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New Gang Enhancement Law & Predicate Offense Evidence

The recently enacted Assembly Bill (AB) 333 modified Penal Code § 186.22, also known as the criminal street gang sentencing enhancement, to require, among other things, that the prosecution prove the benefit the gang derives from the predicate and current offenses is “more than reputational.”  AB 333 also made significant modification to the definition of “criminal street gang” and “pattern of criminal gang activity.”

AB 333, furthermore, required reversal of prior criminal street gang enhancements imposed as part of a sentence unless it seemed beyond a reasonable doubt that the now-invalid jury instruction did not contribute to the jury’s verdict.
The Gist of this Article:  In reviewing a conviction and sentence imposed with a gang enhancement prior to the change in 186.22 brought on by Assembly Bill 333, a judge must determine if the jury found the benefit to the gang was more than just reputational.  If the judge cannot find this, the matter must be remanded for a new trial with revised jury instructions on this issue.         
In Riverside County in 2016, a jury convicted Elijah Hall of six counts of robbery committed for the benefit of a criminal street gang (Penal Code §§ 211, 186.22) and one count of active participation in a criminal street gang.  The jury also found that he personally used a firearm in committing the crimes (Penal Code § 12022.53(b)).  All these crimes were committed when Mr. Hall was fifteen years old.  He was sentenced to 65 years to life in state prison.

The crimes arose around midnight on February 7, 2015.  Ismael D. was outside his home when he noticed a black Chevy Silverado driving by at an unusually slow pace.  Israel asked the driver if he could help him and after a brief exchange, the driver got out of the truck, showed Israel his gun, and asked him if he knew anyone from a local gang called “Cathedral City.” 

When Israel said no, Hall and his 14-year old codefendant, Anthony Torres, stepped out of the truck.  Torres demanded Israel empty his pockets and Hall hit him in the face with his rifle.  More people then got out of the truck with weapons.

Israel emptied his pockets and handed over his belongings and the group began to beat him.  When his wife noticed what was happening, his wife yelled through the window at the group that she was calling the police.  The group then got back in the truck and fled.

Shortly after robbing Israel, the group went to the home of Duane S.  They barged into the bedroom and demanded everyone empty their pockets.  One of the group said they were from Barrio Dream Homes – another Cathedral City gang – and that they were there to collect a drug debt.  The group took $40 from Duane S. and before leaving, Hall struck Duane in the face with the rifle.

The group then proceeded to rob several others and yelled “Dream Homes” as they fled the scene.

Police were alerted and made a traffic stop of the truck.  Hall ran, but was caught nearby with the cell phone of one of the victims.  Coincidentally, one of the items Hall had stolen was a computer tablet and after Hall stole it, it recorded the conversation of the group in the truck discussing the crimes they just committed.

At trial, two police officers testified as gang experts about the Barrio Dream Home gang.  The officer described how one member was convicted of robbery in 2013 with a gang enhancement and another was convicted of grand theft from a person in 2013 with a gang enhancement. 

The officer stated that when members of the gang commit crimes like robbery, they benefit the gang by bolstering its reputation within the community for violence.

After the judge sentenced Hall to state prison, he vacated the sentence under Proposition 57 and transferred his case to juvenile court for disposition.  See People v. Superior Court (Lara) (2018) 4 Cal. 5th 299.  As the reader may be aware, Senate Bill 1391 raised the minimum age from 14 to 16 as the minimum age that a minor can be tried as an adult in criminal court.

Even after his case was transferred to juvenile court, Hall continued with his appeal of the underlying ruling on not only the Senate Bill 1391 and Prop 57 grounds, but also under Assembly Bill 333.

The Fourth Appellate District, in People v. Elijah Tirek Hall, found based on the record that it could not be concluded the improper jury instructions were harmless beyond a reasonable doubt.  The evidence presented to establish the pattern of gang activity was insufficient under the new law; the jurors were not required to find that the offenses benefited the gang more than just strengthening its reputation.

Therefore, the Fourth Appellate District ordered that the matter be remanded and that the People have another opportunity to try the charges under the new law.

The citation for the Fourth Appellate District Court ruling discussed above is People v. Elijah Tirek Hall (4th App. Dist., 2021) ___ Cal. App. 5th ___, ___ Cal. Rptr. 3d ___.

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