Filed 9/18/26 P. v. Major CA5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F088217
Plaintiff and Respondent,
(Super. Ct. No. F23907919)
v.
JOHN SCHIRRA MAJOR,
OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Fresno County. Francine
Zepeda, Judge.
Carlo Andreani, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Kimberley A. Donohue, Assistant Attorney General, Dina Petrushenko and
Matthew A. Kearney, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Defendant and appellant John Schirra Major (appellant) was found guilty by a jury
of shooting at an occupied motor vehicle and being a felon in possession of a firearm; the
jury also found true two gang enhancements; appellant admitted two prior convictions.
Appellant now appeals, asserting: (I) the trial court’s delay in selecting alternate jurors
“until moments before deliberations” violated his constitutional rights and was structural
error; (II) the court erred in failing to sua sponte instruct on the lesser included offense of
grossly-negligent firearm discharge; (III) insufficient evidence supports the two gang
enhancements; and (IV) the court erred in resentencing appellant in his absence. The
People disagree.
We vacate the sentence, remand to the trial court for a full resentencing, and
otherwise affirm.
PROCEDURAL HISTORY
On December 27, 2023, the Fresno County District Attorney filed an information
charging appellant with shooting at an occupied motor vehicle (Pen. Code, § 246;1
count 1) and possession of a firearm by a felon (§ 29800, subd. (a)(1); count 4). Count 1
was enhanced by allegations of street terrorism (§ 186.22, subd. (b)(4)(B)) and
intentional discharge of a firearm causing great bodily injury in the commission of a
gang-related offense (§ 12022.53, subds. (d), (e)(1)). The information alleged that
appellant had suffered two prior strike convictions (§§ 667, subds. (b)–(i), 1170.12,
subds. (a)–(d)) and seven aggravating factors under the California Rules of Court.
On March 21, 2024, the jury found appellant guilty on both counts. On April 11,
2024, the jury found the gang and firearm enhancements to be true. Thereafter, appellant
admitted the two prior strike convictions, and the jury found six of the seven aggravating
factors to be true.
1 Undesignated statutory references are to the Penal Code.
2.
On June 11, 2024, the court struck one of appellant’s prior strike convictions, then
sentenced appellant to a determinate term of 11 years four months and an indeterminate
term of 40 years to life.
Appellant filed a notice of appeal on June 13, 2024.
In December of 2024, the Department of Corrections and Rehabilitation (CDCR)
notified the trial court of sentencing errors; the court held a resentencing hearing, in
appellant’s absence, on February 20, 2025. Appellant was sentenced to a determinate
term of 11 years four months and an indeterminate term of 25 years to life as follows: on
count 1, 10 years (the middle term, doubled due to the prior strike conviction), plus
25 years to life pursuant to section 12022.53, subdivisions (d), (e)(1); and on count 4, a
consecutive term of one year four months (one-third the middle term, doubled due to the
prior strike conviction). As to count 1, the court also imposed and stayed the term under
section 186.22, subdivision (b)(4)(B) of 15 years to life.
FACTUAL SUMMARY
On July 4, 2023, 50 to 100 adults and children gathered outdoors in a Fresno
neighborhood to celebrate and watch the fireworks. Around 11:00 p.m., loud sounds
rang out on the street, and gunfire struck three people: E.W., in her leg, her infant
daughter K.W., in her leg, and E.C., in her shoulder. No witnesses identified the
shooters.
Law enforcement recovered 57 spent cartridge cases of various calibers from the
street. A silver SUV was found disabled in the road with extensive bullet damage.
Residential surveillance footage showed the SUV drive at a high rate of speed westbound
past the gathering, make a U-turn, and drive back eastbound. As the SUV approached the
gathering again, six individuals stepped into the street and opened fire toward it from
about 30 to 40 yards away. Appellant was identified as one of the shooters, firing 17 of
the rounds. There was no evidence of shots fired from the SUV or toward the six
shooters. The SUV collided with a parked car, the gunfire ceased, and the driver exited
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the SUV. Appellant and others approached the SUV and spoke with the driver, and other
partygoers took the guns from the scene.
At trial, the driver refused to testify and was held in contempt. His preliminary
hearing testimony was read to the jury, wherein he stated he did not recall the events of
the shooting, denied knowing appellant, and denied implicating him as one of the
shooters. Portions of the driver’s 2023 recorded interview with a detective were played
for the jury. Therein, the driver stated he did not know why he was being shot at;
suggested the shooters may have been confused because his vehicle resembled one
associated with “somebody that they don’t get along with”; and remarked he was
reluctant to involve law enforcement because he had recently been released from prison
and was on parole.
In the second portion of the bifurcated trial, the prosecution’s gang expert on
Fresno criminal street gangs testified that appellant, the driver, and the other shooters
were members of a gang alliance called “MUG,” made up of the “Modoc, U-Boys,
Garrett Street, Dog Pound, and Northside Pleasant” gangs. The gang expert cited the
shooters’ tattoos; excerpts from appellant’s and codefendant’s social media showing
appellant using gang signs, wearing gang-related clothing, and associating with other
MUG allied gang members; and evidence collected in searches of the appellant’s and
codefendant’s residences. The prosecution also presented evidence of three incidents in
the Fresno area involving members of the MUG alliance. The gang expert opined the
evidence demonstrated a pattern of criminal gang activity in the area undertaken for the
collective benefit of the MUG alliance.
