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Modified Criminal Street Gang Enhancement Applied

The Gist of this Article: When a defendant shows that the evidence supporting him, in a trial before AB 333 became law, does not meet the higher gang enhancement standards of AB 333, the judge must remand the case to the trial court to allow the prosecution to retry that portion of the case.  This means the prosecution has an opportunity to add in more evidence to meet the higher standard.  In other words, the enhancement is not dismissed.         
At approximately 1:20 a.m. on August 25, 2018, six Los Angeles Police Department (LAPD) officers responded to a 911 call of shots fired in the area of Drew and Weldon Streets in Northeast Los Angeles. 

The area, as the reader of this summary may be aware, is in the heart of the area claimed by the Avenues street gang, a Mexican-American gang, and is the stronghold of the Drew Street clique within the Avenues gang.  The main rivals to the Avenues gang are the Cypress Park and Highland Park gangs.

Upon arriving at the location, officer detained several known Avenues member and found three spent .223 caliber shell casings in the walkway and the street in front of 3405 Drew Street.  They also found a loaded semiautomatic firearm wrapped in a towel behind the fence at 3405 Drew Street. 

Police also recovered a surveillance video from the home at 3407 Drew Street which showed a man and a woman stashing the towel-covered weapon inside the fence, where it was recovered.  Based on the video, the officers were able to arrest two Avenues members. 

There was also a video from 3405 Drew Street, which showed the shooting and after several officers viewed it, they arrested Froylan Delgado as the shooter.  He was shown shooting at a car that pulled up in front of the 3405 Drew Street building.

Mr. Delgado was then charged with and convicted of shooting at an occupied vehicle (Penal Code § 246), assault with an assault weapon (Penal Code § 245(a)(3)) and possession of a firearm by a felon (Penal Code § 29800(a)(1)).  It also found true the allegations that Delgado personally used and intentionally discharged a firearm in the commission of the shooting at an occupied vehicle (Penal Code § 12022.53(b) and (c)) and that the shooting was committed for the benefit of, at the direction of, or in association with a criminal street gang (Penal Code § 186.22(b)(4).

The trial court judge sentenced Delgado to 35 years to life, composed of 15 years to life for shooting at an occupied vehicle based on the gang enhancement, plus 20 years for the firearm enhancement under 12022.53(c).  The remainder of the sentence was imposed and stayed.

During trial in the Clara Shortridge Foltz Criminal Courts Building in the courtroom of Stephen A. Marcus (perhaps one of the best judges in the courthouse), Officer Hunt testified as an expert on the Avenues criminal street gang.  When asked if Avenues gang members “either individually or collectively engaged in patterns of criminal conduct,” Officer Hunt answered in the affirmative.

He then described the crimes that individual Avenues members had committed and been convicted of in the past.

Mr. Delgado appealed his conviction and sentence on several grounds.  While his appeals were pending, the California Legislature enacted Assembly Bill 333, which made several modifications to the criminal street gang enhancement statute, including modification of the definition of criminal street gang to require proof that members “collectively engage in, or have engaged in, a pattern of criminal activity.” 

Delgado then argued that the term “collectively engage in” meant the prosecution was required to show that two or more members engaged in certain crimes together and that in his case, the prosecution expert on gangs did not testify to this requirement.

The Second Appellate District agreed and reversed the criminal street gang enhancement finding and remanded the case to the trial court to give the People an opportunity to retry the gang enhancement and to meet their burden of proof under Assembly Bill 333’s new requirements.  The Second Appellate District further commented that “[i]f the People elect not to try the gang enhancement, Delgado is to be resentenced.”

We present this summary to the reader to show how the new law can affect a prior conviction and true finding of the criminal street gang sentence enhancement, but also to remind the reader that because the prior trial did not meet the new requirements, the case is remanded for a new trial because the prosecution was not under the new standard, so it receives a new opportunity to retry defendant.

The citation for the Second Appellate District Court ruling discussed above is People v. Froylan Delgado (2d App. Dist., 2022) 74 Cal. App. 5th 1067, 290 Cal. Rptr. 3d 189.

For more information about the modified criminal street gang enhancement law, please click on the following articles:
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