Filed 8/31/26 P. v. Pedraza CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G064627
v. (Super. Ct. No. 17NF2318)
OSIRIS LENIN GARFIAS OPINION
PEDRAZA,
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County,
Sheila F. Hanson, Judge. Reversed and remanded.
Robert E. Boyce, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Arlene A. Sevidal, Assistant Attorney General,
Eric A. Swenson and Anastasia Sagorski, Deputy Attorneys General, for
Plaintiff and Appellant.
* * *
In 2017, defendant Osiris Lenin Garfias Pedraza (Pedraza) shot
and killed a rival gang member. In 2019, a jury convicted Pedraza of first
degree murder, and found true a gang allegation and a gang-murder special
circumstance. The jury also found that Pedraza personally discharged a
firearm causing death. The trial court imposed a sentence of life without the
possibility of parole (LWOP), plus a consecutive term of 25 years to life for
the firearm enhancement. Pedraza filed an appeal.
In 2021, this court remanded the case so that the trial court could
exercise its discretion as to whether to strike the firearm enhancement.
(People v. Garfias Pedraza (Apr. 12, 2021, G058743) [nonpub. opn.].) On
remand, the court declined to do so. Pedraza filed a second appeal.
In 2022, while Pedraza’s second appeal was pending, the
Legislature retroactively modified the requirements for proving gang crimes
and allegations. (Pen. Code, § 186.22; 1 Assem. Bill No. 333 (2021-2022 Reg.
Sess.) (Stats. 2021, ch. 699, §§ 1–5) (Assem. Bill 333).)
In 2024, this court vacated the jury’s true findings on the gang
allegation and gang-murder special circumstance, and remanded the matter
solely to “afford the prosecution the opportunity to retry these allegations in
conformance with the current law.” (People v. Garfias Pedraza (Feb. 23, 2024,
G062015) [nonpub. opn.].) On remand, a jury found true the gang allegation
and gang-murder special circumstance. Pedraza filed the instant appeal.
In this appeal, Pedraza claims there is insufficient evidence to
support the jury’s true findings. We disagree. We find substantial evidence to
support the gang allegation and gang-murder special circumstance.
1
Further undesignated statutory references are to the Penal
Code; we will generally omit the word “subdivision” or its abbreviation.
2
Pedraza also claims the trial court failed to instruct the jury on
the required relationship (nexus) between Pedraza’s gang’s predicate
offenses, and its “organizational structure, meaning its manner of
governance; its primary activities; or its common goals and principles.”
(People v. Clark (2024) 15 Cal.5th 743, 762 (Clark).)
The Attorney General concedes the instructional error, but
argues that it was harmless. (See Chapman v. California (1967) 386 U.S. 18
(Chapman).) We disagree. We find substantial evidence to support the gang
allegation and the gang-murder special circumstance, but that is not the
same as finding that an instructional error is harmless beyond a reasonable
doubt. (See People v. Lamb (2024) 16 Cal.5th 400, 455 [“Were this a question
of sufficiency of the evidence, the outcome might be different”].)
Thus, we reverse the true findings on the gang allegation and
gang-murder special circumstance. On remand, the People may retry Pedraza
on the sentencing enhancements at their election.
I.
FACTS AND PROCEDURAL BACKGROUND
On June 29, 2017, Cindy H. had been friends with 20-year-old
Pedraza for a couple of months. Cindy was in Pedraza’s bedroom when he
showed her a silver handgun and said he would use it on an enemy. Pedraza
had told Cindy that his nickname was “‘Low.’”
On July 4, 2017, Carlos J. lived in Fullerton and was a member of
the Fullerton Tokers Town (FTT) gang. About a month prior, Carlos had seen
Pedraza with a silver handgun. Carlos had been with the gang for about two
years, starting when he was 15 years old, and had been previously arrested
for tagging. Carlos had been jumped into the FTT gang, and his gang
3
moniker was “Maniacs.” Carlos understood that as a member of FTT he was
expected to put in work for the gang by committing crimes. Carlos was
secretly being paid as a confidential informant of the Fullerton Police
Department.
On the evening of July 4, 2017, Carlos drove to Truslow Street in
Fullerton, an area where FTT gang members usually hang out. Carlos met up
with Pedraza, whose gang moniker was “Low,” and three other FTT gang
members: Hector A. (“Elf”), Angel H. (“Green”), and Eduardo A. (“Devious”).
Also present was Pedraza’s girlfriend, who was not an FTT member. The
group was hanging out and drinking beer.
The group left in three separate vehicles to go “cruising” in other
neighborhoods. Carlos later testified that “cruising” means to drive into rival
gang territory and to possibly beat up a rival gang member, particularly if
they are alone (“slipping”) and unable to defend themselves. Carlos said that
the reason the group took three vehicles was to make it appear as though
there were more people (strength in numbers). Carlos said that FTT
members are usually supposed to tell other gang members if anyone is
carrying a gun, but there was no mention of a gun being in any of the cars.
The FTT group first drove through a neighborhood in Fullerton
claimed by a rival gang (Wicked Minds), then to a neighborhood in Placentia
claimed by another rival gang (La Jolla), but they did not find any gang
members “slipping” in either place. The group then drove to a neighborhood
in Anaheim claimed by another rival gang (Underhill). The FTT and
Underhill gangs had a history of bad blood with each other because someone
from Underhill had purportedly killed one or two members from FTT.
