In People v. Cooper, the Supreme Court today holds it was not harmless error to instruct a jury on law concerning sentence enhancements for gang activity that was later changed by statute. It is uncontested that the amendment in 2021 by Assembly Bill 333 was retroactive and that a lack of prejudice could be found only if the instructional error was harmless beyond a reasonable doubt. The ruling reverses — subject to retrial — sentence enhancements for a defendant convicted of first degree murder.

The court’s unanimous opinion by Justice Joshua Groban notes “legislative history indicating the Legislature was concerned with ‘lax’ interpretations of the prior law that allowed for overly expansive application of gang enhancements.” It finds evidence in the case of other gang members’ crimes that was presented to establish the requisite “ ‘pattern of criminal gang activity’ ” did not necessarily meet the new statutory standards “that the required predicate offenses ‘commonly benefited [the] criminal street gang’ and that ‘the common benefit from the offenses is more than reputational.’ ” Although those crimes — robbery and drug sales — “typically provide a financial benefit to the offender,” the court says, “the record contains evidence that could rationally lead to a contrary finding regarding whether the fruits of the offenses were intended to or did benefit the gang as a whole.”

The court reverses the Second District, Division Six, Court of Appeal’s unpublished opinion, which the Supreme Court describes as “an anomaly” and as “the only Court of Appeal opinion cited in the parties’ briefing affirming a gang enhancement after the enactment of Assembly Bill 333 for a trial that occurred before Assembly Bill 333 was enacted.”