Tulare County DA Warns of Fallout with Reduced Sentences for Gang Crimes

In October 2021, the Legislature passed and Gov. Gavin Newsom signed into law Assembly Bill 333 by Sen. Sydney Kamlager (D-Los Angeles), to reduce allowable gang crimes enhancements, described by law enforcement as “a windfall for the violent, criminal street gangs who are wreaking havoc on the citizens of California.”

Assembly Bill 333 dramatically increased the burden on prosecutors in their efforts to hold violent criminal street gang members accountable for the crimes they commit.

According to the Senate Public Safety Committee analysis, AB 333 redefines the definition of “pattern of criminal gang activity” to additionally require that the last of those offenses have occurred within three years of the current offense, that the offenses commonly benefited a criminal street gang, and the common benefit from the offenses is more than “reputational.”

This bill removes burglary, looting, felony vandalism, offenses related to unlawful theft of use of an access card, and unlawful use of personal identifying information [identity theft] from the crimes that define “pattern of criminal gang activity.”

Sen. Kamlager’s fact sheet on AB 333 explains her motivation behind the bill, and says it “will advance the movements toward criminal, racial and social justice by ensuring gang enhancements are only used when necessary and fair.”

The Globe spoke with Tulare County District Attorney Tim Ward about the repercussions of AB 333, the far-reaching fingers of the bill’s retroactive component, as well as the fallout of the strident effort to “reform” and undermine law enforcement in California.

Ward said AB 333 removed 7 to 8 crimes from prosecution, including the crime of “looting,” which generally involves retail theft during a time of emergency, and organized retail theft, which he noted was a huge problem throughout the state during the pandemic lockdowns. Retail theft remains a problem to this day. “Constituents didn’t know this bill had even passed,” DA Ward said. Now he says with AB 333 retroactive, “DAs are concerned felony gang cases will come back and the perpetrators will get lighter sentences.” And he’s concerned about cases already on appeal.

Ward also said he finds the removal of “identity theft” politically convenient, especially on the heels of the $31 Billion EDD fraud, much of it masterminded by gang leadership in prisons, according to DA Ward.

DA Ward said AB 333 makes several important changes to the law: redefining a “pattern of criminal gang activity;” updating the definition of “criminal street gang;” reducing the list of crimes eligible for gang enhancement charges; not allowing the current charge to serve as proof as a “pattern” of criminal gang activity; and separating a gang enhancement charge from the underlying charge.

The Globe asked if AB 333 is essentially extending or codifying into state law Los Angeles District Attorney George Gascon’s new “directives,” removing enhancements in the prosecution of most felony crimes.

As DA Ward explained, the Legislature has reduced sentences for most violent gang criminals, so yes, the inability to use gang crime enhancements, as DA Gascon has implemented, means additional punishment is stripped out of the punishment equation. And AB 333 changes the definition of a street gang as it requires the existence of an ongoing organization, association, or group of three or more persons, whether formal or informal, with an established hierarchy, thus eliminating gangs without such hierarchy.

This bill also requires bifurcation of the substantive crime and the gang special allegation at the request of defense – meaning two separate trials. Ward said jurors are shocked with this aspect, and feel as if prosecutors are withholding evidence from them during the “substantive” first trial – Ward said a prosecutor may not be allowed to argue that the substantive crime was gang motivated.

AB 333 even says felony vandalism – gang graffitti and gang tagging – cannot be used to prove gang activity in known gang areas, or as evidence of gang presence in an area.

DA Ward referenced Senate Bill 1437, signed by Gov. Jerry Brown in 2018, effective January 1, 2019, which significantly limits accomplice liability for the crime of murder. “We and other counties challenged the constitutionality of this law, as it did not pass with a majority of votes either,” Ward said.

DA Ward discussed the involvement of The Committee on Revision of the Penal Code, which he said is staffed with several George Gascon acolytes, and noted that the language used in AB 333 is the same language Gascon used in his directives on criminal street gang enhancements.

The Committee on Revision of the Penal Code “has placed a particular interest on sentences for felony offenses, the area where the most serious punishments occur,” they state in their 2021 Annual Report. “…we recommend that the Legislature enact evidence-based reforms that increase effective alternatives to incarceration and incentivize treatment and rehabilitation, from the time of sentencing to the time of release from custody and reentry to the community.”

In its 2021 Annual Report, the Committee’s recommendations are:

1. Strengthen California’s mental health diversion law.
2. Encourage alternatives to incarceration.
3. Expand CDCR’s existing reentry programs.
4. Equalize parole eligibility for all offenses.
5. Modernize the county parole system.
6. Repeal the Three Strikes law.

The committee members are, Michael Romano, Chairperson, Assembly Member: Hon. Alex Lee, Senate Member: Hon. Nancy Skinner, Hon. Peter Espinoza, Hon. Thelton E. Henderson, Hon. Carlos Moreno.

In a September 2021 letter (below) to Gov. Newsom, California District Attorneys Association Director of Legislation Larry Morse passionately argued that the Senate vote on this bill was illegitimate, that members had not been given the appropriate opportunity to weigh the serious public safety implications of the flawed law, and that a veto by the governor was justified on the basis of bad faith by the bill’s author. (Morse suddenly and tragically passed away right after the letter was written, before it was sent. Vern Pierson, El Dorado County District Attorney sent the letter to the governor.)

“The views so eloquently expressed by Larry in this letter are shared by most of the elected and deputy members of CDAA,” Vern Pierson, El Dorado County District Attorney wrote to the governor. “I join with my dear friend Larry and strongly encourage your veto of AB 333.”

DA Ward said the CDAA tried to have dialogue with Sen. Kamlager to offer some specifics into the gray areas, to no avail. Thus Larry Morse wrote the letter, only to have it ignored.

AB 333 bill sponsors are: The Anti-Recidivism Coalition, NextGen, The San Francisco Public Defender’s Office, Silicon Valley DeBug, Pillars of the Community, Young Women’s Freedom Center.

DA Tim Ward recorded this video in anticipation of future problems stemming from AB 333: