Error and/or relief
The true findings on the two prior strike allegations must be vacated because of changes under AB 333. The matter is remanded for retrial on those allegations to determine whether the prior convictions still qualify as strikes or serious felonies under the current law.
First Holding:
AB 333 (2021-2022 Reg. Sess.) amended section 186.22 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.
After appellant filed his opening brief in this appeal, Fletcher resolved a conflict of authority regarding whether prior convictions with gang allegations are affected by these amendments. The court concluded that, with regard to prior convictions that are premised on violations of section 186.22, current law applies in determining whether they qualify as prior serious felony convictions under section 1192.7(c)(28).
Authority:
People v. Tran (2022) 13 Cal.5th 1169, 1206
People v. Fletcher (2025) 18 Cal.5th 576, 58
Second Holding:
The record here shows defendant’s two pre-2018 convictions included gang enhancements, but provides no information regarding the evidence used to obtain the convictions or the defendant’s underlying conduct. Neither conviction is considered a serious felony within the meaning of section 1192.7 if not for the gang enhancement.
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. There is no indication that the prior conviction was obtained under AB 333’s more stringent requirements, and the abstract of judgment does not alone prove the elements of the alleged prior serious felony and strike prior enhancements beyond a reasonable doubt.
The appropriate remedy is reversal of the findings on these enhancements for retrial under the correct law.
Authority:
People v. Fletcher (2025) 18 Cal.5th 576, 606-607
Third Holding:
The true findings on the strike and the prior serious felony enhancement are reversed pursuant to Fletcher. Appellant’s sentence is vacated. The matter is remanded for retrial on the prior serious felony and strike convictions. If appellant is not timely retried regarding the prior strikes or one or both of the prior strikes are not proven, the trial court shall resentence appellant without the strikes. We also remand the matter for a full resentencing.
Authority:
PEN 1382(a)(2)
People v. Fletcher (2025) 18 Cal.5th 576, 607-608
People v. Watts (2006) 131 Cal.App.4th 589, 597-598