DISCUSSION
I. Delayed Selection of Alternate Jurors
Appellant first contends the trial court violated his constitutional right to trial by
jury, under article I, section 16 of the California Constitution and the Sixth and
Fourteenth Amendments to the U.S. Constitution, by waiting to identify which jurors
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were alternates until just before deliberations. He contends the error is structural and
reversible per se. The People argue that appellant waived and forfeited this challenge and
contend the court’s process for selecting the jury constituted, at most, a technical
statutory deviation that was otherwise harmless.
We find the issue waived and forfeited and otherwise devoid of merit.
A. Additional Background
A week before jury selection, the court stated that, given the length of the trial, it
intended to seat six alternate jurors but wait to designate which were the alternates.
Instead, the court intended to swear all 18 jurors to hear the evidence, then just before the
jury retired to deliberate, use a computer to randomly select the alternates. The court
stated it would do so to combat the perception that jurors who know they are alternates
think they do not need to pay attention, remarking that “[a] lot of judges on this floor are
doing it.” The court solicited input from the parties, and counsel for appellant said,
“[T]hat’s fine, Judge.”
Before jury selection began, the court informed the prospective jurors of this plan;
appellant did not object. Eighteen jurors were ultimately sworn. One juror was excused
midtrial on the consent of the parties, and the remaining 17 heard all of the evidence,
received the court’s instructions, and listened to closing arguments. Thereafter, the court
conducted the random selection, designating jurors 4, 7, 8, 10, and 13 as alternates. The
remaining 12 jurors were sworn as the deliberating panel and retired to deliberate.
B. Standard of Review
Because this claim turns on the application of law to undisputed facts, our review
is de novo. (People v. Christman (2014) 229 Cal.App.4th 810, 815; see State of Ohio v.
Barron (1997) 52 Cal.App.4th 62, 67 [“Constitutional issues are reviewed de novo”].)
C. Analysis
“[F]orfeiture is the failure to make the timely assertion of a right, [and] waiver is
the ‘intentional relinquishment or abandonment of a known right.’ ” (United States v.
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Olano (1993) 507 U.S. 725, 733.) Here, after the court described its plan for selecting
the alternate jurors at a pretrial hearing, appellant willingly accepted it. Thus, he has
waived his right to contest this issue on appeal. (Ibid.) Further, appellant forfeited this
issue by failing to object when the court discussed the plan with the prospective jurors,
when the court swore the panel of 18 jurors before moving to the evidence phase of trial,
or when the court dismissed the alternates just before the 12 jurors retired for
deliberations. “[C]riminal convictions [will] not be overturned on the basis of
irregularities in jury selection to which the appellant did not object or in which he has
acquiesced.” (People v. Visciotti (1992) 2 Cal.4th 1, 38 (Visciotti).)
Appellant contends that because his right to trial by jury is “inviolate,” article I,
section 16 of the California Constitution requires consent from both him and his counsel,
expressed in open court, in order for a waiver to be effective. True, “[n]ot all claims of
error are prohibited in the absence of a timely objection in the trial court,” and an
appellant will not be “precluded from raising for the first time on appeal a claim asserting
the deprivation of certain fundamental, constitutional rights.” (People v. Vera (1997)
15 Cal.4th 269, 276.) However, many of the cases appellant relies upon for this
proposition are inapposite, as they concern the wholesale waiver of a jury trial or the
requirement of unanimity and not, as here, the number of jurors sworn to deliberate.
(See, e.g., Duncan v. Louisiana (1968) 391 U.S. 145 [regarding right to a trial by jury,
and not by the court, on criminal charges]; People v. Collins (2001) 26 Cal.4th 297, 308
[regarding the trial court’s inducement to persuade the defendant to waive his
fundamental right to a jury trial, in violation of his right to due process of law].)
Appellant’s citations to cases concerning the number of jurors empaneled are likewise
unhelpful, as those cases concerned the guaranteed minimum number of jurors under our
state Constitution. (See People v. Garcia (2012) 204 Cal.App.4th 542, 549 [denial of a
unanimous verdict by 12 jurors where a juror had been excused during deliberations and
only 11 jurors rendered the verdict]; People v. Traugott (2010) 184 Cal.App.4th 492, 502
6.
[same, where only 11 jurors were present to read the verdict, despite all 12 rendering the
verdict and despite counsel’s waiver of the issue on behalf of the defendant].)
In fact, the Fourth District Court of Appeal confronted this very scenario a quarter
century ago in People v. Glenn (1990) 225 Cal.App.3d 618 (Glenn). Therein, the trial
court swore a panel of 14 jurors to hear the evidence, and at the close of evidence
randomly dismissed two jurors as the alternates and swore the remaining 12 for
deliberations. (Id. at p. 620.) The defendant did not object to this procedure at any time,
but instead first raised the issue on appeal under article I, section 16 of the California
Constitution. (Glenn, at p. 620.) The Court of Appeal rejected the defendant’s argument,
noting that while the state Constitution “provides for a jury of 12 persons to serve in
criminal trials …, a jury of 12 is precisely what [he] got.” (Id. at p. 620.) Here, Glenn is
on point and effectively defeats appellant’s jury panel claim on the merits, even if we
were to reach the issue. Appellant requests we disregard Glenn, but we decline to do so.
