Error and/or relief
The court erred in finding true the defendant’s two prior strikes. The true findings on appellant’s prior strike conviction allegations are reversed, and the matter is remanded to the trial court. Upon remand, the court is directed to give the People the opportunity to retry the strike allegations.
First Holding:
In 2022, AB 333 went into effect and made changes to the law on gang enhancements, including narrowing the definitions of a criminal street gang, and pattern of criminal activity.
Authority:
People v. Tran (2022) 13 Cal.5th 1169, 1206
Second Holding:
The defendant’s 2014 prior felony conviction was a strike because it included a gang enhancement under the then-version of section 186.22. 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. The current law applicable to a 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
In re Estrada [(1965) 63 Cal.2d 740
People v. Tran (2022) 13 Cal.5th 1169
Third Holding:
There was insufficient evidence for the court to find that the defendant’s 2010 conviction for grossly negligent discharge of a firearm qualified as a strike prior, because no evidence was presented that the defendant personally used the firearm. It is possible to be convicted of grossly negligent discharge of a firearm under section 246.3 without personally using a firearm, e.g., as an aider and abettor. The People in this case presented evidence only of appellant’s conviction, and not any information regarding the conviction’s underlying facts.
Thus, the People proved nothing more than the least adjudicated elements of the prior conviction. Because there was no admission or evidence that appellant personally used a firearm, which would qualify his prior section 246.3 conviction as a serious felony pursuant to section 1192.7(c) the trial court’s true finding was in error. The remedy in such a case is remand for retrial at the prosecution’s election.
Authority:
People v. Golde (2008) 163 Cal.App.4th 101, 112-113
People v. Rodriguez (1998) 17 Cal.4th 253, 262
People v. Barragan (2004) 32 Cal.4th 236, 239