Error and/or relief
At a resentencing hearing under Penal Code section 1172.1(a)(1) for the defendant, the trial court reduced defendant’s prison term by striking certain enhancements and re-imposing a restitution fine under section 1202.4(b). In considering the gang enhancements that were imposed in 2006, the court should have examined them to determine whether the elements met the current requirements under the amendments by AB 333 to section 186.22. Also, the restitution fine is more than 10 years old and must be vacated.
First Holding:
When defendant admitted to the enhancement in 2006, former section 186.22(b)(1) provided a sentencing enhancement for a person who committed a felony for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members. As the defendant was convicted of attempted murder, carrying a sentence of a life term, the enhancement imposed a minimum of 15 years before release on parole. Without the enhancement, the defendant’s minimum eligibility would have been after seven years.
Authority:
FORMER PEN 186.22
Second Holding:
In 2021, the Legislature passed AB 333, effective January 1, 2022, which added new elements to gang enhancements in section 186.22. It narrowed the definition of criminal street gang and pattern of criminal activity, as well as what it means for an offense to have commonly benefited a street gang.
Under the new legislation, imposition of a gang enhancement requires proof of the following additional requirements with respect to predicate offenses: (1) the offenses must have commonly benefited a criminal street gang where the common benefit is more than reputational; (2) the last predicate offense must have occurred within three years of the date of the currently charged offense; (3) the predicate offenses must be committed on separate occasions or by two or more gang members, as opposed to persons; and (4) the charged offense cannot be used as a predicate offense.
These changes benefit defendants by raising the threshold for a true finding on a gang enhancement.
Authority:
CURRENT PEN 186.22
People v. Tran (2022) 13 Cal.5th 1169, 1207
People v. Perez (2022) 78 Cal.App.5th 192, 206
Third Holding:
The defendant and the People agree that defendant’s 2006 admission to the gang enhancement on count 1 does not satisfy all the elements for a gang enhancement under the new legislation. Under our independent standard of review, we find no reason to disagree.
Authority:
People v. Rosbury (1997) 15 Cal.4th 206, 209 [de novo review applies when legality of sentence is purely a legal question]
Fourth Holding:
Because the defendant’s admission in 2006 would not satisfy the elements for a gang enhancement under current law, his past admission cannot now support beyond a reasonable doubt the additional punishment allowed by the enhancement.
Authority:
People v. Miles (2008) 43 Cal.4th 1074, 1082 [elements of an alleged sentence enhancement must be proven beyond a reasonable doubt]
People v. Rodriguez (2024) 103 Cal.App.5th 451, 458 [guilty plea admits of guilt beyond a reasonable doubt to every element of crime charged]
Fifth Holding:
AB 333’s substantive changes apply retroactively to all cases not yet final. When a sentence is recalled for resentencing, the matter is non-final and subject to application of ameliorative amendments, like AB 333. The record plainly supports that the defendant’s case was not final because his sentence was recalled under section 1172.1. He was therefore entitled to the benefits of AB 333. Accordingly, we reverse the true findings on the gang enhancement.
Authority:
People v. Tran (2022) 13 Cal.5th 1169, 1206-1207
People v. Lopez (2025) 17 Cal.5th 388, 396, 398–399 [recognizing a judgment becomes nonfinal when sentence is vacated and new sentence is imposed]
People v. Lopez (2020) 56 Cal.App.5th 835, 845–846 [recalled sentence not final]
Sixth Holding:
The restitution fine imposed in 2006 must be vacated, as it was imposed more than 10 years ago.
Authority:
PEN 1465.9(d)