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Court of Appeal:
Guilt-Phase Evidence May Be Used to Prove Gang Allegation
Opinion Says 2021 Law Mandating Separate Trials for Criminal-Enterprise Enhancements Does Not Limit Jury’s Consideration of Facts Presented During Case-in-Chief
By Kimber Cooley, associate editor
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RAYMOND REYES |
Div. Six of this district’s Court of Appeal has held that recent amendments to the Penal Code requiring that gang allegations be tried separately from the underlying offenses do not require that the jury ignore evidence admitted during the guilt phase in deciding whether the prosecution has proven the sentencing enhancement.
At issue are revisions to the substantive and procedural requirements for imposing gang enhancements following the passage of the STEP Forward Act of 2021.
The law amended Penal Code §1109(a), which now provides that, upon the defendant’s request, a gang enhancement is to be tried separately and specifies that the “question of the defendant’s guilt of the underlying offense shall be first determined” and then “there shall be further proceedings to the trier of fact on the question of the truth” of the allegation.
Justice Tari L. Cody authored the opinion, filed June 17 and certified for publication Wednesday, in which the court declared:
“We decline to interpret the statute as creating evidentiary silos.”
Presiding Justice Arthur Gilbert and Justice Hernaldo J. Baltodano joined in the opinion.
Attempted Murder
The question arose during the criminal prosecution of Raymond Reyes, who was accused of attempted murder and firing at an inhabited dwelling, among other offenses, relating to a 2021 shooting outside an Oxnard marijuana dispensary. Prosecutors also charged the defendant with gang enhancements under Penal Code §186.22(b).
On Aug. 28, 2021, a man identified in the record as Michael Chavez, but termed in the opinion “M.C,” was walking across the street when Reyes exited an approaching car, yelled “Colonia,” and opened fire, hitting the victim in the back and striking a nearby residence. Chavez required five surgeries and remained in the hospital for over a month.
Colonia Chiques is a criminal street gang that operates in Oxnard and the surrounding areas.
Ventura Superior Court Judge Anthony J. Sabo granted Reyes’ motion to bifurcate the trial as to the enhancement under §1109, but declined to exclude all gang evidence from the guilt phase, finding it relevant to motive and intent.
Deputy Hayley Moyer of the Ventura County District Attorney’s Office introduced extensive evidence of his gang affiliation during the trial on the underlying offenses, and Reyes was found guilty by a jury on all charges.
During the second phase of the trial, Moyer focused on proving the so-called predicate offenses, or evidence of prior criminal activity by Colonia Chiques members, as required by the gang-enhancement statute. She did not reintroduce evidence of Reyes’ affiliation with the enterprise.
Following the jury’s finding that the gang allegation was true—an enhancement that adds 10 years imprisonment to the defendant’s sentence—Sabo sentenced him to more than 55 years to life in prison.
Extensive Evidence
As to the gang enhancement evidence, Cody wrote:
“Appellant acknowledges the People introduced extensive evidence of his gang affiliation during the guilt phase of trial. He argues the People’s failure to reintroduce this evidence in the second phase of trial—which focused instead on the predicate offenses committed by other members of the La Colonia Chiques—means the jury’s true findings on the section 186.22 11 enhancements were not supported by sufficient evidence. We disagree.”
Saying that §1109(a) “does not expressly foreclose or limit the jury from considering evidence admitted during the guilt phase during a later phase of trial, such as a bifurcated proceeding on gang enhancements or aggravating factors,” she concluded that “[t]he plain language of [the statute] reflects the Legislature’s intent to limit gang enhancement evidence during the guilt phase of trial—not the other way around.”
He opined that interpreting the statute in the manner Reyes proposes “would compel the parties to perform the wasteful exercise of readmitting all relevant testimony and exhibits at each phase of trial.”
The jurist also pointed out that Reyes failed to object when the prosecutor told jurors during opening statement that “you’ll be instructed at the end of this that you can use all of the evidence that you’ve already listened to throughout that first phase of the trial” or when Sabo directed the panel to “impartially compare and consider all the evidence that was received during the trial.”
Guilt Trial
In an unpublished portion of the opinion, Cody addressed Reyes’ contention that the STEP Forward Act alters the analysis of whether gang evidence may be admitted during the guilt-phase of the trial.
Cody acknowledged that the “amendments to section 1109 foreclose prosecutors from bootstrapping marginally relevant gang evidence into the guilt phase of trial under the pretext of proving one or more enhancements,” but remarked:
“We do not agree with appellant, however, that [the act] alters how trial courts must navigate the waters of relevance and prejudice under Evidence Code section 352. The bill codified the judiciary’s longstanding concerns about gang evidence and modified existing statutes to allay these concerns. If the Legislature wanted to confine the trial court’s discretion it could have done so.”
As to the evidence admitted during the first phase of Reyes’ trial, she opined:
“Allowing significant evidence about appellant’s gang affiliation was neither arbitrary, capricious, nor patently absurd. The motive and intent for M.C.’s shooting was crucial to the People’s case against appellant….[who] lived in Bakersfield and denied all material allegations against him. The People were entitled to place this seemingly random act into context. This included explaining why a shooter would yell ‘Colonia’ at a stranger strolling through a neighborhood on a Sunday afternoon, then try to kill him. This case involved more than a defendant charged with a crime who also happens to be a gang member….This case involved a defendant alleged to have committed a crime because he was a gang member.”
She added:
“[T]he court instructed the jury ‘not [to] conclude from this evidence that the defendant is a person of bad character or that he has a disposition to commit crime.’…We presume the jury followed this instruction.”
The case is People v. Reyes, 2025 S.O.S. 2021.
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