People v. Breedlove CA2/5 ( 2024 )

Filed 10/21/24 P. v. Breedlove CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B327882
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. NA096371)
DERRICK BREEDLOVE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Richard M. Goul, Judge. Reversed, in part, and
remanded.
Lori Nakaoka, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Steven D. Matthews, Supervising
Deputy Attorney General, and Michael J. Wise, Deputy Attorney
General, for Plaintiff and Respondent.
A jury convicted defendant and appellant Derrick
Breedlove (defendant) of the first degree murder of Richard
Vidaurry (Vidaurry), with true findings on allegations the
murder was committed for financial gain and for the benefit of a
criminal street gang. The trial court sentenced defendant to life
in prison without the possibility of parole. We are asked to
decide whether substantial evidence supports the murder
conviction and the associated true findings on the special
circumstance and gang allegations. In addition, we consider
whether the trial court erred in denying defendant’s motion to
bifurcate trial of the gang enhancement and whether the trial
court instructed the jury in a manner that would have allowed
defendant to be convicted on a now improper theory of implied
malice.
I. BACKGROUND
A. The Murder
On the morning of May 7, 2013, Ignacio Gonzales
(Gonzales) was waiting outside Bowtie Connection, an auto body
shop in the City of San Pedro. Gonzales was waiting for victim
Vidaurry, who also worked at the shop, to arrive and open the
business. Either Vidaurry or John Kennedy (Kennedy), the
shop’s owner, customarily opened the business at approximately
8:00 a.m. each day.
At 8:20 a.m., Vidaurry drove up in a pick-up truck and
parked on the street in front of the shop. The truck belonged to
Kennedy, who lent the truck to Vidaurry for a month while the
latter’s car was being repaired elsewhere. Normally, Kennedy
would use the truck to drive to the shop.
2
As Vidaurry was parking, Juan Sanchez (Sanchez) was
leaving a market across the street from Bowtie Connection. After
Vidaurry exited the truck, both Gonzales and Sanchez saw a man
wearing a hoodie-style sweatshirt with the hood up, gloves, and a
dust or dentist-style mask approach Vidaurry from behind and
shoot him once in the head with a handgun. After Vidaurry fell
to the street, Gonzales and Sanchez watched the shooter flee the
scene on foot. Immediately after witnessing the shooting,
Sanchez called 911.
The coroner determined Vidaurry died at the scene and
characterized the gunshot wound to his head as a type that would
be “rapidly” or “instantly” fatal. The coroner further determined
the fatal gunshot was a “contact” wound, meaning the barrel of
the gun was in contact with or in close proximity to the back of
Vidaurry’s head when the gun was fired.
B. Investigation of the Murder
Los Angeles Police Department (LAPD) detectives
interviewed a number of witnesses to the shooting, including
Ryan Yasin (Yasin). On the day of the shooting, he was sweeping
the streets and emptying trash cans in the neighborhood. At
approximately 7:30 a.m., less than an hour before the shooting,
Yasin saw a man sitting at a bus stop near the market across the
street from Bowtie Connection. Yasin thought the man looked
“suspicious” because he was wearing a black hoodie with the hood
up, gloves, and a dust mask. Approximately 40 minutes later, as
he was cleaning another street, Yasin saw the same man running
“full force” away from the area near the bus stop.
Using witness statements concerning the direction in which
the shooter fled, detectives canvassed the area in search of
3
surveillance camera footage. Using recovered footage, detectives
were able to trace the gunman’s path from the scene of the
shooting. The gunman first ran through a parking lot toward an
alley, where the murder weapon was later found in a dumpster,
before continuing in a direction toward defendant’s apartment.
Approximately four minutes after the shooting, the gunman
arrived at defendant’s apartment, which was located
approximately three blocks from where Vidaurry was shot. From
video surveillance footage inside defendant’s apartment building,
police were able to identify the gunman as Kirkpatrick.
That same footage depicted defendant and Kirkpatrick’s
movements on the day before the shooting and on the day of the
murder. The day before, defendant was seen leaving his
apartment at 11:38 p.m. and returning with Kirkpatrick at 2:57
a.m. early the next morning (the day of the shooting). Shortly
after they arrived at defendant’s residence, the two men went
back down to the garage and drove out of the apartment building,
only to return seven to eight minutes later.
Later, at approximately 7:30 a.m., the apartment building’s
footage showed Kirkpatrick (wearing a dark hoodie-style
sweatshirt, gloves, and a mask) leaving defendant’s apartment
and exiting the building from an alley door. Shortly after
Kirkpatrick departed, surveillance footage showed defendant
leave his apartment with a box, exit the building via the alley,
and walk around to the front of the building before returning to
his apartment. At 8:24 a.m., just minutes after the shooting,
Kirkpatrick returned to defendant’s apartment building, where
defendant let him in and escorted him back to his apartment.
Minutes later, at 8:31 a.m., defendant exited his apartment and
walked up and down outside the front of his building for
4
approximately 10 minutes; he reentered the building just as a
police vehicle slowly drove past. Defendant subsequently re-
emerged from his apartment and paced about the building’s lobby
and an adjacent room; during this period, defendant divided his
time between checking his phone and appearing to look out the
windows at the street.
After recovering the surveillance footage and identifying
defendant and Kirkpatrick, the police also obtained Kirkpatrick’s
cell phone records. Those records revealed a number of
communications with a pre-paid phone with no subscriber
information. Based on call records, service providers, and
location data derived from cell phone towers, as well as the fact
that the prepaid phone never contacted defendant’s phone, the
police concluded defendant was the prepaid phone’s owner/user.1
The cellphone records revealed defendant and Kirkpatrick
began plotting, approximately three weeks before Vidaurry’s
death, to commit a gun-related crime. On April 12, 2013,
1
Specifically, on April 13, 2013, defendant, using a cell
phone tied to a cellular account in his name, sent a text message
to Kirkpatrick’s phone advising him that he was “buying a phone
to call to you.” The prepaid phone’s first call, made on April 14,
was to Kirkpatrick; the following day, Kirkpatrick began sending
text messages to the prepaid phone regarding a planned
endeavor. On April 15, 2013, Kirkpatrick texted the same basic
message to both the prepaid phone (“when cuz wanna do this[?]”)
and to defendant’s cell phone (“When cuz trying 2 do this
business[,] bro[?]”). Similarly, on April 23, 2013, while call
location information revealed both the prepaid phone and
defendant’s cell phone were in South Pasadena, Kirkpatrick
texted the prepaid phone and received a response less than two
minutes later from defendant’s cell phone.
5
defendant texted Kirkpatrick that “a [s]ituation came up and
some money was attached to it [and] I figured I[’]d run it by you.”
Kirkpatrick, who at the time had been recently been released
from prison, responded positively: “Fa show[.] [W]hat’s da deal[?]
I need some cash.” A few days later, Kirkpatrick texted
defendant, asking when an unidentified “cuz” wanted the job
done and “[h]ow much cuz try[ing] to pay me [for] it?” On the
evening of April 18-19, defendant, using the prepaid phone,
responded, “[$]3000. [H]e just want y[o]u t[o] p[o]p him below da
waist a few times but [yo]u d[o] w[ha]t [yo]u g[o]t t[o].”
Kirkpatrick responded that he understood and asked whether he
would be supplied with a “burner,” i.e., a gun. Defendant
affirmed Kirkpatrick would be provided with a gun and advised
that the target worked a few blocks from defendant and he would
do some “homework” on the target and get the target’s
“r[o]utine.” Defendant stated that, in addition to conducting
reconnaissance, he would monitor police communications via a
“scanner.” Defendant also informed Kirkpatrick he would have
“da bread” (money) “[o]n hand.” In addition, roughly two weeks
before the murder, defendant—using the cell phone tied to the
account registered to him—texted Kirkpatrick about the results
of his reconnaissance efforts to date: “Hey, still on it, cuz ain’t
been showing up at all, jus[t] left from there. ...... [I’]m on it, jus[t]
timing[,] bro.”
On the night before the murder, defendant texted
Kirkpatrick to advise when he would leave to go pick him up and
bring him back to his apartment; hours later defendant texted
Kirkpatrick that he was outside Kirkpatrick’s residence in San
Bernardino. At 9:30 a.m, on the day of the shooting, shortly
before returning to his apartment after a visit to the lobby of the
6
building, defendant texted Kirkpatrick: “It looks like it is clearing
up.”
The prepaid phone believed to be used by defendant was
not used after the shooting and was not recovered by the police.
Kirkpatrick stopped using his cell phone on the day of the
shooting.
Through their investigation, detectives also learned that in
the days following the shooting, defendant and Kirkpatrick spent
significant sums of money. Six days after Vidaurry’s death,
defendant purchased a Cadillac at an auction.2 Kirkpatrick also
purchased a used Cadillac sedan, a new cell phone, and a gym
membership; he also visited a casino.
C. Charges and Trial
By information, the Los Angeles County District Attorney
charged defendant and Kirkpatrick with special circumstance
murder, with the two alleged special circumstances being murder
for financial gain and murder by lying in wait (Pen. Code,3 §§ 187,
subd. (a), 190, subds. (a)(1) & (15)). The District Attorney also
alleged the murder was committed for the benefit of, at the
direction of, and in association with a criminal street gang and
that a principal personally and intentionally used and discharged
a handgun (§§ 186.22, subd. (b)(1)(C), 12022.53, subds. (b), (c), &
2
Defendant had been interested in the vehicle prior to the
shooting; on May 6, the day before the shooting, defendant
shared photos of the automobile with his partner.
3
Undesignated statutory references that follow are to the
Penal Code.
7
(e)(1)). The trial court later held a joint trial on the charges,
using separate juries for each defendant.
Prior to trial, defendant moved to bifurcate trial of the gang
allegation, i.e., have his jury determine the truth of that
allegation only after it first determined whether defendant aided
and abetted Vidaurry’s murder. Defendant argued bifurcation
would eliminate the risk of any prejudice from the introduction of
evidence that he was a gang member and committed the crime
for the benefit of his gang.
The trial court denied the motion because it found the gang
evidence was relevant to the murder charge. The court
explained: “[T]he jurors could reasonably wonder why are these
two gentlemen doing this? How can they trust one another? Are
they lifelong friends? Are they compatriots of some kind?
Otherwise you have two individuals getting together by
happenstance. They would have to have great trust in each other
to engage in a venture like this and trust that the other
gentleman is not going to turn them in, that they can trust each
other, that they can count on each other, and that’s what the
gang evidence does.”
During trial, Los Angeles Police Department Officer Alex
Alas testified as the prosecution’s expert on criminal street
gangs. He explained that for the last several years he had been
assigned to monitor the Rollin’ 60s criminal street gang and
assist detectives in investigating crimes involving members of
that gang. He described for the jury the Rollin’ 60s history, size,
signs and symbols, customs, and primary criminal activities—
which included “selling drugs to make money, burglaries,
specifically knock-knock burglaries, robberies, carjackings, walk-
up or drive-by shootings, and murders.” Among the gang’s
8
customs were ostentatious displays of wealth, such as driving
expensive automobiles; the custom was so prevalent that
members referred to themselves as “Rich Rollin’.” Based on their
tattoos, photographs found on their cell phones, text messages,
and social media posts, Officer Alas opined defendant and
Kirkpatrick were both members of the Rollin’ 60s.4
To establish the predicate pattern of gang crimes that must
be proven to find the criminal street gang enhancement true,
Officer Alas testified about crimes committed by two members of
the Rollin’ 60s other than defendant and Kirkpatrick. His
testimony on the predicate crimes was based on certified court
records and his personal contacts with the two convicted gang
members.
Toward the end of Officer Alas’s direct examination, the
prosecution asked him to offer an opinion on a hypothetical
scenario designed to track the facts of Vidaurry’s murder. Officer
Alas opined the hypothetical crime would benefit the Rollin’ 60s
because a murder in public “instills fear and intimidation within
the community” and demonstrates to rival gangs “how dangerous
[the Rollin’ 60s] are that they are willing to kill for monetary
value . . . .” In addition to the reputational benefits of a murder-
4
Although Officer Alas never had any contact with
defendant prior to his arrest for Vidaurry’s murder, an officer
who did have personal contact with defendant testified defendant
admitted in 2010 he was a member of the Rollin’ 60s. Another
officer testified that in connection with an arrest of defendant in
2008 he observed multiple Rollin’ 60s tattoos on defendant’s body.
Officer Alas conceded on cross-examination that evidence
showing defendant had two tattoos removed could indicate he
wanted to get out of gang life.
9
for-hire killing, such a crime would also benefit the gang because
“they get money out of it.” Officer Alas further opined the crime
was committed at the direction of the gang because the older
gang member, the one with the “higher stature” within the gang,
directed the younger member to complete the task.
On cross-examination, Officer Alas clarified that even if no
one outside of the gang knew that defendants committed the
murder-for-hire, it still benefitted the gang internally because it
upheld the gang’s reputation of being dangerous. He also
acknowledged that during the commission of the crime there
were no indications the crime was committed by the Rollin’ 60s
(e.g., Kirkpatrick did not shout out the gang’s name when he shot
Vidaurry), the crime was not committed in territory claimed by
the Rollin’ 60s, and the victim had no known gang ties. Finally,
Officer Alas admitted he did not have any personal knowledge of
the Rollin’ 60s committing any prior murder-for-hire crimes.
At the conclusion of the prosecution’s case-in-chief,
defendant moved to dismiss the gang allegation for insufficient
evidence. The trial court denied the motion: “[T]he only
connection between the two defendants that the evidence shows
is that they were both members of the same gang. So the strong
inference is that this whole activity is gang-related because they
weren’t boyhood friends or schoolmates ......... And the evidence
that these gang members were going to be promoting the gang as
a murder for hire operation is very strong.”
During the defense case-in-chief, Kimi Lent, a gang
intervention specialist, testified as the defense’s gang expert.
She opined defendant was not an active member of the Rollin’ 60s
at the time of Vidaurry’s murder because (among other things) he
was not in the police’s gang files, not subject to a gang injunction,
10
and did not live inside the gang’s territory. In addition, Ms. Lent
opined Vidaurry’s murder was not committed for the benefit of
the Rollin’ 60s because in her 20 years of working with gangs she
had never heard of the Rollin’ 60s or any other gang engaging in
murder-for-hire. She characterized Vidaurry’s murder as a
“personal crime,” not a gang crime.
After the presentation of evidence at trial, the court
instructed the jury that defendant was prosecuted for murder
under two theories: “one, the murder was willful, deliberate, and
premeditated, and, two, the murder was committed by lying in
wait.” In connection with the first theory, the court, using
CALCRIM Nos. 400, 401, 520, 521, and 702, instructed the jury
on aiding and abetting and explained that to find defendant
guilty of first degree murder as an aider and abettor, the
prosecution “must prove that [ ] defendant acted with the intent
to kill.” Using CALCRIM No. 720, the court instructed the jury
further that to find true the special circumstance allegation of
murder for financial gain, the prosecution must also prove
defendant “intended to kill.” On the lying in wait theory, the
court, using CALCRIM No. 728, instructed the jury the
prosecution was required to prove the following: “The defendant
murdered by lying in wait if: [¶] 1. He concealed his purpose from
the person killed; [¶] 2. He waited and watched for an
opportunity to act; [¶] 3. Then, from a position of advantage, he
intended to and did make a surprise attack on the person killed;
and [¶] 4. He intended to kill the person by taking the person by
surprise.”
11
D. Verdict, Post-Trial Motions, and Sentencing
The jury found defendant guilty of first degree murder.
The jury found the murder for financial gain special circumstance
allegation true but found the lying in wait special circumstance
allegation not true. The jury found true the gang enhancement
and firearm allegations.
Defendant moved for a new trial. Relying in part on then-
recently enacted legislation, Senate Bill No. 1437 (2017-2018 Reg.
Sess.) (SB 1437) and Assembly Bill No. 333 (2021-2022 Reg.
Sess.) (AB 333), defendant argued his murder conviction was
infirm because there was insufficient evidence he had the intent
to kill and the trial court erred when it denied his motion to
bifurcate the gang enhancement allegation, which he relatedly
contended was not supported by sufficient evidence anyway.
The trial court denied defendant’s motion and, in so doing,
opined the evidence in support of the charges was
“overwhelming.” As to the bifurcation issue, the court found the
gang evidence was appropriately admitted at trial without
bifurcation to show motive and intent, as well as a link between
the two defendants, even if the evidence was insufficient proof of
the gang allegations under the recently enacted AB 333.
The court sentenced defendant to life in prison without the
possibility for parole. At the request of the prosecution, the court
stayed imposition of the gang and firearm enhancements.
II. DISCUSSION
Substantial evidence supports defendant’s murder
conviction and the jury’s true finding on the financial gain special
circumstance. The jury could reasonably find beyond a
reasonable doubt, based on the evidence at trial, that defendant
12
and Kirkpatrick plotted the crime for weeks and settled on a plan
to kill the intended victim in the expectation of financial gain.
The gang enhancement, though stayed, must be reversed,
however. The provisions of AB 333 governing proof of gang
relatedness apply retroactively and require an organizational
nexus between the gang and the predicate crimes committed by
its members. No proof of that was introduced here.
Defendant’s remaining contentions are meritless. Section
1109, a provision mandating bifurcation of gang allegations upon
request that was enacted as part of AB 333, does not apply
retroactively to defendant under recent Supreme Court authority.
The trial court also did not err when it denied defendant’s
bifurcation motion on the law as it existed at the time of
defendant’s trial because the gang evidence established motive
and the relationship between the defendants and because the
non-motive-related gang evidence (predicate crimes by the other
members of the Rollin’ 60s and some testimony about the gang
generally) was so limited and relatively insignificant as to be
nonprejudicial. Finally, defendant’s argument that the
instructions on the lying in wait theory allowed the jury to
convict him on a now improper theory of imputed malice fails for
multiple reasons, factual and legal.5
5
Defendant’s appellate briefing can be read to suggest the
trial court erred in admitting evidence of defendant’s prior bad
acts of weapons possession. We decline to consider the
suggestion an argument meriting resolution because it is
inadequately presented (and likely forfeited regardless). (Pizarro
v. Reynoso (2017) 10 Cal.App.5th 172, 179; Cal. Rules of Court,
rule 8.204(a)(1)(B) &(C).)
13
A. Substantial Evidence Supports Defendant’s Murder
Conviction and the Financial Gain Special
Circumstance
Defendant challenges the sufficiency of the evidence to
support the jury’s verdict on the murder charge and its true
finding on the murder for financial gain special circumstance.
We assess the arguments using the familiar substantial evidence
standard of review. (People v. Westerfield (2019) 6 Cal.5th 632,
713; People v. Williams (2015) 61 Cal.4th 1244, 1281.)
