Aguirre: AB 333’s “More-Than-Reputational” Predicate Requirement Applies Retroactively; Evidence Code § 352.2 Is Not Retroactive; Death Judgment Reversed

Aguirre: AB 333’s “More-Than-Reputational” Predicate Requirement Applies Retroactively; Evidence Code § 352.2 Is Not Retroactive; Death Judgment Reversed

Court: Supreme Court of California

Date: August 28, 2025

Case: People v. Aguirre, S175660 (Orange County Super. Ct. No. 07ZF0003)

Opinion by: Chief Justice Guerrero (joined by Justices Corrigan, Kruger, Groban, and Jenkins). Dissenting opinions by Justice Liu (joined by Justice Evans) and Justice Evans (joined by Justice Liu).

Introduction

This capital case arises from a 2003 gang-motivated shooting in Orange County that tragically killed 13-year-old Minh Tran and wounded two family members. In 2009, a jury convicted Jason Alejandro Aguirre of murder, two counts of attempted murder, active gang participation, and a felon-in-possession offense. The jury also found true gang enhancements and a gang-murder special circumstance (§ 190.2(a)(22)), and returned a penalty verdict of death. On automatic appeal, the California Supreme Court reverses the death judgment and all gang findings based on post-trial changes to California’s gang laws enacted by Assembly Bill 333 (Stats. 2021, ch. 699). The Court otherwise affirms Aguirre’s convictions for murder, attempted murder, and felon-in-possession, rejecting claims under Batson/Wheeler, corroboration of accomplices, third-party culpability instructions, continuance denial, witness sequestration, and prosecutorial argument.

Two further issues of statewide importance receive extensive treatment: (1) the retroactive effect of AB 333’s heightened requirements for proving a “pattern of criminal gang activity” (now including a “more-than-reputational” common benefit requirement), and (2) whether Evidence Code § 352.2—the 2023 statute governing admissibility of “creative expression” (e.g., rap lyrics)—applies retroactively. The Court holds that AB 333’s substantive changes to § 186.22 do apply retroactively, compelling reversal of all gang findings and the gang-murder special circumstance; but Evidence Code § 352.2 does not apply retroactively. The Court then upholds admission of Aguirre’s handwritten lyrics under traditional Evidence Code § 352 principles.

Summary of the Opinion

  • Gang findings and death judgment reversed under AB 333: The Court reverses the conviction for active participation in a criminal street gang (§ 186.22(a)), all gang enhancements (§ 186.22(b)(1)), and the gang-murder special circumstance (§ 190.2(a)(22)), because the jury was not instructed on AB 333’s “more-than-reputational” common benefit requirement for predicate offenses and related constraints. The error was not harmless beyond a reasonable doubt. As the sole special circumstance was reversed, the death judgment is also reversed.
  • Evidence Code § 352.2 is not retroactive: The “creative expression” statute does not apply to pre-2023 trials; thus admissibility of defendant’s handwritten lyrics is reviewed under § 352. The Court finds no abuse of discretion and no due process violation, distinguishing recent cases cautioning against overbroad use of lyrics.
  • Batson/Wheeler claim rejected: Applying deferential review, the Court upholds the trial court’s acceptance of the prosecutor’s race-neutral reasons for striking the lone Black juror in the box (an engineer with past exposure to gangs and some prior knowledge of the gang name), finding substantial evidence supports the ruling. The dissents would find a violation.
  • Other guilt-phase challenges fail:
    • Accomplice corroboration: Independent evidence sufficiently corroborated accomplice identifications (§ 1111).
    • Third-party culpability instruction: No sua sponte duty to give a pinpoint instruction beyond the standard reasonable-doubt and burden-of-proof instructions; no ineffective assistance in not requesting one.
    • Continuance re: DNA mix-up: No abuse of discretion or due process violation; defense did not show materiality and reasonable time under § 1050 and Beeler/Doolin standards.
    • Witness sequestration: No abuse under Evid. Code § 777 and Pen. Code § 1102.6; prior grand jury testimony and admonitions mitigated tailoring concerns.
    • Prosecutorial argument: Claims forfeited by lack of objection; no ineffective assistance for not objecting to a “yellow-light” premeditation analogy or the “take your streets back” exhortation; no prejudice.

