People v. Nazareta-Albano

Full title: THE PEOPLE, Plaintiff and Respondent, v. DEION NAZARETA- ALBANO, Defendant…

Court: California Court of Appeals, First District, Fourth Division

Date published: Jun 24, 2024

No. A161633 (Cal. Ct. App. Jun. 24, 2024)

Opinion

A161633 A161814

06-24-2024

THE PEOPLE, Plaintiff and Respondent, v. DEION NAZARETA- ALBANO, Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent, v. JUSTIN CHAND SINGH, Defendant and Appellant.

BROWN, P. J.

NOT TO BE PUBLISHED

Contra Costa County Super. Ct. No. 51600964

BROWN, P. J.

Deion Nazareta-Albano and Justin Chand Singh appeal after a jury convicted them of second degree murder, two counts of attempted murder, shooting at an occupied vehicle, and, in Nazareta-Albano's case, unlawful possession of a firearm. (Pen. Code, §§ 187, subd. (a), 246, 664, 29820, subd. (b).)¹ The jury found true gang enhancement allegations as to all five crimes and firearm enhancement allegations as to the first four. (§§ 186.22, subd. (b)(1)(C), (b)(4)-(5); 12022.53, subds. (d), (e)(1).) The trial court sentenced both defendants to nine years and four months in prison followed by 40 years to life in prison and said they would be entitled to consideration for parole after 25 years.

1 Undesignated statutory references are to the Penal Code.

Nazareta-Albano and Singh contend (1) a recent change to the statutory definition of a criminal street gang requires reversal of both the gang and firearm enhancements; (2) the trial court erred under Evidence Code section 352 in admitting four gang-related YouTube videos; (3) the trial court also erred in admitting the YouTube videos under Evidence Code section 352.2, which specifies certain criteria to consider when considering whether to admit creative works like rap videos and applies retroactively to this case; (4) recently adopted section 1109, which requires bifurcation of trials on substantive offenses and gang enhancements, applies retroactively and requires reversal of the judgment; and (5) remand is necessary for resentencing on the attempted murder convictions because of a recent statutory amendment creating a presumption in favor of the lower term for offenders like defendants who were under the age of 26 at the time of the offense.

The Attorney General concedes that the jury instructions on the gang enhancements are incorrect under the new definition of a criminal street gang, but he argues the error is moot as to the gang and firearm enhancements on counts 2 to 4 because the trial court struck them at sentencing and moot as to the firearm enhancements on count 1 because the jury's verdict supports those enhancements even without the gang enhancements. The Attorney General contends the introduction of the rap videos was proper under Evidence Code section 352, Evidence Code section 352.2 does not apply retroactively, and any error in the introduction of the videos under either statute was harmless.

The Attorney General further argues section 1109 is not retroactive and the failure to bifurcate was harmless in any event, but he concedes that remand is necessary for resentencing on the attempted murder convictions.

We conclude (1) the instructions on the definition of a criminal street gang are incorrect under a retroactive application of current law, but remand for retrial is unnecessary because the jury's verdict supports the firearm enhancement on count 1 without the gang enhancements and the trial court struck the gang and firearm enhancements as to counts 2 to 4²; (2) the admission of three of the YouTube videos was erroneous, but the error was harmless as to the substantive offenses under Evidence Code section 352 and section 352.2, assuming the latter statute applies retroactively; (3) section 1109 does not apply retroactively, as our Supreme Court recently held; and (4) remand is necessary for resentencing on the attempted murder counts under a recently enacted statutory amendment. We will therefore remand for resentencing on the attempted murder counts and to clarify certain minor aspects of defendants' sentence and will otherwise affirm the judgment.

2 The trial court did not mention the gang enhancement as to count 5 in its oral pronouncement of sentence or in its minute order, but it did not impose any additional sentence for that enhancement. We presume it intended to strike this enhancement as it did the gang enhancements on counts 2 to 4, but the trial court should clarify this on remand.

BACKGROUND

I. Prelude

In June 2012, Omar M.; Alberto "Tico" Coronado, Jr.; and Travis "White Boy" Sadler, who were all members of a Pittsburg gang called Midtown, committed a residential burglary.³ Omar M. told the police Coronado, Jr. was present at the burglary but did not name Sadler. Omar M. was a minor at the time, so after finding a juvenile delinquency petition true, the juvenile court sent him to the Byron Boys' Ranch.

3 Out of respect for their privacy, we use initials or first name and last initial to refer to the victims, witnesses, and other individuals not involved in any crime. (Cal. Rules of Court, rule 8.90(b)(4), (b)(10); Advisory Com. com., Cal. Rules of Court, rule 8.90.)

Nazareta-Albano, Singh, and Anthony V. were also at the Byron Boys' Ranch at the time. Omar M. had been friends with Anthony V. for two years. Singh labeled Omar M. a snitch, and defendants tried to ostracize him by preventing anyone else at the Ranch from associating with him. Anthony V. disregarded their pressure and remained friends with Omar M. Singh and Nazareta-Albano had a "beef" with Anthony V. because of this. Omar M. left the Midtown gang after being released from juvenile hall.

Anthony V. was the father of Racine P.'s children. In 2013 or 2014, Singh was staying at or visiting the house across the street from Racine P.'s house. One day, as Racine P. was leaving her house with her children, defendants made shooting gestures with their hands at her and the children. Racine P. told Anthony V. about the shooting gestures defendants had made.

In August or September 2014, Martin P., who is Racine P.'s brother, worked with Anthony V. Martin P. and Anthony V. were driving away from work in Anthony V.'s car one afternoon when Anthony V. pointed out someone yelling on the side of the road. Anthony V. said it was someone who had tried to fight him at the Byron Boys' Ranch. Martin P. rolled down his window and asked, "Who the fuck are you?" Singh responded with his nickname, Punjab, and said he was from "2100." Martin P. laughed because he had never heard of it. Singh said he had a problem with Anthony V., and Martin P. replied, "If you got a problem with him, you got a problem with me."

Martin P. and Anthony V. got out of the car, and as they were standing near Singh, a coworker in a passing car honked and pointed behind them. Martin P. turned and saw Nazareta-Albano running up with a pistol in his hand. Martin P. ran up to Nazareta-Albano and asked him what he was going to do with the pistol. Nazareta-Albano said, "I'm just putting it away," and put it behind his waistband. Singh and Anthony V. got face-to-face and exchanged words. Someone in a passing car yelled that they were calling the police, so defendants turned and ran while Anthony V. and Martin P. got back in Anthony V.'s car and drove home. Later, Martin P. saw Singh staring them down and looking tough in front of Anthony V.'s house.

Victor M. was a member of Midtown. One day in early December 2014, Victor M. was with Singh when they saw Anthony V. Together with his wife, Anthony V. told Singh he did not want Singh around his house. Singh tried to walk away, and there was no fight or display of weapons.

II. The Shooting

In December 2014, Cristian F. was about 20 years old and living in Pittsburg. Cristian F. had been friends with Anthony V. from childhood. Darren W. lived next door to Cristian F., and the two had known each other for a few months. One day that month, Anthony V. and Darren W. came to Cristian F.'s house in Anthony V.'s Chrysler sedan. Cristian F. got in the backseat, with Anthony V. driving and Darren W. in the front passenger seat. They drove to the EZ Stop Market, and Anthony V. got out to buy Swishers. Cristian F. stayed in the car and did not see Anthony V. interact with anyone. They then returned and parked in front of Cristian F.'s house against the flow of traffic, so that the driver's door was nearest the curb.

After sitting in the car, talking, and smoking marijuana, Cristian F. went into his house to get some food for his friends. About two minutes later, an SUV approached them from the opposite direction and parked alongside them, so that the SUV's passenger side was four or five feet from the passenger side of Anthony V.'s Chrysler. Cristian F. saw a lot of shadows of heads in the SUV.

According to Cristian F., the front passenger window of the SUV rolled down and Singh asked, "Is there a problem here?" Cristian F. did not know Singh, but Anthony V. identified him as "Punjabi" to Cristian F. and Darren W. when Singh rolled down the window. Anthony V. rolled down the front passenger window and said to Darren W., "Tell them there's no problem here." Nazareta-Albano and Singh popped out of the SUV. Cristian F. knew Nazareta-Albano from school. Nazareta-Albano walked in front of the Chrysler and Singh walked to a point on the side of the Chrysler between the front and rear passenger windows. Nazareta-Albano and Singh started shooting at the Chrysler, Nazareta-Albano from the front of the car and Singh from the side. Cristian F. did not see the guns specifically but did see flashes. According to Cristian F., neither Nazareta-Albano, Singh, Anthony V., nor Darren W. said anything after defendants got out of the SUV. No one in the Chrysler had a gun and no one pulled out a gun before Nazareta-Albano and Singh started shooting.

