People v. Cardenas: “Active Participant” in §190.2(a)(22) Carries Its Plain Meaning; Sanchez and AB 333 Require Reversal of Gang Findings and Death Judgment; Limited McCoy Remand Permitted

Introduction

In People v. Cardenas (Cal. Sept. 4, 2025), the California Supreme Court reversed gang-related findings and a death judgment arising from a 2003 gang-motivated shooting in Visalia, and ordered a limited remand to develop a McCoy autonomy claim. The opinion, authored by Justice Kruger and joined unanimously by Chief Justice Guerrero and Justices Corrigan, Liu, Groban, Jenkins, and Evans, synthesizes two major post-trial developments—People v. Sanchez (2016) and Assembly Bill 333 (2021)—to invalidate the gang enhancements and the gang-murder special circumstance. Beyond those determinations, the Court clarifies an important point of substantive law: the “active participant” element in Penal Code section 190.2(a)(22) bears its ordinary meaning (involvement that is more than nominal or passive) and does not import the full elements of the substantive active-participation offense in section 186.22(a). The Court also authorizes, in this unusual posture, a limited remand to develop the record for a claim under McCoy v. Louisiana (2018), departing from the usual habeas route when the pre-McCoy record is too thin and other remand proceedings are already necessary.

The case involves defendant Refugio Ruben Cardenas, convicted of first-degree murder and two attempted murders, with true findings on gang enhancements and a gang-murder special circumstance, culminating in a death verdict. On automatic appeal, the Supreme Court:

Reversed the gang enhancements and the gang-murder special circumstance under Sanchez and Assembly Bill 333, which together rendered the predicate-offense proof inadequate.
Reversed the death judgment (the only special circumstance fell).
Ordered a limited remand to litigate a McCoy autonomy claim given ambiguity in the pre-McCoy record; allowed the defendant also to pursue relief under Senate Bill 620 and the California Racial Justice Act on remand.
Held there was sufficient evidence under pre-AB 333 law to support gang findings, removing any double jeopardy bar to retrial of gang allegations.
Clarified that “active participant” in the gang special circumstance means more than nominal or passive involvement and does not import the full elements of section 186.22(a).
Affirmed denial of a motion to recuse the entire Tulare County District Attorney’s Office because an effective ethical wall mitigated conflict concerns; no evidentiary hearing was required absent a prima facie showing.

Summary of the Opinion

The Court held that the gang enhancements and the gang-murder special circumstance cannot stand because:

Sanchez prohibits experts from introducing case-specific hearsay to prove gang facts; the State’s proof of a key predicate offense (a 2001 drive-by shooting by Hector Mendoza) came solely from testimonial hearsay related by the gang expert and violated both state evidence law and the Confrontation Clause.
Assembly Bill 333 (effective Jan. 1, 2022, retroactive to nonfinal cases) narrowed the STEP Act’s definitions and forbids using the currently charged offense as a predicate; once the Sanchez-tainted predicate was removed, the record lacked the requisite pattern of criminal gang activity.

Because the gang special circumstance fell, the death judgment was reversed. The Court further:

Rejected a retroactive claim for mandatory bifurcation under Penal Code section 1109 (added by AB 333), holding—per People v. Burgos (2024)—that section 1109 is not retroactive. Under pre-333 law, the trial court did not abuse its discretion by refusing to bifurcate; much of the gang evidence was admissible to prove motive and intent in the underlying offenses.
Confirmed that, under then-applicable law, sufficient evidence supported the gang findings (including primary activities, pattern, specific intent, and the active participant element), permitting retrial of gang allegations without violating double jeopardy.
Clarified that the “active participant” language in section 190.2(a)(22) adopts the ordinary meaning—participation more than nominal or passive—and does not import the complete elements of section 186.22(a) (distinguishing People v. Robles).
Directed a limited remand to develop the defendant’s McCoy autonomy claim, given the record’s ambiguity about whether counsel conceded guilt over the defendant’s timely, intransigent objection.
Allowed the defendant to pursue relief under Senate Bill 620 (discretion to strike firearm enhancements) and the California Racial Justice Act on remand.

Disposition: The Court reversed the judgments of conviction and the death judgment and remanded. If the trial court finds McCoy or Racial Justice Act error requiring reversal, it must order a new trial; otherwise it must reinstate the judgments of conviction. The People may retry the gang allegations (including the special circumstance) consistent with current law. If the gang special circumstance is again found true, the penalty phase may be retried.