Carlos and the rest of the group did not find anyone “slipping” in
Anaheim, but they found a group of Underhill gang members in an alley near
4
East Banyon Drive. Some of the FTT members got out of their cars, and then
the two groups started dissing each other. The Underhill members said,
“‘F*ck Tater Tots,’” and “‘F*ck your dead homies.’” And the Fullerton group
responded by saying things like, “‘F*ck Underwears.’” The Underhill group
threw stuff at the Fullerton group, and the Fullerton group threw empty beer
bottles back at the Underhill group. Carlos got back in his car and drove
away because he did not want his car to be damaged. The rest of the group
followed and drove back to Fullerton.
The group met up five minutes later in Fullerton near Pedraza’s
home. The group members were upset, and before walking to his apartment,
Pedraza said, “‘I’m gonna get that sh*t.’” When he returned, Pedraza was
wearing gloves and had a backpack. Pedraza said to the group, “‘Let’s go back
to Underhill.’” Pedraza asked Carlos to drive, but he refused because he did
not want his car to be damaged; Pedraza called Carlos a “p*ssy.” Eduardo
and Angel agreed to go to Underhill, and Carlos watched as Pedraza and the
two other FTT gang members left together in Angel’s vehicle.
Crystal C. had seen shooting victim Jonathan H. riding his
bicycle near East Banyon Drive in Anaheim earlier that day. Crystal lived in
the area, and knew that her neighborhood was claimed by the Underhill
gang, but she did not know if Jonathan was from the gang. After celebrating
the Fourth of July into the evening with her family, Crystal heard arguing
outside and looked to see who it was. Crystal saw Jonathan throwing a glass
bottle and yelling, “‘F*ck Tater Tots.’” Crystal then heard a car screeching
away. About 20 or 30 minutes later, Crystal heard three successive gunshots,
went outside, and saw Jonathan lying on his back on the ground. Crystal saw
blood on his T-shirt near his chest.
5
The Investigation
On July 5, 2017, at about 2:45 a.m., an officer arrived at the
scene and saw Jonathan lying on the ground, surrounded by people.
Jonathan had no pulse, and he had at least one gunshot wound to his chest.
A later autopsy revealed that Jonathan had died from multiple gunshot
wounds. A forensic specialist photographed evidence at the crime scene,
including Jonathan’s bicycle and three bullet casings.
On August 24, after Pedraza was arrested, police placed an
officer posing as an inmate in the same jail cell as him. Over several hours,
Pedraza told the officer that he had been jumped into the FTT gang in 2015
and his moniker was “‘Low.’” Pedraza explained that Underhill was a rival
gang, and a member of that gang had murdered two FTT members in 2004.
As far as the shooting on July 5, 2017, Pedraza said he was not
worried about DNA or fingerprints because he had worn gloves. Pedraza said
his group had caught someone “‘slipping,’” and a car belonging to his “homey”
was used in the attack. Pedraza noted that three shell casings were left at
the scene, but Pedraza said he was not worried about the “big gun” used in
the shooting because “they had gotten rid of it.” Pedraza said there were no
witnesses, but somebody might have “ratted him out.” Pedraza initially
thought about going to Mexico, but after some time had passed, he decided
against it. Some older members of his gang told Pedraza that if he got caught,
he should just “ride it out” and take whatever time he was given.
Court Proceedings
In October 2019, the People filed a felony information charging
Pedraza with murder. The People alleged a gang allegation, a gang-murder
special circumstance, and a firearm enhancement. A jury found Pedraza
6
guilty of first degree murder and found the allegations to be true. The trial
court imposed an LWOP sentence, plus a consecutive term of 25 years to life
for the firearm use enhancement. In Pedraza’s first appeal, this court
reversed and remanded the matter so the trial court could exercise its
discretion to strike the firearm enhancement. (People v. Garfias Pedraza,
supra, G058743.) On remand, the court did not strike the enhancement, and
Pedraza filed a second appeal.
In February 2024, due to intervening changes in the law, this
court vacated the jury’s true findings as to the gang allegation and gang-
murder special circumstance. On remand, the matter was returned “to the
trial court to afford the prosecution the opportunity to retry these allegations
in conformance with the current law. The remainder of the judgement is
affirmed.” (People v. Garfias Pedraza, supra, G062015.)
In August 2024, a 10-day jury trial took place. The People called
witnesses to testify as to the shooting on July 5, 2017, and as to the ensuing
police investigation. Witnesses also testified as to the FTT gang’s pattern of
criminal activity (seven predicate offenses) committed by FTT gang members
prior to July 5, 2017, as follows:
1. Assault with Great Bodily Injury
On February 25, 2015, a stabbing occurred on Iris Court in
Fullerton, which was a “stronghold” of the Baker Street gang (a rival of the
FTT gang). Baker Street members would congregate on Iris Court, and it was
“very active” for calls of fights. The stabbing victim was Mark. H., who was a
documented, self-admitted Baker Street gang member.
Serina B. pleaded guilty to assault with a deadly weapon and
admitted inflicting great bodily injury for the benefit of the FTT gang in
7
connection with this stabbing incident. Serina had tattoos representing East
Side Fullerton (another name for FTT). An officer opined Serina was an FTT
gang member on the night of the shooting based on her tattoos, the fact that
the assault had taken place in rival gang territory against a rival gang
member, and on her admission in the plea form.
William F. also pleaded guilty to assault with a deadly weapon
for the benefit of the FTT gang in connection with this incident. While
investigating the stabbing, an officer contacted William (aka “Villain”), who
was accompanied by other FTT gang members and wearing clothes indicating
his gang membership. William had FTT gang tattoos, including “TST,” which
represents Truslow Street, a subset of FTT. An officer opined William was an
FTT gang member at the time of the stabbing, based on his tattoos, social
media references, and police contacts.
