People v. Valenzuela CA5

Filed 1/4/23 P. v. Valenzuela CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F082450
Plaintiff and Respondent,
(Super. Ct. No. BF178274A)
v.
JOHNATHAN VALENZUELA, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. Kenneth C.
Twisselman II, Judge.
William I. Parks, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and
Chung Mi Choi, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
On September 14, 2019, defendant Johnathan Valenzuela robbed Alfredo H.1 at
gunpoint. A jury convicted defendant of second degree robbery (Pen. Code, § 212.5,
subd. (c), count 1)2 and found true the allegation he personally used a firearm during the
commission of the offense (§ 12022.53, subd. (b)); possession of a firearm by a felon
(§ 29800, subd. (a)(1), count 2); and possession of a short-barreled rifle (§ 33210,
count 3). As to all three counts, the jury found true the allegation he committed the
offenses for the benefit of the East Side Bakers (ESB) gang (§ 186.22, subd. (b)(1)).
The trial court sentenced defendant as to count 1 to the upper term of five years,
plus a 10-year term for the firearm enhancement (§ 12022.53, subd. (b)) and a 10-year
term for the gang enhancement (§ 186.22, subd. (b)(1)). As to counts 2 and 3, the trial
court sentenced defendant to the upper term of three years, plus an additional four-year
term for the gang enhancement (§ 186.22, subd. (b)(1)) for both counts, but stayed these
sentences pursuant to section 654. The total term imposed was 25 years.
On appeal, defendant contends: (1) he was denied due process of law due to a
prejudicial, unduly suggestive in-field identification that subsequently tainted Alfredo’s
in-court identification of defendant; (2) the trial court abused its discretion in refusing to
stay or strike the section 12022.53, subdivision (b) 10-year sentence enhancement; and
(3) he is entitled to the benefit of newly enacted Assembly Bill No. 333 (2021–2022 Reg.
Sess.) (Assembly Bill 333), which amended the language of section 186.22, and added
section 1109 requiring bifurcation of the trial of gang enhancements and substantive gang
offenses from that of the underlying offenses upon a defendant’s request. The People
concede the amendments to section 186.22 apply retroactively, but argue the jury would
1 Pursuant to California Rules of Court, rule 8.90, we refer to some persons by their first
names or initials. No disrespect is intended.
2 All further references are to the Penal Code, unless otherwise stated.
2.
have still found the gang enhancements true under the amended law and any deficiency in
the jury instructions was harmless beyond a reasonable doubt under Chapman v.
California (1967) 386 U.S. 18, 24 (Chapman). Additionally, the People argue newly
added section 1109 does not apply retroactively, but contend that regardless defendant is
not entitled to reversal of his conviction because he was not prejudiced by the trial court’s
failure to bifurcate the gang enhancement.
Further, in supplemental briefing, defendant contends newly enacted Senate Bill
No. 567 (2021–2022 Reg. Sess.) (Senate Bill 567) and Assembly Bill No. 124 (2021–
2022 Reg. Sess.) (Assembly Bill 124) apply retroactively to his case, and he is entitled to
the benefits of newly amended section 1170. The People agree defendant is entitled to
the benefits of the recent amendments and, thus, remand is required.
We accept the People’s concession, vacate the sentence, and remand for
resentencing. Further, we conclude the entirety of Assembly Bill 333 applies
retroactively to defendant’s case, and as to all offenses defendant is entitled to a dismissal
of the section 186.22 gang enhancements. The People are not foreclosed from retrying
defendant on the gang enhancement upon remand. The other claims lack merit.
Accordingly, in all other respects, we affirm the judgment.
SUMMARY OF FACTS
I. The Robbery
On September 14, 2019, Alfredo sold ice cream and corn from a cart on the side of
the road in Bakersfield. At or around 5:00 p.m., two males approached him from a
nearby house and attempted to purchase a bag of corn and pork skin chips. The older
male, later identified as defendant, told Alfredo they did not have money and tried to use
a membership card to pay, but Alfredo did not accept the card.
