Error and/or relief
It was error for the trial court to determine that one of the prior serious felony convictions qualified as a strike under the Three Strikes law and for enhancement as a prior serious felony, because AB 333 amended the elements of the crime under section 186.22, and the acts constituting the crime were tried under the former version. The matter is remanded to the trial court with directions that the People be allowed to elect whether to retry appellant, under current law, on the strike and the prior serious felony enhancement. We also remand the matter for a full resentencing.
First Holding:
Current law governs whether defendants prior convictions would also constitute a felony violation of section 186.22 for purposes of the Three Strikes law and prior serious felony enhancements. The current law includes Assembly Bill 333’s redefinition of the elements of gang offenses and enhancements under section 186.22. Thus, Assembly Bill 333 applies to the determination of whether a prior conviction qualifies as a serious or violent felony under section 192.7(c)(28) for purposes of the Three Strikes law and prior serious felony enhancements. There is no indication that defendants’ prior convictions were obtained under Assembly Bill 333’s more stringent requirements. The appropriate remedy is reversal of the findings on these enhancements for retrial under the correct law.
Authority:
AB 333
PEN 186.22
PEN 1192.7(c)(28)
PEN 667
People v. Fletcher (2025) 18 Cal.5th 576, 607-608
Second Holding:
When part of a sentence is stricken on review, on remand for resentencing a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.
Authority:
People v. Buycks (2018) 5 Cal.5th 857, 893