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Filed 3/9/23; Opinion following order vacating prior opinion

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

JOHN M. OLIVA,

Defendant and Appellant.

E073979

(Super.Ct.No. FVI1503175)

OPINION

APPEAL from the Superior Court of San Bernardino County. Tony Raphael, 

Judge. Affirmed in part, reversed in part with directions.

Jennifer Peabody and Arthur Martin, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief 

Assistant Attorney General, Julie L. Garland and Charles C. Ragland, Assistant Attorneys 

*Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is 

certified for publication with the exception of “DISCUSSION” parts “A” and “B.” 
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General, Michael Pulos, Seth Friedman, Collette C. Cavalier, Kathryn Kirschbaum, Paige 

B. Hazard and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.

David Bustamante (the victim) was shot and killed in the parking lot of an In-NOut restaurant on Christmas Day in 2015. The victim was giving a tattoo to Nancy A. 

when he told her he had to go out to meet a friend, who he was going to give tamales that 

his mother had made. Ana S., who was Nancy’s girlfriend, was with them. While the 

victim was driving, he received a phone call from a caller identified as Jboy 12th Street 

on the victim’s phone advising him to drive to the In-N-Out in Hesperia. The victim

drove up to a red truck that was parked in the parking lot. The victim exited his vehicle 

and the driver of the red truck immediately shot at the victim, yelling “La Eme” a term 

for the Mexican Mafia. Both Nancy and Ana identified defendant as the shooter; cellular 

telephone records placed defendant near the scene at the time of the shooting; and the 

victim listed defendant’s cellular telephone number under the name Jboy 12th Street in 

his contacts. Defendant was convicted of first degree murder, the special circumstances

of lying in wait and benefitting a criminal street gang, and weapons use and gang 

enhancements.

Initially, on appeal, defendant claimed that (1) the trial court violated his right to 

due process of law under the Fourteenth Amendment when it instructed the jury pursuant 

to CALCRIM No. 315 that the jurors could consider the witnesses’ level of certainty 

when evaluating witness testimony; and (2) the trial court abused its discretion and 

denied his Fifth, Sixth and Fourteenth Amendment rights when it refused his request to 
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continue sentencing to allow him to have DNA testing completed in order to potentially 

file a supplemental motion for new trial.

After this court issued its opinion on the above issues, affirming the judgment in 

its entirety, the Legislature passed Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Stats.

2021, ch. 699 §§ 3, 4) (AB 333), effective January 1, 2022, which amended Penal Code 

section 186.22 and added Penal Code section 1109.1 We recalled the remittitur, canceled 

the remittitur, vacated our previous opinion and had the parties submit supplemental 

briefing on the impact of AB 333 on the judgment in this case. Defendant contends that 

AB 333’s amendments to section 186.22 changing the definitions of “criminal street 

gang” and “common benefit to members of a gang” should be applied retroactively.

Based on these changes, remand for a new trial on the gang enhancements and the gang 

murder special allegation is necessary. The People concede these changes to section 

186.22 are retroactive and that the gang enhancements should be retried. The People 

disagree that the gang murder special circumstance should be retried as this court should 

find that the amendments do not apply to the gang special circumstance because the 

amendments violate Proposition 21. If this court concludes that it is applicable to the 

gang special circumstance, then remand for retrial is appropriate.

In addition, defendant contends AB 333’s addition of section 1109, which 

mandates that defendants who request to be tried separately on charged gang 

enhancements must be granted a second-phase trial on the gang enhancements, should be 

1 All further statutory references are to the Penal Code unless otherwise indicated. 
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applied retroactively. He insists that since the gang enhancements and gang special 

circumstance were tried with the substantive crimes in this case, he is entitled to remand 

for a new trial on all the charges. The People insist that section 1109 applies 

prospectively, and even if it does apply, defendant was not prejudiced by the admission 

of gang evidence at trial.

We issue this new opinion addressing both the issues first raised on direct appeal 

and the impact of AB 333. 

PROCEDURAL HISTORY

Defendant was charged in an amended information with one count of willful, 

premeditated, and deliberate first degree murder (Pen. Code, § 187, subd. (a)).

2 The 

information further alleged the special circumstances that defendant intentionally killed 

the victim while he was an active participant in a criminal street gang and the murder was 

carried out to further the activities of the criminal street gang (§ 190.2, subd. (a)(22)) and 

he was lying in wait (§ 190.2, subd. (a)(15)). It was additionally alleged that he

personally and intentionally discharged a firearm, which caused great bodily injury or 

death (§ 12022.53, subd. (d)). It was also alleged that he committed the crime for the 

benefit of and at the direction of a criminal street gang (§ 186.22, subd. (b)(1)(c)). 

Defendant was found guilty of all the charges. In a bifurcated proceeding, the court 

found that defendant had suffered a prior serious and/or violent felony conviction (§§ 

2 All further references are to the Penal Code unless otherwise indicated.
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667, subds. (b)-(i); 1170.12, subd. (a)). Defendant was sentenced to 25 years to life 

followed by life in prison without the possibility of parole.

FACTUAL HISTORY

A. PEOPLE’S CASE-IN-CHIEF

1. SHOOTING

On December 25, 2015, Nancy A. was given a Christmas gift by her girlfriend, 

Ana S., of a tattoo. Ana contacted David the victim who was a tattoo artist. The victim

had previously given Nancy and Ana matching tattoos. The victim agreed to give the 

tattoo to Nancy, and Ana booked the appointment for Christmas day. Nancy and Ana 

only knew the victim from getting tattoos from him. 

Nancy and Ana picked up the victim from a restaurant around 1:00 p.m. in Ana’s 

car. The victim was in a good mood. They then drove the victim to his house in 

Victorville. They arrived at his house around 2:00 p.m. The victim set up the tattoo 

machine in his room. The victim received a phone call as he was setting up the 

equipment and talked for some time with the person who called him. He started on the 

tattoo. 

Just before 3:00 p.m. on that day, the victim received another phone call. When 

he got off the phone, the victim suggested to Ana and Nancy that they go get food and he 

told them he had to first meet his friend. He wanted to give his friend tamales that his 

mother had made. They got into the victim’s white SUV. The victim called the friend 

from the car and asked his friend where he wanted to meet. Nancy believed they were 
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going to deliver the tamales, get pizza and return to the victim’s house so he could finish 

her tattoo. 

Nancy sat in the front seat and Ana sat in the back. The victim talked to his friend

on speakerphone while he was driving. Nancy could see the screen on the phone and it 

showed he was talking to Jboy 12th Street. The friend told the victim to meet him at a 

gas station located near the freeway at Mariposa and Main Streets in Hesperia. He was 

not there when they arrived. The victim called his friend and asked where he was and he 

directed him to the In-N-Out restaurant next door. The victim drove into the parking lot 

of the In-N-Out and parked next to a red truck that was in the parking lot. The victim

pulled up so that the driver’s windows were facing each other.

The driver of the red truck had his window down. Nancy and Ana identified the 

driver of the red truck in court as defendant. Defendant asked the victim something about 

Nancy being his “boy.” Nancy stated defendant’s voice sounded the same as Jboy 12th 

Street who had been on the phone. The victim told him no, that he was just giving Nancy

a tattoo. Nancy handed the victim the bag of tamales and the victim got out of the car to 

give them to defendant. Defendant pulled out a gun and shot the victim. Nancy stated 

that the gun was a revolver and defendant shot at the victim until the revolver was empty. 

The victim asked why he was shooting him when he fell to the ground. Defendant 

responded “La Eme.” He repeated it several times while he shot the victim. Ana heard at 

least four gunshots.

Defendant quickly drove away. Nancy and Ana were afraid they would be shot 

and ducked down to protect themselves. They got out of the passenger’s side door. Ana 
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called 911. Nancy got out of the truck and ran to the victim. He was on the ground. 

They told him to hang on and that they were getting him help. The victim was 

nonresponsive. 

Nancy was shown a six-pack photographic lineup on the day of the shooting. She 

was unable to identify anyone. She recognized defendant in court. She insisted he was 

skinnier in the photographic lineup so she did not recognize him. Nancy was asked, “The 

person in court, how sure are you that’s the individual that shot David the victim?” She 

responded, “I’m a hundred percent sure.”

Nancy did not recall stating to the police that the shooter had dark skin but 

recalled she stated that the person was Hispanic. She described him as “heavyset.” 

Nancy never saw defendant get out of his car. The victim was wearing a Raiders baseball 

hat when he was shot.

Ana described defendant as a Hispanic adult male with darker skin, possibly a 

tattoo on his neck, and appeared to have acne scars on his face. She was shown 

photographs from the victim’s social media accounts and identified defendant as possibly 

being the shooter. She was not 100 percent certain. Ana chose defendant’s photograph 

on that day from the six-pack photographic lineup. She believed it was the same person 

she identified in court.

An autopsy was performed on the victim on January 4, 2016. He was 37 years old 

at the time of his death. He had five bullet wounds in his chest. He had a bullet wound on 

his arm. Several bullets were taken out of his body. He died as a result of the bullet 
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wounds. He likely died within a matter of minutes. The victim had a tattoo over his eye 

that read, “hit um.”

2. INVESTIGATION

San Bernardino County Sheriff’s Deputy Sprague was on patrol duty in Hesperia 

on December 25, 2015. At 3:30 p.m. that day, he responded to reports of a shooting at 

the In-N-Out parking lot near the intersection of Main Street and Mariposa. When he 

arrived, there was a white SUV parked in the parking lot. There were no other cars. 

Next to the SUV was a bleeding male, identified as the victim, and two females standing 

over him. Both of the women were crying. Deputy Sprague initially felt a pulse and 

observed gunshot wounds on the victim’s chest. However, after one minute, the victim

no longer had a pulse. The victim was transported to the hospital where he was 

pronounced deceased.

Detective Goodwin arrived at the In-N-Out around 6:00 p.m. On the ground near 

where the victim’s body had been was a bag of tamales. A black and silver Raiders 

baseball hat was found near the rear tire of the SUV. No cartridge cases or bullets were 

found on the ground. Detective Goodwin obtained surveillance video from the In-N-Out 

burger from between 3:00 and 4:00 p.m. that day. 

A burgundy or red truck entered the In-N-Out parking lot and met up with the 

SUV. The truck left the parking lot at 3:34 p.m. Defendant became a suspect. He was 

arrested on December 26, 2015. He was apprehended in a red truck matching the one 

seen in the video surveillance. 
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The cellular telephone records for defendant’s phone were obtained. The victim’s 

cellular telephone number was obtained and his phone records were reviewed. Based on 

the records, at 1:57 p.m. and 1:58 p.m. on December 25, the victim made calls to 

defendant’s phone. The victim was near his home in Victorville. Defendant’s cellular 

telephone had a call made to it from the victim’s phone number. Defendant was at or 

near his mother’s house which was in Hesperia.

3

 

At 3:32 p.m., the victim’s phone records showed he called defendant’s cellular 

telephone and the records showed that the phone was using a cellular telephone tower 

near the parking lot of the In-N-Out. 

Detective Goodwin also explained that each cellular telephone kept a log of GPS 

coordinates for advertising purposes. The GPS location of the phone was usually within 

30 feet of where the phone was located.4 The GPS records showed where defendant’s 

phone had been. In the early morning hours of Christmas Day, at 12:50 a.m., defendant’s 

phone was near the victim’s home. At 6:38 a.m., the phone was near his residence in 

West Covina. The next GPS data was from 3:47 p.m. There was no data between these 

times. At 3:47 p.m., the GPS showed the phone was at Ranchero Road in Hesperia. The 

phone then appeared to travel to defendant’s mother’s house and pinged at that location 

several times throughout the evening. 

3 Detective Goodwin explained that cellular telephones would ping off of cellular 

phone towers which would give an approximate location of the cellular telephone when 

the call was made.

4 A sheriff’s deputy who was a technical investigator for the sheriff’s department 

also testified to retrieving GPS data from a cellular telephone.
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The victim’s phone was not found at the scene of the shooting. The last location of 

the cellular telephone was logged at 3:50 p.m. on December 25 in the area of the 15 

freeway and Ranchero Road. The victim’s phone records showed it had been at the In-NOut parking lot, then was taken south on the 15 freeway, and the last location was the offramp at Ranchero Road off the 15 freeway. The victim’s phone was found on the ground 

at the off-ramp of Ranchero Road near the 15 freeway. A baseball hat with a “P” on the 

hat was found near the phone.5 

The victim’s phone was searched including his social media accounts. Several 

photographs were taken from his two accounts. A contact in the victim’s phone was Jboy 

12th Street which was attached to the number for defendant. The last phone call made on 

the phone was to Jboy 12th Street at 3:32 p.m. A call was made to the victim from Jboy 

12th Street at 3:17 p.m. The victim sent a text message to Jboy 12th Street at 1:44 p.m. 

It said, “Traffic cool. Let me know when you start heading up so I can meet you.” At 

1:46 p.m., the victim received a text message from Jboy 12th Street that said, “Went by 

your house. Thought you were home. Seen the Navigator, but no one answered.” The 

victim sent a message to Jboy 12th Street at 1:59 p.m. asking “So where are you so I can 

meet you?” At 2:09 p.m., the victim sent a message, “Well, don’t leave without calling 

so I can meet you.”