Analysis

1) Retroactivity and Substance: Assembly Bill 333’s Overhaul of § 186.22

What changed under AB 333

AB 333 significantly narrowed the definition of a “pattern of criminal gang activity” (§ 186.22(e)) by requiring proof that:

  • At least one predicate offense occurred after the chapter’s effective date;
  • The last predicate occurred within three years of a prior predicate and within three years of the currently charged offense;
  • The predicates were committed on separate occasions or by two or more gang members (not just any “persons”);
  • The predicates “commonly benefitted a criminal street gang,” and the “common benefit” was more than reputational (§ 186.22(g)); and
  • The currently charged offense cannot serve as a predicate (§ 186.22(e)(2)).

Precedents cited

  • People v. Tran (2022) 13 Cal.5th 1169: AB 333’s substantive changes apply retroactively under Estrada to nonfinal cases.
  • People v. Burgos (2024) 16 Cal.5th 1: § 1109’s bifurcation is not retroactive; the Court uses Burgos’s framework to analyze retroactivity questions in this opinion.
  • People v. Rojas (2023) 15 Cal.5th 561: AB 333’s changes can affect the gang-murder special circumstance; applying AB 333 to § 190.2(a)(22) does not violate Proposition 21’s amendment constraints.
  • People v. Lamb (2024) 16 Cal.5th 400; People v. Sanchez (2016) 63 Cal.4th 665; People v. Valencia (2021) 11 Cal.5th 818; People v. Cooper (2023) 14 Cal.5th 735: Case-specific hearsay limits and harmless error standard (beyond a reasonable doubt) for omitted elements.

How the Court applied AB 333 here

The trial was conducted pre-AB 333. The jury was not instructed that the predicate offenses must have conferred a “more-than-reputational” common benefit. Reviewing the record stripped of case-specific hearsay (Sanchez/Valencia), the Court found no basis to conclude beyond a reasonable doubt that a properly instructed jury would have found two predicates satisfying the new “common benefit” element. Notably:

  • For the August 2002 Si Tien Nguyen incident, the certified records identified an attempted murder at “Mile Square Park” with the utterance “DFJ,” but did not establish nonreputational benefit (e.g., retaliation, financial gain, intimidation of a witness). The context and victims’ affiliations were unknown on this record.
  • Because the prosecution must prove two qualifying predicates, and at least one was insufficient under the new standard, the error was prejudicial under Lamb. The Court therefore did not need to reach the June 2003 incident involving Bryan Ha and Donny Nguyen.

Consequences

  • Active gang participation count reversed.
  • All gang enhancements reversed.
  • Gang-murder special circumstance reversed. Because this was the only special circumstance, the death judgment is reversed.
  • Remand. The People may decide whether to retry gang allegations and, if successful, whether to pursue the special circumstance again. Double jeopardy does not bar retrial where reversal rests on legal change, not evidentiary insufficiency under the then-governing law.

Practice implications

  • Prosecutors: Post-AB 333, ensure predicate proof includes admissible evidence of a common benefit that is more than reputational—e.g., retaliation against rivals, financial gain, witness intimidation—tied to the gang, not merely the actor’s personal status. Do not rely on the charged offense as a predicate.
  • Defense: In legacy cases, challenge gang findings lacking AB 333-compliant instructions or proof of nonreputational benefit; scrutinize predicate proof for Sanchez-compliant, non-hearsay evidence.
  • Trial courts: Use updated CALCRIM instructions reflecting § 186.22’s post-AB 333 elements; police expert testimony to avoid case-specific hearsay.

2) Evidence of “Creative Expression”: § 352.2 Is Not Retroactive; Lyrics Admissible Under § 352

Holding on retroactivity

The Court holds Evidence Code § 352.2 does not apply retroactively. The default presumption of prospective operation (Evid. Code § 12; Pen. Code § 3) governs, and, applying Burgos’s approach, § 352.2 does not reduce punishment, alter elements or defenses, or create an alternative pathway to lesser punishment. It is a rule of evidence that courts may apply prospectively to creative expressions. Legislative findings did not “clearly and unavoidably” signal retroactive intent.

Precedents and authorities discussed

  • People v. Burgos (2024) 16 Cal.5th 1: Framework distinguishing substantive amelioration triggering Estrada from procedural rules like bifurcation.
  • Courts of Appeal split: People v. Ramos (2023) 90 Cal.App.5th 578 (review granted) and People v. Slaton (2023) 95 Cal.App.5th 363 (review granted) — not retroactive; People v. Venable (2023) 88 Cal.App.5th 445 (review granted) — retroactive. The Supreme Court aligns with Ramos/Slaton.

Admissibility under Evidence Code § 352

Having found § 352.2 inapplicable, the Court reviewed admission of Aguirre’s handwritten lyrics under § 352 and upheld their admission:

  • Probative value: The lyrics were relevant to active gang participation, motive/intent, and identity. They referenced DFJ affiliation (“its dfj every day all day till the day i die”), black clothing consistent with the gang’s color and witnesses’ accounts, and firearms consistent with the ballistics (.357/.38). The writings were sufficiently connected to Aguirre (handwriting analyst; location in his Arizona apartment; overlap with instant messages).
  • Undue prejudice: Although the lyrics contained offensive language and violent imagery, the Court found no substantial risk of undue prejudice that substantially outweighed probative value, especially given similar language in properly admitted instant messages and the violent nature of the charged crimes.
  • Distinguishing recent cautionary cases:
    • People v. Hin (2025) 17 Cal.5th 401: There, the CD’s rap song lacked a foundational link to the defendant’s authorship, production, or listening; not comparable to Aguirre’s situation.
    • People v. Coneal (2019) 41 Cal.App.5th 951: Multiple videos posted months before the crime; minimal probative value and high prejudice; again unlike Aguirre, where authorship was established and content overlapped with facts.
    • People v. Melendez (2016) 2 Cal.5th 1: Defense-offered lyrics lacked foundation; here, the prosecution met foundation and relevance.
    • People v. Olguin (1994) 31 Cal.App.4th 1355; People v. Zepeda (2008) 167 Cal.App.4th 25: Lyrics may be probative of gang affiliation and intent.

Practice implications

  • Prosecutors: Even without § 352.2 in legacy cases, heed § 352’s balancing and recent appellate guidance. Strengthen foundation (authorship, timing, similarity to charged conduct) and tether probative content to non-propensity purposes (motive, identity, intent, and, post-AB 333, properly framed gang elements).
  • Defense: Object to creative expression evidence as cumulative, minimally probative, unduly prejudicial, or propensity driven; request tailored limiting instructions; argue lack of literal relevance where context shows bravado or fiction.
  • Trial courts: When § 352.2 applies prospectively, make express findings to show careful consideration of statutory factors (timing, similarity, non-public factual details, risk of bias or propensity). In pre-2023 cases, robust § 352 records are still advisable.

3) Batson/Wheeler: Deference to Trial Court’s Credibility Finding

The three-step framework

  1. Prima facie case: Inference of discriminatory purpose from totality of circumstances.
  2. Race-neutral explanation: Prosecutor must articulate a facially neutral reason.
  3. Genuineness determination: Court decides whether the opponent proved purposeful discrimination; credibility is key.

Precedents cited

  • Batson v. Kentucky (1986) 476 U.S. 79; People v. Wheeler (1978) 22 Cal.3d 258.
  • People v. Nadey (2024) 16 Cal.5th 102; People v. Mai (2013) 57 Cal.4th 986; People v. Baker (2021) 10 Cal.5th 1044; People v. O’Malley (2016) 62 Cal.4th 944; People v. Lenix (2008) 44 Cal.4th 602.
  • Flowers v. Mississippi (2019) 588 U.S. 284 (disparate questioning as probative, not dispositive). Snyder v. Louisiana (2008) 552 U.S. 472 (demeanor reasons require care).
  • Mentioned for context: Code Civ. Proc. § 231.7 (prospective limits on peremptories effective 2022).