Victor M. was in the SUV at the time of the shooting. Around noon that day, Flavio C., a member of the Midtown gang, picked him up in a red SUV. At various points in the day, Flavio C. also picked up Singh and Nazareta-Albano, as well as Jesus G. and Jerad M., although Victor M. gave conflicting descriptions at trial of who was picked up when and ultimately admitted he did not remember. Besides Flavio C., Nazareta-Albano and Singh were both Midtown members, and Victor M. believed Jerad M. was as well. Singh was 19 years old, and Nazareta-Albano was 17 years old. Jerad M. was about 26 years old. Before that day, Victor M. knew Nazareta-Albano carried a .40-caliber Glock and that Singh carried a .22-caliber gun. Victor M. testified that they were both carrying their guns that day, but he admitted telling the police earlier that he had not actually seen Singh with a gun that night and merely said he had because Singh had been arrested as the second shooter.

In the evening around 7:00 p.m. or 8:00 p.m., Flavio C. dropped off Jesus G. Flavio C. drove to a small store, and some others got out to go into the store while Victor M. stayed in the car. Victor M. saw Anthony V. at the store with Darren W. and one other person he did not know. Victor M. saw Singh talk to Anthony V. but did not hear what they said. He did not see any physical altercation or display of weapons.

At trial, Victor M. initially remembered that upon returning to the SUV, Singh had said that he had spoken to Anthony V. about buying promethazine codeine syrup. But he corrected himself and said that Flavio C. had asked Darren W. about the syrup. Darren W. did not have any. They exchanged phone numbers so Darren W. could contact Flavio C. when he came across some. Victor M. remembered that upon returning to the SUV Singh had actually said he told Anthony V., "What's up Anthony, you trippin' on me?" According to Singh, Anthony V.'s response was, "No, I'm not trippin'." The only person Anthony V. was "bumping heads with" was Singh. Victor M. knew Anthony V. was a Norteno gang member.

After leaving the store, Flavio C. drove around while they smoked marijuana. At trial Victor M. first said that Nazareta-Albano was in the front passenger seat, and then corrected himself and said it was Singh. He admitted telling the police that Jerad M. was sitting in the front passenger seat because he was a big guy. Victor M. was sitting in the third row of the SUV. Someone suggested going to Cristian F.'s neighborhood to buy the syrup. On the way, Flavio C. suggested stealing it. Victor M. had no expectation that there would be a shooting.

When they arrived, they saw Anthony V.'s car facing them on the same side of the street. By this point, the idea of a robbery was over. The front passenger window of the Chrysler rolled down, and Singh rolled down his window and said something about buying syrup. He also invited a fistfight, saying, "We can handle it now and you can see me right now." Anthony V. said no in a scared tone. The rear passenger window of the Chrysler rolled down. Victor M. did not see anyone in the Chrysler holding a gun.

Singh said to Nazareta-Albano, "Bro, come on now" and they both got out of the SUV. Victor M. did not see any guns in their hands. They walked up to Anthony V.'s car. Victor M. initially remembered Nazareta-Albano standing on the driver's side while Singh stood on the passenger side, but he later corrected himself and said he was sure they were both on the passenger side, one near the front of the car and the other nearer the rear. After a minute or two, Victor M. heard Anthony V. say, "Darren, tell these niggas what's up." In Pittsburg, this phrase meant that Darren W. should show himself and probably fight Singh. It could also mean he should shoot Singh or that he should say they did not have anything for them. Immediately afterward, as Flavio C. pulled forward a little, Victor M. heard gunshots. He looked out the back window of the SUV and saw Nazareta-Albano and Singh shooting guns with their arms in the windows of Anthony V.'s car. Defendants got back in the SUV, but Victor M. did not see guns in their hands. Everyone in the SUV was shocked.

Cristian F. was shot in the stomach and three or four times in his right leg. Darren W. was shot through his right shoulder and through the back of his right knee. Anthony V. had two fatal gunshots in the chest, one of which passed through his body and one which lodged in his abdomen. Another bullet passed through his left arm, and a fourth entered his groin and fractured his thigh.

III. Police Investigation

When the police arrived, Cristian F. thought he was going to die so he told them that Nazareta-Albano and Singh had shot him and identified them by race. While Anthony V. was waiting for the ambulance to arrive, he told the police that Nazareta-Albano shot him with a "big gun," "a pistol." Anthony V. died early the next morning at the hospital.

When the police arrived, the scene was chaotic, with Anthony V. lying on the ground outside the car and civilians on both sides of the car. A can of mace with the safety off was on the ground on the driver's side of the Chrysler near the rear door. The police searched Cristian F.'s house but did not search Darren W.'s.

The police found three .40-caliber casings on the ground outside the Chrysler, one by the backside of the front passenger wheel and two outside the rear passenger door. Another .40-caliber casing was in the Chrysler's windshield wiper tray, a little under the hood of the car. Five .40-caliber casings were inside the Chrysler, one on the front passenger seat, one on the front passenger floor, one on the dashboard, one on the driver's seat, and one in the center console. A bullet was in the center console, and brass bullet jackets were on the center console and under the driver's seat. Hospital staff gave the police two bullets that had been recovered from the body of Anthony V., which were the same caliber as each other. The two bullets recovered from Cristian F. were two different calibers, the larger of which had been shot into Cristian F.'s leg.

The police were able to reconstruct the trajectories of five bullets that struck the interior of the Chrysler. Four of the five bullets went in at various angles through the front passenger window, and one went in through the rear passenger window.

Using cell phone records, the police established that Nazareta-Albano, Flavio C., and Jerad M.'s phones were in approximately the same location near the crime scene at the time of the shooting. Singh did not have a cell phone on him when he was arrested. A fingerprint lifted from inside the SUV matched to Singh, but the police could not establish when Singh made the print.

When the police came to the hospital, Cristian F. did not want to talk to them because he feared retaliation if he became a witness. Darren W. also refused to give a statement to the police. Several months later, however, Cristian F. changed his mind because he learned Anthony V. had died and he felt he owed it to him. Cristian F. identified Nazareta-Albano and Singh from six-photograph line-ups, despite having only seen Singh during the shooting. Cristian F. and his family participated in the California Witness Relocation and Assistance Plan for about two years after the shooting, under which the program paid rent for Cristian F.'s family in exchange for his agreement to testify.

When the police interviewed Victor M. about the shooting, after they had arrested him for an unrelated burglary, he initially denied being in the SUV at the time of the shooting because he feared retaliation for snitching. Victor M. changed his mind and told the police what happened because it was the right thing to do. Because he talked to the police, he and his family moved out of Pittsburg. He admitted, however, that when he changed his mind and told the police what happened, he was worried he would be charged with the shooting. The police never told Victor M. about the crime-scene evidence.

In January 2016, the People charged defendants by grand jury indictment with the murder of Anthony V. (§ 187, subd. (a)) as count 1, with a special circumstance allegation under section 190.2, subdivision (a)(22) that they were active participants in a criminal street gang and the murder was carried out to further the activities of the gang. Defendants were also charged in counts 2 and 3 with the attempted murders of Cristian F. and Darren W. (§§ 187, subd. (a), 664) and, in count 4, shooting at an occupied vehicle (§ 246). The People alleged enhancements to the various counts for gang activity under section 186.22, subdivision (b)(1)(C), (b)(4), and (b)(5); personal discharge of a firearm under section 12022.53, subdivision (d); and vicarious liability for personal discharge of a firearm under section 12022.53, subdivisions (d) and (e)(1) (section 12022.53(d) &section 12022.53(e)(1), respectively). The People also made allegations under Welfare and Institutions Code former section 707, subdivision (d)(1) and (d)(2)(A), which at the time permitted the filing of charges against Nazareta-Albano in adult court. (Welf. &Inst. Code, former § 707, subd. (d)(1) &(d)(2)(A), as amended by Stats. 2010, ch. 178, § 97.) Finally, in count 5 the People charged Nazareta-Albano with unlawful possession of a firearm (§ 29820, subd. (b)), with a gang enhancement under section 186.22, subdivision (b)(1)(A).

