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Here's a brief review of the victories we've had this month:

*   Bail release of post-trial convicted felon with previous a previous no-bail order

*   Diversion of felon in possession of firearm, possession of machine gun, manufacturing a weapon, possession of an assault weapon, and 6 additional misdemeanor charges to community service and mental health treatment



October 2024 Victories

Our team recently did a deep dive into cases negatively impacted by Penal Code § 186.22 (Gang Enhancement) and stumbled upon your case. This public service announcement is targeted to those who may have involved in  certain types of gang affiliated conduct.

Effective January 1, 2022 (Assembly Bill No. 333), the Assembly Rules Committee voted to amend Gang Enhancement to require that the criminal activity “commonly benefited a criminal street gang, and \[that] the common benefit from the offenses is more than reputational” (§ 186.22, subd. (e)(1).).

Your case may be eligible for review towards determining whether certain gang enhancements may be vacated. Retroactive review on gang enhancement may be applicable if your conviction was subject to interpretations of Penal Code § 186.22 from before January 1, 2022 (See People v. Cooper (2023) 14 Cal.5th 735 Case No.: S273134 from May 25, 2023; in which the trial court’s decision to add a gang enhancement was reversed, despite sentencing occurring after January 1, 2022, as the new requirements in section 186.22 were able to be applied retroactively on appeal under In Re Estrada).

In order to establish that a gang is in fact a criminal street gang within the meaning of the California Street Terrorism Enforcement and Prevention Act (STEP Act), the prosecution must prove that gang members "collectively engage in, or have engaged in, a pattern of criminal gang activity." (§ 186.22, subd. (f).) We refer to the offenses that are used to establish "a pattern of criminal gang activity" under the STEP Act as predicate offenses. (§ 186.20 et seq. ; see People v. Valencia (2021) 11 Cal.5th 818, 829, 280 Cal.Rptr.3d 581, 489 P.3d 700.)
People v. Cooper, 14 Cal.5th 735, 738 n.2 (Cal. 2023)

**Q: How do I know if this applies to me?**
Assembly Bill No. 333 may be applied retroactively (People v. Tran (2022) 13 Cal.5th 1169, 1238-1239, citing In re Estrada (1965) 63 Cal.2d 740) and may be applied retroactively if the trial occurred before Assembly Bill 333 was enacted (People v. Cooper, 14 Cal.5th 735, 308 Cal. Rptr. 3d 409, 529 P.3d 66 (Cal. 2023) for convictions including Penal Code § 186.22.

**Q: What should I do if my case is not yet final?**
Contact your attorney or our office for consultation.

**Q: What should I do if my case is final?**
The best thing you can do to support your case is contact the public defender’s office in your county of conviction or your own personal attorney. If you do not have an attorney, our office is open for consultations. Please be aware that the content in this newsletter or any communication made with our office does not qualify as an attorney-client relationship unless otherwise stated.

**Q: Can I represent myself if I cannot afford an attorney?**
While it is possible to represent yourself, it is highly recommended to seek legal representation due to the complexity of the law and the importance of correctly interpreting and applying the changes brought about by Assembly Bill No. 333. If you cannot afford a private attorney, contact the public defender’s office in your county. They may be able to assist you or refer you to legal resources that can help.

**Q: What if my gang enhancement was part of a plea deal?**
Even if your gang enhancement was part of a plea agreement, you might still be eligible for relief under Assembly Bill No. 333. Consult with an attorney to review the terms of your plea deal and determine whether the changes in the law could affect your sentence.

**Q: What are the potential outcomes if my petition is successful?**
If your petition for resentencing is successful, the court may vacate the gang enhancement portion of your sentence. This could result in a reduced sentence, and in some cases, it may lead to immediate release if you have already served the revised sentence term. The exact outcome will depend on the details of your case and the court’s ruling.

**If you think you may be able to benefit from Assembly Bill No. 333, you should take immediate action to get your case reviewed.**


Convictions With Gang Enhancements May Be Reversible Under Amended California Penal Code § 186.22 

### A Guide to Challenging Court Decisions

Understanding the complexities of writs and appeals is crucial for those seeking to challenge a court’s decision. This guide provides an overview of the process, explaining how it can be a pivotal element in ensuring justice is served and legal rights are upheld.

#### What are Writs and Appeals?

**Appeals** are procedures that allow you to ask a higher court to review and change the outcome of a court decision. Appeals focus on errors of law and require a substantial basis to argue that the trial was somehow flawed, whether through incorrect legal application or procedural errors.

**Writs**, on the other hand, are legal orders issued by a court requiring the performance of a specific act. These are typically used to address issues that might not be directly appealable, including some urgent matters not covered by standard appeals. The most common forms of writs include writs of habeas corpus, mandamus, prohibition, and certiorari.

#### When Can You File an Appeal?

An appeal is typically filed after a final judgment or order is made by a court. The timing is critical; most jurisdictions have strict deadlines for when an appeal can be filed, usually within 30 days after the decision. Missing this deadline can result in losing the right to appeal.

#### Understanding Writs

Writs can be filed in situations where an appeal is not applicable. For example, if a court exceeds its jurisdiction or fails to exercise rightful authority, a writ can be requested to correct this error. Unlike appeals that are used after a trial's conclusion, writs can be issued during ongoing proceedings to address issues that cannot wait until the end of a trial.

#### How to File for an Appeal or Writ

1.  **Identify Grounds for Appeal or Writ:** You must determine on what legal basis you are requesting an appeal or writ. This involves a thorough review of the trial's proceedings and the identification of legal errors or issues.

2.  **Prepare the Necessary Documentation:** This includes a notice of appeal, the appellate brief, and potentially a transcript of the trial proceedings. For writs, specific documents outlining the request and its justification are needed.

3.  **Submit to the Appropriate Court:** Appeals go to an appellate court, while writs may be filed in either an appellate or a higher court, depending on the jurisdiction and the specific type of writ.

#### Role of a Lawyer in Writs and Appeals

The complexity of appeals and the strategic nature of filing writs mean that having experienced legal counsel is indispensable. A lawyer specializing in appeals or writs will know how to effectively argue your case, adhere to procedural norms, and present your arguments persuasively.

#### Strategic Considerations

The decision to pursue an appeal or a writ should be made carefully. Considerations include the likelihood of success, the costs involved, and the potential benefits. Sometimes, the appeal process can extend the duration of a case significantly, adding financial and emotional strain.

### Conclusion

Writs and appeals are powerful tools in the legal arsenal to ensure fairness and correct errors. They serve as essential checks and balances on the judicial process, offering a pathway to rectify mistakes. Whether you’re dealing with an unsatisfactory court decision or facing a legal error that demands immediate correction, understanding how to navigate these processes is crucial.

For those contemplating an appeal or needing to file a writ, obtaining skilled legal representation can make a significant difference. Contact our law firm today to discuss how we can help you effectively navigate this complex area of the law and work towards a favorable resolution of your legal concerns.


Writs & Appeals

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October 2024 Victories

Convictions With Gang Enhancements May Be Reversible Under Amended California Penal Code § 186.22

Writs & Appeals