A private security guard caught Luis Cristobal in the act of spraying graffiti on a Saver’s store in Orem, Utah at 3:00 a.m. on June 22, 2008.  The Utah Court of Appeals reduced the severity of his conviction from a second degree felony to a third degree felony on August 19, 2010.

Court records show that Mr. Cristobal also goes by the nickname of Rascal.  The Prosecutor believed that “Rascal” belonged to a gang.  Normally, “Rascal’s” conduct would warrant conviction of a third degree felony punishable by zero to five years in prison.  Because the prosecutor thought that “Rascal” was in a gang, they sought a gang enhancement.  The gang enhancement raised the offense from a Third Degree Felony to a Second Degree Felony.  Instead of being punishable by zero to five years in prison, the enhanced penalty would be 1 to 15 years in prison.

To get the gang enhancement, the State needed to prove that “Rascal” commited the crime with the help of two or more other people.  That is where the State ran into trouble.  “Rascal” and one other person were caught in the act.  There was a third person who ran when the security guard showed up.  The State could never prove that the third person was involved in the commision of a crime.

The Court of Appeals held that the gang enhancement could not be applied.  The gang enhancement required two or more accomplices while the evidence showed only one accomplice.

“Rascal” is not off the hook.  He is still convicted of a third degree felony and could face a maximum penalty of zero to five years in prison.  The case is being remanded to the trial judge to enter a new sentence.