89 Cal.App.5th 76
Cal. Ct. App.2023Background
- On December 25, 2015 the victim was shot and killed in an In-N-Out parking lot after meeting a person he called "Jboy 12th Street." Two eyewitnesses (Nancy and Ana) later identified defendant as the shooter.
- Phone records and GPS data tied the victim and the contact labeled Jboy 12th Street (the victim’s phone) to defendant’s phone; surveillance captured a red truck consistent with defendant’s vehicle at the scene.
- Defendant was convicted of first‑degree murder, found to have personally discharged a firearm, and found true on special‑circumstance allegations (lying in wait and gang‑murder) and a §186.22 gang enhancement; sentenced to life without parole plus additional terms.
- On direct appeal defendant challenged (1) the CALCRIM No. 315 eyewitness‑certainty instruction and (2) denial of a continuance to complete DNA testing; this court initially affirmed.
- After this court’s earlier opinion, the remittitur was recalled to address Assembly Bill No. 333 (AB 333), which amended §186.22 and added §1109; the People conceded AB 333 benefits defendants as to §186.22 and this court ordered vacation of certain gang findings and remand for retrial or resentencing under the amended law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Eyewitness‑certainty instruction (CALCRIM No. 315) | Instruction is proper; neutral factor and did not lower burden | Instruction is misleading; certainty is not reliable without expert evidence | Instruction did not violate due process; any error harmless under Chapman/Watson (Lemcke and Sánchez controlled) |
| Denial of continuance to complete DNA testing before sentencing | Trial court acted within discretion; defendant and prior counsel chose not to pursue testing; delay and lack of diligence | Denial deprived him of due process and effective counsel; DNA might exculpate him | Denial was not an abuse of discretion; defendant failed to show the continuance would be useful or prejudicial error |
| Retroactive application of AB 333 to §186.22 gang enhancement | People concede AB 333 ameliorates punishment and applies to nonfinal cases | AB 333 should apply retroactively under In re Estrada | AB 333 applies retroactively to §186.22 enhancements; true finding vacated and remanded for retrial or resentencing |
| AB 333’s change to "criminal street gang" as applied to §190.2(a)(22) gang‑murder special circumstance | People argued the amendment might conflict with Proposition 21 but some courts hold it does not; if applicable, retrial appropriate | AB 333 applies so special‑circumstance finding must be vacated and retried | Court concluded AB 333’s amendment to §186.22 may validly apply to §190.2(a)(22); vacated gang special‑circumstance finding and remanded for retrial or resentencing |
| New §1109 (bifurcated gang trials) — retroactivity and prejudice | People contend §1109 is prospective; even if retroactive, any failure to bifurcate was harmless because gang evidence was admissible for guilt and special circumstance | §1109 should apply retroactively requiring bifurcation and reversal of all convictions | Court assumed without deciding §1109 could apply retroactively but found any error harmless; no retrial of non‑gang convictions required |
Key Cases Cited
- People v. Lemcke, 11 Cal.5th 644 (Cal. 2021) (CALCRIM No. 315 does not violate due process though wording may risk juror confusion)
- People v. Sánchez, 63 Cal.4th 411 (Cal. 2016) (upheld certainty factor as neutral; defendant forfeited request to modify instruction)
- In re Estrada, 63 Cal.2d 740 (Cal. 1965) (ameliorative criminal statutes apply retroactively to nonfinal cases absent contrary intent)
- People v. Tran, 13 Cal.5th 1169 (Cal. 2022) (AB 333 amendments to §186.22 apply to nonfinal cases and errors in bifurcation of gang allegations may be reviewed for prejudice)
- People v. Bigelow, 37 Cal.3d 731 (Cal. 1984) (if evidence introduced only for special circumstance is highly prejudicial, bifurcated trial or limiting instruction is required)
- People v. Fierro, 1 Cal.4th 173 (Cal. 1991) (statutory scheme generally contemplates guilt and special‑circumstance determinations by same jury except limited prior‑murder exception)
- People v. Sek, 74 Cal.App.5th 657 (Cal. Ct. App. 2022) (explains AB 333’s substantive changes to pattern/predicate crime and benefit elements of §186.22)
- People v. Montano, 80 Cal.App.5th 82 (Cal. Ct. App. 2022) (discusses §1109, special‑circumstance determinations, and admissibility of gang evidence)