People v. Burgos ( 2022 )

Filed 4/15/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H045212
(Santa Clara County
Plaintiff and Respondent, Super. Ct. Nos. C1518795, C1756994)
v.
FRANCISCO BURGOS et al.,
Defendants and Appellants.
This case concerns the retroactivity of Assembly Bill No. 333 (2021–2022 Reg.
Sess.) (Assembly Bill 333), which made numerous changes to the law governing gang-
related offenses. A jury found appellants Francisco Burgos, James Daniel Richardson,
and Damon Stevenson Jr. guilty of second degree robbery with true findings on gang
enhancements. The trial court sentenced each appellant to 21 years in prison.
Appellants raise numerous claims including insufficient evidence and the
retroactivity of Assembly Bill 333. The Attorney General concedes Assembly Bill 333 is
retroactive insofar as it amended the requirements for proving a gang enhancement. But
he contends the section of the bill adding Penal Code section 1109 (allowing the defense
to request a bifurcated trial on a gang enhancement) does not apply retroactively.
We conclude the evidence was sufficient to support the convictions. We hold
Assembly Bill 333 applies retroactively, and we conclude there are no grounds for
treating one section of the bill as prospective-only. Therefore, Penal Code section 1109
also operates retroactively. We will reverse the judgments of conviction, vacate the gang
enhancements, and remand to the trial court.
Appellants raise numerous other claims including evidentiary error, instructional
error, and ineffective assistance of counsel, but we do not reach those claims.1
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Procedural Background
The prosecution charged each appellant with two counts of second degree robbery.
(Pen. Code, §§ 211, 212.5, subd. (c).) As to each count and defendant, the prosecution
alleged that a principal personally used a firearm in the commission of the offense (Pen.
Code, § 12022.53, subds. (b) & (e)(1)), and that the offense was committed for the
benefit of, at the direction of, and in association with a criminal street gang (Pen. Code,
§ 186.22, subd. (b)(1)(C)). The prosecution further alleged each defendant had been
convicted of prior serious felony offenses (Pen. Code, §§ 667, subds. (a), (b)-(i),
1170.12). As to Burgos, the prosecution alleged he had served a prior prison term (Pen.
Code, § 667.5, subd. (b)). As to Stevenson, the prosecution alleged he was on felony
probation at the time of the offenses. (Pen. Code, § 1203, subd. (k).)
The prosecution also charged codefendants Derrik Lozano and Gregory Byrd with
the same offenses. Before trial, Lozano agreed to plead guilty to one count of second
degree robbery and active participation in a criminal street gang in exchange for a
stipulated sentence of three years.
Trial began in January 2017, and the jury reached verdicts in March 2017. The
jury found Burgos, Richardson, and Stevenson guilty on both counts and found true the
gang allegations. The jury hung on the firearm allegations and found Byrd not guilty on
both counts. After a bench trial, the court found true the prior conviction allegations as to
Burgos and Stevenson. Richardson admitted his prior conviction.
1
Richardson also petitions this court for a writ of habeas corpus. (In re
Richardson, H047955.) We deny his petition as moot in a separate order on this date.
2
As to each defendant, the trial court imposed an aggregate term of 21 years,
consisting of six years for robbery, 10 years for the gang enhancements, and five years
for the prior felony offenses.
B. Facts of the Offense
The prosecution alleged appellants were members of the Crip criminal street gang
who robbed two men at gunpoint in San Jose on August 29, 2015.2 The victims were
Gabriel Cortez and Danny Rodriguez. Rodriguez had no arms. The victims told police a
group of four to six men with a gun approached them, asked about their gang status, and
took their phones and wallets. The prosecution alleged that the robbers consisted of the
three appellants together with Gregory Byrd and Derrik Lozano.
At the time of the offense, Byrd lived in an apartment at a complex near Bowling
Green Drive and King Road in San Jose. He testified that around 9:30 or 10:00 p.m. on
the night of the robbery, Byrd, Lozano, and appellants were at the apartment complex.
At some point after midnight, appellants and Lozano left to go to the store. Byrd testified
that they came back to the apartment about 15 minutes later. Between 12:08 and
12:28 a.m., at a 7-Eleven near the location of the robbery, video cameras recorded
appellants and Lozano inside the store.
Just before the robbery, Rodriguez and Cortez were eating at a Chinese restaurant
nearby. Around midnight, they left the restaurant and were walking near the 7-Eleven
when a group of men approached them from the direction of the store. Rodriguez later
told police it was a group of five or six men. Cortez later told police there were maybe
four or five men in the group. The men were wearing black or dark blue clothing.
Rodriguez told police they all wore plain t-shirts with no writing on them.
The men started asking Rodriguez and Cortez where they were from and whether
they “banged.” The victims responded that they were from “right here,” and the men
2
Section II.B.2 below sets forth the evidence of the gang allegations.
3
asked them whether they were from “Meadowfair.” One of the men asserted, “Well,
we’re Crip.” It appeared to Rodriguez that the men were about to let them go when the
biggest man in the group asked the victims what they had in their pockets. The man
pulled up his shirt to reveal a gun, pulled down a ski mask, and told the victims to empty
their pockets. Rodriguez responded, “Bro’, I don’t even have arms. I can’t. You know I
can’t.” The man approached Rodriguez, pulled out his wallet and phone, and opened the
wallet, whereupon the man saw it was empty. The man dropped the wallet but kept the
phone. Someone pointed a gun in Cortez’s face and took his wallet and phone out of his
pockets. Cortez had about $250 in his wallet. One of the men then told the victims, “See
that guy with the gun . . . . you guys got 30 seconds to get out of my face.”
After the robbery, the victims ran to Cortez’s home and Rodriguez called his
father to come pick him (Rodriguez) up. Rodriguez told his father that a group of men
with a gun had robbed him (Rodriguez) and Cortez, taking their wallets and phones. As
Rodriguez’s father was driving him home, Rodriguez saw the men who robbed him
standing on the corner of Bowling Green Drive and King Road. When Rodriguez and his
father reached their home, the father called 911 and they reported the robbery. The father
told the 911 operator his son had been robbed by five black men with a gun 15 minutes
earlier, and that three of the robbers had been at the corner of Bowling Green Drive and
King Road five minutes earlier.
Police arrived at the apartment complex at Bowling Green Drive and King Road
around 1:00 a.m. The location was about 50 to 100 yards from the 7-Eleven. As they
pulled up, the police saw three black men standing near the apartment complex. One of
the men was wearing a “very, very noticeable teal shirt,” or a “bright teal” or turquoise
shirt. The three men immediately started running into the apartment complex.
The police set up a perimeter around the apartment complex and watched the exits
to ensure nobody else went in or out. They saw Byrd standing on a second-floor balcony
“kind of . . . peeking out.” About 25 minutes after police saw the three men run into the
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apartment complex, Byrd came out of the complex and contacted the police. He told the
police he wanted to move his car, which was parked in a fire lane, so that it would not get
towed. Police later determined the car was owned by Lozano’s girlfriend, Cynthia
Capito, who was outside the apartment complex. At some point, Capito consented to a
search of the car, and the police found Rodriguez’s stolen phone inside it.
The police detained Byrd and conducted an in-field showup of Byrd for
Rodriguez. Rodriguez positively identified Byrd as the robber with the gun and
described him as the main suspect.
Shortly thereafter, the police took appellants, Lozano, and another man named
Keison Hames out of Byrd’s apartment. The police conducted in-field showups of each
person for Rodriguez one at a time. First, the police showed Hames to Rodriguez, but
Rodriguez did not recognize him. Next, they showed Stevenson to Rodriguez.
Rodriguez recognized him as being present during the robbery. After the police then
showed Burgos to Rodriguez, however, he said Burgos looked similar to Stevenson, and
he could not be sure about either of them. The police showed him Lozano next, and
Rodriguez said he did not recognize him. Finally, they showed him Richardson, and
Rodriguez said he was not a participant.
The police then conducted in-field showups with Cortez and showed him Lozano,
Stevenson, Burgos, Richardson, and Hames. They did not show him Byrd. An audio
recording of the showup conflicts with police testimony about the order in which the
suspects were shown to Cortez. The audio transcript appears to show Lozano was
presented first, and Cortez identified him as the person who “dug inside my pocket.”
Next, Cortez identified Stevenson as “kind of” familiar. Cortez said he thought
Stevenson “was just there” and did not touch Cortez, but Cortez felt a little threatened by
his presence. The officer who conducted the showup testified that Cortez was presented
with Stevenson first, and that Cortez said Stevenson was the one who went through his
pockets. The officer testified that Cortez said Lozano “was just present” and did not do
5
anything. Cortez identified Burgos as “the one who took my wallet.” When the officer
asked Cortez if he was positive Burgos was the one who took his wallet, Cortez
responded, “Oh, yeah.” When Cortez was shown Richardson, he said Richardson was
the one who told them to empty their pockets and that Richardson had also put his hands
in Cortez’s pockets. Cortez did not recognize Hames.
Neither victim identified any of the defendants at trial. When the prosecutor asked
Rodriguez whether it would refresh his recollection to view a transcript of his in-field
showup, Rodriguez responded in the negative, adding, “I don’t want to remember.”
When asked about details of the robbery and what he had told the police, Rodriguez
repeatedly responded, “I don’t know,” or “I don’t remember.” Cortez also testified that
he was unable to recall details of the robbery. He testified that he had been intoxicated,
having taken two Xanax pills, drinking for several hours, and smoking concentrated
marijuana on the night of the robbery.
In a search of Byrd’s apartment, the police found Cortez’s stolen phone inside a
backpack. They also found a blue t-shirt that appeared to be the same shirt police saw on
one of the men standing outside the apartment complex when the police first arrived.
Appellants, Lozano, and Byrd were all excluded as potential contributors to DNA
recovered from the t-shirt. On Rodriguez’s stolen phone, found in Capito’s car, the
police found a fingerprint that matched Lozano’s fingerprints.
II. DISCUSSION
A. Sufficiency of the Evidence Supporting the Robbery Convictions
All three appellants contend the evidence was insufficient to support the robbery
convictions. Richardson and Burgos argue the evidence was insufficient to support the
identification of them as the robbers. Stevenson concedes substantial evidence shows he
was present during the robbery, but he argues the evidence was insufficient to show he
directly participated in the robbery or aided and abetted it. The Attorney General
contends the evidence was sufficient to support the identification of Richardson and
6
Burgos because Cortez identified them as robbers, and because the overall fact pattern
corroborates that finding. As to Stevenson, the Attorney General contends the evidence
was sufficient to show he aided and abetted the robbery or conspired with the others in its
commission.
1. Legal Principles
“To assess the evidence’s sufficiency, we review the whole record to determine
whether any rational trier of fact could have found the essential elements of the crime or
special circumstances beyond a reasonable doubt.” (People v. Zamudio (2008) 43
Cal.4th 327, 357, citing People v. Maury (2003) 30 Cal.4th 342, 403.) The record must
disclose substantial evidence to support the verdict such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt. (Ibid.) The substantial
evidence must be reasonable, credible, and of solid value. (Ibid.) We review the
evidence “in the light most favorable to the prosecution and presume in support of the
judgment the existence of every fact the jury could reasonably have deduced from the
evidence.” (Ibid.) “A reversal for insufficient evidence ‘is unwarranted unless it appears
that upon no hypothesis whatever is there sufficient substantial evidence to support’ the
jury’s verdict.” (Ibid.) The standard is the same under both the California Constitution
and the federal Constitution. (People v. Jimenez (2019) 35 Cal.App.5th 373, 392.)
2. Substantial Evidence Supports the Robbery Convictions
Richardson and Burgos challenge the sufficiency of the evidence supporting the
identification of them as the robbers. They characterize the identification by Cortez as
uncorroborated; they point to conflicting testimony; and they argue the substantial
evidence standard of review allows us to reject the evidence as too weak to sustain their
convictions.
We are not persuaded. Even if we rejected the Cortez identification as insufficient
evidence when considered in isolation, other facts presented at trial comprised additional
circumstantial evidence sufficient to support the jury’s finding. The evidence showed all
7
three appellants—who were Crip gang members—were together at Byrd’s apartment
complex before the robbery, and video camera evidence showed them at the nearby 7-
Eleven right around the time of the robbery. They were seen together again in Byrd’s
apartment after the robbery, and Cortez’s stolen phone was found in the apartment.
Appellants were also seen together with Lozano, and Rodriguez’s stolen phone was
found in Lozano’s girlfriend’s car. Viewing this record as a whole, together with
Cortez’s identification, the evidence was sufficient for a reasonable jury to find beyond a
reasonable doubt that appellants were the robbers.
Stevenson does not dispute that he was present during the robbery, but he argues
the evidence was insufficient to find he actively participated in the crime, or that he aided
and abetted it. He points out that Cortez said the person he identified as Stevenson did
nothing during the robbery apart from being present. The Attorney General argues the
evidence showed Stevenson aided and abetted the robbery or conspired with the others in
its commission.
