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The Court of Appeal has struck a gang enhancement against John Oliva, who was convicted of murdering David Bustamante on Christmas Day 2015, after Bustamante gave Oliva tamales made by his mother.

The published opinion establishes that Assembly Bill 333, which tightened the burden to prove gang enhancements, applies to cases already decided.

The bill changed the definitions of “criminal street gang” and “common benefit to members of a gang.” Under the new law, a criminal street gang must be an organized organization, and crimes committed by individual gang members who are acting on their own do not count toward the pattern of criminal gang activity.

It also requires criminal acts that receive the enhancement to benefit the gang more than just reputationally. It also required gang enhancements to be tried separately from main criminal charges. Then-Assemblymember Sydney Kamlager-Dove (D-Los Angeles) wrote the bill.

Oliva had arranged to meet Bustamante in a parking lot of an In-N-Out restaurant in Hesperia on Christmas Day, 2015. Bustamante had brought two women with him, one of whom he was giving a tattoo to, and her girlfriend.

When Bustamante got out of his white SUV with a bag of his mother’s tamales, Oliva pulled out a gun and shot him until his revolver ran out of ammunition. While he was falling to the ground, Bustamante asked why Oliva shot him, according to the witnesses.

Oliva said “La Eme” multiple times, which the Court of Appeal identified as a term for the Mexican Mafia.

Oliva was pointed out by both witnesses in a lineup, and was placed at the location due to his cellphone. He pleaded not guilty, but was convicted Nov. 5, 2018, of felony murder with prior convictions and three enhancements.

Oliva appealed his sentence, arguing that he should have had a separate trial for the gang enhancements as AB 333 required. He also argued that he was not convicted under the new requirements of gang enhancements under the law.

Prosecutors did not object to his arguments about the conviction, and agreed that the gang enhancements should be retried, according to the appellate ruling.

The Court of Appeal reversed Oliva’s sentence and the gang enhancement finding. Prosecutors now have a choice to retry the gang enhancement finding. If they do not retry the finding, the court directed San Bernardino Superior Court to resentence him.

Douglas Miller wrote the opinion, which Presiding Justice Manuel Ramirez and Justice Richard Fields joined.

San Bernardino Superior Judge Tony Raphael presided.

Case No. FVI1503175

Appellate Case No. E073979

Read the ruling here.


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