We also would reject appellant’s arguments raised under the Sixth and Fourteenth
Amendments to the U.S. Constitution. In fact, the federal Constitution is of even less
assistance to appellant, as juries need not be composed of 12-person panels.
(Compare Williams v. Florida (1970) 399 U.S. 78, 86 [a six-person jury in a state
criminal trial did not violate either the Sixth or Fourteenth Amendments] with Ballew v.
Georgia (1978) 435 U.S. 223, 245 [Sixth and Fourteenth Amendment rights to trial by
jury were violated by a five-person jury in a criminal case, thus drawing a line at
six jurors].) Simply, although six jurors may be the floor under case law interpreting the
federal Constitution, 12 jurors is not the ceiling.
Finally, to the extent appellant raises an argument under section 1089, we
similarly find these arguments waived and forfeited. Section 1089 states that,
“immediately after the jury is impaneled and sworn, the court may direct the calling of
one or more additional jurors, in its discretion, to be known as ‘alternate jurors.’ ”
(§ 1089.) Citing this section, appellant contends the court’s dismissal of the alternate
7.
jurors just before deliberations was “wholly unauthorized because there were no deaths,
illnesses, jurors’ requests for discharge or other good cause shown of jurors’ inability to
perform their duty.” But appellant provides no specific citation to cases indicating the
rules of waiver and forfeiture should be bypassed in light of his acquiescence and failure
to object on statutory grounds. (Visciotti, supra, 2 Cal.4th at p. 38.) Further, even if we
were to reach the merits on this issue, appellant’s case aligns with Glenn on the statutory
issue, and we see no reason to depart from the Fourth District’s rejection of this claim.
(See Glenn, supra, 225 Cal.App.3d at pp. 621‒623 [holding that while the court’s delay
in identifying which jurors were alternates “technically violated” the statute’s command
to “immediately” designate alternate jurors, the purpose of section 1089 is to provide
discretion to call alternates; otherwise noting the lack of demonstrated prejudice].)
For the reasons stated above, we reject appellant’s first argument on appeal.
(United States v. Olano, supra, 507 U.S. at p. 733; Visciotti, supra, 2 Cal.4th at p. 38.)
II. Lesser Included Charge to Shooting at an Occupied Motor Vehicle
Appellant was convicted of one count of shooting at an occupied motor vehicle
under section 246. He contends substantial evidence could support a finding that he
discharged a firearm in a grossly negligent manner, and so the trial court erred in failing
to sua sponte instruct on the lesser included offense under section 246.3, subdivision (a).
We disagree.
A. Governing Principles and Standard of Review
A trial court has a duty to instruct on general principles of law that are “closely
and openly connected to the facts before the court and that are necessary for the jury’s
understanding of the case.” (People v. Montoya (1994) 7 Cal.4th 1027, 1047.) “[A] trial
court must instruct the jury on a lesser included offense, whether or not the appellant so
requests, whenever evidence that the appellant is guilty of only the lesser offense is
substantial enough to merit consideration by the jury.” (People v. Choyce (2025)
18 Cal.5th 86, 104.) Evidence is substantial in this context if a reasonable jury could find
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it persuasive. (Ibid.) We independently review whether the trial court erroneously failed
to instruct on a lesser-included offense. (People v. Trujeque (2015) 61 Cal.4th 227, 271.)
A reviewing court determines only the “bare legal sufficiency [of the evidence], not its
weight.” (People v. Moye (2009) 47 Cal.4th 537, 556.)
B. Analysis
Section 246 provides: “Any person who shall maliciously and willfully discharge
a firearm at an … occupied motor vehicle … is guilty of a felony” punishable by
“imprisonment in the state prison for three, five, or seven years .…” Section 246.3,
subdivision (a), provides: “[A]ny person who willfully discharges a firearm in a grossly
negligent manner which could result in injury or death to a person … shall be punished
by imprisonment in a county jail not exceeding one year ….” Subdivision (a) of
section 246.3 is a lesser included offense of section 246. (People v. Bell (2019)
7 Cal.5th 70, 108 (Bell).) The key distinction between the two statutes concerns the
target of the shooting. (People v. Overman (2005) 126 Cal.App.4th 1344 (Overman).)
In Overman, the Fourth District Court of Appeal reminded that “section 246 is
violated when a defendant intentionally discharges a firearm either directly at a
proscribed target … or in close proximity to the target under circumstances showing a
conscious disregard for the probability that one or more bullets will strike the target or
persons in or around it.” (Overman, supra, 126 Cal.App.4th at p. 1361, citing People v.
Chavira (1970) 3 Cal.App.3d 988 [affirming section 246 conviction where the jury was
entitled to conclude that shooting at people standing outside of a building showed the
defendants “were aware of the probability that some shots would hit the building and that
they were consciously indifferent to that result”].) Conversely, in enacting subdivision
(a) of section 246.3, the Legislature was focused on “the dangerous practice of
discharging firearms into the air during festive occasions.” (Overman, at p. 1361.) The
only difference between sections 246 and 246.3 is the former requires “a specific target
(e.g., an inhabited dwelling or an occupied building) be in the defendant’s firing range.”
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(Overman, at p. 1362; see Bell, supra, 7 Cal.5th at p. 108 [noting that a conviction under
subd. (a) of § 246.3 would require the jury to find the appellant’s shots were not aimed at
or “ ‘in close proximity to’ ” a vehicle].)
Here, the record contains no evidence indicating appellant fired anywhere other
than at the SUV. Investigators recovered 57 spent cartridge cases of various calibers
from the street; the SUV was found disabled in the road with extensive bullet damage;
and surveillance footage showed appellant firing 17 rounds at the SUV. Thus, the court
had no sua sponte duty to give the section 246.3 instruction. (Overman, supra,
126 Cal.App.4th at p. 1362.)
Appellant speculates shots may have fired from the SUV or from another source,
another person may have been driving the SUV, and appellant may have fired in
self-defense. Regardless, no evidence indicates he “fired aimlessly or into the air.” (Bell,
supra, 7 Cal.5th at p. 110 [“ ‘ “Speculation is an insufficient basis upon which to require
the giving of an instruction on a lesser offense” ’ ”].)
Appellant also argues the court should have instructed on section 246.3 because
the jury could have inferred he did not intend to injure the driver. He highlights the lack
of any such injury, arguing the jury could have concluded he intended to “disable the
approaching vehicle traveling at dangerous speeds that posed a threat to neighborhood.”
However, the Fourth District Court of Appeal in Overman recognized that both statutes
were general intent crimes because they describe the prohibited acts “without reference to
intent to do a further act or achieve a future consequence.” (Overman, supra,
126 Cal.App.4th at p. 1357 [reminding general intent crimes occur “when the required
mental state entails only an intent to do the act that causes the harm,” as opposed to a
specific intent crime, “when the required mental state entails an intent to cause the
resulting harm”].) Thus, the court concluded that for section 246, “[n]o specific intent to
strike the target, kill or injure persons, or achieve any other result beyond shooting at or
in the general vicinity or range of the target is required.” (Overman, at p. 1361.) Thus,
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even accepting appellant’s argument that the jury could have concluded he did not intend
to injure the SUV driver, the evidence still only shows appellant intended to fire at the
SUV. (Ibid.)
For these reasons, the trial court had no sua sponte duty to instruct on
section 246.3, subdivision (a).
III. Sufficiency of Evidence on Gang Enhancements
Appellant next contends the gang and gang-related firearm findings must be
stricken because the record lacks substantial evidence of “a single criminal street gang of
the MUG Alliance that encompassed both the group appellant sought to benefit and the
specific subsets whose members committed the predicate offenses.” The People
disagree, as do we.
A. Additional Background
An investigating detective identified appellant as one of the shooters based in part
on his appearance in surveillance footage wearing a blue polo shirt and blue shoes. The
detective identified four other shooters: Terrance Pierce, James Oliver, Jermaine
Wiggins, and Desmond Roddy.2 The SUV was driven by Jecorrey Chapple.
In the second portion of the bifurcated trial, the prosecution presented evidence
concerning the gang and firearm enhancements, as alleged under sections 186.22 and
12022.53, subdivisions (d) and (e)(1). At the time of the shooting, Pierce, Wiggins, and
appellant were members of the Garrett Street gang; Oliver was a U-Boys gang member;
Roddy was a Northside Pleasant gang member; and Chapple was a Dog Pound gang
member. A Fresno police detective testified as a gang expert, with a specific expertise on
Fresno criminal street gangs. He testified the gangs involved in the shooting were
2 Pierce and Oliver were also charged in discrete counts. Pierce pleaded guilty to
one count under section 245, subdivision (a)(2), with a section 186.22,
subdivision (b)(1)(B) gang enhancement, for an aggregate sentence of 10 years
four months. Oliver and appellant were tried together.
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subsets of an ongoing gang association known as the “MUG” alliance. The acronym
“MUG” refers to the Modoc, U-Boys, and Garrett Street gangs, and the detective testified
the Northside Pleasant and Dog Pound gangs also are a part of the MUG alliance. The
MUG alliance’s rival gang was the “TWAMP”3 alliance, made up of the Lee Street,
Weller, Klette, Lotus Street, Grove Street, and Strother gangs.
The gang expert described the MUG alliance as fluid and organized. He testified
the members of gangs in the MUG alliance associated with, expressed loyalty to, and
supported each other against rival gangs. He cited appellant’s social media
communications, photographs, and video showing him associating with MUG allied gang
members from the Garrett Street, Dog Pound, U-Boys, and Northside Pleasant gangs, as
well as appearing with MUG imagery. He also cited evidence depicting the subset
members displaying gang signs and symbols together, having similar (or, in the case of
Garrett Street and Northside Pleasant members, the same) tattoos, paying respect to
deceased members of MUG allied gangs, committing crimes together, and generally
socializing with each other.
