People v. Olvera CA5

Filed 2/14/23 P. v. Olvera CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F082428
Plaintiff and Respondent,
(Super. Ct. No. 19CR-06497C)
v.
MARTIN SANTOYO OLVERA, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Merced County. Carol K. Ash
and Steven K. Slocum, Judges.
William I. Parks, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and John
Merritt, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
A jury found Martin Santoyo Olvera (defendant) guilty of being an accessory after
the fact to a murder committed by a codefendant. The killing was alleged to be gang
related for purposes of Penal Code section 186.22 (all undesignated statutory references
are to the Penal Code), but the jury rejected the allegation. However, gang allegations
regarding defendant’s conduct as an accessory were found true.
Defendant was convicted in a retrial following the trial court’s sua sponte
declaration of a mistrial based on the COVID-19 pandemic. He argues the mistrial,
which was ordered over defense objections, was not legally necessary and, therefore, the
retrial violated his constitutional right not to be placed twice in jeopardy. In the
alternative, he argues insufficiency of the evidence. Both issues are close, but we
conclude error has not been shown.
Defendant’s opening brief includes a third claim based on People v. Dueñas
(2019) 30 Cal.App.5th 1157 and the trial court’s imposition of fines and fees at
sentencing. In supplemental briefing filed after the Legislature passed Assembly Bill
No. 333 (2021–2022 Reg. Sess.) (Assembly Bill 333), defendant relies on changes to
section 186.22 and the creation of section 1109, which provides for bifurcation of gang
enhancement allegations upon a defendant’s request. We conclude reversal with the
possibility of retrial is warranted in light of Assembly Bill 333. The Dueñas claim is
therefore moot.
FACTUAL AND PROCEDURAL BACKGROUND
July 14, 2019
On July 14, 2019, at 11:31 p.m., a 911 caller reported hearing gunshots near
Merced Avenue in the City of Merced. The caller lived on Rose Avenue, which
intersects with Merced Avenue, but his residence was approximately 15 houses away
from the intersection and he was unable to provide further information.
A second 911 caller, F.G., requested police assistance at the 1300 block of Merced
Avenue. F.G. had also heard gunshots and could see “somebody laying down” in the
street. When asked if there were any vehicles in the area, he told the dispatcher, “There’s
a white ca—it was a—it was a white Cadillac. It’s—I don’t know if it’s—if this is the
car.” A few questions later, the dispatcher asked, “Is the white Cadillac still parked
there?” F.G. replied, “No, he took off. He took off. He’s long gone.” The next question
2.
was, “Which way did the Cadillac go?” F.G. answered, “Going towards the Marriott out
by the freeway by Motel Drive.”
Police officers soon discovered the dead body of a 48-year-old man, Juan Ramirez
(the victim). He was found lying on his stomach in the eastbound lane of Merced
Avenue, near the address F.G. had provided to the dispatcher. An autopsy confirmed the
victim sustained six bullet wounds, though one was characterized as a “graze wound.”
There was a front wound to the left shoulder and multiple posterior wounds, including
one to the back of the head.
Investigators found 11 expended .40-caliber bullet casings and a bullet hole in a
vehicle parked approximately 40 feet northwest of the victim’s body, all in the vicinity of
the 1400 block of Merced Avenue. It was determined the victim resided on the 1600
block of Merced Avenue, a considerable distance to the east of where he was evidently
shot and killed. The police found no blood trails or droplets between the two locations.
July 15, 2019
In the early hours of July 15, 2019, a homicide detective interviewed witnesses
F.G. and A.D. Another detective located video evidence captured by security cameras at
the west end of Merced Avenue and along the northern stretch of Motel Drive. Later in
the day, police spoke to the victim’s neighbors and executed a search warrant at the
victim’s home.
F.G.’s Recorded Statements
F.G. had been visiting A.D. on the night of the shooting. A.D. lived on Merced
Avenue, approximately one block east of where the victim’s body was found.
Late that evening, F.G. and A.D. had a strange encounter with an unidentified
woman. F.G. described her as a “really skinny” Hispanic female with black hair and a
tattoo on her left arm. She was approximately 19 or 20 years old, was sweating
profusely, and appeared to be “on drugs.” The woman had attempted to enter the house,
3.
and she seemed startled and/or frightened when F.G. opened the front door. She claimed
to be looking for someone named “Jesse” before wandering off west on Merced Avenue.
F.G. exited the house and saw the woman behaving suspiciously outside of
another residence. A.D. called the police, and officers came out to the neighborhood to
investigate. The police departed after failing to locate the woman. Approximately 10 to
20 minutes later, F.G. and A.D. heard gunshots.
F.G. recalled hearing a man “arguing with somebody” immediately prior to the
shooting. He and A.D. hurried outside after hearing the shots, looked to their right
(west), and saw a white car in the westbound lane of Merced Avenue. Although F.G. had
said it was a Cadillac during the 911 call, he told the detective it was a two-door
Chrysler. After further questioning about the make, model, and year, F.G. said, “I had
told the cops 2015. But [A.D.] was like, ‘No that had to be like, older—2005.[’] And he
pulled up a picture and it looked exactly the same as the car.”
When F.G. first saw the white vehicle, its brake lights were illuminated. The car
remained stationary for approximately five seconds before slowly proceeding to a stop
sign at the intersection of Merced Avenue and Motel Drive, then it “took off fast.”
A.D.’s Recorded Statements
A.D.’s statements were generally consistent with those of F.G. regarding the
events preceding the shooting. After hearing gunfire, A.D. and some of his relatives
exited the house behind F.G. to see what had happened. Similar to F.G.’s account, A.D.
remembered running outside, looking to his right, and seeing the brake lights of a car in
the westbound lane of Merced Avenue. But whereas F.G. had indicated the vehicle was
stopped close to the body, A.D. said the car was approximately “two houses down” from
it, meaning west of the body, “[r]ight before Rose Avenue.”
The details provided by A.D. further differed from F.G.’s account in two
significant respects. First, A.D. was certain the white car had turned onto Rose Avenue,
4.
i.e., “[t]he street before the stop sign.” In other words, the vehicle did not traverse Motel
Drive. Second, A.D. was “pretty sure” it was a four-door Cadillac CTS.
The detective asked A.D. if he had shown F.G. “a picture of a car” (presumably
referring to the one F.G. described as looking “exactly the same” as the suspect vehicle),
and A.G. responded affirmatively. He then showed the detective the results of a Google
images search he had performed on his phone for the term “2006 cadillac cts.” All the
images were of four-door vehicles. The detective informed A.D. that F.G. had said he
thought it was a Chrysler. A.D. replied, “He didn’t—he didn’t really see. He was more
payin’ attention to the [dead] body.”
Security Camera Footage
A resident of the 1200 block of Merced Avenue had a video surveillance system
with a camera mounted above his garage. The home was located between Rose Avenue
and Almond Avenue (Rose to the east and Almond to the west), and the camera was
pointed toward Merced Avenue. The grainy, low-resolution video feed showed cars
passing by the house in the eastbound and westbound lanes of Merced Avenue. To a
lesser extent, the feed also showed the headlights of vehicles traveling northwest and
southeast on Motel Drive.
In reviewing the Merced Avenue video, police saw a white- or light-colored two-
door vehicle entering the neighborhood in the eastbound lane at approximately 11:22
p.m. A second white- or light-colored vehicle, which appeared to have four doors, passed
by the camera in the eastbound lane at approximately 11:26 p.m. Next, at approximately
11:29 p.m., a car resembling the previously seen two-door vehicle passed by the camera
in the westbound lane.1
1 A 24-hour screen clock showed the cars passing by at 23:21:28, 23:25:38, and 23:28:42.
However, according to the police testimony, the clock was approximately one minute slow. This
was a rough estimate, as the officer’s comparison of the video clock to his “department-issued
iPhone” was only in relation to the hour and minutes, not the hour, minutes, and seconds. For
the sake of readability, most subsequent time references concerning video evidence are stated in
a 12-hour format based on the approximations of the police witnesses. For example, video from
5.
Security cameras at nearby businesses captured video of a white two-door vehicle
traveling northwest on Motel Drive, toward State Highway 140 (also known as Yosemite
Parkway) at approximately 11:30 p.m. Earlier footage from those cameras showed a
white two-door vehicle traveling southeast on Motel Drive, toward Merced Avenue,
between approximately 11:21 and 11:22 p.m.
Collectively, the videos appeared to show that a white two-door vehicle had
entered the victim’s neighborhood from Motel Drive at 11:22 p.m. and departed from the
neighborhood via Motel Drive between 11:29 and 11:30 p.m.
Neighbors’ Statements
Witness M.A. was contacted by the police at approximately 7:00 a.m. the day after
the shooting. M.A.’s bedroom faced the victim’s backyard, and she recalled waking up
sometime “after midnight” to the sound of voices from that area. The voices were
described “as being two males and one female.” One of the males spoke in English, but
the other two conversed in Spanish, and the female had seemed “kind of mad.” M.A. did
not report hearing any gunshots. When asked about vehicles, M.A. claimed to have
previously seen a white car parked outside of the victim’s home.
Another neighbor, D.M., told the police she had seen the victim on July 14th
“drinking beers with a light-skinned male and two female friends that were at his house.”
D.M. also claimed to have heard the victim “breaking bottles in the front yard” at
approximately 10:00 p.m., i.e., 90 minutes prior to the shooting. A third neighbor, A.V.,
reported seeing the victim sometime between 5:00 p.m. and 7:00 p.m. on the day of the
a security camera at 11 West 15th Street in Merced captured footage of a moving vehicle at the
purported date and time of “07/15/2019 13:59:22.” But according to the police testimony, the
video clock was about “14 hours and 38 minutes ahead of time.” We will simply describe what
the video showed on July 14, 2019, at approximately 11:21 p.m., without further noting or
explaining the discrepancy.
6.
shooting. According to this witness, the victim had appeared drunk and angry “and was
throwing cans of beer against the wall.”2
Search of the Victim’s Home
Outside the victim’s residence, along a walkway leading to the backyard, police
found the remnants of a food order from In-N-Out Burger. These items consisted of an
upside-down French fry tray or serving boat, scattered fries, and a ketchup packet.
Several aluminum cans were strewn about the same area.
Also found outside was a laminated key tag, such as might be used by a car
dealership or body shop to keep track of multiple sets of keys. The preprinted strip of
paper had blank spaces next to the words “Year,” “Make,” “Model,” “Body” and
“Color.” Someone had scrawled “CADDY” in handwritten letters across the entire tag.
Inside the victim’s home police found photographs of a man named Stuart Nagata,
a piece of mail addressed to Nagata, and another document with his name on it. There
was a receipt from a Big 5 sporting goods store dated July 1, 2019, for the purchase of a
flashlight, golf balls, two pairs of shoes, and a $19 charge listed as “STD AMMO
BCKGRND CK FEE.” A separate document indicated the same store had initiated a
background check for someone named Karla Perez within minutes of the transaction
shown on the receipt.
Other items found inside the residence included a packaged component of a
medical neck brace. According to preliminary hearing testimony, there was also an
eviction notice indicating the victim was being evicted.
July 16, 2019
By July 16, 2019, Nagata had become a suspect in the case. He was believed to
own a 1999 Cadillac Eldorado, and the police had determined the license plate number.
2 The information in this paragraph comes from police testimony at the preliminary
hearing. Witnesses D.M. and A.V. did not testify in court. According to the lead detective on
the case, A.V. further reported that “a white Dodge four-door vehicle came to the [victim’s]
house” on the day of the shooting.
7.
It was a two-door car with white paint. While conducting a “grid search” in the nearby
town of Planada, the police located the vehicle at the residence of a man named Felix.
Undercover law enforcement agents surveilled Felix’s residence for the remainder
of the day. A maroon- or burgundy-colored Buick eventually pulled up to the house.
Defendant was seen exiting the Buick and, a few minutes later, relocating to the driver’s
seat of the Cadillac.
At approximately 8:45 p.m., defendant departed from Felix’s residence in the
Cadillac. The Buick, which was then occupied by two females, followed behind
defendant as he proceeded to State Highway 140. The undercover agents tailed both
vehicles for approximately 15 minutes before police officers in marked cars effectuated a
stop in the City of Merced.
Driving due west on State Highway 140 is the most direct path between where the
Cadillac and Buick started and ended their journey. However, the vehicles took what the
People describe as a “serpentine” route by detouring north on Plainsburg Road, west on
Bear Creek Drive, and south on Arboleda Road. The cars resumed westbound travel on
State Highway 140 at roughly the midway point between Planada and Merced .
The driver of the Buick is not identified in the record. The passenger was
Annabelle Perez (Annabelle). Annabelle is the sister of Karla Perez (Karla), i.e., the
person whose name and address were listed on a document found inside the victim’s
home.
Defendant and Annabelle were arrested during the traffic stop. Felix was arrested
and interrogated the same evening. Over the course of two interviews (the second one
was conducted two weeks later), Felix told multiple conflicting stories about Nagata and
Karla arriving at his Planada residence sometime between the afternoon of July 14, 2019,
and the afternoon of July 15, 2019. In one version of events, they had told Felix they
were at a casino on the evening of July 14, i.e., the night of the shooting.
8.
A document found inside the Cadillac showed Nagata to be its registered owner as
of July 12, 2019. His registered address was on East Alexander Avenue in the City of
Merced.
Further Investigation
In late July, detectives obtained store surveillance video of the transaction
documented on the Big 5 receipt found in the victim’s home. The video showed Nagata,
Karla, and a man named Fernando Luna shopping together on July 1, 2019. Portions of
the video showed Nagata wearing a neck brace and being physically affectionate toward
Karla. It also appeared to show him paying for the items listed on the receipt.
On July 29, 2019, Karla’s then 17-year-old daughter, D.P., was hospitalized for
alcohol intoxication and a stab wound sustained during an incident unrelated to this case.
As the police had not yet located Nagata or Karla, detectives went to the hospital to
question D.P. about the victim’s death. D.P. was still intoxicated at the time of the
interview, which lasted approximately three hours.
D.P. claimed to have killed the victim herself while under the influence of alcohol,
cocaine, and marijuana. She referred to the victim by his first name, describing him as “a
Mexican man that my mom was renting a room from.” D.P. then added, “Her and her
boyfriend were living there.” She also remarked that her mother’s boyfriend “wears a
neck brace.” Later in the interview, D.P. alleged that her mother (Karla), her aunt
(Annabelle), and someone named “Martin” had all witnessed the victim’s death. D.P.
spoke disparagingly of Martin, referencing his “big ears” and saying that she hated him.
Although D.P. claimed to have shot the victim, her story conflicted with some of
the physical evidence. The major discrepancy was in her account of the victim being shot
“in the face” while inside his home and then going “into the road asking for help.” But
she did accurately describe the interior and exterior of the victim’s residence, and she
knew the shooting “happened, like, around 11:30 [p.m.] almost 11:31.”
9.
On July 30, 2019, detectives obtained security camera footage from Casino
Merced, located at 1459 Martin Luther King Jr. Way in the City of Merced. One video
showed Nagata, Karla, Annabelle, and the victim in the casino on the night of the
shooting. Nagata was wearing a neck brace. Exterior camera footage showed the group
leaving together in defendant’s Cadillac, with Karla behind the wheel, at approximately
11:10 p.m.
On July 31, 2019, detectives obtained surveillance video from a business located
on West 15th Street, a few blocks east of Casino Merced. It showed a car resembling
Nagata’s Cadillac approaching the intersection of 15th and G Streets at approximately
11:21 p.m. on the night of the shooting. After pausing for traffic, the car turned left and
proceeded northbound on G Street.
In early August, the police obtained surveillance video from an In-N-Out Burger
located across the street from Casino Merced. It showed Nagata’s Cadillac in the drive-
thru lane on the night of the shooting from approximately 11:11 p.m. to 11:18 p.m. The
license plate was clearly visible in the footage.
The police eventually received information that Nagata was in Tulare County. On
August 10, 2019, Nagata and Karla were arrested together in the City of Lindsay.
Charges and Trial Proceedings
Nagata, Karla, Annabelle, and defendant were jointly charged by information for
their alleged involvement in the victim’s death. Nagata and Karla were accused of
premeditated murder (§§ 187, 189; count 1). Karla was also charged as an accessory
after the fact, as were defendant and Annabelle (§ 32; count 2). Nagata and Karla were
further charged with attempted unlawful possession of ammunition (§§ 664, 30305; count
3). All counts included gang enhancement allegations pleaded pursuant to a former
version of section 186.22, subdivision (b). Defendant was alleged to have suffered a
prior strike conviction for purposes of the “Three Strikes” law. (§§ 667, subds. (b)–(i),
1170.12.)
10.
In January 2020, Nagata filed a motion under section 995 to set aside the
information. Defendant joined in the motion and filed separate points and authorities
regarding count 2. On February 18, 2020, the motion was granted as to the count 3 gang
enhancement against Nagata but denied in all other respects.
Nagata also filed motions to be tried separately from his codefendants and to
bifurcate the trial of the gang enhancements. Defendant joined in the motion to bifurcate.
The trial court ordered severance of the case against Karla, but the motions were
otherwise denied.
A jury trial commenced on February 25, 2020. On March 19, 2020, the trial court
declared a mistrial due to the COVID-19 pandemic. All proceedings relevant to the
mistrial are summarized in the Discussion, post.
Retrial began in September 2020 and continued into the following month.
Renewed motions to bifurcate the gang enhancement allegations were denied. Nagata,
Annabelle, and defendant were jointly tried before a single jury.
Trial Evidence re: Counts 1 & 2
A neighbor testified to seeing the victim outside his residence at approximately
10:30 p.m. on the night of the shooting. The victim was “throwing beer bottles or cans
around” and yelling to someone inside the house “that he just wanted to go for a ride.”
He seemed “really upset.” The witness did not know to whom he was speaking, but on
prior occasions she had seen “two ladies and a gentleman that would usually let
themselves into the home.” The man wore a neck brace, and the trio had come and gone
in a white Cadillac that “looked like an Eldorado.”
Video evidence clearly showed Nagata, Karla, Annabelle, and the victim departing
from Casino Merced in Nagata’s Cadillac on the night of the shooting. The casino
footage was edited to focus on the activity between 11:06 p.m. and 11:11 p.m. The
evidence did not reveal when the group arrived at the casino, but a detective testified to
Karla’s cell phone data showing her phone was “in the area of Casino Merced” from
11.
11:00 p.m. to 11:19 p.m. The same witness testified that Annabelle’s cell phone data
showed her phone was “in the area of Casino Merced” from 9:53 p.m. to 11:30 p.m.
The In-N-Out Burger videos showed the Cadillac in the drive-thru lane from
approximately 11:11 p.m. to 11:18 p.m. According to the People’s theory, the Cadillac
then drove on West 15th Street, passing a security camera at 11:21 p.m. as it approached
the G Street intersection. It proceeded northbound on G, then east on 16th Street, and
eventually made its way to Motel Drive. Between 11:21 and 11:22 p.m., the Cadillac
traveled southeast on Motel Drive and entered the victim’s neighborhood in the
eastbound lane of Merced Avenue.
The People’s trial exhibit No. 114 was a video consisting of seven minutes and 40
seconds of footage captured by the security camera on the 1200 block of Merced Avenue.
It depicted the activity there from approximately 11:22 p.m. until just prior to 11:30 p.m.
(See fn. 1, ante.) The exhibit was a recording of the recording. The detective who
authenticated it explained there was a problem converting the video files from the
homeowner’s security system to a viewable format. He improvised a solution: “I …
used my department-issued iPod with the Axon Video Capture to actually record the
monitor while I played the video [on the homeowner’s equipment] so I could actually
capture what was on screen.” The detective stopped recording when the video clock hit
23:28:47, which he explained was approximately one minute behind the actual time. 3
Based on the Merced Avenue video and the In-N-Out Burger items found outside
the victim’s residence, the People argued Nagata, Karla, Annabelle, and the victim
arrived back at the victim’s home at approximately 11:22 p.m. The People theorized the
victim had said or done something at the casino that made Nagata feel disrespected,
3 The defense criticized the detective for failing to record the “three minutes” preceding
the first 911 call. The three-minute estimate assumed the video clock was not approximately one
minute slow. The detective conceded it was possible other cars had driven past the camera
during the relevant time period. He also testified to having attempted to review the original
video again in preparation for the preliminary hearing, whereupon he discovered that it had been
erased.