The victim’s residence in Victorville was searched. An old cellular telephone 

belonging to the victim was located. In the phone was a contact for Jboy 12th Street. A 

5 No DNA tests were performed on the victim’s phone or the baseball hat.
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search warrant was executed at defendant’s home located in West Covina. A cellular 

telephone bill for defendant’s phone was obtained. It was the same number listed as Jboy 

12th Street in the victim’s cellular telephone. A t-shirt with Money Motivated Ink was 

found. This was a tattoo company owned by the victim. 

Defendant’s mother, Jacqueline Peterson, lived on Alston Street in Hesperia. 

Defendant was driving his truck when he arrived around 2:30 p.m. at her house on 

Christmas Day. He brought his girlfriend and her two children with him. Defendant left 

the house between 2:30 and 3:00 p.m. but arrived home for dinner which occurred around 

4:00 p.m. Peterson claimed defendant left the house to get cigarettes. Defendant seemed 

normal when he returned for dinner. 

Peterson believed that defendant had been a member of a gang while living in 

Pomona and that he had “Pomona” or “12th Street” tattooed on his head. Peterson 

indicated that defendant was in the process of removing the tattoo from the back of his 

head. 

3. RECORDED JAIL CONVERSATIONS

Defendant’s daughter spoke with defendant after the shooting and the conversation 

was recorded. He told her to tell “Nato I said, sharks up.” He repeated the word sharks. 

In another conversation, with his girlfriend, defendant started whispering. In the 

conversation, he stated, “When I pulled In N out . . . That’s when I got mad . . . Fuck this 

dude. I told you then but . . . David.”
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4. GANG EVIDENCE

In 2012, defendant admitted to a detective from the San Bernardino County 

Sheriff’s Department that he was a member of the 12th Street Sharky Pomona gang (12th 

Street). His tattoos were documented.

Detective Godoy was a designated gang expert. La Eme and 12th Street were both 

criminal street gangs.6 12th Street was a Hispanic gang based in Pomona. The gang had 

over 500 members and associates. La Eme was the Mexican Mafia under which 12th 

Street would operate. The Mexican Mafia was capable of issuing an order from jail to a 

gang member on the street to do work on behalf of the Mexican Mafia.

Detective Godoy believed that defendant was an active 12th Street gang member 

based on his prior contacts with law enforcement, his tattoos, and a recording after the 

crime in this case in which he referred to sharks or sharkies. He had a “Pomona” tattoo 

on his chest and on the back of his head which was a tattoo that a 12th Street member 

would possess. He also had shark tattoos which was a 12th Street symbol. Gang tattoos 

showed that defendant was a trusted member of the gang. Defendant also had a “G 

shield” tattoo which was a symbol of the Mexican Mafia. The tattoo had to be earned by 

doing work for the Mexican Mafia. Detective Godoy believed that defendant was an 

associate of the Mexican Mafia. The victim was a member of the Monrovia Criminal 

Street Gang. Defendant was depicted in a photograph wearing a baseball hat with a P on 

it which was a symbol of 12th Street.

6 The parties stipulated that La Eme and Pomona 12th Street were criminal street 

gangs as defined in section 186.22, subdivision (b).
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In Detective Godoy’s opinion, the shooting of the victim benefitted the Mexican 

Mafia and the 12th Street gang. The crime would put other gangs in the area in fear that 

a 12th Street member was working on behalf of the Mexican Mafia. It would benefit 

12th Street, that they had a member doing crimes on behalf of the Mexican Mafia. 

Further, mentioning La Eme would put the public in fear. The fact the crime was 

committed in public in the daytime further would instill fear in others. He was unsure if 

the victim was an associate of the Mexican Mafia. In searches of defendant’s residence 

and his vehicle nothing was found connecting him to the Mexican Mafia.

B. DEFENSE CASE

The only evidence presented was an excerpt from a book written by a former 

member of the Mexican Mafia setting forth the rules of being a member. These included 

that a member may not be a homosexual, an informant, a coward, must not raise a hand 

against another member without sanction, not show disrespect for any member’s family, 

not steal from another member, interfere with another member’s business activities, and 

not politic against another member or cause deception within the organization. Further, 

membership was for life and it was mandatory to assault/kill all defectors and dropouts.

DISCUSSION

A. EYEWITNESS INSTRUCTION

In his opening brief, defendant contended that the trial court violated his federal 

constitutional due process rights by improperly instructing the jury pursuant to 

CALCRIM No. 315 that a witness’s level of certainty is a factor to be considered in 

evaluating the accuracy of identification testimony. He insisted that scientific studies 
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have shown that certainty is not a determining factor of accuracy. After the initial 

briefing was complete, the California Supreme Court issued its opinion in People v. 

Lemcke (2021) 11 Cal.5th 644 (Lemcke) finding that CALCRIM No. 315 does not 

instruct a jury that certainty equals accuracy and does not violate due process. In 

Lemcke, the defendant presented expert testimony on eyewitness identification discussing 

the relationship between certainty and accuracy. The parties submitted supplemental 

briefing addressing whether the lack of expert testimony in this case renders it dissimilar

from Lemcke, and the instruction violated defendant’s due process rights. 

1. ADDITIONAL FACTUAL HISTORY

Here, the jury was instructed with CALCRIM No. 315 in pertinent part as follows: 

“You have heard eyewitness testimony identifying the defendant. As with any other 

witness, you must decide whether an eyewitness gave truthful and accurate testimony. 

[¶] In evaluating identification testimony, consider the following questions: [¶] “How 

certain was the witness when he or she made an identification.” Several other factors 

were listed.

The jury was instructed in addition to CALCRIM No. 315 that, “You alone must 

judge the credibility or believability of the witnesses. In deciding whether testimony is 

true and accurate, use your common sense and experience. [¶] You must judge the 

testimony of each witness by the same standards setting aside any bias or prejudice you 

may have. You may believe all, part of none of any witness’s testimony. Consider the 

testimony of each witness and decide how much of it you believe. [¶] In evaluating a 
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witness’s testimony, you may consider anything that reasonably tends to prove or 

disprove the truth or accuracy of that testimony.” 

They were further advised they must find defendant guilty beyond a reasonable 

doubt based on all the evidence presented.

2. WAIVER

The People contend defendant has waived the claim on appeal by failing to object 

to the wording of the instruction in the trial court. There were no objections to the 

instruction. 

In People v. Sánchez (2016) 63 Cal.4th 411, 461-462 (Sánchez), the court 

considered the defendant’s argument that because there was “at best, a weak correlation 

between . . . certainty and accuracy,” the trial court erred in instructing the jury with 

CALJIC No. 2.92, the CALJIC equivalent to CALCRIM No. 315. However, it first 

addressed waiver. The court stated, “The Attorney General argues the claim is forfeited 

because defendant did not request that CALJIC No. 2.92 be modified. We agree. If 

defendant had wanted the court to modify the instruction, he should have requested it. 