Anthony S. also pleaded guilty to assault with a deadly weapon
for the benefit of FTT in connection with this incident. Anthony had several
FTT tattoos. An officer opined that Anthony was a FTT gang member at the
time of the stabbing, based on his self-admission, his tattoos, and the nature
of the incident itself: the assault of a rival Baker Street gang member.
2. Felon in Possession of a Firearm
On July 10, 2015, Fullerton police were attempting to complete a
probation check at the home of FTT gang member George T. George’s
girlfriend was talking to Rene D., who was sitting in a truck parked on the
street. A parole search of Rene and his truck revealed a gun, about $3,000 in
cash, a substantial amount of methamphetamine and digital scales. Rene’s
phone contained a text message that appeared to relate to drug sales, which
addressed him by his gang moniker, “Weasel.”
8
Rene pleaded guilty plea to being a felon in possession of a
firearm and to possession of narcotics for sale, both for the benefit of the FTT
gang. Social media contacts referred to Rene as “Weasel,” and he also had
FTT gang tattoos. An officer opined Rene was a FTT gang member at the
time of the probation check based on his admission to the gang allegation as
part of his plea, his numerous gang-related tattoos, and the fact that he was
selling narcotics in the gang’s territory; the officer opined that this would not
have been permitted had Rene not been an FTT member.
3. Felon in Possession of a Firearm
On August 30, 2015, Carlos L. went to a 7-Eleven store with
several others, including FTT associate Abraham H. A search of Carlos
revealed that he was carrying a loaded revolver in the front of his waistband.
Carlos was wearing clothing associated with the FTT gang and he had gang
tattoos. Carlos pleaded guilty to being a felon in possession of a firearm for
the benefit of the FTT gang.
An officer opined that Carlos possessed the gun for the common
benefit of the gang on this day based on his guilty plea to the charge, as well
as his presence in a gang neighborhood with other “suspected FTT associates”
while he was armed, wearing attire associated with FTT, and sporting FTT
tattoos. Based on a hypothetical formed from the facts of the incident, the
officer opined this crime would benefit the gang such that the common benefit
was more than reputational, because it served as an example of a gang
member who was putting in work, engaging in one of the gang’s primary
activities by possessing a gun, and preparing to act in retaliation if needed.
9
4. Felon in Possession of a Firearm
On September 16, 2015, police conducted a parole check on the
home of Enrique Z. Police recovered a loaded gun from a bag in a hamper; the
bag was marked with FTT gang insignia and his moniker “Mr. Stoney.” The
hamper where the bag was found also contained Enrique’s clothes, which
were of a type commonly used to promote FTT. Enrique’s iPod contained
photos of Enrique along with photos depicting FTT gang indicia, and he had
FTT gang tattoos. Enrique pleaded guilty to being a felon in possession of a
firearm for the benefit of the FTT gang.
An officer opined that Enrique was an FTT gang member in this
incident in 2015, based on contacts going back to 2006, and the recovery of
the gun at Enrique’s residence. Based on a hypothetical, an officer opined this
crime benefitted the gang such that the common benefit was more than just
reputational because this weapon would constitute a “gang gun,” and the
member possessing it would be required to tell other members about it in
case they might need it for securing the gang’s territory, retaliation, or
putting in work.
5. Transportation of Narcotics for Sales
On May 19, 2016, Fullerton police were driving an unmarked car
in an area claimed by FTT and marked extensively with its graffiti. Police
followed a car that was speeding recklessly as if trying to evade the
unmarked police car. With lights and sirens activated, police pursued the car
until it crashed into a house; the driver (Juan H.) fled on foot before officers
apprehended him. An officer recovered a tube closely associated with Juan
containing methamphetamine that had been individually packaged.
At the time of his arrest, Juan possessed cash, plus a cell phone
10
containing text messages from documented FTT members regarding drug
sales; Juan had agreed to deliver the requested goods just minutes before the
pursuit. Juan had FTT gang tattoos. Juan pleaded guilty to charges of
transporting a controlled substance, possessing it for sale, and felony evading
of a peace officer, all for the benefit of the FTT gang.
An officer opined that Juan was a FTT gang member based on his
tattoos, his admission of the gang allegation, and his multiple contacts in
FTT territory. When presented with a hypothetical based on the facts of the
incident, the officer opined the crimes benefitted the gang more than just
reputationally, because drug sales are one of the primary activities of FTT,
and putting in work by selling drugs generates funds; these funds in turn
facilitate buying more drugs, purchasing guns, hosting functions to boost
recruitment, and providing money to incarcerated members.
6. Assault with Great Bodily Injury
On May 29, 2016, Rigoberto J. was assaulted in Fullerton near an
area claimed by the Baker Street gang. A witness saw a lone male (Rigoberto)
on a bicycle getting beat up by a group of people. The attackers had emerged
from a gray car. Rigoberto was a Baker Street gang member and had the
moniker “Pelón.” The beating was “graphic.” Rigoberto’s leg had been broken,
but he had refused to provide a statement to police or identify any suspects.
Rigoberto’s brother identified Daniel S. as the suspect and said
he had yelled something about Fullerton or Fullerton Tokers Town during
the incident; a woman present had also yelled something about FTT. Daniel
had prominent FTT gang tattoos. Daniel pleaded guilty to assault with force
likely to produce great bodily injury and admitted personally inflicting great
bodily injury for the benefit of the FTT gang.
11
An officer opined that Daniel S. was a FTT gang member on the
day of the assault, based on his own admission, his admission to the gang
enhancement as part of his plea, his tattoos, and law enforcement’s repeated
contacts with him in the gang’s territory. Based on a hypothetical, the officer
opined the crime commonly benefitted the attackers’ gang, since an assault
this violent would engender great fear of the gang.
7. Assault with Great Bodily Injury
On September 2, 2016, witnesses at a taqueria in Fullerton saw a
group of five to seven men chasing a man, and then “jumping” or “ganging up
on” him. The taqueria is in a high-crime area within the FTT gang territory
and was a hangout for FTT gang members. The man’s black Angels hat was
forcefully taken from him by the group; his hat was regarded by FTT as a
sign of disrespect, as anything with an “A” signified rival Anaheim and could
provoke “consequences” from the gang when worn in their territory. Those
consequences of wearing such a hat could include anything from the theft of
the hat, assault, or homicide.
An officer was on duty when he saw a few individuals running
out of the parking lot of the taqueria. The officer immediately recognized
three of the men as Joel C., Ivan R., and Felix A. As Joel was running away,
he tossed a black Angel’s hat into a construction site. An officer knew Joel as
“Chino,” and that he lived within a few blocks of the location. Joel had
previously been contacted while in the company of other gang members, in
gang territory, and while dressed in apparel indicative of gang membership.
The officer had also seen photos of Joel with other gang members throwing
up gang signs.
An officer had contacted Ivan, whose moniker was “Vago,” in that
12
immediate area; he was accompanied by other documented gang members.
Ivan often wore items that signified the FTT gang, he had been issued
several STEP notices, and he had FTT gang tattoos.2 The officer knew Felix,
whose moniker was “Lil Bat,” as a self-admitted FTT gang member and had
issued him STEP notices. The officer had also seen photos of Felix with other
gang members, wearing gang indicia, and throwing up gang signs. Felix
pleaded guilty to assault with force likely to produce great bodily injury for
the benefit of the FTT gang.
The officer opined that Joel C., Ivan R., and Felix A. were all FTT
gang members. Based on a hypothetical of the incident involving the man
with the Angels hat, the officer opined the crimes commonly benefitted the
attackers’ gang (FTT), because wearing such a hat in rival territory would
constitute “a huge sign of disrespect” necessitating a violent response, and
executing that violent response commonly benefitted the gang. The benefit
conveyed would be more than reputational, because the assault would
establish that rivals would not be allowed in the gang’s territory.
At the conclusion of the trial, the jury found the gang allegation
and gang-murder special circumstance to be true. The trial court reimposed
the LWOP sentence, plus a consecutive term of 25 years to life.
II.
DISCUSSION
Pedraza claims: A) there is insufficient evidence to support the
gang allegation and gang-murder special circumstance; and B) the trial court
2
A STEP notice is not a citation, but rather a notice to a gang
member that if he were to be charged in the future with certain crimes, then
those crimes could be charged as gang offenses.
13
erred by not properly instructing jurors as to the predicate offenses.
A. Substantial Evidence Claims
“When considering a challenge to the sufficiency of the evidence
. . . , we review the entire record in the light most favorable to the judgment
to determine whether it contains substantial evidence—that is, evidence that
is reasonable, credible, and of solid value—from which a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt.” (People v.
Lindberg (2008) 45 Cal.4th 1, 27, italics added.)
“In deciding the sufficiency of the evidence, a reviewing court
resolves neither credibility issues nor evidentiary conflicts. [Citation.]
Resolution of conflicts and inconsistencies in the testimony is the exclusive
province of the trier of fact.” (People v. Young (2005) 34 Cal.4th 1149, 1181.)
“The reviewing court presumes in support of the judgment the
existence of every fact the jury could reasonably deduce from the evidence.”
(People v. Bloom (1989) 48 Cal.3d 1194, 1208.) “Evidence of a defendant’s
state of mind is almost inevitably circumstantial, but circumstantial evidence
is as sufficient as direct evidence to support a conviction.” (Ibid.)
In this part of the discussion, we shall: 1) review relevant
principles of law; 2) summarize the relevant gang evidence presented at trial;
and 3) analyze the law as applied to the facts.
1. Legal Principles
Under the criminal street gang statute, as amended by Assembly
Bill 333, defendants are subject to enhanced punishments under the gang
allegation if they are “convicted of a [enumerated] felony committed for the
benefit of, at the direction of, or in association with a criminal street gang,
14
with the specific intent to promote, further, or assist in criminal conduct by
gang members.” (§ 186.22 (b)(1).) The relevant provisions of section 186.22
also generally apply to the gang-murder special circumstance. (See § 190.2
(a)(22); People v. Hin (2025) 17 Cal.5th 401, 461, 463.)
“As used in this chapter, ‘criminal street gang’ means an ongoing,
organized association or group of three or more persons, whether formal or
informal, having as one of its primary activities the commission of one or
more of the [predicate] criminal acts . . . , having a common name or common
identifying sign or symbol, and whose members collectively engage in, or
have engaged in, a pattern of criminal gang activity.” (§ 186.22 (f).)
“As used in this chapter, ‘pattern of criminal gang activity’ means
the commission of, attempted commission of, conspiracy to commit, or
solicitation of, sustained juvenile petition for, or conviction of, two or more
[predicate] offenses, [committed within a designated time frame], the offenses
were committed on separate occasions or by two or more members, the
offenses commonly benefited a criminal street gang, and the common benefit
from the offenses is more than reputational . . . .” (§ 186.22 (e)(1).)
“Examples of a common benefit that are more than reputational
may include, but are not limited to, financial gain or motivation, retaliation,
targeting a perceived or actual gang rival, or intimidation or silencing of a
potential current or previous witness or informant.” (§ 186.22 (g).)
