Filed 12/15/22 P. v. Wher ry CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE

,
Plaintiff and Respondent

,

v.

G REGORY WHERRY

,
Defendant and Appellant. B 299585

(Los Angeles County Super. Ct. No. SA095200 )

APPEAL from a judgment of the Superior Court of Los Angeles County, Lauren Weis Birnstein, Judge. Affirmed. Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney Gene ral, Susan Sullivan Pithey, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney, and Gary A. Lieberman, Deputy Attorney General, for Plaintiff and Respondent.2 Shortly after being arrested for the murder of Marvin Ponce (Pon ce)

, Gregory Wherry (defendant) was placed in a holding cell with a police informant

. D efendant made a number of incriminating statements

, and a recording of the jail cell
conversation was played for the jury at defendant’s criminal trial

. We are asked to decide whether the jailhouse recording should have been suppressed because there was no probable cause for
his arrest and whether the trial court abused its discretion in denying defendant’s motion seeking the identity of the informant

. We also consider an issue raised in supplemental briefing:

w hether reversal is required as a result of the recent addition of
section 1109 to the Penal Code

, 1 a statute that requires a trial
court to bifurcate trial of charged offense s and alleged gang
enha ncements when requested by a defendant

.

I. BACKGROUND
A. Ponce’s Murder On August 3 , 201 6
, victim Ponce was working as a traffic
technician at a construction site near the intersection of 7th and
Brooks Avenue s in Venice, California. On that day, he was wearing a short

- sleeved shirt, which revealed tattoos associated with a Hispanic gang , the Avenues

. A t approximately 4:05 p.m., Michael Hughes (Hughes) and George Hewitt (Hewitt) were driving back to their office w hen they stopped at the intersection of 7th and Brooks. As their vehicle began to enter the intersection, they saw Ponce run in
front of the ir car while being chased by a second man (later

1 All undesignated statutory references that follow are to the Penal Code.3

identified as defendant) wearing a black “ hoodie ” jacket , a mask

t hat covered the lower half of his face, basketball shorts

, and latex gloves

. T he man doing the chasing appeared to be five feet, eight inches to six feet tall and weigh ed between 160 to 190 pounds; b ased on the skin color of his legs, Hughes and Hewitt
be lieved he was Black

. 2
As Hughes and Hewitt watched, the masked man shot
Ponce once in the back from point

- blank range with a large,
chrome

- plated handgun. Ponce fell to the street in front of their vehicle, and Hughes and Hewitt saw the assailant shoot him a
second time. The shooter , after tucking the handgun into the waistband of his shorts, fled the scene by running west down the
600 block of Brooks Avenu e. Hughes backed his vehicle out of the intersection, drove around Ponce

, parked

, and called 911. Ruben Barreda (Barreda), Ponce ’s friend and co

- worker, heard the gunshots and ran to the intersection of 7th and Brooks
Avenues. Barreda found Ponce lying face down in the street with two gunshot wounds, one to his back and one to his head. After turning Ponce over and seeing he was dead, Barreda covered
Ponce’s face with his safety vest.

B. The Investigation Preceding Defendant’s Arrest
One of the first police officers to arrive at the crime scene, a gang enforcement officer for the Pacific Division of the Los Angeles Police Department (LAPD) , observed Ponce ’s gang tattoos and advised the investigating detectives that a gang

2 Defendant is Black and, at the time of his arrest, one of the detectives investigating Ponce’s murder estimated he is five feet, nine inches tall and documented his weight as 188 pounds

.4

motive might be behind the shooting

. When interviewed by detectives, Barreda, an Avenues gang member, stated there had
been “tension” between the construction workers and individuals who might have been local gang members. Immediately f

ollowing Ponce’s murder, LAPD o fficers interviewed Hughes and Hewitt and began canvasing the neighborhood in search of additional witnesses , as well as
surveillance video. One witness interviewed by police on the day of the shooting and by detectives the following day was Matthieu Pope sco, who, at approximately 3:55 p.m., observed a Black man , who appeared to be between five feet eight inches and five feet 10 inches tall, walking in the area of the shooting . The man was wearing a black hoodie and light

