Filed 8/19/22 P. v. Rivera CA2/4

Opinion following rehearing

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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

MIGUEL RIVERA, 

Defendant and Appellant.

 B300948

 (Los Angeles County

 Super. Ct. No. TA143098)

APPEAL from a Judgment of the Superior Court of 

California. Ricardo R. Ocampo, Judge. Affirmed in part and 

reversed and remanded in part.

David D. Carico, under appointment by the Court of Appeal 

for Defendant and Appellant.

Matthew Rodriguez, Attorney General, Lance E. Winters, 

Chief Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Noah P. Hill and Marc A. Kohm, 

Deputy Attorneys General for Plaintiff and Respondent.
2

A jury convicted Defendant and Appellant Miguel Rivera of 

two counts of first-degree murder and two counts of being a felon 

in possession of a firearm (Pen. Code1, §§ 187, subd. (a), 29800, 

subd. (a)(1)), with true findings he personally discharged a 

firearm (§ 12022.53, subd. (d)), the murders were committed for 

the benefit of a street gang (§ 186.22, subd. (b)(1)(C)), and a 

special circumstance of multiple murder (§ 190.2, subd. (a)(3)). 

Rivera’s theory at trial was he committed the shootings in selfdefense.

Rivera argues the trial court erred in (1) admitting his 

statements to law enforcement and his confession to a police 

operative posing as a cellmate during a Perkins operation; 

(2) excluding character evidence of one of the victims under 

Evidence Code section 1103; (3) and instructing the jury on 

inapplicable theories of self-defense. He further argues (4) these 

errors were cumulative; (5) his convictions for felon in possession 

should be stayed pursuant to section 654; and (6) his parole 

revocation fine should be stricken. 

We filed an opinion rejecting Rivera’s arguments and 

affirming his conviction. Rivera subsequently filed a petition for 

rehearing, arguing for the first time that he was entitled to 

retroactive application of newly enacted amendments to section 

186.22. (See Assembly Bill No. 333, Stats 2021, ch. 699, § 3 (AB 

333).) Rivera contends, and the Attorney General concedes, that 

these amendments entitled him to remand and retrial on the 

gang enhancements. Rivera also contends that newly enacted 

section 1109, also added by AB 333, applies retroactively. Section 

1 All further undesignated statutory references are to the 

Penal Code.
3

1109 requires, upon a defendant’s request, that gang 

enhancements and gang participation charges be tried separately 

and after other charges. The Attorney General disagrees, 

contending section 1109 applies prospectively only. We granted 

rehearing and vacated submission to consider these issues. 

For the reasons discussed below, the gang enhancements 

are reversed. In all other respects, the judgment is affirmed. On 

remand, the prosecution shall have the option to retry the 

defendant on the gang allegations, and the trial court shall 

resentence Rivera.

FACTUAL BACKGROUND

According to trial testimony, as summarized below, Rivera 

belonged to the Lynwood Mob gang. He had Lynwood Mob tattoos 

on his head, chest and hand. 

The shootings occurred on February 28 and March 6, 2017. 

Rivera confessed to both shootings in a “Perkins operation.” In a 

Perkins operation, an undercover operative, who the suspect does 

not know is a police agent, is placed in a cell with the suspect. 

(Illinois v. Perkins (1990) 496 U.S. 292, 294 (Perkins).) The agent 

is not required to give Miranda warnings before questioning or 

interacting with the suspect. (Ibid.) “Conversations between 

suspects and undercover agents do not implicate the concerns 

underlying Miranda. The essential ingredients of a ‘policedominated atmosphere’ and compulsion are not present when an 

incarcerated person speaks freely to someone whom he believes 

to be a fellow inmate.” (Id. at p. 296)

In an information filed April 11, 2018, Rivera was charged 

with four felonies as follows: Count One, the murder of Daniel 

Nunez on March 6, 2017 (§ 187, subd. (a)); Count Two, the 

murder of Santiago Morales on February 28, 2017 (§ 187, subd. 
4

(a)); Count Three, possession of a firearm by a felon on March 6, 

2017 (§ 29800, subd. (a)(1)); Count Four, possession of a firearm 

by a felon on February 28, 2017 (§ 29800, subd. (a)(1)). The 

information specially alleged that the murder charges were 

violent felonies committed for the benefit of a criminal street 

gang subjecting appellant to a 10-year enhancement for each 

offense. (§ 186.22, subd. (b)(1)(C).) It also alleged that Rivera, in 

the commission of each of the murders, personally discharged a 

firearm proximately causing death within the meaning of section 

12022.53, subdivision (d). A special circumstance allegation of 

more than one offense of murder in the same proceeding was 

alleged with respect to both murder counts. (§ 190.2, subd. (a)(3).) 

The information also alleged that Rivera had suffered four prior 

felony convictions within the meaning of section 667.5, 

subdivision (b). Rivera entered a plea of not guilty and denied all 

special allegations. 

A. Shooting of Santiago Morales, February 27, 

2017.

Victim Santiago Morales, age 52, was allegedly an 18th 

Street gang member. There was no evidence that Rivera knew 

Morales. 

Late at night on February 27, 2017, Morales was in his car 

in a parking lot on Long Beach Boulevard near Sanborn Avenue 

in Lynwood. The lot was behind commercial buildings and located 

in Segundos gang territory. Morales had visors covering the front 

and rear windows of his car. 

Surveillance video from a nearby business depicted the 

shooting. Two men approached the car, looked inside, and walked 

away. Both men wore hoodies, and their faces were not visible. 
5

The interior lights of the car flashed, and a man, alleged to be 

Rivera, approached the driver’s side. Both men ran away. 

After receiving a call for service, a Sheriff’s deputy 

responded to the parking lot around 8 a.m. the next day. The 

deputy found Morales, fully reclined, covered by a blanket up to 

his mid chest, and shattered glass inside the car. The car was 

running. No weapons were visible. 

A search of Morales’s vehicle yielded a simulated firearm 

wrapped in a sock inside a bag that was wedged between the 

headrest of the driver’s seat and the backseat. Morales may have 

been conscious for a few minutes after being shot.

The bullet entered Morales’s left upper arm, exited through 

the other side, and entered his chest. The bullet perforated his 

left lung, likely causing death within a few minutes. Morales had 

methamphetamine, amphetamine, PCP and marijuana in his 

system at the time of his death. 

B. Shooting of Daniel Nunez, March 6, 2017.

1. Nunez’s Association with Rivera.

Rivera was acquainted with Nunez, who was an Evil Klan 

gang member. The Lynwood Mob and Evil Klan were not 

adversaries.

At the time of the shooting, Lizette Rivera2 was Nunez’s 

girlfriend. Lizette associated with members of the Lynwood Mob, 

and she knew Rivera as “Nutty” or “Get ‘Em.” 

Lizette and Nunez frequently socialized at David “Cricket” 

Nakiso’s home, a Lynwood Mob hangout. Nakiso, a senior 

2 To avoid confusion, we refer to Lizette Rivera, who is not a 

relative of defendant, as “Lizette.”
6

member of the Lynwood Mob, was the head of the gang. Lizette 

and Nunez had sold firearms to Nakiso in the past. Lizette 

sometimes committed crimes for the gang. 

Nunez, who was also known as “Scooby,” was a “hothead” 

and used his large size to intimidate people. Lizette and Nunez 

used methamphetamine daily, and sold drugs and engaged in 

check fraud. 

Rivera, Nakiso, and others knew Nunez abused Lizette, as 

they had seen her with black eyes and a “busted” lip. Shortly 

before being shot, Nunez struck Lizette and sprayed her with 

pepper spray. On occasions when Nunez struck her, Lizette 

would call Nakiso to pick her up. One time, Nunez approached, 

chased, and menaced Lizette with a ratchet. 

2. Events Leading Up to Nunez’s Shooting.

As noted above, shortly before the shooting, Nunez struck 

Lizette, who called Nakiso for help. Rivera arrived in a car driven 

by a woman to pick up Lizette. As Lizette got into the car, Rivera 

and Nunez exchanged words, and Nunez insulted the Lynwood 

Mob. Rivera pointed a handgun at Nunez, who again insulted 

Rivera’s gang and called Rivera a “bitch.” Lizette urged Rivera to 

stay in the car, and she drove off with him. Nunez was furious. 

Later, Nunez called Lizette numerous times, and called other 

members of the Lynwood Mob. 

Nunez called Nakiso to complain that Rivera had pulled a 

gun on him but did not mention insulting the Lynwood Mob. The 

Lynwood Mob wanted to “check” Rivera. At that time, Nakiso 

gave Nunez the “green light” to assault Rivera the next time he 

saw him. Nakiso also berated Rivera for getting involved in 

Nunez’s domestic dispute. 
7

After the confrontation, Lizette and Rivera hid out for a 

while. Lizette was angry because she felt she was being forced to 

choose between Nunez and Rivera. Rivera agreed to make 

amends with Nunez, and Rivera called Nunez. Nunez was not 

interested, however, and told Rivera he had a “green light” to 

beat him up. 

Nunez was angry with Rivera because Rivera did not 

deliver drugs that Nunez had paid Rivera $50 to buy for him. 

After complaining about the failed drug deal to Nakiso, Nunez 

got another “green light” to assault Rivera. Rivera went into 

hiding. 

Rivera told Lizette about the Morales shooting, telling her 

he had been involved in a “shootout” with someone on Long 

Beach Boulevard. Rivera believed it involved someone from the

Segundos gang, but he was not sure. Lizette did not believe him 

because she had not heard about it. 

3. The Day of the Nunez Shooting.

The day of Nunez’s shooting, Lizette went to Nakiso’s house 

to wait for Rivera to arrive. Rivera was going to give Lizette a 

ride to the County of Los Angeles’s general relief office in 

Compton. Rivera, Jose Romero (“Face”), another gang member 

known as “Stranger,” and a woman Lizette believed was Face’s 

girlfriend picked her up. Face was a Lynwood Mob member. 

On the way, the group stopped at a parking lot memorial 

that had been set up for Morales. Rivera got out of the car and 

spat on the memorial. After he got back into the car, he said to 

Lizette, “See, I wasn’t lying.” A surveillance video of the stop at 

the memorial was played for the jury. It showed Rivera walking 

toward the memorial, but it was unclear if Rivera was spitting. 
8

During the drive, Lizette saw “Face” display a handgun. 

The handgun was passed around. After a discussion of who would 

hold the gun, it was given to Rivera. Lizette spent about an hour 

at the relief office. 

On the way back from the relief office, they stopped at a gas

station near the 91 Freeway. Inside, a customer and Face 

exchanged words with each other. Lizette attempted to break up 

the altercation because everyone in the store was looking, and 

she did not want anyone to call the police. Rivera left the store, 

but turned to go back in. Lizette reminded him there were 

cameras everywhere. They all left the store. Surveillance video 

from the gas station was played for the jury. 

When they left the gas station, Rivera was angry because 

he believed Face had caused Rivera to be disrespected, and that 

Face should have shown the man in the store that “he wasn’t a 

bitch.” 

4. The Nunez Shooting.

After dropping “Stranger” off, they headed to Nakiso’s 

house. Rivera continued to argue with Face and wanted to get out 

of the car. Lizette had been texting Nunez and told him that she 

was returning from the relief office. She told him who was in the 

car, and Nunez said he could go to Nakiso’s and pick her up. She 

told him not to go to Nakiso’s because of the previous altercation 

between Rivera and Nunez, and she did not want them to run 

into each other again. She told Nunez she would meet him 

halfway. Lizette let Nunez know that Rivera had a gun. Nunez, 

however, wanted to confront Rivera and settle a debt with 

Nakiso. 
9

Lizette wanted to pick up her bike from Nakiso’s yard. 

Nakiso lived in a converted garage on Second Avenue in 

Lynwood, and the yard gate was locked. The garage fronted an 

alley. Nakiso, Face, and Rivera were in Nakiso’s garage. Lizette 

asked for the key to the yard gate. Lizette went into the garage 

and heard Nakiso talking about Nunez’s drug debt. She offered to 

pay it, but Nakiso refused. Lizette found his refusal “strange” 

because Nunez and Nakiso had a close bond. Lizette gave Nakiso

a $20 bill and started to hand him a second $20 bill, but Rivera 

grabbed it. Rivera said he was tired of Nunez “getting a pass.” 

In between the time Lizette handed Nakiso the first and 

second $20 bills, she heard Nunez’s distinctive whistle coming 

from the alley behind the garage. 

Lizette was afraid, and asked Nakiso if he had the gun. He 

told her he did. Nunez whistled again and Lizette went to the 

gate. Lizette thought it was strange they could not find the key, 

because “they never lose it.” Nunez told Lizette they were 

intentionally not letting her get her bike. Lizette was ready to 

jump the gate, but Nunez told her not to because it was going to 

be “all bad” if she did. 

Face berated Nunez for owing money to Nakiso. Lizette 

was surprised because Face was unusually bold in speaking to 

Nunez. Face asked why Nunez did not pay Nakiso for the drugs. 

Lizette told Face she had paid Nakiso, and Nunez became 

angrier. Lizette went back inside to find the key. 

Lizette heard someone walking on the gravel in the 

alleyway. She testified her “heart fell to [her] stomach.” She ran 

outside and saw Rivera approaching. Nunez’s back was to Rivera 

because he was still talking to Face. Lizette warned Nunez that 

Rivera was approaching. Nunez shifted toward Rivera. 
10

Lizette was holding Nunez’s hand. Nunez asked Rivera 

“what is your problem,” and Lizette tried to calm Nunez down. 

Lizette at this time believed the gun was still inside because 

Nakiso told her he had the gun. She did not want a fight to break 

out. Rivera was staring at Nunez. Nunez had let go of Lizette’s 

hand. Nunez pulled up his pants as he stepped toward Rivera. 

Rivera pulled a gun out and shot Nunez twice. Lizette 

jumped over the gate, screaming at the top of her lungs. Her 

phone fell. Nunez was still standing and told Lizette he was okay. 

She laid him on the ground. Nakiso and Face were gone, and the 

garage door was shut. Rivera ran away, and Lizette screamed for 

someone to call 911. Nunez began convulsing and told her he 

could not breathe. Lizette reached into Nunez’s pockets to see if 

she could find a phone, but instead found a drill. The drill had a 

silver tip. Later, police on the scene of the shooting observed a 

portion of the drill was outside Nunez’s waistband. 

The fire department arrived, gave Nunez CPR, and took 

him away in an ambulance. Nunez sustained gunshot wounds to 

the upper right back and right side of the chest. One bullet

entered his upper right back slightly to the midline, travelled 

sharply downward from right to left, perforated the right lung, 

diaphragm, and liver, and ended up near the spine. The second 

bullet perforated the right lung, diaphragm, and spleen, and 

exited on the left side of the chest. Nunez had methamphetamine 

in his system at the time of his death. 

C. Lizette’s Statements to Law Enforcement

After they arrived, deputies spoke to Lizette about the 

Nunez shooting. She did not tell them she knew who shot Nunez. 

Lizette was afraid to say anything because Nakiso and others 
11

were standing outside the garage. She did tell deputies she saw 

the interaction between Nunez and the shooter and saw the 

shooter approach through the alley. Lizette heard Nunez ask the 

man if he had a problem, and the man shot Nunez twice and fled. 

Later, on March 7, 2017, Lizette spoke to two deputies at 

the Sheriff’s station and told them what had happened.3 Lizette 

was afraid of retaliation for talking to the authorities and was

concerned for her personal safety. Nakiso tried to contact her 

after the shooting, but she did not talk to anyone because she was 

scared. Nakiso and three other men visited her at the hotel room 

where she had been staying after the shooting and brought her 

bike. Nakiso tried to persuade her to leave with him. Later, 

Nakiso visited Lizette at a different motel and said Nunez was a 

“piece of shit” and deserved to die. 

Eventually, law enforcement provided funds for her to

relocate, and she stayed at a motel. Lizette was still relocated at 

the time of trial. 

In a March 9, 2017 interview with a Sheriff’s deputy, 

Lizette recounted the events surrounding Morales’s shooting. She 

told the deputy what Rivera had told her about his conflict with 

Morales and the shooting, Rivera’s conduct at the memorial, and 

Rivera’s shooting of Nunez. Rivera told Lizette there was a 

“shootout” with “some guy” from Segundos. 

She added that Nunez recently had provoked members of 

the Paragons gang by verbally insulting them and driving his 

vehicle at them. The Paragons responded by shooting at Nunez’s 

truck. 

3 An audiotape of Lizette’s interview was played for the jury. 
12

D. Rivera’s Arrest, April 25, 2017.

Rivera was arrested on April 25, 2017. Detectives informed 

Rivera at an interview conducted that day that he was under 

arrest for the Morales and Nunez shootings.4 Both murders had 

been committed with a 9mm handgun, and Sheriff’s Department 

forensics was determining whether the shootings were committed 

with the same weapon. After Rivera denied involvement in the 

shootings, detectives told him there was surveillance video of the 

Morales shooting and that he was in the video. Rivera then 

admitted being at the scene of the memorial. Rivera also told 

detectives that Face and Demon were the shooters. Rivera

indicated he was saddened by Morales’s death and visited the 

memorial. 

On April 25, 2017, the Sheriff’s detectives conducted a

Perkins operation. Rivera did not admit his involvement in the 

shootings. During a second Perkins operation, conducted the next 

day, Rivera told his cellmate, an undercover informant,5 that he 

was being charged with three murders, but did not know what 

the third one was. According to Rivera, the authorities had 

numerous descriptions of the suspect, but none fit him. Rivera 

stated the second murder was in the alley behind “big homie’s” 

house. Rivera admitted he was on video for the first murder, but 

his face was covered, and he believed the detective lied when he 

4 Initially, Rivera was a suspect in a third murder committed 

March 11, 2017. Detectives later ruled him out as a suspect. 

5 The informant was paid $1,500 and received information 

from detectives about the murders. Portions of the taped 

conversation were played at trial. 
13

said they could see his face. The detectives knew he was involved 

in the second murder, however, because it was the same gun. He 

called Nunez a “snitch.” 

E. Forensic Evidence.

A comparison of the bullets from both victims established 

they had been fired from the same weapon. Two shell casings 

were found in the alley where Nunez was shot. No casings were 

found where Morales was shot. 

F. Gang Evidence.

Deputy Bryce Chalmers of the Sheriff’s Department 

Operation Safe Streets Bureau testified as a gang expert. He was 

familiar with Lynwood gangs. 

According to Chalmers, Rivera was an active member of the 

Lynwood Mob. Rivera has an “LMX 3” tattoo, standing for 

“Lynwood Mob 13,” signifying allegiance to the Mexican Mafia. 

He has a tattoo with the letters “CK,” with the “C” crossed out, 

standing for Crip Killer. On the index finger of his right hand is a 

tattoo of the word “Bang.” 

Chalmers testified that the Lynwood Mob gang was started 

in the 1980s and at the time of trial had about 40 members, with 

about a third of them active. The gang is aligned with the 

Mexican Mafia. Its territory stretched from California Avenue to 

the West, Imperial Highway to the South, and Martin Luther

King Boulevard to the East. Rival gangs included the Segundos 

and the 211 Crips. The Lynwood Mob was aligned with the Vario 

Paragons and the Rude Boys. 
14

Morales was killed in Segundos territory. Jose Romero 

(“Face”), David Nakiso (“Cricket”), Ernie Lopez (“Smokey”) are all 

documented members of the Lynwood Mob. 

According to Chalmers, gang members generally do not get 

involved in domestic disputes involving other members in their 

own gang. An exception would be if the “Big Homie” told a gang 

member to go and rescue the domestic violence victim. Someone 

in a gang who has been called a “bitch” by another gang member 

will have lost all credibility, and the only way for such an 

individual to regain respect would be to commit a violent act. The 

reputation of the Lynwood Mob would have been weakened as the 

result of Nunez disrespecting the gang by calling one of its 

members a “bitch,” and by the fact that Rivera drew a firearm 

but did not use it. 

Chalmers also opined that the shooting of Morales was for 

the benefit of a criminal street gang. The shooting occurred in 

rival gang territory and thus the shooter would gain respect

(among gang members). Chalmers believed Rivera was 

exaggerating when he told people he got into a “shoot-out.” 

Finally, Chalmers stated gang members commonly carried 

weapons. Asking a member if they “had a problem” would be 

viewed as a challenge. 

G. Defense Evidence. 

Rivera did not testify at trial. His defense theory at trial 

was that he shot both men in self-defense because he feared both 

victims were reaching for firearms: Morales had a prop gun in his 

car, and Nunez had a drill in his pants that resembled a weapon. 

Laura Cazares testified she lived near Nakiso’s house and 

heard gunshots and Lizette’s screams and went out to 
15

investigate. She called 911 at Lizette’s request. Lizette told her 

she did not know who shot Nunez. 

When Sheriff’s Detective Martinez interviewed Lizette, she 

told him she did not know who shot Nunez. Lizette told Detective 

Martinez that the shooter wore a hoodie, and she believed he was 

from Mara Salvatrucha. 

Ryan O’Connor, M.D., conducted a toxicology analysis of 

the victims. Both victims had methamphetamine in their systems 

when they died. Methamphetamine causes mood swings and 

aggression, as well as violent or impulsive behavior, although an 

individual can build up a tolerance. O’Connor opined that Nunez 

was highly intoxicated at the time of his death. 

Dr. O’Connor reviewed the coroner’s report and opined that 

the path of one of the bullets in Nunez’s body was potentially

consistent with him bending over. Dr. O’Connor opined that 

Morales’s wounds indicated he was partially turned away from 

the gun. 

Leslie Morales6 testified she had been dating Face for 

several months, and had been to Nakiso’s home.7 She knew that 

Face was a gang member. Rivera went by the name “Nutty” and 

“Get ‘Em.” According to Leslie, they stopped at the memorial for 

the purpose of changing seats. After confronted with the 

surveillance video showing Rivera approached the memorial, 

Leslie stated she could not see what he did. 

Regarding the stop at the gas station, Leslie recalled that a 

man bumped into Face, which made him angry. Face did not pull 

out a gun. Leslie attempted to calm him. Rivera told Face not to 

6 To avoid confusion, we refer to Leslie Morales as “Leslie.”

7 Face died in a traffic accident in July 2017. 
16

let people disrespect him. After the group left the gas station, she 

dropped them off at Nakiso’s garage. She did not remember a gun 

nor a discussion of one. 

H. Verdict and Sentencing.

The jury found Rivera guilty on the two murder counts 

(Counts 1 and 2) and the two felon in possession of a firearm 

counts (Counts, 3, and 4). The jury found true the firearm use 

allegations and that the crimes were gang related. 

The trial court sentenced Rivera to life without the 

possibility of parole on the two murder counts, plus 25 years to 

life (consecutive) for the gun use enhancement, plus 10 years 

each (consecutive) for the gang enhancements. On Counts 3 and 

4, the trial court sentenced Rivera to a determinate term of three 

years, eight months (consisting of an upper term of three years on 

Count 3 and one-third of the midterm of eight months on Count 

4) to run concurrent with the sentences on Counts 1 and 2. 

DISCUSSION

I. ASSERTED VIOLATION OF MIRANDA RIGHTS.

Rivera argues his incriminating statements were obtained 

as a result of a two-step strategy designed to circumvent 

Miranda, and that their admission violated his Fifth Amendment 

right against self-incrimination. He contends deputies improperly 

obtained information from him before Mirandizing him, and used 

this information to prepare the Perkins informant, thereby 

tainting his confession to the informant. 
17

A. Factual Background.

Before trial, Rivera moved to suppress his statements made 

both to the police and the civilian informant in his jail cell. 

