People v. Fay CA2/7

Filed 7/19/21 P. v. Fay CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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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 SEVEN

THE PEOPLE, B299385

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA146912)
v.

TYRE JAMES FAY,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Pat Connolly, Judge. Affirmed.
John L. Staley, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E.
Winters, Chief Assistant Attorney General, Susan Sullivan Pithey,
Senior Assistant Attorney General, Noah P. Hill and Steven E.
Mercer, Deputy Attorneys General, for Plaintiff and Respondent.
 INTRODUCTION
The People charged Tyre James Fay with attempting to
murder Vincente Villamara, Jeimy Hernandez, and Allison
Hernandez by shooting at Villamara’s car.1 A jury acquitted Fay
of two counts of assault with a semiautomatic firearm, and could
not reach verdicts on a third count of assault with a semiautomatic
firearm, three counts of attempted murder, and one count of
shooting at an occupied vehicle. The People refiled the five hung
counts and added gang allegations. The second jury convicted Fay
on the retried counts and found true the gang and other
allegations.
Fay argues double jeopardy and collateral estoppel barred
the retrial on the hung counts because in acquitting Fay on two
counts of assault with a semiautomatic firearm, the first jury
necessarily found Fay did not shoot at Villamara’s car. Fay also
argues the trial court erred in denying his motion to dismiss the
information based on vindictive prosecution. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Amended Complaint in Case Number TA142782
In April 2017 the Los Angeles County District Attorney’s
Office filed an amended felony complaint in case number
TA142782 charging Fay with one count of shooting at an occupied
vehicle in violation of Penal Code2 section 246 (count 1) and four
counts of assault with a firearm in violation of section 245,
subdivision (a)(2) (counts 2, 3, 4 and 5). As to counts 2 through 5,
the complaint alleged Fay personally used a firearm within the

1 For clarity, we refer to Jeimy Hernandez by her last name
and Allison Hernandez by her first name.
2 All further statutory references are to the Penal Code.

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meaning of section 12022.5, subdivision (a). Fay pleaded no
contest to counts 1 and 5 and the court sentenced Fay to a state
prison term of six years eight months.
Fay subsequently moved to withdraw his plea and the
parties stipulated Fay could do so. The trial court accepted the
stipulation and permitted Fay to withdraw his plea.
Following a preliminary hearing, the trial court granted the
People’s request to dismiss the complaint in case number
TA142782. The People filed a new complaint in case number
TA145605 to add charges related to Villamara, Hernandez, and
Allison, who had been newly-located living out of state.

B. The Information and Trial in Case Number TA145605
The information in case number TA145605 charged Fay with
four counts of attempted willful, deliberate, and premeditated
murder in violation of sections 664 and 187, subdivision (a) (counts
1, 2, 3 and 4), two counts of shooting at an occupied vehicle in
violation of section 246 (counts 5 and 6), one count of assault with
a firearm in violation of section 245, subdivision (a)(2) (count 7),
and three counts of assault with a semiautomatic firearm in
violation of section 245, subdivision (b) (counts 8, 9 and 10).3 As to
counts 1 through 4, the information alleged Fay personally used
and intentionally discharged a firearm within the meaning of
section 12022.53, subdivisions (b) and (c). As to counts 1 and 5,
the information alleged Fay personally and intentionally

3 Counts 1, 5 and 7 related to a second shooting that occurred
shortly after the shooting at issue in this appeal. Counts 2 and 8
related to Villamara, counts 3 and 9 to Hernandez, and counts 4
and 10 to Allison. Count 6 related to the shooting of Villamara’s
car.

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discharged a firearm causing great bodily injury or death within
the meaning of section 12022.53, subdivision (d). As to counts 5
through 10, the information alleged Fay personally used a firearm
within the meaning of section 12022.5, subdivision (a). Fay
pleaded not guilty to the charges and denied the special
allegations.
The trial court granted the People’s motion to dismiss counts
1, 5 and 7. After a trial on the remaining counts, the jury
acquitted Fay of assaulting Hernandez and Allison with a
semiautomatic firearm (counts 9 and 10), and could not reach
verdicts on the three attempted murder counts, the count of
shooting at an occupied vehicle, and the count of assaulting
Villamara with a semiautomatic firearm (counts 2, 3, 4, 6 and 8).
The trial court declared a mistrial on the hung counts.
C. The Information in Case Number TA146912
On September 7, 2018 the trial court granted the People’s
motion to dismiss the hung counts. The People refiled those
charges in case number TA146912.
The information in case number TA146912 charged Fay with
three counts of attempted willful, deliberate, and premeditated
murder in violation of sections 664 and 187, subdivision (a) (counts
1, 2 and 3), one count of shooting at an occupied motor vehicle in
violation of section 246 (count 4), and one count of assaulting
Villamara with a semiautomatic firearm in violation of section
245, subdivision (b) (count 5). As to counts 1 through 4, the
information alleged Fay personally used and intentionally
discharged a firearm within the meaning of section 12022.53,
subdivisions (b) and (c). As to count 5, the information alleged Fay
personally used a firearm within the meaning of section 12022.5,
subdivision (a). The information further alleged Fay committed