- colored basketball shorts, and
th e man’s face was covered by what looked like a bandana, which struck Popesco as odd since it was a “very hot summer day” in
2016. Using Pope s co’s statement, police located surveillance footage depicting an individual who looked similar to the person Popesco described walking in the area about ten minutes before the shooting

. Another witness interviewed by police on the day of the shooting was Dustin Byhre, a man who lived in the area near where the shooting occurred . A t a pproximately 4 :00 p.m. (roughly five minutes before the shooting) , Byhre saw a non

Caucasian man pass along the private walkway which ran along
the side of his home. The man

, dressed in a black hood ie and silver or gray shorts , was wearing a facemask which covered his
nose and mouth. Thirty to sixty seconds after he saw the man in
the ho odie, Byhre heard “unsettling” popping noises.
A little over t hree weeks after the shooting

, police detectives spoke to witness James Gonzales (Gonzales ) . He said5

he had seen defendant moments before the shooting at the end of
the private walkway running along the side of the building where Byhre lived

. 3 Elaborating, Gonzales said h e and his girlfriend Amber Lopez (Lopez) were riding their bicycles in the area and
Gonzales saw defendant standing at the entrance to the walkway wearing a mask, a zip

- up hoodie, and light

- colored basketball
shorts

. 4 Gonzales said he knew the man was defendant, notwithstanding the mask, because he had met and seen
defendant on several prior occasions and recognized his eyes

. The detectives showed Gonzales a photograph of defendant wearing a mask, and Gonzales confirmed the mask looked similar
to what he saw defendant wearing on the day of the shooting.
Gonzales also told the detectiv es that

, after seeing defendant

, he and Lopez rode their bicycles to the home of Brandon Washington (Washington).
The detectives subsequently interviewed Washington, one of defendant’s cousins and a member of the Venice Shoreline Crips

— a street gang that claimed territory near the shooting

. A t the time of the shooting , Washington lived around the corner
from the intersection where Ponce was shot. Washington said he

3 At the time of his interview with detectives, Gonzale s had been arrested for petty theft ; he offered information abou t the Ponce murder in exchange for leniency from law enforcement. After being interviewed, Gonzales was released from custody and was not prosecuted for the petty theft offense.

4 Detectives interviewed Lopez after arresting defendant

. She confirmed she saw a masked Black man in the area moments before Ponce was shot. She reluctantly identified defendant (who she had known for years) as the man she saw

.6

saw defendant on the day of the murder about a block from the
crime sce ne and near where Ponce had been working most of the day

. Police d etectives obtained surveillance video from two

stores near where the shooting occurred , a Rite

- Aid pharmacy and a Ralph’ s grocery store. The videos depict defendant in the

area just over a n hour before the shooting. D efendant is wearing a blue hat, a white t

- shirt, and carrying a backpack , and the backpack appears to have a n item of clothing with a black drawstring, which could be a black ho odie

, hanging from one of
its strap s

. D etectives also obtained photographs from defendant’s
social media accounts , which, among other things, show ed him wearing a mask and a black hoodie. Based on the photographs from defendant’s social media accounts, police determined
defendant was a member of the Venice Shoreline Crips

.

C. Defendant’s Jail Cell Conversation with the Informant and Interview s with Police
In March 2017, seven months after Ponce’s murder, the investigating detectives directed other officers to arrest
defendant

. The arrest was not made pursuant to an arrest

warrant. Later t hat same day, f ollowing the arrest, the
detectives conducted a “ Perkins operation

, ” 5 in which defendant was placed in a holding cell with a paid police informant

. 6 The

5 Illinois v. Perkins (1990) 496 U.S. 292 ( Perkins ).

6 In advance of defendant’s arrest, police prepared for the Perkins operation by taking the following steps: identifying a suitable informant (in this case , an individual who had previously been incarcerated ), confirming the informant did not know7

conversation between d efendant and the informant was video

and audio

- recorded, and it was also monitored “live” by the
detectives from a nearby “listening post” in the police station

. D uring his jail cell conversation with the Perkins
informant

, defendant made a number of incriminating

statements. Defendant admitted he was a member of the Venice Shoreline Crips. Without identifying Ponce by name, defendant told the agent he shot Ponce “close up.” W hen asked about w hat happened to the pistol he used in the shooting, defendant said the

gun was supposed to be buried and he told only one person about
it s location

. D efendant said he did not think he left any DNA at the crime scene because he was wearing latex gloves

. Defendant
also stated he did no t return to the crime scene after the police
arrived

, he burned the clothes he was wearing

, and he threw his
shoes in the trash

. Police detectives themselves also interviewed d efendant
twice on the day of his arrest : once before he was placed in the
cell with the informant and a second time while the Perkins operation was underway . The detectives regarded each of their
interviews with defendant as a “stimulation”

— an event which

wa s designed, at least in part, to provo ke conversation between
defendant and the informant about the crime

. Both of these
interviews were audio

- recorded; the second was also recorded on
video.

defendant, briefing the informant on the basic facts of the case, and providing him with authenticating documentation (e.g., a wristband with a booking number and a “pink slip” booking sheet) that would make the informant appear to defendant to be a bona fide detain ee.8 During the first interview , which took place at the police station where defendant was brought immediately following his

arrest
, the detectives advised defendant he was being charged
with Ponce’s murder. In response, defendant demanded to know how his name became connected with the murder. During the
second interview

, which was conduct ed at another police station (the one where the Perkins operation took place ), detectives
revealed a witness had seen him in the area of the shooting moments before it occurred. Although d efendant repeatedly denied killing Ponce

, he did say he grew up in the area where the shooting occur r ed and would cut through many yards in that neighborhood. Defendant also admitted to being in the neighborhood on the day of the s hooting and he said he shopped

at Ralph’ s

. Defendant also allowed it was “possible” he stopped by his cousin Washington’s house sometime on the day of the shooting.

D. Pre

- Trial Proceedings The Los Angeles County District Attorney charged defendant with murdering Ponce. The information against defendant included firearm and gang allegations

. (§§ 12022.53, subds. (b)

- (d), 186.22, subd. (b).) Prior to trial, defendant filed two motions relat ed to the
Perkins operation. The first was a m otion pursuant to section
1538.5 that sought suppression of all evidence collected following
defendant’s arrest

— most significantly, the recordings obtained
via the Perkins operation

. The second was a motion t hat sought
the identit y of the Perkins informant

. (The resolution of these motions are the principal grounds for reversal urged on appeal.)9 1. Defendant’s motion to suppress
D efendant argued his arrest was made without probable

cause. As defendant saw it , the only evidence connecting him to
the crime at the time of his arrest was “unreliable, multiple hearsay.” The prosecution opposed the motion

, relying on the statements by Popesco, Byhre, Hewitt, Hughes, Gonzales

, and Washington, as well as the surveillance video footage and photos obtained from defendant’s social media accounts.
T he trial court held an evidentiary hearing on the motion to

suppress. After stipulating defendant was not detained pursuant to an arrest warrant, the only witness to testify was Tyler Adams (Adams), one of the lead detectives on the investigation. Adams
testified he ordered defendant’s arrest based on Ponce’s gang affiliation, his consultation with gang officers familiar with the Venice Shoreline Crips, his interview of witness es , and his review
of surve ill ance video a nd postings to defendant’s social media

accounts. 7 T he trial court denied the motion to suppress , finding
unde r the totality of the circumstances t hat t he arrest was premised on probable cause. The court relied in particular on the
evidence establishing that defendant was near the crime scene shortly before the shooting and that defendant own ed and wore masks.

7 Adams acknowledged he provided “very little” information developed during the murder investigation to officers tasked with finding and arresting defendant. Adams testified : “They knew he was wanted for murder. They had a description, rap sheet, an d they would have had some of the basic information” used to obtain a search warrant for defendant’s person and certain vehicles.10 2

. Defendant’s motion to identify the Perkins informant Defendant premised his motion to obtain the identity of the
Perkins informant on the quality of the audio

- recording . As defendant argued it, “ much of what i s heard and attributed to [defendant], is either unintelligible or it is of such poor resonance as to be subject to interpretation.

. . . There are only two people who can clarify these unintelligi ble, interrogation responses

— [defendant] and the Perkins informant. It won’t be [def endant].”
The prosecution opposed the motion. Discovery of the
Perkins informant ’s name was not warranted because defendant
had not and could not show that the informant would provide exonerating evidence or that the nondisclosure of the informant’s

name would deprive defendant of a fair trial . T he Perkins
informant was not a percipient witness who saw the crime and the prosecution argued defendant had the recordings and could provide his version of any unin telligible portions. 8
The trial court denied the motion to discover the identity of
the informant . The appellate record before us does not include a reporter’s transcript of a hearing on defendant’s motion

. 9

8 At the hearing on the motion to suppress, the trial court advised defendant he would be able to review the transcript of th e Perkins operation and submit proposed corrections. In October 2018, three months after the hearing on the motion to suppress, defendant submitted a list of corrections to the transcript.

9 We granted defendant’s motion to augment the record with
transc ripts from a hearing held on May 11, 2018, and an in camera proceeding conducted on July 20, 2018. Neither of these11 E. Defendant’s Conviction At trial, the audio and video recording s of the Perkins operation, as well as the recordings of the police interviews of
defendant conducted before and during the Perkins operation, were played for the jury with accompanying testimony by a police
detective

. Defendant did not testify and presented only one
witn ess : his attorney’s investigator, who testified that mirrored sunglasses, wrap

- around masks, and hooded sweatshirts, similar to what witnesses described the shooter wearing

, were readily
available for purchase by members of the public.
T he jury found defendant guilty of first degree murder and found true the firearm allegations. Pursuant to the prosecution’s
request, t he trial court dismissed the gang allegation in the interest of justice after the jury was unable to reach a verdict.
The court sente nced defendant to 50 years to life in prison

.

II. DISCUSSION The three arguments made by defendant for reversal lack
merit. The trial court did not err in finding defendant’s arrest supported by probable cause. When considering the collective knowledg e of the investigators

, which is the appropriate analytical framework, the witness statements ( including Gonzales’s statement that he saw defendant steps from the
murder scene seconds before the murder in attire worn by the
shooter )

, surveillance video footage , and social media posts by

supplemental transcripts includes any substantive discussion of defendant’s motion to discover the identity of the Perkins informant

.12

defendant established the requisite fair probability that a crime
was committed and that defendant committed it. The trial court
also did not err when it denied defendant’s motion for the identity
of the Perkins informant

. The Perkins operation was recorded,
the trial court gave the defense an opportunity to make corrections to the transcript of that recording, and th e informant was not a witness (in any respect) to Ponce’s murder. T he identity of th e informant was therefore immaterial. Finally, as to the issue raised in supplemental briefing concerning the impact of recently enacted section 1109

, we are unpersuaded reversal is required even assuming the statute applies retroactively to
defendant

. Most of the gang evidence introduced at trial would
have been admissible as motive evidence in the trial of the charged offense even in the absence of the gang enhancement allegation

, and the non

- motive

- related gang evidence (predicate crimes by the Venice Shoreline Crips and some testimony about the gang generally ) was so limited and relatively insignificant as to be nonprejudicial

.

A. The Trial Court Did Not Err in Denying the Motion to Suppress “[I ] n ruling on a motion under section 1538.5 the superior court sits as a finder of fact with the power to judge credibility, resolve conflicts, weigh evidence, and draw inferences, and hence that on review of its ruling by appeal or writ all presumptions are
drawn in favor of the factual determinations of the superior court and the appellate court must uphold the superior court’ s express or implied findings if they are supported by substantial
evidence. ” ( People v. Laiwa (1983) 34 Cal.3d 711, 718 .) “ In determining whether, on the facts so found, the se arch or seizure13

was reasonable under the Fourth Amendment, we exercise our independent judgment. ” ( People v. Glaser (1995) 11 Cal.4th 354, 362.) “ On appeal we consider the correctness of the trial court’ s ruling itself