12.
which led to an argument at the house. Nagata was alleged to have shot the victim to
death, but no theory was offered as to why the shooting occurred roughly two blocks
away from the victim’s home.
Witness M.A. was called to testify about waking up to the sound of people arguing
on the night of the shooting. She was unsure of the time but again estimated it was “after
midnight.” She did not recall hearing any gunshots.
F.G. and A.D. both testified to having little memory of the incident. Their
recorded interviews were played for the jury, as was F.G.’s 911 call. A police officer
who had spoken to A.D. at the crime scene testified that he reported hearing someone
say, prior to the shooting, “‘Why are you mad?’” During the same conversation, A.D.
claimed to have seen a 2005 or 2006 Cadillac CTS turn right onto Rose Avenue.
The 911 caller who lived on Rose Avenue, D.W., testified he was on his front
porch when he heard the gunshots. He called 911 from inside his home approximately
one minute later. The location of his garage obstructed his view such that he would not
have seen a vehicle approaching from Merced Avenue before going into the house.
There was also a period of approximately 45 to 60 seconds during which he would not
have seen any vehicles that might have passed by his house. After calling 911 and
returning to his porch, D.W. saw a police officer driving south on Rose Avenue toward
Merced Avenue. He flagged down the officer and told him about the gunshots.
The People’s theory was that Karla served as the getaway driver. Karla, Nagata,
and Annabelle were alleged to have fled the scene in Nagata’s Cadillac, passing multiple
security cameras while heading northwest on Motel Drive at 11:30 p.m. However, the
People’s cell phone mapping expert testified the data for Karla’s and Annabelle’s phones
showed both devices were one or two miles southwest of the crime scene at 11:30 p.m.,
“in the area of East Childs Avenue and Brantley Street.” Upon further questioning, the
witness explained the data was classified as having “a low confidence level,” meaning the
phones were more than 300 meters away from that location.
13.
Karla’s daughter, D.P., testified pursuant to a grant of immunity after invoking her
constitutional right against self-incrimination. She denied ever meeting the victim or
discussing his murder with Karla or Nagata. D.P. also denied remembering what she had
said during her hospital interview. A recording of the interview was played for the jury.
Through cross-examination of the lead detective, defense counsel suggested D.P.
may have been the Hispanic female that F.G. and A.D. reported seeing prior to the
shooting. The detective admitted to having considered this possibility, saying it was why
he had asked D.P. what she wore that evening. During her interview, D.P. claimed to
have been wearing pants and a black sweater. F.G. had described a person wearing shorts
and a white tank top. The detective also testified that D.P.’s phone records “don’t put her
in that area” on July 14, 2019.4
Felix testified about the Cadillac being found at his home in Planada on Tuesd ay,
July 16, 2019. Although he struggled with dates and times, the testimony indicated Karla
and Nagata had shown up at his house on the night of the shooting (Sunday) or in the
early hours of July 15, 2019 (Monday). In his words, “[T]hey just wanted a place to
rest—to rest their head. And I said that they could stay in my room, as I was in my
mom’s room … with another friend of mine. And I was—I was busy, that I didn’t have
time to talk to them, you know, but that they could spend the night. [¶] They stayed the
night. That was it.” Felix admitted he was using methamphetamine on the dates in
question.
Felix’s testimony seemed to indicate Karla and Nagata had arrived alone, i.e.,
without Annabelle. There was no mention of Annabelle being there until Monday
afternoon. Annabelle’s cell phone data reportedly showed her device was in Planada at
5:19 a.m. Monday morning. Felix referred to a lunch conversation from that day during
which plans were made for him, Nagata, Karla, and Annabelle to go to a casino. But then
4 The testimony regarding D.P.’s phone records was hearsay, but it was elicited by Nagata
without any objections from the other parties.
14.
defendant “happened to show up,” and Felix “didn’t want to go anymore because [he] did
not want to be, like, a fifth wheel.”5
For reasons not explained, Felix lent his car to Annabelle and defendant. The
Cadillac was left at his house. Felix admitted to placing some type of covering over the
Cadillac at Karla’s request.
Karla and Nagata did not return to Felix’s home. Felix did not see Annabelle or
defendant again until Tuesday, when they finally brought his vehicle back and took
possession of the Cadillac. Annabelle’s cell phone data showed her device had traveled
south on Monday night, registering with cell towers in Madera at 10:44 p.m. and in
Tulare County at 11:59 p.m.
The People introduced an aerial map with a line depicting the route traveled by
defendant and Annabelle after they left Felix’s house on Tuesday, immediately prior to
their arrest. The prosecutor argued defendant had intended to “dump” the Cadillac at an
unknown location and would have done so but for the intervention of law enforcement.
The alleged role of the Buick, occupied by Annabelle and the unidentified driver, was to
provide transportation for defendant after he abandoned the Cadillac.
Trial Evidence re: Gang Allegations
Nagata was alleged to have killed the victim after being publicly disrespected by
him at Casino Merced. The preliminary facts of a public dispute and Nagata feeling
disrespected were allegedly inferable from the Casino Merced videos. The victim had no
known involvement with gangs, but Nagata was shown to be “a high-ranking Nuestra
Familia criminal street gang member.”
5 Felix’s testimony about not wanting to be a “fifth wheel” was the only evidence
suggestive of a romantic relationship between defendant and Annabelle. Th e prosecutor’s
opening statement included an allegation that defendant was her “significant other,” and parts of
the record indicate this was in fact true, but the nature of their relationship was not otherwise
mentioned or proven at trial.
15.
According to expert testimony, Nuestra Familia or “NF” is a criminal street gang
with multiple levels of membership. Affiliates are commonly known as Northerners or
Norteños, but those terms technically refer to a certain status or membership level.
Nuestra Familia is both the name of the organization and the highest level of membership
therein. The next level down is variously known as the “Northern Structure,” “Nuestra
Raza,” and “Norteños Soldados” (abbreviated as “N-Sols”). Below that are the Norteños.
As explained at trial, “Norteños are people that still are part of the cause or part of the
Nuestra Familia, but they’re lower level and haven’t been selected or they haven’t
committed to being investigated [for advancement in the hierarchy].” Norteños may
subdivide into smaller groups (“subsets”) outside of the prison system, but “eventually it
all leads up to Nuestra Familia.”
Nuestra Familia’s primary activities reportedly include murder, carjacking,
witness intimidation, “major narcotic trafficking,” and “[a]nything to do with violence.”
Murder, if committed against a gang rival, benefits NF by helping it maintain a reputation
for violence and instilling fear and intimidation in others. The prosecution asked an
expert witness if murdering someone not affiliated with gangs is also beneficial to NF.
The expert replied, “Yes. If there was a reason for the homicide that they can articulate,
then yes, it would benefit the gang as well.” He then gave the example of an NF member
reporting to his superiors that a victim “‘totally disrespected me or disrespected the
gang,’” in which case “that murder would be authorized.” In other testimony, the expert
noted the importance of respect in NF gang culture.
Two gang experts opined Nagata had attained the status of “Carnal” (“Brother”)
and was thus a “full-fledged member of the Nuestra Familia.” According to one expert,
“the NF has three categories of Carnals …[:] Cat-1, Cat-2, Cat-3.” He opined Nagata
was at least a “Cat-2 NF member,” meaning he was involved in the overall management
of the gang. The expert’s opinions regarding Nagata’s NF status were based on a
recorded telephone conversation and photographs of him in the company of “Cat-3 NF
16.
members.”6 The phone conversation was played for the jurors and explained to them
through the testimony of a special agent with the FBI.
The phone call had been intercepted during a wiretapping operation conducted in
November 2017. It was a conversation between Nagata and a higher ranking NF
member. They discussed large-scale trafficking of methamphetamine and heroin,
including a purchase that would require “about a 100 G’s.” The conversation shifted to
the topic of postponing or cancelling previously made plans to kill two women who had
stolen money from the organization. Also discussed was an NF investigation of a lower
level member for possible removal from the gang. It was said they would “hit him” if the
findings were negative, which the expert testified meant some degree of physical assault
and “could mean death.”
As further evidence of his gang membership, the People introduced photographs
of Nagata’s tattoos. The only tattoo directly related to NF was of the number 14, inked in
large Roman numerals across his stomach and upper abdomen. According to expert
testimony, references to this number are “predominant throughout the entire
organization” because the 14th letter of the alphabet is N. The expert explained,
“Anything that you can kind of put the, you know, emphasis on the N or the F could be
used to represent the Nuestra Familia.”
A tattoo of the word “murder” across Nagata’s left forearm was deemed relevant
because murder is one of Nuestra Familia’s primary activities. This and several other
tattoos were held admissible for the dual purpose of proving the gang enhancement
allegations and showing “motive and identity of the shooter.” Nagata’s arguments for
exclusion pursuant to Evidence Code section 352 were rejected .
6 The People’s briefing erroneously states the photographs were found inside the victim’s
home. The photos were located during a probation search at a different address in April 2018 ,
nearly 15 months prior to the shooting. The jury was not told when or how photographs were
obtained.
17.
The prosecutor repeatedly displayed and referenced a tattoo on Nagata’s chest of
someone holding a gun to the back of a man’s head, just behind the right ear. When the
gang expert was asked about it, he noted Nagata also had tattoos of dollar signs and the
word “money,” opining they were collectively “indicative of gang behavior” but did not
specifically pertain to Nuestra Familia. During closing argument, the prosecutor asked
the jury to “remember the tattoo on … Nagata’s chest that depicts someone being shot in
the back of the head, the exact same manner in which [the victim] was killed.”
The jury also saw a tattoo on Nagata’s right hand that said,“get MAD,” and
another on his left hand that said “go BAD.” A handgun was tattooed above the words
on his left hand. One of the gang experts interpreted this as “indicating that when he gets
mad, it’ll go bad. So there’s a propensity for violence if things go wrong.” The trial
court sustained an objection to this testimony and ordered it stricken, but the prosecutor
was allowed to rephrase the question as follows: “So you’re saying someone with a
tattoo, based on your knowledge of criminal street gangs, like this would be signifying
that if they get mad, they go bad?” The witness answered, “Right. That—that’s what
that would indicate to me, that that person would.”
Photographs of Karla’s tattoos were admitted to show her allegiance to NF. The
relevant images were described as “one dot and then the four dots.” A gang expert
explained, “Typically they’re on separate hands, but those are separated enough that it’s
pretty clear it’s one dot/four dots for 14 to represent the Nuestra Familia.” There was no
gang evidence pertaining to Annabelle apart from her association with Karla, Nagata, and
defendant.
Defendant’s gang membership was proven by evidence of custodial statements
made in May 2019, two months prior to the victim’s death. A police officer testified he
“admitted to being an active Norteño gang member and also stated that he wanted to
house in … an active Norteño block at the Merced County Jail.” The jury saw a redacted
portion of defendant’s recorded custodial interrogation following his arrest in this case,
18.
wherein he made implied admissions of active gang membership. The recording
included references to a prior arrest in connection with a shooting. Another officer
testified to personal knowledge of defendant’s affiliation with a Norteño subset called the
Merced Ghetto Boys. The same witness testified defendant had previously been arrested
for possession of a firearm.
Photographs of defendant’s tattoos were admitted into evidence. One said
“Merced,” another was described as “the Aztec numeral 12,” and a third tattoo depicted
“someone pointing a gun.” A gang expert testified the Aztec numeral was symbolic of
the Merced Ghetto Boys, which has some type of connection to 12th Street in Merced.
To establish a “pattern of criminal gang activity” (§ 186.22, former subd. (e)), the
People relied on the prior convictions of two gang members, one of whom was Fernando
Luna. The jury learned this was the same person seen on the Big 5 video shopping with
Nagata and Karla on July 1, 2019. Luna was arrested on July 13, 2019, one day prior to
the victim’s murder, and later convicted of unlawful possession of a firearm. It was
further revealed that defendant was with Luna at the time of Luna’s arrest. The second
predicate offender was Sergio Uriostegui, who had also been convicted of unlawful
possession of a firearm.
Verdicts and Sentencing
The jury began deliberating on Thursday, October 8, 2020, at approximately 3:33
p.m. It recessed for the day at 4:44 p.m. Deliberations resumed on Friday, lasting from
10:00 a.m. to 4:00 p.m. There was an afternoon request for a readback of Felix’s
testimony and that of the neighbor who testified to seeing the victim outside of his house
on the night of the shooting. At 3:48 p.m., the jury submitted the following question: “If
… Nagata is not found guilty can Anabelle … and [defendant] be found guilty of
accessory after the fact?”7
7 Counsel for defendant and Annabelle had both stated, during closing argument, that a
guilty verdict against Nagata on count 1 was a prerequisite to finding either of them guilty as
accessories after the fact. The trial court responded to the jury’s question by referring it to
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The jury returned from a three-day weekend on Tuesday, October 13, 2020.
Deliberations lasted from approximately 10:24 a.m. to 4:07 p.m. Late that afternoon, a
request was submitted for “pictures of [defendant]’s tattoos.” On Wednesday,
October 14, 2020, the jury deliberated for approximately 4.5 hours before returning its
verdicts.
Nagata was found guilty of first degree murder, but the gang allegations against
him were rejected as not true. Defendant and Annabelle were both found guilty of being
accessories after the fact. As to them, the gang enhancement allegations were found true.
In a bifurcated proceeding, defendant admitted the truth of the prior strike allegation.
Defendant was sentenced to an aggregate prison term of seven years. The
sentence was calculated using the middle term of two years for count 2, doubled because
of the prior strike, plus three years for the gang enhancement.
DISCUSSION
I. Double Jeopardy Claim
A. Background
On February 25, 2020, jury selection began in defendant’s first trial. Further
proceedings were held on February 26, March 5–6, and March 10–11, during which time
voir dire continued and motions in limine were heard. On March 12, amid further voir
dire, the prosecutor made a record of her concerns “regarding the Coronavirus” and “the
growing pandemic.” The trial court responded with these remarks:
“I share your concerns, and I know they’re canceling all the conferences
judges are going to even, like, retired judges conference because of
everyone’s concern about traveling and flying. [¶] I would note for the
record we were up in the jury room with 165 jurors in very cramped
quarters, certainly not a social distance apart, so I agree, but until the
presiding judge would tell me not to go forward, at this point I’d have to go
CALCRIM No. 440. The pattern instruction explained the elements of section 32 in terms of aid
provided to “the perpetrator,” which arguably implied defendant could still be liable as an
accessory even if someone other than Nagata (e.g., Karla) had killed the victim.
20.
forward, but I’ll follow up with him again later this afternoon, and let him
know that the DA’s office had spoken to the Judicial Council.”
Nagata stated for the record his general opposition to anything that would violate his
“constitutional rights to a speedy trial.”
On March 13, 2020, the trial court advised the parties “that the presiding judge did
say that no other courts are suspending any proceedings so far in California.” The court
also noted it had conducted research and found cases, e.g., People v. Tucker (2011) 196
Cal.App.4th 1313, holding that “public health concerns do trump the right to a speedy
trial.” Nevertheless, it did not perceive good cause to order a trial continuance. Later in
the day, a panel of 12 jurors and six alternates were sworn.
Trial resumed on March 17, 2020, with further hearings on motions in limine. The
trial court opened the proceedings with these remarks:
“I wanted to just let all parties know, um, I’ve been thinking more
and more about the current health situation, and I did want to disclose
yesterday I was on a conference call with [multiple people including the
presiding judge, the district attorney and the public defender].… [¶] [And]
there was a conversation from [the district attorney] regarding not the
details of this case but just the DA’s office’s concern about the danger to
the jurors and so on in having this trial, so I just want to disclose that.…
“But I have been thinking about it further just because of all of the
changes since Friday in the orders both nationally, state and locally, so I’ll
give you all a chance to respond, but I am thinking of declaring a mistrial
on the grounds there are extraordinary circumstances that are outside the
control of the Court that would be endangering the health of the public in
this case. [¶] I would note that six Bay Area counties have stay-at-home
orders at this time that people are to isolate themselves. There have been
several courts, including Los Angeles and Contra Costa County, that have
closed their courts and declared mistrials in even ongoing criminal cases.
[¶] As far as I know, there’s still no virus in Merced County, but only 18—
according to the paper, 18 people have been tested, and they don’t even
have the results back from all of those.
“There is a national emergency. There’s been a state emergency
declared. There’s been a county emergency declared. There’s been a city
emergency declared. This is a pandemic by the World Health
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Organization.[8] The Federal Government is recommending no groups over
ten—no public gatherings of over ten people, um, and I would note in this
case, um, we can’t practice social distancing for the jurors in this case.
“It was suggested, [‘]Oh, you can have jurors sit outside the jury box
and create the space,[’] but it’s a very small courtroom. Um, we have 14
regular jury seats. In this case I have six alternates. The well is taken up
with the table for counsel. There’s a small area in the well with the court
reporter. If I put jurors in the audience and spaced them out, that’s quite a
distance from the witness stand as far as judging the witnesses and the
credibility of the witnesses.
“I don’t think that would be a good idea, so just given all of these
circumstances, we do have two jurors that are over 65, and then I don’t
know if the other jurors, who they have at home. It’s just things have
changed so much since last week regarding the situation, so that’s why I’m
considering it, but I’ll give you some time until 1:30 if you want to address
it further at that time.”
The prosecutor responded with statements concerning the availability of two
witnesses needed to authenticate the In-N-Out Burger videos. Their employer had
reportedly sent a letter “saying they are not allowing their employees to travel.” The trial
court then made additional remarks:
“Okay. So I realize at this point jeopardy is attached, but under
People v. Curry in extreme circumstances outside of the Court’s control—
and that’s at 2 Cal.3d 707, a 1970 case—that does constitute legal
necessity. [¶] So I don’t know. I’m just strongly considering it at this
point. [¶] … [¶] … It’s Curry v. Superior Court, 1970 case at 2 Cal.3d
707. It doesn’t address this issue. It just talks about the fact that if it’s
extreme circumstances or physical things outside the Court’s control, that
could qualify as legal necessity; and, to me, the situation is something
outside my control, um, and you’re going to have 18 people coming risking
their health and maybe their lives.
“So that’s—I’m very, very concerned about that. I was concerned
last week but not as much since we’ve had all of these orders of people
having to stay in their homes and, you know, don’t go to restaurants or
bars, and, you know, no groups over certain numbers. They keep getting
8 “On March 11, [2020,] the World Health Organization declared COVID-19 a
pandemic.” (Bullock v. Superior Court (2020) 51 Cal.App.5th 134, 141.)
22.
smaller. They start out not over 500, then not over 200, then not over 50,
and now it’s not over 10.”
Later in the day, the prosecutor reported that a witness whose foundational
testimony was needed in relation to the Merced Avenue video was “too high risk to come
to court.” When the afternoon session began, the trial court said, “[A]t this point I would
not be declaring a mistrial because I think it would be double jeopardy. So I’m still very,
very concerned, and I think it’s foolish, but we don’t have the orders, so …” (Original
ellipsis.) The prosecutor then requested a continuance to April 6, 2020, due to the
unavailability of witnesses. The trial court replied, “I know we can continue it for
witnesses to be present, but I don’t think we can go out a long time. That’s defeating the
whole purpose of a speedy trial. [¶] I mean, I would want some briefing on, you know,
what—if you’re expecting it would be reasonably available, then we would have to talk
to the jurors as well, who’s going to be available or not if we have to extend the ending
date of the trial.”
During a subsequent colloquy, Nagata said, “I would just object, too, to any form
of mistrial, Your Honor …. [¶] … [¶] The jury is sworn in. We’re ready to go. Both
[sides] agreed that they’re ready to go, and at this point, for the sake of a legal argument,
if the Court was to entertain the idea of a mistrial through my objections—which you
didn’t say you were, but for the sake of legal argument—I would move the Court to rule
for an acquittal barring the case from retrial under double jeopardy.” Defendant’s trial
counsel joined in Nagata’s arguments.
