Filed 2/14/23 P. v. Olvera CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

MARTIN SANTOYO OLVERA,

Defendant and Appellant.

F082428

(Super. Ct. No. 19CR-06497C)

OPINION

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.

-ooOooA 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.
2.

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 PROCEDURALBACKGROUND

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 
3.

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, 
4.

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, 
5.

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 twodoor 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

1A 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 
6.

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.
7.

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.

2The 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.
8.

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.
9.

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.”
10.

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 drivethru 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.)
11.

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 
12.

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, 

3The 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.
13.

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.
14.

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 Tuesday, 

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 

4The testimony regarding D.P.’s phone records was hearsay, but it was elicited by Nagata 

without any objections from the other parties.
15.

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.”

5Felix’s testimony about not wanting to be a “fifth wheel” was the only evidence 

suggestive of a romantic relationship between defendant and Annabelle. The 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.
16.

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 
17.

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.

6The 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.
18.

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, 
19.

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

7Counsel 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 
20.

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.
21.

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 
22.

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.)
23.

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 
24.

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 COVID19?

“[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 
25.

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:
26.

“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.
27.

“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.”
28.

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. 
29.

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 

9By 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. 
30.

[“[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”].)
31.

“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.
32.

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 
33.

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 
34.

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, 
35.

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 
36.

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 
37.

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 
38.

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 
39.

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. 
40.

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 
41.

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 
42.

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 crossadmissibility 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 
43.

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’”].)
44.

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.