately opens
    fire.” Casillas’s actions showing his direct participation were
    captured on video: Casillas was the driver, he stopped the car
    rather than continuing to drive away and he fired his own
    weapon multiple times at the three Does before jumping back
    into the car and speeding away.
    Casillas posits that “[t]he trial court’s failure to provide
    CALCRIM No. 401 [Aiding and Abetting: Intended Crimes]
    allowed the jury to create its own homespun theory of accomplice
    liability.” But, the jury was instructed on the principles and
    limitations of accomplice liability, albeit in relation to count 2, to
    prove that Casillas aided and abetted felonious criminal conduct
    by Montanez. Given that instruction, it is unreasonable to
    assume the jurors resorted to “homespun” principles of
    accomplice liability.
    In any event, as discussed, the prosecutor had no reason to,
    and indeed did not, resort to arguing derivative accomplice
    liability because there was undisputed video evidence that
    Casillas was a direct, active participant in the crime. When
    Casillas backed his car out of the parking space at the liquor
    store, he could have simply driven away and not engaged the
    Does. Instead, as Casillas reversed, his passenger window
    lowered, and an exchange occurred with the Does. Casillas still
    had the option to drive away but he elected to stop and then park
    his car in a manner that blocked the Does’s sedan. As the Does
    backed away, Casillas exited his car with a gun, quickly moved to
    the rear of his vehicle and began firing at the Does. (See People
    v. Sassounian (1986) 
    182 Cal.App.3d 361
    , 404 [“the record herein
    17
    reflects that the defendant was not tried as an aider and abettor,
    but as one of the direct and active participants in this crime”].)
    The jury was fully informed and properly instructed
    regarding Casillas’s self-defense theory; the jury rejected that
    theory, finding Casillas guilty of three counts of attempted,
    premediated, deliberate murder. The prosecutor’s isolated
    comment that Montanez “initiat[ed] this gun battle,” when
    elsewhere he specifically cast both Montanez and Casillas as
    active participants working together to engage the Does in a gun
    fight, could not reasonably have misled the jury into improperly
    convicting Casillas pursuant to accomplice liability. (See People
    v. Sassounian, supra, 182 Cal.App.3d at p. 404 [“the sole basis for
    the defendant’s conviction was that he was the actual perpetrator
    of the offense, and that ‘under no reasonable hypothesis’ could
    the jury have been misled into convicting on an aiding and
    abetting theory”].) Accordingly, the court did not err in omitting
    instructions on aiding and abetting.11
    D. Assembly Bill 333 Requires Reversal of the Gang
    Enhancements and Count 2 (Carrying a Loaded Firearm
    While an Active Gang Member)
    “Section 186.22 provides for enhanced punishment when a
    defendant is convicted of an enumerated felony committed ‘for
    11     Additionally, Casillas asserts his convictions should be
    reversed because cumulative errors deprived him of a fair trial in
    contravention of his federal constitutional rights. As discussed,
    we have not found individual error at trial let alone cumulative
    error. (See People v. Lopez (2021) 
    73 Cal.App.5th 327
    , 375
    [“[b]ecause we have found none of [appellant’s] claimed errors to
    constitute individual errors, they cannot as a group constitute
    cumulative error”].)
    18
    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 any criminal conduct by gang members.’” (People v. Delgado
    (2022) 
    74 Cal.App.5th 1067
    , 1085; accord, People v. Lopez, supra,
    73 Cal.App.5th at p. 344; § 186.22, subd. (b)(1).) One requisite
    element to establish such a gang enhancement is that the alleged
    gang has engaged in a “pattern of criminal gang activity,” which,
    at the time of Casillas’s trial, was defined as “commission of,
    attempted commission of, conspiracy to commit, or solicitation of,
    sustained juvenile petition for, or conviction of two or more
    [enumerated] offenses, provided at least one of these offenses
    occurred after the effective date of this [Act] and the last of those
    offenses occurred within three years after a prior offense, and the
    offenses were committed on separate occasions, or by two or more
    persons . . . .” (Former § 186.22, subd. (e).) “The offenses
    comprising a pattern of criminal gang activity are referred to as
    predicate offenses.” (People v. Valencia (2021) 
    11 Cal.5th 818
    ,
    829.)
    While Casillas’s appeal was pending the Legislature
    enacted Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Stats.