In addition to this general evidence, the gang expert noted specific facts about the
MUG alliance. He described the existence of a cross-gang clique known as the “Murder
Squad,” which consisted of “hitters from all of the gangs within the MUG alliance” who
were “actively committing crimes and putting in work for the MUG alliance.” He also
described the evidence collected in a search of appellant’s room, including a folder
displaying the letters “MUG” together with numerical references to the territories
claimed by the allied gangs—“10” for Modoc, “9” for U-Boys, and “12” for Garrett
Street. One of appellant’s recorded jail calls was played for the jury, wherein appellant
implied Chapple was a snitch who cooperated with law enforcement, and the gang expert
3 The meaning of the acronym could not be confirmed. We use this term solely
because the gang expert used it to identify the rival gang alliance.
12.
opined on the connection between this call and a jailhouse assault on Chapple by MUG
alliance gang members. The prosecutor posed a hypothetical based on the facts of the
July 4th shooting, including that the six shooters acted quickly to fire at the sight of the
approaching SUV, a perceived rival gang member, then stopped firing when they
discovered the driver was a MUG alliance member; the gang expert opined the
coordinated nature of the shooters’ acts to take out a rival gang member demonstrated the
collective nature of the MUG alliance. The gang expert opined this evidence
demonstrated how MUG alliance members act for MUG’s common benefit by protecting
territory, punishing “snitches,” and working against perceived or actual gang rivals like
the TWAMP alliance.
In addition to the above evidence, the prosecution presented evidence of other
criminal incidents involving members of the MUG alliance, specifically from the
Northside Pleasant, Dog Pound, and U-Boys subset gangs. The first incident occurred on
April 21, 2021, where three Northside Pleasant gang members posted challenges on their
social media pages challenging rival gangs to violent conflicts, then were caught during a
traffic stop with two loaded firearms. The second was an August 16, 2021, smoke shop
shooting involving two U-Boys gang members against TWAMP gang members. The
third was a November 27, 2022, robbery and assault at a Hookah Lounge by Northside
Pleasant and Dog Pound gang members. The gang expert opined these instances were for
the benefit of the MUG alliance, as they supported its goals of confronting perceived
rivals, generating financial gain, and demonstrating collective action. The prosecution
presented certified conviction records of those involved in the three instances, each
containing gang enhancements under section 186.22. It was undisputed that neither
appellant nor any Garrett Street gang members were involved in these three offenses.
B. Standard of Review
“To assess the evidence’s sufficiency, we review the whole record to determine
whether any rational trier of fact could have found the essential elements of the crime or
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special circumstances beyond a reasonable doubt.” (People v. Zamudio (2008)
43 Cal.4th 327, 357.) Substantial evidence in this context is “evidence that is reasonable,
credible, and of solid value—such that a reasonable trier of fact could find the appellant
guilty beyond a reasonable doubt.” (Ibid.; see People v. Cole (2004) 33 Cal.4th 1158,
1212 [same standards for claims raised under the Fourteenth Amendment to the U.S.
Const.].) We presume the existence of every fact the jury could reasonably deduce from
the evidence that supports the judgment, including reasonable inference based on the
evidence. (People v. Avila (2009) 46 Cal.4th 680, 701.)
A judgment may only be set aside for insufficient evidence if it is “clearly shown
that ‘on no hypothesis whatever is there sufficient substantial evidence to support the
[jury’s] verdict[s].’ ” (People v. Stewart (2000) 77 Cal.App.4th 785, 790.) Because we
must draw all inferences in support of the judgment, an appellant “bears an enormous
burden” when challenging the sufficiency of the evidence. (People v. Sanchez (2003)
113 Cal.App.4th 325, 330.)
C. Analysis
Section 186.22 provides for punishment of “a person who is convicted of a felony
committed for the benefit of, at the direction of, or in association with a criminal street
gang, with the specific intent to promote, further, or assist in criminal conduct by gang
members.” (§ 186.22, subd. (b)(1).) The statute defines “criminal street gang” as:
“[A]n 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.” (Id., at subd. (f); see id., at
subd. (e)(1)(E) [listing “shooting at an inhabited dwelling or occupied
motor vehicle, as defined in section 246” as one of the enumerated criminal
acts].)
14.
A “pattern of criminal gang activity” can be shown through (among other things)
evidence of the commission or conviction of two or more enumerated offenses, in a
defined period of time, by two or more of the gang’s members, where the offenses
“commonly benefited” the gang in a way that is “more than reputational.” (Id., at
subd. (e)(1).)4
Appellant’s challenge to the gang enhancements focuses on the asserted lack of
connections between his membership in the Garrett Street gang, Garrett Street’s
connection to the MUG alliance, and the pattern evidence in the record—all committed
by members of other gangs that were also described as MUG alliance subsets. It is
undisputed that neither appellant nor any Garrett Street gang members were convicted of,
much less participated in, the crimes presented as the three pattern priors: (1) the
April 21, 2021, firearm possession; (2) the August 16, 2021, smoke shop shooting; and
(3) the November 27, 2022, Hookah Lounge robberies. Appellant appears to argue that,
at best, the evidence shows he shot at the SUV for the benefit of the Garrett Street gang
only, that the three predicate offenses were committed for the benefit of those gangs (and
not Garrett Street), and that the assertion by the gang expert that these crimes were
committed for the benefit of the MUG alliance is conclusory. For support, appellant
primarily relies on three cases: People v. Prunty (2015) 62 Cal.4th 59 (Prunty); People v.
