Is a modification of the criminal street gang statute constitutional? Does a federal child welfare law apply to children who are in custody under a protective custody warrant?
These questions brought by Riverside attorneys will be resolved by the California Supreme Court.
The court decided to review three of Riverside’s appellate cases in the last week of September.
People v. Fletcher (S281282) and People v. Scott (S280776) bring the same questions related to Assembly Bill 333, passed in 2021. The bill tightened the definition of a criminal street gang for the purpose of sentencing enhancements. On appeal, both cases ask if the law also invalidates past strikes that would no longer be found true under the new law.. They also ask if AB 333 unconstitutionally amends 2000’s Proposition 21 and Proposition 36. Both propositions had amended sentencing law.
People v. Fletcher
In the Fletcher case, Larry Fletcher was accused of firing at a man leaving a convenience store in Hemet, for the purpose of instilling fear to benefit the Four Corner Hustler Crips gang. He was convicted of attempted murder with a firearm for the benefit of a criminal street gang, criminal street gang activity, being a convicted felon in possession of a firearm and assault with a semi-automatic firearm. Due to prior strikes, he was sentenced to 56 years and four months to life.
In the case’s June 30 appellate ruling, the Fourth Appellate District, Division Two, of the Court of Appeal found that AB 333 does not require reversing serious felony and strike priors.
People v. Scott
In the Scott case, Thomas Scott was accused of fatally shooting a man outside a Riverside church on the early morning of Aug. 28, 2016. Scott claimed self-defense. He was convicted of voluntary manslaughter, with multiple enhancements and one prior strike, and sentenced to 33 years in prison. The strike was a 2009 conviction for stealing a vehicle. It was only a strike because a gang enhancement was found true. Scott argued on appeal that AB 333 invalidated his strike.
In a May 24 appellate ruling, the Court of Appeal ruled that the strike remains a strike despite AB 333, because it was a strike at the time of his 2009 conviction.
Adoptions and protective custody warrants
The Supreme Court also picked up a juvenile dependency case, In re Delila D. (S281447). The case asks if a federal law to investigate a child’s possible Native American heritage before removing them from their parents applies to children who are taken into custody under a protective custody warrant. The Indian Child Welfare Act (ICWA) was created to give tribes a chance to adopt Native American children who qualified for tribal membership, instead of putting the children through the foster system. Protective custody warrants are put in place when a court-dependent child is in danger.
In the underlying case, the mother and father had histories of homelessness and methamphetamine use. They gave a friend permission to care for their daughter, Delila. On Jan. 22, 2021, a report was made that the friend’s boyfriend was sexually abusing Delila. Within two days, Delila’s social worker obtained a protective custody warrant and placed her in a confidential foster home. On April 2, 2021, the juvenile court declared Delila a dependent, removed her from her parents’ care and found the ICWA does not apply. Delila was placed in her step-grandmother’s home, who later started formal adoption.
The mother appealed, arguing that the court’s finding that the ICWA does not apply lacks evidence. The Court of Appeal agreed, and conditionally reversed the order terminating parental rights in a split decision published July 21.
The Court of Appeal’s ruling, written by Justice Marsha Slough, directed the department to investigate Delila’s possible Native American ancestry.
A dissent written by Justice Douglas Miller said that the Indian Child Welfare Act was already circumvented by the protective custody warrant.
