80 Cal.App.5th 82
Cal. Ct. App.2022Background
- On July 21, 2017, 17‑year‑old Abraham Rubio was shot and later died; restaurant surveillance video captured movements of Jose Montano, his brother Juan Montano, Giovanni Jasso, and a fourth person around the scene. Juan was shown on video near Rubio immediately before Rubio fell.
- Defendants were tried jointly and convicted of first‑degree murder (lying in wait), unlawful participation in a criminal street gang (§ 186.22(a)), and related firearm and gang enhancements; the jury deadlocked on the § 190.2(a)(22) gang‑murder special circumstance and that allegation was dismissed. Each defendant received LWOP for murder; various enhancements were imposed or stayed.
- Assembly Bill 333 (effective Jan. 1, 2022) amended § 186.22 (narrowing predicate proof and requiring common benefit beyond reputation) and added § 1109 (bifurcation rules for gang counts/enhancements). AB 333 was enacted while this appeal was pending.
- The Court of Appeal addressed multiple issues: (1) sufficiency of evidence (aiding/abetting); (2) retroactivity and application of AB 333 amendments to § 186.22 and § 1109; (3) evidentiary and instructional challenges; and (4) sentencing issues including prior‑term enhancements and youth/constitutional claims.
- Holdings in brief: amendments to § 186.22 apply retroactively (requiring remand on gang counts and related § 12022.53 enhancements); § 1109 is retroactive but does not apply to gang special‑circumstance allegations under § 190.2(a)(22); most other claims (insufficient evidence, evidentiary/instructional errors, Eighth/Equal Protection claims) were rejected or found harmless; certain prior prison‑term enhancements stricken.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence (Jasso — aiding & abetting murder) | Video, flight, false statements, gang ties and conduct before/after showed Jasso aided and abetted; evidence sufficient | Jasso argued mere presence and no proof he encouraged or assisted the killing | Court: substantial evidence supported aiding/abetting (lookout/diversion, flight, false statements); conviction upheld |
| Retroactivity of AB 333 amendments to § 186.22 | People conceded amendments apply retroactively; gang expert did not prove new elements (common benefit beyond reputation) | Defendants argued retroactive application entitled them to relief on gang counts/enhancements | Court: § 186.22 amendments are retroactive under Estrada/Frahs; convictions and § 186.22(b) enhancements reversed and remanded for retry on those issues; related § 12022.53 gang‑based firearm enhancements vacated where vicarious gang basis was sole predicate |
| Retroactivity and scope of § 1109 (bifurcation) | People argued § 1109 should not be applied retroactively / or if retroactive, no prejudice because gang special‑circumstance would admit same evidence | Defendants argued § 1109 retroactive and required bifurcation of gang allegations and § 186.22(a) counts; and that § 1109 must apply to § 190.2(a)(22) special circumstances | Court: § 1109 is retroactive (ameliorative effect, legislative findings); but § 1109 does not apply to special‑circumstance gang murder allegations under § 190.2(a)(22) because § 1109 is limited to § 186.22(b)/(d) and (a) counts and conflicts with the § 190.1–190.4 statutory scheme; courts cannot judicially rewrite statute; defendants not entitled to reversal on that basis because gang‑murder allegation made gang evidence cross‑admissible |
| Admissibility of Jose’s prior sawed‑off shotgun statements | People relied on the statement for relevance to gang membership and expert opinion | Jose argued Evidence Code §§ 1101, 352 bar prior‑gun evidence as propensity evidence and it was not a primary activity used by the expert | Court: assuming error, admission was harmless under Watson; evidence was minimal and not exploited by prosecution; no fundamental unfairness |
| Jury instructions (heat of passion; CALCRIM variations including CALCRIM 1403/505/521/703) | People maintained instructions were legally adequate and any errors were harmless given lying‑in‑wait findings and cross‑admissible gang evidence | Defendants argued trial court had sua sponte duty to give heat‑of‑passion instructions and some CALCRIM language misstated law or limited defenses (self‑defense/defense of others) | Court: failure to give heat‑of‑passion instruction was harmless because lying‑in‑wait finding negated prejudice; challenged CALCRIM instructions were correct or forfeited, and any omissions were harmless beyond reasonable doubt in light of other correct instructions and special‑circumstance findings |
| Sentencing challenges (Eighth/Equal Protection; prior prison‑term enhancements) | Defendants argued LWOP for young adults (19–22) is cruel and unusual and § 3051/related scheme denies equal protection; Juan argued prior § 667.5 enhancements no longer apply | People defended statutory sentencing scheme and distinctions between juveniles and young adults; maintained legislature has rational basis | Court: Eighth Amendment and equal‑protection challenges rejected; however, prior prison‑term enhancements under § 667.5(b) stricken retroactively and ordered removed (per § 1171.1 and recent law) |
Key Cases Cited
- In re Estrada, 63 Cal.2d 740 (Cal. 1965) (presumption that ameliorative criminal statutes apply to nonfinal judgments)
- People v. Frahs, 9 Cal.5th 618 (Cal. 2020) (applying Estrada to diversion statute; Legislature must clearly signal prospective intent to rebut retroactivity)
- People v. Lara, 4 Cal.5th 299 (Cal. 2018) (extension of Estrada to statutes ameliorative for a class of persons)
- People v. Cruz, 44 Cal.4th 636 (Cal. 2008) (lying‑in‑wait findings negate prejudice from failure to instruct on provocation/heat of passion)
- People v. Fierro, 1 Cal.4th 173 (Cal. 1991) (special‑circumstance findings generally to be made by same jury that decides guilt; Bigelow exception narrow)
- People v. Bigelow, 37 Cal.3d 731 (Cal. 1984) (allowing separate trial of a special circumstance where evidence is highly prejudicial and relevant only to the special circumstance)
- People v. Brookfield, 47 Cal.4th 583 (Cal. 2009) (§ 12022.53 gang vicarious liability: enhanced firearm penalties may apply even if defendant did not personally shoot when murder committed for gang benefit)
- People v. Watson, 46 Cal.2d 818 (Cal. 1956) (standard for harmless error review)
- People v. Kelly, 42 Cal.4th 763 (Cal. 2007) (test for admissibility of other‑crimes evidence under §§ 1101 and 352)
- People v. Beeman, 35 Cal.3d 547 (Cal. 1984) (aider and abettor mental‑state standard)