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the offenses for the benefit of, at the direction of, or in association
with a criminal street gang, with the specific intent to promote,
further, or assist in criminal conduct by gang members within the
meaning of section 186.22, subdivision (b)(4) (counts 1, 2, 3 and 4),
and section 186.22, subdivision (b)(1)(C) (count 5). Fay pleaded
not guilty to the charges and denied the special allegations.
D. The Evidence at Trial
1. The shooting
On March 16, 2017 at approximately 8:00 p.m. Villamara
was driving his girlfriend Hernandez and her one-year-old
daughter Allison to Hernandez’s home on South Ward Avenue in
Compton. Hernandez sat in the front passenger seat, and Allison
rode in the back seat. Villamara’s car was black, and had paper
license plates and dark tinted windows. As Villamara drove down
Myrrh Street, which crosses South Ward Avenue, he missed the
turn onto South Ward Avenue. Villamara made a U-turn in the
middle of the next block to drive back towards South Ward
Avenue.
As Villamara drove back down Myrrh Street toward the
intersection with South Ward Avenue, his headlights illuminated
three people standing outside a house on the corner of Myrrh
Street and South Ward Avenue. One of the individuals pulled out
a handgun and shot several times at Villamara’s car while
standing 15 to 18 feet from the passenger side of the car. The
bullets struck the windshield, roof, and passenger side door.
Villamara testified he “just took off from the scene because [he]
was feeling dead. . . . [He] left in shock.” Hernandez testified she
immediately “turned to see [her] daughter,” who was unharmed.
Villamara drove away, and Hernandez called 911.

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 Los Angeles County Deputy Sheriff Jose Sandoval-Mendoza
responded to the shooting scene in one to two minutes. Deputy
Sandoval-Mendoza located a trail of nine expended shell casings
on the northeast corner of the intersection leading from the
sidewalk to the front door of a residence on South Ward Avenue.
Deputies established a perimeter around the house and, using a
loudspeaker, ordered anyone inside the house to come out. Four
individuals including Fay emerged from the house. Deputies
detained all four individuals, handcuffed them, and placed them in
a patrol car.
Deputies searched the house and recovered two firearms: a
loaded, nine-millimeter, semiautomatic Ruger firearm containing
17 rounds of ammunition, and an unloaded, nine-millimeter,
semiautomatic Heckler & Koch firearm. Ballistics testing showed
the Heckler & Koch firearm had discharged all nine of the shell
casings recovered from outside the house.
A deputy who responded to Hernandez’s 911 call described
Hernandez as “hysterical” and Villamara as “upset, nervous, [and]
crying.” Deputies brought Villamara and Hernandez to the house
for a field show-up approximately 30 minutes after the shooting.
Villamara and Hernandez both identified Fay as the shooter.
Before the field show-up, Hernandez told deputies the shooter
wore black pants and a white T-shirt with an emblem, either red
or burgundy, on the left breast pocket. When deputies detained
Fay outside the house, Fay was wearing black pants and a white
T-shirt with a red emblem on the left breast pocket. In addition,
Hernandez testified at trial that she had seen Fay in the
neighborhood in front of her house “around 50 times” before the
shooting.
Approximately three hours after the shooting, deputies took
swabs from Fay’s hands and those of his companions to test for the

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presence of gunshot residue. The results of the gunshot residue
tests showed Fay and two of the others had particles consistent
with gunshot residue on their hands. A sheriff’s department
criminalist testified that the presence of gunshot residue on an
individual shows that the person either fired a gun or was in the
vicinity of a gun when it was fired. The criminalist acknowledged
that gunshot residue can transfer from clothing to a person’s
hands after a shooting.
Gary Cooper, a defense investigator, photographed the
intersection where the shooting occurred at 5:00 a.m. in an effort
to depict the lighting conditions at the time of the shooting.
Cooper testified there was one streetlight at the intersection.
Cooper also placed his car where Villamara’s car had been, and he
testified that his car headlights “illuminate[d], in some manner,
the front yard and the side yard” of the house where deputies
arrested Fay.
2. The gang expert evidence
The People introduced evidence Fay had admitted
membership in the Ward Lane Compton Crips gang. The People’s
gang expert, Los Angeles County Deputy Sheriff Jennifer Strollo,
testified the Ward Lane Compton Crips is a criminal street gang
with primary activities including assaults with deadly weapons,
firearm possession, robbery and burglary, a common sign, and a
claimed territory.4
Deputy Strollo testified that gang members commit crimes
to enhance their reputations in the gang and to create fear and
intimidation in the community and in rival gangs. She explained

