People v. Rivera CA2/4

Filed 8/19/22 P. v. Rivera CA2/4
Opinion following rehearing
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE PEOPLE, B300948

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA143098)
v.

MIGUEL RIVERA,

Defendant and Appellant.

APPEAL from a Judgment of the Superior Court of
California. Ricardo R. Ocampo, Judge. Affirmed in part and
reversed and remanded in part.
David D. Carico, under appointment by the Court of Appeal
for Defendant and Appellant.
Matthew Rodriguez, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Noah P. Hill and Marc A. Kohm,
Deputy Attorneys General for Plaintiff and Respondent.
 A jury convicted Defendant and Appellant Miguel Rivera of
two counts of first-degree murder and two counts of being a felon
in possession of a firearm (Pen. Code1, §§ 187, subd. (a), 29800,
subd. (a)(1)), with true findings he personally discharged a
firearm (§ 12022.53, subd. (d)), the murders were committed for
the benefit of a street gang (§ 186.22, subd. (b)(1)(C)), and a
special circumstance of multiple murder (§ 190.2, subd. (a)(3)).
Rivera’s theory at trial was he committed the shootings in self-
defense.
Rivera argues the trial court erred in (1) admitting his
statements to law enforcement and his confession to a police
operative posing as a cellmate during a Perkins operation;
(2) excluding character evidence of one of the victims under
Evidence Code section 1103; (3) and instructing the jury on
inapplicable theories of self-defense. He further argues (4) these
errors were cumulative; (5) his convictions for felon in possession
should be stayed pursuant to section 654; and (6) his parole
revocation fine should be stricken.
We filed an opinion rejecting Rivera’s arguments and
affirming his conviction. Rivera subsequently filed a petition for
rehearing, arguing for the first time that he was entitled to
retroactive application of newly enacted amendments to section
186.22. (See Assembly Bill No. 333, Stats 2021, ch. 699, § 3 (AB
333).) Rivera contends, and the Attorney General concedes, that
these amendments entitled him to remand and retrial on the
gang enhancements. Rivera also contends that newly enacted
section 1109, also added by AB 333, applies retroactively. Section

1 All further undesignated statutory references are to the
Penal Code.

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1109 requires, upon a defendant’s request, that gang
enhancements and gang participation charges be tried separately
and after other charges. The Attorney General disagrees,
contending section 1109 applies prospectively only. We granted
rehearing and vacated submission to consider these issues.
For the reasons discussed below, the gang enhancements
are reversed. In all other respects, the judgment is affirmed. On
remand, the prosecution shall have the option to retry the
defendant on the gang allegations, and the trial court shall
resentence Rivera.

FACTUAL BACKGROUND

According to trial testimony, as summarized below, Rivera
belonged to the Lynwood Mob gang. He had Lynwood Mob tattoos
on his head, chest and hand.
The shootings occurred on February 28 and March 6, 2017.
Rivera confessed to both shootings in a “Perkins operation.” In a
Perkins operation, an undercover operative, who the suspect does
not know is a police agent, is placed in a cell with the suspect.
(Illinois v. Perkins (1990) 496 U.S. 292, 294 (Perkins).) The agent
is not required to give Miranda warnings before questioning or
interacting with the suspect. (Ibid.) “Conversations between
suspects and undercover agents do not implicate the concerns
underlying Miranda. The essential ingredients of a ‘police-
dominated atmosphere’ and compulsion are not present when an
incarcerated person speaks freely to someone whom he believes
to be a fellow inmate.” (Id. at p. 296)
In an information filed April 11, 2018, Rivera was charged
with four felonies as follows: Count One, the murder of Daniel
Nunez on March 6, 2017 (§ 187, subd. (a)); Count Two, the
murder of Santiago Morales on February 28, 2017 (§ 187, subd.

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(a)); Count Three, possession of a firearm by a felon on March 6,
2017 (§ 29800, subd. (a)(1)); Count Four, possession of a firearm
by a felon on February 28, 2017 (§ 29800, subd. (a)(1)). The
information specially alleged that the murder charges were
violent felonies committed for the benefit of a criminal street
gang subjecting appellant to a 10-year enhancement for each
offense. (§ 186.22, subd. (b)(1)(C).) It also alleged that Rivera, in
the commission of each of the murders, personally discharged a
firearm proximately causing death within the meaning of section
12022.53, subdivision (d). A special circumstance allegation of
more than one offense of murder in the same proceeding was
alleged with respect to both murder counts. (§ 190.2, subd. (a)(3).)
The information also alleged that Rivera had suffered four prior
felony convictions within the meaning of section 667.5,
subdivision (b). Rivera entered a plea of not guilty and denied all
special allegations.

A. Shooting of Santiago Morales, February 27,
2017.

Victim Santiago Morales, age 52, was allegedly an 18th
Street gang member. There was no evidence that Rivera knew
Morales.
Late at night on February 27, 2017, Morales was in his car
in a parking lot on Long Beach Boulevard near Sanborn Avenue
in Lynwood. The lot was behind commercial buildings and located
in Segundos gang territory. Morales had visors covering the front
and rear windows of his car.
Surveillance video from a nearby business depicted the
shooting. Two men approached the car, looked inside, and walked
away. Both men wore hoodies, and their faces were not visible.

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The interior lights of the car flashed, and a man, alleged to be
Rivera, approached the driver’s side. Both men ran away.
After receiving a call for service, a Sheriff’s deputy
responded to the parking lot around 8 a.m. the next day. The
deputy found Morales, fully reclined, covered by a blanket up to
his mid chest, and shattered glass inside the car. The car was
running. No weapons were visible.
A search of Morales’s vehicle yielded a simulated firearm
wrapped in a sock inside a bag that was wedged between the
headrest of the driver’s seat and the backseat. Morales may have
been conscious for a few minutes after being shot.
The bullet entered Morales’s left upper arm, exited through
the other side, and entered his chest. The bullet perforated his
left lung, likely causing death within a few minutes. Morales had
methamphetamine, amphetamine, PCP and marijuana in his
system at the time of his death.

B. Shooting of Daniel Nunez, March 6, 2017.

1. Nunez’s Association with Rivera.

Rivera was acquainted with Nunez, who was an Evil Klan
gang member. The Lynwood Mob and Evil Klan were not
adversaries.
At the time of the shooting, Lizette Rivera 2 was Nunez’s
girlfriend. Lizette associated with members of the Lynwood Mob,
and she knew Rivera as “Nutty” or “Get ‘Em.”
Lizette and Nunez frequently socialized at David “Cricket”
Nakiso’s home, a Lynwood Mob hangout. Nakiso, a senior

2 To avoid confusion, we refer to Lizette Rivera, who is not a
relative of defendant, as “Lizette.”

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member of the Lynwood Mob, was the head of the gang. Lizette
and Nunez had sold firearms to Nakiso in the past. Lizette
sometimes committed crimes for the gang.
Nunez, who was also known as “Scooby,” was a “hothead”
and used his large size to intimidate people. Lizette and Nunez
used methamphetamine daily, and sold drugs and engaged in
check fraud.
Rivera, Nakiso, and others knew Nunez abused Lizette, as
they had seen her with black eyes and a “busted” lip. Shortly
before being shot, Nunez struck Lizette and sprayed her with
pepper spray. On occasions when Nunez struck her, Lizette
would call Nakiso to pick her up. One time, Nunez approached,
chased, and menaced Lizette with a ratchet.

2. Events Leading Up to Nunez’s Shooting.

As noted above, shortly before the shooting, Nunez struck
Lizette, who called Nakiso for help. Rivera arrived in a car driven
by a woman to pick up Lizette. As Lizette got into the car, Rivera
and Nunez exchanged words, and Nunez insulted the Lynwood
Mob. Rivera pointed a handgun at Nunez, who again insulted
Rivera’s gang and called Rivera a “bitch.” Lizette urged Rivera to
stay in the car, and she drove off with him. Nunez was furious.
Later, Nunez called Lizette numerous times, and called other
members of the Lynwood Mob.
Nunez called Nakiso to complain that Rivera had pulled a
gun on him but did not mention insulting the Lynwood Mob. The
Lynwood Mob wanted to “check” Rivera. At that time, Nakiso
gave Nunez the “green light” to assault Rivera the next time he
saw him. Nakiso also berated Rivera for getting involved in
Nunez’s domestic dispute.

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 After the confrontation, Lizette and Rivera hid out for a
while. Lizette was angry because she felt she was being forced to
choose between Nunez and Rivera. Rivera agreed to make
amends with Nunez, and Rivera called Nunez. Nunez was not
interested, however, and told Rivera he had a “green light” to
beat him up.
Nunez was angry with Rivera because Rivera did not
deliver drugs that Nunez had paid Rivera $50 to buy for him.
After complaining about the failed drug deal to Nakiso, Nunez
got another “green light” to assault Rivera. Rivera went into
hiding.
Rivera told Lizette about the Morales shooting, telling her
he had been involved in a “shootout” with someone on Long
Beach Boulevard. Rivera believed it involved someone from the
Segundos gang, but he was not sure. Lizette did not believe him
because she had not heard about it.

3. The Day of the Nunez Shooting.

The day of Nunez’s shooting, Lizette went to Nakiso’s house
to wait for Rivera to arrive. Rivera was going to give Lizette a
ride to the County of Los Angeles’s general relief office in
Compton. Rivera, Jose Romero (“Face”), another gang member
known as “Stranger,” and a woman Lizette believed was Face’s
girlfriend picked her up. Face was a Lynwood Mob member.
On the way, the group stopped at a parking lot memorial
that had been set up for Morales. Rivera got out of the car and
spat on the memorial. After he got back into the car, he said to
Lizette, “See, I wasn’t lying.” A surveillance video of the stop at
the memorial was played for the jury. It showed Rivera walking
toward the memorial, but it was unclear if Rivera was spitting.

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 During the drive, Lizette saw “Face” display a handgun.
The handgun was passed around. After a discussion of who would
hold the gun, it was given to Rivera. Lizette spent about an hour
at the relief office.
On the way back from the relief office, they stopped at a gas
station near the 91 Freeway. Inside, a customer and Face
exchanged words with each other. Lizette attempted to break up
the altercation because everyone in the store was looking, and
she did not want anyone to call the police. Rivera left the store,
but turned to go back in. Lizette reminded him there were
cameras everywhere. They all left the store. Surveillance video
from the gas station was played for the jury.
When they left the gas station, Rivera was angry because
he believed Face had caused Rivera to be disrespected, and that
Face should have shown the man in the store that “he wasn’t a
bitch.”

4. The Nunez Shooting.

After dropping “Stranger” off, they headed to Nakiso’s
house. Rivera continued to argue with Face and wanted to get out
of the car. Lizette had been texting Nunez and told him that she
was returning from the relief office. She told him who was in the
car, and Nunez said he could go to Nakiso’s and pick her up. She
told him not to go to Nakiso’s because of the previous altercation
between Rivera and Nunez, and she did not want them to run
into each other again. She told Nunez she would meet him
halfway. Lizette let Nunez know that Rivera had a gun. Nunez,
however, wanted to confront Rivera and settle a debt with
Nakiso.

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 Lizette wanted to pick up her bike from Nakiso’s yard.
Nakiso lived in a converted garage on Second Avenue in
Lynwood, and the yard gate was locked. The garage fronted an
alley. Nakiso, Face, and Rivera were in Nakiso’s garage. Lizette
asked for the key to the yard gate. Lizette went into the garage
and heard Nakiso talking about Nunez’s drug debt. She offered to
pay it, but Nakiso refused. Lizette found his refusal “strange”
because Nunez and Nakiso had a close bond. Lizette gave Nakiso
a $20 bill and started to hand him a second $20 bill, but Rivera
grabbed it. Rivera said he was tired of Nunez “getting a pass.”
In between the time Lizette handed Nakiso the first and
second $20 bills, she heard Nunez’s distinctive whistle coming
from the alley behind the garage.
Lizette was afraid, and asked Nakiso if he had the gun. He
told her he did. Nunez whistled again and Lizette went to the
gate. Lizette thought it was strange they could not find the key,
because “they never lose it.” Nunez told Lizette they were
intentionally not letting her get her bike. Lizette was ready to
jump the gate, but Nunez told her not to because it was going to
be “all bad” if she did.
Face berated Nunez for owing money to Nakiso. Lizette
was surprised because Face was unusually bold in speaking to
Nunez. Face asked why Nunez did not pay Nakiso for the drugs.
Lizette told Face she had paid Nakiso, and Nunez became
angrier. Lizette went back inside to find the key.
Lizette heard someone walking on the gravel in the
alleyway. She testified her “heart fell to [her] stomach.” She ran
outside and saw Rivera approaching. Nunez’s back was to Rivera
because he was still talking to Face. Lizette warned Nunez that
Rivera was approaching. Nunez shifted toward Rivera.

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 Lizette was holding Nunez’s hand. Nunez asked Rivera
“what is your problem,” and Lizette tried to calm Nunez down.
Lizette at this time believed the gun was still inside because
Nakiso told her he had the gun. She did not want a fight to break
out. Rivera was staring at Nunez. Nunez had let go of Lizette’s
hand. Nunez pulled up his pants as he stepped toward Rivera.
Rivera pulled a gun out and shot Nunez twice. Lizette
jumped over the gate, screaming at the top of her lungs. Her
phone fell. Nunez was still standing and told Lizette he was okay.
She laid him on the ground. Nakiso and Face were gone, and the
garage door was shut. Rivera ran away, and Lizette screamed for
someone to call 911. Nunez began convulsing and told her he
could not breathe. Lizette reached into Nunez’s pockets to see if
she could find a phone, but instead found a drill. The drill had a
silver tip. Later, police on the scene of the shooting observed a
portion of the drill was outside Nunez’s waistband.
The fire department arrived, gave Nunez CPR, and took
him away in an ambulance. Nunez sustained gunshot wounds to
the upper right back and right side of the chest. One bullet
entered his upper right back slightly to the midline, travelled
sharply downward from right to left, perforated the right lung,
diaphragm, and liver, and ended up near the spine. The second
bullet perforated the right lung, diaphragm, and spleen, and
exited on the left side of the chest. Nunez had methamphetamine
in his system at the time of his death.

C. Lizette’s Statements to Law Enforcement

After they arrived, deputies spoke to Lizette about the
Nunez shooting. She did not tell them she knew who shot Nunez.
Lizette was afraid to say anything because Nakiso and others

10
were standing outside the garage. She did tell deputies she saw
the interaction between Nunez and the shooter and saw the
shooter approach through the alley. Lizette heard Nunez ask the
man if he had a problem, and the man shot Nunez twice and fled.
Later, on March 7, 2017, Lizette spoke to two deputies at
the Sheriff’s station and told them what had happened.3 Lizette
was afraid of retaliation for talking to the authorities and was
concerned for her personal safety. Nakiso tried to contact her
after the shooting, but she did not talk to anyone because she was
scared. Nakiso and three other men visited her at the hotel room
where she had been staying after the shooting and brought her
bike. Nakiso tried to persuade her to leave with him. Later,
Nakiso visited Lizette at a different motel and said Nunez was a
“piece of shit” and deserved to die.
Eventually, law enforcement provided funds for her to
relocate, and she stayed at a motel. Lizette was still relocated at
the time of trial.
In a March 9, 2017 interview with a Sheriff’s deputy,
Lizette recounted the events surrounding Morales’s shooting. She
told the deputy what Rivera had told her about his conflict with
Morales and the shooting, Rivera’s conduct at the memorial, and
Rivera’s shooting of Nunez. Rivera told Lizette there was a
“shootout” with “some guy” from Segundos.
She added that Nunez recently had provoked members of
the Paragons gang by verbally insulting them and driving his
vehicle at them. The Paragons responded by shooting at Nunez’s
truck.

3 An audiotape of Lizette’s interview was played for the jury.

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 D. Rivera’s Arrest, April 25, 2017.

Rivera was arrested on April 25, 2017. Detectives informed
Rivera at an interview conducted that day that he was under
arrest for the Morales and Nunez shootings.4 Both murders had
been committed with a 9mm handgun, and Sheriff’s Department
forensics was determining whether the shootings were committed
with the same weapon. After Rivera denied involvement in the
shootings, detectives told him there was surveillance video of the
Morales shooting and that he was in the video. Rivera then
admitted being at the scene of the memorial. Rivera also told
detectives that Face and Demon were the shooters. Rivera
indicated he was saddened by Morales’s death and visited the
memorial.
On April 25, 2017, the Sheriff’s detectives conducted a
Perkins operation. Rivera did not admit his involvement in the
shootings. During a second Perkins operation, conducted the next
day, Rivera told his cellmate, an undercover informant,5 that he
was being charged with three murders, but did not know what
the third one was. According to Rivera, the authorities had
numerous descriptions of the suspect, but none fit him. Rivera
stated the second murder was in the alley behind “big homie’s”
house. Rivera admitted he was on video for the first murder, but
his face was covered, and he believed the detective lied when he

4 Initially, Rivera was a suspect in a third murder committed
March 11, 2017. Detectives later ruled him out as a suspect.

5 The informant was paid $1,500 and received information
from detectives about the murders. Portions of the taped
conversation were played at trial.

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said they could see his face. The detectives knew he was involved
in the second murder, however, because it was the same gun. He
called Nunez a “snitch.”

E. Forensic Evidence.

A comparison of the bullets from both victims established
they had been fired from the same weapon. Two shell casings
were found in the alley where Nunez was shot. No casings were
found where Morales was shot.

F. Gang Evidence.

Deputy Bryce Chalmers of the Sheriff’s Department
Operation Safe Streets Bureau testified as a gang expert. He was
familiar with Lynwood gangs.
According to Chalmers, Rivera was an active member of the
Lynwood Mob. Rivera has an “LMX 3” tattoo, standing for
“Lynwood Mob 13,” signifying allegiance to the Mexican Mafia.
He has a tattoo with the letters “CK,” with the “C” crossed out,
standing for Crip Killer. On the index finger of his right hand is a
tattoo of the word “Bang.”
Chalmers testified that the Lynwood Mob gang was started
in the 1980s and at the time of trial had about 40 members, with
about a third of them active. The gang is aligned with the
Mexican Mafia. Its territory stretched from California Avenue to
the West, Imperial Highway to the South, and Martin Luther
King Boulevard to the East. Rival gangs included the Segundos
and the 211 Crips. The Lynwood Mob was aligned with the Vario
Paragons and the Rude Boys.

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 Morales was killed in Segundos territory. Jose Romero
(“Face”), David Nakiso (“Cricket”), Ernie Lopez (“Smokey”) are all
documented members of the Lynwood Mob.
According to Chalmers, gang members generally do not get
involved in domestic disputes involving other members in their
own gang. An exception would be if the “Big Homie” told a gang
member to go and rescue the domestic violence victim. Someone
in a gang who has been called a “bitch” by another gang member
will have lost all credibility, and the only way for such an
individual to regain respect would be to commit a violent act. The
reputation of the Lynwood Mob would have been weakened as the
result of Nunez disrespecting the gang by calling one of its
members a “bitch,” and by the fact that Rivera drew a firearm
but did not use it.
Chalmers also opined that the shooting of Morales was for
the benefit of a criminal street gang. The shooting occurred in
rival gang territory and thus the shooter would gain respect
(among gang members). Chalmers believed Rivera was
exaggerating when he told people he got into a “shoot-out.”
Finally, Chalmers stated gang members commonly carried
weapons. Asking a member if they “had a problem” would be
viewed as a challenge.

G. Defense Evidence.

Rivera did not testify at trial. His defense theory at trial
was that he shot both men in self-defense because he feared both
victims were reaching for firearms: Morales had a prop gun in his
car, and Nunez had a drill in his pants that resembled a weapon.
Laura Cazares testified she lived near Nakiso’s house and
heard gunshots and Lizette’s screams and went out to

14
investigate. She called 911 at Lizette’s request. Lizette told her
she did not know who shot Nunez.
When Sheriff’s Detective Martinez interviewed Lizette, she
told him she did not know who shot Nunez. Lizette told Detective
Martinez that the shooter wore a hoodie, and she believed he was
from Mara Salvatrucha.
Ryan O’Connor, M.D., conducted a toxicology analysis of
the victims. Both victims had methamphetamine in their systems
when they died. Methamphetamine causes mood swings and
aggression, as well as violent or impulsive behavior, although an
individual can build up a tolerance. O’Connor opined that Nunez
was highly intoxicated at the time of his death.
Dr. O’Connor reviewed the coroner’s report and opined that
the path of one of the bullets in Nunez’s body was potentially
consistent with him bending over. Dr. O’Connor opined that
Morales’s wounds indicated he was partially turned away from
the gun.
Leslie Morales6 testified she had been dating Face for
several months, and had been to Nakiso’s home.7 She knew that
Face was a gang member. Rivera went by the name “Nutty” and
“Get ‘Em.” According to Leslie, they stopped at the memorial for
the purpose of changing seats. After confronted with the
surveillance video showing Rivera approached the memorial,
Leslie stated she could not see what he did.
Regarding the stop at the gas station, Leslie recalled that a
man bumped into Face, which made him angry. Face did not pull
out a gun. Leslie attempted to calm him. Rivera told Face not to

6 To avoid confusion, we refer to Leslie Morales as “Leslie.”

7 Face died in a traffic accident in July 2017.

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let people disrespect him. After the group left the gas station, she
dropped them off at Nakiso’s garage. She did not remember a gun
nor a discussion of one.

H. Verdict and Sentencing.

The jury found Rivera guilty on the two murder counts
(Counts 1 and 2) and the two felon in possession of a firearm
counts (Counts, 3, and 4). The jury found true the firearm use
allegations and that the crimes were gang related.
The trial court sentenced Rivera to life without the
possibility of parole on the two murder counts, plus 25 years to
life (consecutive) for the gun use enhancement, plus 10 years
each (consecutive) for the gang enhancements. On Counts 3 and
4, the trial court sentenced Rivera to a determinate term of three
years, eight months (consisting of an upper term of three years on
Count 3 and one-third of the midterm of eight months on Count
4) to run concurrent with the sentences on Counts 1 and 2.

DISCUSSION

I. ASSERTED VIOLATION OF MIRANDA RIGHTS.

Rivera argues his incriminating statements were obtained
as a result of a two-step strategy designed to circumvent
Miranda, and that their admission violated his Fifth Amendment
right against self-incrimination. He contends deputies improperly
obtained information from him before Mirandizing him, and used
this information to prepare the Perkins informant, thereby
tainting his confession to the informant.

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 A. Factual Background.

Before trial, Rivera moved to suppress his statements made
both to the police and the civilian informant in his jail cell.

1. Arrest and Interrogation.

(a) First Perkins Operation.

Rivera was arrested on April 25, 2017 and placed in a jail
cell with a civilian informant. The informant told Rivera that he
had been charged with attempted murder. Rivera did not tell the
informant anything related to the murders.

(b) Interview with Defendant.

Shortly after his arrest on April 25, Detectives Arias and
Guzman interviewed Rivera for about 45 minutes. As the trial
court noted, the interview consisted of three segments: (1) before
Miranda warnings were given, (2) after Miranda warnings were
given, and (3) after Rivera invoked his rights to counsel and
against self-incrimination.

(i) Pre-Miranda.

Detectives interviewed Rivera without Miranda
advisements. Rivera gave detectives information concerning his
name, address, and phone number, and told detectives he lived
with his girlfriend, their daughter, and her adult children. Rivera
was on probation. Although he admitted prior gang membership,
Rivera denied being a current member of the Lynwood Mob.
Detectives told Rivera they were investigating the
February 28 shooting of a sleeping man shot in his car near
Sanborn and Long Beach Boulevard. The detectives told Rivera

17
that he had been arrested for this shooting. Rivera admitted he
had heard about the killing and that it was a “hood” thing. After
being told there was video of the killing, Rivera responded that
he knew there were cameras in the area. Detectives told Rivera
they could identify him from the video, and asked whether Rivera
had been there. Rivera denied being at the parking lot.

(ii) Post-Miranda.

Detectives gave Rivera his Miranda warnings. Rivera
stated he was aware of his rights in light of prior contacts with
law enforcement. He wanted to clear up the matter and admitted
being in the area of the February 28 shooting. He told the
detectives that Face had done it, and he was with Demon at the
time. Rivera claimed that Demon looked like him, and Demon
was the one who shot Morales. Rivera recognized Morales from
his photograph at the memorial.
The detectives told Rivera one of the three murder victims
was “Scooby,” who was murdered about a week after the Morales
shooting in an alley off Second Avenue. Rivera denied any
knowledge of the shooting. Rivera professed it would have been
stupid for him to commit a crime there because he was so well
known in the area.
The detectives then told Rivera that the third murder was
committed March 11. Additionally, they said all three murders
were committed with a 9mm weapon and the detectives were
awaiting ballistics results. The detectives told Rivera they had
probable cause to arrest him for all three murders, and a judge
had approved the arrest paperwork.
The detectives told Rivera they had video of him spitting on
the memorial, and said he did not look sad.

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 (iii) Post Invocation of Miranda
Rights.

About 14 minutes after his Miranda warnings, Rivera
invoked his right to counsel and stated, “I’m done talking, I said
what I had to say.” After detectives asked Rivera to clarify his
statement, Rivera again said, “I’m done.” After being told he had
a chance to “clear” himself and detectives had given him every
opportunity to do so, detectives continued talking to Rivera for
another 19 minutes.
Detective Guzman stated, “I’m not even trying to imply
that you’re not telling me the truth. I’m just asking you a
question. How do you know that Demon is the shooter instead of
Face, how do you know that? It’s just a question.” Rivera
responded that Face had told Rivera he and Demon were walking
on Sanborn and they caught someone sleeping in the car. Rivera
did not know what set Demon off, but Demon shot the man in the
car. Rivera knew about the shooting because he overheard
Demon talking to someone in Lynwood. Rivera did not know
whose gun was used in the shooting.
Rivera stated he had heard about Nunez because Nunez
was Lizette’s boyfriend. He denied knowing anything about the
shooting. Detective Arias told Rivera, “three murders is serious.”
Rivera asked, “[a]ll those three are me?” Detective Guzman
responded, “Yes.” Detective Arias added, “[w]e can’t arrest you
without probable cause.” Rivera responded: “I’m done here,
thanks—I’m cool, I’m done here.”
The detectives continued, telling Rivera they had
eyewitnesses and videos to all three murders. Rivera responded
he had people who would vouch for him. Detective Guzman asked
Rivera how his girlfriend would be “able to prove” that he was

19
with her. At that point, Rivera asked to end the interview.
Detective Guzman stated, “[w]ell we will end it ‘cause [sic] we
just wanted to give you the opportunity to clear your
name[¶]. . . .[¶] [I]f I was sitting where you were . . . . I wouldn’t
be asking to end it. I’d be telling you every single thing I could to
help clear my name, that’s what I’d be doing.” Rivera said he had
told them what he knew, but Detective Guzman rejected this
assertion.
Again, Rivera asked to end the interview. Detective Arias
responded, “you stay sitting down until we ask you to get up.
Okay?” Rivera said he was just trying to pull up his pants, but
Detective Guzman responded, “when you leave the room it’s
because we take you out of the room.” Detective Arias inserted,
“We gave you every opportunity to help yourself and your
daughter and your family. You’re getting offended and wanting to
end this. You want to end it, not us, you do. So we will end it
because you want to end it. Not because you want to help yourself
by trying to give us the details we need.”
Detective Arias accused Rivera of lying to them and
changing his statements during the interview. Rivera stated “I
didn’t do it. I didn’t.” Detective Guzman said that if they thought
Face did it, Face would have been “in that chair right now.” The
detective continued, “we know . . . there’s no confusion between
you and Demon.” The interview concluded when Detective
Guzman stated, “I think we’re done then.”

(c) Second Perkins Operation.

With the information obtained from their interview, the
detectives briefed the informant and instructed him to get any

20
information he could. Later that day, detectives put Rivera in a
jail cell with the informant and recorded the conversation.
Rivera told the informant the police knew about two
murders, but the third one “wasn’t me.” The informant asked
Rivera if he had been charged, and whether the same gun was
used. Rivera responded that the detectives had video of the first
murder, but he did not know how they knew he committed the
second murder. Rivera surmised it was because the same weapon
was used for both crimes. One crime occurred in an alley behind
the “big homie’s house.” Rivera did not believe they could identify
him in the video of the parking lot shooting because his face was
covered. In response to the informant’s query, Rivera stated he
had gotten rid of the gun.

2. Rivera’s Exclusion Motion.

At the preliminary hearing, Detective Guzman stated there
was no specific reason they did not give Rivera his Miranda
warnings at the start of the interview. Although Detective
Guzman knew that statements made post-invocation would not
be admissible, they wanted the statements because they were
going to conduct the Perkins operation.
Rivera argued that the pre-Miranda and the post-Miranda
statements, and his statements to the Perkins informant, were
inadmissible. Where detectives employ a two-step strategy of
eliciting admissions pre-Miranda to make post-Miranda
admissions more likely, he argued, the latter statements must be
excluded because the strategy is employed to undermine Miranda
rights. The Perkins operation evidence, he urged, must be
excluded because it was based upon statements improperly
obtained in the interview. Rivera conceded his stance is contrary
to People v. Orozco (2019) 32 Cal.App.5th 802 (Orozco), but

21
argued Orozco was wrongly decided and, in any event, is
distinguishable because Rivera’s statements to the Perkins
operative were involuntary.

3. Trial Court Ruling.

The trial court granted the motion in part and denied it in
part. The court excluded all pre-Miranda portions of the
interview except for statements concerning Rivera’s biographical
information. The court ruled statements given after Miranda
warnings were admissible as Rivera understood his rights and
there was not much overlap with pre-Miranda questioning. The
court found statements given after Rivera’s invocation of his
Edwards8 right to counsel were inadmissible as Rivera clearly
invoked his Fifth Amendment rights (by stating, “I’m done”).
The trial court admitted Rivera’s confession to the
informant, relying in Orozco, supra, 32 Cal.App.5th 802, viewing
the Perkins operation as separate from the interrogation.

B. Discussion.

1. Standard of Review.

“In reviewing the trial court’s ruling on a claimed Miranda
violation, ‘we accept the trial court’s resolution of disputed facts
and inferences, and its evaluations of credibility, if supported by

8 Edwards held that a suspect who has invoked his or her
Miranda right to counsel may not be “subject[ed] to further
interrogation by the authorities” on any crime at all unless
(1) counsel is present at the time of any further questioning, or
(2) the suspect “himself initiates further communication,
exchanges or conversations with the police.” (Edwards v. Arizona
(1981) 451 U.S. 477, 484–485.)

22
substantial evidence. We independently determine from [those
facts] whether the challenged statements were illegally obtained.’
[Citation.]” (People v. Elizalde (2015) 61 Cal.4th 523, 530.) Issues
relating to the suppression of statements made during a custodial
interrogation are evaluated under federal constitutional
standards. (People v. Flores (2020) 9 Cal.5th 371, 416.) If an
interview is recorded and the facts surrounding the admission
are undisputed, we apply independent review. (People v. Leon
(2020) 8 Cal.5th 831, 843.) We do not express any view on
whether we endorse or condemn the particular interrogation
techniques employed in this case; instead, our role is to
determine whether those techniques comport with constitutional
standards as articulated in guiding precedent.

2. Legal Principles Governing Miranda
Inquiry.

“‘To safeguard a suspect’s Fifth Amendment privilege
against self-incrimination,’” a custodial interrogation must be
preceded by Miranda9 warnings and by the suspect’s knowing
and intelligent waiver of them. (People v. Leon, supra, 8 Cal.5th
at pp. 842–843.) A statement obtained in violation of a suspect’s
Miranda rights may not be admitted to establish guilt in the

9 Statements made by a defendant subject to custodial
interrogation are inadmissible unless the defendant was “warned
that he has a right to remain silent, that any statement he does
make may be used as evidence against him, and that he has a
right to the presence of an attorney, either retained or appointed.
The defendant may waive effectuation of these rights, provided
the waiver is made voluntarily, knowingly and intelligently.”
(Miranda v. Arizona (1966) 384 U.S. 436, 444–445.)

23
prosecution’s case-in-chief. (People v. Elizalde, supra, 61 Cal.4th
at pp. 531–532; People v. Krebs (2019) 8 Cal.5th 265, 299 (Krebs).)
“[T]he mere fact that a defendant has made unwarned
admissions does not render subsequent warned confessions
inadmissible [Citations.]”. (Krebs, supra, 8 Cal.5th at p. 307,
citing Oregon v. Elstad (1985) 470 U.S. 298, 314 (Elstad).) In
Elstad, an 18-year-old burglary suspect spontaneously spoke to
police in his parents’ living room pre-Miranda warnings. (Elstad.
at pp. 300–301.) Elstad held that “[a] subsequent administration
of Miranda warnings to a suspect who has given a voluntary but
unwarned statement ordinarily should suffice to remove the
conditions that precluded admission of the earlier statement.”
(Id. at p. 314.) Elstad acknowledged, however, that if the
prewarning statement is the product of actual coercion, “the time
that passes between confessions, the change in place of
interrogations, and the change in identity of the interrogators all
bear on whether that coercion has carried over into the second
confession. [Citations.]” (Id. at p. 310.) Thus, when considering
whether an initial failure to warn taints any subsequent warned
statement, the touchstone inquiry is whether both prewarning
and postwarning statements were voluntary under the
traditional due process test. (Id. pp. 317–318.)
The two-step interrogation process used here was
denounced in Missouri v. Seibert (2004) 542 U.S. 600 (Seibert),
which revisited Elstad. Seibert concluded the Elstad rule was
inapplicable when an officer intentionally uses a two-step
interrogation process in order to circumvent Miranda. (Seibert,
supra, 542 U.S. at p. 604 (plur. opn. of Souter, J.).) In Seibert, the
officers intentionally did not Mirandize the suspect before
questioning her for 30 to 40 minutes. (Id. at pp. 604–605) The

