People v. SekPeople v. Sek
The opinion in the above-entitled matter filed on February 1, 2022 is modified as follows:
1. On page 17, the following paragraph is deleted:
“Sek and the Attorney General agree, as do we, that, under the principles of Estrada described above (Discussion part A.1, ante), the law applies retroactively to defendants like Sek whose convictions were not yet final when the law became effective January 1, 2022.”
The deleted paragraph is replaced with the following:
Sek and the Attorney General agree, as do we, that, under the principles of Estrada described above (Discussion part A.1, ante), Assembly Bill No. 518 applies retroactively to defendants like Sek
2. On page 18, the following two sentences are deleted:
“We agree with Sek that this law, as an ameliorative statute that reduces potential sentences for criminal defendants, applies retroactively under Estrada principles to defendants like Sek whose cases were not yet final when the law became effective. The court must apply the new law in any resentencing proceedings in this case.”
The deleted sentences are replaced with the following:
These requirements “shall apply to sentencings occurring after the effective date of” Senate Bill No. 81. (Stats. 2021, ch. 721, § 1, enacting § 1385, subd. (c)(7).) Because any resentencing in this case will take place after Senate Bill No. 81 became effective on January 1, 2022, we agree with Sek that the court must apply the new law in any such proceeding.
This modification does not constitute a change in the judgment.
Respondent‘s petition for rehearing filed on February 14, 2022 is denied.
ROTHSCHILD, P. J. CHANEY, J. BENDIX, J.
Defendant and appellant Samnang Sek, who was convicted of attempted murder and other offenses for his role in a gang shooting, contends that this law applies retroactively to him. He argues that because the jury instructions did not reflect this change in the law, the jury‘s findings on the gang enhancements in his case must be reversed. We agree.
FACTS AND PROCEEDINGS BELOW
In 2012, a jury convicted Sek of (counts 1 and 5) attempted murder (
As we explained in more detail in our prior opinion in this case (People v. Sek et al. (Apr. 17, 2015, B251196, B254949, B254954) [nonpub. opn.]),2 Sek drove in pursuit of the victim, allowing his passenger, codefendant and fellow gang member Terry My, to fire several shots at the victim‘s car. We reversed one count of attempted murder because the trial court erroneously instructed the jury on a “kill zone” theory, and we vacated the jury‘s finding that the second count of attempted murder was committed willfully, deliberately, and with premeditation because the information did not include this allegation. (See ibid.) We otherwise affirmed the judgment and remanded the case for further proceedings. (Ibid.)
On remand, the trial court sentenced Sek to 15 years to life in prison for count 2, firing at an occupied motor vehicle for the benefit of a criminal street gang. (
A. Assembly Bill No. 333
A defendant who commits a felony “for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members” is subject to increased punishment upon conviction. (
After the court imposed sentence and while his appeal was pending, the Legislature enacted Assembly Bill No. 333, which amended section 186.22 to impose new substantive and procedural requirements for gang allegations. Most notably, the law defined “to benefit, promote, further, or assist” as “to provide a common benefit to members of a gang where the common benefit is more than reputational. Examples of a common benefit that are more than reputational may include, but are not limited to, financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a potential current or previous witness or informant.” (
Sek contends that the amendments changing the definition of “benefit of a criminal street gang” apply retroactively to his case, and that, because the jury convicted him under the prior version of the law, we must reverse the convictions on the gang enhancements. The Attorney General agrees that the amendments apply retroactively but argues that we should affirm the conviction because the error was harmless beyond a reasonable doubt. We agree with Sek and reverse the gang enhancements.
1. Retroactivity of the new law
Ordinarily, “a new statute is presumed to operate prospectively absent an express declaration of retrospectivity or a clear indication that the electorate, or the Legislature, intended otherwise.” (Tapia v. Superior Court (1991) 53 Cal.3d 282, 287 (Tapia).) In In re Estrada (1965) 63 Cal.2d 740 (Estrada), however,
In subsequent years, the court has expanded the application of this doctrine broadly “to statutes changing the law to the benefit of defendants.” (Tapia, supra, 53 Cal.3d at p. 301.) Thus, the retroactivity principle applies to ameliorative changes in enhancements as well as to substantive offenses (People v. Nasalga (1996) 12 Cal.4th 784, 792), and to changes in the law that merely allow for a possibility of reduced punishment (People v. Francis (1969) 71 Cal.2d 66, 76). It also applies where a new law decriminalizes the defendant‘s conduct entirely. (People v. Rossi (1976) 18 Cal.3d 295, 302.)