The trial court has no sua sponte duty to do so.” (Sánchez, at p. 461.) As such, defendant 

forfeited his claim of instructional error by failing to seek modification of CALCRIM No. 

315 in the trial court.

Defendant insists that if this court finds he waived his claim, that he received 

ineffective assistance of counsel. Rather than address this issue, we will address the 
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merits of defendant’s claim—despite him waiving the issue—in order to consider if 

defendant suffered prejudice.7

3. LEMCKE

In Sánchez, the court examined CALJIC No. 2.92 which contained similar 

language as in CALCRIM No. 315 instructing the jury to consider in evaluating witness 

testimony “ ‘the extent to which the witness is either certain or uncertain of the 

identification.‘ ” (Sánchez, supra, 63 Cal.4th at p. 461.) The Sánchez court 

acknowledged that “some courts have disapproved instructing on the certainty factor in 

light of the scientific studies.” (Sánchez, supra, 63 Cal.4th at p. 462.) However, it found 

the instruction was proper when uncertain and certain identifications were involved. 

Moreover, it also found no prejudice concluding “[t]he instruction cited the certainty 

factor in a neutral manner, telling the jury only that it could consider it. It did not suggest 

that certainty equals accuracy. In this case, telling it to consider this factor could only 

benefit defendant when it came to the uncertain identifications, and it was unlikely to 

harm him regarding the certain ones.” Further, it found no prejudice as “the eyewitness 

identifications were far from the only evidence connecting [the] defendant to the crimes.” 

(Id. at p. 462.)

7 To prevail on a claim of ineffective assistance of counsel, a defendant must 

show (1) counsel’s performance fell below an objective standard of reasonableness under 

prevailing professional norms, and (2) the deficient performance prejudiced defendant. 

(Strickland v Washington (1984) 466 U.S. 668, 688, 691-692; People v. Ledesma (1987) 

43 Cal.3d 171, 216-217.) 
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In Lemcke, our high court revisited the issue in determining whether the certainty 

language in CALCRIM No. 315 violated due process. The court found that “we find 

nothing in CALCRIM No. 315’s instruction on witness certainty that operates to ‘lower 

the prosecution’s burden of proof.’ “ (Lemcke, supra, 11 Cal.5th at p. 657.) It further 

held, “the instruction does not direct the jury that ‘certainty equals accuracy.’ [Citation.] 

Nor does the instruction state that the jury must presume an identification is accurate if 

the eyewitness has expressed certainty. [Citation.] Instead, the instruction merely lists 

the witness’s level of certainty at the time of identification as one of 15 different factors 

that the jury should consider when evaluating the credibility and accuracy of eyewitness 

testimony. The instruction leaves the jury to decide whether the witness expressed a 

credible claim of certainty and what weight, if any, should be placed on that certainty in 

relation to the numerous other factors listed in CALCRIM No. 315.” (Lemcke, at p. 657.)

The California Supreme Court also stated that “Although the wording of the 

instruction might cause some jurors to infer that certainty is generally correlative of 

accuracy” the defendant presented expert testimony to “combat the inference.” (Lemcke, 

supra, 11 Cal.5th at p. 657.) The court found this was an additional factor in finding that 

defendant’s due process rights were not violated. It further referred to the other 

instructions given to the jury, including that the jury had to find defendant guilty beyond 

a reasonable doubt. (Id. at p. 658.) 

In Lemcke, the California Supreme Court further acknowledged that the form of 

CALCRIM No. 315 “has the potential to mislead jurors” given “the empirical research 

that ‘ “under most circumstances, witness confidence or certainty is not a good indicator 
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of identification accuracy.” ’ ” (Lemcke, supra, 11 Cal.5th at p. 665.) Thus, while the 

defendant “failed to establish that the trial court’s decision to include the certainty factor 

in CALCRIM No. 315 violated his due process rights or otherwise constituted error under 

the circumstances presented here[, the court recognized the] risk that the current version 

of the instruction will prompt jurors to infer that an eyewitness’s certainty in an 

identification is generally a reliable indicator of accuracy.” (Lemcke, at p. 669.) Thus, 

the court directed “trial courts to omit the certainty factor from CALCRIM No. 315 until 

the Judicial Council has the opportunity to consider how the language might be better 

worded to minimize juror confusion on this point.” (Ibid.)

Based on the findings in Sánchez and Lemcke, the instruction here did not violate 

defendant’s due process rights. Defendant insists that CALCRIM No. 315 erroneously 

invited jurors to infer eyewitness certainty provided accuracy. However, the California 

Supreme Court has specifically stated that the instruction does not equate certainty with 

accuracy. Defendant further contends that after Lemcke, without expert witness 

testimony, the instruction violates due process. As stated, in Lemcke, the defendant 

called an eyewitness identification expert who explained the limited circumstances when 

certainty and accuracy are positively correlated. (Lemcke, supra, 11 Cal.5th at p. 657.)

However, Lemcke first found that the instruction did not violate due process based 

on the fact it was only one of several factors the jury considered in evaluating witness 

testimony and it did not direct the jury that certainty equals accuracy. (Id. at p. 657.) The 

court only addressed the expert witness testimony in further concluding that the 

instruction did not violate due process but did not indicate that it was crucial to the 
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analysis. The fact that there was no eyewitness identification expert testimony does not 

render this case different from Lemcke. 

4. PREJUDICE

Further, even if the instruction should have been modified to exclude this factor, 

any conceivable error was harmless under any standard. (Chapman v. California (1967) 

386 U.S. 18, 24 [“harmless beyond a reasonable doubt” standard for constitutional 

errors]; People v. Watson (1956) 46 Cal.2d 818, 836 [reasonable probability standard for 

state law errors].)

Although the prosecutor noted during closing argument that the eyewitness 

testimony from Ana and Nancy “really form the backbone of this case” there was 

uncertainty in the identifications from Nancy and Ana. They both struggled to identify 

defendant prior to trial. As stated in Sánchez, which was not overruled in Lemcke, “[t]he 

instruction cited the certainty factor in a neutral manner, telling the jury only that it could 

consider it. It did not suggest that certainty equals accuracy. In this case, telling it to 

consider this factor could only benefit defendant when it came to the uncertain 

identifications, and it was unlikely to harm him regarding the certain ones.” 

The court in Sánchez further found, as previously stated, that the eyewitness 

identifications were not the only evidence connecting the defendant to the crimes. 

(People v. Sánchez, supra, 63 Cal.4th at p. 462.) Similarly, here, the testimony of Ana 

and Nancy was not the only evidence that supported that defendant was the shooter. 

Defendant’s red truck was seen on In-N-Out surveillance entering and exiting the parking 

lot around the time of the shooting. In addition, the victim and defendant exchanged 
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telephone calls and text messages addressing meeting up that day. On the way to the InN-Out, Nancy stated that she saw the name Jboy 12th Street on the victim’s phone, which 

was the contact for defendant. The GPS and cellular telephone tower evidence 

established that defendant was in the area of the In-N-Out during the time of the shooting. 

Defendant’s own mother provided evidence that he was away from her house in Hesperia 

during the time of the shooting. Finally, defendant mentioned the In-N-Out and “David”

in his jailhouse conversation. As such, even though the eyewitness testimony assured 

that defendant was the shooter, other circumstantial evidence established that defendant 

shot the victim in the parking lot on Christmas Day. As such, he has suffered no 

prejudice. 

B. CONTINUANCE FOR MOTION FOR NEW TRIAL

Defendant contends the trial court erred by denying his request for a continuance 

of sentencing so that he could conduct DNA testing on the victim’s cellular telephone and 

the baseball hat found nearby as such a request for a continuance was supported by good 

cause. The denial also violated his rights to due process, a fair trial, and the right to 

effective assistance of counsel at all stages of the trial proceedings. The matter should be 

remanded for DNA testing to be performed on the phone and baseball hat, and depending 

on the results, he should be given an opportunity to renew his request for a new trial. 

1. ADDITIONAL PROCEEDINGS

Prior to trial, defendant’s retained counsel, Mark Shapiro, sought several 

continuances both to prepare for trial and to obtain DNA results on the “P” hat and the 

victim’s cellular telephone. Defendant agreed to waive time from January 2017 through 
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July 2017. The People had chosen not to test the items. Shapiro sought an order for 

funding so he could conduct his own DNA testing and defendant agreed to waive time. 

On October 27, 2017, Shapiro was still waiting for testing and defendant stated it was the 

last time he was going to waive time. On December 1, 2017, defendant did not want to 

waive time but agreed to a 60-day continuance. On February 9, 2018, Shapiro stated that 

he was not ready to go to trial but defendant refused to waive time. Defendant reluctantly 

agreed to a continuance if trial started in 60 days.

On May 25, 2018, Shapiro again wanted to continue the case for DNA testing. On 

July 6, 2018, the DNA had still not been tested but defendant did not agree to a 

continuance. On July 13. 2018, Shapiro stated he was not ready to proceed to trial 

because he was still waiting for the testing of the DNA on the baseball hat and the 

victim’s telephone which was crucial to the defense. Defendant stated on the record, “I 

don’t want to waive time I want to go forward.” The trial court found good cause to 

continue the case over defendant’s objection. The baseball hat and the victim’s telephone 

were being sent to an independent lab. 

On October 14, 2018, defendant refused to waive time but the attorneys were 

engaged in trial. The trial began on October 16, 2018. During opening argument, 

Shapiro argued to the jury that the police focused on defendant and did not look 

anywhere else. They did not have DNA testing on the baseball hat and the victim’s

telephone. 
22

The jury verdict was reached on November 5, 2018. Defendant obtained new 

counsel on February 8, 2019. The matter was continued until June 2019 when 

defendant’s new counsel filed a motion for new trial.

Defendant’s counsel filed his motion for new trial on June 25, 2019. Defendant 

raised several claims including that the People did not provide all of the discovery to the 

defense, a recreation video of the shooting should have been excluded and improper gang 

evidence was introduced. Further, he claimed ineffective assistance of counsel including 

that his trial counsel failed to call a cellular telephone expert and failed to object to 

inadmissible evidence. There was no mention of the DNA testing on the baseball hat or 

the victim’s telephone. However, in defendant’s declaration, he stated that his trial 

counsel never tested for DNA and fingerprints despite having an order to do so. 

Defendant did not specify the items to be tested. The People filed opposition.

The motion for new trial was heard on September 27, 2019. Defendant testified in 

support of the new trial motion. He complained about the GPS evidence and that the 

transcript of the jail call was inaccurate. Defendant also insisted that Shapiro convinced 

him not to testify. There was no mention of the DNA testing. Shapiro also testified. 

Shapiro stated that he had originally wanted to test the baseball hat and the victim’s 

telephone. However, he and defendant agreed that they did not want to proceed with the 

testing because Shapiro explained to defendant the aiding and abetting rule. Even if 

defendant was not the shooter, he could have been present and aided and abetted the 

shooting. Also, defendant wanted to hurry and go to trial. Shapiro did hire a private lab 

to conduct the DNA test but stopped the process. 
23

The matter was taken under submission and sentencing was scheduled for October 

18, 2019. The matter was continued to October 25, 2019. The trial court issued a written 

denial of the motion for new trial. In the denial of the motion for new trial, the trial court 

noted, “Defendant faults Mr. Shapiro for not hiring a DNA expert. At the evidentiary 

hearing, Mr. Shapiro testified that he obtained funding approval from the court . . . to 

have an outside lab conduct DNA testing and that he wanted to conduct testing on [the 

victim]’s cell phone and the hat that were found off Ranchero Road. Mr. Shapiro 

testified that the defendant was not interested in having DNA testing completed and that 

Mr. Shapiro also explained to the defendant that eve if someone else’s DNA came back 

on one or more of these two items, the People can still proceed with their case against 

defendant by relying on an aiding and abetting theory in light of the other evidence 

showing that the defendant had arranged to meet with [the victim] when [the victim] was 

shot and killed. At the evidentiary hearing, Mr. Shapiro testified that the defendant was 

constantly objecting to waiving time to continue the trial date and did not want to have 

the DNA testing done. The court credits that testimony.” The trial court also concluded 

that defendant had failed to show prejudice based on the overwhelming evidence of guilt.

On October 25, 2019, the date of sentencing, defendant’s new counsel requested a 

continuance in order to complete the DNA testing on the victim’s telephone and the 

baseball hat. The items had been sent to a laboratory for testing but had been intercepted 

by the mail service as suspicious. New counsel attested that the items had only recently 

been received by the independent laboratory. Defendant’s counsel insisted the baseball 
24

hat and the victim’s telephone were relevant if DNA on the two items did not belong to 

defendant. It was relevant to show he was not the shooter.

The trial court noted that the motion for new trial had already been denied and that 

new counsel had come on the case in February 2019. New counsel was aware all along 

there had been no DNA testing. The trial court ruled, “And so looking as I sit here today, 

and this has already been addressed in the Court’s order denying the motion for a new 

trial, is the Court is not going to sit here and speculate at this juncture, you know, with 

the delays that we’ve had in this case. And the Court has accommodated both counsel

with the delays. [¶] But I think at this point there’s nothing before the Court to indicate, 

and the Court has already ruled on the motion for new trial. So the Court is going to 

proceed forward with sentencing.”

