The opinion
IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
JASON ALEJANDRO AGUIRRE,
Defendant and Appellant.
S175660
Orange County Superior Court
07ZF0003
August 28, 2025
Chief Justice Guerrero authored the opinion of the Court, in
which Justices Corrigan, Kruger, Groban, and Jenkins
concurred.
Justice Liu filed a dissenting opinion, in which Justice Evans
concurred.
Justice Evans filed a dissenting opinion, in which Justice Liu
concurred.
PEOPLE v. AGUIRRE
S175660
Opinion of the Court by Guerrero, C. J.
A jury found defendant and appellant Jason Alejandro
Aguirre guilty of murder (Pen. Code, § 187, subd. (a), count 1),1
two counts of attempted murder (§§ 664, subd. (a), 187,
subd. (a), counts 2 and 3), and active participation in a criminal
street gang (§ 186.22, subd. (a), count 4). The jury also found
that defendant: (1) personally discharged a firearm, causing
great bodily injury or death, in connection with the murder and
one (count 2) of the attempted murder charges (§ 12022.53,
subd. (d)); (2) personally discharged a firearm in connection
with both of the attempted murder charges (§ 12022.53,
subd. (c));2 and (3) committed the charged murder and both
attempted murders for the benefit of a criminal street gang,
Dragon Family and Dragon Family Junior (§ 186.22,
subd. (b)(1)). The jury also found true a special circumstance
allegation that the murder was in furtherance of the activities
of a criminal street gang. (§ 190.2, subd. (a)(22).) The jury found
not true a sentence enhancement allegation attached to the
second attempted murder count in which the People alleged that
defendant had personally discharged a firearm, causing great
1
All subsequent undesignated code references refer to the
Penal Code.
2
As to count 2, this finding was later stricken by the trial
court on the ground that section 12022.53, subdivision (c) is a
lesser included enhancement of section 12022.53,
subdivision (d).
1
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
bodily injury. (§ 12022.53, subd. (d).) In a bifurcated bench
trial, the trial court determined that defendant had been
convicted of a felony violation of former section 12025,
subdivisions (a)(1) and (b)(3), and on that basis found defendant
guilty of possessing a firearm as a convicted felon. (Former
§ 12021, subd. (a)(1); count 5.)3 At the penalty phase of trial, the
jury returned a verdict of death. The trial court denied
defendant’s automatic motion to modify the verdict. (§ 190.4,
subd. (e).) This appeal is automatic. (§ 1239, subd. (b); Cal.
Const., art. VI, § 11, subd. (a).)
We reverse the judgment of death because of retroactive
changes in the law made by Assembly Bill No. 333 (2021–2022
Reg. Sess.) (Stats. 2021, ch. 699) (Assembly Bill 333). This
legislation increased the showing that must be made to prove a
“ ‘pattern of criminal gang activity’ ” (§ 186.22, subd. (e)(1)), an
element of the crime of active participation in a criminal street
gang as well as the gang enhancements and the gang-murder
special-circumstance allegation that were found true in this
case. The Attorney General acknowledges that this case, which
was tried in 2009, was not decided under this heightened
standard for proving a pattern of criminal gang activity, and he
concedes that this error prejudiced defendant. Our review of the
3
The reporter’s transcript of the bench trial does not reflect
that the court made any finding regarding the gang
enhancement allegation (§ 186.22, subd. (b)(1)) that was
attached to this count. Almost a year after the trial, a “nunc pro
tunc” entry was made to the minute order for the trial, providing
that the court had found this enhancement true. Any
inconsistency in this respect is of no consequence because, as
explained post, we conclude that all of the gang enhancements
that were found true must be reversed due to instructional
error.
2
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
record leads us to accept this concession as well-taken, as we
cannot conclude with the necessary confidence that any rational
fact finder, properly instructed, would have convicted defendant
of active participation in a criminal street gang or found the
gang enhancements or the gang-murder special-circumstance
allegation to be true. The conviction for active participation in
a criminal street gang and all of the gang enhancement and
gang-murder special-circumstance findings therefore must be
reversed. Because the gang-murder special circumstance was
the only special circumstance allegation in this case, the
judgment of death must also be reversed.
We otherwise affirm the judgment. In seeking reversal of
his convictions, defendant asserts error under Batson v.
Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler
(1978) 22 Cal.3d 258 (Wheeler) during jury selection. He also
argues that prejudicial error occurred at trial due to the
allegedly insufficient corroboration of accomplice testimony; the
trial court’s failure to instruct the jury sua sponte regarding
third party culpability and its refusal to grant a continuance so
the defense might further investigate a DNA testing error; the
admission of statements linked to him that, defendant contends,
constituted protected creative expressions (see Evid. Code,
§§ 352, 352.2); the trial court’s refusal to exclude a witness from
trial proceedings; and alleged prosecutorial misconduct at
closing argument. We conclude that all of these arguments, to
the extent they have been preserved, are meritless.
3
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
I. FACTUAL AND PROCEDURAL BACKGROUND
One evening in August 2003, a member of the Dragon
Family/Dragon Family Junior gang4 mistook a group of five
family members arriving at an Orange County restaurant for
members of a rival gang. He called a fellow gang member and
told him to come to the restaurant to instigate a fight. Several
Dragon Family/Dragon Family Junior gang members eventually
went to the restaurant. They spotted the perceived rivals, and
after waiting for the family to finish and drive off, followed them
from the restaurant in multiple cars. The family soon noticed
they were being pursued. They turned their vehicle into a
residential cul-de-sac, parked in a driveway, and turned off the
lights. The family’s vehicle was spotted by their pursuers, one
of whom drove his car into the cul-de-sac. An occupant of that
vehicle then exited, walked up to the victims’ car, and fired
several shots into the passenger compartment. These shots
killed 13-year-old Minh Tran, leading to the murder charge in
this case, and wounded his brother and a cousin, leading to the
two attempted murder charges. The shooter and the other gang
members then left the scene. Some of the Dragon
Family/Dragon Family Junior members involved in the incident
were quickly apprehended. Defendant was arrested in Arizona
seven months later. By its verdict, the jury determined that he
was the shooter.
4
The prosecutor’s gang expert likened Dragon Family
Junior and Dragon Family’s relationship as analogous to that of
a junior varsity and a varsity sports team, with Dragon Family
Junior being a junior faction of the Dragon Family gang. The
precise relationship between the two groups has not been raised
as an issue in this appeal, and this opinion generally describes
the relevant gang as Dragon Family/Dragon Family Junior.
4
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
A. Guilt Phase
1. Prosecution case
a. Accomplice testimony
Aaron Villegas and Quang Do, two members of the Dragon
Family/Dragon Family Junior gang, testified pursuant to
agreements that limited their sentencing exposure. Their
testimony regarding the fatal shooting, incorporating contextual
details supplied by other witnesses, is summarized below.
On the evening of August 12, 2003, Donny Nguyen, a
member of the Dragon Family/Dragon Family Junior gang, was
at a restaurant called Alerto’s with some companions when he
saw the victims arrive. He thought the group belonged to a rival
gang, and that some of them were disrespecting him by staring
at him in an aggressive manner known as “mad dogging.”
Nguyen borrowed his girlfriend’s phone and called Dung (Tom)
Le, a fellow gang member. Nguyen told Le that rival gang
members were at Alerto’s, and to “come down and jump these
guys.” Nguyen then left the restaurant and went to his
girlfriend’s residence.
Le called Do, another gang member, to pass along that the
“enemy” was at Alerto’s. Do was at defendant’s residence on
Trask Avenue when he received the call. Defendant was known
to be part of the Dragon Family clique and, being in his late 20s,
he was significantly older than members of Dragon Family
Junior. He nevertheless associated with the Dragon Family
Junior group. Although defendant was Caucasian and other
members of Dragon Family/Dragon Family Junior were
Vietnamese, he was accepted as part of the gang. Defendant
was also known as “Slim”; Villegas did not know defendant’s real
name until after the shooting. Le told Do he would come over to
5
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
defendant’s residence, and a larger group of gang members
could then go to Alerto’s and “take care of business.” When Do
told defendant about the call, defendant was excited and said,
“All right.”5
In all, six members of the Dragon Family/Dragon Family
Junior gang convened at defendant’s residence and went to
Alerto’s. Villegas, Le, Danny Duong, and Harrison Pham left
defendant’s home in Pham’s white Lexus. Do followed in his
green Acura Integra, with defendant as his passenger. Before
he and Do left, defendant retrieved a gun with a holster from his
closet and put it in his waistband. Defendant had shown Do the
gun, a revolver, a few weeks before the shooting. At that time,
defendant told Do to let him know if others ran into trouble and
needed a gun.
By the time they arrived at Alerto’s, Nguyen had already
left. Villegas’s group circled around the restaurant’s drive-
through area. They saw some people inside they believed fit the
description Nguyen had provided. In fact, the group that
Nguyen had seen, and his fellow gang members spotted,
consisted of five family members — Minh Tran, his brother, his
uncle, and two cousins, none of whom were affiliated with a
gang.
Harrison Pham parked the Lexus in the parking lot on the
side of the restaurant and its occupants waited for the group
inside the restaurant to leave. Villegas testified that he and the
5
Do testified that he had smoked methamphetamine on the
evening of the shooting. He was also on probation, with
conditions including not to associate with gang members or wear
gang-related clothing, such as a hat with a “D” on it or anything
with a picture of a dragon.
6
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
others planned on getting into a fight. While they waited, Le
was on the phone with other gang members. Do and defendant
soon arrived in Do’s vehicle. Do parked across the street and
also waited. While waiting, Do received a call from Eric Pham,
another Dragon Family/Dragon Family Junior member. Do
explained what was happening and told him to come over.6
Tran and his family left the restaurant and got into a black
Acura Integra. The Lexus containing Villegas, Harrison Pham,
Le, and Duong followed them out of the parking lot. Do’s vehicle
trailed, with Le on the phone with defendant and giving him
directions.
The driver of the black Acura eventually pulled his vehicle
into a residential cul-de-sac and parked in a driveway. Members
of Villegas’s group saw where the black Acura had parked.
Harrison Pham then drove a bit farther and met up with Do and
defendant. Le exited the Lexus and entered Do’s vehicle.
According to Villegas, as Le changed vehicles, he said, “Let’s go
blast ’em.”
Do, guided by Le, then drove into the cul-de-sac where the
black Acura had parked, while the Lexus parked at the end of
the street. By then, the black Acura’s lights were off. Do parked
his car behind the black Acura. Seeing no movement or lights
inside the parked car, Do told defendant and Le that the
occupants had probably gone inside a house. Defendant said,
6
Do testified on redirect examination that “when we parked
across the street from Alerto’s, [Eric Pham] was there already.”
It is unclear from Do’s testimony whether Eric Pham was at
Alerto’s when Do and defendant arrived, and was summoned
back, or whether Do referred to seeing Eric Pham at Alerto’s
after he called him. As will be explained, Do testified that he
did not see Eric Pham at the scene of the shooting.
7
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
“[h]old on” and “[l]et me go check.” Defendant got out of Do’s
vehicle, walked up to the black Acura, and looked inside one of
its passenger-side windows. Defendant then smashed one of the
vehicle’s windows with the butt of his gun and started firing
shots inside the vehicle. Defendant fired six shots in rapid
succession.
Villegas and Do both testified that defendant was wearing
black clothing as he approached and shot into the victims’
vehicle. Both witnesses also described defendant as wearing a
black hat, with Do identifying the hat as a baseball cap. Do also
testified that defendant was wearing a black bandana over his
face. The Dragon Family/Dragon Family Junior gang associated
itself with the color black, and every member of the gang had a
black bandana with a dragon on it.
Defendant returned to Do’s car and said, “Let’s go.” The
Lexus and the green Acura drove off.
Villegas and Do gave somewhat different accounts of what
happened next. Both testified that the gang members who had
followed the victims from Alerto’s had a rendezvous nearby,
where Le returned to Harrison Pham’s vehicle. According to
Villegas, defendant remained in Do’s Acura. 7 Villegas further
testified that the Lexus and green Integra split up after this
transfer, but both eventually returned to defendant’s residence.
As the Lexus arrived, Villegas noticed that Do’s car was parked
in front of defendant’s residence, and he saw Do and defendant
7
Villegas testified on cross-examination that Eric Pham’s
car was also somewhere in the area of the rendezvous spot.
Villegas had seen Eric Pham’s car earlier at defendant’s house,
but he was not sure if he saw the car at Alerto’s, and he did not
see it in the cul-de-sac where the shooting occurred.
8
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
running inside. Harrison Pham parked his Lexus across the
street. About a minute later, police arrived and apprehended
Villegas, Duong, Le, and Harrison Pham.
According to Do’s testimony, Eric Pham arrived in his car
(a blue Acura Legend) as the others were leaving the scene of
the shooting and reported over the phone that the group was
being followed by a witness. Do pulled over and saw the witness
drive past. After driving to another location, Do, Harrison
Pham, and Eric Pham all pulled over. Le returned to Harrison
Pham’s Lexus, and defendant switched to Eric Pham’s car. The
groups agreed to split up and reconvene at defendant’s
residence.
When Do arrived at defendant’s home, defendant was not
around. Do left his car there and a few hours later met with Eric
Pham, defendant, and another member of the Dragon
Family/Dragon Family Junior gang known as “Trigger” at a
different location. This group discussed what had happened.
Defendant told the others that he had walked up to the black
Acura, saw that its occupants were hiding, broke one of its
windows, and started shooting. Defendant acted out how he
committed the shooting. He said he was aiming at the person
in front at first, and then at the person in the back. Trigger
advised defendant to get rid of the firearm; defendant agreed he
would. Upon also being advised to hide out, defendant agreed
with that as well.
Villegas was interrogated at the police station after being
apprehended. After initially telling police that the shooter was
9
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
Vietnamese, he said he thought the shooter was “Slim.”8 Shown
a photographic lineup later that evening or the next morning,
Villegas identified defendant as the shooter.
b. Victim Testimony
Tran’s brother and his wounded cousin testified at trial.
They described a sequence of events between their arrival at
Alerto’s and the shooting similar to that testified to by Villegas
and Do. Both testified that a young man was staring at their
group as they arrived at the restaurant. Later, while eating,
they noticed some young Asian men in a white Lexus staring at
them through a restaurant window. When the family members
finished their meal, they left the restaurant in a black Integra
driven by Minh Tran’s uncle, with Minh Tran sitting in the front
passenger seat and the three other passengers in back.
Their group noticed they were being followed by the white
Lexus. Tran’s brother and cousin told the uncle to try to lose
their pursuers. Tran’s uncle drove his black Acura into a
residential cul-de-sac, parked in a driveway, and turned off the
vehicle’s lights. The group ducked and remained still. The
Lexus drove past the cul-de-sac. It then returned and parked
near the cul-de-sac’s entrance. Within a few minutes a dark car
arrived, entered the cul-de-sac, and parked behind the black
Acura. One of the dark vehicle’s doors opened, and a tall, slim
male dressed in black appeared by the passenger side of the
vehicle. Tran’s brother, who could see the shooter up to his
shoulder and part of his head, described this individual as bald,
8
Villegas testified that he gave a statement to the police
because he felt “pressured” by them, but he also acknowledged
it was his decision and was partly motivated by the fact that he
“kind of felt bad” that someone had died.
10
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
but he did not see the shooter’s face and could not discern his
race.9 Tran’s cousin saw only part of his chin. Without
speaking, the man fired several shots into the passenger
compartment, then left. After the shooting, the victims drove to
Tran’s cousin’s house, where an ambulance was summoned.
In interviews with police shortly after the shooting, both
Tran’s brother and his wounded cousin identified the shooter as
an Asian male, with the cousin saying that the shooter was
probably Vietnamese. Both also told police at that time that the
shooter was approximately 18 years old. Tran’s cousin further
described the shooter as between five feet six inches and five feet
seven inches in height, and approximately 120 pounds.