4 This statutory text incorporates four substantive changes to section 186.22 enacted
by Assembly Bill No. 333 (2021‒2022 Reg. Sess.), effective January 1, 2022. (See
§ 186.22, subd. (f) [requiring a “criminal street gang” now be shown as an “ongoing,
organized association or group of three or more persons” (italics added)]; ibid. [requiring
a gang’s members “collectively engage in” a pattern of criminal activity in order to
constitute a “criminal street gang” (italics added)]; id., at subd. (e)(1)‒(2) [narrowing the
evidence available to show a “pattern of criminal activity” to a specific date range, by
gang members only, for the common benefit of a criminal street gang; excluding the
current offense (italics added)]; id., at subd. (g) [requiring a common benefit to be “more
than reputational”].) (See People v. Clark (2024) 15 Cal.5th 743, 752.)
15.
Nicholes (2016) 246 Cal.App.4th 836 (Nicholes); and People v. Cornejo (2016)
3 Cal.App.5th 36 (Cornejo). We find each distinguishable on the facts.
In Prunty, the California Supreme Court held that “where the prosecution’s case
positing the existence of a single ‘criminal street gang’ … turns on the existence and
conduct of one or more gang subsets…, the prosecution must show some associational or
organizational connection uniting those subsets.” (Prunty, supra, 62 Cal.4th at p. 71;
id. at p. 75 [describing the inquiry as requiring evidence that the gang the defendant
sought to benefit and the gang the prosecution proves to exist, as “one and the same”].)
The court noted this connection could be shown through evidence of “collaboration or
organization,” “the sharing of material information among the subsets of a larger group,”
“subsets [that] are part of the same loosely hierarchical organization, even if the subsets
themselves do not communicate or work together,” or “various subset members [who]
exhibit behavior showing their self-identification with a larger group, thereby allowing
those subsets to be treated as a single organization.” (Id. at p. 71.) Critically, the
Supreme Court stated, “[I]t is not enough … that the group simply shares a common
name, common identifying symbols, and a common enemy,” nor for “different subsets’
conduct to satisfy the primary activities and predicate offense requirements without
demonstrating that those subsets are somehow connected to each other or another larger
group.” (Id. at p. 72.)
Under this framework, the Supreme Court reversed the Prunty defendant’s gang
enhancement on substantial evidence grounds. (Prunty, supra, 62 Cal.4th at p. 85.)
Therein, the evidence demonstrated the defendant claimed membership in the Detroit
Boulevard Norteños “set” and the broader Norteños gang, and his partner in crime was a
member of the Varrio Franklin Boulevard Norteños. (Id. at p. 67‒68.) The two
exchanged derogatory gang slurs with a person who identified with the rival Sureño gang
at a shopping center. (Id. at p. 68.) The two wore clothing and exchanged threats and
gang signs associated with the Norteños, and the encounter ended with the defendant
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shooting at the Sureño gang member. (Ibid.) The prosecution’s gang expert linked the
defendant to the broader Norteños gang, describing his “clothing and hairstyle, his
previous contacts with law enforcement, and his possession of Norteño graffiti, images,
clothing, and other paraphernalia were consistent with Norteño gang membership.”
(Ibid.) The expert further testified about the history and size of the Norteños, explaining
that the Sacramento-area Norteños were “not associated with any particular ‘turf’ but
[were] instead ‘all over Sacramento’ with ‘a lot of subsets based on different
neighborhoods.’ ” (Id. at p. 69.) The expert described the names, signs, and symbols
common to the Norteños and their “enemy” Sureño gang, as well as the gangs’ “culture
generally, including the appearance of gang graffiti and gang signs as well as each gang’s
use of common derogatory statements about its rivals.” (Ibid.) The expert also generally
described how “the Norteños’ in the area engage in various criminal practices, including
homicide, assault, and firearms offenses.” (Id. at p. 82.) Finally, the expert testified to
two incidents involving gang members from other Norteño subsets in California, which
the prosecution used to support its allegations of pattern priors. (Id. at p. 69)
However, the Supreme Court held the “critical shortcoming in the prosecution’s
evidence was the lack of an associational or organizational connection between the two
alleged Norteño subsets that committed the requisite predicate offenses, and the larger
Norteño gang” the defendant acted (by shooting at the Sureño member) to benefit.
