The Supreme Court on Thursday reversed the death penalty in People v. Cardenas for a 2003 murder and attempted murder. The convictions were also reversed, but might be reinstated without a new trial, and a death penalty retrial is a possibility.
As in last week’s People v. Aguirre decision (see here), the court’s unanimous opinion by Justice Leondra Kruger agrees with an Attorney General concession and holds the death sentence cannot survive the retroactive application of Assembly Bill 333, 2021 legislation that narrowed liability for gang-related crimes, enhancements, and special circumstances. The penalty was based on a gang-murder special circumstance jury finding.
The opinion also agrees with the Attorney General that reversal of the special circumstance finding is additionally required by the court’s expert-testimony-limiting decision in People v. Sanchez (2016) 63 Cal.4th 665, which, like AB 333, post-dates the defendant’s trial. (See here.) In the present case, a prosecution gang expert witness “did not merely rely on hearsay in forming her opinions; she related inadmissible case-specific hearsay to the jury.”
The court rejected other arguments, including that a conflict of interest should have disqualified a county’s district attorney’s office. Before trial, the defendant’s appointed lawyer had left the county public defender’s office to become a senior deputy district attorney. The opinion says the superior court didn’t abuse its discretion in finding the change in 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 [the lawyer] off from the case.”
The convictions will be reinstated without a new trial if, on remand, the superior court rules against claims under the Racial Justice Act (here and here) (the Supreme Court did not address in the appeal the defendant’s contention that the gang murder special circumstance is disproportionately imposed on African American and Latino defendants) and under McCoy v. Louisiana (2018) 584 U.S. 414 (the U.S. Supreme Court held there that “a defendant has the right to insist that counsel refrain from admitting guilt, even when counsel’s experienced-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty”). Thursday’s opinion also allows the prosecution to again seek the death penalty in a new trial based on the gang-murder special circumstance if the convictions are reinstated.