“[A] person aids and abets the commission of a crime when he or she, acting with
(1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of
committing, encouraging, or facilitating the commission of the offense, (3) by act or
advice aids, promotes, encourages or instigates, the commission of the crime.” (People v.
Beeman (1984) 35 Cal.3d 547, 561.) “ ‘Mere presence at the scene of a crime which does
not itself assist its commission or mere knowledge that a crime is being committed and
the failure to prevent it does not amount to aiding and abetting.’ [Citations.] ‘To be
liable for a crime as an abettor, the accused must have instigated or advised the
commission of the crime or have been present for the purpose of assisting the crime. He
must share the criminal intent with which the crime was committed. Neither his mere
presence at the scene of the crime nor his failure, through fear, to prevent a crime
establishes, without more, that an accused was an abettor.’ [Citation.]” (People v. Pettie
(2017) 16 Cal.App.5th 23, 57-58 (Pettie).) “[F]actors for determining aiding and abetting
8
of a robbery include presence at the scene of the crime, companionship, and conduct
before and after the crime, including flight.” (People v. Haynes (1998) 61 Cal.App.4th
1282, 1294.)
The record holds evidence of several factors from which a reasonable juror could
infer guilt on a theory of aiding and abetting or conspiracy. As the Attorney General
points out, Stevenson was a “continuous constituent” of the group that committed the
robbery—before, during, and after the offense, as the group moved from the apartment
complex and the 7-Eleven and then back to the apartment complex again afterwards.
Rodriguez told police that the group approached him and Cortez together just before
initiating the robbery. The jury could reasonably infer that Stevenson intended to
participate in a “show of force” as one member of the larger group outnumbering the
victims. (See In re Juan G. (2003) 112 Cal.App.4th 1, 5 [reasonable to infer minor aided,
promoted, and encouraged robbery based on his prior companionship, presence at crime
scene, proximity to victim, and flight from the scene]; People v. Campbell (1994) 25
Cal.App.4th 402, 409-410 [reasonable to infer aiding and abetting where defendant
approached victims together with codefendant and remained present in front of victims
while codefendant used a firearm to rob them]; In re Lynette G. (1976) 54 Cal.App.3d
1087, 1095 [similar facts].)
Furthermore, the prosecution’s gang expert testified that being a member of a Crip
gang involved a tacit agreement to commit violence and assist or join in on acts of
violence. Thus, the fact that appellants were all members of the same Crip gang, when
considered together with the evidence of Stevenson’s conduct before, during, and after
the crime, would support an inference that he intentionally aided and abetted the robbery.
(See Pettie, supra, 16 Cal.App.5th at p. 59 [reasonable to infer aiding and abetting based
on defendant’s presence during attempted murder together with gang expert’s testimony
that gang members were expected to assist in assaults]; People v. Morales (2003) 112
Cal.App.4th 1176, 1198 [reasonable to infer gang-related intent].)
9
For the reasons above, we conclude the evidence was sufficient to support the
robbery convictions of all three appellants.
B. The Effect of Assembly Bill No. 333
Effective January 1, 2022, Assembly Bill 333 substantially changed the law
governing gang-related offenses. Assembly Bill 333 amended Penal Code section 186.22
in several ways, requiring a more stringent showing to prove a gang enhancement.
Assembly Bill 333 also added Penal Code section 1109, which allows the defense to
request a bifurcated trial on gang enhancements.
Appellants contend they are entitled to retroactive application of Assembly Bill
333, and they argue their underlying convictions as well as the gang enhancements must
be vacated. The Attorney General concedes that the portions of the bill amending Penal
Code section 186.22 apply retroactively, such that the gang enhancements should be
vacated and the matter remanded. Appellants contend we must reverse the robbery
convictions as well because the new Penal Code section 1109 allows for bifurcated trials
on gang enhancements, and the trial in this case was not bifurcated. The Attorney
General argues appellants are not entitled to retroactive application of Penal Code section
1109.
For the reasons below, we conclude Assembly Bill 333 applies retroactively,
including the section that added Penal Code section 1109. We further conclude this
requires us to vacate the convictions and remand the matter for possible retrial.
1. Legal Background
Penal Code section 186.22 sets forth an enhanced punishment for a felony
“committed for the benefit of, at the direction of, or in association with a criminal street
gang, with the specific intent to promote, further, or assist in criminal conduct by gang
members.” (Pen. Code, § 186.22, subd. (b)(1).)3 A “criminal street gang” is “any
3
All references are to the revised statute.
10
ongoing organization, association, or group of three or more persons, whether formal or
informal, having as one of its primary activities the commission of one or more
[enumerated criminal acts], having a common name or common identifying sign or
symbol, and whose members individually or collectively engage in, or have engaged in, a
pattern of criminal gang activity.” (Id., subd. (f).)
Assembly Bill 333 narrowed the definition of “criminal street gang” to “an
ongoing, organized association or group of three or more persons, whether formal or
informal, having as one of its primary activities the commission of one or more
[enumerated criminal acts], having a common name or common identifying sign or
symbol, and whose members collectively engage in, or have engaged in, a pattern of
criminal gang activity.” (Pen. Code, § 186.22, subd. (f).)
The revised statute also requires additional proof regarding the predicate offenses
that make up a “pattern of gang activity” as follows: (1) the offenses must have
“commonly benefited a criminal street gang” where the “common benefit . . . is more
than reputational”; (2) the last predicate offense must have occurred within three years of
the date of the currently charged offense; and (3) the predicate offenses must be
committed on separate occasions or by two or more gang members, as opposed to
persons. (Pen. Code, § 186.22, subd. (e)(1).) Courts had construed the prior version of
the statute to allow the currently charged offense to be used as a predicate offense, but the
revised statute provides that the currently charged offense cannot be used as a predicate
offense. (Pen. Code, § 186.22, subd. (e)(2).)
With respect to the “common benefit,” the statute provides that “to benefit,
promote, further, or assist means to provide a common benefit to members of a gang
where the common benefit is more than reputational. Examples of a common benefit that
are more than reputational may include, but are not limited to, financial gain or
motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or
11
silencing of a potential current or previous witness or informant.” (Pen. Code, § 186.22,
subd. (g).)
Assembly Bill 333 also added Penal Code section 1109, requiring trial courts to
conduct a bifurcated trial on gang enhancements if the defense requests one. (Pen. Code,
§ 1109, subd. (a); Stats. 2021, ch. 699, § 5, eff. Jan. 1, 2022.) The defendant’s guilt on
the underlying offense must first be determined, and a trial on the gang enhancement is
held only if the defendant is first found guilty of the underlying offense. (Pen. Code,
§ 1109, subds. (a)(1) & (a)(2).)
2. Factual Background
Investigator Michael Whittington testified as the prosecution’s gang expert. He
opined that Crip gangs are criminal street gangs whose primary activities include
robbery, felony assault, and illegal weapon possession. Their territory included the area
near the robbery. “Varrio Meadowfair” is the name of a rival Norteño gang that is active
near the area of the robbery. Whittington opined that appellants and Lozano were Crip
gang members. Whittington testified that a robbery like the one committed here would
be perpetrated at the direction of, and for the benefit of, the Crip gang.
To prove the predicate offenses, the prosecution introduced evidence of four prior
offenses in addition to the current robbery: (1) attempted robbery by Latwan Langston in
2010; (2) assault with a deadly weapon by Darius McNary in 2013; (3) illegal gun
possession by Troy Giamona in 2013; and (4) unlawful possession of a loaded unlicensed
gun by Stevenson in 2014. The prosecution proved the predicate offenses with certified
records of conviction, and Whittington testified that the offenders were Crip gang
members. Except for Stevenson’s prior gun possession and the current offense, the
prosecution presented little or no evidence concerning the facts and circumstances of the
predicate offenses.
12
3. Assembly Bill No. 333 Applies Retroactively
Appellants contend they are entitled to the retroactive application of the revised
Penal Code section 186.22 as effected by Assembly Bill 333. They argue that the gang
enhancements must be stricken because the prosecution failed to present sufficient
evidence to prove all the elements of the enhancements under the revised statute. The
Attorney General concedes that appellants are entitled to retroactive application of
Assembly Bill 333 insofar as it changed the evidentiary requirements for gang
enhancements. The Attorney General disputes that insufficiency of the evidence is the
proper legal framework for analyzing the issue, but he concedes the enhancements must
be vacated. He argues we should remand the matter to give the prosecution the
opportunity to prove the enhancements under the revised statute while leaving the
robbery convictions intact.
We accept the Attorney General’s concession regarding the retroactive application
of the revised Penal Code section 186.22. The Court of Appeal for the Second District
recently reached this conclusion in People v. Lopez (2021) 73 Cal.App.5th 327 (Lopez).
“As Assembly Bill 333 increases the threshold for conviction of the section 186.22
offense and the imposition of the enhancement, we agree with Lopez and the People that
Lopez is entitled to the benefit of this change in the law. ‘[A] defendant is entitled to the
benefit of an amendment to an enhancement statute, adding a new element to the
enhancement, where the statutory change becomes effective while the case was on
appeal, and the Legislature did not preclude its effect to pending case.’ [Citation.]” (Id.
at p. 344.) We agree with the analysis in Lopez and we apply its holding here.
We also accept the Attorney General’s concession that this requires us to vacate
the gang enhancements. First, the prosecution used the current offense to prove one of
the predicate offenses; the revised statute prohibits this. (Pen. Code, § 186.22, subd.
(e)(2).) Second, the prosecution did not present evidence that any of the offenses
13
benefitted the gang in a way that was “more than reputational.” (Pen. Code, § 186.22,
subd. (g).)
The Attorney General argues that insufficiency of the evidence is not the proper
analytic framework, but he concedes the proof is not in the record. Insofar as a finding of
insufficient evidence would implicate appellants’ double jeopardy rights, the Attorney
General’s point is well-taken. “Where, as here, evidence is not introduced at trial
because the law at that time would have rendered it irrelevant, the remand to prove that
element is proper and the reviewing court does not treat the issue as one of sufficiency of
the evidence. [Citation.]” (People v. Figueroa (1993) 20 Cal.App.4th 65, 72
(Figueroa).) In any event, the proper remedy is to vacate the gang enhancements and
remand the matter to allow the prosecution the opportunity for a retrial. (Lopez, supra,
73 Cal.App.5th at p. 346; Figueroa, at p. 71.)4
4. Penal Code Section 1109 Applies Retroactively
Appellants further argue they are entitled to the retroactive application of the
newly enacted Penal Code section 1109. They argue this requires us to vacate their
convictions on counts 1 and 2 and remand for a new trial on those counts, with a
bifurcated trial on the gang enhancements if they request it. The Attorney General
contends Penal Code section 1109 does not apply retroactively, such that appellants’
convictions on the robbery counts must remain intact.
Appellants contend Penal Code section 1109 applies retroactively under In re
Estrada (1965) 63 Cal.2d 740 (Estrada). Under Estrada, the question is whether the
Legislature intended for the amendment to apply retroactively even without an express
statement to that effect. “When the Legislature amends a statute so as to lessen the
punishment[,] it has obviously expressly determined that its former penalty was too
severe and that a lighter punishment is proper as punishment for the commission of the
4
Accordingly, we do not address appellants’ claim that the trial court failed to
properly instruct the jury on the elements as defined by the revised statute.
14
prohibited act.” (Id. at p. 745.) Estrada “stand[s] for the proposition that (i) in the
absence of a contrary indication of legislative intent, (ii) legislation that ameliorates
punishment (iii) applies to all cases that are not yet final as of the legislation’s effective
date.” (People v. Esquivel (2021) 11 Cal.5th 671, 675.)
In its earliest applications, the Estrada rule applied to new laws that expressly
reduced the punishment for an offense or eliminated criminal penalties for certain
conduct. Estrada, for example, gave retroactive application to a statutory amendment
that reduced the term of imprisonment and time to parole eligibility for a nonviolent
attempt to escape from prison. (Estrada, supra, 63 Cal.2d at p. 743.) The California
Supreme Court then applied the Estrada rule to a statutory amendment that merely gave
trial courts the discretion to reduce an offense to a misdemeanor. (People v. Francis
(1969) 71 Cal.2d 66.) The Supreme Court then applied Estrada to a new law that created
an affirmative defense to the transportation of marijuana. (People v. Wright (2006) 40
Cal.4th 81.) These later cases showed that the Estrada rule may apply to a change in the
law even where the defendants in question are not expressly given a lesser punishment as
a result of retroactive application.
More recently, the California Supreme Court has clarified the scope of the Estrada
rule, expressly holding that a new statute may apply retroactively even if it concerns
purely procedural changes that do not directly reduce the punishment for a crime.
(People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303 [Proposition 57 applied
retroactively even though it did not reduce the punishment for a crime].) In Lara, the
Supreme Court considered the retroactivity of Proposition 57—a purely procedural
change in the law that prohibited prosecutors from charging juveniles with crimes
directly in adult court. The Supreme Court recognized that the rationale of Estrada
applied because the mere possibility of being treated as a juvenile in juvenile court could
result in more lenient treatment. The Supreme Court thereby held Proposition 57 was
15
retroactive because it “reduce[d] the possible punishment for a class of persons, namely
juveniles.” (Ibid.)