Subsequently, a female walked out of the house and asked Alfredo if the males
had paid, which he told her they had not. She pulled out a $20 bill, but Alfredo did not
have change. She then went to a nearby store to get change and was gone for about eight
3.
minutes, and eventually came back and paid for the food. During this time, Alfredo
noticed the younger male had a firearm tucked in his waistband. The younger male
pulled up his T-shirt and showed Alfredo the firearm.
Alfredo walked “swiftly” away and a second female approached him to make a
purchase. She purchased food and at this point “one of these two males came out of the
house … [a]nd he had headed over to the opposite corner to where [Alfredo] was
standing.” Alfredo walked away and defendant eventually approached him from his left
side and screamed at him. Defendant spoke to Alfredo in English and demanded he hand
over the money. During this time, defendant pulled out a firearm3 and pointed it at
Alfredo’s stomach. Alfredo “was afraid” and handed over either $90 or $100 and his cell
phone4 to defendant. Alfredo testified defendant wore a black shirt, shorts, and Vans
tennis shoes and had a tattoo on the right side of his neck. Alfredo then ran into a nearby
house and a female inside the house called 911. While inside, Alfredo heard gunshots
and observed defendant attempt to take his cart.
II. Subsequent Law Enforcement Investigation
Approximately, 15 minutes later, Bakersfield Police Department (BPD) officers
arrived on scene. The female who called 911 and her children translated for Alfredo and
provided law enforcement a description of defendant. BPD Officer D. Hamma received a
description of defendant and located him walking down an alley. Hamma then drew his
firearm, placed defendant in custody, and subsequently read defendant his Miranda5
rights. Officers noticed a tattoo of the letters “TWK” on defendant’s neck and confirmed
with him it stood for “True West [K]illa.” Further, defendant had “East Side” tattooed on
his chest, the word “East” on the back of his left upper arm, “Side” on the back of his
3 Alfredo testified the firearm was a “small rifle.”
4 It was a black Samsung cell phone with a screensaver of Bart Simpson from the
television show The Simpsons.
5 Miranda v. Arizona (1966) 384 U.S. 436.
4.
right upper arm, “KC” on his right shoulder, and three dots tattooed on the web of his left
hand. Defendant admitted to being an active member of the ESB gang and stated he had
been with the gang for three to four years. During a subsequent search, officers located
$75 in cash and two cell phones on defendant’s person. Alfredo later identified the cell
phone with the Bart Simpson background as belonging to him and unlocked it with a
passcode.
Subsequently, officers contacted Alfredo and told him “they had apprehended one
of them [and Alfredo] needed to be taken somewhere.” Officers then transported Alfredo
to the area where defendant was in custody. Hamma asked Alfredo some questions and a
male citizen translated for him because Alfredo only spoke Spanish. Hamma testified
there are times when law enforcement utilizes a member of the community to translate
when no officers are available. During this time, BPD Officer J. Garcia read Alfredo an
in-field admonishment,6 which was translated to him by the male, before having him
observe defendant. Alfredo then identified defendant as the individual who robbed him.
BPD Officer J. Montgomery canvassed the area of the robbery and located a
firearm in the side yard of a home behind some bushes. The firearm was a semiautomatic
rifle with a sawed-off barrel. Alfredo testified this firearm appeared to be similar to the
one used against him during the robbery.
III. Gang Evidence
A. Cell Phone Evidence
BPD Officer L. James testified he conducted an investigation into defendant’s
social media presence and discovered he had a Facebook account. Pursuant to a valid
6 The admonishment provided to Alfredo was as follows:
“[K]eep in mind the person who committed the crime may or may not be among the
present. Just because a person is in custody does not mean he committed the crime. This applies
only in situations where it will be obvious that a person is in custody. Do not talk to any
anyone.… Do not talk to any other witnesses about the identification.”