Analysis

Precedents Cited and Their Influence

People v. Sanchez (2016) 63 Cal.4th 665 — Sanchez reoriented California evidence law by holding that experts may not relate case-specific out-of-court statements for their truth unless independently admissible. Testimonial hearsay triggers Confrontation Clause protections. In Cardenas, the gang expert’s narrative of the Mendoza predicate offense (based on police reports and investigative conversations) violated Sanchez. This was decisive: without that predicate and with the charged offense barred by AB 333 as a predicate, the statutory pattern failed.
People v. Valencia (2021) 11 Cal.5th 818 — Valencia applied Sanchez to predicate offenses, requiring independently admissible proof. It foreclosed reliance on gang experts to relay hearsay about predicate crimes. The Court used Valencia’s framework to assess insufficiency of predicate proof.
Assembly Bill 333; People v. Tran (2022) 13 Cal.5th 1169; People v. Rojas (2023) 15 Cal.5th 561; People v. Burgos (2024) 16 Cal.5th 1 — AB 333 narrowed the STEP Act and added section 1109. Tran held its narrowing amendments retroactive but section 1109’s bifurcation rule non-retroactive (confirmed in Burgos). Rojas extended AB 333’s changes to the gang-murder special circumstance. Together, these authorities compelled reversal of gang findings in Cardenas and defeat of the death judgment premised on the lone special circumstance.
People v. Renteria (2022) 13 Cal.5th 951 — Renteria refined the specific-intent showing in “lone-actor” gang cases: there must be a significant connection between the defendant’s conduct and the promotion of other gang criminal activity. Cardenas applied Renteria’s reasoning and found that, under pre-AB 333 law, the specific intent element could be met by the facts (rival “Scraps” language, turf-based retaliation, and gang etching).
People v. Albillar (2010) 51 Cal.4th 47 — Albillar supports using expert testimony to show gang benefit when connected to the facts. Cardenas relied on this to uphold, under former law, the “for the benefit of” element for retrial-permissibility analysis.
People v. Prunty (2015) 62 Cal.4th 59 — Prunty requires proof that predicates and the charged offense are attributable to a single criminal street gang or connected subsets. Cardenas distinguished Prunty, finding the record tied the evidence to the NSV subset.
People v. Robles (2000) 23 Cal.4th 1106; People v. Castenada (2000) 23 Cal.4th 743; People v. Carr (2010) 190 Cal.App.4th 475 — Robles interpreted a different statute expressly linking to section 186.22(a) and, applying lenity, incorporated that offense’s elements. Cardenas held Robles inapplicable to section 190.2(a)(22), which references section 186.22(f) only; relying on Castenada’s explication of “active participant,” the Court adopted the ordinary meaning (“more than nominal or passive”), aligning with Carr.
McCoy v. Louisiana (2018) 584 U.S. 414; Florida v. Nixon (2004) 543 U.S. 175; People v. Bloom (2022) 12 Cal.5th 1008; People v. Eddy (2019) 33 Cal.App.5th 472 — McCoy recognizes a defendant’s autonomy to insist on innocence and forbids counsel from conceding guilt over intransigent objection. Nixon holds no violation when the defendant remains silent. Bloom and Eddy illustrate California applications of McCoy. Because the Cardenas record predated McCoy and was ambiguous, the Court ordered a limited remand to develop the autonomy claim.
People v. Hernandez (2004) 33 Cal.4th 1040 — Confirms trial courts’ discretion (pre-§1109) to bifurcate gang allegations; key inquiry is whether gang evidence is otherwise admissible to prove guilt. Applied in Cardenas to affirm the denial of bifurcation.
Section 1424 line: Haraguchi v. Superior Court (2008) 43 Cal.4th 706; People v. Trinh (2014) 59 Cal.4th 216; People v. Gamache (2010) 48 Cal.4th 347; People v. Eubanks (1996) 14 Cal.4th 580; People v. Bell (2019) 7 Cal.5th 70 — These decisions frame recusal standards. Cardenas reaffirms the heavy burden to recuse a DA’s office, the permissibility of ethical walls, and the non-necessity of an evidentiary hearing absent a prima facie showing of a disqualifying conflict under section 1424.
People v. Navarro (2021) 12 Cal.5th 285 — Erroneously admitted evidence is still considered for sufficiency review. This allowed the Court in Cardenas to hold that, under pre-AB 333 law, the predicate-offense and other gang elements were supported for double jeopardy purposes even though Sanchez error compels reversal of the enhancements.
People v. Lightsey (2012) 54 Cal.4th 668; People v. Johnson (2006) 38 Cal.4th 1096; People v. Cooper (2023) 14 Cal.5th 735 — Authorize limited remands in exceptional circumstances (Lightsey, Johnson) and clarify permissibility of retrial of enhancements after changes in law (Cooper). These underpin Cardenas’s remedial structure.

