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California Court of Appeal: Gang Enhancements Remanded for Retrial Under AB 333; Sameness Requirement Satisfied

The court of appeal of California, Fifth Appelate District, struck gang and firearm enhancements based upon the retroactive application of Assembly Bill 333 (2021–2022 Reg. Sess.)(“AB333”). The Court also concluded that retrial of the enhancements on remand would not violate double jeopardy prohibitions because the “sameness requirement” was satisfied by substantial evidence during the first trial.

On January 16, 2018, California prosecutors charged Guillermo Vasquez and Nicky Diaz Carrillo with first-degree murder and assault with a firearm. The information alleged that both defendants were active gang members who carried out the murder to further the activities of the criminal street gang and that both offenses were committed“ for the benefit of, at the direction of, or in association with Surefios, a criminal street gang, with specific intent to promote, further or assist in criminal conduct by gang members.”

Both defendants were convicted of murder and subjected to sentence enhancements for personal firearm use, discharge of a firearm by a principal causing death, and gang benefit.

Vasquez was also subjected to an additional enhancement for having committed a felony within five years of release from confinement.

Vasquezwassentencedto25yearstolife,plus25yearstolife, plus three years. Carrillo was sentenced to 25 years to life, plus 25 years to life.

On July 27, 2021, the California Court of Appeal struck Vasquez’s three-year enhancement but otherwise affirmed as to both defendants. The California Supreme Court then granted review, vacated, and remanded for reconsideration in light of passage ofAB333.

At the time of the 2017offenses, California law authorized gang enhancements pursuant to PenalCode§186.22(b)(l), when the crime is committed“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.” In 2021, however, California lawmakers enacted AB333,amending§186.22 to impose new gang allegation requirements that became effective January 1, 2022.

As amended,§186.22(g)defines“to benefit, promote, further, or assist” as“to provide a common benefit to members of a gang where the common benefits more than reputational.” Such benefits include but are not limited to “financial gain motivation, retaliation, targeting a perceive for actual gang rival, or intimidation or silencing of a potential current or previous witness or informant.” Section186.22(t)also creates a stricter proof requirement of “a pattern of criminal gang activity” necessary to prove that the group the defendant is associated with is indeed a criminal street gang. Prosecutors previously needed to prove only that those associated with the gang had committed at least two predicate offenses, including the current offense, on separate occasions within a three-year period. See former §186.22(e). Now, under §186.22(e)(l), however:(1) the current offense can not be used as one of the predicate offenses; (2) both predicates must be committed within three years of the current offense; and (3) must havebeen for the common benefit of the gang.

Citing People v. Lopez, 73 Cal. App. 5th 327 (2021), the Court of Appeals accepted the Government's concession that AB 333 applies retroactively to Vasquez and Carrillo. Noting that Lopez concluded“that the gang-related enhancement findings must be vacated and the matter remanded to give the People the opportunity to prove the applicability of the enhancements under the amendments to section 186.22,”  the Court vacated both the gang and firearm enhancements.

TheCourtalsofoundthattheenhancementsmayberetriedonremand. In doing so, it rejected defendants’ argument that under People v. Prunty, 62 Cal. 4th 59 (2015), there was insufficient evidence to support the gang-related enhancements, barring retrial on double jeopardy grounds.TheCourtspecificallyrejecteddefendants’argumentthattherewas insufficientevidenceunderPruntybecausetheGovernment’stheory was that the gang they benefited was the broader Surefio gang, but failed “to show a connection between the local subsets and the Surefios.”

This “legal premise is flawed,” the Court concluded. “The prosecution did not have to show a connection between the subsets and the broader Surefio gang, so long as it otherwise showed that the group defendant acted in association with, ‘the group that committed the predicate offenses, and the group whose primary activities are introduced, is one and the same.”’ This is commonly referred toas ‘’the sameness requirement,” mandating a prosecutorial showing under Prunty “that the group the defendant acted to benefit, the group that committed the predicate offenses, and the group whose primary activities are introduced, is one and the same,” the Court stated. See Prunty.

TheCourtexplained that “it is clear there are multiple ways to satisfy the sameness requirement, depending on the circumstances of the case.”Under People v. Pettie, 16 Cal. App.5th 23 (2017), “the prosecution can establish that the defendant sought to benefit an umbrella or subset gang, and members of the same umbrella or subset gang also committed the requisite predicate offenses/primary activities.” Alternatively, under Prunty, “the prosecution can introduce evidence the defendant sought to benefit an umbrella gang, plus evidence that another gang/subset committed the predicate offenses/primary activities, plus evidence showing a sufficient associational connection between the umbrella gang and the other gang/subset.” The Court instructed that “the sameness requirement is satisfied by either approach. Meaning, if the prosecution does the former, it need not do the latter. In other words, the associational evidence described inPruntyisnotrequiredinevery case where there is evidence a subset exists.”

Applying this reasoning, the Court ultimately found that the sameness requirement is satisfied “because there was substantial evidence that the gang whose members Carrillo acted in association with, the gang whose members committed the predicate offenses, and the gang whose primary activities were established by expert testimony is one and the same: the broader Surefiogang.”It didnotmatterthatCarrilloandVasquezweremembersofdifferentSurefiosubsetsbecause‘’theevidence showed that, in addition to his membership in a subset, Carrillowasalsoamemberoftheumbrella Surefiogang. Nothing in the statute requires more.”

Concluding that  “the gang finding were supported by substantial evidence under the law in effect at the time of the defendant's trial,” the Court concluded that the enhancements may be retried on remand. See: People v.Vasquez, 74 Cal. App. 5th 1021(2022).  

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