People v. Cardenas

IN THE SUPREME COURT OF

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

REFUGIO RUBEN CARDENAS,

Defendant and Appellant.

S151493

Tulare County Superior Court

VCF117251

September 4, 2025

Justice Kruger authored the opinion of the Court, in which

Chief Justice Guerrero and Justices Corrigan, Liu, Groban,

Jenkins, and Evans concurred.

PEOPLE v. CARDENAS

S151493

Opinion of the Court by Kruger, J.

A jury convicted defendant Refugio Ruben Cardenas of the

first degree murder of Gerardo Cortez and the attempted

murders of Jorge Montez and Quirino Rosales. (Pen. Code,

§§ 187, subd. (a), 664.) The jury found true a special

circumstance allegation that Cardenas was an active

participant in a criminal street gang and intentionally killed

Gerardo Cortez in order to further the activities of the gang.

(Id., § 190.2, subd. (a)(22).) The jury also found true a number

of sentence enhancement allegations, including allegations that

Cardenas committed all three crimes for the benefit of, at the

direction of, or in association with a criminal street gang. (Id.,

§ 186.22, subd. (b)(1)(C), (4).) The jury returned a verdict of

death, and the trial court entered judgment accordingly. This

appeal is automatic. (Id., § 1239, subd. (b).)

We find error in the gang-related findings based on two

legal developments that occurred after trial: This court’s

decision in People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez)

and the recent amendments to Penal Code section 186.22 made

by Assembly Bill No. 333 (2021–2022 Reg. Sess.) (Stats. 2021,

ch. 699; Assembly Bill 333). The error requires us to reverse the

gang enhancements, the gang-murder special circumstance, and

the death judgment. We further conclude that a limited remand

is appropriate to permit Cardenas to develop his claim that his

trial counsel violated his Sixth Amendment right of autonomy

over the defense in violation of McCoy v. Louisiana (2018) 584

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U.S. 414 (McCoy). We reverse the judgment and remand to the

trial court for further proceedings in accordance with this

opinion.

I. FACTUAL BACKGROUND

A. Guilt Phase

1. Prosecution Case

The prosecution presented evidence to show that

Cardenas was a member of the North Side Visalia gang who shot

perceived rival gang members.

Cardenas spent the evening of October 9, 2003, with

several friends, including Luis Rebolledo and Maricela

Hernandez, at Hernandez’s grandmother’s home in Visalia.

Rebolledo, Cardenas, and Gloria Carrasco, among others,

walked to a nearby carport where Cardenas noticed a group of

men at the end of the street and repeatedly asked if these men

were “Scraps” — a derogatory term for Southerner gang

members. This group of men included Octavio Cortez, Gerardo

Cortez, Jorge Montez, and Quirino Rosales. Carrasco

recognized Octavio and Gerardo as her cousins and tried to

persuade Cardenas that the men were not Southerners.1

Cardenas retorted that the men were “Scraps” because he saw

one of them — Octavio — wearing blue, a color associated with

Southerners; he also recognized Octavio and Gerardo as

Southerner gang members, though Carrasco tried to convince

Cardenas he was mistaken as to the men’s identities.

Shortly after, Cardenas left the area on his bike. He

returned about five minutes later carrying a shotgun. Carrasco

1

To avoid confusion, we refer to Octavio Cortez and

Gerardo Cortez by their first names. No disrespect is intended.

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saw Cardenas approaching the group of men at the end of the

street and screamed, “Ruben . . . , no, those are my cousins.”

Cardenas walked up to the men and placed his hand on the

trunk of Gerardo’s car that was parked next to the men;

subsequent examination of the vehicle showed the letters “D,”

“R,” and “X,” as well as the number “4,” had been etched on the

trunk. The prosecution presented evidence that “DR” referred

to Cardenas’s nickname, “Dirty Ruben,” and “X4” represented a

North Side Visalia gang symbol.

Cardenas shot Montez in the chest. He fired into the rear

window of the parked car, striking Gerardo in the head. Rosales

tried to run away and fell to the ground; Cardenas aimed at him

and shot, but missed. After firing these three shots, Cardenas

ran off. Gerardo was pronounced dead when emergency medical

responders arrived; Montez was hospitalized and ultimately

survived.

Following the shooting, Cardenas left Visalia to stay with

his stepsister, Evelyn Garza, in Sacramento. When Garza

learned that Cardenas was wanted for murder and asked him to

leave her home, Cardenas pointed a gun at her face. David

Cervantes, who then picked up Cardenas from Garza’s home,

testified that Cardenas placed a shotgun in his trunk and stated

he was wanted for murder because he shot somebody. Cardenas

later returned to Visalia, where Police Officer Mark Lopez

recognized and, after a brief struggle, apprehended Cardenas on

November 26, 2003. Lopez found a sawed-off shotgun

underneath Cardenas’s clothing that a firearms examiner

testified matched the shotgun shells recovered at the crime

scene. After his arrest, Cardenas asked Lopez why he was being

charged with three counts of attempted murder and one count

of murder when he “only shot two people.”

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Trial began in January 2007. At trial, Visalia Police

Officer Luma Fahoum testified as the prosecution’s gang expert.

Fahoum opined that Cardenas was a member of the North Side

Visalia (NSV) gang, a gang of Norteños, or Northerners, located

in Visalia. She based her opinion on police reports and field

interview cards indicating Cardenas spent time with other NSV

members and participated in assaults against perceived

members of the rival Sureños, or Southerners, Cardenas’s red

clothing and accessories (a color associated with the NSV gang),

and conversations with “reliable sources” such as “people from

the neighborhood, people who are victims, witnesses, other

Northerners.” More generally, Fahoum testified as to how she

identifies gang members, the background and makeup of local

gangs, elements of Norteño, NSV, and Sureño gang culture

including symbolic colors and tattoos, and NSV’s gang activities.

The prosecution also introduced evidence that when Cardenas

and Rebolledo were together on the evening of the shooting,

Rebolledo confronted a boy wearing a blue jersey, stating they

were in NSV gang territory. As evidence that NSV constituted

a criminal street gang under the law, Fahoum testified about

two prior offenses alleged to have been committed by NSV

members: First, a drive-by shooting on July 14, 2001,

perpetrated by Hector Mendoza; and second, an assault by

Cardenas against Jose Pena, whom Cardenas perceived to be a

Southerner gang member, on November 9, 2000, which led to

Cardenas’s institutionalization at the California Youth

Authority between 2001 and 2003.

The prosecution also presented evidence that the word

“Sur” and the number “13” — both references to the Sureño

gang — were written in blue ink near the driver’s side of

Gerardo’s vehicle, which Fahoum considered to be evidence that

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Opinion of the Court by Kruger, J.

Gerardo and Octavio were “validated” Sureño members.

Discussing a hypothetical involving similar signs of gang

affiliation by the victims and the shooter’s references to the

victims as “Scraps,” Fahoum asserted that the shooting would

be unlikely to concern a personal dispute but would instead be

a gang-motivated incident.

2. Defense Case

The defense’s primary argument was that Cardenas had

not shot Gerardo with premeditation or deliberation and that

the jury should thus not find him guilty of first degree murder.

Defense counsel also argued that Cardenas had renounced his

gang membership while at the California Youth Authority and

committed the shooting due to a preexisting personal dispute

with Gerardo, rather than in connection with a criminal street

gang as required for the gang-murder special circumstance.2

Several years before the shooting, Gerardo and Cardenas had

an altercation during which Gerardo attacked Cardenas with a

screwdriver while a group of other individuals attempted to

restrain Cardenas. At the end of the fight, Cardenas gained

possession of the screwdriver. Following the charged shooting,

Gerardo’s autopsy revealed a screwdriver wrapped into the back

of his shirt; another screwdriver was found on the backseat

floorboard of his car.

2

Defense counsel further argued that the circumstances of

the shooting showed that Cardenas did not have the intent to

kill but only intended to get the victims “scared away.” She

asserted that Montez and Rosales were moving toward

Cardenas when he shot them to make them “run away instead

of coming at him,” and that Cardenas could not see clearly

through the dark car window between him and Gerardo and

shot at the window to scare Gerardo.

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Opinion of the Court by Kruger, J.

The defense presented its own gang expert, Steven Strong,

a private investigator and former Los Angeles Police

Department officer, who testified based on a hypothetical that

the facts of the shooting more likely reflected a “personal matter

rather than a gang matter.” Strong disputed that identifying as

a Southerner or wearing certain colors or tattoos necessarily

indicates street gang membership in Visalia rather than merely

geographic identification.

With regard to the etchings on Gerardo’s trunk that the

prosecution asserted represented gang symbols, a defense

handwriting expert could neither identify nor rule out Cardenas

as responsible for the etchings but was doubtful that the

etchings read “D,” “R,” “X,” and “4.” The defense also argued

that the letters “D” and “R” did not represent Cardenas’s

nickname but were instead the initials of a different individual

who was also present at the scene of the shooting. Several

witnesses, including Cardenas’s teachers and supervisors at the

California Youth Authority, testified that Cardenas did not

write gang signs or get into gang-related fights, but instead

officially denounced his gang affiliation while institutionalized.

3. Jury Verdict

The jury found Cardenas guilty of the first degree murder

of Gerardo and the attempted murders of Montez and Rosales.

(Pen. Code, §§ 187, subd. (a), 664.) The jury also found true the

special circumstance allegation that Cardenas intentionally

killed Gerardo while Cardenas was an active participant in a

criminal street gang, and the murder was carried out to further

the activities of the criminal street gang. (Id., § 190.2, subd.

(a)(22).) The jury found true sentence enhancement allegations

that Cardenas had committed all three crimes for the benefit of,

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Opinion of the Court by Kruger, J.

at the direction of, or in association with a criminal street gang.

(Id., § 186.22, subd. (b)(1)(C), (4).) Finally, the jury also found

true allegations that Cardenas personally and intentionally

discharged a firearm causing great bodily injury with respect to

the murder of Gerardo and the attempted murder of Montez, but

it did not find true the same with respect to the attempted

murder of Rosales. (Id., § 12022.53, subd. (d).)

B. Penalty Phase

1. Prosecution Case

The prosecution introduced as evidence in aggravation

that while in a holding cell on May 3, 2004, Cardenas made a

remark about Southerners and then struck a fellow inmate with

his handcuffs. The prosecution also presented victim impact

testimony from Montez and Rosales, as well as family members

of all three victims.

