Error and/or relief
We vacate the true finding that the defendant suffered a prior strike, in light of the retroactivity of AB 333’s amendments to section 186.22 regarding gang criminal activity. The matter is remanded for further proceedings, which may include retrial of the prior strike allegation.
First Holding:
Any felony defined in section 1172.7(c) is a serious felony, and any serious felony is a strike under section 667 and section 1170.12. section 1172.7(c)(28) defines as a serious felony any conviction of section 186.22 and any felony enhanced under 186.22’s provisions.
Authority:
PEN 1192.7(c)(28)
PEN 667(d)(1)
PEN 1170.12(b)(1)
PEN 186.22
People v. Briceno (2004) 34 Cal.4th 451, 462
Second Holding:
In 2021, the Legislature amended section 186.22 with the passage of AB 333. Among other things, AB 333 changed the elements of gang offenses and enhancements by narrowing the definitions of criminal street gang, pattern of criminal activity, and what it means for an offense to have commonly benefitted a street gang. AB 333 is ameliorative legislation that applies to nonfinal judgments under the rule of Estrada.
Authority:
People v. Fletcher (2025) 18 Cal.5th 576, 583
In re Estrada (1965) 63 Cal.2d 740
Third Holding:
Where a defendant has suffered a conviction under the prior version of section 186.22, AB 333 applies to the determination of whether the conviction qualifies as a prior serious felony conviction under section 1192.7(c)(28) for purposes of the Three Strikes law and prior serious felony enhancements. Application of AB 333 in this manner does not unconstitutionally amend any ballot initiative. Thus, the current law applicable to this nonfinal proceeding includes AB 333’s redefinition of the elements of gang offenses and enhancements under section 186.22.
Authority:
People v. Fletcher (2025) 18 Cal.5th 576, 583