Tag Archives: AB 333

Amelioration, Duty of the court, Jury trial, Retroactivity, Sentencing, Sixth Amendment

Case 001151

Posted on by Gary McCurdy

Error and/or relief

The court made several sentencing errors. The strike based on a violation of section 186.22 requires examination whether the elements found true at the time of conviction meet the heightened requirements of the amendments under AB 333.

The court imposed the upper term on several counts despite there being no jury trial waiver nor stipulation by the defendant to the aggravating factors. Further, the court relied on factors in aggravation that were also the basis of enhancements, violating the prohibition against dual use.

The court erred in imposing two full terms consecutively for two counts, as consecutive determinate (subordinate) terms are limited to one-third the middle term.

The court miscalculated the credit for time served.

First Holding:

AB 333, effective January 1, 2022, amended section 186.22 to narrow the definition of “benefit” to mean “to provide a common benefit to members of a gang where the common benefit is more than reputational. The amendment applies retroactively to cases that are not final on appeal to determine whether a prior violation of section 186.22 constitutes a strike or a prior serious felony.

We remand to permit the prosecution the opportunity to establish that the prior conviction (from more than 15 years ago) constitutes a strike and a prior serious felony conviction under current law. conviction.

Authority:

PEN 186.22(g)

People v. Fletcher (2025) 18 Cal.5th 576, 586–587

Second Holding:

Section 1170(b)(1) provides that when a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, except as otherwise provided in paragraph (2). Under subdivision (b)(2), the trial court may impose a sentence exceeding the middle term only when circumstances in aggravation of the crime justify imposition of an upper term sentence, and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at a jury or court trial.

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. A defendant is entitled to have a jury determine the facts justifying an upper term based on the “increasing seriousness” of a defendant’s prior convictions.

Authority:

PEN 1170(b)

Cal. Rules of Court, rule 4.421(b)(2)

People v. Wiley (2025) 17 Cal.5th 1069, 1078, 1085-1086 [increasing seriousness of a crime required a jury determination]

People v. Lynch (2024) 16 Cal.5th 730, 759–760

Third Holding:

The court erred in relying on two factors in aggravation that formed the basis of enhancements for which punishment was imposed. This was error because of the prohibition against the dual use of facts to impose an upper term sentence based on the facts of an enhancement.

Authority:

PEN 1170(b)(5)

People v. Scott (1994) 9 Cal.4th 331, 350

Fourth Holding:

The court imposed two consecutive 18-year terms for each of the attempted murder counts, which consisted of the upper term of nine years double for the prior strike. This was error. The trial court may the full term, either lower, middle, or upper, for the principal term. However, in general (there are exceptions), the court may impose only one-third of the middle term’for subordinate terms.

Authority:

PEN 1170.1(a)

People v. Felix (2000) 22 Cal.4th 651, 655

Fifth Holding:

The court erred in its calculation of credit for time served, and on remand the court shall ensure that the abstract of judgment be amended to reflect the proper credits.

Authority:

PEN 2900.5

Amelioration, Elements of crime, Sentencing

Case 001117

Posted on by Gary McCurdy

Error and/or relief

Following the second of defendant’s two previous appeals, the matter was remanded to give the prosecution the opportunity to retry the gang enhancements. The prosecution declined to retry the gang enhancements. At sentencing, the court imposed previously stayed firearms enhancements that were tethered to the gang enhancements.

This was error. Once the prosecution declined to retry the gang enhancements, the firearm enhancements could no longer be imposed.

First Holding:

We observe that on remand the court resentenced the defendant to a higher aggregate term than both the original and second sentences. We note that although in some cases imposing a greater sentence to correct an unauthorized sentence is permissible, imposing a greater sentence after a successful appeal may be an excess of jurisdiction. Here, the issue is likely moot based on the disposition herein.

Authority:

People v. Serrato (1973) 9 Cal.3d 753, disapproved on other grounds in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1

People v. Trammel (2023) 97 Cal.App.5th 415

Second Holding:

The trial court’s sentence on the most recent remand, imposing the previously-stayed gang-related firearms enhancements, was unauthorized. The firearms enhancements were contingent on the vacated gang enhancements. Once the prosecution declined to retry the gang enhancements, the allegations found true by the jury under section 12022.53(d) and (e)(1), having been reversed, could not be imposed.

Authority:

People v. Cooper (2023) 14 Cal.5th 735, 746

Amelioration, Duty of the court, Retroactivity, Sentencing, Standard of review

Case 001116

Posted on by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75, the court erred in failing to consider whether the criminal gang activity enhancements were still valid with the passage of AB 333 after the initial conviction and sentencing.

First Holding:

Effective January 1, 2022, B333 amended section 186.22 to impose new substantive and procedural requirements for gang allegations and the substantive offense of gang participation.

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:

People v. E.H. (2022) 75 Cal.App.5th 467, 477

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

Second Holding:

Under Estrada, 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. 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.

