Filed 8/31/17
            CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                SECOND APPELLATE DISTRICT

                        DIVISION THREE



THE PEOPLE,                                  B261606

       Plaintiff and Respondent,             (Los Angeles County
                                             Super. Ct. No. YA053907)
       v.

CARLOS MIGUEL IRAHETA,

       Defendant and Appellant.



     APPEAL from a judgment of the Superior Court of
Los Angeles County, Steven R. Van Sicklen, Judge. Reversed.
     Marilee Marshall, under appointment by the Court of
Appeal, for Defendant and Appellant.




*     Pursuant to California Rules of Court, rules 8.1100 and
8.1110, this opinion is certified for publication with the exception
of parts 2 and 3 of the Discussion.
      Kamala D. Harris, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Paul M. Roadarmel, Jr., and Stacy S.
Schwartz, Deputy Attorneys General, for Plaintiff and
Respondent.
                    _________________________
      Defendant and appellant Carlos Miguel Iraheta was
convicted of shooting at an occupied motor vehicle (Pen. Code,
§ 246)1 with a section 12022.53, subdivision (d) firearm
enhancement, and sentenced to 30 years to life in prison. Iraheta
contends that in light of our Supreme Court’s decision in People v.
Sanchez (2016) 63 Cal.4th 665 (Sanchez), admission of gang
expert testimony, as well as evidence related to “field
identification” cards, was prejudicial error. We agree, and
therefore reverse.
      In the unpublished portion of the opinion, we reject
Iraheta’s arguments that addition of the section 246 charge after
his successful appeal of his earlier conviction constituted
vindictive prosecution and the section 246 conviction was barred
by the statute of limitations.
         FACTUAL AND PROCEDURAL BACKGROUND
      1. Facts
      a. People’s evidence
      (i) The December 2002 shooting of Michael Orozco
      On December 20, 2002, at approximately 5:30 p.m., Noe
Martinez drove his white Honda Civic to the Jr. Market in
Inglewood. Inside the market, Jose Tovar, whom Martinez did


1    All further undesignated statutory references are to the
Penal Code.



                                2
not know, stared at him, giving him a bad feeling. When
Martinez left the market, Tovar walked toward Martinez’s
Honda. Tovar was a member of the Inglewood 13 criminal street
gang.
      Martinez then drove to the home of his friend, 17-year-old
Michael Orozco, where the two socialized and drank beer and
tequila. At approximately 8:30 that evening Orozco and Martinez
headed for another friend’s home. Because Martinez was feeling
“buzzed,” Orozco drove Martinez’s Honda. Their route took them
past the Jr. Market.
      Meanwhile, Iraheta, his pregnant girlfriend Melody Maciel,
his younger brother Richard Iraheta,2 and his stepbrother Alexis
Moreno planned to go to the movies. Iraheta drove the group in
his Camaro. En route, they stopped at the Jr. Market, where
Iraheta saw his friend Tovar. While they were talking,
Martinez’s car passed by the market, and Tovar pointed at it.
       Martinez saw Tovar’s gesture and told Orozco to “step on
it.” Iraheta followed them in his Camaro. Orozco drove to 65th
Street and, at Martinez’s direction, stopped the car. Martinez
exited the Honda, intending to talk to the people in the Camaro.
He was wearing a red hat and a dark red jacket or shirt. Iraheta,
driving the Camaro, pulled up slowly. Martinez lifted his hands
up and said, “ ‘what’s going on?’ ” As the Camaro passed the
Honda, Iraheta fired a single gunshot and sped off. The shot
shattered the Honda’s driver’s side window and hit Orozco in the
neck, fatally wounding him.


2     For ease of reference, and with no disrespect, we
hereinafter sometimes refer to Richard Iraheta and Melody
Maciel by their first names.



                                3
       (ii) The investigation
       Officers stopped the Camaro shortly after the shooting. An
officer found a loaded gun under the front passenger seat. One
round was expended. Forensic testing revealed that the bullet
that killed Orozco had been fired from the gun. At a field showup
conducted shortly after the shooting, Martinez identified the
Camaro and Iraheta. Officers did not find a gun in Martinez’s
Honda.
       (iii) Statements and testimony by the other occupants of the
Camaro
       Moreno and Melody testified that as the Honda passed the
Jr. Market, it slowed and then sped off. En route to Melody’s
house, Iraheta’s group came upon the Honda stopped in the
middle of the road, partially blocking their path. Melody asked
Orozco to move the car. Martinez approached the back of the
Camaro. Both Melody and Moreno heard Richard say, “ ‘he’s got
a gun.’ ” Iraheta pulled a gun from under his seat, fired a single
shot at the Honda, and drove off. A white SUV or truck with its
high beams on briefly chased the Camaro. Melody asked Iraheta,
“ ‘What were you thinking? Why did you do it?’ ” He replied that
“he was sorry; that he didn’t want to put us in this situation but
he did it for our own safety.” Iraheta handed the gun to Melody
and told her to put it under her seat. In a recorded police
interview, Moreno stated that Iraheta had followed the Honda
after leaving the market. He explained at trial that he did not
mean Iraheta intentionally followed the Honda, but that Iraheta
simply travelled in the same direction.
       (iv) Gang evidence
       A gang expert testified regarding the characteristics and
activities of the Inglewood 13 gang. He opined that Iraheta was



                                 4
an Inglewood 13 gang member, based on his “West L.A.” tattoo,
attire, and association with other gang members. When given a
hypothetical based on the facts of the case, the expert opined that
the motive for the shooting was gang-related. Other officers
testified to contacts with and preparation of field identification
(FI) cards regarding Iraheta and other persons they believed to
be gang members.3
      b. Defense evidence
      Iraheta testified in his own defense. At the time of the
shooting, he was 19 years old, had no criminal record, was in the
military reserves, and was not a gang member. He and Melody
were planning to marry. He had just been hired by Bank of
America and was enrolled to start classes at ITT Tech. He had a
“West L.A.” tattoo, but it was not a gang tattoo. He had the gun
for protection because he had been beaten up near his house by
gang members approximately six months before the shooting. He
had been walking home from a sandwich shop when gang
members confronted him, and they attacked when he stated he
was not a gang member.
      On the night of the shooting, Iraheta, Melody, and his
brothers were planning to go to the movies at Universal City
Walk. He drove by the Jr. Market and his friend Tovar flagged
him down. While he and Tovar were talking, Martinez’s Honda
passed by. Tovar warned Iraheta that the Honda’s occupants had
been “cruising around and looking for trouble” and had “ ‘mad-
dogg[ed]’ ” him earlier that day. Iraheta left the Jr. Market a few
minutes later. He did not intentionally follow the Honda, but his


3     We discuss this evidence, and Iraheta’s responsive
evidence, in more detail where relevant, post.



                                 5
route took him to 65th Street. The Honda was stopped in the
street, blocking it. Martinez was standing outside the car.
Iraheta signaled to Martinez to move the car. Martinez then put
his hands up as if to say “ ‘What’s up?’ ” Eventually, Orozco
moved the Honda enough that Iraheta attempted to squeeze by.
Martinez approached the back of the Camaro. When the Camaro
was approximately parallel to the Honda, Richard said, “ ‘keep
going. He gots a gun’ ” or similar words. Iraheta saw Orozco
looking at him and saying something. Orozco had a small pistol
in his hand and was tapping it on the Honda’s window. Iraheta
grabbed his gun from under the seat and fired one round while
simultaneously hitting the gas pedal. He believed Orozco was
going to fire first. He was afraid Melody, who was carrying his
baby, was going to be shot as she was closest to the Honda.
When asked why he did not simply speed up and drive away, he
explained: “My foot was halfway down on the [brake] pedal. And
it just – it just happened quickly. I did speed off at the same time
as I fired. And even if I would have hit the gas, [Martinez] was
behind my car, and they would have just shot into my car, and
Melody is right next to that other guy so the threat was there.”
On cross-examination, Iraheta admitted he had previously
testified that he was unsure whether Orozco had a gun or a
cellular telephone in his hand.
       Tovar testified that he saw the Honda slow as it passed the
Jr. Market. He believed one of the men in the Honda was a gang
member because he was wearing red, a gang color. As he was
talking to Iraheta, the Honda passed by again. Tovar told
Iraheta to be careful because the men in the Honda “ ‘might be
guys looking for trouble’ ” or “they don’t look like they’re from
here.” Tovar admitted he had been an Inglewood 13 gang



                                 6
member from 1996 to 1999. He admitted telling an officer in
2011 that he was an Inglewood 13 member, but he had not in fact
been affiliated since 2000. Iraheta was not a gang member.
       Among other things, the defense introduced the testimony
of two witnesses who had attended basic training with Iraheta,
and did not know him to be a gang member; expert testimony
regarding the “fight or flight” syndrome; expert testimony
regarding the Culver City Boys gang, whose gang color was red;
and a gun expert’s testimony that an object shown in a
photograph of the Honda’s interior, but not discovered by police,
was a gun.
       2. Procedure
       In 2003, after an earlier trial, a jury convicted Iraheta of
second degree murder with a firearm enhancement. We affirmed
the judgment in an unpublished opinion. (People v. Iraheta
(Apr. 30, 2008, B173223 (Iraheta I).) Thereafter our Supreme
Court granted review and, after issuance of its opinion in People
v. Chun (2009) 45 Cal.4th 1172, transferred the matter back to us
for reconsideration in light of that decision. Overruling prior
precedent, Chun held that shooting at an occupied motor vehicle
(§ 246) could not serve as the basis for a felony-murder
instruction. We concluded that the trial court’s contrary
instruction was prejudicial error under Chun, and reversed in an
unpublished opinion. (People v. Iraheta (Nov. 20, 2009, B173223)
(Iraheta II).)4



4     We take judicial notice of our unpublished opinions filed in
this matter on April 30, 2008 and November 20, 2009, of our
partially published opinion in People v. Iraheta (2014)
227 Cal.App.4th 611 (Iraheta III), and of the record in the 2013


                                 7
       The People then filed an amended information charging
Iraheta with murder (§ 187, subd. (a)) and adding a second count
of shooting at an occupied motor vehicle (§ 246), with section
12022.53 firearm allegations. Upon the retrial that is the subject
of the instant appeal, the jury convicted Iraheta of shooting at an
occupied motor vehicle in violation of section 246, and found the
firearm allegations true. It deadlocked on the second degree
murder charge, and the trial court declared a mistrial on that
count.
       Iraheta then filed a motion for a new trial on a variety of
grounds. The trial court granted the new trial motion on the
ground that it had erred in failing to instruct the jury on
imperfect self-defense in regard to the section 246 count. The
People appealed that ruling. In a partially published opinion, we
concluded the trial court had not erred by failing to instruct the
jury on imperfect self-defense on count 2. (Iraheta III, supra, 227
Cal.App.4th at p. 613.) In the unpublished portion of the opinion,
we held that the other grounds raised in the new trial motion did
not support the grant of a new trial. Accordingly, we reversed the
trial court’s order and remanded for further proceedings.
       On remand, the trial court imposed the midterm of five
years on the shooting at an occupied motor vehicle charge, and 25
years to life on the section 12022.53, subdivision (d)
enhancement. It ordered victim restitution of $6,080.50 and
imposed a $200 restitution fine, a suspended parole revocation
fine in the same amount, a court operations fee, and a criminal
conviction fee. On the People’s motion, the court dismissed the


trial, Los Angeles Superior Court case no. YA053907. (Evid.
Code, §§ 452, subd. (d), 459.)