In November 2016, the voters approved Proposition 57, which repealed the provisions of Welfare and Institutions Code section 707 that had permitted the direct filing of charges against Nazareta-Albano. (See People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303, 305.) In January 2017, Nazareta-Albano was transferred to juvenile court for a hearing under the new law to determine whether he could be tried in adult court. (See Welf. &Inst. Code, § 707, subd. (a)(1).) At the end of that fitness hearing in July 2018, the juvenile court found Nazareta-Albano not a fit and proper subject for juvenile court and transferred his case back to adult court.

IV. Trial Evidence

A. Eyewitnesses

The prosecution presented testimony from Cristian F. and Victor M. as witnesses to the shooting. The prosecution played a bodycam video showing Cristian F. identifying defendants by name, race, and affiliation with Midtown at the scene. Another video showed Anthony V. identifying Nazareta-Albano as the person who shot him.

B. Midtown Gang

The prosecution also presented testimony about the Midtown gang. Much of this evidence came from Josh Reddoch, a Pittsburg police sergeant, who was qualified as an expert in criminal street gang investigations and investigations regarding the Midtown criminal street gang. Midtown's primary activities were unlawful gun possession, home burglaries, and armed robberies. Midtown also referred to themselves as Midz, MTG, and 2100, after the address of the Lido Square Apartments on 2100 Crestview, which was Midtown's primary territory. The hand sign was an "M." Midtown was less formal and had no specific rules or guidelines, ranks, or titles, unlike other gangs. Crime proceeds were split between the participants, but it was also common to share the proceeds with other members.

Members gained status by committing crimes, with higher status coming with more violent crimes. Midtown was associated with the Norteno gang.

Midtown's culture was the same as that of other gangs. Midtown members commonly talked about the importance of having respect and reputation. Violence was important because it built the gang's reputation as the toughest, strongest, most dangerous group around. Possessing guns helped create fear in rivals as a means of obtaining respect and enabled gang members to commit crimes. Gangs and gang members did not tolerate disrespect. Gangs and gang members would act to build their reputation and show that they were violent and not willing to be disrespected.

Reddoch opined that Singh and Nazareta-Albano were Midtown members, based in part on Cristian F. and Victor M. identifying them as such. The prosecution presented photographs of Midtown members associating with one another and displaying gang signs, gang tattoos, and guns. Reddoch identified more than three other members of Midtown from these photos.

C. YouTube Videos

The prosecution played for the jury four YouTube videos related to Midtown. One, titled "AK47 Presents," was part of a series of videos in which the producer went to different gang areas and in effect allowed the gang to promote itself to other gangs. One individual in the video, a Midtown member, says at one point, "Feel me, free my nigga Tico, nigga. Nigga, my nigga Tico. White boy. Fucking snitchin' ass niggas bro for real. I'll mob 'em when you get out, nigga." Reddoch construed this as a warning to Omar M. for snitching on Alberto "Tico" Coronado, Jr. and Travis "White Boy" Sadler. Reddoch identified the locations in the video as part of Midtown's claimed territory and many of the individuals in the video as Midtown members. One of the Midtown members displayed a handgun.

The second video was titled "Like This." Unlike "AK47 Presents," "Like This" is a rap music video. The video features references to Midtown by its nicknames 2100, Midz, MTG, and Mob, as well as displays of Midtown's gang sign. The video also features the lyrics, "I bounce out the whip and start bangin' the TEC" and "We got killas in the Midz." Reddoch cited the former lyric as referring to jumping out of a car shooting a TEC-9 handgun and exemplifying Midtown's "violent mentality about shooting and killing." One of the other lines, "He got smacked 'cause he had the feds on the other line. Shoulda knew he was a witness and damn it's a shame, he was one of us, had to take our own out the game," Reddoch cited as an example of killing someone for snitching to law enforcement.

The third video, "Devils," was also a rap video. Reddoch identified one of the locations in the video as a Midtown hangout and some of the people in the video as Midtown members displaying the Midtown gang sign. Most significantly, Reddoch identified Singh in the background of the video at one point making the Midtown gang sign with his hands. Reddoch took a screen shot of this frame of the video, and the prosecution introduced it as a separate exhibit. The video also mentions "Bustin' Oxy" "strictly for the profit," an apparent reference to drug sales. Reddoch highlighted one lyric, "I spend a stack on a Glock and a k-clip," as a reference to a handgun with an illegal extended magazine. Reddoch cited the lyric, "If I catch a sucka lackin', then I'm heatin' them up. Gun play all day," as an example of the gang's "violent mentality." "Like This" also includes the lyrics, "Behind 10 with yo bitch can't be seen with a slut," and "He got caught out of bounds, now they chalkin' him out."

The final video, "Believe Me," was another rap video. Some gang members appear in the background of the video together, displaying the Midtown gang sign. Reddoch construed the lyric, "If you ain't got no gun then you should cop one," as a warning to rivals to arm themselves. Reddoch told the jury that the line, "Got this chop up on my lap strictly for my enemies," was a reference to an assault rifle. The line, "Hit the target and the witness because he wasn't supposed to see," demonstrated to Reddoch the gang's willingness to kill someone for snitching.

D. Predicate Crimes and Gang Benefit

Reddoch told the jury that every crime committed by gang members would benefit the gang by enhancing the gang's reputation. He identified several crimes as predicate offenses that established Midtown's pattern of criminal activity and that benefited the gang.

Coronado, Jr. pled no contest to a misdemeanor count of carrying a concealed firearm in a vehicle in November 2011 in violation of former section 12025, subdivision (a)(3), repealed by Senate Bill No. 1080 (2010-2011 Reg. Sess.) (Stats. 2010, ch. 711, § 4).

Coronado, Jr. and Sadler pled no contest to the June 2012 burglary committed with Omar M. Reddoch opined that this crime was for the benefit of Midtown because it enhanced the gang's reputation and gang members typically share the proceeds of crimes with other gang members. But he admitted he had no evidence that Coronado, Jr., Sadler, or Omar M. intended to share the proceeds of this particular burglary with the gang.

Devon Owens pled no contest to a misdemeanor violation of section 25400, subdivision (a)(2)(B)(7), carrying a concealed firearm, in February 2012.

Late one night in May 2013, Pittsburg police pulled over a vehicle with eight occupants, two of whom were Devon Owens and Nazareta-Albano. Nazareta-Albano had a loaded nine-millimeter handgun in his waistband. Three other handguns were in the vehicle, two .40 caliber and one .357 caliber. Owens, like Nazareta-Albano, was a member of Midtown. Owens pled no contest to possessing a gun while on probation, in violation of section 29815. A juvenile delinquency petition as to Nazareta-Albano was sustained as to counts of possessing a concealed firearm in a vehicle in violation of section 25400, subdivisions (a)(1) and (c)(6) and grand theft in violation of section 487, subdivision (c).⁴ Reddoch believed the possession of the illegal firearms in the vehicle, including the gun in Nazareta-Albano's waistband, benefited the gang by enhancing its reputation and allowing gang members to carry out violence to intimidate people.

4 The court records the prosecutor used to establish the outcome on this juvenile delinquency petition also showed that Nazareta-Albano had committed a robbery in April 2013. However, we do not include this in the predicate offenses because there was no testimony about it and the prosecutor did not discuss it or how it benefited the gang.

The .357-caliber gun and one of the .40-caliber guns had been stolen in a residential burglary in Pittsburg in December 2012. Singh's fingerprint was found on a window that had been the point of entry into the residence. Reddoch believed this crime benefited Midtown because the stolen guns were later distributed to Nazareta-Albano, Owens, and other gang members.

At the conclusion of his testimony, in response to hypothetical questions, Reddoch testified that crimes matching the facts of the charged offenses were committed in association with Midtown or for its benefit because multiple members were involved and the crimes enhanced the gang's reputation, punished disrespect, and created and instilled fear.

