Tag Archives: AB 333

Amelioration, Elements of crime, Retroactivity, Sentencing, Standard of review

Case 001006

Posted on by Gary McCurdy

Error and/or relief

The matter is remanded for a new hearing on the defendant’s resentencing under section 1172.75, in light of new case law regarding examination of prior serious felonies and strikes depending on criminal gang activity. Further, the restitution fine must vacated, as it is more than 10 years old.

First Holding:

The Three Strikes law is a sentencing scheme that requires a court to double or sometimes triple the punishment for a felony offense if the defendant was previously convicted of a crime that qualifies as a serious or violent felony. The serious or violent felonies that trigger this sentencing scheme, commonly referred to as strikes or strike priors, are enumerated by statute. The list of serious felonies includes any felony offense that would also constitute a felony violation of section 186.22. Section 186.22 defines substantive gang offenses and gang enhancements.

Authority:

PEN 667(e)

PEN 1170.12(c)

PEN 1192.7(c)(28)

PEN 667.5(c)

People v. Fletcher (2025) 18 Cal.5th 576, 582

Second Holding:

The Legislature enacted AB 333 (2021-2022 Reg. Sess.), which among other things, changed the elements of gang offenses and enhancements 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. Fletcher held that prior convictions premised on section 186.22 must be examined under currently law in determining whether they qualify as prior serious felony convictions or strikes.

Authority:

AB 333

PEN 186.22

People v. Fletcher (2025) 18 Cal.5th 576, 585, 587

Third Holding:

When the applicable law governing the defendant’s sentence has substantively changed after sentencing, it is almost always speculative for a reviewing court to say what the sentencing court would have done if it had known the scope of its discretionary powers at the time of sentencing. The Salazar court accordingly held that when a sentencing court was not fully aware of the scope of its discretionary powers, the appropriate remedy is to remand for resentencing unless the record clearly indicates that the trial court would have reached the same conclusion even if it had been aware that it had such discretion.

Though the Salazar decision is premised on the trial court’s scope of discretion being changed during pendency of appeal, whereas here the trial court’s discretion has remained the same but a material fact about defendant’s past record has been modified since the time of sentencing. We nevertheless find the test set forth in Salazar to be applicable here, because the Salazar court itself observed the similarity between the two scenarios: A court that is unaware of the scope of its discretionary powers can no more exercise informed discretion than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant’s record

Authority:

People v. Salazar (2023) 15 Cal.5th 416, 424-425

Fourth Holding:

Retrial of the strike under the current law would be appropriate, should the prosecutor so choose.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 608

Fifth Holding:

The restitution fine was imposed in 2011. Section 1465.9(d) has been added since then, to provide that any restitution fine is unenforceable and uncollectible upon the expiration of 10 years after date of imposition.

Authority:

PEN 1465.9

Amelioration, Elements of crime, Jury instructions, Sentencing, Standard of review

Case 000989

Posted on by Gary McCurdy

Error and/or relief

On retrial of the gang allegations in light of the changes made by AB 333 since the original conviction, the court misinstructed the jury on the relationship between the gang’s predicate offenses and its organizational structure, its primary activities, or its common goals and principles. We reverse and remand for a new trial on the gang enhancements.

First Holding:

We review instructional error claims under an independent or de novo standard of review.

Authority:

People v. Posey (2004) 32 Cal.4th 193, 218

Second Holding:

A trial court has a sua sponte duty to instruct on the essential elements of a special circumstance allegation or a sentence enhancement. Failure to properly instruct on an essential element is constitutional error, warranting reversal unless the error was harmless beyond a reasonable doubt.

Under the Chapman harmless error standard, the burden is on the People, not the defendant, to demonstrate that the violation of the defendant’s federal constitutional right was harmless beyond a reasonable doubt.

The beyond-a-reasonable-doubt standard requires the beneficiary of a federal constitutional error–the People–to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. To say that an error did not contribute to the ensuing verdict is to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.