Legal Reasoning

1) Recusal: No Abuse of Discretion in Denying Office-Wide Disqualification

Applying Penal Code section 1424’s two-step test (conflict, then severity sufficient to threaten fairness), the Court upheld the denial of a motion to recuse the entire Tulare County District Attorney’s Office after the defendant’s former public defender later joined that office. A sworn declaration from the unit supervisor (who was also the trial prosecutor) showed the former defender was screened from the case, had no supervisory role, had no access to the file, and had no communications regarding the case. Without a prima facie showing to the contrary, no evidentiary hearing was required, and there was no due process violation.

2) Gang Findings: Sanchez + AB 333 Render the Record Insufficient

The State’s gang proof failed in two independent, compounding ways:

Sanchez violation: The gang expert conveyed case-specific, testimonial hearsay (police reports and investigative hearsay) about the Mendoza predicate offense. Under Sanchez and Valencia, such predicate facts must come from admissible, non-hearsay evidence or fall within a hearsay exception; testimonial statements also trigger the Confrontation Clause. The error was not harmless because it left an insufficient evidentiary basis for that predicate.
AB 333’s narrowing: AB 333’s retroactive amendments forbade using the charged offense as a predicate and imposed other pattern-tightening rules. With the charged offense unavailable and the Mendoza predicate inadmissible, the statutory pattern requirement under section 186.22 could not be met, dooming both the enhancements and the gang special circumstance (§190.2(a)(22) incorporates §186.22(f) for the definition of “criminal street gang”).

3) Bifurcation: No Retroactivity; No Abuse Under Pre-333 Law

Section 1109’s mandatory bifurcation rule is not retroactive. Under pre-333 standards, denial of bifurcation was not an abuse of discretion given that much gang evidence independently bore on motive and intent for the underlying offenses and was not unduly inflammatory relative to the charged crimes.

4) Sufficiency of Evidence Under Pre-333 Law: Retrial Permitted

To determine whether retrial of gang allegations is permitted (i.e., no double jeopardy bar), the Court assessed sufficiency under the law as it existed at trial, counting even erroneously admitted evidence (Navarro).

Primary activities: The expert’s testimony (including personal knowledge of NSV crimes such as grand theft auto, assaults, shootings) supported that NSV consistently engaged in listed criminal activity.
Pattern: Despite evidentiary defects now recognized under Sanchez, the trial record was sufficient by the standards then prevailing to find the Mendoza drive-by and Cardenas’s 2000 assault on Jose Pena were committed by NSV members.
Specific intent: Even assuming Renteria’s “lone-actor” rubric applied, the facts connected the shooting to gang objectives: the use of “Scraps” to denote rivals, turf-based retaliation, and gang etchings, along with expert testimony about territorial control.
No Prunty defect: The evidence consistently tied the conduct and predicates to the NSV subset; there was no proof or argument suggesting another subset committed the predicates.
Active participant (special circumstance): The Court held the §190.2(a)(22) phrase “active participant” carries its ordinary meaning—participation more than nominal or passive—rather than importing §186.22(a)’s separate elements, distinguishing Robles and aligning with Carr and Castenada. On that understanding, the record sufficed.

Conclusion: Retrial of gang allegations, including the special circumstance, is permitted.

5) McCoy Autonomy: Limited Remand to Develop the Record

The defendant claims trial counsel conceded guilt over his objection. The record shows counsel’s concession strategy (no premeditation/deliberation; not gang-related) was announced in opening statement without a contemporaneous objection, a later Marsden hearing where the defendant expressed a desire to prove innocence and alluded to alibi witnesses, and a post-verdict letter objecting to concessions without his approval. Because the proceedings predated McCoy and the record is equivocal about whether the defendant clearly and timely objected, the Court ordered a limited remand to permit litigation of the McCoy claim. If a McCoy violation is found, a new trial must be ordered; otherwise, the convictions are to be reinstated.

6) Cumulative Error and Additional Statutes

The Court found no cumulative error affecting guilt. It expressly permitted the defendant on remand to pursue sentencing relief under Senate Bill 620 (court’s discretion to strike firearm enhancements) and claims under the California Racial Justice Act.