1. Murder conviction
“Murder is the unlawful killing of a human being . . . with
malice aforethought.” (§ 187, subd. (a).) Malice may be express
or implied. Malice is express when there is intent to kill. (§ 188,
subd. (a)(1).) If the murder is “willful, deliberate, and
premeditated,” it is first degree murder. (§ 189, subd. (a); People
v. Brooks (2017) 3 Cal.5th 1, 58.) “‘“In this context, ‘premeditate’
means ‘considered beforehand,’ and ‘deliberate’ means ‘formed or
arrived at or determined upon as a result of careful thought and
weighing of considerations for and against the proposed course of
action.’”’ [Citation.] ‘“‘An intentional killing is premeditated and
deliberate if it occurred as the result of preexisting thought and
reflection rather than unconsidered or rash impulse.’”’
[Citations.] ‘“The true test is not the duration of time as much as
it is the extent of the reflection. Thoughts may follow each other
with great rapidity and cold, calculated judgment may be arrived
at quickly. . . .”’ [Citation.] Such reflection may be revealed by
planning activity, motive, and the manner of the killings, among
14
other things. [Citations.]” (People v. Potts (2019) 6 Cal.5th 1012,
1027.)
For a person to be liable as a direct aider and abettor of
malice murder, the prosecution must prove the “defendant aided
or encouraged the commission of the murder with knowledge of
the unlawful purpose of the perpetrator and with the intent or
purpose of committing, encouraging, or facilitating its
commission.” (In re Lopez (2023) 14 Cal.5th 562, 579.) When an
aider or abettor, with his or her own mens rea of premeditation
and deliberation, knowingly and intentionally assists a
confederate to kill someone, the aider and abettor is guilty of first
degree premeditated murder. (Ibid.) “Critical” to aiding and
abetting liability for express malice murder “is not only an intent
to kill but knowledge and intent regarding the direct
perpetrator’s homicidal or life-endangering acts.” (People v.
Curiel (2023) 15 Cal.5th 433, 469.)
Adequate evidence permitted the jury to find beyond a
reasonable doubt that defendant willfully, deliberately, and with
premeditation aided and abetted the murder of Vidaurry.
Defendant put the murder-for-hire plot in motion by soliciting
Kirkpatrick’s participation via text message: “a [s]ituation came
up and some money was attached to it [and] I figured I[’]d run it
by you.” Once he secured Kirkpatrick’s agreement, defendant
took a number of affirmative steps in support of the crime,
including acquiring a prepaid phone and police scanner,
conducting reconnaissance of the intended victim’s comings and
goings from the body shop, transporting Kirkpatrick to his
apartment prior to the murder, and using his apartment as a safe
house immediately following the murder. In addition, the jurors
could reasonably conclude from the evidence that after picking up
15
Kirkpatrick in San Bernardino and returning to defendant’s
apartment in San Pedro, defendant took Kirkpatrick back out
under the cover of night to show him the path to take to the body
shop and the escape route back to the apartment. Moreover,
jurors could also reasonably conclude that after Kirkpatrick
returned to the apartment following the murder, defendant
immediately went down to the building’s lobby area to monitor
police activity in the wake of the murder and returned to his
apartment only after he texted Kirkpatrick “It looks like it is
clearing up.”
In view of defendant’s direction to Kirkpatrick early in
their planning that the latter should “d[o] w[ha]t [yo]u g[o]t t[o],”
the jurors could also rationally determine that from the start
defendant supported commission of the crime to the point of
murder.6 The jury also had evidence from which it could infer
that as the criminal plot developed, defendant and Kirkpatrick
both had a preconceived design to kill. There was the manner of
6
Defendant proceeds on the understanding that the relevant
text (“[H]e just want y[o]u t[o] p[o]p him below da waist a few
times but [yo]u d[o] w[ha]t [yo]u g[o]t t[o]”) means the intention
must have been only to wound the victim. That is wrong for
multiple reasons. First, the jury could infer defendant was
providing instructions different from those that he received; “he”
wants only a few shots below the waist, but you kill him (do what
you got to do) so as not to leave a witness. Second, even accepting
defendant’s understanding of the text’s meaning, that
understanding does not mean the plan could not have changed, in
the days that followed, to a plan to kill. Third, there is no reason
to suppose that inflicting multiple gunshots below the waist is
necessarily inconsistent with an intent to kill.
16
killing itself: Kirkpatrick approached Viduarry from his blind
side as he exited his vehicle and fired the gun point-blank into
his head (not the lower part of his body). There were also
defendant’s actions in the aftermath of the crime that revealed no
surprise or unwillingness to assist Kirkpatrick after what
defendant must have known by that point was a murder: shortly
after Kirkpatrick returned, defendant escorted Kirkpatrick back
upstairs to his apartment before he descended to both the
building’s street front and lobby area where he monitored police
activity in the neighborhood and kept Kirkpatrick apprised of
how things were going. Additionally, there was the evidence of
defendant’s post-crime purchases, which serves as some
additional confirmation that he shared the murderous intent of
the crime’s actual perpetrator.