24
suspect admitted having information regarding a murder, and
the officers took a 20-minute break. (Id. at p. 605.) After
resuming the interview, the defendant was given her warnings.
(Ibid.) The officer testified he had been taught, as an
interrogation technique, to “question first, then give the
warnings, and then repeat the question ‘until I get the answer
that [the suspect] already provided once.’ [Citation.]” (Seibert, at
pp. 605–606.)
Seibert “confronted a situation where the interrogating
officer ‘made a “conscious decision” to withhold Miranda
warnings.’ [Citation.]” (Krebs, supra, 8 Cal.5th at p. 308.) Seibert
distinguished Elstad’s “good faith Miranda mistake” from the
questioning in the case before it, which had been “systematic,
exhaustive, and managed with psychological skill.” (Seibert,
supra, 542 U.S. at pp. 615–616 (plur. opn. of Souter, J.).) The
Seibert plurality created a new test to determine whether the
Miranda warnings administered after questioning commenced
were effective enough to protect a defendant’s rights against
involuntary self-incrimination. The new test called for
consideration of “the completeness and detail of the questions
and answers in the first round of interrogation, the overlapping
content of the two statements, the timing and setting of the first
and the second, the continuity of police personnel, and the degree
to which the interrogator’s questions treated the second round as
continuous with the first.” (Id. at 615.)
In Seibert, Justice Kennedy issued a separate opinion,
concurring in the judgment but rejecting the plurality’s
conclusion a “multifactor” test should apply whenever a two-stage
interrogation occurs. (Seibert, supra, 542 U.S. at p. 622 (conc.
opn. of Kennedy, J.).) Justice Kennedy fashioned an inquiry

25
focused on whether the officers deliberately employed a two-step
interrogation designed to undermine the effectiveness of Miranda
warnings. (Ibid.) If the two-phase interrogation was deliberate,
then any post-warning statement related to the substance of
prewarning statements must be suppressed “absent specific,
curative steps.” (Id. at p. 621.) On the other hand, if the two-step
interrogation was not deliberate, then Justice Kennedy believed
Elstad should continue to govern the admissibility of a post-
warning statement by evaluating whether the prewarning and
postwarning statements were voluntary. (Id. at p. 622.)
The fragmented composition of Seibert has “given rise to a
debate over whether it is the plurality’s opinion or Justice
Kennedy’s concurrence that provides the controlling standard.
[Citations.]” (Krebs, supra, 8 Cal.5th at p. 309.) Krebs observed
that while the Sixth Circuit Court of Appeals has adopted the
plurality’s multi-factor test, other circuits (including the Second,
Third, Fifth, Eighth, Ninth, and Eleventh) have all adopted
Justice Kennedy’s approach. (Ibid.) The California Supreme
Court has not yet determined which approach controls,
concluding in Krebs it was unnecessary to address the question
because the defendant’s argument failed under either. (Ibid.)

3. The Trial Court Properly Admitted the
Statements Obtained at the Interrogation
and Through the Perkins Operation.

(a) No Violation of Seibert.

Rivera argues that law enforcement’s deliberate strategy to
violate his Miranda rights required suppression of all
incriminating statements made not only during his custodial
interrogation but during the Perkins operation as well. In

26
particular, Rivera complains that the trial court failed to analyze
his statements under Seibert and whether the officers
deliberately used a question-first, warn-later approach. He
requests this court to independently analyze whether there was a
deliberate two-step strategy and whether the midstream
warnings functioned to allow him to make an informed waiver.
He points to the facts that the first round was lengthy, detailed,
coercive, and continuous with the second round; the two rounds
overlapped in content; they were conducted in the same custodial
setting; and the interrogators treated the two rounds as
continuous.
We disagree. There was no systematic questioning before
the Miranda warnings, nor was there any evidence the detectives
were attempting to avoid Miranda through a deceptive two-step
process.
Here, the first Seibert factor, an inquiry into the
completeness and detail of the first round, shows little transpired
other than the officers’ statements about the Morales shooting,
the contents of the video, and their purported identification of
Rivera. Rivera denied involvement in the Morales shooting and
denied being at the parking lot, but admitted he knew about the
cameras, had heard about the shooting, and believed it was a
“hood” thing. The Nunez shooting was not mentioned.
On the second factor, after being given Miranda warnings,
Rivera offered greater detail, blaming the Morales shooting on
Demon. At that point, the detectives confronted Rivera with the
Nunez shooting, told him he was a suspect in three murders, and
told him they had probable cause to arrest him for all three
murders. Rivera continued to deny involvement. Post-invocation,
Rivera continued to deny involvement, and although the

27
detectives continued questioning, Rivera repeatedly stated he
was “done.”
On the third and fourth factors, the pre- and post-Miranda
portions of the interview were conducted at one time, with the
same detectives, although on the fifth factor, the detectives did
not treat the second round as continuous with the first because of
the increased level of detail post-Miranda.
Our evaluation of these factors indicates that the detectives
did not engage in a deliberate “question first, warn later”
approach designed to elicit a confession such that the subsequent
Miranda warning was ineffective. Indeed, after being given the
warning, Rivera gave the detectives greater detail. There never
was a confession. This is thus not the situation where the un-
Mirandized portion of the interview left “little, if anything, of
incriminating potential . . . unsaid.” (Seibert, supra, 542 U.S. at p.
616; see also Bobby v. Dixon (2011) 565 U.S. 23, 29–31 [key issue
whether defendant confessed to crime before Miranda
warnings].)

(b) Statements Made During the Perkins
Operations Were Not Tainted.

Rivera seeks to invoke the “fruit of the poisonous tree”
doctrine developed in such cases as Wong Sun, et al. v. United
States (1963) 371 U.S. 471, 488, and apply it to the Perkins
operation on the basis the Perkins operation benefitted from the
alleged Miranda violation. He asserts the interrogation and the
Perkins operation were not separate but part of one continuous
enterprise, and the court erred in permitting the jury to hear the
interview in order to make sense of the Perkins operation.
Further, he argues the trial court’s reliance on Orozco, supra, 32

28
Cal.App.5th 802, was misplaced because the custodial
interrogation and Perkins operation were not separate events,
and in any event, not only is Orozco distinguishable, it was
wrongly decided.
We disagree. In Perkins, the Supreme Court held
statements made to a police informant did not implicate Fifth
Amendment rights against self-incrimination because there was
no police-dominated atmosphere and no compulsion to answer.
(Perkins, supra, 496 U.S. at pp. 296–297.) Thus, admission of
Rivera’s unwarned statements to the informant did not violate
Miranda.
In addition, no court has addressed invocation of Miranda
rights prior to a Perkins operation and the effect of any
statements obtained in violation of Miranda in such a situation.
We decline Rivera’s invitation to do so. Relying on language in
Perkins and the underlying policy of Miranda and Edwards, the
California Courts of Appeal have long rejected the argument
Rivera makes here, holding that Miranda and Edwards are not
implicated when a defendant who has invoked the Miranda right
to counsel subsequently speaks to a person he or she does not
know is an agent of the police. (Orozco, supra, 32 Cal.App.5th at
p. 814; accord, People v. Plyler (1993) 18 Cal.App.4th 535, 544–
545; People v. Guilmette (1991) 1 Cal.App.4th 1534, 1539–1542.)
In analyzing the issue, Orozco concluded Perkins, not
Edwards, controlled the admissibility of any statements made to
an undercover agent after Miranda warnings. (Orozco, supra, 32
Cal.App.5th at p. 813.) First, Edwards applied its rule only to
further “interrogation” of the suspect. (Ibid.) Indeed, Edwards
observed that “‘[a]bsent . . . interrogation, there would be no
infringement of the [Miranda] right [to counsel].’ [Citation.]”

29
(Ibid.) Second, the rationales of Miranda and Edwards, the
pressure of custodial interrogation, do not apply where the
suspect speaks freely to someone they do not consider to be law
enforcement. (Id. at p. 814.) Third, California courts have
uniformly held Perkins controls when a suspect invokes his
Miranda right to counsel but later speaks with someone he does
not know is an agent of the police. (Id. at p. 815) We agree with
Orozco that Perkins controls the admissibility of Rivera’s
statements to the informant, and find the trial court did not err.

(c) Rivera Has Not Demonstrated His
Statements to the Informant Were
Involuntary

Rivera further argues his statements to the informant were
involuntary and deprived him of due process under the
Fourteenth Amendment. Further, he asserts he was misled by
the detectives that an information had already been filed,
requiring us to address whether the lawfulness of the Perkins
operation should be addressed as though his right to counsel had
already attached.

(i) Factual Background.

After his arrest on April 25, Rivera was interviewed, at
which time the detective falsely told him that a magistrate had
made a probable cause determination. The felony complaint was
not filed until two days later, after the completion of the two
Perkins operations. Shortly after the detective made his
misrepresentation, Rivera asserted his right to counsel.

30
 (ii) Discussion

The right to counsel attaches at the time of filing a felony
complaint. Once this right attaches and has been asserted, law
enforcement may not use an informant to obtain information
from a defendant. (See, e.g., Massiah v. United States (1964) 377
U.S. 201, 205–206 [interrogation of defendant without presence of
counsel after indictment prohibited]; People v. Viray (2005) 134
Cal.App.4th 1186, 1198-1199 [same].)
The constitutional right to due process secured by the
federal and California Constitutions mandates the suppression of
an involuntary confession. (People v. Linton (2013) 56 Cal.4th
1146, 1176.) A confession is involuntary if official coercion caused
the defendant’s will to be overborn, such that the resulting
statement is not the product of free will. (Ibid.) We judge whether
a confession was involuntary by examining the totality of
circumstances surrounding the confession. (Ibid.)
As discussed above, we have declined to extend
Miranda/Edwards protections to a Perkins operation.
Furthermore, nothing here indicates Rivera’s statements to the
informant were anything other than voluntary. Although Rivera
falsely believed an information had been filed against him, “[t]he
use of deceptive statements during an investigation does not
invalidate a confession as involuntary unless the deception is of
the type likely to procure an untrue statement. [Citations.]”
(People v. Fayed (2020) 9 Cal.5th 147, 165.) Here, informing
Rivera he had already been charged would not have caused him
to feel compelled to tell the informant he had committed the
crimes. Moreover, there was no evidence his cellmate intimidated
him such that Rivera felt the need to brag to appear tough.

31
 4. Any Error Was Not Prejudicial.

The erroneous admission of statements obtained in
violation of the Fifth Amendment is reviewed for prejudice under
the standard of Chapman v. California (1967) 386 U.S. 18
(Chapman). (People v. Henderson (2020) 9 Cal.5th 1013, 1029.)
That test requires the prosecution “‘to prove beyond a reasonable
doubt that the error complained of did not contribute to the
verdict obtained.’ [Citation]” (Ibid.)
Here, compelling evidence that Rivera committed both
crimes was before the jury even without considering the
challenged portion of the interview and his statements to the
Perkins operative. Lizette testified extensively to Rivera’s
involvement in both crimes and what he told her about them, and
Lizette witnessed the second shooting. Indeed, Rivera’s theory of
self-defense in part relied on the jury crediting Lizette’s
testimony concerning Rivera’s fear of other gang members.
Assuming the jury believed Rivera was in the video of the
Morales shooting, the video established Rivera and his
accomplice approached the car and after assessing the situation,
Rivera quickly fired the gun at the victim.