2. Relevant Gang Evidence3
Respect is critical in gang culture; disrespect can result in
3
The relevant gang evidence is largely based on the trial
testimony of the People’s designated gang expert, as well as testimony from
other law enforcement officers.
15
something as serious as retaliatory murders between two gangs. A gang must
maintain its respect, as that is how a gang secures its territory; a lack of
respect equates with cowardice or weakness, which could provoke aggression
or hostile takeover attempts by the gang’s rivals. Disrespect can cause
anything from assault to homicide. Maintaining respect can mean punishing
disrespect with violence and is key to maintaining the gang’s territory.
The FTT gang originated in the 1940s in the City of Fullerton.
The gang has 450 to 500 documented members, with 100 to 150 active at any
given time. The gang’s structure is that the younger members are at the
bottom level and “put in work.” Just above them are the midlevel members or
“older homies,” who are still active in the gang. The “OGs” or older gang
members provide guidance and direction. The OGs “pass on the rules from
the past onto the other gang members.”
Gang members can ordinarily “put in work” for the gang by
committing crimes to show their commitment to the gang. The primary
activities of the FTT gang are drug sales, felony assaults, unlawful possession
of guns, robberies, and murder. The People introduced evidence of the seven
predicate offenses committed by FTT gang members from February 25, 2015,
to September 2, 2016, to show a pattern of criminal activity.
At the time of the shooting in 2017, the common name of the
gang continued to be the Fullerton Tokers Town (FTT), which claims the
entire city of Fullerton as their territory. FTT considers all Anaheim gangs as
rivals, including the Underhill gang. The common identifying sign or symbol
is the letter “F,” which is usually in the same style as “the Cal State
Fullerton letter ‘F’ or sports logo.” This is displayed in distinctive hand signs,
graffiti, and tattoos. At trial, the People introduced several photographs of
Pedraza, Eduardo, and Angel displaying FTT gang signs (these are the three
16
members that went into rival gang territory on July 5, 2017).
On December 6, 2016, an officer contacted Pedraza in area in
Fullerton that “at the time was known for high volume gang activity” such as
“vandalism, graffiti, and other crimes.” On the back of Pedraza’s phone was a
sticker with the distinctive “letter ‘F’ which represents Fullerton Tokers
Town.” The officer issued Pedraza a STEP notice “informing him that if he
. . . were to commit a crime in the near future, he could potentially be charged
. . . as a gang member.” On May 12, 2017, an officer saw Pedraza displaying a
FTT gang sign. On May 30, 2017, an officer issued Pedraza a STEP notice
after finding him in the company of two other FTT gang members.
At trial, the People presented its gang expert with a hypothetical
scenario, which mirrored the facts surrounding the shooting of Jonathan H.
on July 5, 2017. The expert opined that the crime of murder was committed
by the three gang members for the benefit of, at the direction of, or in
association with a criminal street gang. The expert explained that the gang
members went back to their own territory to collect a gun so they could
retaliate for the earlier disrespect shown them, and shamed as a “ranker” the
member who did not want to participate. The three gang members then went
to defend their territory and their respect, and put in work by inflicting
retaliation through committing the crime of murder, which outweighed the
earlier insult they had faced from their rivals. The expert opined that the
murder gained the gang the benefits of securing their claimed territory.
3. Analysis and Application
In this case, the trial court instructed the jury: “The defendant is
accused of violating the law in count 1 on or about July 5, 2017, in violation of
section 187(a) of the penal code (Murder) in that he did unlawfully and with
17
malice aforethought kill Jonathan H[.], a human being. [¶] This trial is not to
determine whether the defendant is guilty or not guilty of count 1 and you
will not be asked to return a verdict as to count 1. The only issue in this trial
is whether the People have proven the [gang allegation and gang-murder
special circumstance] are true.”
The trial court instructed the jury as to the gang allegation: “You
must decide whether the People have proved the additional allegation that
the defendant committed the crime of murder for the benefit of, at the
direction of, or in association with a criminal street gang. [¶] To prove this
allegation, the People must prove that: [¶] 1. The defendant committed the
crime for the benefit of, at the direction of, or in association with a criminal
street gang; [¶] AND [¶] 2. The defendant intended to assist, further, or
promote criminal conduct by gang members.” (CALCRIM No. 1401.)
Here, based on the evidence presented at trial, the jurors could
have reasonably concluded that Pedraza was an FTT gang member who
murdered Jonathan H. on July 5, 2017, in association with the two other FTT
gang members he was with. This evidence primarily came through the
testimony of the informant Carlos J., as well as Pedraza’s statements to the
undercover police officer while in jail. And based on the testimony of the gang
expert, the jury could have reasonably concluded that Pedraza intended to
promote criminal conduct by FTT gang members, primarily by way of
retaliation against the rival Underhill gang in their territory in Anaheim.
The trial court also instructed the jury as to the gang-murder
special circumstance: “The defendant is charged with the special
circumstance of committing murder while an active participant in a criminal
street gang in violation of Penal Code section 190.2(a)(22). [¶] To prove that
this special circumstance is true, the People must prove that: [¶] 1. The
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defendant intentionally killed [Jonathan H.]; [¶] 2. At the time of the killing,
the defendant was an active participant in a criminal street gang; [¶] 3. The
defendant knew that members of the gang engage in or have engaged in a
pattern of criminal gang activity; [¶] AND [¶] 4. The murder was carried out
to further the activities of the criminal street gang.” (CALCRIM No. 736.)
Based on the evidence presented at trial, the jurors could have
reasonably concluded that on July 5, 2017, Pedraza intentionally killed
Jonathan H., and that Pedraza was at that time an active member of the FTT
criminal street gang. Again, this evidence came primarily from the paid
police informant Carlos J., as well as Pedraza’s admissions while in custody.