V. Verdict and sentence

After some delays related to the COVID-19 pandemic, in June 2020 the jury acquitted both defendants of first degree murder. It convicted them of second degree murder on count 1 and convicted them as charged in counts 2 to 4 and Nazareta-Albano as charged in count 5. It found true the gang enhancement allegations as to all the offenses. It further found, for counts 1-4, that both defendants personally and intentionally discharged firearms and proximately caused the death of Anthony V. and great bodily injury to Cristian F. and Darren W. The verdict form for this finding on count 1 referred to "PC 12022.53(d)/(e)."

The trial court sentenced defendants to 15 years to life on count 1. It added 25 years to life for the firearm enhancement, for a total of 40 years to life on that count. Its minute order states that it struck the punishment on the gang enhancement to count 1 under sections 186.22, subdivision (b)(5) and 1192.7, subdivision (c)(28) because the underlying crime carried a life sentence.⁵ For count 2, the trial court imposed the middle term of seven years. For count 3, the trial court imposed a consecutive one-third of the middle term of seven years, or two years and four months. It imposed the five-year middle term on count 4, stayed pursuant to section 654. As to counts 2 to 4, the trial court said at the hearing that it was striking the gang and firearm enhancements in the interest of justice, but the minute order stated that it was striking the punishment for those enhancements. The abstracts of judgment, whose instructions state that enhancements fully stricken by the court should not be listed, lists only the enhancement to count 2 and states the punishment for it was struck. The court imposed the middle term of two years on Nazareta-Albano for count 5 and stayed it pursuant to section 654. The total determinate sentence for both defendants was therefore nine years and four months. The trial court stated that defendants would be eligible for parole consideration after 25 years.

5 Section 186.22, subdivision (b)(1)(B) adds a five-year enhancement to a felony sentence for any crime defined as a "serious felony" in section 1192.7, subdivision (c). Section 1192.7, subdivision (c)(28) specifies that "any felony offense, which would also constitute a felony violation of Section 186.22," constitutes a serious felony. Section 186.22, subdivision (b)(5) establishes that if the felony underlying a gang enhancement under section 186.22, subdivision (b) "is punishable by a life term, the court must impose a minimum parole eligibility period of 15 years (often called the 'alternative penalty provision'), rather than an enhancement. [Citations.] In other words, when a court imposes the alternative penalty provision under section 186.22, subdivision (b)(5), it cannot also impose an enhancement under section 186.22, subdivision (b)(1)." (People v. Cervantes (2020) 46 Cal.App.5th 213, 227.)

DISCUSSION

I. Change to definition of criminal street gang

" 'In 1988, the Legislature enacted the California Street Terrorism Enforcement and Prevention Act (STEP Act; § 186.20 et seq.) to eradicate "criminal activity by street gangs."' [Citation.] Among other things, the STEP Act created 'a sentencing enhancement for a felony committed "for the benefit of, at the direction of, or in association with any criminal street gang" (. . . § 186.22, subd. (b)(1)).' [Citation.] [¶] In 2021, the Legislature passed Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Assembly Bill 333), which became effective on January 1, 2022 (see Stats. 2021, ch. 699)." (People v. Tran (2022) 13 Cal.5th 1169, 1205-1206.) Assembly Bill 333 made several changes to the law on gang enhancements, including changing section 186.22, subdivision (e)(1)'s definition of the" 'pattern of criminal activity'" required for a group to qualify as a criminal street gang, so that the predicate offenses constituting the pattern must now provide a common benefit to the gang that is" 'more than reputational.'" (Tran, at p. 1206.)

Section 12022.53 sets forth different lengths of sentence enhancements for different types of firearm use during the commission of enumerated felonies. (See People v. Garcia (2002) 28 Cal.4th 1166, 1171 [discussing prior, materially identical, version of statute].) As relevant here, section 12022.53(d) establishes a consecutive 25-year-to-life term for "a person who, in the commission of a felony specified in subdivision (a) [of section 12022.53], Section 246, or subdivision (c) or (d) of Section 26100, personally and intentionally discharges a firearm and proximately causes great bodily injury . . . or death ...." Section 12022.53(e)(1) imposes vicarious liability "on aiders and abettors who commit crimes in participation of a criminal street gang. [Citation.] 'The enhancements specified in this section shall apply to any person charged as a principal in the commission of an offense that includes an allegation pursuant to this section when a violation of both this section and subdivision (b) of Section 186.22 are pled and proved.' (§ 12022.53, subd. (e)(1).)" (Garcia, at p. 1171, fn. omitted.)

Defendants contend that Assembly Bill 333's changes to the definition of a "criminal street gang" apply to their case and that the jury instructions on their gang enhancements are erroneous under the new law. The Attorney General agrees. We review this issue independently and agree with the parties. (People v. Cole (2004) 33 Cal.4th 1158, 1210 [adequacy of jury instructions is reviewed de novo].) Assembly Bill 333's changes apply to defendants' case because it was pending on appeal when the law took effect on January 1, 2022. (People v. Tran, supra, 13 Cal.5th at pp. 1206-1207 [Assem. Bill 333's changes to the definition of criminal street gang apply to non-final cases]; see People v. Esquivel (2021) 11 Cal.5th 671, 678, 680 [conviction is not final until direct appellate review is complete, including any petition for review to California Supreme Court and petition for writ of certiorari to United States Supreme Court].) Because the law at the time did not require it, the instructions did not tell the jury that, among other things, it needed to find that the benefit to Midtown of the predicate offenses was more than reputational.⁶The instructions are therefore incorrect under current law.

6 Assembly Bill 333 changed the definition of "criminal street gang" in other ways that would likely also require reversal. However, we need not discuss any of the other statutory changes because the new requirement that the gang benefit from predicate offenses be more than reputational itself requires reversal.

Defendants contend the errors in the jury instructions as to the gang enhancements were prejudicial under the federal standard of harmlessness beyond a reasonable doubt. (People v. Cooper (2023) 14 Cal.5th 735, 739, 742 (Cooper) [applying federal harmless error analysis to error in instruction on predicate offenses under Assem. Bill 333].) The Attorney General agrees, as do we.

Reddoch, the prosecution's gang expert, said every crime committed by gang members would benefit the gang by enhancing the gang's reputation. More specifically, four of the predicate offenses consisted of carrying concealed weapons, which Reddoch said helps establish the gang's reputation. He also said that possessing firearms allows gang members to commit violent crimes to intimidate people. But this, too, was essentially a matter of reputation, since there was no evidence that the gang relied on intimidation to obtain concrete benefits.

Reddoch opined that the burglary Coronado, Jr. committed with Sadler and Omar M. was for the benefit of Midtown because it enhanced the gang's reputation. He also said that gang members typically share the proceeds of crimes with other gang members, but he admitted there was no evidence that proceeds of this specific burglary would be shared, so that aspect of his testimony was speculative and insufficient. (Cooper, supra, 14 Cal.5th at p. 743 [instructional error not harmless in part because of lack of evidence of how robbery and sale of narcotics benefited the gang as a whole, rather than the offender].)

The only predicate offense that did have an obvious non-reputational benefit to the gang was Singh's residential burglary, since it yielded firearms that were distributed to gang members, as Reddoch noted. But section 186.22, subdivision (e)(1) requires at least two offenses with a common benefit to the gang to constitute a pattern of criminal activity, so Singh's burglary is not enough to support the gang enhancements. We therefore cannot say beyond a reasonable doubt that the instructional error did not affect the verdict on the gang enhancements.

Prejudicial error in jury instructions such as this usually requires reversal and remand for a possible retrial of the affected enhancements. That was the disposition our Supreme Court adopted in Cooper, supra, 14 Cal.5th at page 746, a recent case in which it reversed a gang enhancement based on Assembly Bill 333. As defendants note, the court also reversed a section 12022.53(e)(1) firearm enhancement because it was "contingent on a true finding on the gang enhancement." (Cooper, at p. 746.) The Attorney General nonetheless argues that there is no need to remand for further proceedings on the gang and firearm enhancements in this case. We agree with the Attorney General.

A. Gang and firearm enhancements on counts 2 to 4

The Attorney General contends that because the trial court struck the gang and firearm enhancements on counts 2 to 4, the instructional error is now moot as to those enhancements. He acknowledges that the trial court's minute order reflects that the trial court struck only the punishment for those enhancements and not the enhancements themselves, and the abstracts of judgment only mention striking the punishment for the gang and firearm enhancements on count 2. But he notes that the oral pronouncement of judgment controls over a minute order or abstract of judgment and that the trial court said that it was striking all the enhancements, not merely the punishment associated with the enhancements.

