People v. Campa CA2/3 ( 2023 )

Filed 7/18/23 P. v. Campa CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule 8.1115(a). This
opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B317813
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. NA101408
v.
MARIO CAMPA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, James D. Otto, Judge. Reversed and remanded
with directions.
Christine M. Aros, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Scott A. Taryle and Viet H. Nguyen,
Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
A jury convicted defendant Mario Campa of four counts of
attempted willful, premeditated, and deliberate murder, with
true findings as to each count that Campa committed the crime
for the benefit of a gang and that a principal used a firearm
causing great bodily injury. The court sentenced Campa to 80
years to life in prison. After we vacated Campa’s sentence and
remanded the matter for resentencing, the court reduced
Campa’s sentence to 30 years to life in prison.
After the court resentenced Campa, the California
Legislature enacted Assembly Bill No. 333 (A.B. 333), which
made substantive and procedural changes to the laws governing
gang-related offenses. Campa contends his attempted murder
convictions must be overturned and a new trial ordered because
Penal Code1 section 1109, as enacted by A.B. 333, allows him to
request a bifurcated trial on the gang enhancements and he was
prejudiced by a unitary trial. In the alternative, Campa contends
that A.B. 333’s amendments to section 186.22 require reversal of
the true findings for the gang enhancements. We conclude that
Campa is entitled to relief under A.B. 333’s amendments to
section 186.22, but he is not entitled to relief under section 1109.
We therefore reverse the true findings for the gang
enhancements, vacate Campa’s sentence, and remand the matter
for further proceedings consistent with this opinion.
1 All undesignated statutory references are to the Penal Code.
2
FACTUAL BACKGROUND2
1. The Shootings
Kejion Robinson and Larry Hood, two Black men, were
walking down 14th Street in Long Beach. As they walked past an
alleyway, someone started shooting at them from inside a late-
1990s green Toyota Camry. Robinson was struck by two bullets—
one hitting his thigh and another hitting his foot—and Hood was
struck by one bullet in the leg. Robinson saw the face of the
person sitting in the front passenger seat before the Camry sped
off.
A little more than an hour after Robinson and Hood were
shot, Bryon Rodriguez and Edwin Alonzo were standing in front
of a liquor store on Daisy Avenue in Long Beach. A man who was
standing about 10 to 15 feet away started shooting at them.
Rodriguez was struck by four bullets—two in the chest, one in the
hand, and one in the arm—and Alonzo was struck by three
bullets. According to Rodriguez, the shooter was wearing what
looked like a hooded jacket. Rodriguez didn’t see the shooter’s
face, however.
2. The Investigation
Juan Zazueta (uncle) testified that Campa is his wife’s
nephew. The uncle’s son—i.e., Campa’s cousin—was a gang
member. The uncle’s son and Campa used to hang out.
Campa’s uncle purchased a late 1990’s green Toyota Camry
the day before the shootings. Around 1:00 p.m. on the day of the
shootings, the uncle left the car and its keys at his house while he
2The facts are taken from our prior nonpublished opinion in People v.
Campa (Apr. 22, 2021, B289623) (Campa I).
3
went to church. When he returned from church several hours
later, the uncle noticed the car was parked in a different position
from when he left for church and that one of its hubcaps was
missing.
License plate recognition technology used by the Long
Beach Police Department showed that Campa’s uncle’s Camry
was in the vicinity of the 14th Street shooting around the time
Robinson and Hood were shot and near the Daisy Avenue liquor
store around the time Rodriguez and Alonzo were shot. Footage
obtained from a residence near the liquor store also showed the
same car driving back and forth about four times on Daisy
Avenue about an hour and a half before the liquor store shooting.
Several hours after the shootings, Campa’s uncle was stopped
and arrested while driving the Camry.
The police recovered .45-caliber bullet casings from the
scene of each shooting. A criminologist later determined that both
sets of casings were fired from the same gun.
In February 2015, while in custody on unrelated charges,
Campa was placed in a jail cell with an undercover informant. At
the time, Campa had yet to be identified as a suspect in the 14th
Street and the Daisy Avenue liquor store shootings. Campa’s
conversation with the informant was recorded and played for the
jury.