II. EXCLUSION OF EVIDENCE REGARDING VICTIM
MORALES UNDER EVIDENCE CODE SECTION 1103

Rivera argues the trial court prejudicially erred by
excluding evidence of Morales’s prior violent behavior under
Evidence Code section 1103. He contends the court erroneously
required an equivalency or conformity between the past conduct
and the current event, and in applying Evidence Code section
352, the court erroneously found the remoteness of the events
and potential juror confusion weighed against its admission.

32
 A. Factual Background.

At trial, pursuant to Evidence Code section 1103, Rivera
sought to introduce evidence of the victims’ propensity for
violence to support his claim of self-defense. Morales’s prior bad
acts included: (1) a September 9, 1992, conviction for robbery
where Morales hit and threw down the victim; (2) an October 16,
1994, robbery conviction where he grabbed a woman, pushed her
to the ground, kicked her in the stomach, stole items from her
and threatened someone who tried to help; (3) a February 9,
1999, incident where officers stopped Morales for several traffic
violations while riding a bike and Morales physically resisted;
(4) a May 2, 2009, arrest for criminal threats in violation of
section 422, where he was holding a rifle, threatened to shoot
somebody, and looked through their property; (5) a December 2,
2009, felony conviction for threatening an executive officer in
violation of sections 69 and 71, and one count of destroying
evidence in violation of section 135, for which he received a five-
year prison sentence.
The court excluded the evidence, finding the prior acts were
not in conformity with reaching for a simulated gun and further
the acts were remote in time. The court stated that the evidence
was being offered to show the victim was violent, but that the
evidence did not conform to Morales’s conduct while in his car. It
stated: “The conduct we were talking about is the reaching for a
simulated gun.” The court found the little probative value in the
evidence was substantially outweighed by the consumption of
time in presenting the evidence.

33
 B. Discussion.

Evidence Code 1103 makes admissible, subject to Evidence
Code section 352, evidence of the character or trait of character of
the victim of the crime for which the defendant is being
prosecuted if the evidence is offered by the defendant to prove
conduct of the victim in conformity with the character or trait of
character. (Evid. Code, § 1103, subd. (a)(1).)10
A defendant being prosecuted for homicide who asserts self-
defense may introduce evidence of specific violent acts by the
victim on a third person to show that the victim had a violent
character and was the aggressor in the current offense. (People v.
Wright (1985) 39 Cal.3d 576, 587 (Wright); People v. Shoemaker
(1982) 135 Cal.App.3d 442, 446–447.)
The admission of evidence pursuant to Evidence Code
section 1103, however, is not without limits and is subject to the
dictates of Evidence Code section 352. (People v. Gutierrez (2009)
45 Cal.4th 789, 827–828 (Gutierrez); Wright, supra, 39 Cal.3d at
p. 587.) The court may exclude otherwise admissible evidence if
admitting the evidence would confuse the issues at trial, unduly
consume time, or be more prejudicial than probative. (Gutierrez,
supra, 45 Cal.4th at pp. 827–828.)

10 Section 1103, subdivision (a)(1) states: “In a criminal
action, evidence of the character or a trait of character (in the
form of an opinion, evidence of reputation, or evidence of specific
instances of conduct) of the victim of the crime for which the
defendant is being prosecuted is not made inadmissible by
Section 1101 if the evidence is: [¶] (1) Offered by the defendant to
prove conduct of the victim in conformity with the character or
trait of character.”

34
 We review the trial court’s rulings under Evidence Code
section 352 using the deferential abuse of discretion standard.
(Gutierrez, supra, 45 Cal.4th at p. 827; People v. Pollock (2004) 32
Cal.4th 1153, 1171.) “Under this standard, a trial court’s ruling
will not be disturbed, and reversal of the judgment is not
required, unless the trial court exercised its discretion in an
arbitrary, capricious, or patently absurd manner that resulted in
a manifest miscarriage of justice. [Citation.]” (People v. Guerra
(2006) 37 Cal.4th 1067, 1113.)
Here, there was no abuse of discretion. The incidents were
all more than five years before the shooting, and two of them
were more than 20 years old. On that basis, the incidents were
minimally relevant to show the 52-year-old Morales’s current
propensity for violence. With respect to similarity, the only
incident where Morales used a weapon involved brandishing a
rifle in connection with making criminal threats, making four of
the incidents of marginal relevance. Balanced against the
consumption of time and potential for jury confusion required for
introduction of this evidence, the trial court’s decision to exclude
it was within the confines of its discretion under Evidence Code
section 352.

III. INSTRUCTION WITH CALCRIM NOS. 3471 and 3472.

Rivera argues the trial court erred in instructing with
CALCRIM Nos. 3471 (Self-Defense, Mutual Combat or Initial
Aggressor) and 3472 (Right to Self-Defense: May not be
Contrived) because these instructions had no basis in the facts of
the case. He contends these instructions, when given with two
other self-defense instructions, confused the jury and eviscerated
his perfect self-defense claim because they instructed on legal
principles which incorrectly enabled jurors to deny the right to

35
self-defense if he started a fight by approaching Morales’s car and
failed to avoid Nunez. As a result, he contends, these “initial
aggressor” (No. 3471) and “provocateur” (No. 3472) instructions
deprived Rivera of a fair trial, and the error was prejudicial,
requiring reversal.

A. Factual Background.

Rivera conceded committing the shootings but claimed he
did so in self-defense. Rivera argued he feared both victims were
reaching for what he believed to be firearms: Morales a prop gun,
and Nunez a drill. The prosecution rebutted by asserting shooting
a victim in the side (Morales) and another in the back (Nunez)
did not support a claim of self-defense. Further, the prosecution
asserted the video did not support the conclusion that Morales
was a threat, and Lizette testified Rivera initiated the
confrontation with Nunez.
The trial court gave a packet of self-defense instructions,
including Justifiable Homicide: Self-Defense or Defense of
Another (CALCRIM No. 505), Voluntary Manslaughter,
Imperfect Self-Defense or Imperfect Defense of Another
(CALCRIM No. 571); the two challenged instructions, Right To
Self-Defense: Mutual Combat or Initial Aggressor (CALCRIM
3471) and Right To Self-Defense: May Not Be Contrived
(CALCRIM No. 3472); and Danger No Longer Exists or Attacker
Disabled (CALCRIM No. 3474). The court also instructed the
jury to consider the instructions together and cautioned that
some instructions might not apply (CALCRIM 200).
Rivera objected that Nos. 3471 and 3472 were unsupported
by the evidence because neither the acts of walking towards
Morales’s car nor approaching Nunez in the alley could be
considered aggression, nor did he provoke a fight. Although the

36
trial court agreed there was no combat, it stated that the
instruction on initial aggressor addressed the assertion that
Rivera walked up and confronted Nunez. The court found the
same logic supported the instruction prohibiting a provocateur
from claiming self-defense.

B. Discussion.

We review assertions of instructional error de novo. (People
v. Waidla (2000) 22 Cal.4th 690, 733.) Further, we evaluate the
correctness of jury instructions by reviewing the entire charge of
the trial court and not by considering only parts of an instruction
or a single instruction. (People v. Musselwhite (1998) 17 Cal.4th
1216, 1248.) Finally, we also presume jurors understand and
follow the court’s instructions. (People v. Sanchez (2001) 26
Cal.4th 834, 852.)
Even if an instruction correctly states a principle of law, if
it has no application to the facts of the case, it is an error to offer
it. (People v. Guiton (1993) 4 Cal.4th 1116, 1129 (Guiton).) Thus,
“instructions not supported by substantial evidence should not be
given. [Citation.]” (People v. Ross (2007) 155 Cal.App.4th 1033,
1050 (Ross).) “[G]iving an irrelevant or inapplicable instruction,
however, is generally “‘only a technical error which does not
constitute ground for reversal.’” [Citation.]” (People v. Cross
(2008) 45 Cal.4th 58, 67; People v. Eulian (2016) 247 Cal.App.4th
1324, 1335.) “[I]nstruction on an unsupported theory is
prejudicial only if that theory became the sole basis of the verdict
of guilt[.]” (Guiton, supra, at p. 1130.) Prejudice resulting from
this type of error is measured by the Watson test. (Id. at p. 1130;
Ross, at pp. 1054-1055; see People v. Watson (1956) 46 Cal.2d
818.)

37
 1. Instructing with CALCRIM No. 3471 was
Harmless Error

CALCRIM No. 3471 is a self-defense mutual combat
instruction that explains that a person who engages in mutual
combat or starts a fight only has a claim to self-defense if he
actually and in good faith tried to stop fighting, indicated that he
wanted to stop fighting, that he had stopped fighting, and gave
the opponent a chance to stop fighting.
Here, Rivera argues no legal or factual basis existed for
giving this instruction, and that the court misinterpreted No.
3471 as applying to anyone (not only an assailant) causing the
confrontation resulting in a homicide, while the instruction by its
terms is limited to the person who initiated the assault. Rivera
points out that he did not start a fight with either Morales or
Nunez. In the latter case, there was no evidence he was
displaying a firearm.
We agree the factual basis for this instruction was absent
because there is no indication Rivera attempted to stop any
altercation with either of the victims after engaging with them.
Instead, he shot them. We conclude, however, that even if the
instruction was erroneously given, Rivera did not suffer resulting
prejudice. The jury was instructed on multiple theories of self-
defense, including lawful self-defense and imperfect self-defense,
and instructed that not all instructions would apply to the case.
There is no indication the jury applied No. 3471 to the facts
before it. Rather, the jury rejected all theories of self-defense and
found Rivera guilty of premeditated murder. Thus, it cannot be
said that absent the instruction, the jury would have accepted the
applicable theories of self-defense and rejected the inapplicable
ones. (People v. Watson, supra, 46 Cal.2d at pp. 836–837.)

38
 2. Instructing with CALCRIM No. 3472 was
Proper, but if not, It Was Harmless Error

CALCRIM No. 3472 explains that a defendant cannot claim
self-defense if his wrongful conduct creates circumstances that
justify the adversary’s attack. (People v. Enraca (2012) 53 Cal.4th
735, 761 [discussing perfect and imperfect self-defense].)
Rivera argues this instruction was error because the
evidence does not support the conclusion he provoked either
Morales or Nunez. He argues that with respect to Morales, there
is no evidence of any provocation, and with respect to Nunez, he
was not required to avoid him simply because Nunez had the
“green light” to assault him; indeed if Rivera had retreated from
Nunez it would have emboldened Nunez and exacerbated the
threat.
Here, there was evidence to conclude that Rivera initiated
both encounters. Rivera and another unidentified person
approached Morales, who had a prop gun in the car, and they
may have exchanged words. Rivera approached Nunez in the
alley behind the gang headquarters at Nakiso’s in order to
provoke an altercation because Nunez had the “green light.”
Even if the instruction should not have been given because
it was irrelevant, Rivera did not suffer resulting prejudice. We
presume the jury followed the instructions, and if there was no
instigation of a fight—contrived or otherwise with either victim—
to justify offering CALCRIM No. 3472, the jury would have
disregarded it as inapplicable under these facts.