                                8
murder charge upon which the jury had deadlocked pursuant to
section 1385.
       Iraheta appeals.
                            DISCUSSION
       1. Admission of gang evidence
       a. Additional facts
       The People’s theory was that Iraheta was an Inglewood 13
gang member who killed Orozco because he believed Orozco and
Martinez to be rival gang members in Inglewood 13 territory. As
set forth below, to establish Iraheta’s gang membership, the
People offered evidence that Iraheta was found on two occasions
in the company of Inglewood 13 gang members, and his cellular
telephone contained the phone numbers and contact information
for numerous gang members. The People also offered expert
testimony on the characteristics and culture of the Inglewood 13
criminal street gang.
       (i) Officer Barragan’s expert testimony regarding the
Inglewood 13 gang
       Inglewood Police Officer Jose Barragan, who had extensive
training and experience regarding gangs, testified as an expert
on the Inglewood 13 gang. In 2002, the gang had approximately
500 members. It was associated with the Mexican Mafia. A
person joins a gang in one of three ways: he is either “jumped
in,” that is, beaten up; commits crimes for the gang; or has a
relative who is a high ranking gang member. Gang members
commonly use monikers. Inglewood 13 gang members often wear
“I” belt buckles similar or identical to one Iraheta was observed
wearing on the night of the shooting and during an earlier
contact with police. They typically have Inglewood 13 tattoos,
and sometimes have “West L.A.” tattoos like Iraheta’s.



                                9
      Gang members are required to commit violent crimes such
as shootings, assaults, grand thefts, carjackings, homicides, and
stabbings. Committing such crimes is known as “ ‘putting in the
work.’ ” Gang members need guns to commit crimes and retaliate
against other gangs. Reputation is enormously important. The
gang subculture revolves around respect and status, which are
gained through fear, intimidation, and violence directed at the
community and rival gang members. If a rival enters another
gang’s territory, it is a sign of disrespect. If a gang member sees
someone believed to be a rival in his own territory and does
nothing, he will be considered weak and inferior. The Inglewood
13 gang claimed the entire city of Inglewood as its territory, but
gang members were most commonly found in an area bordered by
Century, Aviation, and Prairie Boulevards, and 64th Street.
Centinela Park was an Inglewood 13 gang “hangout.” The Jr.
Market was in the center of the gang’s claimed territory. The
Inglewood 13 gang’s rivals included the Culver City Boys gang,
whose gang color was red. Martinez was not a gang member.
      (ii) The September 2, 2002 Buick incident
      In response to reports of a robbery and a man with a gun,
on September 2, 2002, City of Inglewood Police Officer John Baca
and Lieutenant Neal Cochran responded to East Brett Street in
Inglewood. They observed three male Hispanics – Ramon
Rodriguez, Carlos Carcamo, and Carlos Ordonaz –walking
westbound on the sidewalk. One threw an object, later
determined to be a gun, under a nearby parked Mazda, and fled;
he was captured shortly thereafter. The other two men remained
on the scene. Baca and Cochran noticed Iraheta, Tovar, and
Christian Muniz seated in a brown Buick parked near the Mazda
and contacted them because of concern the Buick might be a



                                10
“layoff car” used in robberies. Rodriguez, Carcamo, and Ordonaz
were arrested. The Buick’s occupants were not arrested because
they had done nothing wrong.
       Cochran completed FI cards on Iraheta and Tovar.
Cochran testified that during the contact, Tovar admitted being
an Inglewood 13 member with the moniker “Little Drowsy.”
Cochran wrote “Inglewood 13” on Iraheta’s FI card because
Iraheta was with Tovar. Cochran also observed that Iraheta had
an “LA” tattoo on his left upper arm, which signified a southern
California gang under control of the Mexican Mafia. Cochran
noted Iraheta was frequenting a gang area and was wearing gang
attire, but did not describe at trial the attire he deemed gang-
related. Iraheta did not admit gang membership or give a
moniker. Muniz likewise did not admit he was a gang member.
Without objection, Baca testified: “after we conducted our
investigation, we found out that the subjects that were involved
in this were Inglewood 13 gang members,” as were the occupants
of the Buick.
       Iraheta testified to an innocent explanation for his presence
with Tovar and Muniz. He was a passenger in the car and was
waiting for his friend Ivan, who was inside a nearby house
settling an argument with his (Ivan’s) girlfriend. Ivan was not a
gang member. Neither he, Tovar, nor Muniz was involved in a
robbery. When an officer repeatedly asked if Iraheta was a gang
member, he denied it.
       (iii) The December 2, 2002 Centinela Park incident
       Sergeant Brett Birkbeck testified that on December 2,
2002, he and his partner, Officer Robert Martinez, went to
Centinela Park to investigate a report of a man with a gun.
When they arrived, they observed a group of approximately



                                11
10 male Hispanics, including Iraheta, fighting. A gun was on the
ground 10 to 15 feet away from the melee. Some of the men ran
off, but six, including Iraheta, remained. Officer Martinez (who
did not testify at trial) prepared an FI card on Iraheta. The FI
card indicated Iraheta was an Inglewood 13 gang member based
on four criteria: “[g]ang tattoos, affiliates with gang, frequents a
gang area, and gang dress.” During the encounter, Birkbeck
personally observed Iraheta’s “West L.A.” tattoo and his “I” belt
buckle. Birkbeck testified the persons with whom Iraheta was
found were Romeo Vela, Joel Fraticelli, Luis Maciel, Carlos
Pineda, and Julio Parra.
       Officer Barragan reviewed the police report regarding the
Centinela Park incident, reviewed FI cards generated during the
investigation, and talked to the officers who were there.
Centinela Park had long been an Inglewood 13 hangout, with
gang members and gang graffiti present; it was “known for
getting jumped in and hanging out.” Over an objection that the
testimony was hearsay and violated the confrontation clause,
Barragan testified that he had spoken to gang members who had
been “jumped in” at the park. Over the same objection, Barragan
testified that, based on his review of the FI cards, four of the five
males detained with Iraheta in the park were self-admitted
Inglewood 13 gang members. The trial court ruled that
Barragan’s review of FI cards was the foundation for his expert
testimony. No testimony from the officer or officers who prepared
FI cards on Vela, Fraticelli, Maciel, Pineda, or Parra was offered.
       Iraheta testified that he was at the park to pick up
Melody’s younger brother Luis, at the request of Melody’s mother.
Luis had had an ongoing problem with another youth, Romeo.
Iraheta searched the park until he found Luis, grabbed him, and



                                 12
was about to leave when a patrol car pulled up. He did not flee
and ensured Luis did not either. He did not participate in the
fighting and was not engaged in gang activities.
       Yolanda Hernandez (Melody and Luis’s mother), testified
that after a neighbor notified her that Luis was being beaten up
at Centinela Park, she asked Iraheta to go retrieve him.
       (iv) Iraheta’s phone contacts
       Officer Barragan reviewed “screen shots” of the contacts
listed in Iraheta’s cellular telephone at the time Iraheta was
arrested. Forty-four of the 98 contacts appeared to Barragan to
be monikers, although some contacts were duplicates. Barragan
believed some of the listed contacts were monikers because gang
members “call[] themselves these types of names.” Barragan
cross-referenced the monikers and telephone numbers in the
phone to those listed on FI cards prepared by other officers at
various times, as detailed below. Based on this comparison,
Barragan confirmed that 12 of the contacts in Iraheta’s phone
were of known Inglewood 13 gang members, including Tovar,
Raul Guillen, Muniz, Rodriguez, Giovanni Arias, Javier Lara,
Martin Fuentes, Omar Gomez, and Christian Cobian.
       Detective Daniel Milchovich testified that he completed an
FI card on Tovar on January 15, 2002, under circumstances not
disclosed in the record. He concluded Tovar was an Inglewood 13
gang member because of Tovar’s presence in a gang area, his “I”
belt buckle, and his self-admission. Tovar stated his moniker
was “Lil Drowsy.”
       Milchovich prepared an FI card on Guillen on August 2,
2002, under circumstances not disclosed by the record. Iraheta’s
hearsay objection to the FI card was overruled. Guillen had gang
tattoos, affiliated with the gang, had self-admitted Inglewood 13



                               13
gang membership, gave a moniker of “Lil Crazy,” and provided
his telephone number. Milchovich observed an “ING” tattoo on
Guillen’s left arm. Guillen was with Jesus Silva, whom
Milchovich identified as an Inglewood 13 gang member. No
evidence was adduced as to the basis for Milchovich’s knowledge
about Silva’s gang membership.
       Officer Kerry Tripp testified that he had prepared FI cards
on seven Inglewood 13 gang members: Muniz, Rodriguez, Arias,
Lara, Fuentes, Gomez, and Christian Cobian. He had known
each of these men during the mid 1990s and/or 2000s and knew
Muniz, Rodriguez, Arias, Lara, Fuentes, and Gomez to be
Inglewood 13 gang members. He had observed Rodriguez’s and
Arias’s Inglewood 13-related tattoos. The FI cards stated Muniz
and Fuentes also had gang tattoos, but Tripp did not state he had
observed them. Whether or not indicated on the FI cards, Tripp
knew Muniz’s moniker was “Triste”; Rodriguez’s was “Gumby” or
“Daffy”; Arias’s was “Magoo”; Lara’s was “Boogie”; and Gomez’s
was “Sharky.” Tripp indicated on the FI cards that Muniz, Arias,
and Fuentes had frequented gang areas, and Muniz, Arias, Lara,
Gomez, and Cobian sported gang attire, but did not testify to his
observations of these attributes. The FI cards indicated Muniz,
Arias, and Fuentes affiliated with other gang members. When
Tripp prepared the FI cards, he observed Muniz with Juan and
Christian Cobian; Rodriguez was with Ordonez and Carcamo;
Arias was with Edward Morales and Guillen; Fuentes was with
Alan Archaga, Anthony Cabrera, and Carcamo, three “self-
admitted” Inglewood 13 gang members; Cobian was on one
occasion with his brother Juan, a known Inglewood 13 gang
member; and Lara was “sometimes” with other persons Tripp
knew to be Inglewood 13 gang members. The phone numbers on



                               14
the FI cards for all but Rodriguez were provided by the subjects
at the time Tripp contacted them.5 Tripp circled “self-admitted”
as an indicator of gang membership on all FI cards except those
for Lara and Cobian. It appears, but is not entirely clear, that
the men admitted their gang membership to Tripp during the
contacts that gave rise to preparation of the FI cards.
       The FI card on Arias was completed at the Inglewood jail,
sometime after Arias was arrested on unspecified charges. The
FI cards for Lara, Cobian, and Fuentes indicated they had been
“arrested with” other gang members. Other than for Arias, Tripp
did not describe the circumstances under which he encountered
the men.
       (v) Officer Barragan’s opinion that Iraheta was a gang
member and the motive for the crime was gang-related
       Over defense counsel’s objection that a question to an
expert should be in the form of a hypothetical, Barragan opined
that Iraheta was an Inglewood 13 gang member at the time of the
shooting. The basis of his opinion was as follows: “I reviewed the
facts of this case, reports, obviously F.I. cards, photographs of Mr.
Iraheta, the ‘West L.A.’ tattoo . . . , the ‘I’ on his belt buckle. [¶]
The reports, I reviewed reports where gang members were
arrested from Inglewood 13, and Mr. Iraheta was F.I.’d or
contacted at that location. I’ve also reviewed a report where
there was a fight or a man-with-a-gun call at Centinela Park
where individuals were detained and admitted to being
from . . . the Inglewood 13 gang, along with Mr. Iraheta was in
their presence. [¶] His phone, I reviewed records of his phone


5     Tripp was not asked where he obtained Rodriguez’s
telephone information.



                                  15
and contacts which had monikers. I cross-referenced those phone
numbers in his phone with matching monikers of individuals who
were from Inglewood 13 at the time of the occurrence or right
around that time. [¶] The crime itself, I reviewed the facts
again . . . of this occurrence, the reports, spoke to the
investigating officers, gang detectives who were in the gang unit
at the time and the supervisor. [¶] So based on the totality of
circumstances, all of that, I believe that Carlos Iraheta was an
Inglewood 13 gang member.”
       When given a hypothetical based upon the evidence –
including the assumption that Iraheta was an Inglewood 13 gang
member – Barragan opined that the motive for the crime was a
“gang motive.”
       b. Iraheta’s contention that admission of gang evidence was
irrelevant and unduly prejudicial
       Iraheta makes two arguments regarding admission of the
gang evidence. First, he contends that the gang evidence,
particularly evidence of the Centinela Park and Buick incidents,
should have been excluded as irrelevant and more prejudicial
than probative under Evidence Code section 352, and its
admission violated his due process rights. He complains that no
gang enhancement was charged in the case; evidence of the Buick
incident insinuated he was somehow involved in a gang-related
crime; evidence of the Centinela Park incident suggested he was
involved in a gang-related fight; and the evidence served to
convince jurors he was a gang member. But, this was precisely
the purpose for which the evidence was offered: to prove Iraheta
was an Inglewood 13 gang member. Given that the People’s
theory was that the crime was motivated by gang hostilities, this
evidence was highly relevant and not unduly prejudicial.



                               16
(See generally People v. McKinnon (2011) 52 Cal.4th 610, 655.)
We explained as much in the unpublished portion of Iraheta III.
Accordingly, this aspect of Iraheta’s argument is barred by the
law of the case doctrine. “Under the doctrine of the law of the
case, a principle or rule that a reviewing court states in an
opinion and that is necessary to the reviewing court’s decision
must be applied throughout all later proceedings in the same
case, both in the trial court and on a later appeal.” (People v.
Jurado (2006) 38 Cal.4th 72, 94; People v. Barragan (2004)
32 Cal.4th 236, 246; People v. Stanley (1995) 10 Cal.4th 764, 786.)
“ ‘Thus the law-of-the-case doctrine “prevents the parties from
seeking appellate reconsideration of an already decided issue in
the same case absent some significant change in
circumstances.” ’ ” (People v. Sons (2008) 164 Cal.App.4th 90, 99;
People v. Alexander (2010) 49 Cal.4th 846, 870.)
       c. Confrontation clause claim
       Iraheta’s contention that the gang expert and other officers
improperly testified to testimonial hearsay in violation of state
law hearsay rules or his federal confrontation clause rights is not
precluded by the law of the case doctrine, and has merit.
       The Sixth Amendment provides that an accused has the
right to be confronted with the witnesses against him. (U.S.
Const., 6th Amend.; Sanchez, supra, 63 Cal.4th at p. 679.) In the
seminal case of Crawford v. Washington (2004) 541 U.S. 36, the
high court overruled its prior precedent and held that the Sixth
Amendment generally bars admission at trial of a testimonial
out-of-court statement offered for its truth against a criminal
defendant, unless the maker of the statement is unavailable to
testify and the defendant had a prior opportunity for cross-
examination. (Id. at p. 68; Davis v. Washington (2006) 547 U.S.



                                17
813, 821; Sanchez, at p. 680.) Although Crawford set forth a new
standard for admissibility, the court declined to provide a
comprehensive definition of “testimonial.” (Crawford, at p. 68;
People v. Hill (2011) 191 Cal.App.4th 1104, 1134.)
       In the unpublished portion of Iraheta III, we observed that
it had long been the law in California that gang experts may rely
on reliable hearsay in forming their opinions, and could testify
regarding the basis for their opinions, even if the evidence would
otherwise be inadmissible. (Evid. Code, §§ 801, subd. (b), 802;
People v. Gardeley (1996) 14 Cal.4th 605, 617-618, disapproved by
Sanchez, supra, 63 Cal.4th at p. 686, fn. 13.) Accordingly,
California appellate courts after Crawford generally held that the
admission of testimonial out-of-court statements or other hearsay
evidence offered as the basis for an expert’s opinion did not
violate Crawford, because such statements were not offered for
their truth. We recognized, however, that analysis of the
plurality, concurring, and dissenting opinions in the United
States Supreme Court’s decision in Williams v. Illinois (2012)
567 U.S. 50 and the California Supreme Court’s decision in
People v. Dungo (2012) 55 Cal.4th 608 cast doubt on whether
these principles were still good law; we also observed that our
Supreme Court was considering in Sanchez whether a
defendant’s confrontation rights are violated by a gang expert’s
reliance on testimonial hearsay. We concluded that we did not
need to reach the question because most, if not all, of the hearsay
relied upon by the officers in this case was nontestimonial.
Sanchez, however, has clarified both the degree to which
Crawford limits an expert witness from relating case-specific
hearsay in explaining the basis for his opinion, as well as the
definition of “testimonial” in this context. Therefore, because of



                                18
this intervening change in law, the law of the case doctrine does
not apply and we must revisit this issue. (People v. Stanley,
supra, 10 Cal.4th at p. 787 [law of the case doctrine will not be
adhered to where the “controlling rules of law have been altered
or clarified by a decision intervening between the first and second
appellate determinations”].)
      (i) The Sanchez decision6
      In Sanchez, the defendant was charged with drug and
firearm offenses and active participation in the Delhi street gang,
along with a section 186.22 gang enhancement. At trial, a gang
expert relied upon a “STEP notice,”7 police documents, and an FI
card8 as the basis for his expert opinion. Those documents
indicated Sanchez associated with, and had been repeatedly
contacted by police while in the presence of, Delhi gang members.
(Sanchez, supra, 63 Cal.4th at pp. 671-673.) The expert had

6     Because the parties completed briefing before Sanchez was
decided, we requested additional briefing on Sanchez’s impact.
We have received and considered the parties’ letter briefs on the
question.
7      A STEP notice provides to the recipient information
regarding potential penalties for gang-related criminal activity.
The issuing officer also records the date, time, statements made
at the time of the interaction, and identifying information.
(Sanchez, supra, 63 Cal.4th at p. 672.)
8     Sanchez described FI cards thusly: “Officers also prepare
small report forms called field identification or ‘FI’ cards that
record an officer’s contact with an individual. The form contains
personal information, the date and time of contact, associates,
nicknames, etc.,” and may record statements made at the time of
the interaction. (Sanchez, supra, 63 Cal.4th at p. 672.)



                                19
never met Sanchez and had not been present when the STEP
notice was issued or during any of Sanchez’s other police
contacts. His knowledge was derived solely from the police
reports and FI card. Based on the information in the STEP
notice, the police documents, and the FI cards, and the
circumstances of the offense at issue, the expert opined that
Sanchez was a member of the Delhi gang and the charged crimes
benefitted the gang. (Id. at p. 673.)
       Sanchez held “the case-specific statements related by the
prosecution expert concerning defendant’s gang membership
constituted inadmissible hearsay under California law. They
were recited by the expert, who presented them as true
statements of fact, without the requisite independent proof.
Some of those hearsay statements were also testimonial and
therefore should have been excluded under Crawford. The error
was not harmless beyond a reasonable doubt.” (Sanchez, supra,
63 Cal.4th at pp. 670-671.) Accordingly, the court reversed the
true findings on the street gang enhancements. (Id. at p. 671.)
       Sanchez drew a distinction between an expert’s general
knowledge and “case-specific facts about which the expert has no
independent knowledge. Case-specific facts are those relating to
the particular events and participants alleged to have been
involved in the case being tried.” (Sanchez, supra, 63 Cal.4th at
p. 676.) At common law, the distinction between case-specific
and background facts had been honored by the use of
hypothetical questions, in which an examiner could ask an expert
to assume certain case-specific facts for which there was
independent competent evidence. (Id. at pp. 676-677.) However,
over time the distinction between background information and
case-specific hearsay had become blurred, leading to the rule that



                               20
an expert could explain the “matter” upon which he or she relied,
even if that matter was hearsay. (Id. at pp. 678-679.) California
law allowed such hearsay “basis” testimony if a limiting
instruction was given; in cases where an instruction was
inadequate, the evidence could be excluded under Evidence Code
section 352. (Sanchez, at p. 679.)
       Overruling prior precedent, Sanchez concluded “this
paradigm is no longer tenable because an expert’s testimony
regarding the basis for an opinion must be considered for its truth
by the jury.” (Sanchez, supra, 63 Cal.4th at p. 679.) “Once we
recognize that the jury must consider expert basis testimony for
its truth in order to evaluate the expert’s opinion, hearsay and
confrontation problems cannot be avoided by giving a limiting
instruction that such testimony should not be considered for its
truth. If an expert testifies to case-specific out-of-court statements
to explain the bases for his opinion, those statements are
necessarily considered by the jury for their truth, thus rendering
them hearsay. Like any other hearsay evidence, it must be
properly admitted through an applicable hearsay exception.
Alternatively, the evidence can be admitted through an
appropriate witness and the expert may assume its truth in a
properly worded hypothetical question in the traditional manner.”
(Id. at p. 684, italics added, fn. omitted.)
       Sanchez made clear that its holding did not do away with
all gang expert testimony. “Any expert may still rely on hearsay
in forming an opinion, and may tell the jury in general terms that
he did so,” that is, he or she may “relate generally” the “kind and
source of the ‘matter’ upon which his opinion rests.” (Sanchez,
supra, 63 Cal.4th at pp. 685-686.) “Gang experts, like all others,
can rely on background information accepted in their field of



                                 21
expertise under the traditional latitude given by the Evidence
Code. They can rely on information within their personal
knowledge, and they can give an opinion based on a hypothetical
including case-specific facts that are properly proven. They may
also rely on nontestimonial hearsay properly admitted under a
statutory hearsay exception.” (Id. at p. 685.) “What an expert
cannot do is relate as true case-specific facts asserted in hearsay
statements, unless they are independently proven by competent
evidence or are covered by a hearsay exception.” (Id. at p. 686.)
       Thus, in regard to case-specific hearsay, Sanchez
“jettisoned” the former “not-admitted-for-its-truth” rationale
underlying the admission of expert basis testimony, and
occasioned a “paradigm shift” in the law. (People v. Stamps
(2016) 3 Cal.App.5th 988, 994-995; People v. Ochoa (2017)
7 Cal.App.5th 575, 588.)
       Sanchez then turned to consideration of what constitutes
testimonial hearsay, a question not yet clearly defined by the
United States Supreme Court. (Sanchez, supra, 63 Cal.4th at
p. 687.) Prior testimony and police interrogations are clearly
testimonial. (Ibid.) Sanchez explained that beyond these clear
categories, the high court had articulated several formulations
for determining the testimonial nature of out-of-court statements.
Under the “primary purpose” test, “[t]estimonial statements are
those made primarily to memorialize facts relating to past
criminal activity, which could be used like trial testimony.
Nontestimonial statements are those whose primary purpose is to
deal with an ongoing emergency or some other purpose unrelated
to preserving facts for later use at trial.” (Sanchez, at p. 689.)
Whether the statements were spontaneous or given in a formal or
informal setting is also relevant. (Id. at pp. 693-694; see Ohio v.



                                22
Clark (2015) ___U.S. __ [135 S.Ct. 2173].) Sanchez concluded
that statements about a completed crime, made to an
investigating officer by a nontestifying witness (unless made in
the context of an ongoing emergency or for some primary purpose
other than preserving facts for use at trial), were generally
testimonial. (Sanchez, at p. 694.) Accordingly, the police reports
in Sanchez were testimonial. (Ibid.) Likewise, at least the
portion of a STEP notice retained by police is testimonial. That
portion records defendant’s biographical information, whom he
was with, and what statements he made; the officer’s purpose is
to establish facts to be later used against the defendant or his
companions at trial; and the notice is part of an official police
form containing the officer’s sworn attestation. (Sanchez, at
pp. 696-697.)
        The court concluded FI cards “may be testimonial.”
(Sanchez, supra, 63 Cal.4th at p. 697.) Sanchez explained that
“[i]f the card was produced in the course of an ongoing criminal
investigation, it would be more akin to a police report, rendering
it testimonial.” (Ibid.) However, because the parties had not
focused on the point below, and the origins of the FI cards at
issue there were confusing, Sanchez did not decide whether the
content was testimonial or not, given that the expert’s testimony
based on the police and STEP reports required reversal in any
event. (Id. at pp. 697-698.)
        (ii) Application here
        To determine whether Officer Barragan’s expert testimony,
or that of the other officers, was prejudicial error we use the “two-
step analysis” required by Sanchez. “The first step is a
traditional hearsay inquiry: Is the statement one made out of
court; is it offered to prove the truth of the facts it asserts; and



                                 23
does it fall under a hearsay exception? If a hearsay statement is
being offered by the prosecution in a criminal case, and the
Crawford limitations of unavailability, as well as cross-
examination or forfeiture, are not satisfied, a second analytical
step is required. Admission of such a statement violates the right
to confrontation if the statement is testimonial hearsay, as the
high court defines that term.” (Sanchez, supra, 63 Cal.4th at
p. 680.) An improperly admitted hearsay statement ordinarily
constitutes statutory error under the Evidence Code. (Id. at
p. 685.) Where the hearsay is testimonial and is admitted in
violation of Crawford, the error is one of federal constitutional
magnitude. (Ibid.)
       The gang evidence adduced here is comprised of a mixture
of admissible evidence, evidence that violated state hearsay rules,
and evidence that violated the federal confrontation clause.
       A. Officer Barragan’s general testimony about the gang
       Officer Barragan’s expert testimony regarding the general
attributes of the Inglewood 13 gang, such as the gang’s culture,
the importance placed on reputation and guns, the requirements
to join or leave the gang, the gang’s rivals and claimed turf, the
use of monikers and identifying symbols, and the like, were
permissible as expert background testimony. (Sanchez, supra,
63 Cal.4th at p. 685; People v. Meraz (2016) 6 Cal.App.5th 1162,
1175 [a gang’s operations, primary activities, and pattern of
criminal activities are background facts, not case-specific facts,
under Sanchez], review granted March 22, 2017, S239442, opn.
ordered to remain precedential; People v. Vega-Robles (2017)
9 Cal.App.5th 382, 411-412.) For example, Sanchez explained
that an expert’s opinion that a particular tattoo indicated gang
membership was background information. (Sanchez, at p. 677.)



                                24
There is no showing Barragan’s knowledge of these background
facts was based on testimonial hearsay. Instead, his testimony
on these points appears to have been based on his training,
education, and experience. (See People v. Meraz, at pp. 1175-
1176.)
      B. Testimony regarding Tovar
      Tovar’s statements to Lieutenant Cochran and Detective
Milchovich that he was an Inglewood 13 gang member and his
moniker was “Lil Drowsy” were hearsay; they were case-specific,
out-of-court statements offered for the truth of the matter
asserted. (See Sanchez, supra, 63 Cal.4th at p. 674.) However,
Tovar testified for the defense at trial. He confirmed that his
moniker was “Drowsy”; that his phone number was listed by his
moniker in Iraheta’s cellular telephone; and that he had been an
Inglewood 13 gang member from 1996 to 1999. Later in his
testimony he seemed to suggest he was a gang member at the
time of the shooting. Iraheta also testified that he knew Tovar
was an Inglewood 13 gang member. Thus, assuming arguendo
Cochran’s and Milchovich’s testimony about Tovar’s out-of-court
statements was not covered by an exception to the hearsay rule,
any state law hearsay error was harmless. (People v. Watson
(1956) 46 Cal.2d 818, 836; Evid. Code, § 353, subd. (b).) Because
Tovar testified, the federal confrontation clause was not violated.
“ ‘The Sixth Amendment confrontation clause does not bar
hearsay statements of a witness who testifies at trial and is
subject to cross-examination.’ ” (People v. Clark (2016) 63 Cal.4th
522, 601; People v. Stevens (2007) 41 Cal.4th 182, 199, citing
Crawford, supra, 541 U.S. at p. 60, fn. 9.)




                                25
       C. Officers’ personal observations
       Personal observations by any officer of Iraheta’s or other
subjects’ tattoos, attire, companions, and location were not
hearsay. Thus, Cochran’s and Birkbeck’s observations of
Iraheta’s tattoo, Birkbeck’s and Milchovich’s observations of
Iraheta’s or Tovar’s “I” belt buckles, and Milchovich’s or Tripp’s
observations of Guillen’s, Rodriguez’s, and Arias’s gang-related
tattoos were admissible evidence. Likewise, Baca’s, Cochran’s,
and Birkbeck’s descriptions of the activities they observed during
the Buick and Centinela Park incidents was based on their
personal knowledge and was not hearsay. And, because these
officers testified at trial, Barragan was entitled to rely on their
testimony regarding these matters as the basis for his expert
opinion. (See Sanchez, supra, 63 Cal.4th at p. 684 [“the evidence
can be admitted through an appropriate witness and the expert
may assume its truth in a properly worded hypothetical question
in the traditional manner”].)
       D. Officer Tripp’s knowledge of gang membership and
monikers
       Officer Tripp’s testimony that he knew Muniz, Rodriguez,
Arias, Lara, Fuentes, Gomez, and Cobian were gang members,
and that he knew five of the men’s monikers, was likewise not
hearsay. His testimony was apparently based on his personal
knowledge, and the defense did not object on foundational
grounds or seek to elicit the basis for his knowledge.
       E. FI cards and related testimony
       The FI cards referenced by expert Barragan as the basis for
his opinion that four of the five men found with Iraheta at
Centinela Park were self-admitted Inglewood 13 gang members
constituted testimonial hearsay. The information in the FI cards



                                26
was double hearsay. The FI card subjects’ admissions that they
were gang members were out-of-court statements offered for their
truth, and none of the FI card subjects testified at trial. (See
People v. Ochoa, supra, 7 Cal.App.5th at p. 583.) Barragan was
not present when the subjects admitted their gang membership,
and the officer or officers who prepared the FI cards did not
testify. Barragan related facts in the FI cards as the basis for his
conclusion that the men were gang members. (See Sanchez,
supra, 63 Cal.4th at pp. 674-675; People v. Meraz, supra,
6 Cal.App.5th at p. 1176 [hearsay rules barred admission of
officer’s testimony on FI cards and arrest report completed by
other officers outside his presence, which conveyed case-specific
information]; People v. Lara (2017) 9 Cal.App.5th 296, 337.) The
evidence was not general background information, but included
case-specific facts: that persons found in Iraheta’s company were
self-admitted gang members. Their gang membership was
offered to show Iraheta was involved in a gang initiation, as proof
he was an active Inglewood 13 gang member. “If it is a case-
specific fact and the witness has no personal knowledge of it, if no
hearsay exception applies, and if the expert treats the fact as
true, the expert simply may not testify about it.” (People v.
Stamps, supra, 3 Cal.App.5th at p. 996; People v. Ochoa, supra,
7 Cal.App.5th at p. 589.)
       Further, the statements contained in the FI cards were
testimonial. Sanchez concluded FI cards “may” be testimonial,
but did not hold they always are. (Sanchez, supra, 63 Cal.4th at
p. 697.) Statements made to officers in the course of informal
interactions, and not gathered for the primary purpose of use in a
later criminal prosecution, are not generally testimonial. (People
v. Ochoa, supra, 7 Cal.App.5th at p. 585; People v. Valadez (2013)