Campa told the informant he was a member of the East
Side Longo gang, with the moniker “Baby Evil.” After denying
involvement in the unrelated charges, Campa told the informant
that his cousin had recently been arrested in connection with the
14th Street and the Daisy Avenue liquor store shootings. Campa
also told the informant that his uncle had been arrested while
driving the Camry used in the shootings. Campa admitted he was
4
riding shotgun in his uncle’s car while his cousin drove and three
other people sat in the back passenger compartment. Using .45-
caliber bullets, they shot at two “Tintos”3 and “two fools from
Barrio Pobre.”4
When the informant asked where the two Black men were
from, Campa responded, “I don’t even know where the fuck they
was from ... .” The informant followed up, “Just see black and
fucking start shooting,” to which Campa replied, “Yeah, yeah.”
Campa later told the informant, “That’s the thing about me. I’ll
be in the car with a burner5 and all that. I[’m] ready to hop out on
somebody like man I see somebody I’m hopping out right now.”
About a week after Campa spoke to the informant, one of
the investigators showed Robinson a six-pack photographic
lineup containing Campa’s photograph.6 Robinson identified
Campa as the shooter because his face was “ ‘unforgettable.’ ”
The police recovered security footage from the Daisy
Avenue liquor store where the second shooting occurred. The
footage showed a man wearing white shoes and a grey hooded
sweatshirt with an emblem of the State of California across the
front. As he walked toward the front of the liquor store, the man
in the sweatshirt started shooting at Rodriguez and Alonzo. The
3Two of the People’s investigators testified that “Tintos” is a
derogatory term for Black men used by Hispanic gang members in
Long Beach.
4 Barrio Pobre is a Long Beach gang.
5 One of the investigators testified that a “burner” is slang for a gun.
6Shortly after the shooting, the investigator showed Robinson a six-
pack photographic lineup that did not include Campa’s photograph.
Robinson did not identify anyone in that lineup.
5
shooter’s face wasn’t identifiable from the security footage. The
police later recovered a pair of white shoes and a grey hooded
sweatshirt with an emblem of California across the front inside
Campa’s home.
One of the investigators spoke to a witness near the liquor
store shooting. The witness told the investigator that, shortly
before the shooting, someone in the green Camry asked two
women who were walking down the street, “Where the Bean Pies
at?” According to the investigator, “ ‘Bean Pie’ ” is a derogatory
term for members of the Barrio Pobre gang in Long Beach.
3. Gang Evidence
The People’s gang expert testified that Campa is a member
of East Side Longo, a Long Beach gang that claims territory on
the east side of the 710 freeway. Campa has several tattoos of
symbols associated with the gang. East Side Longo is the largest
gang in Long Beach, with about 900 members.
The gang expert has spent the “bulk” of his 16-year career
in law enforcement investigating and studying gang activity. He’s
had conversations with numerous gang members in Long Beach,
the vast majority of which were consensual and non-hostile
interactions.
The expert became familiar with East Side Longo during
his training at the academy for the Long Beach Police
Department. Since then, the expert has interviewed East Side
Longo members as well as more senior officers who have “worked
the gang.” Throughout his career, the expert has investigated
crimes committed by, and testified in trials involving, East Side
Longo members. Specifically, the expert has testified in 25 to 50
cases “specific to Eastside Longo.” The expert stays current with
the gang’s activities, rivalries, and territorial disputes by talking
6
with members of the gang, members of rival gangs, other law
enforcement officers, and members of the community. According
to the expert, East Side Longo’s primary criminal activities
include: narcotics sales; violent assaults with firearms and other
deadly weapons; illegal possession of firearms; attempted
murder; and murder.
East Side Longo’s rival gangs include Barrio Pobre and
Barrio Small Town, who each claim territory that is also claimed
by East Side Longo. East Side Longo is also rivals with all the
Black gangs in the city, and East Side Longo members will often
attack Black men, regardless of whether they’re in a gang,
without provocation.
The 14th Street and the Daisy Avenue liquor store
shootings occurred in East Side Longo territory. The Daisy
Avenue liquor store was in an area over which East Side Longo,
Barrio Pobre, and Barrio Small Town dispute ownership.
According to one of the investigators, a member of Barrio Small
Town had put up graffiti of the gang’s tag near the liquor store,
which had been crossed out by a member of another gang.