Asked on cross-examination about the difference between
his initial identification of the shooter and his description of the
shooter at trial, Tran’s brother testified that he had been having
dreams since defendant’s case began. On redirect examination,
Tran’s brother testified that since 2003, he consistently
remembered the shooter being slim and tall, and that the
dreams he mentioned on cross-examination had begun only
about two months earlier. Tran’s cousin testified that he had
simply assumed the shooter was Asian and young because all
the other individuals who had pursued them were Asian.
c. Other eyewitness testimony
Another eyewitness testified that he was visiting his sister
at her home on the cul-de-sac where the shooting occurred when
he heard gunshots. Looking out toward the street, he saw
someone proceeding toward a dark green vehicle that was
9
Do testified that defendant had bleached hair at the time
of the shooting.
11
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
blocking a black Acura in a driveway. The witness could not
clearly identify the person’s face, but he saw that the individual
was short and slim, appeared to be Asian, and was wearing dark
clothing. The witness jumped into a friend’s vehicle and
followed the green car as it quickly drove away. He called 9-1-1
as he drove and spoke to a dispatcher. He then saw the green
vehicle stop and an exchange of passengers occur between it and
a white Lexus. When the two vehicles split up, the witness
reported the Lexus’s direction to 9-1-1 and continued to follow
the green car. The witness read its license plate number and
reported it to the 9-1-1 dispatcher. At one point, as the green
vehicle made a U-turn, the witness observed that the driver
appeared to be Asian. The green Acura stopped on Trask
Avenue, near Clinton Street. The driver exited and helped the
passenger enter a residence. The passenger appeared to be
injured or in a stupor. The witness departed as he saw police
approach but returned to Trask Avenue later that evening and
identified Harrison Pham’s Lexus and Do’s green Acura as the
vehicles he had seen earlier that night. He could not identify
any of the individuals the police had detained.
d. Subsequent investigation
Minh Tran was shot five times. He suffered wounds to his
lungs, liver, spinal cord, and heart, with the injuries to his heart
being fatal. Tran’s brother was shot in the stomach. His cousin
was shot in the buttocks. A forensic scientist testified that all
the bullets recovered from the shooting were either .357 or .38
special caliber and that a revolver was among the weapons that
could have been used to fire the bullets.
Police recovered five cell phones from the passenger
compartment of Harrison Pham’s Lexus. A black bandana was
12
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
found in the backseat area of the Lexus. A black nylon holster
suitable for a large caliber handgun was found on the passenger-
side floorboard of Do’s vehicle, parked nearby on Trask Avenue.
Investigators also found a black bandana in a compartment in
the green Acura’s driver’s-side door, and a white bandana under
the driver’s seat.
DNA tests were run on several items obtained from the
Lexus and the green Acura. Not enough DNA was found on
some of these items to allow for DNA testing. No DNA
consistent with defendant’s profile was found on any of the items
tested. Eric Pham’s DNA profile matched DNA found on the
black bandana seized from the green Acura. The forensic
specialist testified that although defendant’s DNA was not
found on that bandana, she could not determine whether he may
have worn it. This witness also testified that while DNA testing
of clothing usually yielded the person who wore it last, that was
a “general statement.” Regarding the bandana, she could not
say definitively that Eric Pham “is the individual who wore that
item last, or even that he wore it”; he may have simply handled
it or deposited his DNA on it in another way.
Both the Lexus and the green Acura were processed for
fingerprints. Lift cards from the exterior right front door, the
exterior right rear door and window, and the exterior left rear
door of the Lexus yielded matches with Villegas’s, Le’s, and
Duong’s fingerprints. Four fingerprints obtained from the green
Acura matched Do’s fingerprints. None of the fingerprints
obtained from the Lexus or the green Acura matched
defendant’s fingerprints. The parties stipulated that police
found no gunshot residue on the hands of Harrison Pham, Le,
Duong, or Villegas.
13
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
The parties also stipulated that defendant’s stepfather
was the subscriber on the account connected to one of the cell
phones found in the Lexus. The phone number for that account
ended in 8003. The contact list on Harrison Pham’s phone
identified that number as belonging to “Jason S.,” and on Le’s
phone, the number was associated with “Slim.” The phone with
the 8003 number received a call from Eric Pham’s cell phone at
10:09 p.m., placed a call to Eric Pham’s phone six minutes later,
called Le’s phone at 10:16 p.m., and received a call from Le’s
phone at 10:25 p.m. The phone with that number also “pinged”
off at least one, and possibly two, cell phone towers in the
vicinity of Alerto’s and the cul-de-sac where the shooting
occurred around the time of the shooting.
Vinnie Nguyen, another Dragon Family/Dragon Family
Junior gang member, was detained after the shooting while
driving near defendant’s residence. Subsequent investigation
determined that between 10:30 p.m. and around 11:00 p.m. on
August 12, 2003, his phone had been used to call, or attempt to
call, Donny Nguyen’s girlfriend’s phone, Danny Duong’s phone,
Harrison Pham’s phone, the phone associated with defendant,
and Do’s phone. Examination of Le’s phone revealed calls with
Donny Nguyen’s girlfriend’s phone at 10:03 p.m. and 10:07 p.m.
that evening, and that the number associated with “Slim” had
been dialed several times between 10:10 p.m. and 10:25 p.m.
that night.
Defendant was apprehended in Tempe, Arizona, in March
2004. A police officer performed a welfare check at an
apartment where defendant was residing. After contacting
defendant, the officer ran his name for outstanding warrants
and found one for homicide. The officer wrote this down and
provided the information to a colleague. Defendant then jumped
14
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
off a couch and fled the apartment. The officer pursued him.
Defendant continued to run despite being ordered to stop. He
was apprehended after a short chase.
Two witnesses who resided at the Arizona apartment with
defendant testified that months before he was apprehended,
defendant, whom they knew as “Bill,” came to live with them
and their young son. Defendant needed a place to stay and did
housework and took care of their son while they were at work.
He had access to computers at the residence.
Two computers and some writings were seized from the
Arizona apartment pursuant to a search warrant. Forensic
analysis of a mirror image of one of the computer hard drives
revealed that in February 2004 the computer had been infected
by a virus that captured the keystrokes entered on its keyboard.
Due to this virus, law enforcement recovered numerous instant
messages that had been sent from the computer by the user
everybodykilla22, who also gave their name as “Slim.”
Defendant had a tattoo reading “ebk” on his upper left arm and
shoulder, which Do testified stood for “everybody killer.”
The messages sent by everybodykilla22 included:
“[n]****z cant see me for the fact that i stay with my black
beenie disguise so dont be suprised when theese guys dressed in
black are coming to take youe life”; “i wanna go bangin bye
myself for fun with two clips and one gun”; “i remember me a
hot dog go bang with the crv when I had the 380”;10 “ebk all day
till the day i die”; “got snitchez n shit u know,” followed by “fukin
n****z dont knwo how to keep they mouth shut”; “5 n**g alocked
10
Other Dragon Family/Dragon Family Junior members
referred to Quang Do by the nickname “Hot Dog.” No evidence
at trial connected Do to a CRV vehicle.
15
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
up they think thas it [enter] haha [enter] so many still out n
bangin”; and a sequence in which everybodykilla22 first wrote
“wtf u want me to tell u” to one user, then wrote messages to
another user providing, “i blast three n****z” and “oops wrong
im,” followed by messages to the original recipient, “i blast three
n****z [enter] Naw.”11 The virus did not capture the other sides
of the conversations in which these messages were written.
Keystrokes preserved by the virus also indicated that a user had
used the computer to search the Orange County Sheriff’s
Department website for outstanding warrants for “Jason
Aguirre.”
The writings seized from the Arizona apartment included
several pages of handwritten poetry or lyrics (hereinafter
referred to as lyrics). A handwriting analyst with the Orange
County Sheriff’s Department compared the lyrics with
handwriting samples obtained through a mail cover that was
applied to defendant in jail, and determined that writer of the
11
These excerpts have been drawn from People’s Exhibit
119, a compilation of the instant messages that was admitted
prior to closing arguments. In discussing these and other
writings offered as evidence at trial, we generally repeat how
statements appear either in the pertinent exhibit or in the
reporter’s transcript, consistent with the context in which they
are being discussed. With some statements, minor variations
exist between the original writings, and their description by
counsel as reflected in the reporter’s transcript.
Although we have generally maintained the statements’
original language, including any incorrect spelling or
punctuation errors, we have made an exception for a slur that
appears in these statements, for which only the first and last
letters are given, with asterisks in between. (See People v. Ware
(2022) 14 Cal.5th 151, 158.)
16
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
samples was also responsible for the lyrics.12 These lyrics
included: “black fitted Detroit tiger baseball cap but the D
stands for Dragon best believe that n***a check the tat on my
Back fool I stay strapped 357’s equal 187’s with 357’s AK’s and
all Dat”; “N****z cant see me for the fact that I stay with my
black beannie disgize so don’t be suprized wen these guys
dressed in black are coming to take your life”; “every other
muthafucka thinks im trippin tell a n***a Im to old to bang
kickback and let them lil n****z do there thang I tell um fuck
that shit bangin’s the blood that’s pumpin through my veins”;
and “cruzing around untill you run out of gas high as hell
drinkin and driving when I Blast then back to the pad to get
something to eat and another 40 of old E after I cut up this body
of the enime that we just murdered on these OC streetz
muthafucka.”
Lyrics found on other handwritten pages admitted as
evidence included, “its dfj every day all day till the day i die,”
“357, AK, 9 milli, Glock 45, I bang for the hood slang for the
hood,” “OC is ours we da OG’s with fly cars,” “catch an enime
slipping you know Ima empty that clip, cause wether im jackin
or I bang you know it don’t mean a thang, I do it for two reasons
that’s the hood and some change,” “man these n****z don’t
wanna fly straight now i gotta blast, increase the crime rate,”
“crossin’ me a fatal mistake,” “you never live by it, make n****z
move outta state snatch the weight, pull 38’s, and break the
safe,” and “cuz when it comes to a n***a like me i won’t stop till
i see your fuckin blood drippin down the sewadge drain.”
12
This mail cover consisted of an instruction to copy papers
written and received by defendant while he was in custody.
17
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
The couple with whom defendant resided in Arizona
testified that they did not use the screen name
everybodykilla22, write instant messages associated with that
screen name, use their computer to search the Orange County
Sheriff’s Department website for warrants under the name of
Jason Aguirre, or write the lyrics found at the apartment.
A search of what police believed to be defendant’s
residence on Trask Avenue on the evening of August 12 or early
morning hours of August 13, 2003, revealed paperwork and
magazines addressed to defendant, as well as Dragon Family
Junior gang writings.
In September 2003, law enforcement seized the computer
of a Dragon Family/Dragon Family Junior member who was not
involved in the pursuit or shooting. A subsequent search of the
computer yielded a file with Minh Tran’s photo and name, and
the words “R.I.P.”
Detective Tim Walker of the Westminster Police
Department testified regarding criminal street gangs generally
and the Dragon Family/Dragon Family Junior gang specifically.
Walker testified that the Dragon Family/Dragon Family Junior
gang was associated with signs and symbols including dragons
and the letter “D.” He testified that at the time of the charged
crimes, the gang was involved in a violent rivalry with the
Young Locs gang. Walker identified several individuals,
including defendant, Do, Villegas, Donny Nguyen, Le, Harrison
Pham, and Eric Pham as members of the Dragon Family/Dragon
Family Junior gang at the time of the shooting. Walker
described convictions that had been incurred by members of the
gang.
18
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
Walker also testified regarding defendant’s gang tattoos
and letters written by defendant while in custody. In one of
these letters, dated November 6, 2006, defendant wrote, “I’ma
tell you ’bout me. I am in a Viet gang, DRAGON FAMILY. I
put EBK ’cause we black rag. Not bloods, not crips, but EBK.
EveryBodyKillaz.” Walker’s opinion that, as of August 12, 2003,
defendant was a member of the Dragon Family/Dragon Family
Junior gang was informed by the lyrics retrieved from the
Arizona apartment and the instant messages recovered from
one of the computers found in that apartment. Walker further
testified that a hypothetical pursuit and shooting that tracked
the facts of this case would benefit a criminal street gang by
being an “absolute textbook example of a gang hunting down a
perceived enemy,” and that such a crime “enhances the
individual, and the gang’s reputation as a whole, which in turn
will give them more power within the gang community.”
2. Defense case
Detective Walker testified to the placement of a mail cover
on defendant while he was in jail pending trial. Walker also
testified that defendant was roughly six feet tall.
A private investigator testified regarding measurements
he made of the victims’ make and model of vehicle and the cul-
de-sac where the shooting occurred, and of his observations of
the street lighting at that scene.
Donny Nguyen, who received a sentence of 18 years four
months due to his involvement in the attack, testified to what
transpired at Alerto’s before, during, and immediately after his
call to Le. On cross-examination, Nguyen testified that two
months before the shooting he “got into a confrontation with
rivals” at Alerto’s, an incident that led to some of the convictions
19
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
by Dragon Family/Dragon Family Junior gang members that
Detective Walker had testified about during the prosecution’s
case-in-chief.
3. Rebuttal
Tran’s brother was recalled as a witness and briefly
testified that on the night of the incident he was wearing a blue
flannel shirt; Walker had previously testified that blue clothing
may have been associated with the Dragon Family/Dragon
Family Junior gang’s rivals. The brother also testified that in
the parking lot at Alerto’s, he only took a “quick glance” at
Nguyen.
B. Penalty Phase
1. Prosecution case in aggravation
The prosecution offered victim impact testimony from
Minh Tran’s father, his older brother, and his mother. These
family members testified regarding their memories of Tran and
the impact that his death had upon them. Tran’s father had
been a “very energetic, very healthy person,” but after his son’s
death, he became ill and had to sell his business. Tran’s brother
remembered that Tran was “always laughing” and “[e]verything
we did, we did together.” His mother testified that when she
arrived in this country from Vietnam, she had hoped that her
children were going to have a bright future. Her son wanted to
become a dentist. His death remained “impossible” to deal with.
The prosecution also presented evidence regarding a
violent incident that occurred in Hawaii in 1998. A traffic-
related dispute escalated and a party to the altercation stabbed
or slashed two men with a knife. One of the victims, who was
stabbed in the torso, identified defendant as the assailant; the
other testified that defendant looked like the assailant.
20
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
An Irvine Police Department officer testified that in
August 2001 he interviewed defendant after responding to a call
of a fight in progress. Defendant told the officer that he was
affiliated with the Dragon Family gang. Upon searching
defendant’s vehicle, the officer located a baseball bat and what
he described as a “wooden handle,” or billy, and two knives.
Asked about the bat and handle, defendant’s response indicated
that they were “for protection.”
A witness testified that on April 28, 2001, he was with four
friends in a vehicle in Garden Grove when another vehicle
blocked an intersection in front of them. The driver of the other
vehicle was staring the group down and throwing gang signs. In
an effort to diffuse the situation, the witness and his companions
explained they were from “nowhere,” and the driver of the
witness’s vehicle said, “we don’t bang or anything like that.” The
driver of the witness’s vehicle tried to drive off, but the other car
pursued them. After a chase of about five or six minutes, the
witness’s vehicle pulled into a dead-end street, where the driver
lost control and crashed. The other car pulled up. A passenger
in the pursuing vehicle exited it, kicked the driver’s side and
passenger side doors of the crashed vehicle, and then left with
the driver. Shown a photo array on the evening of the incident,
the witness identified defendant as the driver of the vehicle that
pursued his group.
A sheriff’s deputy testified that defendant was involved in
a fight with another inmate while detained in jail pending trial
in this case. According to the testifying deputy, when asked
what happened, defendant said that he had “a problem” with the
other inmate and “wanted to go out and settle it” by starting a
fight. As described to the deputy, the “problem” began with the
other inmate being noisy, but then escalated into what the
21
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
deputy described as “more of a disrespect sort of an issue.” The
other inmate received minor injuries in the fight.
