A 5-2 Supreme Court today affirms murder and attempted murder convictions, but reverses the death sentence in People v. Aguirre. The reversal, conceded by the Attorney General as necessary, is based on the retroactive effect of Assembly Bill 333, 2021 legislation that narrowed liability for gang-related crimes, enhancements, and special circumstances. Justices Goodwin Liu and Kelli Evans assert in dissent that the convictions should be thrown out because of Batson/Wheeler error, racial discrimination by the prosecution in peremptorily challenging a prospective juror.
The majority opinion by Chief Justice Patricia Guerrero also resolves a conflict in the case law by finding not retroactive Assembly Bill 2799, which the Legislature enacted in 2022 to limit an artist’s “creative expression” as evidence in a criminal trial because of, the bill stated, the “significant risk of unfair prejudice when rap lyrics are introduced into evidence.” Justices Liu and Evans disagree with that holding, too.
[Update: regarding AB 2799, the court disapproves the Fourth District, Division Two, Court of Appeal opinion in People v. Venable (2023) 88 Cal.App.5th 445.]
Unlike today, how to retroactively apply AB 333 caused a rare 4-3 split in the court on Monday in People v. Fletcher. (See here.) Earlier this year, in another capital appeal, the court was able to avoid deciding the AB 2799 retroactivity issue. (People v. Hin (2025) 17 Cal.5th 401, 471; see here.)
The majority rejects the claim of racial discrimination in the jury selection, concluding the superior court’s overruling of a defense Batson/Wheeler objection “is entitled to deference and is supported by substantial evidence.” Justice Liu writes that deference is inappropriate because “the trial court applied the wrong legal standard and did not meaningfully evaluate whether the prosecutor’s stated reasons actually prompted her to challenge the prospective juror” and that an independent review establishes a Batson/Wheeler violation.
Justice Liu also contends that the rap-lyrics statute should be applied retroactively. He says the majority decision to the contrary “elevates form over substance and ignores clear legislative intent . . . , adding further incoherence to our case law on retroactivity.”
In addition to joining Justice Liu’s dissent, Justice Evans issues her own opinion on the Batson/Wheeler issue “to highlight additional reasons why deference to the trial court is unwarranted in cases such as this.” She cites “a variety of training materials used by prosecutors over the past two decades [that] appear to compromise the efficacy of Batson/Wheeler protections.”
As in most death penalty appeals, the court — without dissent — also rejects a number of other defense arguments for reversal.
