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More Gang Enhancements Reversed

California v. Boukes Docket: E077058 (Fourth Appellate District), Opinion Date: September 29, 2022. A jury found defendant Noy Estul Boukes guilty of the first-degree murder of victim 1, threatening victim 2, and falsely imprisoning victim 2. The jury also found true allegations that defendant intentionally murdered victim 1 while he was an active member of a criminal street gang, and that he personally discharged a firearm during the commission of the murder, proximately causing great bodily injury or death. In a separate proceeding thereafter, defendant admitted he had suffered three prior prison terms and two prior strike convictions. The trial court sentenced defendant to state prison for life without the possibility of parole plus 78 years to life. On appeal of the judgment and sentence, the Court of Appeal remanded the matter to the trial court for resentencing. The trial court then struck the prior prison term enhancements and imposed, but struck punishment on the gang enhancements attached to counts 2 and 3. Appealing again, defendant contended that pursuant to Assembly Bill No. 333 (2021- 2022 Reg. Sess.), the judgments of conviction on counts 1 through 3, and the true findings on all the gang-related allegations, including the special circumstance finding, had to be reversed: “the prosecution did not present evidence that the predicate offenses commonly benefitted a criminal street gang in a manner that was more than reputational” and that “the prosecution relied, in part, on the reputational benefit of the shooting in this case to” defendant’s gang. To this point, Court of Appeal concurred and reversed the gang enhancements and special circumstance finding; the Court remanded the matter to give the State the opportunity to retry the issue relating to gang activity. In all other respects, the judgment was affirmed.


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