Brief Bank # B-805 (Re: 6.50 n20 [Distinction Between Substantive Gang Offense (PC 186.22(a)) And Gang Enhancement (PC 186.22(b))].)
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
vs.
JOHN DOE,
Defendant and Appellant.
________________________________________/
_________________________
Excerpt from APPELLANT’S OPENING BRIEF
_________________________
III.
AS THE JURY VERDICTS REFLECT THAT JURORS
FOUND APPELLANT GUILTY OF A CRIME THAT WAS
NOT CHARGED IN THE INFORMATION, THOSE PORTIONS
OF THE VERDICTS MUST BE REVERSED AND DISMISSED,
AND APPELLANT’S SENTENCE RECALCULATED ACCORDINGLY.
The information in this case charged appellant with possessing specific characteristics rendering him subject to an increased prison term pursuant to the “criminal street gang” enhancement provisions of Penal Code section 186.22, subdivision (b)(1); the prosecution did not charge appellant with the crime of actively participating in a criminal street gang, as provided for by Penal Code section 186.22, subdivision (a). [Footnote 1] (C.T., pp. 241-248.) In accordance with a modified version of CALJIC no. 6.50 which adapted a standard jury instruction about the crime of street gang activity to inform instead about how to find support for allegations of street gang participation, the jury was instructed that charges of street gang activity were a “special allegation” in this case, and that the prosecution was required to prove enumerated elements in order to prove the allegation existed, not the crime. (C.T., pp. 379-381.) In closing argument, when the prosecutor urged the jury to find the special allegation true, she particularly stressed the modified instruction on allegations the jury had been read. (R.T., pp. 1055-1056.)
And yet, when the jury returned its verdicts, those forms reflected the jury found “true” the charge that appellant was a criminal street gang member as provided by section 186.22, subdivision (a), not subdivision (b). (C.T., pp. 438, 440.) In his report the probation officer flagged this for the trial court, and noted it was a problem (C.T., p. 496), but the court ignored this at the sentencing hearing. (R.T., [6/13/96], pp. 1-13.)
Appellant thus was found guilt of a crime which was not charged and upon which the jury was not instructed, while conversely he has been sentenced for a special allegation upon which the jury did not make a “true” finding. Thus the enhancement term added to appellant’s total term of imprisonment for the “street gang” allegation must be stricken, as the trial court lacked jurisdiction to sentence appellant upon that:
“It is fundamental that ‘When a defendant pleads not guilty, the court lacks jurisdiction to convict him of an offense that is neither charged nor necessarily included in the alleged crime.’ … This reasoning rests upon a constitutional basis: ‘Due process of law requires that an accused be advised of the charges against him in order that he may have a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial.'” (People v. Lohbauer (1981) 29 Cal.3d 364, 368; citations omitted.)
In addition, the special allegation must be reversed and dismissed with prejudice, as double jeopardy protections prevent appellant being retried on the same allegation. (Id., at p. 373, citing Bunnell v. Superior Court (1975) 13 Cal.3d 592, 606.)
CONCLUSION
For the foregoing reasons appellant John Doe respectfully requests this Court reverse his convictions. In the alternative, appellant requests this Court reverse and dismiss with prejudice the “street gang” enhancement term from his sentence.
Respectfully submitted,
BERLEY & DeVITO
By: Cara DeVito, State Bar no. 105579
Attorney for appellant,
John Doe
Designated “Independent” By CCAP
OPENING BRIEF FOOTNOTE
Footnote 1: The difference between the two sections is that someone convicted of the crime of actively participating in a criminal street gang may either be sentenced as a misdemeanant, or to prison for either 16 months, one year, or two years (Pen. Code, § 186.22, subd. (a)), while someone punished for his association with a criminal street gang must be imprisoned for an additional one, two or three years. (Pen. Code, § 186.22 (b).)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
vs.
JOHN DOE,
Defendant and Appellant.
____________________________________/
_________________________
Excerpt from
APPELLANT’S REPLY BRIEF
_________________________
III.
THE ENHANCEMENT ADDED TO APPELLANT’S TOTAL TERM
PURSUANT TO PENAL CODE SECTION 186.22, SUBDIVISION (“A”)
MUST BE REVERSED AND DISMISSED.
Appellant’s Opening Brief documented a problem with the jury’s return of verdict forms, which the probation officer had flagged for the sentencing court, but which the court ignored at the time of sentencing: although appellant was charged in this case with specific characteristics rendering him subject to an increased prison term pursuant to the “criminal street gang” enhancement provisions of Penal Code section 186.22, subdivision (b)(1), the jury returned a verdict finding him guilty of the crime of being a member of a criminal street gang under Penal Code section 186.22, subdivision (a), which the Information had not charged. (C.T., p. 496; R.T., [6/13/96], pp. 1-13.) As a result, appellant has been found guilt of a crime which was not charged and upon which the jury was not instructed, while conversely he has been sentenced for a special allegation upon which the jury did not make a “true” finding. Appellant therefore argued that the enhancement term added to his total term of imprisonment must be stricken as the trial court lacked jurisdiction to sentence him upon it.
The respondent of course disagreed, and characterized the situation as “a scrivener’s error”. [Footnote 2] (RB, at p. 30.) But however the error is characterized, it is an error of jurisdictional proprotions; the court lacks jurisdiction to convict a defendant of an offense that is neither charged nor necessarily included in the alleged crime.” (People v. Lohbauer (1981) 29 Cal.3d 364, 368.)
Therefore, as the Opening Brief noted, the enhancement based on the special allegation must be reversed and dismissed with prejudice, as double jeopardy protections prevent appellant being retried on the same allegation. (Id., at p. 373, citing Bunnell v. Superior Court (1975) 13 Cal.3d 592, 606; People v. Jerome (1984) 160 Cal.App.3d 1087, 1097 [where a record reveals a defendant cannot be held for the crimes for which he was sentenced, an appellate court has the authority to reduce the judgment accordingly].)
CONCLUSION
For the foregoing reasons appellant John Doe respectfully requests this Court reverse his convictions. In the alternative, appellant requests this Court reverse and dismiss with prejudice the “street gang” enhancement term from his sentence.
Respectfully submitted,
BERLEY & DeVITO
By: Cara DeVito, State Bar no. 105579
Attorney for appellant,
John Doe
Designated “Independent” By CCAP
REPLY BRIEF FOOTNOTE:
Footnote 2: The respondent also argued that as it appears appellant’s counsel was the one who requested mislabeling, any error was invited. (RB, at p. 30.) Firstly, it is not clear that it was appellant’s counsel who “insisted on the mislabeling”, as the respondent hyperbolically states; rather, during a chambers conference the prosecutor said she thought it was appellant’s counsel who requested the verdict forms be written this way. (R.T. [6/21/96], p. 8.) When counsel was asked by the court about this, counsel replied only that he understood the elements of sections (a) and (b) to be different. (R.T. [6/21/96], p 9-10.)
Secondly, even if it was appellant’s counsel who requested an incorrect verdict be given the jury, this Court is nevertheless empowered to review the issue, for Penal Code section 1259 provides “an appellate court may … review any instruction given, … even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby.” (See also, People v. Hempstead, 148 Cal.App.3d 949, 956 (1983).)
