AB 333 / Evid. Code § 1109 Bifurcation Not Retroactive

The following case summary is offered for our readers and potential clients, although we understand that the majority of defendants facing gang-related charges are represented by the public defender or, more commonly, the alternative public defender.

Nonetheless, we present this summary because it also demonstrates the California Supreme Court most recent interpretation of In re Estrada (1965) 63 Cal. 2d 740, a case that many of our potential clients interested in resentencing are familiar with, but may not fully understand.

In 2021, the Legislature passed Assembly Bill (AB)) No. 333, known as the STEP Forward Act of 2021.  This new law amended Penal Code § 186.22 by narrowing the definition of a “street gang,” “common benefit” and “pattern of criminal activity,” thereby imposing stricter requirements relating to proof of gang participation and making imposition of a sentence enhancement for gang crimes more difficult.  Criminal defense attorneys were happy with this amendment.

The new law also added Penal Code § 1109, providing that, if requested by defendant, a judge must try a gang enhancement charge separately from the underlying offense to avoid the undue prejudice such gang evidence may create for the jury.  This statute likewise provides that gang-participation offenses must be tried separately from all other counts that do not require gang evidence as an element of the crime.

Around midnight on August 29, 2015 in San Jose, California, Francisco Burgos and four others approached two men near a convenience store.  A member of Mr. Burgos’ group asked the other two men where they were from, whether they “banged,” and if they were from “Meadowfair,” a criminal street gang.  The two men responded that they were from “right here.”  A man in Mr. Burgos’ group then said, “Well, we’re Crips” and proceeded to rob the two men at gunpoint and threatened to shoot them unless they left immediately, which they did.

Mr. Burgos and his two friends were later arrested and each charged in Santa Clara Superior Court with two counts of second degree robbery (Penal Code §§ 211, 212.5(c)).  Each count included gang and firearm enhancement allegations (Penal Code §§ 186.22(b)(1)(C), 12022.53(b) and (e)(1)).

Three of the defendants, including Mr. Burgos, asked the judge to bifurcate trial on the gang enhancements.  The Santa Clara County Superior Court judge denied this motion.  At trial, the prosecution introduced evidence that the robberies were committed in association with a street gang.

The jury found defendants guilty of two counts of second degree robbery and also found true the gang allegations.  The judge found true prior conviction allegations true as to Mr. Burgos and one other defendant.  The judge then sentenced each defendant to 21 years in state prison.

While Mr. Burgos’ appeal was pending, the Legislature passed AB 333.  The People conceded that AB 333 applied retroactively to vacate the true findings on all defendants’ gang enhancements, but argued that the bifurcation provisions of the new Penal Code § 1109 only applied prospectively.  

The California Court of Appeal for the Sixth Circuit rejected the People’s argument and held that § 1109 applied retroactively under the reasoning of Estrada, supra, 63 Cal. 2d 740, because it reduced punishment.  The convictions were then reversed.  We summarized this ruling in Article 1707, linked below.

The People then appealed this finding to the California Supreme Court, which reversed in favor of the People. 

This ruling is worth a closer look because, we fear, the Supreme Court distinguishes In re Estrada for substantive and procedural provisions.  The Supreme Court held that the bifurcation provisions were on their face only procedural in nature, so they were not retroactive.  The fact that the procedural provisions had the almost certain effect of reducing liability and therefore reducing punishment (and application of In re Estrada for retroactive effect) could not be “read into” the new law.  The intent was to reduce the prejudicial impact of gang evidence only.  In other words, the law was not meant to reduce the criminality of the defendant’s conduct, nor punishment.  It was only meant to reduce undue prejudice.

We find this logic exceedingly “surgical” and myopic.  We cannot agree that the Legislature only wanted a new procedure.  It must have fully understood that such new procedures would certainly reduce punishment, but this is not what the California Supreme Court wants to pretend is not so.