The prosecutor posed a hypothetical based on the facts of
this case. Based on that hypothetical, the gang expert opined that
the shootings were committed at the direction of, and to promote,
East Side Longo. Specifically, the shootings benefitted the gang
by instilling fear in the community, which in turn would help the
gang maintain its territory.
The People also introduced the certified conviction records
of two East Side Longo members. One of the gang’s members was
convicted of committing a murder in East Side Longo territory.
The other member was convicted of murdering a member of
7
Barrio Pobre in East Side Longo territory. According to the gang
expert, both crimes benefitted East Side Longo.
PROCEDURAL BACKGROUND
The People charged Campa with four counts of attempted
willful, premeditated, and deliberate murder (§§ 664/187, subd.
(a)). As to each count, the People alleged Campa committed the
crime for the benefit of, at the direction of, and in association
with a criminal street gang (§ 186.22, subd. (b)(1)(C)). The People
also alleged gang-related firearm enhancements as to each count
(§ 12022.53, subds. (b), (c), (d), & (e)).
The jury found Campa guilty of all four counts of attempted
murder. As to each count, the jury found the attempted murders
were willful, deliberate, and premeditated and that a principal
personally and intentionally discharged a firearm causing great
bodily injury (§ 12022.53, subds. (d) & (e)(1)). The jury also found
true the gang enhancement allegation as to each count.
The court sentenced Campa to a total of 80 years to life in
prison. As to count 1, the court imposed a total term of 40 years
to life, consisting of 15 years to life for attempted murder
committed for the benefit of a gang under section 186.22,
subdivision (b)(5), plus 25 years to life for the firearm
enhancement under section 12022.53, subdivisions (d) and (e)(1).
As to count 2, the court imposed the same total term of 40 years
to life, to run consecutively to Campa’s sentence for count 1. For
each of counts 3 and 4, the court imposed a term of 40 years to
life to run concurrently with Campa’s sentence for counts 1 and 2.
As to each count the court also imposed but stayed a 10-year term
under section 186.22, subdivision (b)(1)(C).
In Campa I, we affirmed Campa’s convictions but vacated
his sentence because the court imposed an unauthorized
8
sentence. Specifically, we concluded the court erred when it
imposed both the 25-years-to-life gun enhancement under section
12022.53, subdivisions (d) and (e)(1) and the 15-years-to-life gang
enhancement under section 186.22, subdivision (b)(5), even
though the jury never found Campa personally used or
discharged a firearm. We remanded the matter for resentencing.
The court resentenced Campa in December 2021. As to
each count, the court stayed the gun enhancement and imposed
the 15-years-to-life gang enhancement. The court sentenced
Campa to a reduced term of 30-years to life, consisting of
consecutive 15-years-to-life terms for counts 1 and 2 and
concurrent 15-years-to-life terms for counts 3 and 4.
On January 1, 2022, A.B. 333 went into effect. The
legislation added section 1109, which requires the trial court to
bifurcate the trial on gang enhancements from the trial on the
substantive charges if the defendant makes such a request. (§
1109, subds. (a) & (b); Stats. 2021, ch. 699, § 5.) A.B. 333 also
amended section 186.22’s requirements for proving gang
enhancements. (See People v. Renteria (2022) 13 Cal.5th 951,
961.)
Campa appeals.
DISCUSSION
Campa contends his attempted murder convictions and the
true findings for the gang enhancements must be reversed
because of A.B. 333’s changes to the laws governing gang-related
offenses and enhancements. As we explain, Campa is entitled to
relief under A.B. 333’s amendments to section 186.22, but he is
not entitled to relief under section 1109. We therefore reverse the
true findings, vacate Campa’s sentence, and remand the matter
9
to give the People the opportunity to retry the gang
enhancements.
1. Section 1109
Campa contends we must reverse the attempted murder
convictions and the gang enhancements because section 1109’s
bifurcation requirement applies to nonfinal convictions like his,
and he was prejudiced by the court’s failure to bifurcate the trial
on the gang enhancements. We disagree.
Under section 1109, the trial court must bifurcate the trial
on gang enhancements from the trial on the substantive offenses
if the defendant requests bifurcation. (§ 1109, subds. (a) & (b);
Stats. 2021, ch. 699, § 5.) If the charges are bifurcated, the court
should try the gang enhancements only if the defendant is found
guilty of the underlying offenses. (§ 1109, subd. (a)(2).)
There is a split of authority on the question of whether
section 1109 applies retroactively to nonfinal convictions, and the
issue is currently pending before the California Supreme Court.
(People v. Tran (2022) 13 Cal.5th 1169, 1208 (Tran); see also
People v. Perez (2022) 78 Cal.App.5th 192, 207, review granted
Aug. 17, 2022, S275090.) In Perez, this Division held that section
1109 is not retroactive because it “is a procedural statute that
ensures a jury will not be prejudiced by the introduction of
evidence to support gang enhancement allegations—it does not
reduce the punishment imposed.” (Perez, at p. 207.) Other courts,
however, have held the statute is retroactive because it is
designed to reduce the number of wrongful convictions and
“mitigate punishment resulting from the admission of irrelevant
gang evidence at trial.” (People v. Ramos (2022) 77 Cal.App.5th
1116, 1129 (Ramos); see also People v. Burgos (2022) 77
Cal.App.5th 550, 566–568, review granted July 13, 2022,
10
S274743.) We need not determine whether section 1109 is
retroactive because any purported error in failing to bifurcate the
trial on the gang enhancements was harmless. (See Tran, supra,
13 Cal.5th at p. 1208 [a trial court’s failure to bifurcate trial of
gang allegations under section 1109 is subject to harmless error
analysis].)
Initially, we reject Campa’s contention that the Chapman7
harmless error standard for federal constitutional error applies to
this case. The erroneous admission of evidence, including gang-
related evidence, does not violate a defendant’s federal due
process rights unless that evidence renders the trial
fundamentally unfair. (Tran, supra, 13 Cal.5th at p. 1209.) Most
of the gang-related evidence in this case was relevant to prove
the underlying offenses and would have been admissible at a
bifurcated trial on those charges. As our Supreme Court has
explained, “[e]vidence of the defendant’s gang affiliation—
including evidence of the gang’s territory, membership, signs,
symbols, beliefs and practices, criminal enterprises, rivalries, and
the like—can help prove identity, motive, modus operandi,
specific intent, means of applying force or fear, or other issues
pertinent to guilt of the charged crime.” (People v. Hernandez
(2004) 33 Cal.4th 1040, 1049 (Hernandez).) Consistent with
Hernandez, the court instructed the jury that it could consider
the gang-related evidence to determine whether Campa “acted
with the intent, purpose, and knowledge that are required to
prove the gang-related crimes and enhancements” and whether
he “had a motive to commit the crimes charged.” (Italics added.)
And Campa acknowledges that the People relied heavily on gang-
7 Chapman v. California (1967) 386 U.S. 1811
related evidence to connect him to the underlying attempted
murders and to prove that he premeditated in committing those
crimes. Thus, to the extent the court admitted gang-related
evidence that was not relevant to proving the substantive
offenses, the admission of such evidence did not render Campa’s
trial on the substantive offenses fundamentally unfair. (Tran,
supra, 13 Cal.5th at p. 1209; see also Ramos, supra, 77
Cal.App.5th at p. 1132 [“nothing in [A.B.] 333 limits the
introduction of gang evidence in a bifurcated proceeding where
the gang evidence is relevant to the underlying charges”].)
Accordingly, the Watson8 state-law harmless error standard
applies here. Under that standard, Campa hasn’t shown it is
reasonably probable he would have obtained a more favorable
verdict had the court bifurcated the trial on the gang
enhancements. (Tran, supra, 13 Cal.5th at p. 1209.) As we just
explained, most of the gang-related evidence was relevant to
prove the attempted murder charges, so the jury still would have
heard that evidence at a separate trial on the substantive
offenses. (See Hernandez, supra, 33 Cal.4th at p. 1049.) That
evidence, along with the nongang-related evidence,
overwhelmingly establishes Campa’s guilt on the attempted
murder charges.
Campa is a member of East Side Longo—a Hispanic gang
based in Long Beach. Campa admitted he shot at Rodriguez and
Alonzo outside the Daisy Avenue liquor store because he believed
they were “two fools from Barrio Pobre”—i.e., members of one of
East Side Longo’s rival gangs. The People’s gang expert testified
that the liquor store was in territory over which East Side Longo
8 People v. Watson (1956) 46 Cal.2d 81812
and Barrio Pobre disputed control, and that members of East
Side Longo will often attack people in that territory whom they
believe to be members of Barrio Pobre. Campa also admitted that
he shot at Robinson and Hood because they were “Tintos”—i.e., a
derogatory term for Black men used by Hispanic gang members
in Long Beach. According to the gang expert, members of East
Side Longo will often shoot at Black men simply because of their
race, regardless of whether they are gang members or otherwise
provoke members of East Side Longo.