The prosecution also introduced evidence that in April
2001 defendant had been convicted of possessing a concealed
firearm in a vehicle while an active participant in a criminal
street gang. (Former § 12025, subds. (a)(1), (b)(3).)
2. Defense case in mitigation
Defendant’s friends and family members testified
regarding his life prior to the shooting. Defendant’s parents
separated and divorced when defendant was very young.
Defendant’s parents gave differing accounts of their
relationship, with defendant’s mother describing his father as
abusive and his father denying any physical abuse. Defendant’s
mother remarried to a man who maintained a positive
relationship with defendant. That marriage also ended, but
when defendant was 12 years old, he moved to Hawaii to be
closer to his former stepfather. Due to issues with his
stepfather’s new wife, defendant soon moved in with his cousin
(his stepfather’s nephew), who was several years older than him.
Defendant’s stepfather initially gave the cousin a monthly
stipend for defendant’s support but eventually stopped
providing these funds.
While in Hawaii, defendant became friendly with a
Vietnamese family whose son attended the same school as he
did, and defendant eventually resided in that family’s house for
a number of years, off and on. The classmate perceived that his
was defendant’s only family.
The renter of the apartment in Arizona where defendant
was apprehended testified that he allowed defendant to live
with him on the condition that he change his life. According to
22
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
this witness, defendant did a good job taking care of the
apartment and looking after the renter’s young son during the
four or five months he lived there.
A criminologist testified regarding gang membership and
why defendant might have joined a gang, and an Asian gang in
particular. Another defense expert testified that various factors
in defendant’s background put him at greater risk of bad
outcomes, including criminality or violence.
II. DISCUSSION
A. Batson/Wheeler Challenge
Defendant argues that the trial court erroneously denied
his pretrial motion asserting that a prospective juror was
improperly excused by the prosecution due to his race. We reject
defendant’s argument, concluding that the trial court’s ruling is
entitled to deference and is supported by substantial evidence.
1. Facts
Defendant challenges the prosecution’s use of a
peremptory challenge against Prospective Juror No. 179, who
was excused after he completed a juror questionnaire and was
questioned by the court, defense counsel, and the prosecutor.
The juror questionnaire included a section posing
questions about gangs. One question asked, “Some people
believe that it should be a crime to be a member of a street gang.
How do you feel about that?” Prospective Juror No. 179, a 45-
year-old man who worked as a process engineer for Boeing,
responded, “Would have to agree. I’ve always been told not to
join gangs. I grew up seeing my friends and family hurt by gang
activity.” Prospective Juror No. 179 answered “Yes” to a
question asking if jury candidates had “heard of Dragon
Family/Dragon Family Junior or Young Locs gang,” explaining
23
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
that he “heard it is an Asian gang” from his friends. Asked about
his feelings regarding a defendant who is a member of a criminal
street gang, he wrote, “I feel sorry for the defendant. He
probably has had a rough life and was look [sic] to the gang to
provide the support in his life.” Prospective Juror No. 179 also
indicated he could set aside his personal feelings and base his
decision as a juror only on the law and what was presented in
court. Asked if he or any of his close friends or relatives had
ever associated with a criminal street gang, he answered “Yes,”
explaining, “I grew up in Harbor City California. Gangs were
an everyday visual. Mexican/Blacks (Bloods/Crips)/Whites.
Drug activity and shootings occured [sic] all the time. A lot of
my friends were in the gang.” Elsewhere in the jury
questionnaire, Prospective Juror No. 179 responded “Yes” to the
question, “Have you or a close friend or relative ever been a
victim of a crime of violence?” explaining, “Gang shooting.”
At the outset of voir dire, the trial court stated that it had
gone through each jury questionnaire and identified topics that
it wanted to discuss with prospective jurors. When it came time
to speak with Prospective Juror No. 179, the court inquired,
“You said you grew up with some friends who were in gangs or
were — ,” at which point the prospective juror said, “Oh,
absolutely, yes.” The trial court asked Prospective Juror No.
179, “[A]s far as your knowledge of the Dragon Family, or
Dragon Family Juniors or Young Locs, do you know anything in
particular, or just heard the name?” The prospective juror
replied, “Just heard the name.” The court also inquired into the
circumstances of the gang shooting referenced in the
questionnaire. Prospective Juror No. 179 replied, “Well, there
were several. Just growing up, several, I mean my best friend
actually was shot by a drive-by.”
24
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
Defense counsel then posed a few questions to the
prospective juror. Asked what qualities he had that would make
him a good juror, such as a good attention to detail, Prospective
Juror No. 179 agreed that he had an attention to detail, stating,
“I mean engineering, that’s part of what I do.”
When it was the prosecutor’s turn to ask questions, she
confirmed with Prospective Juror No. 179 that he was an
engineer and offered that his work was “very precise”; he agreed
that it was. The prosecutor asked the prospective juror a series
of questions in which she stated that evaluating witness
testimony was “not like a math problem” and “not always an
exact science,” and that there was “not a formula” for placing
weight on aggravating evidence at the penalty phase.
Prospective Juror No. 179 indicated that he understood as
much. The prosecutor also asked the prospective juror, “You
said in your life experience you have known people who are gang
members?” to which he replied, “Absolutely.” Prospective Juror
No. 179 gave identical responses when the prosecutor asked if
he was “[f]riends with some of them,” whether he had seen gang
violence, and “that’s part of who you are, right?” After posing
several questions relating to the consideration of evidence
regarding gang membership, the prosecutor asked the
prospective juror, “You said you heard of this particular gang
before?” Prospective Juror No. 179 replied, “Yes.” Asked about
the context, he replied, “Just with talk with people at work.”
Probing further, the prosecutor asked, “Was it in conjunction to
any particular crime, or just in general?” The prospective juror
replied, “I can’t recall the conversation, but V.F.N.” The
prosecutor followed up, “But as you sit here today, is it fair to
say that you remember just the name of the gang, and it is a
gang?” The prospective juror answered, “Yes.” When the
25
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
prosecutor confirmed that he knew “no other specifics,” the
prospective juror responded, “Correct.”
Shortly thereafter, the court entertained challenges by the
parties. The prosecution exercised a peremptory challenge
against Prospective Juror No. 179. The defense asked for an
opportunity to be heard. Outside the jury’s presence, the
defense identified Prospective Juror No. 179 as the only African
American jury candidate “in the box” and objected to his excusal,
citing to Wheeler.13
The trial court asked the prosecutor for a response. The
prosecutor replied that “Juror 179 is an engineer, very precise
type area of work. He is friends with gang members, has been
friends with gang members in the past, had heard of D.F.J., but
didn’t know if it was in connection to any crime. Although he
answers certain questions okay, he had some level of hesitation
in giving the answer. So that’s my reason for excusing him.”
The trial court said, “They appear to be race neutral.” Defense
counsel responded, “I disagree he gave any hesitation, he
answered the questions very forthrightly.” The trial court then
said, “Well, he had heard of Dragon Family, he had — ,” with
defense counsel interjecting that it was “[i]n an old conversation
without any details, that he couldn’t really remember.” As trial
court started to reply, “Well — ,” the prosecutor said, “That’s my
point.” Defense counsel then stated he had “made the objection.”
The court ruled, “The question is whether or not there are any
race neutral grounds, and there appear to be race neutral
grounds, so I will deny it.”
13
“Although at trial defendant cited only Wheeler in support
of his objection, this sufficed to preserve his Batson claim for
appeal.” (People v. Vines (2011) 51 Cal.4th 830, 847, fn. 7.)
26
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
2. Legal principles
Parties are accorded significant latitude in their exercise
of peremptory challenges. But the use of these challenges to
exclude prospective jurors on account of their race violates both
the state and the federal Constitutions. (See Batson, supra,
476 U.S. at p. 89; Wheeler, supra, 22 Cal.3d at pp. 276–277.) A
contention that a peremptory challenge was impermissibly
based on race implicates a three-step process. “ ‘First, the
defendant must make out a prima facie case “by showing that
the totality of the relevant facts gives rise to an inference of
discriminatory purpose.” [Citation.] Second, once the defendant
has made out a prima facie case, the “burden shifts to the State
to explain adequately the racial exclusion” by offering
permissible race-neutral justifications for the strikes.
[Citations.] Third, “[i]f a race-neutral explanation is tendered,
the trial court must then decide . . . whether the opponent of the
strike has proved purposeful racial discrimination.” ’ [Citation.]
‘[T]he ultimate burden of persuasion regarding racial
motivation rests with, and never shifts from, the opponent of the
strike.’ [Citation.] To support a Batson/Wheeler motion, a party
must prove ‘it was more likely than not’ that a challenge was
motivated by discrimination.” (People v. Nadey (2024)
16 Cal.5th 102, 124 (Nadey).)
Here, the court asked the prosecutor to respond to the
defense’s Batson/Wheeler motion, and the prosecutor replied by
providing an explanation for the challenged excusal. While the
court did not expressly state that the defense had made a prima
facie case, with the prosecutor’s reasons before us, we “simply
proceed as though this is a step three case, analyzing whether
the trial court properly accepted the race-neutral reasons given
27
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
by the prosecutor.” (People v. Mai (2013) 57 Cal.4th 986, 1050
(Mai).)
A third-stage inquiry presents a question of fact
concerning the presence of purposeful racial discrimination.
(People v. Baker (2021) 10 Cal.5th 1044, 1076 (Baker).) “The
answer to this factual question will ordinarily depend ‘on the
subjective genuineness of the race-neutral reasons given for the
peremptory challenge.’ [Citation.] A justification based on a
mischaracterization of the record could reveal a discriminatory
motive [citation], but might reflect a mere error of recollection
[citations]. Likewise, a justification that is ‘implausible or
fantastic . . . may (and probably will) be found to be
pretext[ual],’ yet even a ‘silly or superstitious’ reason may be
sincerely held. [Citations.] Of course, the factual basis for, and
analytical strength of, a justification may shed significant light
on the genuineness of that justification — and, thus, on the
ultimate question of discrimination. [Citation.] But the force of
the justification is significant only to the extent that it informs
analysis of the ultimate question of discriminatory motivation.”
(Id. at pp. 1076–1077; see also People v. O’Malley (2016)
62 Cal.4th 944, 982 (O’Malley) [“ ‘ “ ‘[H]unches[,]’ and even
‘arbitrary’ exclusion is permissible, so long as the reasons are
not based on impermissible group bias” ’ ”].) The trial court’s
assessment of the credibility of a prosecutor’s stated reasons for
an excusal may take into consideration, “ ‘ “among other factors,
the prosecutor’s demeanor; . . . how reasonable, or how
improbable, the explanations are; and . . . whether the proffered
rationale has some basis in accepted trial strategy.” ’ ” (People
v. Jones (2011) 51 Cal.4th 346, 360 (Jones).)
Our “ ‘ “[r]eview of a trial court’s denial of
a Wheeler/Batson motion is deferential, examining only whether
28
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
substantial evidence supports its conclusions. [Citation.] ‘We
review a trial court’s determination regarding the sufficiency of
a prosecutor’s justifications for exercising peremptory
challenges “ ‘with great restraint.’ ” [Citation.] We presume
that a prosecutor uses peremptory challenges in a constitutional
manner and give great deference to the trial court’s ability to
distinguish bona fide reasons from sham excuses. [Citation.] So
long as the trial court makes a sincere and reasoned effort to
evaluate the nondiscriminatory justifications offered, its
conclusions are entitled to deference on appeal.’ ” ’ ” (Mai,
supra, 57 Cal.4th at pp. 1048–1049.) “In reviewing the
correctness of a trial court’s ruling on a Batson/Wheeler motion,
we consider ‘all the circumstances of th[e] case.’ [Citation.] The
circumstances of the case include what the jurors said and wrote
in connection with voir dire and the reasonable inferences that
can be drawn from those statements.” (People v. Williams (2013)
56 Cal.4th 630, 653–654.)
When ruling on a Batson challenge in which multiple
reasons are given for the exercise of a peremptory challenge,
“the court should determine whether the challenge was based
on group bias by considering the reasons as a whole, without
focusing on a single stated reason to the exclusion of others.”
(People v. Smith (2018) 4 Cal.5th 1134, 1158 (Smith).) “[T]he
trial court is not required to make specific or detailed comments
for the record to justify every instance in which a prosecutor’s
race-neutral reason for exercising a peremptory challenge is
being accepted by the court as genuine.” (People v. Reynoso
(2003) 31 Cal.4th 903, 919 (Reynoso); see also Baker, supra,
10 Cal.5th at p. 1077 [“A court may make a sincere and reasoned
effort to evaluate a peremptory challenge even if it does not
provide a lengthy and detailed explanation for its ruling”];
29
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
People v. Manibusan (2013) 58 Cal.4th 40, 76 (Manibusan)
[extending deference to the trial court and affirming the denial
of a Batson/Wheeler motion where, after hearing the prosecutor’s
reasons for excusing a prospective juror and defense counsel’s
response, the trial court ruled, “ ‘It’s a proper use of a
peremptory challenge’ ”]; People v. Lewis (2008) 43 Cal.4th 415,
471 [“the trial court was not required to question the prosecutor
or explain its findings on the record because . . . the prosecutor’s
reasons were neither inherently implausible nor unsupported by
the record”].) Further inquiry by the trial court may be
necessary for a reviewing court to accord deference “[w]hen ‘the
proffered reasons lack[] inherent plausibility or [are]
contradicted by the record.’ ” (Baker, at p. 1078.) In this respect,
a trial court’s failure to probe an “obvious gap” when a
prosecutor’s stated reasons are completely unsupported by the
record (People v. Silva (2001) 25 Cal.4th 345, 385) “may
eliminate the basis for deference” (Baker, at p. 1078; see also
People v. Hardy (2018) 5 Cal.5th 56, 80 (Hardy) [contrasting the
situation in Silva with one involving only a “slight
discrepancy”]).14
14
Code of Civil Procedure section 231.7, enacted in 2020,
provides that when a peremptory challenge is premised on
certain grounds, it “is presumed to be invalid unless the party
exercising the peremptory challenge can show by clear and
convincing evidence that an objectively reasonable person would
view the rationale as unrelated to a prospective juror’s race,
ethnicity, gender, gender identity, sexual orientation, national
origin, or religious affiliation, or perceived membership in any
of those groups, and that the reasons articulated bear on the
prospective juror’s ability to be fair and impartial in the case.”
(Id., subd. (e).) The statute also identifies other reasons for
30
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
In reviewing a trial court’s ruling at the third stage of the
Batson analysis, a “comparative juror analysis must be
considered” by an appellate court “if relied upon by the
defendant and the record is adequate to permit the urged
comparisons.” (People v. Lenix (2008) 44 Cal.4th 602, 622
(Lenix).) This “analysis is but one form of circumstantial
evidence that is relevant, but not necessarily dispositive, on the
issue of intentional discrimination.” (Ibid.) Such analysis, as
applied to a claim alleging improper excusals based on race,
“compares the voir dire responses of the challenged prospective
jurors with those of similar jurors who were not members of the
challenged jurors’ racial group, whom the prosecutor did not
challenge.” (O’Malley, supra, 62 Cal.4th at p. 975.)
When comparing an excused jury candidate with others,
“we are mindful that comparative juror analysis on a cold
appellate record has inherent limitations.” (Lenix, supra,
44 Cal.4th at p. 622.) Among these limitations, a transcript will
not necessarily capture a prospective juror’s “attitude, attention,
interest, body language, facial expression and eye contact”
(ibid.), vocal inflections, or other facts or circumstances that
exercising a peremptory challenge, including the prospective
juror’s inattentiveness or demeanor (id., subd. (g)(1)(A), (B)), as
“presumptively invalid unless the trial court is able to confirm
that the asserted behavior occurred, based on the court’s own
observations or the observations of counsel for the objecting
party. Even with that confirmation, the counsel offering the
reason shall explain why the asserted demeanor, behavior, or
manner in which the prospective juror answered questions
matters to the case to be tried” (id., subd. (g)(2)). This statute
applies only in trials in which jury selection began on or after
January 1, 2022 (id., subd. (i)), and it is therefore inapplicable
here.
