Error and/or relief
In this appeal by the People following the resentencing of the defendant under section 1172.75, we affirm the lower court’s granting of a new trial on the gang-related special circumstances and gang enhancement allegations in light of AB 333.
First Holding:
The People contend the trial court erred in granting respondent’s motion for new trial because the evidence at trial demonstrated, beyond a reasonable doubt, that the jury would have rendered the same verdict absent the instructional error created by the passage of AB 333.
The trial court has broad discretion in ruling on a new trial motion, and its decision will be disturbed only for clear abuse of that discretion. The People recognize this general rule, but contend independent review is more fitting given that the court below was not the original trial judge and based its review on a cold transcript and exhibits.
Authority:
People v. Ault (2004) 33 Cal.4th 1250, 1260
Second Holding:
Presumptions on appeal are in favor of the order, and the appellate court does not independently redetermine the question whether an error was prejudicial. As our Supreme Court explained in Ault, the trial court’s order granting a new trial will not be disturbed if fairly debatable, even if a reviewing court itself, addressing the issues de novo, would not have found a basis for reversal. We will review the trial court’s order for abuse of discretion.
Authority:
People v. Ault (2004) 33 Cal.4th 1250, 1262-1263
Third Holding:
In 2021, the Legislature passed AB 333, which became effective January 1, 2022. The new legislation made several changes to the definition of section 186.22 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.
Authority:
PEN 186.22
People v. Tran (2022) 13 Cal.5th 1169, 1206
Fourth Holding:
Although AB 333 does not expressly address the gang-murder special circumstance set forth in section 190.2(a)(22), the latter statute defines criminal street gang by express cross-reference to section 186.22(f). The same is true for a firearm enhancement alleged pursuant to section 12022.53(e)(1).
Authority:
People v. Hin (2025) 17 Cal.5th 401, 461
People v. Cooper (2023) 14 Cal.5th 735, 746
Fifth 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. To prove harmless error under the Chapman standard, it is not enough to show that substantial or strong evidence existed to support a conviction under the correct instructions. Rather, the question is whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element.
(Gary note: The court then proceeded to examine the written opinion of the trial judge, and discussed the judge’s reasoning and statements of findings that led the trial court to the conclusion that a new trial was warranted. Those facts and that analysis are beyond what these summaries are designed to present, because the facts relied on in an unpublished opinion cannot be related to control a result in another case, and neither can the trial court’s reasoning be cited as authority, persuasitive or otherwise.)
Authority:
People v. Tran (2022) 13 Cal.5th 1169, 1207
People v. Flood (1998) 18 Cal.4th 470, 504
People v. Sek (2022) 74 Cal.App.5th 657, 668
People v. Lamb (2024) 16 Cal.5th 400, 449
People v. Mil (2012) 53 Cal.4th 400, 417
Chapman v. California (1967) 386 U.S. 18