    2021, ch. 699, § 3) (AB 333), which “impose[d] new substantive
    and procedural requirements for gang allegations.” (People v. Sek
    (2022) 
    74 Cal.App.5th 657
    , 665.) Effective January 1, 2022, AB
    333 altered the requirements for proving a defendant is an active
    participant in a criminal street gang as defined by section 186.22,
    subdivision (a), and for proving gang enhancements pursuant to
    section 186.22, subdivision (b). Among other changes, AB 333
    also amended the definition of “pattern of criminal gang activity”
    provided in section 186.22, subdivision (e), and modified the
    requisite proof of predicate offenses, including that the currently
    19
    charged offense may not be used to establish such a pattern and
    that the predicate offenses “commonly benefited a criminal street
    gang, and the common benefit of the offense is more than
    reputational.” (§ 186.22, subd. (e)(1), (2).) In addition, newly-
    added subdivision (g) of section 186.22 provides that the language
    to “benefit, promote, further, or assist” a criminal street gang
    “means to provide a common benefit” to members that is likewise
    “more than reputational.” (§ 186.22, subd. (g) [“Examples of a
    common benefit that are more than reputational may include, but
    are not limited to, financial gain or motivation, retaliation,
    targeting a perceived or actual gang rival, or intimidation or
    silencing of a potential current or previous witness or
    informant”].) AB 333 also added section 1109, which requires, at
    a defendant’s request, the trial court bifurcate the gang
    participation charges and enhancements from other counts that
    do not otherwise require gang evidence as an element of the
    crime.12
    Casillas asserts, the People concede, and we agree that
    Casillas is entitled to the retroactive benefit of AB 333’s
    amendments to section 186.22. (See In re Estrada (1965) 
    63 Cal.2d 740
     (Estrada);13 see also People v. Rodriguez (2022) 75
    12    In response to our request, the parties submitted
    supplemental briefs addressing what impact, if any, AB 333 has
    on Casillas’s appeal.
    13    In Estrada, our Supreme Court explained that when the
    Legislature “amends a statute so as to lessen the punishment” it
    must have intended the new statute imposing the “lighter
    punishment” to “apply to every case to which it constitutionally
    could apply,” i.e., “to acts committed before its passage provided
    the judgment convicting the defendant of the act is not final.”
    
    20 Cal.App.5th 816
    , 822-823; People v. Delgado, supra, 74
    Cal.App.5th at p. 1087 [“we agree Assembly Bill 333’s
    amendments to section 186.22 . . . apply retroactively”]; People v.
    Lopez, supra, 73 Cal.App.5th at p. 343 [“Assembly Bill 333
    increases the threshold for conviction of the section 186.22
    offense and the imposition of the enhancement . . . ‘[A] defendant
    is entitled to the benefit of an amendment to an enhancement
    statute, adding a new element to the enhancement, where the
    statutory change becomes effective while the case was on appeal,
    and the Legislature did not preclude its effect to pending
    case[s].’”]) The parties also agree that here, the evidence of
    predicate offenses introduced at Casillas’s trial was insufficient
    under the new requirements prescribed by section 186.22 as
    revised, to prove a pattern of criminal gang activity.
    Accordingly, the gang enhancement allegation findings
    under section 186.22 as to all counts are vacated. Casillas’s
    conviction on count 2 (carrying a firearm while an active gang
    member (§ 25850, subd. (a)) must also be reversed because
    subdivision (c) of section 25850 expressly incorporates
    (Estrada, supra, 63 Cal.2d at p. 745; see People v. Delgado, supra,
    74 Cal.App.5th at p. 1087 [explaining that “[i]n Estrada, the
    Supreme Court held that statutory amendments that reduce the
    punishment for an offense apply retroactively to a defendant who
    judgment is not yet final absent a contrary legislative intent”].)
    The Supreme Court has since expanded the applicability of the
    doctrine enunciated in Estrada “broadly ‘to statutes changing the
    law to the benefit of defendants.’” (People v. Sek, supra, 74
    Cal.App.5th at p. 666, quoting Tapia v. Superior Court (1991) 
    53 Cal.3d 282
    , 301.) This presumption of retroactivity “applies to
    laws that change the substantive requirements for an
    enhancement in the defendant’s favor.” (Sek, at p. 666.)
    21
    subdivision (a) of section 186.22. (See People v. Lopez, supra, 73
    Cal.App.5th at p. 373 [“Assembly Bill 333’s changes to section
    186.22 affect not only the gang enhancement allegations under
    that statute but other statutes that expressly incorporate
    provisions of section 186.22”].)
    Because the gang enhancements are vacated, the firearm
    enhancements imposed as to counts 3, 4 and 5 under section
    12022.53, subdivision (d), can also no longer stand. The 25-year-
    to-life enhancements provided by section 12022.53, subdivision
    (d), require that the defendant “personally” discharge a firearm
    proximately causing great bodily injury, except where a gang
    enhancement has been pleaded and proved, pursuant to
    subdivision (e). (See People v. Lopez, supra, 73 Cal.App.5th at
    pp. 374-375; § 12022.53, subd. (e)(1) [“[t]he 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), (c), or (d)”].) Here, on the
    attempted murder counts the jury did not find that Casillas
    personally discharged a firearm causing great bodily injury, but
    rather that “a principal” did so. Thus, the firearm enhancements
    under subdivision (d), were only proper if the gang enhancements
    were proven. Given that the gang enhancements are now
    vacated, the firearm enhancements predicated thereupon must
    likewise be vacated.
