PEÑA, J.

Certified for Partial Publication.

Sylvia W. Beckham, Carpinteria, under appointment by the Court of Appeal, for Defendant and Appellant Juan Alejandro Montano.

Solomon Wollack, Pleasant Hill, under appointment by the Court of Appeal, for Defendant and Appellant Jose Antonio Montano.

Paul Couenhoven, Santa Clara, under appointment by the Court of Appeal, for Defendant and Appellant Giovanni Thomas Jasso.

Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie Hokans and Henry J. Valle, Deputy Attorneys General, for Plaintiff and Respondent.

PEÑA, J. Juan Alejandro Montano (Juan), his brother, Jose Antonio Montano (Jose), and Giovanni Thomas Jasso (Jasso) (collectively, defendants) appeal from judgments of conviction entered upon jury verdicts of first degree murder with the special circumstance of lying in wait, and unlawful participation in a criminal street gang. Juan was also found guilty of gun possession by a convicted felon. The jury made true findings on various firearm- and gang-enhancement allegations. It hung on a special circumstance allegation of gang murder within the meaning of Penal Code section 190.2, subdivision (a)(22) ( section 190.2(a)(22) ). (All undesignated statutory references are to the Penal Code.)

In the published part of the opinion, we hold Assembly Bill No. 333 (2021–2022 Reg. Sess.) (Assembly Bill 333), which amended section 186.22 and added a new statute, section 1109, is fully retroactive to all nonfinal judgments. We further hold section 1109, as currently written, does not apply to gang special circumstance allegations under section 190.2(a)(22). Section 1109, subdivision (a) provides for bifurcation of gang enhancement allegations "charged under subdivision (b) or (d) of Section 186.22." Section 1109, subdivision (b) requires a charge of violating subdivision (a) of section 186.22, i.e., the substantive gang offense, to be "tried separately from all other counts that do not otherwise require gang evidence as an element of the crime." ( § 1109, subd. (b).) Although failure to account for section 190.2(a)(22) may have been an oversight by the drafters of section 1109, it is not our place to rewrite the statute. Such changes must come from the Legislature.

In the unpublished part of the opinion, we address defendants' claims of insufficient evidence, improper admission of evidence, instructional error, and sentencing error. We affirm in part, reverse in part, and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

On July 21, 2017, victim Abraham Rubio (age 17) was shot while walking on Paradise Road in Lamont. The shooting occurred in front of a house rented by defendant Jose, his girlfriend, and the girlfriend's mother. Jose's girlfriend called 911 after hearing the gunshots and seeing the wounded victim in distress.

A sheriff's deputy arrived soon after the emergency dispatch. Rubio was able to provide his name and age but declined to answer questions about the shooting. He died from internal injuries later that evening. A postmortem toxicology analysis indicated prior consumption of alcohol, marijuana, and methamphetamine.

The deputy had found Rubio in the street lying on his back in between a Ford Bronco and a Lincoln pickup truck. The vehicles were parallel parked along the southern curb of Paradise Road, facing east. The Bronco was parked west of the driveway to Jose's residence, and the Lincoln was parked a few feet behind the Bronco. Four 9-millimeter bullet casings were located northeast of the Bronco, within approximately eight feet of where Rubio had fallen after being shot. Three of the casings were of the same brand, but the fourth was made by a different manufacturer.

Rubio sustained two bullet wounds to the right abdominal area. A third bullet hit his left thigh, close to the knee. The fourth shot apparently missed him. Investigators found a bullet lodged above the front driver's side bumper of the Lincoln truck, close to where Rubio had collapsed.

The events were captured on video by a security camera located outside of a nearby restaurant. The video showed that four people had either witnessed or participated in the shooting. After reviewing hours of footage and conducting further investigation, detectives obtained arrest warrants for Juan (age 22), Jose (age 21), and Jasso (age 19). Search warrants were obtained for defendants' Facebook accounts and "to ping the realtime location" of a phone associated with Juan. Authorities did not seek to arrest the fourth suspect, Kasey Villegas, who was later stabbed to death in an unrelated incident.

On July 27, 2017, a relative turned Rubio's mobile phone over to law enforcement. It was covered in dried blood. The person did not explain how the item was obtained but alleged it had "passed through several different hands." The name of a local gang, "Varrio Chico Lamont," was etched into the back of the device.

On August 4, 2017, Jasso was taken into custody during a traffic stop. He waived the right to remain silent and briefly answered questions about the shooting. Jasso stated that he lived in Bakersfield. He denied knowing anyone in Lamont or being there on the day of the incident.

On August 5, 2017, Jose was arrested at his home. He waived the right to remain silent and submitted to a lengthy interrogation. Jose's girlfriend voluntarily accompanied him to the Kern County Sheriff's Office and, while there, she agreed to answer questions about the shooting. Both interviews were recorded.

Jose told detectives that the victim, Rubio, had previously lived in the house he had rented on Paradise Road. Rubio was also a longtime friend of Jose's girlfriend. The details were vague, but Jose alleged Rubio had shown up at his residence under the influence of narcotics on the day in question. Rubio had wanted to discuss drug dealing, and Jose told him that he did not want any drug trafficking near the house. Jose had been polite, but Rubio was upset by the conversation.

Rubio departed from Jose's residence but confronted him again "like, three more times" that day. The second encounter was outside of a liquor store. Rubio still appeared to be "on drugs," and Jose claimed to have "smelled alcohol on his breath." Rubio challenged Jose to a fistfight, but Jose declined. He had been concerned about Rubio's friends, explaining to detectives that "some of his buddies that he knows that he grew up with, they were right there around him." Jose further claimed to have told Rubio, "[I]f I even touch you, I know you're gonna go tell your friends. And your friends are gonna come try to beat me up." Jose said this incident occurred around 5:00 p.m.

Jose did not recount any further interactions with Rubio prior to the shooting. He claimed to have been asleep when the shots were fired, which was shortly after 8:00 p.m. In Jose's initial story, the sound of gunfire woke him from a nap. He then went outside to investigate and render aid. Jose denied having had any other visitors that day except for his girlfriend's father and someone who came over to see his girlfriend's mother. A detective asked Jose, "Why are people on the streets sayin' that you and [Rubio] were fightin' over some tagging?" He replied, "Exactly. That was the whole reason." He then explained Rubio had been upset about some graffiti on an abandoned house previously occupied by Rubio's grandmother. Jose alleged the graffiti was placed there five years earlier by one of his friends, but it included Jose's nickname ("Toker"), so Rubio had assumed Jose was involved.

Jose admitted the "tagging" of Rubio's grandmother's house included references to a Bakersfield gang called Varrio Bakers. Jose had previously lived in Bakersfield, but he denied being a gang member and downplayed the significance of a gang-related tattoo on his hand. When pressed about the gang angle, Jose said the dispute with Rubio was not about the graffiti and only concerned Rubio's drug use and drug dealing. The detectives then confronted Jose with still images from the surveillance video.

When Jose was shown images of his brother (Juan), Jasso, and Kasey Villegas, he denied knowing any of them. He stuck to the story about being inside the house when Rubio was shot. Amid repeated denials, Jose remarked, "I could've died too." A detective then asked, "Why, did [Rubio] have a gun?" Jose answered, "I don't know if he had a gun[,] [but] I could've got shot that day he was calling me out." Jose was then asked, "Did he pull a gun on you?" He replied, "No."