The jury was brought into the courtroom, and the judge asked if any of them were
“65 or older.” Two jurors who raised their hands were told they could be excused in light
of “the advisory that you should stay home.” Both declined the offer. Next, the trial
court said, “Okay. And does anyone have any issues at all regarding that? Okay. I don’t
see any hands. I just wanted to double-check because things are moving so fast with
different news coming out.” The proceedings were adjourned for the day to allow the
23.
prosecutor time to determine witnesses’ availability and potential grounds for a
continuance.
On March 18, 2020, the trial court denied the People’s request for a continuance
due to their inability to estimate when the status of certain unavailable witnesses might
change. The judge explained:
“[A]t this point I just don’t see—I think double jeopardy would
attach. I don’t see where I could just continue the case without a definite
date. It is an abuse of discretion, but all of the cases that I’ve looked at,
they have some certain date that they’re going to continue, not to just
indefinitely delay it. That’s clearly violating the defendants’ speedy trial
rights, and that’s where I have to balance, and all of the counties where I
looked up the delay that has been granted by the Chief Justice, those delays
were all trials that hadn’t started yet.
“As far as I know, every trial that’s in progress is going forward. I
know in Fresno that’s the case. I had heard these rumors of some mistrials
were declared, but we had people do research, and we could find no basis
or that there’s any truth, unless the People have something.”
The trial moved forward with opening statements and testimony from nine prosecution
witnesses.
On March 19, 2020, four additional witnesses testified during the morning session.
At the beginning of the afternoon session, the following exchange took place between the
trial court and the prosecutor:
“[THE COURT:] [Y]ou have some information regarding COVID-
19?
“[PROSECUTOR ]: Yes, Your Honor. Over the lunch break I
contacted Officer Opinski to confirm his attendance in this trial tomorrow
because he is a witness. At that time he informed me that he has been sick
with a fever and is on his way to the ER to get tested for COVID-19
because another officer, Officer Jose Barajas, that he was in contact with,
has tested positive for COVID-19.
“Officer Opinski was in the Detectives Division on Monday and was
with Detective Adrian and Detective Haygood. Detective Haygood has
been in this courtroom throughout the proceedings. Detective Adrian
24.
testified today. I do not know to the extent that Officer Prevostini was
exposed to anything.
“The Detectives Division was sent home. I told Detective Haygood
and Detective Adrian not to return to the courtroom based on this—
“THE COURT: Okay.
“[PROSECUTOR ]: —and so I do not think it’s safe. I think that the
jurors need to be informed that they’ve been possibly exposed to this, um—
“THE COURT: No, I agree. I think at this point I would need to
declare a mistrial because we’ve all been exposed. I’ve been exposed. I’m
going to have to contact my healthcare provider to see if I should go into
some type of self-isolation; and, as I mentioned earlier, I do have a husband
who I just had lunch with who’s 70 with underlying conditions, so it causes
me great concern.
“This was—I was fearful of this all along, but it’s just so uncertain
what my obligation was under the law.
“[PROSECUTOR ]: And I was fearful, too. I brought it up every day.
I brought it to the Court’s attention, and the presiding judge did not take
this seriously, and this is the situation we’re in now where people’s health
is endangered because of his decision.
“THE COURT: So—well, I don’t want to point fingers, but I can
understand your frustration. [¶] No, and I agree we’ll have to let the jurors
know. I don’t want to panic them, but I don’t want them coming into the
courtroom—”
Nagata responded as follows:
“I mean, just there’s no medical records. The way this case has been
going, I mean, it’s—to me, it’s obviously in favor of us right now. I just
find it strange that all of a sudden that COVID-19 pops up. There’s no
medical records that have been presented. We’re just going off of [the
prosecutor’s] word, so I object to any kind of mistrial.
“We have a jury sworn. I want my trial heard before this jury that I
already started with, and I move the Court that if you are going to rule a
mistrial, that since I am objecting, that you rule this an acquittal and bar it
from retrial because it would be double jeopardy and I submit on that.”
Counsel for defendant and Annabelle joined in Nagata’s arguments. The trial
court then made its ruling:
25.
“Well, at this time, given the circumstances, I am going to declare a
mistrial. I believe that this is a case of extreme emergency. The Court is
no longer available to hear this case at this point, um, and I don’t want to
expose anyone else to anything further.
“I thought of just continuing it, but even for a couple of weeks, who
knows, and that’s not fair for the jurors, I mean, so at this point, um, I’m
going to declare it a mistrial. [¶] I’m not declaring it an acquittal….”
In April 2020, Nagata moved to dismiss the action based on double jeopardy
principles. The motion was heard on May 14, 2020, at which time counsel for defendant
and Annabelle orally joined in the motion on behalf of their clients. During the hearing,
the prosecutor represented that Officer Opinski, i.e., the witness who was reportedly “sick
with a fever and … on his way to the ER to get tested for COVID-19” when the mistrial
was declared “was, in fact, tested” and the results came back negative.
The motion to dismiss was denied. In a lengthy oral ruling, the trial court noted
the mistrial was declared two weeks after the Governor “had declared a state of
emergency in California” and six days after “[President] Trump had also declared a
national state of emergency.” The judge emphasized “the basis for the Court declaring
the mistrial was the state of emergency. It had nothing to do with whether witnesses
were available or not, whether the DA would have been available or not.” The trial court
also cited its prior statements regarding the layout of the courtroom and inability to
comply with social distancing guidelines.
The judge continued:
“So I just want to make it clear the basis for me at that point
declaring the mistrial is concern for the health and safety of everyone. It
was not based upon whether or not Officer Opinski did or did not have
COVID-19. I did accept [the prosecutor’s] representation that Officer
Barajas had tested positive. He was a member of Merced Police
Department, who was the investigating agency on this case and who had
numerous witness officers that were going to testify. [¶] The Merced
Police Department is housed in a small building next to courthouse, so I
was concerned with contact between the officers.
26.
“We did have investigating Officer Haygood present throughout jury
selection and in the courtroom. During jury selection we were basically
packed like sardines in the jury assembly room and unable to avoid any
contamination, but we kept going. We kept trying to keep going.
“Then on March 19th is when we received the information that there
actually had been a positive test of someone here in Merced County—not
only someone here in Merced County, but someone who directly works
with witnesses in this trial. [¶] So it’s on that basis that I felt it was a legal
necessity that it was physical causes outside of the Court’s control to go
forward at this time.
“It could be the jurors would have been willing to go forward, but at
that point I was not willing to have them come in the courtroom. That
would not have made a difference to me. [¶] I was—I mean, you can just
consider you have 17 jurors from all over the parts of the county. Each day
one of those jurors are going back to their loved ones. The risk of exposure
and causing the case to take off in this county with our limited medical
resources was a real concern for the Court.
“I know [Nagata] said not one person in court had concerns, but the
Court—I certainly had expressed concerns several times mainly because I
do have relatives who are older, my husband and my mother, that I was
concerned about exposing to the virus, and I was concerned for the staff of
the court, as I said, and all of the parties. I was concerned about the
defendants being exposed to the virus and taking it back to the jail. I mean,
you can imagine in that environment the horrible situation that was
possible.
“So that was the basis for me declaring the mistrial, and I don’t think
it was an abuse of my discretion. I think these are very unusual emergency
situations. Um, it was with the duty of the Court to protect the health and
safety of the public, and that was the basis of my declaring the mistrial.
“I did consider continuing the trial, but at that point it was so
uncertain what was going to take place, and I was concerned if it would be
continued with the jurors even remembering the testimony. I didn’t see the
practicality of continuing it. [¶] I didn’t think further investigation was
necessary because, again, it wasn’t based upon Officer Opinski; it was
based on the total situation that was occurring from day to day. So that was
my reason for declaring the mistrial.”
27.
B. Appealability
“[S]ections 1016 and 1017 include, among those defenses that should be
specifically pleaded, a claim of ‘once in jeopardy.’” (People v. Batts (2003) 30 Cal.4th
660, 676.) “Courts long have observed, however, that ‘a claim of double jeopardy is
most appropriately raised by way of a pretrial motion to dismiss the accusatory pleading
or portion thereof allegedly barred by double jeopardy.’ [¶] … [A]lthough an affirmative
plea of ‘once in jeopardy’ apparently was not entered, defendants’ motions to dismiss,
which were made on double jeopardy grounds and fully litigated by the parties in the trial
court, nevertheless ‘adequately covered this procedural requirement’ and preserved the
issue for review.” (Ibid.)
C. Law and Analysis
“Article I, section 13, of the California Constitution declares that ‘No person shall
be twice put in jeopardy for the same offense.…’ Implementing this constitutional
command, the decisions of [the California Supreme Court] have settled the now familiar
rules that (1) jeopardy attaches when a defendant is placed on trial in a court of
competent jurisdiction, on a valid accusatory pleading, before a jury duly impaneled and
sworn, and (2) a discharge of that jury without a verdict is equivalent in law to an
acquittal and bars a retrial, unless the defendant consented thereto or legal necessity
required it.” (Curry v. Superior Court (1970) 2 Cal.3d 707, 712.)
Our state Supreme Court has said the right not to be placed twice in jeopardy “is
as sacred as the right to trial by jury.” (Larios v. Superior Court (1979) 24 Cal.3d 324,
329.) “California provides its citizens a greater degree of protection against double
jeopardy than that provided by federal law by placing limitations on what constitutes
‘legal necessity.’” (Carrillo v. Superior Court (2006) 145 Cal.App.4th 1511, 1525.) In
general, so long as the jury is “not actually precluded from rendering a verdict,” the
defendant must consent to a declared mistrial in order to be retried on the same charges.
(Larios, at p. 330, citing Curry v. Superior Court, supra, 2 Cal.3d at p. 717; see People v.
28.
Brandon (1995) 40 Cal.App.4th 1172, 1175 [citing Curry for proposition that legal
necessity exists “where physical causes beyond the control of the court … make it
impossible to continue”].)
Legal necessity typically arises “(1) from an inability of the jury to agree or (2)
from physical causes beyond the control of the court, such as death, illness, or absence of
a judge or juror.” (Larios v. Superior Court, supra, 24 Cal.3d at p. 330, citing Curry v.
Superior Court, supra, 2 Cal.3d at pp. 713–714.) The examples in the latter category are
not exhaustive. (See Carrillo v. Superior Court, supra, 145 Cal.App.4th at pp. 1526–
1527 [additional examples]; In re Carlos V. (1997) 57 Cal.App.4th 522, 527 [“given the
factual context of Curry, we do not read the court’s list of types of ‘legal necessity’ to be
exclusive”]; see also People v. Saunders (1993) 5 Cal.4th 580, 593 [“The standards for
determining when a double jeopardy violation has occurred are not to be applied
mechanically”].)
Trial courts are “vested with considerable discretion in ruling on mistrial
motions.” (People v. Haskett (1982) 30 Cal.3d 841, 854; accord, People v. Schultz
(2020) 10 Cal.5th 623, 673.) As noted in the People’s briefing, at least one appellate
court has suggested the de novo standard may apply to review of a sua sponte declaration
of a mistrial based on legal necessity. (See Carrillo v. Superior Court, supra, 145
Cal.App.4th at p. 1523 [“Although orders denying mistrials are reviewed for abuse of
discretion, it does not appear our Supreme Court has applied this standard to orders
granting mistrials”].) We believe the ruling at issue is entitled to deference under the
abuse of discretion standard. There may be instances where a finding of legal necessity is
erroneous as a matter of law, but legal error can occur in all types of discretionary
decisions.9 (See People v. Superior Court (Humberto S.) (2008) 43 Cal.4th 737, 746
9 By way of example, the judge below declared herself “no longer available to hear this
case” at the time of the mistrial. Had this been the only reason for declaring a mistrial, and the
evidence confirmed other judges were available to conduct the trial, the finding of necessity
would have been erroneous as a matter of law given the fact section 1053 “permits the midtrial
substitution of judges in criminal cases.” (People v. Halvorsen (2007) 42 Cal.4th 379, 427; cf.
29.
[“[W]hen a trial court’s decision rests on an error of law, that decision is an abuse of
discretion”]; People v. Cooper (2007) 148 Cal.App.4th 731, 742 [“A ruling resting on a
demonstrable error of law constitutes an abuse of discretion”].)
The statement in Carrillo that “it does not appear our Supreme Court has applied
[the abuse of discretion] standard to orders granting mistrials” overlooks the common
scenario of juror deadlock. (Carrillo v. Superior Court, supra, 145 Cal.App.4th at p.
1523.) “Jury deadlock constitutes necessity for declaration of a mistrial and permits
retrial of the defendant.” (People v. Halvorsen, supra, 42 Cal.4th at p. 425.) “The
determination whether there is a reasonable probability of agreement rests in the sound
discretion of the trial court, based on consideration of all the factors before it.” (Id. at p.
426, citing People v. Rojas (1975) 15 Cal.3d 540, 546.)
In our view, the question of whether a public health emergency necessitates a
mistrial requires, as in other mistrial contexts, “‘a nuanced, fact-based analysis,’ which is
best performed by the trial court.” (People v. Dunn (2012) 205 Cal.App.4th 1086, 1094,
quoting People v. Chatman (2006) 38 Cal.4th 344, 370.) Based on their arguments, the
parties appear to agree. Defendant submits that the trial court’s ruling, “while well
intended, was impulsive and an abuse of its discretion.”
Turning to the merits of the claim, we observe the trial court’s finding of an
emergency situation is uncontroverted. “On March 4, 2020, Governor Gavin Newsom
declared a state of emergency as a result of the threat of COVID-19, and on March 19,
2020 [the day the trial court declared the mistrial], [he] issued an executive order
directing all Californians not providing essential services to stay home. [Citation.] The
order did not close the courts, which provide an essential service.” (E.P. v. Superior
Court (2020) 59 Cal.App.5th 52, 54–55, fn. omitted.)
T.P.B. v. Superior Court (1977) 66 Cal.App.3d 881, 883, 886 [mistrial legally necessary where
juvenile court judge sitting as trier of fact “disqualified himself on the ground that he could not
fairly and impartially consider the evidence”].)
30.
“On March 23, 2020, Chief Justice Tani Cantil-Sakauye, in her capacity as
Chairperson of the Judicial Council, issued an emergency statewide order suspending all
jury trials and continuing them for a period of 60 days.” (Hernandez-Valenzuela v.
Superior Court (2022) 75 Cal.App.5th 1108, 1114.) “In so ordering, the Chief Justice
explained: ‘The [Centers for Disease Control and Prevention], the California Department
of Public Health, and local county health departments have recommended increasingly
stringent social distancing measures of at least six feet between people, and encouraged
vulnerable individuals to avoid public spaces. [¶] Courts cannot comply with these
health restrictions and continue to operate as they have in the past. Court proceedings
require gatherings of court staff, litigants, attorneys, witnesses, and juries, well in excess
of the numbers allowed for gathering under current executive and health orders. Many
court facilities in California are ill-equipped to effectively allow the social distancing and
other public health requirements required to protect people involved in court proceedings
and prevent the further spread of COVID-19.’” (Ibid.)
With the benefit of hindsight, defendant argues the trial court should have ordered
a continuance instead of a mistrial. The mistrial was declared on a Thursday, and, if only
the judge had adjourned the proceedings until the following Monday, the Chief Justice’s
60-day order might have resolved the issues that led the trial court to rule as it did. The
trial would have been paused for three months by virtue of “a third statewide emergency
order” issued April 29, 2020, which extended the 60-day suspension/continuance by an
additional 30 days. (Hernandez-Valenzuela v. Superior Court, supra, 75 Cal.App.5th at
p. 1115.) However, appellate courts determine the correctness of a ruling “‘as of the time
of its rendition, upon a record of matters which were before the trial court for its
consideration.’” (In re Zeth S. (2003) 31 Cal.4th 396, 405; accord, People v. Welch
(1999) 20 Cal.4th 701, 739.) The trial court had no way of knowing if or when the Chief
Justice would take such unprecedented measures.
31.
Defendant cites Stanley v. Superior Court (2020) 50 Cal.App.5th 164 for the
proposition that “[h]ealth quarantines to prevent the spread of infectious diseases have
long been recognized as good cause for continuing a trial date.” (Id. at p. 169.) The key
phrase is “continuing a trial date.” The Stanley case and others cited in defendant’s
briefing, e.g., People v. Tucker, supra, 196 Cal.App.4th 1313 and In re Venable (1927)
86 Cal.App. 585, all involved pretrial continuances. Ordering a midtrial continuance in a
jury trial is a materially distinct scenario, especially when the continuance will
necessarily be one of indefinite duration. (Cf. People v. Santamaria (1991) 229
Cal.App.3d 269, 272 [“trial court committed reversible error when it adjourned jury
deliberations for 11 days without good cause, despite both the availability of an
alternative to interrupting the deliberations and the prejudice to appellant inherent in the
timing and duration of the adjournment”]; U.S. v. Hay (9th Cir. 1997) 122 F.3d 1233,
1235–1236 [“we have never approved a jury separation even close to forty-eight days in a
criminal case”].)
In recent cases, convicted appellants have argued that trial courts erred by refusing
to declare mistrials following lengthy midtrial continuances attributable to the COVID-19
pandemic. Despite the possibility of jurors forgetting testimony and arguments—one of
the risks cited by the trial court in this case—those claims have been resolved against the
appealing parties. (E.g., People v. Garcia (2022) 83 Cal.App.5th 240, 243, 252 [103-day
delay occurring after both parties had rested but prior to closing arguments held not to
have violated appellant’s constitutional rights], review granted on unrelated issue Jan. 11,
2023, S276858; People v. Breceda (2022) 76 Cal.App.5th 71, 95, 100 [same; 73-day
delay occurring near the end of prosecution’s case-in chief].) But again, the judge below
had no way of knowing how future case law would turn out, and we must evaluate her
decision based on the information available in March 2020.
Defendant contends “it does not appear that the court gave any measurable
consideration to [his] right not to be twice placed in jeopardy for the same offense.” He
32.
then qualifies the statement by focusing on the trial court’s remarks immediately prior to
declaring the mistrial, but either way the argument is unfounded. While the trial court
may have experienced panic in the moments preceding its decision, the record shows it
carefully considered the surrounding circumstances and competing factors over a period
of several days. The decision was obviously not arrived at lightly, and it was rendered
only after defendant’s trial counsel had joined in Nagata’s double jeopardy arguments.
Defendant also relies on Bullock v. Superior Court, supra, 51 Cal.App.5th 134,
where the issue was whether the COVID-19 pandemic provided good cause to set a
preliminary hearing beyond the 10-court-day deadline established by section 859b.
There, the appealed decision was rendered without a reasoned explanation. (Bullock, at
p. 154.) There was no “particularized showing of a nexus between the pandemic and the
Superior Court’s purported inability to conduct Petitioner’s preliminary hearing in a
timely fashion.” (Id. at p. 140.)
In this case, the trial court made a record of its inability to comply with social
distancing guidelines and mandates. Those statements were made on March 17, 2020,
only six days prior to the Chief Justice ordering a 60-day suspension of all trial
proceedings for essentially the same reasons. Based on the facts and circumstances
known to the trial court at the time, we conclude it was not an abuse of discretion to
declare a mistrial legally necessary on March 19, 2020, due to physical reasons beyond
the court’s control.
In his briefing, defendant alleges a mere “pause in the proceedings could have
permitted the court staff to make the adjustments to continue the trial consistent with the
Chief Justice’s directive encouraging accommodations to protect the health of courthouse
users along with the due process rights of litigants.” He further contends “this is exactly
what happened, as the trial was ultimately held six months later in the same courthouse
with appropriate accommodations for staff and jurors.” The argument is based on an
advisory issued by the Chief Justice on March 20, 2020, not the 60-day order issued
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March 23, 2020. Defendant also fails to mention that his first and second trials were
conducted in different courtrooms. There is no evidence the dimensions and layout of
those courtrooms were the same, nor evidence it was even possible to make the necessary
“adjustments” to the first courtroom. Defendant has not affirmatively demonstrated
reversible error.
II. Sufficiency of the Evidence
Defendant claims the evidence did not show him to be an accessory within the
meaning of section 32. He focuses on the prosecution’s alleged failure to show his
knowledge of the murder, and on the theory he and Annabelle intended to “dump” the
Cadillac on the night of their arrest.
‘“In reviewing a challenge to the sufficiency of the evidence, we do not determine
the facts ourselves. Rather, we “examine the whole record in the light most favorable to
the judgment to determine whether it discloses substantial evidence—evidence that is
reasonable, credible and of solid value—such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.” [Citations.] We presume in support of the
judgment the existence of every fact the trier could reasonably deduce from the evidence.