5.
search warrant, James located a Facebook account under the first name of “Slickdalowk”
and last name of “East Thedeal.” There were multiple photographs of defendant with a
firearm and a high capacity magazine, similar to the firearm located at the robbery scene.
B. Prior Law Enforcement Contacts
On May 3, 2017, BPD Officer M. Malley stopped defendant’s vehicle. Officers
searched the vehicle and located a short-barreled shotgun in the trunk and a blue bandana
on the driver’s seat. Defendant told officers he was a Sure̴̴̴ñ̴̴̴ o gang member, but did not
directly admit he was an ESB member. Additionally, Malley testified he had observed
defendant earlier in the day near a gang memorial event. A certified copy of defendant’s
conviction for unlawful possession of a firearm (§ 25400, subd. (c)(4)) was admitted into
evidence.
On February 17, 2018, Kern County Sheriff’s Deputy J. Fernandez observed
defendant standing in a house’s front yard. Fernandez spoke with defendant and
defendant told him he was an active member of the ESB and was “jumped into” the gang
in high school. He observed defendant with tattoos on the back of his left arm of “East”
and “Side” on the back of his right arm.
On July 3, 2019, BPD Officer N. Poteete observed defendant walking down the
street. Poteete contacted defendant and discussed his gang membership. Defendant
denied being a gang member, but Poteete noticed a “TWK”7 neck tattoo and other gang
tattoos on his body. Defendant admitted to attending a memorial for a gang member
earlier in the day.
On July 13, 2019, BPD Officer B. Thebeau contacted defendant and noticed the
word “East Side” tattooed across his chest. Defendant “nodded in the affirmative” when
asked if he was a member of the ESB. Defendant further stated he had a nickname of
“Slick.”
7 Defendant told Poteete “TWK” stood for “The World Kings.”
6.
C. Predicate Offenses
On June 28, 2017, BPD Officer L. James responded to a shooting in Bakersfield.
James arrived on scene and located a shooting victim suffering from minor gunshot
injuries. It was later determined the individual responsible was Angel Salazar. Angel
had the letters “E” and “S” tattooed on his chest, and the letter “B” tattooed on the top of
his head. A certified record of Angel’s conviction for violations of sections 29820 and
245, subdivision (a)(1), along with a gang enhancement (§ 186.22, subd. (a)) were
admitted into evidence.
On June 15, 2019, BPD Officer K. McNabb investigated a call regarding a
gathering of suspected gang members. Officers arrested Isaac Terrazas and located a .32-
caliber revolver in his pocket. Moreover, officers located a blue bandana in his pocket.
A certified copy of Isaac’s conviction for possession of a firearm as a gang member
(§ 25850, subd. (c)(3)) was admitted into evidence.
D. Gang Expert Testimony
BPD Officer Renee Garcia testified as a gang expert. Garcia testified he contacted
defendant and he stated he was from the ESB. Defendant refused to speak with Garcia,
which Garcia understood as “‘shadowing.’”8 Garcia observed gang tattoos on
defendant’s body.
Garcia further testified the ESB’s primary activities are shootings, murders,
robberies, burglaries, assaults, and firearm possession. The ESB gang falls under the
umbrella of the Sure̴̴̴ñ̴̴̴ o gang and are foot soldiers of the Mexican mafia, a prison gang.
ESB has a presence in Bakersfield and its members favor the color blue and throw hand
sings forming the letters “E” and “S.” Garcia estimated there are currently 100 active
ESB members.
8 “Shadowing” was described as a practice where gang members are not allowed to speak
with law enforcement unless another member is in the area “or at least within earshot shadowing
the conversation essentially to make sure that they are not cooperating with the police.”
7.
In Garcia’s expert opinion, defendant was an active member of the ESB on
September 14, 2019. Specifically, Garcia testified this opinion was based on:
“[Defendant’s] prior contacts with law enforcement, his self-admissions to
being a member of the gang, the proof of him having somewhat hierarchy
in the gang in collecting taxes for the Mexican Mafia, the gang tattoos, as
well as all of his past criminal activity that he’s been involved in.”
