THE PEOPLE, Plaintiff and Respondent, v. ANNABELLE PEREZ, Defendant and Appellant.
F082400
(Super. Ct. No. 19CR-06497D)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Filed 2/2/23
Carol K. Ash and Steven K. Slocum, Judges.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from a judgment of the Superior Court of Merced County. Carol K. Ash and Steven K. Slocum, Judges.
Eric Weaver, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and John Merritt, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury found Annabelle Perez (defendant) guilty of being an accessory after the fact to a murder committed by a codefendant. The killing was alleged to be gang related for purposes of
In her initial briefing, defendant claimed her motion to bifurcate the gang enhancement allegations in her joint trial with two codefendants was erroneously denied. In the alternative, she claimed the trial court abused its discretion by admitting certain gang evidence pertaining to the accused killer. In supplemental briefing filed after the Legislature passed Assembly Bill No. 333 (2021–2022 Reg. Sess.) (Assembly Bill 333), defendant relies on changes to
The People concede Assembly Bill 333’s changes to
FACTUAL AND PROCEDURAL BACKGROUND
July 14, 2019
On July 14, 2019, at 11:31 p.m., a 911 caller reported hearing gunshots near Merced Avenue in the City of Merced. The caller lived on Rose Avenue, which intersects with Merced Avenue, but his residence was approximately 15 houses away from the intersection and he was unable to provide further information.
A second 911 caller, F.G., requested police assistance at the 1300 block of Merced Avenue. F.G. had also heard gunshots and could see “somebody laying down” in the street. When asked if there were any vehicles in the area, he told the dispatcher, “There’s a white ca—it was a—it was a white Cadillac. It’s—I don’t know if it’s—if this is the car.” A few questions later, the dispatcher asked, “Is the white Cadillac still parked there?” F.G. replied, “No, he took off. He took off. He’s long gone.” The next question
Police officers soon discovered the dead body of a 48-year-old man, Juan Ramirez (the victim). He was found lying on his stomach in the eastbound lane of Merced Avenue, near the address F.G. had provided to the dispatcher. An autopsy confirmed the victim sustained six bullet wounds, though one was characterized as a “graze wound.” There was a front wound to the left shoulder and multiple posterior wounds, including one to the back of the head.
Investigators found 11 expended .40-caliber bullet casings and a bullet hole in a vehicle parked approximately 40 feet northwest of the victim’s body, all in the vicinity of the 1400 block of Merced Avenue. It was determined the victim resided on the 1600 block of Merced Avenue, a considerable distance to the east of where he was evidently shot and killed. The police found no blood trails or droplets between the two locations.
July 15, 2019
In the early hours of July 15, 2019, a homicide detective interviewed F.G. and his friend, A.D. Another detective located video evidence captured by security cameras at the west end of Merced Avenue and along the northern stretch of Motel Drive. Later in the day, the police spoke to the victim’s neighbors and executed a search warrant at the victim’s home.
F.G.’s Recorded Statements
F.G. had been visiting A.D. on the night of the shooting. A.D. lived on Merced Avenue, approximately one block east of where the victim’s body was found.
Late that evening, F.G. and A.D. had a strange encounter with an unidentified woman. F.G. described her as a “really skinny” Hispanic female with black hair and a tattoo on her left arm. She was approximately 19 or 20 years old, was sweating profusely, and appeared to be “on drugs.” The woman had attempted to enter the house, and she seemed startled and/or frightened when F.G. opened the front door. She claimed
F.G. exited the house and saw the woman behaving in a suspicious manner outside of another residence. A.D. called the police, and officers came out to the neighborhood to investigate. The police departed after failing to locate the woman. Approximately 10 to 20 minutes later, F.G. and A.D. heard gunshots.
F.G. recalled hearing a man “arguing with somebody” immediately prior to the shooting. He and A.D. hurried outside after hearing the shots, looked to their right (west), and saw a white car in the westbound lane of Merced Avenue. Although F.G. had said it was a Cadillac during the 911 call, he told the detective it was a two-door Chrysler. After further questioning about the make, model, and year, F.G. said, “I had told the cops 2015. But [A.D.] was like, ‘No that had to be like, older—2005.[’] And he pulled up a picture and it looked exactly the same as the car.”