As Campa acknowledges, the People relied on this evidence
to prove not only the gang enhancements but also Campa’s
motive for shooting at the victims and that Campa premeditated
and deliberated before he shot at them. (See People v. Romero
(2008) 44 Cal.4th 386, 401 [evidence of planning activity and
motive are relevant to prove premeditation].) Thus, even had the
court bifurcated the trial on the gang enhancements, the gang-
related evidence would have played a large role in setting up the
state’s theory that Campa was guilty of premeditated and
deliberate attempted murder. (See Hernandez, supra, 33 Cal.4th
at p. 1049.)
There also was strong evidence of Campa’s guilt
independent of the gang-related evidence. Campa admitted he
was riding in the passenger seat of his uncle’s car when he shot
at the victims. Campa confirmed he shot Robinson and Hood
because they were Black, which is evidence of motive that
supports a finding that Campa premeditated even without the
gang expert’s opinion that the shooting was gang-related. Campa
also claimed he was carrying a gun with him in the car so he
could be “ready to hop out on somebody.” (See People v. Romero,
supra, 44 Cal.4th at p. 401.)
13
Other evidence corroborated Campa’s admissions. The
police obtained video footage of the same type of car Campa
admitted using during the shootings—i.e., a green Camry—
driving back and forth in front of the Daisy Avenue liquor store
before Campa shot at Rodriguez and Alonzo. Additionally,
Robinson and Hood told the police that the person who shot at
them was riding in a green Camry. And Robinson confirmed that
Campa was the shooter, telling the police that Campa’s face was
“ ‘unforgettable.’ ” The police also found inside Campa’s home a
pair of white shoes and a grey hooded sweatshirt bearing an
emblem of California, all of which matched the clothes worn by
the person who shot at Alonzo and Rodriguez outside the Daisy
Avenue liquor store.
Campa argues the court would have excluded from a
bifurcated trial on the substantive offenses the hearsay
statement from an unidentified witness that someone in the
green Camry asked “where the Bean Pie is at” before the Daisy
Avenue liquor store shooting. The People conceded in Campa I
that the court erred in admitting that statement because it was
testimonial hearsay that violated Campa’s confrontation rights.
But we concluded that the admission of that statement was
harmless beyond a reasonable doubt because there was other
properly admitted evidence that overwhelmingly established
Campa’s guilt for the attempted murder charges. That is still
true for all the reasons we just discussed. Thus, Campa can’t
show it is reasonably probable he would have obtained a more
favorable verdict had the “Bean Pie” statement been excluded
from a separate trial on the substantive offenses because of its
gang-related nature.
14
Campa also contends the court would have excluded
evidence about gang tattoos and East Side Longo’s predicate
offenses because such evidence was not relevant to proving the
attempted murder charges. Even if Campa is correct, it is not
reasonably likely that he would have received a more favorable
outcome if such evidence had been excluded at a separate trial on
the substantive offenses.
As an initial matter, we note the court instructed the jury
that it could not use gang-related evidence to conclude that
Campa “is a person of bad character or that he has a disposition
to commit crime.” Thus, to the extent evidence of gang tattoos
and East Side Longo’s predicate offenses was not relevant to
prove the substantive offenses, we presume the jury understood
and followed the court’s instructions not to use such evidence to
find Campa committed the attempted murders. (People v.
Sanchez (2001) 26 Cal.4th 834, 852.)
In any event, neither the evidence of the predicate offenses
nor the evidence of gang tattoos was unduly inflammatory or
prejudicial. While both predicate offenses were murder
convictions, the gang expert didn’t testify in significant detail
about either crime. The expert confirmed the suspects’ names and
when the crimes were committed. The expert also offered
opinions as to why the suspects were members of East Side Longo
and why the crimes benefitted that gang. The expert’s testimony
on the predicate offenses was brief, spanning only three pages of
the reporter’s transcript. Importantly, the expert didn’t testify or
otherwise imply that Campa was involved in the commission of
either predicate offense.