Impact

Substantive clarification of §190.2(a)(22): Statewide, prosecutors proving the gang-murder special circumstance need not establish the full matrix of §186.22(a) elements to show “active participation.” The element asks for more than nominal or passive involvement and focuses on the defendant’s relationship to a §186.22(f)-defined gang, not on proof of knowledge of a pattern or willful promotion of felonious conduct as separate elements of the special circumstance. This lowers the doctrinal burden on that one element, even as AB 333 raises the bar elsewhere.
Predicate proof after Sanchez/AB 333: The decision underscores that many pre-2016 gang verdicts are vulnerable when predicate facts were proven via expert hearsay. Prosecutors now must marshal admissible, non-hearsay, non-testimonial evidence of two qualifying predicate offenses that collectively benefit the gang, are committed by “members,” occur within statutory temporal limits, and are different from the charged offense. This makes retrials more challenging and encourages more rigorous proof practices (e.g., certified records, live percipient witnesses).
Procedural innovation: limited McCoy remands: Cardenas signals that, where the appellate record predates McCoy and is materially ambiguous—and where the case is being remanded anyway—the Supreme Court may authorize a limited remand to develop the record rather than relegating the issue strictly to habeas. This pragmatic approach may shape future appellate remedies in autonomy-claim litigation.
Bifurcation and prejudice management: The Court reaffirms the non-retroactivity of section 1109 and, under Hernandez, tolerates admission of gang evidence when probative of motive or intent. Defendants in pre-1109 trials face a high bar to show abuse of discretion.
Recusal and ethical walls: The opinion fortifies the viability of internal ethical screens to address conflicts when a former defense lawyer joins a prosecutor’s office. Absent concrete evidence of breach or influence, office-wide recusal remains a “heavy-burden” remedy.
Remedial roadmap: The Court’s disposition—reversing the convictions and death judgment but directing reinstatement absent McCoy/RJA error—provides a template for complex remands that simultaneously implement intervening changes in gang law and preserve avenues for autonomy and racial justice claims.

Complex Concepts Simplified

STEP Act (Penal Code §186.20 et seq.): California’s gang statute. It enhances sentences for crimes committed to benefit a criminal street gang and defines “criminal street gang,” “pattern of criminal gang activity,” and related elements.
Predicate offenses: Prior crimes by gang members (not the charged offense, under AB 333) used to show a “pattern of criminal gang activity.” Must be proved with admissible, non-hearsay evidence; now must commonly benefit the gang (more than reputational), be committed by “members,” and meet timing requirements.
People v. Sanchez: Experts can’t smuggle in case-specific hearsay (e.g., police reports, witness statements) for the truth; testimonial hearsay also violates the Confrontation Clause absent unavailability and prior cross-examination.
Assembly Bill 333: Tightened gang definitions; barred using the charged offense as a predicate; required that the pattern be “collectively engaged in” by members; and that the common benefit be “more than reputational.” Its narrowing is retroactive to nonfinal cases.
Gang-murder special circumstance (§190.2(a)(22)): Elevates first-degree murder to death or LWOP if the defendant intentionally kills while an active participant in a §186.22(f)-defined gang and the murder furthers gang activities. “Active participant” here means more than nominal or passive involvement, not all elements of §186.22(a).
McCoy autonomy right: The Sixth Amendment allows a defendant to decide fundamental defense objectives—chiefly, whether to maintain innocence. Counsel cannot concede guilt over the defendant’s intransigent, unambiguous objection.
Marsden motion: A California procedure for a defendant to seek substitution of appointed counsel based on inadequate representation or irreconcilable conflict. It’s not the same as a McCoy objection, but Marsden hearings can reveal whether the defendant objected to counsel’s concession strategy.
Double jeopardy and sufficiency review: If evidence at trial (including erroneously admitted evidence) was sufficient under then-existing law, the prosecution may retry after appellate reversal based on changes in law or evidentiary error.
Ethical wall: Internal screening within a prosecutor’s office to isolate a conflicted attorney from a case, preventing access or influence, thereby avoiding office-wide disqualification.

Conclusion

People v. Cardenas is a consequential decision at the intersection of gang law, evidentiary reform, capital sentencing, and Sixth Amendment autonomy. The Court:

Applies Sanchez and AB 333 to invalidate the gang enhancements and gang special circumstance, necessitating reversal of the death sentence.
Establishes a clear statewide rule that “active participant” in §190.2(a)(22) has its ordinary meaning—participation more than nominal or passive—and does not import the full elements of §186.22(a).
Confirms that, despite reversal under modern standards, sufficiency under then-applicable law allows retrial of gang allegations.
Authorizes a limited remand to resolve a McCoy autonomy claim on a record that predated McCoy, signaling a pragmatic remedial approach when other remand proceedings are already required.
Reaffirms non-retroactivity of bifurcation under §1109, the viability of ethical walls against recusal, and the availability of SB 620 and Racial Justice Act relief on remand.

Going forward, Cardenas will shape how prosecutors prove gang allegations post-AB 333 and Sanchez, how courts read the gang special circumstance’s “active participant” element, and how appellate courts manage McCoy claims arising from pre-McCoy trial records. It balances heightened evidentiary rigor in gang cases with a clarified, text-faithful reading of the special circumstance’s participation requirement and a flexible, fairness-oriented remedial posture in autonomy disputes.