                                27
220 Cal.App.4th 16, 35-36.) But Sanchez reasoned that if an FI
card is “produced in the course of an ongoing criminal
investigation, it would be more akin to a police report, rendering
it testimonial.” (Sanchez, at p. 697.) Here, the FI cards were
prepared in the course of an investigation by multiple officers
into the activities at the park, which had been initiated by a
report to police of a man with a gun. “When the People offer
statements about a completed crime, made to an investigating
officer by a nontestifying witness, Crawford teaches those
hearsay statements are generally testimonial unless they are
made in the context of an ongoing emergency . . . or for some
primary purpose other than preserving facts for use at trial.”
(Sanchez, at pp. 694-695.) Although no one was arrested for a
crime, it seems clear the officers were investigating a potential
crime. Since the cards were produced in the course of an ongoing
investigation, they are akin to police reports and therefore
testimonial.9 (Id. at p. 697.) Counsel interposed hearsay and

9      The People point out that in the unpublished portion of
Iraheta III we stated that “nothing in the record suggests the
officers’ purpose in speaking with the gang members was to
develop information regarding the instant crimes.” (Iraheta III,
supra, B249264.) However, given our Supreme Court’s
clarification that statements about a completed crime, made to an
investigating officer by a nontestifying witness, or produced in
the course of an ongoing criminal investigation, are generally
testimonial (see Sanchez, supra, 63 Cal.4th at pp. 694, 697), it is
clear that the statements made to officers in the park were
testimonial.
       The People further suggest that the statements cannot be
considered testimonial because the “record leaves open the
possibility” that the FI cards were prepared for general
community policing responsibilities unrelated to use in criminal


                                28
confrontation clause objections, which were overruled based on
the interpretation of the law applicable at the time. Thus,
admission of the evidence violated the confrontation clause.
(Sanchez, supra, 63 Cal.4th at pp. 670-671, 698.)
       Barragan’s statement that he had spoken to gang members
who had been “jumped in” in Centinela Park was likewise
hearsay. It was a case-specific, out-of-court statement offered for
its truth.
       F. Testimony regarding telephone numbers and gang
membership
       Detective Milchovich and Officer Tripp testified to
preparation of FI cards on eight subjects in addition to Tovar:
Guillen, Muniz, Rodriguez, Arias, Lara, Fuentes, Gomez, and
Cobian. Much of the officers’ testimony pertained to their
notations on the FI cards of their nonhearsay observations of the
subjects. However, the officers testified to two types of hearsay
which, for our purposes, is significant. First, the officers testified
that six of the subjects “self-admitted” their gang membership.
The declarants did not testify. The officers’ testimony that the

prosecutions. But the officers did not testify to such a purpose.
To the extent their testimony touched on the question, it does not
support the People’s argument. Officer Baca stated FI cards
could be prepared “for gang contacts” or for “an informational
report,” and would be given to gang detectives. Detective
Milchovich testified that he typically noted as many indicia of
gang membership as possible on FI cards in order to make a
“stronger indication” if, among other things, he had to testify in
court. This testimony does not suggest the FI cards, especially
those prepared in regard to the Buick and Centinela Park
incidents, were completed primarily for community policing
efforts.



                                  29
subjects stated they were gang members was offered for the truth
of the matter asserted, that is, that the subjects were in fact gang
members. (Evid. Code, § 1200; see Sanchez, supra, 63 Cal.4th at
p. 674.) The statements were case-specific; the evidence was
aimed at demonstrating Iraheta associated with gang members
and was therefore a gang member himself. For the same reason,
evidence that Archaga, Cabrera, and Carcamo (who were
observed with FI subject Fuentes) were “self-admitted” Inglewood
13 gang members was hearsay. (People v. Ochoa, supra,
7 Cal.App.5th at pp. 583, 589.)
       Second, seven of the subjects provided their telephone
numbers to the officers during the encounters, and the officers
recorded the numbers on the FI cards. Barragan used the phone
numbers on the FI cards as the primary basis for his conclusion
that the contacts in Iraheta’s cellular telephone belonged to
fellow Inglewood 13 gang members. The telephone numbers were
only relevant if offered for their truth. In other words,
Barragan’s comparison depended, at least in part, for its accuracy
on the assumption that the phone numbers – which were
provided in out-of-court statements, by nontestifying witnesses –
were accurate. The statements by the FI card subjects as to their
phone numbers were thus case-specific hearsay. (See People v.
Meraz, supra, 6 Cal.App.5th at p. 1176; People v. Stamps, supra,
3 Cal.App.5th at p. 996; People v. Ochoa, supra, 7 Cal.App.5th at
p. 583.) Barragan apparently relied upon three additional FI
cards in performing his comparison, but there was no in-court
testimony regarding the preparation of those cards.10



10   Barragan testified that he relied upon FI cards to
determine that 12 of the contacts in Iraheta’s cellular telephone


                                30
       For the most part, the record is insufficiently developed to
allow us to determine whether the aforementioned statements
were testimonial. It appears the FI cards on Arias, Lara, Cobian,
and Fuentes were testimonial; the card for Arias was prepared at
the jail after Arias’s arrest, and the other FI cards indicated the
subjects were arrested with other gang members or for gang-
related crimes. To the extent these facts suggest the FI cards
were prepared in the course of an ongoing investigation, they
were testimonial. (See Sanchez, supra, 63 Cal.4th at p. 697.)
However, the record is too sparse to allow a definitive conclusion.
As to the remaining evidence, the record does not disclose the
nature of the contacts between the officers and the FI card
subjects, hindering analysis of the statements’ nature.
       In the face of this undeveloped record, the People argue
that because defense counsel failed to consistently and
specifically object on hearsay and confrontation clause grounds,
Iraheta’s confrontation clause claim has been forfeited. (See
People v. Ochoa, supra, 7 Cal.App.5th at p. 586 [“due to
defendant’s failure to object, the record is not clear enough for
this court to conclude which portions of the expert’s testimony
involved testimonial hearsay”; accordingly, there was no showing
the confrontation clause was violated].) Iraheta counters that
counsel’s objections were sufficient, and in any event, more
specific or additional confrontation clause objections would have
been futile because at the time of trial, People v. Gardeley, supra,
14 Cal.4th 605 allowed an expert to testify to hearsay evidence
that formed the basis of the expert’s opinion. (See People v.


were gang members, that is, the eight subjects discussed above,
plus Tovar, plus three other unnamed persons.



                                31
Meraz, supra, 6 Cal.App.5th at p. 1170, fn. 7 [prior to Sanchez,
failure to object on confrontation grounds would likely have been
futile because the trial court was bound to follow pre-Sanchez
decisions holding expert “basis” evidence did not violate
confrontation clause]; Conservatorship of K.W. (2017) __
Cal.App.5th __ [2017 Cal.App.Lexis 678]; People v. Jeffrey G.
(2017) 13 Cal.App.5th 501, 507-508.) Indeed, when defense
counsel eventually made a continuing objection to evidence
related to the FI cards, the trial court concluded, in accord with
the law in effect at the time (see People v. Stamps, supra,
3 Cal.App.5th at pp. 993-994) that an expert could state the basis
for his opinion.
       But we need not determine whether testimony regarding
self-admission of gang membership by Guillen, Muniz, Rodriguez,
Gomez, Arias, Fuentes, Archaga, Cabrera, and Carcamo, or the
provision of telephone numbers, was testimonial. Even if the
evidence was admitted in violation of state law hearsay rules
only, when considered along with the confrontation clause
violation discussed ante, the evidentiary errors were prejudicial,
as we explain.
       (iii) Prejudice
       The parties treated the question of Iraheta’s gang
membership as a pivotal issue in the case. The prosecutor argued
the evidence demonstrated “this was nothing less than a cold-
blooded murder in which this defendant, due to his affiliation,
membership, whatever you want to call it with the Inglewood 13
gang, when he had that conversation with . . . Tovar, ‘Drowsy,’ he
followed that car, and he killed Michael Orozco.” The prosecutor
urged that “Motive is important in this case. Because if you’re
reasonable and you listen to all the evidence . . . the motive for



                               32
this crime was, in fact, a gang, Inglewood 13 specifically.”
Defense counsel argued that in order to accept the prosecution’s
theory, “you have to assume that [Iraheta] is a gang member,
which clearly he’s not . . . .”
       Iraheta’s only viable defense to the section 246 charge was
“perfect” self-defense. (See Iraheta III, supra, 227 Cal.App.4th at
pp. 617-624.) Iraheta’s jury was instructed that a defendant acts
in self-defense when he reasonably believes that he or another is
in imminent danger of being killed or suffering great bodily
injury; he reasonably believes that the immediate use of deadly
force is necessary to defend against that danger; and he uses no
more force than is reasonably necessary. (CALCRIM No. 505; see
generally People v. Hernandez (2011) 51 Cal.4th 733, 747.) Such
a belief may be reasonable even if the danger did not actually
exist or the defendant relied on information that was not true. A
defendant is not required to retreat, but may stand his ground
and defend himself if reasonably necessary. (CALCRIM No. 505;
see People v. Ross (2007) 155 Cal.App.4th 1033, 1044, fn 13.) The
People have the burden to prove a defendant did not act in self-
defense. (CALCRIM No. 505; People v. Saavedra (2007) 156
Cal.App.4th 561, 571.) Evidence that Iraheta was a gang
member went directly to the genuineness of his belief. His gang
membership, or lack thereof, was crucial to both the defense and
the prosecution theories, to demonstrate he shot either from a
gang-related motive, or that he lacked such a motive and shot in
self-defense.
       There was considerable admissible evidence suggesting
Iraheta was an Inglewood 13 gang member, including his “West
L.A.” tattoo; his “I” belt buckle; his presence in gang territory;
and his presence with Tovar and Muniz in a car near where three



                                33
other men – one of whom, Rodriguez, was known to Tripp as a
gang member – threw a gun. There was also evidence Iraheta
was observed fighting with a group of Hispanic men or youths in
Centinela Park, and his phone contained numerous contacts
which, according to an experienced gang officer, appeared to be
gang monikers. Some of the names in the phone corresponded to
monikers Tripp testified belonged to gang members. Iraheta had
a gun at the ready in his car on the night of the shooting.
Further, the circumstances of the crime suggested the shooting
might have been in retaliation for the presence of persons
perceived to be gang rivals in Inglewood 13 territory. Moreno
told police in an interview shortly after the crime that Iraheta
had followed the Honda. The prosecution also attempted to show
the route Iraheta took from the Jr. Market suggested he intended
to confront the persons in the Honda.
      On the other hand, Iraheta presented considerable evidence
undercutting the prosecution’s evidence. He consistently denied
being a gang member and there was no evidence he had ever self-
admitted to any police officer. Until the current offense, he had
never been arrested or convicted of a crime. He was a high school
graduate, and also claimed he was enrolled in ITT Tech and
scheduled to start classes the following month. Melody, in her
interview with police shortly after the shooting, stated she had
been dating Iraheta for two months and did not know he was a
gang member. It was undisputed he enlisted in the military in
2001 and was in the Army National Guard Reserve at the time of
the shooting; two witnesses testified that they attended basic
training with him. He claimed he had just been hired by Bank of
America, and Melody backed this claim up in her police
interview; she explained they had been shopping for work clothes



                               34
for him the morning of the shooting. While the facts Iraheta was
in the military and had a job lined up did not disprove he was a
gang member, jurors were likely to conclude this evidence tended
to show he was less likely to be focused on gang-related activities
or membership. There were no photographs of Iraheta flashing
gang signs, and there was no evidence gang signs or challenges
were used during the shooting. Barragan conceded he knew of no
active Inglewood 13 gang members who were in the military, had
a legal job, were enrolled in school, had never self-admitted, and
had no Inglewood 13 gang tattoos, although many gang members
had jobs.
      Iraheta’s mother lived in Inglewood, and he lived with her
part of the time, diminishing the significance of his presence in
Inglewood gang territory. Iraheta claimed his “West L.A.” tattoo
was not gang-related. The defense gang expert testified that a
“West L.A.” tattoo did not necessarily indicate gang membership.
Tattoos are ubiquitous, and “West L.A.” does not indubitably
signify gang allegiance in the way that a more specific tattoo,
such as “Inglewood 13,” would. According to Iraheta, his “I” belt
buckle did not stand for “Inglewood,” but for his last name; he
explained he had worn initial belt buckles since childhood and
provided a photo of himself wearing a “C” buckle as a child.
Melody and Moreno confirmed that the group had been headed to
Universal City Walk to go to the movies, corroborating Iraheta’s
account. It was undisputed Melody, who was seated in the
Camaro’s passenger seat parallel to the Honda, was pregnant at
the time of the shooting. Barragan had not heard of an
Inglewood 13 gang member committing a gang shooting with his
pregnant girlfriend and teen brothers in the car, although he




                                35
knew gang members would commit crimes in front of their
families and girlfriends.
       Iraheta’s innocent explanation for his presence at Centinela
Park was corroborated by Melody’s mother, Hernandez, who
testified that she had asked Iraheta “[t]o go and pick up” her son
Luis at Centinela Park “because he was being beat up.” One of
the names of the persons found with Iraheta at the park was Luis
Maciel. Iraheta offered an innocent explanation for the Buick
incident as well. He explained he sometimes carried a gun in his
car because he had been beaten up approximately six months
prior to the shooting when he had been attacked by gang
members after he denied gang membership. He admitted having
Tovar’s name in his phone, and that Tovar was a gang member.
He also admitted having “Giovanni’s” number (presumably
Arias’s) in his phone, and confirmed he knew that Giovanni was
an Inglewood 13 gang member; however, they had known each
other since they were children and Iraheta did not end their
friendship when Giovanni joined a gang. Iraheta identified other
names in his contacts as friends from the military or elsewhere,
relatives, or members of his roller hockey league, none of whom
were gang members.
       Against this background, we cannot conclude the
improperly admitted evidence was harmless beyond a reasonable
doubt. (Sanchez, supra, 63 Cal.4th at pp. 698-699; Chapman v.
California (1967) 386 U.S. 18.) The People’s primary method of
proving Iraheta’s gang membership was by showing his
association with Inglewood 13 gang members. The other
evidence – the tattoo and the “I” belt buckle – was comparatively
weak. Evidence Iraheta’s cellular telephone was chock full of
gang member contacts provided far stronger proof he was an



                                36
Inglewood 13 member. Evidence that the persons in Centinela
Park with Iraheta were all Inglewood 13 gang members, and
Barragan’s testimony he had been told by gang members that
they had been “jumped in” there, strongly suggested Iraheta was
participating in a gang initiation ceremony. Such evidence was
compelling proof he was a gang member and directly contradicted
Hernandez’s testimony that she sent Iraheta there for an
innocent purpose. Arguably, Barragan’s testimony that he knew
the park was used for this purpose, without addition of the
statement he had been so informed by gang members, would have
been admissible as background information. But even so, his
reliance on FI cards completed by officers who did not testify at
trial as the basis for his opinion that all the men in the park with
Iraheta were gang members was compelling evidence Iraheta was
there for gang-related purposes. Furthermore, although Officer
Tripp testified that he knew Muniz, Rodriguez, Arias, Lara,
Fuentes, Gomez, and Cobian were gang members, the basis for
his opinion was not established. Any skepticism jurors may have
had about the accuracy of Tripp’s beliefs was likely confirmed by
hearsay statements on the FI cards that these men were self-
admitted gang members.
       Certainly, there was ample evidence to support the jury’s
verdict. Nonetheless, given the quantity and tenor of the gang
evidence, and its importance to a crucial issue in the case, we
cannot say the errors were harmless beyond a reasonable doubt.
(See Sanchez, supra, 63 Cal.4th at pp. 685, 698-699; People v.
Meraz, supra, 6 Cal.App.5th at p. 1176.)




                                37
       2. Iraheta’s vindictive prosecution and statute of limitations
arguments lack merit
       Iraheta argues that the section 246 charge was time-
barred, and its addition after his successful appeal constituted
vindictive prosecution. If meritorious, either of these contentions
would require dismissal of the section 246 charge and would
preclude Iraheta’s retrial on that count. Therefore we address his
contentions even though we have concluded his conviction must
be reversed.
       a. Additional facts
       The original information in this case was filed on May 1,
2003, and charged Iraheta with murder (§ 187, subd. (a)), along
with the allegation that he personally and intentionally used and
discharged a firearm, causing death (§ 12022.53, subds. (b), (c) &
(d)). The court instructed the jury on first degree murder, as well
as three theories of second degree murder: (1) an intentional
killing where the evidence was insufficient to prove
premeditation and deliberation; (2) an unintentional killing
resulting from a dangerous act performed with conscious
disregard for human life; and (3) second degree felony murder
based on a killing committed while shooting at an occupied motor
vehicle in violation of section 246. The jury was further
instructed that to prove the third theory, the People were
required to establish “[t]he specific intent to commit Shooting at
an Occupied Vehicle and the commission or attempted
commission of that crime” beyond a reasonable doubt.
Accordingly, the jury was instructed on the elements of shooting
at an “inhabited” vehicle in violation of section 246. It acquitted
Iraheta of first degree murder, but convicted him of second
degree murder, and found the section 12022.53 firearm



                                 38
allegations true. As noted, we affirmed the judgment in
Iraheta I.
       Thereafter the Supreme Court granted review and
transferred the matter back to us with directions to vacate our
decision and reconsider the cause in light of People v. Chun,
supra, 45 Cal.4th 1172. In Chun, the court overruled its own
prior decisions and concluded that when “the underlying felony is
assaultive in nature, such as a violation of section 246 or
246.3, . . . the felony merges with the homicide and cannot be the
basis of a felony-murder instruction.” (Id. at pp. 1178, 1200.)
Chun reasoned that shooting at an occupied vehicle under section
246 was one such assaultive crime, and therefore could not serve
as the underlying felony for purposes of the felony-murder rule.
(Chun, at pp. 1178, 1200.) In light of Chun, we concluded the
trial court had prejudicially erred by instructing that section 246
could serve as the basis for the felony-murder instruction, and
reversed.
       On remand, the People filed an amended information
charging Iraheta with murder (§ 187, subd. (a), count 1), and
adding a second count of shooting at an occupied motor vehicle
(§ 246, count 2). The section 12022.53 allegations that had
previously been alleged as to the murder charge were also alleged
in regard to the section 246 charge. Iraheta moved to dismiss the
section 246 count and the attached section 12022.53 allegations
on the ground their addition constituted vindictive prosecution.
The trial court denied the motion.
       At Iraheta’s second trial, the jury convicted him of shooting
at an occupied motor vehicle in violation of section 246, and found
the section 12022.53, subdivisions (b), (c), and (d) firearm




                                39
enhancements true. It deadlocked on the second degree murder
charge, and the trial court declared a mistrial on that count.
      Before sentencing, Iraheta filed a motion for a new trial on
a variety of grounds. He also brought a motion in arrest of
judgment, arguing that the section 246 count was time-barred
and the People had failed to plead facts showing otherwise;
further, addition of the section 246 charge constituted vindictive
prosecution. The trial court granted the new trial motion on the
ground that it had erred in failing to instruct the jury on
imperfect self-defense in regard to the section 246 count, and as
noted, we subsequently reversed its order granting the new trial.
(Iraheta III, supra, 227 Cal.App.4th at p. 613.) In the
unpublished portion of the opinion, we held that the other
grounds raised in the new trial motion did not support the grant
of a new trial. We did not consider whether amendment of the
complaint to add the section 246 charge was permissible, i.e.,
whether the charge was time-barred or constituted vindictive
prosecution.
      On remand, Iraheta brought a renewed series of motions
challenging the amendment to the information on vindictive
prosecution and statute of limitations grounds. He also
attempted to revive his motion for a new trial on a variety of
grounds, primarily those we had considered and rejected when
we determined that the grant of the previous new trial motion
could not be affirmed. The trial court ruled that under section
803, subdivision (b), the statute of limitations was tolled during
pendency of the murder case, which involved the same conduct;
therefore there was no time-bar. It found no presumption of
vindictiveness arose because the addition of the section 246
charge did not increase Iraheta’s potential punishment.