The Attorney General is correct that the oral pronouncement of judgment controls. (People v. El (2021) 65 Cal.App.5th 963, 967.) The trial court's oral pronouncement of judgment stated simply that it was striking the gang and firearm enhancements and did not say it was striking the punishment for the enhancements, as the minute order states. Nor did the trial court's oral pronouncement say that the court was striking the punishment only for the firearm enhancement to count 2, as the abstract of judgment indicates. The trial court also failed to mention any requirement under section 186.30, subdivision (b)(2), which requires an offender to register with law enforcement upon moving to a locality if the offender was convicted of "[a]ny crime where the enhancement specified in subdivision (b) of Section 186.22 is found to be true." (See § 186.31 ["At the time of sentencing in adult court, . . . the court shall inform any person subject to Section 186.30 of his or her duty to register pursuant to that section. This advisement shall be noted in the court minute order"].) This indicates the trial court intended to strike the gang enhancements in the sense of dismissing them entirely. There is no indication it intended to treat the gang and firearm enhancements on counts 2 to 4 any differently. The error in the gang enhancement instructions is therefore moot as to the gang and firearm enhancements on counts 2 to 4, and remand for retrial on those enhancements is not necessary despite the error in the jury instructions on the definition of a criminal street gang. On remand, the trial court shall correct the abstracts of judgment to reflect the striking of the gang and firearm enhancements entirely on counts 2 to 4.

B. Firearm enhancements on count 1

The Attorney General argues that we also need not set aside the firearm enhancements on count 1, which the trial court imposed. The Attorney General contends that those firearm enhancements can survive under section 12022.53(d) without regard to vicarious liability under section 12022.53(e)(1) because the verdict forms show the jury found Nazareta-Albano and Singh each personally discharged a firearm.

In count 1, the prosecution charged Nazareta-Albano and Singh each with both personal discharge of a firearm causing Anthony V.'s death under section 12022.53(d) as well as vicarious liability for a principal's personal discharge of a firearm causing Anthony V.'s death under section 12022.53(d) and (e)(1). The verdict forms state that the jury found each defendant, "a principal in the crime, personally and intentionally discharged a firearm, to wit, a handgun, which proximately caused death to Anthony [V.] [(PC 12022.53(d)/(e)]." (Material in second brackets in original.) The Attorney General reasons that the verdict forms show the jury found that the section 12022.53(d) enhancement was true because Nazareta-Albano and Singh each personally discharged a firearm that caused Anthony V.'s death. Thus, according to the Attorney General, a retrial on the firearm enhancements on count 1 is not necessary because even if the gang enhancement finding that was a prerequisite to finding vicarious liability under section 12022.53(e)(1) is eliminated (due to the instructional error discussed ante), the evidence and the verdict form independently support the enhancement under section 12022.53(d). The only remedy necessary, according to the Attorney General, is to delete from each abstract of judgment the reference to subdivision (e) on the firearm enhancement on count 1.

In response, defendants point out that a" '" 'verdict is to be given a reasonable intendment and be construed in light of the issues submitted to the jury and the instructions of the court.'" '" (People v. Camacho (2009) 171 Cal.App.4th 1269, 1272.) They contend this principle applies here because the jury did not receive an instruction asking it to find whether either defendant individually discharged a firearm. The court provided CALCRIM No. 1402, which applies to the firearm enhancement under the vicarious liability provision in section 12022.53(e)(1). CALCRIM No. 1402 told the jury it could find the firearm enhancement allegation true if "1. Someone who was a principal in the crime personally used or discharged a firearm during the commission of the Murder, Attempt Murder, and/or Shooting at an Occupied Vehicle; [¶] 2. That person intended to discharge the firearm; [¶] AND [¶] 3. That person's act caused great bodily injury to or the death of another person." (Italics added.) The instruction also stated, "A person is a principal in a crime if he directly commits the crime or if he aids and abets someone else who commits the crime." The court did not provide CALCRIM No. 3149, which applies to the firearm enhancement under section 12022.53(d) alone. CALCRIM No. 3149 states that for a jury to find a defendant personally discharged a firearm causing great bodily injury or death, the jury must find "1. The defendant personally discharged a firearm during the commission [or attempted commission] of that crime; [¶] 2. The defendant intended to discharge the firearm; [¶] AND [¶] 3. The defendant's act caused (great bodily injury to/ [or] the death of) a person [who was not an accomplice to the crime]." Because the jury only heard CALCRIM No. 1402, which did not tell the jury that it needed to find each defendant personally discharged a gun in order to find the enhancement true, defendants contend that the jury's verdict form cannot be construed as making that finding.

In a different case, we would agree with defendants that, in light of the difference between the two instructions, the failure to instruct the jury to find that each defendant personally used a firearm would require reversal of the firearm enhancement, notwithstanding the verdict form. But here, the failure to give both instructions is harmless and does not undermine the verdict because the evidence that the jury credited would not have permitted a finding that either defendant did not discharge a gun. (See People v. Davis (2005) 36 Cal.4th 510, 564 ["even when jury instructions completely omit an element of a crime, and therefore deprive the jury of the opportunity to make a finding on that element, a conviction may be upheld under Chapman where there is no 'record . . . evidence that could rationally lead to a contrary finding' with respect to that element"]; People v. Mil (2012) 53 Cal.4th 400, 417 ["Our task, then, is to determine 'whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element' "].)

Evidence that both defendants shot at the victims was overwhelming. Cristian F. identified both defendants as the shooters while still at the scene, and Anthony V. named Nazareta-Albano. Victor M. testified that Nazareta-Albano habitually carried a .40 handgun and Singh carried a .22-caliber handgun. Victor M. also said he was in the SUV at the time, saw defendants get out of the SUV and stand on the passenger side of the Chrysler, heard shots, and saw both defendants pulling their arms out of the Chrysler's windows. Victor M. offered conflicting descriptions of who sat where in the SUV and in what order the driver, Flavio C., picked them all up. But his testimony on the key details of the shooting matched the crime-scene evidence of the size of casings and their placement on and in the passenger side of the Chrysler, as well as the relative sizes of the bullets in the victims. The police never told Victor M. about this crimescene evidence. Cell phone evidence also showed that Nazareta-Albano, Flavio C., and Jerad M. were near the scene of the crime when it occurred, just as Victor M. said. The only discrepancies were that Cristian F. said Nazareta-Albano was standing in front of the Chrysler and he did not remember any exchange of words after defendants got out of the SUV. But given that Cristian F. was asked to recall specific details of what happened while he was being shot multiple times, these minor discrepancies are not significant in light of Victor M.'s testimony and the physical evidence.

Neither Singh nor Nazareta-Albano cast any credible doubt on this evidence. Nazareta-Albano primarily advanced a self- defense or imperfect self-defense theory. Nazareta-Albano thus conceded that he fired into the Chrysler, so the jury had no reason to draw any finding to the contrary. Singh's strategy, by contrast, was to attempt to discredit each of the eyewitnesses who identified him as a shooter and argue he was never at the scene. Singh's counsel told the jury that "the fundamental question in evaluating Mr. Singh's case is, Was he there? Did he do this?" The jury evidently disbelieved this defense, since it found him guilty on all counts. And because the only evidence of Singh's involvement was as a shooter and the prosecutor never suggested that Singh or Nazareta-Albano had any other role, the jury must have concluded he discharged a firearm. Even when the prosecutor addressed liability on the firearm enhancements based on an aiding and abetting theory, he argued only that each defendant aided and abetted the other by shooting.

It is also significant that the verdict form identified each defendant as "a principal in the crime" who personally and intentionally discharged a firearm. The verdict form, especially given the nature of the evidence at trial, therefore indicates the jury found that each defendant was the principal mentioned in CALCRIM No. 1402 who discharged the firearm and proximately caused Anthony V.'s death. There is no evidence that could have supported any contrary finding that only one of the defendants shot both of the calibers of bullets found at the scene.

Defendants argue the prosecution made a tactical decision to rely only on the vicarious liability provision in section 12022.53(e)(1) because of the lack of evidence establishing which defendant fired the specific bullets that caused each victim's injuries. But under established principles of causation for section 12022.53(d) enhancements, the prosecution did not have to present such evidence. "Section 12022.53(d) requires that the defendant 'intentionally and personally discharged a firearm' (italics added), but only that he "proximately caused" the great bodily injury or death.... The statute states nothing else that defendant must personally do. Proximately causing and personally inflicting harm are two different things." (People v. Bland (2002) 28 Cal.4th 313, 336.) Accordingly, when two shooters fire at the same victim, the prosecution need not prove which shooter's bullet killed the victim for the section 12022.53(d) enhancement because each defendant's act of shooting a flurry of bullets proximately caused the death. (Bland, at pp. 334, 336338.)

The reversal of the section 12022.53(e)(1) enhancement in Cooper, supra, 14 Cal.5th at page 746 is not to the contrary. That decision did not address whether the jury's verdict or the record supported a firearm enhancement without the vicarious gang liability under section 12022.53(e)(1)."' "[I]t is axiomatic that cases are not authority for propositions not considered." '" (People v. Gray (2023) 15 Cal.5th 152, 169, fn. 5.)

In short, the jury's verdict form and the evidence at trial make clear that if the jury instructions had told the jury to make a separate finding under just section 12022.53(d) that each defendant personally discharged a firearm, the jury assuredly would have had done so. Because the firearm enhancements on count 1 do not depend on the gang enhancement findings, the error in the instructions on the gang enhancements does not require reversal of the firearm enhancements on count 1.

II. Evidence Code section 352 and gang videos

A. Error

"Under Evidence Code section 352, a trial court may exclude otherwise relevant evidence when its probative value is substantially outweighed by concerns of undue prejudice, confusion, or consumption of time. 'Evidence is substantially more prejudicial than probative [citation] if, broadly stated, it poses an intolerable "risk to the fairness of the proceedings or the reliability of the outcome." '" (People v. Riggs (2008) 44 Cal.4th 248, 290.) "In applying this statute we evaluate the 'risk of "undue" prejudice, that is," 'evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues,'" not the prejudice "that naturally flows from relevant, highly probative evidence." '" (People v. Salcido (2008) 44 Cal.4th 93, 148.)

" 'Gang evidence is admissible if it is logically relevant to some material issue in the case other than character evidence, is not more prejudicial than probative, and is not cumulative. [Citations.] . . . [¶] However, gang evidence is inadmissible if introduced only to "show a defendant's criminal disposition or bad character as a means of creating an inference the defendant committed the charged offense. [Citations.]" [Citations.] . . . Even if gang evidence is relevant, it may have a highly inflammatory impact on the jury. Thus, "trial courts should carefully scrutinize such evidence before admitting it."' [Citation.] 'A trial court's admission of evidence, including gang testimony, is reviewed for abuse of discretion.'" (People v. Coneal (2019) 41 Cal.App.5th 951, 964 (Coneal).)

Defendants contend the trial court erred under Evidence Code section 352 when it admitted the four YouTube videos showing Midtown members boasting about their gang and rapping about buying and using weapons, threatening rivals, and retaliating against a member who snitched to the police.⁷ We find no error in the trial court's admission of one video, but we agree with defendants that three others should have been excluded.

7 Defendants did not state the reason for their objection to the admission of the videos at trial. But the trial court ruled that motions in limine would be deemed as having been made at trial, and they moved in limine to exclude the videos. Defendants preserved the issue.

First, "AK47 Presents" appears to be a sort of promotional video for Midtown in which gang members speak to the camera, not an artistic work. In the video, a gang member mentions freeing two people named "Tico" and "White Boy" and, upon their release, "mob[bing]" someone who had snitched on them. Reddoch explained that Tico and White Boy were Midtown members Alberto Coronado, Jr. and Travis Sadler, respectively, who were in custody related to the burglary case in which Omar M. was accused of giving information to the police. Nazareta-Albano conceded at trial that this video constituted a threat to Omar M. As this video was directly relevant to the prosecution's theory regarding the motive for the shootings at issue and how the shooting of Anthony V. related to the gang for purposes of the gang enhancements, it had significant probative value. Reddoch also identified the locations in the "AK47 Presents" video as part of Midtown's claimed territory and many of the individuals in the video as Midtown members. One of the Midtown members brandished a handgun. These aspects of the video were therefore relevant to help the prosecution demonstrate that Midtown qualified as a criminal street gang whose primary activities involved illegal possession of firearms.

As defendants argue, the probative value of artistic works like song lyrics or poetry is usually low because" '[i]n general, "[r]easonable persons understand musical lyrics and poetic conventions as the figurative expressions which they are," which means they "are not intended to be and should not be read literally on their face, nor judged by a standard of prose oratory." '" (Coneal, supra, 41 Cal.App.5th at p. 968.) "Absent some meaningful method to determine which lyrics represent real versus made up events, or some persuasive basis to construe specific lyrics literally, the probative value of lyrics as evidence of their literal truth is minimal." (Ibid.) This is especially true when a defendant does not create the artistic work in question. (E.g., People v. Melendez (2016) 2 Cal.5th 1, 23-24; cf. People v. Olguin (1994) 31 Cal.App.4th 1355, 1372-1373 [lyrics authenticated as the defendant's properly admitted to prove gang membership, motive, and intent]; People v. Zepeda (2008) 167 Cal.App.4th 25, 32-33 [same].)

While this principle applies to the other three videos (as we shall explain, post), it is not applicable to "AK47 Presents" because it is not an artistic work. Most of "AK47 Presents" is not set to music, and the individuals portrayed in it are shown milling around and taking turns speaking, but not in a way that suggests the video was a creative work like a rap or music video. Accordingly, there is no reason to interpret the statements in the video figuratively or to give the video any kind of poetic license. Besides, even if the statements in the video were construed as lyrics or dramatic lines like a movie or stage production, the video would still have probative value because of the connection between the threat to Omar M. and the prosecutor's theory of defendants' motive for shooting Anthony V. (Cf. Coneal, supra, 41 Cal.App.5th at p. 969 ["where lyrics are written within a reasonable period of time before or after the charged crime and bear a sufficient level of similarity to the charged crime, their probative value as a statement of fact is increased"].)

The danger of undue prejudice from this video was low and did not outweigh the video's substantial probative value. The individuals in the video mostly talked about the Midtown gang and trying to make money from rap music, without providing many specifics about any illegal activities. Some music plays at the end of the video with lyrics like "Play somethin' I can shoot my hammers to," "Play somethin' I can kill a nigga to," and "I'm loading tommys," but the references are vague and generic and the prosecution did not highlight them in Reddoch's testimony or in argument. Accordingly, the trial court did not err in admitting the "AK47 Presents" video.

The remaining three videos, however, are different. "Devils," like the other two videos, consists of video footage set to music, with visual effects and frequent editing that give it the artistic feel of a music video. Reddoch identified one of the locations in the video as a Midtown hangout and some of the people in the video as Midtown members. He also identified individuals in the videos as displaying Midtown gang symbols. Most significantly, Reddoch identified Singh in the background of the video at one point making a Midtown gang sign with his hands. The probative value of these aspects of "Devils" is undermined, however, by the other evidence in the case. Reddoch took a screen shot of the frame of the "Devils" video containing Singh, and the prosecution introduced it as a separate exhibit. The prosecution ultimately introduced about two dozen other photographs or social media pages to prove Midtown's names and signs and the links between defendants and various Midtown gang members. The other photos, combined with the ease with which the prosecution made a still photo out of the part of the video where Singh appears, calls into question whether the video itself was necessary at all. (See Coneal, supra, 41 Cal.App.5th at pp. 965-966 [five rap videos were cumulative where prosecution introduced other evidence to prove various individuals' gang membership and status, including dozens of screenshots from the videos and other photographs].)

