83 Cal.App.5th 937
Cal. Ct. App.2022Background
- Defendant Noy Estul Boukes, a COORS Family Skins (white supremacist) gang member, drove and killed Victim 1 over a $550 drug debt allegedly tied to the Aryan Brotherhood; Victim 2 was threatened and falsely imprisoned at gunpoint during the incident.
- Physical and testimonial evidence tied Boukes to the crime (blood on his shoes and shorts, blood in the car, witnesses, informant statements, and post-arrest inculpatory remarks); parties stipulated Boukes was an active COORS participant who knew the gang engaged in a pattern of criminal activity.
- The jury convicted Boukes of first degree murder (count 1), criminal threats (count 2), and false imprisonment (count 3); it found true a gang-murder special circumstance and gang enhancements for counts 2 and 3, and a firearm enhancement for the murder.
- On appeal and remand proceedings, Boukes challenged the gang-related findings under Assembly Bill No. 333 (AB 333), which changed elements of section 186.22 and added Penal Code §1109 (bifurcation); courts previously remanded for reconsideration of certain enhancements.
- The Court of Appeal held the special circumstance and gang-enhancement true findings must be reversed and remanded for retrial under AB 333 because the People never proved a gang benefit that was "more than reputational." The court affirmed the underlying convictions and firearm enhancement.
- The court rejected defendant’s claim that AB 333 requires proof that predicate offenses were committed collectively by multiple members (interpreting “collectively” to allow predicate offenses committed on separate occasions), and held §1109 (bifurcation) does not apply retroactively (and, alternatively, any failure to bifurcate was harmless beyond a reasonable doubt).
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Boukes) | Held |
|---|---|---|---|
| 1) Does AB 333 require reversal of the gang-murder special circumstance and gang enhancements because the People failed to prove the gang derived more than reputational benefit? | AB 333 applies retroactively but the record shows collective gang benefit beyond reputation; any error is harmless beyond a reasonable doubt. | AB 333 requires proof of a common benefit "more than reputational"; the prosecution never proved that, so the special circumstance and gang enhancements must be reversed. | Reversed special circumstance and gang enhancements; remanded so the People may retry those findings under AB 333 because the People failed to prove a non-reputational common gang benefit. |
| 2) Does the statutory term "collectively" require that predicate offenses be committed by multiple gang members acting in concert? | The People argued prior predicate offenses committed by members on separate occasions suffice. | Boukes argued "collectively" means committed by more than one person together (in concert). | The court adopts the Clark reading: proof that predicate offenses "were committed on separate occasions" suffices; "collectively" need not mean each predicate was committed in concert by multiple members. |
| 3) Does Penal Code §1109 (bifurcation of gang enhancement evidence) apply retroactively to cases not yet final? | People: §1109 does not apply retroactively (procedural only); even if it did, any error was harmless. | Boukes: §1109 is retroactive and its absence prejudiced his convictions and enhancements, requiring reversal. | Majority: §1109 is procedural and does not apply retroactively; even if retroactive, failure to bifurcate would be harmless beyond a reasonable doubt in this case. (Concurring opinion disagreed, viewing §1109 as ameliorative and retroactive.) |
| 4) If §1109 applied retroactively, was the failure to bifurcate prejudicial? | Any error was harmless because evidence of guilt on underlying counts and firearm use was overwhelming and gang evidence was admissible for other purposes (motive). | Bifurcation would have reduced prejudice; trial format may have influenced jury on substantive counts and firearm enhancement. | Harmless beyond a reasonable doubt: the court concluded overwhelming non-gang evidence meant Boukes could not show a reasonable probability of a more favorable result from bifurcation. |
Key Cases Cited
- People v. E.H., 75 Cal.App.5th 467 (Cal. Ct. App. 2022) (AB 333 requires proof that gang benefit is more than reputational; Chapman harmlessness applies when new elements omitted)
- People v. Ramos, 77 Cal.App.5th 1116 (Cal. Ct. App. 2022) (discusses retroactivity and harmlessness analysis for AB 333/§1109)
- People v. Sek, 74 Cal.App.5th 657 (Cal. Ct. App. 2022) (addresses harmlessness where evidence of nonreputational gang benefit was substantial)
- People v. Delgado, 74 Cal.App.5th 1067 (Cal. Ct. App. 2022) (reads "collectively" to require predicate offenses committed in concert by multiple members)
- People v. Lopez, 73 Cal.App.5th 327 (Cal. Ct. App. 2021) (predicts AB 333 will require collective, not merely individual, predicate conduct)
- People v. Clark, 81 Cal.App.5th 133 (Cal. Ct. App. 2022) (rejects Delgado; holds predicate offenses may be proven by crimes committed on separate occasions by different members)
- People v. Burgos, 77 Cal.App.5th 550 (Cal. Ct. App. 2022) (majority holds §1109 retroactive; provides thorough legislative-history-based argument for retroactivity)
- People v. Perez, 78 Cal.App.5th 192 (Cal. Ct. App. 2022) (concludes §1109 is procedural and not retroactive)
- People v. Ramirez, 79 Cal.App.5th 48 (Cal. Ct. App. 2022) (aligns with Perez; §1109 not retroactive)
- People v. Frahs, 9 Cal.5th 618 (Cal. 2020) (Estrada retroactivity framework: ameliorative statutes apply to nonfinal cases)
- People v. Lara, 4 Cal.5th 299 (Cal. 2018) (applies Estrada where a procedural change increased the prospect of lesser punishment for a class of defendants)