Error and/or relief
The defendants are entitled to retrial on the counts for active participation in a criminal street gang in light of AB 333’s retroactive changes to section 186.22. It was error to order Defendant’s 2 and 3 to be jointly responsible for the funeral expenses of the victim killed by Defendant 1. In addition there were several errors in Defendant 1’s consolidated abstract of judgment that need correction.
First Holding:
During the appeal, the Legislature amended section 186.22’s defendant of a criminal street gang. 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; it requires that the pattern of criminal activity foundational to a criminal street gang have been collectively engaged in by members of the gang; it also imposed further requirements limiting the offenses on which a pattern of criminal gang activity could be predicated; and it required that for an offense to have commonly benefitted a street gang, any common benefit be more than reputational.
Authority:
AB 333
PEN 186.22
People v. Tran (2022) 13 Cal.5th 1169, 1206
Second Holding:
The ameliorative amendments apply retroactively to all cases not yet final as of its effective date.
Authority:
People v. Tran (2022) 13 Cal.5th 1169, 1206-1207
In re Estrada (1965) 63 Cal.2d 740
Third Holding:
The trial court instructed the jury on the then-applicable definition of a criminal street gang, omitting several of the requirements that have now been imposed by AB 333. The jury instruction thus relieved the prosecution of its burden to prove all elements of the crime as now defined.
Authority:
People v. Cooper (2023) 14 Cal.5th 735, 742
Fourth Holding:
We apply the harmless beyond a reasonable doubt standard articulated in Chapman. When a jury instruction has omitted an element of an offense, our task is to determine whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element. The question is not whether there is evidence in the record that would support a jury finding of the missing element, but whether we can conclude beyond a reasonable doubt that the jury verdict would have been the same had the jury been instructed on the missing element.
Authority:
Chapman v. California (1967) 386 U.S. 18
People v. Cooper (2023) 14 Cal.5th 735, 742-743
People v. Lamb (2024) 16 Cal.5th 400, 449
Fifth Holding:
All three defendants will be entitled to a full resentencing upon remand, independent of the prosecution’s election whether to pursue the gang charge or enhancements on remand. The full resentencing rule allows a court to revisit all prior sentencing decisions when resentencing a defendant.
Authority:
People v. Buycks (2018) 5 Cal.5th 857, 893
People v. Valenzuela (2019) 7 Cal.5th 415, 424–425
Sixth Holding:
We observe, however, that neither Defendant 2 nor Defendant 3 can be ordered to pay restitution for any losses attributable to Defendant 1’s murder of the deceased. Neither of them were charged with any offense involving the deceased, and nothing in the evidence before the jury or the court at sentencing implicated them in his murder. It was accordingly error to make them jointly and severally liable for the deceased’s funeral expenses.
Authority:
PEN 1202.4(f) [authorizing restitution where a victim has suffered economic loss as a result of the defendant’s conduct]
People v. Scott (1994) 9 Cal.4th 331, 354 [unauthorized sentence cannot be lawfully imposed]
Seventh Holding:
Defendant 1’s consolidated abstract of judgment requires correction. First, in case number A, the abstract of judgment erroneously lists as stayed count 2’s multiple-murder special circumstance when the trial court vacated this finding. In case number B, Defendant 1’s conviction for assault with force likely to produce great bodily injury in violation of section 245(a)(4) is described on the abstract as “Asslt w/deadly wpn/force likely to prod GBI.” We agree that an amended abstract should be reworded to avoid confusion between assault with a deadly weapon (sec. 245(a)(1), (2), or (3))—a serious felony under section 1192.7—and assault by force likely to produce great bodily injury (sec. 245(a)(4)).
(GARY NOTE–the appellate court did not cite case authority for the correction of the abstract, but it is abundantly clear the court has that authority. I have set forth some below)
Authority:
PEN 1192.7(c) [listing serious felonies]
People v. Delgado (2008) 43 Cal.4th 1059, 1065
[on correction of abstracts]People v. Mitchell (2001) 26 Cal.4th 181, 185
People v. Delgado (2008) 43 Cal.4th 1059, 1070
People v. Leon (2020) 8 Cal.5th 831, 855
In re Black (1967) 66 Cal.2d 881, 890
People v. Zackery (2007) 147 Cal.App.4th 380, 385
People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2