Error and/or relief
At the resentencing under section 1172.6, the court may have erred in reimposing criminal gang activity enhancement without examining whether it meets the requirements of section 186.22 as amended by AB 333.
The briefing submitted in conjunction with the ruling on the section 1172.6 proceedings does not adequately address whether the application of AB 333 is retroactive where section 1170.6 is invoked. The matter is remanded for resentencing and the parties may address the question of retroactivity of AB 333 in the superior court proceedings.
First Holding:
When the middle term is applied, appellate courts have held that the plain language and statutory context of section 1170(b) are clear the Legislature did not intend to impose evidentiary or proof requirements or restrictions on the imposition of a middle term sentence.
Authority:
People v. Sarmiento-Zuniga (2025) 108 Cal.App.5th 1216, 1223
Second Holding:
AB 333 applies retroactively to nonfinal judgments. Application of AB 333 here essentially increases the probability defendant’s gang enhancement, imposed prior to the effective date of AB 333, is not supported by substantial evidence.
Authority:
People v. Lopez (2025) 17 Cal.5th 388, 392
People v. Rojas (2023) 15 Cal.5th 561, 566–567 [Assembly Bill 333 narrowed the definitions of criminal street gang, pattern of criminal activity, and common benefit to a street gang]
Third Holding:
While section 1172.6 clearly provides the unusual remedy of challenging certain final convictions of murder, attempted murder, and manslaughter convictions, and clearly provides that the sentence on all counts (including those other than the murder, attempted murder, and manslaughter convictions) must be based on present law, it is not immediately clear where in the statute the Legislature provided the unusual remedy of challenging all of the petitioner’s other convictions.
The defendant does cite toTrent for the proposition that a defendant is entitled to retroactive application of ameliorative laws after a successful petition under section 1172.6. But the fact that AB 333 applies to nonfinal judgments is clear and undisputed. The question is whether these particular proceedings (i.e., sec. 1172.6) allow for challenges to the convictions (rather than challenges to the prior sentence made at resentencing) on counts or enhancements other than murder, attempted murder, or manslaughter.
Authority:
PEN 1172.6(d)(3)
People v. Trent (2025) 112 Cal.App.5th 251
Fourth Holding:
On remand, the trial court must award defendant 55 days of presentence conduct credits. The Attorney General concedes this issue and we accept the concession.
(Gary note: The court cited no authority for its directive to award presentence conduct credits, undoubtedly because the law is well settled. For your convenience, I have listed authority below that the court could have relied on.)
Authority:
People v. Sek (2022) 74 Cal.App.5th 657, 673
ADD AUTHORITIES HERE