The Supreme Court then applied this holding in People v. Frahs (2020) 9 Cal.5th
618 (Frahs). In Frahs, the Supreme Court considered the retroactivity of a new law that
created a pretrial diversion program for certain defendants with mental health disorders.
The Supreme Court concluded the change was retroactive because the new law “by
design and function provides a possible ameliorating benefit for a class of persons —
namely, certain defendants with mental disorders . . . .” (Id. at p. 624.) Frahs thereby
reiterated the principle that a statute that provides a “possible benefit to a class of
criminal defendants” should be applied retroactively in the absence of an express savings
clause limiting the statute to prospective-only application. (Id. at p. 631.)
Here, as in Frahs, the Legislature made no statements in Assembly Bill 333
indicating prospective-only application. The question then is whether the change in law
reduces the possible punishment for a class of persons or provides a possible ameliorating
benefit to a class of criminal defendants. As explained below, Assembly Bill 333 meets
these criteria for retroactive application.
First, the plain language of Penal Code section 1109 makes it applicable to a
distinct class of defendants—those charged with gang enhancements under subdivision
(b) or (d) of Penal Code section 186.22. (Pen. Code, § 1109, subd. (a).) But the
legislative findings in Assembly Bill 333 also show the Legislature intended to reduce
punishment specifically for people of color—who overwhelmingly comprise the class of
defendants charged with gang enhancements. The legislative findings show this was a
central motivation for the bill: “The gang enhancement statute is applied inconsistently
against people of color, creating a racial disparity.” (Assembly Bill 333, § 2, subd.
(d)(1).) “In Los Angeles alone, the state’s largest jurisdiction, over 98 percent of people
sentenced to prison for a gang enhancement are people of color.” (Id., § 2, subd. (d)(4).)
16
The Legislature further found that people of color suffer a disproportionate degree
of punishment as a result of this disparity: “Current gang enhancement statutes
criminalize entire neighborhoods historically impacted by poverty, racial inequality, and
mass incarceration as they punish people based on their cultural identity, who they know,
and where they live.” (Id., § 2, subd. (a).) “Being designated as a gang member or
associate negatively impacts a person’s criminal legal system contact from start to finish
by hindering pretrial release, influencing sentencing, incarceration, parole, and reentry,
and can lead to deportation.” (Id., § 2, subd. (b).) “The current statute disproportionately
impacts communities of color, making the statute one of the largest disparate racial
impact statutes that imposes criminal punishments.” (Id., § 2, subd. (d)(2).) These
statements make clear that one of the Legislature’s foremost reasons for enacting
Assembly Bill 333 was to ameliorate the disparate levels of punishment suffered by
people of color.
The dissent and the Attorney General point out that under section 3 of the Penal
Code, “No part of [the Penal Code] is retroactive, unless expressly so declared.” But the
Attorney General concedes that Assembly Bill 333 operates retroactively insofar as it
amended Penal Code section 186.22. The Attorney General argues nonetheless that the
section of the bill adding Penal Code section 1109 should be considered in isolation from
the rest of the bill. The dissent and the Attorney General characterize the new bifurcation
rule as a “prophylactic rule of criminal procedure” designed to enhance the fairness of
proceedings, not to ameliorate punishment as defined under Estrada. But the legislative
findings expressly disprove this assertion, as they repeatedly cite the disparate levels of
punishment suffered by people of color under the old law.
The findings further establish that the bifurcation of gang enhancements at trial is
intended to ameliorate the prejudicial impact of trying enhancements together with the
offense. “Bifurcation of trials where gang evidence is alleged can help reduce its harmful
and prejudicial impact.” (Assembly Bill 333, § 2, subd. (f).) “Gang enhancement
17
evidence can be unreliable and prejudicial to a jury because it is lumped into evidence of
the underlying charges which further perpetuates unfair prejudice in juries and
convictions of innocent people.” (Id., § 2, subd. (d)(1).) “California courts have long
recognized how prejudicial gang evidence is. [Citation.] Studies suggest that allowing a
jury to hear the kind of evidence that supports a gang enhancement before it has decided
whether the defendant is guilty or not may lead to wrongful convictions. [Citations.]”
(Id., § 2, subd. (e).) In other words, one of the ameliorative effects of bifurcation is that
some defendants will actually be acquitted of the underlying offense absent the
prejudicial impact of gang evidence. This increased possibility of acquittal—which
necessarily reduces possible punishment—is sufficient to trigger retroactivity under the
Estrada rule.
The increased likelihood of acquittal at trial is not the only ameliorative effect of
bifurcation. The Legislature further found, “The mere specter of gang enhancements
pressures defendants to accept unfavorable plea deals rather than risk a trial filled with
prejudicial evidence and a substantially longer sentence.” (Id., § 2, subd. (e).) By
reducing the pressure to accept longer sentences, the new bifurcation statute will
necessarily reduce the degree of punishment for many defendants charged with gang
enhancements, even if they never have to invoke its prophylactic protections at trial.
Thus, even considered in isolation from the remainder of the amendments in Assembly
Bill 333, the addition of Penal Code section 1109 requires retroactive application under
Estrada.
Furthermore, we reject the argument that different parts of Assembly Bill 333
should be treated differently under Estrada. The Legislature could have added an express
savings clause carving out a section of the bill as prospective-only, but there is no such
clause, and no indication of any such intent. To the contrary, the legislative findings
setting forth the ameliorative purposes of the bill apply to the entire bill, and they
specifically address the reasons for the new bifurcation rules.
18
Moreover, as the Supreme Court observed in Frahs, the Legislature was aware of
Lara’s holding that a statute possibly reducing punishment for a class of persons would
apply retroactively. “[T]he Legislature ‘is deemed to be aware of existing laws and
judicial constructions in effect at the time legislation is enacted.’ [Citation.]” (Frahs,
supra, 9 Cal.5th at p. 634.) “[T]o rebut Estrada’s inference of retroactivity concerning
ameliorative statutes, the Legislature must ‘demonstrate its intention with sufficient
clarity that a reviewing court can discern and effectuate it.’ [Citation.]” (Ibid.) Thus, if
the Legislature “did not want the statute to apply retroactively to nonfinal judgments, it
needed to clearly and directly indicate such intent in order to rebut Estrada’s inference of
retroactivity.” (Id. at p. 635.) This admonition carries even greater weight here. It
would be especially incongruous for the Legislature to make one isolated section of a bill
prospective-only without stating so expressly, expecting instead that a court would
somehow discern this anomaly.
For the reasons above, we conclude Assembly Bill 333 operates retroactively,
including the section that added Penal Code section 1109. Because appellants’
convictions are not yet final, they are entitled to the benefit of the changes in the law.
The case law does not clearly establish whether or how harmless error analysis
applies in this instance. It is difficult to determine how the outcome of the trial would
have been affected if it had been bifurcated to try the gang enhancements separately; the
nature of the proceeding would have been entirely different. This circumstance likely
constitutes “structural error” because it “def[ies] analysis by harmless-error standards.”
(Arizona v. Fulminante (1991) 499 U.S. 279, 280.) “[T]he defining feature of a structural
error is that it ‘affect[s] the framework within which the trial proceeds,’ rather than being
“simply an error in the trial process itself.” (Weaver v. Massachusetts (2017) 137 S.Ct.
1899, 1907.) Bifurcation necessarily affects the “ ‘framework within which the trial
proceeds.’ ” (Ibid.) And as explained above, the legislative findings in Assembly Bill
333 underscore the inherently prejudicial nature of gang evidence.
19
Even if harmless error analysis is amenable, it is not clear whether we should
apply the federal or state law standard. (Compare People v. Watson (1956) 46 Cal.2d
818, 836 [reasonable probability of a more favorable result absent the error] with
Chapman v. California (1967) 386 U.S. 18, 24 [error must be harmless beyond a
reasonable doubt].) The California Supreme Court considered but did not decide this
issue in People v. Wright (2006) 40 Cal.4th 81 (Wright). In Wright, the Supreme Court
held that a new law providing an affirmative defense for transportation of medical
marijuana applied retroactively, and that the defendant was entitled to a jury instruction
on it. (Id. at p. 98.) The Supreme Court applied a harmless error analysis but found it
unnecessary to decide which standard applied because the error was harmless under
either the federal or state law standard. (Ibid.)
A single instructional error of the kind considered in Wright is far more
susceptible to harmless error analysis than the failure to bifurcate a trial on gang
enhancements. Even assuming we must assess prejudice, however, we conclude
appellants suffered prejudice under either the federal or state law standard. First, the
evidence identifying them as the robbers was not overwhelming. As set forth in detail
above, neither victim identified any of the appellants at trial, and the evidence of their in-
field identifications was somewhat muddled. The victims described four to six men
involved. One of the charged men (Lozano) pleaded guilty before trial without
identifying anyone else, and another one of the defendants (Byrd) was acquitted. While
the 7-Eleven videos put appellants near the scene of the robbery, the evidence did not
show them committing the crime. Similarly, the fact that stolen evidence was found in
Byrd’s apartment did not establish which of the persons inside the apartment actually
stole it. And Richardson presented plausible evidence that he had been mistaken for
Keison Hames, another one of the persons found inside the apartment. Given this
evidence, it is likely the jury relied on evidence of appellants’ gang membership in
considering the identity issues. Finally, there was no clear evidence that Stevenson
20
actually did anything during the robbery apart from being present. As we state above, the
jury likely relied on his gang affiliation to infer he aided and abetted the robbery.
For all these reasons, we will reverse the robbery convictions, vacate the gang
enhancements, and remand to the trial court for possible retrial under the new laws.
III. DISPOSITION
The judgments of conviction are reversed, and the true findings on all gang-related
allegations under Penal Code section 186.22 are vacated. The matter is remanded to the
trial court for further proceedings.
21
_______________________________
Greenwood, P. J.
I CONCUR:
________________________________
Grover, J.
People v. Burgos et al.
H045212
Elia, J., Dissenting
I respectfully disagree with the majority opinion’s conclusion that Penal Code
1
section 1109’s bifurcation provisions are retroactively applicable under In re Estrada
(1965) 63 Cal.2d 740 to defendants who were tried prior to section 1109’s enactment.
In my view, section 1109 is not an ameliorative statute within the meaning of the
Estrada rule, and therefore it is subject to the general rule that Penal Code provisions
are presumed to be prospective only. The legislative history of section 1109 is
consistent with this presumption, so I would conclude that section 1109 is not
retroactive.
Assembly Bill No. 333 (2021-2022 Reg. Sess.) amended section 186.22 and
enacted section 1109. Section 1109, which took effect on January 1, 2022, provides:
“(a) If requested by the defense, a case in which a gang enhancement is charged under
subdivision (b) or (d) of Section 186.22 shall be tried in separate phases as follows:
[¶] (1) The question of the defendant’s guilt of the underlying offense shall be first
determined. [¶] (2) If the defendant is found guilty of the underlying offense and
there is an allegation of an enhancement under subdivision (b) or (d) of Section
186.22, there shall be further proceedings to the trier of fact on the question of the
truth of the enhancement. Allegations that the underlying offense was committed for
the benefit of, at the direction of, or in association with, a criminal street gang and that
the underlying offense was committed with the specific intent to promote, further, or
assist in criminal conduct by gang members shall be proved by direct or circumstantial
evidence. [¶] (b) If a defendant is charged with a violation of subdivision (a) of
Section 186.22, this count shall be tried separately from all other counts that do not
otherwise require gang evidence as an element of the crime. This charge may be tried
1
All statutory references are to the Penal Code.
in the same proceeding with an allegation of an enhancement under subdivision (b) or
(d) of Section 186.22.”
Assembly Bill No. 333 was accompanied by a litany of legislative findings
concerning both section 186.22 and section 1109. Three of these findings are pertinent
here: (1) “According to the Committee on Revision of the Penal Code’s 2020 report:
[¶] . . . [¶] . . . Gang enhancement evidence can be unreliable and prejudicial to a jury
because it is lumped into evidence of the underlying charges which further perpetuates
unfair prejudice in juries and convictions of innocent people” (Stats. 2021, ch. 699,
§ 2, subd. (d)(6)); (2) “Studies suggest that allowing a jury to hear the kind of evidence
that supports a gang enhancement before it has decided whether the defendant is guilty
or not may lead to wrongful convictions. [Citations.] The mere specter of gang
enhancements pressures defendants to accept unfavorable plea deals rather than risk a
trial filled with prejudicial evidence and a substantially longer sentence” (Id., § 2,
subd. (e)); and (3) “Bifurcation of trials where gang evidence is alleged can help
reduce its harmful and prejudicial impact” (Id., § 2, subd. (f)). In sum, the Legislature
found that studies and reports had expressed concerns about the potential prejudice
that could arise from trying gang enhancement allegations jointly with substantive
offenses and expressed the belief that bifurcation could help reduce the risk of
prejudice.
