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Supreme Court Reverses Death Verdict in Gang Murder Case
For Second Time in Week, Supreme Court Overturns Sentence Where Only Special Circumstance Alleged Was Based on Now-Defunct Law; Opinion Remands for Consideration of Sixth Amendment Claim
By a MetNews Staff Writer
The California Supreme Court yesterday overturned the death sentence of a man convicted of a 2003 killing based on the fact that the only special circumstance alleged was that the defendant committed the murder in furtherance of gang activities, finding that retroactive changes to the laws governing criminal street enterprises demand the reversal.
The unanimous decision, authored by Justice Leondra Kruger, represents the second time in the span of a week that the court has reversed a death sentence of a convicted killer based on 2022 amendments to the statutes governing gang allegations and special circumstances. She wrote:
“We find error in the gang-related findings based on two legal developments that occurred after trial: This court’s decision in People v. Sanchez…and the recent amendments to Penal Code section 186.22 made by Assembly Bill No. 333….The error requires us to reverse the gang enhancements, the gang-murder special circumstance, and the death judgment.”
Kruger’s opinion also reverses the defendant’s murder and attempted murder convictions. She rejected the defendant’s assertion that the entire district attorney’s office should have been disqualified based on his former lawyer’s acceptance of a job offer at the prosecutorial agency during the pendency of his case, but said:
“[A] limited remand is appropriate to permit [the defendant] to develop his claim that his trial counsel violated his Sixth Amendment right of autonomy over the defense.”
She continued:
“On remand, the parties may conduct additional proceedings as appropriate to the resolution of Cardenas’s [Sixth Amendment] claim…, and any claims Cardenas may raise under…the California Racial Justice Act of 2020. If the trial court finds…error requiring reversal of the judgments of conviction, it must set the case for a new trial….Otherwise, the trial court must reinstate the judgments of conviction. If the judgments of conviction are reinstated,…the People may retry the gang allegations, including the gang-murder special-circumstance allegation, if they so choose.”
Visalia Shooting
Challenging his convictions and sentence on direct appeal was Refugio Cardenas, who was found guilty by a jury of shooting at three men on Oct. 9, 2003 in a residential neighborhood of Visalia. Gerardo Cortez, who was hit in the head, died at the scene; Jorge Montez survived a gunshot wound to the chest, and Quirino Rosales was not injured in the shooting.
Cardenas was charged by the Tulare County District Attorney’s Office with, among other crimes, one count of first-degree murder, as well as a gang enhancement and a related special circumstance allegation.
After his arrest, Cardenas was represented by Arthur Hampar of the Tulare County Public Defender’s Office until August 2005, when the attorney joined the county’s prosecutorial agency.
In May 2006, the defendant moved to recuse the entire district attorney’s office under Penal Code §1424, which provides that such a motion “may not be granted unless the evidence shows that a conflict of interest exists that would render it unlikely that the defendant would receive a fair trial.”
Then-Tulare Superior Court Judge Patrick J. O’Hara (now retired) denied the motion, finding that prosecutors had effectively built a firewall preventing the former defense attorney from having access to the case.
During his 2007 trial, the defendant also raised two Marsden motions seeking to disqualify his defense attorney, identified in court records as Jessica McGuire. One was brought after the last defense witness testified, and a hearing on the other was held after the jury found him guilty.
Both motions raised concerns over McGuire’s choice to argue that while he may have committed the shootings, he did not do so in furtherance of gang activity, a strategy to which he claims he did not “consent.” O’Hara denied the motions, telling Cardenas that his attorney was doing a “very good job.”
Sixth Amendment Claim
Kruger pointed out that the defendant’s Sixth Amendment claim is rooted in the 2018 U.S. Supreme Court decision in McCoy v. Louisiana. In that case, the high court found that the Sixth Amendment forbids defense counsel from conceding a defendant’s guilt over a client’s “intransigent and unambiguous objection.”
Applying those principles, the jurist opined:
“In this case,…counsel argued to the jury that Cardenas had committed the shooting but did so without premeditation, deliberation, or an intent to benefit the…gang. The central question before us concerns whether Cardenas raised a sufficiently clear, timely objection to invoke the rule of McCoy.”
Cardenas asserted that the arguments he raised in his Marsden motions were sufficient to invoke his Sixth Amendment right under McCoy. Addressing this contention, Kruger said that “[w]e are not…convinced that the statements at [these] hearings, standing alone, suffice” where “the record contains no indication that Cardenas objected at the time” his attorney pursued the strategy.
She continued:
“It is unclear whether Cardenas’s complaint was that counsel pursued the concession strategy over his objection, or that counsel pursued the concession strategy without his explicit consent. The distinction matters under McCoy, which reaffirmed that there is [no rule demanding explicit consent].”
Maintain Innocence
The justice added:
“In short, the record, as it stands, raises a substantial possibility that Cardenas wished to maintain his innocence of the shooting,…but the record does not reflect whether he made those wishes known to counsel in a timely way….[I]t is…possible that Cardenas was willing to go along with the concession strategy, at least up until the time it became clear from the jury’s guilty verdicts that the strategy had not worked. Because the record here was made substantially before McCoy, neither the court nor the parties made the appropriate inquiries necessary for us to fully evaluate the issue.”
Acknowledging that habeas proceedings are generally “the appropriate vehicle for exploring factual questions related to attorney performance,” she said that “given the unique circumstances of this case” and the fact that “the matter must be remanded for further proceedings” relating to the gang allegation, “the situation is sufficiently exceptional to warrant….a limited remand on Cardenas’s McCoy claim.”
Saying that the Attorney General agrees that the defendant’s additional claims based on recently enacted legislation such as the Racial Justice Act of 2020 “may be raised in superior court on remand,” she remarked that “[w]e do not…address those matters here.”
Gang Special Circumstance
As to the special circumstance allegation, Kruger noted that the prosecution was required to establish a “pattern of gang activity” by proving that two predicate offenses were committed by members of the criminal enterprise. At trial, an attorney with the Tulare County District Attorney’s Office offered evidence of three crimes, including Cardenas’ shooting.
Kruger commented:
“Both sides agree that as a result of Sanchez and the legislative changes made by Assembly Bill 333, there is insufficient evidence in the record to fulfill this statutory requirement. We agree….”
At trial, the prosecution’s gang expert, Visalia Police Officer Luma Fahoum, testified that her knowledge of one of the proffered predicate offenses was based exclusively on conversations with other members of the department and from reading police reports.
In the 2016 decision in Sanchez, the California Supreme Court held that hearsay evidence—such as out-of-court conversations between officers and police reports—is not admissible to prove up gang enhancements, rendering one of the predicate offenses relied on in Cardenas’ case invalid.
As to the remaining alleged offenses, the justice pointed out that Assembly Bill 333—which case law has established applies retroactively—provides that the “currently charged [crime] shall not be used to establish the pattern of criminal gang activity,” invalidating one of the other predicates.
Based on those changes, the justice remarked:
“[B]ecause application of the gang-murder special circumstance…depends on adequate proof of a pattern of gang activity…, we must…reverse the special circumstance finding….And…because the gang-murder special circumstance was the only special circumstance alleged in the case, the reversal…requires us also to reverse the judgment of death.
The case is People v. Cardenas, 2025 S.O.S. 2349.
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