Jose eventually admitted to being in his front yard when the shooting occurred but denied seeing who fired the shots. Conceding his prior dishonesty, he said, "I'm sorry that I did fall off the train a little bit. ... But at the same time it's ’cause I have four beautiful kids. ... I didn't want anything to happen to me, to my kids, or, like, to Rubio, or to my family. ... I know I left some parts out about what [Rubio] said. But, like I said, I ain't a bitch or a—a snitch or whatever it is. ... I just don't want, like, you guys think that I'm the one that did it." When asked again if Rubio was armed, Jose continued to deny having seen anything. He later made a comment about knowing "my brother's buddies did it," implying he came to that realization after being shown the surveillance images.

Jose's girlfriend corroborated parts of his story but also contradicted him on important details. She claimed to have witnessed Rubio's initial argument with Jose over the "tagging" of his grandmother's house. Rubio had wanted to "go to the alley and [fight]," referring to an alley intersecting Paradise Road between the restaurant and the home of Jose's neighbor, i.e., the house adjacent to the Ford Bronco and the Lincoln pickup truck.

The girlfriend discussed how Jose went to the liquor store and returned alleging Rubio had confronted him again, this time with "all his homies." She also referred to Rubio's friends as "gangsters from Lamont." Whereas Jose had generally characterized the dispute as a minor "misunderstanding," the girlfriend alleged Rubio had threated to obtain a firearm and kill Jose. Rubio was supposedly living with her uncle at the time, and she believed her uncle would have let Rubio borrow his gun. Her exact statement was, "Jose has told me, well, Jose, if it wasn't [Rubio], it would have been Jose, cuz (unintelligible) if you guys would have heard what he was saying to Jose about him killing him too or shooting him and I know my [uncle] has a gun and he would have lended [sic ] it to him."

Jose's girlfriend identified Jasso and Juan from the surveillance images. She confirmed they had visited Jose that evening, which she admitted was "weird" because Juan, who lived in Bakersfield, rarely travelled to Lamont. She had suspected the visit had something to do with Rubio and claimed to have warned Juan, "[Y]ou better not do nothing stupid." She further alleged Jose later confided to her that Juan was the shooter.

Juan was arrested on the same day as Jose. It is unclear from the record whether he submitted to custodial interrogation.

On September 5, 2017, detectives recontacted Jose's girlfriend and arranged to speak with her younger sister, who was a juvenile. Jose's girlfriend had previously identified her sister as an eyewitness to the shooting. The sister denied this and claimed she was inside with Jose when the shots were fired. However, the sister admitted to having let Jose use her mobile phone earlier that day. The detectives photographed her call log, which showed calls to and from Juan's phone between 5:10 p.m. and 6:32 p.m. The sister denied placing those calls herself or recognizing the phone number.

In January 2018, while speaking with a sheriff's deputy, the sister reportedly claimed to have seen Juan shoot Rubio. According to the deputy, the sister admitted to being untruthful with the homicide detectives and alleged unspecified family members "had told her to lie to try to protect Juan." The sister allegedly believed Juan shot Rubio because Rubio "had kicked in his door and robbed him and ... had committed crimes against him in the past." In the prior interview with detectives, she claimed to have heard Jose say he feared Rubio because Rubio "said he was gonna get a gun to shoot him." Defendants were each charged with first degree murder ( §§ 187, 189 ; count 1) and unlawful participation in a criminal street gang ( § 186.22, subd. (a) ; count 2). Juan was additionally charged with possession of a firearm by a convicted felon ( § 29800, subd. (a)(1) ; count 3). Count 1 included special circumstance allegations of lying in wait ( § 190.2, subd. (a)(15) ) and murder committed to further the activities of a criminal street gang (id. , subd. (a)(22)). Firearm and gang enhancement allegations were also included. ( §§ 186.22, subd. (b), 12022.53, subds. (d), (e)(1).)

As to Juan only, two prior convictions were alleged for purposes of the "Three Strikes" law. ( §§ 667, subds. (b)–(i), 1170.12.) The strike offenses of second degree robbery and unlawful participation in a criminal street gang were alleged to also qualify as prior serious felony convictions under section 667, subdivision (a). Juan was further alleged to have served two prior prison terms within the meaning of section 667.5, former subdivision (b).

Defendants were jointly tried before a jury in early 2019. The prior conviction allegations against Juan were decided in a subsequent bench trial. Jasso filed multiple unsuccessful motions to be tried separately from Jose and Juan. Jasso also filed a motion, in which Jose and Juan joined, to bifurcate all "gang counts and gang allegations." The requests for bifurcation were denied.

Prosecution Case

The People's case included testimony from homicide detectives and a gang expert. The expert opined Jose, Juan, and Jasso were all active members of a criminal street gang called Varrio Bakers at the time of the shooting. The opinion was based on defendants' criminal history, tattoos, and content found on their social media accounts. The gang evidence is summarized in the Discussion, post.

Jose's girlfriend and her sister were examined as hostile witnesses. Redacted recordings of their interviews with detectives, as well as the interviews of Jose and Jasso, were admitted into evidence. Several crime scene photographs were also admitted.

All parties agreed to a jury view of the crime scene. This occurred on the third day of evidence presentation. In addition to walking along the relevant sections of Paradise Road and Velma Avenue, the jury was driven past the "dilapidated, burnt-out house" previously occupied by Rubio's grandmother. The restaurant's surveillance video was, in the People's words, "the keystone of the prosecution's case." Over three hours of footage was admitted into evidence. A 24-hour clock on the video showed the time of day down to one-thousandth of a second, but it was reportedly off by about two minutes. All times noted herein are approximated without the two-minute adjustment and primarily stated in a 12-hour format for ease of reference. Summarized in the light most favorable to the judgment, the video depicted the following events.

At 5:07 p.m., Rubio walked southbound on Velma Avenue and veered slightly west at the intersection of Paradise Road. He continued southwest toward Jose's residence, which faced Paradise on the opposite corner of the intersection. After gesturing to someone at or near Jose's property, Rubio moved in front of the Ford Bronco and lingered there for about 25 seconds. At 5:08 p.m., Rubio took a few steps toward Jose's house and appeared to enter the driveway. He then disappeared from the camera's view for about one minute. The prosecutor alleged this was the initial dispute described by Jose and his girlfriend in their recorded interviews.

At 5:09 p.m., Rubio walked away from Jose's residence. He stopped in front of the Ford Bronco for about 45 seconds, during which time he was obscured from view. He eventually proceeded west, past the Bronco and Lincoln truck, and moved toward the sidewalk on the southern side of Paradise Road. At 5:10 p.m., he stopped at the alley and turned back toward Jose's residence as if calling out to someone. He then turned around and continued walking toward the restaurant. His fists were clenched as he passed by the camera and out of view.

At 5:11 p.m., Jose exited his driveway and walked into the street. He looked west, in the direction Rubio had just gone, and appeared to be on a phone call. This was consistent with the call log of Jose's girlfriend's sister's phone, which showed a call placed to Juan at 5:10 p.m. At 5:13 p.m., Jose left his house and walked west on Paradise Road. He was off camera for about five minutes and reappeared shortly before 5:19 p.m., heading east on Paradise before disappearing from view near his house. As indicated by the call log, Jose then placed a second call to Juan. At 5:23 p.m., Rubio walked east on Paradise Road and turned north at the Velma Avenue intersection. Fifteen minutes later, he reappeared with an unidentified man. They emerged from Velma Avenue, walked into the Paradise Road intersection, and stood there in conversation for half a minute. The man then returned in the direction from which he had come, and Rubio continued walking south on Velma.

At 6:15 p.m., Jose walked out to the middle of Paradise Road. He appeared to be on a phone call, which corresponded to the call log showing an outgoing call to Juan's phone at 6:14 p.m. Jose eventually strolled westbound on Paradise, then came jogging back toward his house at 6:18 p.m. Moments later, Jasso, Juan, and Kasey Villegas drove up in Jasso's black Honda Civic, stopping in front of the restaurant. Jose walked to the north side of the street and gestured for the car to drive north through the alley running parallel to Velma Avenue. The car pulled away from the curb and drove up the alley. Jose walked off along the northern side of Paradise, disappearing from the camera's view after turning north on Velma.

A black sedan, which the People alleged was Jasso's car, circled through the area again at 6:29 p.m. At 7:09 p.m., the car turned west onto Paradise Road from northbound Velma Avenue and parallel parked along the northern curb, directly across from Jose's residence. Jasso exited the car alone, crossed the street, and disappeared from view into Jose's driveway. Jose, Juan, and Kasey Villegas had evidently gone to the house on foot at some earlier point in time.

At 7:14 p.m., Jose, Juan, Jasso, and Kasey Villegas exited Jose's driveway on foot and proceeded west on Paradise Road. They returned four minutes later, heading east, and Jose was now carrying a bulging plastic grocery bag. All four men appeared to be scanning the area as they walked, turning their heads and looking in various directions before moving into Jose's driveway and out of view.

The prosecutor theorized defendants had roamed the neighborhood in search of Rubio for about an hour. Unable to find him, they decided to wait outside of Jose's residence. At 7:32 p.m., Jasso walked out to the middle of Paradise Road, paused, and then returned to Jose's driveway. At 7:47 p.m., Juan came out of the driveway, proceeded west, and stood between the Ford Bronco and Lincoln pickup truck for approximately 15 seconds. He then continued west on Paradise, stopped at the alley next to the restaurant, and stood watch for about 45 seconds before returning to Jose's driveway. Meanwhile, Jose walked out onto Paradise Road, looked around, and was joined by Jasso near the front end of the Bronco. By 7:50 p.m., all three had returned to Jose's driveway and were no longer visible on camera.

At 8:00 p.m., Rubio walked past the restaurant along the southern curb of Paradise Road. He was holding a bottle of beer in his left hand. Shortly before moving past the alley, he entered the street and continued on a northeastward trajectory toward Velma Avenue, taking a swig of his beer while passing by the Lincoln pickup truck. At virtually the same moment (20:00:57 on the video clock), Jasso exited the driveway and walked in front of the Ford Bronco. Six seconds later, Juan appeared on camera.

Juan also stepped in front of the Bronco, but he was closer to it than Jasso. Rubio suddenly turned to his right (i.e., toward Juan), took a step backwards while extending both arms out from his waist, then staggered farther backwards and fell down in between the Bronco and the pickup truck. He ceased to be visible at approximately 20:01:07 on the video clock.

Jasso had first come into view at approximately 20:00:57 and remained in front of the Bronco until approximately 20:01:09. Juan came into view at approximately 20:01:03, disappeared in front of the Bronco at 20:01:05, and reappeared at 20:01:10 running toward Jasso's parked car across the street. Meanwhile, Jose and Kasey Villegas stepped out of the driveway and into the camera's view at 20:01:07. Kasey turned back around almost immediately, and Jose did the same approximately one second later. Jasso, from his position in front of the Bronco, very briefly moved in the direction of Jose and Kasey but then turned and ran across the street to his car (arriving there a few steps behind Juan). A few seconds later, Kasey ran after Juan and Jasso and fled with them in Jasso's vehicle.

Jasso drove west on Paradise Road at 8:01 p.m. His vehicle disappeared from the camera's view when the video clock hit 20:01:30. At 8:02 p.m., Jose and his girlfriend exited the driveway. Jose jogged over to where Rubio lay, knelt down for a few seconds, then stood up and jogged back to his house. Jose's girlfriend walked around the Bronco and momentarily looked down at Rubio before moving in between the vehicles and out of view for about 30 seconds. Unidentified onlookers began to approach the scene and watched from a distance as Jose's girlfriend paced back and forth near Rubio's body, appearing to talk on a phone.

At 8:04 p.m., a person later alleged to be Jose's neighbor walked in between the vehicles and disappeared from the camera's view. About 24 seconds later, he returned to the southern curb of Paradise Road and handed something to an unknown person. A sheriff's deputy pulled up in a patrol car shortly thereafter.

Defense Case

Jasso's defense was mere presence during the shooting. He testified on his own behalf. His attorney introduced photographs of Rubio displaying "gang signs" with his hands and fingers, which had been uploaded to Rubio's Facebook account one day prior to his death. Defense counsel also introduced what had reportedly been Rubio's Facebook "cover photo" in November 2015, i.e., two years prior to the shooting. It is described in the record as "a photograph of two semi-automatic pistols with the words ‘May God have mercy on my enemies because I won't.’ "

Jasso preemptively stipulated to being "an active participant in the Varrio Bakers" and to "knowingly sell[ing] illegal narcotics for a profit with other members of the Varrio Bakers." He alleged Jose, Juan, and Kasey Villegas were fellow Varrio Bakers members. Jasso also admitted to having made false statements during his custodial interview.

Regarding the day of the shooting, Jasso testified, "Juan had called me, told me he wanted to go visit with Jose and his kids. [Jose] had just moved into his new house." Jasso agreed to drive Juan to Lamont in his Honda Civic. Kasey Villegas joined them.

Jasso testified there was never any discussion among the group about Rubio or the possibility of a confrontation in Lamont. His expectations for the trip were to "have a couple of beers, smoke a blunt, [and] catch up with Jose." Rubio was a person completely unknown to him, even at the time of the shooting. He stated, "I never knew who he was. The first time I heard about him was when I got arrested for this case."

In his initial telling of the events, Jasso omitted nearly an hour's worth of activity. He testified to arriving in Lamont with Juan and Kasey, smoking marijuana with them while parked in front of Jose's house, getting out and socializing with Jose in the front yard "for a little bit," and then walking to the store to purchase some Tecate beer. Jasso confirmed the video footage at 7:14 p.m. and 7:19 p.m. showed the four of them on their beer errand.

On cross-examination, Jasso admitted that the video showed him exiting his parked car alone at 7:09 p.m. and walking to Jose's residence. The prosecutor asked where he had been "for almost an hour, 51 minutes about, after you first arrived in Lamont[?]" Jasso testified to dropping Juan and Kasey off on the Velma Avenue side of Jose's residence "when we first arrived," then traveling alone to the town of Arvin to deliver a package of cocaine. This was not entirely consistent with the footage of Jose standing in the street at 6:18 p.m., directing Jasso away from his house, and Jasso proceeding to drive north with his passengers still in the vehicle. In other testimony, Jasso alleged Jose had been pointing in the direction of where he intended to meet someone to buy marijuana.

Jasso gave the following testimony about the shooting: "As I'm—as we're walking out of the gate, I had to leave early to go pick up my girl from work and as we're walking out, I don't know. I guess I thought it was one of Jose's friends or something. He just—Jose told him like, ‘I told you I'm not trippin.’ [¶] [Rubio] goes, ‘I don't give a fuck. I'm keeping my palabra [word].’ "

After follow-up questions about Jose's and Rubio's exact statements, Jasso continued: "Yeah, it was something like that because me and Kasey were walking out. We were talking. I heard Jose say something about, ‘I already told you I'm not trippin.’ The car is right here. As I come around, I see someone approaching us. [¶] He's already saying, ‘I don't give a fuck. I already told you. I keep my palabra’ ...."

Jasso's attorney asked, "Did you see [Rubio] with something in his hand?" Jasso answered, "Yes, well, he grabbed—he went under his shirt. He pulled out like those little—you know those guns off the side races, those little black revolvers from the movies that they show when they start the race." Defense counsel then asked, "You saw him with a small handgun?" Jasso replied, "Yeah, it's like a revolver."

Describing the sequence of events, Jasso testified: "So I seen him pull it out. I dodged behind the car. I just heard four pops, so I thought we were getting shot at and [Jose's child] was outside. [¶] ... [¶] So I ran to the gate and closed the gate and then when I turned back around, it was just like [Rubio] wasn't standing there no more so we took off." Jasso denied knowing Rubio had been shot when he fled the scene. He testified, "[T]o my understanding, [Rubio] was the one that was shooting at us." When Jasso, Juan, and Kasey got into the car, Juan asked, " ‘You guys all right?’ " Jasso claimed to have replied, " ‘Yeah, fuck. I'll take you guys home. I have to pick up my bitch.’ " His testimony indicated there was no discussion of the incident on the drive back to Bakersfield. Jasso did not ask Juan about the person who had shot at them, i.e., Rubio, because he "was pretty sure Juan wouldn't know who he was either."

Jose rested his defense case without introducing any evidence. Like Jasso, he relied on a theory of mere presence. His trial counsel argued Jose had truthfully told detectives that he did not see who fired the shots. Counsel also disputed the People's theory of aiding and abetting, claiming the evidence allowed for a reasonable doubt on the element of intent. Jose's attorney did not argue self-defense.

Juan did not call any witnesses, but his attorney introduced additional content from Rubio's Facebook account to argue Rubio was a Varrio Chico Lamont gang member or associate. Building upon Jasso's testimony about Rubio being armed, Juan's counsel alleged certain video footage showed a black handgun in Rubio's waistband. Counsel offered multiple alternative defense theories during closing argument, including self-defense and defense of others.

Verdicts and Sentencing

The jury deliberated for approximately 14 hours over the course of three days. On the third day, toward the end of its deliberations, it submitted questions about section 190.2(a)(22) and later reported being evenly divided on whether defendants killed Rubio to further the activities of a criminal street gang. A mistrial was declared as to the gang special circumstance allegation, which was ultimately dismissed. Defendants were otherwise convicted as charged and all remaining allegations were found true. The recidivism allegations against Juan were sustained by the trial court.

Juan was sentenced to life in prison without the possibility of parole (LWOP) for first degree murder committed by means of lying in wait. Sentencing on count 1 included consecutive terms of 25 years to life for the firearm enhancement, 10 years for the gang enhancement, and 10 years for two prior serious felony convictions. Punishment imposed for counts 2 and 3, which was said to include 2 one-year terms for the prison priors, was ordered stayed pursuant to section 654.

Jose's count 1 sentence was LWOP plus a consecutive term of 25 years to life for the firearm enhancement. Because the latter term was imposed pursuant to section 12022.53, subdivision (e)(1), punishment for the separate gang enhancement was stayed (see id. , subd. (e)(2)). Punishment for count 2 was stayed pursuant to section 654.

Jasso's count 1 sentence was LWOP plus 25 years to life for the firearm enhancement. The gang enhancement was omitted from the pronouncement of judgment without explanation. Punishment for count 2 was stayed pursuant to section 654.

DISCUSSION

I. Sufficiency of the Evidence

II. Assembly Bill 333

Assembly Bill 333 was enacted during the pendency of this appeal. Defendants claim its amendments to section 186.22 apply retroactively and warrant reversal of their count 2 convictions and gang-related enhancements. The People concede those arguments. Defendants further contend that section 1109, a new procedural statute concerning gang charges and enhancements, applies retroactively and entitles them to complete reversal of the judgments. The People dispute the section 1109 claims. We agree with defendants on the question of retroactivity but reject the claims regarding prejudice.

A. Overview

Section 186.22 prohibits unlawful participation in a criminal street gang, as set forth in subdivision (a), and includes sentencing enhancement provisions, which are found in subdivision (b). The statute also has alternate penalty provisions, section 186.22, subdivisions (b)(4), (5), and (d), the latter of which allows for punishment of up to three years in prison if the defendant is "convicted of a gang-related misdemeanor offense." ( People v. Briceno (2004) 34 Cal.4th 451, 460, fn. 7, 20 Cal.Rptr.3d 418, 99 P.3d 1007.) A criminal street gang is "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).)

A " ‘pattern of criminal gang activity’ means the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of" two or more offenses listed in section 186.22, subdivision (e), if such conduct occurred within certain time frames and under particular circumstances specified therein. ( § 186.22, subd. (e)(1).) This is commonly known as the "predicate offenses" requirement. ( People v. Navarro (2021) 12 Cal.5th 285, 311, 285 Cal.Rptr.3d 861, 497 P.3d 935.)

"The elements of the gang participation offense in section 186.22 [,] [subdivision] (a) 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, 150 Cal.Rptr.3d 533, 290 P.3d 1143.) The enhancements and alternate penalty provisions apply only to gang-related crimes, meaning offenses "committed for the benefit of, at the direction of, or in association with a criminal street gang." ( § 186.22, subds. (b), (d) ; accord, People v. Livingston (2012) 53 Cal.4th 1145, 1170, 140 Cal.Rptr.3d 139, 274 P.3d 1132.) The enhancements and alternate penalties further require "the specific intent to promote, further, or assist in criminal conduct by gang members." ( § 186.22, subds. (b)(1), (4), (d).)

By enactment of Assembly Bill 333, section 186.22 has new requirements for establishing liability under subdivisions (a), (b), and (d). (Stats. 2021, ch. 699, § 3.) As of January 1, 2022, predicate offenses must be shown to have "commonly benefited" the alleged gang, and the common benefit must have been "more than reputational." ( § 186.22, subd. (e)(1).) Currently charged offenses no longer qualify (id. , subd. (e)(2)), and at least one predicate offense must have been committed "within three years of the date the current offense is alleged to have been committed ..." (id. , subd. (e)(1)). Among other additional changes, the terms "benefit," "promote," "further," and "assist" are now defined to mean providing "a common benefit to members of a gang where the common benefit is more than reputational." (Id. , subd. (g).)

Assembly Bill 333 also added section 1109. (Stats. 2021, ch. 699, § 5.) The new statute provides:

"(a) If requested by the defense, a case in which a gang enhancement is charged under subdivision (b) or (d) of Section 186.22 shall be tried in separate phases as follows:

"(1) The question of the defendant's guilt of the underlying offense shall be first determined.

"(2) If the defendant is found guilty of the underlying offense and there is an allegation of an enhancement under subdivision (b) or (d) of Section 186.22, there shall be further proceedings to the trier of fact on the question of the truth of the enhancement. Allegations that the underlying offense was committed for the benefit of, at the direction of, or in association with, a criminal street gang and that the underlying offense was committed with the specific intent to promote, further, or assist in criminal conduct by gang members shall be proved by direct or circumstantial evidence.

"(b) If a defendant is charged with a violation of subdivision (a) of Section 186.22, this count shall be tried separately from all other counts that do not otherwise require gang evidence as an element of the crime. This charge may be tried in the same proceeding with an allegation of an enhancement under subdivision (b) or (d) of Section 186.22."

B. Retroactivity of Amendments to Section 186.22

Section 3 states that no part of the Penal Code is retroactive "unless expressly so declared." However, in In re Estrada (1965) 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948 ( Estrada ), an amendment to a criminal statute was held to apply retroactively despite the Legislature's failure to expressly declare such an intent. ( Id. at pp. 742–745, 48 Cal.Rptr. 172, 408 P.2d 948.) The rationale for this outcome has come to be known as the " Estrada rule." (E.g., People v. Frahs (2020) 9 Cal.5th 618, 624, 264 Cal.Rptr.3d 292, 466 P.3d 844 ( Frahs ).) In brief, "[w]hen new legislation reduces the punishment for an offense, we presume that the legislation applies to all cases not yet final as of the legislation's effective date." ( People v. Esquivel (2021) 11 Cal.5th 671, 673, 279 Cal.Rptr.3d 659, 487 P.3d 974.)

The Estrada rule has been applied "to statutes that merely made a reduced punishment possible. " ( Frahs, supra , 9 Cal.5th at p. 629, 264 Cal.Rptr.3d 292, 466 P.3d 844.) In People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 228 Cal.Rptr.3d 394, 410 P.3d 22 ( Lara ), the inference of retroactivity was extended to legislation that "ameliorated the possible punishment for a class of persons." ( Id. at p. 308, 228 Cal.Rptr.3d 394, 410 P.3d 22.) In Frahs , a pretrial diversion statute ( § 1001.36 ) was held to apply retroactively because it "offers a potentially ameliorative benefit for a class of individuals—namely, criminal defendants who suffer from a qualifying mental disorder." ( Frahs , at p. 631, 264 Cal.Rptr.3d 292, 466 P.3d 844.) Further inferences of retroactive intent were drawn from the Legislature's stated goal of " ‘[i]ncreased diversion of individuals with mental disorders to mitigate the individuals' entry and reentry into the criminal justice system ...,’ " and because "the procedures instituted by the enactment carry the potential of substantial reductions in punishment for the aforementioned parties." ( Ibid. )

The Frahs opinion holds "that in order to rebut Estrada 's inference of retroactivity concerning ameliorative statutes, the Legislature must ‘demonstrate its intention with sufficient clarity that a reviewing court can discern and effectuate it.’ " ( Frahs, supra , 9 Cal.5th at p. 634, 264 Cal.Rptr.3d 292, 466 P.3d 844.) Assembly Bill 333 "increases the threshold for conviction of the section 186.22 offense and the imposition of the enhancement" ( People v. Lopez (2021) 73 Cal.App.5th 327, 344, 288 Cal.Rptr.3d 463 ), which obviously confers potentially ameliorative benefits upon a class of persons to which defendants belong. (See Tapia v. Superior Court (1991) 53 Cal.3d 282, 301, 279 Cal.Rptr. 592, 807 P.2d 434 [ Estrada rule applies "to statutes which redefine, to the benefit of defendants, conduct subject to criminal sanctions"].) We thus conclude the amendments to section 186.22 apply retroactively in this case.

The parties' arguments for reversal of the count 2 convictions and the gang enhancements are sound. The People concede their gang expert "failed to describe how the predicate offenses commonly benefited the gang, as required under the new legislation." "The 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." ( People v. E.H. (2022) 75 Cal.App.5th 467, 480, 290 Cal.Rptr.3d 506 ; accord, People v. Rodriguez (2022) 75 Cal.App.5th 816, 822–823, 291 Cal.Rptr.3d 70 ; People v. Lopez, supra , 73 Cal.App.5th at p. 346, 288 Cal.Rptr.3d 463.)

Jasso and Jose further contend that reversal of the gang enhancements invalidates their firearm enhancements, which were imposed pursuant to section 12022.53, subdivisions (d) and (e)(1). The People acknowledge the claim but do not expressly concede it. The claim has merit.

"Ordinarily, section 12022.53's sentence enhancements apply only to personal use or discharge of a firearm in the commission of a statutorily specified offense, but when the offense is committed to benefit a criminal street gang, the statute's additional punishments apply even if, as in this case, [a] defendant did not personally use or discharge a firearm but another principal did." ( People v. Brookfield (2009) 47 Cal.4th 583, 589, 98 Cal.Rptr.3d 535, 213 P.3d 988.) Jose and Jasso were not found to have personally used or discharged a firearm, so reversal of the gang findings eliminates the only basis for liability under section 12022.53. Their gun enhancements must therefore be vacated. ( People v. Lopez, supra , 73 Cal.App.5th at pp. 347–348, 288 Cal.Rptr.3d 463 ; People v. Cornejo (2016) 3 Cal.App.5th 36, 43, 50, 207 Cal.Rptr.3d 366.)

C. Retroactivity of Section 1109

There is a split of authority on the retroactive application of section 1109. In People v. Burgos (2022) 77 Cal.App.5th 550, 292 Cal.Rptr.3d 587 ( Burgos ), a divided panel of the Sixth Appellate District held the statute applies retroactively to nonfinal judgments. ( Id. at pp. 564–568, 292 Cal.Rptr.3d 587.) In People v. Ramos (2022) 77 Cal.App.5th 1116, 293 Cal.Rptr.3d 170, this district reached the same conclusion. ( Id. at p. 1119, 293 Cal.Rptr.3d 170.) Division Three of the Second Appellate District took an opposing view in People v. Perez (2022) 78 Cal.App.5th 192, 293 Cal.Rptr.3d 358 ( Perez ), holding "that the statute does not apply retroactively to a trial that has already occurred." ( Id. at p. 207, 293 Cal.Rptr.3d 358.) The People urge us to follow Perez and the dissent in Burgos . We decline to do so. "Our inquiry into legislative intent begins, as always, with the statutory text." ( People v. Lopez (2022) 12 Cal.5th 957, 971, 292 Cal.Rptr.3d 265, 507 P.3d 925.) Section 1109 contains two provisions. The first requires bifurcation of gang enhancement allegations if requested by the defense. ( § 1109, subd. (a).) The second requires counts alleging violations of section 186.22, subdivision (a) to be "tried separately from all other counts that do not otherwise require gang evidence as an element of the crime." ( § 1109, subd. (b).)

Section 1109 contains no express declaration of retroactivity. However, there is a statement of legislative findings in an uncodified section of Assembly Bill 333. (Stats. 2021, ch. 699, § 2.) "An uncodified section is part of the statutory law." ( Carter v. California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 925, 44 Cal.Rptr.3d 223, 135 P.3d 637.) We therefore consider the following declarations of the Legislature:

"According to the Committee on Revision of the Penal Code's 2020 report: [¶] ... [¶] Gang enhancement evidence can be unreliable and prejudicial to a jury because it is lumped into evidence of the underlying charges which further perpetuates unfair prejudice in juries and convictions of innocent people." (Stats. 2021, ch. 699, § 2, subd. (d)(6).)

"California courts have long recognized how prejudicial gang evidence is. [Citation.] Studies suggest that allowing a jury to hear the kind of evidence that supports a gang enhancement before it has decided whether the defendant is guilty or not may lead to wrongful convictions. [Citations.] The mere specter of gang enhancements pressures defendants to accept unfavorable plea deals rather than risk a trial filled with prejudicial evidence and a substantially longer sentence." (Stats. 2021, ch. 699, § 2, subd. (e).)

"Bifurcation of trials where gang evidence is alleged can help reduce its harmful and prejudicial impact." (Stats. 2021, ch. 699, § 2, subd. (f).)

The dissenting opinion in Burgos discussed the quoted excerpts and conceded the Legislature "expressed the belief that bifurcation could help reduce the risk of prejudice." ( Burgos, supra , 77 Cal.App.5th at p. 570, 292 Cal.Rptr.3d 587 (dis. opn. of Elia, J.).) The Burgos dissent also recognized that our state Supreme Court has construed new laws as " ‘ameliorative’ " if they potentially eliminate punishment for an offense. ( Id. at p. 572, 292 Cal.Rptr.3d 587, quoting Frahs, supra , 9 Cal.5th at p. 631, 264 Cal.Rptr.3d 292, 466 P.3d 844.) However, the dissenting opinion concluded " section 1109 is not an ameliorative statute within the meaning of the Estrada rule," but rather "a ‘purely procedural’ change ... that will not have any impact ‘directly’ or indirectly on punishment. " ( Burgos , at pp. 569, 572, 292 Cal.Rptr.3d 587.) We disagree. The uncodified preamble in Assembly Bill 333 clearly reflects the Legislature's intent to eliminate or reduce what it views as unwarranted punishment stemming from the admission of prejudicial gang evidence.

