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Gang Enhancements from 2007 Vacated under AB 333
The Gist of this Article: This article summarizes the first appellate court ruling applying Assembly Bill 333, which allows a judge to strike a sentence imposed under Penal Code § 186.22 for defendant’s participation in a criminal street gang and committing a crime to promote, further or assist the gang. In this case, the underlying case was out of CCB, also known as the Clara Shortridge Foltz courthouse in downtown Los Angeles.
The following summary of a recent appellate court ruling is the first published ruling applying Assembly Bill (AB) 333 to vacate gang enhancements that lengthened a defendant’s prison sentence by 78 years to life.
As the reader may be aware, AB 333 was passed largely in response to a belief that many defendants were subject to enhanced sentences for gang participation when the prosecution did not establish the link between the charged offense and predicate offenses, or that the predicate offense(s) did nothing other than vaguely enhance a gang’s reputation for being violent, sometimes even using the charged offense as a predicate offense under the statute.
In the underlying case in Los Angeles County Superior Court at the Clara Shortridge Superior Court building (“CCB”), Edgar A. Lopez was convicted of committing three murders in 2007 while being an active gang participant (Penal Code § 190.2(a)(22)) and personally and intentionally discharging a firearm causing great bodily injury or death while committing a crime (Penal Code § 12022.53(d)), as well as three years for committing a drug offense to promote or aid a criminal street gang (Penal Code § 186.22(b)(1)(A)). The gang at issue was the 18th Street Gang.
For each of the murders, Judge George G. Lomeli sentenced Lopez to life in prison without the possibility of parole, plus a sentence of 25 years to life for the firearm enhancement in Penal Code § 12022.53(d). Additionally, Judge Lomeli imposed the mid-term sentence of three years for a charge of selling methamphetamine (Health & Safety Code § 11379), plus three years for a gang enhancement.
The murders went unsolved for many years, but were finally prosecuted in 2018. On appeal, and in supplemental briefing to the Second Appellate District Court in late 2021, Mr. Lopez argued many things, one being that certain enhancement and special circumstance findings must be vacated and the matter remanded for limited retrial due to statutory changes made by Assembly Bill 333 which would apply retroactively to his case because his sentence was not final (it was on appeal).
The Second Appellate District affirmed the convictions, but vacated the gang-related special circumstance and enhancement findings and remanded the case for further proceedings according to the new legal standards under AB 333.
To appreciate the gravity of this ruling and its likely precedential effect on other factually and legally similar cases, one must first and foremost know a few facts of the trial.
During the trial, the prosecution introduced evidence that two other 18th Street gang members committed murders and other felonies within three years as predicate offenses, but no evidence was introduced that the crimes constituted collective criminal activity by the 18th Street gang or that the benefit to the gang was anything more than reputational.
As the reader may be aware, AB 333 was passed largely in response to a belief that many defendants were subject to enhanced sentences for gang participation when the prosecution did not establish the link between the charged offense and predicate offenses, or that the predicate offense(s) did nothing other than vaguely enhance a gang’s reputation for being violent, sometimes even using the charged offense as a predicate offense under the statute.
In the underlying case in Los Angeles County Superior Court at the Clara Shortridge Superior Court building (“CCB”), Edgar A. Lopez was convicted of committing three murders in 2007 while being an active gang participant (Penal Code § 190.2(a)(22)) and personally and intentionally discharging a firearm causing great bodily injury or death while committing a crime (Penal Code § 12022.53(d)), as well as three years for committing a drug offense to promote or aid a criminal street gang (Penal Code § 186.22(b)(1)(A)). The gang at issue was the 18th Street Gang.
For each of the murders, Judge George G. Lomeli sentenced Lopez to life in prison without the possibility of parole, plus a sentence of 25 years to life for the firearm enhancement in Penal Code § 12022.53(d). Additionally, Judge Lomeli imposed the mid-term sentence of three years for a charge of selling methamphetamine (Health & Safety Code § 11379), plus three years for a gang enhancement.
The murders went unsolved for many years, but were finally prosecuted in 2018. On appeal, and in supplemental briefing to the Second Appellate District Court in late 2021, Mr. Lopez argued many things, one being that certain enhancement and special circumstance findings must be vacated and the matter remanded for limited retrial due to statutory changes made by Assembly Bill 333 which would apply retroactively to his case because his sentence was not final (it was on appeal).
The Second Appellate District affirmed the convictions, but vacated the gang-related special circumstance and enhancement findings and remanded the case for further proceedings according to the new legal standards under AB 333.
Under Assembly Bill 333, imposition of a gang enhancement requires proof of four additional requirements with respect to predicate offenses (earlier specific criminal acts by the gang members):
- The offenses must have commonly benefited a criminal street gang where the common benefit is more than just to benefit its reputation (i.e., the predicate offenses must have resulted in a 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);
- The last predicate offense must have occurred within three years of the date of the currently charged offense;
- The predicate offenses must be committed on separate occasions or by two or more gang members, as opposed to persons; and
- The charged offense cannot be used as a predicate offense.
During the trial, the prosecution introduced evidence that two other 18th Street gang members committed murders and other felonies within three years as predicate offenses, but no evidence was introduced that the crimes constituted collective criminal activity by the 18th Street gang or that the benefit to the gang was anything more than reputational.
The jury found Lopez guilty of multiple first degree murders, among other crimes, and found the gang enhancements true, but the jury was not asked to find whether the benefit to the gang was more than reputational and therefore did not make the findings that are now required by Penal Code § 186.22 as amended by AB 333. Given this lack of support, the gang enhancements were vacated and the case remanded for further proceedings.
The citation for the Second Appellate District Court ruling discussed above is People v. Edgar A. Lopez (2nd App. Dist., 2021) 73 Cal. App. 5th 327, 288 Cal. Rptr. 3d 63.
For more information about sentencing enhancements for convictions involving gang participation or purpose, please click on the following articles:
