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Monday, July 8, 2013

California Gang Enhancement Sentencing and Alleyne v. United States

Alleyne v.United States is one of the less-publicized cases from the Supreme Court’s latest term.  A few legal blogs have mentioned it, with Douglas Berman of Sentencing Law and Policy noting its impact on federal sentencing, and with Michael Dorf using the decision to illustrate how the Supreme Court’s politics operate.

Alleyne’s lack of publicity may be justifiable since it largely builds on existing trends in the law.  To summarize, the Court in Apprendi v. New Jersey, 530 U.S. 466 (2000) concluded that it is a violation of the Sixth Amendment right to a jury trial if a court increases a defendant’s maximum sentence unless the facts found to increase the sentence are found by a jury employing the “beyond a reasonable doubt” standard of proof.  The Court later decided Harris v. United States, 536 U.S. 545 (2002) and held that the minimum sentence a defendant faces could be raised without a finding by a jury without running afoul of the Sixth Amendment.  The logic behind this conclusion was that the finding of fact that raises the minimum would not be essential to the ultimate punishment because the defendant could have been punished with the same sentence absent the raised minimum.

In Alleyne, the Court overturned Harris and ruled that any findings of fact that raise the minimum potential sentence must be found by a jury employing the “beyond a reasonable doubt” standard of proof.  The Court noted that raising a minimum sentence

[H]eightens the loss of liberty associated with the Crime: the defendant’s “expected punishment has increased as a result of the narrowed range” and “the prosecution is empowered, by invoking the mandatory minimum, to require the judge to impose a higher punishment than he might wish.”

With a California gang enhancement case looming in my very near future, it has become of sudden importance for me to determine whether California gang enhancement sentencing law and Alleyne are compatible.  I have concluded that, practically speaking, they are (despite some case law that relies on Harris), and I explain this conclusion after the jump.

California Penal Code, section 186.22 provides various sentence enhancements for defendants who are found to be members of a criminal street gang.  These enhancements range from additional, consecutive sentences to specified minimum prison terms that attach to an overall life sentence.

My current project has me focused on the court’s determination that the defendant is a member of a criminal street gang and whether the current process of reaching this determination is consistent with Alleyne.  To prove that a defendant is a member of a gang, the prosecution must prove:

(1) that there be an “ongoing” association involving three or more participants having a “common name or common identifying sign or symbol”; (2) that the group has as one of its “primary activities” the commission of one or more specified crimes; and (3) the group’s members either separately or as a group “have engaged in a pattern of criminal gang activity.”

(People v. Vy, 19 Cal. Rptr. 3d 402, 411 (2004) (quoting People v. Gardeley, 927 P.2d 713 (1996)).

California’s implementation of §186.22 complies with Alleyne.  These elements of gang membership are not to be determined by the court, and this is confirmed by California’s jury instructions that require juries to find gang allegations to be true beyond a reasonable doubt.  (See CALCRIM 1401; and CALJIC 17.214.2).  One part of the statute, §186.22(b)(5), which calls for a minimum of 15 years of prison time before parole could have been left to the discretion of the courts under Harris, since the court would only be changing the minimum amount of prison time the defendant serves.  This subsection is predicated on the jury’s finding that the defendant is guilty of a crime punishable by life in prison, however, meaning that this increase in minimum prison time can only occur if the jury finds the defendant guilty of such a crime beyond a reasonable doubt.

While California’s sentencing scheme for gang enhancements may not be affected by Alleyne, some states like Kansas will need to make some changes.

Practically speaking, California’s sentencing law is an illustration of why I think Alleyne was properly decided.  While a higher minimum sentence may theoretically have no essential impact on the ultimate sentence, on the practical level the minimum sentence is crucial since it often (and in the case of §186.22(b)(5), explicitly) determines how much prison time the defendant will get once parole is factored into the equation.

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