Filed 3/28/24 P. v. Vanatti CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

LYNDEN VANATTI,

Defendant and Appellant.

F084336

(Super. Ct. No. BF172779B)

MODIFICATION OF OPINION 

ON DENIAL OF REHEARING 

[NO CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the opinion herein filed on March 12, 2024, be modified as 

follows:

1. At the beginning of the second sentence of the first full paragraph on page 26, 

change “Finley” to “McKenna”. 

This modification does not effect a change in the judgment.

The petition for rehearing is denied.
2.

SNAUFFER, J.

WE CONCUR:

PEÑA, Acting P. J.

SMITH, J.
Filed 3/12/24 P. v. Vanatti CA5 (unmodified opinion)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

LYNDEN VANATTI,

Defendant and Appellant.

F084336

(Super. Ct. No. BF172779B)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. Kenneth C. 

Twisselman II, Judge.

Jill M. Klein, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Ian P. 

Whitney, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOooINTRODUCTION

On August 3, 2021, a jury convicted defendant Lynden Vanatti of the 

premeditated first degree murder of Allen Fagerson (Pen. Code, §§ 187, subd. (a), 189, 
2.

count 1),1 and found true all enhancements and allegations, including the special 

circumstance the murder was intentional and was committed while Vanatti was an active 

participant in a gang, and that the murder was carried out in furtherance of the gang 

(§ 190.2, subd. (a)(22)). Vanatti was also convicted of dissuading a witness, Justin 

Becker, from making a report or testifying at trial (§ 136.1, subd. (c)(1) & (2), counts 3 

and 4).2 Subsequently, the trial court sentenced Vanatti to a term of life without the 

possibility of parole, plus an indeterminate term of 57 years to life and a determinate term

of 15 years. 

On appeal, Vanatti contends he is entitled to the benefit of newly enacted 

Assembly Bill No. 333 (2021-2022 Reg. Sess.) (AB 333), which amended the language 

of section 186.22, and added section 1109 requiring bifurcation, upon a defendant’s 

request, of the trial on the gang enhancements and substantive gang offenses from that of 

the underlying offenses. Specifically, Vanatti argues the changes made by AB 333 

require dismissal of his gang enhancements (§ 186.22, subd. (b)), the substantive gang 

offense (§ 186.22, subd. (a), count 5), and the gang-murder special circumstance 

allegation (§ 190.2, subd. (a)(22)), and that the failure to bifurcate the gang allegations 

constituted prejudicial error. The People concede the amendments made to 

section 186.22 apply retroactively and that the substantive gang offense (§ 186.22, 

subd. (a), count 5) must be dismissed, but argue the changes made by AB 333 do not 

apply to the gang-murder special circumstance allegation (§ 190.2, subd. (a)(22)) because 

any change constitutes an unconstitutional amendment to Proposition 21, and that 

“[s]ection 1109 applies prospectively only; [but] in any event, [Vanatti] was not 

prejudiced by the lack of bifurcation.” During the pendency of this appeal, our Supreme 

1 Undesignated statutory references are to the Penal Code.

2 As we discuss further below, Vanatti was also convicted and sentenced to 

additional offenses and enhancements.
3.

Court held that “applying Assembly Bill 333’s definition of ‘criminal street gang’ to the 

gang-murder special circumstance does not unconstitutionally amend 

section 190.22(a)(22) [Proposition 21].” (People v. Rojas (2023) 15 Cal.5th 561, 580 

(Rojas), italics added.)

Further, Vanatti contends there was insufficient evidence (1) he was an active 

participant in the Aryan Brotherhood and (2) the murder was committed to further the 

activities of the gang requiring reversal of the gang-murder special circumstance 

allegation, the gang enhancements, and the substantive gang conviction. As to 

defendant’s substantive gang offense conviction (count 5), the People concede there was 

insufficient evidence the murder actually promoted criminal activity by members of the 

Aryan Brotherhood gang. 

Finally, Vanatti contends that “substantial evidence does not support a finding [he] 

intimidated any witness in violation of section 136.1, requiring reversal of the convictions 

of count[s] 3 and 4,” and that his sentences as to counts 3 and 4 are erroneous requiring 

him to be resentenced. As to Vanatti’s sentences on counts 3 and 4, the People concede 

error. 

We accept the People’s concessions, vacate the sentence, and remand for 

resentencing. Further, we conclude the entirety of AB 333 applies retroactively to 

Vanatti’s case and, as to counts 1, 2, 3, 4, and 6, dismiss the section 186.22, 

subdivision (b)(1) enhancements, dismiss count 5 (§ 186.22, subdivision (a)), and as to 

count 1, dismiss the gang-murder special circumstance allegation pursuant to 

section 190.2, subdivision (a)(22). On remand, the People are not foreclosed from 

retrying Vanatti on the gang enhancements and gang-murder special circumstance 
4.

allegation,3 and at resentencing the trial court shall reconsider Vanatti’s sentences as to 

counts 3 and 4. In all other respects, we affirm the judgment.

STATEMENT OF THE CASE

On November 6, 2020, the Kern County District Attorney filed an information 

charging Vanatti4 with premeditated first degree murder (§§ 187, subd. (a), 189, count 1) 

with the special circumstances he aided and abetted the individual who intentionally 

killed Fagerson while lying in wait (§ 190.2, subd. (a)(15)), that the murder was 

intentional and was committed while Vanatti was an active participant in a gang, and the 

murder was carried out in furtherance of the gang (§ 190.2, subd. (a)(22)); conspiracy to 

commit murder (§§ 182, subd. (a)(1), 187, count 2);5 dissuading Becker by means of 

3 As we discuss in detail below, because both parties agree there was insufficient 

evidence to support the substantive gang offense charge (count 5) under the law in effect 

at the time of defendant’s trial, the People are foreclosed from retrying defendant on 

count 5 on remand. (See United States v. DiFrancesco (1980) 449 U.S. 117, 131

(DiFrancesco) (“the Double Jeopardy Clause prohibits retrial after a conviction has been 

reversed because of insufficiency of the evidence”]; People v. Wetle (2019) 

43 Cal.App.5th 375, 388 (Wetle) (concluding that although it was necessary to reverse 

based on instructional error, it was also necessary to consider the defendant’s 

insufficiency of the evidence claim to determine whether retrial is barred by double 

jeopardy principles].)

4 Vanatti was charged as a co-defendant with Dustin Henthorn, William Leair, Jr., 

and Charles Colwell. 

5 Count 2 alleged the following overt acts in support of the conspiracy:

“Overt Act No. 1: On July 20, 2017, Dustin Henthorn went into 

Allen Fagerson’s cell.

“Overt Act No. 2: On July 20, 2017, Dustin Henthorn stabbed Allen 

Fagerson.

“Overt Act No. 3: On July 20, 2017, at least one defendant closed the 

door to cell 118 with Dustin Henthorn and Allen Fagerson inside.

“Overt Act No. 4: On or before July 20, 2017, at least one defendant told 

Justin Becker not to warn anyone.
5.

force, or by an express or implied threat of force or violence from attending or giving 

testimony at a trial or proceeding (§ 136.1, subd. (c)(1), count 3); dissuading Becker from 

making a report to a correctional officer in furtherance of a conspiracy (§ 136.1, 

subd. (c)(2), count 4); active participation in the Aryan Brotherhood gang (§ 186.22, 

subd. (a), count 5); and conspiracy to commit an assault with a deadly weapon by a 

prisoner (§§ 182, subd. (a)(1), 4501, subd. (a), count 6).6 As to counts 1, 2, 3, 4, and 6, it 

was further alleged these offenses were committed for the benefit of the Aryan 

Brotherhood gang (§ 186.22, subd. (b)(1)). Finally, as to all offenses, the information 

alleged three prior strike offenses (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d), 4501, 

“Overt Act No. 5: On or before July 20, 2017, at least one defendant told 

Justin Becker not to return to his cell th[r]ough the A-Side line.

“Overt Act No. 6: On or before July 20, 2017, at least one defendant 

knew about writings made by Allen Fagerson.

“Overt Act No. 7: On or before July 20, 2017, at least one defendant 

discussed Allen Fagerson’s writings with another inmate.

“Overt Act No. 8: On or before July 20, 2017, at least one defendant 

discussed Allen Fagerson’s ‘paperwork,’ referring to his criminal history, 

with another inmate.

“Overt Act No. 9: On or before July 20, 2017, at least one defendant 

discussed the possibility of Albert Rello committing a crime on Allen 

Fagerson.

“Overt Act No. 10: On or before July 20, 2017, at least one defendant 

possessed the weapon used to stab Allen Fagerson.

“Overt Act No. 11: On or before July 20, 2017, at least one defendant was 

a porter in Facility B.

“Overt Act No. 12: On or after July 20, 2017, at leas[t] one defendant 

spoke to Michael Jones about the crime committed on Allen Fagerson.” 

6 The overt acts alleged in count 6 were the same overt acts alleged in count 2. 
6.

subd. (a), 246, 459/460, subd. (a)) and three prior serious felony offenses (§ 667, 

subd. (a)). 

On August 3, 2021, a jury found Vanatti guilty on all counts and found true all 

enhancements and allegations. As to both the alleged prior strikes and the prior serious 

felony offenses, the trial court in a bifurcated trial found true that Vanatti suffered these 

three prior convictions alleged in the information. 

Subsequently, as to count 1, the trial court sentenced Vanatti to a term of life 

without the possibility of parole, plus 15 years for the three prior serious felony offenses 

(§ 667, subd. (a)). As to count 3, the trial court sentenced Vanatti to the upper term of 

four years, plus 15 years for the three prior serious felony offenses (§ 667, subd. (a)), and 

then tripled this term pursuant to section 667, subdivision (e)(2)(A)(i), for a total 

indeterminate term of 57 years to life, to run consecutive to count 1. As to count 2, the 

trial court sentenced Vanatti to a term of 25 years to life, and then tripled this term 

pursuant to section 667, subdivision (e)(2)(A)(i), for a total indeterminate term of 75 

years to life, plus 15 years for the three prior serious felony offenses (§ 667, subd. (a)), 

but stayed this sentence pursuant to section 654. As to count 4, the trial court sentenced 

Vanatti to the upper term of four years, plus 15 years for the three prior serious felony 

offenses (§ 667, subd. (a)), and then tripled this term pursuant to section 667, 

subdivision (e)(2)(A)(i), for a total indeterminate term of 57 years to life, but stayed this 

sentence pursuant to section 654. As to count 5, the trial court sentenced Vanatti to an 

indeterminate term of 25 years to life, plus 15 years for the three prior serious felony 

offenses (§ 667, subd. (a)), but stayed this sentence pursuant to section 654. Finally, as to 

count 6, the trial court sentenced Vanatti to an indeterminate term of 25 years to life, plus 

a five-year term for the gang enhancement (§ 186.22, subd. (b)(1)), but stayed this 

sentence pursuant to section 654. The total aggregate sentence imposed was a term of 

life without the possibility of parole, plus an indeterminate term of 57 years to life and a 

determinate term of 15 years. 
7.

SUMMARY OF FACTS

I. The Prosecution Case-in-Chief

A. Background of the North Kern State Prison

Vanatti, Henthorn, Colwell, Leair, and Fagerson were inmates at the North Kern 

State Prison in Delano.7 The prison had four security levels, ranging from Level 1 

minimum security to Level 4 maximum security. The facility had two sides, “A” and 

“B,” and two tiers, and the cell doors were controlled by a central operator. The 

underlying murder took place at Facility B, which is a “reception center” where the staff 

“determin[ed] what facility w[ould] best suit [the inmate’s] needs as far as security level 

and medical issues.” The facility housed general population inmates, which means the 

housed inmates “do not have any type of security concerns such as a sensitive need 

inmate or a protective custody inmate.” 

The prison was racially segregated between the white, black, and Hispanic 

inmates. The white inmates8 were controlled by the Aryan Brotherhood gang, which 

imposed a set of rules to be followed by the white inmates. White inmates were required 

to “do hits” on individuals not following these rules. Further, any crimes committed for 

the benefit of the Aryan Brotherhood had to be approved by the gang or the inmate who 

committed the crime would “get hit.” Finally, sex offenders and inmates who kill women 

and hurt children were not tolerated in the general population, and these individuals were 

usually removed from the general population to a sensitive needs yard.9 

7 Vanatti was also known as “Flea;” Henthorn was also known as “Doc;” Colwell 

was also known as “Natural;” and Leair was also known as “Johnny Boy.” 

8 The white inmate population was known as the “Woodpile” or “Peckerwoods.” 

9 The sensitive needs yard was repeatedly referred to throughout the record as 

“SNY.” 
8.

B. Events Prior to the Stabbing

In July 2017, Vanatti and Henthorn were housed together in cell number 106. 

Vanatti introduced himself to other inmates as a member of the Nazi Lowriders gang and 

was in charge, alongside Leair, of the white inmates inside the building. 

Fagerson was 57 years old, in poor health, and required the use of a walker. He 

was housed with Becker in cell number 118. Fagerson was identified as a “J-cat” – an 

individual who was “[a] little slow [and] [s]omeone who takes like psych meds, who just 

says things or does weird things that seem a little off compared to how most people in 

society would conduct themselves.” He spent most of his free time writing poems for his 

granddaughter. These poems involved “[s]omething about a leprechaun and a trail . . . it 

was like a little kid story.” Becker thought these poems were “kind of weird.” 

Four days before the murder, Fagerson traded some of his poems for coffee. 

These poems eventually ended up in the possession of both Vanatti and Henthorn. 

Thereafter, on July 19, 2017, Vanatti and Henthorn called Becker over to sit with them at 

a table. Vanatti asked Becker, “ ‘You know what is going to happen to your cellie 

tomorrow. Right?’ ” Becker responded, “ ‘What, are you guys going to move him?’ ” 

Vanatti replied, “ ‘No. Your cellie is going to die tomorrow.’ ” Becker “was kind of 

shocked, and it just made [him] scared.” Vanatti then asked Becker if he was “willing to 

do it[,]” and Becker replied, “[N]o, I don’t want to do it. I’m not a killer.” Vanatti then 

told Becker, “ ‘It’s okay, I’ve already got a hitter.’ ” Henthorn then told Becker that 

Fagerson needed to be killed because “he ha[d] like a 20-year-old [sex] charge.” Vanatti 

and Henthorn also told Becker “not to go back to [his] cell and scream for help or yell for 

help; that they had the green light[10] and that this was a sanctioned hit; that [Fagerson], 

10 Becker testified a “green light” means “[t]hey have the go-ahead to do it” from 

the Aryan Brotherhood. 
9.

if [Becker] spooked [Fagerson] for any reason and he left the yard that [he] was going to 

be in trouble for it.” 

Later that night, Becker considered reporting this hit to the correctional officers 

and took out a piece of paper and “wrote in big bold letters ‘Please help, my life is in 

danger.’ . . . ‘I need to be removed out of here ASAP.’ ”11 However, Becker never 

showed this piece of paper to the correctional officers, nor did he warn Fagerson about 

the hit. 

C. The Stabbing

Prior to the murder, Colwell slipped a sharp weapon under Vanatti and Henthorn’s 

cell door. Vanatti and Henthorn then took turns sharpening the weapon. 

On July 20, 2017, Becker walked laps in the yard with Henthorn when Henthorn 

told him “he was going to go in the cell and lock himself in the cell because he wanted to 

make sure that [Becker’s] cellie died; that he was going to get washed up,[12] he knew it, 

and he didn’t care.” After Becker completed some laps, Vanatti approached him and 

said, “[W]hen the yard was recalled that they wanted [him] to return with the B side line 

and to go get in the back of the line of the whites and that when [they] came in the 

building that [he] could not go back to [his] cell.” Moreover, Vanatti told him “to sit at a 

table in the dayroom and refuse to go back to [his] cell . . . [and he] wasn’t allowed to say 

anything about why [he] was refusing but just to refuse.” 

Becker then entered the back of the line as instructed. He then told a correctional 

officer next to him, “ ‘Hey, they are going to whack my cellie right now. I am in B-1, in 

118’. . . ‘You guys need to send help.’ ” The correctional officer responded, “ ‘There’s 

nothing I can do about it. Keep walking.’ ” Becker was frightened. Officers 

11 Officers later found this note in cell number 118. The note read, “[M]y life is in 

danger. Please help ASAP.”

12 Becker testified “washed up” means to get life in prison. 
10.

subsequently placed Becker in handcuffs and transported him to a holding cell until he 

could be brought in for questioning. Eventually, Becker told Sergeant T. Yoder “that his 

cellmate was going to be murdered.” Thereafter, Sergeant Yoder contacted the control 

booth officer to have an officer inspect cell number 118. 

An officer then searched cell number 118 and found Henthorn “standing at the 

door, blocking the window view.” Henthorn “didn’t have a shirt on, and he was sweaty 

and breathing heavily.” The officer asked Henthorn to move and Henthorn yelled, “ ‘It’s 

[general population], motherfucker.’ ” Eventually, the officer “saw Inmate Fagerson 

lying on the bottom tier or the bottom bunk face up, unresponsive [¶] [and he] s[aw] an 

object sticking out of his chest with blood around it, so [he] immediately hit [his] 

alarm.”13 

Officers then placed Henthorn in handcuffs and placed him in a holding cell. At 

the holding cell, Henthorn “seemed happy, and he was actually laughing at the time.” 

Henthorn told the officers, “I’ll make it easy on you guys. I was caught red-handed 

locked in that cell” and also to “make sure to get some [blood] from [his] right pinky nail. 

There is a . . . fat ass chunk of [Fagerson’s] blood there.” Further, while Henthorn was 

being transported to another facility he told officers, “The women and children are safe 

again [¶] [t]he POS is dead.” He further explained:

“That POS was a pedophile. You know he did some shit back in the 

‘70s. That motherfucker showed me some kids’ books that he was writing 

that was all about children. I was molested when I was a kid. He fucked 

up by showing me that shit.” 

Finally, as it related to the weapon, Henthorn asked the officers, “Did you like the 

finishing touches I left on [Fagerson]?” 

13 It was later determined Fagerson had been stabbed 75 times in the head, neck, 

shoulders, and chest. Fagerson was later pronounced dead. Forensic Pathologist R. 

Whitmore testified “[t]he cause of death [was] multiple stab wounds.” 
11.

D. Vanatti’s Statements

After the murder, Vanatti and Henthorn were placed in an administrative 

segregation unit. Inmate Michael Jones, an affiliate of the Aryan Brotherhood, ran this 

unit. Jones testified Vanatti told him all the specifics regarding the plan to murder 

Fagerson. 

E. Gang Evidence

Officer Farley testified as a gang expert. He testified the Aryan Brotherhood 

operates in every prison throughout California and is specific to “[t]he white race.” “The 

Aryan Brotherhood basically opposes anybody that isn’t the Aryan Brotherhood . . . [and] 

at the end of the day it’s AB and nothing else to them. Anybody else would be either 

subservient or enemy.” There are only 20-25 Aryan Brotherhood full members, “[b]ut as 

far as affiliates and active participants, it would be in the thousands.” Further, the Nazi 

Lowriders (NLR) affiliate with the Aryan Brotherhood. “[T]here are still to this day 

former NLR members that are AB members . . . [and] in fact, AB members now, but at 

one point they were recruited from the NLR.” Specifically, Officer Farley testified the 

NLR does still exist and that “the other loyal [NLR] faction stayed loyal to the Aryan 

Brotherhood; therefore, they are still walking the mainline.” The primary activities of the 

Aryan Brotherhood are “[m]urder, conspiracy to commit murder, financial crimes, money 

laundering, distribution of narcotics, witness intimidation[,] [¶] [a]ssaults with deadly 

weapons, battery, battery on peace officers[,] [and] [¶] possession of illegal weapons.” 

1. Predicate Offenses

In June 2013, inmate Jason Buckley, an active member of the Aryan Brotherhood, 

stabbed inmate Williams while inmates Smith and May punched and kicked Williams. 

Inmate Franklin Oden, who ran the white population in the building and was an active 

Aryan Brotherhood gang member, directed Buckley, Smith, and May to commit the 

assault. Oden was convicted of being an active participant in the gang while conducting 
12.

felonious activities, and Buckley was convicted of assault with a deadly weapon with a 

gang enhancement. 

In January 2014, inmates Michael Ellison, Richard Collins, and Aaron Edwards 

stabbed three other inmates during chapel time. Ellison and Collins were convicted of 

felony assault with a deadly weapon, whereas Edwards was convicted of misdemeanor 

assault with a deadly weapon. Officer Farley testified Ellison, Collins, and Edwards were 

active Aryan Brotherhood members at the time of the offense. However, Officer Cope 

testified Ellison was not an active member. 

In December 2015, inmates Eric Knudsen and Chad Studebaker assaulted an 

inmate while at the yard. Knudsen was convicted of an assault likely to cause great 

bodily injury, while Studebaker was convicted of an assault with a deadly weapon. Both 

Knudsen and Studebaker were active members of the Aryan Brotherhood gang.

2. Expert Opinion

Officer Farley testified the Aryan Brotherhood targets sex offenders “to show their 

status amongst other races, other gangs, if you will, in the prison” and “[i[f you have been 

seen or known or it gets out that one of your leaders or members has a sex crime or you 

are allowing that within your ranks, the prison culture in itself will view that organization 

as weak and start preying upon . . . if you were labeled weak in prison.” The Aryan 

Brotherhood’s prohibition on sex offenders is both a “morality thing” and a “respect 

thing.” 

Further, Officer Farley testified to the following:

“Based on all the testimony from multiple sources, different sources, 

and the terminology that they are using in their testimony, green lit, 

authorized, approved, and the dynamics of their testimony of how this was 

planned, I would say yes, yes. [Vanatti] was acting on behalf of the Aryan 

Brotherhood.” 
13.

DISCUSSION

I. AB 333

AB 333 amended the language of section 186.22 to modify the showing necessary 

to prove gang offenses and gang enhancements (Stats. 2021, ch. 669, § 3, eff. Jan. 1, 

2022), and added section 1109, requiring bifurcation, upon a defendant’s request, of the 

trial of gang enhancements and substantive gang offenses from that of the other 

underlying offenses. (§ 1109, subds. (a), (b).)

A. Sections 186.22 and 190.2, subdivision (a)(22)

Vanatti contends he is entitled to the benefit of newly amended section 186.22 and 

that the gang enhancements, substantive gang offense,14 and gang-murder special 

circumstance allegation must be dismissed. The People concede the amendments to 

section 186.22 apply retroactively, but disagree the gang-murder special circumstance 

must be dismissed because the Legislature could not unconstitutionally amend 

section 190.2, subdivision (a)(22), created by the voters via Proposition 21. We conclude 

Vanatti is entitled to a dismissal of the gang enhancements and the gang-murder special 

circumstance allegation. (Rojas, supra, 15 Cal.5th at p. 580.) However, as we discuss in 

detail below, we also conclude the People are entitled to retry Vanatti on the gang 

enhancements and gang-murder special circumstance allegation, if they so choose.

1. The Gang Enhancements (§ 186.22, subd. (b)) and Substantive 

Gang Offense (§ 186.22, subd. (a))

As to counts 1, 2, 3, 4, and 6, the jury found true the gang enhancements 

(§ 186.22, subd. (b)), and as to count 5, the jury found Vanatti guilty of the substantive 

gang offense (§ 186.22, subd. (a)). At the time of Vanatti’s trial, “criminal street gang” 

was defined as “any ongoing organization, association, or group of three or more persons, 

14 As noted above, the People concede there is insufficient evidence to support the 

substantive gang offense (§ 186.22, subd. (a), count 5) and thus count 5 must be 

dismissed. 
14.

whether formal or informal, having as one of its primary activities the commission of one 

or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to 

(33), inclusive of subdivision (e), having a common name or common identifying sign or 

symbol, and whose members individually or collectively engage in or have engaged in a 

pattern of criminal gang activity.” (Former § 186.22, subd. (f).) AB 333 revised the 

definition of “criminal street gang” to require the members “collectively” (no longer 

“individually or collectively”) engaged in a pattern of criminal activity. (§ 186.22, 

subd. (f); People v. Clark (Feb. 22, 2024, S275746) ___ Cal.5th ___, ___

[2024 WL 718741, *4] (Clark).)

Additionally, AB 333 redefined “ ‘pattern of criminal gang activity’ ” (§ 186.22, 

subd. (e)(1)), a necessary requirement for proving the existence of a “criminal street 

gang” and thus a “prerequisite to proving the gang crime and the gang enhancement.” 

(See § 186.22, subds. (a), (b)(1); People v. Rodriguez (2022) 75 Cal.App.5th 816, 823

(Rodriguez).) “ ‘The offenses comprising a pattern of gang activity are referred to as 

predicate offenses.’ ” (Id. at p. 822, quoting People v. Valencia (2021) 11 Cal.5th 818, 

829.) At the time of Vanatti’s trial, “pattern of criminal activity” meant “the commission 

of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile 

petition for, or conviction of two or more of the following offenses, provided at least one 

of these offenses occurred after the effective date of this chapter and the last of those 

offenses occurred within three years after a prior offense, and the offenses were 

committed on separate occasions, or by two or more persons.” (Former § 186.22, 

subd. (e).) Under this former definition, the prosecution only had to prove that those 

associated with a 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); see 

People v. Sek (2022) 74 Cal.App.5th 657, 665 (Sek).) “[I]t was unnecessary to prove 

predicate offenses were gang related.” (Rodriguez, at p. 822; former § 186.22, subd. (e).) 
15.

The amended statute made several changes to this definition and limited the type 

of predicate offenses sufficient to prove the gang enhancement and gang offense. “First, 

the predicate offenses now must have been committed by two or more ‘members’ of the 

gang (as opposed to any person). [Citation.] Second, the predicate offenses must be 

proven to have ‘commonly benefited a criminal street gang.’ [Citation.] Third, the last 

predicate offense must have occurred within three years of the date of the currently 

charged offense. [Citation.] Fourth, the list of qualifying predicate offenses has been 

reduced. [Citation.] And fifth, the currently charged offense no longer counts as a 

predicate offense.” (People v. E.H. (2022) 75 Cal.App.5th 467, 477-478 (E.H.), italics in 

original); § 186.22, subd. (e)(1), (e)(2).) As our Supreme Court recently stated in Clark:

“The Legislature’s reference to collective engagement thus calls for 

an inquiry not just into how the predicate offenses benefited the gang, but 

also how the gang works together as a gang. It calls for a showing of a 

connection, or nexus, between an offense committed by one or more gang 

members and the organization as a whole. [¶] This organizational nexus 

may be shown by evidence linking the predicate offenses to the gang’s 

organizational structure, meaning its manner of governance; its primary 

activities; or its common goals and principles.” (Clark, supra, 

___ Cal.App.5th at p. ___ [2024 WL 718741, *9], italics omitted.) 

Finally, the new element that the predicate offenses “commonly benefited a criminal 

street gang” requires “the common benefit from the offenses is more than reputational.” 