Authority:

People v. Mil (2012) 53 Cal.4th 400, 409-410

Chapman v. California (1967) 386 U.S. 18, 24

People v. Atkins (2019) 31 Cal.App.5th 963, 981 [the presumption is that we must reverse, unless we find the error harmless beyond a reasonable doubt]

People v. Cutting (2019) 42 Cal.App.5th 344, 349

People v. Pearson (2013) 56 Cal.4th 393, 463

Third Holding:

The California Supreme Court issued its decision in Clark in February 2024. The jury reached its verdicts in the instant case several months later. The CALCRIM instructions defining the gang enhancement allegations and special circumstances were amended a month later to add two sentences, as required by Clark:

“As used here, members collectively engage in or have engaged in a pattern of criminal gang activity when the crimes that make up the pattern of criminal gang activity can be connected to the gang as a whole. Collective engagement requires a connection between the crimes and the gang’s organizational structure or manner of governance, its primary activities, or its common goals and principles.”

The trial court used the older versions of CALCRIM No. 1401 (the gang enhancement), and CALCRIM No. 736 (the gang-murder special circumstance), and therefore did not instruct the jury on the required organizational nexus between the predicate crimes and the gang as interpreted and stated in Clark. This was plainly an instructional error committed by the trial court.

Authority:

People v. Clark (2024) 15 Cal.5th 743

Fourth Holding:

Although we have found that there was sufficient evidence to establish the nexus between the gang as an organization and the predicate offenses—a very low threshold—that is not the same as finding that failure to instruct on this element was harmless beyond a reasonable doubt.

In order to find the trial court’s instructional error harmless beyond a reasonable doubt, we must conclude that there is no reasonable possibility that the jury could have rendered different verdicts on the gang allegation and the gang-murder special circumstance absent the error. Because of the narrow focus of the trial, and because of the recent changes to the law, the importance of the People establishing the validity of the gang’s predicate offenses played an outsized role in these proceedings. We are not certain what 12 jurors might have done had they been properly instructed.

Because of the anomalies in this case, we must reverse the jury’s true findings on the gang enhancements because we cannot find that the instructional error was unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.

Authority:

People v. Pearson (2013) 56 Cal.4th 393, 463

People v. Atkins (2019) 31 Cal.App.5th 963, 981 [the presumption is that we must reverse, unless we find the error harmless beyond a reasonable doubt]

Amelioration, Retroactivity, Sentencing

Case 000946

Posted on by Gary McCurdy

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

Amelioration, Retroactivity, Sentencing

Case 000945

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by finding the defendant’s prior conviction for gang participation constituted a prior strike conviction within the meaning of the Three Strikes law. The true findings on the prior strike conviction and prior serious felony conviction are vacated and the case is remanded.

First Holding:

The trial court agreed with the prosecution that AB 333 was not before the court for consideration at the trial on whether the defendant suffered a prior strike conviction and a serious felony conviction. he court declined to consider the effect of AB 333 on the prior conviction and found true that the defendant had suffered a prior strike conviction and a prior serious felony conviction.

This was error. AB 333 applies to the determination of whether a prior conviction qualifies as a serious or violent felony. The true findings that the defendant suffered a prior strike conviction and a prior serious felony conviction are vacated and the matter is remanded.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 608

Second Holding:

On remand, if the People decide not to retry the enhancements, or at the conclusion of such a retrial, Jones will be entitled to a full resentencing. The court has a duty to ensure that all components of a sentence are authorized by the law and the facts at the time any new sentence is imposed.

Authority:

People v. Buycks (2018) 5 Cal.5th 857, 893 [When part of a sentence is stricken on review, on remand for resentencing a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.]

People v. Walker (2021) 67 Cal.App.5th 198, 206

 

Amelioration, Sentencing

Case 000943

Posted on by Gary McCurdy

Error and/or relief

The defendant is entitled to a remand for the trial court to determine whether his strike prior is valid under current law, in light of the AB 333 changes to the gang activity law since the convictions of the purported strike offenses.

First Holding:

The defendant is entitled to a remand for the trial court to determine whether one of his strike priors satisfies the current requirements of the gang statute.

Authority:

AB 333

People v. Fletcher (2025) 18 Cal.5th 576, 583

Second Holding:

AB 333 amended section 186.22 to provide, among other things, that an offense committed on behalf of a gang may support a substantive gang offense, gang enhancement, or, by definition, a gang special circumstance finding, only if the common benefit to members of a gang is more than reputational. AB 333 applies retroactively to cases pending on appeal

Authority:

PEN 186.22

People v. Tran (2022) 13 Cal.5th 1169, 1206-1207

Third Holding:

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.

If the record contains no indication that the defendant’s prior conviction was obtained under AB 333’s more stringent requirements, and the evidence used to prove the existence of the strike prior does not alone prove the elements of the alleged prior serious felony and strike prior enhancements beyond a reasonable doubt, the remedy is to provide the People an opportunity to retry the strike allegation under the current law.

And, if the People elect not to retry the strike prior or fail to prove beyond a reasonable doubt that it satisfies the requirements of AB 333, the trial court must dismiss the allegation and conduct a full resentencing.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 583, 607

People v. Buycks (2018) 5 Cal.5th 857, 893

Amelioration, Appellate Principles, Duty of the court, Sentencing

Case 000942

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in failing to follow this court’s instructions in the defendant’s prior appeal to dismiss the enhancement imposed under section 12022.53(e) unless the prosecution successfully retries under the gang allegations–necessary for that enhancement–under the provisions as amended by AB 333. The prosecution chose not to retry the allegations, so the enhancement must be vacated.

Holding:

(Gary note: this did not actually affect the sentence because punishment for the affected enhancement had previously been imposed but stayed by the trial court. Vacating the enhancement merely vacated a sentence for it that was already stayed.

(Also, the nature of the order did not require citation to case authority, as it was simply an observation that a previous order of the appellate court had not been carried out, so it ordered the court to carry out the appellate court’s previous order. But the court did cite cases relevant to its reason for the initial order that the gang-reliant enhancements must be retried if punishment for them is to be imposed.)

Authority:

People v. Lopez (2021) 73 Cal.App.5th 327, 347–348, disapproved of on other grounds in People v. Clark (2024) 15 Cal.5th 743, 764, fn. 8 [Because the sec. 12022.53(e) firearm enhancement depended on the jury finding a violation of sec. 186.22(b), vacating that finding in light of AB 333 required vacating sec. 12022.53(e) enhancement]

Amelioration, Retroactivity, Sentencing, Standard of review

Case 000937

Posted on by Gary McCurdy

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

Amelioration, Sentencing

Case 000898

Posted on by Gary McCurdy

Error and/or relief

AB 333 amendments apply retroactively because the defendant’s judgment was not final following recall of his sentence, reverse his gang conviction and gang enhancements, and remand for further proceedings consistent with this opinion.

First Holding:

In 2022, AB 333 went into effect and made the following changes to the law on gang offenses and 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. Additionally, to prove collective engagement under amended section 186.22(f), the prosecution must show a nexus between the individual predicate offenses and the gang as an organized, collective enterprise.

Authority:

People v. Tran (2022) 13 Cal.5th 1169, 1206

People v. Clark (2024) 15 Cal.5th 743, 749

Second Holding:

AB 333’s amendments apply retroactively to appellant’s case, as the judgment became nonfinal when he returned to the trial court under section 1172.75 for recall and resentencing. When any aspect of a case is on appeal from sentencing, the case or prosecution has not been reduced to final judgment for Estrada purposes

Authority:

People v. Lopez (2025) 17 Cal.5th 388, 394

In re Estrada (1965) 63 Cal.2d 740

People v. Tran (2022) 13 Cal.5th 1169, 1207

Third Holding:

Here, section 1172.75 required the trial court to recall the sentence and resentence appellant. The court was to apply the sentencing rules of the Judicial Council and apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing. As such, appellant’s judgment became nonfinal for Estrada purposes, and the court should have addressed amendments made by AB 333.

Authority:

PEN 1172.75

People v. Lopez (2025) 17 Cal.5th 388, 400

People v. Salgado (2022) 82 Cal.App.5th 376, 380–381 [defendant entitled to benefit of AB 333 because his judgment was no longer final following recall and resentencing under sec. 1170(d)]

Fourth Holding:

The jury’s findings on the gang allegations in 2015 were made prior to the amendments to section 186.22 and without the benefit of jury instructions on the elements added by AB 333. Respondent concedes the record does not disclose the error was harmless beyond a reasonable doubt and that remand is required.

Authority:

People v. Cooper (2023) 14 Cal.5th 735, 742

Fifth Holding:

Upon remand the prosecution must be given an opportunity to establish the elements of the substantive gang offense charged in count 5 and the gang enhancements on counts 1 through 3 and 8 pursuant to amended section 186.22. Following any proceeding to establish those elements or if the prosecution chooses to forego its opportunity to comply with AB 33, the trial court must conduct a full resentencing.

Authority:

People v. Sek (2022) 74 Cal.App.5th 657, 669–670

 

Amelioration, Elements of crime, Sentencing

Case 000885

Posted on by Gary McCurdy

Error and/or relief

As a result of a successful petition for writ of habeas corpus brought in 2024 challenging an illegal sentence imposed in his 2006 judgment, the defendant was resentenced. The court erred in declining to determine whether the counts and enhancements related to gang activity met the new elements of the crime as amended by AB 333.

First Holding:

In 2021, AB 333 made the following changes to the law on 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, it narrowed what it means for an offense to have commonly benefitted a street gang, requiring that any common benefit be more than reputational.

Authority:

AB 333

PEN 186.22

People v. Tran (2022) 13 Cal.5th 1169, 1206

Second Holding:

Ordinarily, statutes are presumed to apply only prospectively, unless the Legislature expressly declares otherwise. In the absence of a contrary indication of legislative intent, legislation that ameliorates punishment applies to all cases that are not yet final as of the legislation’s effective date.

Authority:

People v. Burgos (2024) 16 Cal.5th 1, 7–8

In re Estrada (1965) 63 Cal.2d 740, 745

Third Holding:

When part of a sentence is stricken on review, on remand for resentencing a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances. The resentencing court has jurisdiction to modify every aspect of the sentence, and not just the portion subjected to a recall, and the court may consider any pertinent circumstances which have arisen since the prior sentence was imposed.

Authority:

People v. Buycks (2018) 5 Cal.5th 857, 893

Fourth 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.

Here, AB 333 essentially adds new elements to the substantive offense and enhancements in section 186.22—for example, by requiring proof that gang members collectively engage in a pattern of criminal gang activity, that the predicate offenses were committed by gang members, that the predicate offenses benefitted the gang, and that the predicate and underlying offenses provided more than a reputational benefit to the gang.

These changes have the effect of increasing the threshold for conviction of the section 186.22 offense and the imposition of the enhancement. When appellant was resentenced, his sentence became nonfinal and he was entitled to a full resentencing on all counts, with the sentencing court taking into consideration all pertinent circumstances that had arisen since appellant was originally sentenced.

Authority:

People v. Tran (2022) 13 Cal.5th 1169, 1207

People v. Buycks (2018) 5 Cal.5th 857, 893

Fifth Holding:

Striking an enhancement’s punishment is not the same as striking the enhancement itself, and does not operate to defeat the factual finding of the truth of the allegation, instead, such act merely serves to prohibit a certain purpose for which the [allegation] may be used.

Authority:

In re Pacheco (2007) 155 Cal.App.4th 1439, 1445

Sixth Holding:

In certain cases, retrial is barred where a defendant successfully overturns a judgement of conviction based on insufficiency of the evidence. A finding of insufficient evidence is the functional equivalent of a judgment of acquittal, upon which retrial is prohibited.

The incentive of double jeopardy to protect a defendant against harassment and unnecessary, repeated trials serves no purpose when, as here, the prosecution did make such a case under the law as it then stood; having done so, the prosecution had little or no reason to produce other evidence of guilt. In other words, where the prosecution’s original burden of proof at trial is later altered, it is unrealistic to assume that the prosecution, with a perfect case for proof of the invalid theory, necessarily presented all available evidence relating to the valid theory.

Because we do not resolve this case on insufficiency of the evidence grounds but rather find instructional error due to the amendments to section 186.22 enacted by AB 333, double jeopardy does not bar the People from retrying the section 186.22(b)(1)(C) and section 12022.53(d) and (e)(1) enhancements.

Authority:

People v. Hin (2025) 17 Cal.5th 401, 454–455, 459

Amelioration, Elements of crime, Sentencing

Case 000873

Posted on by Gary McCurdy

Error and/or relief

The evidence was insufficient to sustain the section 190.2 gang special circumstance.