                                40
        b. Vindictive prosecution
        The “due process clauses of the federal and state
Constitutions (U.S. Const., 5th & 14th Amends.; Cal. Const.,
art. I, §§ 7, 15) forbid the prosecution from taking certain actions
against a criminal defendant, such as increasing the charges, in
retaliation for the defendant’s exercise of constitutional rights.
[Citations.]” (People v. Jurado, supra, 38 Cal.4th at p. 98; In re
Bower (1985) 38 Cal.3d 865, 869.) “It is ‘patently
unconstitutional’ to ‘chill the assertion of constitutional rights by
penalizing those who choose to exercise them.’ [Citation.]”
(People v. Valli (2010) 187 Cal.App.4th 786, 802.)
        Due process protects against both an actual vindictive
prosecution and the apprehension of retaliation for exercising the
right to appeal. (In re Bower, supra, 38 Cal.3d at pp. 874, 877-
878; People v. Villanueva (2011) 196 Cal.App.4th 411, 418.)
Because the doctrine seeks to reduce or eliminate apprehension
on the part of an accused that he may be subject to retaliatory
punishment for attempting to exercise his procedural rights, the
mere appearance of vindictiveness is enough to place the burden
on the prosecution. (Twiggs v. Superior Court (1983) 34 Cal.3d
360, 371.) “ ‘The presumption is not based on the subjective state
of mind of the individual prosecutor and does not imply that he or
she individually harbors an improper motive.’ ” (People v.
Villanueva, supra, at p. 419; In re Bower, at p. 879.)
        Thus, the “presumption of unconstitutional vindictiveness
is a legal presumption which arises when the prosecutor
increases the criminal charge against a defendant under
circumstances which . . . are deemed to present a ‘reasonable
likelihood of vindictiveness.’ ” (In re Bower, supra, 38 Cal.3d at
p. 879; People v. Ledesma (2006) 39 Cal.4th 641, 731 [an



                                 41
“inference of vindictive prosecution is raised if, upon retrial after
a successful appeal, the prosecution increases the charges so that
the defendant faces a sentence potentially more severe than the
sentence he or she faced at the first trial”]; Twiggs v. Superior
Court, supra, 34 Cal.3d at p. 371 [“Where the defendant shows
that the prosecution has increased the charges in apparent
response to the defendant’s exercise of a procedural right, the
defendant has made an initial showing of an appearance of
vindictiveness”]; Blackledge v. Perry (1974) 417 U.S. 21, 28 [state
may not retaliate by “substituting a more serious charge for the
original one, thus subjecting [the defendant] to a significantly
increased potential period of incarceration”].)
      “[O]nce the presumption of vindictiveness is raised the
prosecution bears a heavy burden of rebutting the presumption
with an explanation that adequately eliminates actual
vindictiveness.” (Twiggs v. Superior Court, supra, 34 Cal.3d at
p. 374; People v. Valli, supra, 187 Cal.App.4th at p. 803.) “ ‘In
order to rebut the presumption of vindictiveness, the prosecution
must demonstrate that (1) the increase in charge was justified by
some objective change in circumstances or in the state of the
evidence which legitimately influenced the charging process and
(2) that the new information could not reasonably have been
discovered at the time the prosecution exercised its discretion to
bring the original charge.’ [Citation.]” (People v. Valli, at p. 803;
In re Bower, supra, 38 Cal.3d at p. 879.)
      Here, the relevant facts are undisputed; therefore we
exercise our independent judgment to resolve the legal question
of whether a presumption of vindictiveness arose. (See generally
People v. Cromer (2001) 24 Cal.4th 889, 893-894.)




                                 42
      We conclude no presumption of vindictiveness arose
because the addition of the section 246 charge did not “increase[ ]
the charges so that the defendant face[d] a sentence potentially
more severe than the sentence he . . . faced at the first trial”
(People v. Ledesma, supra, 39 Cal.4th at p. 731), nor did it
increase the charges under circumstances deemed to present a
reasonable likelihood of vindictiveness (In re Bower, supra,
38 Cal.3d at p. 879).
      Shooting at an occupied motor vehicle is a less serious
charge than murder. It carries a penalty of three, five, or seven
years (§ 246; People v. Williams (2014) 227 Cal.App.4th 733, 742),
whereas second degree murder is punishable by 15 years to life in
prison (§ 190, subd. (a)). Conviction of the section 246 charge
therefore resulted in a lesser sentence than conviction of the
murder charge would have.
      Had the jury convicted Iraheta of both the murder and the
section 246 charge, no additional punishment would have been
permissible because section 654 would have required a stay of
sentence on the section 246 charge.11 The same is true in regard
to the section 12022.53 firearm enhancements. Had Iraheta been
convicted of both crimes, he could not have been sentenced to


11    Section 654, subdivision (a), bars multiple punishments for
separate offenses arising out of a single occurrence where all
were incident to an indivisible course of conduct or a single
objective. (People v. Jackson (2016) 1 Cal.5th 269, 354; People v.
Capistrano (2014) 59 Cal.4th 830, 885-886; People v. Calderon
(2013) 214 Cal.App.4th 656, 661.) Here, both the murder and the
section 246 charge were based on identical conduct – Iraheta’s
shooting of Orozco – and were clearly carried out with a single
intent and objective.



                                43
more than one section 12022.53 enhancement. When the base
term of a sentence is stayed under section 654, the attendant
enhancements must also be stayed. (People v. Calles (2012)
209 Cal.App.4th 1200, 1221; People v. Guilford (1984)
151 Cal.App.3d 406, 411.) Thus, no presumption of
vindictiveness arose due to a potential increase in punishment.
      Nor did the People increase the charges under
circumstances that appear vindictive. The addition of the section
246 charge after Iraheta’s successful appeal was based on a
change in the law wrought by People v. Chun, and therefore did
not suggest vindictiveness. The section 246 count could not
logically have been charged in the original trial. Based on the
then-applicable law, the People relied on the section 246 charge
as the basis for a second degree felony murder theory. In order to
prove that theory, the jury had to find beyond a reasonable doubt
that Iraheta committed the offense of shooting at an occupied
motor vehicle. Since the jury could not find Iraheta guilty of
felony murder without also finding him guilty of shooting at a
motor vehicle, there would have been little point in separately
charging the section 246 count. In other words, if the People had
charged Iraheta with a substantive section 246 charge and tried
him on a felony murder theory based on the same 246 charge, the
jury would have either acquitted him of both (if it found he was
not guilty of shooting at an occupied motor vehicle) or convicted
him of both. The substantive section 246 charge would have been
redundant.
      For similar reasons, we reject Iraheta’s argument that the
addition of the section 246 charge deprived him of a defense. His
argument runs as follows. The imperfect self-defense doctrine
operates to reduce a murder to voluntary manslaughter. (See



                               44
Iraheta III, supra, 227 Cal.App.4th at p. 620.) The imperfect self-
defense doctrine does not apply to the offense of shooting at an
occupied motor vehicle. (Id. at p. 624.) Therefore, at the second
trial he was unable to advance an imperfect self-defense theory in
regard to the newly added section 246 charge. He posits that
after the People became aware of his intended defense at the first
trial, they added the new count in order to “deprive [him] of his
defense.”
        The flaw in this argument is that at the first trial Iraheta
had no right to an imperfect self-defense theory on all charges
either. Then, as now, imperfect self-defense was not a defense to
felony murder. (People v. Seaton (2001) 26 Cal.4th 598, 665;
People v. Tabios (1998) 67 Cal.App.4th 1, 8-9, disapproved by
People v. Chun, supra, 45 Cal.4th at p. 1199.) Prior to People v.
Chun, the People relied on a then-viable felony murder theory,
based on section 246, to which the imperfect self-defense doctrine
did not apply. After Chun, at the second trial, the jury was given
the option of convicting Iraheta of the less serious offense of
shooting at an occupied motor vehicle, to which the imperfect
self-defense doctrine likewise did not apply. Thus, both before
and after the successful appeal, Iraheta was faced with a theory
of culpability to which his imperfect self-defense theory could not
apply.12


12    Iraheta cites our prior opinion in Iraheta II, B173223, in
support of his argument that he was deprived of a defense. But
our ruling there does not support his vindictive prosecution
claim. When considering whether the trial court’s instructional
error was prejudicial, we applied Chun’s harmless error test, i.e.,
whether “other aspects of the verdict or the evidence leave no
reasonable doubt that the jury made the findings necessary for


                                45
       In sum, the post-appeal amendment of the information to
add the section 246 count did not “ ‘ “up the ante.” ’ ” (See
generally People v. Villanueva, supra, 196 Cal.App.4th at p. 419.)
It neither exposed Iraheta to a more severe sentence nor deprived
him of a defense that was available to all charges at the first
trial.
       c. The section 246 charge was not time-barred
       Iraheta next argues that the statute of limitations barred
prosecution for shooting at an occupied motor vehicle in violation
of section 246.13 The trial court concluded that because the



conscious-disregard-for-life malice.” (People v. Chun, supra,
45 Cal.4th at p. 1205.) Iraheta’s jury had been instructed, and
the prosecutor had argued, that imperfect self-defense did not
apply to felony murder. Therefore, because Iraheta’s imperfect
self-defense claim was potentially viable in regard to the murder
charge, and because the jury never had to consider it in regard to
the felony murder theory, it was not clear beyond a reasonable
doubt that the jury made the requisite findings to render the
error harmless. (Iraheta II, supra, B173223.) In other words, we
could not say the jury necessarily found Iraheta guilty under one
of the remaining, legally proper theories. But our prejudice
analysis does not suggest the conclusion that trying Iraheta on
the section 246 offense was improper.
13     It does not appear that Iraheta moved to dismiss the
section 246 charge on statute of limitations grounds before the
2013 retrial, but this is inconsequential. Where the “charging
document indicates on its face that the charge is untimely, absent
an express waiver, a defendant convicted of that charge may
raise the statute of limitations at any time.” (People v. Williams
(1999) 21 Cal.4th 335, 338, 341; People v. Johnson (2006)
145 Cal.App.4th 895, 900.)



                                46
section 246 charge pertained to the same conduct as the murder
charge, section 803 applied to toll the statute of limitations.
Exercising our independent judgment on the undisputed facts
presented here (Aryeh v. Canon Business Solutions, Inc. (2013)
55 Cal.4th 1185, 1191), we conclude the trial court was correct.
       The statute of limitations for a section 246 offense is three
years. (See §§ 801, 246; People v. Johnson, supra, 145
Cal.App.4th at p. 900.) Iraheta committed the shooting on
December 20, 2002. The original information charging Iraheta
with murder was filed on May 1, 2003. The amendment adding
the section 246 charge was made on October 5, 2010, over three
years after the crime.
       However, section 803 tolled the statute of limitations on the
section 246 count. Section 803, subdivision (b) provides: “No
time during which prosecution of the same person for the same
conduct is pending in a court of this state is a part of a limitation
of time prescribed in this chapter.” As relevant here, a felony
prosecution is commenced for purposes of section 803 when an
information is filed. (§ 804, subd. (a); People v. Ortega (2013)
218 Cal.App.4th 1418, 1428; People v. Johnson, supra,
145 Cal.App.4th at p. 901.) The murder charge and the section
246 charge are based on identical conduct: Iraheta’s shooting of
Orozco. Thus, the filing of the original information, which
occurred within three years of the crime, tolled the statute of
limitations on the section 246 count.
       People v. Whitfield (1993) 19 Cal.App.4th 1652, is
instructive. There, the court held “the filing of an information
tolls the period of limitations as to lesser related offenses which
are based on the ‘same conduct’ (Pen. Code, § 803, subd. (b)) as
that which underlies the charged offense.” (Id. at p. 1654.) The



                                 47
Whitfield defendant committed multiple sexual offenses against
two victims and was charged with rape. He contended that the
victims were both prostitutes and he had engaged in consensual
sexual encounters with them. He therefore requested that the
trial court instruct on the lesser related, misdemeanor offense of
engaging in prostitution. (Id. at p. 1656.) A trial court is under
no duty to instruct on a lesser included offense that is time-
barred, since the defendant cannot be convicted of it. (Id. at
p. 1658.) The trial court, believing the one-year statute of
limitations had run on the misdemeanor offenses, refused to so
instruct. (Id. at pp. 1656, 1658.) Whitfield reasoned: “The
information . . . tolled the statute of limitations not only as to the
charged rapes but also as to offenses based on ‘the same conduct’
as the charged rapes (Pen. Code, § 803, subd. (b)). The issue thus
narrows to whether the related offense of prostitution is based on
the ‘same conduct’ as the charged rapes.” (Id. at p. 1659.) After
examining the Law Revision Commission’s comment to section
803, the court concluded: “where an action is dismissed and
refiled after the period of limitations, the prosecutor may charge
offenses based on the ‘same conduct’ as the dismissed action
because the filing of the original action tolls the statute of
limitations not only as to those offenses charged in the original
action, but also as to offenses based on the ‘same conduct.’ ”
(People v. Whitfield, supra, at p. 1659; see also People v. Chardon
(1999) 77 Cal.App.4th 205, 214-215; People v. Bell (1996)
45 Cal.App.4th 1030, 1064 [forgery and false filings were aspects
of the same rent skimming scheme; therefore, both arose from the
same conduct and the statutes of limitations were tolled].)
Likewise, here, the filing of the murder charge in 2003 tolled the
statute of limitations.