4 The People also introduced evidence of two predicate gang
offenses.

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that creating fear and intimidation in the community reduces the
likelihood crimes will be reported to the police and witnesses will
testify against gang members in court.
Deputy Strollo stated the shooting occurred in the center of
the Ward Lane Compton Crips’ territory. Strollo knew from her
work as a gang detective that the house where the deputies
arrested Fay was “a known hangout for Ward Lane Compton Crip
gang members.” Ward Lane Compton Crips graffiti was spray-
painted on the rear garage at the property.
In response to a hypothetical based on the facts of the case,
Los Angeles County Sergeant Joseph Iberri, a gang officer
assigned to the shooting investigation, opined that the shooting
was committed for the benefit of, at the direction of, or in
association with the Ward Lane Compton Crips because, based on
the vehicle’s lack of license plates and the victims twice passing
the house, the shooter would have believed the car contained rival
gang members intent on attacking Ward Lane Compton Crips
members. Sergeant Iberri testified the shooting would
demonstrate to the community and to rival gangs that the Ward
Lane Compton Crips defends its territory and should not be
confronted.
3. Fay’s testimony
Fay testified he is a member of the Ward Lane Compton
Crips, and had been a member of the gang for three to four years
before the shooting. Fay described the residence where the
deputies arrested him as a Ward Lane Compton Crips “gang
hangout.”
When the shooting occurred, Fay was at the house with
three other people. Fay had been smoking marijuana, and was
standing outside the house scrolling through his cellphone when

8
someone said, “Watch this car.” Fay looked up and saw a black car
with tinted windows driving past the residence. Fay returned to
his cellphone, and he heard someone say, “Oh, it’s turning around,
it’s turning around.” Fay looked up from his cellphone and saw
the car coming towards him. He was “not going to sit there and
wait for events to unfold”; he “was thinking that, you know, maybe
we was going to get shot at” because he “was standing in a gang
area that had—this gang, my gang, has enemies.” Fay stepped
behind a nearby truck, heard gunshots, and ran into the house.
His three companions were also in the house; Fay did not know
whether they were already in the house when he ran inside or ran
inside after he did. Fay never saw the shooter.
The police arrived seven to eight minutes later and ordered
Fay and his companions to come outside. Fay was wearing black
pants and a white T-shirt with a red emblem on the chest.
Before the trial Fay spoke with someone on the telephone
from jail. During the recorded call Fay said, “I am going to get on
the stand and I’m going to tell the jury a sob story.”
Fay did not know Villamara or Hernandez. Regarding
Hernandez, Fay testified, “I don’t know that woman. I don’t know
why she say she—she has seen me before. Most likely, you know,
she lives right there. But I don’t know her at all.”
E. The Jury Verdicts and the Sentencing
The jury convicted Fay on all charges and found the gang
and firearm allegations true.
The court sentenced Fay on the attempted murder counts
(counts 1, 2 and 3) to three consecutive life terms with a minimum
parole eligibility period of 15 years on each count pursuant to
section 186.22, subdivision (b)(5), plus a consecutive term of 20
years on count 1 pursuant to section 12022.53, subdivision (c).

9
The court sentenced Fay on count 4 to a concurrent life term
pursuant to section 186.22, subdivision (b)(4). The court sentenced
Fay on count 5 to a concurrent term of 29 years, consisting of the
upper term of nine years pursuant to section 245, subdivision (b),
plus 10 years pursuant to section 186.22, subdivision (b)(1)(C), and
the upper term of 10 years pursuant to section 12022.5,
subdivision (a). The court stayed the firearm enhancements on
counts 2, 3 and 4.5
Fay timely appealed.
DISCUSSION
A. Double Jeopardy and Collateral Estoppel Did Not Bar Fay’s
Retrial on the Hung Counts
Fay argues double jeopardy and collateral estoppel barred
his retrial on the five hung counts because in acquitting Fay of
assaulting Hernandez and Allison with a semiautomatic firearm,
the first jury necessarily found Fay did not shoot at Villamara’s
car. Fay concedes he did not object on this basis in the trial court.
By failing to object, Fay forfeited this issue. (People v. Gurule
(2002) 28 Cal.4th 557, 646 [defendant’s failure to object on double
jeopardy grounds before penalty retrial forfeited issue on appeal];
People v. Morales (2003) 112 Cal.App.4th 1176, 1185 [failure to
raise double jeopardy and collateral estoppel in trial court waives
those issues on appeal].) Even if Fay had not forfeited this issue,
his argument lacks merit.

5 The court noted at the sentencing hearing that because Fay
was under 25 years old when he committed the crimes, he will be
eligible for parole after 25 years. (§ 3051, subd. (b)(3).)