Assembly Bill No. 333’s legislative history reflects the Legislature’s
understanding of how existing law had addressed the potential prejudice from joint
trial of gang enhancements and substantive offenses. Trial courts had been granted
“broad authority” to “grant bifurcation when requested” where gang evidence might be
prejudicial to the defendant in the trial of the substantive offenses. However, the
Legislature understood that such requests were “rarely granted” because efficiency
concerns weighed against bifurcation. (Assem. Com. on Public Safety, Rep. on
Assem. Bill No. 333 (2021-2022 Reg. Sess.) as amended March 30, 2021, pp. 3, 5, 6.)
2
The Committee on Revision of the Penal Code had observed that at least three other
states required gang enhancement allegations to be bifurcated at trial. (Id. at p. 7.)
The purpose of section 1109 was to prevent “highly prejudicial ‘gang evidence’ ” from
being presented to a jury before it decided whether the defendant was guilty of the
substantive offenses. (Assem. Com. on Public Safety, Rep. on Assem. Bill No. 333,
supra, as amended March 30, 2021, p. 9.) The Legislature acknowledged concerns
about the additional burden that section 1109 would place on judicial resources.
(Assem. Com. on Public Safety, Rep. on Assem. Bill No. 333, supra, as amended
March 30, 2021, p. 11.) It relied on a fiscal analysis of the bifurcation provisions in
section 1109 that was based on the assumption that the provisions would apply only
prospectively. (Sen. Com. on Appropriations, Analysis of Assem. Bill No. 333 (2021-
2022 Reg. Sess.) as amended July 13, 2021, p. 3.)
Assembly Bill No. 333 did not expressly address whether any of its provisions
were intended to apply retroactively or only prospectively. “Generally, statutes are
presumed to apply only prospectively. [Citation.] However, this presumption is a
canon of statutory interpretation rather than a constitutional mandate. [Citation.]
Accordingly, ‘the Legislature can ordinarily enact laws that apply retroactively, either
explicitly or by implication.’ [Citation.] Courts look to the Legislature’s intent in
order to determine if a law is meant to apply retroactively. [Citation.] [¶] In
Estrada . . . , [the California Supreme Court] held that amendatory statutes that lessen
the punishment for criminal conduct are ordinarily intended to apply retroactively.”
(People v. Frahs (2020) 9 Cal.5th 618, 627, italics added.) “ ‘This intent seems
obvious, because to hold otherwise would be to conclude that the Legislature was
motivated by a desire for vengeance, a conclusion not permitted in view of modern
theories of penology.’ ” (Id. at p. 628.)
“[The California Supreme Court has] applied Estrada’s inference of
retroactivity to statutes governing penalty enhancements, as well as statutes governing
3
substantive offenses.” (Frahs, supra, 9 Cal.5th at p. 628.) It has “also applied
the Estrada rule to statutes that merely made a reduced punishment possible” by
granting a court discretion to impose a lesser punishment. (Id. at p. 629.) And the
court has applied the Estrada rule to statutes that made a reduced punishment possible
for a “ ‘class of persons.’ ” (Frahs, at p. 629.) The Estrada rule also has been applied
to a statute expanding a defense to a crime. (People v. Wright (2006) 40 Cal.4th 81,
95.) All of these applications of the Estrada rule were facially “ameliorative” because
they either reduced the punishment or created discretion to reduce the punishment for
a criminal offense, or narrowed the scope of criminal liability.
In Frahs, the California Supreme Court applied the Estrada rule to a newly
enacted mental health diversion statute that provided eligible defendants with the
possible opportunity to avoid penal consequences entirely if they successfully
completed diversion. (Frahs, supra, 9 Cal.5th at p. 631.) It was undisputed in Frahs
that the diversion statute was “ameliorative” because it potentially eliminated
punishment for an offense. (Ibid.) Similarly, in People v. Superior Court
(Lara) (2018) 4 Cal.5th 299 (Lara), the California Supreme Court applied the Estrada
rule to an initiative measure that granted courts discretion to bar adult criminal
proceedings, and their attendant criminal punishment, for certain juveniles and to
require instead that they be subjected solely to juvenile court proceedings, which
precluded criminal punishment. As the court noted in Lara, “Proposition 57 did not
ameliorate the punishment, or possible punishment, for a particular crime; rather, it
ameliorated the possible punishment for a class of persons, namely juveniles. But the
same inference of retroactivity should apply.” (Lara, at p. 308.)
Defendants, citing Estrada, Frahs, and Lara, claim that the Estrada rule applies
here. However, none of those cases or any other has ever applied the Estrada rule to a
statute, like section 1109, that does not alter the punishment for an offense, make a
lesser punishment possible, or change the elements of an offense or a defense. Section
4
1109, unlike all of the amendatory statutes to which the Estrada rule has been applied,
is a prophylactic rule of criminal procedure expressly intended to employ new
procedures aimed at enhancing the fairness of future criminal proceedings. It makes
no change to any crime or defense and makes no change to any punishment provision,
and it does not create the possibility of lesser punishment or any other “ameliorative”
benefit from which it could be inferred that failing to extend that benefit retroactively
must have been motivated by a “desire for vengeance.” (Frahs, supra, 9 Cal.5th at
p. 628.)
The majority opinion mischaracterizes the California Supreme Court’s decision
in Lara as extending the Estrada rule to “purely procedural changes that do not
directly reduce the punishment for a crime.” (Maj. opn., ante, at p. 15.) Proposition
57 did not make “purely procedural changes,” but instead “directly” provided for the
potential substitution of a juvenile disposition for any criminal punishment. This was
not a “purely procedural” change. Section 1109, on the other hand, makes a “purely
procedural” change to a trial procedure that will not have any impact “directly” or
indirectly on punishment. While section 1109 clearly applies to a class of defendants,
those facing gang enhancement allegations, and was intended to promote fairness and
reduce the potential for prejudice, the same could be said for virtually any procedural
change, and the bifurcation provisions themselves do not reduce punishment or create
the possibility of reduced punishment. Nothing about the bifurcation provisions
suggests that failing to extend them retroactively could be attributed only to a desire
for vengeance, the rationale behind the Estrada rule. The majority opinion’s mere
speculation that a defendant might be acquitted if the gang allegations are bifurcated
does not bring section 1109’s bifurcation provisions within the Estrada rule. (Maj.
opn., ante, at p. 18)
The majority opinion gives short shrift to the fact that the Estrada rule is an
exception to the general rule. “No part of [the Penal Code] is retroactive, unless
5
expressly so declared.” (§ 3.) Thus, the default presumption, unless the Estrada rule
applies, is that a new law is not retroactive. The Estrada rule applies only where the
new law is “ameliorative” of criminal liability or punishment. The general rule of
prospectivity applies here because nothing in section 1109 is ameliorative of criminal
liability or punishment. Indeed, the Legislature’s express findings and the legislative
history affirmatively demonstrate that section 1109 was intended to have a
prophylactic effect at future criminal proceedings by mandating new procedures that
were designed to reduce the risk of prejudice. The majority opinion cites no authority
for applying the Estrada rule to a new law of this type. Hence, the general rule
applies, and section 1109 is presumptively not retroactive.
The majority opinion proclaims that “the legislative findings . . . show the
Legislature intended to reduce punishment specifically for people of color.” (Maj.
opn., ante, at p. 16.) It also reasons that “[b]y reducing the pressure to accept longer
sentences, the new bifurcation statute will necessarily reduce the degree of punishment
for” defendants charged with gang enhancements. (Maj. opn., ante, at p. 18.) In
addition, the majority opinion rejects any approach that would separately analyze the
retroactivity of each amendatory statute contained in a single legislative bill. (Maj.
opn., ante, at p. 18.)
I disagree with these unsupported claims. While the amendments to section
186.22 are indisputably ameliorative, since they narrow the scope of criminal liability,
the majority opinion offers no substantive explanation for why the retroactivity of each
2
amendatory statute in a single legislative bill should not be separately analyzed.
2
Defendants also contend that the Estrada rule cannot apply to one section of a
legislative bill but not to another, but they too offer no authority for this proposition.
The Estrada rule depends on whether a particular amendatory statute is ameliorative.
Here, a single legislative bill contained both an amendatory statute that was
ameliorative and one that was not. I reject the proposition that the Estrada rule must
apply to both or neither. As always, application of the Estrada rule depends on
whether the amendment is ameliorative. Section 1109 is not.
6
Many legislative bills amend numerous (sometimes hundreds of) statutes, and whether
a specific amendatory statute is subject to the Estrada rule depends on the nature of
the amendment, not the mere fact that the amendment was enacted in the company of
other amendments in a single legislative bill. The majority opinion’s claim that
section 1109 “necessarily reduce[s] the degree of punishment” finds no support in
section 1109’s provisions, in the Legislature’s findings, or in the legislative history.
Although the Legislature expressly intended section 1109 to enhance the fairness of
future proceedings, there is a manifest distinction between the Legislature’s creation of
new criminal procedures designed to enhance fairness and its enactment of provisions
that reduce the possibility of punishment. The underlying rationale for the Estrada
rule is to avoid the inference that the Legislature was bent on vengeance. No such
inference arises from the nonretroactivity of section 1109’s provisions. Instead, the
Legislature has clearly decided that these new procedures offer a better way to avoid
the risk of undue prejudice than the previous procedures of discretionary bifurcation
coupled with restrictive jury instructions. The majority opinion’s attempt to expand
the Estrada rule beyond its rationale would permit the exception to swallow the
general rule of nonretroactivity.
Defendants assert, but do not substantively develop, a claim that it would be a
violation of equal protection to fail to apply section 1109 retroactively. “ ‘ “ ‘The
concept of the equal protection of the laws compels recognition of the proposition that
persons similarly situated with respect to the legitimate purpose of the law receive like
treatment.’ ” ’ [Citation.] . . . ‘[T]he first prerequisite to a meritorious claim under the
equal protection clause is a showing that the state has adopted a classification that
affects two or more similarly situated groups in an unequal manner.’ [Citation.] The
use of the term ‘similarly situated’ in this context refers only to the fact that ‘ “[t]he
Constitution does not require things which are different in fact or opinion to be treated
in law as though they were the same.” . . . ’ [Citation.] There is always some
7
difference between the two groups which a law treats in an unequal manner since an
equal protection claim necessarily asserts that the law in some way distinguishes
between the two groups. Thus, an equal protection claim cannot be resolved by simply
observing that the members of group A have distinguishing characteristic X while the
members of group B lack this characteristic. The ‘similarly situated’ prerequisite
simply means that an equal protection claim cannot succeed, and does not require
further analysis, unless there is some showing that the two groups are sufficiently
similar with respect to the purpose of the law in question that some level of scrutiny is
required in order to determine whether the distinction is justified.” (People v.
Nguyen (1997) 54 Cal.App.4th 705, 714.)
Defendants make no showing that they are similarly situated to those who have
not yet been tried with respect to the purpose of section 1109. Since section 1109
creates a new prophylactic procedural rule intended to avoid risks associated with
unbifurcated trials, those who have already been tried are not similarly situated to
those who have not been tried with respect to the reduction of those risks. These risks
were managed by a different mechanism, jury instructions, at defendants’ trial, and
defendants do not argue that these instructions were inadequate. Because defendants
are not similarly situated to future defendants who will be tried under section 1109’s
procedures, no further equal protection analysis is warranted. In any case, the
Legislature had an obvious rational basis for distinguishing between those who have
already been tried and those who have not. The preservation of judicial resources
alone justifies the differential treatment. Requiring retrial of the substantive offenses
in every case in which there were gang allegations would be both disruptive and
wasteful of judicial resources precisely at a time when those resources are in short
supply. I would find no equal protection violation.
Because I disagree with the majority opinion’s determination that section 1109
is retroactive, I respectfully dissent from the majority opinion’s conclusion that
8
defendants’ convictions on the substantive counts cannot be upheld and that the case
must be remanded for possible retrial of the substantive counts. I would remand for a
possible retrial of the gang enhancements only.
9
_______________________________
ELIA, J.
People v. Burgos et al.
H045212
Trial Court: Santa Clara County Superior Court
Superior Court Nos.: C1518795 &
C1756994
Trial Judges: The Honorable Cynthia A. Sevely,
The Honorable Helen E. Williams
Attorneys for Defendant and Appellant Laurie Wilmore
FRANCISCO BURGOS: under appointment by the Court
of Appeal for Appellant
Conrad Petermann
under appointment by the Court
of Appeal for Appellant
Attorneys for Defendant and Appellant Jean M. Marinovich
DAMON STEVENSON, JR.: under appointment by the Court
of Appeal for Appellant
Attorneys for Defendant and Appellant Solomon R. Wollack
JAMES RICHARDSON: under appointment by the Court
of Appeal for Appellant
Attorneys for Plaintiff and Respondent Rob Bonta,
THE PEOPLE: Attorney General of California
Lance E. Winters,
Chief Assistant Attorney General
Jeffrey M. Laurence,
Senior Assistant Attorney General
Alice B. Lustre,
Supervising Deputy Attorney
General
John Michael Chamberlain
Deputy Attorney General
People v. Burgos et al.
H045212