Error and/or relief
On resentencing under section 1172.75, the court should have granted the defendant’s request to retry his case to the extent that he was prosecuted under the criminal gang statutes in effect prior to their amendent by AB 333.
The defendant’s conviction for active participation in a street gang and the true findings on the gang enhancements on counts 2 and 3 are reversed. The People may seek to try the gang charge and enhancements under amended section 186.22. Following any trial, or if none occurs, the trial court will conduct a full resentencing under section 1172.75. Judgment is otherwise affirmed.
First Holding:
AB 333 modified the law on gang crimes and enhancements in several ways. It amended section 186.22 to increase the evidentiary burden to prove the crime of active participation in a criminal street gang and a gang enhancement by requiring the charged offense and any predicate offenses benefit the gang in a way that is more than reputational.
It amended the definition of a pattern of criminal gang activity—an element of proving the crime of active participation as well as a gang enhancement—to mean two or more predicate offenses, the last of which occurred within three years of the date the current offense is alleged to have been committed.
It also precluded using the currently charged offense to establish a pattern. Proving predicate offenses under section 186.22(b) now requires showing a connection between the predicate offenses and the organizational structure, primary activities, or common goals and principles of the gang.
Authority:
AB 333
PEN 186.22
People v. Clark (2024) 15 Cal.5th 743, 749
Second Holding:
The jury convicted the defendant under the prior version of section 186.22. With the relevant aspects of AB 333 applying retroactively, this disconnect with the law as it has since been amended constitutes error affecting defendant’s conviction for active participation in a criminal street gang and the true findings as to the gang enhancements.
Under Chapman, vacating the jury’s finding is required unless it appears beyond a reasonable doubt that the finding would have been the same’ under current law. If there is any reasonable possibility that the error might have contributed to the finding, vacatur is required.
Authority:
People v. Aguirre (2025) 18 Cal.5th 629, 715
In re A.M. (2024) 102 Cal.App.5th 557, 570
People v. Tran (2022) 13 Cal.5th 1169, 1207
People v. Lewis (2006) 139 Cal.App.4th 874, 887
Chapman v. California (1967) 386 U.S. 18
Third Holding:
We cannot say the jury would have found appellant guilty of active participation in a criminal street gang, or found true the special allegations, beyond a reasonable doubt under the new law based on the record. The evidence provides little information from which the jury could infer the predicate offenses benefitted a gang in a way that was more than reputational, much less connect the offenses to the organizational structure, primary activities, or common goals and principles of the gang.
Authority:
People v. Lamb (2024) 16 Cal.5th 400, 454 [absence of evidence how predicate offenses actually benefitted the gang cannot preclude finding that the benefit was merely reputational
Fourth Holding:
The defendant’s remaining contentions need not be addressed by this court, as he will be able to address his concerns in the trial court upon full resentencing. We decline to advise the trial court about its future application of the sentencing laws.
Authority:
People v. Slayton (2001) 26 Cal.4th 1076, 1084 [As a general rule, we do not issue advisory opinions indicating what the law would be upon a hypothetical state of facts.]