Reddoch also commented on the video's lyrics, but since "Devils" is a music video and the lyrics had no apparent connection to the charged offenses, the lyrics have minimal probative value. (Coneal, supra, 41 Cal.App.5th at p. 968.) In fact, Reddoch's commentary on the lyrics increased the danger of undue prejudice, because of the risk that the jury would improperly treat the lyrics as literally true. Reddoch interpreted the lyric, "I spend a stack on a Glock and a k-clip," as a reference to a gun with an illegal extended magazine. There is no indication that any of the guns used in the charged crimes or the predicate offenses was a Glock or had an extended magazine. Reddoch also cited a lyric, "If I catch a sucka lackin', then I'm heatin' them up. Gun play all day" as an example of Midtown's "violent mentality." This invited the jury to use the video as a form of character evidence and infer that the shootings were gang-related because of the gang's violent culture. Other lyrics in "Devils" that Reddoch did not mention also presented a danger of undue prejudice. The video mentions "Bustin' Oxy" "strictly for the profit," an apparent reference to drug sales. Reddoch did not mention drug sales as one of Midtown's primary activities. The video uses misogynistic language ("Behind 10 with yo bitch can't be seen with a slut") and a generic reference to killing a rival gang's member when he was out of the gang's territory ("He got caught out of bounds, now they chalkin' him out"), neither of which had any bearing on the case. The risk of undue prejudice from all of these lyrics substantially outweighs the video's low probative value, given the other evidence about Midtown's territory and members and the ease of making screenshots of any relevant frames of the video. The trial court therefore abused its discretion in admitting this video.

The remaining two videos, "Like This" and "Believe Me," are even less probative and just as prejudicial because the videos' lyrics were not similar to the facts of the charged crimes or predicate offenses. (Coneal, supra, 41 Cal.App.5th at p. 969 [lyrics similar to charged crime or written close in time to it have greater probative value].)

"Like This" contains a few references to Midtown by its nicknames 2100, MTG, Midz, and Mob and some displays of gang signs, all of which have slight probative value in light of the other evidence like the gang photographs. Reddoch highlighted the lyric, "I bounce out the whip and start bangin' the TEC," as referring to jumping out of a car shooting a TEC-9 handgun, exemplifying Midtown's "violent mentality about shooting and killing." There is no indication that any gun at issue in this case was a TEC-9. Reddoch cited the line, "He got smacked 'cause he had the feds on the other line. Shoulda knew he was a witness and damn it's a shame, he was one of us had to take our own out the game" as an example of killing someone for snitching to law enforcement. But no one involved in this case gave information to the "feds." The one alleged informant, Omar M., was not shot or killed, and Anthony V. was not one of Midtown's own members.

Similarly, the "Believe Me" video had legitimate probative value from some gang members appearing in the video together and displaying gang signs in the background. But the prosecutor focused Reddoch's testimony on the video's lyrics. Reddoch construed the lyric, "If you ain't got no gun then you should cop one," as a warning to rivals to arm themselves, but the prosecutor never suggested the charged crimes involved a rival gang. Reddoch interpreted the line, "Got this chop up on my lap strictly for my enemies," as a reference to an assault rifle, even though there was no assault rifle at issue in the case. One rapper's line, "Hit the target and the witness because he wasn't supposed to see" demonstrated to Reddoch the gang's willingness to kill someone for snitching, but there was no evidence that Midtown had ever retaliated against a bystander witness in this fashion. In addition, there was no evidence as to when "Believe Me" was made.

The Attorney General disputes whether the prosecutor meant these lyrics to be taken as "statements of fact or actual intent" (Coneal, supra, 41 Cal.App.5th at p. 968), but that was precisely how Reddoch discussed them, as examples of gang behavior. Besides, if the lyrics were not intended to be literally true, they were irrelevant. The unduly prejudicial impact of presenting these lyrics and inviting the jury to treat them as literal expressions of unproven illegal activity is plain. Additionally, "Devils" contained misogynistic lyrics ("Behind 10 with yo bitch can't be seen with a slut") and "Believe Me" contained a generic reference to killing a rival gang's member when he was out of the gang's territory ("He got caught out of bounds, now they chalkin' him out"), neither of which had any bearing on the case. (Id. at pp. 970-971 [misogynistic lyrics created potential for undue prejudice].) This exacerbated the danger of undue prejudice.

B. Prejudice

Because the trial court erred in admitting the three music videos, we consider whether the error was harmless or prejudicial. Defendants argue the admission of the "Devils," "Like This," and "Believe Me" videos deprived them of due process and so prejudice should be evaluated under the federal standard. However, as Coneal, supra, 41 Cal.App.5th at page 972, recently explained after finding a trial court erred in admitting rap videos, the admission of evidence violates due process only if there were no permissible inferences the jury could draw from the evidence and the evidence is of such a quality that it prevents a fair trial. Neither condition is met here. Even those videos that should have been excluded had some legitimate purpose, albeit slight, as discussed ante. While the rap videos glorified killings, drug sales, and other crimes and had some misogynistic lyrics, the lyrics were not necessarily out of the ordinary for this style of music and the visual images in the videos accompanying the lyrics were tame, mostly showing groups of individuals standing around and occasionally smoking. We will therefore assess prejudice under the traditional state standard, which examines" 'whether it is reasonably probable the verdict would have been more favorable to the defendant absent the error.'" (People v. Watson (2008) 43 Cal.4th 652, 686.) We find no reasonable probability of a different outcome on the substantive offenses.

The evidence of defendants' guilt for the substantive offenses was extensive and conclusive. As noted ante, the testimony of Cristian F. and Victor M. mostly matched in describing how both defendants fired into Anthony V.'s Chrysler, and the physical evidence at the scene of the crime, which Victor M. did not know about, completely corroborated his account. The prosecutor further supported this evidence with testimony about defendants' motive for shooting Anthony V., stemming from Anthony V.'s choice to associate with Omar M., who was believed to have implicated fellow Midtown members in a burglary. This motive evidence included Racine P.'s description of defendants making shooting gestures with their hands at her and her children fathered by Anthony V. The motive evidence also included Martin P.'s description of an incident a few months prior to the shooting when Singh confronted Anthony V. and Martin P. in Anthony V.'s car and Nazareta-Albano came running up with a gun in his hand. There was conflicting evidence about whether there was any kind of confrontation at the EZ Stop Market hours before the shooting, with Victor M. recalling telling the police that at the EZ Stop Market, Singh asked Anthony V., "What's up, are you trippin' on me?" and Cristian F. having no recollection of that event. Cristian F. admitted that he stayed in the car, however, so the testimony can be reconciled. But even without evidence of that confrontation, the history of confrontation between Singh and Anthony V. strongly supported the prosecution's case.

As defendants point out, the prosecutor played one of the rap videos in closing, argued it was not art, and described the charged crimes as consistent with the violent mentality displayed in those videos. He referred to the "Like This" lyrics, "I bounce out the whip and start bangin' the TEC" and "We got killas in the Midz" and argued, "I can't give you a better example of what he's rapping about than Justin Singh and Deion Nazareta." He also quoted the line from "Believe Me," "Hit the target and witness because he wasn't supposed to see," and said, "I can't give you a better prime example than Deion Nazareta and Justin Singh hit the target of Anthony [V.] and the witnesses Darren and Cristian because they weren't supposed to see." With these arguments, the prosecutor invoked the rap lyrics in precisely the ways the law prohibits, despite the factual dissimilarities between the lyrics and the facts of this case. However, the prosecutor made these arguments about the gang enhancements, to try to connect the charged crimes to Midtown. The admission of the rap videos likely was prejudicial as to the gang enhancements. But the trial court struck those enhancements and we concluded ante that they cannot be revived on remand, so those are no longer relevant. Given the strength of the prosecution's evidence on all five substantive counts, it is unlikely the jury would have reached a different conclusion on those counts had the rap videos been excluded.

In attempting to connect the rap videos to the jury's verdict specifically on the substantive offenses, defendants point to the prosecutor's remarks about defendants being motivated by their "violent gang culture" to kill Anthony V. for his perceived disrespect. For example, early in his closing argument the prosecutor said, "You saw how gang violence is used to promote one's own status and respect against the victims or in your own gang. Because these two Midtown gang members, Justin Singh and Deion Nazareta, wanted respect and wanted to instill fear and promote their violent gang status. That's why we're here." Later, in arguing the homicides were not justified or excused, the prosecutor said that even though Anthony V. did not want any conflict, Singh "wasn't going to be disrespected. He was going to make a name for himself. He was going to show his violent gang nature."

