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S.C. Vacates Judgment of Death in Case of White Supremacist Gang Member
Evans Says Recent Amendments to Statute Undermine Special Circumstance
By a MetNews Staff Writer
A recent statutory change requires reversal of a judgment of death based on a gang murder special circumstance where no evidence was presented at trial that the supporting predicate offenses benefitted the criminal organization in a way that was more than reputational, the California Supreme Court held yesterday.
The question arose in an automatic appeal following the death verdict for Michael Lamb, a man convicted of, among other crimes, the first-degree murder of Scott Miller—an alleged founding member of the Public Enemy Number One (“PEN1”) white supremacist gang—following Miller’s participation in a local Fox 11 News interview about the gang.
Effective Jan. 1, 2022, Assembly Bill 333 amended §186.22’s definition of “criminal street gang” to require that the prosecution show a “pattern of criminal gang activity” by, among other things, proof of at least two enumerated predicate offenses “committed on separate occasions or by two or more members” which “commonly benefit a criminal street gang” in a way that is “more than reputational.”
Prior to the 2022 amendments, there was no “more than reputational” requirement.
Justice Kelli Evans wrote the opinion for the unanimous court, saying:
“We conclude that although there was an abundance of gang evidence presented to the jury, and each predicate offense had a gang enhancement under a prior version of section 186.22, the record does not sufficiently disclose the circumstances surrounding the predicate offenses or how any specific predicate offense actually benefited the gang. Thus, a rational juror could have reasonably concluded that any common benefit was not more than reputational.”
2002 Murder
Miller was found dead in an Orange County alley with a single gunshot wound to the back of his head on March 8, 2002. Three days later Lamb and fellow PEN1 gang member Jacob Rump were arrested after a police pursuit during which Lamb fired at Anaheim Police Sergeant Michael Helmick using the same gun that killed Miller.
The prosecution’s theory was that Lamb acted on an order to kill Miller in retaliation for having participated in a news program about the gang. On Feb. 20 and 21, 2001, Fox 11 News aired two videos about the gang featuring an interview with Miller.
Although his appearance and voice were disguised, it was stipulated by the parties that the person featured in the videos was Miller.
The features discussed the origins of PEN1 and its place in the white supremacist skinhead movement.
In addition to the first-degree murder charge, Lamb was convicted of conspiracy to commit murder, the attempted murder of Helmick, unlawfully carrying a loaded firearm in public by an active participant in a criminal street gang and possession of a firearm by a felon, and street terrorism in violation of §186.22(a).
The jury found true that the crimes were committed for the benefit of a criminal street gang in violation of the former version of §186.22(b)(1)(A) and, after a second penalty trial, Orange Superior Court Judge William R. Froeberg ordered the judgment of death based on a special circumstance for gang murders.
Predicate Offenses
Evans noted that the prosecution admitted into evidence as predicate acts certified records of five offenses committed by various PEN1 members and that the jury was instructed according to the former version of §186.22.
Lieutenant Clay Epperson of the Costa Mesa Police Department provided expert testimony on PEN1 and opined that Lamb was an active member in March 2002. Epperson testified that any crime committed by a gang member benefits the gang.
Turning to his testimony, Evans said:
“Lieutenant Epperson did not expound upon what crimes would benefit the gang, or how. To gain respect in the gang, Lieutenant Epperson testified that a person could demonstrate that they are ‘willing to wade in and fight other people for the benefit of the gang,’ though he did not explain how that could benefit the gang. Lieutenant Epperson also provided his ultimate opinion that the murder and attempted murder committed here would have been for the benefit of the gang, but again did not explicate how.”
She continued:
“Even if a jury were to parse this testimony and deduce exactly how PEN1 commonly benefited from crimes committed by its members, the lack of evidence of the circumstances surrounding the predicate offenses at issue does not establish that they fit into any of those scenarios so as to preclude a jury from reasonably concluding that any common benefit was not more than reputational. Here, other than general testimony concerning how gang members could benefit the gang through criminal acts, there was no other evidence…”
Reasonable Inferences
The Office of Attorney General argued that the revised statute does not disallow reasonable inferences from the evidence about a gang’s primary activities that might inform whether a predicate act involved a common benefit that was more than reputational.
Unpersuaded, Evans reasoned that “our inquiry here is not whether a jury could have found a more-than-reputational common benefit,” but was whether a fact-finder could have come to the opposite conclusion. She opined:
“Although a rational juror may well infer that at least two of the predicate offenses were committed for a common benefit that was more than reputational, there is a lack of evidence as to how the specific predicate offenses at issue actually commonly benefited the gang to preclude the opposite conclusion.”
She added: “Without more evidence of how these specific predicate offenses commonly benefited the gang in a more than reputational manner and given that the record contains evidence that PEN1 members committed offenses to increase their own reputation within the gang, we conclude that a rational juror could have found that the predicate offenses did not provide a common benefit that was more than reputational.”
Admission of Videos
Lamb asserts a number of other errors, including that the admission at trial of the Fox 11 News videos was unduly prejudicial. The videos were admitted as evidence of motive and as probative of Lamb’s knowledge that PEN1 engaged in criminal activity.
Evans acknowledged that “[t]he videos contained graphic and disturbing material,” but concluded that, “[e]ven assuming the videos were erroneously admitted,…it is not reasonably probable that a result more favorable to Lamb would have been reached absent the error.”
The court reached a similar conclusion as to the admission of statements by Rump and by a non-testifying firearms examiner. Evans remarked:
“Although Lamb’s meritorious Assembly Bill No. 333 claim results in the reversal of the gang charges, enhancements, and special circumstance, the assumed erroneous admission of this other evidence does not compound to warrant reversal of any other charges or enhancements.”
The case is People v. Lamb, 2024 S.O.S. 2296.
Prosecutor in Case
The case was prosecuted by then-Senior Orange County Deputy District Attorney Ebrahim Baytieh, who was named “Outstanding Prosecutor of the Year” in 2012 by the California District Attorneys Association.
Baytieh was fired by the District Attorney’s Office in February 2022 following an independent investigation into allegations of withheld evidence. He was elected to the Orange Superior Court in June that same year.
In September 2023, Orange County Assistant Public Defender Scott Sanders filed a 424-page motion in a murder case against his client Paul Smith. In the motion, Sanders accuses Baytieh of participating in a jailhouse informant scandal during the prosecution of Smith.
A new trial was earlier ordered in Smith’s case after sheriff’s deputies declined to testify about their use of informants.
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