Penal Code § 1109 – Not Bifurcating Gang Evidence?

On Christmas Day, 2015, Nancy A. was getting a tattoo by David Bustamante in San Bernardino County.  David and Nancy talked while David did his work.  David told Nancy that he was going to give a friend tamales later that day, tamales made by David’s mom. 

Partway through the tattoo, Nancy A., David and Ana (Nancy’s friend) decided to take a break in the tattoo and get the tamales to deliver to David’s friend.  David, Nancy and Ana then drove towards David’s mom’s house.  Enroute, David received a phone call from someone who identified himself as Jboy 12th Street on his phone ID.

The caller told David to meet him at an In-N-Out Burger in Hesperia.  David then drove to the In-N-Out and saw a red truck that Jboy 12th Street told him he was driving.  David parked and walked over to the red truck.

The driver of the red truck had his window down and the driver in the red truck immediately shot David six times, yelling “La Eme” repeatedly, a term for the Mexican Mafia.  Both Nancy and Ana saw the shooter and described him to police, who quickly understood it was John M. Oliva.

Police thereafter arrested Mr. Oliva, who had his cell phone with him and police evaluated his location history on or about the time of the shooting.  His cell phone identified Oliva as Jboy 12th Street and his location at the time of the shooting was the Hesperia In-N-Out parking lot.

A San Bernardino jury convicted Mr. Oliva of first-degree murder and found true the special circumstance of lying in wait and committing the crime to benefit a criminal street gang.  The jury also found true the weapons use enhancement.  Judge Tony Raphael sentenced Mr. Oliva to 25 years to life without the possibility of parole (LWOP).

On appeal, the Fourth Appellate District affirmed the judgment in its entirety. 

However, on January 1, 2022, Assembly Bill 333 became effective, amending Penal Code § 186.22, redefining the requirements to find true a gang enhancement and adding Penal Code § 1109, mandating bifurcation of trial when gang enhancements are alleged.  The Fourth Appellate District then directed the parties in this case to submit supplemental briefing on the impact of AB 333 on the judgment in this case.

Mr. Oliva’s counsel argued that that AB 333’s amendments to section 186.22, changing the definition of “criminal street gang” and “common benefit to members of a gang” should be applied retroactively.  Based on these change, he argued, remand was necessary and a new trial on the gang enhancements and the gang murder special allegation was necessary.

Mr. Oliva’s counsel also argued that AB 333’s addition of Penal Code § 1109, which mandates that defendants who request to be tried separately on charged gang enhancements must be granted a second-phase trial on gang enhancements, should be applied retroactively.  In Oliva’s case, since the gang enhancements and gang special circumstance were tried in the substantive crimes in his case he was entitled to remand for a new trial on all of the charges.

The People conceded that the changes to Penal Code § 186.22 are retroactive and that the gang enhancements should be retried.

The People insist that section 1109 applies prospectively only and even if it does apply retroactively, defendant was not prejudiced by the admission of gang evidence at trial.  However, the People disagreed that the gang murder special circumstance should be retried separately (bifurcated), as there was no prejudice to defendant.

The Fourth Appellate District agreed with Mr. Oliva in part and reversed the sentence.  It also reversed the true findings on the gang murder special circumstance (Penal Code § 190.2(a)(22)) and the gang enhancement (Penal Code § 186.22(b)(1)(C)).  It commented that the People may elect to retry those allegations under the new law as amended by AB 333.  If the People elect to retry those allegations, defendant shall be resentenced. 

In all other respects, the Fourth Appellate District affirmed the judgment, meaning it did not find prejudice to Mr. Oliva by not bifurcating the trial.  The appellate court applied the harmless error standard set forth in Chapman v. California (1967) 386 U.S. 18, which as applied here, the Fourth District found the admission of the gang evidence in the case in chief did not render the trial fundamentally unfair.  See also People v. Tran (2022) 13 Cal. 5th 1169.

For more information about AB 333, please click on the following articles: