Gang Murder Special Circumstance

Name: People v. Cardenas
Case #: S151493
Court: CA Supreme Court
Opinion Date: 09/04/2025

Insufficient evidence to support gang special circumstance after the retroactive application of AB 333. Gang special circumstance (PC 190.2(a)(22)) and corresponding death judgment reversed where insufficient admissible evidence established pattern of gang activity (PC 186.22(e)(1)) under AB 333 amendments and prohibition on case-specific hearsay introduced through expert (People v. Sanchez (2016) 63 Cal.4th 665). Underlying convictions also conditionally reversed to permit defendant to further develop claim of McCoy Sixth Amendment autonomy error on remand.

Other holdings: motion to recuse prosecutor’s office (PC 1424) properly denied; no abuse of discretion in refusing to bifurcate gang allegations where…

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Name: People v. Aguirre
Case #: S175660
Court: CA Supreme Court
Opinion Date: 08/28/2025

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…

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Name: In re A.M.
Case #: B329999
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 05/31/2024

The Court of Appeal holds that when a minor was sentenced as an adult prior to the passage of Prop 57 and the sentence is later vacated on habeas corpus, the judgment becomes nonfinal and the defendant is entitled to retroactive application of ameliorative laws, including SB 1391 and AB 333. The minor’s case only becomes final when the criminal proceeding as a whole has ended and the courts can no longer provide a remedy on direct review. Where AB 333's amendments to PC 186.22's gang-murder special circumstance provisions apply retroactively, Chapman harmless error review is appropriate.

The full opinion is available on…

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Name: People v. Rojas (2023) 15 Cal.5th 561
Case #: S275835
Court: CA Supreme Court
Opinion Date: 12/12/2023

Assembly Bill No. 333, which narrowed the definition of “criminal street gang,” did not unconstitutionally amend Proposition 21, and the new definition of “criminal street gang” properly applies to the gang-murder special circumstance added by that proposition. Rojas was convicted of first degree murder, and the jury found true gang and firearm enhancements and the gang-murder special circumstance (Pen. Code, § 190.2(a)(22)). On appeal, Rojas argued that all gang allegations should be reversed because AB 333 narrowed the definition of “criminal street gang” on which these charges relied. (See Pen. Code, § 186.22(f).) The Court of Appeal held the new…

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Name: People v. Campbell (2023) 98 Cal.App.5th 350
Case #: A162472, A162488, A162623, A163277
Court: CA Court of Appeal
District 1 DCA
Division: 2
Opinion Date: 12/28/2023

Opinion on rehearing. In a previous opinion in Campbell (see below for summary), the Court of Appeal held that the trial court erred by denying defendants’ Penal Code section 1172.6 petitions at the prima facie stage based on the jury’s intent to kill findings in the special circumstances verdicts. The Court of Appeal relied on the reasoning in In re Lopez (2023) 14 Cal.5th 562, which concluded, in the context of a harmless error analysis, that a jury’s gang-killing special-circumstance verdict finding of “intent to kill” did not “necessarily establish all of the elements of directly aiding and abetting first…

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Name: People v. Oliva (2023) 89 Cal.App.5th 76
Case #: E073979
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 03/09/2023

Retroactive application of AB 333 to the gang murder special circumstance does not violate Proposition 21. Oliva was convicted of first degree murder with a gang special circumstance and gun use enhancement found true. On appeal he urged retroactive application of changes in the law regarding proof of a gang crime (AB 333). Held: Reversed. Under section 190.2(a)(22), the punishment for first degree murder is death or LWOP if the defendant intentionally killed the victim while he was an active participant in a criminal street gang, and the murder was carried out to further the activities of the gang. AB…

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