31
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
may be relevant to the exercise of a peremptory challenge. (See
id. at pp. 622–623.) Also, “ ‘[w]hen comparative juror
arguments are made for the first time on appeal, . . . the
prosecutor was not asked to explain, and therefore generally did
not explain, the reasons for not challenging other jurors. In that
situation, the reviewing court must keep in mind that exploring
the question at trial might have shown that the jurors were not
really comparable.’ ” (Hardy, supra, 5 Cal.5th at p. 77.) “When
a defendant asks for comparative juror analysis for the first time
on appeal, we have held that ‘such evidence will be considered
in view of the deference accorded the trial court’s ultimate
finding of no discriminatory intent.’ ” (O’Malley, supra,
62 Cal.4th at p. 976.)
3. Analysis
Defendant argues, first, that we should not extend our
usual deference to the trial court’s ruling below. He asserts that
such deference is unwarranted because the court did not make
a “ ‘ “ ‘sincere and reasoned effort to evaluate the
nondiscriminatory justifications offered’ ” ’ ” by the prosecutor
(Mai, supra, 57 Cal.4th at pp. 1048–1049) and instead simply
accepted at face value the reasons the prosecutor gave for
excusing the prospective juror. Defendant perceives the trial
court’s phrasing of its ruling, in particular, as reflective of an
inadequate inquiry.
We extend our usual deference here. “Under our
precedent, ‘[w]hen the trial court has inquired into the basis for
an excusal, and a nondiscriminatory explanation has been
provided, we . . . assume the court understands, and carries out,
its duty to subject the proffered reasons to sincere and reasoned
analysis, taking into account all the factors that bear on their
32
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
credibility.’ ” (Baker, supra, 10 Cal.5th at pp. 1077–1078; see
also People v. Gutierrez (2014) 58 Cal.4th 1354, 1390 [“Absent
evidence to the contrary, we presume that the trial court knew
and applied the governing law”].)
The trial court’s articulation of its decision does not compel
a different approach. Given its natural meaning and viewed in
context, the trial court’s ruling that “[t]he question is whether
or not there are any race neutral grounds, and there appear to
be race neutral grounds,” as preceded by the court’s observation,
“They appear to be race neutral,” in response to the prosecutor’s
statement of reasons, reasonably reflected a finding that the
prosecutor was credible and that her peremptory challenge was
not motivated by discriminatory intent. (See Mai, supra,
57 Cal.4th at p. 1053 [rejecting an argument that the trial
court’s Batson/Wheeler ruling, articulated as “ ‘no
discriminatory intent is inherent in the explanations, and the
reasons appear to be race neutral,’ ” evinced a
misunderstanding of its obligation to assess the sincerity of the
prosecutor’s stated reasons (italics omitted)]; id. at p. 1054;
Manibusan, supra, 58 Cal.4th at p. 76.)15 As used by the trial
court, the word “appear” is indicative of a subjective
determination that the reasons provided by the prosecutor were
15
Even though the record in this case does not support
defendant’s position that the trial court applied the wrong
standard in ruling on his Batson/Wheeler motion, whether the
court is applying the correct standard in making a ruling may
be unclear in other trial court proceedings. Contemporaneously
asking the trial court to clarify its ruling will allow the court to
explain its reasoning, thereby enhancing the record and
facilitating any appellate review that may be necessary. (See
Baker, supra, 10 Cal.5th at p. 1079 [“ ‘Advocates and courts both
have a role to play in building a record’ ”].)
33
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
legitimately being invoked. Our conclusion that the trial court
did not abdicate its responsibility to evaluate the prosecutor’s
credibility is further supported by its recollection to counsel that
the prospective juror had heard of the Dragon Family gang.
This reflection indicates that the court was actively mapping the
reasons given by the prosecutor against what it recalled as the
prospective juror’s responses to questions, instead of accepting
the prosecutor’s reasons without any critical evaluation.16
16
Citing to our decision in People v. Gutierrez (2017)
2 Cal.5th 1150, 1172, one of the dissents asserts that the reasons
given by the prosecutor were “ ‘not self-evident’ ” and that
deference is therefore not warranted to the trial court’s ruling
on this record. (Dis. opn. of Liu, J., post, at p. 6.)
People v. Gutierrez does not support the dissent’s position.
In that case, the reasons for excusing a prospective juror that
we described as “not self-evident” (People v. Gutierrez, supra,
2 Cal.5th at p. 1172) were that she was unaware of gang activity
in her town of Wasco and that the prosecutor “ ‘was unsatisfied
by some of her other answers as to how she would respond when
she hears that [a prosecution witness] is from a criminal street
gang’ ” from that town. (Id. at p. 1160.) The trial court “made a
global finding that the prosecutor’s strikes were neutral and
nonpretextual.” (Id. at p. 1157.) We concluded that although
the “Wasco reason” was facially neutral (id. at p. 1168), the
reasoning behind it — that the prosecutor “was uncertain how a
prospective juror’s unawareness of Wasco gang activity might
bear on her response to” the prosecution witness (id. at
p. 1169) — was “tenuous” because “[i]t is not evident why a
panelist’s unawareness of gang activity in Wasco would indicate
a bias against a member of a gang based in Wasco” (ibid.). We
further observed, “Although it is possible that a juror unaware
of gang activity in Wasco would be discomfited by, and skeptical
of, a witness who claimed to be [a] member of a gang based in
her neighborhood, such a conclusion does not strike us as an
34
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
Turning to whether substantial evidence supported the
trial court’s denial of the Batson motion, we conclude that it did.
According our standard deference to the trial court’s ruling, we
reject defendant’s arguments that the prosecutor’s reasons lack
sufficient support in the record and that comparative juror
analysis reveals them as pretexts for discrimination.
The first reason given by the prosecutor for dismissing
Prospective Juror No. 179 was that he was an engineer, a “very
precise type area of work.” We have regarded a prospective
juror’s profession as a race-neutral reason for the exercise of a
peremptory challenge. (People v. Chism (2014) 58 Cal.4th 1266,
1316 (Chism); People v. Young (2005) 34 Cal.4th 1149, 1174
(Young).) During voir dire, Prospective Juror No. 179
volunteered a connection between his work as an engineer and
having an attention to detail. The prosecutor later asked him
several questions consistent with concerns regarding how this
mindset would affect the prospective juror’s evaluation of
witness testimony at the guilt phase and of aggravating and
mitigating evidence at any penalty phase. As suggested by this
questioning, a peremptory challenge citing the prospective
juror’s profession as an engineer and his agreement that it was
obvious or natural inference drawn from this panelist’s
responses.” (Ibid.)
People v. Gutierrez thus used “not self-evident” (2 Cal.5th
at p. 1172) to describe one reason that relied on a “tenuous”
deduction (id. at p. 1169) and another that was so vaguely
articulated as to make it difficult to understand what the
prosecutor’s concern was. Here, the prosecutor’s reasons,
viewed as a whole, allow for more “obvious or natural
inference[s]” (ibid.) about why the prospective juror was being
excused, such that additional probing or explication by the trial
court was unnecessary.
35
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
a “very precise” line of work “had ‘ “ ‘some basis in accepted trial
strategy’ ” ’ [citation] insofar as it stemmed from a concern about
the general attitudes and philosophies persons in that
profession might harbor.” (Mai, supra, 57 Cal.4th at p. 1053.)17
The prosecutor also stated that Prospective Juror No. 179
“is friends with gang members, has been friends with gang
members in the past.” We have regarded a similar concern as a
race-neutral reason for a peremptory challenge in a case
involving gang-related crimes. (See People v. Williams (1997)
16 Cal.4th 153, 191 (Williams).) This reason, too, finds support
in the record. The prospective juror wrote in his questionnaire
that “a lot” of his childhood friends were in a gang. He provided
similar responses during voir dire. To recap, the prospective
juror answered affirmatively when the trial court confirmed,
“You said you grew up with some friends who were in gangs or
were — .” The prosecutor later asked him, “You said in your life
17
In applying de novo review, one of the dissents expresses
skepticism of this reason for excusing the prospective juror and
asks whether the prosecutor wanted a juror who was not detail
oriented. (Dis. opn. of Liu, J., post, at p. 7.) The dissent’s
incredulity notwithstanding, the prosecutor could reasonably
have been concerned about a prospective juror who connected
his profession as an engineer to being detail oriented and agreed
that his profession was “very precise.” The prosecutor might
have been concerned that if selected to serve on the jury, such a
juror would focus too much on specific evidentiary details and
resist appeals to view the evidence at trial as a whole. (See, e.g.,
People v. Miles (2020) 9 Cal.5th 513, 559 (Miles) [a prosecutor
may excuse a prospective juror for race-neutral reasons that
anticipate the evidence expected to be offered at trial]; Chism,
supra, 58 Cal.4th at p. 1317 [“a prosecutor ‘can challenge a
potential juror whose occupation, in the prosecutor’s subjective
estimation, would not render him or her the best type of juror to
sit on the case for which the jury is being selected’ ”].)
36
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
experience you have known people who are gang members?”
The prospective juror replied, “Absolutely.” He gave the same
response to the ensuing question, “Friends with some of
them?”18 The prosecutor could have gleaned from these answers
a possibility that the prospective juror had preconceived views
regarding gangs or gang members that drew from these
relationships and might affect his evaluation of the evidence at
trial, including testimony by a gang expert regarding the
Dragon Family/Dragon Family Junior gang’s activities and
interests.19
18
Defendant also argues that the prosecutor’s questioning of
Prospective Juror No. 179 provides evidence that her
peremptory challenge was racially motivated. Focusing on the
prosecutor’s question, “that’s part of who you are, right?” and
the questions regarding the circumstances of the prospective
juror’s early years that preceded it, defendant argues that “[t]he
prosecutor’s use of No. 179’s residence as a child became a
surrogate for impermissible racial bias. The prosecutor
assumed that black jurors who were born in a poor black gang
area would be hostile to the prosecution and sympathetic to the
defendant.” This argument reads too much into the prosecutor’s
questioning regarding the ongoing effect, if any, of the
prospective juror’s friendships with gang members and his
familiarity with gang violence. The prosecutor’s questioning
was appropriate in light of the prospective juror’s questionnaire
responses, including his response that he would “feel sorry” for
defendant, whom he viewed as “probably” having “had a rough
life and was look [sic] to the gang to provide the support in his
life.” Furthermore, Prospective Juror No. 179 explained in his
questionnaire response that there were White, Hispanic, and
Black gangs where he grew up.
19
In giving her reasons for the excusal, the prosecutor did
not mention Prospective Juror No. 179’s questionnaire
response, “I feel sorry for the defendant. He probably has had a
37
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
Prospective Juror No. 179 also provided answers to some
questions during jury selection that indicated a negative view
toward gangs. These included his questionnaire response that
he “[w]ould have to agree” it should be a crime to belong to a
gang, with the explanation, “I’ve always been told not to join
gangs. I grew up seeing my friends and family hurt by gang
activity.” Yet the prospective juror’s views regarding gangs and
his past experiences with gang activity are not inherently
inconsistent with, and would not obviously overcome, concerns
about how the prospective juror’s evaluation of the evidence at
trial would be affected by the relationships that he described.
The prosecutor could, among other things, have perceived the
prospective juror as possibly disliking gangs, but feeling
differently about individual gang members. (See Williams,
supra, 16 Cal.4th at p. 191 [“Despite the fact [the prospective
rough life and was look [sic] to the gang to provide the support
in his life.” The prosecutor’s failure to cite this response in
giving her reasons for the excusal means it cannot be relied upon
as an independent ground for the peremptory challenge. (See
People v. Gutierrez, supra, 2 Cal.5th at p. 1167 [“When they
assess the viability of neutral reasons advanced to justify a
peremptory challenge by a prosecutor, both a trial court and [a]
reviewing court must examine only those reasons actually
expressed”].) Yet even if we cannot regard this as an additional
reason for the excusal, the trial court could have considered this
response, along with the rest of the record, when evaluating the
sincerity of the reasons the prosecutor did provide — including
the prospective juror’s friendships with gang members. (See
Mai, supra, 57 Cal.4th at p. 1054 [enumerating various factors
properly considered by the trial court as “bearing on the
prosecutor’s credibility”]; Lenix, supra, 44 Cal.4th at p. 625 [“it
is the trial court’s duty to ‘assess the plausibility’ of the
prosecutor’s proffered reasons for striking a potential juror ‘in
light of all evidence with a bearing on it’ ” (italics omitted)].)
38
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
juror] also stated on voir dire that he did not become involved
with gangs at high school and defendant’s being a Blood
‘wouldn’t mean a thing’ to him, the prosecutor may have
concluded the likelihood [the prospective juror] would evince
sympathy for defendant owing to his high school familiarity
with Bloods gang members was sufficient to warrant use of a
peremptory challenge”].)20
The third reason given by the prosecutor for excusing
Prospective Juror No. 179 was that he had some prior
knowledge of “D.F.J.,” with the prosecutor acknowledging that
the prospective juror “didn’t know if it was in connection to any
20
One of the dissents states that the prosecutor
“mischaracterized” Prospective Juror No. 179 as having both
childhood and current friendships with gang members, when in
fact he had only childhood friendships with these individuals.
(Dis. opn. of Liu, J., post, at p. 8.) Prospective Juror No. 179’s
voir dire responses did not make it entirely clear whether he
remained friends with some people who belonged, or had
belonged, to gangs. He gave affirmative answers to the
prosecutor’s questions that “You said in your life experience you
have known people who are gang members?” and “Friends with
some of them?” and he did not clarify that these were only past
friendships. Under the circumstances, any misstatement by the
prosecutor (if there was one) in stating, “He is friends with gang
members, has been friends with gang members in the past,” was
not an error indicative of pretext. Also, it may have been
apparent to all parties present at the time of defendant’s
Batson/Wheeler challenge that the prosecutor’s statement that
“He is friends with gang members, has been friends with gang
members in the past,” involved a clarification that the
relationships involved childhood friendships. The dissent’s
assumption that the prosecutor mischaracterized the
prospective juror’s responses fails to recognize the limitations
inherent in appellate review of a cold record, and it underscores
why we accord due deference to the trial court’s ruling.
39
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
crime.” Regarding this reason, the record establishes that the
prospective juror had heard of a gang associated with this case,
or at least, a gang he associated with the case. In his
questionnaire and in response to questioning by the trial court,
Prospective Juror No. 179 indicated he had heard of either
Dragon Family, Dragon Family Junior, or the Young Locs.
Upon subsequent questioning by the prosecutor about whether
he had heard of “this particular gang,” Prospective Juror
No. 179 indicated that he had, then referred to “V.F.N.”
Defendant asserts in his briefing that “V.F.N.” refers to an
altogether different gang, “V.F.L.” (short for “Vietnamese for
Life”), and that the prosecutor’s justification that the
prospective juror had heard of “D.F.J.” is undercut by the fact
that she never clarified what the prospective juror meant when
he referred to “V.F.N.” But “[a] party is not required to examine
a prospective juror about every aspect that might cause concern
before it may exercise a peremptory challenge.” (Jones, supra,
51 Cal.4th at p. 363.) And here, the circumstances were such
that the prosecutor might not have understood that any
clarification was needed. The prospective juror mentioned
“V.F.N.” just after he responded affirmatively to whether he had
heard of “this particular gang.” The prosecutor may not have
understood “V.F.N.” as referring to a gang other than Dragon
Family/Dragon Family Junior. Indeed, if the prosecutor
wrongly inferred or assumed that the prospective juror had
heard of Dragon Family/Dragon Family Junior, the record
suggests that both the trial court and defense counsel had the
same misimpression. In discussing the defense objection, the
trial court recalled that the prospective juror had heard of
“Dragon Family.” Defense counsel highlighted the limited
40
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
extent of the prospective juror’s knowledge, but he did not
dispute which gang the prospective juror had heard about.
Under the circumstances, any mistake or ambiguity
involved in the articulation of this reason does not indicate that
it or the prosecution’s other stated reasons were pretextual.