(§ 186.22, subd. (e)(1).) A new subdivision (g) was also added specifying that 

“[e]xamples of a common benefit that are more 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).) 

2. The Gang-Murder Special Circumstance (§ 190.2, subd. (a)(22))

Further, as to count 1, the jury found true the gang-murder special circumstance 

(§ 190.2, subd. (a)(22)). Section 190.2, subdivision (a)(22) was enacted as a part of 
16.

Proposition 21, an initiative measure adopted by the electorate in the March 2000 primary 

election. (People v. Shabazz (2006) 38 Cal.4th 55, 65.) Section 190.2, 

subdivision (a)(22), makes first degree murder a capital crime if “[t]he defendant 

intentionally killed the victim while the defendant was an active participant in a criminal 

street gang, as defined in subdivision (f) of Section 186.22, and the murder was carried 

out to further the activities of the criminal street gang.” (Italics added.)

Prior to Rojas, the Court of Appeal was divided as to whether AB 333 

unconstitutionally amended Proposition 21. (See, e.g., People v. Lee (2022) 

81 Cal.App.5th 232, 245, review granted Oct. 19, 2022, S275449 [AB 333 did not 

unconstitutionally amend Proposition 21]; People v. Rojas (2022) 80 Cal.App.5th 542, 

553-558, review granted Oct. 19, 2022, S275835 [AB 333 did unconstitutionally amend 

Proposition 21].) During the pendency of this appeal, our Supreme Court resolved this 

dispute and held that “applying Assembly Bill 333’s definition of ‘criminal street gang’ 

to the gang-murder special circumstance does not unconstitutionally amend 

section 190.22(a)(22) [Proposition 21].” (Rojas, supra, 15 Cal.5th at p. 580.) Therefore, 

we reject the People’s argument AB 333 unconstitutionally amended Proposition 21. 

Further, because the jury instructions provided in this case omitted elements added by 

AB 333, we must decide whether this error was harmless.

3. Prejudicial Error

Although the People concede AB 333 applies retroactively to Vanatti’s case, the 

People argue prejudice cannot be established because “substantial evidence support[s] 

[both] the gang[-murder] special circumstance allegation and [the] gang 

enhancements[.]” 

As it relates to prejudice, the Fourth District, Division 2 in E.H., stated the 

following:

“Because Assembly Bill 333 essentially adds new elements to the 

substantive offense and enhancements in section 186.22—for example, by 
17.

requiring proof that gang members ‘collectively engage’ in a pattern of 

criminal gang activity, that the predicate offenses were committed by gang 

members, that the predicate offenses benefitted the gang, and that the 

predicate and underlying offenses provided more than a reputational benefit 

to the gang—we agree with our colleagues in the Second District that the 

prejudice standard articulated in Chapman v. California (1967) 386 U.S. 

18, 24 (Chapman) applies. [Citations.] Under that standard, the absence of 

instruction on the amended version of section 186.22 requires reversal 

unless ‘it appears beyond a reasonable doubt that the error did not 

contribute to th[e] jury’s verdict.’ ” (E.H., supra, 75 Cal.App.5th at 

p. 479.)

In order to prove harmless error under the Chapman standard, it is not enough to 

show that substantial or strong evidence existed to support a conviction under the correct 

instructions. As the United States Supreme Court explained in Sullivan v. Louisiana 

(1993) 508 U.S. 275, “the question . . . is not what effect the constitutional error might 

generally be expected to have upon a reasonable jury, but rather what effect it had upon 

the guilty verdict in the case at hand . . . The inquiry, in other words, is not whether, in a 

trial that occurred without the error, a guilty verdict would surely have been rendered, but 

whether the guilty verdict actually rendered in this trial was surely unattributable to the 

error.” (Id. at p. 279, italics in original.)

Courts have found harmless error under this standard where the missing element 

from an instruction was uncontested or proven as a matter of law. For example, in 

People v. Merritt (2017) 2 Cal.5th 819, the trial court omitted the elements of robbery 

from the jury instructions, but the court held the error was harmless because the only 

contested issue at trial was the defendant’s identity. (Id. at p. 832.) “Defendant knew 

what the elements of robbery were, and he had the opportunity to present any evidence he 

wished on the subject. ‘[W]here a reviewing court concludes beyond a reasonable doubt 

that the omitted element was uncontested and supported by overwhelming evidence, such 

that the jury verdict would have been the same absent the error, the erroneous instruction 

is properly found to be harmless.’ ” (Ibid., quoting Neder v. United States (1999) 

527 U.S. 1, 17.) Similarly in People v. Vinson (2011) 193 Cal.App.4th 1190, this court 
18.

affirmed a defendant’s petty theft conviction with a prior theft conviction even though the 

law had changed after trial to require proof of three prior convictions, rather than one. 

(Id. at p. 1200.) The defendant conceded he had suffered two prior convictions and his 

attorney stipulated at trial to a third conviction. Therefore, there was no dispute as to 

whether the new element in the law was proved. (Ibid.)

Here, we cannot conclude the jury instructions were harmless beyond a 

reasonable doubt. First, the 2013 predicate offense is the only offense that potentially 

satisfies newly amended section 186.22 because there was “evidence of a direct order 

from the gang to commit specific crimes.” (Clark, supra, ___ Cal.5th at p. ___ 

[2024 WL 718741, *9]; see e.g. People v. Lewis (2021) 11 Cal.5th 952, 958 [the murder 

would have been agreed on at a meeting called by the gang’s “ ‘ “shot caller” ’ ”]; In re 

Masters (2019) 7 Cal.5th 1054, 1063 [a certain attack “would normally have been 

ordered only by the highest echelon of a gang’s leadership”].) However, as to the other 

two predicate offenses, although the People proved the individuals were active members 

of the Aryan Brotherhood gang at the time of their offenses and were actively 

participating in the gang at that time, the People did not prove the predicate offenses 

commonly benefited the Aryan Brotherhood gang. (See Clark, supra, ___ Cal.5th at 

p. ___ [2024 WL 718741, *9]; § 186.22, subd. (e)(1) [“ ‘[P]attern of criminal gang 

activity’ [requires] . . . two or more of the following offenses”].) Second, the People’s 

gang expert testified about several ways in which a crime could benefit a criminal street 

gang, but one of those benefits was reputational. When asked whether a murder could 

“keep control or keep power,” i.e. enhance their reputation, the expert answered, “They 

do what’s called overkill . . . they are going to make it . . . a blood bath.” This is to instill 

“[i]ntimidation, fear” and to ensure the “other inmates or other races . . . out on the 

yard . . . see what these people do to their own people, [and] are not going to mess with 

them.” In closing arguments, the People argued that the murder benefitted the gang as a 

whole because “when they come together and they commit a murder and they kill 
19.

someone who violates the core values of the gang, it is unreasonable to think they did not 

intend to commit this with the gang in mind.” Although evidence of benefits to the gang 

beyond reputational benefit was introduced, we cannot rule out the possibility the jury 

relied on the reputational benefit to the gang as its basis for finding the gang 

enhancements, substantive gang offense, and gang-murder special circumstance 

allegation true. Therefore, the instructional error was not harmless under the Chapman 

standard. Accordingly, we dismiss the gang enhancement allegations (§ 186.22, 

subd. (b)), as alleged in counts 1, 2, 3, 4, and 6, and the gang-murder special 

circumstance finding (§ 190.2, subd. (a)(22)), as alleged in count 1.

B. Section 1109

Vanatti further contends that newly enacted section 1109 should apply 

retroactively to his case and thus, “[g]iven the retroactive application of section 1109, the 

trial court’s failure to bifurcate the gang allegations [in] counts 1, 2, 3, 4, and 6, and the 

substantive gang charge alleged in count 5, at the request of the defense, violated the 

express mandate of section 1109 and constituted legal error.” The People contend 

“[s]ection 1109 applies prospectively only[, but] in any event, [Vanatti] was not 

prejudiced by the lack of bifurcation.” 

As we explain below, the trial court’s failure to bifurcate pursuant to section 1109 

was harmless because there is no basis to conclude bifurcation would have affected the 

outcome of the trial. Accordingly, we need not consider both the issue of whether 

section 1109 applies retroactively15 and the merits of Vanatti’s bifurcation motion. 

1. Applicable Law

“Pursuant to section 1109, subdivision (a), upon a defendant’s request, a case in 

which a gang enhancement is charged under section 186.22, subdivision (b) or (d) must 

15 The issue of whether section 1109 applies retroactively to cases that are not yet 

final is currently under review by our Supreme Court in People v. Burgos (2022) 

77 Cal.App.5th 550, review granted July 13, 2022, S274743.
20.

be tried in separate phases. Section 1109, subdivision (b) provides that ‘[i]f 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.’ ” (People v. Ramos

(2022) 77 Cal.App.5th 1116, 1129 (Ramos).) 

Section 1109 was added because:

“(e) California courts have long recognized how prejudicial gang 

evidence is. [Citation.] Studies suggest that allowing a jury to hear the 

kind of evidence that supports a gang enhancement before it has decided 

whether the defendant is guilty or not may lead to wrongful convictions. 

[Citations.] The mere specter of gang enhancements pressures defendants 

to accept unfavorable plea deals rather than risk a trial filled with 

prejudicial evidence and a substantially longer sentence.

“(f) Bifurcation of trials where gang evidence is alleged can help 

reduce its harmful and prejudicial impact.” (Stats. 2021, ch. 669, § 2, 

subds. (e), (f).)

Vanatti’s right to bifurcation under section 1109 is purely statutory. (Ramos, 

supra, 77 Cal.App.5th at pp. 1131-1133 [concluding section 1109 error was harmless 

under People v. Watson (1956) 46 Cal.2d 818, 836 (Watson)].) “ ‘Typically, a defendant 

who has established error under state law must demonstrate there is a reasonable 

probability that in the absence of the error he or she would have obtained a more 

favorable result.’ ” (People v. Anzalone (2013) 56 Cal.4th 545, 553.)

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

failure to bifurcate pursuant to section 1109 is not structural error. (Id. at pp. 1208-1210.) 

The court also rejected the defendant’s argument the Chapman standard for federal 

constitutional error applies, reasoning the admission of gang evidence in that case was 

not prejudicial that it rendered the trial “ ‘fundamentally unfair.’ ” (Id. at p. 1209.) 
21.

Instead, it evaluated the trial court’s failure to bifurcate under the Watson standard. (Id. 

at pp. 1209-1210.)

2. Harmless Error

In assessing prejudice under Watson, “an appellate court may consider ‘whether 

the evidence supporting the existing judgment is so relatively strong, and the evidence 

supporting a different outcome is so comparatively weak, that there is no reasonable 

probability the error of which the defendant complains affected the result.’ ” (People v. 

Rogers (2006) 39 Cal.4th 826, 870, italics omitted.)

Here, Vanatti “contends that in this case, the gang evidence had little relevance to 

any of the substantive offenses – namely, the charged murder, conspiracy to commit 

murder and assault, and dissuading a witness” and this evidence “is exactly the type of 

evidence that on its own created a substantial danger of inflaming the jury’s passions by 

simply identifying [him] with such a group.” We disagree. First, the evidence of 

Vanatti’s guilt was overwhelming. Vanatti and Henthorn were housed together and 

Vanatti was in charge of the white inmates inside the building. Fagerson’s poems ended 

up in the possession of both Vanatti and Henthorn, and Vanatti told Becker, “ ‘You know 

what is going to happen to your cellie tomorrow. Right? [¶] Your cellie is going to die 

tomorrow.’ ” Vanatti and Henthorn then told Becker to not go back to his cell and 

scream for help, and that if Fagerson was “spooked . . . for any reason . . . [Becker] was 

going to be in trouble for it.” Subsequently, on the day of the stabbing, Vanatti 

approached Becker at the yard and laid out the plain for what Becker needed to do going 

forward. Inmate Jones also testified Vanatti told him about the plan to murder Fagerson. 

Finally, prior to the stabbing, both Vanatti and Henthorn took turns sharpening the 

murder weapon. The evidence was clear that once Vanatti received the “green light,” it 

was up to him to plan and orchestrate the attack on Fagerson.

Second, evidence regarding Vanatti’s Aryan Brotherhood gang membership was 

highly relevant for identity, motive, or intent under Evidence Code section 1101, 
22.

subdivision (b). It was relevant for the jury to hear that Aryan Brotherhood gang 

members target sex offenders “to show their status amongst other races, other gangs, if 

you will, in the prison” and that the prohibition on sex offenders is based on the Aryan 

Brotherhood’s sense of morality. Further, any potential prejudice from the gang evidence 

was mitigated when the trial court provided the jury with a limiting instruction regarding 

its consideration of the gang evidence, which we presume it followed. (People v. 

Pearson (2013) 56 Cal.4th 393, 414 [“We presume that jurors understand and follow the 

court’s instructions”].) 

Accordingly, we conclude Vanatti was not prejudiced by the failure to bifurcate 

the gang enhancements, gang offense, and gang-murder special circumstance allegations. 

(See People v. Hernandez (2004) 33 Cal.4th 1040, 1051 [“Any evidence admitted solely 

to prove the gang enhancement was not so minimally probative on the charged offense, 

and so inflammatory in comparison, that it threatened to sway the jury to convict 

regardless of defendants’ actual guilt.”].) Therefore, we affirm Vanatti’s conviction in its 

entirety. (See E.H., supra, 75 Cal.App.5th at p. 480 [failure to bifurcate was harmless 

under Watson standard in light of “ ‘overwhelming’ ” evidence in support of the robbery 

convictions, stating “[e]ven if section 1109 applied retroactively to this case – an issue 

we need not and do not decide here – E.H. cannot show it is ‘reasonably probable’ he 

would have obtained a more favorable result if his trial had been bifurcated”].)

II. Substantial Evidence Supports the Gang-Murder Special Circumstance 

Allegation and the Gang Enhancements.

Vanatti further argues there is insufficient evidence to support the gang findings 

necessary for the gang-murder special circumstance allegation (§ 190.2, subd. (a)(22)) 

and gang enhancements (§ 186.22, subd. (b)). While we are vacating the gang findings 

under AB 333, we must still address this claim to determine whether the gang-murder 

special circumstance allegation and gang enhancements may be retried on remand. (See

DiFrancesco, supra, 449 U.S. at p. 131; Wetle, supra, 43 Cal.App.5th at p. 388.) As we 
23.

explain below, we conclude these remaining gang findings were supported by substantial 

evidence under the law in effect at the time of Vanatti’s trial.

A. Applicable Law

“In considering a challenge to the sufficiency of the evidence to support an 

enhancement, we review the entire record in the light most favorable to the judgment to 

determine whether it contains substantial evidence – that is, evidence that is reasonable, 

credible, and of solid value – from which a reasonable trier of fact could find the 

defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in 

support of the judgment the trier of fact could have reasonably deduced from the 

evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings, 

reversal of the judgment is not warranted simply because the circumstances might also 

reasonably be reconciled with a contrary finding. [Citation.] ‘A reviewing court neither 

reweighs evidence nor reevaluates a witness’s credibility.’ ” (People v. Albillar (2010) 

51 Cal.4th 47, 59-60 (Albillar).)

“There are two ‘prongs’ to the gang enhancement under section 186.22, 

subdivision (b)(1). [Citation.] The first prong requires that the prosecution prove the 

underlying felony was ‘gang related.’ [Citations.] The second prong ‘requires that a 

defendant commit the gang-related felony “with the specific intent to promote, further, or 

assist in any criminal conduct by gang members.” ’ ” (People v. Weddington (2016) 

246 Cal.App.4th 468, 484, fn. omitted (Weddington); former § 186.22, subd. (b)(1).)

Similarly, “[s]ection 190.2, subdivision (a)(22), by its express terms contains 

three basic elements: (1) the defendant must intentionally kill the victim; (2) while an 

active participant in a criminal street gang; [and] (3) in order to further the activities of 

the gang.” (People v. Mejia (2012) 211 Cal.App.4th 586, 612.) The language of 

section 190.2, subdivision (a)(22) “substantially parallels the language of section 186.22, 

subdivision (b)(1), which authorizes a sentencing enhancement for felonies ‘committed 

for the benefit of, at the direction of, or in association with any criminal street gang, with 
24.

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

members . . . .’ ” (People v. Carr (2010) 190 Cal.App.4th 475, 488 (Carr).)

Further, “[i]t has long been settled that expert testimony regarding whether a crime 

was gang related is admissible . . . [because] [s]uch matters are sufficiently beyond 

common experience that expert testimony would assist the jury.” (People v. Vang (2011) 

52 Cal.4th 1038, 1049, fn. 5 (Vang).) “ ‘Expert opinion that particular criminal conduct 

benefited a gang’ . . . can be sufficient to support [both the gang enhancement under] 

section 186.22, subdivision (b)(1)” (id. at p. 1048), and the gang-murder special 

circumstance allegation (§ 190.2, subd. (a)(22)). (Carr, supra, 190 Cal.App.4th at 

pp. 488-490.)

Experts may be asked questions that coincide with the ultimate issue in a case 

(Evid. Code, § 805; People v. Prince (2007) 40 Cal.4th 1179, 1227), but they cannot 

offer an opinion on whether a defendant is guilty because “the trier of fact is as 

competent as the witness to weigh the evidence and draw a conclusion on the issue of 

guilt.” (People v. Torres (1995) 33 Cal.App.4th 37, 47; see People v. Coffman and 

Marlow (2004) 34 Cal.4th 1, 77.) Although the traditional method of eliciting opinion 

testimony from an expert witness is a hypothetical question based closely on the evidence 

of the case being tried (Vang, supra, 52 Cal.4th at p. 1046), an expert may also provide 

an opinion based on other witnesses’ testimony presenting no factual conflicts or 

contradictions (In re Collin’s Estate (1957) 150 Cal.App.2d 702, 712-715.)

B. Analysis

Specifically, Vanatti argues there was insufficient evidence that: (1) he was an 

active participant in the Aryan Brotherhood at the time of the murder and (2) that he 

specifically intended to promote and assist in the criminal activities of the Aryan 

Brotherhood. As to both claims, we disagree.

First, substantial evidence exists to support the jury’s finding Vanatti was an 

active participant in the Aryan Brotherhood at the time of the murder. Vanatti identified 
25.

himself as an NLR gang member and took an active leadership role in the gang. 

Although there were only 20-25 full members of the Aryan Brotherhood, gang expert 

Officer Farley testified the NLR existed at the time of the murder and the NLR affiliated 

with the Aryan Brotherhood. At the time of the murder, Aryan Brotherhood “affiliates 

and active participants . . . would be in the thousands.” Specifically, “the other loyal 

[NLR] faction stayed loyal to the Aryan Brotherhood . . . [and] they are still walking the 

mainline.” Therefore, Vanatti’s NLR membership established his association with the 

Aryan Brotherhood.

Further, Vanatti was in charge, alongside Leair, of the white inmates inside the 

building and was therefore responsible for enforcing the rules set by the Aryan 

Brotherhood. This leadership role was evidenced by the fact he himself received the 

“green light” from the Aryan Brotherhood for the “sanctioned hit” of Fagerson. 

Accordingly, a reasonable jury could have found Vanatti was an active NLR gang 

member who acted in a leadership role for the Aryan Brotherhood.

Nonetheless, Vanatti argues that “[i]t was undisputed [he] was not a validated 

member of the Aryan Brotherhood” and that the white inmates were required to follow 

the rules imposed by the Aryan Brotherhood “regardless of loyalty to the [gang], or suffer 

violent retribution.” Although there was evidence Vanatti was a member of the Aryan 

Brotherhood, active gang membership is not required to support a true finding as to both 

the gang-murder special circumstance and the gang enhancements. (See § 190.2, 

subd. (a)(22); People v. Sanchez (2016) 63 Cal.4th 665, 698 [holding that pursuant to 

section 186.22, subdivision (b)(1), “gang membership is not an element of the gang 

enhancement”].) Therefore, the issue is not whether Vanatti was a member of the Aryan 

Brotherhood, but rather whether he actively participated in or committed the crimes for 

the benefit of, at the direction of, or in association with a criminal street gang. Evidence 

regarding the Aryan Brotherhood was relevant to establish these issues irrespective of 

Vanatti’s membership.
26.

Additionally, as noted above, Vanatti took an active leadership role in the Aryan 

Brotherhood. Officer Farley testified about the difference between a white inmate who 

simply followed the Aryan Brotherhood’s rules16 and an inmate who actively participated 

in the gang. Vanatti not only followed the rules of the gang, but rather took a position of 

power within the gang when he assumed control over the white inmates inside the 

building. He then orchestrated the plan to murder Fagerson by obtaining permission from 

the gang to commit the crime, and then subsequently recruited Henthorn to be the actual 

stabber. Accordingly, Vanatti was an active participant in the Aryan Brotherhood. (See 

People v. Rodriguez (2012) 55 Cal.4th 1125, 1130 [“[A]ctive participation in a criminal 

street gang . . . [requires] participation that is more than nominal or passive”].)

Secondly, substantial evidence exists to support the jury’s finding Vanatti intended 

to promote, further, or assist in the criminal conduct of the Aryan Brotherhood. As to the 

first prong, there was substantial evidence the underlying felony was “gang related.” 

(Weddington, supra, 246 Cal.App.4th at p. 484.) To be gang related, “[t]he offense may 

be committed (1) for the benefit of a gang; (2) at the direction of a gang; or (3) in 

association with a gang.” (Ibid., italics omitted.) Here, Fagerson’s killing benefited the 

Aryan Brotherhood because targeting sex offenders establishes the gang’s “status 

amongst other races, other gangs . . . in the prison” and it was both a “morality thing” and 

“respect thing.” Further, as noted above, this killing was done at the direction of and 

association with the Aryan Brotherhood because Vanatti was required to obtain the 

“green light” from the gang before orchestrating the attack. 

The second prong requires a defendant to commit the underlying felony “with the 

specific intent to promote, further, or assist in any criminal conduct by gang members.” 

(Former § 186.22, subd. (b)(1).) Intent for the second prong “ ‘is rarely susceptible of 

16 A white inmate who only follows the rules of the Aryan Brotherhood was

referred to as a “programmer[].” 
27.

direct proof and usually must be inferred from the facts and circumstances surrounding 

the offense.’ ” (People v. Rios (2013) 222 Cal.App.4th 542, 567-568.) As noted above, 

Vanatti told Becker that Fagerson’s murder was sanctioned by the Aryan Brotherhood 

Regardless, whether or not the Aryan Brotherhood in fact gave Vanatti the “green light” 

to murder Fagerson is irrelevant. All that matters for intent is that Vanatti himself 

believed the Aryan Brotherhood sanctioned the murder.

Nonetheless, Vanatti argues the murder was not gang related because (1) Henthorn 

had a personal reason for killing Fagerson and (2) the Aryan Brotherhood had “in fact 

ordered no stabbings during th[e] time” of the murder. Both of these inferences are 

reasonable from the record. With that being said, “we must accept the reasonable 

inferences supporting the verdict over any inferences (even if reasonable) proffered by 

defendant.” (People v. Shamblin (2015) 236 Cal.App.4th 1, 15; see also People v. Rundle 

(2008) 43 Cal.4th 76, 137, overruled on another ground in People v. Doolin (2009) 

45 Cal.4th 390, 421, fn. 22. [holding that if there is substantial evidence supporting the 

verdict, it is insufficient for a defendant to cite to “various items of evidence in

isolation . . . arguing each could be viewed as pointing to his innocence of the charge 

rather than his guilt . . . [e]ven if defendant’s premise is correct . . .”].) 

Therefore, we conclude substantial evidence supports both the gang-murder 

special circumstance and gang enhancements under the law in effect at the time of 

Vanatti’s trial. “ ‘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 of the Constitution will not bar a retrial. [Citations.] “ ‘Where, as here, 

evidence is not introduced at trial because the law at that time would have rendered it 

irrelevant, the remand to prove that element is proper and the reviewing court does not 

treat the issue as one of sufficiency of the evidence.’ ” ’ ” (Sek, supra, 74 Cal.App.5th at 

p. 669.) Accordingly, apart from the substantive gang offense (§ 186.22, subd. (a), 

count 5), our decision does not bar the prosecution from retrying Vanatti on the gang-
28.

murder special circumstance finding (§ 190.2, subd. (a)(22)) and the gang enhancements 

(§ 186.22, subd. (b)(1)) on remand. 

III. Substantial Evidence Supports the Jury’s Verdicts as to Counts 3 and 4.

Vanatti further contends “substantial evidence does not support a finding [he] 

intimidated any witness in violation of section 136.1, requiring reversal of the convictions 

on count[s] 3 and 4.” 

A. Additional Factual Background

Vanatti was convicted of preventing and or dissuading a witness, Becker, in 

violation of section 136.1, subdivision (b)(1) (counts 3 & 4) and of doing so by threat 

and/or force (§ 136.1, subdivision (c)(1)). 

As to counts 3 and 4, the jury was instructed with CALCRIM No. 2622, which 

instructed the jury as follows:

“The defendant is charged in Counts three and four with intimidating 

a witness in violation of Penal Code section 136.1(b)(1).

“To prove that the defendant is guilty of this crime, the People must prove 

that:

“1. The defendant tried to prevent or tried to discourage Justin Becker 

from making a report that he or someone else was a victim of a crime to a 

correctional officer.

“2. Justin Becker was a witness and/or crime victim;

“AND

“3. The defendant knew he was trying to prevent or trying to discourage 

Justin Becker from making a report that he or someone else was a victim of 

a crime to a correctional officer and intended to do so.

“As used here, witness means someone or a person the defendant 

reasonably believed to be someone:

“Who knowns about the existence or nonexistence of facts relating to a 

crime;
29.

“A person is a victim if there is reason to believe that a federal or state 

crime is being or has been committed or attempted against him.

“It is not a defense that the defendant was not successful in preventing or 

discouraging the witness and/or crime victim.

“It is not a defense that no one was actually physically injured or otherwise 

intimidated.” (Italics in original.) 

Additionally, the trial court instructed the jury with CALCRIM No. 2623, which is as 

follows:

“If you find the defendant guilty of intimidating a witness, you must 

then decide whether the People have proved the additional allegations that 

the defendant acted maliciously and acted in furtherance of a conspiracy or 

used or threatened to use force.

“To prove these allegations, the People must prove that:

“1. The defendant acted maliciously;

“AND

“2. The defendant acted with the intent to assist in a conspiracy to 

intimidate a witness; or

“3. The defendant used force or threatened, either directly or indirectly, 

to use force or violence on the person or property of a witness or a victim.

“Special instruction number one explains when someone is acting in a 

conspiracy to intimidate a witness. You must apply that instruction when 

you decide whether the People have proved this additional allegation.

“A person acts maliciously when he unlawfully intends to annoy, harm, or 

injure someone else in any way, or intends to interfere in any way with the 

orderly administration of justice.

“The People have the burden of proving this allegation beyond a reasonable 

doubt. If the People have not met this burden for any allegation, you must 

find that the allegation has not been proved.” (Italics in original.) 

Finally, the trial court instructed the jury with a special instruction as follows:
30.

“I have explained that a defendant may be guilty of a crime if he 

either commits the crime or aids and abets the crime. He may also be guilty 

if []he is a member of a conspiracy. 

“Defendants are charged in Count 4 with conspiracy to intimidate a 

witness, in violation of Penal Code section 136.1(c)(2).

“To prove that a defendant is guilty of this crime, the People must prove 

that:

“1. The defendant intended to agree and did agree with one or more 

Defendants/co-conspirators (Dustin Henthorn and/or [Vanatti] and/or 

Charles Colwell) to commit the crime of intimidat[ing] a witness.

“2. At the time of the agreement, the defendant and one or more of the 

other alleged members of the conspiracy intended that one or more of them 

would commit the crime of intimidiat[ing] a witness.

“3. One of the defendants and/or co-conspirators committed at least one 

of the following alleged overt acts to accomplish the intimidation of a 

witness: 1) Defendant Henthorn spoke to Justin Becker, 2) [Vanatti] spoke 

to Justin Becker, 3) At least one Defendant told Justin Becker not to warn 

anyone, 4) At least one defendant told Justin Becker not to inform Allen 

Fagerson, 5) At least one defendant told Justin Becker that Allen Fagerson 

was going to be killed.

“AND

“4. At least one of these overt acts was committed in California.

“To decide whether a defendant committed these overt acts, consider all of 

the evidence presented about the acts.

“To decide whether a defendant and one or more of the other alleged 

members of the conspiracy intended to commit the intimidation of a 

witness, please refer to the separate instructions that I have given you on 

that crime.

“The People must prove that the members of the alleged conspiracy had an 

agreement and intent to commit the intimidation of a witness. The People 

do not have to prove that any of the members of the alleged conspiracy 

actually met or came to a detailed or formal agreement to commit that 

crime. An agreement may be inferred from conduct if you conclude that 

members of the alleged conspiracy acted with a common purpose to 

commit the crime.
31.

“An overt act is an act by one or more of the members of the conspiracy 

that is done to help accomplish the agreed upon crime. The overt act must 

happen after the defendant has agreed to commit the crime. The overt act 

must be more than the act of agreeing or planning to commit the crime, but 

it does not have to be a criminal act itself.

“You must all agree that at least one alleged overt act was committed in 

California by at least one alleged member of the conspiracy, but you do not 

have to all agree on which specific overt act or acts were committed or who 

committed the overt act or acts.

“You must make a separate decision as to whether each defendant was a 

member of the alleged conspiracy.

“Someone who merely accompanies or associates with members of a 

conspiracy but who does not intend to commit the crime is not a member of 

the conspiracy.

“Evidence that a person did an act or made a statement that helped 

accomplish the goal of the conspiracy is not enough, by itself, to prove that 

the person was a member of the conspiracy.” (Italics in original.) 

B. Applicable Law

In reviewing a claim of insufficiency of the evidence to support a criminal 

conviction, “ ‘the court must review the whole record in the light most favorable to the 

judgment below to determine whether it discloses substantial evidence – that is, evidence 

which is reasonable, credible, and of solid value – such that a reasonable trier of fact 

could find the defendant guilty beyond a reasonable doubt.’ ” (People v. Hillhouse 

(2002) 27 Cal.4th 469, 496.)

Section 136.1, subdivision (b)(1) provides in part: “Except as provided in 

subdivision (c), every person who attempts to prevent or dissuade another person who has 

been the victim of a crime or who is witness to a crime from doing any of the following is 

guilty of a public offense and shall be punished by a imprisonment in county jail for not 

more than one year or in the state prison: [¶] (1) Making any report of that victimization 

to any peace officer or state or local law enforcement officer or probation or parole or 

correctional officer or prosecuting agency or to any judge.” (§ 136.1, subd. (b)(1).)
32.

Section 136.1, subdivision (c)(1), which defines the aggravated form of the crime 

and subjects the perpetrator to higher penalties, provides in relevant part: “Every person 

doing any of the acts described in subdivision (a) or (b) knowingly and maliciously under 

any one or more of the following circumstances, is guilty of a felony punishable by 

imprisonment in the state prison for two, three, or four years under any of the following 

circumstances: [¶] (1) Where the act is accompanied by force or by an express or implied 

threat or force or violence, upon a witness or victim or any third person or the property of 

any victim, witness, or any third person [¶] [or] (2) Where the act is in furtherance of a 

conspiracy.” (§ 136.1, subd. (c)(1), (2).)

C. Analysis

Vanatti argues “the plain language of the statute criminalizes trying to prevent or 

dissuade another person ‘who has been the victim of a crime or who is witness to a 

crime’ from making any report ‘of that victimization’ to a correctional officer[,]” and 

thus, section 136.1 does not apply because “[t]he statements made to Becker did not refer 

to ‘a crime;’ rather, they referred to an assault or murder that had not yet happened.” 

(Italics omitted.) Vanatti further argues “substantial evidence does not support a finding 

[he] intended to prevent or dissuade Becker from reporting a crime to a correctional 

officer.” As to both arguments, we disagree.

1. Section 136.1, Subdivision (c)(1) Applies to Both Completed and 

Ongoing Crimes

Vanatti relies heavily on People v. Reyes (2020) 56 Cal.App.5th 972 (Reyes) in 

support of his first contention. In Reyes, the defendant was a deputy public defender who 

represented Olivas in the underlying matters. (Id. at p. 976.) In one of these matters, the 

trial court placed Olivas on probation and issued a protective order requiring him to stay 

100 yards away from his mother, and to stay away from her home. (Id. at pp. 976-977.) 

Olivas was also “ ‘prohibited from having any “personal, electronic, telephonic, or 
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written contact” with [his mother], and prohibited from having contact with [her] 

“through a third party, except an attorney of record.” ’ ” (Id. at p. 977.)

Subsequently, the district attorney charged the defendant with violating two 

witness tampering statutes, including dissuading a victim or witness from reporting a 

crime under section 136.1, subdivision (b)(1). (Reyes, supra, 56 Cal.App.5th at pp. 975, 

979-980.) These charges were based on a preliminary hearing where, after issuance of 

the protective order described above, defendant contacted Olivas’s mother, identified 

himself as “ ‘[Olivas’s ] district attorney,’ ” and told her that Olivas was going to be 

released that day, and if he was near or at her home, she should not call the police but 

instead should call the defendant. (Id. at pp. 977-978, 981.)

The preliminary hearing evidence was focused on an alleged attempt by the 

defendant to dissuade Olivas’s mother from reporting a potential future crime (i.e. a 

possible future violation of the protective order by Olivas). (Reyes, supra, 

56 Cal.App.5th at p. 984, fn. 7.) Although the prosecution also presented a theory the 

statute applied because of Olivas’s ongoing abuse of his mother (id., at p. 984), the trial 

court granted the defendant’s motion to set aside the information pursuant to section 995 

and agreed with his position “the language of [section 136.1, subdivision (b)(1)] requires 

that the defendant attempt to dissuade the reporting of a past crime.” (Reyes, at p. 980, 

italics added.)

On appeal, the First District, Division Four, affirmed the trial court’s dismissal of 

the section 136.1, subdivision (b)(1) charge. (Reyes, supra, 56 Cal.App.5th at pp. 975, 

981, 989.) The Court of Appeal summarized the issue as follows: “[W]hether 

section 136.1, subdivision (b)(1), should be construed to apply only to dissuasion of 

reports about completed crimes, as [the defendant] contends (and the superior court 

ruled), or should be construed more broadly to encompass future crimes as well, as the 

People contend (and the magistrate ruled).” (Id. at pp. 982-983.) After considering the 

parties’ arguments, the Court of Appeal applied the “rule of lenity as a tool of last resort” 
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and concluded that if defendant’s “conduct on this record is a crime under section 136.1, 

subdivision (b)(1), the [trial] court correctly pointed out, ‘we need the Legislature to tell 

us.’ ” (Id. at pp. 989-990.)

Two years later, this same court, in reference to Reyes, rejected defendant’s 

argument that a violation of section 136.1, subdivision (b)(1) requires that a witness be 

prevented from reporting a completed crime, not an “ ‘ongoing’ ” crime. (People v. 

Sherman (2022) 86 Cal.App.5th 402, 413 (Sherman).) The Sherman court analyzed the 

statute and concluded that it “does not uniformly use the past tense to describe the 

underlying crime the reporting of which the defendant must have sought to prevent” and 

“the applicable definition of ‘ “[v]ictim” ’ does not limit its coverage to a person who was 

victimized in the past[;] [citation] [i]nstead, it includes a person ‘with respect to whom 

there is reason to believe that any crime . . . is being or has been perpetrated or attempted 

to be perpetrated.’ ” (Id. at p. 416, italics added.) Accordingly, “Reyes does not support 

[the defendant’s] argument that section 136.1, subdivision (b)(1) cannot apply to an 

attempt to prevent a victim from calling the police during an ongoing crime such as an 

assault.” (Id. at p. 413.)

Here, we find the Sherman analysis persuasive. Although Fagerson was not yet 

murdered when Vanatti dissuaded Becker from intervening, the conspiracy to attack and 

murder Fagerson had already begun. At the point at which Vanatti attempted to dissuade 

Becker from reporting, Vanatti had already received the “green light” for the “sanctioned 

hit” of Fagerson. Therefore, the conspiracy to murder was “ongoing” at the time Vanatti 

told Becker not to tip off Fagerson. (See Sherman, supra, 86 Cal.App.5th at p. 413.)

Furthermore, Vanatti was convicted of violating section 136.1, subdivision (c)(2), 

which enhances the sentence for witness dissuasion when “the act is in furtherance of a 

conspiracy.” It is clear the Legislature intended not only to criminalize the act of 

dissuading a witness from reporting an ongoing conspiracy, but also to punish this type of 

act more harshly than that of simple witness dissuasion. This is not the type of case 
35.

where “ ‘defendant allegedly sought to dissuade a witness from reporting a crime that had 

not yet occurred[,]’ ” (Reyes, supra, 56 Cal.App.5th at p. 987), but rather is one in which 

a conspiracy was already in full effect. Accordingly, substantial evidence supports the 

jury’s verdict that Vanatti attempted to dissuade Becker from reporting an ongoing,

active conspiracy to commit murder.

2. Vanatti’s Statement to Becker Sufficiently Encompassed a Threat 

of Retaliation if Becker Reported the Ongoing Crime to 

Correctional Officers

Vanatti further argues that “nothing from [his] directive supports a logical 

conclusion [he] intended to dissuade Becker from reporting the impending assault to a 

correctional officer,” but rather “[t]he directive was not to spook Fagerson – in other 

words – not to give Fagerson a reason to ask for help, as made clear by Becker’s 

testimony.” (Italics omitted.) However, Vanatti told Becker “not to go back to [his] cell 

and scream . . . or yell for help” and that if Fagerson was “spooked . . . for any reason and 

he left the yard that [he] was going to be in trouble for it.” Becker testified the only way 

for an inmate to leave the yard was to “fill out a . . . form and ask for help or medical 

form or he could go up to the cop and ask for help.” It was reasonable for the jury to 

infer that Vanatti was threatening Becker not to tell a correctional officer about the plan 

to murder Fagerson, which in turn would have resulted in Fagerson being safely removed 

from the yard. Accordingly, a threat not to “spook” Fagerson encompassed a warning not 

to do anything to draw the correctional officer’s attention to the plot to murder Fagerson. 

Accordingly, substantial evidence supports the jury’s verdict as to counts 3 and 4. 

IV. Vanatti’s Sentences on Counts 3 and 4 Were Incorrectly Calculated.

Lastly, Vanatti contends the trial court incorrectly calculated his sentences as to 

counts 3 and 4, and “[b]ecause the error affected multiple counts, the matter should be 

remanded for resentencing.” The People concede error and agree Vanatti is entitled to be 

resentenced. Our conclusion as to the applicability of AB 333 renders this argument 
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moot because he is already entitled to a full resentencing. (See People v. Valenzuela 

(2019) 7 Cal.5th 415, 424-425 [“the full resentencing rule allows a court to revisit all 

prior resentencing decisions when resentencing a defendant”]; People v. Buycks (2018) 5 

Cal.5th 857, 893 [“ ‘the full resentencing rule’ ”].) However, in anticipation of Vanatti’s 

resentencing, we call to the trial court’s attention to an error in the original sentence.

“The three options for calculating the minimum term of the life sentence (the 

‘minimum indeterminate term’ or simply the ‘minimum term’) are set out in section 667, 

subdivision (e)(2)(A). ‘Option 1’ calculates the minimum term by tripling the term that 

would otherwise apply to the offense. [Citation.] The minimum term in ‘Option 2’ is 

25 years to life. [Citation.] And ‘Option 3,’ sometimes referred to as the ‘traditional 

sentencing’ option, calculates the minimum term using normal determinate and 

indeterminate sentencing procedures, including enhancements. Under Option 3, the 

minimum term is ‘[t]he term determined by the court pursuant to [s]ection 1170 for the 

underlying conviction, including any enhancement applicable under Chapter 4.5 

(commencing with [s]ection 1170) of Title 7 of Part 2, or any period prescribed by 

Section 190 or 3046.’ ” (People v. Flores (2021) 63 Cal.App.5th 368, 379-380 (Flores).)

“While the minimum terms under Options 1 and 3 will vary from case to case, 

Option 2 ‘essentially acts as a default to ensure that the defendant’s indeterminate term 

will always be a minimum of 25 years.’ [Citation.] Option 1 triples the term for the 

offense, and doesn’t include enhancements, whereas Option 3 does include enhancements 

but doesn’t multiply the base term for the offense by any number. [Citation.] As such, 

Option 1 will usually be the greatest ‘when the current crime is particularly serious, and 

thus carries a significant sentence,’ and Option 3 will generally yield the greatest 

minimum term ‘when the defendant has an extensive criminal recidivist history, and 

hence there are numerous applicable enhancements.’ ” (Flores, supra, 63 Cal.App.5th at 

p. 380, quoting People v. Dotson (1997) 16 Cal.4th 547, 552-553, italics omitted.)
37.

Here, as to count 3, the trial court imposed the upper term of four years, plus 

15 years for the three prior serious felony offenses (§ 667, subd. (a)), and then tripled this 

result under section 667, subdivision (e)(2)(A)(i), for a total indeterminate term of 

57 years to life. As to count 4, the trial court imposed this same sentence, but stayed it 

pursuant to section 654. These sentences were improperly calculated because section 

667, subdivision (e)(2)(A)(i) “triples the term for the offense, [but] doesn’t include 

enhancements.” (Flores, supra, 63 Cal.App.5th at p. 380, italics added.) This rule 

applies to the five-year serious felony priors pursuant to section 667, subdivision (a). 

(People v. Williams (2004) 34 Cal.4th 397, 404-405 [section 667, subdivision (a) priors 

are enhancements].) The correct sentence under Option 1 is the four-year term tripled to 

12 years. Accordingly, the longest of the three possible terms pursuant to section 667, 

subdivision (e)(2)(A) is 25 years. If applicable, the trial court may address this issue at 

Vanatti’s resentencing.

DISPOSITION

Vanatti’s sentence is vacated and this matter is remanded for resentencing 

consistent with this opinion. Pursuant to Assembly Bill No. 333, we dismiss the gang 

enhancement allegations (§ 186.22, subd. (b)), as alleged in counts 1, 2, 3, 4, and 6; the 

substantive gang offense (§ 186.22, subd. (a), count 5); and the gang-murder special 

circumstance finding (§ 190.2, subd. (a)(22)), as alleged in count 1. Although the People 

are foreclosed from retrying Vanatti on the substantive gang offense (count 5), the People 

are not foreclosed from retrying Vanatti on the gang-murder special circumstance 

allegation and gang enhancements. Thereafter, the trial court is directed to file an 
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amended and corrected abstract of judgment and transmit copies thereof to the 

appropriate authorities. In all other respects, the judgment is affirmed.

SNAUFFER, J.

WE CONCUR:

PEÑA, Acting P. J.

SMITH, J.