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New Trial on Gang Enhancements Required

California v. Oliva Court: California Courts of Appeal, Docket: E073979 (Fourth Appellate District), Opinion Date: March 9, 2023. David Bustamante (the victim) was shot and killed in the parking lot of an In-N-Out restaurant on Christmas Day in 2015. The victim was giving a tattoo to Nancy A. when he told her he had to go out to meet a friend. Ana S., who was Nancy’s girlfriend, was with them. While the victim was driving, he received a phone call from a caller identified as "Jboy 12th Street" advising him to drive to the In-N-Out in Hesperia. The victim drove up to a red truck that was parked in the parking lot. The victim exited his vehicle and the driver of the red truck immediately shot at the victim, yelling “La Eme” a term for the Mexican Mafia. Both Nancy and Ana identified defendant John Oliva as the shooter; cellular telephone records placed defendant near the scene at the time of the shooting; and the victim listed defendant’s cellular telephone number under the name Jboy 12th Street in his contacts. Defendant was convicted of first degree murder, the special circumstances of lying in wait and benefitting a criminal street gang, and weapons use and gang enhancements. After the Court of Appeal affirmed defendant's convictions, the California Legislature passed Assembly Bill No. 333 (2021-2022 Reg. Sess.) (AB 333) which amended Penal Code section 186.22 and added Penal Code section 1109. The Court of Appeal recalled the remittitur, canceled the remittitur, vacated its previous opinion, and had the parties submit supplemental briefing on the impact of AB 333 on the judgment in this case. Based on these changes, the Court concluded remand for a new trial on the gang enhancements and the gang murder special allegation pursuant to section 186.22 was necessary. The Court determined the admission of gang evidence in this case was not prejudicial and a retrial on all of the charges was not required.


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