2. Special circumstance finding
“‘Under section 190.2, subdivision (a)(1), a defendant is
subject to the special circumstance if the “murder was intentional
and carried out for financial gain.”’ [Citation.] The financial gain
does not need to be the ‘“‘dominant,’ ‘substantial,’ or ‘significant’
motive for the murder.”’’ [Citations.] Nor does a defendant need
to realize any ‘pecuniary benefit from the murder’ for the special
circumstance to apply. [Citation.] ‘“‘[T]he relevant inquiry is
whether the defendant committed the murder in the expectation
that he would thereby obtain the desired financial gain.’”’
[Citation.]” (People v. Parker (2022) 13 Cal.5th 1, 63.)
Defendant appears to challenge the jury’s special
circumstance finding only to the extent that his challenge to the
murder conviction itself is successful—and, as we have seen, it is
not. But even if we were to understand the challenge more
17
broadly, there is sufficient evidence to support the finding that
defendant aided and abetted the murder in the expectation that
he would receive a financial gain. Most obviously, there were the
texts between defendant and Kirkpatrick that revealed the crime
was being committed for money being provided not by defendant
but from some unspecified third-party. Defendant devoted
significant time, energy, and resources to the crime. He spent
days surveilling the body shop and learning its owner’s routines
(e.g., when Kennedy usually arrived to open the shop in the
morning and what vehicle he drove so that Kirkpatrick would be
able to identify him as the target instantly). Defendant spent
hours driving out to San Bernardino and back to make sure
Kirkpatrick was in position to carry out the murder. He
purchased an unregistered, prepaid cell phone and carried it with
him in addition to his registered phone in an attempt to
communicate securely with Kirkpatrick; defendant also acquired
a police scanner. There is no reason to suppose all of this work
was undertaken with no expectation of sharing in the monetary
reward. Finally, in the days immediately preceding the murder,
defendant located a luxury automobile he wished to purchase and
purchased the vehicle less than a week after the murder.
B. Reversal of the Gang Enhancement and Gang-Related
Firearm Finding Is Required
“‘In 1988, the Legislature enacted the California Street
Terrorism Enforcement and Prevention Act (STEP Act; § 186.20
et seq.) to eradicate “criminal activity by street gangs.”
[Citation.] Among other things, the STEP Act created ‘a
sentencing enhancement for a felony committed “for the benefit
of, at the direction of, or in association with any criminal street
18
gang” [citation].’ [Citation.]” (People v. Tran (2022) 13 Cal.5th
1169, 1205-1206.)
In 2016, at the time of defendant’s trial, section 186.22
defined “criminal street gang” 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 of the criminal acts enumerated in paragraphs (1)
to (25), inclusive, of subdivision (e), 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.” (Former § 186.22, subd. (f).)
With regard to a “pattern of criminal gang activity,” the
prosecution at the time of defendant’s trial had to prove only that
those associated with the Rollin’ 60s had committed at least two
offenses from a list of predicate crimes on separate occasions
within three years of one another. (Former § 186.22, subd. (e)
[defining “pattern of criminal activity” as “the commission of,
attempted commission of, conspiracy to commit, or solicitation of,
sustained juvenile petition for, or conviction of two or more of the
following offenses, provided at least one of these offenses occurred
after the effective date of this chapter and the last of those
offenses occurred within three years after a prior offense, and the
offenses were committed on separate occasions, or by two or more
persons”].)
As our Supreme Court has recently observed, the
Legislature “substantially amended the STEP Act in [AB 333].”
(People v. Clark (2024) 15 Cal.5th 743, 752.) “‘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.” (§ 186.22, subd. (f), italics added.) Second, whereas
19
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,”
[AB 333] requires that any such pattern have been “collectively
engage[d] in” by members of the gang. (§ 186.22, subd. (f), italics
added.) Third, [AB 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 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, [AB 333] narrowed what it means for an offense to
have commonly benefitted a street gang, requiring that any
“common benefit” be “more than reputational.” (§ 186.22, subd.
(g).)’ [Citation.]” (Clark, supra, at 752-753.)
In Clark, our highest court held the Legislature’s reference
to collective engagement in a pattern of criminal activity “calls
for an inquiry not just into how the predicate offenses benefited
the gang, but also how the gang works together as a gang. It
calls for a showing of a connection, or nexus, between an offense
committed by one or more gang members and the organization as
a whole.” (Clark, supra, 15 Cal.5th at 762.) An organizational
nexus “may be shown by evidence linking the predicate offenses
to the gang’s organizational structure, meaning its manner of
governance; its primary activities; or its common goals and
principles. By reference to these elements of a gang’s affairs and
operations, we do not mean to overstate the degree of formality
20
required. As we have recognized, some gangs have a ‘“loose”’
structure [citation], while others are ‘highly ordered and
disciplined,’ with a ‘well-defined’ hierarchy [citation]. Similarly,
some gangs may have loosely defined goals and principles, while
others may have clearly defined missions. Given this variability,
collective engagement will be established in different ways.”7
(Ibid.)