“There is ‘no Batson violation when the prosecutor excused a
prospective juror for a factually erroneous but race-neutral
reason.’ ” (Hardy, supra, 5 Cal.5th at pp. 79–80; see also
Manibusan, supra, 58 Cal.4th at p. 78 [discussing the
differences between mistakes and bias in jury selection].) In
giving her reasons, the prosecutor could have focused on the
prospective juror’s initial responses indicating knowledge of
Dragon Family/Dragon Family Junior or the Young Locs and his
acknowledgment of having heard about “this particular gang,”
overlooking the passing reference to “V.F.N.” Even if the record
did not clearly establish that the prospective juror had heard
about Dragon Family/Dragon Family Junior, as opposed to some
other gang he associated with the case, any mistaken
assumption by the prosecutor was similar to other minor errors
in prosecutors’ recitations of their reasons that we have found
inconsequential, particularly when other legitimate reasons
supported a strike. (See, e.g., Hardy, at pp. 79, 81 [prosecutor’s
mistaken recollection that a prospective juror had said police are
“ ‘ “not always truthful and tend to exaggerate,” ’ ” when the
prospective juror had actually said that about prosecutors, was
a “minor” discrepancy that did not provide a basis to overturn
the trial court’s ruling]; O’Malley, supra, 62 Cal.4th at p. 980
[prosecutor’s mistaken reference to a prospective juror as having
recalled and spoken of prejudice “does not establish that the
prosecutor’s stated reasons were pretexts for discrimination”].)
41
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
Nor is this reason so improbable as to suggest that race
played a part in the prosecutor’s decision. The prosecutor could
have been concerned that, given the prospective juror’s
childhood experiences with gangs and gang members as
described in his questionnaire and voir dire responses, any prior
knowledge he might have of Dragon Family/Dragon Family
Junior, even of a limited nature (as the prosecutor herself
conceded in offering this reason), could further detract from his
ability to view the evidence presented at trial from a fresh
perspective.
The fourth reason provided by the prosecutor was that
there was “some level of hesitation in giving the answer.” This
was also a facially race-neutral reason for exercising a
peremptory challenge. (See Reynoso, supra, 31 Cal.4th at
p. 917.) The dialogue that followed suggests that this “answer”
likely involved Prospective Juror No. 179’s statement that he
could not recall the conversation in which he heard of “this
particular gang,” but recalled “V.F.N.”
Defendant emphasizes that any hesitation by Prospective
Juror No. 179 in responding to the prosecutor was disputed by
defense counsel, was not expressly confirmed by the trial court,
and is not captured by the reporter’s transcript through the use
of a dash or other indication of a pause when the answer was
given. These contentions do not have the force that defendant
ascribes to them. Defense counsel disputed that there was any
hesitation generally, but he acknowledged that Prospective
Juror No. 179 “couldn’t really remember” the details of the
conversation at issue, with the prosecutor then saying, “That’s
my point.” This exchange suggests that the prosecutor may not
have been concerned about a pause in giving the answer, but
about some other kind of hesitation, such as a slowly articulated
42
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
response or one delivered in a faltering manner. Moreover, the
prosecutor referenced only “some level of hesitation.” For these
reasons, it is not particularly meaningful that the reporter’s
transcript does not reflect a pause in the giving of this answer,
whereas it does indicate pauses in some responses provided by
other prospective jurors. This difference does not demonstrate
the absence of “some level of hesitation” with Prospective Juror
No. 179 because the other prospective jurors’ responses may
have involved longer or more noticeable pauses, or because the
hesitation associated with Prospective Juror No. 179’s response
may have involved something other than a pause. At most, even
if this ground for excusing the prospective juror is “not explicitly
confirmed by the record,” we “cannot say the record contradicts”
it, and defendant’s arguments do not provide grounds for
withholding deference from the trial court’s ruling. (Mai, supra,
57 Cal.4th at p. 1052; compare Code Civ. Proc., § 231.7,
subd. (g)(2) [current rule requiring confirmation by the trial
judge and explanation by the party exercising a peremptory
challenge when the challenge is premised on a prospective
juror’s demeanor or inattentiveness].)21
21
One of the dissents asserts that the trial court “shifted
[the] focus” of the discussion after defense counsel disagreed
about Prospective Juror No. 179’s hesitation. (Dis. opn. of Liu,
J., post, at p. 4.) The purported shift, however, appears to have
involved the trial court’s recollection of the answer the
prosecutor had described as involving “some level of hesitation.”
After defense counsel said, “I disagree he gave any hesitation,
he answered the questions very forthrightly,” the trial court
began to respond, “Well, he had heard of Dragon Family, he
had — ,” only to be interrupted by defense counsel’s statement,
“[i]n an old conversation without any details, that he couldn’t
43
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
In sum, this is a situation in which, even if we were to
assume that one or two of the prosecutor’s reasons for a strike
might raise concerns if viewed in isolation, “the persuasive
power of all of them, taken together” warrants the “usual
deference to the trial court’s assessment of the prosecutor’s
sincerity.” (People v. Jones (2013) 57 Cal.4th 899, 918; see also
Nadey, supra, 16 Cal.5th at p. 137 [“Because the court appeared
to judge the prosecutor’s credibility in light of ‘the reasons as a
whole,’ and did not ‘focus[] on a single stated reason to the
exclusion of others’ [citation], and because the court was
uniquely positioned to evaluate the prosecutor’s demeanor in
determining his credibility [citation], its ruling is entitled to
deference”]; Smith, supra, 4 Cal.5th at pp. 1153, 1156, 1157
[viewing the record as a whole, substantial evidence supported
the trial court’s denial of Batson challenges involving two
prospective jurors even though, as to one of these jurors, some
of the reasons given by the prosecutor “either lack record
support or do not withstand comparison to the prosecutor’s
treatment of other jurors” and, as to the other, one of the
prosecutor’s reasons “rings false” and another was “not borne
out by the record”]; Manibusan, supra, 58 Cal.4th at p. 78
[“Given the ambiguity regarding the [foundation for one of the
really remember.” The trial court resumed, “Well — ,” with the
prosecutor then interjecting, apparently in response to defense
counsel, “That’s my point.” Defense counsel then stated, “I have
made the objection.” This discussion is more indicative of
engagement by the trial court with the hesitation reason
advanced by the prosecutor than any attempt by it to shift the
conversation. And ultimately, the court reasonably could have
determined that the prosecutor’s additional explanation of her
concern and defense counsel’s submission of the issue made
further discussion of the reason unnecessary.
44
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
prosecutor’s stated reasons] and the prosecution’s articulation
of other, unquestionably legitimate grounds for the challenge,
we find no error in the trial court’s ruling”].)22 Applying the
deferential standard of review that is appropriate here in light
of the trial court’s superior ability to assess the prosecutor’s
credibility and the totality of the circumstances associated with
the peremptory challenge, we conclude that the record provides
adequate support for the trial court’s finding that the
prosecutor’s peremptory challenge was not motivated by race-
based discrimination but instead was premised on the race-
neutral reasons she provided.23
Our conclusion that substantial evidence supports the
trial court’s ruling is not disturbed by defendant’s comparison of
Prospective Juror No. 179 with others who ultimately served on
22
The trial court at one point stated that “[t]he question is
whether or not there are any race neutral grounds” (italics
added). But it then followed up by stating, “there appear to be
race neutral grounds,” and it previously stated, in response to
the prosecutor’s statement of reasons, “They appear to be race
neutral” (italics added). The court’s comments, taken together,
indicate it considered the prosecutor’s reasons collectively in
assessing her credibility.
23
The dissents, applying de novo review, would find a
violation of Batson and Wheeler. Viewing the reasons given by
the prosecutor individually, the dissenting justices find all of
them wanting. (Dis. opn. of Liu, J., post, at p. 12; dis. opn. of
Evans, J., post, at p. 15.) As has been explained, de novo review
is inappropriate here, and the governing standard of review does
not allow us to substitute our own subjective views of who would
have been a good juror, or not, in this trial. Although the
reasons given by the prosecutor vary to some extent in their
obviousness and the extent to which they find support in the
record, viewed as a whole they provide adequate grounds for
upholding the trial court’s ruling.
45
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
the jury. Defendant argues that seated jurors of other races
provided responses during jury selection that indicated they
could have been excused for reasons similar to those invoked by
the prosecution in excusing Prospective Juror No. 179.
Defendant notes that two individuals who ultimately served on
his jury (Prospective Jurors No. 196 and 274) were engineers
and a third (Prospective Juror No. 182) was an engineering
student. Defendant also stresses that one of the engineers
seated as a juror (Prospective Juror No. 274) said in his jury
questionnaire that he had heard about the Dragon
Family/Dragon Family Junior or Young Locs gang from a story
in the local newspaper, another juror (Prospective Juror
No. 255) indicated she had some familiarity with the case
through media reports, and a third (Prospective Juror No. 200)
thought the case sounded “vaguely familiar,” but “couldn’t recall
anything specific.” Finally, defendant notes that another juror
(Prospective Juror No. 160) said that her son had been friends
with a gang member, and defendant reads the record as
indicating she gave this response in a hesitant or halting
manner. The prosecutor’s failure to exercise peremptory
challenges against these jurors, defendant argues, exposes the
prosecution’s excusal of Prospective Juror No. 179 as having
been based on race.
We disagree. Prospective Juror No. 160’s possible
hesitation and her remote familiarity with a gang member
through her son, other jurors’ knowledge of the case through
media reports, and the fact that some other jurors were
engineers or an engineer in training do not establish that they
were similarly situated to Prospective Juror No. 179. With some
of these jurors, there are only tenuous grounds for any
comparison. For example, Prospective Juror No. 160 “couldn’t
46
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
even identify” the son’s friend, and said that, in any event, “[w]e
got him away from that.”
More fundamentally, the suite of answers provided by
Prospective Juror No. 179 during jury selection materially
distinguished him from the jurors defendant now identifies as
comparable. (See O’Malley, supra, 62 Cal.4th at p. 977 [noting
that the critical question in conducting comparative juror
analysis for the first time on appeal is whether “there were any
material differences among the jurors — that is, differences,
other than race, that we can reasonably infer motivated the
prosecutor’s pattern of challenges”].) Although “a comparison
between the challenged juror and a similar nonchallenged juror
in regard to any one of the prosecutor’s stated reasons is
relevant, but not necessarily dispositive, on the issue of
purposeful discrimination” (Miles, supra, 9 Cal.5th at p. 543),
the forcefulness of defendant’s argument is lessened by the fact
that “[n]one of the jurors brought to our attention by defendant
expressed a substantially similar combination of responses to
the responses provided by” Prospective Juror No. 179. (People
v. DeHoyos (2013) 57 Cal.4th 79, 107; see also People v. Watson
(2008) 43 Cal.4th 652, 676.) Among the differences that
materially distinguished Prospective Juror No. 179 from other
candidates for jury service, none of the prospective jurors
identified by defendant said that “a lot of” their friends were
gang members while growing up and, after connecting their
profession as an engineer to an attention to detail, agreed that
their work was “very precise.”
Furthermore, “[a] party concerned about one factor need
not challenge every prospective juror to whom that concern
applies in order to legitimately challenge any of them. ‘Two
panelists might give a similar answer on a given point. Yet the
47
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
risk posed by one panelist might be offset by other answers,
behavior, attitudes or experiences that make one juror, on
balance, more or less desirable.’ ” (Jones, supra, 51 Cal.4th at
p. 365.) This observation is relevant to our evaluation of
Prospective Juror No. 274, whom defendant characterizes as
similarly situated to Prospective Juror No. 179 in multiple
respects. As has been noted, Prospective Juror No. 274 was an
engineer. He indicated in his jury questionnaire that he had
learned about the case from an article in that day’s Orange
County Register. He explained, “Article about jury selection.
Summarized case. The deceased were not gang members. Tried
to escape in car. Got cornered. Got shot. Possible death
penalty.” When asked in the questionnaire if he had already
formed an opinion regarding defendant’s guilt, he answered
“Yes,” stating that in his opinion defendant was “[m]ost likely
guilty” and that he “would need strong proof of innocence.” The
prosecutor could have concluded that these answers justified
retaining Prospective Juror No. 274 on the jury notwithstanding
any concerns she may have had regarding his profession as an
engineer and his prior knowledge about the case.
Defendant also argues that the prosecution’s failure to
examine other jurors who were engineers or an engineer in
training about their profession, or Prospective Juror No. 160
about her son’s past friendship with a gang member, casts doubt
on her motives in excusing Prospective Juror No. 179. (See
Flowers v. Mississippi (2019) 588 U.S. 284, 308 (Flowers)
[“disparate questioning can be probative of discriminatory
intent”].) This argument is unpersuasive here. First of all, it is
not entirely accurate. The prosecutor’s questioning of
Prospective Juror No. 274 probed whether this candidate, in
making a penalty determination, would simply sum up the
48
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
number of aggravating factors found to exist and compare them
to the number of mitigating factors, with the prosecutor
stressing that there was no “math formula” to the penalty
calculation. Although the prosecutor did not explicitly tie these
questions to the prospective juror’s profession as an engineer, it
echoed her earlier questioning of Prospective Juror No. 179.
The prosecutor also asked a few questions similar to those posed
to Prospective Juror No. 179 to Prospective Juror No. 174, who
identified himself in his juror questionnaire as Caucasian and
whose work experience included time as a clinical laboratory
scientist. During voir dire, the prosecutor confirmed with this
prospective juror that he had some scientific training and then
asked whether he understood that the role of the juror was “a
little bit different than exact sciences.” The prosecutor would
later exercise one of her peremptory challenges on Prospective
Juror No. 174.
Moreover, there are ready explanations why the
prosecutor might not have delved into these subjects with the
other prospective jurors identified by defendant. Among the
relevant prospective jurors, only Prospective Juror No. 179 was
asked by the defense whether he had qualities such as an
attention to detail that might make him a good juror and
responded by drawing a connection between an attention to
detail and his profession as an engineer. So only for Prospective
Juror No. 179 would the prosecutor have been prompted to
respond in kind. (See Flowers, supra, 588 U.S. at p. 310
[acknowledging that “disparate questioning . . . of . . .
prospective jurors [of different races] may reflect ordinary race-
neutral considerations”].) And the prosecutor may have been
satisfied with the trial court’s voir dire of Prospective Juror
49
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
No. 160, through which it was established that she could not
even identify the son’s friend who belonged to a gang.
Comparative juror analysis therefore does not provide
substantial support for defendant’s argument that the
prosecutor’s exercise of a peremptory challenge against
Prospective Juror No. 179 was motivated by race. For this and
the other reasons provided above, we reject defendant’s
Batson/Wheeler claim.24
24
One of the dissents has identified training materials that
were obtained by the American Civil Liberties Union of
Northern California in response to a Public Records Act request
in 2019, and were apparently used to instruct unknown
prosecutors in various California counties regarding jury
selection. (Dis. opn. of Evans, J., post, at pp. 4–12.) The dissent
proffers its own interpretation of certain excerpts drawn from
these training materials and asserts that principles described in
those selected excerpts might be used to provide cover for
impermissible racial discrimination by informing unscrupulous
prosecutors how they might hide their discriminatory motives.
These training materials are not in the record, are not the
subject of judicial notice, were not raised by the parties, and are
not properly before us. We have no reason to speculate how and
to whom the excerpts may have been presented or how they
might have been interpreted by their audiences, among other
things. Rather than point to other excerpts from the training
materials that note the importance of complying with Batson
and Wheeler, we simply emphasize that “ ‘ “ ‘[w]e presume that
a prosecutor uses peremptory challenges in a constitutional
manner.’ ” ’ ” (Mai, supra, 57 Cal.4th at p. 1048.) We do not
presume the opposite. The trial court found that the
prosecutor’s peremptory challenge here was not motivated by
racial bias, and the record supports the trial court’s conclusion.
Under well-settled law, the trial court’s order should be
affirmed. The extraneous training materials cited by the dissent
do not undermine that conclusion.
50
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
B. Corroboration of Accomplice Testimony
Defendant argues that Villegas’s and Do’s testimony was
insufficiently corroborated by other evidence introduced at trial.
We disagree.
As summarized earlier, Villegas and Do testified
regarding the circumstances surrounding the shooting, with
both witnesses identifying defendant as the shooter. The jury
was instructed with a modified version of CALCRIM No. 335
that identified Villegas, Do, and Donny Nguyen as accomplices
and explained that the jury could not convict defendant of a
charged crime or find the gang-murder special circumstance
true based on their statements or testimony alone; instead, their
statements and testimony had to be supported by independent
evidence that tended to connect defendant to the commission of
the crimes. Defendant asserts that other evidence introduced at
trial fell short of providing the necessary corroboration. 25
Section 1111 provides, “A conviction can not be had upon
the testimony of an accomplice unless it be corroborated by such
other evidence as shall tend to connect the defendant with the
commission of the offense; and the corroboration is not sufficient
if it merely shows the commission of the offense or the
circumstances thereof.” The statute defines an “accomplice” as
someone “who is liable to prosecution for the identical offense
charged against the defendant on trial in the cause in which the
25
As to this and certain other claims, defendant argues that
an alleged violation of state law also violated his federal
constitutional rights. “ ‘[N]o separate constitutional discussion
is required, or provided, when rejection of a claim on the merits
necessarily leads to rejection of [the] constitutional
theory . . . .’ ” (People v. Bryant, Smith and Wheeler (2014)
60 Cal.4th 335, 364.)
51
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
testimony of the accomplice is given.” (Ibid.) “Section 1111
serves to ensure that a defendant will not be convicted solely
upon the testimony of an accomplice because an accomplice is
likely to have self-serving motives.” (People v. Davis (2005)
36 Cal.4th 510, 547.)
The corroboration that section 1111 requires “ ‘ “may be
established entirely by circumstantial evidence” ’ ” and “ ‘ “ ‘may
be slight and entitled to little consideration when standing
alone.’ ” ’ ” (People v. Slaughter (2002) 27 Cal.4th 1187, 1204.)
“It is only required that the evidence ‘ “ ‘tends to connect the
defendant with the commission of the crime in such a way as
may reasonably satisfy the jury that the [accomplice] is telling
the truth.’ ” ’ ” (People v. Miranda (1987) 44 Cal.3d 57, 100
(Miranda); see also People v. Perry (1972) 7 Cal.3d 756, 769
[independent “ ‘evidence need not corroborate the accomplice as
to every fact to which [the accomplice] testifies’ ”].) The
necessary corroboration may involve a defendant’s own
statements. (People v. Williams (1997) 16 Cal.4th 635, 681.)
The accomplice testimony at defendant’s trial was
adequately corroborated by independent evidence. This
additional evidence included: (1) the location of Harrison
Pham’s Lexus and Do’s green Acura close to defendant’s
residence after the shooting, with an eyewitness having followed
the Acura there from the crime scene; (2) testimony from Tran’s
brother and cousin that the shooter was slim, tall, and dressed
in black; (3) forensic evidence that the bullets fired into the
black Acura were either .357 or .38 caliber, ammunition that
could be fired from a revolver such as the one Do saw defendant
possess; (4) the seizure of a cell phone connected to defendant
52
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
from the Lexus;26 (5) evidence indicating that this phone
“pinged” off a cell phone tower or towers close to Alerto’s and the
scene of the shooting around the timeframe when the shooting
occurred, and that its user made calls to and received calls from
phone numbers associated with other Dragon Family/Dragon
Family Junior members on the evening of the shooting;
(6) instant messages by the user everybodykilla22 stating,
among other things, “i blast three n****z”; (7) forensic evidence
suggesting that defendant, while in Arizona, searched the
internet for outstanding warrants in his name; and (8) lyrics in
defendant’s handwriting, found in defendant’s Arizona
residence, in which the writer identified himself as a “DFJ” gang
member and which described murdering the “enime” in “OC”
and “coming to take your life” while wearing black. This
evidence “ ‘ “ ‘tend[ed] to connect the defendant with the
commission of the crime[s] in such a way as [could] reasonably
satisfy the jury that the [accomplices were] telling the truth.’ ” ’ ”
(Miranda, supra, 44 Cal.3d at p. 100.)
C. Claims Relating to Third Party Culpability
1. Failure to instruct on third party culpability
Defendant argues that the trial court committed
reversible error by failing to instruct the jury sua sponte
regarding how it should consider evidence of third party
26
Defendant, noting that the phone was found in Harrison
Pham’s Lexus, argues that another gang member could have
been using the device on the night of the shooting. While that
is possible, Villegas and Do, as well as the eyewitness who
pursued the Lexus from the scene of the shooting, all testified to
a swap of passengers between or across vehicles after the
shooting had occurred. The jury could have concluded that
defendant possessed his phone that evening up until that time.
53
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
culpability in determining whether the prosecution had met its
burden of proof. Defendant argues that such an instruction was
necessary for the jury to adequately consider evidence that
someone other than defendant shot the victims. We find no
error.
a. Facts
The instructions that were given to the jury at the close of
the guilt phase included CALCRIM No. 220, portions of which
provided, “A defendant in a criminal case is presumed to be
innocent. This presumption requires that the People prove a
defendant guilty beyond a reasonable doubt,” and “[u]nless the
evidence proves a defendant guilty beyond a reasonable doubt,
he is entitled to an acquittal and you must find him not guilty.”27
The defense did not request an instruction that specifically
addressed the relationship between the burden of proof and
evidence of third party culpability.
Defendant now argues that the court should have
instructed the jury along the following lines: “You have heard
evidence that a person other than the defendant may have
committed the offenses with which the defendant is charged.
The defendant is not required to prove the other person’s guilt.
27
The jury also was instructed with CALCRIM No. 373,
which, as given at trial, provided, “The evidence shows that
other persons may have been involved in the commission of the
crimes charged against the defendant. There may be many
reasons why someone who appears to have been involved might
not be a co-defendant in this particular trial. You must not
speculate about whether those other persons have been or will
be prosecuted. Your duty is to decide whether the defendant on
trial here committed the crimes charged. [¶] This instruction
does not apply to the testimony of Aaron Villegas, Quang Do,
and Donny Nguyen.”
54
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
It is the prosecution that has the burden of proving the
defendant guilty beyond a reasonable doubt. Therefore, the
defendant is entitled to an acquittal if you have a reasonable
doubt as to the defendant’s guilt. Evidence that another person
committed the charged offense may by itself leave you with a
reasonable doubt as to the determination. However, its weight
and significance, if any, are matters for your determination. If
after considering all of the evidence, including any evidence that
another person committed the offense, you have a reasonable
doubt that the defendant committed the offense, you must find
the defendant not guilty.”
b. Analysis
The legal principles pertinent to defendant’s claim of
instructional error “ ‘are clear.’ ” (People v. Gutierrez (2009)
45 Cal.4th 789, 824 (Gutierrez).) “ ‘A trial court has a duty to
instruct the jury “sua sponte on general principles which are
closely and openly connected with the facts before the court.” ’ ”
(Ibid.) A trial court also “ ‘has a sua sponte duty to give
instructions on the defendant’s theory of the case, including
instructions “as to defenses ‘ “that the defendant is relying
on . . . , or if there is substantial evidence supportive of such a
defense and the defense is not inconsistent with the defendant’s
theory of the case.” ’ ” ’ ” (Ibid.) Yet when “ ‘instructions relate
particular facts to a legal issue in the case or “pinpoint” the crux
of a defendant’s case, such as mistaken identification or alibi,’ ”
such instructions “ ‘are required to be given upon request when
there is evidence supportive of the theory, but they are not
required to be given sua sponte.’ ” (Ibid.) More generally, “[a]
trial court has no sua sponte duty to revise or improve upon an
accurate statement of law without a request from counsel
[citation], and failure to request clarification of an otherwise
55
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
correct instruction forfeits the claim of error for purposes of
appeal.” (People v. Lee (2011) 51 Cal.4th 620, 638.)
We have previously rejected arguments of instructional
error similar to the one raised by defendant. We have explained
that a specific instruction that describes how evidence of third
party culpability may give rise to reasonable doubt is
unnecessary because standard instructions regarding the
presumption of innocence and the People’s burden of proving
guilt beyond a reasonable doubt provide adequate guidance to
the jury. (E.g., Gutierrez, supra, 45 Cal.4th at p. 825 [“Because
the jury was properly instructed as to these issues, and because
the jury could have acquitted defendant had it believed that a
third party was responsible for [the victim’s] death, no third
party culpability instruction was necessary”]; People v. Abilez
(2007) 41 Cal.4th 472, 517 (Abilez) [“no special instruction on
third party culpability was necessary to apprise the jury of the
pertinent legal principles”]; see People v. Saille (1991) 54 Cal.3d
1103, 1120 [explaining that the court need not sua sponte
instruct the jury regarding the evaluation of evidence offered “in
an attempt to raise a doubt on an element of a crime which the
prosecution must prove beyond a reasonable doubt”].)
We reach the same conclusion here. Defendant’s jury was
instructed on the presumption of innocence and the People’s
burden of proving defendant’s guilt beyond a reasonable doubt.
The jury would have acquitted defendant had it concluded that
the prosecution had not met this burden, as would be true if the
jury harbored reasonable doubt whether defendant was the
shooter. No additional instructions were required. And while
this point is not critical to the analysis, we also observe that at
closing argument the defense pressed the theory that the
victims had been shot by someone other than defendant. This
56
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
argument drove home that the jury could consider evidence of
third party culpability in its deliberations, as the instructions
indicated they could.
Defendant acknowledges this court’s holdings in Gutierrez
and Abilez, but he regards this case as distinguishable due to
the purported “lack of overwhelming evidence of guilt, and the
presence of overwhelming evidence of third party culpability.”
This asserted balance of evidence, defendant contends, means
that “[t]he fact the jury was instructed on the standard
instructions of reasonable doubt, burden of proof and
presumption of innocence was not sufficient to render the error
harmless in light of the other instructions given.” We disagree
with defendant’s characterization of the evidence of third party
culpability in this case as “overwhelming.” But, in any event,
the purported weight of the evidence does not change the
analysis. Just as in Gutierrez and Abilez, the jury here received
instructions sufficient to guide its assessment of evidence of
third party culpability, whatever its weight, and the trial court
had no sua sponte responsibility to provide additional direction.
Defendant argues in the alternative that his trial counsel
was ineffective for failing to request an instruction regarding
evidence of third party culpability as it relates to the burden of
proof. He claims that “there could be no possible tactical reason
for not requesting [the] instruction.”
This argument implicates the well-established principles
applicable to claims of ineffective assistance of counsel raised on
direct appeal. “A convicted defendant’s claim that counsel’s
assistance was so defective as to require reversal of a conviction
or death sentence has two components. First, the defendant
must show that counsel’s performance was deficient. This
requires showing that counsel made errors so serious that
57
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment. Second, the defendant
must show that the deficient performance prejudiced the
defense. This requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.” (Strickland v. Washington (1984) 466 U.S.
668, 687 (Strickland).) Regarding deficient performance,
“ ‘Unless a defendant establishes the contrary, we shall presume
that “counsel’s performance fell within the wide range of
professional competence and that counsel’s actions and
inactions can be explained as a matter of sound trial strategy.” ’
[Citation.] When the record on direct appeal sheds no light on
why counsel failed to act in the manner challenged, defendant
must show that there was ‘ “ ‘no conceivable tactical purpose’ ”
for counsel’s act or omission.’ ” (People v. Centeno (2014)
60 Cal.4th 659, 674–675 (Centeno).)
Defendant has not shown he received ineffective
assistance in violation of constitutional guarantees.
Defendant’s trial counsel reasonably could have concluded that
the instructions given to the jury provided it with adequate
direction regarding how to consider evidence of third party
culpability. (See People v. Rangel (2016) 62 Cal.4th 1192, 1224
(Rangel) [“ ‘[T]he reasonable doubt instructions give defendants
ample opportunity to impress upon the jury that evidence of
another party’s liability must be considered in weighing
whether the prosecution has met its burden of proof’ ”].)
Counsel also could have reasonably regarded an additional
instruction, such as the one now proposed by defendant, as
repetitive of the instructions that were provided, and potentially
confusing to the jury. The adequacy of the instructions that
were given also defeats any claim of prejudice. (See Gutierrez,
58
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
supra, 45 Cal.4th at p. 825; Abilez, supra, 41 Cal.4th at pp. 517–
518.) Defendant has therefore not established either prong of
an ineffective assistance of counsel claim.
2. Failure to grant continuance
Defendant contends that the trial court erred when it
denied a continuance to allow for a further inquiry into why
DNA found on the black bandana seized from Do’s Acura was
initially attributed to an individual unrelated to the case before
it was identified as belonging to Eric Pham. We find no abuse
of discretion and no violation of defendant’s constitutional right
to due process.
a. Facts
Months before trial, the prosecution provided the defense
with discovery indicating that DNA found on the black bandana
retrieved by police from Do’s Acura matched the DNA of an
individual named Henry Pham, who otherwise had no
connection with the case. On April 17, 2009, the prosecution
advised the defense that a later comparison of the DNA on the
bandana with the DNA of Henry Pham found no match. The
prosecutor had no explanation for the different results. The trial
court asked the prosecutor to step outside and spoke with
defense counsel in chambers. Counsel told the court they
believed Eric Pham’s DNA would be found on the bandana.
Back in open court, the trial court stated that “it would be
ineffective assistance of counsel for counsel not to pursue this
particular issue.” At the court’s urging, the parties agreed that
DNA samples would be obtained, if possible, from Harrison
Pham, Danny Duong, Aaron Villegas, and Eric Pham, and
tested to see if they matched the DNA profile on the bandana.
59
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
On Wednesday, April 22, 2009, the prosecutor informed
the court and the defense that the DNA profile drawn from the
bandana matched Eric Pham’s DNA. The prosecutor stated that
the original attribution of the DNA to Henry Pham owed to a
mix-up in the collection of the DNA used in the earlier DNA
comparison.
Defense counsel argued that this error warranted
additional investigation. Agreeing, the trial court inquired if
Eric Pham, then housed at the county jail, could be brought to
the courtroom. Pham and his attorney appeared that afternoon.
Pham testified that he had provided a DNA sample about a year
earlier, while housed at the county jail. He and Henry Pham
were both housed in the same cellblock at the jail, a few cells
apart. At the hearing, Eric Pham testified that he gave the
sample one night after the last name “Pham” was called over a
jail loudspeaker and his cell door opened. When he provided
that sample, he gave his name as “Eric.” No one asked him to
repeat his name or show his identification band when he
provided the sample.
In a subsequent chambers conference without the
prosecutor present, defense counsel told the trial court that they
believed the circumstances surrounding the earlier DNA
collection were still unclear and that Eric Pham was more
closely involved in the shooting than he claimed to be. Counsel
explained that they wanted to explore the possibility that Eric
Pham had engineered the DNA mix-up to disguise his
involvement in the charged crimes. The defense sought
discovery, including jail records, regarding the acquisition of the
earlier DNA sample, and they requested “some delay, maybe
just a few days” so that a defense expert could look at the DNA
results the prosecution had referenced earlier that day. The
60
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
trial court stated that it intended to begin jury selection on
April 27, and it gave the defense, in the court’s words, “the rest
of this week to do whatever goose chasing you want to do.”
Returning to the courtroom, the court urged the prosecutor to
provide the defense with records relating to the collection of the
earlier DNA sample at the jail.
Jury selection began on April 27, 2009, as the trial court
had anticipated. One week later, on May 4, defense counsel
informed the court he had “something just for the record.”