First Holding:

Section 190.2(a)(22) provides that the penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment in the state prison for life without the possibility of parole if the defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang, as defined in section 186.22(f), and the murder was carried out to further the activities of the criminal street gang.

Proof of the existence of a criminal street gang as defined in section 186.22(f) is a prerequisite to proving the gang-murder special circumstance.

Authority:

People v. Rojas (2023) 15 Cal.5th 561, 565

People v. Rodriguez (2022) 75 Cal.App.5th 816, 823

Second Holding:

Prior to the defendant’s trial, the Legislature enacted AB 333, which made multiple changes to section 186.22. The changes, as incorporated into the gang-murder special circumstance, retroactively apply to cases that are not yet final.

Following AB 333, section 186.22(f) defines a criminal street gang as an ongoing, organized association or group of three or more persons having as one of its primary activities the commission of one or more of the criminal acts enumerated in subdivision (e), having a common name or common identifying sign or symbol, and whose members collectively engage in, or have engaged in, a pattern of criminal gang activity.

Section 186.22(e) defines pattern of criminal gang activity as committing offenses that benefit a gang in a way that is more than reputational.

Authority:

People v. Rojas (2023) 15 Cal.5th 561, 566-567

In re A.M. (2024) 102 Cal.App.5th 557, 569

Third Holding:

The prosecution’s gang expert did not testify the murders the defendant committed benefited his gang in any way that was more than reputational. The evidence was thus insufficient under the law as amended after trial by AB 333 to sustain the special circumstance finding under section 190.2. Accordingly, we reverse the gang special circumstance findings and remand for retrial of the allegations at the option of the prosecution.

(Gary note: It is unclear to me whether the trial was held before AB 333 or after. In what I have shown as Second Holding, the court states, “Prior to [defendant’s] trial, the Legislature enacted Assembly Bill 333 ….” And in a portion that I did not set out in this summary, the opinion says, “At sentencing, the trial court dismissed the section 186.22 gang enhancement because the People did not prove the gang allegation under the new statutory requirements of AB 333, in which they have to show that the benefit to the gang is more than reputational.   The court declined the defense’s request to dismiss the section 190.2 gang special circumstance.” So clearly the superior court was aware of AB 333 as of the time of sentencing, though that doesn’t say anything about when the trial was.

(And in what I have set out as the Third Holding, the court states, “The evidence was thus insufficient under the law as amended after trial by Assembly Bill 333 to sustain the special circumstance finding under section 190.2.” If the trial was held before AB 333 was enacted, then the appellate decision makes sense in relying on Hin to permit retrial. The notice of appeal was filed in the middle of 2023. AB 333 went into effect 1/2/2022, nearly a year and a half before the notice of appeal was filed. So I am a little puzzled on whether AB 333 was in place at the time of trial. If so, then I wonder whether Hin is the best authority, as it seems to find significant that the change in the law came after the trial in Hin. Life’s little mysteries, eh? Maybe (likely, in fact) I’m missing something in the opinion that would clarify the timing for me.)

Authority:

People v. Rojas (2023) 15 Cal.5th 561, 580

In re A.M. (2024) 102 Cal.App.5th 557, 570

People v. Hin (2025) 17 Cal.5th 401, 464 [retrial is permitted where the appellate court finds only that the evidence was insufficient under the law as amended posttrial by Assembly Bill 333]

Amelioration, Duty of counsel, Effective assistance of counsel, Elements of crime, Retroactivity

Case 000859

Posted on by Gary McCurdy

Error and/or relief

Habeas petition granted on the basis of appellate ineffective assistance of counsel in a prior appeal. The matter is remanded to the trial court with directions to vacate petitioner’s gang convictions and enhancements, to determine whether the prosecution will elect retrial, to conduct a retrial if so elected, and to fully resentence petitioner.

First Holding:

The defendant was convicted of several crimes, including substantive crimes and enhancements related to criminal gang activity. While the matter was pending on appeal in an earlier appeal, AB 333 amended section 186.22.

Among other things, AB 333 changed the elements of gang offenses and enhancements 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.

AB 333 requires that predicate offenses were committed on separate occasions or by two or more members, the offenses commonly benefited a criminal street gang, and the common benefit of the offenses is more than reputational.

