Articles Posted in New Criminal Case Law

People v. Sek (Cal. Ct. App., Feb. 1, 2022, No. B309003) 2022 WL 292614, at *1

Summary: Assembly Bill No. 333, effective January 1, 2022, changed the law regarding gang enhancements under Penal Code 1 section 186.22.  The new law requires that to  to prove that the defendant committed a crime for the benefit of a criminal street gang, the prosecution must show that the benefit to the gang was “more than reputational.” (Penal Code § 186.22, subd. (g).) Examples of a common benefit that are more than reputational may include, but are not limited to, 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.

Sek, who was convicted of attempted murder  for his role in a gang shooting,  argued that this law applies retroactively to him. He argues that because the jury instructions did not reflect this change in the law, the jury’s findings on the gang enhancements in his case must be reversed. The court agreed..

Hemphill v. New York (2022) 142 S.Ct. 681

Summary: The admission of a third party’s plea allocution, because it  was reasonably necessary to correct defendant’s misleading argument, violated defendant’s right to confront the witnesses against him.

Facts: In 2006, a stray 9-millimeter bullet killed a 2-year-old child after a street fight in the Bronx. Police officers determined Ronnell Gilliam was involved and that Nicholas Morris had been at the scene. Morris’ apartment was searched and  a 9-millimeter cartridge and three .357-caliber bullets were found.  Gilliam initially identified Morris as the shooter, but later said that Darrell Hemphill, Gilliam’s cousin, was the shooter. The  State charged Morris with the child’s murder and possession of a 9-millimeter handgun. In a plea deal, the State agreed to dismiss the murder charges against Morris if he pleaded guilty to a new charge of possession of a .357 revolver, a weapon that had not killed the victim. Years later, the State indicted Hemphill for the child’s murder based on  DNA evidence . At his trial, Hemphill elicited testimony from a prosecution witness that police had recovered 9-millimeter ammunition from Morris’ apartment, thus incriminating Morris. Morris was not available to testify at Hemphill’s trial because he was outside the United States. Despite the objection of Hemphill’s counsel, the trial court allowed the State to introduce parts of the transcript of Morris’ plea allocution to the .357 gun possession charge as evidence to rebut Hemphill’s theory that Morris committed the murder. The court reasoned that  although Morris’ out-of-court statements had not been subjected to cross-examination, Hemphill’s arguments and evidence had “opened the door” and admission of the statements was necessary to correct the misleading impression Hemphill had created. The State, in its closing argument, cited Morris’ plea allocution and emphasized that possession of a .357 revolver, not murder, was the crime Morris committed. The jury found Hemphill guilty.

People v. Flores (Cal. Ct. App., Jan. 13, 2022, No. A160578) 2022 WL 121934, at *7–8

Changes to determinate sentencing law in 2022-Senate Bill 567

Felonies typically  carry three possible sentences, called a  low, middle, and high term.  High terms  cannot be imposed without a finding that there are aggravating factors. Previously,  judges could decide  if there were aggravating factors.  Effective January 1, 2022, the  determinate sentencing law, section 1170, was amended. (See Sen. Bill No. 567 (2020–2021 Reg. Sess.); Stats. 2021, ch. 731, § 1.3; Assem. Bill No. 124 (2020–2021 Reg. Sess.); Stats. 2021, ch. 695, § 5.)

People v. Tirado (Cal., Jan. 20, 2022, No. S257658) 2022 WL 176141, at *1

 Summary: Penal Code section 12022.53 authorizes enhancements for certain felonies involving firearms.Section 12022.53, subdivision (h) (section 12022.53(h)) authorizes courts to strike certain enhancements in the interests of justice under the authority of section 1385.

Issue: when the prosecution has alleged, and the jury has found true, the facts supporting an enhancement under section 12022.53, subdivision (d) (section 12022.53(d)). what may the court  do if it decides to strike that enhancement. May the court impose a lesser uncharged enhancement under either section 12022.53, subdivision (b) (section 12022.53(b)) or section 12022.53, subdivision (c) (section 12022.53(c))? Or is the court limited to imposing the section 12022.53(d) enhancement or striking it? The California Supreme Court held that a court may strike the section 12022.53(d) enhancement found true by the jury and impose a lesser uncharged statutory enhancement.

People v. Strother (2021) 72 Cal.App.5th 563

Summary: Strother was convicted of second degree burglary (Pen. Code, § 459)1 and theft of access card information (§ 484e, subd. (d)). Under the Three Strikes law, he was sentenced to two consecutive terms of 25 years to life in prison. In 2013, Strother filed a petition to recall his entire sentence pursuant to Proposition 36 (§ 1170.126), and in 2014 he filed a petition to recall his sentence for theft of access card information pursuant to Proposition 47 (§ 1170.18). The trial court issued an order to show cause why relief should not be granted for both petitions and in found Strother eligible for relief under both propositions. Following a July 2020 hearing on both petitions, the trial court found appellant posed an unreasonable risk of danger to public safety and was not suitable for resentencing. The trial court denied both petitions.

Strother appeals, contending the trial court abused its discretion in finding he posed an unreasonable risk of committing one of the “super strikes” identified in Proposition 47 (§ 1170.18) because the trial court 1) failed to consider that his two prior convictions involving violence and firearm use occurred almost 30 years ago with no evidence he was the shooter; 2) failed to consider his prison fighting from 2016 through 2019 was the result of his gang renunciation in 2016; and 3) erroneously found that his conflict resolution and anger management programming and parole plans were inadequate. He makes similar claims about the trial court’s denial of his Proposition 36 petition. The Court of Appeal affirmed  the trial court’s order.

People v. Benzler (Cal. Ct. App., Dec. 14, 2021, No. C092779) 2021 WL 5902741, at *1

 Summary: Benzler, sentenced in 2014 for offenses he committed when he was 18 years old, appealed the summary denial of his motion for a Franklin hearing1 under Penal Code section 1203.01.2.  Benzler contends he satisfied the eligibility criteria for such a hearing laid out in In re Cook (2019) 7 Cal.5th 439, 247 Cal.Rptr.3d 669, 441 P.3d 912 (Cook) and did not previously have an opportunity to present evidence related to his status as a juvenile offender. He argued for remand  so he may make a record of this evidence to use in future parole hearings. The court of appeal reversed the trial court’s order and remanded the matter for further proceedings.

 Facts and background