CPOA Case Summaries-February 2022

Courtesy of James R. Touchstone, Esq.


  1. Court extends the Bivens remedy to allow suit against a correctional officer who allegedly created a substantial risk of harm to plaintiff prisoner.

Hoffman v. Preston, 2022 U.S. App. LEXIS 5237 (9th Cir. Feb. 28, 2022)

Facts: Marcellas Hoffman was a federal prisoner at U.S. Penitentiary Atwater, where Timothy Preston was a correctional officer. According to the complaint, Preston repeatedly and publicly labeled Hoffman a snitch to other prisoners, offered them a bounty to assault Hoffman, and failed to protect him from the predictable assault by another inmate in May 2016. Hoffman sued Preston for violating his Eighth Amendment rights and sought damages under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Hoffman alleged that the other inmate attacked him as a direct result of Preston labeling Hoffman a snitch.

Preston moved to dismiss the amended complaint, arguing that Hoffman had failed to state a valid Eighth Amendment claim under Bivens. Adopting a magistrate judge’s findings and recommendations, the District Court dismissed the action on the grounds that Hoffman’s claim presented a new Bivens context, and that special factors cautioned against extending the Bivens remedy to Hoffman’s claim. Hoffman appealed.

Held: The Ninth Circuit Court of Appeals explained that in Bivens, the United States Supreme Court recognized, for the first time, an implied cause of action arising directly under the Constitution for damages against federal officers alleged to have violated a plaintiff’s constitutional rights. The Bivens Court specifically held that damages were recoverable against federal officers who violated the Fourth Amendment’s prohibition against unreasonable searches and seizures. The Supreme Court explicitly extended the Bivens remedy in only two other cases, and only one of these involved the Eighth Amendment. Carlson v. Green, 446 U.S. 14 (1980) recognized an implied claim under the Eighth Amendment’s cruel and unusual punishment clause for prison officials’ failure to provide adequate medical care, Id. at 16-18 & n.1.

In Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), the Supreme Court instructed lower courts first to determine whether the case presents “a new Bivens context” by asking whether “the case is different in a meaningful way from previous Bivens cases decided by [the Supreme] Court.” Id. at 1859. If the case presents a new Bivens context, the next step is to ask whether “special factors counsel[] hesitation” against allowing the remedy in that context. Id. at 1857 (quoting Carlson, 446 U.S. at 18).

Construing the pro se complaint liberally, the Ninth Circuit held here that Hoffman’s complaint alleged conduct beyond deliberate indifference. The Court explained that Preston did not merely know of a risk of substantial harm; he intentionally and knowingly created the risk. Although this claim of intentional harm was not squarely presented in the Supreme Court’s Bivens opinions, the Ninth Circuit concluded that Hoffman’s allegations taken as true were only a modest extension of Bivens. Citing Carlson, the Ninth Circuit reasoned that if the Supreme Court allowed a guard who is aware of and deliberately indifferent to a substantial risk that a prisoner will suffer medical harm from an asthma attack to be sued under Bivens, it was only a modest extension to allow a suit against a guard who creates the substantial risk of harm and then allows it to occur. The Ninth Circuit also concluded that while Hoffman’s Eighth Amendment claim was different in some respects from the Eighth Amendment claim presented in Carlson, no special factors counseled hesitation against what was a very modest expansion of the Bivens remedy to this context. The Ninth Circuit Court of Appeals accordingly reversed the District Court’s dismissal of Hoffman’s complaint for failure to state a claim under Bivens, and remanded.

A dissenting judge stated that the Supreme Court had made “crystal clear that the days of freely implying damages remedies against individual federal officials under Bivens are at an end.” The dissent maintained the case should have been a straightforward affirmance of the District Court’s judgment.\


B. District Court correctly applied the purpose-to-harm test because police officers did not have time to deliberate before shooting decedent.

Ochoa v. City of Mesa, 2022 U.S. App. LEXIS 5240 (9th Cir. Feb. 28, 2022)

Facts: In Mesa, Arizona in March 2016, the ex-girlfriend of Sergio Ochoa called 911, and reported that she and Ochoa had a fight, that a handgun was involved, that Ochoa was under the influence of drugs, and had driven away. Minutes later, a second 911 call told dispatch that a man entered the caller’s home and said that he had two knives before driving away. Police realized that Ochoa had prompted both 911 calls, and tried unsuccessfully to pull Ochoa’s car over. Ochoa drove erratically, including on the wrong side of the road towards police vehicles. Ochoa eventually abandoned his car and fled to a home nearby. Officers there encountered a frantic man who evacuated children from a second-floor locked bedroom to evade Ochoa. Other people were yelling in a back room. Officers observed Ochoa briefly appear through the front window, possibly holding a knife. He ignored commands to come outside. Ochoa ran into the backyard. Standing between Ochoa and the home, the officers formed an L-shape around Ochoa. Ochoa had two knives in one hand and refused to obey the officers’ repeated commands to “Drop the knife!” To officers, Ochoa looked upset and ready to fight.

Police bodycam video displayed subsequent events. An officer fired a beanbag round at Ochoa and another officer at the same time released a police dog. Ochoa took a large step sideways (according to plaintiffs, away from the officers). The officers then fired about 30 shots at Ochoa. Ochoa died at the scene. Approximately 16 seconds had elapsed between the officers’ first entry into the home and the shooting.

Ochoa’s children, through their mothers, and Ochoa’s mother together sued on their own behalf. Ultimately, the remaining defendants were the Town of Gilbert, two Gilbert police officers, the City of Mesa, and seven Mesa police officers. Plaintiffs alleged in part that defendants violated the Fourteenth Amendment under 42 U.S.C. section 1983 by wrongfully depriving the plaintiffs of Ochoa’s companionship and familial association. The District Court granted the defendants’ summary judgment motion on the Fourteenth Amendment claim. The plaintiffs appealed.

Held: The Ninth Circuit Court of Appeals explained that a claim asserting that police officers violated a parent’s or child’s cognizable Fourteenth Amendment rights during a police shooting must show that the officers’ conduct “shocks the conscience.” Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008). The test used to decide whether officers’ conduct shocks the conscience depends on whether the officers had time to deliberate their conduct. The deliberate-indifference test applies if the situation at issue “evolve[d] in a time frame that permits the officer to deliberate before acting.” Id. at 1137. Deliberation is not possible if the officers “encounter[ed] fast paced circumstances presenting competing public safety obligations.” Id. at 1139. However, the purpose-to-harm test applies if the situation at issue “escalate[d] so quickly that the officer [had to] make a snap judgment.” Id. at 1137. This test requires “a more demanding showing that [the officers] acted with a purpose to harm [the decedent] for reasons unrelated to legitimate law enforcement objectives.” Id. The Court noted that the Fourteenth Amendment “shocks the conscience” standard applicable to a claim by a relative requires more of a plaintiff than the standard used in Fourth Amendment excessive-force claims which asks whether the officers’ conduct was “objectively unreasonable.”[1]

The Ninth Circuit noted that at the time of the shooting, the officers knew that Ochoa had: engaged in a domestic dispute that allegedly involved a gun while possibly under the influence; allegedly entered a stranger’s home stating that he was armed with knives; failed to yield when a marked police car tried to pull him over; and had driven erratically, including on the wrong side of the road towards police officers. When the officers arrived at the home where Ochoa was later shot, the situation escalated. They encountered a distressed man who said that Ochoa did not belong at the house and evacuated children from a locked bedroom out of the house through a second-story window. Ochoa ignored repeated commands to come outside and drop any knives he was carrying. As the officers entered the front door, Ochoa ran into the backyard, where he refused to drop two kitchen knives despite multiple commands from the police to do so. He then took a large step. The Court found that with the knowledge of Ochoa’s earlier actions, the officers had to make a snap decision about Ochoa’s intentions and the threat he posed to them, the people in the home, and the public at large. Thus, the Court concluded that the purpose-to-harm test was the correct choice to assess whether the officers’ conduct shocked the conscience.

The Court of Appeals next found that the District Court correctly concluded that under the purpose-to-harm test, the conduct did not violate the plaintiffs’ Fourteenth Amendment rights. The officers’ actions instead reflected their attempts to satisfy legitimate law enforcement objectives: apprehension of an armed, dangerous suspect and protection of the safety of the officers, the home’s inhabitants, and (if Ochoa escaped the backyard) the public. Moreover, nothing in the record suggested that the officers had an improper purpose to harm. Accordingly, the Ninth Circuit Court of Appeals affirmed the District Court’s summary judgment.

For a more detailed discussion of this case, please see Client Alert Vol. 37, No. 3, available at www.jones-mayer.com.



A. Plaintiff’s burden of proving that the discrimination was a substantial factor motivating an adverse employment action arises only after, not before, the employer has rebutted plaintiff’s prima facie showing.

Dep’t of Corr. & Rehab. v. State Pers. Bd., 74 Cal. App. 5th 908 (3rd Dist. 2022)

Facts: Dr. Vickie Mabry-Height is an African-American, female physician who was 52 years old when the relevant facts here commenced. During the period from July to September 2008, Dr. Mabry-Height was denied the opportunity to interview for vacant physician/surgeon positions at Chuckawalla Valley State Prison (“CVSP”) and Centinela State Prison (“CSP”) for which others were chosen. She subsequently brought a complaint against the Department of Corrections and Rehabilitation (“Department”) alleging discrimination based on age, race, and gender in violation of the California Fair Employment and Housing Act (Government Code section 12900 et seq.; “FEHA”).

The State Personnel Board (“Board”) sustained Dr. Mabry-Height’s complaint. The Board concluded that she had established a prima facie case of unlawful discrimination by producing evidence that she was not interviewed for positions for which she was well qualified and less-qualified persons were hired for those positions, raising an inference that the Department discriminated against her on the basis of age, gender, and/or race. The Board also concluded that the Department failed to rebut the presumption of discrimination by offering evidence that it had a legitimate, nondiscriminatory reason for this conduct.

The Department petitioned the trial court for a writ of administrative mandamus seeking an order setting aside the Board’s decision. The trial court denied the petition, and judgment was entered in favor of Dr. Mabry-Height. The Department appealed.

Held: The Third District Court of Appeal explained that California adopted the three-stage burden-shifting test established by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 for trying claims of discrimination. The first step of the McDonnell Douglas test places on the plaintiff the initial burden to establish a prima facie case of discrimination. For this first step, the plaintiff must at least demonstrate actions taken by the employer from which one can infer that it was more likely than not that such actions were based on a prohibited discriminatory criterion. If, at trial, the plaintiff establishes a prima facie case, a presumption of discrimination arises. In the second step of the test, the burden shifts to the employer to rebut the presumption by producing admissible evidence, sufficient to raise a genuine issue of fact and to justify a judgment for the employer, that its action was taken for a legitimate, nondiscriminatory reason. If the employer sustains this burden, the presumption of discrimination disappears. In the third step, the plaintiff must then have the chance to attack the employer’s proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive.[2]

On appeal, the Department contended that the Board abused its discretion by not requiring Dr. Mabry-Height to demonstrate by a preponderance of the evidence that discrimination was a substantial motivating factor in the Department’s challenged decisions. The Court of Appeal rejected the contention because such a showing by the plaintiff was only required at the third stage of the McDonnell Douglas analysis, after the employer successfully rebuts the presumption of discrimination arising from the prima facie case by producing evidence of a legitimate, nondiscriminatory reason for the challenged conduct.

Here, the Board concluded the Department did not carry its stage-two burden of producing sufficient evidence of a legitimate, nondiscriminatory reason for the challenged conduct. The Court concluded that where a plaintiff establishes a prima facie case of discrimination based on a failure to interview her for open positions, the employer must do more than the Department did here, i.e., merely producing evidence that the hiring authorities did not know why Dr. Mabry-Height was not interviewed, and providing after-the-fact possible nondiscriminatory reasons. The Court explained that the employer must clearly state the actual nondiscriminatory reason for the challenged conduct. Thus, Dr. Mabry-Height prevailed based on the presumption of discrimination and was not required to proceed to the third stage of the analysis. Accordingly, the Third District Court of Appeal affirmed.


B. Plaintiff police chief’s employment contract created a hybrid employment relationship between city and plaintiff where employment as chief was at will but employment as lieutenant was not at will

Joseph v. City of Atwater, 74 Cal. App. 5th 974 (5th Dist. 2022)

Facts: In November 2016, plaintiff Samuel Joseph and defendant City of Atwater (“City”) entered into a “CHIEF OF POLICE EMPLOYMENT AGREEMENT” regarding the City’s employment of Joseph as its chief of police.  Section 2.2 addressed the City’s removal of Joseph from his employment as chief of police by stating:

Joseph shall be designated an ‘at-will’ employee. Accordingly, the City Manager may terminate this [Chief of Police] Employment Agreement and remove Joseph from the position of Police Chief at any time, for any reason, with or without cause. If the City Manager removes Joseph from the position of Police Chief for any reason other than willful misconduct in office or conviction of a crime of moral turpitude, Joseph shall be given the option to either:

2.2.1 Return to his previous position of Police Lieutenant, where his compensation will be based on Step 6 of Range 315 of the Salary Schedule for Police Lieutenant; or

2.2.2 Terminate his employment with the City and receive four (4) months wage continuation pay, with such pay to be computed at the highest base salary received by Joseph during his service with the City….

In September 2018, the city manager sent Joseph and his attorney a notice of “intention to terminate [plaintiff’s] employment as Police Chief with the City for willful and other misconduct.”  The notice described the misconduct and listed Penal Code and policy violations. The notice also described Joseph’s right to appeal the termination decision.

Under Section 3304(c) of the Public Safety Officers Procedural Bill of Rights Act (“POBRA”; Government Code section 3300 et seq.), no chief of police may be removed from office without being provided written notice of the reasons “and an opportunity for administrative appeal.” Joseph’s attorney responded to the City in a letter stating Joseph was appealing the proposed termination and was objecting to the appeal procedure. The parties ultimately were unable to agree as to the type of hearing that Section 3304 required.  Joseph refused to participate in a hearing that did not comply with his interpretation of POBRA and so no hearing was held.  In November 2018, the City terminated Joseph’s employment as chief of police for willful and other misconduct.

Joseph filed a petition for writ of mandate, alleging that the City failed to provide him with the type of hearing necessary to afford him “an opportunity for administrative appeal.”  The trial court denied the petition and entered judgment in favor of the City. Joseph appealed.

Held: The Fifth District Court of Appeal initially noted that Labor Code section 2922 states that “[a]n employment, having no specified term, may be terminated at the will of either party on notice to the other.”  An employer and employee may agree to any limit, otherwise lawful, on the employer’s right to terminate the employment relationship for any or no reason.  (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 336.)  The City and the trial court characterized Joseph’s employment with the City as an at-will employee.  Joseph argued he had the contractual right to be returned to the position of lieutenant if his termination as police chief was without cause; City’s decision to terminate his employment for willful misconduct deprived him of his right to employment as a lieutenant; and the termination for cause created a situation where he was entitled to the same procedural rights as other public safety officers terminated or disciplined for cause.

The Fifth District focused on the question of whether the agreement was reasonably susceptible to the interpretation that Joseph was an at-will employee not only as a police chief, but in any capacity. The Court decided that the plain meaning of Section 2.2 of the employment agreement meant that Joseph’s employment as police chief could be terminated at any time for any reasons and, consequently, his employment in the police chief position was properly characterized as at will.

The Court described the remainder of Section 2.2 as imposing a limit on the City’s right to terminate Joseph’s employment for any reason.  That portion provided that if Joseph’s employment as police chief was terminated for reasons other than “willful misconduct in office or conviction of a crime of moral turpitude,” Joseph had a right to continued employment as a lieutenant or a payment of four months’ salary, at his option.  The Court stated: “Thus, section 2.2 necessarily implies that City’s right to terminate plaintiff’s employment as a lieutenant is limited to the specified reasons—that is, willful misconduct or conviction of a crime of moral turpitude, which necessitate certain procedural protections.”[3] The Fifth District thus determined that when Section 2.2 was read as a whole, it was not reasonably susceptible to the interpretation that all of Joseph’s rights to employment were at will.  The Court concluded that the employment agreement instead “unambiguously created a hybrid employment relationship between City and plaintiff.  First, plaintiff’s employment as chief of police was at will.  Second, plaintiff’s employment as a lieutenant was not at will because it could be terminated only on the grounds specified in the agreement.”

The Fifth District found that the termination of Joseph’s right to employment as a lieutenant entitled him to an administrative appeal pursuant to Section 3304(b), which provides “[n]o punitive action, nor denial of promotion on grounds other than merit, shall be undertaken by any public agency against any public safety officer …without providing the public safety officer with an opportunity for administrative appeal.”

The Fifth District explained that in Caloca,[4] the Fourth District Court of Appeal concluded that under POBRA’s administrative appeal requirement, a compliant administrative appeal required (1) an independent reexamination of the decision, (2) the reexamination be conducted by someone who was not involved in the initial determination, (3) the independent administrative decision maker to set forth findings to bridge the analytical gap between the raw evidence and the ultimate decision, (4) the hearing to “be treated as a de novo proceeding at which no facts are taken as established” and (5) the proponent of a particular fact to bear the burden of establishing it. (Id., at pp. 443–444.)  The Caloca court also concluded the hearing could not be closed over the officer’s objection.

Here, the Fifth District found that these minimum procedural protections must be provided to Joseph in the administrative appeal provided to him in connection with the termination of his rights to employment as a lieutenant.  The Court concluded that the hearing offered by City did not satisfy these requirements and, therefore, did not comply with Section 3304(b).  The Court explained that the retention of final authority by the city manager did not provide Joseph with a hearing by an independent decision maker as required by Caloca and other case law because the city manager was involved in the initial decision to terminate Joseph’s employment.  Moreover, the City’s proposed hearing did not provide Joseph with a full evidentiary hearing where he had the right to cross-examine witnesses and the burden of proving a particular fact was placed on its proponent.  The Fifth District Court of Appeal accordingly reversed the order denying the petition for writ of mandate and remanded for further proceedings.

For a more detailed discussion of this case, please see Client Alert Vol. 37, No. 4, available at www.jones-mayer.com.



A. Trial court properly dismissed plaintiff’s case because an administrative rule extending the statute of limitations did not trigger a statute to extend the deadline an additional six months.

Ables v. A. Ghazale Bros., Inc., 74 Cal. App. 5th 823 (5th Dist. 2022)

Facts: Code of Civil Procedure section 583.310 requires an action to “be brought to trial within five years after the action is commenced against the defendant.” In July 2015, Mary Ables filed a complaint alleging that she was injured due to negligence by A. Ghazale Brothers, Inc., Joseph Abou-Ghazale (together “Ghazale Brothers”) and Central Freight Xpress, Inc. (“Central Freight”). In November 2019, Ables filed an ex parte application requesting the trial be continued “for at least 6 months.” The trial court granted Ables’s request and continued the trial to March 8, 2021.

Due to the COVID-19 pandemic, the Judicial Council of California enacted emergency rules. Emergency Rule 10(a) states: “Notwithstanding any other law, including Code of Civil Procedure section 583.310, for all civil actions filed on or before April 6, 2020, the time in which to bring the action to trial is extended by six months for a total time of five years and six months.”[5] The March 2021 trial date, however, fell five years and seven months after the action was commenced.

In February of 2021, Ghazale Brothers and Central Freight brough separate motions to dismiss the case for failure to bring the action to trial within five years. Opposing the motions, Ables asserted that the March 2021 trial date was not outside the five-year limit imposed by Section 583.310 because the extension referred to in Emergency rule 10(a) provided an additional six months in which to bring the action to trial. Ables asserted that Section 583.350 applied. Section 583.350 provides that, if the time within which an action must be brought to trial is “tolled or otherwise extended pursuant to statute,” the action “shall not be dismissed … if the action is brought to trial within six months after the end of the period of tolling or extension.” (Italics added.)

On March 3, 2021, the trial court heard arguments on the motions for dismissal. The court noted that Ables had never informed the court of the impending five-year deadline, and, had she done so, the court would have accommodated trial within that deadline. The trial court found that, with the six-month extension pursuant to emergency rule 10(a), Ables had until January 24, 2021, to bring her civil action to trial. The court rejected Ables’s argument that emergency rule 10(a) invoked Section 583.350, and granted the motions to dismiss the case. Ables appealed.

Held: The Fifth District Court of Appeal affirmed. The Court observed that the Judicial Council of California adopted emergency rule 10(a), and that the rule was located in appendix I of the California Rules of Court. The Court explained that because they were enacted by the Judicial Council and not by the Legislature, the California Rules of Court were not statutes, but administrative rules.[6] Section 583.350 required that a statute extend the period and because Emergency Rule 10(a) was not a statute, the Court of Appeal concluded that it did not extend Ables’s deadline pursuant to statute and did not trigger Section 583.350’s extra six-month period. The Fifth District Court of Appeal thus concluded that the trial court properly dismissed the case, and, accordingly, affirmed.

B. A gang enhancement did not require a showing that an umbrella gang and local subset were connected because the umbrella gang alone satisfied the requirements.

People v. Vasquez, 74 Cal. App. 5th 1021 (5th Dist. 2022)

Facts: In February 2017, Francisco Amavisca was shot and killed at the Residence Motel in Bakersfield. In January 2018, the Kern County District Attorney filed an information charging Guillermo Vasquez and Nicky Diaz Carrillo with first degree murder and assault with a firearm. The information also alleged, among other things, that both defendants committed both offenses “for the benefit of, at the direction of, or in association with Sure[ñ]os, a criminal street gang, with the specific intent to promote, further or assist in criminal conduct by gang members.” (Penal Code section 186.22(b)(1).)

At trial, Officer Barajas testified as the prosecution’s gang expert. He testified that in Bakersfield, the Sureño gang has several “subsets,” meaning a “smaller kind of clique” under the “umbrella” of the Sureños. One of these subsets in Bakersfield was the West Side Bakers. Officer Barajas testified that, in his opinion, Carrillo was a member of the Sureño gang on the date of Amavisca’s murder. Officer Barajas’s opinion was based on prior police contacts, gang apparel, self-admissions, and tattoos which were consistent with Sureño gang membership. Other officers who had encountered Carrillo over the previous years testified that he admitted membership in the West Side Bakers.

A jury convicted both defendants of first-degree murder, and found true the gang enhancement as to both defendants. The trial court sentenced Carrillo to 25 years to life, plus 25 years to life. Carrillo appealed. The Fifth District Court of Appeal affirmed a modified judgment. The California Supreme Court subsequently vacated the appellate court’s opinion, and transferred the matter back to the Fifth District for reconsideration in light of Assembly Bill No. 333 (2021–2022 Reg. Sess.) (“AB 333”).[7]

AB 333 “amends section 186.22 to require proof of additional elements to establish a gang enhancement.”[8] After considering AB 333’s amendments, the Fifth District found that the proof offered at trial did not satisfy AB 333’s new requirements.[9] Although the Fifth District accordingly concluded that the gang-related enhancement findings must be vacated and the matter remanded, the Court of Appeal nonetheless proceeded to address Carrillo’s claims of error under People v. Prunty (2015) 62 Cal.4th 59. The Court explained that if the claim had merit, then the gang enhancements could not be retried under double jeopardy principles.

