Error and/or relief
On resentencing under section 1172.75, the court erred in not reevaluating the conviction for gang criminal activity under the provisions of AB 333, enacted after the original sentencing.
First Holding:
When any aspect of a case is on appeal from sentencing, the case or prosecution has not been reduced to final judgment for Estrada retroactivity purposes.
Authority:
People v. Lopez (2025) 17 Cal.5th 388, 397
In re Estrada (1965) 63 Cal.2d 740
Second Holding:
AB 333’s changes to section 186.22 apply retroactively under Estrada.
Authority:
People v. Tran (2022) 13 Cal.5th 1169, 1207
Third Holding:
AB 333 essentially adds new elements to the substantive offense and enhancements in section 186.22. AB 333 made the following changes to the law on gang enhancements: 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. These changes also apply to the crime of active participation in a criminal street gang.
Authority:
PEN 186.22
People v. E.H. (2022) 75 Cal.App.5th 467, 479
People v. Tran (2022) 13 Cal.5th 1169, 1206
People v. Rojas (2023) 15 Cal.5th 561, 565