And based on the photographic evidence, and the testimony of several police
officers, which documented Pedraza’s gang membership for at least two years
prior to the shooting, the jury could have inferentially concluded that Pedraza
knew that FTT members engage in, or have engaged in a pattern of criminal
gang activity. Further, based primarily on the testimony of the gang expert,
which established the rivalry between the FTT and Underhill gangs, and the
importance of respect in the gang culture, the jury could have reasonably
concluded that Jonathan’s murder in rival gang territory was carried out in
retaliation in order to further the activities of the gang.
Thus, we find sufficient evidence to support the gang allegation
and gang-murder special circumstance.
Pedraza argues there was insufficient evidence: (a) “to show the
predicate offenses imputed a non-reputational common benefit to the gang”;
(b) “to show Pedraza had knowledge of the primary activities of the FTT
gang”; and (c) to show “a nexus between the predicate offenses and the
organizational structure of the FTT gang.” We disagree.
19
a. There is Substantial Evidence that the Predicate Offenses
Imputed a Non-Reputational Common Benefit to the FTT Gang.
In this case, the trial court instructed the jury, in part, that in
order to qualify as a criminal street gang, the People needed to prove that the
FTT members “collectively engage in or have engaged in a pattern of criminal
gang activity.” (CALCRIM No. 736.)
“A pattern of criminal gang activity, as used here, means: [¶] 1.
The conviction of any combination of two or more of the following crimes:
Assault with a deadly weapon or by means of force likely to produce great
bodily injury as defined in Penal Code section 245[], Possession for sale, and
transportation for sale [of] a controlled substance, methamphetamine,
Prohibited possession of a firearm in violation of Penal Code section 29800;
[¶] 2. At least one of those crimes was committed after September 26, 1988;
[¶] 3. The most recent crime occurred within three years of one of the earlier
crimes and within three years of the date of the charged offense; [¶] 4. The
crimes were committed on separate occasions, or by two or more members[;]
[¶] 5. The crimes commonly benefited a criminal street gang; [¶] AND [¶] 6.
The common benefit from the crimes was more than reputational.” (CALCRIM
No. 736, italics added.)
“Examples of a common benefit that are more than reputational
may include, but are not limited to, financial gain or motivation, retaliation,
targeting a perceived or actual gang rival, or intimidation or silencing of a
potential current or previous witness or informant.” (CALCRIM No. 736.)
“You may not find that there was a pattern of criminal gang activity unless
all of you agree that two or more crimes that satisfy these requirements were
committed, but you do not have to all agree on which crimes were
committed.” (CALCRIM No. 736.)
20
During the trial, the People presented evidence of seven predicate
offenses committed by FTT gang members. Two of the predicate offenses
involved targeted assaults committed by multiple FTT gang members against
rival gang members.
In the first incident, on February 25, 2015, there was a stabbing
of Mark H., who was a member of Baker Street. Three FTT gang members
(Serina B., William F., and Anthony S.) pleaded guilty to assault with a
deadly weapon against the rival gang member, and admitted the crimes were
committed for the benefit of the FTT gang. In the second incident, on May 29,
2016, there was an assault upon Rigoberto J., who was also a member of
Baker Street. A witness saw Rigoberto getting beaten up by several people,
and a witness said that people committing the assault mentioned Fullerton
Tokers Town during the beating. One of the people involved in the beating,
Daniel S., was a member of the FTT gang. Daniel pleaded guilty to assault
with force likely to produce great bodily injury, he admitted personally
inflicting great bodily injury (a broken leg) to Rigoberto, and he also admitted
the crimes were committed for the benefit of the FTT gang.
In short, these two crimes provided substantial evidence for the
jury to find that the targeted assaultive crimes established a common benefit
to the gang that was more than reputational under the plain terms of the
statute. (See § 186.22 (g) [“Examples of a common benefit that are more than
reputational may include, but are not limited to . . . targeting a perceived or
actual gang rival”].) Because only two predicate offenses were necessary to
establish that FTT’s members engaged in a pattern of criminal gang activity,
we need not determine whether sufficient evidence supported the five other
predicate offenses proffered by the prosecution.
21
b. There is Substantial Evidence Pedraza Had Knowledge of the
Primary Activities of the FTT Gang.
The gang-murder special circumstance, section 190.2 (a)(22),
authorizes a defendant to be sentenced to imprisonment for life without the
possibility of parole, if “[t]he defendant intentionally killed the victim while
the defendant was an active participant in a criminal street gang, as defined
in subdivision (f) of Section 186.22, and the murder was carried out to further
the activities of the criminal street gang.” Although section 190.2 (a)(22) does
not expressly require that the defendant have “knowledge of the gang’s
criminal purposes” (People v. Carr (2010) 190 Cal.App.4th 475, 487 (Carr )),
federal due process imposes that knowledge requirement. (Ibid.) However,
due process “does not require a defendant’s subjective knowledge of
particular crimes committed by gang members.” (Id. at p. 488, fn. 13.)
When there is “evidence that allows a jury to find a felony was
committed for the benefit of a gang” under the gang allegation, that finding
“also typically supports a finding the defendant knew of the criminal
activities of the gang.” (Carr, supra, 190 Cal.App.4th at p. 488.) “‘Direct
evidence of the mental state of the accused is rarely available,’” and therefore
the defendant’s knowledge of the criminal activities of the gang is generally
inferential, and based on “‘circumstantial evidence regarding the actions of
the accused.’” (Id. at pp. 488–489.)
