Opinion
B331932
08-02-2024
THE PEOPLE, Plaintiff and Respondent, v. DONOVAN KUSHNER, Defendant and Appellant.
George L. Schraer, 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.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA458509-02, Robert C. Vanderet, Judge. Affirmed.
George L. Schraer, 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.
WILEY, J.
A jury convicted Donovan Kushner of second degree murder after he shot and killed Eddie Lino in June 2017. In the same trial, the jury convicted Kushner of other offenses arising from a separate shooting incident in April 2017. The jury also found the prosecution had proven various firearm and gang enhancements.
Before trial, Kushner filed a motion in limine to bifurcate the gang enhancements. Kusher renewed this request during trial. The trial court denied the motion, noting the gang issues were "just so intertwined with the facts of the case."
Kusher seeks reversal of his murder conviction only and raises one issue on appeal. He argues Assembly Bill No. 333 (2021-2022 Reg. Sess.) (AB 333) applies retroactively and required the trial court to try the gang enhancements separately and to permit gang evidence only in that separate trial. In the trial court, Kusher acknowledged the new law was not yet in effect but argued it should apply to his trial nonetheless.
AB 333 altered the requirements for gang enhancements. (See People v. Tran (2022) 13 Cal.5th 1169, 1206 (Tran).) It also added Penal Code section 1109, which, on defense request, requires a gang enhancement charge to be tried separately from substantive offenses that otherwise do not require gang evidence as an element. (Ibid.) Only this latter addition is at issue here.
In this court, Kushner concedes his November 2021 trial occurred before AB 333 took effect on January 1, 2022. (See Tran, supra, 13 Cal.5th at p. 1206.) His appeal thus hinges on the retroactivity of section 1109, an issue that was pending before the Supreme Court in People v. Burgos (Case No. S274732) at the time of the parties' appellate briefing.
If the provision is not retroactive, our job is simple. As Kushner conceded, "If the Supreme Court's opinion in Burgos favors respondent," who argued section 1109 is prospective only, "this Court could write a very short opinion rejecting appellant's contention outright." Indeed, Kushner does not argue that, separate from section 1109, the trial court abused its discretion in refusing bifurcation. (See People v. Burgos (2024) 16 Cal.5th 1, 10 (Burgos) ["Prior to the enactment of section 1109, trial courts were authorized, in their discretion, to bifurcate trials so that a gang enhancement allegation would be tried separately from a charged offense, when appropriate to avoid undue prejudice to the defense"].)
On June 3, 2024, our Supreme Court issued its opinion in Burgos and held section 1109 does not apply retroactively. (See Burgos, supra, 16 Cal.5th at pp. 8, 10, 31.)
The trial court thus did not err in refusing to bifurcate the gang enhancements and gang evidence.
Finally, within his argument on bifurcation, Kushner also complains the court permitted too much gang evidence at trial. Kushner does not argue the court's rulings were impermissible under Evidence Code section 352 or some other evidentiary provision. (See Burgos, supra, 16 Cal.5th at pp. 23 &25, fn. 8 [before and after AB 333, gang evidence may be admissible in a trial of the underlying charges where relevant to these charges].) Instead, Kusher grounds this subsidiary argument, like his main bifurcation argument, in AB 333 and section 1109. This subsidiary argument fails for the same reason as the main one.
DISPOSITION
We affirm the judgment.
We concur: GRIMES, Acting P. J. VIRAMONTES, J.