Garcia then testified the use of firearms “is a status symbol within the gang” and that it
can be used to “commit other crimes that will further benefit the gang.” Further, he
testified that as to the underlying offense, it was Garcia’s opinion defendant committed
the robbery to benefit the gang by “forcing others to give up their money and their
property, … [so] they can use that money to either pay their hood taxes, their gang taxes”
and “a violent crime like this has a negative effect on the community” by keeping people
from reporting crimes in the future.
ARGUMENT
I. The In-field Identification and In-court Identification Were Reliable and Did
Not Violate Defendant’s Rights to Due Process of Law
Defendant first contends he was denied due process of law due to a prejudicial,
unduly suggestive in-field identification that subsequently tainted Alfredo’s in-court
identification. We disagree.
A. Forfeiture
It is undisputed trial counsel did not object to the admission of Alfredo’s in-field
identification at trial and, thus, defendant has forfeited this claim on appeal. (People v.
Cunningham (2001) 25 Cal.4th 926, 989 (Cunningham); People v. Montes (2021) 59
Cal.App.5th 1107, 1117 [“[T]he failure to object in the trial court generally forfeits a
claim on appeal and this principle is applicable to constitutional claims.”].) However,
defendant argues any failure to raise the argument in the trial court gives rise to an
8.
ineffective assistance of counsel claim.9 Waiver aside, we have discretion to address the
merits of this claim (In re Sheena K. (2007) 40 Cal.4th 875, 887, fn. 7), and choose to do
so in this case.
B. Applicable Law
“[T]o determine whether the admission of identification evidence violates a
defendant’s right to due process of law, we consider (1) whether the identification
procedure was unduly suggestive and unnecessary, and, if so, (2) whether the
identification itself was nevertheless reliable under the totality of the circumstances,
taking into account such factors as the opportunity of the witness to view the suspect at
the time of the offense, the witness’s degree of attention at the time of the offense, the
accuracy of his or her prior description of the suspect, the level of certainty demonstrated
at the time of the identification, and the lapse of time between the offense and the
identification.” (Cunningham, supra, 25 Cal.4th at p. 989.) An identification procedure
is unduly suggestive if it “‘suggests in advance of identification by the witness the
identity of the person suspected by the police.’” (People v. Ochoa (1998) 19 Cal.4th 353,
413 (Ochoa).) “‘Only if the challenged identification procedure is unnecessarily
suggestive is it necessary to determine the reliability of the resulting identification.’”
(People v. Alexander (2010) 49 Cal.4th 846, 902.) In other words, “‘[i]f we find that a
challenged procedure is not impermissibly suggestive, our inquiry into the due process
claim ends.’” (Ochoa, supra, at p. 412.) The defendant bears the burden of showing the
identification procedure was unduly suggestive or unreliable. (Ibid.)
On appeal, we review the trial court’s findings of historical fact deferentially, but
independently review “whether, under those facts, a pretrial identification procedure was
unduly suggestive.” (People v. Gonzalez (2006) 38 Cal.4th 932, 943.)
9 Because we conclude Alfredo’s in-field identification was reliable and was not unduly
suggestive, we need not address defendant’s separate ineffective assistance of counsel claim.
9.
C. Analysis
Defendant first urges this court to “join the number of jurisdictions choosing to
abolish show-ups in light of psychological studies revealing their inherent unreliability.”
However, as defendant concedes, our Supreme Court has found an in-field identification
“‘is not inherently unfair.’” (Ochoa, supra, 19 Cal.4th at p. 413.) This is “because the
element of suggestiveness inherent in the procedure is offset by the reliability of an
identification made while the events are fresh in the witness’s mind, and because the
interests of both the accused and law enforcement are best served by an immediate
determination as to whether the correct person has been apprehended.” (In re Carlos M.
(1990) 220 Cal.App.3d 372, 387.) Accordingly, we choose not to depart from our
Supreme Court’s conclusion.