3. No Federal Constitutional Error.

Rivera contends the claimed misdirection of the jury here
with the inapplicable instructions violated his due process rights

39
to a fair trial under the Fourteenth Amendment. He argues the
infringement of his right to assert self-defense was of
constitutional dimensions because it made the prosecution’s
burden easier to disprove his claim.
“[F]undamental fairness [is] the touchstone of due
process[.]” (Gagnon v. Scarpelli (1973) 411 U.S. 778, 790.) A due
process violation is usually established when the state proceeds
in a manner that renders a trial fundamentally unfair. A “jury
instruction” may “‘so infuse[ ] the trial with unfairness as to deny
due process of law.’ [Citations.]” (Estelle v. McGuire (1991) 502
U.S. 62, 75.) The question is whether the ailing “‘instruction by
itself so infected the entire trial that the resulting conviction
violates due process.’ [Citations.]” (Id. at p. 72; People v. Foster
(2010) 50 Cal.4th 1301, 1335.) However, “‘[i]t is well established
that the instruction “may not be judged in artificial isolation,” but
must be considered in the context of the instructions as a whole
and the trial record.’ [Citation.]” (People v. Foster, supra, at p.
1335.) We will conclude ““[a] trial is fundamentally unfair if
‘there is a reasonable probability that the verdict might have
been different had the trial been properly conducted.’”
[Citations.]” (Barrientes v. Johnson (5th Cir. 2000) 221 F.3d 741,
753.)
Here, Rivera has not demonstrated constitutional error
because the instructions as a whole, the evidence at trial, and the
jury’s verdict, establish that the result would not have been
different if the instructions had not been given. The jury rejected
any theory of self-defense, even the properly instructed ones.

IV. ASSERTED CUMULATIVE ERROR.

Defendant argues the impact of the individual evidentiary
and instructional errors in this case requires reversal, and given

40
the federal constitutional errors asserted in this case, all errors
must be reviewed under the Chapman standard. Rivera points to
the claimed erroneous admission of his statements to police and
his confession to the informant which he contends left him with
no alternative but to assert self-defense and imperfect self-
defense. These errors, he contends, precluded him from testifying
in his defense.
We disagree. We have found no error in the court’s rulings
with respect to Rivera’s statements and confession, nor have we
found error with respect to its evidentiary ruling and jury
instructions. Thus, there can be no cumulative error. (People v.
Duong (2020) 10 Cal.5th 36, 75.)

V. ASSERTED SENTENCING ERRORS.

A. Section 654.

Rivera argues that the trial court erred in failing to stay his
sentence on his convictions for felon in possession of a firearm
(§ 29800, subd. (a)(1)) because the prosecution’s theory of the case
was that the illegal possession occurred simultaneously with the
murders. Thus, he argues, possession of the firearm and the
subsequent use in the murders was one indivisible act with a
single objective, namely, the shooting of the victims. The trial
court’s findings of fact in this regard are error, he contends, and
the error violated his due process rights.

1. Factual Background.

The information charged Rivera in Counts 3 and 4 with
being a felon in possession of a handgun. (§ 29800, subd. (a)(1).)
The language for both counts tracked the statute. It charged “the
crime of POSSESSION OF FIREARM BY A FELON- PRIOR(S),

41
in violation of PENAL CODE SECTION 29800(a)(l), a Felony,
was committed by MIGUEL NICHOLAS RIVERA, who did
unlawfully own, possess, purchase, receive, and have custody and
control of a firearm, to wit, handgun, the said defendant having
theretofore been duly and legally convicted of a felony or
felonies . . . .” The counts alleged the offenses occurred on the
same date as each of the murders.
During opening statement, the prosecution argued that the
firearm was used to kill the two victims. The jury was instructed
with CALCRIM 2511 that “[t]he defendant is charged in Counts 3
and 4 with unlawfully possessing a firearm. [¶] To prove that the
defendant is guilty of this crime, the People must prove that: [¶]1.
The defendant possessed a firearm; [¶] 2. The defendant knew
that he possessed the firearm; [¶] AND [¶] 3. The defendant had
previously been convicted of a felony.” The prosecution argued to
the jury that defendant was guilty of a section 29800, subdivision
(a)(1) violation because he was a felon and “he shot and killed
and murdered these two individuals [when] he had a gun with
him.”
The jury verdict found “true” the finding that Rivera
personally discharged a firearm in the commission of the crimes,
and that he possessed a firearm as a felon on Counts 3 and 4.
During sentencing, Rivera requested the court to strike,
stay, or run concurrently the sentences on Counts 3 and 4. The
trial court refused, finding that “[t]he sentence is not subject to
654, since as to each crime, the defendant was armed before the
acts involved in Counts 1 and 2.”

2. Discussion.

Section 654, subdivision (a) provides that “[a]n act or
omission that is punishable in different ways by different

42
provisions of law shall be punished under the provision that
provides for the longest potential term of imprisonment, but in no
case shall the act or omission be punished under more than one
provision.” “The purpose of section 654 is to prevent multiple
punishment for a single act or omission, even though that act or
omission violates more than one statute and thus constitutes
more than one crime. Although the distinct crimes may be
charged in separate counts and may result in multiple verdicts of
guilt, the trial court may impose sentence for only one offense. . . .
[Citation.]” (People v. Liu (1996) 46 Cal.App.4th 1119, 1134, fn.
omitted.)
In People v. Corpening (2016) 2 Cal.5th 307, the Supreme
Court explained the analytical framework for applying section
654. The Supreme Court found a distinction between conduct
that constituted a single act and conduct that had a single
objective. (Id. at p. 311.) “Whether a defendant may be subjected
to multiple punishment under section 654 requires a two-step
inquiry, because the statutory reference to ‘an act or omission’
may include not only a discrete physical act but also a course of
conduct encompassing several acts pursued with a single
objective. [Citations.]” (Ibid.) First, the court must consider
whether the different crimes were committed by a single physical
act. (Ibid.) “If so, the defendant may not be punished more than
once for [the single] act.” (Ibid.) “Whether a defendant will be
found to have committed a single physical act for purposes of
section 654 depends on whether some action the defendant is
charged with having taken separately completes the actus reus
for each of the relevant criminal offenses. [Citations.]” (Id. at p.
313.)

43
 “Only if we concluded the case involves more than a single
act—i.e., a course of conduct—do we then consider whether that
course of conduct reflects a single ‘intent and objective’ or
multiple intents and objectives. [Citations.]” (People v. Corpening,
supra, 2 Cal.5th at pp. 311–312.) However, “even if a course of
conduct is ‘directed to one objective,’ it may ‘give rise to multiple
violations and punishment’ [only] if it is ‘divisible in time.’
[Citations.]” (People v. Deegan (2016) 247 Cal.App.4th 532, 542.)
“Where the defendant’s acts are ‘temporally separated’ they
‘afford the defendant opportunity to reflect and to renew his or
her intent before committing the next [offense], thereby
aggravating the violation of public security or policy already
undertaken.’ [Citation.]” (Ibid.)
A defendant’s intent and objective are factual questions.
(People v. Islas (2012) 210 Cal.App.4th 116, 129.) For there to be
sufficient evidence to support multiple punishment, there must
be evidence to support a finding the defendant formed a separate
intent and objective for each offense for which he was sentenced.
(Ibid.)
The elements of a section 29800, subdivision (a)(1) offense
require “conviction of a felony and ownership or knowing
possession, custody, or control of a firearm. [Citations.]” (People v.
Blakely (2014) 225 Cal.App.4th 1042, 1052.) The offense is
completed once the intent to possess is perfected by possession.
(People v. Jones (2002) 103 Cal.App.4th 1139, 1146.) Where a
defendant arrives at a crime scene already armed and uses the
weapon to commit another crime, the firearm possession is a
separate and antecedent offense. (People v. Arce (2020) 47
Cal.App.5th 700, 714; see also People v. Venegas (2020) 44
Cal.App.5th 32, 38; Cf. People v. Bradford (1976) 17 Cal.3d 8, 22

44
[where defendant used gun wrested from police officer to shoot
officer; section 654 applied].)
Here, the trial court’s conclusions and factual findings are
supported by substantial evidence. The evidence established that
Rivera possessed the gun in advance of both shootings, making
the two offenses severable in time. He approached Morales’s car
with the gun already in his possession. The day of Nunez’s
shooting, Rivera and the others in the car passed the gun around.
Later, back at Nakiso’s, Lizette believed the gun was in the
house, but Rivera approached Nunez from behind with the gun in
his hand. These facts support the conclusion that because he
possessed the gun before each shooting, Rivera had a separate
intent and objective for both offenses.

B. Parole Revocation Fine.

At sentencing, the court imposed and stayed a $1,000
parole revocation fine pursuant to section 1202.45.11 Rivera
argues that because he was given life without parole (and hence
no parole attached) as sentences on Counts 1 and 2, and the
determinate terms in Counts 3 and 4 should have been stayed
pursuant to section 654, there was no authorized sentence
imposed which included a period of parole; thus, the suspended
parole revocation fine is unauthorized and must be stricken.
(People v. Carr (2010) 190 Cal.App.4th 475, 483, fn. 6; see
generally People v. McWhorter (2009) 47 Cal.4th 318, 379-380.)

11 Section 1202.45, subdivision (a) requires a sentencing
court to assess a parole revocation fine “[i]n every case where a
person is convicted of a crime and his or her sentence includes a
period of parole[.]”

45
 We disagree. Where, as here, the trial court properly
imposed concurrent determinate terms on counts 3 and 4, his
sentence includes a period of parole, and imposition of a parole
revocation fine was appropriate. (See, e.g., People v. Brasure
(2008) 42 Cal.4th 1037, 1075.) Parole “was included in his
determinate sentence by law and carried with it, also by law, a
suspended parole revocation restitution fine.” (Ibid.) We observe
that Rivera is not prejudiced by assessment of the fine, which will
become payable only if he actually does begin serving a period of
parole and his parole is revoked.

VI. REMAND FOR RETRIAL OF GANG ALLEGATIONS.
After we filed the opinion in this matter, Rivera filed a
petition for rehearing asserting he was entitled to the
ameliorative benefits of AB 333, effective January 1, 2022,
implementing changes to the proof of criminal street gang
enhancements and street terrorism, and adding a provision at
section 1109 to provide for bifurcation and a post-guilt phase trial
of those allegations. As noted above, we granted rehearing and
vacated submission to consider these issues.
We conclude, as urged by Rivera and conceded by the
Attorney General, that the new evidentiary standards for proving
gang enhancements in section 186.22 apply retroactively and
require retrial on the gang allegations. We do not consider,
however, whether the bifurcation provisions of section 1109 apply
retroactively because we find no prejudice resulting from the lack
of bifurcation at Rivera’s trial. We also conclude retrial of the
gang allegations does not violate the double jeopardy or due
process clauses, and remand for retrial.

46
 A. Amendments to Section 186.22.
AB 333 found “[g]ang enhancement evidence can be
unreliable and prejudicial to a jury” because such evidence “is
lumped into evidence of the underlying charges[,] further
perpetuat[ing] . . . convictions of innocent people.” (Stats. 2921,
ch. 699, § 2(d)(6)); see People v. Ramos (2022) 77 Cal.App.5th
1116, 1129.) Further, “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.” (People v. Ramos, supra, 77
Cal.App.5th at p. 1129.) As a result, AB 333 modified the
evidentiary standard for admission of gang evidence, and
provided for bifurcation of trials to separate the gang evidence
from the underlying charges. The statute is silent as to
retroactivity. (People v. Rodriguez (2022) 75 Cal.App.5th 816,
822.)