AB 333 applies retroactively in this case. AB 333 added new elements to the substantive offense and enhancements in section 186.22.

Authority:

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

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

Third Holding:

When the defendant’s sentence was recalled, his judgments became nonfinal and “the trial court regained the jurisdiction and duty to consider what punishment was appropriate for him, and [Guzman] regained the right to appeal whatever new sentence was imposed. His judgments thus became nonfinal, and it remains nonfinal in its present posture. His judgments became nonfinal for Estrada purposes and the trial court erred by failing to address the amendments that AB 333 made to the gang enhancement statute.

Authority:

People v. Padilla (2022) 13 Cal.5th 152, 161-162

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

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

Fourth Holding:

The proper remedy in this case is to remand for the trial court to determine whether the People can establish beyond a reasonable doubt that the error was harmless.

Authority:

People v. Copper (2023) 14 Cal.5th 735, 738, 742-744, 746 [applying Chapman to conclude that lack of jury instruction on AB 333’s new elements was not harmless beyond a reasonable doubt]

People v. E.H. (2022) 75 Cal.App.5th 467, 480 [The proper remedy for this type of failure of proof—where newly required elements were never tried to the jury—is to remand and give the People an opportunity to retry the affected charges]

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

Fifth Holding:

The defendant concedes that retrial is not automatic and requests that we assess the trial court’s error instead of remanding to the trial court. Although some appellate courts have engaged in harmless error analysis in similar situations (e.g., Sek), we conclude that in this case, the trial court is well-situated to make the prejudice determination.

Authority:

People v. Sek (2022) 74 Cal.App.5th 657, 668-669

Sixth Holding:

Regardless of the outcome on the question of AB 333, the defendant is entitled to full resentencing on remand.

Authority:

People v. Lopez (2025) 17 Cal.5th 388, 392-393 [a criminal case in which the sentence is not yet final, including one in which an appellate court has affirmed the conviction and remanded for reconsideration of sentencing-related issues, is not final for purposes of Estrada, and the benefits of supervening ameliorative legislation apply retroactively]

People v. Valenzuela (2019) 7 Cal.5th 415, 424-425 [the full resentencing rule allows a court to revisit all prior sentencing decisions when resentencing a defendant]

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

Case 001115

Posted on by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75, the court erred in failing to consider whether the criminal gang activity enhancements were still valid with the passage of AB 333 after the initial conviction and sentencing.

First Holding:

Any sentence enhancement that was imposed prior to January 1, 2020, pursuant to section 667.5(b) (with one exception) is legally invalid. The sentencing court, upon being notified that a person in custody is currently serving a prison term that includes a now-invalid section 667.5(b) enhancement, becomes vested with jurisdiction to review the judgment, verify the existence of an invalid enhancement, recall the sentence, and resentence the defendant.

Section 1172.75(d)(2) directs the court to conduct a full resentencing, regardless of whether the enhancement was executed or stayed, and apply any other changes in the law.

Authority:

1172.5

People v. Rhodius (2025) 17 Cal.5th 1050, 1054, 1061–1062

Second Holding:

Once a court has determined that a defendant is entitled to resentencing, the result is vacatur of the original sentence, whereupon the trial court may impose any appropriate sentence. A full resentencing requires the court to consider all sentencing options available under the law at the time of the resentencing hearing.

This includes any ameliorative amendments to criminal statutes (unless otherwise expressed by the Legislature). The amendments to section 186.22 brought about by ABB 333 are ameliorative and apply retroactively.

Authority:

People v. Padilla (2022) 13 Cal.5th 152, 163

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

People v. Lopez (2025) 17 Cal.5th 388, 392

In re Estrada (1965) 63 Cal.2d 740, 744–745

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

Third Holding:

A trial court’s resentencing decision under section 1172.75 is reviewed for abuse of discretion. Defendants are entitled to sentencing decisions made in the exercise of the informed discretion of the sentencing court.

A court that is unaware of the scope of its discretionary powers can no more exercise that informed discretion than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant’s record.

In such circumstances, we have held that 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.

Authority:

People v. Garcia (2024) 101 Cal.App.5th 848, 856

People v. Gutierrez (2014) 58 Cal.4th 1354, 1391

Fourth Holding:

When the defendant was resentenced under section 1172.75, the court had the jurisdiction and duty to consider the ameliorative effects of AB 333 on the gang enhancements found true by the jury in the pre-AB 333 era. A review of the record from the resentnecing hearing indicates the court did not consider defendant’s section 186.22 arguments. The court’s failure to consider this issue when resentencing defendant requires remand.

Authority:

People v. Lopez (2025) 17 Cal.5th 388, 393 [Because the judgment in this case was not final for Estrada purposes, the appellant was entitled to the retroactive application of AB 333]

People v. Gutierrez (2014) 58 Cal.4th 1354, 1391

Amelioration, Duty of the court, Sentencing

Case 001098

Posted on by Gary McCurdy

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