In Carr, evidence of the defendant’s knowledge of the criminal
activities of the gang was proven by his admission of gang membership, his
being contacted by police in the company of a member of a related gang; his
gang-related tattoo; expert testimony regarding an ongoing feud between the
defendant’s gang and the murder victims’ gang; the charged murders of rival
gang members; and the expert’s testimony that two other “gang members had
22
been convicted of qualifying felonies within the previous two years.” (Carr,
supra, 190 Cal.App.4th at p. 489.) The appellate court concluded: “This
evidence was more than sufficient for the jury to infer [the defendant] knew
about the criminal activities of [the gang] and that the [charged] murders
were committed for the benefit of the gang.” (Id. at pp. 489–490.)
In this case, about a month before the murder of Jonathan H.,
Pedraza had displayed an “F” hand-sign to an undercover officer driving an
unmarked car in FTT gang territory in Fullerton. Less than a week before
the shooting, Pedraza told Cindy H. that he went by “Low,” which was his
gang moniker, as he explained to the undercover officer after his arrest.
Pedraza also told the officer that he had been jumped into the gang in 2015.
On the day of the shooting, Pedraza was hanging out with at
least four other FTT gang members at Truslow Street, a location where FTT
was known to congregate. Pedraza was part of the group that went “cruising”
to rival neighborhoods to try to catch someone “slipping.” The group went to
two different rival territories before going to Underhill, a rival gang in
Anaheim with which FTT had particularly bad blood due to Underhill having
previously killed one or two FTT members. Pedraza was aware of this
because he told the undercover officer about it. There, the group “hit up” a
group of actual or perceived Underhill gang members. Pedraza then returned
and committed a murder of a perceived or actual rival gang member.
In sum, just as in Carr, and based on the totality of the evidence
and all of the surrounding circumstances, there was “more than sufficient for
the jury to infer [Pedraza] knew about the criminal activities of the [FTT]
gang and that the [charged murder of Jonathan H. was] committed for the
benefit of the gang.” (Carr, supra, 190 Cal.App.4th at pp. 489–490.)
23
c. There is Substantial Evidence to Show a Nexus Between the
Predicate Offenses and Organizational Structure of the Gang.
In 1988, the Legislature enacted section 186.22 as part of the
California Street Terrorism Enforcement and Prevention Act (§ 186.20 et seq;
the STEP Act). (Clark, supra, 15 Cal.5th at pp. 751–753.) Section 186.22
(b)(1) provided for sentence enhancements when a person “is convicted of a
felony committed for the benefit of, at the direction of, or in association with
any criminal street gang, with the specific intent to promote, further, or
assist in criminal conduct by gang members.”
Effective January 1, 2022, the Legislature substantially amended
the STEP Act by enacting Assembly Bill 333, also known as the STEP
Forward Act of 2021. (Clark, supra, 15 Cal.5th at p. 752.) Assembly Bill 333
generally provided for bifurcated trials on gang allegations by adding a new
provision to the Penal Code. (See § 1109.)
The Legislature also made substantive changes to the section
186.22 gang provisions: “‘First, it narrowed the definition of a “criminal street
gang” to require that any gang be an “ongoing, organized association or group
of three or more persons.” [Citation.] Second, whereas section 186.22, former
subdivision (f) required only that a gang’s members “individually or
collectively engage in” a pattern of criminal activity in order to constitute a
“criminal street gang,” Assembly Bill 333 requires that any such pattern have
been “collectively engage[d] in” by members of the gang. [Citation.] Third,
Assembly Bill 333 also narrowed the definition of a “pattern of criminal
activity” by requiring that (1) the last offense used to show a pattern of
criminal gang activity occurred within three years of the date that the
currently charged offense is alleged to have been committed; (2) the offenses
were committed by two or more gang “members,” as opposed to just “persons”;
24
(3) the offenses commonly benefitted a criminal street gang; and (4) the
offenses establishing a pattern of gang activity must be ones other than the
currently charged offense.’” (Clark, supra, 15 Cal.5th at p. 752, italics added.)
The Supreme Court in Clark stated: “While the legislative history
may not clearly indicate the intended meaning of the Legislature’s switch to a
requirement of collective engagement in a pattern of criminal gang activity, it
is clear what the Legislature meant this change to accomplish. The change
was made in service of the Legislature’s broader goal of differentiating
between the threat posed by organized groups collectively engaged in
criminal activity, versus the threat posed by individual, loosely connected
persons who happen to commit crimes. That differentiation, we now conclude,
requires a showing that links the two predicate offenses to the gang as an
organized, collective enterprise.” (Clark, supra, 15 Cal.5th at p. 761.) The
Court held that “[t]he organizational nexus may be shown by evidence
linking the predicate offenses to the gang’s organizational structure, meaning
its . . . primary activities . . . .” (Id. at p. 762,)
In Clark, the defendant was convicted of rape, forced oral
copulation, false imprisonment, first degree burglary, and robbery. (Clark,
supra, 15 Cal.5th at p. 750.) The jury also found true gang enhancements as
to the false imprisonment, burglary, and robbery charges. (Ibid.) The
prosecution’s evidence of the gang’s predicate offenses included certified prior
convictions of defendant and another gang member for robbery, residential
burglary, and burglary. (Ibid.) An expert testified that these convictions
“showed a pattern of criminal activity by” defendant’s gang; however, “[t]he
testimony did not address whether the predicate offenses . . . , benefited the
gang, or how they were otherwise related to the gang.” (Ibid.)
The Supreme Court in Clark reversed the judgment as to the
25
defendant’s gang enhancements, explaining: “Although the expert testifying
for the prosecution discussed the benefits that might flow to the gang from
the charged crimes, the prosecution did not present evidence to establish
whether the predicate offenses were committed to benefit the gang, or
whether there existed an organizational nexus between those offenses and
the gang as a collective enterprise.” (Id. at p. 764.)
Here, the breadth of evidence presented by the People concerning
the FTT gang’s predicate offenses is markedly different from the lack of
evidence in Clark. At the instant jury trial, a gang expert testified that the
FTT gang’s primary activities included drug sales, felony assaults, and
unlawful possession of guns. The record contains evidence that active FTT
gang members committed seven of those specific predicate crimes in the two
years prior to the murder of Jonathan H. In addition, unlike the circumstance
in Clark, each of the FTT gang members involved in the predicated crimes
pleaded guilty to committing those crimes, and they admitted they committed
those crimes for the benefit of the FTT gang.
In short, unlike the situation in Clark, in this case there was
sufficient evidence to show an “organizational nexus . . . linking the predicate
offenses to the gang’s organizational structure, meaning its . . . primary
activities.” (See Clark, supra, 15 Cal.5th at p. 762.)
B. Instructional Error Claim
Pedraza claims the trial court erred by failing to instruct the jury
on the organizational nexus requirement between the predicate offenses and
the FTT gang. The Attorney General concedes the error, but argues that it
was harmless. We disagree.
We review instructional error claims under an independent or de
26
novo standard of review. (People v. Posey (2004) 32 Cal.4th 193, 218.)
A trial court has a sua sponte duty to instruct on the essential
elements of a special circumstance allegation or a sentence enhancement.
(People v. Mil (2012) 53 Cal.4th 400, 409.) Failure to properly instruct on an
essential element is constitutional error, warranting reversal unless the error
was harmless beyond a reasonable doubt. (Id. at pp. 409–410; Chapman,
supra, 386 U.S. at p. 24; People v. Atkins (2019) 31 Cal.App.5th 963, 981
[“‘the presumption is that we must reverse, unless we find the error harmless
beyond a reasonable doubt’”], italics added.)
“Under the Chapman harmless error standard, the burden is on
the People, not the defendant, to demonstrate that the violation of the
defendant’s federal constitutional right was harmless beyond a reasonable
doubt.” (People v. Cutting (2019) 42 Cal.App.5th 344, 349.)
“‘The beyond-a-reasonable-doubt standard . . . “requir[es] the
beneficiary of a [federal] constitutional error [(the People)] to prove beyond a
reasonable doubt that the error complained of did not contribute to the
verdict obtained.” [Citation.] “To say that an error did not contribute to the
ensuing verdict is . . . to find that error unimportant in relation to everything
else the jury considered on the issue in question, as revealed in the record.’””
(People v. Pearson (2013) 56 Cal.4th 393, 463, italics added.)
The California Supreme Court issued its decision in Clark on
February 22, 2024. (Clark, supra, 15 Cal.5th at p. 743.) The jury reached its
verdicts in the instant case on August 30, 2024.
The CALCRIM jury instructions defining the elements of the
gang enhancement alleged under section 186.22 (b)(1), and the gang-murder
special circumstance alleged under section 190.2 (a)(22), were amended in
September 2024, based on Clark, to add the following two sentences: “As used
27
here, members collectively engage in or have engaged in a pattern of criminal
gang activity when the crimes that make up the pattern of criminal gang
activity can be connected to the gang as a whole. Collective engagement
requires a connection between the crimes and the gang’s organizational
structure or manner of governance, its primary activities, or its common goals
and principles.” (See CALCRIM Nos. 1401, 736.)
Here, the trial court used the older versions of CALCRIM No.
1401 (the gang enhancement), and CALCRIM No. 736 (the gang-murder
special circumstance), and therefore did not instruct the jury on the required
organizational nexus between the predicate crimes and the FTT gang as
interpreted and stated in Clark. This was plainly an instructional error
committed by the trial court as the Attorney General concedes.
Although we have found that there was sufficient evidence to
establish the nexus between the FTT gang as an organization and the
predicate offenses—a very low threshold—that is not the same as finding
that failure to instruct on this element was harmless beyond a reasonable
doubt. (See People v. Lamb, supra, 16 Cal.5th at p. 455 [“Were this a question
of sufficiency of the evidence, the outcome might be different”].)
In order to find the trial court’s instructional error harmless
beyond a reasonable doubt, we must conclude that there is no reasonable
possibility that the jury could have rendered different verdicts on the gang
allegation and the gang-murder special circumstance absent the error.
In this case, the sole purpose of the jury trial was for the jurors to
determine the truth of the two gang enhancements (rather than Pedraza’s
guilt or innocence as to the murder charge). Because of the narrow focus of
the trial, and because of the recent changes to the law, the importance of the
People establishing the validity of the FTT gang’s predicate offenses played
28
an outsized role in these proceedings. We are not certain what 12 jurors
might have done had they been properly instructed.
In sum, due to the anomalies in this case, we must reverse the
jury’s true findings on the gang enhancements because we cannot find that
the instructional error was “‘“unimportant in relation to everything else the
jury considered on the issue in question, as revealed in the record.’”” (People
v. Pearson, supra, 56 Cal.4th at p. 463; People v. Atkins, supra, 31
Cal.App.5th at p. 981 [“‘the presumption is that we must reverse, unless we
find the error harmless beyond a reasonable doubt’”], italics added.)
III.
DISPOSITION
The jury’s true findings on the gang allegation and gang-murder
special circumstance are reversed. On remand, the People may retry Pedraza
on these sentencing enhancements at their election.
MOORE, J.
WE CONCUR:
MOTOIKE, P. J.
GOODING, J.
29