1. Substantive Changes.
Previously, section 186.22 provided that a defendant who
commits a felony “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”
is subject to increased punishment upon conviction. (Former
§ 186.22, subd. (b)(1).)
In 2021, the Legislature enacted AB 333, which amended
section 186.22 to impose new substantive and procedural
requirements for gang allegations. Most notably, the law defined
“to benefit, promote, further, or assist” as “to provide a common
benefit to members of a gang where the common benefit is more
than reputational. Examples of a common benefit that are more

47
than reputational may include, but are not limited to, financial
gain or motivation, retaliation, targeting a perceived or actual
gang rival, or intimidation or silencing of a potential current or
previous witness or informant.” (§ 186.22, subd. (g).)
In addition, under prior law, there was no requirement that
the predicate offense be gang related. (People v. Rodriguez, supra,
75 Cal.App.5th at p. 822.) The new law imposes a stricter
requirement for proof of a predicate offense, namely “a pattern of
criminal gang activity,” which is necessary to prove that the
group with which the defendant is associated is indeed a criminal
street gang. (See § 186.22, subd. (f).) Previously, the prosecution
needed to prove only that those associated with the gang had
committed at least two offenses from a list of predicate crimes on
separate occasions within three years of one another. (See former
§ 186.22, subd. (e).)
Under the newly amended law, the current offense cannot
be used as one of the two predicate offenses. (§ 186.22, subd.
(e)(2).) In addition, both predicate offenses must have been
committed “within three years of the date the current offense is
alleged to have been committed,” by gang “members,” and must
have been for the “common[ ] benefit[ ] [of] a criminal street
gang.” (§ 186.22, subd. (e)(1).)
Thus, in summary, pursuant to the new legislation,
imposition of a gang enhancement requires proof of the following
additional requirements with respect to predicate offenses: (1) the
offenses must have “commonly benefited a criminal street gang”
where the “common benefit[ ] . . . is more than reputational”;
(2) the last predicate offense must have occurred within three
years of the date of the currently charged offense; (3) the
predicate offenses must be committed on separate occasions or by

48
two or more gang members; and (4) the charged offense cannot be
used as a predicate offense. (Assem. Bill No. 333 (Reg. Sess.) § 3,
§ 186.22, subd. (e)(1)–(2).)

2. Procedural Changes.
New section 1109 provides that, upon the defendant’s
request, the trial court must bifurcate an enhancement charged
under section 186.22, subdivision (b) from the underlying
charges. (§ 1109, subd. (a).) In addition, such separate
proceedings must be held after the determination of the
defendant’s guilt in the underlying offenses. (§ 1109, subd. (a).)12

12 Section 1109 provides: “(a) If requested by the defense, a
case in which a gang enhancement is charged under subdivision
(b) or (d) of Section 186.22 shall be tried in separate phases as
follows: [¶] (1) The question of the defendant’s guilt of the
underlying offense shall be first determined. [¶] (2) If the
defendant is found guilty of the underlying offense and there is
an allegation of an enhancement under subdivision (b) or (d) of
Section 186.22, there shall be further proceedings to the trier of
fact on the question of the truth of the enhancement. Allegations
that the underlying offense was committed for the benefit of, at
the direction of, or in association with, a criminal street gang and
that the underlying offense was committed with the specific
intent to promote, further, or assist in criminal conduct by gang
members shall be proved by direct or circumstantial evidence.
[¶] (b) If a defendant is charged with a violation of subdivision (a)
of Section 186.22, this count shall be tried separately from all
other counts that do not otherwise require gang evidence as an
element of the crime. This charge may be tried in the same
proceeding with an allegation of an enhancement under
subdivision (b) or (d) of Section 186.22.”

49
 B. Retroactivity.

Rivera contends that he is entitled to retroactive
application of both the substantive and procedural changes
affecting gang enhancements. The Attorney General, as noted
above, concedes Rivera is entitled to the benefit of the
substantive but not the procedural changes.

1. Substantive Changes.

Ordinarily, “a new statute is presumed to operate
prospectively absent an express declaration of retrospectivity or a
clear indication that the electorate, or the Legislature, intended
otherwise.” (Tapia v. Superior Court (1991) 53 Cal.3d 282, 287,
fn. omitted (Tapia).) In In re Estrada (1965) 63 Cal.2d 740
(Estrada), however, our Supreme Court recognized an exception
to this rule. The court explained that “[w]hen the Legislature
amends a statute so as to lessen the punishment it has obviously
expressly determined that its former penalty was too severe and
that a lighter punishment is proper as punishment for the
commission of the prohibited act. . . . The amendatory act
imposing the lighter punishment can be applied constitutionally
to acts committed before its passage provided the judgment
convicting the defendant of the act is not final.” (Id. at p. 745.)
Further, the Supreme Court has expanded the application
of the retroactivity doctrine broadly “to statutes changing the law
to the benefit of defendants.” (Tapia, supra, 53 Cal.3d at p. 301.)
Thus, the retroactivity principle applies to ameliorative changes
in enhancements as well as to substantive offenses. (People v.
Nasalga (1996) 12 Cal.4th 784, 792–793.)
As AB 333 increases the threshold for conviction of a
section 186.22 offense and imposition of the enhancement, we

50
therefore agree that Rivera is entitled to the benefit of the
substantive changes in the law. (People v. Lopez (2021) 73
Cal.App.5th 327, 344.) To prove that a defendant committed a
felony “for the benefit of, at the direction of, or in association with
a criminal street gang,” (§ 186.22, subd. (b)(1)) the new law
requires the prosecution to show that “the common benefit [to the
gang] is more than reputational.” (§ 186.22, subd. (g) The law
thus redefines the enhancement for the benefit of the defendant
and should be applied retroactively to Rivera.

2. Procedural Changes.

There is a split of authority whether section 1109’s
procedural changes apply retroactively. In People v. Burgos
(2022) 77 Cal.App.5th 550 (review granted July 13, 2022,
S274743) (Burgos), the court found section 1109 applied
retroactively. (Id. at pp. 564–568; see also People v. Ramos,
supra, 77 Cal.App.5th at p. 1119 [section 1109 retroactive].)
In People v. Perez (2022) 78 Cal.App.5th 192 (review
granted Aug. 17, 2022, S275090), however, the court held that
section 1109 did “not apply retroactively to a trial that ha[d]
already occurred.” (Id. at p. 207; see also People v. Ramirez (2022)
79 Cal.App.5th 48, 65 (review granted Aug. 17, 2022, S275341)
[section 1109 prophylactic and designed to employ new features
aimed at enhancing fairness of future proceedings and does not
make any change to any crime or defense or punishment].)
No part of the Penal Code “is retroactive, unless expressly
so declared.” (§ 3.) Section 3 imposes a strong presumption of
prospective operation, codifying the principle that, “‘in the
absence of an express retroactivity provision, a statute will not be
applied retroactively unless it is very clear from extrinsic
sources’” that the Legislature intended a retroactive application.

51
(People v. Buycks (2018) 5 Cal.5th 857, 880 (Buycks).) As a result,
a statute silent with respect to retroactive application is
construed to be prospective. (Ibid.)
Changes in trial procedures generally apply prospectively if
they do not alter the substantive requirements for proving a
crime or the truth of an enhancement allegation or reduce the
available punishment in the event of a conviction. (See, e.g.,
People v. Cervantes (2020) 55 Cal.App.5th 927, 939–940
(Cervantes) [new requirements for interrogations not retroactive];
People v. Sandee (2017) 15 Cal.App.5th 294, 305, fn. 7 [limitation
on governmental search of cell phones not retroactive].)
Under Estrada, however, a limited rule of retroactivity
applies to newly enacted criminal statutes that are intended to
ameliorate criminal punishment. (Buycks, supra, 5 Cal.5th at p.
881.) ‘‘The Estrada rule rests on the presumption that, in the
absence of a savings clause providing only prospective relief or
other clear intention concerning any retroactive effect, ‘a
legislative body ordinarily intends for ameliorative changes to the
criminal law to extend as broadly as possible, distinguishing only
as necessary between sentences that are final and sentences that
are not.’” (Cervantes, supra, 55 Cal.App.5th at pp. 937–938.)
Thus, in People v. Burgos, supra, 77 Cal.App.5th 550, the
leading case finding section 1109 to be retroactive, the appellate
court concluded the possibility of lesser punishment mandated
retroactivity under Estrada. (Id. at pp. 564–568) Burgos
principally reasoned that “the Estrada rule may apply to a
change in the law even where the defendants in question are not
expressly given a lesser punishment as a result of retroactive
application.” (Id. at p. 565.)

52
 Burgos relied on People v. Superior Court (Lara) (2018) 4
Cal.5th 299 and People v. Frahs (2020) 9 Cal.5th 618. In those
cases, as Burgos observed, the Supreme Court had found
retroactivity for statutes that “could” result in more lenient
treatment or provide a “possible ameliorating benefit.” (Burgos,
supra, 77 Cal.App.5th at p. 565.) People v. Superior Court, supra,
4 Cal.5th at p. 303, held that Proposition 57, a purely procedural
change that prohibited prosecution of juveniles directly in adult
court, applied retroactively, even though it did not reduce the
punishment for a crime. People v. Frahs, supra, 9 Cal.5th at p.
624, held a diversion program providing the opportunity to avoid
penal consequences entirely if the defendant successfully
completed the program applied retroactively.
In reaching its conclusion, Burgos highlighted the
ameliorative benefits of section 1109. (Burgos, supra, 77
Cal.App.5th at p. 564.) First, it provides an increased likelihood
of acquittal at trial due to the removal of prejudicial gang
evidence from the main guilt phase. (Id. at pp. 565–567.) Thus,
some defendants could be acquitted of the underlying offenses in
a bifurcated trial. (Id. at p. 567.) Second, “‘[t]he mere specter of
gang enhancements pressures defendants into unfavorable plea
deals rather than risk a trial filled with prejudicial evidence and
a substantially longer sentence.” (Id. at p. 567, quoting Assem.
Bill 333, § 2, subd. (e).)
After concluding section 1109 applied retrospectively,
Burgos considered, without deciding, the standard of prejudice to
apply. (Burgos, supra, 77 Cal.App.5th. at p. 568.) First, Burgos
addressed whether the error could constitute structural error,
which could mandate automatic reversal because it would affect
the framework within which the trial proceeded. (Id. at p. 568;

53
see People v. Anzalone (2013) 56 Cal.4th 545, 554 [structural
error requires per se reversal because it cannot be fairly
determined how a trial would have been resolved if the error had
not occurred].) Without explicitly adopting structural error
analysis, Burgos continued, “[e]ven if harmless error analysis is
amenable, it is not clear whether we should apply the federal or
state law standard.” (Id. at p. 568.) Finally, Burgos held, “[e]ven
assuming we must assess prejudice, however, we conclude
appellants suffered prejudice under either the federal or state
law standard.” (Ibid.) Thus, Burgos offers little guidance on
evaluating prejudice.
The dissent disagreed, finding section 1109 prospective
only. Section 1109 “makes no change to any crime or defenses
and makes no change to any punishment provision, and it does
not create the possibility of lesser punishment or any other
‘ameliorative’ benefit . . . .” (Burgos, supra, 77 Cal.App.5th. at p.
572 (dis. opn. of Elia, J.)).) The dissent concluded the Estrada
rule was designed to prevent an inference the Legislature “was
bent on vengeance.” (Id. at p. 574 (dis. opn. of Elia, J.).) In
summary, as a result, “there is a manifest distinction between
the Legislature’s creation of new criminal procedures designed to
enhance fairness and its enactment of provisions that reduce the
possibility of punishment.” (Id. at pp. 573–574 (dis. opn. of Elia,
J.).)
We need not decide the issue in this case. As one court has
held, the Watson standard applies to the failure to bifurcate
under section 1109. (People v. E.H. (2022) 75 Cal.App.5th 467,
480.) Thus, even if section 1109 applied retroactively to his case,
Rivera cannot show it is “reasonably probable” he would have
obtained a more favorable result if his trial had been bifurcated.

