Tag Archives: Gang activity

Amelioration, Retroactivity, Sentencing, Sufficiency of and substantial evidence

Case: 000357

Posted on by Gary McCurdy

Error and/or relief

On remand from the Supreme Court, the prior opinion is amended to vacate the strike finding and prior serious felony enhancement in light of AB 333, enacted after he was sentenced. As held in the original opinion, three of the four counts of felon in possession of a firearm must be vacated, because the same gun was possessed for all four underlying robberies.

First Holding:

The evidence is insufficient to support three of the four charged counts of being a felon in possession of a firearm because he possessed the same gun continuously and can therefore be convicted of only one count. As the Attorney General concedes, the evidence shows a single continuing offense without the interruption in possession necessary for separate crimes. (Indeed, to help prove identity of the perpetrator, the prosecutor relied on the fact that the same gun was used in all the offenses.) We will therefore reverse the judgment and order all but one firearm possession conviction vacated.

Authority:

People v. Mason (2014) 232 Cal.App.4th 355, 365

Second Holding:

After defendant was sentenced, section 1170(b) was amended to create a presumption in favor of the low term under certain circumstances, including where the defendant was under age 26 at the time of the offense and youth was a contributing factor in the offense. Because that new provision is ameliorative, it applies retroactively to this nonfinal judgment.

Authority:

PEN 1170(b)(6)

People v. Flores (2022) 73 Cal.App.5th 1032, 1039

Third Holding:

The Attorney General does not dispute defendant was under 26 at the time of the offenses but argues resentencing is not required because there is no evidence youth was a contributing factor and the aggravating factors found by the court outweigh the mitigating factors such that the court would not have imposed the low term in any event. But when a court has imposed a sentence while unaware of the extent of its discretion—in this case because the legislation was not yet in effect—resentencing is required unless the record clearly indicates the court would have imposed the same sentence under the new standard. We are not persuaded that a lack of evidence showing youth contributed to the offense obviates the need for remand, as before the enactment of the new law, counsel may have had less incentive to present mitigation on the point, and defendant should now be allowed the opportunity to do so.

Authority:

People v. Gerson (2022) 80 Cal.App.5th 1067, 1096

Fourth Holding:

Defendant’s sentence was increased based on the finding that he was convicted in 2012 of a serious felony. The prior conviction is for assault under former Penal Code section 245(a)(1), which qualified as a prior serious felony because it was found to have been committed to benefit a criminal street gang under the version of Penal Code section 186.22 then in effect. The strike finding and prior serious felony enhancement must be vacated because legislation enacted after his sentencing (AB No. 333) added several elements to the gang enhancement statute and, if the current standard is applied to his 2012 conviction, the evidence in the record is insufficient to prove the new elements. 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. We will therefore remand for possible retrial as contemplated in Fletcher, or for resentencing without an increase to defendant’s sentence based on a prior serious felony conviction.

Authority:

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

Fifth Holding:

Effective January 1, 2020, Penal Code section 667.5(b) was amended to limit prior prison term enhancements (for nonviolent offenses not listed in 667.5(c)) to sentences that were served for sexually violent offenses as defined in Welfare and Institutions Code section 6600(b). The amendment applies retroactively and requires the prior prison term enhancements to be vacated because they were not based on sexually violent offenses.

Authority:

SB 136

PEN 667.5

Sixth Holding:

The trial court imposed a concurrent prison term for possessing ammunition, which should have been stayed under section 654 because the ammunition offense is based on the same conduct as unlawfully possessing a firearm, for which the court also imposed a prison term. When resentencing defendant, the trial court shall apply section 654 to stay any prison terms arising from conduct for which punishment is otherwise imposed.

[GARY NOTE: Section 654 now gives the court the discretion to impose punishment for ANY ONE of multiple counts (and stay the punishment on the other(s)) where section 654 applies, and does NOT require that it impose the sentence on the count bearing the greater sentence.]

Authority:

PEN 654

Sixth Holding:

On resentencing, the defendant will be entitled to consideration under the amendments to section 1385 under SB 81 to to limit sentencing enhancements by requiring that great weight be given to evidence of certain mitigating circumstances. By its terms, amended Penal Code section 1385 applies to all sentencings after January 1, 2022, which will include defendant’s resentencing.

Authority:

PEN 1385

Amelioration, Elements of crime, Fifth Amendment, Sentencing, Standard of review

Case: 000347

Posted on by Gary McCurdy

Error and/or relief

We reverse and vacate the true findings on the gang murder special circumstances for counts 1 and 4. We also reverse and vacate the true findings on the gang enhancements for counts 1, 2, and 4. We remand the matter to the trial court to allow the District Attorney to retry the gang murder special circumstance and the gang enhancement for count 4 under the current version of the laws as amended by AB No. 333. Principles of double jeopardy preclude retrial as to the gang murder special circumstance for count 1 and the gang enhancement for counts 1 and 2.

First Holding:

Effective January 1, 2022, AB 333 amended section 186.22. The amendment narrowed the definition of a criminal street gang as used for the gang enhancement in section 186.22(b) and the gang murder special circumstance in section 190.2(a)(22). It changed the definition to an ongoing, organized association or group of three or more persons whose members collectively engage in, or have engaged in, a pattern of criminal gang activity, rather than individually or collectively engage in a pattern of criminal gang activity under the former version of section 186.22. A pattern of criminal activity under former section 186.22(e) required two or more predicate offenses committed on separate occasions or by evidence of such offenses committed by two or more persons on the same occasion.

The amendment changed the requirements of a pattern of criminal activity in four ways. First, a pattern of criminal activity now requires the predicate offenses to be separate from the currently charged offense or offenses. Second, the last predicate offense must have occurred within three years of the commission of the currently charged offense. Third, it requires that the predicate offenses were committed by two or more gang members, as opposed to persons. Fourth, the predicate offenses must have commonly benefited a criminal street gang. AB 333 narrowed the common benefit for the gang by the commission of an offense to be more than reputational. The prosecution must show how the predicate offenses provided an actual common benefit to the gang, and that they did not merely enhance the reputation of its individual members.

Authority:

PEN 186.22(g)

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

People v. Hin (2025) 17 Cal.5th 401, 460-461

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

People v. Lamb (2024) 16 Cal.5th 400, 450

Second Holding:

AB 333 applies retroactively to nonfinal judgments as we have here. The instructions read to the defendant’s jury preceded the effective date of AB 333 and his appeal was pending on that effective date. The new requirements in section 186.22 apply retroactively to his case on appeal.

Authority:

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

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

People v. Cooper (2023) 14 Cal.5th 735, 738-739

Third Holding:

We must reverse the gang enhancements and the gang murder special circumstance if any rational fact finder could have come to the opposite conclusion regarding the new requirements of AB 333.

Authority:

People v. Hin (2025) 17 Cal.5th 401, 462

People v. Cooper (2023) 14 Cal.5th 735, 739

People v. Lamb (2024) 16 Cal.5th 400, 453

Fourth Holding:

The double jeopardy clause of the federal constitution’s Fifth Amendment provides that no person may be subject for the same offense to be twice put in jeopardy of life or limb. The state constitution provides the same protection. A defendant may not be tried a second time for the same offense if the conviction is set aside for insufficiency of the evidence. Our conclusion that the gang special circumstance and the gang allegation were unsupported by sufficient evidence bars retrial.

Authority:

Cal. Const., art. I, sec. 15

People v. Hin (2025) 17 Cal.5th 401, 454-455, 468

Amelioration, Appellate Principles, Retroactivity, Sentencing

Case: 000343

Posted on by Gary McCurdy

Error and/or relief

The true finding on the defendant’s prior felony strike conviction must be reversed in light of changes to the gang criminal activity statute by AB 333. Defendant’s sentence, as well as the true finding that defendant’s prior conviction qualifies as prior serious felony conviction under the Three Strikes law, is vacated. The matter is remanded to the trial court for any retrial of that allegation, applying the elements of section 186.22 as amended by AB 333 and for resentencing.

First Holding:

In 2021, the Legislature amended section 186.22 with the passage of AB 333. 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 is ameliorative legislation that applies to nonfinal judgments under the rule of Estrada.

Authority:

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

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

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

Second Holding:

In Fletcher, the Supreme Court addressed the question of whether AB 333 applies to a sentencing court’s determination of whether a defendant’s conviction under the prior version of section 186.22 qualifies as a prior serious felony conviction for purposes of prior serious felony enhancements. It concluded that where a defendant has suffered a prior conviction under the earlier 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. It also held that it applies retroactively to cases in which the judgment is not yet final.

Authority:

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

Third Holding:

That the defendant admitted the prior conviction does not forfeit the issue. Defendant’s admission cannot be construed as knowingly and/or intelligently made because it was prior to the decision in Fletcher. The true finding on defendant’s strike prior should be reversed, and the matter remanded to the trial court for any retrial of the strike allegation, applying the elements of section 186.22 as amended by AB 333. Notwithstanding the admission of the prior conviction in the trial court, we have discretion to reach the merits.

Authority:

People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6 [an appellate court is generally not prohibited from reaching a question that has not been preserved for review by a party]

People v. Monroe (2022) 85 Cal.App.5th 393, 400 [an appellate court may reach the merits of a forfeited issue in order to forestall a cognizable ineffective assistance of counsel claim]

Amelioration, Elements of crime, Sentencing, Sufficiency of and substantial evidence

Case: 000339

Posted on by Gary McCurdy

Error and/or relief

Because of insufficient evidence of the predicate offense, we reverse the juvenile court’s true finding on the gang enhancement as to count 1 pursuant to section 186.22(b)(1)(A) and remand the matter for resentencing. The prosecution did not present any evidence of predicate offenses showing the alleged gang members individually or collectively engaged in a pattern of criminal gang activity. Thus, it did not prove that the robbery was committed for the benefit of a criminal street gang.

First Holding:

Pursuant to section 186.22(b)(1)(A), the juvenile court may impose a sentencing enhancement for a felony committed for the benefit of, at the direction of, or in association with any criminal street gang.

Authority:

PEN 186.22(b)(1)(A)

Second Holding:

A gang is an ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more enumerated offenses, having a common name or common identifying sign or symbol, and whose members individually or collectively engage in, or have engaged in, a pattern of criminal gang activity.

Authority:

PEN 186.22(f)

Third Holding:

A pattern of criminal gang activity is the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of, two or more enumerated offenses, provided at least one of these offenses occurred after the effective date of [the criminal gang activity chapter], and the last of those offenses occurred within three years of the prior offense and within three years of the date the current offense is alleged to have been committed, the offenses were committed on separate occasions or by two or more members, the offense commonly benefited a criminal street gang, and the common benefit from the offenses is more than reputational.

Authority:

PEN 186.22(e)(1)

Fourth Holding:

The offenses comprising a pattern of criminal gang activity are referred to as predicate offenses. The term ‘commission’ includes the broader statutory inclusion of the ‘attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction’ of a predicate offense.

Authority:

People v. Valencia (2021) 11 Cal.5th 818, 82

Fifth Holding:

Section 186.22(e) does not state that a predicate offense must be committed by a gang member. However, that requirement derives from the definition of a criminal street gang, which includes proof that the gang’s members individually or collectively engage in, or have engaged in, a pattern of criminal gang activity. It follows, then, that the proof of a predicate offense must establish that a member of a defendant’s alleged gang was involved in its commission. Taken together the statutory scheme requires proof that gang members committed at least two predicate offenses within the statutory timeframe. Such proof will generally require evidence of who committed the crime and when they did so, as well as evidence of their gang membership and the nature of the crimes.

Authority:

People v. Valencia (2021) 11 Cal.5th 818, 829–830

Sixth Holding:

When assessing a claim of sufficiency of evidence of a gang enhancement under section 186.22, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. While substantial evidence may consist of inferences, such inferences must be a product of logic and reason and must rest on the evidence’; inferences that are the result of mere speculation or conjecture cannot support a finding.

Authority:

People v. Shively (2025) 111 Cal.App.5th 460, 468

Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633

Amelioration, Elements of crime, Retroactivity, Sentencing

Case: 000323

Posted on by Gary McCurdy

Error and/or relief

Remanded for retrial of the strike prior allegation. The amended version of section 186.22 must be applied in determining whether prior convictions with a gang enhancement qualify as serious felonies under the Three Strikes law.

First Holding:

In 2021, the Legislature passed AB 333, which amended section 186.22. This legislation narrowed the definition of a criminal street gang, the definition of a pattern of criminal activity, and what it means for an offense to have commonly benefitted a street gang. Moreover, because these changes are ameliorative in nature, they apply to nonfinal judgments on appeal.

Authority:

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

Second Holding:

In Fletcher, relying in part on the present conditional phrasing of section 1192.7(c)(28)—which applies to any felony offense that would also constitute a felony violation of section 186.22–the Supreme Court held that current law (i.e., AB 333) applies to the determination of whether a prior conviction qualifies as a prior serious felony conviction under section 1192.7(c)(28). The Supreme Court also concluded that there was insufficient evidence in that case that the defendants’ convictions were obtained under AB 333’s more stringent requirements because the only evidence presented were the abstracts of judgment, which merely showed the offenses and gang enhancements. Accordingly, the Supreme Court vacated the strike prior findings and directed the Court of Appeal to remand with instructions to retry the gang allegations under AB 333’s amendments to section 186.22.

Authority:

PEN 1192.7(c)(28)

People v. Fletcher (2025) 18 Cal.5th 576, 603-604