2. Defense Case

Several family members and friends testified to the

difficult circumstances of Cardenas’s childhood. Cardenas’s

biological father was often incarcerated. His mother used drugs,

got into physical confrontations around her children, and also

moved in and out of incarceration. Cardenas and his siblings

were often absent from school, had lice, and were at times placed

in foster care. Authorities who learned about Cardenas’s living

conditions recommended him for a number of social services.

The defense also presented evidence that Cardenas may have

had a learning disability and that he had been diagnosed as a

socially and emotionally disturbed child. A cognitive

development expert opined that Cardenas’s family risk factors,

learning disability, and young age (Cardenas was 19 years old

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Opinion of the Court by Kruger, J.

at the time of the crime) drew him to negative influences like

gangs.

3. Jury Verdict and Sentence

Following the hearing of evidence in the penalty phase,

the jury returned a verdict of death. The court denied the

automatic motion to modify the death verdict and sentenced

Cardenas to death. The court also imposed consecutive

indeterminate terms of life with the possibility of parole, plus a

firearm enhancement of 25 years to life with a gang

enhancement minimum parole eligibility period of 15 years, for

the attempted murder of Montez, and 15 years to life, with a

gang enhancement minimum parole eligibility period of 15

years, for the attempted murder of Rosales.

II. PRETRIAL ISSUES

Motion To Recuse the District Attorney’s Office

Before trial, Cardenas’s appointed counsel left the Tulare

County Public Defender’s Office to join the Tulare County

District Attorney’s Office as a senior deputy district attorney.

Cardenas then moved to recuse the entire Tulare County

District Attorney’s Office. Cardenas contends the trial court

committed reversible error by denying the motion without first

holding an evidentiary hearing. The claim lacks merit.

1. Background

Arthur Hampar was appointed as Cardenas’s counsel in

December 2003 and acted as Cardenas’s attorney until August

2005, when Hampar left the Tulare County Public Defender’s

Office to join the Tulare County District Attorney’s Office as a

senior deputy district attorney. In May 2006, Cardenas moved

to recuse the entire Tulare County District Attorney’s Office

under Penal Code section 1424, alleging that Hampar would

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bring to the district attorney’s office substantial knowledge of

the defense strategy after nearly two years of representation.

Cardenas posited that Hampar’s conflict should be imputed to

the rest of the district attorney’s office because Hampar was

entering the office as a “Level V” attorney. Relying on a job

description, Cardenas alleged that this meant Hampar would

have supervisory duties over lower-level attorneys in the unit

handling his case.

Both the Tulare County District Attorney and the

Attorney General filed motions in opposition, with the former

accompanied by the declaration of Shani Engum, the prosecutor

assigned to Cardenas’s case and the supervisor of the unit

Hampar had joined. Both oppositions conceded that there was

a conflict of interest as to Hampar but contended that this

conflict did not warrant recusal of the entire district attorney’s

office. Engum stated in her declaration that Hampar had not

spoken to her or anyone else in the district attorney’s office

about Cardenas’s case. Engum also declared that Hampar did

not have access to the prosecution files in the matter and did not

supervise anyone in the district attorney’s office. At the hearing

on the recusal motion, Engum reiterated to the court that

“Hampar [] had no contact with [Cardenas’s] file.”

The trial court denied Cardenas’s motion to recuse the

entire district attorney’s office, finding “no conflict that [the

court could] see based upon the facts in the affidavit filed by Ms.

Engum.”

2. Discussion

Under Penal Code section 1424 (section 1424), a motion to

recuse a prosecutor “may not be granted unless the evidence

shows that a conflict of interest exists that would render it

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Opinion of the Court by Kruger, J.

unlikely that the defendant would receive a fair trial.” (§ 1424,

subd. (a)(1) (section 1424(a)(1)).) The statute sets out a two-part

test: (1) the court first determines whether there is a conflict of

interest; and (2) it then considers whether the conflict is “ ‘ “ ‘so

severe as to disqualify the district attorney from acting.’ ” ’ ”

(People v. Trinh (2014) 59 Cal.4th 216, 229 (Trinh), quoting

Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711

(Haraguchi).) Under the first part of this test, “a court must

determine whether a conflict exists, that is, whether ‘the

circumstances of a case evidence a reasonable possibility that

the DA’s office may not exercise its discretionary function in an

evenhanded manner.’ [Citations.] If such a conflict exists, the

court must further determine whether the conflict is ‘ “ ‘so grave

as to render it unlikely that defendant will receive fair

treatment during all portions of the criminal proceedings.’ ” ’ ”

(Haraguchi, at p. 713.) The defendant “ ‘bear[s] the burden of

demonstrating a genuine conflict.’ ” (Trinh, at p. 229.) “That

burden is especially heavy where, as here, the defendant seeks

to recuse not a single prosecutor but the entire office.” (Ibid.,

citing People v. Gamache (2010) 48 Cal.4th 347, 361 (Gamache).)

To seek disqualification under section 1424, the defendant

must file a notice of motion containing a “statement of the facts

setting forth the grounds for the claimed disqualification and

the legal authorities relied upon by the moving party and shall

be supported by affidavits of witnesses who are competent to

testify to the facts set forth in the affidavit.” (§ 1424(a)(1).) The

district attorney and Attorney General may then file affidavits

in opposition to the motion. (Packer v. Superior Court (2014) 60

Cal.4th 695, 710.) “An evidentiary hearing may be ordered if

the defendant’s affidavits establish a prima facie case for

recusal — that is, if the defendant’s affidavits, if credited, would

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require recusal.” (Ibid.) The decision whether to grant an

evidentiary hearing is reviewed for abuse of discretion, as is the

decision whether to grant or deny the motion. (Ibid.; see

Haraguchi, supra, 43 Cal.4th at pp. 711–712; see also

Hollywood v. Superior Court (2008) 43 Cal.4th 721, 728 [the

same standard applies in capital cases].) Under this standard,

“[t]he trial court’s findings of fact are reviewed for substantial

evidence, its conclusions of law are reviewed de novo, and its

application of the law to the facts is reversible only if arbitrary

and capricious.” (Haraguchi, at pp. 711–712, fns. omitted.)

Cardenas contends that the trial court abused its

discretion when it denied his motion to recuse the entire Tulare

County District Attorney’s Office based on its employment of his

former defense attorney without first holding an evidentiary

hearing. We disagree. The trial court concluded that Hampar’s

employment did not warrant the severe remedy of recusing the

entire district attorney’s office, based on evidence that the

district attorney’s office had effectively screened Hampar off

from the case. The trial court did not abuse its discretion in so

concluding. (See, e.g., Gamache, supra, 48 Cal.4th at p. 365

[recusal of entire district attorney’s office was not warranted

where, inter alia, conflicted employee had been screened off from

the case].)

The core of Cardenas’s recusal motion was based on an

assertion that any ethical wall implemented by the district

attorney’s office would inevitably be compromised by what he

understood to be Hampar’s supervisory position in the office.

But the declarations and additional information supplied by the

district attorney and the Attorney General effectively responded

to those concerns: Although the job description for Hampar’s

position mentioned the possibility of supervision, Engum’s

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affidavit made clear that Hampar did not in fact supervise line

attorneys and that it was Engum who actually supervised

Hampar’s unit. Engum further made clear that Hampar had

not touched the office’s Cardenas file, that no one working on

the case had spoken to him about it, and that she would not

speak to him about the case in the future.

In his briefing in this court, Cardenas does not dispute

that it was theoretically possible for the district attorney’s office

to implement an effective ethical wall capable of “sanitizing”

Hampar’s conflict of interest; he argues, however, that the

evidence was insufficient to show that Hampar had actually

been walled off from his case. Cardenas makes much of the fact

that the record contains no declaration from Hampar himself, or

from “higher staff” in the office, who might have promised to

“supervise the situation and ensure that an ‘ethical wall’ was in

effect.” He also notes that while Engum said that she would not

speak to Hampar about the case, she “did not pledge to refuse

help if Hampar offered it.” But in the trial court, Cardenas did

not ask for representations from Hampar himself or from

“higher staff”; although the district attorney’s office offered to

provide such representations, Cardenas instead asked that the

court rule on the recusal motion with the materials that were

then available to it. And while additional evidence —

particularly from Hampar himself — would have been helpful to

the inquiry, the trial court did not err in relying on Engum’s

representations about the nature of the ethical wall, given

Engum’s role as Hampar’s supervisor and as the prosecutor

trying Cardenas’s case. The trial court was, moreover, entitled

to consider these representations in light of the ethical rules

imposing continuing duties on Hampar with respect to his

former client Cardenas, breach of which could have subjected

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Hampar to professional discipline. (See Rules Prof. Conduct,

rule 1.9.) Cardenas has identified nothing in the record to

suggest that the ethical wall was not, in fact, effective.

(Compare Gamache, supra, 48 Cal.4th at p. 365 [“[N]o evidence

was advanced that would suggest such screens had not been or

could not be effective”] with People v. Choi (2000) 80 Cal.App.4th

476, 483 [finding the ethical wall ineffective based on evidence

that the conflicted district attorney had ex parte contact with

the court about the case and spoke to others within his office

about the case].)

Cardenas argues, finally, that even if the trial court

reasonably declined to order that the entire district attorney’s

office be recused, the trial court should have at least entered an

order requiring Hampar to recuse himself. But, as noted, the

evidence indicates that Hampar had already recused himself,

and Cardenas never asked the trial court to enter an order

directing the same. Cardenas suggests that the trial court

should nonetheless have entered a recusal order on its own

motion. Cardenas relies on the Court of Appeal’s adoption of a

similar approach in order to “help avoid the appearance of

impropriety” stemming from a potential conflict in Love v.

Superior Court, a case predating the enactment of section 1424.

(Love v. Superior Court (1980) 111 Cal.App.3d 367, 374; see id.

at p. 375.) But our cases make clear that recusal under section

1424 is appropriate only if the defendant can show a “real, not

merely apparent,” potential for prejudice that rises to “the level

of a likelihood of unfairness.” (People v. Eubanks (1996) 14

Cal.4th 580, 592.) Here, the trial court reasonably concluded

that the ethical wall constructed by the district attorney’s office

was sufficient to mitigate the potential for prejudice.

Ultimately, “[b]ecause defendant failed to show an actual

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likelihood that he would receive unfair treatment as a result of

[Hampar’s] employment [citation], the court properly denied the

recusal motion.” (People v. Bell (2019) 7 Cal.5th 70, 98.)

