Error and/or relief
On resentencing the defendant under section 1172.75, it was error for the court to not determine whether the gang-related enhancements found true more than a decade earlier must be vacated in light of amendments to the statute under AB 333.
First Holding:
Effective January 2022, AB 333 (2021–2022 Reg. Sess.) made significant changes to the elements of the section 186.22 gang enhancement and those changes apply to all non-final judgments. When the defendant was resentenced pursuant to section 1172.75, he was entitled to the benefits of AB 333 because his judgment became nonfinal.
Authority:
People v. Tran (2022) 13 Cal.5th 1169, 1206–1207
Second Holding:
The evidence at trial was insufficient to satisfy the new narrower requirements of AB 333, that is, the evidence failed to show that the gang members collectively engaged in a pattern of criminal gang activity or that the predicate offense commonly benefited the gang in ways that were more than reputational. The testimony therefore fell short of establishing the organizational nexus between the predicate offenses and the gang and its goals, as required by the current version of section 186.22.
As a result, we vacate the true findings on the gang enhancement and remand the matter for resentencing, and to permit the People to retry the gang enhancement if they choose to do so.
Authority:
People v. Clark (2024) 15 Cal.5th 743, 749, 752, 762
People v Fletcher (2025) 18 Cal.5th 576, 583
People v. Lamb (2024) 16 Cal.5th 400, 456
Third Holding:
The restitution fine imposed more than 10 years earlier must be vacated. Effective January 1, 2025, a restition fine imposed under section 1202.4 is unenforceable after ten years and any portion of a judgment imposing that fine is vacated at that time. The unpaid balance of the judgment is vacated.
Authority:
PEN 1465.9(d)
People v. Greeley (2021) 70 Cal.App.5th 609, 626–627
People v. Lopez-Vinck (2021) 68 Cal.App.5th 945, 953
Fourth Holding:
The trial court erred in its calculation of credit for time served. The trial court shall transmit a corrected abstract of judgment to the California Department of Corrections and Rehabilitation reflecting the correct actual custody credit calculation.
(Gary note: The court did not cite authority for its order for correction of credit for time served. I have set forth some of the cause the court could have cited.)
Authority:
PEN 2900.1
PEN 2900.5
People v. Bravo (1990) 219 Cal.App.3d 729, 735
People v. King (1992) 3 Cal.App.4th 882, 886
People v. Mitchell (2001) 26 Cal.4th 181, 185
People v. Crenshaw (2025) 116 Cal.App.5th 1169, 1181
People v. Buckhalter (2001) 26 Cal.4th 20, 30
People v. Rajanayagam (2012) 211 Cal.App.4th 42, 48