(Prunty, supra, 62 Cal.4th at p. 81.) The court treated as speculative the expert’s mere
characterization of the predicate offenders as a subset of the broader Norteño gang,
noting no evidence of “collaboration, association, direct contact, or any other sort of
relationship” between the umbrella and subset groups. (Id. at p. 82.) The court
counseled that sufficient evidence might have been found if any evidence demonstrated
the predicate offenders “self-identified as members of the larger Norteño [gang],” if
Norteño “shot callers” directed the illegal acts of the subset gangs, or if the “subsets had
shared information, defended the same turf, had members commonly present in the same
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vicinity, or otherwise behaved in a manner that permitted the inference of an
associational or organizational connection among the subsets.” (Id. at pp. 82‒84.)
Over the next year, the Third District Court of Appeal reversed two cases under
Prunty. In Nicholes, the prosecution attempted to tie the defendant’s multiple violent
felonies, committed in Sacramento County, to the umbrella Norteño organization, and
secure a gang enhancement via predicate offenses committed by gang members in
neighboring Sutter County. (Nicholes, supra, 246 Cal.App.4th at pp. 845‒846.) Though
the gang expert opined the Nuestra Familia controlled Norteño in a “paramilitary type
setup,” the court noted the lack of evidence connecting the subsets to either Norteño or
Nuestra. (Id. at pp. 846‒847.) In Cornejo, there was no evidence of an “associational or
organizational connection between the Norteño subsets that committed the predicate
offenses … and the Norteño subsets to which [the] defendants belonged ….” (Conejo,
supra, 3 Cal.App.5th at pp. 48‒49.) True, the prosecution’s gang expert testified that
“Norteño subsets adhere to the same structure, have the same beliefs, and claim
membership in the larger Norteño gang …, [but he] did not testify as to what that
purported structure was, or that it was somehow imposed upon the subsets by the larger
Norteño organization.” (Id. at p. 49.) Nor did the court find sufficient the gang expert’s
testimony that the subset gangs claimed membership in Norteño, noting the “ ‘limits on
the boundaries of an identity-based theory’ ” without evidence of a connection in fact.
(Ibid.)
Here, appellant is correct that the prosecution relied on evidence demonstrating
appellant and the predicate offenders identified with the U-Boys, Northside Pleasant, and
Garrett Street gangs, and these subset gang members used the MUG alliance name and
symbols, shared gang signs, tattoos, similar blue clothing and colors, and had a united
opposition to TWAMP alliance members. However, the record here contains much more
than what was presented in Prunty, Nicholes, and Cornejo, such that a reasonable jury
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could have concluded both appellant and the predicate offenders acted for the benefit of
the MUG alliance.
First, the prosecution’s gang expert described a cross-gang clique known as the
“Murder Squad,” which consisted of “hitters from all of the gangs within the MUG
alliance” who were “actively committing crimes and putting in work for the MUG
alliance.” Importantly, the “Murder Squad” was not a separate gang, but a cross-gang
clique that reflected the integration of members across subset lines. The gang expert also
opined on the connection between Chapple’s talking to law enforcement about the
shooting and his jailhouse assault by MUG alliance members, relying in part on one of
appellant’s recorded jail calls. (See Prunty, supra, 62 Cal.4th at p. 78 [advising that
informal relationship between umbrella gang and its subsets could be inferred where
“members of different subsets have ‘work[ed] in concert to commit a crime’ or …
strategized, formally or informally, to carry out their activities”]; see also § 186.22,
subd. (g) [noting examples of a common benefit could include “targeting a perceived or
actual rival gang, or intimidation or silencing of a potential current or previous witness or
informant”].)
Second, in a search of appellant’s room, law enforcement found (among other
things) a folder displaying the letters “MUG” and marking the territory for MUG alliance
gang subsets. (See Prunty, supra, 62 Cal.4th at pp. 77–78 [advising that evidence of
“several gang subsets conduct independent, but harmonious, criminal operations within a
discrete geographical area may show that they are part of a single entity whose bosses
have divided up a larger territory”].)
Third, the circumstances of the July 4 shooting provided evidence not only that
appellant and other MUG alliance members ‘ “hang out together,’ ” but also that they
‘ “back up each other’ ” and “ ‘work[] in concert to commit a crime.’ ” (Prunty, supra,
62 Cal.4th at p. 78, fn. omitted.) At the time of the shooting, the SUV driver was then a
Dog Pound member, appellant was Garrett Street member, and the other shooters were
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members of the Garrett Street, Northside Pleasant, and U-Boys gangs. The surveillance
footage showed that as the SUV drove eastbound back towards the gathering, appellant
and five others stepped into the street and opened fire toward it. The gunfire ceased
when the shooters realized the driver was associated with an allied gang. Appellant and
others approached the SUV and spoke with the driver, and other partygoers took the guns
and concealed them. This evidence supports a finding that the members of the MUG
alliance “work[ed] in concert to commit a crime” and “have strategized, formally or
informally, to carry out their activities.” (Ibid. [“This evidence need not be direct, and it
need not show frequent communication or a hierarchical relationship among the members
who communicate”].)
Finally, we need not completely disregard the more general “identity based” and
reputational evidence described above. (Prunty, supra, 62 Cal.4th at p. 79 [noting that
proof that subset gang members “hang out together” can help demonstrate that the
subsets’ members have exchanged strategic information or otherwise taken part in the
kinds of common activities that imply the existence of a genuinely shared venture,”
commenting that “[t]his type of evidence routinely appears in gang enhancement cases”],
citing People v. Hairston (2009) 174 Cal.App.4th 231, 237, fn. 4 [describing testimony
that “it was very common for members of different gang subsets to intermingle and hang
out together”].)