Counsel said that the defense had received discovery relating to
the earlier collection and testing of DNA from the prosecution
and requested a continuance of “about four weeks” to seek
additional discovery and for his expert to review whatever
records would be disclosed. Counsel explained, “I’m still trying
to show a link rather than just coincidence, that somehow Eric
Pham orchestrated this in order to protect himself from exactly
what occurred.” The prosecutor said that she had provided the
defense with everything the Department of Justice had given
her relating to the collection and testing of the earlier DNA
sample. Defense counsel responded, “The prosecution says they
can’t find it. I think I need an opportunity to see if I can find it.”
The court ruled, “I’m not going to grant the continuance at this
point. We’re going to proceed.”
b. Analysis
A criminal trial may be continued only upon a showing of
good cause. (§ 1050, subd. (e).) The trial court has broad
discretion in determining whether good cause exists. (People v.
Jenkins (2000) 22 Cal.4th 900, 1037.) In deciding whether to
grant a continuance, “The court must consider ‘ “ ‘not only the
benefit which the moving party anticipates but also the
61
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
likelihood that such benefit will result, the burden on other
witnesses, jurors and the court and, above all, whether
substantial justice will be accomplished or defeated by a
granting of the motion.’ ” ’ ” (People v. Doolin (2009) 45 Cal.4th
390, 450 (Doolin).) The court’s “discretion ‘may not be exercised
so as to deprive the defendant or his attorney of a reasonable
opportunity to prepare.’ [Citation.] ‘To effectuate the
constitutional rights to counsel and to due process of law, an
accused must . . . have a reasonable opportunity to prepare a
defense and respond to the charges.’ ” (People v. Roldan (2005)
35 Cal.4th 646, 670 (Roldan).) Yet, “to demonstrate the
usefulness of a continuance” sought to acquire additional
evidence, “a party must show both the materiality of the
evidence necessitating the continuance and that such evidence
could be obtained within a reasonable time.” (People v. Beeler
(1995) 9 Cal.4th 953, 1003 (Beeler).)
A trial court’s denial of a continuance is reviewed for an
abuse of discretion (People v. Mora and Rangel (2018) 5 Cal.5th
442, 508), with the unsuccessful movant having the burden of
establishing error (Beeler, supra, 9 Cal.4th at p. 1003). On
review, when it is asserted that the denial of a continuance
violated a defendant’s constitutional due process rights, “There
are no mechanical tests for deciding when a denial of a
continuance is so arbitrary as to violate due process. The
answer must be found in the circumstances present in every
case, particularly in the reasons presented to the trial judge at
the time the request is denied.” (Ungar v. Sarafite (1964)
376 U.S. 575, 589.)
The trial court acted within its discretion when it denied
defendant’s request for a four-week continuance. In moving for
a continuance, the defense did not establish good cause for such
62
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
a lengthy delay. (See People v. Snow (2003) 30 Cal.4th 43, 75
[“Counsel’s bare assertion that they would need 30, 45, or 60
days to complete their examination of the paint samples did not
constitute good cause for such a lengthy continuance, especially
as the prosecution had not even begun to present its own
case”].)28 The trial court had already inquired into the mistaken
DNA identification through the earlier evidentiary hearing. It
reasonably could have concluded that the extra time requested
by the defense was unlikely to yield additional records that
would meaningfully bolster its theory of an orchestrated mix-up;
that any defense expert already had adequate time to review the
records that had been produced; and that, especially with jury
selection having commenced, the speculative prospect of helpful
additional records was outweighed by the burdens that likely
would result from the substantial delay requested by the
defense.29 Accounting for these considerations, the trial court’s
denial of the continuance did not deny defendant a reasonable
opportunity to develop a defense and was not an abuse of its
discretion. (See Doolin, supra, 45 Cal.4th at p. 451 [upholding
the denial of a continuance where the defendant “made no
showing that he could produce specific, relevant mitigating
evidence within a reasonable time”]; Roldan, supra, 35 Cal.4th
at p. 670; People v. Roybal (1998) 19 Cal.4th 481, 505 [no abuse
of discretion in denying a continuance when the defense offered
only “vague expressions of hope” that additional time would lead
to the identification of a helpful expert].) Consistent with this
28
The prosecution rested, and the defense began to put on
its case, on May 18, 2009, two weeks after the continuance
request.
29
As indicated, the parties stipulated to the presence of Eric
Pham’s DNA on the bandana found in the green Acura.
63
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
conclusion, we find no violation of defendant’s due process
rights.
D. Admission of Instant Messages and Handwritten
Lyrics
Defendant argues that the trial court erred when it
allowed the prosecution to introduce the instant messages and
handwritten lyrics seized from the Arizona apartment where he
was found by law enforcement. In his original merits briefing,
defendant challenged only the admissibility of the handwritten
lyrics, arguing that they should have been excluded pursuant to
Evidence Code section 352 and that their admission violated his
rights to due process and a fair trial. In a supplemental brief,
defendant later argued that both these lyrics and the instant
messages constitute creative expressions covered by Evidence
Code section 352.2, a recently enacted statute (Stats. 2022,
ch. 973, § 2) that requires a trial court to take specific
considerations into account when determining the admissibility
of creative material. Defendant also contends that Evidence
Code section 352.2 applies retroactively to his case, which was
tried before that statute entered into effect, and that under the
statute’s terms, neither the instant messages nor the lyrics
should have been admitted.
We conclude, first, that Evidence Code section 352.2 does
not apply retroactively to this case. Statutes are presumed to
operate only prospectively, and this statute, which articulates a
rule of evidence, does not implicate the contrary presumption of
retroactive application that adheres to certain kinds of
ameliorative legislation that have a sufficiently close
relationship to the reduction of punishment. This conclusion
means we need not address the admissibility of the instant
messages, since defendant has not argued they are inadmissible
64
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
under Evidence Code section 352. Addressing the lyrics’
admissibility under Evidence Code section 352 and relevant
constitutional principles, we find no abuse of discretion by the
trial court and no violation of defendant’s constitutional rights.
1. Facts
Defendant brought a motion in limine prior to trial to
exclude the handwritten lyrics obtained from the Arizona
apartment where he was found in March 2004. The defense
argued that the handwritten lyrics had not been adequately
connected to defendant, were irrelevant insofar as they were
seized months after the killing, and were unduly prejudicial
under Evidence Code section 352.
The prosecution’s opposition to the motion in limine
characterized the lyrics as “highly relevant and probative” on
the issues of defendant’s motive and intent, and the identity of
the shooter. At a pretrial hearing, the court denied defendant’s
motion to exclude the lyrics, regarding them as relevant to the
issues of motive and intent in connection with the charge of
active participation in a criminal street gang.
During her opening statement, the prosecutor quoted a
portion of a statement, appearing in both the lyrics and in the
instant messages obtained from the Arizona computer, as
follows: “ ‘[n]****z cant see me for the fact that I stay with my
black beanie disguise. So don’t be surprised when these guys
dressed in black are coming to take your life.’ ”30 The prosecutor
30
Addressing the racial slur appearing in the instant
messages and lyrics, the prosecutor said during her opening
statement that defendant “doesn’t use it as a racial slur on
African-Americans,” but as “gangster stuff.” She told the jury,
65
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
also referred to the lyrics by saying that in his writings,
defendant more generally “talks about [how] the streets of O.C.
are his and his gang’s.”
The jury heard testimony regarding the seizure of the
lyrics at defendant’s Arizona apartment. During the subsequent
examination of Detective Walker, the prosecutor asked about
lines she quoted as, “black fitted Detroit Tigers baseball cap, but
the D stands for Dragon. That’s believed that n***a checked the
tat on my back. Fool I stay strapped. .357 was 187 with 357’s,
A.K.’s and all that.”31 Detective Walker described these lines as
“talking about or writing about the gang lifestyle, and the life
the gangsters lead.” Asked about lyrics quoted as, “bailing in all
black in the black Cadillac with the black tint in the back and
the black strap on my lap,” and “black gangsta baseball cap with
the hood on the front and my name on the back,” Walker
testified that in his opinion, these lyrics were “consistent with
the gang lifestyle.” Regarding the lines, as read by the
prosecutor, “N****z can’t see me for the fact that I stay with my
black beanie disguise, so don’t be surprised when the guys
dressed in black are coming to take your life,” Walker testified
that black clothing was consistent with Dragon Family’s colors
and identifiers.
“He can use it as a term of affection, and you’ll see that through
some of the things he’s written, or he uses it to talk about other
people, enemies sometimes, other folks, cops.”
31
This discussion repeats the prosecutor’s phrasing of her
questions, as captured in the reporter’s transcript of trial
proceedings. As we have explained (see fn. 11, ante), in
addressing this claim, except as otherwise noted we quote and
address the lyrics as they were written and appear in People’s
Exhibit 110.
66
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
When the prosecutor attempted to read more lyrics into
the record, the court interrupted and asked to see counsel at
sidebar. The court said that “[t]he documents kind of speak for
themselves,” and that reading them into the record was a waste
of time. When the prosecutor read a few more lines into the
record after the sidebar, the defense objected under Evidence
Code section 352. The court sustained the objection and ordered
the question stricken. Upon further questioning, the gang
expert testified that he had relied upon the handwritten lyrics,
as well as the instant messages, in forming his opinion that
defendant was a member of the Dragon Family/Dragon Family
Junior gang at the time of the fatal shooting.
The handwritten lyrics were not formally admitted as an
exhibit until after the last guilt phase witness testified. Just
prior to closing arguments, the parties met with the court to
discuss the admission of trial exhibits. At that time the defense
objected to the admission of the handwritten lyrics on the
ground that they merely constituted “a lot of talk about guns
and straps, and the sort of poetic stuff about, you know, being
around, creeping around at nighttime, and driving in Cadillacs
and shooting guns, and just all this kind of stuff that does not at
all speak in any manner whatsoever to the homicide in question
before the jury.” Assisting counsel for the defense urged the
court to read the lyrics and perhaps “decide it is all coming in,”
or “decide none of it is coming in, or the court might decide
maybe we need to take some of it out and redact it, whatever.”
The court indicated it was prepared to review the lyrics. After
another topic was briefly discussed, the prosecutor returned to
the lyrics’ admissibility and argued that they should be
admitted insofar as Detective Walker had relied upon them in
forming his opinion that defendant was a member of Dragon
67
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
Family/Dragon Family Junior at the time of the charged crimes.
When the prosecutor referenced the first few pages, the court
said that “[i]f you stop at those two [pages], that is acceptable,
the rest of it seems a bit much.” Following further explanation
by the prosecutor, the court added that “the last four pages seem
to me to be nothing more than rap lyrics that didn’t add
anything to the first three pages.” The prosecutor offered to
redact repetitive portions of the lyrics, while indicating that she
did not regard the first two pages, or specific passages appearing
on the third and fourth pages, as repetitive. The court said,
“Okay, why don’t you submit to the court the ones you think
should be in.”
When the discussion resumed shortly thereafter, the
prosecutor advised the court that lead defense counsel was
withdrawing the defense objection to the lyrics and wanted the
document “as is.” Lead counsel explained, “Here is my objection
now that we have kind of discussed it. . . . [¶] If you try to redact
it except for the other portions that the prosecution thinks is
somewhat probative, then you delete all the portions of an intent
to make rap lyrics, and then we are back in a worse position.”
The court replied, “Like I said, I think the first two, maybe three
pages are relevant on the issue of participation in a gang. I don’t
see anything in there that connects [defendant] with the
shooting. So anything other than to demonstrate that he is a
member of this gang really doesn’t matter, which is why I
thought the balance of your exhibit is not particularly relevant.”
The prosecutor offered that she had “propose[d] a redacted copy
where [she] took out pages all together [sic], but at the end of
the day they say they want the whole thing.” Assisting counsel
for the defense, who disagreed with lead counsel’s approach,
clarified, “Not they, I want to be clear on that.” The court
68
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
replied, “Lead counsel.” The discussion then turned to other
exhibits, with seven pages of lyrics being admitted, without
redaction, as People’s Exhibit 110.
The prosecutor quoted the handwritten lyrics numerous
times during her closing arguments at the guilt and penalty
phases of trial. These references included several lyrics beyond
those that had previously been read aloud by the prosecutor in
eliciting Detective Walker’s testimony. In his closing argument
at the guilt phase, defense counsel characterized the rap lyrics
as nonfactual creative expressions that did not constitute
reliable evidence of defendant’s guilt.
The instructions given to the jury at the close of the guilt
phase of trial provided, in relevant part, “You may consider
evidence of gang activity only for the limited purpose of deciding
whether the defendant acted with the intent, purpose and
knowledge that are required to prove the gang-related
enhancements and special circumstance allegations charged, or,
the defendant had a motive to commit the crimes charged. [¶]
You may also consider this evidence when you evaluate the
credibility or believability of a witness, and when you consider
the facts and information relied on by an expert witness in
reaching his or her opinion. You may not consider this evidence
for any other purpose. You may not conclude from this evidence
that the defendant is a person of bad character, or that he has a
disposition to commit crimes.” No limiting instruction specific
to the jury’s consideration of the lyrics was requested or given.
2. Evidence Code sections 352 and 352.2
Pursuant to Evidence Code section 352, “The court in its
discretion may exclude evidence if its probative value is
substantially outweighed by the probability that its admission
69
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues,
or of misleading the jury.” The “undue prejudice” that Evidence
Code section 352 is concerned with “ ‘is that which “ ‘ “uniquely
tends to evoke an emotional bias against the defendant as an
individual and which has very little effect on the issues.” ’ ” ’ ”
(People v. Chhoun (2021) 11 Cal.5th 1, 29, italics omitted.) A
“ ‘court enjoys broad discretion’ ” in determining the
admissibility of evidence under Evidence Code section 352
(People v. Michaels (2002) 28 Cal.4th 486, 532), and we review a
ruling under the statute for an abuse of this discretion (People
v. Pineda (2022) 13 Cal.5th 186, 222 (Pineda)). “A ruling subject
to this standard of review ‘will not be disturbed except on a
showing the trial court exercised its discretion in an arbitrary,
capricious, or patently absurd manner that resulted in a
manifest miscarriage of justice.’ ” (Ibid.)
Evidence Code section 352.2, which became effective on
January 1, 2023, calls for a particularized inquiry when the
admissibility of a creative expression is challenged under
Evidence Code section 352. Subdivision (a) of Evidence Code
section 352.2 provides, “In any criminal proceeding where a
party seeks to admit as evidence a form of creative expression,
the court, while balancing the probative value of that evidence
against the substantial danger of undue prejudice under
[Evidence Code] Section 352, shall consider, in addition to the
factors listed in [Evidence Code] Section 352, that: (1) the
probative value of such expression for its literal truth or as a
truthful narrative is minimal unless that expression is created
near in time to the charged crime or crimes, bears a sufficient
level of similarity to the charged crime or crimes, or includes
factual detail not otherwise publicly available; and (2) undue
70
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
prejudice includes, but is not limited to, the possibility that the
trier of fact will, in violation of [Evidence Code] Section 1101,
treat the expression as evidence of the defendant’s propensity
for violence or general criminal disposition as well as the
possibility that the evidence will explicitly or implicitly inject
racial bias into the proceedings.” Subdivision (b) of Evidence
Code section 352.2 requires the court, in evaluating the
admissibility of a creative expression, to consider certain
evidence “[i]f proffered and relevant to the issues in the case,” in
addition to “any additional relevant evidence.” The statute
defines a “ ‘creative expression’ ” as “the expression or
application of creativity or imagination in the production or
arrangement of forms, sounds, words, movements, or symbols,
including, but not limited to, music, dance, performance art,
visual art, poetry, literature, film, and other such objects or
media.” (Id., § 352.2, subd. (c).)
3. Analysis: Retroactivity of Evidence Code section
352.2
As a threshold issue, the parties dispute whether Evidence
Code section 352.2 applies here and should guide our review of
the admissibility of the lyrics in this appeal. Defendant argues
that a presumption of retroactive application attaches to
Evidence Code section 352.2 because of its assertedly
ameliorative character (see In re Estrada (1965) 63 Cal.2d 740,
745 (Estrada)), so that its provisions apply in all cases, including
this one, in which the judgment was not yet final when the law
entered into effect. The Attorney General disagrees. He argues
that the standard rule of prospective-only application of new
statutes adheres here (§ 3), while the Estrada presumption does
not; and because the trial here occurred many years before
71
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
Evidence Code section 352.2’s effective date, the statute is
inapplicable. The Attorney General is correct.