10
 1. Applicable law
The double jeopardy clauses of the Fifth Amendment to the
United States Constitution and article I, section 15, of the
California Constitution provide that no person may be tried more
than once for the same offense. (People v. Anderson (2009) 47
Cal.4th 92, 103-104.) The double jeopardy clause thus “‘protects
against a second prosecution for the same offense following an
acquittal or conviction, and also protects against multiple
punishment for the same offense.’” (Ibid.; see §§ 656, 687.)
This bar generally only prevents repeated prosecution based
on “‘the same identical act and crime.’” (Currier v. Virginia (2018)
__ U.S. __, __ [138 S.Ct. 2144, 2153] (Currier), italics omitted.) In
“narrow circumstances” where two offenses involve a common
issue of ultimate fact, however, “the retrial of an issue can be
considered tantamount to the retrial of an offense,” even if the
elements of the two offenses differ. (Ibid.; see Ashe v. Swenson
(1970) 397 U.S. 436, 443-444 (Ashe); Yeager v. United States (2009)
557 U.S. 110, 119-120 (Yeager).) This principle is derived from the
doctrine of collateral estoppel, which provides that when “an issue
of ultimate fact has once been determined by a valid and final
judgment, that issue cannot again be litigated between the same
parties in any future lawsuit.” (Ashe, at p. 443; accord, Yeager, at
p. 119.)
In a criminal case, the test for establishing a bar against
retrial based on collateral estoppel “is a demanding one.” (Currier,
supra, 138 S.Ct. at p. 2150.) “To say that the second trial is
tantamount to a trial of the same offense as the first and thus
forbidden by the Double Jeopardy Clause, we must be able to say
that ‘it would have been irrational for the jury’ in the first trial to
acquit without finding in the defendant’s favor on a fact essential
to a conviction in the second.” (Ibid.) A second trial is prohibited

11
only if conviction would require the prosecutor to prevail on a
factual issue the jury “necessarily” resolved in the defendant’s
favor in the first trial. (Yeager, supra, 557 U.S. at p. 123; accord,
Currier, supra, 138 S.Ct. at p. 2150.) It is not sufficient that the
jury likely acquitted based on the factual issue in question. (Ibid.)
In this analysis courts do not apply the “hypertechnical and
archaic approach of a 19th century pleading book.” (Ashe, supra,
397 U.S. at p. 444.) A court must “‘examine the record of a prior
proceeding, taking into account the pleadings, evidence, charge,
and other relevant matter, and conclude whether a rational jury
could have grounded its verdict upon an issue other than that
which the defendant seeks to foreclose from consideration.’” (Ibid.;
accord, Brown v. Superior Court (2010) 187 Cal.App.4th 1511,
1524 (Brown).) “If there is to be an inquiry into what the jury
decided, the evidence should be confined to ‘the points in
controversy on the former trial, to the testimony given by the
parties, and to the questions submitted to the jury for their
consideration.’” (Yeager, supra, 557 U.S. at p. 122; accord, Brown,
at p. 1524.) “[T]he consideration of hung counts has no place in
the issue-preclusion analysis. . . . To identify what a jury
necessarily determined at trial, courts should scrutinize a jury’s
decisions, not its failures to decide.” (Yeager, at p. 122; accord,
Brown, at p. 1524.) Our “ultimate focus remains on the practical
identity of offenses,” i.e., whether a second trial amounts, in
practical terms, to a retrial for the same offense. (Currier, supra,
138 S.Ct. at p. 2153.)
The defendant bears the burden of establishing facts to
prove that a previously rendered judgment of acquittal bars retrial
based on double jeopardy principles. (Brown, supra, 187
Cal.App.4th at p. 1525; Bravo-Fernandez v. United States (2016)
580 U.S. __, __ [137 S.Ct. 352, 365] [defendant bears the burden of

12
showing that the ultimate issue has been “‘determined by a valid
and final judgment of acquittal’”].) “When the double jeopardy
question requires the trial court to resolve disputed facts, the
appellate court reviews the case under the substantial evidence
standard. [Citation.] But, when the facts are uncontradicted and
different inferences cannot be drawn, the question of former
jeopardy is one of law for the court to decide.” (People v. Davis
(2011) 202 Cal.App.4th 429, 438.)
2. Analysis
Fay argues the first jury could only have acquitted him of
assaulting Hernandez and Allison with a semiautomatic firearm if
the jury found Fay did not shoot the gun.6 Fay further argues
that because the two acquitted counts and the five retried counts
all required the People to prove Fay shot the gun, double jeopardy
and collateral estoppel barred the retrial on the hung counts.
The trial court instructed the jury in the first trial that to
convict Faye on each count of assault with a semiautomatic
firearm, the People must prove: “1. The defendant did an act with
a semiautomatic firearm that by its nature would directly and
probably result in the application of force to a person; [¶] 2. The
defendant did that act willfully; [¶] 3. When the defendant acted,
he was aware of facts that would lead a reasonable person to
realize that his act by its nature would directly and probably
result in the application of force to someone; and [¶] 4. When the
defendant acted, he had the present ability to apply force with a

6 The verdict forms from the first trial are not in the appellate
record. The relevant minute order reflects that the jury acquitted
Faye on count 9, which charged him with assaulting Hernandez
with a semiautomatic firearm, and count 10, which charged him
with assaulting Allison with a semiautomatic firearm.

