86 Cal.App.5th 34
Cal. Ct. App.2022Background
- Lynell Travon Lewis was convicted of multiple counts arising from a casino robbery: robberies, assaults with semiautomatic firearms and assault weapons, weapons possession, gang participation, and related conspiracy counts.
- The jury found gang enhancements (§ 186.22(b)) and multiple firearm enhancements, including findings under former § 12022.53 (robbery principals personally used a firearm) and former § 12022.5(a) (personal use of a firearm).
- The trial court imposed a complex aggregate sentence with many consecutive and stayed terms, resulting in a multi-decade prison term; defendant appealed.
- The Attorney General conceded (and the court agreed) that Assembly Bill 333’s narrowing of the gang statute requires reversal of the gang convictions and gang-related enhancements because the predicate evidence does not meet the new statutory requirements. Those counts/enhancements may be retried.
- The principal legal dispute on appeal concerned whether a trial court may, after a jury has found a § 12022.53 enhancement true, decline to impose that enhancement and instead impose a lesser § 12022.5(a) enhancement. The court also addressed remand procedures for raising newly enacted sentencing statutes.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a trial court may substitute a § 12022.5(a) enhancement for a § 12022.53 enhancement found true | § 12022.53(j) prohibits substituting punishment under another statute once § 12022.53 is found true | Courts have discretion (post-SB 620) to strike § 12022.53 and impose the lighter § 12022.5(a) enhancement | The court held § 12022.53(j) bars substitution; courts may not replace a found § 12022.53 enhancement with § 12022.5(a) unless another enhancement provides a greater penalty |
| Whether Assembly Bill 333 requires reversal of gang convictions and gang-related enhancements | AG conceded AB 333 applies and predicates do not satisfy new requirements | Defendant sought relief under AB 333 because his case was nonfinal | Court accepted concession: reversed gang convictions and gang-related enhancements; retrial permissible; remand for resentencing |
| Whether defendant may raise claims under SB 567, AB 124, AB 518 (and other recent sentencing laws) on appeal | New statutes may apply because case nonfinal; but such issues are better addressed in trial court on remand | Defendant urged application of those statutes now | Court held defendant may raise those arguments in the trial court on remand in the first instance |
| Scope of SB 620 and interplay with § 12022.53(j) and Tirado | SB 620 allows courts to strike § 12022.53 enhancements; Tirado allows substitution among § 12022.53 enhancements | Defendant relied on SB 620 to argue for broader sentencing flexibility, including substitution with non-§12022.53 enhancements | Court explained SB 620 permits striking § 12022.53 enhancements and Tirado permits substituting another § 12022.53 enhancement, but § 12022.53(j) prevents substitution with more lenient enhancements outside that statute |
Key Cases Cited
- People v. Tran, 13 Cal.5th 1169 (Cal. 2022) (interpreting AB 333’s narrowing of the gang statute)
- People v. Tirado, 12 Cal.5th 688 (Cal. 2022) (permitting substitution among §12022.53 enhancements when appropriate)
- People v. Johnson, 83 Cal.App.5th 1074 (Cal. Ct. App.) (earlier appellate decision allowing substitution argued in this case)
- People v. Bell, 241 Cal.App.4th 315 (Cal. Ct. App.) (prior appellate proceedings in defendant’s case)
- People v. Vasquez, 74 Cal.App.5th 1021 (Cal. Ct. App.) (retrial of reversed gang allegations permitted)
- People v. Flores, 73 Cal.App.5th 1032 (Cal. Ct. App.) (procedure for raising new sentencing laws on remand)
- T-Mobile W. LLC v. City & County of San Francisco, 6 Cal.5th 1107 (Cal. 2019) (statutory interpretation principle that legislation has limits)
- In re Friend, 11 Cal.5th 720 (Cal. 2021) (legislative objectives subject to statutory stopping points)
- N.L.R.B. v. HH3 Trucking, Inc., 755 F.3d 468 (9th Cir. 2014) (interpretive principle regarding statutory scope)