In addition, the currently charged offense cannot be used as a predicate offense under the amendments. AB 333 is ameliorative legislation that applies to nonfinal judgments under the rule of In re Estrada.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 583

People v. Vasquez (2022) 74 Cal.App.5th 1021, 1032

In re Estrada (1965) 63 Cal.2d 740

Second Holding:

To establish an ineffective assistance of counsel claim, a defendant must show: (1) counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms; and (2) this resulted in prejudice to the defendant.

Authority:

People v. Lepere (2023) 91 Cal.App.5th 727, 738

Third Holding:

The prosecution’s expert witness testified that he could not conclude that certain conduct was for the benefit of the gang. The evidence adduced at trial was therefore insufficient to qualify the crime as a predicate offense under AB 333.

Because a criminal street gang was not established under the subsequent requirements of AB 333, the gang convictions and enhancements would have been vacated if properly challenged on direct appeal.

Appellate counsel’s failure to raise the issue was therefore prejudicial to petitioner. Because we do not reverse based on the insufficiency of the evidence required to prove a violation of the statute as it read at the time of trial, the double jeopardy clause of the Constitution will not bar a retrial.

Authority:

People v. Salgado (2022) 82 Cal.App.5th 376, 380–381

Amelioration, Discretion, Duty of the court, Retroactivity, Sentencing, Sixth Amendment, Standard of review

Case 000842

Posted on by Gary McCurdy

Error and/or relief

In the prior appeal, the appellate court reversed the denial of the defendant’s petition for recall of sentence under section 1172.6 and ordered the trial court to grant the petition. On remand, the trial court granted the motion and redesignated the offense as three counts, and imposed the upper term.

It was error to resurrect and redesignate for sentencing counts that were dismissed in the original plea negotiations. It was also error to impose the upper term on circumstances in aggravation that were not submitted to a jury for proof beyond a reasonable doubt.

First Holding:

When the trial court granted the defendant’s petition for resentencing under section 1172.6, his judgment became nonfinal and was subject to the retroactive application of AB 333. AB 333 made changes to the law on gang enhancements and narrowed the definition of a criminal street gang.

The defendant’s admission under the former law does not satisfy the elements now required under the current law. The stipulation at the preliminary hearing that the [named gang] was an ongoing street gang that engages in a pattern of criminal activity pursuant to section 186.22(f) is insufficient under any standard to prove either the gang enhancement or the gang offense under current law.

Authority:

People v. Trent (2025) 112 Cal.App.5th 251, 262–263 [once petition for resentencing under sec. 1172.6 is granted, judgment is no longer final]

People v. Lopez (2025) 17 Cal.5th 388, 393 [AB 333 is retroactive to nonfinal judgments]

In re Estrada (1965) 63 Cal.2d 740

People v. Silva (2021) 72 Cal.App.5th 505, 526–527

Second Holding:

When a murder or attempted murder conviction is set aside under section 1172.6, the petitioner’s conviction shall be redesignated as the target offense or underlying felony for resentencing purposes if the murder or attempted murder was charged generically, and the target offense was not charged.

Authority:

PEN 1172.6(e)

Third Holding:

Section 1172.6 does not define what constitutes an underlying felony or target offense, but our high court in Arellano held that the meaning of these terms is clear—an underlying felony refers to the felony underlying a felony-murder theory, and the target offense refers to the offense the natural and probable consequence of which was murder.

Authority:

People v. Arellano (2024) 16 Cal.5th 457

People v. Lara (2025) 108 Cal.App.5th 1005 [the trial court erred by resurrecting counts dismissed in the parties’ plea agreement on resentencing]

Fourth Holding:

Application of the trial court’s resentencing discretion under section 1172.6(e) here is circumscribed by the prosecution’s exercise of charging discretion in the original proceeding. Here, that limitation is the district attorney’s election to dismiss all charges involving [victim 1] as well as the substantive gang count in return for the defendant’s plea to a single count of attempted second degree murder of [victim 2].

Authority:

People v. Arellano (2024) 16 Cal.5th 457, 476 [deeming it unlikely the Legislature intended to allow the prosecution to effectively revisit its charging decisions  every time a petitioner succeeds in setting aside a  conviction under section 1172.6]

People v. Lara (2025) 108 Cal.App.5th 1005, 1026

Fifth Holding:

There is no dispute that there is no qualifying felony for which the prosecutor could have proceeded under a theory of felony murder in this case.

Thus when resentencing the defendant, the trial court was required to redesignate his offense as a target offense—the offense of which the natural and probable consequence was the attempted murder.

In this case, conviction for attempted murder of [victim 2] was properly redesignated as assault with a semiautomatic firearm on [victim 2]. We conclude that the trial court erred by resurrecting counts stemming from conduct that the district attorney plainly chose to dismiss as part of the negotiated settlement.

These dismissed counts cannot form the predicate for relief for the defendant’s petition for resentencing. Because the defendant did not plead to any other offenses than the attempted murder of [victim 2], the target offense underlying the attempted murder of one named person is not two assaults with a firearm on two persons. Courts may not impose uncharged and unproven sentence allegations or enhancements when resentencing a successful petitioner under section 1172.6e).

Authority:

People v. Arellano (2024) 16 Cal.5th 457, 475, 477

People v. Lara (2025) 108 Cal.App.5th 1005, 1027

Sixth Holding:

Though not applicable here, had the prosecution alleged and proved a target offense in addition to the attempted murder, on successful petition under section 1172.6, the court would be limited to sentencing the defendant on the charged target offenses that were proved. The trial court under section 1172.6(d)(3) would not have been otherwise entitled to resentence the defendant on charges that could have been [but were not] established by the evidence.

Authority:

PEN 1172.6(d)(3)

People v. Arellano (2024) 16 Cal.5th 457, 470

Seventh Holding:

The trial court erred by imposing an upper term for the count of assault with a semiautomatic firearm on [victim 2] without holding a jury trial as requested.

Under section 1170(b), when a statute specifies three possible terms, the trial court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, unless circumstances in aggravation that justify an upper term sentence have been stipulated to by the defendant or have been found true beyond a reasonable doubt at a trial by the jury or by the judge in a court trial.

However, a trial court may consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury.

Authority:

PEN 1170(b)

Eighth Holding:

After the defendant’s resentencing, the California Supreme Court decided Wiley. Relying on Erlinger, our high court held that the Sixth Amendment requires a jury determination on aggravating factors related to a defendant’s criminal history, such as whether a defendant’s convictions were of increasing seriousness under rule 4.421(b)(2), and whether the defendant’s prior performance on probation was unsatisfactory under rule 4.421(b)(5).

Wiley concluded that a defendant is entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose the defendant to imposition of a sentence more serious than the statutorily provided midterm. 

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1082, 1086

Erlinger v. United States (2024) 602 U.S. 821, 834 [virtually any fact that increases the prescribed range of penalties to which a criminal defendant is exposed must be resolved by a unanimous jury beyond a reasonable doubt (or freely admitted in a guilty plea]

Ninth Holding:

where a defendant was deprived of a jury trial on aggravating factors used at sentencing, we must apply the harmless beyond a reasonable doubt standard in Chapman.

Under this standard, we must reverse the judgment unless we conclude beyond a reasonable doubt that a jury, applying that same standard, would have found true all of the aggravating facts upon which the court relied to conclude the upper term was justified, or that those facts were otherwise proved true in compliance with the current statute.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1082, 1087

Chapman v. California (1967) 386 U.S. 18

Tenth Holding:

The trial court relied on the defendant’s rap sheet to determine that the crimes were of increasing seriousness and were numerous under rule 4.421(b)(2). According to defendant’s rap sheet, he had a juvenile adjudication in 2007 [for specified offenses], 2010 juvenile adjudications for [different offenses] and a 2014 conviction for [a different offense].  

Based on these series of offenses, a rational jury could have disagreed as to whether it demonstrated criminal conduct of increasing seriousness. Likewise, a rational jury could have also found that the defendant’s prior convictions were not particularly numerous. The failure to submit these aggravating factors to the jury was not harmless beyond a reasonable doubt, and the defendant is entitled to reversal of the upper term sentence.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1082, 1089

People v. Wright (2025) 113 Cal.App.5th 832, 848