Error and/or relief
On resentencing under section 1172.75, the court erred in failing to consider whether the criminal gang activity enhancements were still valid with the passage of AB 333 after the initial conviction and sentencing.
First Holding:
Effective January 1, 2022, B333 amended section 186.22 to impose new substantive and procedural requirements for gang allegations and the substantive offense of gang participation.
First, it narrowed the definition of a criminal street gang to require that any gang be an ongoing, organized association or group of three or more persons.
Second, whereas section 186.22, former subdivision (f) required only that a gang’s members individually or collectively engage in a pattern of criminal activity in order to constitute a criminal street gang, AB 333 requires that any such pattern have been collectively engaged in by members of the gang.
Third, AB 333 also narrowed the definition of a pattern of criminal activity by requiring that (1) the last offense used to show a pattern of criminal gang activity occurred within three years of the date that the currently charged offense is alleged to have been committed; (2) the offenses were committed by two or more gang members, as opposed to just persons; (3) the offenses commonly benefitted a criminal street gang; and (4) the offenses establishing a pattern of gang activity must be ones other than the currently charged offense.
Fourth, AB 333 narrowed what it means for an offense to have commonly benefitted a street gang, requiring that any common benefit be more than reputational.
Authority:
People v. E.H. (2022) 75 Cal.App.5th 467, 477
People v. Tran (2022) 13 Cal.5th 1169, 1206
Second Holding:
Under Estrada, in the absence of a contrary indication of legislative intent, legislation that ameliorates punishment applies to all cases that are not yet final as of the legislation’s effective date. When a substantive change occurs in the elements of an offense and the jury is not instructed as to the proper elements, the omission implicates the defendant’s right to a jury trial under the Sixth Amendment, and reversal is required unless it appears beyond a reasonable doubt that the jury verdict would have been the same in the absence of the error.
AB 333 applies retroactively in this case. AB 333 added new elements to the substantive offense and enhancements in section 186.22.
Authority:
In re Estrada (1965) 63 Cal.2d 740
People v. Tran (2022) 13 Cal.5th 1169, 1206-1207
Third Holding:
When the defendant’s sentence was recalled, his judgments became nonfinal and “the trial court regained the jurisdiction and duty to consider what punishment was appropriate for him, and [Guzman] regained the right to appeal whatever new sentence was imposed. His judgments thus became nonfinal, and it remains nonfinal in its present posture. His judgments became nonfinal for Estrada purposes and the trial court erred by failing to address the amendments that AB 333 made to the gang enhancement statute.
Authority:
People v. Padilla (2022) 13 Cal.5th 152, 161-162
People v. Lopez (2025) 17 Cal.5th 388, 400
People v. Salgado (2022) 82 Cal.App.5th 376, 380-381 [the defendant was entitled to benefit of AB 333 because his judgment was no longer final following recall and resentencing under section 1170(d)]
Fourth Holding:
The proper remedy in this case is to remand for the trial court to determine whether the People can establish beyond a reasonable doubt that the error was harmless.
Authority:
People v. Copper (2023) 14 Cal.5th 735, 738, 742-744, 746 [applying Chapman to conclude that lack of jury instruction on AB 333’s new elements was not harmless beyond a reasonable doubt]
People v. E.H. (2022) 75 Cal.App.5th 467, 480 [The proper remedy for this type of failure of proof—where newly required elements were never tried to the jury—is to remand and give the People an opportunity to retry the affected charges]
Chapman v. California (1967) 386 U.S. 18
Fifth Holding:
The defendant concedes that retrial is not automatic and requests that we assess the trial court’s error instead of remanding to the trial court. Although some appellate courts have engaged in harmless error analysis in similar situations (e.g., Sek), we conclude that in this case, the trial court is well-situated to make the prejudice determination.
Authority:
People v. Sek (2022) 74 Cal.App.5th 657, 668-669
Sixth Holding:
Regardless of the outcome on the question of AB 333, the defendant is entitled to full resentencing on remand.
Authority:
People v. Lopez (2025) 17 Cal.5th 388, 392-393 [a criminal case in which the sentence is not yet final, including one in which an appellate court has affirmed the conviction and remanded for reconsideration of sentencing-related issues, is not final for purposes of Estrada, and the benefits of supervening ameliorative legislation apply retroactively]
People v. Valenzuela (2019) 7 Cal.5th 415, 424-425 [the full resentencing rule allows a court to revisit all prior sentencing decisions when resentencing a defendant]
