Judgment of death reversed, where the gang findings must be reversed because of retroactive changes in the law made by AB 333. The AG conceded that this case, which was tried in 2009, did not meet the increased showing required to prove a “pattern of criminal gang activity,” specifically two predicate offenses involving a common benefit to the gang that was more than reputational. (PC 186.22, subd. (e)(1).) The Court agreed. Because the gang-murder special circumstance was the only special circumstance allegation, the judgment of death must be reversed.

Evidence Code section 352.2 does not apply retroactively. This statute, which limits the admissibility of creative expressions, articulates a neutral rule of evidence, and does not implicate Estrada’s presumption of retroactivity. There is not a close enough relationship between the substantive provisions of the statute and the possibility of lesser punishment, more lenient treatment, or reduction of criminal liability. (Dis. opn., J. Liu.) There was no abuse of discretion in admitting defendant’s lyrics/poems under EC 352, where the lyrics were probative of defendant’s active participation in the gang, motive, and intent.

Substantial evidence supported the trial court’s denial of the Batson/Wheeler motion against the prosecution’s excusal of the only African American potential juror, based on race-neutral reasons, specifically the potential juror’s profession and familiarity with gangs. (Dis. opn., J. Liu; dis. opn., J. Evans.)

Accomplice testimony was sufficiently corroborated by other independent evidence introduced at trial. (PC 1111.)

No error by the trial court’s failure to instruct the jury sua sponte regarding third party culpability.

No abuse of discretion in the trial court’s refusal to grant a continuance so the defense might further investigate a DNA testing error.

No abuse of discretion in the trial court’s refusal to exclude a witness from trial proceedings while another witness was testifying, where both were family of the victim. (EC 777.)

The defendant forfeited his claim of prosecutorial misconduct at closing argument, and there was no IAC.

The full opinion is available on the court’s website here: https://www4.courts.ca.gov/opinions/documents/S175660.PDF