In California, a gang enhancement can add substantial prison exposure to an underlying criminal charge. But what happens when evidence about alleged gang involvement becomes part of the jury’s consideration of the underlying crime itself?
That question became central in People v. Burgos, a San Jose robbery case that eventually reached the California Supreme Court. The case involved a 2015 robbery near a San Jose convenience store and required the Court to decide whether a new bifurcation rule applied to older, nonfinal cases.
The key distinction is important: Assembly Bill 333’s substantive changes to section 186.22 can apply retroactively to nonfinal cases, but Burgos held that section 1109’s bifurcation procedure does not apply to trials held before the statute took effect.
An Overview of People v. Burgos
According to the appellate opinion, prosecutors alleged that around midnight on August 29, 2015, a group approached two men near a San Jose 7-Eleven, questioned them about gang affiliation, and took their phones and wallets. The victims reported that members of the group displayed a firearm.
A jury convicted Francisco Burgos, James Richardson, and Damon Stevenson Jr. of two counts of second-degree robbery and found the gang enhancements true. The jury did not reach a verdict on the firearm allegations, and the court imposed an aggregate 21-year sentence on each defendant. Their pending appeals later presented two distinct retroactivity questions under Assembly Bill 333.
When Penal Code Section 1109 Requires Bifurcation
Assembly Bill 333 took effect on January 1, 2022, and added Penal Code section 1109. If the defense requests it, a case charging a gang enhancement under section 186.22(b) or (d) must be tried in separate phases: first the underlying offense, then the enhancement if the defendant is found guilty.
This procedure helps reduce the risk that evidence offered primarily to prove a gang enhancement will influence the jury’s decision on the underlying charges. It does not automatically exclude every gang-related fact that is independently relevant and admissible. Depending on the case, potentially prejudicial material may include:
- Social media activity
- Tattoos or clothing
- Gang associations
- Neighborhood connections
Assembly Bill 333 also narrowed the substantive requirements of Penal Code section 186.22. Among other changes, qualifying predicate offenses must commonly benefit a criminal street gang in a way that is more than reputational; the currently charged offense cannot serve as a predicate offense; and the prosecution must prove that gang members collectively engage in, or have engaged in, the required pattern of criminal gang activity.
In People v. Burgos (2024) 16 Cal.5th 1, the California Supreme Court held that section 1109 does not apply retroactively to trials held before January 1, 2022, even when the judgment was not yet final. That procedural holding does not change the separate rule recognized in People v. Tran (2022) 13 Cal.5th 1169: Assembly Bill 333’s substantive amendments to section 186.22 apply retroactively to nonfinal cases.
How San Jose Gang Allegations Are Defended Under the Current Standard
Under current law, the analysis is highly evidence-specific. Defense counsel may examine how prosecutors connect the defendant, the alleged gang, the charged offense, and the predicate crimes offered to establish a pattern of criminal gang activity.
A gang crimes defense lawyer in San Jose may examine:
- Whether a CalGang or other database entry is accurate, current, and supported
- Whether social ties or neighborhood connections are being treated as proof of gang participation
- Whether the alleged predicate offenses satisfy the timing, common-benefit, and collective-engagement requirements
- Whether the charged offense had the relationship to the alleged gang and the specific intent required by section 186.22
Speak to a Gang Crimes Defense Lawyer at Shnider Law Firm in San Jose
For over 15 years, attorney Aaron Shnider’s experience as both a former prosecutor and a deputy public defender has given him insight into how criminal cases are investigated and prosecuted. Shnider Law Firm takes a case-specific approach to challenging evidence and developing a defense strategy.
If you’re facing gang allegations in Santa Clara County, contact Shnider Law Firm for a free, confidential consultation to discuss your situation.
FAQs
Can gang evidence be used in the main trial?
When an enhancement under section 186.22(b) or (d) is charged, section 1109 requires separate phases if the defense requests them. Gang-related evidence may still be presented during the underlying trial when it is independently relevant and admissible.
Do gang connections automatically support an enhancement?
No. Association alone does not establish an enhancement. The prosecution must prove each applicable statutory element beyond a reasonable doubt, including the required relationship between the alleged gang, the offense, and the defendant’s specific intent.
Does People v. Burgos automatically require a new trial in cases tried before 2022?
No. Burgos held that section 1109’s bifurcation procedure does not apply retroactively. Separate issues involving Assembly Bill 333’s substantive amendments or other post-conviction remedies depend on the case’s procedural posture and record.
Disclaimer: This article is for informational purposes only and does not constitute legal advice. Every criminal case is unique. Consult a qualified criminal defense attorney about your situation.
About the Author: Aaron Shnider
