Filed 12/15/22 P. v. Wherry 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 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.

GREGORY WHERRY,

Defendant and Appellant.

 B299585

 (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 General, 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 (Ponce), Gregory Wherry (defendant) was placed in a 

holding cell with a police informant. Defendant 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: 

whether 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 offenses and alleged gang 

enhancements when requested by a defendant.

I. BACKGROUND

A. Ponce’s Murder

On August 3, 2016, victim Ponce was working as a traffic 

technician at a construction site near the intersection of 7th and 

Brooks Avenues in Venice, California. On that day, he was 

wearing a short-sleeved shirt, which revealed tattoos associated 

with a Hispanic gang, the Avenues.

At approximately 4:05 p.m., Michael Hughes (Hughes) and 

George Hewitt (Hewitt) were driving back to their office when 

they stopped at the intersection of 7th and Brooks. As their 

vehicle began to enter the intersection, they saw Ponce run in 

front of their 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 

that covered the lower half of his face, basketball shorts, and 

latex gloves. The man doing the chasing appeared to be five feet, 

eight inches to six feet tall and weighed between 160 to 190 

pounds; based on the skin color of his legs, Hughes and Hewitt 

believed 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 Avenue. 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 following Ponce’s murder, LAPD officers

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 

Popesco, 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

the 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 Popesco’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. At approximately 4:00 p.m.

(roughly five minutes before the shooting), Byhre saw a nonCaucasian man pass along the private walkway which ran along 

the side of his home. The man, dressed in a black hoodie 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 hoodie, Byhre heard “unsettling” popping noises.

A little over three weeks after the shooting, police 

detectives spoke to witness James Gonzales (Gonzales). He said 
5

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 he 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 detectives 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. At 

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, Gonzales had 

been arrested for petty theft; he offered information about 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 scene and near where Ponce had been working most of the 

day.

Police detectives 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 an hour before the shooting. Defendant is wearing 

a blue hat, a white t-shirt, and carrying a backpack, and the 

backpack appears to have an item of clothing with a black 

drawstring, which could be a black hoodie, hanging from one of 

its straps. Detectives also obtained photographs from defendant’s 

social media accounts, which, among other things, showed 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 Interviews 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 that same day, following 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 know 
7

conversation between defendant and the informant was videoand audio-recorded, and it was also monitored “live” by the 

detectives from a nearby “listening post” in the police station.

During 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.” When asked about what 

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 

its location. Defendant said he did not think he left any DNA at 

the crime scene because he was wearing latex gloves. Defendant 

also stated he did not 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 defendant 

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 

was designed, at least in part, to provoke 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 detainee.
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 conducted 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 defendant repeatedly 

denied killing Ponce, he did say he grew up in the area where the 

shooting occurred and would cut through many yards in that 

neighborhood. Defendant also admitted to being in the 

neighborhood on the day of the shooting 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 related to the 

Perkins operation. The first was a motion 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 that sought 

the identity 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

Defendant 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.

The 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 witnesses, and his review 

of surveillance video and postings to defendant’s social media 

accounts.7 The trial court denied the motion to suppress, finding 

under the totality of the circumstances that the 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 owned 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, and 

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 is 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 unintelligible, interrogation responses—

[defendant] and the Perkins informant. It won’t be [defendant].”

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. The 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 unintelligible 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 

the 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 

transcripts from a hearing held on May 11, 2018, and an in 

camera proceeding conducted on July 20, 2018. Neither of these 
11

E. Defendant’s Conviction

At trial, the audio and video recordings 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 

witness: 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.

The jury found defendant guilty of first degree murder and 

found true the firearm allegations. Pursuant to the prosecution’s 

request, the trial court dismissed the gang allegation in the 

interest of justice after the jury was unable to reach a verdict. 

The court sentenced 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 

knowledge 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 the informant 

was not a witness (in any respect) to Ponce’s murder. The 

identity of the 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 search or seizure 
13

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 court’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 persuade someone of 

‘reasonable caution’ that the person to be arrested has committed 

a crime. [Citation.] ‘[P]robable cause is a fluid concept—turning 

on the assessment of probabilities in particular factual contexts.’

[Citation.] It is incapable of precise definition. [Citation.] ‘“The 

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. United 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 the collective knowledge doctrine, 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, supra, at 1555.) 
14

Arresting officers do not need to know the facts supporting 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 652, 656.)

Defendant does not contend the police, collectively, did not 

have sufficient information to constitute probable cause 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 facts 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 based 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 was 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-Federal 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. The Trial Court Did Not Abuse Its Discretion by 

Denying Discovery of the Informant’s Identity

A trial court must order the prosecution 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 defendant 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 facto 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 public 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 might 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 [the 

determination of whether an informant 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 [the evidentiary showing for disclosure 

concerns “the vantage point from which the informer viewed 
17

either the commission or the immediate antecedents 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 conversation 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 some 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 partial 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’”].)

Defendant nonetheless maintains the denial of his motion 

was still improper for a procedural reason. Specifically, he 

argues the 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. So 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 discovery 
18

is accordingly forfeited.

14

 (See, e.g., People v. Mungia (2008) 44 

Cal.4th 1101, 1140; People v. Saunders (1993) 5 Cal.4th 580, 589-

590.)

C. Section 1109 Does Not Require Reversal Because Most

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 against 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 that evidence is relevant to proof of the charged 

offenses. (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 opening 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 

symbols, and primary criminal activities (including narcotic sales 

and street robberies, which often escalate into assaults with 

deadly weapons and shootings). Two other LAPD police officers 

from the Pacific Division, which covers Venice, testified about the 

gang 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 

Shoreline 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

We need not decide whether section 1109 applies 

retroactively to defendant’s nonfinal 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 

purpose,” 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.) The gang evidence 

that may not have been relevant (e.g., evidence of predicate 

crimes committed by other members of the Venice Shoreline 

Crips) was not so inflammatory 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 evidence 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 in 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.