When F.G. first saw the white vehicle, its brake lights were illuminated. The car remained stationary for approximately five seconds before slowly proceeding to a stop sign at the intersection of Merced Avenue and Motel Drive, then it “took off fast.”
A.D.’s Recorded Statements
A.D.’s statements were generally consistent with those of F.G. regarding the events preceding the shooting. After hearing gunfire, A.D. and some of his relatives exited the house behind F.G. to see what had happened. Similar to F.G.’s account, A.D. remembered running outside, looking to his right, and seeing the brake lights of a car in the westbound lane of Merced Avenue. But whereas F.G. had indicated the vehicle was stopped close to the body, A.D. said the car was approximately “two houses down” from it, meaning west of the body, “[r]ight before Rose Avenue.”
The details provided by A.D. further differed from F.G.’s account in two significant respects. First, A.D. was certain the white car had turned onto Rose Avenue,
The detective asked A.D. if he had shown F.G. “a picture of a car” (presumably referring to the one F.G. described as looking “exactly the same” as the suspect vehicle), and A.D. responded affirmatively. He then showed the detective the results of a Google images search he had performed on his phone for the term “2006 cadillac cts.” All the images were of four-door vehicles. The detective informed A.D. that F.G. had said he thought it was a Chrysler. A.D. replied, “He didn’t—he didn’t really see. He was more payin’ attention to the [dead] body.”
Security Camera Footage
A resident of the 1200 block of Merced Avenue had a video surveillance system with a camera mounted above his garage. The home was located between Rose Avenue and Almond Avenue (Rose to the east and Almond to the west), and the camera was pointed toward Merced Avenue. The grainy, low-resolution video feed showed cars passing by the house in the eastbound and westbound lanes of Merced Avenue. To a lesser extent, the feed also showed the headlights of vehicles traveling northwest and southeast on Motel Drive.
In reviewing the Merced Avenue video, the police saw a white- or light-colored two-door vehicle entering the neighborhood in the eastbound lane at approximately 11:22 p.m. A second white- or light-colored vehicle, which appeared to have four doors, passed by the camera in the eastbound lane at approximately 11:26 p.m. Next, at approximately 11:29 p.m., a car resembling the previously seen two-door vehicle passed by the camera in the westbound lane.1
Security cameras at nearby businesses captured video of a white two-door vehicle traveling northwest on Motel Drive, toward State Highway 140 (also known as Yosemite Parkway), at approximately 11:30 p.m. Earlier footage from those cameras showed a white two-door vehicle traveling southeast on Motel Drive, toward Merced Avenue, between approximately 11:21 and 11:22 p.m.
Collectively, the videos appeared to show that a white two-door vehicle had entered the victim’s neighborhood from Motel Drive at 11:22 p.m. and departed from the neighborhood via Motel Drive between 11:29 and 11:30 p.m.
Neighbors’ Statements
Witness M.A. was contacted by the police at approximately 7:00 a.m. the day after the shooting. M.A.’s bedroom faced the victim’s backyard, and she recalled waking up sometime “after midnight” to the sound of voices from that area. The voices were described “as being two males and one female.” One of the males spoke in English, but the other two conversed in Spanish, and the female had seemed “kind of mad.” M.A. did not report hearing any gunshots. When asked about vehicles, M.A. claimed to have previously seen a white car parked outside of the victim’s home.
Another neighbor, D.M., told the police she had seen the victim on July 14th “drinking beers with a light-skinned male and two female friends that were at his house.” D.M. also claimed to have heard the victim “breaking bottles in the front yard” at approximately 10:00 p.m., i.e., 90 minutes prior to the shooting. A third neighbor, A.V., reported seeing the victim sometime between 5:00 p.m. and 7:00 p.m. on the day of the
Search of the Victim’s Home
Outside the victim’s residence, along a walkway leading to the backyard, the police found the remnants of a food order from In-N-Out Burger. These items consisted of an upside-down French fry tray or serving boat, scattered fries, and a ketchup packet. Several aluminum cans were strewn about the same area.
Also found outside was a laminated key tag, such as might be used by a car dealership or body shop to keep track of multiple sets of keys. The preprinted strip of paper had blank spaces next to the words “Year,” “Make,” “Model,” “Body” and “Color.” Someone had scrawled “CADDY” in handwritten letters across the entire tag.