Most relevant to this case, the Supreme Court in Tapia held that the presumption of retroactivity applies to laws that change the substantive requirements for an enhancement in the defendant‘s favor. (Tapia, supra, 53 Cal.3d at pp. 300–301.) In Tapia, the electorate had recently passed an initiative requiring proof of intent to kill for certain special circumstance allegations.
Appellate courts have applied this principle widely. For example, in 2010, the Legislature enacted a law limiting felony petty theft to defendants with three prior theft convictions rather than only one. (Assembly Bill No. 1844 (Reg. Sess. 2009−2010) Stats. 2010, ch. 219, § 15.) In People v. Vinson (2011) 193 Cal.App.4th 1190 (Vinson), the court held that the law applied retroactively because “akin to adding an element to a crime or an enhancement,” the amendment “benefits a defendant by making it less likely that he or she will qualify for felony-level punishment.” (Id. at p. 1197.) Similarly, in 1992, the Legislature enacted a law limiting the application of a sentence enhancement based on the amount of property loss. Previously, the enhancement applied if a defendant committed a felony causing a loss in excess of $25,000; under the new law, a $50,000 loss was required. (People v. Roberts (1994) 24 Cal.App.4th 1462, 1465.) In Roberts, the court held that because the law effectively reduced the punishment to which the defendants in the case were subject, it applied retroactively under Estrada. (Id. at p. 1466.) In People v. Figueroa (1993) 20 Cal.App.4th 65, the court held that a statute redefining an enhancement for committing drug offenses near a school applied retroactively. Under the statute in effect when the defendant committed the crime, the prosecution was required to prove only that the offense was committed within 1,000 feet of a school. The statute was later amended to add a requirement that school be in session or minors nearby at the time of the offense. (Id. at p. 69.)
At least one of the amendments in Assembly Bill No. 333 clearly meets the requirements for retroactivity as outlined by these cases: To prove that a defendant committed a felony “for the benefit
2. Harmless error
The Attorney General concedes that Assembly Bill No. 333 applies retroactively, but contends that reversal is not required because the error was harmless. We disagree.
By requiring proof for a gang enhancement that the benefit to the gang was more than reputational, Assembly Bill No. 333 essentially adds a new element to the enhancement. When jury instructions are deficient for omitting an element of an offense, they implicate the defendant‘s federal constitutional rights, and we review for harmless error under the strict standard of Chapman v. California (1967) 386 U.S. 18 (Chapman). (People v. Flood (1998) 18 Cal.4th 470, 502–503; People v. Lewis (2006) 139 Cal.App.4th 874, 884.) The Attorney General concedes that this standard applies here, where the new element to the offense is introduced through the retroactive application of a new law, and we see no reason to disagree. Under the Chapman standard, reversal is required unless “it appears beyond a reasonable doubt that the error did not contribute to th[e] jury‘s verdict.” (People v. Flood, supra, 18 Cal.4th at p. 504.)
The Attorney General argues that the error was harmless under this standard, noting that the prosecution‘s expert witness testified about benefits to the gang that were not merely reputational. The expert testified that gang members may commit crimes to retaliate against rival gangs, to defend and to try to expand their territory. In addition, according to the expert, gang shootings instill fear in the community, giving the gang “free [rein] to commit crimes in that area without any . . . repercussions of their criminal acts,” diminishing the gang members’ “chance of them getting caught by the police because of the community‘s fear of retaliation . . . by the gang.” If community members are afraid, they will be “less likely to report crimes committed by gang members.”
But in order to prove harmless error under the Chapman standard, it is not enough to show that substantial or strong evidence existed to support a conviction under the correct instructions. As the United States Supreme Court explained in Sullivan v. Louisiana (1993) 508 U.S. 275, “the question . . . is not what effect the constitutional error might generally be expected to have upon a reasonable jury, but rather what effect it had upon the guilty verdict in the case at hand. . . . The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty
Courts have found harmless error under this standard where the missing element from an instruction was uncontested or proved as a matter of law. For example, in People v. Merritt (2017) 2 Cal.5th 819, the trial court omitted the elements of robbery from the jury instructions, but the court held that the error was harmless because the only contested issue at trial was the identity of the defendant. (Id. at p. 832.) “Defendant knew what the elements of robbery were, and he had the opportunity to present any evidence he wished on the subject. ‘[W]here a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless.’ ” (Ibid., quoting Neder v. United States (1999) 527 U.S. 1, 17.) Similarly, in Vinson, the court affirmed the defendant‘s conviction of petty theft with a prior theft conviction even though the law had changed after trial to require the proof of three prior convictions, rather than one. (See Vinson, supra, 193 Cal.App.4th at p. 1200.) The defendant conceded that he had suffered two prior convictions, and his attorney stipulated at trial to a third conviction. Thus, there was no dispute as to whether the new element in the law was proved. (See ibid.)
In this case, the basis of the jury‘s verdict is not so clear. The prosecution‘s expert testified about several ways in which a crime could benefit a criminal street gang, but one of these was reputational. When asked whether a hypothetical crime similar to the one Sek committed could “enhance the reputation” of a gang, the expert answered, “Yes.” The expert went on to state that this
Our decision does not bar the prosecution from retrying Sek on the gang enhancements upon remand. “Because we do not reverse based on the insufficiency of the evidence required to prove a violation of the statute as it read at the time of trial, the double jeopardy clause of the Constitution will not bar a retrial. (People v. Figueroa[, supra,] 20 Cal.App.4th [at p.] 72, fn. 2 . . . ; see Burks v. United States (1978) 437 U.S. 1, 18 . . . .) ’ “Where, as here, evidence is not introduced at trial because the law at that time would have rendered it irrelevant, the remand to prove that element is proper and the reviewing court does not treat the issue as one of sufficiency of the evidence.” [Citation.]’ (People v. Ramos (2016) 244 Cal.App.4th 99, 103 . . . .)” (People v. Monk (2018) 21 Cal.App.5th Supp. 1, 7−8; accord, People v. Figueroa, supra, 20 Cal.App.4th at pp. 71–72.)
B. Other Allegations of Error
Sek alleges several other errors in sentencing, some that he claims the trial court committed when imposing sentence, and others that result from the retroactive application of new law. Although our resolution of the gang enhancement issue requires reversing Sek‘s sentence and resentencing him (after a possible new
1. Imposition of both firearm and gang enhancements
If a defendant commits a felony for the benefit of a criminal street gang, the defendant may be subject to a firearm enhancement under section 12022.53 if any principal to the crime used a firearm. (See
The trial court also included a 10-year gang enhancement under section 186.22, subdivision (b)(1)(C) for Sek‘s conviction of assault with a semiautomatic firearm (
2. Restitution and parole revocation fines
The trial court imposed a restitution fine of $4,500 under section 1202.4, subdivision (b), and a parole revocation fine of $4,500 under section 1202.45, subdivision (a). The latter fine was suspended pending the revocation of Sek‘s parole. Sek contends that the court abused its discretion in imposing these fines because the court calculated the amount of the fine according to a formula applicable at the time of sentencing, rather than the formula that applied at the time he committed the crimes. We conclude that Sek forfeited the issue, and that his attorney did not provide ineffective assistance of counsel by not objecting to the fine.
Because “the imposition of restitution fines constitutes punishment, . . . [it] is subject to the proscriptions of the ex post facto clause and other constitutional provisions.” (People v. Souza (2012) 54 Cal.4th 90, 143.) Thus, the court was required to apply the law in effect when Sek committed the offenses in 2011, without subsequent amendments, in determining Sek‘s restitution fine. (See ibid.)
In most relevant respects, the restitution fine statute is substantially the same now as it was in 2011. Then as now, except where there are “compelling and extraordinary reasons for not doing so,” the trial court must impose a restitution fine in all cases where the defendant is convicted of a crime. (
The statute has changed in one important way since 2011, however. At the time Sek committed the offense, the minimum fine was $200. (See Stats. 2010, ch. 351, § 9.) The Legislature subsequently amended Section 1202.4 to increase that amount to $240 in 2012, $280 in 2013, and to the current amount of $300 beginning in 2014. (Stats. 2011, ch. 358, § 1.)