Having found no violation under the “ ‘prophylactic’ ”

recusal rule set forth in section 1424, we likewise find no

violation of Cardenas’s due process rights. (Trinh, supra, 59

Cal.4th at p. 231; Gamache, supra, 48 Cal.4th at p. 366 [“If

recusal was properly denied under section 1424, ipso facto no

due process violation occurred”].)

III. GUILT PHASE ISSUES

A. Gang Allegations

Cardenas contends that all the gang findings in this case,

including both the gang enhancements and the gang-murder

special circumstance, must be reversed because of two

significant legal developments postdating the trial: this court’s

decision in Sanchez, supra, 63 Cal.4th 665, which set forth

evidentiary limits on the use of out-of-court statements to prove

gang allegations; and the passage of Assembly Bill 333, which

amended the definition of criminal street gang activity. The

Attorney General agrees that, under current law, the evidence

presented at trial is insufficient to establish that members of the

NSV gang were engaged in a “ ‘pattern of criminal gang

activity.’ ” (Pen. Code, § 186.22, subd. (e)(1) (section

186.22(e)(1)).) We agree as well. We must therefore reverse the

gang enhancements and the gang-murder special circumstance.

Because the gang-murder special circumstance was the only

special circumstance alleged and found true by the jury, reversal

of the special circumstance also requires us to reverse the

judgment of death.

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1. Background

The California Street Terrorism Enforcement and

Prevention Act (STEP Act; Pen. Code, § 186.20 et seq.), first

enacted in 1988, created a sentencing enhancement for felonies

committed “for the benefit of, at the direction of, or in association

with a criminal street gang.” (Pen. Code, § 186.22, subd. (b)(1)

(section 186.22(b)(1)).) The STEP Act defined such a criminal

street gang in Penal Code section 186.22, subdivision (f) as “any

ongoing organization, association, or group of three or more

persons, whether formal or informal, having as one of its

primary activities the commission of one or more [enumerated

offenses], having a common name or common identifying sign or

symbol, and whose members individually or collectively engage

in, or have engaged in, a pattern of criminal gang activity.” (Id.,

§ 186.22, former subd. (f).) The prosecution must establish this

“ ‘pattern of criminal gang activity’ ” by showing “the

commission of, attempted commission of, conspiracy to commit,

or solicitation of, sustained juvenile petition for, or conviction of,

two or more [enumerated] offenses,” also referred to as predicate

offenses, under certain conditions. (§ 186.22(e)(1).)

The electorate later incorporated this definition of a

“criminal street gang” set forth in Penal Code section 186.22,

subdivision (f) when it added the gang-murder special

circumstance to Penal Code section 190.2 through Proposition

21, the Gang Violence and Juvenile Crime Prevention Act of

1998 (as approved by voters, Primary Elec. (Mar. 7, 2000)). If it

is found that the “defendant intentionally killed the victim while

the defendant was an active participant in a criminal street

gang, as defined in subdivision (f) of Section 186.22, and the

murder was carried out to further the activities of the criminal

street gang,” the penalty for murder in the first degree is death

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or imprisonment for life without parole. (Pen. Code, § 190.2,

subd. (a)(22) (section 190.2(a)(22)).) As noted, under Penal Code

section 186.22, subdivision (f)’s definition of “ ‘criminal street

gang,’ ” the prosecution must prove a “ ‘pattern of criminal gang

activity’ ” as defined in section 186.22(e)(1).

In this case, as noted, the jury found true multiple gang

allegations under these provisions. The jury found true

enhancement allegations that Cardenas committed the murder

of Gerardo Cortez and the attempted murders of Jorge Montez

and Quirino Rosales “for the benefit of, at the direction of, or in

association with a criminal street gang, with the specific intent

to promote, further, or assist in criminal conduct by gang

members” within the meaning of section 186.22(b)(1). The jury

also found true the special circumstance allegation that the first

degree murder of Gerardo was committed by an “active

participant in a criminal street gang . . . to further the activities

of the . . . gang.” (§ 190.2(a)(22).)

To prove these allegations, the prosecution had introduced

the testimony of a gang expert, Visalia Police Officer Luma

Fahoum. Among other things, Fahoum offered testimony to

establish that NSV, the gang that the prosecution argued

Cardenas belonged to, constituted a criminal street gang within

the meaning of Penal Code section 186.22. To establish the

necessary predicate offenses, Fahoum testified about two prior

offenses committed by NSV members: First, a drive-by shooting

in July 2001, perpetrated by another NSV member, Hector

Mendoza, and second, a November 2000 assault by Cardenas

against a perceived Southerner gang member.

Two relevant legal developments occurred after the trial

in this case. The first involves the use of hearsay evidence to

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prove gang allegations. At the time of the trial, the law of this

court permitted a qualified expert witness to testify on direct

examination to any sufficiently reliable hearsay sources the

experts used in formulating their opinions, on the theory that

such hearsay was not being admitted for its truth. (People v.

Gardeley (1996) 14 Cal.4th 605, 618; People v. Montiel (1993) 5

Cal.4th 877, 919.) Years later, in Sanchez, supra, 63 Cal.4th

665, this court reevaluated that approach. Sanchez held that

“[w]hen any expert relates to the jury case-specific out-of-court

statements, and treats the content of those statements as true

and accurate to support the expert’s opinion, the statements are

hearsay. It cannot logically be maintained that the statements

are not being admitted for their truth.” (Id. at p. 686.) Under

state evidence law, such case-specific out-of-court statements

are therefore inadmissible “unless they are independently

proven by competent evidence or are covered by a hearsay

exception.” (Ibid.) In addition, if the case is one in which a

prosecution expert seeks to relate hearsay that is “testimonial,”

as that term has been understood in the context of the

confrontation clause of the Sixth Amendment to the United

States Constitution, the admission of such hearsay violates this

constitutional protection “unless (1) there is a showing of

unavailability and (2) the defendant had a prior opportunity for

cross-examination, or forfeited that right by wrongdoing.”

(Sanchez, at p. 686.)

In Sanchez, the court held that a prosecution gang expert’s

testimony violated these rules insofar as they contained case-

specific facts derived from out-of-court sources to prove that the

defendant committed the crimes with which he had been

charged with intent to benefit his gang. (Sanchez, supra, 63

Cal.4th at pp. 698–699.) Later, in People v. Valencia (2021) 11

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Opinion of the Court by Kruger, J.

Cal.5th 818 (Valencia), we specifically considered how these

rules apply to facts used to establish that a gang’s members have

engaged in “a pattern of criminal gang activity” (Pen. Code,

§ 186.22, subd. (f)), a term defined in part to mean the

commission of two or more enumerated offenses (id., § 186.22,

former subd. (e)). We held that, under Sanchez, the commission

of these so-called predicate offenses, too, must be proven by

independently admissible evidence and “may not be established

solely by the testimony of an expert who has no personal

knowledge of facts otherwise necessary to satisfy the

prosecution’s burden.” (Valencia, at p. 826; see id. at p. 839.)

The other relevant development involved legislative

changes to the STEP Act. After Cardenas’s trial, the Legislature

amended the STEP Act through Assembly Bill 333, which

became effective on January 1, 2022. Assembly Bill 333 made

several changes to the law on active gang participation and gang

enhancements. “First, it narrowed the definition of a ‘criminal

street gang’ to require that any gang be an ‘ongoing, organized

association or group of three or more persons.’ ([Pen. Code,

]§ 186.22, subd. (f), italics added.) Second, whereas section

186.22, former subdivision (f) required only that a gang’s

members ‘individually or collectively engage in’ a pattern of

criminal activity in order to constitute a ‘criminal street gang,’

Assembly Bill 333 requires that any such pattern have been

‘collectively engage[d] in’ by members of the gang. (§ 186.22,

subd. (f), italics added.) Third, Assembly Bill 333 also narrowed

the definition of a ‘pattern of criminal activity’ by requiring that

(1) the last offense used to show a pattern of criminal gang

activity occurred within three years of the date that the

currently charged offense is alleged to have been committed; (2)

the offenses were committed by two or more gang ‘members,’ as

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Opinion of the Court by Kruger, J.

opposed to just ‘persons’; (3) the offenses commonly benefitted a

criminal street gang; and (4) the offenses establishing a pattern

of gang activity must be ones other than the currently charged

offense. (§ 186.22, subd. (e)(1), (2).) Fourth, Assembly Bill 333

narrowed what it means for an offense to have commonly

benefitted a street gang, requiring that any ‘common benefit’ be

‘more than reputational.’ ([Pen. Code, ]§ 186.22, subd. (g).)”

(People v. Tran (2022) 13 Cal.5th 1169, 1206 (Tran).) These

changes apply retroactively to cases that were not yet final as of

Assembly Bill 333’s effective date. (Tran, at pp. 1206–1207.)

Assembly Bill 333 also added Penal Code section 1109,

“which requires, if requested by the defendant, a gang

enhancement charge to be tried separately from all other counts

that do not otherwise require gang evidence as an element of the

crime. If the proceedings are bifurcated, the truth of the gang

enhancement may be determined only after a trier of fact finds

the defendant guilty of the underlying offense.” (Tran, supra,

13 Cal.5th at p. 1206.) This bifurcation provision, unlike the

changes narrowing the substantive reach of the definition of a

criminal street gang, does not apply retroactively. (People v.

Burgos (2024) 16 Cal.5th 1, 8.)

2. Discussion

In order to establish both the gang enhancements and the

gang-murder special circumstance, the prosecution was

required to establish a “ ‘pattern of criminal gang activity’ ” by

NSV through sufficient proof of at least two gang-motivated

predicate offenses committed by gang members.

(§ 186.22(e)(1).) Both sides agree that as a result of Sanchez and

the legislative changes made by Assembly Bill 333, there is

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insufficient evidence in the record to fulfill this statutory

requirement. We agree as well.

The prosecution offered proof of three predicate offenses

committed by NSV members: (1) a drive-by shooting on July 14,

2001, by Hector Mendoza; (2) a prior assault committed by

Cardenas on November 9, 2000, against a perceived rival gang

member; and (3) the shooting charged in this case.3 Assembly

Bill 333 provides, however, that the “currently charged offense

shall not be used to establish the pattern of criminal gang

activity.” (Pen. Code, § 186.22, subd. (e)(2); Tran, supra, 13

Cal.5th at p. 1206.) This change, which applies retroactively

(Tran, at pp. 1206–1207), precludes reliance on the charged

shooting to establish the required pattern of criminal gang

activity.

