In 2021, the California state legislature passed Assembly Bill (AB) 333, which amended Penal Code § 186.22 to impose new requirements for imposing a sentencing enhancement for a defendant committing a crime to benefit, promote, assist or further a criminal street gang. The new law requires that defendant’s offenses provide a common benefit to gang members that is more than reputational (Penal Code § 186.22(g)).
As the amended law benefits a defendant in reducing punishment, it applies retroactively. In re Estrada (1965) 63 Cal. 2d 740.
Examples of common benefits to gang members that were more than reputational include “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.” Penal Code § 186.22(g).
In 2012, Samnang Sek was involved in a gang shooting convicted in the Long Beach Superior Court, before Judge Gary J. Ferrari (who our office regards as one of the best judges in the Long Beach Courthouse), of attempted murder (Penal Code §§ 664, 187), shooting at an occupied vehicle (Penal Code § 246), assault with a semiautomatic firearm (Penal Code § 245(b)), and being an accessory after the fact (Penal Code § 32).
The jury found that Sek committed all these crimes for the benefit of a criminal street gang (Penal Code § 186.22(h)). The jury also found that both counts of attempted murder were willful, deliberate and premeditated (Penal Code § 664(a)) and that a principal discharged a firearm in committing the crimes (Penal Code § 12022.53(c) and (e)).
In the underlying case, Sek was the driver of a car pursuing the victim. While Sek drove, his passenger, co-defendant and fellow gang member, Terry My, fired several shots at the victim’s car.
After being convicted in 2012, Sek appealed the verdict, arguing that the jury instructions erroneously instructed the jury on the “kill zone” theory and the Second Appellate District Court vacated part of the judgment, but otherwise affirmed the judgment and remanded the case for further proceedings. For a good discussion of the “kill zone” theory and its limitations, see People v. Canizales (2019) 7 Cal. 5th 591.
On remand, Judge Ferrari sentenced Sek to 15 years to life in prison for shooting at an occupied vehicle for the benefit of a criminal street gang (Penal Code §§ 246, 186.22(b)(4)(B)) and a three-year gang enhancement (Penal Code § 186.22(b)(1)(A) for being an accessory (Penal Code § 32). The judge stayed the ten-year gang enhancement for attempted murder (Penal Code § 186.22(b)(1)(C)), plus 20 years for discharging a firearm (Penal Code § 12022.53(c) and (e)).
In 2021, Assembly Bill 333 was then passed. As the reader may surmise, in 2012, the jury instructions in his case did not reflect the 2021 change in the law, so Sek appealed yet again on new grounds and argued the enhancements in this case must be reversed.
The Attorney General agreed that the amended enhancement statute had retroactive effect, but argued that any error in Sek’s case was harmless.
When jury instructions are deficient for omitting an element of an offense, they implicate the defendant’s federal constitutional rights and the court reviews for harmless error under the strict standard of Chapman v. California (1967) 386 U.S. 18. Under Chapman, reversal is required unless “it appears beyond a reasonable doubt that the error did not contribute to the jury’s verdict.” People v. Flood (1998) 18 Cal. 4th 470, at 504.
The Second Appellate District Court in downtown Los Angeles agreed with Mr. Sek. In its filing dated February 1, 2022, before addressing the Chapman standard, the Second Appellate District pointed out that without the firearm enhancements imposed for being an accessory to a shooting into an occupied vehicle to benefit a criminal street gang (a 20-year enhancement under Penal Code § 12022.53(c) and (e)) and the fifteen-year to life enhancement for firing into an occupied vehicle to benefit a criminal street gang under Penal Code § 186.22(b)(4)(B), Mr. Sek faced a maximum sentence of seven years under Penal Code § 246, so the error was certainly not harmless.
As such, the gang and firearm enhancements in all counts were stricken. The finding that the shooting at an occupied vehicle was committed for the benefit of a criminal street gang was also reversed. On remand, the prosecution can retry Mr. Sek on the gang allegations.
We present this summary because it outlines some of the more fundamental legal issues that this new law raises.
For more information about the modifications to the criminal street gang sentencing enhancement, please click on the following articles: