Tag Archives: Gang activity

Amelioration, Elements of crime, Evidence, Jury instructions, Jury trial, Sentencing, Sixth Amendment, Standard of review, Statutory interpretation

Case 000555

Posted on by Gary McCurdy

Error and/or relief

Because we are unable to conclude beyond a reasonable doubt that the omission of an instruction on the organizational nexus element of the gang allegations did not contribute to the verdict obtained, we reverse all gang enhancements under section 186.22(b), the gang-related firearm enhancement on count 1 under section 12022.53,(d) and (e)(1), and the gang-related indeterminate sentence imposed on count 13 under section 186.22(b)(C)(4). We remand for resentencing and for further proceedings consistent with this opinion.

First Holding:

All gang-related enhancements must be reversed because the jury was not instructed on the organizational nexus element of the gang enhancement under amended Penal Code section 186.22(b).

Authority:

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

Second Holding:

AB 333 substantially narrowed the definition of a criminal street gang and made numerous amendments to the statutory language. The specific amendment relevant here concerns the definition of criminal gang activity. Under the amended language, the prosecution must now present evidence that the members of the gang collectively engaged in a pattern of criminal activity, as opposed to the former language under which individual criminal action by members was sufficient.

While the evidence necessary to establish an organizational nexus might often overlap with the evidence used to demonstrate how a predicate offense commonly benefitted the gang, the inquiries are nonetheless conceptually distinct. The phrase collective engagement calls for an inquiry not just into how the predicate offenses benefited the gang, but also how the gang works together as a gang. It calls for a showing of a connection, or nexus, between an offense committed by one or more gang members and the organization as a whole.

Authority:

PEN 186.22

People v. Clark (2024) 15 Cal.5th 743, 752, 762

People v. Cooper (2023) 14 Cal.5th 735, 738

Third Holding:

Section 186.22 now requires evidence demonstrating a nexus between the individual predicate offenses and the gang as an organized, collective enterprise. This organizational nexus requirement is satisfied by showing a connection between the predicate offenses and the organizational structure, primary activities, or common goals and principles of the gang. Defendant’s trial took place several months before the Supreme Court issued its decision in Clark and before CALCRIM No. 1401 was amended. The jury was therefore not instructed on the organizational nexus element as interpreted in Clark. The pre-Clark instruction given below was adequate.

Authority:

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

Fourth Holding:

When a jury instruction omits an element of an offense or special allegation, it impermissibly lessens the prosecution’s burden of proof and implicates the defendant’s federal due process rights. When such an instructional error occurs, we assess prejudice under the federal harmless error standard of Chapman In this context, our review under Chapman requires an examination of the record in its totality. If, at the end of that examination, we cannot conclude beyond a reasonable doubt the jury verdict would have been the same absent the error, the instructional error was not harmless. Put another way, the error was prejudicial if we determine the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element.

Authority:

People v. Cooper (2023) 14 Cal.5th 735, 742 [concluding Chapman applied in assessing prejudice where instructions omitted new element of gang enhancement that common benefit to gang must be more than reputational]

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

People v. Mil (2012) 53 Cal.4th 400, 417

Fifth Holding:

Defendant had the right to cross-examine a witness about whether he had been offered inducements to testify, expected benefits from giving his testimony, or otherwise had a motive to lie. Exposing a witness’s potential for bias and fabrication has long been recognized as one of the most important functions of cross-examination.

Authority:

EVID 780(f)

People v. Pearson (2013) 56 Cal.4th 393, 455

Delaware v. Van Arsdall (1986) 475 U.S. 673, 678–679

Sixth Holding:

The trial court is vested with broad discretion to impose reasonable limitations on defendant’s cross-examination without offending the constitution. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance. The Sixth Amendment guarantees a defendant an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.

Authority:

People v. Contreras (2013) 58 Cal.4th 123, 152

Delaware v. Van Arsdall (1986) 475 U.S. 673, 679

People v. Harris (2008) 43 Cal.4th 1269, 1292

Seventh Holding:

We review the trial court’s evidentiary rulings in this context under the deferential abuse of discretion standard. Moreover, as a general rule, the application of the ordinary rules of evidence do not impermissibly infringe on a defendant’s right to present a defense.

Authority:

People v. Rodriguez (1999) 20 Cal.4th 1, 9–10 [discretion abused only where exercised in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice]

People v. Gurule (2002) 28 Cal.4th 557, 620

Eighth Holding:

In order to establish a prejudicial abuse of discretion that violated the Sixth Amendment right to confrontation, a defendant is required to affirmatively show the trial court’s order limiting or precluding cross-examination left the jury with a significantly different impression of the witness’ credibility. Otherwise, the trial court’s exercise of its discretion in this regard does not violate the Sixth Amendment.

Authority:

People v. Pearson (2013) 56 Cal.4th 393, 455-456

Delaware v. Van Arsdall (1986) 475 U.S. 673, 680

People v. Gonzalez (2021) 12 Cal.5th 367, 406

Ninth Holding:

The record reflects the trial court failed to impose sentence on counts 14 and 15, two of the extortion counts on which the jury found defendant guilty. As defendant concedes in his reply brief, the appropriate course of action in such circumstances is a remand for the purpose of pronouncement of a judgment in accordance with the verdict. In light of the reversal of all gang enhancements, the gang-related firearm enhancement on count 1 and the gang-related indeterminate term on count 13, the superior court, on remand, shall conduct a full resentencing at which it may consider all of its sentencing choices anew.

Authority:

People v. Taylor (1971) 15 Cal.App.3d 349, 353

Amelioration, Elements of crime, Retroactivity, Sentencing

Case 000537

Posted on by Gary McCurdy

Error and/or relief

The matter is remanded to give the prosecution an opportunity to prove that the 2011 prior strike conviction alleged in the information remains a strike under the current version of section 186.22, criminal gang activity.

First Holding:

The defendant was convicted in 2011 of carrying a loaded firearm with an enhancement that the crime was committed for the benefit of a gang. A prior felony firearm conviction constitutes a strike if committed for the benefit of a criminal street gang pursuant to section 186.22(b)(1). Thus, the prior conviction was alleged as a strike, resulting in a doubled sentence.

Authority:

PEN 186.22

PEN 667(d)(1)

PEN 1192.7(c)(28)

People v. Briceno (2004) 34 Cal.4th 451, 456

Second Holding:

AB 333 (2021–2022 Reg. Sess.), 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 five-year sentence enhancement. Current law applies in determining whether they qualify as prior serious felony convictions. The appropriate remedy is to remand to permit the prosecution the opportunity to establish that the prior conviction constitutes a strike under current law.

Authority:

PEN 186.22(g

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

Amelioration, Appellate Principles, Plea bargains, Retroactivity, Sentencing, Statutory interpretation

Case 000532

Posted on by Gary McCurdy

Error and/or relief

(You might need a cuppajoe or demitasse of tea or mug o’cocoa for this Error and/or relief, because Gary has a few words to share.  If THAT doesn’t put you to sleep, then you’re safe to move on to the 11 items I’ve listed as Holdings.  I happen to be quite interested in the impact of section 1171 on the application of the Stamps remedy that involves setting aside the plea if the prosecution doesn’t like effect that application of ameliorative provisions have where the upper term had been stipulated to in the original plea bargain.  This opinion alludes to that in what I have labeled as the Eleventh Holding.)

Upon recall of the sentence under section 1172.75, the trial court should have addressed whether the changes in the gang criminal activity law effected by AB 333 applied to the defendant’s judgment. The trial court’s resentencing order is vacated. The gang conviction (sec. 186.22(a)) on count 3 is reversed and the true finding on the gang enhancement (sec. 186.22(b)(1)) on count 4 is vacated. The prosecution shall have the opportunity to establish the gang conviction and enhancement under the current version of section 186.22. The matter is remanded for further proceedings.

(Gary note: This unpublished opinion recognizes that section 1171, effective 1/1/2025, provides that a resentencing under any ameliorative provisions cannot result in an order to set aside a plea bargain in which the sentence was specified. In other words, section 1171 appears to have overturned the Stamps decision with respect to allowing the lower court or the prosecution to set aside a plea bargain if the ameliorative provisions apply to change the sentence in a way that the prosecutor or court do not like.

(This question was granted review in a published opinion in 2024 (100 Cal.App.5th 768), where it defined the issue as “Is the prosecution entitled to rescind a plea agreement when a defendant receives a full resentencing pursuant to Senate Bill No. 483 (Stats. 2021, ch. 728) and the trial court intends to reduce the sentence beyond eliminating the prior prison term enhancements?” On 12/18/2024, the Supreme Court transferred the case back to the Court of Appeal on the People’s motion for the Court of Appeal to vacate its earlier decision [which, in fact, concluded that the prosecutor could NOT rescind the agreement] and reconsider its opinion in light of the passage of AB 2483, which enacted section 1171. It also ordered the Court of Appeal’s original opinion to be depublished.

(On remand, the Court of Appeal set aside its earlier opinion and issued a new opinion in which it said, “At the hearing, Montgomery may seek relief under any provision of section 1172.75, and neither the prosecutor nor the court may rescind the plea agreement due to a resulting sentence reduction.” The original Court of Appeal opinion was published, and it provides an analysis of why a review of the legislative history of AB 483 (which enacted section 1172.75)–including uncodified portions of AB 483– compelled it to conclude that Stamps did not apply. But the subsequent opinion following the Supreme Court’s transfer relied solely on section 1171, and the opinion was not published.

(But Wait! There’s More!

(On May 18, 2026, the Supreme Court decided People v. Mitchell (2026) 19 Cal.5th 729. It was an appeal directly from the original sentencing under section 1170, and did not arise out of a ruling on the application of any other ameliorative statutes. The question was “Does Senate Bill No. 567 (Stats. 2021, ch. 731), which limits a trial court’s discretion to impose upper term sentences, apply retroactively to defendants sentenced pursuant to stipulated plea agreements?”

(The court concluded that it does apply (section 1170 as amended by SB 567), but it remanded with the Stamps remedy–that if the defendant opts to claim the benefits of section 1170 and the resulting sentence is something the DA or the court are not happy with, the plea will be set aside and the parties restored to their pre-plea bargain status.

(But it contained a very important footnote:

(“Shortly before oral argument, counsel for Mitchell filed a letter with this court identifying section 1171 as a new authority. Section 1171, effective January 1, 2025 (Stats. 2024, ch. 964, § 2) sets forth procedures governing a “ ‘postconviction proceeding,’ ” which the statute defines as “a proceeding to modify a sentence or conviction pursuant to an ameliorative statute. Ameliorative statutes include, but are not limited to, Sections 1170.18, 1172.1, 1172.6, 1172.7, and 1172.75.” (§ 1171, subd. (a).) At oral argument, counsel for Mitchell urged that this statutory definition broadly encompasses a remand to the trial court in the context of a direct appeal under the authority of section 1170(b) and Estrada. We decline to consider this argument because we have concluded that Mitchell is entitled to a remand under our established precedent in Stamps. We express no view on the applicability of section 1171 to this case or how it might affect the options described above. Mitchell may raise this issue in the Court of Appeal or the trial court in the first instance.”

(On remand, the Court of Appeal issued its new opinion–this time unpublished–in which it further remanded the case to the trial court for resolution in light of the Supreme Court decision. And in that unpublished opinion, it stated, “We now find that Mitchell’s section 1171 arguments should be resolved first by the trial court. Accordingly, we remand this action to that court for further proceedings consistent with Mitchell II [the Supreme Court decision]. On remand, Mitchell may raise her contentions regarding section 1171.”)

First Holding:

Prior to January 1, 2020, section 667.5(b) required trial courts to impose a one-year sentence enhancement for each true finding on an allegation the defendant had served a separate prior prison term and had not remained free of custody for at least five years. Section 667.5(b) was amended effective January 1, 2020, to eliminate prior prison term enhancements for all crimes except certain sexually violent offenses. Effective January 1, 2022, (renumbered) section 1172.75 made this change retroactive.

Authority:

People v. Burgess (2022) 86 Cal.App.5th 375, 379–380

Second Holding:

A defendant serving a term for a judgment that includes a now-invalid enhancement is entitled to resentencing. By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly invalid enhancements. A defendant is entitled to a full resentencing under section 1172.75 even when the original sentence was imposed pursuant to a plea agreement.

Authority:

People v. Rhodius (2025) 17 Cal.5th 1050, 1055

People v. Monroe (2022) 85 Cal.App.5th 393, 402

People v. Carter (2023) 97 Cal.App.5th 960, 972

Third Holding:

Section 1172.75(d) sets forth detailed instructions for resentencing once a sentence has been recalled. Resentencing shall result in a lesser sentence than the one originally imposed as a result of the elimination of the repealed enhancement, unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety. Resentencing pursuant to this section shall not result in a longer sentence than the one originally imposed.

Authority:

People v. Rhodius (2025) 17 Cal.5th 1050, 1055

Fourth Holding:

Effective January 1, 2022, Assembly Bill 333 [AB 333] made several changes to the criminal street gang laws.

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

Fifth Holding:

Previously, a defendant who had committed an offense to benefit the reputation of a criminal street gang, but with no other benefit, was subject to the enhancement. Amended section 186.22(g) now requires the prosecution to show that the common benefit to the gang is more than reputational. Additionally, to prove a pattern of gang activity was collectively engaged in by members of the gang 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:

PEN 186.22

People v. Sek (2022) 74 Cal.App.5th 657, 667

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

Sixth Holding:

Under Estrada, ameliorative changes to criminal statutes apply to all cases not final on appeal absent contrary legislative intent. The rule in Estrada has been applied to statutes governing penalty enhancements, as well as to statutes governing substantive offenses. The changes to the elements of a section 186.22 gang enhancement apply retroactively pursuant to Estrada. Estrada applies to statutory amendments which redefine, to the benefit of defendants, conduct subject to criminal sanctions. Assembly Bill 333 added new elements to the substantive offense and enhancements in section 186.22, and thus its substantive changes apply retroactively to all nonfinal cases under Estrada.

Authority:

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

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

People v. Nasalga (1996) 12 Cal.4th 784, 792

People v. Lopez (2025) 17 Cal.5th 388, 394–395

Seventh Holding:

The defendant’s sentence was vacated when the trial court recalled his sentence under section 1172.75. Once his sentence was vacated, the trial court had jurisdiction to resentence him to a new sentence. The defendant regained the right to appeal whatever new sentence was imposed, and his judgment became nonfinal for Estrada purposes.

Authority:

People v. Padilla (2022) 13 Cal.5th 152, 161-162, 163 [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]

People v. Arias (2020) 52 Cal.App.5th 213, 219 [recall of the defendant’s sentence effectively vacates his original sentence and commitment]

Eighth Holding:

Courts that have applied AB 333 retroactively have permitted retrial of the gang charges on remand when the defendant was convicted following a jury trial. As one court explained, the proper remedy for this type of failure of proof —where newly required elements under amended section 186.22 were never tried to the jury—is to remand and give the People an opportunity to retry the affected charges. We see no reason the prosecution should be precluded from establishing the elements of section 186.22 as amended by AB 333 because the defendant’s sentence resulted from a plea agreement.

Case law has recognized the prosecution must have an opportunity to establish an element of an offense subsequently added by statute even if the defendant was convicted pursuant to a plea agreement. When a statutory amendment adds an additional element to an offense, the prosecution must be afforded the opportunity to establish the additional element upon remand. Such a retrial is not barred by the double jeopardy clause or ex post facto principles. Fairness dictates that the prosecution be given the opportunity to establish the additional element on remand when a conviction based on a plea bargain is vacated due to a statutory amendment adding an element the prosecution previously had no reason to prove.

Authority:

People v. Clark (2024) 15 Cal.5th 743, 764

People v. Cooper (2023) 14 Cal.5th 735, 746–747

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

People v. E.H. (2022) 75 Cal.App.5th 467, 480

People v. Lopez (2020) 57 Cal.App.5th 409, 416

People v. Eagle (2016) 246 Cal.App.4th 275

People v. Figueroa (1993) 20 Cal.App.4th 65, 71–72 and fn. 2

Ninth Holding:

Requiring the parties’ compliance with changes in the law made retroactive to them does not violate the terms of the plea agreement, nor does the failure of a plea agreement to reference the possibility the law might change translate into an implied promise the defendant will be unaffected by a change in the statutory consequences attending his or her conviction. To that extent, then, the terms of the plea agreement can be affected by changes in the law. Because a plea agreement is, in essence, a contract between the defendant and the prosecutor to which the court consents to be bound, a trial court may not violate the agreement by modifying it. Under Doe, however, the terms of the plea bargain include future changes in the law. By implementing such changes, the trial court is not altering the terms of the plea bargain.

Authority:

PEN 1016.8

PEN 1192.7(b)

Doe v. Harris (2013) 57 Cal.4th 64, 73–74

People v. Stamps (2020) 9 Cal.5th 685, 701

People v. Harrell (2023) 95 Cal.App.5th 161, 168

Tenth Holding:

Pursuant to Doe, the defendant’s plea agreement is deemed to incorporate the Legislature’s subsequent enactment of AB 333, and we agree with the parties that AB 333 applies retroactively to the defendant’s case. Requiring the parties’ compliance with changes to section 186.22 made retroactive to the defendant does not violate the terms of the plea agreement. For these reasons, the prosecution must be given an opportunity on remand to establish the elements of the substantive gang offense charged on count 3 and the gang enhancement on count 4 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 333, the trial court must conduct a full resentencing.

Authority:

Doe v. Harris (2013) 57 Cal.4th 64, 73

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

People v. Valenzuela (2019) 7 Cal.5th 415, 425

Eleventh Holding:

As a general rule, we do not issue advisory opinions indicating what the law would be upon a hypothetical state of facts. We note though for the benefit of the parties and the trial court that the defendant’s resentencing under section 1172.75 remains subject to section 1171, which provides (effective 1/1/2025) that any changes to a sentence shall not be a basis for a prosecutor or court to rescind a plea agreement. Section 1171 was further amended effective 1/1/2026 to provide that this section does not diminish the ability of the prosecution to oppose relief requested in a postconviction proceeding. On remand, the trial court must comply with the current version of section 1171 when resentencing the defendant.

Authority:

PEN 1171(c)(3) and (e)

People v. Slayton (2001) 26 Cal.4th 1076, 1084

Amelioration, Elements of crime, Retroactivity, Sentencing

Case 000520

Posted on by Gary McCurdy

Error and/or relief

On resentencing, the defendant was entitled to have the trial court examine whether recent amendments under AB 333 to gang criminal activity statutes affected his conviction for carrying a loaded firearm in a public place by an active participant in a criminal street gang. Remanded.

First Holding:

Resentencing under section 1172.75 for a person serving a sentence containing a now-invalid prior prison term enhancement requires a full resentencing, not merely that the trial court strike the newly invalid enhancements. When the trial court recalled defendant’s sentence under section 1172.75, it was effectively vacated. Once defendant’s sentence was vacated, the trial court had jurisdiction to resentence him to a new sentence. Defendant, therefore, regained the right to appeal whatever new sentence was imposed, and his judgment became nonfinal for purposes of Estrada. Under Estrada, ameliorative amendments to criminal statutes apply to all cases not final on appeal absent contrary legislative intent.

Authority:

People v. Monroe (2022) 85 Cal.App.5th 393, 402

People v. Arias (2020) 52 Cal.App.5th 213, 219 [recall of [the defendant’s] sentence effectively vacated his original sentence and commitment]

People v. Padilla (2022) 13 Cal.5th 152, 163, 177 [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]

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

Second Holding:

Effective January 1, 2022,AB 333 made several changes to the criminal street gang laws.

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.

And finally, AB 333 omitted certain nonviolent offenses from the list of offenses that could make up a gang’s primary activities or form the requisite pattern of criminal gang activity, reducing the list of offenses from 33 to 26. The changes to the elements of a section 186.22 gang enhancement apply retroactively pursuant to Estrada.

Authority:

PEN 186.22

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

People v. Clark (2024) 15 Cal.5th 743, 753

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

Third Holding:

In determining whether a judgment is final for Estrada purposes, the finality inquiry focuses on whether the criminal prosecution or proceeding as a whole is complete, i.e., when the last word of the judicial department with regard to a particular case or controversy has issued.

For Estrada purposes, the judgment means the judgment of conviction and the sentence. A criminal case is only reduced to a singular, final judgment following the conclusion of the entire criminal case or prosecution. Thus, 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. It is presumed ameliorative changes to the law extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not. Estrada applies to statutory amendments which redefine, to the benefit of defendants, conduct subject to criminal sanctions. AB 333 added new elements to the substantive offense and enhancements in the gang statute, and its substantive changes apply retroactively to all nonfinal cases under Estrada.

Authority:

People v. Lopez (2025) 17 Cal.5th 388, 392-395

Fourth Holding:

Because AB 333 applies retroactively to all nonfinal judgments under Estrada, and defendant’s judgment is nonfinal by virtue of section 1172.75, defendant was entitled to the ameliorative effects of AB 333 at resentencing. The jury’s findings on the gang allegations made more than a decade prior to the amendments to section 186.22 and without the benefit of jury instructions on the elements added by AB 333. Based on this record, we cannot conclude that error was harmless. Therefore, we remand for the trial court to determine, in the first instance, any effect the amendments have on defendant’s conviction on count 5 of an active participant in a criminal street gang carrying a loaded firearm in a public place.

Authority:

People v. Lopez (2025) 17 Cal.5th 388, 396-400

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

Amelioration, Retroactivity, Sentencing

Case: 000408

Posted on by Gary McCurdy

Error and/or relief

At the hearing under section 1172.75 for recall of sentence and resentencing, the trial court should have considered the impact of AB 333 on the prior serious felony and strike convictions. We agree with the parties that AB 333 applies retroactively to the substantive gang offense conviction and all the gang-related allegations. We therefore vacate the resentencing order, reverse the substantive gang offense conviction, and vacate the findings on the gang enhancement, prior serious felony, and strike prior. On remand, the prosecution may retry all the gang-related allegations under the new law.

First Holding:

Prior to January 1, 2020, section 667.5(b) required trial courts to impose a one-year sentence enhancement for each true finding on an allegation the defendant had served a separate prior prison term and had not remained free of custody for at least five years. Section 667.5(b) was amended effective January 1, 2020, to eliminate prior prison term enhancements for all crimes except certain sexually violent offenses. Effective January 1, 2022, SB 483 (2021−2022 Reg. Sess.) added what was later renumbered as section 1172.75 to make this change retroactive. A defendant serving a term for a judgment that includes a now-invalid enhancement is entitled to resentencing. By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly invalid’ enhancements. Section 1172.75(d) sets forth detailed instructions for resentencing once a sentence has been recalled.

Authority:

PEN 667.5

PEN 1172.75

People v. Burgess (2022) 86 Cal.App.5th 375, 379–380

People v. Rhodius (2025) 17 Cal.5th 1050, 1055

People v. Monroe (2022) 85 Cal.App.5th 393, 402

Second Holding:

In 1988, the Legislature enacted section 186.20 et seq. to eradicate criminal activity by street gangs. Among other things, the Act created the substantive offense of active participation in a criminal street gang and a sentencing enhancement for a felony committed for the benefit of, at the direction of, or in association with a criminal street gang.

Effective January 1, 2022, AB 333 made several changes to the criminal street gang laws. 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.

Also, AB 333 omitted certain nonviolent offenses from the list of offenses that could make up a gang’s primary activities or form the requisite pattern of criminal gang activity, reducing the list of offenses from 33 to 26.

Authority:

AB 333

PEN 186.22

People v. Valencia (2021) 11 Cal.5th 818, 828-829

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

People v. Clark (2024) 15 Cal.5th 743, 753

Third Holding:

The recall of the defendant’s sentence under section 1172.75 rendered his judgment no longer final, and the defendant was entitled to the presumption of retroactivity of ameliorative legislation under Estrada. The rule in Estrada has been applied to statutes governing penalty enhancements, as well as to statutes governing substantive offenses.

Authority:

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

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

People v. Nasalga (1996) 12 Cal.4th 784, 792

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

People v. Mitchell (2023) 97 Cal.App.5th 1127, 1137–1142 [AB 333 applied retroactively to the defendant’s substantive gang offense conviction and enhancement]

Fourth Holding:

For Estrada purposes, the judgment means the judgment of conviction and the sentence. A criminal case is only reduced to a singular, final judgment following the conclusion of the entire criminal case or prosecution. Thus, 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. It was presumed ameliorative changes to the law extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not.

Estrada applies to statutory amendments which redefine, to the benefit of defendants, conduct subject to criminal sanctions. Here, the defendant’s sentence was vacated when the trial court recalled his sentence under section 1172.75. Once his sentence was vacated, the trial court had jurisdiction to resentence him to a new sentence. Reversal is required unless the error is harmless pursuant to Chapman.

Authority:

People v. Lopez (2025) 17 Cal.5th 388, 392-395

People v. Arias (2020) 52 Cal.App.5th 213, 219 [recall of [the defendant’s sentence effectively vacates his original sentence and commitment]

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

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

Fifth Holding:

As the judgment is no longer final, it is also necessary for the trial court to reassess whether the prior serious felony and strike conviction were based on gang activity, and whether the conduct then would have been considered unlawful gang activity under AB 333. On remand, the prosecution may elect to retry whether the prior conviction qualifies as a serious felony applying the elements of section 186.22 as amended by AB 333.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 582-583, 607-608

People v. Farias (2023) 92 Cal.App.5th 619, 650–653