Inside the victim’s home the police found photographs of a man named Stuart Nagata, a piece of mail addressed to Nagata, and another document with his name on it. There was a receipt from a Big 5 sporting goods store dated July 1, 2019, for the purchase of a flashlight, golf balls, two pairs of shoes, and a $19 charge listed as “STD AMMO BCKGRND CK FEE.” A separate document indicated the same store had initiated a background check for defendant’s sister, Karla Mariela Perez (Karla), within minutes of the transaction shown on the receipt.
Other items found inside the residence included a packaged component of a medical neck brace. According to preliminary hearing testimony, there was also an eviction notice indicating the victim was being evicted.
By July 16, 2019, Nagata had become a suspect in the case. He was believed to own a 1999 Cadillac Eldorado, and the police had determined the license plate number. It was a two-door car with white paint. While conducting a “grid search” in the nearby town of Planada, the police located the vehicle at the residence of a man named Felix.
Undercover law enforcement agents surveilled Felix’s residence for the remainder of the day. A maroon- or burgundy-colored Buick eventually pulled up to the house. A man later identified as Martin Olvera was seen exiting the Buick and, a few minutes later, relocating to the driver’s seat of the Cadillac.
At approximately 8:45 p.m., Olvera departed from Felix’s residence in the Cadillac. The Buick, which was then occupied by defendant and an unidentified female driver, followed behind Olvera as he proceeded to State Highway 140. The undercover agents tailed both vehicles for approximately 15 minutes before police officers in marked cars effectuated a stop in the City of Merced.
Driving due west on State Highway 140 is the most direct path between where the Cadillac and Buick started and ended their journey. However, the vehicles took what the People describe as a “serpentine” route by detouring north on Plainsburg Road, west on Bear Creek Drive, and south on Arboleda Road. The cars resumed westbound travel on State Highway 140 at roughly the midway point between Planada and Merced.
Defendant and Olvera were arrested during the traffic stop. Felix was arrested and interrogated the same evening. Over the course of two interviews (the second one was conducted two weeks later), Felix told multiple conflicting stories about Nagata and Karla arriving at his Planada residence sometime between the afternoon of July 14, 2019, and the afternoon of July 15, 2019. In one version of events, they had told Felix they were at a casino on the evening of July 14, i.e., the night of the shooting.
Further Investigation
In late July, detectives obtained store surveillance video of the transaction documented on the Big 5 receipt found in the victim’s home. The video showed Nagata, Karla, and a man named Fernando Luna shopping together on July 1, 2019. Portions of the video showed Nagata wearing a neck brace and being physically affectionate toward Karla. It also appeared to show him paying for the items listed on the receipt.
On July 29, 2019, Karla’s then 17-year-old daughter, D.P., was hospitalized for alcohol intoxication and a stab wound sustained during an incident unrelated to this case. As the police had not yet located Nagata or Karla, detectives went to the hospital to question D.P. about the victim’s death. D.P. was still intoxicated at the time of the interview, which lasted approximately three hours.
D.P. claimed to have killed the victim herself while under the influence of alcohol, cocaine, and marijuana. She referred to the victim by his first name, describing him as “a Mexican man that my mom was renting a room from.” D.P. then added, “Her and her boyfriend were living there.” She also remarked that her mother’s boyfriend “wears a neck brace.” Later in the interview, D.P. alleged that her mother, her aunt (defendant), and someone named “Martin” had all witnessed the victim’s death.
Although D.P. claimed to have shot the victim, her story conflicted with some of the physical evidence. The major discrepancy was in her account of the victim being shot “in the face” while inside his home and then going “into the road asking for help.” But she did accurately describe the interior and exterior of the victim’s residence, and she knew the shooting “happened, like, around 11:30 [p.m.] almost 11:31.”
On July 30, 2019, detectives obtained security camera footage from Casino Merced, located at 1459 Martin Luther King Jr. Way in the City of Merced. One video
On July 31, 2019, detectives obtained surveillance video from a business located on West 15th Street, a few blocks east of Casino Merced. It showed a car resembling Nagata’s Cadillac approaching the intersection of 15th and G Streets at approximately 11:21 p.m. on the night of the shooting. After pausing for traffic, the car turned left and proceeded northbound on G Street.