    Casillas also asserts that newly-added section 1109 is both
    retroactive and necessitates reversal of all counts, including his
    attempted murder and assault convictions, because the gang
    evidence “played a central role in undermining [Casillas’s] claim
    22
    of self-defense.” The People disagree, asserting that section 1109
    is prospective, and regardless, any error was harmless because it
    is not reasonably probable a more favorable result would have
    occurred. Section 1109 provides that, at the request of the
    defendant, a gang enhancement allegation or gang-related crime
    be bifurcated from other charges. However, we need not decide
    the retroactive application of section 1109 because we find any
    such error in failing to bifurcate Casillas’s trial was harmless. In
    this case, the gang evidence was inextricably linked with and
    relevant to the remaining charges of attempted murder and
    assault⎯in particular, this evidence was necessary to prove
    motive and intent. Casillas asserts that section 1109 “makes
    clear that gang evidence is no longer either relevant or
    admissible in the guilt phase of a criminal trial.” We see no
    indication the Legislature intended that otherwise-relevant and
    admissible gang evidence would now be categorically barred from
    the guilt phase of all trials. (See generally People v. Hernandez
    (2004) 
    33 Cal.4th 1040
    , 1049-1050 [“evidence of gang membership
    is often relevant to, and admissible regarding, the charged
    offense . . . [and] can help prove identity, motive, modus operandi,
    specific intent, means of applying force or fear, or other issues
    pertinent to guilt of the charged crime”].)
    Here, most of the gang evidence introduced at Casillas’s
    trial would have been admissible regardless of bifurcation
    because the evidence was not only relevant, but integral, to
    proving motive and intent. Without such evidence the gun battle
    between Casillas and Montanez and three unidentified men in a
    liquor store parking lot would otherwise be inexplicable and
    nonsensical. Instead, the inclusion of evidence explaining
    Casillas’s and Montanez’s gang affiliation, their bitter rivalry
    23
    with a neighboring gang, the location of the liquor store on the
    borderline of the respective gangs’ territories, the need to be
    “strapped” when entering rival gang territory, and the
    inevitability of rival gang encounters leading to shootings if
    anyone is indeed “strapped” collectively explained the motive
    behind the events that occurred in the parking lot. Casillas’s
    counsel used this testimony in his closing argument to explain
    why, even though Casillas was armed, he was not precluded from
    claiming reasonable self-defense: “[Detective Bebon said a few
    things which I think are true and I think are relevant to your
    analysis. He said, being a gang member, or even a gang member
    associate, is dangerous. . . . He said the smart ones⎯remember,
    if you’re slipping, you don’t have a gun. The smart ones are
    always armed. That’s not just 12th Street Sharkies, that’s gang
    members. It’s a dangerous world. He talked about how you’re
    always on 24/7. You’re always on offense and defense.”
    Casillas does not demonstrate how the inclusion of gang
    evidence introduced to meet the requirements of section 186.22,
    such as predicate offenses by other gang members, would have
    unduly prejudiced the jury. Even if the initial guilt phase of
    Casillas’s trial was today, the vast majority of the gang evidence
    would be admissible. Casillas cannot therefore show it is
    “reasonably probable” that bifurcation would have resulted in a
    more favorable outcome. (See People v. E.H. (2022) 
    75 Cal.App.5th 467
    , 480.)
    Accordingly, we reverse Casillas’s conviction for carrying a
    loaded firearm while an active gang member (count 2)14 and
    14     Effective January 1, 2022, the Legislature also enacted
    Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731,
    § 1.3), which changed various sentencing laws, including section
    24
    vacate the gang enhancements on all counts and the firearm
    enhancements as to counts 3, 4 and 5.
    We further agree with the People that the proper remedy is
    to remand and give the People the opportunity to retry the gang
    and firearm enhancements, as well as count 2, in accordance with
    AB 333’s newly-enacted requirements. (People v. E.H., supra, 75
    Cal.App.5th at p. 480 (“[t]he proper remedy for this type of failure
    of proof—where newly required elements were ‘never tried’ to the
    jury—is to remand and give the People an opportunity to retry
    the affected charges”]; see People v. Eagle (2016) 
    246 Cal.App.4th 275
    , 280 [“[w]hen a statutory amendment adds an additional
    element to an offense, the prosecution must be afforded the
    opportunity to establish the additional element upon remand.
    [Citation.] Such a retrial is not barred by the double jeopardy
    clause or ex post facto principles”]; see also People v. Figueroa
    (1993) 
    20 Cal.App.4th 65
    , 72 [“[w]here, as here, evidence is not
    introduced at trial because the law at the time would have
    rendered it irrelevant, the remand to prove that element is
    proper and the reviewing court does not treat the issue as one of
    sufficiency of the evidence”].)
    We therefore remand to afford the People the opportunity
    to retry Casillas on count 2 and the gang and firearm
    enhancements. Should the People decline to do so, the trial court
    shall resentence Casillas in accordance with this opinion.
    1170. We requested the parties provide supplemental briefing as
    to what impact, if any, these changes to section 1170 have on
    Casillas’s sentence on count 2 (carrying a loaded firearm while an
    active gang member). The People assert, and Casillas concurs,
    that this issue is now moot given the People’s concession that the
    finding of guilt on count 2 must be reversed. We agree.
    25
    E. The Trial Court Erred in Sentencing Casillas
    We requested supplemental briefing as to whether the trial
    court erred in imposing both the firearm enhancement and the
    alternative penalty provision of section 186.22, subdivision (b)(5),
    as to counts 3 through 5, in light of section 12022.53, subdivision
    (e)(2), given that the jury’s verdicts on the attempted murder
    counts found true only that “a principal, personally and
    intentionally discharged a firearm . . . which proximately caused
    great bodily injury,” (italics added) rather than Casillas
    specifically. In particular, section 12022.53, subdivision (e)(2),
    provides “[a]n enhancement for participation in a criminal street
    gang . . . 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.”
    Because the jury did not find that Casillas personally used
    or personally discharged a firearm proximately causing great
    bodily injury, the parties agree, and we concur, imposition of the
    alternative penalty provision pursuant to section 186.22,
    subdivision (b)(5), on the attempted murder counts was
    erroneous. (See People v. Brookfield (2009) 
    47 Cal.4th 583
    , 593
    [“[a] defendant who personally uses or discharges a firearm in the
    commission of a gang-related offense is subject to both the
    increased punishment provided for in section 186.22 and the
    increased punishment provided for in section 12022.53. In
    contrast, when another principal in the offense uses or discharges
    a firearm but the defendant does not, there is no imposition of an
    ‘enhancement for participation in a criminal street gang . . . in
    addition to an enhancement imposed pursuant to’ section
    12022.53”], quoting § 12022.53 (e)(2).) The trial court’s
    26
    imposition of the 15-year minimum parole eligibility period as to
    counts 3 through 5 is stricken.
    F. Casillas’s Additional Sentencing Challenges Are Moot
    Casillas further argues the trial court abused its discretion
    by refusing to strike the firearm enhancements at sentencing,
    resulting in an aggregate sentence violative of the Eighth and
    Fourteenth Amendments of the U.S. Constitution. Casillas also
    asserts his 127 years-to-life sentence constitutes cruel and
    unusual punishment under the Eighth Amendment, because he
    had only one prior conviction for a traffic offense and his conduct
    at issue “occurred immediately after a man pulled a gun on him
    and his companion.” Because we reverse Casillas’s conviction on
    count 2, as well as the gang and firearm enhancements, and
    permit his retrial and mandate resentencing regardless, these
    issues related to his original sentence are now moot.
    27
    DISPOSITION
    We affirm Casillas’s convictions for attempted deliberate,
    willful and premeditated murder (counts 3, 4 and 5) and
    aggravated assault (counts 6, 7 and 8) and reverse his conviction
    for carrying a loaded firearm while an active street gang member
    (count 2). We vacate the gang enhancement findings made under
    section 186.22, subdivision (b), as to counts 3, 4, 5, 6, 7 and 8. We
    also vacate the firearm enhancement findings made under
    section 12022.53, subdivisions (d) and (e)(1), as to counts 3, 4 and
    5. We reverse Casillas’s conviction as to count 2. Finally, we
    strike the 15-year minimum parole eligibility period imposed
    under section 186.22, subdivision (b)(5).
    We remand this matter to the trial court to afford the People
    an opportunity to retry count 2, the gang enhancements for counts
    3, 4, 5, 6, 7 and 8 and the firearm enhancements for counts 3, 4
    and 5. If the People elect not to retry Casillas, then the court shall
    resentence Casillas in a manner consistent with this opinion.
    WISE, J.*
    We concur:
    PERLUSS, P. J.                  FEUER, J.
    *     Judge of the Alameda County Superior Court, assigned by
    the Chief Justice pursuant to article VI, section 6 of the
    California Constitution.
    28