Error and/or relief
AB 333’s amendments to section 186.22 are retroactive and should have been addressed when appellant’s sentence was recalled under section 1172.75. As a result of those amendments, we reverse appellant’s conviction in count 4 for active participation in a criminal street gang, vacate the gang enhancements found true as to three felony convictions, and remand for the People to determine whether to retry appellant on the gang allegations pursuant to the amended version of section 186.22.
First Holding:
AB 333 changed the elements required to prove both the gang conviction under section 186.22(a) and the gang enhancement under subdivision (b). AB 333 added new elements to the substantive gang offense and gang enhancements in section 186.22—for example, by requiring proof that gang members collectively engage in a pattern of criminal gang activity, that the predicate offenses were committed by gang members, that the predicate offenses benefitted the gang, and that the predicate and underlying offenses provided more than a reputational benefit to the gang. These changes had the effect of increasing the threshold for conviction of the section 186.22 offense and the imposition of the enhancement.
Authority:
People v. Tran (2022) 13 Cal.5th 1169, 1207
People v. Burgos (2024) 16 Cal.5th 1, 9
People v. Clark (2024) 15 Cal.5th 743, 749
Second Holding:
AB 333’s amendments to section 186.22 are ameliorative and retroactive to all cases not final as of the legislation’s effective date. When a defendant’s sentence is recalled, the amended version of section 186.22 is applicable at the section 1172.75 resentencing hearing.
Authority:
People v. Tran (2022) 13 Cal.5th 1169, 1206-1207
People v. Burgos (2024) 16 Cal.5th 1, 25
In re Estrada (1965) 63 Cal.2d 740
People v. Lopez (2025) 17 Cal.5th 388, 395–396
People v. Salgado (2022) 82 Cal.App.5th 376, 380–381
People v. Sek (2022) 74 Cal.App.5th 664, 667