In early August, the police obtained surveillance video from an In-N-Out Burger located across the street from Casino Merced. It showed Nagata’s Cadillac was in the drive-thru lane on the night of the shooting from approximately 11:11 p.m. to 11:18 p.m. The license plate was clearly visible in the footage.
The police eventually received information that Nagata was in Tulare County. On August 10, 2019, Nagata and Karla were arrested together in the City of Lindsay.
Charges and Trial Proceedings
Nagata, Karla, Olvera, and defendant were jointly charged by information for their alleged involvement in the victim’s death. Nagata and Karla were accused of premeditated murder (
In January 2020, Nagata filed a motion under
A jury trial commenced on February 25, 2020. On March 19, 2020, the trial court declared a mistrial due to the COVID-19 pandemic. Retrial began in September 2020 and continued into the following month. Renewed motions to bifurcate the gang enhancement allegations were denied. Nagata, Olvera, and defendant were jointly tried before a single jury.
Trial Evidence re: Counts 1 & 2
A neighbor testified to seeing the victim outside his residence at approximately 10:30 p.m. on the night of the shooting. The victim was “throwing beer bottles or cans around” and yelling to someone inside the house “that he just wanted to go for a ride.” He seemed “really upset.” The witness did not know to whom he was speaking, but on prior occasions she had seen “two ladies and a gentleman that would usually let themselves into the home.” The man wore a neck brace, and the trio had come and gone in a white Cadillac that “looked like an Eldorado.”
Video evidence clearly showed Nagata, Karla, defendant, and the victim departing from Casino Merced in Nagata’s Cadillac on the night of the shooting. The casino footage was edited to focus on the activity between 11:06 p.m. and 11:11 p.m. The evidence did not reveal when the group arrived at the casino, but a detective testified to Karla’s cell phone data showing her phone was “in the area of Casino Merced” from
The In-N-Out Burger videos showed the Cadillac in the drive-thru lane from approximately 11:11 p.m. to 11:18 p.m. According to the People’s theory, the Cadillac then drove on West 15th Street, passing a security camera at 11:21 p.m. as it approached the G Street intersection. It proceeded northbound on G, then east on 16th Street, and eventually made its way to Motel Drive. Between 11:21 and 11:22 p.m., the Cadillac traveled southeast on Motel Drive and entered the victim’s neighborhood in the eastbound lane of Merced Avenue.
The People’s trial exhibit No. 114 was a video consisting of seven minutes and 40 seconds of footage captured by the security camera on the 1200 block of Merced Avenue. It depicted the activity there from approximately 11:22 p.m. until just prior to 11:30 p.m. (See fn. 1, ante.) The exhibit was a recording of the recording. The detective who authenticated it explained there was a problem converting the video files from the homeowner’s security system to a viewable format. He improvised a solution: “I … used my department-issued iPod with the Axon Video Capture to actually record the monitor while I played the video [on the homeowner’s equipment] so I could actually capture what was on screen.” The detective stopped recording when the video clock hit 23:28:47, which he explained was approximately one minute behind the actual time.4
Based on the Merced Avenue video and the In-N-Out Burger items found outside the victim’s residence, the People argued Nagata, Karla, defendant, and the victim arrived back at the victim’s home at approximately 11:22 p.m. The People theorized the victim had said or done something at the casino that made Nagata feel disrespected, which led to an argument at the house. Nagata was alleged to have shot the victim to death, but no theory was offered as to why the shooting occurred roughly two blocks away from the victim’s home.
Witness M.A. was called to testify about waking up to the sound of people arguing on the night of the shooting. She was unsure of the time but again estimated it was “after midnight.” She did not recall hearing any gunshots.
F.G. and A.D. both testified to having little memory of the incident. Their recorded interviews were played for the jury, as was F.G.’s 911 call. A police officer who had spoken to A.D. at the crime scene testified that he reported hearing someone say, prior to the shooting, “‘Why are you mad?’” During the same conversation, A.D. claimed to have seen a 2005 or 2006 Cadillac CTS turn right onto Rose Avenue.