[Citation.] [¶] The same standard of review applies to cases in which the prosecution
relies primarily on circumstantial evidence …. “[I]f the circumstances reasonably justify
the jury’s findings, the judgment may not be reversed simply because the circumstances
might also reasonably be reconciled with a contrary finding.” [Citation.] We do not
reweigh evidence or reevaluate a witness’s credibility.’” (People v. Houston (2012) 54
Cal.4th 1186, 1215.)
“The crime of accessory consists of the following elements: (1) someone other
than the accused, that is, a principal, must have committed a specific, completed felony;
(2) the accused must have harbored, concealed, or aided the principal; (3) with
knowledge that the principal committed the felony or has been charged or convicted of
the felony; and (4) with the intent that the principal avoid or escape from arrest, trial,
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conviction, or punishment.” (People v. Plengsangtip (2007) 148 Cal.App.4th 825, 836;
accord, People v. Nuckles (2013) 56 Cal.4th 601, 607.) “Although many ‘“‘kind[s] of
help’”’ may qualify as harboring, concealing, or aiding a principal under the statute, …
the help provided must be in the nature of ‘“‘overt or affirmative assistance.’”’” (People
v. Partee (2020) 8 Cal.5th 860, 868, quoting Nuckles, at p. 610.) In other words, conduct
intended or designed “to lessen the chance that the perpetrators will be captured and held
accountable for their crimes.” (People v. Cooper (1991) 53 Cal.3d 1158, 1168.)
Regarding the elements of knowledge and intent, “the jury may consider ‘such factors as
[the defendant’s] possible presence at the crime or other means of knowledge of its
commission, as well as his companionship and relationship with the principal before and
after the offense.’” (Plengsangtip, supra, at p. 837.)
Arguing he “had no connection whatsoever to the events on Merced Avenue,”
defendant claims there is insufficient evidence of his knowledge “that the Cadillac was
used in a homicide.” He overlooks the recorded statements of Karla’s daughter, D.P. In
addition to claiming responsibility for the shooting, D.P. identified four eyewitnesses:
Nagata, Karla, Annabelle, and “Martin.” Defendant’s own trial counsel reasonably
inferred that he was the “Martin” to whom D.P. was referring. Counsel remarked during
closing argument, “She knows Martin as the ugly guy with big ears. Doesn’t seem like
she’s too fond of him.”
The fact D.P.’s confession to being the killer conflicted with the physical evidence
did not necessarily mean she was lying about being present at the time of the shooting.
“Conflicts and even testimony which is subject to justifiable suspicion do not justify the
reversal of a judgment, for it is the exclusive province of the trial judge or jury to
determine the credibility of a witness and the truth or falsity of the facts upon which a
determination depends.” (People v. Maury (2003) 30 Cal.4th 342, 403.) “A reversal for
insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever
35.
is there sufficient substantial evidence to support”’ the jury’s verdict.” (People v.
Zamudio (2008) 43 Cal.4th 327, 357.)
As for the rendition of aid, defendant and the People are overly focused on the
prosecutor’s theory of a plan to “dump” the Cadillac. The prosecutor’s more
fundamental argument was, “The act that they did was driving away with the car.” The
fact defendant removed the Cadillac from Felix’s property was significant in and of itself
given Felix’s value to law enforcement as a witness and the risk he posed to Nagata for
that very reason. The jury could have reasonably concluded that moving the Cadillac to
any location other than Felix’s home was a form of aid because it would have decreased
the chances of police ever questioning Felix and learning what he knew about Nagata’s
activities on the night of the shooting. (See People v. Clark (2011) 52 Cal.4th 856, 947
[“theories suggested by the prosecutor are not the sole theories the jury may consider in
making its determination of guilt”]; People v. Perez (1992) 2 Cal.4th 1117, 1126 [same].)
Defendant’s motive and intent to help Nagata avoid arrest and prosecution was
inferable from their shared gang membership and Nagata’s higher ranking status in NF.
In addition to a common connection with Karla and Annabelle, they were also shown to
be mutually acquainted with gang member Fernando Luna. The case against defendant
was not strong, but the evidence is minimally sufficient to support his conviction.
III. Assembly Bill 333
Section 186.22 provides for enhanced punishment of gang-related crimes. A
gang-related felony is one “committed for the benefit of, at the direction of, or in
association with a criminal street gang.” (§ 186.22, subd. (b)(1); see People v. Albillar
(2010) 51 Cal.4th 47, 60.) The statute also requires “the specific intent to promote,
further, or assist in criminal conduct by gang members.” (§ 186.22, subd. (b)(1).)
At the time of the underlying events, a criminal street gang was defined as “any
ongoing organization, association, or group of three or more persons, whether formal or
informal, having as one of its primary activities the commission of one or more of the
36.
criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of
subdivision (e), having a common name or common identifying sign or symbol, and
whose members individually or collectively engage in or have engaged in a pattern of
criminal gang activity.” (Former § 186.22, subd. (f), as amended by Stats. 2016, ch. 887,
§ 1; see Stats. 2013, ch. 508, § 1.)
A “pattern of criminal gang activity” was previously defined as “the commission
of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile
petition for, or conviction of two or more of the [offenses listed in paragraphs (1) to (33)],
provided at least one of these offenses occurred after the effective date of this chapter and
the last of those offenses occurred within three years after a prior offense, and the
offenses were committed on separate occasions, or by two or more persons ….” (Former
§ 186.22, subd. (e), 1st ¶, as amended by Stats. 2016, ch. 887, § 1; see Stats. 2013, ch.
508, § 1.)
In 2021, while this appeal was pending, the Legislature passed Assembly Bill 333,
which took effect on January 1, 2022. (People v. Tran (2022) 13 Cal.5th 1169, 1206.)
The legislation amended section 186.22 in several ways:
“First, it narrowed the definition of a ‘criminal street gang’ to require that
any gang be an ‘ongoing, organized association or group of three or more
persons.’ [Citation.] Second, whereas section 186.22, former subdivision
(f) required only that a gang’s members ‘individually or collectively engage
in’ a pattern of criminal activity in order to constitute a ‘criminal street
gang,’ Assembly Bill 333 requires that any such pattern have been
‘collectively engage[d] in’ by members of the gang. [Citation.] Third,
Assembly Bill 333 also narrowed the definition of a ‘pattern of criminal
activity’ by requiring that (1) the last offense used to show a pattern of
criminal gang activity occurred within three years of the date that the
currently charged offense is alleged to have been committed; (2) the
offenses were committed by two or more gang ‘members,’ as opposed to
just ‘persons’; (3) the offenses commonly benefitted a criminal street gang;
and (4) the offenses establishing a pattern of gang activity must be ones
other than the currently charged offense. [Citation.] Fourth, Assembly Bill
333 narrowed what it means for an offense to have commonly benefitted a
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street gang, requiring that any ‘common benefit’ be ‘more than
reputational.’ [Citation.]” (Tran, at p. 1206.)
“Finally, Assembly Bill 333 added section 1109, which requires, if requested by
the defendant, a gang enhancement charge to be tried separately from all other counts that
do not otherwise require gang evidence as an element of the crime. If the proceedings are
bifurcated, the truth of the gang enhancement may be determined only after a trier of fact
finds the defendant guilty of the underlying offense.” (People v. Tran, supra, 13 Cal.5th
at p. 1206.)
Assembly Bill 333’s amendments to section 186.22 apply retroactively to cases
not yet final as of the legislation’s effective date. (People v. Tran, supra, 13 Cal.5th at
pp. 1206–1207.) Therefore, defendant’s gang enhancement must be reversed for
insufficient proof of a pattern of criminal gang activity by Nuestra Familia, which needed
to be shown to establish that it qualifies as a criminal street gang. (See People v. Vasquez
(2016) 247 Cal.App.4th 909, 922 [“‘The existence of a criminal street gang is
unquestionably an element of [section 186.22]’”].) The predicate offenses committed by
Fernando Luna and Sergio Uriostegui were not shown to have “commonly benefited a
criminal street gang.” (§ 186.22, subd. (e)(1).) “The proper remedy for this type of
failure of proof—where newly required elements were ‘never tried’ to the jury—is to
remand and give the People an opportunity to retry the affected charges.” (People v. E.H.
(2022) 75 Cal.App.5th 467, 480.)
Defendant argues section 1109 also applies retroactively. The People dispute this
contention and alternatively argue harmless error. We address those issues below.
IV. Retroactivity of Section 1109
Section 3 states that no part of the Penal Code is retroactive “unless expressly so
declared.” However, in In re Estrada (1965) 63 Cal.2d 740, an amendment to a criminal
statute was held to apply retroactively despite the Legislature’s failure to expressly
declare such an intent. (Id. at pp. 742–745.) The rationale for this outcome is now
known as the “Estrada rule.” (E.g., People v. Frahs (2020) 9 Cal.5th 618, 624.) “When
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new legislation reduces the punishment for an offense, we presume that the legislation
applies to all cases not yet final as of the legislation’s effective date.” (People v. Esquivel
(2021) 11 Cal.5th 671, 673.)
The Estrada rule has been applied “to statutes that merely made a reduced
punishment possible.” (People v. Frahs, supra, 9 Cal.5th at p. 629.) In People v.
Superior Court (Lara) (2018) 4 Cal.5th 299, the inference of retroactivity was extended
to legislation that “ameliorated the possible punishment for a class of persons.” (Id. at p.
308.) In Frahs, a pretrial diversion statute (§ 1001.36) was held to apply retroactively
because it “offers a potentially ameliorative benefit for a class of individuals—namely,
criminal defendants who suffer from a qualifying mental disorder.” (Frahs, at p. 631.)
There is a split of authority on the retroactive application of section 1109.
(Compare People v. Burgos (2022) 77 Cal.App.5th 550, 565-568, [holding § 1109 applies
retroactively under Estrada], review granted July 13, 2022, S274743, and People v.