Defendant argues AB 333’s amendments to section 186.22
apply retroactively under the rule of In re Estrada (1965) 63
Cal.2d 740. That is correct. (See, e.g., Tran, supra, 13 Cal.5th at
1206-1207 [“the Attorney General concedes that the rule of In re
Estrada . . . applies [to AB 333], and we agree ........ [AB 333’s]
changes have the effect of ‘increas[ing] the threshold for
conviction of the section 186.22 offense and the imposition of the
enhancement,’ with obvious benefit to defendants”]; accord,
People v. Rojas (2023) 15 Cal.5th 561, 567.) He also argues that,
applied retroactively, the evidence supporting the true finding on
the section 186.22, subdivision (b)(1) gang enhancement was
insufficient. That is correct too.
7
Clark offered a number of examples of how collective
engagement might be established: “[T]here might be evidence of
a direct order from the gang to commit specific crimes.
[Citations.] Alternatively, evidence might show a more general,
well-understood expectation that members must engage in
certain types of offenses. [Citation.] In other cases, collective
engagement might be shown by demonstrating that the offenses
are reflective of the primary activities of the gang, or else adhere
to a common goal or plan characteristic of the gang in question.
[Citations.]” (Clark, supra, 15 Cal.5th at 762.)
21
Officer Alas, the prosecution’s gang expert, testified about
the Rollin’ 60s’ history, territory, size, allies, rivals, signs,
symbols, and primary criminal activities. He did not
(understandably, given the intervening change in the law) offer
any testimony about the gang’s organizational structure or how
the gang’s members collectively engaged in criminal activity
generally or in specific connection with the two predicate crimes.
In view of the absence of any evidence about the Rollin’ 60s’
organization and the organizational nexus between the gang and
the predicate crimes committed by its members, the true finding
on the section 186.22 gang allegation must be reversed (not just
stayed, as it is at present). Because the evidence is insufficient to
support the gang enhancement, the gang-related firearm
enhancements are also infirm and must be similarly reversed.
(People v. Cooper (2023) 14 Cal.5th 735, 745-747.)
C. Section 1109 Does Not Apply Retroactively and the
Trial Court Did Not Err In Denying Defendant’s
Motion to Bifurcate Trial Under the Law As It Existed
at the Time of Trial
In addition to making changes to section 186.22, AB 333
added section 1109 to the Penal Code. Section 1109 provides
that, “if requested by the defense, a trial court must try a gang
enhancement charge separately from the underlying offense.
(§ 1109, subd. (a); Stats. 2021, ch. 699, § 5.) The statute likewise
provides that gang-participation offenses must be tried
separately from all other counts that do not require gang
evidence as an element of the crime. (§ 1109, subd. (b); Stats.
2021, ch. 699, § 5.)” (People v. Burgos (2024) 16 Cal.5th 1, 7.)
22
Relying on the principles of Estrada, supra, 63 Cal.3d 740,
defendant contends section 1109 applies retroactively. Our
Supreme Court has recently held otherwise, and that ends the
matter. (Burgos, supra, 16 Cal.5th at 8 [“We conclude that the
Estrada inference of retroactivity does not extend to section
1109”].)
Defendant also argues, however, that the trial court erred
in denying his motion to bifurcate trial of the gang enhancements
even on the law as it existed before enactment of section 1109.
As we next explain, that is incorrect.
“[E]vidence of gang membership is often relevant to, and
admissible regarding the charged offense. Evidence of the
defendant’s gang affiliation . . . can help prove identity, motive,
modus operendi, specific intent, means of applying force or fear,
or other issues pertinent to the guilt of the charged crime.”
(People v. Hernandez (2004) 33 Cal.4th 1040, 1049; People v.
Montes (2014) 58 Cal.4th 809, 859 [“While gang membership
evidence does create a risk the jury will impermissibly infer a
defendant has a criminal disposition and is therefore guilty of the
offense charged [citation], ‘nothing bars evidence of gang
affiliation that is directly relevant to a material issue’”].)
Cross-admissibility is not the only criterion affecting
bifurcation. As our Supreme Court has explained: “Even if some
of the evidence offered to prove the gang enhancement would be
inadmissible at a trial of the substantive crime itself—for
example, if some of it might be excluded under Evidence Code
section 352 as unduly prejudicial when no gang enhancement is
charged—a court may still deny bifurcation. In the context of
severing charged offenses, [our Supreme Court has] explained
that ‘additional factors favor joinder. Trial of the counts together
23
ordinarily avoids the increased expenditure of funds and judicial
resources which may result if the charges were to be tried in two
or more separate trials.’ [Citation.]” (Hernandez, supra, 33
Cal.4th at 1050.) Bifurcation is appropriate, by contrast, when
the gang evidence is minimally probative and so inflammatory it
threatens to sway the jury to convict without regard to actual
guilt. (Id. at 1051.)
“We review the court’s order denying the motion for a new
trial de novo. [Citation.] Nonetheless, the decision on whether
evidence, including gang evidence, is relevant, not unduly
prejudicial and thus admissible, rests within the discretion of the
trial court. [Citation.] Where, as here, a discretionary power is
statutorily vested in the trial court ........ [i]t is appellant’s burden
on appeal to establish an abuse of discretion and prejudice.”
(People v. Albarran (2007) 149 Cal.App.4th 214, 224-225, internal
quotation marks omitted.)
Here, the trial court did not abuse its discretion in denying
defendant’s motion to bifurcate. Contrary to defendant’s
contention, the gang evidence was material and relevant to the
prosecution’s theory of first degree murder. As the trial court
observed, evidence of membership in the Rollin’ 60s was relevant
to showing how and why defendant and Kirkpatrick, men who
were not contemporaries, did not grow up together, and did not
live near one another, came to plan and commit a brazen,
daylight murder-for-hire. In addition, Officer Alas’s testimony
that members of the Rollin’ 60s drove luxury automobiles and
referred to themselves as “Rich Rollin’” was relevant to
establishing motive for the murder and proving the murder for
hire special circumstance—especially in view of the purchase of
Cadillac sedans by both men shortly after the murder. (See, e.g.,
24
Montes, supra, 58 Cal.4th at 859 [gang affiliation evidence
appropriately admitted because it “was relevant to show the
codefendants’ relationship with each other ........ [and] also served
to explain defendant’s motive for committing the crimes,
particularly the murder”].) The gang evidence admitted that may
not have been relevant to the charged crimes (e.g., evidence of
predicate crimes committed by other members of the Rollin’ 60s)
was not so inflammatory as to sway the jury, which was
presented with compelling evidence of defendant’s guilt
independent of any gang evidence. (People v. E.H. (2022) 75
Cal.App.5th 467, 480 [because there was “strong” evidence
defendant committed the charged robberies, “we conclude that
the jury’s verdict was based on the evidence, not improper bias,
and that bifurcation would not have helped E.H.”]; see also Tran,
supra, 13 Cal.5th 1169, 1208-1209; Hernandez, supra, 33 Cal.4th
at 1051 [“Any evidence admitted solely to prove the gang
enhancement was not so minimally probative on the charged
offense, and so inflammatory in comparison, that it threatened to
sway the jury to convict regardless of defendants’ actual guilt”].)
D. Reversal for Instructional Error Is Not Required
Because Defendant Was Not Convicted on a Theory of
Imputed Malice
Defendant maintains reversal is required because the jury
was instructed on murder by lying in wait in such a way as to
allow the jury to convict him of murder on a theory of imputed
25
malice that is no longer valid following the passage of SB 1437.8
The argument suffers from multiple flaws, both record-based and
legal.
First, the trial court instructed the jury with CALCRIM No.
728 in connection with the lying in wait allegation. That
instruction informed the jury that to convict defendant of that
crime it needed to find he “intended to kill.” There is therefore no
possibility that the jury could have interpreted the lying in wait
instructions to dispense with the need to prove malice. (People v.
Cortez (1998) 18 Cal.4th 1223, 1228 [express malice is an
unlawful intent to kill].)
Second, although lying in wait murder was one of the two
express theories of murder liability upon which the jury was
instructed, defendant was not convicted on that theory. The jury
found the lying in wait allegation “false.” Instead, defendant was
convicted of willful, deliberate, and premeditated murder. To be
found guilty of that crime, the jury was repeatedly instructed
that it had to find that defendant acted with the intent to kill.
Third, and finally, insofar as defendant contends there was
ambiguity in the lying in wait instructions that somehow bled
into the jury’s consideration of murder liability pursuant to the
instructions on that topic, defendant’s contention runs contrary to
basic settled law. “We presume the jury understood and followed
the instructions it was given.” (People v. Holt (1997) 15 Cal.4th
8The purpose of SB 1437 was to limit murder convictions to
instances where a defendant personally harbors malice—a mens
rea element. (§ 189, subd. (e).) “Malice shall not be imputed to a
person based solely on his or her participation in a crime.” (§ 188,
subd. (a)(3).)
26
619, 662; accord, People v. Martinez (2010) 47 Cal.4th 911, 957;
People v. Flores (2020) 9 Cal.5th 371, 405.)
DISPOSITION
The true findings on the section 186.22, subdivision (b)
gang enhancement allegation, and the section 12022.53,
subdivision (e) firearm enhancement allegation are reversed. In
all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, Acting P. J.
We concur:
MOOR, J.
DAVIS, J.*
*
Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
27