The 911 caller who lived on Rose Avenue, D.W., testified he was on his front porch when he heard the gunshots. He called 911 from inside his home approximately one minute later. The location of his garage obstructed his view such that he would not have seen a vehicle approaching from Merced Avenue before going into the house. There was also a period of approximately 45 to 60 seconds during which he would not have seen any vehicles that might have passed by his house. After calling 911 and returning to his porch, D.W. saw a police officer driving south on Rose Avenue toward Merced Avenue. He flagged down the officer and told him about the gunshots.
Karla’s daughter, D.P., testified pursuant to a grant of immunity after invoking her constitutional right against self-incrimination. She denied ever meeting the victim or discussing his murder with Karla or Nagata. D.P. also denied remembering what she had said during her hospital interview. A recording of the interview was played for the jury.
Through cross-examination of the lead detective, defense counsel suggested D.P. may have been the Hispanic female that F.G. and A.D. reported seeing prior to the shooting. The detective admitted to having considered this possibility, saying it was why he had asked D.P. what she wore that evening. During her interview, D.P. claimed to have been wearing pants and a black sweater. F.G. had described a person wearing shorts and a white tank top. The detective also testified that D.P.’s phone records “don’t put her in that area” on July 14, 2019.6
Felix testified about the Cadillac being found at his home in Planada on Tuesday, July 16, 2019. Although he struggled with dates and times, the testimony indicated Karla and Nagata had shown up at his house on the night of the shooting (Sunday) or in the
Felix’s testimony seemed to indicate Karla and Nagata had arrived alone, i.e., without defendant. There was no mention of defendant being there until Monday afternoon. Defendant’s cell phone data reportedly showed her device was in Planada at 5:19 a.m. Monday morning. Felix referred to a lunch conversation from that day, during which plans were made for him, Nagata, Karla, and defendant to go to a casino. But then Olvera “happened to show up,” and Felix “didn’t want to go anymore because [he] did not want to be, like, a fifth wheel.”7 For reasons not explained, Felix let them borrow his car and the Cadillac was left at his house. He admitted to placing some type of covering over the Cadillac at Karla’s request.
Karla and Nagata did not return to Felix’s home. Felix did not see defendant or Olvera again until Tuesday, when they finally brought his vehicle back and took possession of the Cadillac. Defendant’s cell phone data showed her device had traveled south on Monday night, registering with cell towers in Madera at 10:44 p.m. and in Tulare County at 11:59 p.m.
The People introduced an aerial map with a line depicting the route traveled by defendant and Olvera after they left Felix’s house on Tuesday, immediately prior to their arrest. The prosecutor argued Olvera had intended to “dump” the Cadillac at an unknown
Trial Evidence re: Gang Allegations
Nagata was alleged to have killed the victim after being publicly disrespected by him at Casino Merced. The preliminary facts of a public dispute and Nagata feeling disrespected were alleged to be inferable from the Casino Merced videos. The victim had no known involvement with gangs, but Nagata was shown to be “a high-ranking Nuestra Familia criminal street gang member.”
According to expert testimony, Nuestra Familia or “NF” is a criminal street gang with multiple levels of membership. Affiliates are commonly known as Northerners or Norteños, but those terms technically refer to a certain status or membership level. Nuestra Familia is both the name of the organization and the highest level of membership therein. The next level down is variously known as the “Northern Structure,” “Nuestra Raza,” and “Norteños Soldados” (abbreviated as “N-Sols“). Below that are the Norteños. As explained at trial, “Norteños are people that still are part of the cause or part of the Nuestra Familia, but they’re lower level and haven’t been selected or they haven’t committed to being investigated [for advancement in the hierarchy].” Norteños may subdivide into smaller groups (“subsets“) outside of the prison system, but “eventually it all leads up to Nuestra Familia.”
Nuestra Familia’s primary activities reportedly include murder, carjacking, witness intimidation, “major narcotic trafficking,” and “[a]nything to do with violence.” Murder, if committed against a gang rival, benefits NF by helping it maintain a reputation for violence and instilling fear and intimidation in others. The prosecution asked an
Two gang experts opined Nagata had attained the status of “Carnal” (“Brother“) and was thus a “full-fledged member of the Nuestra Familia.” According to one expert, “the NF has three categories of Carnals …[:] Cat-1, Cat-2, Cat-3.” He opined Nagata was at least a “Cat-2 NF member,” meaning he was involved in the overall management of the gang. The expert’s opinions regarding Nagata’s NF status were based on a recorded telephone conversation and photographs of him in the company of “Cat-3 NF members.”8 The phone conversation was played for the jurors and explained to them through the testimony of a special agent with the FBI.
The phone call had been intercepted during a wiretapping operation conducted in November 2017. It was a conversation between Nagata and a higher ranking NF member. They discussed large-scale trafficking of methamphetamine and heroin, including a purchase that would require “about a 100 G’s.” The conversation shifted to the topic of postponing or cancelling previously made plans to kill two women who had stolen money from the organization. Also discussed was an NF investigation of a lower level member for possible removal from the gang. It was said they would “hit him” if the findings were negative, which the expert testified meant some degree of physical assault and “could mean death.”
A tattoo of the word “murder” across Nagata’s left forearm was deemed relevant because murder is one of Nuestra Familia’s primary activities. This and several other tattoos were held admissible for the dual purpose of proving the gang enhancement allegations and showing “motive and identity of the shooter.” Nagata’s arguments for exclusion pursuant to
The prosecutor repeatedly displayed and referenced a tattoo on Nagata’s chest of someone holding a gun to the back of a man’s head, just behind the right ear. When the gang expert was asked about it, he noted Nagata also had tattoos of dollar signs and the word “money,” opining they were collectively “indicative of gang behavior” but did not specifically pertain to Nuestra Familia. During closing argument, the prosecutor asked the jury to “remember the tattoo on … Nagata’s chest that depicts someone being shot in the back of the head, the exact same manner in which [the victim] was killed.”
The jury also saw a tattoo on Nagata’s right hand that said “get MAD,” and another on his left hand that said “go BAD.” A handgun was tattooed above the words on his left hand. One of the gang experts interpreted this as “indicating that when he gets mad, it’ll go bad. So there’s a propensity for violence if things go wrong.” The trial court sustained an objection to this testimony and ordered it stricken, but the prosecutor was allowed to rephrase the question as follows: “So you’re saying someone with a tattoo, based on your knowledge of criminal street gangs, like this would be signifying
Olvera’s gang membership was proven by evidence of custodial statements made in May 2019, two months prior to the victim’s death. A police officer testified Olvera “admitted to being an active Norteño gang member and also stated that he wanted to house in … an active Norteño block at the Merced County Jail.” The jury saw a redacted portion of Olvera’s recorded custodial interrogation following his arrest in this case, wherein he made implied admissions of active gang membership. The recording included references to a prior arrest in connection with a shooting. Another officer testified to personal knowledge of Olvera’s affiliation with a Norteño subset called the Merced Ghetto Boys. The same witness testified Olvera had previously been arrested for possession of a firearm.
Photographs of Olvera’s tattoos were admitted into evidence. One said “Merced,” another was described as “the Aztec numeral 12,” and a third tattoo depicted “someone pointing a gun.” A gang expert testified the Aztec numeral was symbolic of the Merced Ghetto Boys, which has some type of connection to 12th Street in Merced.
Photographs of Karla’s tattoos were admitted to show her allegiance to NF. The relevant images were described as “one dot and then the four dots.” A gang expert explained, “Typically they’re on separate hands, but those are separated enough that it’s pretty clear it’s one dot/four dots for 14 to represent the Nuestra Familia.” The expert was then asked about the role of women in the gang. He answered, “Women actually, some of them—we don’t validate the women, but—and none of them can be NF members—but they perform a vital role in a lot of the moving of the narcotics. They do a lot of the smuggling stuff into the prison. They’re involved in holding a lot of the contraband if they’re with another NF member in their purse or somewhere else.”
The People did not introduce any gang evidence specific to defendant. Apart from being associated with Karla, Nagata, and Olvera, there was no indication defendant was
To establish a “pattern of criminal gang activity” (
Verdicts and Sentencing
The jury began deliberating on Thursday, October 8, 2020, at approximately 3:33 p.m. It recessed for the day at 4:44 p.m. Deliberations resumed on Friday, lasting from 10:00 a.m. to 4:00 p.m. There was an afternoon request for a readback of Felix’s testimony and that of the neighbor who testified to seeing the victim outside of his house on the night of the shooting. At 3:48 p.m., the jury submitted the following question: “If
The jury returned from a three-day weekend on Tuesday, October 13, 2020. Deliberations lasted from approximately 10:24 a.m. to 4:07 p.m. Late that afternoon, a request was submitted for “pictures of … Olvera’s tattoos.” On Wednesday, October 14, 2020, the jury deliberated for approximately 4.5 hours before returning its verdicts.
Nagata was found guilty of first degree murder, but the gang allegations against him were rejected as not true. Defendant and Olvera were both found guilty of being accessories after the fact. As to them, the gang enhancement allegations were found true. Defendant was sentenced to an aggregate prison term of three years four months (the lower term of 16 months for the crime plus two years for the gang enhancement).
DISCUSSION
At the time of the underlying events, a criminal street gang was defined as “any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and
A “pattern of criminal gang activity” was previously defined as “the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of the [offenses listed in paragraphs (1) to (33)], provided at least one of these offenses occurred after the effective date of this chapter and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons ….” (
In 2021, while this appeal was pending, the Legislature passed Assembly Bill 333, which took effect on January 1, 2022. (People v. Tran (2022) 13 Cal.5th 1169, 1206.) The legislation amended
“First, it narrowed the definition of a ‘criminal street gang’ to require that any gang be an ‘ongoing, organized association or group of three or more persons.’ [Citation.] Second, whereas
section 186.22, former subdivision (f) required only that a gang’s members ‘individually or collectively engage in’ a pattern of criminal activity in order to constitute a ‘criminal street gang,’ Assembly Bill 333 requires that any such pattern have been ‘collectively engage[d] in’ by members of the gang. [Citation.] Third, Assembly Bill 333 also narrowed the definition of a ‘pattern of criminal activity’ by requiring that (1) the last offense used to show a pattern of criminal gang activity occurred within three years of the date that the currently charged offense is alleged to have been committed; (2) the offenses were committed by two or more gang ‘members,’ as opposed to just ‘persons’; (3) the offenses commonly benefitted a criminal street gang; and (4) the offenses establishing a pattern of gang activity must be ones other than the currently charged offense. [Citation.] Fourth, Assembly Bill 333 narrowed what it means for an offense to have commonly benefitted a street gang, requiring that any ‘common benefit’ be ‘more than reputational.’ [Citation.]” (Tran, supra, at p. 1206.)
“Finally, Assembly Bill 333 added
section 1109 , which requires, if requested by the defendant, a gang enhancement charge to be tried separately from all other counts that do not otherwise require gang evidence as an element of the crime. If the proceedings are bifurcated, the truth of the gang enhancement may be determined only after a trier of fact finds the defendant guilty of the underlying offense.” (People v. Tran, supra, 13 Cal.5th at p. 1206.)
Assembly Bill 333’s amendments to
The People do not concede defendant’s claim regarding bifurcation and
A. Retroactivity of Section 1109
The Estrada rule has been applied “to statutes that merely made a reduced punishment possible.” (People v. Frahs, supra, 9 Cal.5th at p. 629.) In People v. Superior Court (Lara) (2018) 4 Cal.5th 299, the inference of retroactivity was extended to legislation that “ameliorated the possible punishment for a class of persons.” (Id. at p. 308.) In Frahs, a pretrial diversion statute (
There is a split of authority on the retroactive application of
This district has held that
“According to the Committee on Revision of the Penal Code’s 2020 report: [¶] … [¶] Gang enhancement evidence can be unreliable and prejudicial to a jury because it is lumped into evidence of the underlying charges which further perpetuates unfair prejudice in juries and convictions of innocent people.” (
Stats. 2021, ch. 699, § 2, subd. (d)(6) .)“California courts have long recognized how prejudicial gang evidence is. [Citation.] Studies suggest that allowing a jury to hear the kind of evidence that supports a gang enhancement before it has decided whether the defendant is guilty or not may lead to wrongful convictions. [Citations.] The mere specter of gang enhancements pressures defendants to accept unfavorable plea deals rather than risk a trial filled with prejudicial evidence and a substantially longer sentence.” (
Stats. 2021, ch. 699, § 2, subd. (e) .)“Bifurcation of trials where gang evidence is alleged can help reduce its harmful and prejudicial impact.” (
Stats. 2021, ch. 699, § 2, subd. (f) .)
