People v. Herbert CA4/1, D078399

Background

Defendant Joshua Herbert, a Mongols motorcycle club member, was convicted of first-degree murder and attempted murder after he opened fire at unarmed Hells Angels at a Riverside gas station, killing James Duty.
Key evidence: surveillance stills of a gray Nissan Versa, cell‑tower pings placing Herbert near the scene, a loaded .357 revolver and ammunition recovered from Herbert’s home, Mongols paraphernalia and tattoos, and Herbert’s post‑shooting admissions to his former girlfriend.
Gang expert testified about Mongols–Hells Angels rivalry, Mongols membership/tattoos, and three prior crimes by Mongols members (used as predicate offenses).
Jury found true a gang‑murder special circumstance (Pen. Code § 190.2(a)(22)) and gang enhancements under Pen. Code § 186.22(b)(1); Herbert received life without parole plus concurrent enhancements.
On appeal Herbert challenged (1) sufficiency of evidence that he was an active participant and that the murder furthered gang activities, and (2) application of post‑trial legislative changes (Assembly Bill 333) and new Evidence Code § 1109 to his case.
The Court of Appeal affirmed guilt but vacated and struck the gang enhancements and the § 190.2 special‑circumstance finding, holding AB 333 applies retroactively and requires those allegations be retried under the amended statutory definitions; it rejected Herbert’s § 1109 claim as not prejudicial.

Issues

Issue	Plaintiff's Argument (People)	Defendant's Argument (Herbert)	Held
1) Sufficiency: Was there substantial evidence Herbert was an "active participant" in the Mongols at the time of the shootings?	Sufficient evidence: tattoos, paraphernalia, admissions, phone contacts with Mongols the night of the shooting, conduct consistent with gang objectives.	Herbert claimed he was "out bad" (expelled) and not an active participant at the time; his statements denying current membership.	Held: Substantial evidence supported active participation; jury could reject Herbert’s disassociation claim.
2) Sufficiency: Was the murder committed to further gang activities?	The shooting targeted rival Hells Angels, unprovoked; expert opinion and Herbert’s boasts supported finding it furthered Mongols’ activities (retaliation/intimidation).	Herbert argued his motive was personal (to regain standing) and not to further the gang.	Held: Evidence supported that the killing furthered gang activities; personal motive and gang benefit are not mutually exclusive.
3) Retroactivity / incorporation: Does Assembly Bill 333’s narrowing of § 186.22 apply retroactively and to the § 190.2(a)(22) special‑circumstance that references § 186.22?	People: AB 333’s amendments to § 186.22 are ameliorative and retroactive; but they argued the changes should not alter the voter‑enacted § 190.2 special‑circumstance (or that Palermo prevents later changes).	Herbert: AB 333 is retroactive and its heightened predicate/benefit requirements apply to his case, invalidating the jury’s gang findings under the new standards; he also urged § 190.2 should be read to incorporate the amended § 186.22.	Held: AB 333 is retroactive and its amended definitions apply to § 190.2(a)(22); applying the Palermo rule here would be improper — voters did not intend a time‑frozen incorporation — so the special‑circumstance and enhancement findings were vacated and remanded for retrial on those allegations under AB 333.
4) Bifurcation (§ 1109): Does failure to bifurcate gang evidence under new Evidence Code § 1109 require reversal?	People: § 1109’s bifurcation aim does not mandate retroactive reversal; any failure to bifurcate is non‑structural and harmless here given overwhelming independent evidence.	Herbert: § 1109 is ameliorative and retroactive; failure to bifurcate is structural or at least prejudicial requiring reversal of convictions.	Held: Court need not decide retroactivity; any error from non‑bifurcation was harmless because gang evidence was limited and the conviction rested on strong independent evidence.

Key Cases Cited

People v. Tran, 13 Cal.5th 1169 (Cal. 2022) (AB 333 amendments to § 186.22 are ameliorative and retroactive)
People v. Lopez, 82 Cal.App.5th 1 (Cal. Ct. App. 2022) (discusses AB 333’s revised definitions and predicate requirements)
In re Estrada, 63 Cal.2d 740 (Cal. 1965) (presumption of retroactivity for ameliorative criminal statutes)
Palermo v. Stockton Theatres, Inc., 32 Cal.2d 53 (Cal. 1948) (rule on incorporation by reference and time‑specificity)
People v. Shabazz, 38 Cal.4th 55 (Cal. 2006) (context and purpose of Prop. 21 and § 190.2(a)(22))
People v. Vang, 52 Cal.4th 1038 (Cal. 2011) (expert opinion on gang benefit admissible and can support § 186.22(b)(1) enhancement)
People v. Gooden, 42 Cal.App.5th 270 (Cal. Ct. App. 2019) (interpretive guidance on amendments to statutes tied to voter initiatives)