The Perez opinion does not go into depth on the issue. It states that "[u]nlike the new law in Lara , which was a new procedural law that had the effect of potentially reducing the punishment for a class of defendants, here, section 1109 is a procedural statute that ensures a jury will not be prejudiced by the introduction of evidence to support gang enhancement allegations—it does not reduce the punishment imposed." ( Perez , supra , 78 Cal.App.5th at p. 207, 293 Cal.Rptr.3d 358.) We do not follow this reasoning. In Lara , the California Supreme Court acknowledged " Estrada is not directly on point" if the statute in question "does not reduce the punishment for a crime." ( Lara, supra , 4 Cal.5th at p. 303, 228 Cal.Rptr.3d 394, 410 P.3d 22.) "But its rationale does apply" if the new legislation "reduces the possible punishment for a class of persons." ( Ibid. ) A possible reduction in the extent of punishment and the possibility of avoiding any punishment whatsoever are both "potentially ameliorative benefit[s]." ( Frahs, supra , 9 Cal.5th at p. 631, 264 Cal.Rptr.3d 292, 466 P.3d 844.)

Section 1109 is intended to "reduce [the] harmful and prejudicial impact" of gang evidence (Stats. 2021, ch. 699, § 2, subd. (f) ), and ultimately prevent wrongful convictions and unfair plea bargains (id. , subds. (d)(6), (e)). The "increased possibility of acquittal ... necessarily reduces possible punishment." ( Burgos, supra , 77 Cal.App.5th at p. 567, 292 Cal.Rptr.3d 587.) Likewise, "[b]y reducing the pressure to accept longer sentences, [ section 1109 ] will necessarily reduce the degree of punishment for many defendants charged with gang enhancements, even if they never have to invoke its prophylactic protections at trial." ( Ibid. ; see Stats. 2021, ch. 699, § 2, subd. (e).)

The People argue that "until Burgos , no case had ever applied the Estrada exception to the rule of nonretroactivity stated in section 3 to a statute like section 1109 that does not alter the punishment or the required elements." We disagree. The statute at issue in Frahs does not alter the prescribed punishment for, or the required elements of, any offense. "[S]ection 1001.36 by design and function provides a possible ameliorating benefit for a class of persons—namely, certain defendants with mental disorders—by offering an opportunity for diversion and ultimately the dismissal of charges." ( Frahs, supra , 9 Cal.5th at p. 624, 264 Cal.Rptr.3d 292, 466 P.3d 844.) The "potentially ameliorative benefit" is the possibility of avoiding being tried, convicted, and sentenced for alleged criminal behavior. ( Id. at p. 631, 264 Cal.Rptr.3d 292, 466 P.3d 844.)

The People also overlook Frahs by arguing "[a] legislative reduction in punishment does not exist when defendants who were lawfully convicted and punished under pre-2022 procedures would still be lawfully convicted and subject to identical punishment under 2022 procedures." They restate the argument this way: "A defendant who receives the benefit of a severed or bifurcated trial may ultimately receive the same sentence he or she could have received without severance or bifurcation. Although the persuasiveness of the evidence at trial on the underlying offenses might be impacted, the potential punishment for a defendant is not reduced by section 1109."

The Frahs appellant had already been tried and convicted of two felonies, and an appeal of the judgment was pending, when section 1001.36 went into effect. ( Frahs, supra , 9 Cal.5th at pp. 625–626, 264 Cal.Rptr.3d 292, 466 P.3d 844.) Retroactive application of the pretrial diversion statute did not guarantee a change in the judgment. The appellant still needed to demonstrate eligibility for diversion on remand and, if eligible, persuade the trial court to grant relief under section 1001.36 and, if granted relief, perform successfully in a diversion program. ( Frahs , at p. 641, 264 Cal.Rptr.3d 292, 466 P.3d 844.) If any of those contingencies did not occur, the appellant's convictions and sentence were to be reinstated. ( Ibid. ) What made the statute "ameliorative" was the possibility of a more favorable outcome that did not exist prior to its enactment. (See id. at p. 631, 264 Cal.Rptr.3d 292, 466 P.3d 844.)

Because it "provides a possible benefit to a class of criminal defendants and the statute does not contain an express savings clause that limits the [procedures] to prospective-only application, the specific question before us boils down to whether the Legislature ‘clearly signal[ed] its intent’ to overcome the Estrada inference that section [1109] applies retroactively to all cases not yet final on appeal." ( Frahs, supra , 9 Cal.5th at pp. 631–632, 264 Cal.Rptr.3d 292, 466 P.3d 844.) The People fail to identify any such indicators in Assembly Bill 333 or its legislative history. The only argument presented is that "deeming section 1109 to be retroactive would also impose an unsurmountable financial burden and prevent judicial economy."

The People cite to a statement in the Burgos dissent: "[The Legislature] relied on a fiscal analysis of the bifurcation provisions in section 1109 that was based on the assumption that the provisions would apply only prospectively. (Sen. Com. on Appropriations, Analysis of Assem. Bill No. 333 (2021–2022 Reg. Sess.) as amended July 13, 2021, p. 3.)" ( Burgos, supra , 77 Cal.App.5th at p. 571, 292 Cal.Rptr.3d 587 (dis. opn. of Elia, J.).) But what the Appropriations Committee said was that the fiscal impact of Assembly Bill 333 is unknown and difficult to predict. (Sen. Com. on Appropriations, Analysis of Assem. Bill No. 333, supra , pp. 1, 3.) Although section 1109 may increase "workload costs to the courts" (id. , p. 3), it could also produce "cost savings to [the California Department of Corrections and Rehabilitation] if it results in some individuals serving a shorter (or no) term of imprisonment" (id. , p. 4). This is not a clear indication of the Legislature's intent for prospective-only application. (Cf. Frahs, supra , 9 Cal.5th at p. 635, 264 Cal.Rptr.3d 292, 466 P.3d 844 ["[F]or an individual like defendant, who is currently serving a nine-year prison sentence, participation in a mental health diversion program rather than serving the remainder of his sentence could potentially result in substantial cost savings to the state"].) Accordingly, we conclude section 1109 applies retroactively to nonfinal judgments.

Juan contends retroactive application of section 1109 "results in structural error or, alternatively, [his entire] judgment must be reversed because of actual prejudice ...." Jasso and Jose make similar arguments. The structural error claim relies on Burgos, supra , 77 Cal.App.5th at page 568, 292 Cal.Rptr.3d 587, which we do not find persuasive. "There is a strong presumption that any error falls within the trial error category," i.e., is not structural, and thus "subject to harmless error analysis." ( People v. Anzalone (2013) 56 Cal.4th 545, 554, 155 Cal.Rptr.3d 352, 298 P.3d 849 ; see, e.g., People v. Mendoza (2000) 24 Cal.4th 130, 162, 99 Cal.Rptr.2d 485, 6 P.3d 150 ["Even if a trial court's severance or joinder ruling is correct at the time it was made, a reviewing court must reverse the judgment if the ‘defendant shows that joinder actually resulted in "gross unfairness" amounting to a denial of due process’ "].)

Defendants' ability to demonstrate prejudice depends on whether section 1109 affects the statutory scheme governing special circumstance allegations. In other words, prejudice cannot be shown if all the gang evidence would have been admitted due to the allegation of a gang murder for purposes of section 190.2(a)(22). We must therefore determine the interplay between section 1109 and section 190.1 et seq.

D. Section 1109 Does Not Apply to Section 190.1 et seq.

Assembly Bill 333 has been held to affect "other statutes that expressly incorporate provisions of section 186.22," including the "gang murder special circumstance" provision of section 190.2. ( People v. Lopez, supra , 73 Cal.App.5th at p. 346, 288 Cal.Rptr.3d 463.) Section 190.2 makes first degree murder punishable by death or LWOP if "[t]he defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang, as defined in subdivision (f) of Section 186.22, and the murder was carried out to further the activities of the criminal street gang." ( § 190.2(a)(22).) "As the definition of a criminal street gang has been narrowed by Assembly Bill 333 and new elements added in order to prove a criminal street gang and a pattern of criminal activity," the requirements for establishing liability under section 190.2(a)(22) have also changed. ( Lopez , at p. 347, 288 Cal.Rptr.3d 463.) Section 190.2 does not, however, contain any references to section 1109.

Section 1109 says nothing about the special circumstance statutes, and its provisions are specific to section 186.22, subdivisions (a), (b), and (d). Moreover, the procedures required by section 1109 conflict with the procedures set forth in section 190.1 et seq. For that reason, we first consider whether bifurcation of a gang special circumstance allegation is even permissible.

Section 190.1 provides, in relevant part:

"A case in which the death penalty may be imposed pursuant to this chapter shall be tried in separate phases as follows:

"(a) The question of the defendant's guilt shall be first determined. If the trier of fact finds the defendant guilty of first degree murder, it shall at the same time determine the truth of all special circumstances charged as enumerated in Section 190.2 except for a special circumstance charged pursuant to paragraph (2) of subdivision (a) of Section 190.2 where it is alleged that the defendant had been convicted in a prior proceeding of the offense of murder in the first or second degree.

"(b) If the defendant is found guilty of first degree murder and one of the special circumstances is charged pursuant to

paragraph (2) of subdivision (a) of Section 190.2 which charges that the defendant had been convicted in a prior proceeding of the offense of murder of the first or second degree, there shall thereupon be further proceedings on the question of the truth of such special circumstance."

Summarized, section 190.1 "require[s] the truth of a prior murder conviction special circumstance be tried only after the guilt determination, but other special circumstances, including a gang special circumstance ..., be determined at the same time as the guilt determination." ( People v. Hernandez, supra , 33 Cal.4th at p. 1049, 16 Cal.Rptr.3d 880, 94 P.3d 1080 ; accord, People v. Sivongxxay (2017) 3 Cal.5th 151, 171, 219 Cal.Rptr.3d 265, 396 P.3d 424.) The limited exception for allegations of a prior murder conviction "is intended for the benefit of capital defendants." ( People v. Farnam (2002) 28 Cal.4th 107, 146, 121 Cal.Rptr.2d 106, 47 P.3d 988.) "In essence, the statute recognizes that evidence of such a conviction may potentially have an inflammatory effect on jurors who are asked to determine a defendant's guilt or innocence on a current charge of murder." ( Ibid. )

It could be argued the phrase, "A case in which the death penalty may be imposed" means bifurcation is authorized without limitation where, as here, the prosecution elects not to seek the death penalty and the defendant's maximum exposure is LWOP. ( § 190.1, subd. (a).) But this interpretation is difficult to reconcile with other parts of the statutory scheme. Section 190.2 requires special circumstance allegations to be found true "under Section 190.4." ( § 190.2, subds. (a), (c).) Section 190.4 provides, in relevant part:

"Whenever special circumstances as enumerated in Section 190.2 are alleged and the trier of fact finds the defendant guilty of first degree murder, the trier of fact shall also make a special finding on the truth of each alleged special circumstance. The determination of the truth of any or all of the special circumstances shall be made by the trier of fact on the evidence presented at the trial or at the hearing held pursuant to Subdivision (b) of Section 190.1." ( § 190.4, subd. (a).)

As stated in People v. Fierro (1991) 1 Cal.4th 173, 3 Cal.Rptr.2d 426, 821 P.2d 1302, "The statutory scheme plainly contemplates that, except where the special circumstance alleged is that of a prior murder, the same jury which determines guilt shall also at the same time determine the truth of the special circumstance allegation." ( Id. at p. 229, 3 Cal.Rptr.2d 426, 821 P.2d 1302, italics added.) The only judicially recognized exception we have found appears in People v. Bigelow (1984) 37 Cal.3d 731, 209 Cal.Rptr. 328, 691 P.2d 994 ( Bigelow ), which the Fierro court summarized as follows:

"In that case, one of the special circumstance allegations was murder for the purpose of avoiding arrest or perfecting an escape. ( § 190.2, subd. (a)(5).) At the guilt phase the prosecution presented evidence highly prejudicial to the defendant, indicating that he had committed a dozen uncharged burglaries, robberies and thefts; the prosecution's primary theory of relevance was that the defendant committed each of the crimes to finance and perpetuate an escape from custody, which was relevant to the special circumstance allegation. Because of the ‘highly prejudicial’ nature of the prior-crimes evidence, we concluded that the trial court should have conducted a separate trial of the special circumstance allegation." ( Fierro , at p. 229, 3 Cal.Rptr.2d 426, 821 P.2d 1302.)

The Fierro appellant had moved to bifurcate a special circumstance allegation of murder committed during the perpetration of a robbery. ( People v. Fierro, supra , 1 Cal.4th at pp. 200, 228, 3 Cal.Rptr.2d 426, 821 P.2d 1302.) The California Supreme Court held the trial court's denial of the motion "was correct," explaining (1) such bifurcation is not contemplated by the statutory scheme and (2) the Bigelow case was distinguishable. ( Fierro , at p. 229, 3 Cal.Rptr.2d 426, 821 P.2d 1302.) The Bigelow exception, which allows for a "separate trial," applies where "highly prejudicial" evidence is "relevant only to a special circumstance" or so marginally relevant to the murder charge as to otherwise be inadmissible under Evidence Code section 1101, subdivision (b). ( Bigelow, supra , 37 Cal.3d at pp. 747–748, 209 Cal.Rptr. 328, 691 P.2d 994.)

Our research discloses no published case holding bifurcation of a special circumstance murder allegation is permissible other than as provided in section 190.1 et seq. The very few unpublished decisions addressing this issue have reached different conclusions. Either way, as now explained, we are unable to conclude section 1109 applies to gang murder allegations under section 190.2(a)(22).

Statutory interpretation is a matter of de novo review. ( People v. Lewis (2021) 11 Cal.5th 952, 961, 281 Cal.Rptr.3d 521, 491 P.3d 309.) "Our fundamental task ... is to determine the Legislature's intent so as to effectuate the law's purpose. We first examine the statutory language, giving it a plain and commonsense meaning. We do not examine that language in isolation, but in the context of the statutory framework as a whole in order to determine its scope and purpose and to harmonize the various parts of the enactment. If the language is clear, courts must generally follow its plain meaning unless a literal interpretation would result in absurd consequences the Legislature did not intend." ( Coalition of Concerned Communities, Inc. v. City of Los Angeles (2004) 34 Cal.4th 733, 737, 21 Cal.Rptr.3d 676, 101 P.3d 563.)