Sek contends that the trial court meant to apply the formula in section 1202.4, subdivision (b)(2) to determine the amount of the fine, but erred by using $300 as the minimum amount rather than $200. At the sentencing hearing, the court imposed a “$300 per year restitution fine.”
Sek forfeited this claim by failing to object to the amount of the fine in the trial court: “[T]he rule of forfeiture is applicable to ex post facto claims [citation], particularly where any error could easily have been corrected if the issue had been raised at the sentencing hearing.” (People v. Martinez (2014) 226 Cal.App.4th 1169, 1189 (Martinez).)
But in order to prevail on a claim of ineffective assistance of counsel, a defendant must show not only that his attorney‘s performance was defective, but also that he suffered prejudice as a result. (Le, supra, 136 Cal.App.4th at p. 935.) Sek cannot make such a showing. The formula in section 1202.4, subdivision (b)(2) calls for the court to calculate the minimum fine, “multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted.” The trial court appears to have multiplied $300 by the minimum number of years Sek was ordered to serve, 15, to arrive at a fine of $4,500. But the court did not multiply the fine by two to account for the number of felony counts of which Sek was convicted. In addition to his conviction of firing into an occupied vehicle for which the court imposed the 15-year minimum sentence, Sek was also convicted of being an accessory after the fact.6
If the court had correctly applied the formula, it would have multiplied $200 (the minimum fine as of 2011) by 15 for the minimum number of years Sek was ordered to serve, and by two for the number of felony counts of which he was convicted, and arrived at a total fine of $6,000. Sek‘s attorney did not prejudice6
3. Errors in Presentence Credits and Abstract of Judgment
Sek contends that the trial court erred by failing to award a sufficient number of credits for time served prior to sentencing. The Attorney General agrees, as do we.
“[W]hen a prison term already in progress is modified as the result of an appellate sentence remand, the sentencing court must recalculate and credit against the modified sentence all actual time the defendant has already served, whether in jail or prison, and whether before or since he was originally committed and delivered to prison custody.” (People v. Buckhalter (2001) 26 Cal.4th 20, 29.) The court must also calculate conduct credits for the period before the original sentencing hearing. (Id. at p. 30.) The agency to which the defendant is committed—in this case the Department of Corrections and Rehabilitation—calculates and applies conduct credit for time following the original sentencing hearing. (Id. at pp. 30–31, 37.)
In this case, the trial court did not update the defendant‘s credits for actual time served between the original sentencing hearing and the resentencing hearing.
Sek also notes that the record includes several clerical errors. A minute order incorrectly deleted the trial court‘s order staying the sentence for attempted murder pursuant to section 654. The same minute order misstated the length of the firearm enhancement for attempted murder and misreported the name of the attorney who represented Sek at the sentencing hearing.
Section 654 prohibits multiple punishment for any single act or omission. If a single action or course of conduct by a defendant violates multiple laws, “the distinct crimes may be charged in separate counts and may result in multiple verdicts of guilt, [but] the trial court may impose sentence for only one offense.” (People v. Liu (1996) 46 Cal.App.4th 1119, 1135.) Until recently, the law required trial courts to impose sentence “under the provision that provides for the longest potential term of imprisonment.” (Former § 654.) In 2021, however, the Legislature enacted Assembly Bill No. 518 (Stats. 2021, ch. 441), which removes the requirement to impose the longest prison term. As the preamble to the bill explains, it allows “an act or omission that is punishable in different ways by different laws to be punished under either of those provisions.” (Ibid.)
Sek and the Attorney General agree, as do we, that, under the principles of Estrada described above (Discussion part A.1, ante), the law applies retroactively to defendants like Sek whose convictions were not yet final when the law became effective January 1, 2022.
In this case, the jury convicted Sek of firing into an occupied vehicle (
5. Senate Bill No. 81
In 2021, the Legislature enacted Senate Bill No. 81, which amended section 1385 to specify factors that the trial court must
The gang and firearm enhancements in all counts are stricken. In addition, the finding in count 2 that the offense of shooting at an occupied vehicle was committed for the benefit of a criminal street gang is reversed. In all other respects, the judgment is affirmed. On remand, the prosecution shall have the option to retry the defendant on the gang allegations. The trial court shall resentence the defendant and correct the clerical errors described in Discussion part B.3.
CERTIFIED FOR PUBLICATION.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
BENDIX, J.