In Lara, the California Supreme Court acknowledged “Estrada is not directly on point” if the statute in question “does not reduce the punishment for a crime.” (People v. Superior Court (Lara), supra, 4 Cal.5th at p. 303.) “But its rationale does apply” if the new legislation “reduces the possible punishment for a class of persons.” (Ibid.) A possible reduction in the extent of punishment and the possibility of avoiding any punishment whatsoever are both “potentially ameliorative benefit[s].” (People v. Frahs, supra, 9 Cal.5th at p. 631.)
“[I]n order to rebut Estrada’s inference of retroactivity concerning ameliorative statutes, the Legislature must ‘demonstrate its intention with sufficient clarity that a reviewing court can discern and effectuate it.’” (People v. Frahs, supra, 9 Cal.5th at p. 634.) Because it “provides a possible benefit to a class of criminal defendants and the statute does not contain an express savings clause that limits the [procedures] to prospective-only application, the specific question before us boils down to whether the Legislature ‘clearly signal[ed] its intent’ to overcome the Estrada inference that
B. Error and Prejudice
Defendant and her codefendants at trial all moved for bifurcation of the gang enhancement allegations. The motions were denied. In light of
“[T]he Watson test for harmless error ‘focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result.’” (People v. Beltran (2013) 56 Cal.4th 935, 956.) “The Supreme Court has emphasized
“But, ‘even where gang membership is relevant, because it may have a highly inflammatory impact on the jury[,] trial courts should carefully scrutinize such evidence before admitting it.’” (People v. Gomez (2018) 6 Cal.5th 243, 294.) “Such evidence should not be admitted if only tangentially relevant” (People v. Gurule (2002) 28 Cal.4th 557, 653), or “where its sole relevance is to show a defendant’s criminal disposition or bad character as a means of creating an inference the defendant committed the charged offense” (People v. Sanchez (1997) 58 Cal.App.4th 1435, 1449; accord, People v. Cardenas (1982) 31 Cal.3d 897, 904–905). “Erroneous admission of gang-related evidence, particularly regarding criminal activities, has frequently been found to be reversible error, because of its inflammatory nature and tendency to imply criminal
The People argue defendant could not have been prejudiced by the failure to bifurcate the gang allegations because the gang evidence was “highly relevant to issues of motive, intent and the shooter’s identity,” and therefore cross-admissible in a trial of the charged offenses. We rejected this argument in People v. Nagata (Jan. 31, 2023, F082198) (nonpub. opn.) (Nagata), where the
Defendant’s liability was closely tied to the question of Nagata’s guilt on the charge of murder. “Under
Defendant also argues she “was tarred with guilt by association.” Despite the “strong preference for joint trials” (People v. Kelly (1986) 183 Cal.App.3d 1235, 1241)
The evidence against defendant was not particularly strong. First, the People’s own cell phone mapping expert gave testimony that helped to refute the prosecutor’s theory of defendant’s whereabouts at the time of the shooting and immediately thereafter. (See fns. 3 & 5, ante.) Second, as explained above, the evidence implied she was not with Karla and Nagata when they first arrived at Felix’s house in Planada. Third, an accessory after the fact must provide “‘“overt or affirmative assistance“’” to the perpetrator. (People v. Partee (2020) 8 Cal.5th 860, 868.) Although defendant’s phone data permitted the inference she had traveled to Tulare County with Karla and Nagata after leaving Felix’s house on Monday, there was no evidence she was their driver or otherwise facilitated their escape. The prosecutor’s theory of liability was that defendant
The length of the jury’s deliberations, as well as its questions and requests to review evidence, further demonstrates the closeness of this case. (See People v. Cardenas, supra, 31 Cal.3d at p. 907; People v. Pearch (1991) 229 Cal.App.3d 1282, 1295.) For the reasons explained, it is reasonably probable defendant would have achieved a more favorable outcome but for the denial of her motion to bifurcate the trial of the gang enhancement allegations. She is therefore entitled to a new trial on both the accessory charge and the related gang enhancement.
DISPOSITION
The judgment is reversed.
PEÑA, J.
WE CONCUR:
FRANSON, Acting P. J.
SMITH, J.