2. ANALYSIS

“Continuances shall be granted only upon a showing of good cause.” (§ 1050, 

subd. (e).) “ ‘[T]he decision whether or not to grant a continuance of a matter rests 

within the sound discretion of the trial court. [Citations.] The party challenging a ruling

on a continuance bears the burden of establishing an abuse of discretion, and an order 

denying a continuance is seldom successfully attacked. [Citation.] [¶] Under this state 

law standard, discretion is abused only when the court exceeds the bounds of reason, all 

circumstances being considered.’ ” (People v. Fuiava (2012) 53 Cal.4th 622, 650.) 

“In reviewing the decision to deny a continuance, ‘[o]ne factor to consider is 

whether a continuance would be useful.’ “ (People v. Mungia (2008) 44 Cal.4th 1101, 

1118.) The court considers “ ‘ “not only the benefit which the moving party anticipates 
25

but also the likelihood that such benefit will result, the burden on other witnesses, jurors 

and the court and, above all, whether substantial justice will be accomplished or defeated 

by a granting of the motion.” ’ ” (People v. Jenkins (2000) 22 Cal.4th 900, 1037.) 

“ ‘There are no mechanical tests for deciding when a denial of a continuance is so 

arbitrary as to violate due process. The answer must be found in the circumstances 

present in every case, particularly in the reasons presented to the trial judge at the time 

the request is denied.” (Mungia, at p. 1118.)

Here, the trial court did not abuse its vast discretion in denying defendant’s motion 

for continuance made after the denial of the motion for new trial. Initially, at the time 

that defendant’s new counsel asked for the continuance, he had been representing 

defendant for eight months. Counsel was aware of the DNA testing as Shapiro testified 

regarding the decision not to conduct such testing at the motion for new trial. 

Defendant’s new counsel provided no reason for waiting until sentencing to make the 

request to test the items rather than in the motion for new trial. Although counsel stated 

that somehow the items had been held up in the mail, counsel made no representation as 

to any investigation into the DNA testing before sentencing. The DNA testing had been 

an issue since the start of trial and did not constitute good cause to continue the 

sentencing. 

Additionally, as noted by the prosecutor, the victim’s family was present in court 

for the sentencing having traveled from Arizona and other areas to be present at the 

sentencing. Defendant dismisses the importance of their presence arguing that they could 

have put their statements on the record for later sentencing. However, the trial court 
26

reasonably could consider the families in deciding not to continue the sentencing. (See 

People v. Jenkins, supra, 22 Cal.4th at p. 1037.)

Moreover, defendant failed to show that a continuance would be “useful.” (People 

v. Mungia, supra, 44 Cal.4th at p. 1118.) Defendant’s counsel insisted that the DNA 

testing was relevant if it showed that the DNA on the victim’s phone and baseball hat did 

not belong to defendant. This evidence, even if it showed DNA from some other party 

would not have resulted in a reversal of defendant’s conviction. The trial court already 

determined in denying the motion for new trial that such evidence would not change the 

result of the proceedings. 

Further, as stated ante, defendant’s red truck was seen in the In-N-Out parking lot 

at the time of the shooting; he was identified as the shooter; defendant’s cellular 

telephone was tracked to the area of the shooting; the victim was on the phone with 

defendant as he pulled into the In-N-Out parking lot to give him tamales; and defendant 

mentioned “David” and In-N-Out during a taped jail conversation. Even if the DNA 

testing had been complete, the fact that someone other than the victim or defendant was 

on the items, that would not exonerate defendant. The trial court did not abuse its 

discretion by denying defendant’s motion for continuance after the denial of his motion 

for new trial. 
27

C. AB 333

1. RETRIAL OF GANG ENHANCEMENT—PENAL CODE SECTION 

186.22, SUBDIVISION (B)(1)(C)

Defendant contends the gang enhancement found true pursuant to 186.22, 

subdivision (b)(1)(c), must be vacated and the cause remanded for the People to choose 

whether to retry the enhancement based on AB 333’s amendment of section 186.22

effective after his trial. He insists that under the principles of In re Estrada (1965) 63 

Cal.2d 740 (Estrada), the revisions should be applied retroactively since his case is not 

final. 

Section 186.22 enhances the punishment of a person convicted of an enumerated 

felony committed “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.” (§ 186.22, subd. (b)(1); see also People v. Sek (2022) 74 Cal.App.5th 

657, 664 (Sek).) “[AB] 333 took effect on January 1, 2022 and amended section 186.22 

by modifying the definitions of ‘pattern of criminal activity’ and ‘criminal street gang,’

and it clarified what is required to show an offense ‘benefit[s], promote[s], further[s], or 

assist[s]’ a criminal street gang.” (People v. Perez (2022) 78 Cal.App.5th 192, 206, 

review granted Aug. 17, 2022, S275090.)8 

8 Despite review being granted by the California Supreme Court in many of these 

AB 333 cases, the cases may be cited for their persuasive authority and for establishing 

the existence of a conflict of authority. (Cal. Rules of Court, rule 8.1115 (e)(3).) 
28

“[T]he Legislature enacted Assembly Bill No. 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 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.’

[Citation.] In addition, the law created a stricter requirement for proof of ‘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. [Citation.] 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. [Citation.] Under the newly amended law, the offense with which the 

defendant is currently charged cannot be used as one of the two predicate offenses. 

[Citation.] 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.’ ” 

(Sek, supra, 74 Cal.App.5th at p. 665.)

The California Supreme Court has affirmed that these amendments to section 

186.22 should be applied retroactively. In People v. Tran (2022) 13 Cal.5th 1169 (Tran), 

the court explained, “Estrada ‘stand[s] for the proposition that (i) in the absence of a 

contrary indication of legislative intent, (ii) legislation that ameliorates punishment (iii) 
29

applies to all cases that are not yet final as of the legislation's effective date.’ [Citation.] 

Estrada applies to statutory amendments ‘which redefine, to the benefit of defendants, 

conduct subject to criminal sanctions.’ [Citation.] Here, ‘[AB] 333 essentially adds new 

elements to the substantive offense and enhancements in section 186.22—for example, 

by 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 . . . .’ [Citations.] These changes have the 

effect of ‘increas[ing] the threshold for conviction of the section 186.22 offense and the 

imposition of the enhancement,’ with obvious benefit to defendants like Tran.” (Id. at pp. 

1206-1207.)

The People concede, and we agree, that the amendments could benefit defendant 

and thus AB 333 applies retroactively to defendant’s case in relation to the gang 

enhancement found true pursuant to section 186.22, subdivision (b)(1)(C). (See People v. 

E.H. (2022) 75 Cal.App.5th 467, 478.) The appropriate remedy is to remand the matter 

to the trial court to give the People an opportunity to retry the gang enhancement 

allegation under the new law. (Sek, supra, 74 Cal.App.5th at p. 669) We vacate the true 

findings on the section 186.22, subdivision (b)(1)(c), enhancement and remand to the trial 

court for further proceedings.
30

2. GANG SPECIAL CIRCUMSTANCE—PENAL CODE SECTION 

190.2, SUBDIVISION (A)(22)

Defendant further contends the gang murder special circumstance found true by 

the jury pursuant to section 190.2, subdivision (a)(22), must also be reversed based on the 

same amendments to section 186.22 as discussed ante. The People argue that such 

amendment violates the voter initiative Proposition 21 and should be excluded from the 

amendments to section 186.22.

Under section 190.2, subdivision (a)(22), the punishment for first degree murder is 

death or life without the possibility of parole 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.” Section 190.2, subdivision (a)(22), expressly 

incorporates the statutory definition of what constitutes a criminal street gang as set forth 

in section 186.22, subdivision (f). AB 333 changed the definition of “criminal street 

gang.” “Criminal street gang” was previously defined as an “ongoing organization, 

association, or group of three or more persons . . . whose members individually or 

collectively engage in, or have engaged in, a pattern of criminal gang activity.” (Former 

§ 186.22, subd. (f).) It is now defined as an “ongoing, organized association or group of 

three or more persons . . . whose members collectively engage in, or have engaged in, a 

pattern of criminal gang activity.” (§ 186.22, subd. (f).) The People concede these 

amendments can be interpreted to apply to the gang special circumstance but contend that 

such amendment is invalid as applied to section 190.2, subdivision (a)(22).
31

The gang special circumstance was part of the voter initiative Proposition 21

passed in 2000 whose purpose was to impose “severe penalties” for gang-related felonies. 

(People v. Rojas (2022) 80 Cal.App.5th 542, 550, review granted Oct. 19, 2022, 

S275835.) “Proposition 21 does not permit any legislative amendment except upon twothirds passage of each house or enactments subject to voter approval.” (Id. at p. 553) In 

Rojas, the court found that “[b]ecause [AB] 333 ‘takes away’ from the scope of conduct 

that Proposition 21 made punishable under section 190.2, it is an amendment. While the 

Legislature was free to amend Proposition 21 in this fashion, it could only do so with a 

two-thirds vote in each house. [Citations.] [AB] 333 did not comply with that 

requirement and therefore cannot amend Proposition 21.” (Id. at p. 555.) It concluded, 

“The appropriate remedy is not to void [AB] 333 in its entirety, but rather to disallow this 

unconstitutional application of [AB] 333. [Citation.] Consequently, we hold that [AB] 

333 does not alter the scope or effect of section 190.2, subdivision (a)(22). (Id. at pp. 

557-558.)

Several other courts have found that AB 333 did not unconstitutionally amend 

section 190.2, subdivision (a)(22). (See People v. Lee (2022) 81 Cal.App.5th 232, review 

granted on Oct. 19, 2022, S275449; People v. Lopez (2022) 82 Cal.App.5th 1, 15.) In 

Lee, the court explained that “amendment of the definition ‘criminal street gang’ by AB 

333 does not prohibit what Proposition 21 authorized, or authorize what Proposition 21 

prohibited. We find nothing to suggest that the electorate intended to impose a timespecific incorporation of the term ‘criminal street gang’ in the gang-murder special 

circumstance statute. Thus, we conclude that the term ‘criminal street gang’ as 
32

incorporated in the gang-murder special circumstance statute was ‘intended to conform at 

all times’ and ‘remain permanently parallel’ to section 186.22.” (Lee, at p. 245.) The 

court in Lopez found that the voters gave no indication of any intent to “ ‘freeze [the] 

statutory definition’ ” of criminal street gang and that defendant should be entitled to the 

benefit of the amendments. (Lopez, at pp. 22, 24-25.) We adopt the findings in Lee and 

Lopez and find that AB 333 did not unconstitutionally amend section 190.2, subdivision 

(a)(22). 

The People concede that if this court finds AB 333’s amendment of the gang

murder special circumstance is not unconstitutional, the proper remedy is remand to the

trial court for retrial. We agree and will order that the gang murder special circumstance

be reversed. We will remand to the trial court for further proceedings. 

3. PENAL CODE SECTION 1109

AB 333 added section 1109, which allows a defendant to request a bifurcated trial 

when there is a gang enhancement allegation. (§ 1109, subd. (a); Sek, supra, 74 

Cal.App.5th at p. 665.) If the defendant so requests, the trial court must try the case in 

two separate phases: “(1) The question of the defendant’s guilt of the underlying offense 

shall be first determined,” and then “(2) If the defendant is found guilty of the underlying 

offense and there is [gang enhancement allegation], there shall be further proceedings to 

the trier of fact on the question of the truth of the enhancement.” (§ 1109, subds. (a)(1) 

and (a)(2).)

Defendant insists that section 1109 should apply retroactively to his case under 

Estrada, supra, 63 Cal.2d 740. All of his convictions should be reversed and the matter 
33

remanded for retrial of the offenses in two separate phases. The People argue section 

1109 applies prospectively only and that any error in not bifurcating the proceedings was 

harmless in any event.

The Courts of Appeal are split on whether section 1109 applies retroactively. 

Some courts have held that section 1109 applies retroactively under Estrada. (People v. 

Burgos (2022) 77 Cal.App.5th 550, 568, review granted July 13, 2022 (S274743); People 

v. Ramos (2022) 77 Cal.App.5th 1116, 1129-1130.) Other courts have found it applies 

only prospectively. (People v. Ramirez (2022) 79 Cal.App.5th 48, 65, review granted 

Aug. 17, 2022 (S275341); People v. Perez, supra, 78 Cal.App.5th at p. 207.) The issue is 

currently under review with the California Supreme Court in Burgos. Most recently, in 

People v Tran, supra, 13 Cal.5th at page 1208, the California Supreme Court declined to 

resolve the split, concluding any failure to bifurcate the gang allegations was harmless.

We need not decide the issue because we conclude any failure to bifurcate the 

proceedings in this case was harmless. We therefore assume, without deciding, that 

section 1109 applies retroactively. (People v. E.H., supra, 75 Cal.App.5th at p. 480

[assuming without deciding that section 1109 applies retroactively].) 

We find that the introduction of gang evidence in this case was not prejudicial 

under People v. Watson (1956) 46 Cal.2d 818. (Tran, supra, 13 Cal.5th at pp. 1209-

1210.)9Initially, the gang evidence was properly admitted to prove the gang murder 

9 As the court in Tran, we reject defendant’s contention that review is subject to

the beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18. 

The admission of gang evidence in this case did not render his trial fundamentally unfair. 

(Tran, supra, 13 Cal.5th at p. 1209.)
34

special circumstance. “[S]ection 190.1 ‘require[s] the truth of a prior murder conviction 

special circumstance be tried only after the guilt determination, but other special 

circumstances, including a gang special circumstance . . . , be determined at the same 

time as the guilt determination.” (People v. Montano (2022) 80 Cal.App.5th 82, 110.) 

Section 1109 “does not apply to the determination of special circumstance allegations 

under section 190.2 (a)(22).” (Montano at p. 114.) Hence, much of the gang evidence 

introduced at trial was admissible to prove the gang murder special circumstance. As 

such, defendant cannot show prejudice by the failure to bifurcate the finding on the gang 

enhancements as the evidence was properly admitted at trial. 

Defendant has contended that the People v. Bigelow (1984) 37 Cal.3d 731 

(Bigelow) exception applies, which requires a separate trial on a special circumstance in 

general, or at least in this particular case. The gang evidence would not have been 

admitted in the murder trial as it would have only been admissible in a bifurcated trial on 

the special circumstance. 

In Bigelow, the court found that “If evidence relevant only to a special 

circumstance is introduced at the guilt trial, . . . , it should be accompanied by a jury 

instruction limiting its use. When that evidence is highly prejudicial, the court should 

exclude it at the guilt trial and conduct a separate trial of the special circumstance 

allegations.” (Bigelow, supra, 37 Cal.3d at p. 748, fn. omitted, italics added.) The 

California Supreme Court addressed the Bigelow exception in People v. Fierro (1991) 1 

Cal.4th 173, a death penalty case. In Fierro, the defendant moved to bifurcate trial on the 

guilt phase and the special circumstance allegation, relying on Bigelow. The request was 
35

denied and the California Supreme Court upheld the ruling. It stated, “The court’s ruling 

was correct. The statutory scheme plainly contemplates that, except where the special 

circumstance alleged is that of a prior murder, the same jury which determines guilt shall 

also at the same time determine the truth of the special circumstance allegation: ‘The 

question of the defendant’s guilt shall first be determined. If the trier of fact finds the 

defendant guilty of first degree murder, it shall at the same time determine the truth of all 

special circumstances charged . . . except . . . where it is alleged that the defendant had 

been convicted in a prior proceeding of the offense of murder in the first or second 

degree.’ [Citation.] [¶] Defendant’s reliance on . . . Bigelow, supra, 37 Cal.3d 731, is 

misplaced. In that case, one of the special circumstance allegations was murder for the 

purpose of avoiding arrest or perfecting an escape. [Citation.] At the guilt phase the 

prosecution presented evidence highly prejudicial to the defendant, indicating that he had 

committed a dozen uncharged burglaries, robberies and thefts; the prosecution’s primary 

theory of relevance was that the defendant committed each of the crimes to finance and 

perpetuate an escape from custody, which was relevant to the special circumstance 

allegation. Because of the ‘highly prejudicial’ nature of the prior-crimes evidence, we 

concluded that the trial court should have conducted a separate trial of the special 

circumstance allegation. [Citation.] [¶] The facts of the present case are not even 

remotely similar to those in Bigelow. No evidence was presented to the jury during the 

guilt phase which could be characterized as so ‘highly prejudicial’ [citation] that the 

jury’s ability to render a fair and impartial verdict on the special circumstance allegation 

would be impaired.” (Fierro, at p. 229.)
36

The Montano court recognized the Bigelow exception and Fierro. It noted, “Our 

research discloses no published case holding bifurcation of a special circumstance murder 

allegation is permissible other than as provided in section 1901.1 et seq.”

10

 (Montano, 

supra, 80 Cal.App.5th at p. 111.) Here, the prosecution was not seeking the death 

penalty. 

Moreover, the gang evidence was relevant to the murder charge in this case and 

not to just prove the special circumstance. It was admissible to show identity in that the 

two witnesses, Nancy and Ana, observed that the victim was speaking with Jboy 12th 

Street on his phone just prior to meeting up with defendant in the parking lot. The 

shooter also shouted “La Eme” during the shooting tending to show that a gang member 

committed the shooting. Evidence of a defendant’s gang affiliation can be admissible to 

prove identity. (People v. Becerrada (2017) 2 Cal.5th 1009, 1022 [“ ‘Evidence of the 

defendant’s gang affiliation—including evidence of the gang’s territory, membership, 

signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like—can 

help prove identity, motive, modus operandi, specific intent, means of applying force or 

fear, or other issues pertinent to guilt of the charged crime’ ”].) Additionally, the 

10 Section 190.1, subdivision (a), which applies to death penalty cases, provides, 

“(a) The question of the defendant’s guilt shall be first determined. If the trier of fact 

finds the defendant guilty of first degree murder, it shall at the same time determine the 

truth of all special circumstances charged as enumerated in Section 190.2 except for a 

special circumstance charged pursuant to paragraph (2) of subdivision (a) of Section 

190.2 where it is alleged that the defendant had been convicted in a prior proceeding of 

the offense of murder in the first or second degree.”
37

evidence admitted was not “highly prejudicial.” The Bigelow exception is not supported 

in this case. 

Regardless, the evidence of defendant’s guilt was overwhelming even without the 

gang evidence. Defendant was positively identified by Nancy and Ana. Further, even 

without the eyewitness testimony, defendant’s red truck was seen on In-N-Out’s

surveillance entering and exiting the parking lot around the time of the shooting. In 

addition, the victim and defendant exchanged telephone calls and text messages 

addressing meeting up that day. On the way to the In-N-Out, Nancy stated that she saw 

the name Jboy 12th Street on the victim’s phone, which was the contact for defendant. 

Even though defendant’s gang moniker was introduced, it was only to establish that it 

was defendant on the phone and this evidence would have been admitted in some form 

even if the gang reference was omitted. The GPS and cellular telephone tower evidence 

established that defendant was in the area of the In-N-Out during the time of the shooting. 

Defendant’s own mother provided evidence that he was away from her house in Hesperia 

during the time of the shooting. Finally, defendant mentioned the In-N-Out and “David”

in his jailhouse conversation.

The admission of gang evidence in this case was not prejudicial and a retrial on all 

of the charges is not required.

11

11 We note that since we have ordered remand to the trial court for either retrial of 

the gang enhancement and gang murder special circumstance, or resentencing, the trial 

court shall apply all current sentencing laws at the time of resentencing. This shall 

include, but is not limited to, the discretion to strike an enhancement pursuant to section 

12022.53, subdivision (h).
38

DISPOSITION

We reverse defendant’s sentence. We additionally reverse the true findings on the 

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

(§ 186.22, subd. (b)(1)(C).) The People may elect to retry those allegations under the law 

as amended by AB 333. If the People elect not to retry those allegations, defendant shall 

be resentenced. In all other respects, the judgment is affirmed.

CERTIFIED FOR PARTIAL PUBLICATION

MILLER

J.

We concur:

RAMIREZ

P. J.

FIELDS

J.