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

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.