For the reasons stated above, the gang enhancements under sections 186.22 and
12022.53 were supported by substantial evidence.
IV. Appellant’s Absence from the Resentencing Hearing
Lastly, appellant contends the trial court erred in resentencing him in his absence
and without a valid waiver of his right to be present, he was prejudiced by this absence,
and so the case must be remanded for resentencing. The People contend appellant had no
right to be present because the hearing was a “limited correction of an unauthorized
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sentence, not a critical stage of the prosecution,” and any assumed error was harmless
beyond a reasonable doubt. We agree with appellant.
A. Additional Background
At the first sentencing hearing on June 11, 2024, the court struck one of
appellant’s prior strike convictions, then sentenced appellant to a determinate term of
11 years four months and an indeterminate term of 40 years to life as follows: on
count 1, 10 years (the middle term of five years, doubled due to the prior strike
conviction), plus 25 years to life under section 12022.53, and 15 years to life under
section 186.22; and on count 4, a consecutive term on one year four months (one-third
the middle term, doubled due to the prior strike conviction).
In December 2024, CDCR notified the trial court of errors in sentencing. The
court scheduled a resentencing hearing for February 20, 2025, but did not notify appellant
in advance of this hearing. (See In re Major (Aug. 8, 2025, F090010) [nonpub. opn.].)
On February 20, 2025, the prosecutor and appellant’s trial counsel appeared for
the resentencing hearing; appellant was not present. The court explained that it was “here
to correct the errors in sentencing,” that the prior abstract was incorrect, that the issue
concerned improper imposition of sentence on multiple enhancements, and that it would
“resentence [appellant] as if we never sentenced him before.” Defense counsel submitted
without argument. The court then resentenced appellant to a total term of 11 years four
months plus 25 years to life, with the only change being that the indeterminate term of
15 years to life for the section 186.22 gang enhancement was stayed.
B. Standard of Review
Constitutional issues, including whether a valid waiver of appellant’s presence
was entered, are reviewed de novo. (People v. Gutierrez (2003) 29 Cal.4th 1196, 1202;
see State of Ohio v. Barron, supra, 52 Cal.App.4th at p. 67.) Under the federal
Constitution, errors pertaining to an appellant’s presence are evaluated under the
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harmless-beyond-a-reasonable-doubt standard set forth in Chapman v. California (1967)
386 U.S. 18, 24. (People v. Mendoza (2016) 62 Cal.4th 856, 902.)
C. Analysis
“A criminal defendant’s right to be personally present at trial is guaranteed under
the federal Constitution by the confrontation clause of the Sixth Amendment and the due
process clause of the Fourteenth Amendment,” as well as “by section 15 of article I of the
California Constitution and by sections 977 and 1043.” (People v. Concepcion (2008)
45 Cal.4th 77, 81 (Concepcion).) This right extends to “ ‘all critical stages of the
criminal prosecution’ ” and includes sentencing and resentencing. (People v. Cutting
(2019) 42 Cal.App.5th 344, 347–348 (Cutting).) The right to be present may be waived.
(Id. at p. 348.) However, this waiver must be expressly authorized by the defendant, or
the defendant’s counsel must represent to the court the defendant has so waived. (Ibid.)
Appellant contends he was entitled to be present at the February 2025 resentencing
hearing, describing it as a critical stage of his trial. The People characterize the
resentencing as a ministerial act, noting the trial court only stayed the section 186.22
gang enhancement because it was an illegal sentence. The People are correct as to the
court’s actions, and it is likely the court only called the hearing to correct errors identified
by the CDCR’s December 2024 letter. However, as appellant correctly notes, the court
also clearly stated at the start of the hearing that it would resentence appellant “as if we
never sentenced him before.” In a full resentencing, the court would have the option to
revisit other portions of the sentence, including the decision to strike the defendant’s
other prior strike conviction or make findings in the sentencing triad based on the
mitigating circumstances. As in Cutting, we find the court erred in sentencing the
defendant in his absence and without a valid waiver of his right to be present. (Cutting,
supra, 42 Cal.App.5th at p. 348.) Further, on the limited record before us, we “cannot
conclude beyond a reasonable doubt that his presence at the hearing would not have
affected the outcome.” (See id., at p. 350. [reversing for a full resentencing under
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Chapman, noting that “the trial court may or may not have chosen to believe what [the
defendant] might have said” regarding mitigating circumstances]; see also People v.
Garcia (2008) 161 Cal.App.4th 475, 484 [a defendant’s postconviction behavior and
other possible developments are relevant to the trial court’s consideration upon
resentencing], disapproved on other grounds in People v. Picklesimer (2010) 48 Cal.4th
330, 338, fn. 4.)
DISPOSITION
The sentence is vacated, and this matter is remanded to the trial court for a full
resentencing. In all other respects, the judgment is affirmed.
SANDHU, J.
WE CONCUR:
HILL, P. J.
DETJEN, J.
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