                                 48
      Iraheta attempts to overcome application of section 803 by
arguing that it applies only when a complaint is dismissed and
refiled, not when a complaint is amended.14 In his view, when a
complaint is amended, section 1009 applies. That section
provides that an information may be amended for a defect or
insufficiency at any stage of the proceedings, but cannot be
amended so as to charge an offense not shown by the evidence
taken at the preliminary examination. Section 1009 thus
“ ‘authorizes amendment of an information at any stage of the
proceedings provided the amendment does not change the offense
charged in the original information to one not shown by the
evidence taken at the preliminary examination.’ ” (People v.
Hamernik (2016) 1 Cal.App.5th 412, 424; People v. Ochoa (2016)
2 Cal.App.5th 1227, 1232.)
       Citing Harris v. Superior Court (1988) 201 Cal.App.3d 624
(Harris), People v. Chapman (1975) 47 Cal.App.3d 597, and
People v. McKay (1979) 97 Cal.App.3d Supp. 59, Iraheta argues


14     Iraheta also attempts to distinguish Whitfield by arguing
that unlike the Whitfield defendant, he never requested a lesser
related offense instruction; and People v. Geiger (1984) 35 Cal.3d
510, cited in Whitfield, was later overruled by People v. Birks
(1998) 19 Cal.4th 108, 112. But these points are not germane to
Whitfield’s analysis of the section 803 issue. In resolving whether
the trial court committed instructional error, Whitfield addressed
a two-pronged inquiry: first, whether prostitution was an offense
closely related to rape, such that it was a lesser related offense;
and, if so, whether the statute of limitations on prostitution had
run. (People v. Whitfield, supra, 19 Cal.App.4th at pp. 1656-
1658.) The court’s reference to Geiger pertained not to the
statute of limitations issue, but to the question of whether
prostitution was a lesser related offense.



                                49
that after the statute of limitations has run an information may
not be amended to add a charge which is not a necessarily
included offense, even though it relates to the same conduct as
that originally charged. Because shooting at an occupied motor
vehicle is not a lesser included offense of murder, he insists,
amendment was improper. But we perceive no conflict between
section 1009 and section 803, subdivision (b). Section 1009
generally governs amendment of pleadings; section 803,
subdivision (b) simply provides that the statute of limitations is
tolled under limited circumstances. The distinction Iraheta
posits between an amended and a refiled complaint or
information is nowhere apparent in the statutory language.
Section 803, subdivision (b) does not state or imply that it applies
only to cases in which a complaint has been dismissed and
refiled.
       The authorities Iraheta cites in support of his argument do
not assist him. Section 803, subdivision (b), was added in 1984.
(Stats. 1984, ch. 1270, § 2, p. 4335; People v. Whitfield, supra,
19 Cal.App.4th at p. 1660.) Chapman and McKay were decided
in 1975 and 1979, respectively, and therefore say nothing about
application of section 803. Nor does Harris, decided in 1988,
assist Iraheta. In Harris, the defendant was charged with the
January 1981 murder of the victim. The information alleged the
special circumstances that the murder occurred during the
commission of a robbery in violation of section 211 and a
kidnapping in violation of sections 207 and 209, but did not
charge the substantive offenses of robbery or kidnapping. The
jury found the defendant guilty and the special circumstances
true, but the judgment was reversed on appeal. The defendant
moved to strike the special circumstance allegations on the



                                 50
ground the statute of limitations had run on the underlying
felonies. The trial court denied the motion and instead allowed
the People to amend to allege the robbery and kidnapping as
substantive offenses. (Harris, supra, 201 Cal.App.3d at p. 627.)
       On appeal, Harris concluded amendment of the information
to add the substantive offenses was improper. The court
explained: “Section 1009 provides that the district attorney can
amend the charges originally filed at any time, including ‘on
remand after reversal.’ [Citation.] However, when amending an
information, a critical inquiry must be made: is the amendment
to correct a defect or insufficiency in the original complaint or is
the amendment to charge an offense not attempted to be charged
by the original complaint? ‘If the amendment falls in the former
category, it relates back to the date of the original filing of the
information and has the effect of tolling the running of the
statute of limitations from the date of the filing of the original
information. [Citation.] If the amendment falls in the latter
category, the . . . statute of limitations on the charges has run’
[citation] and the charges are barred. Consequently, case law has
held that after the statute of limitations has run, an information
may not be amended to insert a charge which is not a necessarily
included offense, even though it relates to the same conduct as
was originally charged. [Citations.]” (Harris, supra, 201
Cal.App.3d at pp. 627-628, fn. omitted.) Although “possibly
related to the same conduct as was originally charged,” the
robbery and kidnapping were not lesser included offenses of
murder, and the amendment was improper. (Id. at p. 628.)
Conversely, the court concluded section 803 served to toll the
special circumstance allegations, which had originally been
timely filed. (Harris, supra, at pp. 629-630 & fn. 3.)



                                51
       Harris did not discuss application of section 803,
subdivision (b) in regard to the proposed amendment adding the
substantive robbery and kidnapping offenses, nor did it explain
why section 803, subdivision (b) was inapplicable to that
question. But an answer readily suggests itself. Section 803,
subdivision (b) tolls the statute only when a prosecution for “the
same conduct” is already pending. The original complaint in
Harris charged murder; the People sought to add charges of
kidnapping and robbery, which would appear to constitute
different conduct within the meaning of section 803. Indeed,
Harris described the kidnaping and robbery as “possibly related
to the same conduct as was originally charged.” (Harris, supra,
201 Cal.App.3d at p. 628, italics added.) The court’s failure to
consider section 803 in regard to the proposed amendment was
presumably due to its view that the robbery and the kidnapping
were not the same conduct as the murder.15
       Iraheta further insists that the legislative history of section
803 demonstrates it applies only to charges that are dismissed
and refiled, not to amendments to a complaint. Our fundamental
task when construing a statute is to ascertain the intent of the
lawmakers so as to effectuate the law’s purpose. (Even Zohar
Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC
(2015) 61 Cal.4th 830, 837.) We begin “ ‘ “with the plain language
of the statute, affording the words of the provision their ordinary


15    But see People v. Greenberger (1997) 58 Cal.App.4th 298,
369 [rejecting argument that kidnapping and murder in that case
were not the same conduct].) We express no opinion on whether
crimes carried out in conjunction with or to facilitate a murder
constitute the same conduct for purposes of section 803.



                                 52
and usual meaning and viewing them in their statutory
context.” ’ ” (Poole v. Orange County Fire Authority (2015)
61 Cal.4th 1378, 1384.) Where there is no ambiguity, the plain
meaning of the language controls; resort to extrinsic sources is
unnecessary. (Id. at p. 1385; Ennabe v. Manosa (2014) 58 Cal.4th
697, 713; People v. Albillar (2010) 51 Cal.4th 47, 55.)
       Here, we need look no further than the unambiguous words
of the statute. Section 803, subdivision (b) does not distinguish
between an information that is dismissed and refiled and one
that is simply amended. As the statutory language is free from
ambiguity, resort to extrinsic sources is unwarranted.
       Even if an examination of section 803’s legislative history
was appropriate, the materials Iraheta cites – the California Law
Revision Commission’s analysis, and People v. Terry (2005)
127 Cal.App.4th 750 – do not convince us section 803 is
inapplicable to amendments. Former section 802.5, the
predecessor to section 803, provided in pertinent part: “no time
during which a criminal action is pending is a part of any
limitation of the time for recommencing that criminal action in
the event of a prior dismissal of that action . . . .” (Stats. 1981,
ch. 1017, § 3, pp. 3927-3928.) Section 803 continues the
substance of former section 802.5. (People v. Whitfield, supra,
19 Cal.App.4th at p. 1659, fn. 8; People v. Terry, supra, at p. 768.)
But nothing in the Law Revision Commission’s comments
suggests the distinction between amendment and refiling that
Iraheta posits; the relevant comments show an intent to broaden
the law to include the same conduct, rather than limiting the
tolling provision to the same action.16 It is true that former


16    People v. Terry set forth the relevant portions of the Law


                                 53
section 802.5 pertained to “recommencing that criminal action in
the event of a prior dismissal of that action.” However, this
language was jettisoned in favor of the current language of
section 803, which is not limited to prior dismissals.
      3. Iraheta’s other claims of error
      In light of our conclusion that the matter must be reversed,
we do not reach Iraheta’s additional contentions that the trial
court committed various instructional and evidentiary errors, the
prosecutor committed Doyle error,17 and that the imposition of
additional restitution fines and victim restitution violated double
jeopardy principles.




Revision Commission’s comments: “ ‘The limitation of former
Section 802.5 that permitted recommencing the same “criminal
action” is replaced by a broader standard of prosecution for the
“same conduct,” drawn from Model Penal Code § 1.06(6)(b). The
former law that provided tolling only for a subsequent
prosecution for the same offense was too narrow, since the
dismissal may have been based upon a substantial variation
between the previous allegations and the proof. The test of the
“same conduct,” involving as it does some flexibility of definition,
states a principle that should meet the reasonable needs of
prosecution, while affording the defendant fair protection against
an enlargement of the charges after running of the statute.’ ”
(People v. Terry, supra, 127 Cal.App.4th at p. 768, quoting
Cal. Law Revision Com. com., 50 West’s Ann. Pen. Code (1985
ed.) foll. § 803, p. 203.)
17    Doyle v. Ohio (1976) 426 U.S. 610.



                                 54
                        DISPOSITION
      The judgment is reversed.

        CERTIFIED FOR PARTIAL PUBLICATION




                                          ALDRICH, J.



We concur:




             EDMON, P. J.




             LAVIN, J.




      Retired Associate Justice of the Court of Appeal, Second
Appellate District, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.



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