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semiautomatic firearm to a person.” Thus, to prove assault with a
semiautomatic firearm consistent with the prosecution’s theory,
the People had to prove Fay shot the gun, i.e., Fay “did an act with
a semiautomatic firearm that by its nature would directly and
probably result in the application of force to a person.”
The People retried Fay on three counts of attempted
murder, one count of shooting at an occupied vehicle, and one
count of assaulting Villamara with a semiautomatic firearm.
Each of these counts also required the People to prove Fay shot
the gun. In acquitting Fay of two counts of assault with a
semiautomatic firearm, the jury might have concluded Fay did not
shoot the gun. Such a finding would mean that the first jury
found in Fay’s favor on an issue of ultimate fact necessary for
conviction on the five retried counts.
For purposes of collateral estoppel, however, it is not
sufficient that a jury even likely acquitted based on the factual
issue in question. (Currier, supra, 138 S.Ct. at p. 2150.) A second
trial is prohibited only if conviction would require the People to
prevail on a factual issue the jury necessarily resolved in Fay’s
favor in the first trial. (Yeager, supra, 557 U.S. at p. 123 [“if the
possession of insider information was a critical issue of ultimate
fact in all of the charges against petitioner, a jury verdict that
necessarily decided that issue in his favor protects him from
prosecution for any charge for which that is an essential
element”].) We cannot conclude based on analysis of the elements
of assault with a semiautomatic firearm, and the evidence,
arguments, and instructions at the first trial, that the jury
necessarily found Fay did not shoot the gun.
The main contested issue at the first trial was Hernandez’s
identification of Fay as the shooter. One of defense counsel’s
primary lines of attack on Hernandez’s identification of Fay was

14
his argument that it was too dark when the shooting occurred for
Hernandez to have identified Fay. Defense counsel argued in his
opening statement that the jury must “remember that this
incident took place about 8:00 o’clock in the evening. An
investigator will come in and he will tell you that he photographed
this area at nighttime and there’s one streetlight in the area
illuminating—poorly illuminating that particular area where the
eyewitness identification takes place. It was extremely dark.”
Fay testified there was “barely” enough light to see other
people outside when the shooting occurred, and that he could not
see people more than six feet away. Defense counsel cross-
examined Hernandez, Villamara, and a sheriff’s deputy about the
“very dark” conditions when the shooting occurred. Defense
counsel also called an investigator to testify about poor lighting at
the scene; at defense counsel’s request, the investigator showed
the jury photographs the investigator took at the scene under
conditions intended to duplicate the dim lighting conditions at the
time of the shooting. Defense counsel returned in his closing
argument to the theme that it was too dark for Hernandez to have
identified Faye: “How well could the witness see the perpetrator?
Well, it was 8:00 o’clock at night. It was dark. We’ve got
photographs that were taken in the dark so you’ll know how dark
it was. You’ll see from those photographs that there was one
streetlight.”
Based on the testimony and other evidence of poor lighting,
and defense counsel’s argument that Hernandez could not see well
enough to identify Fay, the jury reasonably could have concluded
it was also too dark for Fay to see Hernandez and Allison in the
car. The jury therefore could have found the People did not prove
the third element of assault of Hernandez and Allison with a
semiautomatic firearm, i.e., “[w]hen the defendant acted, he was

15
aware of facts that would lead a reasonable person to realize that
his act by its nature would directly and probably result in the
application of force to someone.”
Other instructions and argument at the first trial also could
have caused the jury to reach the conclusion that Fay was
unaware Hernandez and Allison were in the car. In addition to
instructing the jury on assault with a semiautomatic firearm, the
trial court also instructed the jury on the elements of attempted
murder. As part of those instructions, the court instructed the
jury on the “kill zone” theory: “A person may intend to kill a
specific victim or victims and at the same time intend to kill
everyone in a particular zone of harm or kill zone. In order to
convict the defendant of the attempted murder of Jeymi [sic]
Hernandez and Allison Hernandez, the People must prove that
the defendant not only intended to kill Vincente Villamara, but
also either intended to kill Jeymi [sic] Hernandez and Allison
Hernandez or intended to kill everyone within the kill zone.”
In his closing argument, the prosecutor argued no evidence
proved Fay knew the car had three occupants when he shot the
gun: “[T]here was no evidence that [Fay] really knew exactly who
was in the car, but that’s part of the problem. [Fay] acted to kill
who was in there without knowing who was in the car and that
shows still an intent to kill. . . . [Fay] doesn’t need to know Allison
is in the back of the car. . . . We are not required to prove [Fay]
knew every person was in the car.”
The prosecutor appeared to be addressing the “kill zone”
instruction with this argument. The jury, however, conceivably
could have interpreted the prosecutor’s statement that “there was
no evidence that [Fay] really knew exactly who was in the car” to
mean that when Fay shot at the car, he did not know Hernandez
and Allison were in the car, and thus Fay did not realize that his