Application in Aguirre

The trial court asked for the prosecutor’s reasons after the defense raised Wheeler. The prosecutor cited that the juror: (i) was an engineer (a “very precise” line of work), (ii) had been friends with gang members, (iii) had heard of “this particular gang,” and (iv) showed “some level of hesitation” answering. The trial court found the reasons credible and race-neutral and denied the motion. The Supreme Court—emphasizing the “deferential” standard—held substantial evidence supported the ruling:

  • Engineer rationale: Permissible reliance on profession-based concerns regarding an overly “precise”/detail-oriented approach potentially ill-suited to assessing testimonial evidence and penalty-phase weighing.
  • Gang-friendship: Prior friendships with gang members can ground a race-neutral concern in a gang case, even where juror holds negative views of gangs, because personal ties may affect reception of expert testimony or evidence.
  • Prior knowledge: The juror acknowledged hearing of the relevant gang, though the record’s ambiguity (e.g., “V.F.N.”) did not transform the reason into pretext; minor factual mistakes do not automatically show bias.
  • Hesitation: Although not reflected as a pause in the transcript, “some level of hesitation” could include delivery or manner; lack of explicit transcript cue did not contradict the reason.
  • Comparative analysis: Other seated jurors (including engineers) were not similarly situated given the combination of factors (profession + friendships + gang familiarity + demeanor) present for this juror. The absence of identical questioning does not compel a finding of pretext, especially where counsel’s earlier questions prompted the prosecutor’s follow-up.

Dissents: Justice Liu (joined by Justice Evans) would find a Batson/Wheeler violation, stressing that the trial court articulated the wrong standard (“any” race-neutral reason), failed to probe genuineness (especially the demeanor rationale), and that the prosecutor’s stated reasons were implausible or mischaracterized the record. Justice Evans flagged publicly available prosecutorial training materials (not part of the record) as heightening concerns about reliance on stock race-neutral reasons and argued deference was unwarranted on this record.

Practice implications

  • Trial courts: Make a “sincere and reasoned” record at step three; when reasons are not “self-evident,” consider follow-up questions. If demeanor is asserted, say whether the court observed it. Avoid framing the inquiry as whether “any” neutral reason exists; the question is whether the stated reasons are genuine.
  • Prosecutors: Tie reasons to the case; avoid misstatements; if prior knowledge or friendships are factors, articulate how they matter to this case.
  • Defense: Request explicit findings on demeanor-based reasons; develop comparative juror analysis; preserve objections contemporaneously; when appropriate, cite § 231.7 in post-2022 trials.

4) Other Guilt-Phase Issues

Accomplice corroboration (Pen. Code § 1111)

The Court finds ample independent corroboration beyond accomplice testimony, including: eyewitness pursuit linking vehicles to Aguirre’s residence; ballistic consistency with a revolver; cell phone evidence linking “Jason/Slim” to participants and locations; instant messages (e.g., “i blast three n****z” under “everybodykilla22”); searches for Aguirre’s warrants; and the lyrics tying DFJ identity, firearms, and black clothing. The corroboration “need not corroborate every fact” (Miranda; Slaughter) and can be circumstantial.

No sua sponte duty to give a third-party culpability instruction

Standard reasonable-doubt and burden instructions (CALCRIM 220) suffice (Gutierrez (2009); Abilez (2007)). A pinpoint instruction must be requested; counsel’s failure to request was not deficient, nor prejudicial (Rangel; Saille).

Denial of continuance to probe DNA sample mix-up

No abuse of discretion or due process violation under § 1050, Beeler, Doolin, Roldan: the defense sought a four-week delay after receiving records and hearing from Eric Pham; materiality and likelihood of benefit were speculative; trial had begun jury selection; the court had already allowed time and urged production.

Witness sequestration

No abuse in permitting victims (brother and cousin) to be present during each other’s testimony (Evid. Code § 777(a); Pen. Code § 1102.6). Prior sworn grand jury testimony existed, the court admonished against discussion, and tailoring concerns were speculative (Bradford; Griffin; Wallace; Lariscy; Dunn).

Prosecutorial argument

  • Forfeiture: No objections were lodged to either the “yellow-light” premeditation analogy or the “take your streets back” exhortation; no established futility.
  • Merits/IAC: The “yellow-light” analogy was consistent with CALCRIM 521/600 (Avila; Azcona; Son; Wang). The “take your streets back” phrase, while aggressive rhetoric, was brief, tethered to the “O.C. is ours” lyric theme, and any impropriety was not reasonably likely to affect the outcome; counsel could reasonably decide not to object (Centeno distinguished).

Complex Concepts Simplified

  • “Pattern of criminal gang activity” (post-AB 333): The People must prove two or more qualifying offenses (not the charged offense), on separate occasions or by two+ gang members, where the offenses “commonly benefitted” the gang in a way that is more than reputational (e.g., retaliation, financial gain, witness intimidation), with timing constraints.
  • “Common benefit … more than reputational”: It’s not enough that the crime made the gang or actor look “hard” or “feared.” The prosecution must show a concrete benefit to the gang beyond status, with admissible evidence tying the act to the gang’s aims.
  • Case-specific hearsay (Sanchez/Valencia): An expert cannot relay out-of-court statements describing case-specific facts for their truth. Predicate facts must come from admissible evidence (e.g., certified records) or non-hearsay sources. This materially affects predicate proof.
  • Estrada retroactivity: Ameliorative statutes reducing punishment or narrowing liability apply to nonfinal cases unless the Legislature indicates otherwise. AB 333’s substantive narrowing qualifies; Evidence Code § 352.2 does not.
  • Batson/Wheeler step three: After race-neutral reasons are given, the judge decides if they are sincere, not just facially neutral; credibility is pivotal.
  • Harmless beyond a reasonable doubt: For missing-element instructional error (e.g., omitted “common benefit” standard), the question is whether the verdict would have been the same if properly instructed.

Broader Impact and Guidance

Gang cases statewide

  • Legacy verdicts: Many pre-AB 333 gang findings may be vulnerable on appeal or habeas where instructions and proof do not meet the “more-than-reputational” standard and other statutory changes.
  • Death eligibility: Where a sole special circumstance is the gang-murder special circumstance, reversal of that special circumstance may unravel the death judgment, as here.
  • Proving predicates: Prosecutors must marshal admissible, non-hearsay evidence showing concrete, gang-level benefits for each predicate and respect the new timing and membership requirements.

Creative expression evidence

  • Pre-2023 trials: § 352 controls. Foundational links (authorship, timing, similarity) increase probative value; ensure non-propensity use.
  • Post-2023 trials: § 352.2 imposes explicit considerations and recognizes risks of stereotype activation and propensity misuse; judges should create robust records.

Batson/Wheeler practice

  • Record-building: Trial courts should articulate credibility findings, especially for demeanor-based reasons; request clarifications when reasons are not self-evident.
  • Comparisons: Parties should develop and argue comparative juror analysis contemporaneously to sharpen the step-three evaluation.

What Happens Next

  • On remand: The case returns to the trial court for proceedings consistent with the opinion. The People may seek to retry the gang enhancements, the § 186.22(a) count, and the gang-murder special circumstance under AB 333-compliant instructions and proof.
  • Penalty posture: Because the only special circumstance was reversed, the death judgment is vacated. If the People obtain a new true finding on the gang-murder special circumstance, further penalty proceedings may follow under applicable law.

Conclusion

People v. Aguirre cements two important statewide rules. First, AB 333’s substantive narrowing of § 186.22—including the “more-than-reputational” common benefit for predicates—applies retroactively and can compel reversal of gang findings and related death judgments where the record and instructions do not meet the new standard. Second, Evidence Code § 352.2 does not apply retroactively; trial courts must continue to navigate creative-expression evidence under § 352 in legacy cases, while applying § 352.2 prospectively with careful on-the-record balancing.

On Batson/Wheeler, Aguirre reiterates that appellate review is deferential where the trial court has made a “sincere and reasoned” assessment of the prosecutor’s credibility, although the dissents offer a bracing reminder that the form of a race-neutral reason cannot substitute for its genuineness. The Court’s disposition—reversing the gang findings and death judgment while affirming the core homicide convictions—reflects a careful application of retroactivity doctrine and evidentiary law to an older record, and provides concrete guidance for trial courts, prosecutors, and defense counsel going forward.

Case Details

Year: 2025
Court: Supreme Court of California

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