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Gang Enhancements Must Be Proven Under AB 333

People v. Burgos Docket: H045212 (Sixth Appellate District), Opinion Date: April 15, 2022. Each appellant was charged with two counts of second-degree robbery (Pen. Code 211, 212.5(c)) based on a 2015 incident. As to each count and defendant, the prosecution alleged that a principal personally used a firearm and that the offense was committed for the benefit of, at the direction of, and in association with a criminal street gang (Pen. Code 186.22(b)(1)(C)). Each defendant had been convicted of prior serious felony offenses. Lozano pleaded guilty to one count of second-degree robbery and active participation in a criminal street gang in exchange for a sentence of three years. A jury found three defendants guilty on both counts and found true the gang allegations but hung on the firearm allegations. As to each defendant, the court imposed an aggregate term of 21 years: six years for robbery, 10 years for the gang enhancements, and five years for the prior felony offenses. In 2022, Assembly Bill 333 amended the law governing gang-related offenses. After finding that the convictions were supported by sufficient evidence, the court of appeal reversed and remanded. Assembly Bill 333 is retroactive in amending the requirements for proving a gang enhancement and (Penal Code section 1109) in allowing the defense to request a bifurcated trial on a gang enhancement.

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