As for the evidence of gang tattoos, one purpose of such
evidence was to prove Campa’s membership in East Side Longo, a
15
fact that, as we explained above, was relevant to prove the
attempted murder charges. In any event, Campa fails to explain
how any gang tattoo evidence was inflammatory or prejudicial
such that it is reasonably probable he would have received a more
favorable verdict had such evidence been excluded in a separate
trial on his substantive offenses. (People v. Hurtado (2002) 28
Cal.4th 1179, 1190–1191 [the Watson standard “requires a
defendant to show that without the error a more favorable
outcome was reasonably probable”].)
In short, even if we were to assume section 1109 applies
retroactively to Campa’s convictions, the failure to bifurcate the
trial on the gang enhancements was not prejudicial.
2. Section 186.22
A.B. 333 also amended section 186.22, changing the
evidentiary showing necessary to impose gang enhancements.
Specifically, A.B. 333 “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.’ ” (Tran, supra, 13
Cal.5th at p. 1206; § 186.22, subd. (f).) The People now must
prove that the gang’s members collectively engaged in a pattern
of criminal activity. (Tran, at p. 1206; § 186.22, subd. (f).) It is no
longer sufficient to show some of the gang’s members individually
engaged in such conduct. (Tran, at p. 1206.)
A.B. 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
16
establishing a pattern of gang activity must be ones other than
the currently charged offense.” (Tran, supra, 13 Cal.5th at p.
1206; § 186.22, subd. (e)(1), (2).) Additionally, A.B. 333 “narrowed
what it means for an offense to have commonly benefitted a
street gang, requiring that any ‘common benefit’ be ‘more than
reputational.’ ” (Tran, at p. 1206; § 186.22, subd. (g).)
A.B. 333’s amendments to section 186.22 apply
retroactively to judgments that were not final when the changes
went into effect. (Tran, supra, 13 Cal.5th at pp. 1206–1207.)
Where, as here, the Legislature makes substantive changes to
the elements of an offense and the jury is not instructed on those
changes, “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.” (Id. at p. 1207.)
The parties agree, and so do we, that A.B. 333’s
amendments to section 186.22 require reversal of the true
findings for the gang enhancements. Because the jury was never
instructed on the new elements in section 186.22, it was not
required to find the most recent offense used to show a pattern of
criminal gang activity occurred within three years of the date of
the currently charged offense. (See § 186.22, subd. (g).) Indeed, as
the People concede, both predicate offenses used to prove East
Side Longo engaged in a pattern of criminal activity occurred in
2009, more than three years before the shootings charged in this
case. We therefore cannot determine beyond a reasonable doubt
that the jury would have found the gang allegations true had it
been instructed on all the gang enhancement’s elements as
amended by A.B. 333.
17
In light of the foregoing, we must reverse the true findings
for the gang enhancements, vacate Campa’s sentence, and
remand the matter to give the People the opportunity to retry the
allegations under section 186.22, subdivision (b), as amended by
A.B. 333.9 (People v. E.H. (2022) 75 Cal.App.5th 467, 480 [the
proper remedy in cases where newly required elements were
never tried “is to remand and give the People an opportunity to
retry the affected charges”].) On remand, the court shall also
conduct a full resentencing, at which Campa may raise
arguments under current sentencing laws, including any laws
that were enacted or amended after Campa was last sentenced.
(See People v. Buycks (2018) 5 Cal.5th 857, 893 [where “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. 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”].)
9We also must reverse the true findings for the gang-related firearm
enhancements. To find the firearm allegations true, the jury was
required to find Campa violated section 186.22, subdivision (b). (See §
12022.53, subd. (e)(1)(A).) “With the reversal of the gang
enhancements under section 186.22, there is an insufficient basis to
support the true findings on the vicarious gang-related firearm use
enhancements under section 12022.53.” (People v. Perez, supra, 78
Cal.App.5th at p. 206, fn. 11.) As Campa acknowledges, the firearm
enhancements may be reimposed if the People “successfully retr[y] the
gang enhancements.”
18
DISPOSITION
The true findings for the gang and gang-related firearm
enhancements are reversed, and Campa’s sentence is vacated.
The matter is remanded with directions for the trial court to (1)
afford the People the opportunity to retry the gang allegations
and (2) resentence Campa.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
EGERTON, J.
19