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AB 333 -changes to gang enhancements is fully retroactive to all non-final judgments

People v. Montano (Cal. Ct. App., June 22, 2022, No. F079222) 2022 WL 2236331, at *1

Summary: Defendants appealed from convictions for first degree murder with the special circumstance of lying in wait, and unlawful participation in a criminal street gang.
Assembly Bill No. 333, which amended Penal Code section 186.22 and added a new statute, PenL Code section 1109, is fully retroactive to all nonfinal judgments. The court also held that section 1109, as currently written, does not apply to gang special circumstance allegations under section 190.2(a)(22). Section 1109, subdivision (a) provides for bifurcation of gang enhancement allegations “charged under subdivision (b) or (d) of Section 186.22.” Section 1109, subdivision (b) requires a charge of violating subdivision (a) of section 186.22, the substantive gang offense, to be “tried separately from all other counts that do not otherwise require gang evidence as an element of the crime.” (§ 1109, subd. (b).) The failure to account for section 190.2(a)(22) may have been an oversight by the drafters of section 1109, the court cannot rewrite the statute. Such changes must come from the Legislature.

Assembly Bill 333 and gang enhancements
Assembly Bill 333 was enacted during this appeal.
Section 186.22 prohibits unlawful participation in a criminal street gang, as set forth in subdivision (a), and includes sentencing enhancement provisions, which are found in subdivision (b). The statute also has alternate penalty provisions, section 186.22, subdivisions (b)(4), (5), and (d), the latter of which allows for punishment of up to three years in prison if the defendant is “convicted of a gang-related misdemeanor offense.” (People v. Briceno (2004) 34 Cal.4th 451, 460, fn. 7, 20 Cal.Rptr.3d 418, 99 P.3d 1007.)

A criminal street gang is “an ongoing, organized association or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in subdivision (e), having a common name or common identifying sign or symbol, and whose members collectively engage in, or have engaged in, a pattern of criminal gang activity.” (§ 186.22, subd. (f).)

“The elements of the gang participation offense in section 186.22[,] [subdivision] (a) are: First, active participation in a criminal street gang, in the sense of participation that is more than nominal or passive; second, knowledge that the gang’s members engage in or have engaged in a pattern of criminal gang activity; and third, the willful promotion, furtherance, or assistance in any felonious criminal conduct by members of that gang.” (People v. Rodriguez (2012) 55 Cal.4th 1125, 1130, 150 Cal.Rptr.3d 533, 290 P.3d 1143.)

The enhancements and alternate penalty provisions apply only to gang-related crimes, meaning offenses “committed for the benefit of, at the direction of, or in association with a criminal street gang.” (§ 186.22, subds. (b), (d); accord, People v. Livingston (2012) 53 Cal.4th 1145, 1170, 140 Cal.Rptr.3d 139, 274 P.3d 1132.) The enhancements and alternate penalties further require “the specific intent to promote, further, or assist in criminal conduct by gang members.” (§ 186.22, subds. (b)(1), (4), (d).)

Assembly Bill 333 and Penal Code section 186.22 have new requirements for establishing liability under subdivisions (a), (b), and (d). As of January 1, 2022, predicate offenses must be shown to have “commonly benefited” the alleged gang, and the common benefit must have been “more than reputational.” (§ 186.22, subd. (e)(1).) Currently charged offenses no longer qualify (id., subd. (e)(2)), and at least one predicate offense must have been committed “within three years of the date the current offense is alleged to have been committed …” (id., subd. (e)(1)). Among other additional changes, the terms “benefit,” “promote,” “further,” and “assist” are now defined to mean providing “a common benefit to members of a gang where the common benefit is more than reputational.” (Id., subd. (g).)

Assembly Bill 333 also added section 1109 which provides:
“(a) If requested by the defense, a case in which a gang enhancement is charged under subdivision (b) or (d) of Section 186.22 shall be tried in separate phases as follows:
“(1) The question of the defendant’s guilt of the underlying offense shall be first determined.
“(2) If the defendant is found guilty of the underlying offense and there is an allegation of an enhancement under subdivision (b) or (d) of Section 186.22, there shall be further proceedings to the trier of fact on the question of the truth of the enhancement. Allegations that the underlying offense was committed for the benefit of, at the direction of, or in association with, a criminal street gang and that the underlying offense was committed with the specific intent to promote, further, or assist in criminal conduct by gang members shall be proved by direct or circumstantial evidence.
“(b) If a defendant is charged with a violation of subdivision (a) of Section 186.22, this count shall be tried separately from all other counts that do not otherwise require gang evidence as an element of the crime. This charge may be tried in the same proceeding with an allegation of an enhancement under subdivision (b) or (d) of Section 186.22.”

Retroactivity of Amendments to Section 186.22
In re Estrada (1965) 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948 (Estrada), an amendment to a criminal statute was held to apply retroactively despite the Legislature’s failure to expressly declare such an intent. When new legislation reduces the punishment for an offense, we presume that the legislation applies to all cases not yet final as of the legislation’s effective date.” (People v. Esquivel (2021) 11 Cal.5th 671.) The Estrada rule has been applied to statutes that merely made a reduced punishment possible.”

Section 1109 Does Not Apply to Section 190.1 et seq.
Assembly Bill 333 has been held to affect “other statutes that expressly incorporate provisions of section 186.22,” including the “gang murder special circumstance” provision of section 190.2. Section 190.2 makes first degree murder punishable by death or LWOP if “[t]he defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang, as defined in subdivision (f) of Section 186.22, and the murder was carried out to further the activities of the criminal street gang.” (§ 190.2(a)(22).) “As the definition of a criminal street gang has been narrowed by Assembly Bill 333 and new elements added in order to prove a criminal street gang and a pattern of criminal activity,” the requirements for establishing liability under section 190.2(a)(22) have also changed. However, Section 190.2 does not, however, contain any references to section 1109.

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