The Utah Supreme Court has struck down part of the state's gang-enhancement statute, saying juries rather than judges must decide if an alleged gang crime merits extra prison time.
The ruling came in the case of Cameron Thomas Lopes, one of five accused in a botched gangland "hit." Prosecutors said Lopes and four other gang members shot Joey Miera on Feb. 22, 1996, thinking he was somebody else.According to witnesses, the group had set out to kill occupants at the home of Jimmy DeHerrera on the orders of Tyrese S. Smith, a fellow gang member who was in prison. Miera was asleep at DeHerrera's house at 918 S. Navajo when he was hit by two shotgun blasts.
Lopes, 22, pleaded guilty to murder with gang enhancements in exchange for dismissal of charges pending against him in another case. He was sentenced to five years to life in prison plus an extra four years for committing the murder as part of gang activity. He appealed the conviction on grounds the gang-enhancement statute was unconstitutional.
While upholding the statute itself, a divided Supreme Court on Tuesday declared unconstitutional a provision allowing judges to determine when to impose additional jail time for a gang crime. On a 3-2 vote, the justices reversed Lopes' conviction on the gang-enhancement charge and ordered a new trial.
Writing for the majority, Justice Michael Zimmerman said when the Legislature enacted the gang-enhancement statute in 1995, it essentially created a "specific new crime of a higher degree." And like any other crime, its elements have to be proved beyond a reasonable doubt, he said.
"In criminal jury trials, questions of fact and the weight of evidence are to be decided by a jury, not the trial judge," Zimmerman wrote.
That's at odds with the gang-enhancement provision that says, "The sentencing judge rather than the jury shall decide whether to impose the enhanced penalty under this section."
"This section of the enhancement statute directs the judge to become the fact-finder, expressly taking that power away from the jury," Zimmerman said.
In ordering a trial, the justices said they were not placing Lopes in double jeopardy "because the failure to prove an essential element of the gang-enhancement charge was 'trial error.' "
Justice Leonard Russon and Chief Justice Richard Howe dissented, saying they considered the gang-enhancement statute a sentencing statute rather than a separate offense with a separate penalty.