54
(People v. E.H., supra, 75 Cal.App.5th at p. 480 [applying Watson
standard to evaluation of prejudice resulting from decision not to
apply section 1109 retroactively].) Where, as here, the evidence of
guilt on the relevant charges is “overwhelming,” it is unlikely
Rivera was harmed by the format of the trial. (Ibid.; People v.
Pinholster (1992) 1 Cal.4th 865, 931, overruled on another ground
in People v. Williams (2010) 49 Cal.4th 405, 459 [concluding the
failure to bifurcate was harmless under the Watson standard
because “[t]here was overwhelming evidence of defendant’s guilt
on the other charges”].)
The People presented overwhelming evidence that Rivera
committed the charged murders independent of any gang
evidence. Rivera confessed to his cellmate at the jail that he
committed both shootings. He told Lizette he shot Morales, and
Lizette witnessed Rivera shoot Nunez. Rivera used the same
weapon for both offenses, spat on Morales’s memorial, and had a
motive to kill Nunez. Under these circumstances, we conclude
that bifurcation would not have helped Rivera. (People v. Ramos,
supra, 77 Cal.App.5th at pp. 1131–1132 [following E.H., found no
prejudice under Watson from the failure to bifurcate].)

C. Remand for Retrial of Gang Enhancement.

1. Evidence Insufficient to Support
Enhancement Under Amended Statute.

As discussed below, the evidence at trial that the crimes
were committed for the benefit of a gang was limited to evidence
that committing crimes furthers the gang’s reputation for
criminal conduct. This is insufficient under the new statute to
support a true finding on the gang enhancement.

55
 (a) Predicate Offenses.

As for what constitutes a “pattern of criminal gang
activity,” previously the prosecution needed to prove “only that
those associated with the gang had committed at least two
offenses from a list of predicate crimes on separate occasions
within three years of one another.” (Former § 186.22, subd. (e).)
Assembly Bill 333 made several changes to this definition. First,
the predicate offenses now must have been committed by two or
more “members” of the gang (as opposed to any persons).
(§ 186.22, subd. (e)(1).) Second, the predicate offenses must be
proven to have “commonly benefited a criminal street gang.”
(Ibid.) Third, the last predicate offense must have occurred
within three years of the date of the currently charged offense.
(Ibid.) Fourth, the list of qualifying predicate offenses has been
reduced. (Ibid.; see also former § 186.22) And fifth, the currently
charged offense no longer counts as a predicate offense. (§ 186.22,
subd. (e)(2).)
In this case, the prosecution relied upon three predicate
acts to satisfy the requirements of prior section 186.22,
subdivision (b)(1). These offenses do not satisfy the amended
statute.
First, Ernie Lopez pleaded nolo contender to two assaults
with a deadly weapon and vandalism committed on November 17,
2012, offenses that occurred more than three years before the
current offenses. Vandalism is no longer a predicate offense
under amended section 186.22, subdivision (e). The prosecution
did not introduce evidence that the predicate offenses were gang
related because the evidence was excluded.
Second, Romero (Face) pleaded nolo contender to one count
of carrying a concealed firearm; the charging document contained

56
no gang allegation. There was no evidence at trial that in doing
so, Face acted for the benefit of the Lynwood Mob.
Third, Marcus Blancarte pleaded guilty to assault; the
charging document contained no gang allegation. At trial,
Detective Chalmers testified that after reviewing the police
report, he concluded Blancarte belonged to the Lynwood Mob.
However, there was no evidence that Blancarte acted to benefit
the Lynwood Mob.

(b) Insufficient Evidence of Benefit to
Gang Under Amended Statute.

As noted above, amended section 186.22 requires a showing
that the defendant’s conduct conferred some benefit on the gang
that is more than reputational. (§ 186.22 subd. (e)(1).) The benefit
can be shown by “financial gain or motivation, retaliation,
targeting a perceived or actual gang rival, or the intimidation or
silencing of a potential current or previous witness or informant.”
(§ 186.22, subd. (g).)
Those elements were not met here. Detective Chalmers
opined with respect to the first victim, Morales, who was killed in
Segundos territory, that because the shooting occurred in rival
gang territory, the shooter would gain respect among gang
members. There was no evidence, however, that the shooting was
to target a perceived gang rival, or to retaliate for some prior
slight.
With respect to the second victim, Nunez, the evidence was
again primarily reputational. Detective Chalmers testified that
someone in a gang who has been called a “bitch” by another gang
member will have lost all credibility, and the only way for such
an individual to regain respect would be to commit a violent act.
The reputation of the Lynwood Mob would have been weakened

57
by Nunez calling one of its members a “bitch,” and by the fact
that Rivera drew a firearm but did not use it. Expert testimony
established that Nunez had disrespected the Lynwood Mob by
calling Rivera a “bitch” and Rivera would be motivated to get his
reputation back by committing a violent act. By doing so, other
gang members would learn it was not permissible to disrespect
the gang.

2. Double Jeopardy Does Not Preclude
Retrial.

Rivera argues that retrial of the gang enhancement is
precluded by the double jeopardy clauses. We disagree.
The double jeopardy clauses of the Fifth Amendment to the
United States Constitution and article I, section 15, of the
California Constitution provide that a person may not be twice
placed “in jeopardy” for the “same offense.” (People v. Monge
(1997) 16 Cal.4th 826, 831–832.) The double jeopardy bar protects
against a second prosecution for the same offense following an
acquittal or conviction, and applies where a conviction is reversed
or set aside because of insufficient evidence. (Id. at p. 832.)
When a statutory amendment adds an additional element
to an offense, however, the prosecution must be afforded the
opportunity to establish the additional element upon remand.
(People v. Figueroa (1993) 20 Cal.App.4th 65, 71.) The proper
remedy for this type of failure of proof—where newly required
elements were “never tried” to the jury—is to remand and give
the People an opportunity to retry the affected charges. (Id. at p.
72, fn. 2) Such a retrial is not barred by the double jeopardy
clause because the issue was not relevant to the charges at the
time of trial and accordingly, the question was never tried. (Ibid.)
Accordingly, we reverse the gang enhancements and remand the

58
matter to the trial court for further proceedings. (Id. at p. 72;
People v. Eagle (2010) 246 Cal.App.4th 275, 280.)
To the extent Rivera argues remand is inappropriate
because there is insufficient evidence in the trial record to prove
the enhancement under the new law, he is mistaken. Where, as
here, evidence is not introduced at trial because the law at that
time would have rendered it irrelevant, remand to prove that
element is proper. (See People v. Balderas (1985) 41 Cal.3d 144,
197–199 [retrial of special circumstances issue in death penalty
trial after court decision that intent to kill was required for
felony-murder special circumstance].)

3. No Due Process Violation Based on
Instructional Error.

Rivera argues the jury was misdirected on the elements of
the gang enhancements thereby violating due process, and such
error was prejudicial because it cannot be determined whether
the jury based its verdict on a legally adequate theory. Further,
he asserts that because the gang evidence was entirely
reputational, the error was not harmless.
“By requiring proof for a gang enhancement that the
benefit to the gang was more than reputational, Assembly Bill
No. 333 essentially adds a new element to the enhancement.”
(People v. Sek (2022) 74 Cal.App.5th 657, 668.) When jury
instructions are deficient for omitting an element of an offense,
they implicate the defendant’s federal constitutional rights, and
we review for harmless error under the strict standard of
Chapman, supra, 386 U.S. 18. Under the Chapman standard,
reversal is required unless it appears beyond a reasonable doubt
that the error did not contribute to the jury’s verdict. (Id. at pp.
24–25)

59
 In order to establish harmless error under the Chapman
standard, it is insufficient to show that substantial evidence
existed to support a conviction under the correct instructions.
(People v. Sek, supra, 74 Cal.App.5th at p. 668.) The question is
the effect of the incorrect instruction upon the guilty verdict in
the case at hand—“whether the guilty verdict actually rendered
in this trial was surely unattributable to the error.” (People v.
Sek, supra, 74 Cal.App.5th at p. 668.) The standard is met where
the missing element from an instruction was uncontested or
proved as a matter of law. (Id. at p. 669)
Here, as discussed above, the gang evidence was
reputational and did not address any other benefit to the gang.
Thus, the instructional error on this question was not harmless
under the Chapman standard because there was no proper
evidence upon which the jury could have based their true finding.
The remedy is retrial on the gang enhancement, something
we have already ordered. Because we do not reverse based on the
insufficiency of the evidence required to prove a violation of the
statute as it read at the time of trial, the double jeopardy clause
will not bar a retrial. (People v. Figueroa, supra, 20 Cal.App.4th
at p. 72.)

D. No Error in Failing to Impose Parole Eligibility.

Rivera contends the trial court erred by failing to impose a
15-year parole eligibility date under section 186.22, subdivision
(b)(5). We disagree, as this provision does not apply to life terms
with no possibility of parole.
Section 186.22, subdivision (b) establishes alternative
methods for punishing felons whose crimes were committed for
the benefit of a criminal street gang. Where the defendant
commits a violent felony “punishable by imprisonment in the

60
state prison for life,” section 186.22, subdivision (b)(5) applies and
imposes a minimum term of 15 years before the defendant may
be eligible for parole. This provision was not modified by AB 333
and thus Rivera’s argument is simply one of sentencing error; we
need not consider the issue of retrospective application.
People v. Lopez (2005) 34 Cal.4th 1002 (Lopez), held that a
defendant who commits a gang-related violent felony punishable
by life imprisonment is not subject to the 10-year gang
enhancement under section 186.22, subdivision (b)(1)(C) but,
rather, is subject to a minimum parole eligibility term of 15 years
under section 186.22, subdivision (b)(5). (Id. at p. 1010–1011.)
Lopez, however, did not involve a defendant sentenced to life
without parole. The defendant there was sentenced to a term of
25 years to life for first-degree murder. (Id. at p. 1005). Here, on
the other hand, defendant was sentenced to life without the
possibility of parole for first-degree murder. Because a term of life
without parole contains no anticipated parole date, it would be
illogical to include a minimum parole date on such a term.
Indeed, Lopez observed the minimum parole eligibility
provision was never intended to apply to persons sentenced to life
without parole. (Lopez, supra, 34 Cal.4th at pp. 1010–1011.)
Lopez examined the history of the California Street Terrorism
Enforcement and Prevention Act (§ 186.20 et seq.; STEP Act) and
noted a 1988 enrolled bill report stated: “‘“This proposed
provision relating to life terms [former section 186.22, subdivision
(b)(3), now section 186.22[, subdivision] (b)(5) ] would apply to all
lifers (except life without possibility of parole).”’” (Lopez, supra,
34 Cal.4th at p. 1010.) The Lopez court concluded “at the time the
STEP Act was enacted, the predecessor to section 186.22(b)(5)

61
was understood to apply to all lifers, except those sentenced to
life without the possibility of parole.” (Ibid.)

DISPOSITION

The gang enhancements are reversed. In all other respects,
the judgment is affirmed. On remand, the prosecution shall have
the option to retry the defendant on the gang allegations, and the
trial court shall resentence Rivera.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CURREY, J.

We concur:

WILLHITE, Acting P.J.

COLLINS, J.

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