There is little reason to think the jury construed the phrases "violent gang status" or "violent gang nature" as references to the rap videos specifically. They are more naturally interpreted as referring generally to Midtown's focus on respect, which Reddoch mentioned repeatedly in his testimony. For example, early in his testimony Reddoch explained, "I'd say violence is one of the most important things for a gang because reputation is paramount for a gang. Everything is based on your reputation in the community, in the public, amongst your rival gangs and building that reputation. You want to be known as the toughest, strongest, most dangerous group around. They feed on that reputation and committing violence does that. It builds reputation. It wouldn't be a reputation that most people would want but, in a gang member's eyes, the violence and being known as - being willing to commit violence builds on that reputation which is what they want." He also testified that Midtown members "commonly talk about respect and reputation and the importance of having those." Testimony like this provided ample basis for the prosecutor to argue that defendants acted pursuant to their "violent gang nature" or to establish their "violent gang status." The jury had little reason to interpret the argument as referring instead to the rap videos. Even if the rap videos had been excluded, the prosecutor could and would have made the same argument based on Reddoch's testimony regarding violence and respect as aspects of Midtown's culture generally.

Defendants also assert that the question of their mental states was contested at trial. Singh addressed the motive evidence only briefly in closing argument, pointing out that the burglary committed by Omar M., Sadler, and Coronado, Jr. occurred two and a half years before the shooting and that there was no evidence that Singh had a gun at the confrontation with Martin P. and Anthony V. As noted ante, the overall focus of Singh's defense was that he was not at the scene and did not shoot, which was entirely inconsistent with the evidence. Excluding the rap videos would not have significantly affected the strength of this defense.

Nazareta-Albano's self-defense and imperfect self-defense theories relied primarily on Victor M.'s statement that Anthony V. told Darren W. just prior to the shooting, "Darren, tell these niggas what's up." In support of these defenses, Nazareta-Albano highlighted evidence about the chaotic crime scene and the police's failure to search Darren W.'s home, to suggest that there had been a weapon in the Chrysler. He noted the presence of a can of mace with the safety off outside the driver's side of the car and suggested Anthony V. was removing it at some point. He also emphasized Victor M.'s testimony that he did not see Singh or Nazareta-Albano with their guns out when they first walked to the car and engaged in a discussion with Anthony V. The jury apparently credited these arguments to some extent, since it acquitted both defendants of first degree premeditated murder. But we are not convinced there is a reasonable probability that eliminating the rap videos would have led the jury to find defendants guilty only of lesser included offenses or acquit them outright.

As the prosecutor noted in rebuttal, if Singh and Nazareta-Albano had only intended to fight Anthony V., as in previous confrontations, they would have had no reason to approach the car armed. There is no evidence of a gun ever being in the Chrysler or anywhere connected to the victims. The mace was also outside the car, not in it, which suggests that one of the bystanders brought it to the scene. Nazareta-Albano's selfdefense and imperfect self-defense theories were also inconsistent with the fact that defendants fired at least 10 rounds into the car through the windows at different downward angles. The trajectories of the bullets showed they were aimed directly at the victims, which the prosecutor illustrated with photos of the car and colored rods indicating the path of the bullets. It is also significant that the casings were found mostly inside the Chrysler, consistent with Victor M.'s testimony that defendants were sticking their arms into the car when they shot. Whatever effect the rap videos had on the gang enhancements in light of the prosecutor's arguments, the direct evidence of how the shooting occurred makes it unlikely the videos affected the verdict on the substantive offenses.

III. Evidence Code section 352.2 and gang videos

In a related argument, defendants argue there was insufficient foundation for the admission of the rap videos under Evidence Code section 352.2. Subdivision (a) of that statute states, "In any criminal proceeding where a party seeks to admit as evidence a form of creative expression, the court, while balancing the probative value of that evidence against the substantial danger of undue prejudice under Section 352, shall consider, in addition to the factors listed in Section 352, that: (1) the probative value of such expression for its literal truth or as a truthful narrative is minimal unless that expression is created near in time to the charged crime or crimes, bears a sufficient level of similarity to the charged crime or crimes, or includes factual detail not otherwise publicly available; and (2) undue prejudice includes, but is not limited to, the possibility that the trier of fact will, in violation of Section 1101, treat the expression as evidence of the defendant's propensity for violence or general criminal disposition as well as the possibility that the evidence will explicitly or implicitly inject racial bias into the proceedings." (Evid. Code, § 352.2, subd. (a).) Evidence Code section 352.2 took effect while defendants' case was pending on appeal, and they argue it applies retroactively because their case was not yet final.

There is a split of authority among the Courts of Appeal as to whether Evidence Code section 352.2 applies retroactively to cases not yet final, and our Supreme Court is currently considering the issue. (People v. Venable (2023) 88 Cal.App.5th 445, 448 [Evid. Code, § 352.2 is retroactive], review granted May 17, 2023, S279081; People v. Ramos (2023) 90 Cal.App.5th 578, 596 [Evid. Code, § 352.2 is not retroactive], review granted July 12, 2023, S280073; People v. Slaton (2023) 95 Cal.App.5th 363, 376 [same], review granted November 15, 2023, S282047.) We need not take a definitive side in this dispute. Even if Evidence Code section 352.2 does apply retroactively, any error in the admission of the rap videos under that statute was harmless as to the substantive offenses for the same reasons set forth ante with respect to Evidence Code section 352.

IV. Section 1109

Defendants argue for reversal based on another new statue, section 1109. This statute, enacted as part of Assembly Bill 333, gives a defendant charged with a gang enhancement under section 186.22, subdivision (b) the choice of bifurcating the trial on any underlying offenses from the trial on the gang enhancement.⁸ Our Supreme Court recently held that section 1109 does not apply retroactively to cases that have already been tried. (People v. Burgos (2024) __Cal.5th__, 2024 Cal. Lexis 3060.) Defendants' argument based on section 1109 therefore fails.

8 Section 1109 reads in full, "(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."

V. Senate Bill No. 567

Defendants finally argue that they must be resentenced based on a recent amendment to the determinate sentencing law. When the trial court sentenced defendants, section 1170, subdivision (b) stated in pertinent part, "When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court." (§ 1170, former subd. (b), as amended by Stats. 2011, ch. 361, § 6.) While defendants' appeal was pending, "[e]ffective January 1, 2022, our determinate sentencing law, section 1170, was amended in several fundamental ways. [Citations.] Relevant here, Senate Bill No. 567 amended section 1170, former subdivision (b) by making the middle term the presumptive sentence for a term of imprisonment unless certain circumstances exist. [Citation.] This bill also created a presumption in favor of a low prison term when a defendant is under 26 years of age at the time of the offense." (People v. Flores (2022) 73 Cal.App.5th 1032, 1038, fn. omitted.) Section 1170, subdivision (b)(6) now states, "[U]nless the court finds that the aggravating circumstances outweigh the mitigating circumstances that imposition of the lower term would be contrary to the interests of justice, the court shall order imposition of the lower term if any of the following was a contributing factor in the commission of the offense: [¶] . . . [¶] (B) The person is a youth or was a youth as defined under subdivision (b) of Section 1016.7 at the time of the commission of the offense." (§ 1170, subd. (b)(6); see § 1016.7, subd. (b) ["A 'youth' for purposes of this section includes any person under 26 years of age on the date the offense was committed"].)

Defendants point out that they were both under age 26 when the offenses were committed and that the trial court imposed the middle term of seven years on count 2 and one-third the middle term of seven years on count 3. They argue that the new statutory presumption of the lower term applies retroactively to non-final cases like theirs as an ameliorative change in the law. They finally argue that they are entitled to remand so the trial court can exercise its discretion and determine whether their youth was a contributing factor in their offenses, in which case they would benefit from the presumption favoring the lower term for counts 2 and 3.

The Attorney General concedes that remand is necessary, and we agree. This change to the determinate sentencing law is ameliorative, triggering the presumption that it applies to nonfinal cases like defendants'. (People v. Flores, supra, 73 Cal.App.5th at p. 1039.) The trial court struck the gang enhancements in light of defendants' ages, so it might well have made a finding that their youth was a contributing factor in the offense. We will therefore reverse defendants' sentence on counts 2 and 3 and remand for resentencing. (Ibid.)

DISPOSITION

Defendants' convictions are affirmed. Defendants' sentences are vacated, and the matter is remanded to the trial court to resentence defendants on counts 2 and 3; to clarify the disposition of the gang enhancement on count 5; and to correct the abstracts of judgment to reflect the striking of the gang and firearm enhancements on counts 2 to 4. In all other respects, the judgment is affirmed.

WE CONCUR: GOLDMAN, J. HITE, J. ^[*]

[*] Judge of the Superior Court of California, County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.