Alternatively, defendant contends the in-field identification in this case was
unduly suggestive. First, defendant argues Alfredo’s in-field identification was
significantly flawed because he was told, en route to where defendant was arrested,
officers had “apprehended one of them.” We find People v. Anthony (1970) 7
Cal.App.3d 751 (Anthony) and People v. Ballard (1969) 1 Cal.App.3d 602 (Ballard)
instructive. In Anthony, the court did not find the victim’s identification suggestive when
an officer returned the defendant and his coparticipant, handcuffed back to the scene
where the robbery had occurred and asked the victim “‘which was the one that came in.’”
(Anthony, supra, at p. 764.) The court concluded, “The potential unfairness in such
suggestiveness, however, [was] offset by the likelihood that a prompt identification
within a short time after the commission of the crime will be more accurate than a belated
identification days or weeks later.” (Id. at pp. 764–765.) Additionally, in Ballard, law
enforcement told the victim they “had two suspects who ‘fit the description’ that she had
given them of the perpetrators of the offenses.” (Ballard, supra, at p. 605.) The court did
not find the language used by law enforcement “to be of such a suggestive nature as to
make … the … identification unfair or untrustworthy.” (Ibid.)
10.
Here, the officer’s statement to Alfredo they had “apprehended one of them” is not
unduly suggestive. The officer told Alfredo they had apprehended a suspect, without
providing a description, and is distinguishable from the statement in Ballard where law
enforcement told the witness we have “two suspects who ‘fit the description,’” which
infers the detained individuals were the perpetrators of the offense. (Ballard, supra, 1
Cal.App.3d at p. 605.) However, any potential suggestiveness was mitigated by Officer
Garcia’s verbatim reading of the in-field admonishment informing Alfredo “the person
who committed the crime may or may not be among the present” and “[j]ust because a
person is in custody does not mean he committed the crime.” (People v. Garcia (2016)
244 Cal.App.4th 1349, 1360–1361 [finding “curbside lineup” involving three suspects
was not unduly suggestive where the victim was admonished not to infer guilt].)
Moreover, Alfredo’s “prompt identification within a short time after the commission of
the crime” made his identification reliable. (Anthony, supra, 7 Cal.App.3d at pp. 764–
765.) Law enforcement arrived about 15 minutes after the 911 call and subsequently
transported Alfredo to where defendant was located. This short period of time made
Alfredo’s identification of defendant more credible than if it was done days or weeks
later. (See In re Richard W. (1979) 91 Cal.App.3d 960, 970 [“‘[A] prompt identification
within a short time after the commission of the crime will be more accurate than a belated
identification days or weeks later.’”].)
Second, defendant argues the use of a translator during Alfredo’s identification
“suggest[s] an environment that created an identification with only minimal indicia of
reliability” because “there was no basis to presume that [Alfredo] had ever been properly
admonished through an interpreter, nor did the police make any effort to assure that the
interpreter, himself, did not influence the identification.” We disagree. There is nothing
in the record to suggest the translator did not properly translate the admonishment to
Alfredo, nor is there anything to indicate the translator had any bias or motive to mislead
or distort the information presented to him rather than translating neutrally. Defendant
11.
does not cite anything in the record, nor does he refer this court to legal authority to
support his argument. (Tellez v. Rich Voss Trucking, Inc. (2015) 240 Cal.App.4th 1052,
1066 [“When an appellant asserts a point but fails to support it with reasoned argument
and citations to authority, we treat the point as forfeited.”].) Accordingly, we conclude
Alfredo’s in-field identification was not unduly suggestive and, therefore, this forecloses
defendant’s due process claim (Ochoa, supra, 19 Cal.4th at p. 412), and we need not
consider his related argument the in-field identification later tainted his in-court
identification of defendant.10
II. The Trial Court Properly Exercised Its Discretion in Refusing to Stay or
Strike the Section 12022.53, Subdivision (b) Enhancement
Defendant further contends the trial court abused its discretion in refusing to stay
or strike the section 12022.53, subdivision (b), 10-year sentence enhancement.
Specifically, defendant argues the trial court failed to take into consideration his age and
other mitigating factors before denying his request. We disagree.
A. Additional Factual Background
The trial court made the following findings before denying defendant’s motion to
strike the section 12022.53, subdivision (b), enhancement:
“The Court is taking the matter under submission. And I’m first going to
consider the request for the Court to exercise its discretion to strike the
firearm enhancement. And because there’s been kind of an evolution in our
California law with regard to sentencing enhancements. For purposes of
this sentencing, I’m going to assume that I have the discretion to strike not
only the firearm enhancement but also the gang enhancement under
[section] 186.22[, subdivision] (b) (1). So I’m exercising my discretion as
to both of those enhancements when I make this decision.
“And the Court’s discretion must be guided by what is in the interest
of … justice. And I have a number of cases and other authorities that I look
10 Because we find no error, we do not address prejudice, although the overwhelming
evidence of guilt suggests none would attach even if this court concluded the in-field
identification violated due process. (See People v. Mora and Rangel (2018) 5 Cal.5th 442, 481.)
12.
to when I’m deciding what is in the interest of justice. I will cite the case of
[People v. S.M. (2017)] 9 Cal.App.5th [210,] 218. The Court discusses the
exercise of discretion in deciding to dismiss charges or allegations in the
furtherance of justice. And it states from the case law several general
principles emerge. Paramount among them is the rule that the language of
Section 1385, furtherance in justice, requires consideration both of the
constitutional rights of the Defendant, and the interest of society
represented by the People in determining whether there should be a
dismissal. At the very least, the reason for dismissal must be that which
would motivate a reasonable judge.
“The courts have recognized that society represented by the People
has a legitimate interest in the fair prosecution of crimes properly alleged a
dismissal which arbitrarily cuts those rights without a showing of detriment
to the Defendant is an abuse of discretion.
“The Court cannot strike a sentencing enhancement solely to
accommodate judicial convenience or because of court congestion, nor can
a Court be guided solely by personal antipathy for the effect that the three
strikes law—that is three strikes but it would be also the law relating to
sentencing enhancement for the effect it would have on the Defendant,
while ignoring the Defendant’s background, the nature of his present
offenses and other individualized considerations.
“The Court has—and this is [People v. S.M., supra, 9 Cal.App.5th]
at page 219—the Court has to balance the interest in dismissing the
enhancement against the harm to the public. The Court has to give
consideration to any special status of the Defendant, including
consideration of his age, education, criminal record and experience. Those
are all individualized considerations, which the Court must consider in
deciding whether relief under Section 1385 would be in the furtherance of
justice.
“[People v. S.M., supra, 9 Cal.App.5th at p]age 220, the Court
should be informed by generally applicable sentencing principles in
exercising this discretion.
“In the case of People [v.] Solis [(2015)] 232 Cal.App.4th 1108, …
1124, they’re discussing the Romero[11] decision, which also includes how
the Court exercises its discretion under [section] 1385. And a sentencing
Court’s exercise of discretion to dismiss a prior strike is to be guided by the
11 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
13.
following standard: May the Defendant, in light of his current crime and
his criminal history, background, character and prospects be deemed
outside the spirit of the three strikes law in whole or in part and hence be
treated as though he had not suffered the prior strike conviction. And,
again, the court applies the same principle to the laws relating to the
sentencing enhancements.
“Also, [California] Rules of Court Rule 4.428 which discusses
striking enhancements under Section 1385, under (b). If the Court has
discretion under section 1385 to strike an enhancement in the interest of
justice, the Court also has the authority to strike the punishment for the
enhancement under Section 1385[, subdivision] (c), determining whether to
strike the entire enhancement only the punishment for the enhancement.
The Court may consider the effect that striking the enhancement would
have on the status of the crime as a strike, the accurate reflection of the
Defendant’s criminal conduct on his record, the effect it may have on the
[a]ward of custody credits, and any other relevant consideration. So I’m
considering all of these types of factors in exercising my discretion.
