People v. Rivera CA2/4, B306136A

Jose de Jesus Rivera (appellant) was convicted by a jury of multiple conspiracies (including conspiracy to assault Enrique Cienfuegos — count one), assault, and found true gang enhancements under Penal Code § 186.22; sentence totaled 33 years to life.
Key evidence against Rivera was recorded inmate telephone calls (notably a July 11, 2016 call) in which Rivera, an out‑of‑custody Mexican Mafia facilitator, relayed or confirmed orders from an in‑custody Mexican Mafia leader (MM2) to have Cienfuegos beaten and fined $500.
Rivera admitted in a 2017 interview his role as a facilitator and confirmed the July 11 instructions; he also relayed a November 2016 order that preceded an in‑jail stabbing of Cienfuegos.
On appeal Rivera challenged sufficiency of the evidence for count one; this court originally affirmed. After the Supreme Court denied review, AB 333 (amending § 186.22) took effect and Rivera sought relief under the new law.
The parties agreed AB 333 applies retroactively to nonfinal judgments; the Attorney General conceded the People failed to prove the amended gang‑enhancement elements. The court affirmed the substantive convictions but vacated the gang enhancements and remanded to allow the People to retry the enhancements or for resentencing if they decline.

Issue	People’s Argument	Rivera’s Argument	Held
Sufficiency of evidence for conspiracy to commit assault (count one)	July 11 call, Rivera’s confirmations, his facilitator role, and November follow‑up order support agreement, intent, and an overt act	Rivera only briefly answered/handed off the phone, lacked authority to order assaults, mere association insufficient, evidence shows at most suspicion	Conviction affirmed: viewed in light most favorable to prosecution, jury reasonably inferred Rivera agreed, intended assault, and committed an overt act (confirmed orders/follow‑up)
Applicability and sufficiency of § 186.22 gang enhancements post‑AB 333	Enhancements originally found true at trial; People relied on predicate offenses to prove gang status and benefit	Rivera entitled to benefit of AB 333; People didn’t prove new elements (predicate offenses by actual gang members and common benefit)	AB 333 applies retroactively; gang enhancements vacated and case remanded to permit People to retry enhancements; if not retried, resentence accordingly

People v. Kipp, 26 Cal.4th 1100 (substantial‑evidence standard on appeal)
People v. Johnson, 57 Cal.4th 250 (elements of conspiracy: agreement, intent, overt act)
People v. Maciel, 57 Cal.4th 482 (agreement may be inferred from conduct/relationships)
People v. Jurado, 38 Cal.4th 72 (overt‑act proof need not be unanimous as to which conspirator performed it)
People v. Lopez, 73 Cal.App.5th 327 (application of AB 333 and standards for vacating/remanding gang enhancements)