16
act of shooting would directly and probably result in the
application of force to Hernandez and Allison.
In sum, based on the evidence and argument presented at
the first trial, the jury reasonably could have concluded the People
proved Fay shot the gun, but did not prove that when Fay shot the
gun he knew Hernandez and Allison were in the car, or he was
aware of facts that would cause a reasonable person to realize the
car had occupants other than Villamara. (See People v. Felix
(2009) 172 Cal.App.4th 1618, 1628 [defendant may be guilty of
assault if he has actual knowledge of facts sufficient to establish
his act will directly and probably result in application of force to
someone, or intent to do act which will injure any reasonably
foreseeable person].) We therefore cannot conclude it would have
been irrational for the jury to acquit Fay of assaulting Hernandez
and Allison with a semiautomatic firearm without finding he did
not shoot the gun. (See Currier, supra, 138 S.Ct. at p. 2150.)
Because the jury did not necessarily decide Fay did not shoot the
gun, double jeopardy and collateral estoppel did not bar Fay’s
retrial on the hung counts.
B. The Trial Court Did Not Err in Denying Fay’s Motion To
Dismiss the Information Based on Vindictive Prosecution
1. Applicable law
The due process clauses of both the federal and state
Constitutions prohibit the People from increasing charges against
a criminal defendant in retaliation for the defendant’s exercise of a
constitutional right. (People v. Jurado (2006) 38 Cal.4th 72, 98.)
“A vindictive prosecution claim may be established ‘“by producing
direct evidence of the prosecutor’s punitive motivation.”’” (Short v.
Superior Court (2019) 42 Cal.App.5th 905, 915 (Short); accord,

17
United States v. Goodwin (1982) 457 U.S. 368, 380-381, 384
(Goodwin).)
In the absence of direct evidence, a defendant may raise a
presumption of vindictiveness by making a prima facie showing
that the prosecutor’s actions raise a “reasonable likelihood of
vindictiveness.” (Twiggs v. Superior Court (1983) 34 Cal.3d 360,
373 (Twiggs); accord, Goodwin, supra, 457 U.S. at p. 373.) “[A]n
inference of vindictive prosecution is raised if, upon retrial after a
successful appeal, the prosecution increases the charges so that
the defendant faces a sentence potentially more severe than the
sentence he or she faced at the first trial.” (People v. Ledesma
(2006) 39 Cal.4th 641, 731 (Ledesma).) Similarly, under California
law, a presumption of vindictiveness is raised where the
prosecutor adds additional charges, which subject the defendant to
greater potential liability, after a mistrial. (In re Bower (1985) 38
Cal.3d 865, 873 (Bower); accord, Twiggs, supra, 34 Cal.3d at pp.
368-370 [finding reasonable likelihood of vindictiveness where
charges are increased following mistrial due to deadlocked jury];
but see U.S. v. Thomas (10th Cir. 2005) 410 F.3d 1235, 1247
[addition of charges due to mistrial following a hung jury does not
raise presumption of vindictiveness].)
“In order to rebut the presumption of vindictiveness, the
prosecution must demonstrate that (1) the increase in charge was
justified by some objective change in circumstances or in the state
of the evidence which legitimately influenced the charging process
and (2) that the new information could not reasonably have been
discovered at the time the prosecution exercised its discretion to
bring the original charge.” (Bower, supra, 38 Cal.3d at p. 879;
accord, Blackledge v. Perry (1974) 417 U.S. 21, 29, fn. 7; see also
Robinson v. Superior Court (1986) 181 Cal.App.3d 746, 749 [“The
presumption of vindictive prosecution may be rebutted with ‘an

18
explanation that adequately eliminates actual vindictiveness’
[citation], or by proving ‘that the increase in the severity of the
charges did not result from any vindictive motive’ [citation], or
that the more severe charge was ‘justified by independent reasons
or intervening circumstances which dispel the appearance of
vindictiveness.’”].)
The Supreme Court has not determined the standard of
review for a claim of vindictive prosecution. (See People v. Ayala
(2000) 23 Cal.4th 225, 299 [rejecting the defendant’s claim of
vindictive prosecution “under any standard of review”].) We, like
other appellate courts, review the trial court’s factual findings for
substantial evidence and its legal determination de novo. (Short,
supra, 42 Cal.App.5th at p. 915.)
2. Relevant proceedings
a. Fay’s motion to dismiss the information and the
People’s opposition
Fay moved before the retrial to dismiss the information in
case number TA146912 for vindictive prosecution based on the
People’s addition of gang allegations on each hung count. Fay
asserted the People had long known of his gang membership, but
only added the gang allegations after the mistrial to penalize Fay
for exercising his right to a jury trial. Fay argued the information
should be dismissed because the gang allegations increased Fay’s
maximum exposure in the retrial.
The People opposed Fay’s motion. The People argued no
presumption of vindictive prosecution arose because Fay faced less
prison time in the retrial than he had in the prior case because the
People did not file charges in case number TA146912 related to the
second shooting. The People also argued that if a presumption of

19
vindictiveness had arisen, the People had rebutted the
presumption.
The People submitted a declaration from the prosecutor in
support of their opposition.7 He stated that a district attorney
investigator informed him after the preliminary hearing in case
number TA142782 that Villamara and Hernandez had been
located living out of state. Because Villamara and Hernandez had
been located, the district attorney’s office dismissed case number
TA142782 and refiled the case under case number TA145605 so a
second preliminary hearing could be held at which Villamara and
Hernandez would testify.
The prosecutor stated that he met Villamara and Hernandez
for the first time on the day of the preliminary hearing;
Villamara’s and Hernandez’s testimony at the preliminary hearing
was the first time they had testified about the shooting.8
According to the prosecutor’s declaration, Villamara and
Hernandez “provided greater detail than in the police reports
about the path of travel of their vehicle.” Villamara’s and
Hernandez’s testimony “caused [the prosecutor] to believe for the
first time that [Fay’s] motive for the shooting was that he thought
the victims’ vehicle was turning around to commit a drive by
shooting against him because he was a Ward Lane Compton Crip
standing in front of a known hangout.”