“I’m looking at the Defendant’s criminal history. He turned 18 in
2015. He starts engaging in criminal conduct in 2017, with the DUIs.
Now, in the same year he is engaged in illegal possession of a firearm,
which is definitely escalating the seriousness of his criminal conduct and
his danger to society.
“Also, resisting police officers. In 2018. He’s now engaged in auto
theft. He did go to [the California Department of Corrections and
Rehabilitation (CDC)] from the 2017 conviction. And then the—that
conviction, as well as the auto theft in 2018 resulted in his CDC
commitment in 2018. He did not do well on post-release community
supervision, violating a number of times.
“2019, again, conviction for the possession of illegal drugs. The
offense in this case occurred around that same time in September of 2019.
So the Defendant has basically been engaging in ongoing pattern of
criminality since 2017, with no significant period where he was showing
any effort to become a law-abiding citizen.
“The Court exercises its discretion considering the seriousness of the
offenses in this case, again involving firearms. And I do not find it would
be in the interest of justice considering all the factors to strike either the
firearms enhancements or the gang enhancement, and those enhancements
will not be stricken.
14.
“Exercising my discretion under [section] 1385 considering all the
factors that I’ve cited.
“The Court makes the following findings and orders: I find no
circumstances in mitigation. I find the following circumstances in
aggravation: One, the Defendant’s prior connections as an adult are
numerous; two, the Defendant has served a prior prison term; three, the
Defendant’s prior performance on felony probation and post-release
community supervision was unsatisfactory in that he violated terms and
reoffended; four, the Defendant was on misdemeanor probation and post-
release community supervision when the crimes were committed.” (Italics
added.)
B. Applicable Law
Section 12022.53, subdivision (b), states:
“Notwithstanding any other law, a person who, in the commission of
a felony[, including robbery] specified in subdivision (a), personally uses a
firearm, shall be punished by an additional and consecutive term of
imprisonment in the state prison for 10 years. The firearm need not be
operable or loaded for this enhancement to apply.” (§ 12022.53, subd. (b).)
Prior to 2018, the trial court was prohibited from striking an allegation under
section 12022.53. (§ 12022.53, former subd. (h) [“Notwithstanding Section 1385 or any
other provision of law, the court shall not strike an allegation under this section or a
finding bringing a person within the provisions of this section.”].) Subsequently, Senate
Bill No. 620 (2017–2018 Reg. Sess.) amended section 12022.53, subdivision (h), to give
trial courts discretion to “strike or dismiss” enhancements imposed under this section “in
the interest of justice pursuant to Section 1385.” (Stats. 2017, ch. 682, § 2.) “[T]he
power to dismiss an ‘action’ under section 1385 includes the power to dismiss or strike
an enhancement.” (People v. Thomas (1992) 4 Cal.4th 206, 209.)
The denial of a motion to dismiss pursuant to section 1385 is reviewed for abuse
of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 376–377 (Carmony).) “In
reviewing for abuse of discretion, we are guided by two fundamental precepts. First,
‘“[t]he burden is on the party attacking the sentence to clearly show that the sentencing
15.
decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the
trial court is presumed to have acted to achieve legitimate sentencing objectives, and its
discretionary determination to impose a particular sentence will not be set aside on
review.”’ [Citations.] Second, a ‘“decision will not be reversed merely because
reasonable people might disagree. ‘An appellate tribunal is neither authorized nor
warranted in substituting its judgment for the judgment of the trial judge.’”’ [Citations.]
Taken together, these precepts establish that a trial court does not abuse its discretion
unless its decision is so irrational or arbitrary that no reasonable person could agree with
it.” (Ibid.)