1. Arrest and Interrogation.

(a) First Perkins Operation. 

Rivera was arrested on April 25, 2017 and placed in a jail 

cell with a civilian informant. The informant told Rivera that he 

had been charged with attempted murder. Rivera did not tell the 

informant anything related to the murders. 

(b) Interview with Defendant.

Shortly after his arrest on April 25, Detectives Arias and 

Guzman interviewed Rivera for about 45 minutes. As the trial 

court noted, the interview consisted of three segments: (1) before 

Miranda warnings were given, (2) after Miranda warnings were 

given, and (3) after Rivera invoked his rights to counsel and 

against self-incrimination. 

(i) Pre-Miranda. 

Detectives interviewed Rivera without Miranda 

advisements. Rivera gave detectives information concerning his 

name, address, and phone number, and told detectives he lived 

with his girlfriend, their daughter, and her adult children. Rivera

was on probation. Although he admitted prior gang membership, 

Rivera denied being a current member of the Lynwood Mob. 

Detectives told Rivera they were investigating the 

February 28 shooting of a sleeping man shot in his car near 

Sanborn and Long Beach Boulevard. The detectives told Rivera
18

that he had been arrested for this shooting. Rivera admitted he 

had heard about the killing and that it was a “hood” thing. After 

being told there was video of the killing, Rivera responded that 

he knew there were cameras in the area. Detectives told Rivera

they could identify him from the video, and asked whether Rivera

had been there. Rivera denied being at the parking lot. 

(ii) Post-Miranda. 

Detectives gave Rivera his Miranda warnings. Rivera

stated he was aware of his rights in light of prior contacts with 

law enforcement. He wanted to clear up the matter and admitted 

being in the area of the February 28 shooting. He told the 

detectives that Face had done it, and he was with Demon at the 

time. Rivera claimed that Demon looked like him, and Demon 

was the one who shot Morales. Rivera recognized Morales from 

his photograph at the memorial. 

The detectives told Rivera one of the three murder victims 

was “Scooby,” who was murdered about a week after the Morales 

shooting in an alley off Second Avenue. Rivera denied any 

knowledge of the shooting. Rivera professed it would have been 

stupid for him to commit a crime there because he was so well 

known in the area. 

The detectives then told Rivera that the third murder was 

committed March 11. Additionally, they said all three murders 

were committed with a 9mm weapon and the detectives were 

awaiting ballistics results. The detectives told Rivera they had 

probable cause to arrest him for all three murders, and a judge 

had approved the arrest paperwork. 

The detectives told Rivera they had video of him spitting on 

the memorial, and said he did not look sad. 
19

(iii) Post Invocation of Miranda 

Rights. 

About 14 minutes after his Miranda warnings, Rivera

invoked his right to counsel and stated, “I’m done talking, I said 

what I had to say.” After detectives asked Rivera to clarify his 

statement, Rivera again said, “I’m done.” After being told he had 

a chance to “clear” himself and detectives had given him every 

opportunity to do so, detectives continued talking to Rivera for 

another 19 minutes. 

Detective Guzman stated, “I’m not even trying to imply 

that you’re not telling me the truth. I’m just asking you a 

question. How do you know that Demon is the shooter instead of 

Face, how do you know that? It’s just a question.” Rivera

responded that Face had told Rivera he and Demon were walking 

on Sanborn and they caught someone sleeping in the car. Rivera

did not know what set Demon off, but Demon shot the man in the 

car. Rivera knew about the shooting because he overheard 

Demon talking to someone in Lynwood. Rivera did not know 

whose gun was used in the shooting. 

Rivera stated he had heard about Nunez because Nunez 

was Lizette’s boyfriend. He denied knowing anything about the 

shooting. Detective Arias told Rivera, “three murders is serious.” 

Rivera asked, “[a]ll those three are me?” Detective Guzman 

responded, “Yes.” Detective Arias added, “[w]e can’t arrest you 

without probable cause.” Rivera responded: “I’m done here, 

thanks—I’m cool, I’m done here.” 

The detectives continued, telling Rivera they had 

eyewitnesses and videos to all three murders. Rivera responded 

he had people who would vouch for him. Detective Guzman asked 

Rivera how his girlfriend would be “able to prove” that he was 
20

with her. At that point, Rivera asked to end the interview. 

Detective Guzman stated, “[w]ell we will end it ‘cause [sic] we 

just wanted to give you the opportunity to clear your 

name[¶]. . . .[¶] [I]f I was sitting where you were . . . . I wouldn’t 

be asking to end it. I’d be telling you every single thing I could to 

help clear my name, that’s what I’d be doing.” Rivera said he had 

told them what he knew, but Detective Guzman rejected this 

assertion. 

Again, Rivera asked to end the interview. Detective Arias 

responded, “you stay sitting down until we ask you to get up. 

Okay?” Rivera said he was just trying to pull up his pants, but 

Detective Guzman responded, “when you leave the room it’s 

because we take you out of the room.” Detective Arias inserted, 

“We gave you every opportunity to help yourself and your 

daughter and your family. You’re getting offended and wanting to 

end this. You want to end it, not us, you do. So we will end it 

because you want to end it. Not because you want to help yourself 

by trying to give us the details we need.” 

Detective Arias accused Rivera of lying to them and 

changing his statements during the interview. Rivera stated “I 

didn’t do it. I didn’t.” Detective Guzman said that if they thought 

Face did it, Face would have been “in that chair right now.” The 

detective continued, “we know . . . there’s no confusion between 

you and Demon.” The interview concluded when Detective 

Guzman stated, “I think we’re done then.” 

(c) Second Perkins Operation. 

With the information obtained from their interview, the 

detectives briefed the informant and instructed him to get any 
21

information he could. Later that day, detectives put Rivera in a 

jail cell with the informant and recorded the conversation. 

Rivera told the informant the police knew about two 

murders, but the third one “wasn’t me.” The informant asked 

Rivera if he had been charged, and whether the same gun was 

used. Rivera responded that the detectives had video of the first 

murder, but he did not know how they knew he committed the 

second murder. Rivera surmised it was because the same weapon 

was used for both crimes. One crime occurred in an alley behind 

the “big homie’s house.” Rivera did not believe they could identify 

him in the video of the parking lot shooting because his face was 

covered. In response to the informant’s query, Rivera stated he 

had gotten rid of the gun. 

2. Rivera’s Exclusion Motion.

At the preliminary hearing, Detective Guzman stated there 

was no specific reason they did not give Rivera his Miranda 

warnings at the start of the interview. Although Detective 

Guzman knew that statements made post-invocation would not 

be admissible, they wanted the statements because they were 

going to conduct the Perkins operation. 

Rivera argued that the pre-Miranda and the post-Miranda

statements, and his statements to the Perkins informant, were 

inadmissible. Where detectives employ a two-step strategy of 

eliciting admissions pre-Miranda to make post-Miranda 

admissions more likely, he argued, the latter statements must be 

excluded because the strategy is employed to undermine Miranda 

rights. The Perkins operation evidence, he urged, must be 

excluded because it was based upon statements improperly 

obtained in the interview. Rivera conceded his stance is contrary 

to People v. Orozco (2019) 32 Cal.App.5th 802 (Orozco), but 
22

argued Orozco was wrongly decided and, in any event, is 

distinguishable because Rivera’s statements to the Perkins 

operative were involuntary. 

3. Trial Court Ruling.

The trial court granted the motion in part and denied it in 

part. The court excluded all pre-Miranda portions of the 

interview except for statements concerning Rivera’s biographical 

information. The court ruled statements given after Miranda 

warnings were admissible as Rivera understood his rights and 

there was not much overlap with pre-Miranda questioning. The 

court found statements given after Rivera’s invocation of his 

Edwards8 right to counsel were inadmissible as Rivera clearly 

invoked his Fifth Amendment rights (by stating, “I’m done”). 

The trial court admitted Rivera’s confession to the 

informant, relying in Orozco, supra, 32 Cal.App.5th 802, viewing 

the Perkins operation as separate from the interrogation. 

B. Discussion.

1. Standard of Review.

“In reviewing the trial court’s ruling on a claimed Miranda

violation, ‘we accept the trial court’s resolution of disputed facts 

and inferences, and its evaluations of credibility, if supported by 

8 Edwards held that a suspect who has invoked his or her 

Miranda right to counsel may not be “subject[ed] to further 

interrogation by the authorities” on any crime at all unless 

(1) counsel is present at the time of any further questioning, or 

(2) the suspect “himself initiates further communication, 

exchanges or conversations with the police.” (Edwards v. Arizona 

(1981) 451 U.S. 477, 484–485.) 
23

substantial evidence. We independently determine from [those 

facts] whether the challenged statements were illegally obtained.’

[Citation.]” (People v. Elizalde (2015) 61 Cal.4th 523, 530.) Issues 

relating to the suppression of statements made during a custodial 

interrogation are evaluated under federal constitutional 

standards. (People v. Flores (2020) 9 Cal.5th 371, 416.) If an 

interview is recorded and the facts surrounding the admission 

are undisputed, we apply independent review. (People v. Leon 

(2020) 8 Cal.5th 831, 843.) We do not express any view on 

whether we endorse or condemn the particular interrogation 

techniques employed in this case; instead, our role is to 

determine whether those techniques comport with constitutional 

standards as articulated in guiding precedent.

2. Legal Principles Governing Miranda

Inquiry.

“‘To safeguard a suspect’s Fifth Amendment privilege 

against self-incrimination,’” a custodial interrogation must be 

preceded by Miranda9 warnings and by the suspect’s knowing 

and intelligent waiver of them. (People v. Leon, supra, 8 Cal.5th 

at pp. 842–843.) A statement obtained in violation of a suspect’s 

Miranda rights may not be admitted to establish guilt in the 

9 Statements made by a defendant subject to custodial 

interrogation are inadmissible unless the defendant was “warned 

that he has a right to remain silent, that any statement he does 

make may be used as evidence against him, and that he has a 

right to the presence of an attorney, either retained or appointed. 

The defendant may waive effectuation of these rights, provided 

the waiver is made voluntarily, knowingly and intelligently.” 

(Miranda v. Arizona (1966) 384 U.S. 436, 444–445.)
24

prosecution’s case-in-chief. (People v. Elizalde, supra, 61 Cal.4th 

at pp. 531–532; People v. Krebs (2019) 8 Cal.5th 265, 299 (Krebs).) 

“[T]he mere fact that a defendant has made unwarned 

admissions does not render subsequent warned confessions 

inadmissible [Citations.]”. (Krebs, supra, 8 Cal.5th at p. 307,

citing Oregon v. Elstad (1985) 470 U.S. 298, 314 (Elstad).) In 

Elstad, an 18-year-old burglary suspect spontaneously spoke to 

police in his parents’ living room pre-Miranda warnings. (Elstad. 

at pp. 300–301.) Elstad held that “[a] subsequent administration 

of Miranda warnings to a suspect who has given a voluntary but 

unwarned statement ordinarily should suffice to remove the 

conditions that precluded admission of the earlier statement.” 

(Id. at p. 314.) Elstad acknowledged, however, that if the 

prewarning statement is the product of actual coercion, “the time 

that passes between confessions, the change in place of 

interrogations, and the change in identity of the interrogators all 

bear on whether that coercion has carried over into the second 

confession. [Citations.]” (Id. at p. 310.) Thus, when considering 

whether an initial failure to warn taints any subsequent warned 

statement, the touchstone inquiry is whether both prewarning 

and postwarning statements were voluntary under the 

traditional due process test. (Id. pp. 317–318.)

The two-step interrogation process used here was 

denounced in Missouri v. Seibert (2004) 542 U.S. 600 (Seibert), 

which revisited Elstad. Seibert concluded the Elstad rule was 

inapplicable when an officer intentionally uses a two-step 

interrogation process in order to circumvent Miranda. (Seibert, 

supra, 542 U.S. at p. 604 (plur. opn. of Souter, J.).) In Seibert, the 

officers intentionally did not Mirandize the suspect before 

questioning her for 30 to 40 minutes. (Id. at pp. 604–605) The 
25

suspect admitted having information regarding a murder, and 

the officers took a 20-minute break. (Id. at p. 605.) After 

resuming the interview, the defendant was given her warnings. 

(Ibid.) The officer testified he had been taught, as an 

interrogation technique, to “question first, then give the 

warnings, and then repeat the question ‘until I get the answer 

that [the suspect] already provided once.’ [Citation.]” (Seibert, at 

pp. 605–606.)

Seibert “confronted a situation where the interrogating 

officer ‘made a “conscious decision” to withhold Miranda

warnings.’ [Citation.]” (Krebs, supra, 8 Cal.5th at p. 308.) Seibert 

distinguished Elstad’s “good faith Miranda mistake” from the 

questioning in the case before it, which had been “systematic, 

exhaustive, and managed with psychological skill.” (Seibert, 

supra, 542 U.S. at pp. 615–616 (plur. opn. of Souter, J.).) The 

Seibert plurality created a new test to determine whether the 

Miranda warnings administered after questioning commenced 

were effective enough to protect a defendant’s rights against 

involuntary self-incrimination. The new test called for 

consideration of “the completeness and detail of the questions 

and answers in the first round of interrogation, the overlapping 

content of the two statements, the timing and setting of the first 

and the second, the continuity of police personnel, and the degree 

to which the interrogator’s questions treated the second round as 

continuous with the first.” (Id. at 615.)

In Seibert, Justice Kennedy issued a separate opinion, 

concurring in the judgment but rejecting the plurality’s 

conclusion a “multifactor” test should apply whenever a two-stage 

interrogation occurs. (Seibert, supra, 542 U.S. at p. 622 (conc. 

opn. of Kennedy, J.).) Justice Kennedy fashioned an inquiry 
26

focused on whether the officers deliberately employed a two-step 

interrogation designed to undermine the effectiveness of Miranda

warnings. (Ibid.) If the two-phase interrogation was deliberate, 

then any post-warning statement related to the substance of 

prewarning statements must be suppressed “absent specific, 

curative steps.” (Id. at p. 621.) On the other hand, if the two-step 

interrogation was not deliberate, then Justice Kennedy believed 

Elstad should continue to govern the admissibility of a postwarning statement by evaluating whether the prewarning and 

postwarning statements were voluntary. (Id. at p. 622.)

The fragmented composition of Seibert has “given rise to a 

debate over whether it is the plurality’s opinion or Justice 

Kennedy’s concurrence that provides the controlling standard. 

[Citations.]” (Krebs, supra, 8 Cal.5th at p. 309.) Krebs observed 

that while the Sixth Circuit Court of Appeals has adopted the 

plurality’s multi-factor test, other circuits (including the Second, 

Third, Fifth, Eighth, Ninth, and Eleventh) have all adopted 

Justice Kennedy’s approach. (Ibid.) The California Supreme 

Court has not yet determined which approach controls, 

concluding in Krebs it was unnecessary to address the question 

because the defendant’s argument failed under either. (Ibid.)

3. The Trial Court Properly Admitted the 

Statements Obtained at the Interrogation 

and Through the Perkins Operation.

(a) No Violation of Seibert.

Rivera argues that law enforcement’s deliberate strategy to 

violate his Miranda rights required suppression of all 

incriminating statements made not only during his custodial 

interrogation but during the Perkins operation as well. In 
27

particular, Rivera complains that the trial court failed to analyze 

his statements under Seibert and whether the officers 

deliberately used a question-first, warn-later approach. He 

requests this court to independently analyze whether there was a 

deliberate two-step strategy and whether the midstream 

warnings functioned to allow him to make an informed waiver. 

He points to the facts that the first round was lengthy, detailed, 

coercive, and continuous with the second round; the two rounds 

overlapped in content; they were conducted in the same custodial 

setting; and the interrogators treated the two rounds as 

continuous. 

We disagree. There was no systematic questioning before 

the Miranda warnings, nor was there any evidence the detectives 

were attempting to avoid Miranda through a deceptive two-step 

process.

Here, the first Seibert factor, an inquiry into the 

completeness and detail of the first round, shows little transpired 

other than the officers’ statements about the Morales shooting, 

the contents of the video, and their purported identification of 

Rivera. Rivera denied involvement in the Morales shooting and 

denied being at the parking lot, but admitted he knew about the 

cameras, had heard about the shooting, and believed it was a 

“hood” thing. The Nunez shooting was not mentioned. 

On the second factor, after being given Miranda warnings, 

Rivera offered greater detail, blaming the Morales shooting on 

Demon. At that point, the detectives confronted Rivera with the 

Nunez shooting, told him he was a suspect in three murders, and 

told him they had probable cause to arrest him for all three 

murders. Rivera continued to deny involvement. Post-invocation, 

Rivera continued to deny involvement, and although the 
28

detectives continued questioning, Rivera repeatedly stated he 

was “done.” 

On the third and fourth factors, the pre- and post-Miranda 

portions of the interview were conducted at one time, with the 

same detectives, although on the fifth factor, the detectives did 

not treat the second round as continuous with the first because of 

the increased level of detail post-Miranda.

Our evaluation of these factors indicates that the detectives 

did not engage in a deliberate “question first, warn later” 

approach designed to elicit a confession such that the subsequent 

Miranda warning was ineffective. Indeed, after being given the 

warning, Rivera gave the detectives greater detail. There never 

was a confession. This is thus not the situation where the unMirandized portion of the interview left “little, if anything, of 

incriminating potential . . . unsaid.” (Seibert, supra, 542 U.S. at p. 

616; see also Bobby v. Dixon (2011) 565 U.S. 23, 29–31 [key issue 

whether defendant confessed to crime before Miranda 

warnings].) 

(b) Statements Made During the Perkins 

Operations Were Not Tainted. 

Rivera seeks to invoke the “fruit of the poisonous tree” 

doctrine developed in such cases as Wong Sun, et al. v. United 

States (1963) 371 U.S. 471, 488, and apply it to the Perkins 

operation on the basis the Perkins operation benefitted from the 

alleged Miranda violation. He asserts the interrogation and the 

Perkins operation were not separate but part of one continuous 

enterprise, and the court erred in permitting the jury to hear the 

interview in order to make sense of the Perkins operation. 

Further, he argues the trial court’s reliance on Orozco, supra, 32 
29

Cal.App.5th 802, was misplaced because the custodial 

interrogation and Perkins operation were not separate events, 

and in any event, not only is Orozco distinguishable, it was 

wrongly decided. 

We disagree. In Perkins, the Supreme Court held 

statements made to a police informant did not implicate Fifth 

Amendment rights against self-incrimination because there was 

no police-dominated atmosphere and no compulsion to answer. 

(Perkins, supra, 496 U.S. at pp. 296–297.) Thus, admission of 

Rivera’s unwarned statements to the informant did not violate 

Miranda. 

In addition, no court has addressed invocation of Miranda 

rights prior to a Perkins operation and the effect of any 

statements obtained in violation of Miranda in such a situation. 

We decline Rivera’s invitation to do so. Relying on language in 

Perkins and the underlying policy of Miranda and Edwards, the 

California Courts of Appeal have long rejected the argument 

Rivera makes here, holding that Miranda and Edwards are not 

implicated when a defendant who has invoked the Miranda right 

to counsel subsequently speaks to a person he or she does not 

know is an agent of the police. (Orozco, supra, 32 Cal.App.5th at 

p. 814; accord, People v. Plyler (1993) 18 Cal.App.4th 535, 544–

545; People v. Guilmette (1991) 1 Cal.App.4th 1534, 1539–1542.) 

In analyzing the issue, Orozco concluded Perkins, not 

Edwards, controlled the admissibility of any statements made to 

an undercover agent after Miranda warnings. (Orozco, supra, 32 

Cal.App.5th at p. 813.) First, Edwards applied its rule only to 

further “interrogation” of the suspect. (Ibid.) Indeed, Edwards

observed that “‘[a]bsent . . . interrogation, there would be no 

infringement of the [Miranda] right [to counsel].’ [Citation.]” 
30

(Ibid.) Second, the rationales of Miranda and Edwards, the 

pressure of custodial interrogation, do not apply where the 

suspect speaks freely to someone they do not consider to be law 

enforcement. (Id. at p. 814.) Third, California courts have 

uniformly held Perkins controls when a suspect invokes his 

Miranda right to counsel but later speaks with someone he does 

not know is an agent of the police. (Id. at p. 815) We agree with 

Orozco that Perkins controls the admissibility of Rivera’s 

statements to the informant, and find the trial court did not err.

(c) Rivera Has Not Demonstrated His 

Statements to the Informant Were 

Involuntary

Rivera further argues his statements to the informant were 

involuntary and deprived him of due process under the 

Fourteenth Amendment. Further, he asserts he was misled by 

the detectives that an information had already been filed, 

requiring us to address whether the lawfulness of the Perkins 

operation should be addressed as though his right to counsel had 

already attached. 

(i) Factual Background.

After his arrest on April 25, Rivera was interviewed, at 

which time the detective falsely told him that a magistrate had 

made a probable cause determination. The felony complaint was 

not filed until two days later, after the completion of the two 

Perkins operations. Shortly after the detective made his 

misrepresentation, Rivera asserted his right to counsel. 
31

(ii) Discussion

The right to counsel attaches at the time of filing a felony 

complaint. Once this right attaches and has been asserted, law 

enforcement may not use an informant to obtain information 

from a defendant. (See, e.g., Massiah v. United States (1964) 377 

U.S. 201, 205–206 [interrogation of defendant without presence of 

counsel after indictment prohibited]; People v. Viray (2005) 134 

Cal.App.4th 1186, 1198-1199 [same].) 

The constitutional right to due process secured by the 

federal and California Constitutions mandates the suppression of 

an involuntary confession. (People v. Linton (2013) 56 Cal.4th 

1146, 1176.) A confession is involuntary if official coercion caused

the defendant’s will to be overborn, such that the resulting 

statement is not the product of free will. (Ibid.) We judge whether 

a confession was involuntary by examining the totality of 

circumstances surrounding the confession. (Ibid.) 

As discussed above, we have declined to extend 

Miranda/Edwards protections to a Perkins operation. 

Furthermore, nothing here indicates Rivera’s statements to the 

informant were anything other than voluntary. Although Rivera

falsely believed an information had been filed against him, “[t]he 

use of deceptive statements during an investigation does not 

invalidate a confession as involuntary unless the deception is of 

the type likely to procure an untrue statement. [Citations.]”

(People v. Fayed (2020) 9 Cal.5th 147, 165.) Here, informing 

Rivera he had already been charged would not have caused him 

to feel compelled to tell the informant he had committed the 

crimes. Moreover, there was no evidence his cellmate intimidated 

him such that Rivera felt the need to brag to appear tough. 
32

4. Any Error Was Not Prejudicial.

The erroneous admission of statements obtained in 

violation of the Fifth Amendment is reviewed for prejudice under 

the standard of Chapman v. California (1967) 386 U.S. 18

(Chapman). (People v. Henderson (2020) 9 Cal.5th 1013, 1029.) 

That test requires the prosecution “‘to prove beyond a reasonable 

doubt that the error complained of did not contribute to the 

verdict obtained.’ [Citation]” (Ibid.) 

Here, compelling evidence that Rivera committed both 

crimes was before the jury even without considering the 

challenged portion of the interview and his statements to the 

Perkins operative. Lizette testified extensively to Rivera’s 

involvement in both crimes and what he told her about them, and 

Lizette witnessed the second shooting. Indeed, Rivera’s theory of 

self-defense in part relied on the jury crediting Lizette’s 

testimony concerning Rivera’s fear of other gang members. 

Assuming the jury believed Rivera was in the video of the 

Morales shooting, the video established Rivera and his 

accomplice approached the car and after assessing the situation, 

Rivera quickly fired the gun at the victim. 

II. EXCLUSION OF EVIDENCE REGARDING VICTIM 

MORALES UNDER EVIDENCE CODE SECTION 1103 

Rivera argues the trial court prejudicially erred by 

excluding evidence of Morales’s prior violent behavior under 

Evidence Code section 1103. He contends the court erroneously 

required an equivalency or conformity between the past conduct 

and the current event, and in applying Evidence Code section 

352, the court erroneously found the remoteness of the events 

and potential juror confusion weighed against its admission. 
33

A. Factual Background.

At trial, pursuant to Evidence Code section 1103, Rivera

sought to introduce evidence of the victims’ propensity for 

violence to support his claim of self-defense. Morales’s prior bad 

acts included: (1) a September 9, 1992, conviction for robbery 

where Morales hit and threw down the victim; (2) an October 16, 

1994, robbery conviction where he grabbed a woman, pushed her 

to the ground, kicked her in the stomach, stole items from her 

and threatened someone who tried to help; (3) a February 9, 

1999, incident where officers stopped Morales for several traffic 

violations while riding a bike and Morales physically resisted; 

(4) a May 2, 2009, arrest for criminal threats in violation of 

section 422, where he was holding a rifle, threatened to shoot 

somebody, and looked through their property; (5) a December 2, 

2009, felony conviction for threatening an executive officer in 

violation of sections 69 and 71, and one count of destroying 

evidence in violation of section 135, for which he received a fiveyear prison sentence. 

The court excluded the evidence, finding the prior acts were 

not in conformity with reaching for a simulated gun and further 

the acts were remote in time. The court stated that the evidence 

was being offered to show the victim was violent, but that the 

evidence did not conform to Morales’s conduct while in his car. It 

stated: “The conduct we were talking about is the reaching for a 

simulated gun.” The court found the little probative value in the 

evidence was substantially outweighed by the consumption of 

time in presenting the evidence. 
34

B. Discussion.

Evidence Code 1103 makes admissible, subject to Evidence 

Code section 352, evidence of the character or trait of character of 

the victim of the crime for which the defendant is being 

prosecuted if the evidence is offered by the defendant to prove 

conduct of the victim in conformity with the character or trait of 

character. (Evid. Code, § 1103, subd. (a)(1).)10

A defendant being prosecuted for homicide who asserts selfdefense may introduce evidence of specific violent acts by the 

victim on a third person to show that the victim had a violent 

character and was the aggressor in the current offense. (People v. 

Wright (1985) 39 Cal.3d 576, 587 (Wright); People v. Shoemaker

(1982) 135 Cal.App.3d 442, 446–447.) 

The admission of evidence pursuant to Evidence Code

section 1103, however, is not without limits and is subject to the 

dictates of Evidence Code section 352. (People v. Gutierrez (2009) 

45 Cal.4th 789, 827–828 (Gutierrez); Wright, supra, 39 Cal.3d at 

p. 587.) The court may exclude otherwise admissible evidence if 

admitting the evidence would confuse the issues at trial, unduly 

consume time, or be more prejudicial than probative. (Gutierrez, 

supra, 45 Cal.4th at pp. 827–828.)

10 Section 1103, subdivision (a)(1) states: “In a criminal 

action, evidence of the character or a trait of character (in the 

form of an opinion, evidence of reputation, or evidence of specific 

instances of conduct) of the victim of the crime for which the 

defendant is being prosecuted is not made inadmissible by 

Section 1101 if the evidence is: [¶] (1) Offered by the defendant to 

prove conduct of the victim in conformity with the character or 

trait of character.” 
35

We review the trial court’s rulings under Evidence Code

section 352 using the deferential abuse of discretion standard. 

(Gutierrez, supra, 45 Cal.4th at p. 827; People v. Pollock (2004) 32 

Cal.4th 1153, 1171.) “Under this standard, a trial court’s ruling 

will not be disturbed, and reversal of the judgment is not 

required, unless the trial court exercised its discretion in an 

arbitrary, capricious, or patently absurd manner that resulted in 

a manifest miscarriage of justice. [Citation.]” (People v. Guerra

(2006) 37 Cal.4th 1067, 1113.)

Here, there was no abuse of discretion. The incidents were 

all more than five years before the shooting, and two of them 

were more than 20 years old. On that basis, the incidents were 

minimally relevant to show the 52-year-old Morales’s current 

propensity for violence. With respect to similarity, the only 

incident where Morales used a weapon involved brandishing a 

rifle in connection with making criminal threats, making four of 

the incidents of marginal relevance. Balanced against the 

consumption of time and potential for jury confusion required for 

introduction of this evidence, the trial court’s decision to exclude 

it was within the confines of its discretion under Evidence Code 

section 352. 

III. INSTRUCTION WITH CALCRIM NOS. 3471 and 3472.

Rivera argues the trial court erred in instructing with 

CALCRIM Nos. 3471 (Self-Defense, Mutual Combat or Initial 

Aggressor) and 3472 (Right to Self-Defense: May not be 

Contrived) because these instructions had no basis in the facts of 

the case. He contends these instructions, when given with two 

other self-defense instructions, confused the jury and eviscerated 

his perfect self-defense claim because they instructed on legal

principles which incorrectly enabled jurors to deny the right to 
36

self-defense if he started a fight by approaching Morales’s car and 

failed to avoid Nunez. As a result, he contends, these “initial 

aggressor” (No. 3471) and “provocateur” (No. 3472) instructions 

deprived Rivera of a fair trial, and the error was prejudicial, 

requiring reversal. 

A. Factual Background.

Rivera conceded committing the shootings but claimed he 

did so in self-defense. Rivera argued he feared both victims were 

reaching for what he believed to be firearms: Morales a prop gun, 

and Nunez a drill. The prosecution rebutted by asserting shooting 

a victim in the side (Morales) and another in the back (Nunez) 

did not support a claim of self-defense. Further, the prosecution 

asserted the video did not support the conclusion that Morales 

was a threat, and Lizette testified Rivera initiated the 

confrontation with Nunez. 

The trial court gave a packet of self-defense instructions, 

including Justifiable Homicide: Self-Defense or Defense of 

Another (CALCRIM No. 505), Voluntary Manslaughter, 

Imperfect Self-Defense or Imperfect Defense of Another 

(CALCRIM No. 571); the two challenged instructions, Right To 

Self-Defense: Mutual Combat or Initial Aggressor (CALCRIM 

3471) and Right To Self-Defense: May Not Be Contrived 

(CALCRIM No. 3472); and Danger No Longer Exists or Attacker 

Disabled (CALCRIM No. 3474). The court also instructed the 

jury to consider the instructions together and cautioned that 

some instructions might not apply (CALCRIM 200). 

Rivera objected that Nos. 3471 and 3472 were unsupported 

by the evidence because neither the acts of walking towards 

Morales’s car nor approaching Nunez in the alley could be 

considered aggression, nor did he provoke a fight. Although the 
37

trial court agreed there was no combat, it stated that the 

instruction on initial aggressor addressed the assertion that 

Rivera walked up and confronted Nunez. The court found the 

same logic supported the instruction prohibiting a provocateur 

from claiming self-defense. 

B. Discussion.

We review assertions of instructional error de novo. (People 

v. Waidla (2000) 22 Cal.4th 690, 733.) Further, we evaluate the 

correctness of jury instructions by reviewing the entire charge of 

the trial court and not by considering only parts of an instruction 

or a single instruction. (People v. Musselwhite (1998) 17 Cal.4th 

1216, 1248.) Finally, we also presume jurors understand and 

follow the court’s instructions. (People v. Sanchez (2001) 26 

Cal.4th 834, 852.)

Even if an instruction correctly states a principle of law, if 

it has no application to the facts of the case, it is an error to offer 

it. (People v. Guiton (1993) 4 Cal.4th 1116, 1129 (Guiton).) Thus, 

“instructions not supported by substantial evidence should not be 

given. [Citation.]” (People v. Ross (2007) 155 Cal.App.4th 1033, 

1050 (Ross).) “[G]iving an irrelevant or inapplicable instruction, 

however, is generally “‘only a technical error which does not 

constitute ground for reversal.’” [Citation.]” (People v. Cross

(2008) 45 Cal.4th 58, 67; People v. Eulian (2016) 247 Cal.App.4th 

1324, 1335.) “[I]nstruction on an unsupported theory is 

prejudicial only if that theory became the sole basis of the verdict 

of guilt[.]” (Guiton, supra, at p. 1130.) Prejudice resulting from 

this type of error is measured by the Watson test. (Id. at p. 1130; 

Ross, at pp. 1054-1055; see People v. Watson (1956) 46 Cal.2d 

818.)
38

1. Instructing with CALCRIM No. 3471 was 

Harmless Error

CALCRIM No. 3471 is a self-defense mutual combat 

instruction that explains that a person who engages in mutual 

combat or starts a fight only has a claim to self-defense if he 

actually and in good faith tried to stop fighting, indicated that he 

wanted to stop fighting, that he had stopped fighting, and gave 

the opponent a chance to stop fighting.

Here, Rivera argues no legal or factual basis existed for 

giving this instruction, and that the court misinterpreted No. 

3471 as applying to anyone (not only an assailant) causing the 

confrontation resulting in a homicide, while the instruction by its 

terms is limited to the person who initiated the assault. Rivera

points out that he did not start a fight with either Morales or 

Nunez. In the latter case, there was no evidence he was 

displaying a firearm. 

We agree the factual basis for this instruction was absent 

because there is no indication Rivera attempted to stop any 

altercation with either of the victims after engaging with them. 

Instead, he shot them. We conclude, however, that even if the 

instruction was erroneously given, Rivera did not suffer resulting 

prejudice. The jury was instructed on multiple theories of selfdefense, including lawful self-defense and imperfect self-defense, 

and instructed that not all instructions would apply to the case. 

There is no indication the jury applied No. 3471 to the facts 

before it. Rather, the jury rejected all theories of self-defense and 

found Rivera guilty of premeditated murder. Thus, it cannot be 

said that absent the instruction, the jury would have accepted the 

applicable theories of self-defense and rejected the inapplicable 

ones. (People v. Watson, supra, 46 Cal.2d at pp. 836–837.)
39

2. Instructing with CALCRIM No. 3472 was 

Proper, but if not, It Was Harmless Error

CALCRIM No. 3472 explains that a defendant cannot claim 

self-defense if his wrongful conduct creates circumstances that 

justify the adversary’s attack. (People v. Enraca (2012) 53 Cal.4th 

735, 761 [discussing perfect and imperfect self-defense].) 

Rivera argues this instruction was error because the 

evidence does not support the conclusion he provoked either 

Morales or Nunez. He argues that with respect to Morales, there 

is no evidence of any provocation, and with respect to Nunez, he 

was not required to avoid him simply because Nunez had the 

“green light” to assault him; indeed if Rivera had retreated from 

Nunez it would have emboldened Nunez and exacerbated the 

threat. 

Here, there was evidence to conclude that Rivera initiated 

both encounters. Rivera and another unidentified person 

approached Morales, who had a prop gun in the car, and they 

may have exchanged words. Rivera approached Nunez in the 

alley behind the gang headquarters at Nakiso’s in order to 

provoke an altercation because Nunez had the “green light.” 

Even if the instruction should not have been given because 

it was irrelevant, Rivera did not suffer resulting prejudice. We 

presume the jury followed the instructions, and if there was no 

instigation of a fight—contrived or otherwise with either victim—

to justify offering CALCRIM No. 3472, the jury would have 

disregarded it as inapplicable under these facts.

3. No Federal Constitutional Error. 

Rivera contends the claimed misdirection of the jury here 

with the inapplicable instructions violated his due process rights 
40

to a fair trial under the Fourteenth Amendment. He argues the 

infringement of his right to assert self-defense was of 

constitutional dimensions because it made the prosecution’s 

burden easier to disprove his claim. 

“[F]undamental fairness [is] the touchstone of due 

process[.]” (Gagnon v. Scarpelli (1973) 411 U.S. 778, 790.) A due 

process violation is usually established when the state proceeds 

in a manner that renders a trial fundamentally unfair. A “jury 

instruction” may “‘so infuse[ ] the trial with unfairness as to deny 

due process of law.’ [Citations.]” (Estelle v. McGuire (1991) 502 

U.S. 62, 75.) The question is whether the ailing “‘instruction by 

itself so infected the entire trial that the resulting conviction 

violates due process.’ [Citations.]” (Id. at p. 72; People v. Foster 

(2010) 50 Cal.4th 1301, 1335.) However, “‘[i]t is well established 

that the instruction “may not be judged in artificial isolation,” but 

must be considered in the context of the instructions as a whole 

and the trial record.’ [Citation.]” (People v. Foster, supra, at p. 

1335.) We will conclude ““[a] trial is fundamentally unfair if 

‘there is a reasonable probability that the verdict might have 

been different had the trial been properly conducted.’”

[Citations.]” (Barrientes v. Johnson (5th Cir. 2000) 221 F.3d 741, 

753.) 

Here, Rivera has not demonstrated constitutional error 

because the instructions as a whole, the evidence at trial, and the 

jury’s verdict, establish that the result would not have been 

different if the instructions had not been given. The jury rejected 

any theory of self-defense, even the properly instructed ones. 

IV. ASSERTED CUMULATIVE ERROR.

Defendant argues the impact of the individual evidentiary 

and instructional errors in this case requires reversal, and given 
41

the federal constitutional errors asserted in this case, all errors 

must be reviewed under the Chapman standard. Rivera points to 

the claimed erroneous admission of his statements to police and 

his confession to the informant which he contends left him with 

no alternative but to assert self-defense and imperfect selfdefense. These errors, he contends, precluded him from testifying 

in his defense. 

We disagree. We have found no error in the court’s rulings 

with respect to Rivera’s statements and confession, nor have we 

found error with respect to its evidentiary ruling and jury 

instructions. Thus, there can be no cumulative error. (People v. 

Duong (2020) 10 Cal.5th 36, 75.)

V. ASSERTED SENTENCING ERRORS.

A. Section 654.

Rivera argues that the trial court erred in failing to stay his 

sentence on his convictions for felon in possession of a firearm 

(§ 29800, subd. (a)(1)) because the prosecution’s theory of the case 

was that the illegal possession occurred simultaneously with the 

murders. Thus, he argues, possession of the firearm and the 

subsequent use in the murders was one indivisible act with a 

single objective, namely, the shooting of the victims. The trial 

court’s findings of fact in this regard are error, he contends, and 

the error violated his due process rights. 

1. Factual Background. 

The information charged Rivera in Counts 3 and 4 with 

being a felon in possession of a handgun. (§ 29800, subd. (a)(1).) 

The language for both counts tracked the statute. It charged “the 

crime of POSSESSION OF FIREARM BY A FELON- PRIOR(S), 
42

in violation of PENAL CODE SECTION 29800(a)(l), a Felony, 

was committed by MIGUEL NICHOLAS RIVERA, who did 

unlawfully own, possess, purchase, receive, and have custody and 

control of a firearm, to wit, handgun, the said defendant having 

theretofore been duly and legally convicted of a felony or 

felonies . . . .” The counts alleged the offenses occurred on the 

same date as each of the murders. 

During opening statement, the prosecution argued that the 

firearm was used to kill the two victims. The jury was instructed 

with CALCRIM 2511 that “[t]he defendant is charged in Counts 3 

and 4 with unlawfully possessing a firearm. [¶] To prove that the 

defendant is guilty of this crime, the People must prove that: [¶]1. 

The defendant possessed a firearm; [¶] 2. The defendant knew 

that he possessed the firearm; [¶] AND [¶] 3. The defendant had 

previously been convicted of a felony.” The prosecution argued to 

the jury that defendant was guilty of a section 29800, subdivision 

(a)(1) violation because he was a felon and “he shot and killed 

and murdered these two individuals [when] he had a gun with 

him.” 

The jury verdict found “true” the finding that Rivera

personally discharged a firearm in the commission of the crimes, 

and that he possessed a firearm as a felon on Counts 3 and 4. 

During sentencing, Rivera requested the court to strike, 

stay, or run concurrently the sentences on Counts 3 and 4. The 

trial court refused, finding that “[t]he sentence is not subject to 

654, since as to each crime, the defendant was armed before the 

acts involved in Counts 1 and 2.” 

2. Discussion.

Section 654, subdivision (a) provides that “[a]n act or 

omission that is punishable in different ways by different 
43

provisions of law shall be punished under the provision that 

provides for the longest potential term of imprisonment, but in no 

case shall the act or omission be punished under more than one 

provision.” “The purpose of section 654 is to prevent multiple 

punishment for a single act or omission, even though that act or 

omission violates more than one statute and thus constitutes 

more than one crime. Although the distinct crimes may be 

charged in separate counts and may result in multiple verdicts of 

guilt, the trial court may impose sentence for only one offense. . . .

[Citation.]” (People v. Liu (1996) 46 Cal.App.4th 1119, 1134, fn. 

omitted.)

In People v. Corpening (2016) 2 Cal.5th 307, the Supreme 

Court explained the analytical framework for applying section 

654. The Supreme Court found a distinction between conduct 

that constituted a single act and conduct that had a single 

objective. (Id. at p. 311.) “Whether a defendant may be subjected 

to multiple punishment under section 654 requires a two-step 

inquiry, because the statutory reference to ‘an act or omission’ 

may include not only a discrete physical act but also a course of 

conduct encompassing several acts pursued with a single 

objective. [Citations.]” (Ibid.) First, the court must consider 

whether the different crimes were committed by a single physical 

act. (Ibid.) “If so, the defendant may not be punished more than 

once for [the single] act.” (Ibid.) “Whether a defendant will be 

found to have committed a single physical act for purposes of 

section 654 depends on whether some action the defendant is 

charged with having taken separately completes the actus reus 

for each of the relevant criminal offenses. [Citations.]” (Id. at p. 

313.)
44

“Only if we concluded the case involves more than a single 

act—i.e., a course of conduct—do we then consider whether that 

course of conduct reflects a single ‘intent and objective’ or 

multiple intents and objectives. [Citations.]” (People v. Corpening, 

supra, 2 Cal.5th at pp. 311–312.) However, “even if a course of 

conduct is ‘directed to one objective,’ it may ‘give rise to multiple 

violations and punishment’ [only] if it is ‘divisible in time.’

[Citations.]” (People v. Deegan (2016) 247 Cal.App.4th 532, 542.) 

“Where the defendant’s acts are ‘temporally separated’ they 

‘afford the defendant opportunity to reflect and to renew his or 

her intent before committing the next [offense], thereby 

aggravating the violation of public security or policy already 

undertaken.’ [Citation.]” (Ibid.) 

A defendant’s intent and objective are factual questions. 

(People v. Islas (2012) 210 Cal.App.4th 116, 129.) For there to be 

sufficient evidence to support multiple punishment, there must 

be evidence to support a finding the defendant formed a separate 

intent and objective for each offense for which he was sentenced.

(Ibid.)

The elements of a section 29800, subdivision (a)(1) offense 

require “conviction of a felony and ownership or knowing 

possession, custody, or control of a firearm. [Citations.]” (People v. 

Blakely (2014) 225 Cal.App.4th 1042, 1052.) The offense is 

completed once the intent to possess is perfected by possession. 

(People v. Jones (2002) 103 Cal.App.4th 1139, 1146.) Where a 

defendant arrives at a crime scene already armed and uses the 

weapon to commit another crime, the firearm possession is a 

separate and antecedent offense. (People v. Arce (2020) 47 

Cal.App.5th 700, 714; see also People v. Venegas (2020) 44 

Cal.App.5th 32, 38; Cf. People v. Bradford (1976) 17 Cal.3d 8, 22 
45

[where defendant used gun wrested from police officer to shoot 

officer; section 654 applied].) 

Here, the trial court’s conclusions and factual findings are 

supported by substantial evidence. The evidence established that 

Rivera possessed the gun in advance of both shootings, making 

the two offenses severable in time. He approached Morales’s car 

with the gun already in his possession. The day of Nunez’s 

shooting, Rivera and the others in the car passed the gun around. 

Later, back at Nakiso’s, Lizette believed the gun was in the 

house, but Rivera approached Nunez from behind with the gun in 

his hand. These facts support the conclusion that because he 

possessed the gun before each shooting, Rivera had a separate 

intent and objective for both offenses. 

B. Parole Revocation Fine.

At sentencing, the court imposed and stayed a $1,000 

parole revocation fine pursuant to section 1202.45.11 Rivera

argues that because he was given life without parole (and hence 

no parole attached) as sentences on Counts 1 and 2, and the 

determinate terms in Counts 3 and 4 should have been stayed 

pursuant to section 654, there was no authorized sentence 

imposed which included a period of parole; thus, the suspended 

parole revocation fine is unauthorized and must be stricken. 

(People v. Carr (2010) 190 Cal.App.4th 475, 483, fn. 6; see 

generally People v. McWhorter (2009) 47 Cal.4th 318, 379-380.) 

11 Section 1202.45, subdivision (a) requires a sentencing 

court to assess a parole revocation fine “[i]n every case where a 

person is convicted of a crime and his or her sentence includes a 

period of parole[.]”
46

We disagree. Where, as here, the trial court properly 

imposed concurrent determinate terms on counts 3 and 4, his 

sentence includes a period of parole, and imposition of a parole 

revocation fine was appropriate. (See, e.g., People v. Brasure

(2008) 42 Cal.4th 1037, 1075.) Parole “was included in his 

determinate sentence by law and carried with it, also by law, a 

suspended parole revocation restitution fine.” (Ibid.) We observe 

that Rivera is not prejudiced by assessment of the fine, which will 

become payable only if he actually does begin serving a period of 

parole and his parole is revoked. 

VI. REMAND FOR RETRIAL OF GANG ALLEGATIONS.

After we filed the opinion in this matter, Rivera filed a 

petition for rehearing asserting he was entitled to the 

ameliorative benefits of AB 333, effective January 1, 2022, 

implementing changes to the proof of criminal street gang 

enhancements and street terrorism, and adding a provision at 

section 1109 to provide for bifurcation and a post-guilt phase trial 

of those allegations. As noted above, we granted rehearing and 

vacated submission to consider these issues.

We conclude, as urged by Rivera and conceded by the 

Attorney General, that the new evidentiary standards for proving 

gang enhancements in section 186.22 apply retroactively and 

require retrial on the gang allegations. We do not consider, 

however, whether the bifurcation provisions of section 1109 apply 

retroactively because we find no prejudice resulting from the lack 

of bifurcation at Rivera’s trial. We also conclude retrial of the 

gang allegations does not violate the double jeopardy or due 

process clauses, and remand for retrial. 
47

A. Amendments to Section 186.22. 

AB 333 found “[g]ang enhancement evidence can be

unreliable and prejudicial to a jury” because such evidence “is 

lumped into evidence of the underlying charges[,] further 

perpetuat[ing] . . . convictions of innocent people.” (Stats. 2921, 

ch. 699, § 2(d)(6)); see People v. Ramos (2022) 77 Cal.App.5th 

1116, 1129.) Further, “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.” (People v. Ramos, supra, 77 

Cal.App.5th at p. 1129.) As a result, AB 333 modified the 

evidentiary standard for admission of gang evidence, and 

provided for bifurcation of trials to separate the gang evidence 

from the underlying charges. The statute is silent as to 

retroactivity. (People v. Rodriguez (2022) 75 Cal.App.5th 816, 

822.)

1. Substantive Changes.

Previously, section 186.22 provided that a defendant who 

commits a felony “for the benefit of, at the direction of, or in 

association with a criminal street gang, with the specific intent to 

promote, further, or assist in criminal conduct by gang members” 

is subject to increased punishment upon conviction. (Former 

§ 186.22, subd. (b)(1).) 

In 2021, the Legislature enacted AB 333, which amended 

section 186.22 to impose new substantive and procedural 

requirements for gang allegations. Most notably, the law defined 

“to benefit, promote, further, or assist” as “to provide a common 

benefit to members of a gang where the common benefit is more 

than reputational. Examples of a common benefit that are more 
48

than reputational may include, but are not limited to, financial 

gain or motivation, retaliation, targeting a perceived or actual 

gang rival, or intimidation or silencing of a potential current or 

previous witness or informant.” (§ 186.22, subd. (g).) 

In addition, under prior law, there was no requirement that 

the predicate offense be gang related. (People v. Rodriguez, supra, 

75 Cal.App.5th at p. 822.) The new law imposes a stricter 

requirement for proof of a predicate offense, namely “a pattern of 

criminal gang activity,” which is necessary to prove that the 

group with which the defendant is associated is indeed a criminal 

street gang. (See § 186.22, subd. (f).) Previously, the prosecution 

needed to prove only that those associated with the gang had 

committed at least two offenses from a list of predicate crimes on 

separate occasions within three years of one another. (See former 

§ 186.22, subd. (e).) 

Under the newly amended law, the current offense cannot 

be used as one of the two predicate offenses. (§ 186.22, subd. 

(e)(2).) In addition, both predicate offenses must have been 

committed “within three years of the date the current offense is 

alleged to have been committed,” by gang “members,” and must 

have been for the “common[ ] benefit[ ] [of] a criminal street 

gang.” (§ 186.22, subd. (e)(1).) 

Thus, in summary, pursuant to the new legislation, 

imposition of a gang enhancement requires proof of the following 

additional requirements with respect to predicate offenses: (1) the 

offenses must have “commonly benefited a criminal street gang” 

where the “common benefit[ ] . . . is more than reputational”; 

(2) the last predicate offense must have occurred within three 

years of the date of the currently charged offense; (3) the 

predicate offenses must be committed on separate occasions or by 
49

two or more gang members; and (4) the charged offense cannot be 

used as a predicate offense. (Assem. Bill No. 333 (Reg. Sess.) § 3, 

§ 186.22, subd. (e)(1)–(2).) 

2. Procedural Changes.

New section 1109 provides that, upon the defendant’s 

request, the trial court must bifurcate an enhancement charged 

under section 186.22, subdivision (b) from the underlying 

charges. (§ 1109, subd. (a).) In addition, such separate 

proceedings must be held after the determination of the 

defendant’s guilt in the underlying offenses. (§ 1109, subd. (a).)12

12 Section 1109 provides: “(a) If requested by the defense, a 

case in which a gang enhancement is charged under subdivision 

(b) or (d) of Section 186.22 shall be tried in separate phases as 

follows: [¶] (1) The question of the defendant’s guilt of the 

underlying offense shall be first determined. [¶] (2) If the 

defendant is found guilty of the underlying offense and there is 

an allegation of an enhancement under subdivision (b) or (d) of 

Section 186.22, there shall be further proceedings to the trier of 

fact on the question of the truth of the enhancement. Allegations 

that the underlying offense was committed for the benefit of, at 

the direction of, or in association with, a criminal street gang and 

that the underlying offense was committed with the specific 

intent to promote, further, or assist in criminal conduct by gang 

members shall be proved by direct or circumstantial evidence. 

[¶] (b) If a defendant is charged with a violation of subdivision (a) 

of Section 186.22, this count shall be tried separately from all 

other counts that do not otherwise require gang evidence as an 

element of the crime. This charge may be tried in the same 

proceeding with an allegation of an enhancement under 

subdivision (b) or (d) of Section 186.22.” 
50

B. Retroactivity.

Rivera contends that he is entitled to retroactive 

application of both the substantive and procedural changes 

affecting gang enhancements. The Attorney General, as noted 

above, concedes Rivera is entitled to the benefit of the 

substantive but not the procedural changes.

1. Substantive Changes.

Ordinarily, “a new statute is presumed to operate 

prospectively absent an express declaration of retrospectivity or a 

clear indication that the electorate, or the Legislature, intended 

otherwise.” (Tapia v. Superior Court (1991) 53 Cal.3d 282, 287, 

fn. omitted (Tapia).) In In re Estrada (1965) 63 Cal.2d 740 

(Estrada), however, our Supreme Court recognized an exception 

to this rule. The court explained that “[w]hen the Legislature 

amends a statute so as to lessen the punishment it has obviously 

expressly determined that its former penalty was too severe and 

that a lighter punishment is proper as punishment for the 

commission of the prohibited act. . . . The amendatory act 

imposing the lighter punishment can be applied constitutionally 

to acts committed before its passage provided the judgment 

convicting the defendant of the act is not final.” (Id. at p. 745.) 

Further, the Supreme Court has expanded the application 

of the retroactivity doctrine broadly “to statutes changing the law 

to the benefit of defendants.” (Tapia, supra, 53 Cal.3d at p. 301.) 

Thus, the retroactivity principle applies to ameliorative changes 

in enhancements as well as to substantive offenses. (People v. 

Nasalga (1996) 12 Cal.4th 784, 792–793.)

As AB 333 increases the threshold for conviction of a 

section 186.22 offense and imposition of the enhancement, we 
51

therefore agree that Rivera is entitled to the benefit of the 

substantive changes in the law. (People v. Lopez (2021) 73 

Cal.App.5th 327, 344.) To prove that a defendant committed a 

felony “for the benefit of, at the direction of, or in association with 

a criminal street gang,” (§ 186.22, subd. (b)(1)) the new law 

requires the prosecution to show that “the common benefit [to the 

gang] is more than reputational.” (§ 186.22, subd. (g) The law 

thus redefines the enhancement for the benefit of the defendant 

and should be applied retroactively to Rivera. 

2. Procedural Changes.

There is a split of authority whether section 1109’s 

procedural changes apply retroactively. In People v. Burgos 

(2022) 77 Cal.App.5th 550 (review granted July 13, 2022, 

S274743) (Burgos), the court found section 1109 applied 

retroactively. (Id. at pp. 564–568; see also People v. Ramos, 

supra, 77 Cal.App.5th at p. 1119 [section 1109 retroactive].) 

In People v. Perez (2022) 78 Cal.App.5th 192 (review 

granted Aug. 17, 2022, S275090), however, the court held that 

section 1109 did “not apply retroactively to a trial that ha[d]

already occurred.” (Id. at p. 207; see also People v. Ramirez (2022) 

79 Cal.App.5th 48, 65 (review granted Aug. 17, 2022, S275341) 

[section 1109 prophylactic and designed to employ new features 

aimed at enhancing fairness of future proceedings and does not 

make any change to any crime or defense or punishment].) 

No part of the Penal Code “is retroactive, unless expressly 

so declared.” (§ 3.) Section 3 imposes a strong presumption of 

prospective operation, codifying the principle that, “‘in the 

absence of an express retroactivity provision, a statute will not be 

applied retroactively unless it is very clear from extrinsic 

sources’” that the Legislature intended a retroactive application. 
52

(People v. Buycks (2018) 5 Cal.5th 857, 880 (Buycks).) As a result, 

a statute silent with respect to retroactive application is 

construed to be prospective. (Ibid.)

Changes in trial procedures generally apply prospectively if 

they do not alter the substantive requirements for proving a 

crime or the truth of an enhancement allegation or reduce the 

available punishment in the event of a conviction. (See, e.g., 

People v. Cervantes (2020) 55 Cal.App.5th 927, 939–940 

(Cervantes) [new requirements for interrogations not retroactive]; 

People v. Sandee (2017) 15 Cal.App.5th 294, 305, fn. 7 [limitation 

on governmental search of cell phones not retroactive].)

Under Estrada, however, a limited rule of retroactivity 

applies to newly enacted criminal statutes that are intended to 

ameliorate criminal punishment. (Buycks, supra, 5 Cal.5th at p. 

881.) ‘‘The Estrada rule rests on the presumption that, in the 

absence of a savings clause providing only prospective relief or 

other clear intention concerning any retroactive effect, ‘a 

legislative body ordinarily intends for ameliorative changes to the 

criminal law to extend as broadly as possible, distinguishing only 

as necessary between sentences that are final and sentences that 

are not.’” (Cervantes, supra, 55 Cal.App.5th at pp. 937–938.)

Thus, in People v. Burgos, supra, 77 Cal.App.5th 550, the 

leading case finding section 1109 to be retroactive, the appellate 

court concluded the possibility of lesser punishment mandated 

retroactivity under Estrada. (Id. at pp. 564–568) Burgos

principally reasoned that “the Estrada rule may apply to a 

change in the law even where the defendants in question are not 

expressly given a lesser punishment as a result of retroactive 

application.” (Id. at p. 565.) 
53

Burgos relied on People v. Superior Court (Lara) (2018) 4 

Cal.5th 299 and People v. Frahs (2020) 9 Cal.5th 618. In those 

cases, as Burgos observed, the Supreme Court had found 

retroactivity for statutes that “could” result in more lenient 

treatment or provide a “possible ameliorating benefit.” (Burgos, 

supra, 77 Cal.App.5th at p. 565.) People v. Superior Court, supra, 

4 Cal.5th at p. 303, held that Proposition 57, a purely procedural 

change that prohibited prosecution of juveniles directly in adult 

court, applied retroactively, even though it did not reduce the 

punishment for a crime. People v. Frahs, supra, 9 Cal.5th at p. 

624, held a diversion program providing the opportunity to avoid 

penal consequences entirely if the defendant successfully 

completed the program applied retroactively. 

In reaching its conclusion, Burgos highlighted the 

ameliorative benefits of section 1109. (Burgos, supra, 77 

Cal.App.5th at p. 564.) First, it provides an increased likelihood 

of acquittal at trial due to the removal of prejudicial gang 

evidence from the main guilt phase. (Id. at pp. 565–567.) Thus, 

some defendants could be acquitted of the underlying offenses in 

a bifurcated trial. (Id. at p. 567.) Second, “‘[t]he mere specter of 

gang enhancements pressures defendants into unfavorable plea 

deals rather than risk a trial filled with prejudicial evidence and 

a substantially longer sentence.” (Id. at p. 567, quoting Assem. 

Bill 333, § 2, subd. (e).) 

After concluding section 1109 applied retrospectively, 

Burgos considered, without deciding, the standard of prejudice to 

apply. (Burgos, supra, 77 Cal.App.5th. at p. 568.) First, Burgos

addressed whether the error could constitute structural error, 

which could mandate automatic reversal because it would affect 

the framework within which the trial proceeded. (Id. at p. 568; 
54

see People v. Anzalone (2013) 56 Cal.4th 545, 554 [structural 

error requires per se reversal because it cannot be fairly 

determined how a trial would have been resolved if the error had 

not occurred].) Without explicitly adopting structural error 

analysis, Burgos continued, “[e]ven if harmless error analysis is 

amenable, it is not clear whether we should apply the federal or 

state law standard.” (Id. at p. 568.) Finally, Burgos held, “[e]ven 

assuming we must assess prejudice, however, we conclude 

appellants suffered prejudice under either the federal or state 

law standard.” (Ibid.) Thus, Burgos offers little guidance on 

evaluating prejudice. 

The dissent disagreed, finding section 1109 prospective 

only. Section 1109 “makes no change to any crime or defenses 

and makes no change to any punishment provision, and it does 

not create the possibility of lesser punishment or any other 

‘ameliorative’ benefit . . . .” (Burgos, supra, 77 Cal.App.5th. at p. 

572 (dis. opn. of Elia, J.)).) The dissent concluded the Estrada 

rule was designed to prevent an inference the Legislature “was 

bent on vengeance.” (Id. at p. 574 (dis. opn. of Elia, J.).) In 

summary, as a result, “there is a manifest distinction between 

the Legislature’s creation of new criminal procedures designed to 

enhance fairness and its enactment of provisions that reduce the 

possibility of punishment.” (Id. at pp. 573–574 (dis. opn. of Elia, 

J.).)

