Tag Archives: AB 333

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