7 The only evidence submitted in connection with the motion
to dismiss for vindictive prosecution was the prosecutor’s
declaration and its exhibits.
8 The People stated Villamara and Hernandez came from out
of state to testify at the preliminary hearing without requiring
subpoenas.

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 The People argued that because the prosecutor did not know
until midway through the preliminary hearing that Villamara had
driven past the residence twice before the shooting, and thus did
not know until the preliminary hearing that the shooting could be
gang-motivated, the People had not charged gang allegations in
case number TA145605 and did not have necessary gang-specific
evidence available to introduce at the preliminary hearing. The
People argued they thus “were confronted with two imperfect
options”: (i) dismiss case number TA145605 and refile the case
again to add gang allegations, “but risk being unable to locate
[Villamara and Hernandez] for trial and being stuck without the
option of refiling” because the new case would be the third filing;
or (ii) proceed on the charges in case number TA145605 and
attempt to introduce evidence of gang motive without charged
gang allegations. Having concluded that “the risks associated with
filing for a third time and being unable to locate [Villamara and
Hernandez] w[ere] too high,” the People proceeded to trial in case
number TA145605 “with hopes that the trial court would
understand the relevance of the gang evidence and it would be
admitted without a charged gang enhancement.”
b. The trial court excludes the gang evidence in the
first trial
At the outset of the trial in case number TA145605, the
prosecutor informed the court that Fay was a Ward Lane Compton
Crip. The prosecutor stated he did not “at th[at] point” plan to
present evidence about Fay’s gang membership, but “it could be
relevant to motive” depending on the defense’s argument “as to
what [Fay’s] motive was, lack of motive and such.”
The trial court responded: “As the court indicated yesterday
off the record, I’ll indicate again, there’s no gang allegation. There

21
is to be no discussion of gangs. . . . [¶] And as of right now since
there is no gang allegation, the court is not going to allow any
mention from either side of any gang graffiti, gang activity, gang
affiliation or anything related to gangs. . . . [¶] The court is making
a ruling that neither side is to make any mention of any gang
affiliation, activity or anything related to gangs. This is not—it
has not been charged as a gang crime and, therefore, it’s not
relevant.”
The trial court reiterated its ruling later in the trial:
“There’s information the court was aware of because I had an
earlier 402 hearing that Mr. Fay is associated with a physical [sic]
gang. That this house was an alleged gang hang-out. During a
search warrant, they found gang graffiti in the house. And I was
aware of all that because I ultimately made a ruling since there
was no gang allegation, that the People are prevented from
eliciting any testimony relating to gangs.”
In discussing the admission of excerpts of a recorded jail call,
the court repeated its ruling: “Although these excerpts will be
allowed in and both sides can make whatever argument they feel
necessary, this does not allow either side to go against my previous
ruling which [is] because there’s no gang allegations there will be
no mention of any affiliation of any gangs by Mr. Fay nor any
other argument regarding gangs.”
Following the court’s ruling, Fay testified in the first trial
that he had been on his way to a liquor store to purchase
marijuana when he “came across the dudes [he] went to school
with, they said [they had] some weed [they] could smoke, so [they]
smoked. And then that situation [the shooting] happened.” Fay
explained that he “was chillin’, talkin’ with them and reminiscing”
when he “heard somebody say[,] ‘watch this car,’ and the car drove
by.” Fay continued, “It kept going so I didn’t pay it no nevermind.

22
Then it made a U-turn and I heard somebody scream[,] ‘It’s coming
back. It’s coming back.’ Then my heart dropped and I heard shots
and I squatted. There was a car in the way so I squatted, and then
I continued to hear shots so I ran into the house.” Fay testified he
thought the shots were coming from the car.
The court declared a mistrial on the hung counts on July 18,
2018. In his declaration in opposition to Fay’s motion to dismiss,
the prosecutor stated that on or about August 22, 2018, he
received a supplemental report from Deputy Strollo in which she
provided information about the Ward Lane Compton Crips and
opined that Fay shot at Villamara’s car because Fay believed the
car contained rival gang members. After receiving Deputy
Strollo’s supplemental report, the prosecutor refiled the case with
gang allegations under case number TA146912.
c. The trial court denies Fay’s motion to dismiss the
information for vindictive prosecution
The trial court denied Fay’s motion to dismiss the
information in case number TA146912 for vindictive prosecution.
The court commented that the prosecutor “made certain strategic
decisions on what to go forward on. Based on the preliminary
hearing [in case number TA145605] he was limited on what[,] he
couldn’t go forward on the gang allegation because it wasn’t
proven up at prelim or it was dismissed at prelim. And things get
dismissed for a variety of reasons, . . . in this case not having a
predicate available.[9] But after that case, the results that

9 The People did not charge gang allegations in case number
TA145605, and thus no gang allegations were dismissed in that
case.