, not the correctness of the trial c ourt’ s reasons for reaching its decision. ” ( People v. Letner and Tobin (2010) 50 Cal.4th 99, 145.) The Fourth Amendment requires that a warrantless arrest be supported by probable cause. ( People v. Celis (2004) 33 Cal.4th 667, 673 ( Celis ) .) “ Probable cause exists when the facts known to the arresting officer would persua de someone of
‘reasonable cauti on’ that the person to be arrested has committed
a crime. [Citation.] ‘ [P]robable cause is a fluid concept

— turning on the assessment of probabilities i n particular factual contexts.’ [Citation.] It is incapable of precise definition. [Citation.] ‘ “ Th e substance of all the definitions of probable cause is a reasonable ground for belief of guilt, ” ’ and that belief must be ‘ particularized with respect to the person to be

. . . seized. ’ [Citation.]” ( Ibid

. ; see also Kaley v. U

nited States (2014) 571 U.S. 320, 338 [“ Probable cause, we have often told litigants, is not a high bar: It requires only the ‘ kind of “ fair probability ” on which “ reasonable and prudent [people,] not legal technicians, act ” ’”].)
Under th e collective knowledge doctri ne, police officers may
make arrests based on investigation undertaken by other investigators

. ( Remers v. Superior Court (1970) 2 Cal.3d 659,
666

- 667 ; accord, People v. Ramirez (1997) 59 Cal.App.4th 1548,
1553 ( Ramirez ) .) “[W]hen police officers work together to build ‘collective knowledge’ of probable cause, the important question is not what each officer knew about probable cause, but how valid and reasonable the probable cause was that developed in the
officers’ collective knowledge.” ( Ramirez

, sup ra , at 1555.)14

Arresting officers do not need to know the facts s upporting their fellow officers’ probable cause determination, but the underlying determination must supply a basis for arrest. ( Id . at 1553, 1555

- 1556.) A court will “ look [ ] to the ‘ total police activity ’ to test the constitutional reasonableness of the conduct in question. ” ( People
v. Alcorn (1993) 15 Cal.App.4th 65 2
, 656.) Defendant does not contend the police, collectively, did not have sufficient information to constitute probable ca use to arrest him. And with good reason, for witnesses interviewed by the police and the surveillance video footage placed defendant near the scene of the crime shortly before Ponce was shot and revealed a person wearing the attire and mask (unusual back in 2016) defendant was seen wearing was Ponce’s murderer. Instead, defendant’s sole contention is that probable cause for the arrest was lacking because the incriminating evidence the police had developed at the time of defendant’s arrest was not “in the possession of the officer(s) who actually arrested [defendant] at the time [defendant] was arrested.” 10 That, however, misunderstands applicable law. The investigating detectives were not required to brief the actual arresting officers on all of
the fact s developed in the investigation to permit them to arrest defendant. So long as the police collectively had evidence establishing the requisite fair probability that defendant was Ponce’s murderer at the time of defendant’s arrest (they did), and so long as a request to effectuate the arrest came from a member of the police force in a position to know the requisite probable

10 Defendant does not argue the Perkins recording should have been excluded on Miranda v. Arizona (1966) 384 U.S. 436 grounds.15

cause existed (it did), that is sufficient. 11 (See, e.g., Ramirez

, supra , 59 Cal.App.4th at 1555 [“[A]ppellant’s contention the arresting officer must know the precise basis of his fellow officer’s conclusion probable cause existed at the time of arrest does not find any support from California authorities.

. . . [¶] In all the
cases we have researched in which arrests were made ba sed on the collective knowledge of police officers, no probable cause was held insufficient because the officer who ultimately executed the arrests did not have specific knowledge of the nature and extent of his fellow officers’ conclusion probable cause w as present”] ; cf. Lockridge v. Superior Court (1969) 275 Cal.App.2d 612, 619 [ordering suppression where, unlike here, “the People have failed to prove ‘not only that the collective knowledge of the investigating authorities justified the arrest, but that such knowledge was funneled to the arresting officer either by imparting it to him or, more simply, by the giving of an order or request to make the arrest by someone who, in turn, was possessed of such collective knowledge’”] .)

11 At oral argument, counsel for defendant emphasized Adams testified at the suppression hearing that he briefed a joint LAPD

- Federa l Bureau of Investigation Fugitive Task Force and asserted the record does not reveal who precisely effected the arrest. Insofar as defendant relies on ambiguity in the record on this point, and insofar as the ambiguity is even relevant, the ambiguity is attributable to the absence of any argument or objection on this ground in the trial court. Defendant’s trial attorney contested probable cause for the arrest solely because there was no physical evidence connecting defendant with Ponce’s murder

—

just the arguably tainted testimony of Gonzales.16 B. T he Trial Court Did Not Abuse Its Discretion by Denying Discover

y of the Informant’s Identity
A trial court must order the prosec ution to disclose the identity of a person working confidentially on behalf of the police
if the person is shown to be a material witness

. ( People v. Lawley (2002) 27 Cal.4th 102, 159

- 160.) “ An informant is a material witness if there appears, from the evidence presented, a reasonable possibility that he or she could give evidence on the issue of guilt that might exonerate the defendant. [Citation. ]
The defendan t bears the burden of adducing ‘ “some evidence” ’ on this score. [Citations.]” ( Ibid. )

“ Where the evidence indicates [an] informer was an actual participant in the crime alleged or was a nonparticipating eyewitness to that offense, ipso fa cto it is held he would be a material witness on the issue of guilt and nondisclosure will deprive the defendant of a fair trial. The proximity in time and space of the informer’ s relationship to the alleged crime readily tips the scales against the publi c interest in protecting the flow of information to law enforcement personnel. However, when the informer is shown to have been neither a participant in nor a nonparticipant eyewitness to the charged offense, the possibility he could give evidence which m ight exonerate the defendant is even more speculative and, hence, may become an unreasonable possibility. ” ( People v. Lee (1985) 164 Cal.App.3d 830, 835

- 836 ; accord, People v. Hardeman (1982) 137 Cal.App.3d 823, 828 [t he
determination of whether an inform ant is a material witness “is predicated upon the relative proximity of the informant to the offense charged” ] ; Williams v. Superior Court (1974) 38 Cal.App.3d 412, 423 [t he evidentiary showing for disclosure
concerns “ the vantage point from which the informer viewed17

either the commission or the immediate a ntecedents of the alleged crime ” ]

. ) Here, defendant did not produce some evidence showing the
Perkins agent could exonerate him. The informant did not know defendant prior to their jail cell conve rs ation and was in no way
involved with Ponce’s murder. The Perkins operation itself was recorded, both via audio and video, and defendant given an opportunity to make corrections to a transcript of the recording. 12 Under the circumstances (and without som e proffer from the defense about what specific testimony from the informant it hoped to elicit), there was no cause to compel discovery of the informant’s identity. ( See People v. Wilks (1978) 21 Cal.3d 460

, 469 [ informant , whose “ sole relationship to the case was to provide part ial justification for appellant’ s detention ,” was not a material witness because ‘ “he simply point [ed] the finger of suspicion toward a person who has violated the law ’”] .)
D efendant nonetheless maintains the denial of his motion

was still improper for a procedural reason . Specifically, he

argues t he trial court failed to comply with Evidence Code section 1042, subdivision (d)

, by not holding an “open adversary hearing”
on his motion to discover the identity of the Perkins agent. S o far as the record reveals, however, defendant did not object in the trial court to the absence of a hearing on the motion. 13 The point

12 The trial court also correctly instructed the jury that the recording, not the transcript, was the evidence it should consider and the jury must decide for itself what it saw and heard on the recording in arriving at a verdict.

13 In his motion for a new trial, for instance, defendant argued he was prejudiced by the “[d]enial of defense discovery18

is accordingly forfeited

. 14 ( See, e.g., People v. Mungia (2008) 44 Cal.4th 1101, 114 0; People v. Sa u nders (1993) 5 Cal.4th 580 , 589

- 5 90 .)

C. Section 1109 Does Not Require Reversal Because M ost of the Gang Evidence Was Relevant to the Murder Charge and There Was Strong Evidence of Guilt While defendant’s appeal was pending, the Legislature
enacted Assembly Bill No. 333 (2021

- 2022 Reg. Sess.), which
added section 1109 to the Penal Code. That section requires a trial court , upon a defendant’s request, to order that the crimes charged again st him be tried separately from an alleged gang
enhancement. (§ 1109, subd. (a).) Section 1109 does not

, however, preclude introduction of gang evidence in a bifurcated proceeding where th at e vidence is relevant to proof of the charged
offense s. ( People v. Ramos (2022) 77 Cal.App.5th 1116, 1132 [“ nothing in Assembly Bill 333 limits the introduction of gang evidence in a bifurcated proceeding where the gang evidence is relevant to the underlying charges ”].) At defendant’s trial, Officer Robert Bechtol, a gang enforcement officer with LAPD’s Pacific Division, testified as an

motions, specifically for the identity of the government agent placed in

. . . defendant’s cell to interrogate him,” but he made no mention of any failure by the court to hold an “open adversary hearing” on his discovery motion.

14 Even if defendant had raised an objection in the trial court, his claim would still be forfeited because he did not raise the issue in his openi ng brief

. ( People v. Ng (2022) 13 Cal.5th 448, 568 , fn. 13 .)19

expert on criminal street gangs. He described for the jury the Venice Shoreline Crips’ claimed territory, size, history, signs and symbo ls, and primary criminal activities (including n arcotic sales and street robberies, which often escalate into assaults with deadly weapons and shootings). T wo other LAPD police officers from the Pacific Division, which covers Venice, testified about the

g ang predicate crimes relied on by the prosecution: an assault by means likely to produce great bodily injury (§ 245 , subd. (a)(4) )
and a conviction for possessing a loaded firearm (§ 25850 )

. Officer Bechtol opined defendant was a member of the Venice
Shor eline Crips and he further opined, based on a hypothetical question, that a crime committed under the circumstances shown by the evidence in this case would be gang

- related. 15
W e need not decide whether section 1109 applies retroactively to defendant’s no nfinal judgment because most of
the gang evidence at issue

— defendant’s membership in the Venice Shoreline Crips and how a brazen

, daylight killing of a
member from a rival gang would benefit the Venice Shoreline Crips

— was relevant to the underlying murder charge. (See, e.g., People v. Hernandez (2004) 33 Cal.4th 1040, 1049

- 1050; see also

15 After the close of evidence, consistent with CALCRIM No. 1403
, the trial court instructed the jury that it (1) “may consider evidence of gang activity only for the limited purpose of deciding whether” defendant “acted with the intent, purpose, and knowledge that are required to prove the gang

- related crimes and allegations charged” or “had a motive to commit the crimes charged”; and (2) “may not consider this evidence for any other

pur pose,” such as “conclud[ing] from this evidence that [defendant ] is a person of bad character or that he has a disposition to commit crime.”20

People v. Montes (2014) 58 Cal.4th 809, 859 .) T he gang evidence
that may not have been relevant ( e.g., evidence of predicate crimes committed by oth er members of the Venice Shoreline Crips) was not so in flammatory as to sway the jury, which was presented with compelling evidence of defendant’s guilt independent of any gang evidence plus an appropriate instruction limiting how it could use the gang evi dence that was presented

. There is accordingly no basis for reversal even if section 1109 were to apply retroactively. ( People v. Tran ( 2022) 13 Cal.5th 1169, 1208

- 1209 [unnecessary to decide whether section 1109 applied retroactively because any error i n failing to bifurcate trial was harmless in light of the strength of the evidence against the defendant] ; People v. E.H . (2022) 75 Cal.App.5th 467, 480.)21 DISPOSITION
The judgment is affirmed

.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BAKER, J.

We concur:

RUBIN

, P. J.

MOOR , J.