Error and/or relief
The gang and gang-related firearm enhancements must be vacated in light of the amendments under AB 333.
First Holding:
AB 333, which amended section 186.22, was enacted in 2021 and became effective on January 1, 2022. The amendments AB 333 made to section 186.22 apply retroactively to the defendant’s case. The substantive amendments to section 186.22 require us to vacate the jury’s findings on the gang allegations and gang-related firearm allegations. We remand the matter to afford the prosecution the opportunity to retry these allegations, should it choose to do so.
Authority:
PEN 186.22
People v. Burgos (2024) 16 Cal.5th 1, 7
People v. Tran (2022) 13 Cal.5th 1169, 1206–1207
In re Estrada (1965) 63 Cal.2d 740
Second Holding:
AB 333 added new elements to the substantive gang offense and gang enhancements in section 186.22—for example, by requiring proof that gang members collectively engage in a pattern of criminal gang activity, that the predicate offenses were committed by gang members, that the predicate offenses benefitted the gang, and that the predicate and underlying offenses provided more than a reputational benefit to the gang. These changes had the effect of increasing the threshold for conviction of the section 186.22 offense and the imposition of the enhancement.
Authority:
PEN 186.22
People v. Tran (2022) 13 Cal.5th 1169, 1207
People v. Burgos (2024) 16 Cal.5th 1, 9
People v. Clark (2024) 15 Cal.5th 743, 749
Third Holding:
When a substantive change occurs in the elements of an offense and the jury is not instructed as to the proper elements, the omission implicates the defendant’s right to a jury trial under the Sixth Amendment, and reversal is required unless it appears beyond a reasonable doubt that the jury verdict would have been the same in the absence of the error. On this record, reversal of the gang enhancements is required, and the prosecution must be given the opportunity to establish the additional elements on remand, should it choose to do so.
Authority:
People v. Tran (2022) 13 Cal.5th 1169, 1207
People v. Eagle (2016) 246 Cal.App.4th 275, 280
Fourth Holding:
In addition to amending section 186.22, AB 333 added section 1109, which requires that the trial of a gang enhancement charged under section 186.22(b), be bifurcated from and follow trial of the underlying offenses when requested by the defendant. AB 333’s enactment of section 1109 became effective almost two years after defendant’s trial. But section 1109 is not retroactive and therefore does not apply.
Authority:
PEN 1109
People v. Ramos (2022) 77 Cal.App.5th 1116, 1129 [disapproved of on other grounds in People v. Burgos (2024) 16 Cal.5th 1, at p. 31]
People v. Burgos (2024) 16 Cal.5th 1, 9
Fifth Holding:
The same rationale applies to the jury’s findings on the section 12022.53(e)(1) firearm allegations, which require findings under section 186.22(b). Section 12022.53(e)(1) provides for enhanced firearm penalties for any person who is a principal in the commission of an offense if the prosecution pleads and proves that (1) the person violated section 186.22(b), and (2) any principal in the offense committed a firearm violation specified in section 12022.53(b), (c), or (d).
Here, the jury found three section 12022.53(e)(1) allegations true as to the defendant. Because this enhancement depends on a finding pursuant to section 186.22(b), the changes to section 186.22 made by AB 333 require that the true findings on these allegations also be vacated and the matter remanded to the trial court.
Authority:
PEN 12022.53(e)(1)
People v. Lopez (2021) 73 Cal.App.5th 327, 346-348