75 Cal.App.5th 467
Cal. Ct. App.2022Background
- In 2015, 15-year-old Elijah Hall was convicted by a jury of six robberies and one count of active participation in a criminal street gang; jury found gang enhancements and firearm enhancements true.
- Evidence included multiple eyewitness identifications, a stolen tablet that recorded the perpetrators (with Hall’s name heard), recovered stolen property and guns from a truck, and police finding Hall nearby with a victim’s cell phone.
- At trial the court instructed the jury with CALCRIM No. 315 on eyewitness identification, which lists witness certainty as one of 15 factors.
- While the appeal was pending, Proposition 57 led the trial court to recall Hall’s adult sentence and transfer his case to juvenile court; the appeal was reinstated as a juvenile appeal.
- During the appeal the California Legislature enacted Assembly Bill 333, which materially narrowed Penal Code §186.22 by (a) requiring predicate offenses be committed collectively by gang members, (b) requiring predicate offenses commonly benefit the gang, (c) excluding the charged offense as a predicate, and (d) requiring the benefit be more than reputational; AB 333 also added procedural bifurcation rules.
- The Court of Appeal (1) rejected Hall’s challenge to CALCRIM No. 315 under People v. Lemcke, and (2) concluded AB 333’s substantive changes added elements not tried to the jury and reversed the gang true findings and enhancements and remanded for retrial or disposition under the new law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Use of CALCRIM No. 315 certainty factor in eyewitness-ID instruction | People: No forfeiture; if any, the factor could help defendant because some IDs were uncertain | Hall: Certainty factor is misleading and violates due process because certainty poorly correlates with accuracy | Court: Rejected Hall under People v. Lemcke — CALCRIM No. 315’s certainty factor does not violate due process; any error harmless given strong non-ID evidence |
| Effect of Assembly Bill 333 on gang conviction and enhancements under Penal Code §186.22 | People: Earlier conviction should be affirmed because the record shows gang benefit (including financial testimony) and sufficient predicate proof | Hall: AB 333 created new elements (collective predicate offenses; more-than-reputational benefit; other requirements) not tried to the jury, so convictions/enhancements must be reversed | Court: Reversed true findings on active gang participation and §186.22 enhancements; applied Chapman harmlessness standard and remanded to juvenile court to allow retrial under AB 333 or impose new disposition if People decline |
Key Cases Cited
- People v. Lemcke, 11 Cal.5th 644 (2021) (holding CALCRIM No. 315’s certainty factor does not violate due process)
- People v. Sanchez, 63 Cal.4th 411 (2016) (discusses reliability concerns with eyewitness identification and forfeiture rules)
- People v. Superior Court (Lara), 4 Cal.5th 299 (2018) (authorizes recall and transfer of certain adult sentences to juvenile court after Proposition 57)
- Chapman v. California, 386 U.S. 18 (1967) (harmless error beyond a reasonable doubt standard for constitutional error)
- Sullivan v. Louisiana, 508 U.S. 275 (1993) (on whether a verdict is attributable to trial error)
- People v. Figueroa, 20 Cal.App.4th 65 (1993) (remedy when amendment adds an element — retrial allowed)
- People v. Eagle, 246 Cal.App.4th 275 (2016) (retrial and retrial-not-barred principles when statutory amendment adds elements)
- People v. Pinholster, 1 Cal.4th 865 (1992) (failure to bifurcate harmless where overwhelming evidence on charges)
- People v. Merritt, 2 Cal.5th 819 (2017) (harmlessness where omitted element was uncontested and overwhelmingly supported)
- People v. Vinson, 193 Cal.App.4th 1190 (2011) (harmless error analysis for omitted elements)
- Tapia v. Superior Court, 53 Cal.3d 282 (1991) (retroactivity of ameliorative changes that redefine criminal conduct)
- In re Estrada, 63 Cal.2d 744 (1965) (general rule on retroactive application of ameliorative statutes)
- People v. Lopez, 73 Cal.App.5th 327 (2021) (analyzes AB 333’s effect on §186.22 and threshold for conviction)