Held: Carrillo contended that the gang enhancement was not supported by substantial evidence under Prunty because the government’s theory was that the gang Carrillo benefitted for purposes of the enhancement was the broader Sureños gang, and the prosecution therefore had to show a connection between the West Side Bakers and the Sureños. Carrillo maintained that the prosecution had failed to make such a connection.

The Fifth District Court of Appeal noted that the prosecution, in order to prove the gang enhancement under Section 186.22(b)(1), must show the defendant harbored the requisite intent and that the underlying crime was “committed ‘for the benefit of, at the direction of, or in association with’” the criminal street gang. (Section 186.22(b)(1).) The Court stated that “the prosecution must show that the group the defendant acted to benefit, the group that committed the predicate offenses, and the group whose primary activities are introduced, is one and the same.” (Prunty, supra, 62 Cal.4th at p. 81.) This is referred to as the “‘sameness’ requirement.” (Id. at pp. 76, 81.)

The Court stated, however, that there was unnecessary to show that various gangs or subsets should be treated as one group, when there was a single group that, itself, satisfied all aspects of the sameness requirement. (See People v. Pettie (6th Dist. 2017) 16 Cal.App.5th 23, 49–50.) The Court found that here, there was no violation of the sameness requirement because there was substantial evidence that the gang whose members Carrillo acted in association with, the gang whose members committed the predicate offenses, and the gang whose primary activities were established by expert testimony was one and the same: the broader Sureño gang. Moreover, the Court found that the evidence, specifically Officer Barajas’s expert opinion, also showed that, in addition to his membership in a subset, Carrillo was also a member of the umbrella Sureño gang. Because Carrillo’s claim of error under Prunty did not have merit, on remand the prosecution could elect to retry the gang enhancement given the changes wrought by AB 333.

C. Penal Code section 186.22(f) requirement that gang members “collectively engage” in a pattern of criminal gang activity requires the People to prove that two or more gang members committed each predicate offense.

People v. Delgado, 74 Cal. App. 5th 1067 (2nd Dist. 2022)

Facts: In Los Angeles in August 2018, a man shot at a car in at a location known to be within territory claimed by the Avenues street gang. After viewing surveillance video of the shooting, several officers from the Los Angeles Police Department identified Froyan Delgado as the shooter. Multiple officers testified that Delgado admitted to being an Avenues gang member, although Delgado himself did not testify or present evidence in defense. A jury convicted Delgado of shooting at an occupied vehicle, assault with an assault weapon, and possession of a firearm by a felon. The jury also found true gang and firearm enhancements. Delgado appealed. The Second District Court of Appeal affirmed. The California Supreme Court granted review, and transferred the matter back to the Court of Appeal with directions to vacate its prior opinion and reconsider the appeal.

After the transfer but before the Second District’s reconsideration of the appeal, the Legislature enacted Assembly Bill No. 333 (2021–2022 Reg. Sess.) (“AB 333”).[10] Effective January 1, 2022, AB 333 made several modifications to the criminal street gang enhancement statute, Penal Code section 186.22. Section 186.22 provides for enhanced punishment when a defendant is convicted of an enumerated felony committed “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 any criminal conduct by gang members.” (Section 186.22(b)(1).) The parties and the Court agreed that AB 333’s amendments to Section 186.22 applied retroactively to Delgado’s conviction under In re Estrada (1965) 63 Cal.2d 740, which held that statutory amendments that reduce the punishment for an offense apply retroactively to a defendant whose judgment is not yet final absent a contrary legislative intent. The Second District explained that Estrada retroactivity applied here because the amendments increase the threshold for imposition of the enhancement.

Held: The Second District observed that AB 333 modified the definition of a “criminal street gang” in subdivision (f) of Section 186.22. Subdivision (f) now defines a criminal street gang as “an ongoing, organized association or group of three or more persons, whether formal or informal,” and requires that members of the gang “collectively engage in, or have engaged in a pattern of criminal gang activity” (rather than “individually or collectively,” under the previous law). (Italics added.)

Delgado argued that “collectively engage” in a pattern of criminal gang activity meant the People were required to prove that two or more gang members committed each predicate offense in concert, and here, no evidence was presented that multiple Avenues gang members committed the predicate offenses. The People countered that proof that individual gang members committed the predicate offenses on separate occasions was sufficient to show the gang members “collectively” engaged in a pattern of criminal activity.

The Court explained that, consistent with the Senate Rules Committee’s analysis of AB 333 and the Legislature’s intent to significantly limit the scope of the gang enhancement, it read the term “collectively” in a commonsense manner to mean committed by more than one person, and not, as argued by the People, individually but on a different day. The Court added that reading the Section 186.22(f) amendment to limit application of the gang enhancement to situations where individual gang members commit the predicate offenses on separate occasions would do little to further the legislative purpose of limiting the scope of the gang enhancement.[11] The Court noted that another division of the District Court in People v. Lopez (2nd Dist. 2021) 73 Cal.App.5th 327, 344-345 had recently reached a similar conclusion as to the interpretation of amended Section 186.22(f).

The Court found that there was insufficient evidence that multiple Avenues gang members committed the predicate offenses, and that the Court could not conclude beyond a reasonable doubt that the jury imposed the gang enhancements on a now legally valid ground under Assembly Bill 333’s amendments. Accordingly, the Second District Court of Appeal reversed the jury’s findings that Delgado committed the underlying offenses for the benefit of a criminal street gang. The Court remanded to give the People the chance to retry the gang enhancement under Assembly Bill 333’s new requirements; else Delgado must be resentenced.

[1] Graham v. Connor, 490 U.S. 386, 397 (1989).

[2] See Guz v. Bechtel National, Inc., 24 Cal.4th 317, 354-356 (2000).

[3] The Court added that because this contractual limitation on the City’s right to terminate Joseph’s overall employment was more specific than the sentence stating Joseph was an at-will employee, the more-specific sentence must be given effect. See Code Civ. Proc., Section 1859 [if a general provision in a contract conflicts with a specific provision, the specific provision controls].

[4] Caloca v. County of San Diego, 102 Cal.App.4th 433 (4th Dist. 2002).

[5] Cal. Rules of Court, appen. I, emergency rule 10(a).

[6] See Cal. Const., art. VI, section 6(d) [Judicial Council is authorized to adopt rules of court “not … inconsistent with statute.”]; Sara M. v. Superior Court, 36 Cal.4th 998, 1012 (2005) [Judicial Council is an administrative agency promulgating administrative rules]; California Court Reporters Assn. v. Judicial Council of California, 39 Cal.App.4th 15, 22 (1st Dist. 1995) [Judicial Council’s rulemaking authority subordinate to Legislature].

[7] Stats. 2021, ch. 699.

[8] People v. Lopez, 73 Cal.App.5th 327, 343 (2nd Dist. 2021).

[9] The Court explained that AB 333 redefined the definition of “criminal street gang” and “pattern of criminal gang activity.” (Id., at p. 345.) “In addition, the currently charged offense cannot be used as a predicate offense under the amendments” made by Assembly Bill 333. (Id.) See the following summary for People v. Delgado for further discussion of AB 333’s amendments.

[10] Stats. 2021, ch. 699.

[11] The Court stated: “Section 2 of the legislation likewise makes clear the Legislature’s intent to dramatically limit the scope of the gang enhancement because of its criminalization of ‘entire neighborhoods historically impacted by poverty, racial inequality, and mass incarceration,’ disproportionate impact on people of color, and legitimization of severe punishment. (Stats. 2021, ch. 699, section 2, subds. (a), (d)(1) & (2), (i).)”