The question of whether Evidence Code section 352.2
applies retroactively has divided the Courts of Appeal.
(Compare People v. Venable (2023) 88 Cal.App.5th 445, 456,
review granted May 17, 2023, S279081 [Evid. Code, § 352.2
applies retroactively to cases with judgments that are not yet
final] with People v. Ramos (2023) 90 Cal.App.5th 578, 596,
review granted July 12, 2023, S280073 (Ramos) [Evid. Code,
§ 352.2 does not apply retroactively] and People v. Slaton (2023)
95 Cal.App.5th 363, 372, review granted Nov. 15, 2023, S282047
(Slaton) [same].)
In addressing this question, we are aided by our recent
decision in People v. Burgos (2024) 16 Cal.5th 1 (Burgos). There,
we determined that new trial bifurcation procedures enacted
through the same Assembly Bill 333 that also changed the
definition of a pattern of criminal gang activity within
section 186.22 do not operate retroactively.32 These bifurcation
provisions, which the Legislature codified in section 1109, allow
a defendant to defer the trial of a gang enhancement (§ 186.22,
subds. (b), (d)) until after the defendant’s guilt for the
underlying offense has been determined (§ 1109, subd. (a)), and
to have a count alleging active participation in a criminal street
gang (§ 186.22, subd. (a)) “tried separately from all other counts
that do not otherwise require gang evidence as an element of the
crime” (§ 1109, subd. (b)).
32
As discussed ante and post, the provisions of Assembly Bill
333 that changed the definition of a pattern of criminal gang
activity do operate retroactively.
72
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
The defendants in Burgos argued on appeal that this
reform applied retroactively to their cases, in which the verdicts
had been rendered before Assembly Bill 333 became effective.
(Burgos, supra, 16 Cal.5th at p. 9.) We began our analysis of
this argument with the general presumption that statutes apply
only prospectively. (Id. at pp. 11–12, citing, e.g., People v.
Buycks (2018) 5 Cal.5th 857, 880; People v. Brown (2012)
54 Cal.4th 314, 324 & People v. Floyd (2003) 31 Cal.4th 179, 184;
see also § 3 [“No part of [the Penal Code] is retroactive, unless
expressly so declared”]; Tapia v. Superior Court (1991)
53 Cal.3d 282, 287 (Tapia) [“It is well settled that a new statute
is presumed to operate prospectively absent an express
declaration of retrospectivity or a clear indication that the
electorate, or the Legislature, intended otherwise”].) In
ascertaining whether the Legislature sought to depart from the
standard rule of prospective-only application, we first consulted
the relevant statutory text. (Burgos, at pp. 19–20.) We
explained that the enactment neither expressly provided for
retroactive application of the bifurcation procedures nor
otherwise “clearly and unavoidably” indicated that the
Legislature intended for these procedures to operate
retroactively. (Id. at p. 19.) Noting that Assembly Bill 333
included legislative findings that expressed “significant
concerns about gang enhancements in general” (Burgos, at
p. 19), we determined that these “strongly worded legislative
findings relating to racial bias and unfairness in the criminal
justice system” did “not necessarily convey that the Legislature
intended for section 1109 — which concerns the order of
presentation of evidence at trial, not the substantive scope of the
gang enhancements — to apply retroactively to cases that have
already been tried” (id. at p. 20, fn. 5).
73
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
Our decision in Burgos also considered the Estrada
presumption and determined that it did not apply. In Estrada,
we explained, “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
prohibited act. It is an inevitable inference that the Legislature
must have intended that the new statute imposing the new
lighter penalty now deemed to be sufficient should apply to
every case to which it constitutionally could apply. The
amendatory act imposing the lighter punishment can be applied
constitutionally to acts committed before its passage provided
the judgment convicting the defendant of the act is not final.
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.” (Estrada, supra, 63 Cal.2d at p. 745.)
Burgos reviewed our prior decisions applying Estrada33
and concluded from this survey that “[w]e have adhered to
33
In this review, Burgos explained that we had “applied
Estrada’s inference of retroactivity to legislation that created an
affirmative defense, contracted a criminal offense, or otherwise
lessened punishment in some meaningful manner” (Burgos,
supra, 16 Cal.5th at p. 13, citing People v. Prudholme (2023)
14 Cal.5th 961, 968–969; People v. Wright (2006) 40 Cal.4th 81,
95; People v. Nasalga (1996) 12 Cal.4th 784, 798; Tapia, supra,
53 Cal.3d at pp. 300–301 & People v. Rossi (1976) 18 Cal.3d 295,
302); “to statutes that give trial courts discretion to impose
lesser punishment” (Burgos, at p. 13, citing People v. Stamps
(2020) 9 Cal.5th 685, 699 & People v. Francis (1969) 71 Cal.2d
66, 76); and “to statutes that, while not limited to reducing
punishment for a particular crime, created a concrete avenue for
74
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
section 3’s default rule of prospective operation in a variety of
contexts and have applied Estrada’s limited inference of
retroactivity only to statutes that ‘are analogous to the Estrada
situation’ and by their nature implicate ‘Estrada’s logic’
[citation]; that is, statutes that either reduce the punishment for
a criminal offense or create discretion to reduce such
punishment, or narrow the scope of criminal liability, because
such enactments give rise to an ‘inevitable inference that the
Legislature [or electorate] must have intended that the new
statute imposing the new lighter penalty now deemed to be
sufficient should apply to every case to which it constitutionally
should apply.’ ” (Burgos, supra, 16 Cal.5th at p. 16.) We
determined that the Estrada presumption did not apply to the
bifurcation procedures at issue because, “[b]y its terms,
section 1109 does not directly or potentially reduce the
punishment for an offense. Nor does it change the elements of
a substantive offense, defense, or penalty enhancement.
Likewise, it does not create an alternative avenue for certain
individuals to receive lesser or no punishment. Instead,
section 1109 reflects a prophylactic procedural rule that
modifies the sequence of trial proceedings.” (Burgos, at p. 21.)
Although section 1109 represented “an effort to minimize the
potentially prejudicial impact of gang evidence” (Burgos, at
p. 21), its bifurcation procedures did “not alter the criminality of
defendant’s conduct or the severity of punishment.” (Ibid.)
Therefore, we determined, “the logic of Estrada does not apply.”
(Ibid.; see also id. at p. 25, fn. 8 [“A voluntary procedure which
certain individuals charged with a criminal offense to be treated
more leniently or avoid punishment altogether” (Burgos, at
p. 13, citing People v. Frahs (2020) 9 Cal.5th 618, 624, 629 &
People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303).
75
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
may (or may not) alter when gang evidence is admitted at trial
is not the type of ameliorative reduction in punishment that
gives rise to Estrada’s inference of retroactivity”].)
Guided by our analysis in Burgos, we conclude that
Evidence Code section 352.2 does not apply retroactively in this
appeal.
The presumption that new statutes operate only
prospectively applies to provisions of the Evidence Code. (See
Evid. Code, § 12, subds. (a), (b); People v. Fitch (1997)
55 Cal.App.4th 172, 185.) Examining the language of Evidence
Code section 352.2 and its uncodified legislative findings
(Stats. 2022, ch. 973, § 1), we see nothing that “clearly and
unavoidably” (Burgos, supra, 16 Cal.5th at p. 19) reveals an
intent to depart from the general rule of prospective-only
application. The text of Evidence Code section 352.2 is silent on
this question. Meanwhile, the Legislature described its intent
in enacting the statute as “to provide a framework by which
courts can ensure that the use of an accused person’s creative
expression will not be used to introduce stereotypes or activate
bias against the defendant, nor as character or propensity
evidence; and to recognize that the use of rap lyrics and other
creative expression as circumstantial evidence of motive or
intent is not a sufficient justification to overcome substantial
evidence that the introduction of rap lyrics creates a substantial
risk of unfair prejudice.” (Stats. 2022, ch. 973, § 1, subd. (b).)
These findings neither state nor clearly imply an intent that the
statute apply retroactively. “With no ‘express declaration of
retroactivity or a clear and compelling implication that the
Legislature intended’ to apply the statute retroactively,” we
must apply the presumption that Evidence Code section 352.2
76
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
“operates prospectively unless the statute ‘lessen[s] . . .
punishment’ within the meaning of Estrada.” (Burgos, at p. 20.)
Estrada’s rationale does not apply here. Evidence Code
section 352.2 “does not directly or potentially reduce the
punishment for an offense. Nor does it change the elements of
a substantive offense, defense, or penalty enhancement.
Likewise, it does not create an alternative avenue for certain
individuals to receive lesser or no punishment.” (Burgos, supra,
16 Cal.5th at p. 21; see also Ramos, supra, 90 Cal.App.5th at
p. 595, review granted [“Even though Evidence Code section
352.2 may, in many instances, end up being beneficial to a
criminal defendant in that it may result in the exclusion of
evidence favorable to the People, it is not a statute that creates
the possibility of lesser punishment or any other type of more
lenient treatment” or one “that reduces criminal liability”].)
Evidence Code section 352.2 instead implements an essentially
“neutral” rule of evidence. (Slaton, supra, 95 Cal.App.5th at
p. 373, review granted.) As explained in Slaton, although
Evidence Code section 352.2 may “tend to affect the
prosecution’s ability to present evidence more than a
defendant’s ability,” it applies to all creative expressions
regardless of their proponent as evidence. (Slaton, at p. 373.)
Evidence Code section 352.2 thus may operate to exclude
creative expressions when offered by a defendant to support a
theory of third party culpability, or for some other purpose.
(Slaton, at p. 373; cf. People v. Melendez (2016) 2 Cal.5th 1, 24
(Melendez) [considering, under Evid. Code, § 352, the
admissibility of lyrics offered by the defendant in a murder trial
to prove that another person was the killer].)
The Slaton court concluded that “evidentiary rules of this
sort do not warrant Estrada treatment” (Slaton, supra,
77
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
95 Cal.App.5th at p. 373, review granted), a conclusion with
which we agree. The Legislature could intend for prospective-
only application of a rule of evidence such as that found in
Evidence Code section 352.2 for reasons unrelated to “a desire
for vengeance.” (Estrada, supra, 63 Cal.2d at p. 745.) These
reasons include an appreciation that applying a new evidentiary
rule “retroactively to already-concluded proceedings will
inevitably come with systemic costs (which may affect the
resources available to ensure the timely and effective
administration of justice in other cases).” (Burgos, supra,
16 Cal.5th at p. 22.) With Evidence Code section 352.2 having
at best an attenuated and inconsistent connection to reduced
punishment, and there being good reason why the Legislature
might not have intended for its approach toward the
admissibility of creative expressions to apply retroactively, the
Estrada inference of retroactive application does not attach to
the statute.34
One of the dissents argues that Evidence Code section
352.2 should be given retroactive effect. (Dis. opn. of Liu, J.,
post, at pp. 1–2, 12–17.) The dissent describes Evidence Code
section 352.2 as having “the intent and effect of decriminalizing
creative expression.” (Dis. opn. of Liu, J., post, at p. 14.) This
assertion mischaracterizes the statute. Evidence Code section
352.2 does not decriminalize anything. It does not even render
all creative expressions inadmissible. It provides additional
direction for evaluating the admissibility of creative
expressions. Within its framework, courts shall consider several
factors that they already might have folded into an evaluation
34
We disapprove People v. Venable, supra, 88 Cal.App.5th
445, to the extent it is inconsistent with this opinion.
78
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
of whether this type of material was admissible under Evidence
Code sections 352 and 1101. (See, e.g., People v. Coneal (2019)
41 Cal.App.5th 951, 969 (Coneal).) Evidence Code section 352.2
is therefore multiple steps removed from decriminalization and
very different from the kinds of laws that we have regarded as
susceptible to the Estrada inference.
The dissent also argues that various materials (including
a legislator’s webpage) indicate Evidence Code section 352.2 is
not entirely neutral in its application and was enacted to benefit
criminal defendants. (Dis. opn. of Liu, J., post, at pp. 14–15,
citing, e.g., Evid. Code, § 352.2, subd. (a); Stats. 2022, ch. 973,
§ 1, subd. (b).) This argument misses the point. Contrary to the
dissent’s position, the critical question, for purposes of applying
the Estrada inference, is not whether one can extract from the
statutory text, legislative findings, or the other sources some
intent to change or clarify the law in a manner that may be
beneficial to criminal defendants, viewed as a whole. Were that
the test, Burgos may well have been decided differently. (See
Burgos, supra, 16 Cal.5th at p. 24 [“New bifurcation procedures
that may, in some instances, be beneficial to a criminal
defendant in that they conceivably could result in the exclusion
of gang-related evidence during the trial of charged offenses are
not the equivalent of a change in the legislated punishment that
must be applied to all nonfinal cases on appeal”]; see also ibid.
[noting that “[t]he uncodified legislative findings concerned with
bifurcation establish an intent to promote fairness and reduce
the potential for prejudice in trial proceedings where a gang
enhancement is alleged,” yet “they do not reflect an intent to
lessen punishment within the meaning of Estrada and its
progeny”]; id. at p. 27.) Instead, “our precedent instructs that”
in determining the applicability of the Estrada inference, we
79
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
focus first and foremost on whether there is a close enough
relationship between the substantive provisions of a statute and
the reduction of punishment. (Id. at p. 25.) As we have
explained, it is clear that the substantive provisions of Evidence
Code section 352.2 do not bear a close enough connection to
reduced punishment to justify an inference that reverses the
standard presumption that statutes operate only prospectively.
Nothing that the dissent relies upon fills that gap. Because the
framework for ascertaining the admissibility of evidence
specified by Evidence Code section 352.2 does “not alter the
criminality of [a] defendant’s conduct or the severity of
punishment, the logic of Estrada does not apply.” (Burgos, at
p. 21.) We must instead apply the general presumption that
statutes apply only prospectively.
For these reasons, we conclude that Evidence Code section
352.2 does not guide us in this appeal. The discussion below
therefore reviews defendant’s claim of error through the lens of
Evidence Code section 352 and defendant’s constitutional rights
to due process and a fair trial, without further consideration of
Evidence Code section 352.2.
4. Analysis: Application of Evidence Code section 352
Again, defendant does not argue that the instant
messages were inadmissible under Evidence Code section 352.
His challenge to the admissibility of this evidence invokes only
Evidence Code section 352.2, which as just discussed, does not
apply here. The discussion below therefore addresses only the
admissibility of the handwritten lyrics under Evidence Code
section 352 and federal constitutional principles.
Statements by a defendant in the form of poetry or music
lyrics are not “ ‘judged by a standard of prose oratory.’ ” (In re
80
PEOPLE v. AGUIRRE
Opinion of the Court by Guerrero, C. J.
George T. (2004) 33 Cal.4th 620, 636–637.) It is commonly
understood that these creative compositions may involve
figurative or nonliteral expressions, instead of factual
descriptions of the speaker’s intentions or acts. In some
circumstances, however, poetry or lyrics, including rap lyrics,
may constitute relevant and admissible evidence regarding
matters including their author’s motive and intent. (See People
v. Zepeda (2008) 167 Cal.App.4th 25, 35 (Zepeda) [regarding the
lyrics in two musical tracks credited to the defendant as
“probative of [the] defendant’s state of mind and criminal intent,
as well as his membership in a criminal gang and his loyalty to
it”]; People v. Olguin (1994) 31 Cal.App.4th 1355, 1373 (Olguin)
[determining that lyrics authenticated as the defendant’s work
“demonstrated his membership in [a gang], his loyalty to it, his
familiarity with gang culture, and, inferentially, his motive and
intent on the day of the killing”].) An objection to lyrics as
inadmissible under Evidence Code section 352 implicates a
highly contextual analysis of their probative value as measured
against the threat of undue preju
This text is long and has been trimmed here. Open the source document for the complete record.