SEE CONCURRING OPINION

Filed 7/6/23 P. v. Mancilla 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JAIRO MANCILLA,

Defendant and Appellant.

F082925

(Super. Ct. No. F17902461)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Houry A. 

Sanderson, Judge.

David L. Polsky, 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, Ivan P. 

Marrs, and Jennifer M. Poe, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-
2.

INTRODUCTION

Defendant Jairo Mancilla was convicted of the first degree murders (Pen. Code,1

§ 187, subd. (a)) of Javier Lizaola, Jr. (count 1) and James Alexander Esquibel (count 2). 

As to each count, the jury found true a multiple-murder special circumstance (§ 190.2, 

subd. (a)(3)), an enhancement for the personal discharge of a firearm causing death 

(§ 12022.53, subd. (d)), and a gang enhancement (§ 186.22, subd. (b)(1)). On each count, 

the court sentenced defendant to a term of 25 years to life (see § 12022.53, subd. (d)), 

plus a consecutive term of life without the possibility of parole. The court stayed the 

gang enhancements under section 186.22, subdivision (b)(5) pursuant to California Rules 

of Court, rule 4.447. 

On appeal, defendant contends (1) the trial court prejudicially erred by failing to 

instruct the jury on imperfect self-defense; (2) the gang enhancements must be reversed 

based on changes to the law made by Assembly Bill No. 333 (2021–2022 Reg. Sess.) 

(Assembly Bill No. 333); (3) the evidence was insufficient to support the jury’s findings 

that the shootings were gang related under the version of section 186.22 in effect at the 

time of trial, as clarified by People v. Renteria (2022) 13 Cal.5th 951 (Renteria); (4) he is 

entitled to a new trial on the substantive offenses separate from trial of the gang 

allegations pursuant to section 1109; and (5) the trial court erred by imposing a parole 

revocation fine. 

We accept the People’s concession that the gang enhancements must be reversed 

pursuant to Renteria, supra, 13 Cal.5th 951. Accordingly, we remand for resentencing. 

We otherwise affirm the judgment.

1 Undesignated statutory references are to the Penal Code.
3.

FACTS

I. The Shooting

After school on the afternoon of March 10, 2017, 17-year-old G.V.2 was outside 

his house in Orange Cove, playing cards with his friend, 16-year-old R.M. After an hour 

or two, Anthony C., who G.V. knew as “Guero,” stopped by.3 G.V. and R.M. had known 

each other for six or seven years. G.V. had known Anthony for about two years. R.M. 

had never met Anthony before. The three remained at G.V.’s house for about 35 or 40 

minutes. 

Eventually, Anthony suggested they take a walk to a nearby bike trail to “blaze it,” 

meaning to smoke the marijuana he brought. It was just starting to get dark. The trio 

crossed a bridge and smoked as they walked on the bike trail. They first went to the 

right, but saw a woman and some children and turned around to avoid smoking in front of 

them. G.V. took two or three “hits” of marijuana but only felt the effects “[a] little.” 

R.M. took one or two hits off the joint and did not feel the effects. 

The trio stopped at a bench on the bicycle trail and sat for a while. At some point, 

they saw defendant approaching on the bike trail. Anthony walked over to defendant and 

spoke to him. It appeared to R.M. that Anthony and defendant knew each other. G.V. 

and R.M. had never met defendant before. Anthony returned to the bench with defendant 

and defendant shook hands with G.V. and R.M. Defendant was wearing white earphones 

and was talking on the phone. At some point, defendant asked R.M. where he was from, 

and R.M. said he lived in Dinuba. 

Defendant was wearing black shorts, a black, short-sleeved shirt with white 

lettering, Nike shoes, and a straw hat like the type used for field work. G.V. testified the 

2 Pursuant to California Rules of Court, rule 8.90, we refer to some persons by 

their first names or initials. No disrespect is intended.

3 G.V. testified that “Guero” means “[w]hite.” 
4.

straw hat covered the top of defendant’s face down to his nose. R.M. testified the hat 

came down to the middle of defendant’s forehead. R.M. noticed defendant had a tattoo 

of a five-digit number above his left eyebrow that appeared to be a zip code beginning 

with the number nine. R.M. believed this to be the Orange Cove zip code. G.V. noticed 

that defendant had tattoos on his legs, including one that appeared to be a large “V” and 

another that appeared to be large vertical lines like another large letter. At trial, G.V. 

recognized a picture of defendant’s legs, which had tattoos of the letters “V” and “L.” 

Defendant also had tattoos on his arms but G.V. did not know what they were. 

The four young men congregated around the bench and talked for approximately 

30 minutes to an hour as it got darker. They did not smoke any more marijuana. Some 

light posts in the area were working, and some were not. Parts of the area near the bench 

were illuminated. 

At some point, a woman rode by on a bicycle with a small trailer attached. She 

had one or two children with her, one of whom was riding a bike alongside her. 

Defendant yelled out to the woman, greeted her with a hug, and called her sister. She 

stopped to talk with defendant for about a minute. Defendant asked what she was doing 

out there and she responded that she was going to buy something. Defendant gave her a 

hug and told her to be careful. The woman and kids rode away. 

At some point, Anthony said his brother was going to drop off food or money to 

buy food. Eventually, a car approached and Anthony spoke to the occupant for a minute 

or two. 

When the vehicle left, the four men again gathered around the bench. G.V. 

testified that he was not high, and the effects of the marijuana were starting to go away. 

G.V. was sitting on the left side of the bench, and defendant was sitting on the right, 

while R.M. and Anthony were standing. 

Two men appeared on the bike trail coming from the direction of a nearby liquor 

store. One of them was carrying a black bag. G.V. noticed the men when they were 
5.

about 500 feet away and watched them approach. Defendant looked toward the men 

when they were about 300 feet away. When the two men were about 50 feet away, 

defendant leaned back and put his right hand near his waist. The two individuals passed 

in front of G.V.’s group. The two men were “going to pass by” and did not say anything. 

They made upward movements with their heads, as if to greet defendant and the group. 

G.V. did not perceive the movement as aggressive. 

Defendant said to the two men, “What’s up ese[?]” G.V. testified this phrase did 

not seem aggressive to him. However, he thought “ese” might have a different meaning 

“for them than for us.” R.M. said he did not know whether it was aggressive and that 

defendant “just said what’s up.” The two men turned and walked toward defendant. 

According to G.V., one of the two passersby said, “Shut up ho,” and grabbed at 

something in his pants. G.V. said the person pretended like he was going to hit defendant 

but did not. 

According to R.M., one of the two passersby said, “[W]hat bitch,” or “[W]hat’s up 

bitch,” walked toward defendant, and pretended like he was going to hit defendant but 

did not. The other passerby said, “What’s up dog[?]” 

Defendant pulled something from his waistband, extended his arm in front of 

himself, and fired two shots at the men in quick succession.4 The two individuals fell to 

the ground, and G.V. could see one of them bleeding. One of the victims, Javier Lizaola, 

Jr., died at the scene from a gunshot wound to the head. The other victim, James 

Alexander Esquibel, died at the scene from a gunshot wound to the chest. 

Immediately after the shooting, G.V. ran home, and R.M. followed after him. 

R.M. looked back and saw defendant running. Defendant glanced at R.M. and G.V. as he 

4 R.M. testified he told officers defendant had pulled out a gun, but at trial, he 

claimed he did not actually see a firearm. G.V. saw flames in front of defendant as he 

fired. 
6.

ran by. It bothered R.M. that defendant was nearby because “he could have shot [them], 

too.” 

G.V. and his father discussed the incident. R.M. was scared to call the police 

because he did not want problems for being a snitch. 

After the shooting, Anthony sent a text message to G.V. telling him not to say 

anything. Several days later, Anthony sent a text message to G.V., inviting him to go 

smoke marijuana. G.V. did not want to go because Anthony might want to make him 

“disappear.” G.V. moved out of Orange Cove three or four days after the shooting. 

At trial, both G.V. and R.M. identified defendant as the shooter. However, G.V. 

acknowledged that, at the preliminary hearing, he identified defendant as the shooter 

based on having seen his photograph on Facebook and not based on any independent 

memory of defendant having committed the shooting. On redirect, G.V. explained that, 

when he saw defendant at trial, he “had a memory of the day that it happened and of the 

pictures that [he] saw.” 

II. The Investigation

Law enforcement was dispatched to the scene of the shooting at approximately 

8:07 p.m. that night. They found the victims lying on the ground dead near the bench. 

There were two white plastic bags near the victims, one containing a three-pack of beer 

and the other containing a three-pack of beer with one of the cans missing. There was 

also an open and empty beer can underneath one of the victim’s legs. The light post near 

the bench and the victims was not working. No shell casings were found at the scene. 

No fingerprints were recovered at the crime scene. 

Two bicycles were found within the crime scene area. One of the bicycles was 

connected to a child trailer and was found just off the bike path, north of the bench where 

the shooting occurred. Inside the trailer was an EBT card with the name of Valeria 

Mancilla. Officers determined Valeria Mancilla is defendant’s sister. A woman who 
7.

identified herself as Valerie Fernandez contacted officers sometime after the shooting 

about a bicycle that was within the crime scene area. 

On the night of the shooting, at about 10:04 p.m., Fresno County Sheriff’s Deputy 

V. Alonzo was on patrol in Squaw Valley when he saw a vehicle stopped on the side of 

the road with someone crouched near the right rear passenger side. Alonzo pulled over 

and approached the individual, who he identified at trial as defendant. Defendant seemed 

nervous and spoke with a stutter. Alonzo searched the vehicle and found bolt cutters, a 

flashlight, gloves, and a tactical vest. He found nothing to justify an arrest of defendant. 

He observed the right rear passenger tire to be flat and offered to help defendant fix it, but 

defendant refused. Alonzo left without arresting defendant.

A criminalist with the Fresno County Sheriff’s Office analyzed the bullets 

recovered in Lizaola’s and Esquibel’s autopsies and opined that they were fired from the 

same gun. 

Defendant was arrested on April 21, 2017, and was photographed at that time. 

Above his left eyebrow was a tattoo of “93646,” the Orange Cove zip code. He had 

tattoos of the letter “F” on the back of his left forearm, the letter “C” on his right forearm, 

the letter “B” on his right upper forearm near the elbow, the letter “P” on the left upper 

forearm near the elbow, the letter “V” on his right shin, and the letter “L” on his left shin. 

Appellant also had a tattoo of Marilyn Monroe covering most of the left side and top of 

his head. 

III. Interviews of G.V. and R.M.

On March 21, 2017, Fresno County Sheriff’s Detectives J. Diaz and A. Maldonado 

interviewed G.V. as a potential witness. G.V. told Diaz that, on the day of the shooting, 

he, R.M., and “Guero” played cards and listened to music at his house. G.V. did not 

know Guero’s real name. Diaz was later able to identify Guero as Anthony C. 

G.V. reported to Diaz that, on the bike trail, the suspect called out to a woman 

riding a bicycle something to the effect of, “Hey, sister,” and “It[’]s me” (boldface 
8.

omitted). The woman’s bicycle had something like a trailer in the back and she was with 

a child who also was riding a bicycle. Regarding the confrontation preceding the 

shooting, G.V. reported that the suspect said, “What’s up ese[?]” The younger of the two 

victims responded, “Shut up ho” (boldface omitted), and then pretended he was going to 

hit the suspect. The second individual said, “What’s up dog[?]” (Boldface omitted.) 

G.V. reported to Diaz that Anthony contacted him right after the shooting and told 

him not to say anything. Diaz could not recall whether G.V. said he spoke with Anthony 

or whether this was relayed by text message. G.V. reported that, on the Wednesday after 

the shooting, he received a call from Anthony asking him if he wanted to “blaze it.” 

(Boldface omitted.) 

G.V. mentioned to Diaz that he had seen reference to the victims on Facebook, 

and he referenced them by their monikers, JJ and Big Navajo. He was unable to provide 

information that would enable the detectives to develop a suspect in the shooting. 

Diaz and Maldonado interviewed R.M. on March 22, 2017. R.M. spoke quietly 

and sometimes had difficulty understanding the questions posed to him. Diaz showed 

R.M. a photograph of Anthony, and R.M. reported that he did not really know the person 

but thought his name was Tony. He thought that Tony was a Sureño gang member or 

mostly hung around with Sureños. 

R.M. provided Diaz with information regarding the evening of the shooting that 

was similar to his trial testimony. Additionally, he reported to Diaz that Tony told him 

that the woman on the bicycle was the suspect’s sister, and that the suspect also said, 

“There’s my sister,” and screamed out her name. (Boldface omitted.) However, R.M. 

could not recall the woman’s name. He described the woman’s bicycle as a long bike 

that had a trailer for kids. The woman was with one or two little kids. 

Regarding the confrontation that preceded the shooting, R.M. said the suspect said 

to the victims, “What’s up ese[?]” (Boldface omitted.) R.M. said one of the victims 

walked up pretending he was going to hit the suspect by making a jerking motion while 
9.

leaning forward. The other victim said either “[W]hat’s up dog” or “[W]hat’s up 

Bulldog” to the suspect. (Boldface omitted.) R.M. saw the suspect reach across his 

abdomen with his right hand and begin to stand up. He pulled out a gun and shot each 

victim one time. R.M. specifically reported seeing the gun. 

Diaz showed R.M. two photographs taken from law enforcement databases, and 

R.M. was able to identify the individuals portrayed in the photographs as the shooting 

victims. R.M. also provided a description of the shooter. R.M. told Diaz that the shooter 

was male, medium height with skinny build, with a mustache and facial hair on his chin. 

He stated the shooter had a tattoo of numbers above his left eyebrow, the first of which 

was nine, and that it was possibly the zip code for Orange Cove. 

Diaz ran a search of Fresno County law enforcement contacts for individuals with 

a tattoo of the zip code for Orange Cove. The search returned a photograph of defendant. 

No one else matched the search criteria. Diaz showed R.M. a lineup of six photographs, 

and R.M. identified defendant as the shooter within about 30 seconds. 

IV. Gang Evidence

The following evidence was presented regarding defendant’s membership in the 

Vatos Locos Sureños (VLS) subset of the Sureño criminal street gang. 

A. Defendant’s Prior Law Enforcement Contacts

On June 5, 2009, at about 12:26 p.m., a sheriff’s deputy contacted defendant in a 

consensual encounter near 11th Street and Railroad Avenue in Orange Cove. When 

asked if he was a gang member, defendant said he was “VLS.” The deputy saw “OC” 

tattooed on defendant’s right hand, and “[B]” and “P” on the backs of his triceps.5 When 

5 The reporter’s transcript says “V” and “P,” but the deputy then testified that it

stood for “Brown Pride.” Also, the prosecutor’s immediate follow up question was what 

meaning “the B and the P” had. (Boldface omitted.) Therefore, it seems clear this was a 

transcription error, and that the deputy testified the tattoos were “B” and “P.”
10.

asked what the “B” and “P” tattoos meant, the deputy testified, “Brown Pride which is 

Sure[ñ]o.” The deputy further testified that “OC just depicts the area that you’re in.” 

On January 7, 2010, an Orange Cove police officer served defendant with a gang 

injunction. 

On March 16, 2012, at around 5:13 p.m., an Orange Cove police officer contacted 

defendant near Adams Avenue and 12th Street. The officer observed a new, though 

unfinished, tattoo of the number 13 on defendant’s right inner forearm. Defendant 

admitted he was a Sureño gang member. 

On July 15, 2012, at around 10:21 p.m., an Orange Cove police officer contacted 

defendant at the intersection of Anchor and Adams Avenues. Defendant was wearing a 

blue shirt, white shorts, and blue tennis shoes. Defendant admitted he was a Sureño gang 

member. When asked how long he had been a Sureño, defendant said, “For a while.” 

On February 28, 2013, at around 3:40 p.m., the same Orange Cove police officer

contacted defendant and Brian Santos in front of a residence on the 600 block of Anchor 

Avenue. Defendant was wearing blue jeans and a blue and white striped polo shirt. 

Defendant admitted he was a Sureño gang member. Defendant also said he knew Santos 

was a VLS Sureño gang member. 

On April 13, 2013, at about 8:12 a.m., the same Orange Cove police officer 

observed three males – defendant, Abran Zavala and Brian Santos – inside a parked van 

at the same residence on the 600 block of Anchor Avenue. During the officer’s prior 

contacts, there were “gang relations associated with” all three of the individuals and the 

VLS gang. Zavala and Santos admitted gang membership. 

On August 19, 2013, a Fresno County Sherriff’s deputy contacted defendant in the 

breezeway of the main courthouse. Defendant admitted he was a Sureño and lived in 

Orange Cove. He stated he had been a Sureño most of his life. He also said most of his 

friends and some family were Sureños.
11.

On January 28, 2015, at around 4:56 p.m., an Orange Cove police officer was 

dispatched to a location in Orange Cove for a disturbance call involving four individuals 

fighting. Upon arriving at the location, the officer did not see anyone, but contacted an

individual about two blocks away. That individual confirmed to officers that he was an 

active Bulldog gang member. The individual informed the officer that the people he had 

argued with were in a red truck, which was driving through the area. Officers conducted 

a traffic stop. The driver was Peter Gonzalez, and the passenger was defendant. The 

officer searched a law enforcement system and learned that defendant and Gonzalez had 

previously been served with a gang injunction that prohibited them from associating with 

known gang members within the city limits of Orange Cove. The officer asked defendant 

if he knew he was under the injunction, and he replied along the lines of, “Yes, I guess.” 

Defendant and Gonzalez were cited for violating the injunction. 

