A pivotal 2021 law that limited the use of gang enhancements will be reviewed Dec. 5, when the California Supreme Court hears a Riverside case.
Gang enhancements, which result in higher sentences, can be brought if prosecutors prove a pattern of criminal gang activity among members of a gang that a defendant belongs to. That pattern must be proved by previous crimes. The Supreme Court will decide if individual members of the gang acting by themselves would count towards these previous crimes, or if the prior crimes must be carried out by gang members acting together.
The question is due to the interpretation of 2021’s Assembly Bill 333, which drastically limited a prosecutor’s ability to bring gang enhancements. Among other changes, the bill struck the word “individually” from a sentence in the gang enhancement statute:
As used in this chapter, “criminal street gang” means an ongoing, organized association or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in, or have engaged in, a pattern of criminal gang activity.
The appealing defendant’s counsel argues that the striking of “individually” means that the crimes must be committed with other gang members, while prosecutors argue that the strike means that the crime must benefit the gang, and not the individual member.
“(AB 333) was enacted to reduce abuses in the original gang law,” said the defendant’s appellate attorney, Patrick Ford.
“The legislature had determined that the old law was being abused and it was inappropriately affecting Black and brown kids in low-income areas, and the results were devastating,” Ford said.
The crime
In the underlying case, Kejuan Clark was convicted Dec. 12, 2019, of rape, forced oral copulation, false imprisonment, first degree burglary and robbery inside an inhabited building. The burglary, false imprisonment and robbery convictions came with gang enhancements. He was sentenced to 20 years and an additional term of 90 years to life.
The prosecutor’s facts and the defendant’s facts differed.
Prosecutors said Clark entered a single mother’s Moreno Valley house on July 24, 2015, according to the case’s appellate ruling. He entered through an open window around 1 a.m., the ruling said. He asked the woman where her jewelry was, carried out her cell phone and laptop, and then raped her, the ruling said. The woman did not know Clark, according to the prosecutor and the victim. He carried out the burglary with Demario Mosely, Eric Parker and a minor, the ruling said. Clark, Parker and M.M. were members of the Northside Parkland gang, which is a subset of the Sex Cash Money gang.
According to Clark, he knew the woman, and was friends with her son when they were both teenagers. He also claimed he and the woman kissed at a sports bar prior to the alleged crime, and that she invited him over to her house on that July night. He claimed they engaged in consensual sex, and that Mosely and the minor decided to rob the house after dropping him off. The woman denied Clark’s version of the story, according to the appellate ruling.
Appeal
Clark appealed his conviction, arguing that AB 333 changed the rules: to be convicted with a gang enhancement, the prior crimes have to be done with the active participation of other gang members. In this case, three of the four convictions that proved the gang enhancement were committed by individual members of the Sex Cash Money gang, Clark’s Supreme Court brief says.
The Court of Appeal ruled against him.
“In sum, a pattern of criminal gang activity may be established by (1) two gang members who separately committed crimes on different occasions, or (2) two gang members who committed a crime together on a single occasion,” their ruling said.
Supreme Court briefs
Clark’s attorney maintains that the gang enhancement must not stick.
“(B)ecause the provision requires the gang members ‘collectively engage in’ a pattern of gang activity, the prosecution must prove that two or more members committed each predicate offense,” their brief says.
The brief urges the Supreme Court to adopt the decision made in the 2022 People v. Delgado appellate ruling (B299482)
“(The Delgado ruling found that) the prosecution must prove that two or more gang members committed each predicate offense,” Clark’s brief sys.
Prosecutor’s brief
The exclusion of the word “individually” from the statute was meant to establish that the prior crimes benefitted the gang rather than the individual, the Attorney General’s brief says.
The Attorney General’s brief argues that courts should take the definition of “pattern of criminal gang activity” from a separate definition in California’s law. That section defines gang activity as crimes that have been committed on separate occasions or by two or more members, their briefs says.
“The deletion of the words ‘individually or’ from subdivision (f) harmonizes with, and reinforces, the statute’s sharpened focus on viewing a gang as an organized, collective endeavor and targeting criminal activity undertaken for the gang’s common benefit, as opposed to activity undertaken for individual benefit,” their brief says.
Friends of the court
The State Public Defender’s Office, Fullerton’s Peace and Justice Law Center, nonprofit Pacific Juvenile Defender Center and Santa Clara Independent Defense Counsel Office provided amicus curiae briefs in support of Clark’s argument.
The Peace and Justice Law Center, which helped draft AB 333, says that the legislature simply failed to update the definition that the Attorney General cites. Their brief called that a “drafting error.”
The State Public Defender’s Office says that AB 333 was intended to tighten gang enhancements even further. To prove the enhancement, prosecutors would not only have to prove the gang members participated in the crimes collectively, but they would also have to prove that the crime would be for the benefit of the gang, they argue.
Case information
The oral argument will be live streamed in the morning session Dec. 5, and later posted on the California Supreme Court’s website.
Former Riverside Superior Judge Bambi Moyer presided over the case in Riverside.
Riverside Case No. RIF1503800
Fourth District Court of Appeal, Division Two, Associate Justice Douglas Miller wrote the appellate opinion, which was joined by Justices Carol Codrington and Michael Raphael.
Appellate Case No. E075532
Supreme Court Case No. S275746
Read the appellate ruling here.
Read Clark’s opening brief here.
Read the prosecutor’s response brief here.
Read the Peace and Justice Law Center’s brief here.
Read the State Public Defender’s brief here.