Ramos (2022) 77 Cal.App.5th 1116, 1128–1131 [same], with People v. Ramirez (2022)
79 Cal.App.5th 48, 65 [holding § 1109 is not retroactive], review granted Oct. 12, 2022,
S275341, People v. Boukes (2022) 83 Cal.App.5th 937, 948 [same], review granted
Dec. 14, 2022, S277103, and People v. Perez (2022) 78 Cal.App.5th 192, 207 [same],
review granted Aug. 17, 2022, S275090.) The issue is currently pending before the
California Supreme Court in the lead case of Burgos.
This district has held that section 1109 applies retroactively in nonfinal cases such
as this one. We reach the same conclusion here for the reasons fully stated in People v.
Ramos, supra, 77 Cal.App.5th 1116 and People v. Montano (2022) 80 Cal.App.5th 82.
The following is a summary of the analyses in those opinions.
Section 1109 contains no express declaration of retroactivity. However, there is a
statement of legislative findings in an uncodified section of Assembly Bill 333. (Stats.
2021, ch. 699, § 2.) “An uncodified section is part of the statutory law.” (Carter v.
39.
California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 925.) We thus consider these
legislative declarations:
“According to the Committee on Revision of the Penal Code’s 2020
report: [¶] … [¶] Gang enhancement evidence can be unreliable and
prejudicial to a jury because it is lumped into evidence of the underlying
charges which further perpetuates unfair prejudice in juries and convictions
of innocent people.” (Stats. 2021, ch. 699, § 2, subd. (d)(6).)
“California courts have long recognized how prejudicial gang
evidence is. [Citation.] Studies suggest that allowing a jury to hear the
kind of evidence that supports a gang enhancement before it has decided
whether the defendant is guilty or not may lead to wrongful convictions.
[Citations.] The mere specter of gang enhancements pressures defendants
to accept unfavorable plea deals rather than risk a trial filled with
prejudicial evidence and a substantially longer sentence.” (Stats. 2021, ch.
699, § 2, subd. (e).)
“Bifurcation of trials where gang evidence is alleged can help reduce
its harmful and prejudicial impact.” (Stats. 2021, ch. 699, § 2, subd. (f).)
In Lara, the California Supreme Court acknowledged “Estrada is not directly on
point” if the statute in question “does not reduce the punishment for a crime.” (People v.
Superior Court (Lara), supra, 4 Cal.5th at p. 303.) “But its rationale does apply” if the
new legislation “reduces the possible punishment for a class of persons.” (Ibid.) A
possible reduction in the extent of punishment and the possibility of avoiding any
punishment whatsoever are both “potentially ameliorative benefit[s].” (People v. Frahs,
supra, 9 Cal.5th at p. 631.)
Section 1109 is intended to “reduce [the] harmful and prejudicial impact” of gang
evidence (Stats. 2021, ch. 699, § 2, subd. (f)) and ultimately prevent wrongful
convictions and unfair plea bargains (id., subds. (d)(6), (e)). The “increased possibility of
acquittal … necessarily reduces possible punishment.” (People v. Burgos, supra, 77
Cal.App.5th at p. 567, review granted.) Likewise, “[b]y reducing the pressure to accept
longer sentences, [section 1109] will necessarily reduce the degree of punishment for
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many defendants charged with gang enhancements, even if they never have to invoke its
prophylactic protections at trial.” (Ibid.; see Stats. 2021, ch. 699, § 2, subd. (e).)
“[I]n order to rebut Estrada’s inference of retroactivity concerning ameliorative
statutes, the Legislature must ‘demonstrate its intention with sufficient clarity that a
reviewing court can discern and effectuate it.’” (People v. Frahs, supra, 9 Cal.5th at p.
634.) Because it “provides a possible benefit to a class of criminal defendants and the
statute does not contain an express savings clause that limits the [procedures] to
prospective-only application, the specific question before us boils down to whether the
Legislature ‘clearly signal[ed] its intent’ to overcome the Estrada inference that section
[1109] applies retroactively to all cases not yet final on appeal.” (Frahs, at pp. 631–632.)
The People fail to identify any such indicators in Assembly Bill 333 or its legislative
history. For all these reasons, we conclude section 1109 applies retroactively to nonfinal
judgments.
V. Error and Prejudice
Defendant and his codefendants at trial all moved for bifurcation of the gang
enhancement allegations. The motions were denied. In light of section 1109, those
rulings were erroneous. We apply the “Watson test” (People v. Watson (1956) 46 Cal.2d
818) to determine whether the error was prejudicial. (People v. Tran, supra, 13 Cal.5th at
pp. 1208–1209.)
“[T]he Watson test for harmless error ‘focuses not on what a reasonable jury could
do, but what such a jury is likely to have done in the absence of the error under
consideration. In making that evaluation, an appellate court may consider, among other
things, whether the evidence supporting the existing judgment is so relatively strong, and
the evidence supporting a different outcome is so comparatively weak, that there is no
reasonable probability the error of which the defendant complains affected the result.’”
(People v. Beltran (2013) 56 Cal.4th 935, 956.) “The Supreme Court has emphasized
‘that a “probability” in this context does not mean more likely than not, but merely a
41.
reasonable chance, more than an abstract possibility.’” (People v. Soojian (2010) 190
Cal.App.4th 491, 519.) Conviction of a lesser included offense, or a mistrial due to a
hung jury, is a more favorable result than being found guilty as charged. (Id. at pp. 520–
521; see People v. Walker (2015) 237 Cal.App.4th 111, 118; People v. Padilla (2002)
103 Cal.App.4th 675, 679 [reversal based on reasonable probability jury would have
found appellant “committed not a first degree murder but a second degree murder”].)
Section 1109 does not bar the admission of gang evidence, and its cross-
admissibility for other purposes may result in jurors learning of a defendant’s gang
membership despite bifurcation. (See People v. Tran, supra, 13 Cal.5th at p. 1208 [“We
have held that gang evidence, even if not admitted to prove a gang enhancement, may
still be relevant and admissible to prove other facts related to a crime”]; People v. Ramos,
supra, 77 Cal.App.5th at p. 1132.) “‘Evidence of the defendant’s gang affiliation—
including evidence of the gang’s territory, membership, signs, symbols, beliefs and
practices, criminal enterprises, rivalries, and the like—can help prove identity, motive,
modus operandi, specific intent, means of applying force or fear, or other issues pertinent
to guilt of the charged crime.’” (People v. Becerrada (2017) 2 Cal.5th 1009, 1022.)
“But, ‘even where gang membership is relevant, because it may have a highly
inflammatory impact on the jury[,] trial courts should carefully scrutinize such evidence
before admitting it.’” (People v. Gomez (2018) 6 Cal.5th 243, 294.) “Such evidence
should not be admitted if only tangentially relevant” (People v. Gurule (2002) 28 Cal.4th
557, 653), or “where its sole relevance is to show a defendant’s criminal disposition or
bad character as a means of creating an inference the defendant committed the charged
offense” (People v. Sanchez (1997) 58 Cal.App.4th 1435, 1449; accord, People v.
Cardenas (1982) 31 Cal.3d 897, 904–905). “Erroneous admission of gang-related
evidence, particularly regarding criminal activities, has frequently been found to be
reversible error, because of its inflammatory nature and tendency to imply criminal
42.
disposition, or actual culpability.” (People v. Bojorquez (2002) 104 Cal.App.4th 335,
345.)
The People argue defendant could not have been prejudiced by the failure to
bifurcate the gang allegations because the gang evidence was “highly relevant to issues of
motive, intent and the shooter’s identity,” and therefore cross-admissible in a trial of the
charged offenses. We rejected this argument in People v. Nagata (Jan. 31, 2023,
F082198) [nonpub. opn.] (Nagata), where the section 1109 error was held prejudicial as
to Nagata given the reasonable probability of a more favorable outcome on all charges
but for the admission of the various gang evidence. We hereby incorporate the Nagata
opinion by reference and take judicial notice of the record in that appeal. (Evid. Code,
§§ 452, subd. (d), 459, subd. (a); see, e.g., People v. Bilbrey (2018) 25 Cal.App.5th 764,
769, fn. 7 [taking judicial notice of the record in a related appeal on the court’s own
motion].)
Defendant’s liability was closely tied to the question of Nagata’s guilt on the
charge of murder. Nagata’s conviction on the murder count was not an absolute
prerequisite to finding defendant guilty as an accessory after the fact (§ 972), but the
prosecution’s theory was that Nagata killed the victim. Taking into consideration the
relative weakness of the case against defendant, the likelihood of a more favorable
outcome for Nagata makes it reasonably probable, i.e., there is “‘more than an abstract
possibility’” (People v. Soojian, supra, 190 Cal.App.4th at p. 519), that defendant would
have achieved a better result on count 2 in a bifurcated trial. (See Zafiro v. United States
(1993) 506 U.S. 534, 539 [acknowledging “evidence of a codefendant’s wrongdoing in
some circumstances erroneously could lead a jury to conclude that a defendant was
guilty. When many defendants are tried together in a complex case and they have
markedly different degrees of culpability, this risk of prejudice is heightened”]; People v.
Kelly (1986) 183 Cal.App.3d 1235, 1240 [“in a joint trial of a multiple number of
defendants a codefendant may suffer ‘associational prejudice’”].)
43.
While it is likely some gang evidence would have been admitted against defendant
to prove motive and intent, it is reasonably probable not all of it would have withstood
scrutiny under Evidence Code section 352. As explained in our Nagata opinion, the gang
evidence most likely to have been excluded in a bifurcated trial on the substantive
offenses tended to show Nagata’s and defendant’s propensity for gun violence. This
would include the evidence of defendant’s prior arrests in connection with a shooting and
the seizure of firearms, as well as his tattoo of “someone pointing a gun.”
The length of the jury’s deliberations, as well as its questions and requests to
review evidence (including photographs of defendant’s tattoos), further demonstrates the
closeness of this case. (See People v. Cardenas, supra, 31 Cal.3d at p. 907; People v.
Pearch (1991) 229 Cal.App.3d 1282, 1295.) For the reasons explained, it is reasonably
probable defendant would have achieved a more favorable outcome but for the trial
court’s denial of the motions to bifurcate the gang enhancement allegations. Defendant is
therefore entitled to a new trial on both the accessory charge and the related gang
enhancement.
DISPOSITION
The judgment is reversed.
PEÑA, J.
WE CONCUR:
FRANSON, Acting P. J.
SMITH, J.
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