B. Predicate Offenses

On May 17, 2012, at about 2:26 p.m., an Orange Cove police officer was 

dispatched to a burglary in progress. When he arrived at the address, he observed Adrian 

Cavazos in the dining room of the residence. A chase ensued, and Adrian6 was 

eventually placed into custody. The officer observed that items were “thrown around” in 

the residence and a television had been removed from its wall mount or stand. Adrian 

was convicted of first degree residential burglary. Adrian is a self-admitted VLS Sureño 

gang member.

On May 14, 2013, at about 3:37 p.m., an Orange Cove police officer was 

dispatched to the intersection of Ninth Street and Park Boulevard for a report of shots 

fired. The officer found a gunshot victim at a school approximately five blocks away. 

The gunshot victim reported that he was driving when another vehicle pulled up beside 

6 To avoid confusion with Joseph Cavazos, discussed below, we refer to these 

individuals by their first names. 
12.

him, and the driver of that vehicle fired shots at him. The gunshot victim reported that 

the shooter, Alejandro Moreno, had shot at him in previous incidents. Moreno pled to 

and was sentenced for violating section 245, subdivision (a)(2). Moreno was an active 

VLS Sureño gang member. 

On October 26, 2013, at about 10:24 p.m., a California Highway Patrol officer 

conducted a traffic stop in Orange Cove on a vehicle being driven by Joseph Cavazos. 

The officer found a loaded handgun in the center console of the vehicle. Joseph was 

arrested for possessing the firearm and was prosecuted for violating section 29800. 

Joseph said he was an Orange Cove Sureño gang member.

On June 16, 2014, at about 1:49 p.m., an Orange Cove police officer pursued a 

vehicle after it fled during a traffic stop initiated by other law enforcement personnel. 

The subject vehicle rammed the officer’s vehicle twice. The driver of the vehicle was 

Juan Alberto Diaz. Diaz pled to and was sentenced for violating section 245, subdivision 

(c) and Vehicle Code section 2800.2. Diaz is a VLS gang member. 

C. Prosecution’s Gang Expert

Detective R. Swiney with the Fresno County Sheriff’s Office testified as a gang 

expert for the prosecution. His primary area of expertise was Sureño and Bulldog 

criminal street gangs operating outside the City of Fresno. Swiney explained that the two 

gangs are rivals. 

Swiney explained that a person can become a Sureño gang member by being 

“jumped in,” that is, beaten for a certain amount of time, being “blessed in,” that is, being 

allowed to join because of familial contacts, and by “putting in work,” that is, committing 

crimes for the benefit of the gang. Those who hang around a gang member but are not 

members themselves may be known as associates. 

Swiney explained that the Sureño gang has a hierarchical structure with members 

who are “in charge” being referred to as “shot callers.” Some members are put in charge 

of gathering money (i.e., “taxes”) on behalf of the gang. The gang makes money by 
13.

committing burglaries and robberies, obtaining stolen property, and selling narcotics. 

Taxes are paid to the Mexican Mafia prison gang for protection of incarcerated Sureños. 

Members of the Sureño gang care about the reputation of their gang. Committing 

violent crimes, such as murder, attempted murder, and assault with deadly weapons, 

instills fear and intimidates rival gang members and citizens in the community. As a 

result, witnesses to gang crimes often do not cooperate with law enforcement, which 

allows the gang to continue committing crimes. Fear and respect also help promote the 

gang and protect the gang’s territory. 

Gang members will intentionally disrespect members of rival gangs by using 

derogatory terms or committing crimes in their rivals’ territory. They may also cross out 

their rival’s gang graffiti and put down who it came from. “[H]itting someone up” 

(boldface omitted) means to ask someone what gang they are from, and can be seen as a 

sign of disrespect that would lead to a violent confrontation. A gang member 

disrespected by a rival could respond with anything from “a simple stare down” to an 

assault or even a murder. 

VLS is a subset of the Sureño criminal street gang that claims the city of Orange 

Cove as its territory. In March 2017, VLS had between 50 and 70 members. VLS 

members will sometimes identify themselves as Orange Cove Sureños or Orange Cove 

Sur. Members identify with the color blue and often wear apparel of the Dallas Cowboys 

or Los Angeles Dodgers. Common tattoos for members include “VLS,” “Orange Cove 

Sure[ñ]os,” “Orange Cove Sur,” the number 13, one dot and three dots, “Orange Cove” 

or “O” and “C,” a zip code or area code from Orange Cove, and the letter “M.” Members 

make hand signs denoting the numbers one and three, the letters O and C, and the letters 

V and L. 

Swiney opined that VLS engaged in a pattern of criminal gang activity, with the 

gang’s primary activities being murder, attempted murder, assaults with deadly weapons, 

shooting at inhabited dwellings or vehicles, robbery, burglary, possession of firearms and 
14.

possession of controlled substances for sale. VLS gang members are “territorial.” 

(Boldface omitted.) They will mark their territory with gang graffiti and defend it with 

violent crime including murder. 

Varrio Orange Cove Rifa (VOCR)

7

is subset of the Bulldog gang that also claims 

the city of Orange Cove as its territory. Bulldogs associate with the color red. VOCR 

members may have tattoos of dog paws, a picture of a Bulldog face, a dog collar, or other 

similar items. In March 2017, the Bulldog presence in Orange Cove was stronger than 

the Sureño presence. The rivalry between VOCR and VLS has resulted in attempted 

murders and assaults with deadly weapons. VLS members have tried to eliminate VOCR 

members to get them out of the area and expand VLS’s territory. 

Swiney opined that defendant is an active member of the VLS gang, meeting at 

least six gang criteria. Swiney pointed to the fact that defendant self-admitted VLS 

membership on multiple occasions, has gang-related tattoos and clothing, has been 

identified as a gang member by a reliable source, and has associated with documented 

gang members. Swiney found defendant’s tattoos of “93646” above his left eyebrow and 

Marilyn Monroe on his head to be significant in a gang context. Marilyn Monroe’s 

initials are a reference to the Mexican Mafia. Defendant’s “F” and “C” tattoos stand for 

Fresno County and his “V” and “L” tattoos stand for Vatos Locos. Defendant’s tattoos of 

“B” and “P” stand for Brown Pride which can be a representation of Sureño and/or VLS. 

Swiney opined, based on the victims’ tattoos, that they were members of the 

VOCR subset of the Bulldogs. 

7 The reporter’s transcript at times says “BOCR” and “Barrio Orange Cove Rifa,” 

but Swiney also testified to some of the tattoos found on the victims (see post, at p. 18). 

One such tattoo was described as “a tattoo on the right hand near the knuckles of VOCR” 

on Esquibel. In response to the question, “And, again, what does VOCR stand for[?]” 

(boldface omitted), Swiney replied, “Varrio Orange Cove Rifa Bulldog criminal street 

gang.” Therefore, it seems clear these are transcription errors.
15.

When given a hypothetical generally tracking the prosecution’s evidence of the 

present crime, Swiney testified such a crime would have benefitted the gang by 

protecting the gang’s reputation and respect. Such a crime would also instill fear and 

intimidate witnesses and victims, which reduces cooperation with law enforcement and 

prosecutions. All that makes it easier for the gang to commit crimes. 

D. Other Gang-related Testimony

R.M. testified that he thought Anthony was a possible Sureño gang member. He 

based this belief on Anthony’s familiarity with defendant and his belief that Anthony had 

family members associated with the gang. 

Detective Diaz testified, based on his experience, that the phrase “what’s up ese” 

(boldface omitted) is an aggressive statement used when a Sureño gang member 

confronts a rival gang member, whether Norteño or Bulldog. 

V. Defense Case

Dr. P. English is a cognitive psychologist with a Ph.D. in psychology. He testified 

for the defense. English has published scholarly pieces on general perception and vision. 

When given a hypothetical involving four youths near a bench in a park-like area on an 

evening with a full moon and no cloud cover, English testified they might not accurately 

perceive events due to degraded lighting conditions and the presence of other people, 

which are distractions. Stress or trauma can also compromise a witness’s perception. 

English also opined that our memories are cobbled together from multiple sources, 

including other peoples’ recollection. There is a potential for memory contamination if a 

witness conveys their account to law enforcement 11 or 12 days after the event because 

intervening discussion with others could impact memory. 

English criticized a “hypothetical” (boldface omitted) photographic lineup in 

which only one individual had a unique tattoo above his left eyebrow. 
16.

DISCUSSION

I. Failure to Instruct on Imperfect Self-defense

Defendant argues the trial court prejudicially erred in failing to instruct the jury on 

the lesser offense of voluntary manslaughter based on imperfect self-defense. The People 

contend the evidence did not support instructing the jury on imperfect self-defense but, 

regardless, any error was harmless. We conclude the evidence supported instructing the 

jury on imperfect self-defense, but the error in failing to give the instruction was 

harmless. 

A. Procedural Background

During a hearing on jury instructions, the court asked defense counsel to confirm 

that defendant was not requesting jury instructions on any lesser included offenses. 

Defense counsel responded, “That is correct because I don’t think the state of the 

evidence would allow me to make that request.” The court stated that it believed the 

evidence supported a verdict on first or second degree murder but not manslaughter. The 

prosecutor agreed, stating that the case was “an identity case,” and that there was no issue 

regarding heat of passion or imperfect self-defense. 

The court then confirmed that neither party had requested any self-defense 

instructions. The following colloquy between the court and defense counsel followed:

“THE COURT: Is that a strategic decision on your part to not argue 

two different theories to the jurors?

“[DEFENSE COUNSEL]: Yes. It is defense’s argument also that it 

wasn’t [defendant]. It was someone else. So it would—tactically, it would 

make no sense to argue but on the other hand it was a self-defense aspect.

“THE COURT: And as the evidence stands there was a very slight 

suggestion that any type of self-defense may have been at issue. The two 

witnesses that were present during the event in question made reference to 

that the two victims individually made some sort of a lunging or forward 

motion toward the person seated at the bench. But certainly, we don’t 

know how that person received that motion. And other than the statements 
17.

by the witnesses that those two individuals were shot soon after such 

movement was made, there is no further evidence that the shooter had any 

type of a concern for his safety or the safety of the others with him. So the 

Court would not be giving any self-defense instructions. And again, the 

defense’s position is that they are not asking for such as well.” 

B. Applicable Law

“ ‘A trial court must instruct the jury on a lesser included offense, whether or not 

the defendant so requests, whenever evidence that the defendant is guilty of only the 

lesser offense is substantial enough to merit consideration by the jury.’ [Citation.] The 

obligation to give an instruction on lesser included offenses exists even when a defendant 

expressly objects to it.” (People v. Nieves (2021) 11 Cal.5th 404, 463.)

Voluntary manslaughter arising from imperfect self-defense is a lesser included 

offense of murder. (See People v. Steskal (2021) 11 Cal.5th 332, 345.) “ ‘Imperfect selfdefense, which reduces murder to voluntary manslaughter, arises when a defendant acts 

in the actual but unreasonable belief that he is in imminent danger of death or great 

bodily injury.’ ” [Citation.] ‘To satisfy the imminence requirement, “[f]ear of future 

harm—no matter how great the fear and no matter how great the likelihood of the harm—

will not suffice. The defendant’s fear must be of imminent danger to life or great bodily 

injury.” ’ ” (Ibid.)

On appeal, we look for whether there is substantial evidence in the record that 

would have supported the omitted instruction. (E.g., People v. Millbrook (2014) 222

Cal.App.4th 1122, 1139.) We review the evidence in the light most favorable to the 

defendant. (Ibid.) Doubts about the sufficiency of the evidence to warrant the omitted 

instruction are resolved in favor of the defendant. (People v. Cleaves (1991) 229 

Cal.App.3d 367, 372.)
18.

C. An Imperfect Self-defense Instruction was Warranted

Sufficient evidence of imperfect self-defense was presented to merit the court 

giving the applicable instructions. Specifically, the evidence supported the following 

inferences. VLS and VOCR are rival gangs that both claim the city of Orange Cove as 

their territory. The rivalry between VOCR and the Sureños has resulted in attempted 

murders and assaults with deadly weapons. Defendant, a VLS gang member, observed 

two individuals approaching. The two individuals were members of the VOCR Bulldog 

gang with tattoos that included a red dog paw, and “O” and a “C,” and “VOCR” for

Varrio Orange Cove Rifa Bulldog. From defendant’s long history with the VLS gang, he 

would have known about his own gang’s violent rivalry with the VOCR. 

Defendant said, “What’s up ese[?]” to the individuals. The two VOCR members 

responded with something to the effect of “Shut up ho,” or “[W]hat’s up bitch,” and 

“What’s up dog[?]” One of the two VOCR gang members walked toward defendant, and 

pretended like he was going to hit defendant but ultimately did not. One of the VOCR 

gang members made a threatening gesture moving his hand toward his waist like he was 

going to retrieve something from his pocket but did not ultimately produce a weapon. 

Defendant then shot the two VOCR gang members.

Given the context of gang rivalry, the verbal statements of the VOCR gang 

members and their physical movements, there was sufficient evidence to conclude 

defendant acted in the actual but unreasonable belief that he was in imminent danger of 

death or great bodily injury. Accordingly, there was sufficient evidence to submit the 

issue of imperfect self-defense to the jury.

The People point to defendant’s use of the “derogatory” phrase “what’s up ese” as 

evidence that he did not believe he was in imminent danger. But the evidence was in 

conflict on whether that phrase was derogatory or aggressive. While Detective Diaz 

testified that “[t]ypically” it is used by a Sureño confronting a rival gang member, G.V. 
19.

said the phrase was not aggressive.8 Instruction is required on all lesser included 

offenses supported by the evidence regardless of the relative strength of the evidence on 

alternate offenses. (People v. Breverman (1998) 19 Cal.4th 142, 160 (Breverman).) The 

question is not which theory of the offense is most consistent with the evidence but rather 

whether the uninstructed theory was supported by evidence sufficient to merit 

consideration by the jury. (See People v. Anderson (2006) 141 Cal.App.4th 430, 443 

(Anderson).) We determine only the “bare legal sufficiency” of the evidence, “not its 

weight.” (Breverman, at p. 177.) Because there was evidence the phrase was not 

aggressive, it is immaterial that there was other, perhaps even stronger, evidence the 

phrase was aggressive.9

In making these observations, we do not deny the contrary evidence indicating that 

defendant may well have intended to murder the victims before their verbal interaction. 

(People v. Vasquez (2006) 136 Cal.App.4th 1176, 1179.) Rather we “hold only that it 

was for the jury, not the judge, to infer what [defendant] believed” with respect to 

imperfect self-defense. (Ibid.) In other words, the fact that the People have formulated a 

coherent view of the evidence consistent with the offense for which the jury was 

instructed does not mean it was unnecessary to instruct the jury on lesser included 

offenses supported by other evidence or inferences. (See Breverman, supra, 19 Cal.4th at 

p. 160; Anderson, supra, 141 Cal.App.4th at p. 443; see also People v. Vasquez, at 

p. 1179 & fn. 2.)

The People argue that the reactions of Esquibel and Lizaola were “legally justified 

responses” to defendant’s “verbal challenge.” The People rely on People v. Enraca 

8 When asked if he thought it was aggressive, R.M. said, “I don’t know. He just 

said what’s up.” 

9 Moreover, accepting that the phrase was “aggressive” does not preclude 

imperfect self-defense. One reasonable inference from the evidence is that defendant 

could have been fearful of imminent harm and was trying to intimidate the rival gang 

members as a means of self-defense.
20.

(2012) 53 Cal.4th 735 for the proposition that imperfect self-defense cannot be invoked 

“ ‘ “ ‘by a defendant who, through his own wrongful conduct (e.g., the initiation of a 

physical attack or the commission of a felony), has created circumstances under which 

his adversary’s attack or pursuit is legally justified.’ ” ’ ” (Id. at p. 761.) However, on 

the present standard of review, it is not dispositive that the People’s view of the evidence 

is plausible or even persuasive. What matters is that there was substantial evidence 

supporting the uninstructed theory (i.e., that “[w]hat’s up ese” is not aggressive). (See 

Breverman, supra, 19 Cal.4th at p. 160; Anderson, supra, 141 Cal.App.4th at pp. 442–

443.) “A defendant’s right to instructions does not turn on the court’s assessment of 

credibility or the strength of the evidence.”10 (People v. Cleaves, supra, 229 Cal.App.3d 

at p. 371.)

The People next observe that defendant did not testify nor introduce any “direct” 

evidence of his mental state to justify imperfect self-defense. However, even a 

defendant’s subjective mental state does not need to be proven or supported with direct 

evidence but instead may be shown by circumstantial evidence. (People v. Superior 

Court (Costa) (2010) 183 Cal.App.4th 690, 697.) Indeed, this is common given that 

direct evidence of mental state is rarely available. (People v. Beeman (1984) 35 Cal.3d 

547, 558.) Here, the circumstantial evidence supported the inference defendant was in 

10 Even if the standard of review permitted us to resolve this factual issue 

regarding the phrase “[w]hat’s up ese,” we doubt it is sufficient to trigger the doctrine 

relied upon by the People. Whatever else can be said of the phrase, it is neither a 

physical attack nor the commission of the felony. Even if other forms of conduct could 

suffice, it seems incongruous to argue that, in context, the phrase “[w]hat’s up ese” would 

have justified a perfect self-defense response from Esquibel and Lizaola but, in the same 

context, the phrases “what’s up bitch” or “[s]hut up ho” along with arguably threatening 

gestures do not even justify the jury’s consideration of an imperfect self-defense response 

by defendant. (See People v. Vasquez, supra, 136 Cal.App.4th at p. 1179 [doctrine 

defeating imperfect self-defense applies where the defendant’s conduct would legally 

justify a self-defensive response by the victim].)
21.

actual fear due to the situation described above (e.g., defendant was approached by rival 

gang members with tattoos who made aggressive statements and gestures).

The People also point to the fact that defendant’s theory at trial was that someone 

else shot the victims, which is inconsistent with defendant acting in imperfect selfdefense. But once there is sufficient evidence of a lesser included offense theory, a court 

must instruct on it even if “ ‘the alternate theory . . . is inconsistent with the defense 

elected by the defendant. . . .’ ” (People v. Eilers (1991) 231 Cal.App.3d 288, 294.)

We next consider prejudice.

D. The Error was Harmless

An erroneous failure to instruct on voluntary manslaughter can be harmless in 

light of the entire record. (See Breverman, supra, 19 Cal.4th at pp. 164–165; see also 

People v. Gonzalez (2018) 5 Cal.5th 186, 195–196, 201.) Reversal is not permitted 

“unless an examination of the entire record establishes a reasonable probability that the 

error affected the outcome.”11 (Breverman, at p. 165.)

“[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 

11 Defendant argues a stricter standard for prejudice applies, relying on People v. 

Thomas (2013) 218 Cal.App.4th 630, 644 and People v. Dominguez (2021) 

66 Cal.App.5th 163, 183. However, Thomas distinguished Breverman’s usage of the

People v. Watson (1956) 46 Cal.2d 818, 836 (Watson) standard on the grounds that 

Thomas involved a requested instruction while Breverman dealt with the sua sponte duty 

to instruct on lesser included offenses. (Thomas, at p. 644.) On this distinguishing 

factor, the present case falls under Breverman rather than Thomas.

In any event, Dominguez and Thomas are Court of Appeal opinions while 

Breverman and Gonzalez are Supreme Court opinions. This issue is currently pending 

review by the Supreme Court in People v. Schuller (2021) 72 Cal.App.5th 221, review 

granted, January 19, 2022, S272237. Unless and until the Supreme Court overrules 

Breverman and Gonzalez, we will follow their lead and apply Watson.
22.

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 (Beltran).)

While we determined above that the issue of imperfect self-defense should have 

been submitted to the jury, we also conclude below there is no reasonable probability 

defendant would have obtained a more favorable result if it had. 

G.V. testified that as the two victims were approaching, defendant sat back and put 

his right hand near his waist (which is where he would later pull the weapon from).12 

Both victims were “going to pass by” and made nonaggressive, upward movements with 

their heads as a greeting. Defendant said, “What’s up ese[?]” A detective with years of 

prior experience in the gang unit testified that the phrase is typically used as an 

aggressive statement by a Sureño confronting a rival gang member. 

Perhaps most importantly, R.M. testified that when defendant made the statement, 

one of the victims “look[ed] back,” which indicates the two victims were past defendant 

and were otherwise going to pass by without incident. 

After defendant’s statement, the victim(s) responded with, “[W]hat’s up bitch[?]” 

and/or “Shut up ho.” One pretended to punch defendant but did not. And one made a 

gesture toward his waist but did not retrieve a weapon. Defendant shot and killed them 

both. When he came in contact with a police officer later that day, defendant did not say 

what happened, which might be expected if defendant thought he was acting in selfdefense.

The evidence supporting malice was substantially stronger than the evidence 

supporting self-defense. We acknowledge that there was some evidence the victims were 

eventually aggressive toward defendant, including their verbally aggressive responses, 

pretending to punch defendant, and making a threatening gesture toward the waist. But 

12 R.M. described it as defendant sitting back once he saw the two victims 

approaching. 
23.

this evidence was far weaker than the evidence of malice. Because while one of the 

victims pretended like he was going to punch defendant, he ultimately did not. And 

while one of the victims gestured toward his waist, he was never seen with a weapon. 

Defendant posits that his preparation to shoot the victims as demonstrated by his 

shifting of position on the bench and moving his hand toward his waist where he had a 

gun, was “consistent with preparing to kill should it be necessary to defend himself.” But 

that interpretation is substantially undermined by the evidence that the two victims were 

indeed planning to – and nearly did – walk by defendant without incident. Indeed, they 

made a nonaggressive, nonverbal greeting with their heads while walking by. Only after 

defendant said, “What’s up ese[?]” did one of the victims “look[] back” and make a 

verbal response.

In sum, the evidence of malice was substantially stronger than the evidence of 

imperfect self-defense, such that we are confident that it is not reasonably probable the 

jury would have reached a different outcome if instructed on imperfect self-defense.13

II. The People Concede the Gang Enhancements Must be Reversed

Defendant raises two contentions with regard to the gang enhancements to each 

count. (§ 186.22, subd. (b).) First, he contends the gang enhancements must be reversed 

based on changes to the law made by Assembly Bill No. 333. Second, he contends 

insufficient evidence supports the gang enhancements under the version of section 186.22 

in effect at trial, as clarified by our high court in Renteria, supra, 13 Cal.5th 951. 

13 The People also note that the jury necessarily found defendant “premeditated” 

the murder. Defendant insists that finding is not necessarily dispositive of the same issue 

presented by imperfect self-defense because defendant’s “premeditation” may have been 

a “conditional” decision to kill the victims “should it be necessary” (italics omitted). 

Defendant effectively argues such a killing would be premeditated and an example of 

imperfect self-defense, which would constitute voluntary manslaughter. We need not 

determine whether the verdict as to premeditation and deliberation establishes 

harmlessness, as we find the evidentiary imbalance described above sufficient to establish 

harmlessness under Watson.
24.

At the time of defendant’s trial in 2021, section 186.22, subdivision (b)(1) 

required proof that: (1) the defendant committed a felony for the benefit of, at the 

direction of, or in association with a criminal street gang and, (2) he did so with the intent 

to promote, further, or assist in criminal conduct by gang members. In Renteria, our 

Supreme Court clarified the showing required to meet these standards when the defendant 

acts alone. (See Renteria, supra, 13 Cal.5th at pp. 963-964 [explaining that “cases 

involving lone actors pose different problems”].) Specifically, “[i]n a case involving a 

gang member who has acted alone in the commission of a felony, there must be evidence 

connecting testimony about any general reputational advantage that might accrue to the 

gang because of its members’ crimes to the defendant’s commission of a crime on a 

particular occasion for the benefit of the gang, and with the specific intent to promote 

criminal activities by the gang’s members.” (Id. at p. 969.) 

The People concede the evidence was insufficient to show defendant had 

knowledge of the criminal activities of the members of his gang, and no evidence was 

presented to suggest defendant specifically intended to promote criminal activities by the 

gang’s members. The People therefore concede the evidence is insufficient to prove 

defendant had the specific intent to promote criminal activities by the gang’s members, as 

required by Renteria. (Renteria, supra, 13 Cal.5th at p. 969.) We accept the People’s 

concession on this point and will reverse the gang enhancements and remand for 

resentencing.14 Because Renteria requires reversal without permitting the People to retry 

the gang allegation, we need not, and therefore do not, address defendant’s additional 

contention that the gang enhancements must be reversed under Assembly Bill No. 333’s 

amendments to section 186.22, which would permit retrial. 

14 This moots defendant’s contention that the court’s imposition of a parole 

revocation restitution fine was improper. However, we note that if defendant’s sentence 

after resentencing has no parole eligibility, no parole revocation restitution fine should be 

imposed. 
25.

III. Section 1109 

Assembly Bill No. 333 also added section 1109, which requires bifurcation of the 

trial of gang enhancements from that of the underlying offenses upon a defendant’s 

request. (§ 1109, subds. (a), (b).) Defendant contends section 1109 applies retroactively 

to him, and the court’s failure to bifurcate entitles him to a new trial on the substantive 

offenses. The People argue section 1109 does not apply retroactively and, in any event, 

any error in failing to bifurcate the gang-related allegations was harmless. We conclude 

the failure to bifurcate the gang-related allegations was harmless and therefore do not 

address the parties’ arguments regarding retroactivity. 

A. Applicable Law

Courts of Appeal have split on the retroactive application of section 1109. (See, 

e.g., People v. Boukes (2022) 83 Cal.App.5th 937, 948, review granted Dec. 14, 2022, 

S277103 [§ 1109 does not apply retroactively]; People v. Ramirez (2022) 79 Cal.App.5th 

48, 65, review granted Aug. 17, 2022, S275341 [same]; People v. Perez (2022) 78 

Cal.App.5th 192, 207, review granted Aug. 17, 2022, S275090 [same]; but see, e.g., 

People v. Montano (2022) 80 Cal.App.5th 82, 108 [§ 1109 applies retroactively]; People 

v. Ramos (2022) 77 Cal.App.5th 1116, 1128–1130 [same]; People v. Burgos (2022) 77 

Cal.App.5th 550, 564–569 (Burgos), review granted July 13, 2022, S274743 [same]; but 

see also Burgos, at p. 569 (dis. opn. of Elia, J.) [§ 1109 does not apply retroactively].) 

In People v. Tran (2022) 13 Cal.5th 1169 (Tran), our Supreme Court declined to 

resolve this split of authority, concluding that “any asserted error in failing to bifurcate 

was harmless” on the facts of that case.15 (Tran, at p. 1208.) The high court held that 

error in failing to bifurcate trial of gang-related allegations pursuant to section 1109 is

subject to review under the harmlessness standard articulated in Watson, supra, 46 Cal.2d 

15 The issue of section 1109’s retroactivity is again pending before our Supreme 

Court in Burgos, supra, 77 Cal.App.5th 550, review granted July 13, 2022, S274743.
26.

818, absent a showing that the failure to bifurcate violated the defendant’s federal 

constitutional right to due process. (Tran, at pp. 1208-1210.) 

“[T]he admission of evidence, even if erroneous under state law, results in a due 

process violation only if it makes the trial fundamentally unfair.” (People v. Partida 

(2005) 37 Cal.4th 428, 439, italics omitted.) Thus, to prove a deprivation of federal due 

process rights, a defendant must satisfy a high constitutional standard. “ ‘Only if there are 

no permissible inferences the jury may draw from the evidence can its admission violate 

due process. Even then, the evidence must “be of such quality as necessarily prevents a 

fair trial.” [Citations.] Only under such circumstances can it be inferred that the jury 

must have used the evidence for an improper purpose.’ [Citation.] ‘The dispositive issue 

is . . . whether the trial court committed an error which rendered the trial “so ‘arbitrary 

and fundamentally unfair’ that it violated federal due process.” ’ ” (People v. Albarran

(2007) 149 Cal.App.4th 214, 229–230 (Albarran).) Where the admission of evidence 

violates due process by rendering the trial fundamentally unfair, we review the error 

under the harmless-beyond-a-reasonable-doubt standard articulated in Chapman v. 

California (1967) 386 U.S. 18, 24. 

B. Some Gang Evidence Remained Admissible

“[N]othing in Assembly Bill [No.] 333 limits the introduction of gang evidence in 

a bifurcated proceeding where the gang evidence is relevant to the underlying charges.” 

(People v. Ramos (2022) 77 Cal.App.5th 1116, 1132.) It is well-settled that “[t]he People 

are generally entitled to introduce evidence of a defendant’s gang affiliation and activity

if it is relevant to the charged offense.” (People v. Chhoun (2021) 11 Cal.5th 1, 31.) 

Relevant evidence on issues such as motive and identity can include “[e]vidence 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.” 

(People v. Hernandez (2004) 33 Cal.4th 1040, 1049.) “[E]vidence of a defendant’s gang 

membership creates a risk the jury will improperly infer the defendant has a criminal 
27.

disposition and is therefore guilty of the offense charged[.]” (People v. Carter (2003) 30 

Cal.4th 1166, 1194.) Nonetheless, where relevant, such evidence is admissible “if its 

probative value is not substantially outweighed by its prejudicial effect.” (Ibid.; see 

People v. Avitia (2005) 127 Cal.App.4th 185, 192–193.)

Here, much of the gang evidence would have remained relevant and admissible, 

even if trial of the gang-related allegations had been bifurcated. (People v. Carter, supra, 

30 Cal.4th at p. 1194 [evidence of gang membership is “admissible when relevant to 

prove identity or motive, if its probative value is not substantially outweighed by its 

prejudicial effect”]; People v. Samaniego (2009) 172 Cal.App.4th 1148, 1167 [“Gang 

evidence is relevant and admissible when the very reason for the underlying crime, that is 

the motive, is gang related.”].) The People could permissibly present evidence regarding 

the VLS and VOCR gang subsets, as well as defendant’s and victims’ respective 

memberships in such gangs, to show that gang rivalry motivated the otherwise 

unprovoked shooting. Evidence of defendant’s gang-related motive also was 

inferentially relevant on the issue of premeditation, and to identify defendant as the 

shooter. Identity, in particular, was clearly at issue in this case, making such evidence 

highly probative. The admissibility of this evidence to prove motive, identity, and/or 

premeditation, dispels any inference of prejudice arising from the failure to bifurcate. 

(See People v. Hernandez, supra, 33 Cal.4th at pp. 1049–1050.) 

C. Any Inadmissible Evidence Did Not Violate Due Process

We acknowledge, however, that not all the gang evidence would have been 

admitted in a bifurcated trial of only the substantive offenses. For example, evidence 

regarding defendant’s prior law enforcement contacts may have been excluded as 

cumulative or only minimally probative. Nonetheless, these contacts tended to show 

defendant’s membership in the gang, a fact for which we have already explained the 

relevance. We therefore cannot say that there were no permissible inferences the jury 
28.

could draw from such evidence, such that its admission violated defendant’s right to due 

process. (See Albarran, supra, 149 Cal.App.4th at pp. 229–230.) 

Additionally, evidence regarding predicate offenses committed by defendant’s 

fellow VLS gang members had no relevance to the substantive offenses. The jury could 

draw no permissible inferences from this evidence. Nonetheless, this evidence was not 

“ ‘ “of such quality as necessarily prevents a fair trial.” ’ ” (Albarran, supra, 149 

Cal.App.4th at p. 229.) The predicate offenses testified to at trial included burglary, 

assault with a firearm, unlawful possession of a firearm, assault with a deadly weapon 

other than a firearm or by means likely to produce great bodily injury on a peace officer 

in the performance of his or her duties, and driving with willful or wanton disregard for 

the safety of persons or property while fleeing from a pursuing peace officer. Only 

minimal detail was provided regarding each predicate offense. None of the offenses were 

committed by defendant. Evidence of the predicate offenses was not particularly 

inflammatory, especially when viewed in light of the charged offenses. The evidence 

was not of such a type or quantity to render the trial fundamentally unfair.

D. Albarran is Distinguishable 

In this regard, we reject defendant’s attempt to analogize his case to Albarran, 

supra, 149 Cal.App.4th 214. In Albarran, two men shot at a house during a party, then 

fled on foot and jumped into a car occupied by three or four women. (Id. at pp. 217–

218.) Three of the women identified Albarran as one of the men who jumped into the 

car. (Id. at p. 219.) Prior to trial, Albarran sought to exclude as irrelevant evidence of his 

gang affiliation and evidence the crimes were gang related. He also argued the evidence 

was inadmissible under Evidence Code section 352. (Albarran, at p. 219.) The 

prosecutor acknowledged he had “no percipient witness or evidence to prove the crime 

was gang related or motivated, but instead would be relying on testimony of the sheriff’s 

gang expert, Deputy Gillis, who was most familiar with Albarran and his gang, the 13 

Kings.” (Ibid.) Following an Evidence Code section 402 hearing, the court determined a 
29.

sufficient foundation had been laid for the expert testimony on the gang enhancements 

and gang evidence. The court also concluded the gang evidence was relevant to the 

issues of motive and intent as to the underlying charges, and the probative value of the 

evidence outweighed any prejudice. (Albarran, at p. 220.) 

Gang evidence was introduced at trial and was frequently referenced by the 

prosecution. During his opening argument, the prosecutor referred to Albarran being a 

member of a “ ‘dangerous’ ” street gang, and described one of Albarran’s tattoos as a 

“ ‘reference to the Mexican Mafia, which is a violent prison street gang that controls the 

Hispanic street gangs.’ The prosecutor noted that when a person has such a tattoo it 

shows allegiance to the Mexican Mafia.” (Albarran, supra, 149 Cal.App.4th at p. 220.) 

Three law enforcement officers, including the gang expert, testified Albarran was a 

member of the 13 Kings street gang. Additionally, the gang expert testified to the 

following:

“Deputy Gillis testified he had 20 face-to-face contacts with Albarran in the 

prior two years. He described in detail Albarran’s gang involvement, his 

tattoos and his gang moniker, ‘Flaco.’ He testified that the shooting 

occurred in the 13 Kings’ gang area not far from Albarran’s home. Deputy 

Gillis stated Albarran had been ‘jumped into’ the gang and that Albarran’s 

brother had been recently jumped in as well. Deputy Gillis explained 

Albarran had a number of gang tattoos, including one referencing the 

Mexican Mafia. He also testified concerning the prevalence of 13 Kings 

graffiti around Albarran’s home. Deputy Gillis described one piece of 

graffiti he attributed to Albarran’s gang which contained a specific threat to 

murder police officers. He also identified a number of 13 Kings gang 

members by name and monikers and described arresting them. Gillis told 

the jury the 13 Kings committed a number of criminal offenses, including 

robberies, drive-by shootings, carjackings, and felony vandalism. Deputy 

Gillis explained how gang members gain respect by committing crimes and 

intimidating people. Deputy Gillis stated that during the commission of a 

crime a gang member makes himself known and can gain respect by 

showing or ‘throwing’ gang signs, yelling out an announcement of his 

presence or tagging. Gillis conceded that there was no evidence in this case 

that any of the shooters had made themselves known—the shooters made 

no announcements, did not throw any gang signs and there was no graffiti 
30.

referring to the crime. Nonetheless, Gillis insisted that the shooters would 

gain respect within the gang absent such evidence because the people 

present at the party would know who was present at the party and would 

also know the shooters. Deputy Gillis testified that ‘by word of mouth, 

word on the street,’ it was known the Los Compadres gang was at the party.

“Deputy Gillis opined that the shooting . . . was gang related and 

intended to benefit the 13 Kings street gang because: (1) the shooting 

occurred in Palmdale; (2) it occurred at a party and gang members often 

commit crimes during parties; and (3) more than one shooter was involved. 

Deputy Gillis stated that when these crimes were committed the 13 Kings 

were involved in an active gang war. Deputy Gillis also testified [the 

owner of the home where the party occurred] was a member of another 

gang, the Pierce Boys Gang, but he admitted he was unfamiliar with the 

Pierce Boys Gang and knew of no rivalry between Albarran’s gang and the 

Pierce Boys Gang.” (Albarran, supra, 149 Cal.App.4th at pp. 220–221.)

The jury convicted Albarran on multiple counts and found gang enhancements to 

be true. Albarran filed a new trial motion, asserting insufficient evidence supported the 

gang allegations and, absent the gang allegations, the gang evidence was irrelevant and 

overly prejudicial with respect to the underlying charges. The trial court granted the new 

trial motion as to the gang enhancements and they were dismissed. However, the court 

denied the new trial motion as to the underlying charges. (Albarran, supra, 149 

Cal.App.4th at p. 222.)

The Court of Appeal reversed, finding the gang evidence was improperly 

admitted, violating federal due process and rendering the trial fundamentally unfair. 

(Albarran, supra, 149 Cal.App.4th at p. 232.) The court concluded there was 

“insufficient evidence to support the contention that [the] shooting was done with the 

intent to gain respect [within the gang].” (Id. at p. 227.) Rather, the motive for the 

shooting “was not apparent from the circumstances of the crime.” (Ibid.) Specifically, 

the gang associated with the house where the shooting occurred had no “known or 

relevant gang rivalries”; the shooters did not announce their presence or purpose before, 

during, or after the shooting; and no gang members had bragged about their involvement, 

created graffiti to that effect, or took credit for it. (Ibid.) Even the People’s gang expert 
31.

“conceded he did not know the reason for the shooting, though he had ‘heard’ that gang 

members were present at the party.” (Ibid.) Ultimately, the only evidence supporting the 

“respect motive” proffered by the People was “the fact of Albarran’s gang affiliation.” 

(Ibid.) 

The court also noted that the People admitted “extremely inflammatory gang 

evidence” with no connection to the crimes. (Albarran, supra, 149 Cal.App.4th at 

p. 227.) The gang expert testified “at length” about the identities of Albarran’s fellow 

gang members, the crimes they had committed, and the “numerous contacts” between 

them and the police. (Id. at pp. 227–228.) The expert described “a specific threat” the 

gang had made in graffiti “to kill police officers.” (Id. at p. 228.) The jury also heard 

references to the Mexican Mafia during the prosecutor’s argument and the gang expert’s 

testimony. “All of this evidence was irrelevant to the underlying charges and obviously 

prejudicial.” (Ibid.) The court surmised this evidence “approached being classified as 

overkill.” (Ibid.) 

Moreover, no permissible inferences could be drawn from this evidence and there 

was “a real danger that the jury would improperly infer that whether or not Albarran was 

involved in these shootings, he had committed other crimes, would commit crimes in the 

future, and posed a danger to the police and society in general and thus he should be 

punished.” (Albarran, supra, 149 Cal.App.4th at p. 230.) The inflammatory nature of 

the evidence “could only have served to cloud [the jury’s] resolution of the issues.” 

(Ibid.) Accordingly, the court determined the gang evidence was “ ‘ “of such quality as 

necessarily prevents a fair trial.” ’ ” (Id. at pp. 230–231.) Furthermore, “[g]iven the 

nature and amount of this gang evidence at issue, the number of witnesses who testified 

to Albarran’s gang affiliations and the role the gang evidence played in the prosecutor’s 

argument,” the court could not conclude “beyond a reasonable doubt that the error did not 

contribute to the verdict.” (Id. at p. 232.)
32.

The outcome in Albarran was compelled, in part, by a complete absence of 

evidence that the crimes were gang related or, more importantly, that Albarran had any 

gang-related motivation. (Albarran, supra, 149 Cal.App.4th at pp. 217, 222, 227.) The 

instant case is distinguishable on this basis. Here, clear evidence supported a gangrelated motivation for the shootings. Defendant initiated contact with the two victims by 

saying, “What’s up ese[?]” Diaz testified that the phrase “what’s up ese” (boldface 

omitted) is an aggressive statement used when a Sureño gang member confronts a rival 

gang member, whether Norteño or Bulldog. The victims’ immediate response to the 

statement corroborates Diaz’s view that the phrase constituted an aggressive, gangrelated salvo. The exchange between defendant and the victims provided a sufficient 

basis to permit the People to introduce evidence of motive based on gang rivalry.

Moreover, the gang-related evidence presented in the instant case was less 

inflammatory than that presented in Albarran. The evidence regarding defendant’s prior, 

gang-related law enforcement contacts included reference to a citation for his violation of 

a gang injunction, and the suggestion that he was an occupant of a vehicle, some or all of 

whose occupants had engaged in an argument or fight with a rival gang member. The 

encounters otherwise did not refer to criminal activity on defendant’s part. Additionally, 

unlike the predicate offenses in Albarran, which were testified to “at length” (Albarran, 

supra, 149 Cal.App.4th at pp. 227–228), the predicate offenses testified to in defendant’s 

trial were described in only minimal detail. 

Defendant makes much of the number of gang witnesses and the time their 

testimony consumed. In Albarran, the prosecutor relied primarily on the testimony of its 

gang expert, which “consumed the better part of an entire trial day (in a six-day trial) and 

span[ned] 70 pages of the reporter’s transcript.”16 (Albarran, supra, 149 Cal.App.4th at 

16 At the time of Albarran’s trial, a gang expert could permissibly testify regarding 

case-specific facts of which he had no firsthand knowledge, under the guise such 

testimony was not offered for its truth. (People v. Sanchez (2016) 63 Cal.4th 665, 680-
33.

p. 227, fn. 10.) Here, eight witnesses, other than the expert witness, presented gangrelated testimony over the course of two days. Many other percipient witnesses were 

interspersed with these witnesses. The testimony of these witnesses concerned the 

predicate offenses and petitioner’s law enforcement contacts, and spanned approximately 

49 pages of the reporter’s transcript. Each witness testified for approximately five to 15

minutes. A portion of that testimony covered the biographical details of each witness. 

The gang expert testified for approximately two and one half hours. The length and 

volume of this testimony, whether standing alone or viewed in the context of the entire 

trial, does not suggest defendant’s trial was fundamentally unfair. 

Finally, we acknowledge defendant’s point that the gang expert in his case, like 

the gang expert in Albarran, mentioned the Mexican Mafia. He did so in three instances: 

(1) in explaining that the Sureño gang falls under the umbrella of the Mexican Mafia and 

Sureños may be required to pay money to the Mexican Mafia for protection of 

incarcerated Sureños; (2) to explain that tattoos of the letter “M” or the number 13 (which 

references the 13th letter of the alphabet, M), show an alliance with the Mexican Mafia; 

and (3) to opine that defendant’s Marilyn Monroe tattoo was a reference to the initials of 

the Mexican Mafia, MM. No other information was presented regarding the Mexican 

Mafia or its activities. The expert did not characterize the Mexican Mafia as a “ ‘violent

prison street gang that controls the Hispanic street gangs’ ” (Albarran, supra, 149 

Cal.App.4th at p. 220), or provide any other context that would make reference to the 

Mexican Mafia any more prejudicial than reference to VLS or the Sureño criminal street 

gang. These brief references to the Mexican Mafia did not render defendant’s trial 

fundamentally unfair.

684.) Doing so is no longer permissible. Rather, such evidence must be introduced 

through appropriate witnesses. (Id. at p. 684.) It therefore is not clear that Albarran

continues to provide a meaningful benchmark regarding the volume of gang-related 

witnesses or testimony that may be considered “overkill.” (See Albarran, supra, 149 

Cal.App.4th at p. 228.)
34.

E. Failure to Bifurcate was Harmless 

Because failure to bifurcate did not render the trial fundamentally unfair, we 

review for prejudice under the Watson standard. (Tran, supra, 13 Cal.5th at p. 1209.) 

We conclude there is “ ‘no reasonable probability the error of which the defendant 

complains affected the result.’ ” (Beltran, supra, 56 Cal.4th at p. 956.)

First, the evidence of defendant’s guilt was overwhelming. G.V. and R.M. both 

identified defendant at trial as the shooter, although G.V.’s in-court identification was 

less certain. R.M. also readily identified defendant in a photographic lineup, and 

provided law enforcement with key identifying information regarding defendant’s zip 

code tattoo. G.V. likewise was able to provide identifying information regarding 

defendant’s tattoos, in particular a “V” and another large, linear letter on his legs. In 

addition, both G.V. and R.M. reported to law enforcement that the shooter identified the 

woman who passed by the bench on a bicycle with a trailer prior to the shooting as his 

sister. A card bearing defendant’s sister’s name was found in the trailer of a bike found 

within the crime scene area. 

In contrast, as we have explained, the inadmissible gang-related evidence was not 

highly inflammatory. Descriptions of defendant’s law enforcement contacts, the 

predicate offenses, and the Mexican Mafia were brief. Given the admissibility of the 

most significant gang evidence on the issues of motive and identity, it is not reasonably 

probable that a result more favorable to defendant would have been reached had the 

gang-related allegations been bifurcated. (Watson, supra, 46 Cal.2d at p. 837.) In sum, 

any error in failing to bifurcate the gang-related allegations was harmless. 
35.

DISPOSITION

Defendant’s two gang enhancements are reversed and the matter is remanded for 

resentencing. In all other respects, the judgment is affirmed.

DETJEN, J.

I CONCUR:

LEVY, Acting P. J.
POOCHIGIAN, J., Concurring.

I concur in the judgment, and the court’s reasoning concerning the reversal of the 

gang enhancements and the failure to instruct on imperfect self-defense. However, I 

would resolve defendant’s claim regarding Penal Code section 11091 on the merits rather 

than on the basis of harmlessness.2

IV. Section 1109 is Not Retroactive

“Assembly Bill No. 333 [] enacted section 1109. Section 1109, which took effect 

on January 1, 2022, requires trial courts to bifurcate the trial on a gang enhancement if 

the defendant so requests. (§ 1109, subd. (a); Stats. 2021, ch. 699, § 5.) A bifurcated 

trial on a gang enhancement will occur only if the defendant is first found guilty of the 

underlying offense. (§ 1109, subd. (a)(1) & (a)(2).)” (People v. Ramirez 

(2022) 79 Cal.App.5th 48, 64–65, review granted Oct. 12, 2022, S275341.)

“Assembly Bill No. 333 did not expressly address whether any of its provisions 

were intended to apply retroactively or only prospectively.” (People v. Ramirez, 

supra, 79 Cal.App.5th at p. 65.) 

Defendant contends that the judgment should be reversed because section 1109 is 

retroactive and “entitles a defendant, upon request, to have the gang allegation 

1 All further statutory references are to the Penal Code unless otherwise stated.

2 The majority observes that some of the gang evidence would have been 

admissible to prove motive even at a bifurcated trial on the nongang offenses. But that 

would primarily extend only to evidence that defendant and the victims belonged to rival 

groups and that killing rivals is something gang members do. The evidence that 

defendant belonged to a group whose members have, in the past, committed a whole host 

of serious crimes would presumably not be admissible to prove motive. As the majority 

acknowledges, the jury here learned that defendant’s compatriots committed burglary, 

assault with a firearm, unlawful possession of a firearm, assault with a deadly weapon 

other than a firearm or by means likely to produce great bodily injury on a peace officer 

in the performance of his or her duties and driving with willful or wanton disregard for 

the safety of persons or property while fleeing from a pursuing peace officer. The issue 

of whether such evidence was prejudicial is much closer than the issue of whether there 

was error under section 1109.
2.

adjudicated separately after a trial to determine his guilt.” However, section 1109 is not 

retroactive and therefore inapplicable to defendant’s case.

Analysis

No part of the Penal Code is retroactive unless it says so “expressly.” (§ 3.) 

Section 1109 is part of the Penal Code and does not expressly state that it is retroactive. 

As a result, section 1109 is not retroactive.

Defendant resists this straightforward conclusion, relying on In re Estrada (1965) 

63 Cal.2d 740 (Estrada.) However, the Supreme Court has since acknowledged that 

Estrada “[s]harply depart[ed] from the language of section 3.” (People v. Brown (2012) 

54 Cal.4th 314, 324 (Brown).) Accordingly, our high court has “declined to follow 

Estrada’s remarks about section 3.” (Ibid.) Whatever else may be said of it, Estrada did 

not modify the well-established default of prospective application mandated by the 

Legislature. (Brown, at p. 324.)

Instead, Estrada is “properly understood, not as weakening or modifying the 

default rule of prospective operation codified in section 3, but rather as informing the 

rule’s application in [the] specific context” of mitigating punishment for a particular 

criminal offense. (Brown, supra, 54 Cal.4th at p. 324.) In other contexts, the Supreme 

Court has taken a case-by-case approach. For example, the Supreme Court has given 

retroactive effect to statutes involving pretrial diversion programs, Proposition 57, and 

amendments to section 186.22, while declining to give retroactive effect to 

Proposition 51 and statutory changes to the accrual rate of conduct credits. (See People 

v. Tran (2022) 13 Cal.5th 1169, 1238; People v. Frahs (2020) 9 Cal.5th 618; People v. 

Superior Court (Lara) (2018) 4 Cal.5th 299; Brown, supra, 54 Cal.4th at pp. 324–326; 

Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1208–1209.) To date, the 

Supreme Court has declined to determine whether the statute at issue here, section 1109, 

is retroactive. (People v. Tran, at p. 1239.)
3.

In the specific contexts where the Supreme Court has required it, courts are bound 

to follow Estrada’s departure from section 3. (Auto Equity Sales, Inc. v. Superior Court

(1962) 57 Cal.2d 450, 455). But we should not expand it. (See Brown, supra, 54 Cal.4th 

at p. 324 [Estrada properly plays a “limited role” in jurisprudence of prospective versus 

retrospective application].) In fact, we are precluded from expanding it, because while 

we must follow Supreme Court precedents where they apply, we are bound by section 3 

in all other circumstances. (See Code Civ. Proc., § 1858.)

Even if it were permissible to consider extending Estrada, we should not expand 

it. Estrada stands for the proposition that, in the absence of contrary indication of 

legislative intent, legislation that “ameliorates punishment” applies to all nonfinal cases. 

(People v. Esquivel (2021) 11 Cal.5th 671, 675.) 

Estrada reasoned,

“When the Legislature amends a statute so as to lessen the punishment it 

has obviously expressly determined that its former penalty was too severe 

and that a lighter punishment is proper as punishment for the commission 

of the prohibited act. It is an inevitable inference that the Legislature must 

have intended that the new statute imposing the new lighter penalty now 

deemed to be sufficient should apply to every case to which it 

constitutionally could apply.” (Estrada, supra, 63 Cal.2d at p. 745.)

Regardless of whether this rationale can be reconciled with section 3 as a general 

matter,3it does not apply to section 1109. Section 1109 does not mitigate or ameliorate 

punishment. (People v. Ramirez, supra, 79 Cal.App.5th at p. 65.) Rather, it is “a 

procedural statute” concerning bifurcation of proceedings intended to avoid prejudice 

occasioned “by the introduction of evidence to support gang enhancement allegations.” 

3

I do not deny the temptation to reason that if the Legislature thinks a particular 

change is good for future cases, it must think those changes would also be good for past 

cases. In other words, that we should presume retroactivity. But that is the diametrical 

opposite of what is required by the abundantly clear language of section 3.
4.

(People v. Perez (2022) 78 Cal.App.5th 192, 207, review granted Aug. 17, 2022, 

S275090.) 

Some cases have held section 1109 does “ameliorate punishment” because the 

new procedural changes might avoid wrongful convictions which would ultimately 

eliminate punishment for those particular defendants. (See People v. Montano (2022) 

80 Cal.App.5th 82, 106–107; People v. Burgos (2022) 77 Cal.App.5th 550, 567, review 

granted July 13, 2022, S274743; see also People v. Ramos (2022) 77 Cal.App.5th 1116, 

1129.) These cases elide the distinction between statutes intended to ameliorate 

punishment versus those that are intended to promote fair proceedings. 

This distinction is material because Estrada’s rationale that the Legislature would 

presumably desire retroactive application of intentionally ameliorative statutes does not 

necessarily apply to statutes with other interim or ultimate goals. Estrada cannot be 

taken to mean that presumptive retroactivity applies regardless of how indirectly a new 

statute might ultimately result in a lesser punishment in some unknown number of cases. 

Such an exception to section 3 would swallow the rule. Instead, the standard approach 

should apply to nonameliorative statutes, such that they apply prospectively unless the 

Legislature expressly says it applies retroactively.4 

We need not resort to harmlessness because defendant’s claim of error lacks merit. 

For these reasons, I concur in the judgment only.

POOCHIGIAN, J.

4 Given the volume of cases that analyze and struggle with the issue of 

retroactivity and the unambiguous meaning of section 3 – about which the Legislature is 

presumably well aware – the most sensible rule of statutory construction is that unless the 

legislation specifies it is retroactive, the Estrada exception for ameliorative sentencing 

does not apply and section 3 requires prospective application.