23
happened, it was hung and then the People decided to refile the
case. They have a right to refile it after a hung jury.”
The court did not address the standard applied to vindictive
prosecution claims. The court observed that Fay had been held to
answer on the gang allegations following the preliminary hearing
in case number TA146912. The court ruled, “[T]he People have a
right to file charges that they believe they can prove up in front of
the jury. And ultimately the jury will decide whether [the
prosecutor] can prove up the charges and allegations he’s bringing
forth.”
3. Analysis
Fay’s vindictive prosecution claim is not premised on direct
evidence of the prosecutor’s allegedly punitive motivation. Thus,
we must determine whether the gang allegations gave rise to an
unrebutted presumption of vindictiveness.
Faye contends a presumption of vindictiveness arose because
the gang allegations increased his potential exposure in the
retrial. The People argue no presumption arose because Fay faced
fewer charges and less prison time on retrial because the People
did not refile the three dismissed counts related to the second
shooting, which included an attempted murder charge carrying a
potential life sentence.
The People dismissed the three counts related to the alleged
second shooting before the prior trial began. The People cite no
authority holding that charges dismissed before trial constitute
charges “at the first trial” (Ledesma, supra, 39 Cal.4th at p. 731)
for purposes of a vindictive prosecution analysis. (See Bower,
supra, 38 Cal.3d at p. 877 [presumption of vindictiveness applies
in cases involving retrial after mistrial because “[a]s in the cases
involving retrial after appeal . . . jeopardy ha[s] attached”].)

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Adding gang allegations to each hung count exposed Fay to
sentence enhancements pursuant to section 186.22, thereby
increasing the potential prison time Fay faced in the retrial. A
presumption of vindictiveness thus arose. (Bower, at p. 873.)
The People rebutted the presumption, however. The People
did not locate Villamara and Hernandez living out of state until
after the preliminary hearing in case number TA142782. Upon
locating them, the People dismissed case number TA142782 and
refiled the case under case number TA145605 so Villamara and
Hernandez could testify at the preliminary hearing, which was the
first time they testified about the shooting. According to the
prosecutor’s uncontroverted declaration, during their testimony
Villamara and Hernandez provided more detail about their
vehicle’s path than the prosecutor had previously known—
specifically, that Villamara had driven past the Ward Lane
Compton Crips “hangout” twice before the shooting—which caused
the prosecutor to conclude the shooting was gang-motivated.
Because the prosecutor had been unaware of this information
before the preliminary hearing, the People had not charged gang
allegations in case number TA145605, and the People did not have
gang-specific evidence prepared to introduce at the preliminary
hearing.
Concerned about Villamara’s and Hernandez’s availability,
and having already once refiled the case, the People chose to
proceed to trial on the charges in the information in case number
TA145605. The prosecutor raised with the trial court the
possibility the People might seek to introduce evidence supporting
a gang motive for the shooting. The court ruled that because the
People had not charged gang allegations, no gang evidence would
be admitted. The People thus could not in the first trial present
evidence of Fay’s gang membership, or evidence that the house in

25
front of which the shooting occurred, and where deputies arrested
Fay, was a known “gang hangout.” Nor could the People argue
Fay shot at Villamara’s car because he thought the car contained
rival gang members intending to attack West Lane Compton
Crips. With the gang evidence excluded, Fay testified in the first
trial that the shooting randomly occurred during an impromptu
get-together of school acquaintances at a neighborhood house.
After Fay’s explanation for his presence at the shooting site
seemingly persuaded several jurors in the first trial, the
prosecutor obtained a supplemental report that supported
charging gang allegations, and refiled the case with gang
allegations to ensure the gang motive evidence would be admitted
in the retrial.
These events rebut any presumption the prosecutor added
the gang allegations to retaliate against Fay for exercising his
right to a jury trial, or any other constitutional right. The record
reflects the prosecutor charged the gang allegations after hearing
Villamara’s and Hernandez’s testimony during the preliminary
hearing in the prior case, electing to proceed to trial without
charging gang allegations due to legitimate concerns about
Villamara’s and Hernandez’s availability and the case status, and
having been precluded from introducing gang motive evidence in
the first trial because gang allegations had not been charged. The
trial court did not err in denying Fay’s motion to dismiss the
information in case number TA146912 for vindictive prosecution.

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 DISPOSITION
The judgment is affirmed.

McCORMICK, J.*

We concur:

PERLUSS, P. J.

SEGAL, J.

* Judge of the Orange County Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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