Death Penalty Sentence Vacated Based on AB 333

For a gang enhancement to apply to a sentence, California Assembly Bill (AB) No. 333, in 2022, amended California Penal Code § 186.22’s requirement for demonstrating a “pattern of criminal gang activity to include, in part, that the common benefit to a street gang be “more than reputational.”  The law applied retroactively to cases that were not yet final.

On the evening of March 8, 2002, in Orange County, Scott “Scottish” Miller, a founding member of the white supremacist gang Public Enemy Number One (PEN1), also know as PEN1 Death Squad, was found dead in an alley with a single gunshot wound to the back of his head.  

Three days later on March 11, fellow PEN1 members Michael Allan Lamb and Jacob Rump were arrested after a pursuit during which Mr. Lamb fired a shot at Sergeant Michael Helmick using the same gun that killed Mr. Miller.  

Mr. Lamb was then tried and convicted in Orange County Superior Court of the first degree murder (Penal Code § 187(a) of Mr. Miller, as well as the willful, deliberate and premeditated attempted murder (Penal Code §§ 664, 187(a) of Sergeant Helmick in a trial in San Bernardino Superior Court, during which the prosecution’s theory was that, acting upon an order to kill Miller in retaliation for having participated in a news program on Fox 11 News about the gang, Mr. Lamb shot Mr. Miller.

The jury also found Mr. Lamb guilty of conspiracy to commit murder (Penal Code §§ 182(a)(1), 187(a)), unlawfully carrying a loaded firearm in public by an active participant in a criminal street gang (former § 12031(a)(1), (2)(C)) and two counts of possession of a firearm by a felon (former § 12021(a)(1)) and street terrorism (Penal Code § 186.22(a)).

The jury also found true a gang-murder special circumstance allegation (Penal Code § 1902(a)(22)).  As to all counts except the street terrorism charges, it also found true the allegation that the offenses were committed for the benefit of, at the direction of, or in association with a criminal street gang with the intent to promote, further, or assist in the criminal conduct of the gang members (Penal Code § 186.22(b)(1)(A).  The jury also found true as to the murder and conspiracy to commit murder counts the allegation that Mr. Lamb intentionally and personally discharged a firearm in the commission of the offenses causing death (Penal Code § 12022.53(d)).

The jury fixed the penalty at death and the judge entered a judgment of death.

On automatic appeal to the Supreme Court of California, the California Supreme court reversed the majority of the convictions and vacated Mr. Lamb’s death judgment and remanded the case for a retrial on the reversed convictions, enhancements and special circumstances. 

The ruling was issued 20 years after the crime.  During the twenty years, AB 333 passed, as briefly described at the beginning of this article.

The California Supreme Court explained that certain new AB 333 requirements were bypassed. Specifically, the jury was not required to find that the predicate crimes used to establish a pattern of criminal activity commonly benefitted a criminal street gang in a “more than reputational” way.  

The Supreme Court explained that reversal was required on all gang findings by the jury because it did not appear beyond a reasonable doubt that the jury verdict would have been the same without the error.  Here, the Supreme Court explained, the jury could have, if properly instructed, a contrary finding.  This was because at trial, there was no documentary or testimonial evidence as to how the predicate offenses provided actual and common benefit to the gang beyond enhancing the gang members’ reputation and status, which is what AB 333 sought to eliminate.

Other than general testimony regarding how gang members could benefit the gang through criminal acts, there was no other evidence about how the specific predicate offenses actually benefitted the gang.  Thus, while there was ample evidence regarding a gang, and inferences could be made, the absence of any specific evidence as to the predicate offenses’ circumstances along with lack of evidence as the actual common benefit to the gang meant that a rational juror could have made a contrary finding.