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Change in gang enhancements applies retroactively  

People v. Sek (Cal. Ct. App., Feb. 1, 2022, No. B309003) 2022 WL 292614, at *1

Summary: Assembly Bill No. 333, effective January 1, 2022, changed the law regarding gang enhancements under Penal Code 1 section 186.22.  The new law requires that to  to prove that the defendant committed a crime for the benefit of a criminal street gang, the prosecution must show that the benefit to the gang was “more than reputational.” (Penal Code § 186.22, subd. (g).) Examples of a common benefit that are more than reputational may include, but are not limited to, financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a potential current or previous witness or informant.

Sek, who was convicted of attempted murder  for his role in a gang shooting,  argued that this law applies retroactively to him. He argues that because the jury instructions did not reflect this change in the law, the jury’s findings on the gang enhancements in his case must be reversed. The court agreed..

In 2012, a jury convicted Sek of attempted murder, shooting at an occupied vehicle, assault with a semiautomatic firearm and accessory after the fact. The jury found that Sek committed all these crimes for the benefit of a criminal street gang (§ 186.22, subd. (b)).

In 2015, The Court of Appeal reversed one count of attempted murder  and vacated the jury’s finding that the second count of attempted murder was committed willfully, deliberately, and with premeditation. The Court of Appeal  affirmed the judgment and remanded the case.

On remand, the trial court sentenced Sek to 15 years to life in prison for count 2, firing at an occupied motor vehicle for the benefit of a criminal street gang. (§§ 246, 186.22, subd. (b)(4)(B).)

Assembly Bill No. 333 and Sek’s sentence

“A defendant who commits a felony “for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members” is subject to increased punishment upon conviction. (§ 186.22, subd. (b)(1).)

Sek’s sentence included enhancements under this provision. It also included a 20-year firearm enhancement for discharging a firearm that applied only because Sek acted for the benefit of a gang. (See § 12022.53, subds. (c) & (e)).In addition, because the jury convicted him of firing into an occupied vehicle for the benefit of a street gang, he was subject to a sentence of 15 years to life under section 186.22, subdivision (b)(4)(B). Without the gang finding, the maximum sentence for this offense would have been seven years. (See § 246.)

After he was sentenced  and while his appeal was pending, the Legislature enacted Assembly Bill No. 333, which amended section 186.22 and defined “to benefit, promote, further, or assist” as “to provide a common benefit to members of a gang where the common benefit is more than reputational. The law created a stricter requirement for proof of “a pattern of criminal gang activity,” which is necessary to prove that the group with which the defendant is associated is indeed a criminal street gang. (See § 186.22, subd. (f).) A prosecution needed to prove only that those associated with the gang had committed at least two offenses from a list of predicate crimes on separate occasions within three years of one another. (See former § 186.22, subd. (e).) Under the new law, the offense with which the defendant is currently charged cannot be used as one of the two predicate offenses. (§ 186.22, subd. (e)(2).) Now, both predicate offenses must have been committed “within three years of the date the current offense is alleged to have been committed,” by gang “members,” and must have been for the “common[ ] benefit[ ] [of] a criminal street gang.” (§ 186.22, subd. (e)(1).) Under Assembly Bill No. 333, the defendant may request a bifurcated trial, in which the defendant is first tried for the underlying offense, and only upon conviction is tried for any gang enhancements. (§ 1109, subd. (a).)

Sek argues  that the amendments changing the definition of “benefit of a criminal street gang” apply retroactively to his case, and that, because the jury convicted him under the prior version of the law, we must reverse the convictions on the gang enhancements.

Retroactivity of assembly Bill 333

Ordinarily, “a new statute is presumed to operate prospectively absent an express declaration of retrospectivity or a clear indication that the electorate, or the Legislature, intended otherwise.” (Tapia v. Superior Court (1991) 53 Cal.3d 282, 287, 279 Cal.Rptr. 592, 807 P.2d 434 (Tapia).) In In re Estrada (1965) 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948 (Estrada), however, our Supreme Court recognized an exception to this rule. The court explained that “[w]hen the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply.”

The Supreme Court in Tapia held that the presumption of retroactivity applies to laws that change the substantive requirements for an enhancement in the defendant’s favor. (Tapia, supra, 53 Cal.3d at pp. 300–301, 279 Cal.Rptr. 592, 807 P.2d 434.) Previously, a defendant who had committed an offense to benefit the reputation of a criminal street gang, but with no other benefit, was subject to the enhancement. (See People v. Albillar (2010) 51 Cal.4th 47, 63, 119 Cal.Rptr.3d 415, 244 P.3d 1062 [under former section 186.22, subd. (b)(1), “[e]xpert opinion that particular criminal conduct benefited a gang by enhancing its reputation for viciousness can be sufficient to raise the inference that the conduct was ‘committed for the benefit of … a[ ] criminal street gang’ ”].) Now, he cannot be. The law has “redefine[d], to the benefit of defendants, conduct subject to criminal sanctions” (Tapia, supra, 53 Cal.3d at p. 301, 279 Cal.Rptr. 592, 807 P.2d 434), and it therefore applies retroactively under Estrada.

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