Defendants contend section 1109's silence regarding section 190.2 is a legislative oversight that must be corrected to prevent absurd results. They argue the circumstances of this case perfectly illustrate the problem. Even if section 1109 had existed when defendants were charged in Rubio's death, the special circumstance allegation of a gang murder would have effectively circumvented its provisions.

"Section 190.2, subdivision (a)(22) ‘contains three basic elements: (1) the defendant must intentionally kill the victim; (2) while an active participant in a criminal street gang; (3) in order to further the activities of the gang.’ " ( People v. Arce (2020) 47 Cal.App.5th 700, 712, 261 Cal.Rptr.3d 180.) The "active participant" requirement is indistinguishable from the "active participation" element of section 186.22, subdivision (a). ( Ibid. ; see People v. Castenada (2000) 23 Cal.4th 743, 747, 97 Cal.Rptr.2d 906, 3 P.3d 278.) The special circumstance provision expressly incorporates section 186.22, subdivision (f)'s definition of a criminal street gang, and the third element "substantially parallels the language of section 186.22, subdivision (b)(1)." ( People v. Carr (2010) 190 Cal.App.4th 475, 488, 118 Cal.Rptr.3d 221.) The phrase "activities of the criminal street gang" has been held to mean "the same activities that constitute the gang's pattern of criminal activity as described in section 186.22, subdivision (e)." ( Arce , at p. 713, 261 Cal.Rptr.3d 180.)

We agree with defendants insofar as section 1109 creates a potential for mischief. Prosecutors may now be incentivized to plead section 190.2(a)(22) allegations in purportedly gang-related homicide cases to introduce evidence that might otherwise be excluded because of section 1109. A gang murder allegation could also be used to leverage the type of one-sided plea bargains Assembly Bill 333 was intended to mitigate and prevent. (See Stats. 2021, ch. 699, § 2, subd. (e) ["The mere specter of gang enhancements pressures defendants to accept unfavorable plea deals rather than risk a trial filled with prejudicial evidence and a substantially longer sentence"].)

To reiterate, "judicial construction of unambiguous statutes is appropriate only when literal interpretation would yield absurd results." ( Simmons v. Ghaderi (2008) 44 Cal.4th 570, 583, 80 Cal.Rptr.3d 83, 187 P.3d 934.) The dilemma here is that absurd results are not attributable to a literal interpretation of any part of section 1109. (Cf. In re Mohammad (2022) 12 Cal.5th 518, 531, 288 Cal.Rptr.3d 271, 501 P.3d 635 ["language that seems plain when considered in isolation may be ambiguous when examined within the context of the scheme it implements"].) The statute provides for bifurcation of gang enhancement allegations "charged under subdivision (b) or (d) of Section 186.22," and mandates that "[i]f a defendant is charged with a violation of subdivision (a) of Section 186.22, this count shall be tried separately from all other counts that do not otherwise require gang evidence as an element of the crime." ( § 1109, subds. (a), (b).)

Defendants are asking us to rewrite section 1109 to expand the scope of its application, which would also require us to judicially amend multiple parts of a different statutory scheme, i.e., section 190.1 et seq. "Doing so would violate the cardinal rule that courts may not add provisions to a statute." ( Adoption of Kelsey S. (1992) 1 Cal.4th 816, 827, 4 Cal.Rptr.2d 615, 823 P.2d 1216 ; accord, People v. Guzman (2005) 35 Cal.4th 577, 587, 25 Cal.Rptr.3d 761, 107 P.3d 860.) "When construing a statute, our job is ‘simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted.’ " ( People v. Bell (2015) 241 Cal.App.4th 315, 321, 194 Cal.Rptr.3d 93, quoting Code Civ. Proc., § 1858.)

" ‘The Legislature is presumed to know the existing law and have in mind its previous enactments when legislating on a particular subject.’ " ( Unzueta v. Ocean View School Dist. (1992) 6 Cal.App.4th 1689, 1697, 8 Cal.Rptr.2d 614 ; accord, People v. Overstreet (1986) 42 Cal.3d 891, 897, 231 Cal.Rptr. 213, 726 P.2d 1288.) The following statement appears in the legislative history of Assembly Bill 333: "Existing law: [¶] ... [¶] Provides for a bifurcated trial process in determining guilt separately from punishment in cases where the death penalty may be imposed. ( Pen. Code, Section 190.1.)" (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill 333, as amended July 13, 2021, pp. 1, 4; accord, Assem. Com. on Public Safety, Rep. on Assem. Bill No. 333 (2021–2022 Reg. Sess.) as amended Mar. 30, 2021, pp. 2, 3.) This shows the Legislature was cognizant of the statutory procedures governing special circumstance murder allegations. We can only guess why there is no other mention of those procedures generally, or section 190.2(a)(22) specifically, in section 1109, or Assembly Bill 333, or elsewhere in the legislative history materials.

Furthermore, the potential to circumvent section 1109 by alleging a gang murder under section 190.2(a)(22) is not the only loophole in Assembly Bill 333. Also missing from section 1109 is any mention of the offense proscribed by section 182.5. "Proposition 21, the Gang Violence and Juvenile Crime Prevention Act of 1998, ... created a new crime of gang conspiracy, which punishes ‘any person who actively participates in any 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, assists, or benefits from any felonious criminal conduct by members of that gang.’ " ( People v. Lopez, supra , 12 Cal.5th at p. 969, 292 Cal.Rptr.3d 265, 507 P.3d 925, quoting § 182.5.) A determined prosecutor might even charge a traditional conspiracy ( § 182, subd. (a)(1) ) based on an alleged agreement to violate section 186.22, subdivision (a), which has already happened and withstood appellate review. (See People v. Johnson (2013) 57 Cal.4th 250, 255, 259–265, 159 Cal.Rptr.3d 70, 303 P.3d 379.) Another example, which Juan notes in his briefing, is section 1109's silence regarding the gang-related vicarious liability provision of section 12022.53. (See fn. 9, ante. )

Expanding the reach of section 1109 under the pretext of statutory construction would only invite more requests to amend the statute in future appeals. " ‘Each time the judiciary utilizes the "absurd result" rule, a little piece is stripped from the written rule of law and confidence in legislative enactments is lessened....’ [Citation.] Unlike a court's notion of absurdity and the revisions it would impose as a result, the text of the statute ‘has successfully braved the legislative gauntlet....’ [Citation]." ( People v. Bell, supra , 241 Cal.App.4th at pp. 351–352, 194 Cal.Rptr.3d 93.) Thus, "even when a legislature likely would have enacted a differently worded law had it foreseen future developments, any statutory revision reflecting that reality must come from that legislature, not the judiciary." ( Id. at p. 344, 194 Cal.Rptr.3d 93 ; accord, People v. White (2017) 2 Cal.5th 349, 371, 212 Cal.Rptr.3d 376, 386 P.3d 1172 (dis. opn. of Liu, J.) ["It is not our role to rewrite statutes, especially criminal statutes, to conform to the court's sensibilities"].) Therefore, we hold that section 1109, as originally enacted by Assembly Bill 333, does not apply to the determination of special circumstance allegations under section 190.2(a)(22).

E. Prejudice

III.-VI.

DISPOSITION

As to all defendants, the convictions of unlawful participation in a criminal street gang in violation of section 186.22, subdivision (a), and all enhancement allegations found true under subdivision (b) of the same statute, are reversed. As to Giovanni Jasso and Jose Montano only, the firearm enhancements imposed pursuant to section 12022.53 are reversed. As to Juan Montano, the prior prison term enhancements imposed pursuant to section 667.5 are reversed. In all other respects, the judgments are affirmed. The matter is remanded for further proceedings consistent with this opinion.

WE CONCUR:

HILL, P. J.

SMITH, J.