Prosecutor’s repeated references to defendants as “cockroaches” who pose a danger to the community mandates reversal of gang enhancements. A jury convicted the defendants of first degree murder and found true the special circumstance allegations the murder was committed during the course of a kidnapping and a robbery. A gun use enhancement was found true as to defendant Arredondo, as well as gang enhancements as to both defendants. On appeal, defendants argued the prosecutor’s theme the defendants and other gang members are “cockroaches” who present a danger to the public, was prejudicial misconduct. Held: Reversed in part. “A prosecutor’s use of colorful and powerful epithets is not on its own misconduct.” The problem here is that the prosecutor made these references the major theme of his argument. This was improper and denied defendants due process because it implied that the defendants were not entitled to individual consideration or justice, but were part of “a disgusting group which pose[d] an ongoing threat to the entire community.” “There is no place in our system of justice for the notion of guilt by association or guilt for the acts of others.” However, the statements were harmless as to all but the gang enhancements, as the evidence supporting the murder conviction and special circumstances was undisputed. The gang enhancements are problematic because one defendant stated he was not a gang member and other defendants were from several different gangs. Further, the motive for the offenses appeared to be of a personal nature. Thus, the prosecutor’s “collective guilt” argument may have affected the jury’s gang findings, requiring reversal of the gang enhancements.

The appellate record does not support a finding that defendant’s attorney was ineffective for admitting his client was guilty of felony murder. In his closing argument, Arredondo’s attorney conceded his client was guilty of felony murder, but argued he was not guilty of the robbery special circumstance. On appeal, Arredondo argued this concession constituted ineffective assistance of counsel. Although “counsel’s approach was certainly unusual and arguably damaged Arredondo’s case” given the kidnapping special circumstance, it may have been an effort to establish credibility so he could assert the codefendant was the actual shooter. In any event, the appellate record does not provide counsel with an opportunity to defend his tactical choice. This claim is more properly pursued in collateral proceedings.

The gun use finding was reversed and the case remanded to allow the trial court to decide whether to strike the enhancement. The jury found Arredondo personally used a gun in the commission of the offense (Pen. Code, § 12022.53, subd. (d) & (e)). At the time of his sentencing, the trial court lacked discretion to strike a firearm enhancement. However, Senate Bill No. 620, effective January 1, 2018, gave trial courts the discretion to strike firearm enhancements. Arredondo is entitled to the benefit of this new law. The matter was remanded to allow the trial court to determine whether to strike the gun use findings.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/D072632.PDF