74 Cal.App.5th 657
Cal. Ct. App.2022Background
- In 2012 a jury convicted Samnang Sek of attempted murder, shooting at an occupied vehicle, assault with a semiautomatic firearm, and accessory after the fact; the jury found gang enhancements and firearm enhancements.
- On remand the trial court imposed a 15-to-life term (for shooting into an occupied vehicle with a gang finding), stayed other terms, and added firearm and gang enhancements that substantially increased exposure.
- While Sek’s appeal was pending the Legislature enacted Assembly Bill No. 333, which (inter alia) amended Penal Code §186.22 to require that a crime “benefit” a gang by providing a common benefit that is "more than reputational."
- Sek argued AB 333 applies retroactively and that the jury instructions omitted the new "more-than-reputational" element, requiring reversal of the gang findings; the Attorney General conceded retroactivity but urged harmless-error review.
- The Court of Appeal held AB 333 is retroactive under Estrada, concluded the instructional omission was not harmless beyond a reasonable doubt, reversed the gang findings and struck gang and firearm enhancements, and remanded for resentencing (the prosecution may retry the gang allegations). The court also addressed unrelated sentencing errors (stacking, restitution fine computation, presentence credits, and application of AB 518 and SB 81).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Retroactivity of AB 333 (redefinition of "benefit") | AG conceded AB 333 applies retroactively | Sek: AB 333 must apply to his nonfinal conviction | AB 333 is ameliorative and applies retroactively under In re Estrada |
| Harmlessness of omitted "more-than-reputational" element | AG: error harmless beyond a reasonable doubt because expert testimony showed non-reputational benefits | Sek: jury could have relied solely on reputational benefit; not harmless | Omission was not harmless under Chapman/Sullivan; gang findings reversed |
| Imposition of both firearm and gang enhancements when defendant did not use gun | People effectively conceded error | Sek: enhancements improper when he did not personally use firearm | Court struck the firearm and gang enhancements as improperly stacked |
| Restitution/parole-revocation fine calculation and IAC claim | AG: Sek forfeited ex post facto challenge and counsel’s failure was not prejudicial | Sek: court used $300 minimum (post-offense) rather than $200 applicable in 2011; counsel ineffective for not objecting | Claim forfeited; no ineffective-assistance prejudice shown; correct formula would have produced a larger fine than imposed |
| Presentence credits and clerical errors | AG concedes credits/clerk errors require correction | Sek seeks recalculation/corrections | Court agreed: remand for recalculation of actual and conduct credits and to correct clerical mistakes |
| Application of AB 518 and SB 81 on resentencing | AG agreed ameliorative provisions apply to nonfinal cases | Sek: resentencing should apply new sentencing discretion and §1385 limits | Court held these ameliorative changes apply retroactively and must be applied on resentencing |
Key Cases Cited
- In re Estrada, 63 Cal.2d 740 (retroactivity of ameliorative statutes)
- Tapia v. Superior Court, 53 Cal.3d 282 (retroactivity applies to changes that redefine elements/enhancements to defendants' benefit)
- Chapman v. California, 386 U.S. 18 (harmless-beyond-a-reasonable-doubt standard for constitutional instructional errors)
- Sullivan v. Louisiana, 508 U.S. 275 (Chapman standard requires showing error did not contribute to verdict in that trial)
- Neder v. United States, 527 U.S. 1 (harmless-error framework for omitted elements)
- People v. Albillar, 51 Cal.4th 47 (expert testimony that conduct enhanced gang reputation can establish former §186.22 benefit)
- People v. Vinson, 193 Cal.App.4th 1190 (amendment adding an element to an enhancement applies retroactively)
- People v. Buckhalter, 26 Cal.4th 20 (recalculation of custody and conduct credits on resentencing)
- Burks v. United States, 437 U.S. 1 (double jeopardy limits retrial only where conviction reversed for insufficiency)
- People v. Merritt, 2 Cal.5th 819 (omitted elements may be harmless where element was uncontested or proved as a matter of law)