80 Cal.App.5th 542
Cal. Ct. App.2022Background
- In Feb. 2018 defendant Fernando Rojas got into an altercation at an internet casino; surveillance later showed a BMW pull up and a passenger (codefendant Victor Nunez) fire multiple shots that killed Brandon Ellington.
- Police recovered a handgun whose DNA matched Nunez and ballistic evidence linked the gun to the casings at the scene; Rojas denied involvement in the shooting but admitted being at the casino and being a gang member.
- Indictment charged first‑degree murder (§§187, 189), active gang participation (§186.22(a)), and weapons offenses; the jury convicted on murder and the gang special‑circumstance (§190.2(a)(22)), found gang and firearm enhancements true.
- After conviction the Attorney General conceded that under Assembly Bill No. 333 (AB 333) Rojas’s active‑gang‑participation conviction and certain enhancements must be reversed; the Court of Appeal accepted that concession and reversed those counts/enhancements.
- The court rejected Rojas’s Batson/Wheeler claim challenging peremptory strikes of Hispanic prospective jurors, upheld the gang‑murder special circumstance as supported by substantial evidence, and held AB 333 cannot be read to amend Proposition 21’s special‑circumstance provision (§190.2(a)(22)).
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Rojas) | Held |
|---|---|---|---|
| 1. Batson/Wheeler challenge to prosecutor’s peremptory strikes of Hispanic venire members | Prosecutor gave race‑neutral reasons (youth/lack of life experience, body language, job/field, prior gang questionnaire answers); trial court credited those reasons | Reasons were pretextual and unsupported; strikes targeted Hispanic jurors | Court affirmed: trial court properly credited race‑neutral explanations; defendant failed to show purposeful discrimination (deferential review). |
| 2. Effect of AB 333 on conviction and gang enhancements | AG conceded AB 333’s narrowing of §186.22 requires reversal of active‑gang‑participation conviction and certain vicarious firearm enhancement | Rojas argued AB 333 requires reversal of related gang findings/enhancements | Court accepted concession: reversed conviction for active gang participation and related enhancements; retrial permitted. |
| 3. Whether AB 333 impermissibly amends Proposition 21’s §190.2(a)(22) by changing the §186.22 gang definition | People argued AB 333 cannot be read to alter the voter‑enacted §190.2(a)(22); allowing it to do so would impermissibly amend the initiative | Rojas argued AB 333 narrows §186.22 and thus precludes application of §190.2(a)(22) as previously written | Court held AB 333 would "take away" categories the voters made subject to the special circumstance and therefore cannot be applied to §190.2(a)(22); AB 333 does not alter the special‑circumstance scope here. |
| 4. Sufficiency of evidence and instruction on intent for aider/abettor under §190.2(a)(22)/(c) | People: circumstantial evidence (gang membership, tattoos, gang expert testimony, joint chase, killing by fellow gang member) supports inference murder was to further gang activities; for aider/abettor §190.2(c) requires only aider’s intent to kill, not independent intent to further gang | Rojas: insufficient proof he specifically intended to further gang activities; jury should have been instructed that aider/abettor must have intended to further gang activities | Court held substantial evidence supports the special circumstance; for non‑killer aider/abettor the correct intent requirement is intent to kill (§190.2(c))—no separate instruction requiring aider’s own intent to further gang activities. |
Key Cases Cited
- Batson v. Kentucky, 476 U.S. 79 (U.S. 1986) (peremptory strikes based on race violate equal protection)
- People v. Wheeler, 22 Cal.3d 258 (Cal. 1978) (state counterpart to Batson; three‑step inquiry)
- People v. Holmes, 12 Cal.5th 719 (Cal. 2022) (modern articulation of Batson/Wheeler framework and appellate review deference)
- People v. Pearson, 48 Cal.4th 564 (Cal. 2010) (a legislative act amends an initiative if it authorizes what the initiative prohibits or vice versa)
- People v. Kelly, 47 Cal.4th 1008 (Cal. 2010) (courts must jealously guard initiative power; interpret initiatives to give voters what they enacted)
- People v. Gooden, 42 Cal.App.5th 270 (Cal. Ct. App. 2019) (discusses distinction between changes to crime‑definition vs. punishment in the context of legislative reforms)
- People v. Vasquez, 74 Cal.App.5th 1021 (Cal. Ct. App. 2022) (AB 333 requires that a gang’s offenses commonly benefit the gang and that the benefit be more than reputational)
- People v. Arce, 47 Cal.App.5th 700 (Cal. Ct. App. 2020) (§190.2(a)(22) requires that the killer intentionally acted to further gang activities)
- People v. Ghobrial, 5 Cal.5th 250 (Cal. 2018) (standard for reviewing sufficiency of the evidence)