The parties also agree that the rule of Sanchez precludes

reliance on at least one of the other predicate offenses to satisfy

the statutory requirement. To establish the predicate offense

involving Hector Mendoza, Officer Fahoum related to the jury

information she obtained from conversations with the detective

who worked on that case and police reports from the case. These

conversations and reports indicated that Mendoza “self-

admi[tted] that he was a North Side gang member” and that he

“threw down a red bandanna [sic] on the pavement” at the crime

scene on Paradise and Demaree Streets, in Visalia. Fahoum

opined that the particular type of offense — a drive-by

3

Although Officer Fahoum testified to other offenses meant

to evidence the primary activities of NSV or Cardenas’s gang

membership, the prosecution did not offer them as predicate

offenses at trial, and the Attorney General expressly disclaims

reliance on them.

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Opinion of the Court by Kruger, J.

shooting — was among NSV’s typically “gang-related” activities

and that Mendoza throwing down a red bandana “signif[ied] this

was an assault done by the north.” On that basis, she concluded

that Mendoza was an NSV member at the time of the offense.

In so testifying, Officer Fahoum did not merely rely on

hearsay in forming her opinions; she related inadmissible case-

specific hearsay to the jury in violation of Sanchez. (Sanchez,

supra, 63 Cal.4th at pp. 685–686.) The evidence the prosecution

did present violated state evidence law. And further, because

the hearsay on which Officer Fahoum relied was testimonial in

nature — consisting of police conversations and reports

compiled for the primary purpose of investigating the crime

Mendoza committed — the information was also admitted in

violation of Cardenas’s constitutional confrontation rights. (Id.

at pp. 689, 694.)

The parties also agree that this Sanchez violation was not

harmless. Absent the impermissible hearsay, there is

insufficient evidence to support the necessary findings about the

Mendoza incident. (See Valencia, supra, 11 Cal.5th at p. 829.)

And without sufficient evidence to support one of the only two

predicate offenses that could potentially remain valid after

Assembly Bill 333, there is insufficient evidence to fulfill the

law’s requirement that the prosecution show a pattern of

criminal gang activity under section 186.22(e)(1).

In sum, based on Sanchez and Assembly Bill 333, we must

reverse the gang enhancements. And because application of the

gang-murder special circumstance, too, depends on adequate

proof of a pattern of gang activity under section 186.22(e)(1), we

must also reverse the special circumstance finding. (People v.

Rojas (2023) 15 Cal.5th 561, 565–566 [Assem. Bill 333’s

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amendments to § 186.22 apply to the gang-murder special

circumstance].) And finally, because the gang-murder special

circumstance was the only special circumstance alleged in the

case, the reversal of the special circumstance finding requires us

also to reverse the judgment of death.4

B. Denial of Motion To Bifurcate Gang Allegations

Cardenas asserts that the trial court erred in denying his

motion to bifurcate the gang allegations from the substantive

offenses. As noted, Assembly Bill 333 contains a provision

requiring bifurcation at the defendant’s request. But this

provision does not apply retroactively to cases tried before

Assembly Bill 333’s effective date, as Cardenas’s was. (People v.

Burgos, supra, 16 Cal.5th at p. 8.) Even before Assembly Bill

333, trial courts had the discretion to bifurcate gang allegations

to avoid undue prejudice. (People v. Hernandez (2004) 33

Cal.4th 1040, 1049–1050 (Hernandez).) Cardenas argues that

the trial court abused that discretion in denying bifurcation

here, and in so doing deprived him of his due process right to a

fair trial.

We are unpersuaded by the argument. In Hernandez, we

instructed that a key factor for courts to consider in deciding

4

Cardenas requests that we take judicial notice of the fact

that the gang-murder special circumstance was found true in

the 44 cases listed in the appendix to his supplemental opening

brief. We deny Cardenas’s request for judicial notice. Cardenas

submitted this request to support his claim that the gang-

murder special circumstance is unconstitutional because it is

disproportionately imposed on African American and Latino

defendants. Because we conclude that the gang-murder special

circumstance must be reversed in light of Sanchez, supra, 63

Cal.4th 665 and Assembly Bill 333, we do not reach this

constitutional issue.

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whether to bifurcate the trial of gang allegations is whether the

evidence used to prove the allegations would have been

admissible in any event at a trial on the underlying charges.

(Hernandez, supra, 33 Cal.4th at pp. 1049–1050 [“To the extent

the evidence supporting the gang enhancement would be

admissible at a trial of guilt, any inference of prejudice would be

dispelled”].) Here, much of the gang-related evidence would

have been admissible to show Cardenas’s motive for and intent

in committing the charged offenses, the murder and attempted

murders of persons he perceived to be members of a rival gang.

Cardenas does not seriously dispute the point, but argues

that the gang-related evidence admitted was more extensive

than necessary for that purpose and included evidence that

would not have been admissible to prove the charged offenses,

including evidence of an unrelated predicate offense committed

by a different NSV member. Cardenas also argues that the trial

court should have granted bifurcation to avoid the prejudicial

effect of evidence of uncharged crimes Cardenas had committed

as a juvenile, including his 2000 assault of perceived rival gang

member Jose Pena, which the prosecution used to establish a

pattern of criminal gang activity, and his 2000 assault of

Rolando Viera, another perceived rival gang member. Cardenas

acknowledges that these incidents might have been admissible

to prove his motive and intent in this alleged gang-related

shooting, but emphasizes that the trial court would have had to

engage in an “ ‘extremely careful analysis’ ” before admitting

uncharged prior crimes solely for that purpose. (People v.

Ewoldt (1994) 7 Cal.4th 380, 404.)

Cardenas has not met his burden to show unfairness in

the denial of bifurcation. The evidence concerning NSV,

including the evidence of its members’ criminal activities, “was

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not so minimally probative on the charged offense, and so

inflammatory in comparison, that it threatened to sway the jury

to convict regardless of [Cardenas’s] actual guilt.” (Hernandez,

supra, 33 Cal.4th at p. 1051; see ibid. [it is the defendant’s

burden “ ‘to clearly establish that there is a substantial danger

of prejudice requiring that the charges be separately tried’ ”].)

Cardenas’s uncharged gang-related crimes were not

particularly “inflammatory in comparison” to the charged

offenses; the prior incidents involved attacks with a fist or blunt

object, and neither of the victims claimed long-term physical

injury. The charged offenses, by contrast, involved a firearm,

long-term injuries, and death. And contrary to Cardenas’s

contention, the trial court appropriately limited the jury’s

consideration of crimes committed by other gang members as

evidence of a “ ‘pattern of criminal gang activity,’ ” of his assault

on Viera as evidence of motive and intent, and of his assault on

Pena as evidence of a “ ‘pattern of criminal gang activity’ ” or

motive and intent. (§ 186.22(e)(1).)

In short, the trial court did not abuse its discretion in

declining to bifurcate the trial of the gang allegations in a case

involving a gang-motivated shooting of rival gang members, nor

did the trial court’s decision render Cardenas’s trial

fundamentally unfair.

C. Sufficiency of the Evidence Supporting Gang

Findings Under the Law Applicable at the Time

of Trial

Cardenas also argues that there was insufficient evidence

to support the gang findings even under the law as it existed at

the time of trial. Although we have already concluded that the

gang findings must be reversed based on Sanchez and Assembly

Bill 333, we address Cardenas’s sufficiency of the evidence

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Opinion of the Court by Kruger, J.

claims to determine whether retrial of the gang allegations is

permissible under the double jeopardy clause. (People v.

Eroshevich (2014) 60 Cal.4th 583, 591 [following reversal on

insufficiency of the evidence grounds, “ ‘the Double Jeopardy

Clause bars the prosecutor from making a second attempt at

conviction’ ”]; see People v. Hin (2025) 17 Cal.5th 401, 454–455.)

We conclude there was sufficient evidence under the law as it

existed at the time of trial and thus perceive no double jeopardy

bar to retrial of the gang allegations.

“When considering a challenge to the sufficiency of the

evidence to support a conviction, we review the entire record in

the light most favorable to the judgment to determine whether

it contains substantial evidence — that is, evidence that is

reasonable, credible, and of solid value — from which a

reasonable trier of fact could find the defendant guilty beyond a

reasonable doubt.” (People v. Lindberg (2008) 45 Cal.4th 1, 27.)

We determine “whether, after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a

reasonable doubt.” (Jackson v. Virginia (1979) 443 U.S. 307,

319.) This determination “presumes in support of the judgment

the existence of every fact the trier could reasonably deduce

from the evidence.” (People v. Kraft (2000) 23 Cal.4th 978,

1053.) Even “[e]vidence erroneously admitted is properly

considered in weighing the sufficiency of evidence to support a

conviction, notwithstanding its erroneous admission.” (People v.

Navarro (2021) 12 Cal.5th 285, 311 (Navarro).) The same

standard applies to special circumstance findings. (People v.

Chatman (2006) 38 Cal.4th 344, 389.)

At the time of trial, the gang enhancement applied to a

person convicted of a statutorily enumerated felony, if that

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Opinion of the Court by Kruger, J.

person committed the felony: (1) “for the benefit of, at the

direction of, or in association with any criminal street gang”; and

(2) “with the specific intent to promote, further, or assist in any

criminal conduct by gang members.” (§ 186.22, former subd.

(b)(1).)5 As noted, Penal Code section 186.22, former subdivision

(f) provided the definition of “ ‘criminal street gang,’ ” which,

among other things, required proof that the gang had certain

criminal acts as one of its “primary activities” and that gang

members engaged in a “pattern of criminal gang activity.”

The gang-murder special circumstance, for its part,

contained three basic elements: (1) the “defendant intentionally

killed the victim,” (2) “while the defendant was an active

participant in a criminal street gang, as defined in subdivision

(f) of [Penal Code ]Section 186.22,” and (3) “the murder was

carried out to further the activities of the criminal street gang.”

(§ 190.2(a)(22); see People v. Mejia (2012) 211 Cal.App.4th 586,

612.) As courts have observed, the third element “substantially

parallels the language of section 186.22, subdivision (b)(1)” that

the defendant have a “ ‘specific intent to promote, further, or

assist in any criminal conduct by gang members.’ ” (People v.

Carr (2010) 190 Cal.App.4th 475, 488 (Carr).)

In evaluating Cardenas’s challenges to the sufficiency of

the evidence, we first consider the evidence concerning elements

common to the gang enhancement and gang-murder special

5

Section 186.22(b)(1) has since been amended to require the

defendant to commit the felony: (1) “for the benefit of, at the

direction of, or in association with a criminal street gang”

(replacing “any” with “a”); and (2) “with the specific intent to

promote, further, or assist in criminal conduct by gang

members” (removing the word “any” before “criminal conduct”).

(Ibid., italics added.)

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circumstance before turning to the evidence concerning other

elements.

1. Elements Common to the Gang Enhancement and

Gang-Murder Special Circumstance

a. Primary Activities of the Gang

To prove both the gang enhancements and the gang-

murder special circumstance, the prosecution was required to

show that NSV met the definition of “ ‘criminal street gang’ ” in

effect at the time of trial, meaning, among other things, that the

gang had “as one of its primary activities the commission of one

or more of the criminal acts enumerated in . . . subdivision (e)”

of section 186.22. (Pen. Code, § 186.22, former subd. (f).) To

support the jury’s finding on this issue, the Attorney General

points to Officer Fahoum’s expert testimony, during which she

enumerated NSV’s primary activities as including “graffiti,

grand theft auto, carjacking, assault with a deadly weapon, a

drive-by shooting, murder, [and] attempted murder.” In

addition to relying on police reports, she indicated that she had

personal knowledge of NSV members engaging in all of these

activities. Fahoum also named particular NSV members and

the crimes they committed. Based on her testimony, a rational

trier of fact could conclude that NSV members “consistently and

repeatedly have committed criminal activity listed in the gang

statute.” (People v. Sengpadychith (2001) 26 Cal.4th 316, 324,

italics omitted.)

b. Pattern of Criminal Gang Activity

To establish that NSV qualified as a “criminal street

gang,” the prosecution was also required to demonstrate that

NSV members engaged in a “ ‘pattern of criminal gang

activity,’ ” meaning that gang members had committed at least

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two qualifying predicate offenses. (Pen. Code, § 186.22, former

subd. (e).) As previously noted, the prosecution offered two

predicate offenses other than the charged shooting: (1) a drive-

by shooting committed by NSV member Hector Mendoza on July

14, 2001; and (2) an assault on a perceived rival gang member

committed by Cardenas on November 9, 2000. There was

substantial evidence to support jury findings on both of these

predicate offenses under the law in effect at the time of trial.

i. July 14, 2001, Shooting by Hector Mendoza

As discussed above, Officer Fahoum’s opinion that Hector

Mendoza was an NSV member at the time of his July 14, 2001,

drive-by shooting was based on conversations with a detective

and police reports that indicated that Mendoza “self-admi[tted]

that he was a North Side gang member” and “threw down a red

bandanna [sic] on the pavement” at the crime scene in Visalia,

as well as on Fahoum’s assessment that the crime was “gang-

related.” Cardenas challenges this evidence of Mendoza’s NSV

membership, noting that this testimony conveyed inadmissible

case-specific hearsay and that the jury was instructed that the

hearsay was not being offered for its truth.

Although Fahoum’s testimony about Mendoza’s NSV

membership may have been improperly admitted, we

nonetheless consider that evidence in determining whether the

predicate offense was shown by sufficient evidence under the

law as it existed at the time. (Navarro, supra, 12 Cal.5th at

p. 311 [evidence erroneously admitted under Sanchez is

properly considered in weighing the sufficiency of the evidence].)

Based on this testimony that showed multiple indicia of gang

membership, a rational trier of fact could conclude beyond a

reasonable doubt that Mendoza was an NSV member.

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ii. November 9, 2000, Assault on Jose Pena

Cardenas asserts that there was insufficient evidence to

prove that he was an NSV member when he assaulted Jose Pena

on November 9, 2000. Cardenas argues, in particular, that the

evidence of his NSV membership at the time of Pena’s assault

was insubstantial and based on hearsay. Again, although the

evidence may have been erroneously admitted, we still consider

it in evaluating the sufficiency of the evidence to support the

jury verdicts. And the admitted evidence was substantial:

Officer Fahoum relied on a wide range of evidence corroborated

by other witnesses, much of which involved events before or

around November 2000, and supported a finding that Cardenas

was an NSV member at that time.

Officer Fahoum described 10 criteria that can be used to

assess gang membership and asserted that three are necessary

to “validate” a gang member.6 She validated Cardenas as an

active NSV member at the time of the 2003 shooting based on

six criteria: “[1] [H]is habitual wearing of red clothing. [2] He

has a gang-related tattoo. [3] Habitually involved in a gang-

related crime using derogatory slurs towards opposing gang

members. [4] He had a photo of known gang members or of

perceived gang members in his room. [5] He associates with

6

The 10 criteria were: (1) self-admission; (2) admission in

a custodial facility; (3) being named by a reliable source, like

probation, parents, or other gang members; (4) associating with

known gang members; (5) being identified as corresponding with

known gang members, for example, through jail mail; (6) gang-

related tattoos; (7) gang-related clothing; (8) involvement in

gang-related crimes; (9) being in photographs with known gang

members; and (10) having or making gang writings, like graffiti

or doodling.

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Opinion of the Court by Kruger, J.

known gang members, for example, Luis Rebolledo. [6] He has

been named by several reliable sources, being people from the

neighborhood, people who are victims, witnesses, other

Northerners.” In reaching these conclusions, Fahoum relied on

multiple sources pertaining to events before or around

November 2000: a photo album that Fahoum seized from

Cardenas’s residence following the charged offense, which

contained photos of potential NSV members; police reports from

July 1998 showing Cardenas violating curfew with NSV

member Martin Fiero;7 background research on Luis Rebolledo,

who associated with Cardenas, showing that Rebolledo was an

NSV member; police reports and witness statements describing

an event in October 2000 during which Cardenas assaulted

Rolando Viera, a perceived rival gang member, taking items

from him that ended up in the home of NSV member Rebolledo;

police reports and field interview cards from December 2000

about Cardenas sharing company with NSV member Gerardo

Cortez;8 and other “reliable sources,” such as “people from the

neighborhood, people who are victims, witnesses, other

Northerners” naming Cardenas as an NSV member.

In addition, Rolando Viera testified that on October 11,

2000, Cardenas, accompanied by several other individuals,

called him a “Scrap,” threatened to “take off” his Sureño gang-

7

The parties agree that Officer Fahoum’s testimony as to

Cardenas violating curfew with Martin Fiero in 1998 is

inadmissible under the confrontation clause. As noted above,

we still consider erroneously admitted evidence in weighing the

sufficiency of evidence to support a conviction. (Navarro, supra,

12 Cal.5th at p. 311.)

8

This individual is a different person from the deceased in

this case.

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related tattoo with a knife, hit him multiple times, and stole his

pager and jacket. Cardenas’s stepsister Evelyn Garza identified

him as family and noted that “all [her] family is Norteños.”

Given the evidence, a reasonable fact finder could conclude that

Cardenas was an NSV member at the time of his assault on Jose

Pena.

Cardenas contends that this evidence falls short under

People v. Prunty (2015) 62 Cal.4th 59 (Prunty). In Prunty, we

concluded that the prosecution failed to show that the predicate

and charged offenses were attributable to a single “ ‘criminal

street gang’ ” because the evidence was insufficient to establish

an “associational or organizational connection between the two

alleged Norteño subsets that committed the requisite predicate

offenses, and the larger Norteño gang.” (Prunty, at p. 81.)

Cardenas contends that the same is true here, where the jury

heard evidence about “Norteños” as well as NSV members; he

contends that the evidence failed to establish NSV as

“associationally or organizationally connected to any other

Norteño group or larger organization.”

We see no Prunty error. In Prunty, the jury had heard

about multiple subsets of the Norteños and about which

individuals were members of particular subsets. (See, e.g.,

Prunty, supra, 62 Cal.4th at p. 82, fn. 6.) Here, however, there

was sufficient evidence to support a jury finding that all the

relevant gang evidence concerned the same Visalia-based

Norteño subset, the NSV gang. Fahoum testified that NSV is a

“subset for a Norte[ñ]o gang” in Visalia. She also testified to the

existence of other gangs, like Varrio Woodlake or West Side

Tulare, but indicated that NSV members are “heavily

saturated” in Visalia. Cardenas’s arguments fail because the

record contains no evidence to suggest that Cardenas belonged

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to any Norteño subset other than NSV, nor any evidence to

suggest that any other Norteño subset committed the predicate

crimes. Cardenas argues that Fahoum identified certain gang

members only as Norteños, not as NSV members, but he

acknowledges that, when describing gang members operating in

NSV territory, Fahoum “used the terms Norteño and NSV

interchangeably.” Given the absence of evidence or argument

by the parties that an alternative subset could be responsible for

the predicate crimes, a reasonable fact finder could conclude

that the NSV subset was the single relevant criminal street

gang for the purpose of evaluating the evidence in this case.

c. Specific Intent To Further Criminal Conduct

by Gang Members

Cardenas argues that there was insufficient evidence to

show that he acted with the specific intent to further the

criminal conduct of gang members, as both the gang

enhancement statute and the special circumstance statute

require. We are unpersuaded. A rational trier of fact could find

beyond a reasonable doubt that, in committing the shooting,

Cardenas specifically intended to further criminal activities of

NSV members by enhancing control of the gang’s area of

operations and violently eliminating members of its “main rival”

and “enemy” gang. The jury heard that the shooting took place

on NSV territory, and Officer Fahoum explained that defending

gang territory was an important goal for NSV. Just before the

shooting, Cardenas concluded that his eventual victims were

Sureños (members of the rival gang); he referred to them as

“Scraps,” a derogatory term for Sureños that NSV members

typically used. The jury could also conclude that Cardenas

etched “X4,” a reference to NSV, on the trunk of Gerardo’s car,

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further signaling Cardenas’s intent to promote NSV’s criminal

activities.

Cardenas argues that this evidence is insufficient under

our decision in People v. Renteria (2022) 13 Cal.5th 951

(Renteria), a pre-Assembly Bill 333 case concerning the

sufficiency of the evidence to prove a gang enhancement in a

case involving a lone actor alleged to have committed a crime to

enhance the gang’s reputation. According to Cardenas, neither

Fahoum’s testimony nor any other trial evidence showed the

“ ‘significant connection’ ” between the current offense and other

gang offenses that Renteria requires in lone-actor cases.9 The

argument is unpersuasive.

We explained in Renteria that lone-actor cases require a

different showing of specific intent than cases where multiple

gang members were involved in the charged offense. (Renteria,

supra, 13 Cal.5th at pp. 964–965.) Whereas joint involvement

in a crime by fellow gang members often provides circumstantial

evidence of an intent to promote the criminal activity of other

gang members, the showing of intent for a gang member who

acted alone must include substantial evidence that the

9

The Attorney General argues that this case is not a lone-

actor case because Cardenas acted in concert with other NSV

members including Luis Rebolledo, and that the guidance we

gave in Renteria is therefore inapplicable. The Attorney

General further argues that the lone-actor specific intent

requirements announced in Renteria, which evaluated the gang

enhancement, do not apply to the gang-murder special

circumstance. We do not reach these arguments. Assuming, for

the sake of argument, that Renteria does apply to the gang

enhancement and gang-murder special-circumstance findings

in this case, we conclude that the evidence of the gang findings

was sufficient under the law as it existed at the time of trial.

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defendant was aware of the type of criminal activity the gang

members pursue and intended to promote criminal activity

other than the charged offense. (Id. at pp. 965–966.) That

showing can rely on expert testimony that the commission of a

particular crime by gang members enhances the gang’s

reputation, but only if there is “evidence connecting [that]

testimony . . . to the defendant’s commission of a crime on a

particular occasion for the benefit of the gang, and with the

specific intent to promote criminal activities by the gang’s

members.” (Id. at p. 969.) We identified several factors that

could help establish such a connection: “whether the

defendant’s gang membership was apparent to observers,

whether the victim was a gang member or rival of the

defendant’s gang, and whether retaliation for prior gang activity

or disputes prompted the defendant’s crime.” (Id. at p. 968.) We

found no sufficient connection in that case and vacated the gang

enhancement. (Id. at p. 973.)

This case is distinguishable from Renteria. In Renteria,

the defendant shot at two houses that had no confirmed

association with a rival gang. (Renteria, supra, 13 Cal.5th at

pp. 958–959, 971.) We thus explained that “[t]he first and most

fundamental difficulty with the prosecution’s case is that no

substantial evidence shows that Renteria intended his actions

to be attributed to his gang,” nor did the evidence show that

Renteria intended the shooting otherwise “to contribute to his

gang’s rivalry with [the rival gang].” (Id. at p. 971.) Here, by

contrast, the trial evidence showed that Cardenas called the

victims “Scraps” and showed great concern about confirming

their rival gang membership, shot these rival gang members in

retaliation for their presence on NSV territory, and etched what

appeared to be an “X4” gang symbol on the murder victim’s car.

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The evidence of the shooting’s circumstances “connect[ed]

[Fahoum’s] testimony about any general reputational

advantage that might accrue to the gang because of its members’

crimes to [Cardenas’s] commission of [the shooting] for the

benefit of the gang.” (Id. at p. 969.)

Cardenas argues that there is an “ ‘analytical gap’ ” in

Officer Fahoum’s testimony because she did not identify other

crimes that NSV committed in its territory and did not explain

how increased control of that territory would help the

commission of other crimes. (See Renteria, supra, 13 Cal.5th at

pp. 965–966 [in lone actor cases, intent to promote, further, or

assist “criminal conduct by gang members . . . necessarily means

the promotion of conduct other than the commission of the

underlying felony”], italics in original.) But, as noted, Fahoum

did identify NSV’s main criminal activities, including grand

theft auto, carjacking, assault, murder, and attempted murder,

and the jury could reasonably infer that NSV members commit

some of these crimes within their territory. The jury could also

reasonably infer that by killing perceived rival gang members in

NSV territory and etching a gang symbol at the scene of the

crime, Cardenas intended to send a message to the community

about the gang’s capacity for violence and control over its

territory, and did so with an intent to promote the criminal

activities of his gang. Given the other evidence presented, it was

not necessary for Officer Fahoum to march through each of these

analytical steps. Based on the evidence, the jury could

reasonably infer that Cardenas acted with “knowledge of at

least some of the criminal activities of the gang and its members

and intent to further those activities.” (Id. at p. 967.)

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2. Gang Enhancement: Intent To Benefit a Criminal

Street Gang

Cardenas argues that insufficient evidence supported the

jury’s finding that the shooting was committed for the benefit of,

at the direction of, or in association with a criminal street gang.

(§ 186.22(b)(1).) This argument, too, lacks merit.

To help the jury evaluate this element, the prosecution

presented Fahoum with a hypothetical asking her how it would

benefit NSV for a known NSV member to shoot at people

wearing blue in NSV territory. Fahoum responded that gangs

strive to instill fear and that “the primary fight for all gang

members is over turf.” The shooting would thus benefit NSV

because “it would show they are defending their territory” and

“answering to the insult of Southerners coming into their

territory.” She stated that the NSV member in the hypothetical

may also improve his stature in the gang by standing up for NSV

turf. Talking to a hypothetical more closely matching the facts

of the charged shooting, Fahoum opined that it would be

unlikely that the shooting would reflect a personal dispute: “[I]n

this particular hypothetical, it has everything to do with gangs,

because there’s derogatory slurs such as Scraps being

shouted. . . . There’s gang indicia. The victim is wearing blue.

The victim writes Sur on his car. [¶] . . . [T]he suspect writes

some gang terms on the vehicle.”

In People v. Albillar (2010) 51 Cal.4th 47, 63, we found

that an expert opinion along similar lines supported the jury’s

finding that the crimes were committed to benefit the gang. The

expert in that case, discussing a hypothetical, asserted that

three gang members who brutally raped a victim who knew

some of them were gang members would enhance their

individual status and benefit their gang’s reputation by raising

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the level of fear and intimidation in the community. (Ibid.)

Cardenas tries to distinguish Albillar on the ground that he

apparently acted alone and displayed fewer visible signs of gang

membership than the defendants in that case. The argument

overlooks the considerable evidence that the crime was directly

related to an ongoing gang rivalry: that the shooting took place

in NSV territory; that Cardenas identified his victims as rival

“Scraps” before shooting them; and that Cardenas etched an

“X4” gang symbol on Gerardo’s car during the shooting. The

evidence was sufficient to support a finding that Cardenas shot

perceived rival gang members for the benefit of his gang.

3. Gang-Murder Special Circumstance: Active

Participant in a Criminal Street Gang

Section 190.2(a)(22) requires that the defendant

“intentionally killed the victim while the defendant was an

active participant in a criminal street gang, as defined in

subdivision (f) of [Penal Code ]Section 186.22.” At the outset,

the parties dispute what the prosecution had to prove to

demonstrate that Cardenas was an active participant in NSV at

the time of the offense. Cardenas argues that “active

participation” for purpose of the gang-murder special

circumstance required proof of all three elements of the

substantive offense of active participation in a criminal street

gang, as the offense was defined in the then-effective version of

subdivision (a) of Penal Code section 186.22: (1) that a

defendant “actively participates in any criminal street gang”;

(2) knowledge that the gang’s members engage in or have

engaged in a pattern of criminal gang activity; and (3) willful

promotion, furtherance, or assistance in any felonious criminal

conduct by members of that gang. (Pen. Code, § 186.22, former

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subd. (a).) 10 The Attorney General argues that because section

190.2(a)(22) does not mention section 186.22, subdivision (a), its

reference to “ ‘active participant’ ” should bear its plain

meaning. We agree with the Attorney General.

Cardenas’s argument for incorporating the entirety of

Penal Code section 186.22, subdivision (a) draws on People v.

Robles (2000) 23 Cal.4th 1106, but Robles does not support his

position. In Robles, we interpreted a different penalty provision

that prohibited “ ‘an active participant in a criminal street gang,

as defined in subdivision (a) of Section 186.22,’ ” from unlawfully

carrying a loaded firearm in public. (Robles, at p. 1115, italics

added.) Given its explicit reference to section 186.22,

subdivision (a) — which does not define the term “active

participant in a criminal street gang” — we found this language

ambiguous and evaluated two potential meanings: The penalty

provision incorporated every element of section 186.22,

subdivision (a), or the penalty provision merely referenced the

first element of 186.22, subdivision (a), that the defendant

“ ‘actively participates in any criminal street gang.’ ” (Robles, at

p. 1112; see id. at p. 1111.) Invoking the rule of lenity, we

adopted the former interpretation. (Id. at p. 1115.)

Robles provides no guidance for our interpretation of

section 190.2(a)(22). (See Carr, supra, 190 Cal.App.4th at

p. 487.) Unlike the penalty provision at issue in Robles, section

190.2(a)(22) does not incorporate, or even refer to, Penal Code

section 186.22, subdivision (a). Instead, it references only

10

The first element of Penal Code section 186.22,

subdivision (a) has since been amended to require that the

defendant “actively participates in a criminal street gang.”

(Pen. Code, § 186.22, subd. (a), italics added.)

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subdivision (f) of Penal Code section 186.22, which defines

“criminal street gang.” (§ 190.2(a)(22).) Nothing in its language

suggests an intent to incorporate all elements of the substantive

active participation offense defined in section 186.22,

subdivision (a). In the absence of any such intent, we

understand section 190.2(a)(22)’s reference to “active

participant,” based on the “usual and ordinary meaning” of that

term, to mean “involvement with a criminal street gang that is

more than nominal or passive.” (People v. Castenada (2000) 23

Cal.4th 743, 747 [interpreting the first element of the § 186.22,

subd. (a) offense].)

We have no difficulty in concluding there was sufficient

evidence to support the finding that Cardenas’s involvement

was more than nominal or passive. His active participation was

evidenced by the charged shooting, his prior offenses, and his

uncharged prior altercations as a juvenile. The evidence related

to these incidents illustrated to the jury his membership in NSV,

his quarrels with rival Sureño gang members, and his interest

in defending NSV territory. The jury therefore had sufficient

evidence to determine beyond a reasonable doubt that Cardenas

had more than a nominal or passive relationship to NSV. There

was thus sufficient evidence to support the jury’s special

circumstance finding under the law as it existed at the time of

trial.

D. Sixth Amendment Right of Autonomy Over the

Defense

Cardenas argues that trial counsel violated his Sixth

Amendment right of autonomy over the defense by conceding

that Cardenas was responsible for the shooting, in violation of

the rule of McCoy, supra, 584 U.S. 414. We cannot evaluate this

claim based on the limited record now before us. Under the

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circumstances of the case, we conclude that it is appropriate to

allow the parties to litigate the relevant issues on remand.

In McCoy, which was decided several years after the trial

in this case, the United States Supreme Court held that the

Sixth Amendment forbids allowing defense counsel to concede a

defendant’s guilt “over the defendant’s intransigent and

unambiguous objection.” (McCoy, supra, 584 U.S. at p. 420; id.

at p. 426 [“counsel may not admit her client’s guilt of a charged

crime over the client’s intransigent objection to that

admission”].) The court explained that the defendant’s Sixth

Amendment right to “ ‘the Assistance of Counsel for his

defence’ ” preserves to the counseled defendant a right to

autonomy as to the fundamental objectives of the defense.

(McCoy, at p. 421; see id. at p. 422.) “Trial management,” the

court explained, “is the lawyer’s province: Counsel provides his

or her assistance by making decisions such as ‘what arguments

to pursue, what evidentiary objections to raise, and what

agreements to conclude regarding the admission of evidence.’

[Citation.] Some decisions, however, are reserved for the

client — notably, whether to plead guilty, waive the right to a

jury trial, testify in one’s own behalf, and forgo an appeal.” (Id.

at p. 422.) “Autonomy to decide that the objective of the defense

is to assert innocence belongs in this latter category.” (Ibid.) As

McCoy recognized, a concession strategy, particularly in a

capital case, may sometimes be a reasonable tactical choice. (Id.

at p. 428.) Counsel, however, has a duty to discuss trial strategy

with the client, and may not choose a strategy of conceding guilt

in the face of the client’s express objections. (Id. at pp. 421, 423.)

The decision whether to concede guilt of a crime — “even a lesser

crime than the one the prosecution charged” — is, ultimately, a

decision that belongs to the defendant, if the defendant chooses

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to make it. (People v. Bloom (2022) 12 Cal.5th 1008, 1039

(Bloom).)

The United States Supreme Court distinguished its prior

decision in Florida v. Nixon (2004) 543 U.S. 175 (Nixon), which

held that there was no Sixth Amendment violation when the

defendant had “ ‘never verbally approved or protested’ ” defense

counsel’s proposed concession of guilt and “complained about the

admission of his guilt only after trial.” (McCoy, supra, 584 U.S.

at p. 424, quoting and citing Nixon, at pp. 181, 185.) The McCoy

court explained that “[i]f a client declines to participate in his

defense, then an attorney may permissibly guide the defense

pursuant to the strategy she believes to be in the defendant’s

best interest.” (McCoy, at p. 424.) “Presented with express

statements of the client’s will to maintain innocence, however,

counsel may not steer the ship the other way.” (Ibid.)

In McCoy, by contrast, the defendant insistently protested

defense counsel’s strategy. (McCoy, supra, 584 U.S. at pp. 418–

420.) Throughout the proceedings, McCoy maintained that he

did not kill the three victims, that he had an alibi as he was out

of state at the time of the killings, and that corrupt police officers

had killed the victims following a drug deal. (Ibid.) Conversely,

his counsel determined that, in light of the “overwhelming”

evidence tying him to the murders, the best strategy to avoid a

death sentence was to concede his guilt to build credibility with

the jury and appeal to the jury’s mercy at the penalty phase. (Id.

at p. 418.) When McCoy learned of his counsel’s strategy two

weeks before trial, he was “ ‘furious’ ” and told his counsel “ ‘not

to make that concession’ ” of guilt. (Id. at pp. 418–419.) Two

days before trial, McCoy sought to terminate his counsel’s

representation over the disagreement. (Id. at p. 419.) When

defense counsel told the jury in opening statement that the

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evidence did not leave any reasonable doubt as to McCoy’s guilt,

McCoy protested to the court that his counsel was “ ‘selling [him]

out.’ ” (Ibid.) McCoy then testified in his own defense and

asserted his alibi to support his innocence. (Id. at p. 420.) His

counsel again conceded guilt in closing argument. (Ibid.) After

the jury returned three death verdicts, McCoy secured new

counsel and moved for a new trial, arguing that the trial court

violated his constitutional rights by allowing his trial counsel to

concede his guilt despite his objections. (Ibid.) In agreeing with

McCoy, the United States Supreme Court emphasized that he

had “insistently” maintained his innocence and “strenuously”

opposed his counsel’s proposed strategy “at every opportunity,

before and during trial, both in conference with his lawyer and

in open court.” (Id. at pp. 424, 428.)

In this case, defense counsel pursued a concession strategy

not unlike the strategy in McCoy: In hopes of persuading the

jury to find Cardenas not guilty of the capital murder of Gerardo

Cortez, counsel argued to the jury that Cardenas had committed

the shooting but did so without premeditation, deliberation, or

an intent to benefit the NSV gang. The central question before

us concerns whether Cardenas raised a sufficiently clear, timely

objection to invoke the rule of McCoy.

From the very start of the trial, defense counsel made

clear that the defense strategy was to establish that Cardenas

shot Gerardo without premeditation or deliberation, and thus

was not guilty of first degree murder. She told the jury in her

opening statement: “I think when the evidence reveals itself,

that you will not be able to find proof beyond a reasonable doubt

this was a first degree murder, but rather some other type of

homicide.” Defense counsel stated that in a prior confrontation,

Gerardo had attacked Cardenas with a screwdriver. Noting the

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“bad blood” between Gerardo and Cardenas and that a

screwdriver was also found in Gerardo’s clothing following his

death, defense counsel asserted to the jury that the shooting was

a “confrontation other than premeditated, deliberate murder,

but rather self-defense, sudden quarrel.”11 Defense counsel

asserted that the evidence would further show that the shooting

was “a personal endeavor, not for the benefit of any . . . gang,”

so the jury should not find the gang-murder special

circumstance to be true.

As the Attorney General notes, and Cardenas does not

dispute, there is no evidence that Cardenas objected to his

attorney’s admission of guilt at that time. Instead, so far as the

record reveals, Cardenas raised his first objection to his

counsel’s strategy in a Marsden12 hearing nearing the end of

trial, after the final defense witness testified and just before the

defense rested. Cardenas stated to the trial court, “[It] seems

like we’re going into this trial with a self-defense kind of plea

and stuff, and that was something I never agreed to or anything

like that.” He followed: “But the thing is, you know what I

11

Although defense counsel referred to “self-defense” in her

opening statement, she did not argue that Gerardo’s killing was

in perfect self-defense and thus a justifiable homicide because

Cardenas actually and reasonably believed it was necessary to

defend himself from an imminent danger of death or great bodily

injury. (See People v. Thomas (2023) 14 Cal.5th 327, 385–386,

cert. den. sub nom. Thomas v. California (2023) __ U.S. __ [143

S.Ct. 2573, 216 L.Ed.2d 1188].) At one point during trial,

defense counsel asked to call two witnesses who could testify

that Octavio used to carry weapons in order to support “a case

of self-defense” but did not articulate the self-defense theory she

had in mind. The trial court refused to allow that testimony

after noting that it had not “heard any evidence of self-defense.”

12

People v. Marsden (1970) 2 Cal.3d 118.

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mean, I’m trying to prove my innocence.” The court then asked,

“You were indicating that as you see the defense, they are

talking about self-defense. You want the defense to be, in fact,

you didn’t do it at all?,” to which Cardenas answered, “Yes.”

Cardenas explained that to support his alibi defense, he was

seeking testimony from witnesses that could “clear [him] up” or

“bring forth who actually did the crime.” But he acknowledged

that it had been difficult to secure such witnesses, noting that

these individuals feared being charged for crimes in connection

with the trial. When the court asked to confirm whether

Cardenas was claiming his lawyer was doing “a bad job,”

Cardenas replied: “There’s nothing wrong with my attorney.

For the most part she’s done her part and was getting ready to

contact these people. The people are in fear of coming to court.

They don’t want to be prosecuted.” “My attorney is not at fault

or anything. I’m not blaming her or anything. I know for the

most part, she’s trying to contact everybody.” The court then

assured Cardenas that his counsel was “doing a very good job,”

and opined that “[t]here’s no reason, of course and I think

[Cardenas will] agree, for [the court] to relieve her at this time,

but [his] concerns are on the record.”

In closing argument, defense counsel again argued that

while Cardenas committed the shooting, the shooting was not

premeditated or deliberate, as would be required to convict

Cardenas of first degree murder. She also reiterated that

Cardenas’s reasons for the shooting were related to “a personal

problem” stemming from a previous altercation, suggesting that

while Cardenas was responsible for shooting the victims, he did

not do so for the benefit of his gang and so should not be found

liable for special circumstance murder.

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As with the opening statement, Cardenas did not object to

these statements at the time. But in an undated letter the court

received during the penalty phase, after the jury had returned

its guilt phase verdicts, Cardenas wrote: “Would my rights to a

fair trial be violated if my attorney threw out the trial from the

beginning of open arguments to closing arguments telling the

jury that I was guilty of a lesser crime without first securing my

approval of this tactic? If so, how serious can this affect my

rights to a fair trial? Then what would be the Court’s duties and

responsibility to correct or determine if such an act violated my

rights to a fair and just trial?”

In response to Cardenas’s letter, the court held a second

Marsden hearing. During the second Marsden hearing, the

court again assured Cardenas: “[The court’s] duty is simply to

determine whether your attorney is acting as a competent

lawyer and representing your rights in a competent manner and

[the court] [hasn’t] seen anything that says that she hasn’t done

work[] other than [competently].” The court then confirmed that

Cardenas wanted to object to his defense counsel “saying [during

closing argument] convict my client of a lesser charge without

getting [his] approval.” The court added again that, in its view

of the evidence, defense counsel chose appropriate trial tactics.

Cardenas stated his trial counsel was “over here telling them

I’m guilty” while “I’m telling her[] I’m innocent” and made the

following objection: “[I]f she’s informing the jury that I’m guilty

of a charge which I’m trying to prove my innocence to[,] and she

[is] continuing to tell them I’m guilty[,] and the prosecution [is]

telling them I’m guilty[,] of course they are going to find me

guilty of a crime. My thing is by her saying I’m guilty without

her telling them I’m guilty or anything [—] me trying to prove

my innocence[,] does that [violate] my constitutional right to [a

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fair trial]?” The court disagreed with Cardenas, noting that it

did not appear defense counsel “ever said [Cardenas] [was]

guilty. . . . [S]he was saying that guilt has not been

satisfactorily shown.” The trial court also told Cardenas that

defense counsel “doesn’t necessarily have to conduct a defense

exactly as you would like to.”

Cardenas argues that his statements at the Marsden

hearings were sufficient to invoke his Sixth Amendment right

to determine the objectives of the defense under McCoy. In

Cardenas’s view, counsel erred in failing to alter the defense

strategy after he raised his objections to conceding his guilt of a

lesser offense. We are not, however, convinced that the

statements at the Marsden hearings, standing alone, suffice.

Certainly this case is not like Nixon, supra, 543 U.S. 175, in

which the defendant appeared to have nothing at all to say

about the defense’s concession strategy until after the trial had

concluded. But neither is it like McCoy, in which the defendant

consistently insisted that he did not commit the charged murder

and “opposed [his counsel’s] assertion of his guilt at every

opportunity.” (McCoy, supra, 584 U.S. at p. 424.) Nor, for that

matter, is it like Bloom, in which the defendant repeatedly made

his objections known in his repeated efforts to relieve his counsel

“[t]hroughout pretrial proceedings.” (Bloom, supra, 12 Cal.5th

at p. 1036.)

Here, even though counsel laid out her concession strategy

in her opening statement to the jury, the record contains no

indication that Cardenas objected at the time. When he did

raise concerns at the first Marsden hearing, held just before the

defense rested, the precise nature of his concerns was unclear.

While Cardenas stated at that hearing that he wished to

maintain his factual innocence by presenting alibi witnesses, he

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also acknowledged that he and his counsel had encountered

insurmountable difficulties in finding alibi witnesses available

and willing to testify on his behalf. He did not state that he

wished to pursue a strategy of arguing his actual innocence even

if no alibi witnesses could be found to support the argument. He

also made clear that he did not find fault with his attorney’s

performance — even though, as noted, his attorney had already

conceded his responsibility for the shootings in her opening

statement to the jury. As far as the record before us reveals,

Cardenas’s primary concern at the first Marsden hearing

appeared to be with locating available witnesses who could

support an alibi defense. Despite his expressed desire to

maintain his innocence, it is unclear that he wished to prevent

counsel from repeating the concessions she had already made in

her opening statement as an alternative strategy if the

necessary alibi witnesses could not be located, as it appeared

they could not. (Cf. Bloom, supra, 12 Cal.5th at p. 1040 [finding

a McCoy violation where defendant informed “the court and

counsel, in unmistakable terms, that he did not want to admit

to killing” the victims].)

Cardenas’s frustration with counsel’s strategy became

somewhat clearer at the second Marsden hearing. At that

hearing, Cardenas did explain his desire to prove his innocence

and expressed disapproval at his counsel’s suggestion that he

“was guilty of a lesser crime without first securing [Cardenas’s]

approval of this tactic.” But the record still leaves some

ambiguity. It is unclear whether Cardenas’s complaint was that

counsel pursued the concession strategy over his objection, or

that counsel pursued the concession strategy without his explicit

consent. The distinction matters under McCoy, which

reaffirmed that there is “ ‘[no] blanket rule’ ” that “ ‘demand[s]

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the defendant’s explicit consent’ ” to a concession strategy.

(McCoy, supra, 584 U.S. at p. 417, quoting Nixon, supra, 543

U.S. at p. 192.)

But more to the point, however, even assuming the second

Marsden hearing should have put counsel and the court on

notice that Cardenas did not want to concede guilt of any lesser

offense, that notice would have come too late, since the jury had

already returned its guilty verdicts. (Cf. McCoy, supra, 584 U.S.

at p. 424 [distinguishing Nixon on the ground that “Nixon

complained about the admission of his guilt only after trial”].)

At that point, there was nothing defense counsel could have

done to “steer the ship” in a different direction. (Id. at p. 424.)

In short, the record, as it stands, raises a substantial

possibility that Cardenas wished to maintain his innocence of

the shooting, regardless of what witnesses could or could not be

found to support his preferred alternative alibi defense, but the

record does not reflect whether he made those wishes known to

counsel in a timely way. (See People v. Eddy (2019) 33

Cal.App.5th 472, 481–483 [finding McCoy error where Marsden

hearing revealed evidence that defendant unequivocally

objected to counsel’s concession strategy out of court, before

counsel’s decision to concede guilt in closing argument].) So far

as the record reveals, it is also possible that Cardenas was

willing to go along with the concession strategy, at least up until

the time it became clear from the jury’s guilty verdicts that the

strategy had not worked. Because the record here was made

substantially before McCoy, neither the court nor the parties

made the appropriate inquiries necessary for us to fully evaluate

the issue. Had the hearings been conducted with the benefit of

McCoy, it would have been clear that the decision to concede

guilt rested with the client, and the trial court would

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presumably have conducted a more focused inquiry on the

nature of Cardenas’s objections, when those objections arose,

and when Cardenas first made counsel aware of his opposition

to counsel’s strategy.

To enable further factual exploration and overcome the

limitations in the record of the Marsden hearings, we conclude

that it is appropriate to allow Cardenas to further develop his

McCoy claim on remand. Our case law is clear that, as a general

rule, habeas is the appropriate vehicle for exploring factual

questions related to attorney performance. (See People v. Lopez

(2008) 42 Cal.4th 960, 966, 972; People v. Mai (2013) 57 Cal.4th

986, 1009.) But in certain limited circumstances, we have

previously ordered limited remands for purposes of developing

the record necessary to evaluate a claim raised on appeal.

(People v. Lightsey (2012) 54 Cal.4th 668, 706–707; People v.

Johnson (2006) 38 Cal.4th 1096, 1098.) Here, given the unique

circumstances of this case and its procedural posture, we

conclude the situation is sufficiently exceptional to warrant

deviation from the general rule. In particular, as noted, the

parties were deprived of the opportunity to create a more

complete record with the benefit of McCoy’s guidance.

Furthermore, for reasons already explained, this matter must

be remanded for further proceedings in any event. In this

unique situation, we will order a limited remand on Cardenas’s

McCoy claim as well.

E. Cumulative Prejudice

Cardenas argues that cumulative guilt phase errors

require reversal of not only his gang enhancements and gang-

murder special circumstance but also his murder and attempted

murder convictions. Cardenas argues that three errors require

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reversal of his convictions: the trial court’s denial of Cardenas’s

motion to recuse the Tulare County District Attorney’s Office

without holding an evidentiary hearing; the court’s refusal to

bifurcate the gang allegations; and his counsel’s admission of

guilt despite his desire to maintain his innocence, in violation of

the Sixth Amendment rule articulated in McCoy. Having found

no error on the first two claims, we find no error to cumulate.

(People v. Beames (2007) 40 Cal.4th 907, 933.) As noted,

Cardenas may continue to pursue the third claim on remand.

His claim of cumulative error, however, fails.

F. Other Claims under Recent Legislation

Cardenas has signaled that he intends to raise additional

claims made available by recently enacted legislation: Senate

Bill No. 620 (2017–2018 Reg. Sess.) (Stats. 2017, ch. 682, § 2),

which amended Penal Code section 12022.53 to give trial courts

discretion to strike a firearm enhancement imposed under that

section (Pen. Code, § 12022.53, subd. (h)), and the California

Racial Justice Act of 2020 (Stats. 2020, ch. 317, § 3.5), which

“prohibits the state from seeking or obtaining a criminal

conviction, or seeking, obtaining, or imposing a sentence, on the

basis of race, ethnicity, or national origin” (People v. Wilson

(2024) 16 Cal.5th 874, 945). The Attorney General agrees that

these claims may be raised in superior court on remand. We do

not further address those matters here.

IV. DISPOSITION

We reverse the judgments of conviction and the judgment

of death, and remand to the trial court for further proceedings

in accordance with this opinion.

On remand, the parties may conduct additional

proceedings as appropriate to the resolution of Cardenas’s claim

50

PEOPLE v. CARDENAS

Opinion of the Court by Kruger, J.

under McCoy v. Louisiana, supra, 584 U.S. 414, and any claims

Cardenas may raise under Senate Bill No. 620 (2017–2018 Reg.

Sess.) and the California Racial Justice Act of 2020. If the trial

court finds McCoy or Racial Justice Act error requiring reversal

of the judgments of conviction, it must set the case for a new

trial. (See People v. Lightsey, supra, 54 Cal.4th at p. 733; People

v. Johnson, supra, 38 Cal.4th at pp. 1103–1104.) Otherwise, the

trial court must reinstate the judgments of conviction. If the

judgments of conviction are reinstated, and unless barred

following adjudication of any additional claims Cardenas may

raise on remand, the People may retry the gang allegations,

including the gang-murder special-circumstance allegation, if

they so choose. (See People v. Cooper (2023) 14 Cal.5th 735, 746–

747.) If the People retry the gang-murder special-circumstance

allegation and the allegation is found true, the People may retry

the penalty phase.

KRUGER, J.

We Concur:

GUERRERO, C. J.

CORRIGAN, J.

LIU, J.

GROBAN, J.

JENKINS, J.

EVANS, J.

51

See next page for addresses and telephone numbers for counsel who

argued in Supreme Court.

Name of Opinion People v. Cardenas

__________________________________________________________

Procedural Posture (see XX below)

Original Appeal XX

Original Proceeding

Review Granted (published)

Review Granted (unpublished)

Rehearing Granted

__________________________________________________________

Opinion No. S151493

Date Filed: September 4, 2025

__________________________________________________________

Court: Superior

County: Tulare

Judge: Patrick J. O’Hara

__________________________________________________________

Counsel:

Michael J. Hersek, Mary K. McComb and Galit Lipa, State Public

Defenders, Jessica K. McGuire, Assistant State Public Defender,

Karen Hamilton, Hassan Gorguinpour and Gary Johnston, Deputy

State Public Defenders, for Defendant and Appellant.

O’Melveny & Myers, Chris A. Hollinger, Anna T. Pletcher, Megan

Havstad; and Nathalia Varela for LatinoJustice PRLDEF as Amicus

Curiae on behalf of Defendant and Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Gerald A. Engler

and Lance E. Winters, Chief Assistant Attorneys General, Michael P.

Farrell and James William Bilderback II, Assistant Attorneys General,

Kenneth N. Sokoler, Daniel B. Bernstein, Sean M. McCoy, Tia M.

Coronado and Ross K. Naughton, Deputy Attorneys General, for

Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for

publication with opinion):

Hassan Gorguinpour

Deputy State Public Defender

770 L Street, Suite 1000

Sacramento, CA 95814

(916) 322-2676

Ross K. Naughton

Deputy Attorney General

1300 I Street, 14th Floor

Sacramento, CA 95814

(916) 210-6283