We need not decide the issue in this case. As one court has 

held, the Watson standard applies to the failure to bifurcate 

under section 1109. (People v. E.H. (2022) 75 Cal.App.5th 467, 

480.) Thus, even if section 1109 applied retroactively to his case,

Rivera cannot show it is “reasonably probable” he would have 

obtained a more favorable result if his trial had been bifurcated. 
55

(People v. E.H., supra, 75 Cal.App.5th at p. 480 [applying Watson 

standard to evaluation of prejudice resulting from decision not to 

apply section 1109 retroactively].) Where, as here, the evidence of 

guilt on the relevant charges is “overwhelming,” it is unlikely 

Rivera was harmed by the format of the trial. (Ibid.; People v. 

Pinholster (1992) 1 Cal.4th 865, 931, overruled on another ground 

in People v. Williams (2010) 49 Cal.4th 405, 459 [concluding the 

failure to bifurcate was harmless under the Watson standard 

because “[t]here was overwhelming evidence of defendant’s guilt 

on the other charges”].) 

The People presented overwhelming evidence that Rivera 

committed the charged murders independent of any gang 

evidence. Rivera confessed to his cellmate at the jail that he 

committed both shootings. He told Lizette he shot Morales, and 

Lizette witnessed Rivera shoot Nunez. Rivera used the same 

weapon for both offenses, spat on Morales’s memorial, and had a 

motive to kill Nunez. Under these circumstances, we conclude 

that bifurcation would not have helped Rivera. (People v. Ramos, 

supra, 77 Cal.App.5th at pp. 1131–1132 [following E.H., found no 

prejudice under Watson from the failure to bifurcate].)

C. Remand for Retrial of Gang Enhancement.

1. Evidence Insufficient to Support 

Enhancement Under Amended Statute.

As discussed below, the evidence at trial that the crimes 

were committed for the benefit of a gang was limited to evidence 

that committing crimes furthers the gang’s reputation for 

criminal conduct. This is insufficient under the new statute to 

support a true finding on the gang enhancement.
56

(a) Predicate Offenses.

As for what constitutes a “pattern of criminal gang 

activity,” previously the prosecution needed to prove “only that 

those associated with the gang had committed at least two 

offenses from a list of predicate crimes on separate occasions 

within three years of one another.” (Former § 186.22, subd. (e).) 

Assembly Bill 333 made several changes to this definition. First, 

the predicate offenses now must have been committed by two or 

more “members” of the gang (as opposed to any persons). 

(§ 186.22, subd. (e)(1).) Second, the predicate offenses must be 

proven to have “commonly benefited a criminal street gang.” 

(Ibid.) Third, the last predicate offense must have occurred 

within three years of the date of the currently charged offense. 

(Ibid.) Fourth, the list of qualifying predicate offenses has been 

reduced. (Ibid.; see also former § 186.22) And fifth, the currently 

charged offense no longer counts as a predicate offense. (§ 186.22, 

subd. (e)(2).)

In this case, the prosecution relied upon three predicate 

acts to satisfy the requirements of prior section 186.22, 

subdivision (b)(1). These offenses do not satisfy the amended 

statute. 

First, Ernie Lopez pleaded nolo contender to two assaults 

with a deadly weapon and vandalism committed on November 17, 

2012, offenses that occurred more than three years before the 

current offenses. Vandalism is no longer a predicate offense 

under amended section 186.22, subdivision (e). The prosecution 

did not introduce evidence that the predicate offenses were gang 

related because the evidence was excluded. 

Second, Romero (Face) pleaded nolo contender to one count 

of carrying a concealed firearm; the charging document contained 
57

no gang allegation. There was no evidence at trial that in doing 

so, Face acted for the benefit of the Lynwood Mob. 

Third, Marcus Blancarte pleaded guilty to assault; the 

charging document contained no gang allegation. At trial, 

Detective Chalmers testified that after reviewing the police 

report, he concluded Blancarte belonged to the Lynwood Mob. 

However, there was no evidence that Blancarte acted to benefit 

the Lynwood Mob. 

(b) Insufficient Evidence of Benefit to

Gang Under Amended Statute. 

As noted above, amended section 186.22 requires a showing 

that the defendant’s conduct conferred some benefit on the gang 

that is more than reputational. (§ 186.22 subd. (e)(1).) The benefit 

can be shown by “financial gain or motivation, retaliation, 

targeting a perceived or actual gang rival, or the intimidation or 

silencing of a potential current or previous witness or informant.”

(§ 186.22, subd. (g).) 

Those elements were not met here. Detective Chalmers 

opined with respect to the first victim, Morales, who was killed in 

Segundos territory, that because the shooting occurred in rival 

gang territory, the shooter would gain respect among gang 

members. There was no evidence, however, that the shooting was 

to target a perceived gang rival, or to retaliate for some prior 

slight. 

With respect to the second victim, Nunez, the evidence was 

again primarily reputational. Detective Chalmers testified that 

someone in a gang who has been called a “bitch” by another gang 

member will have lost all credibility, and the only way for such 

an individual to regain respect would be to commit a violent act. 

The reputation of the Lynwood Mob would have been weakened 
58

by Nunez calling one of its members a “bitch,” and by the fact 

that Rivera drew a firearm but did not use it. Expert testimony 

established that Nunez had disrespected the Lynwood Mob by 

calling Rivera a “bitch” and Rivera would be motivated to get his 

reputation back by committing a violent act. By doing so, other 

gang members would learn it was not permissible to disrespect 

the gang. 

2. Double Jeopardy Does Not Preclude 

Retrial.

Rivera argues that retrial of the gang enhancement is 

precluded by the double jeopardy clauses. We disagree. 

The double jeopardy clauses of the Fifth Amendment to the 

United States Constitution and article I, section 15, of the 

California Constitution provide that a person may not be twice 

placed “in jeopardy” for the “same offense.” (People v. Monge 

(1997) 16 Cal.4th 826, 831–832.) The double jeopardy bar protects 

against a second prosecution for the same offense following an 

acquittal or conviction, and applies where a conviction is reversed 

or set aside because of insufficient evidence. (Id. at p. 832.)

When a statutory amendment adds an additional element 

to an offense, however, the prosecution must be afforded the 

opportunity to establish the additional element upon remand. 

(People v. Figueroa (1993) 20 Cal.App.4th 65, 71.) 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. (Id. at p. 

72, fn. 2) Such a retrial is not barred by the double jeopardy 

clause because the issue was not relevant to the charges at the 

time of trial and accordingly, the question was never tried. (Ibid.) 

Accordingly, we reverse the gang enhancements and remand the 
59

matter to the trial court for further proceedings. (Id. at p. 72; 

People v. Eagle (2010) 246 Cal.App.4th 275, 280.)

To the extent Rivera argues remand is inappropriate 

because there is insufficient evidence in the trial record to prove 

the enhancement under the new law, he is mistaken. Where, as 

here, evidence is not introduced at trial because the law at that 

time would have rendered it irrelevant, remand to prove that 

element is proper. (See People v. Balderas (1985) 41 Cal.3d 144, 

197–199 [retrial of special circumstances issue in death penalty 

trial after court decision that intent to kill was required for 

felony-murder special circumstance].)

3. No Due Process Violation Based on 

Instructional Error. 

Rivera argues the jury was misdirected on the elements of 

the gang enhancements thereby violating due process, and such 

error was prejudicial because it cannot be determined whether 

the jury based its verdict on a legally adequate theory. Further, 

he asserts that because the gang evidence was entirely 

reputational, the error was not harmless. 

“By requiring proof for a gang enhancement that the 

benefit to the gang was more than reputational, Assembly Bill 

No. 333 essentially adds a new element to the enhancement.”

(People v. Sek (2022) 74 Cal.App.5th 657, 668.) When jury 

instructions are deficient for omitting an element of an offense, 

they implicate the defendant’s federal constitutional rights, and 

we review for harmless error under the strict standard of 

Chapman, supra, 386 U.S. 18. Under the Chapman standard, 

reversal is required unless it appears beyond a reasonable doubt 

that the error did not contribute to the jury’s verdict. (Id. at pp. 

24–25)
60

In order to establish harmless error under the Chapman

standard, it is insufficient to show that substantial evidence 

existed to support a conviction under the correct instructions. 

(People v. Sek, supra, 74 Cal.App.5th at p. 668.) The question is 

the effect of the incorrect instruction upon the guilty verdict in 

the case at hand—“whether the guilty verdict actually rendered 

in this trial was surely unattributable to the error.” (People v. 

Sek, supra, 74 Cal.App.5th at p. 668.) The standard is met where 

the missing element from an instruction was uncontested or 

proved as a matter of law. (Id. at p. 669)

Here, as discussed above, the gang evidence was 

reputational and did not address any other benefit to the gang. 

Thus, the instructional error on this question was not harmless 

under the Chapman standard because there was no proper 

evidence upon which the jury could have based their true finding.

The remedy is retrial on the gang enhancement, something 

we have already ordered. Because we do not reverse based on the 

insufficiency of the evidence required to prove a violation of the 

statute as it read at the time of trial, the double jeopardy clause 

will not bar a retrial. (People v. Figueroa, supra, 20 Cal.App.4th 

at p. 72.) 

D. No Error in Failing to Impose Parole Eligibility.

Rivera contends the trial court erred by failing to impose a 

15-year parole eligibility date under section 186.22, subdivision 

(b)(5). We disagree, as this provision does not apply to life terms 

with no possibility of parole.

Section 186.22, subdivision (b) establishes alternative 

methods for punishing felons whose crimes were committed for 

the benefit of a criminal street gang. Where the defendant 

commits a violent felony “punishable by imprisonment in the 
61

state prison for life,” section 186.22, subdivision (b)(5) applies and 

imposes a minimum term of 15 years before the defendant may 

be eligible for parole. This provision was not modified by AB 333

and thus Rivera’s argument is simply one of sentencing error; we 

need not consider the issue of retrospective application. 

People v. Lopez (2005) 34 Cal.4th 1002 (Lopez), held that a 

defendant who commits a gang-related violent felony punishable 

by life imprisonment is not subject to the 10-year gang 

enhancement under section 186.22, subdivision (b)(1)(C) but, 

rather, is subject to a minimum parole eligibility term of 15 years 

under section 186.22, subdivision (b)(5). (Id. at p. 1010–1011.) 

Lopez, however, did not involve a defendant sentenced to life 

without parole. The defendant there was sentenced to a term of 

25 years to life for first-degree murder. (Id. at p. 1005). Here, on 

the other hand, defendant was sentenced to life without the 

possibility of parole for first-degree murder. Because a term of life 

without parole contains no anticipated parole date, it would be 

illogical to include a minimum parole date on such a term.

Indeed, Lopez observed the minimum parole eligibility 

provision was never intended to apply to persons sentenced to life 

without parole. (Lopez, supra, 34 Cal.4th at pp. 1010–1011.)

Lopez examined the history of the California Street Terrorism 

Enforcement and Prevention Act (§ 186.20 et seq.; STEP Act) and 

noted a 1988 enrolled bill report stated: “‘“This proposed 

provision relating to life terms [former section 186.22, subdivision 

(b)(3), now section 186.22[, subdivision] (b)(5) ] would apply to all 

lifers (except life without possibility of parole).”’” (Lopez, supra, 

34 Cal.4th at p. 1010.) The Lopez court concluded “at the time the 

STEP Act was enacted, the predecessor to section 186.22(b)(5) 
62

was understood to apply to all lifers, except those sentenced to 

life without the possibility of parole.” (Ibid.) 

DISPOSITION

The gang enhancements are reversed. In all other respects, 

the judgment is affirmed. On remand, the prosecution shall have 

the option to retry the defendant on the gang allegations, and the 

trial court shall resentence Rivera. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CURREY, J. 

We concur: 

WILLHITE, Acting P.J. 

COLLINS, J.