C. Analysis
Here, the trial court properly exercised its discretion before denying defendant’s
motion to dismiss the section 12022.53, subdivision (b) enhancement. Defendant has
failed to show the trial court acted in an “irrational or arbitrary [manner] that no
reasonable person could agree with it.” (Carmony, supra, 33 Cal.4th at p. 377.) Before
making its decision, the trial court “read and considered the statement in mitigation filed
by the Defense and the request to strike enhancement under …
Section 12022.53[,subdivision] (b)” and “reviewed that entire statement including all of
the attachments, which are different exhibits relating to the Defendant, his life story,
[and] information from family members.” The trial court reasoned that it had to “balance
the interest in dismissing the enhancement against the harm to the public,” which
included “giv[ing] consideration to any special status of the Defendant, including
consideration of his age, education, criminal record and experience.” In properly
balancing these factors, the trial court concluded there were “no circumstances in
mitigation” and the circumstances in aggravation included the fact “Defendant’s prior
[convictions] as an adult are numerous,” he “has served a prior prison term,” his
unsatisfactory performance on felony probation, and the fact defendant was on
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“misdemeanor probation and post-release community supervision when the crimes were
committed.”
Nonetheless, defendant argues the trial court abused its discretion because it failed
to properly consider his youth and other mitigating circumstances. However, nothing in
the record supports this assertion, and the trial court expressly stated it weighed
defendant’s “age, education, … and experience,” before concluding his lengthy criminal
history and performance on probation outweighed these other factors. Regardless, courts
are presumed to consider all relevant factors unless there is contravening evidence in the
record, which here there is not. (Carmony, supra, 33 Cal.4th at p. 378.) Accordingly, the
trial court’s decision to not strike the section 12022.53, subdivision (b), enhancement is
neither irrational nor arbitrary and does not constitute an abuse of discretion. (Carmony,
supra, at p. 379.)
III. Assembly Bill 333
Assembly Bill 333 amended the language of section 186.22 to modify the showing
necessary to prove gang offenses and gang enhancements (Stats. 2021, ch. 669, §§ 3–4,
eff. Jan. 1, 2022), and added section 1109 (Stats. 2021, ch. 669, § 5, eff. Jan. 1, 2022),
requiring bifurcation of the trial of gang enhancements and substantive gang offenses
from that of the underlying offenses upon a defendant’s request. (§ 1109, subds. (a), (b).)
A. Section 186.22
Defendant contends he is entitled to the benefit of newly enacted Assembly
Bill 333 because it applies retroactively and argues that although the prosecution
admitted predicate offenses during the trial, “no evidence, other than an officer’s opinion,
established beyond a doubt that the predicate crimes were actually done for the benefit of
the” gang. The People concede the amendments to section 186.22 apply retroactively,
but argue “remand is unnecessary because the jury would have found the gang
enhancements to be true even under [Assembly Bill] 333’s more stringent new
requirements” and any deficiency in the jury instructions was harmless beyond a
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reasonable doubt (Chapman, supra, 386 U.S. at p. 24). We conclude defendant is
entitled to reversal of his section 186.22 gang enhancements, but also conclude the
People are entitled to retry defendant on the enhancement if they so choose.
i. Applicable Law
On counts 1 through 3, the jury found true gang enhancements (§ 186.22,
subd. (b)). At the time of defendant’s trial, “‘criminal street gang’” was defined as “any
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 of the
criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of
subdivision (e), 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.” (§ 186.22, former subd. (f).) Assembly Bill 333 revised the
definition of “‘criminal street gang’” to require that members “collectively” (no longer
“individually or collectively”) engaged in a pattern of criminal activity. (§ 186.22,
subd. (f); accord, People v. Delgado (2022) 74 Cal.App.5th 1067, 1086.)
Additionally, Assembly Bill 333 redefined “‘pattern of criminal gang activity’”
(§ 186.22, subd. (e)(1)), a necessary requirement to proving the existence of a criminal
street gang and, thus, a prerequisite to proving the gang crime and the gang enhancement.
(See § 186.22, subds. (a), (b)(1); accord, People v. Rodriguez (2022) 75 Cal.App.5th 816,
823.) “‘The offenses comprising a pattern of criminal gang activity are referred to as
predicate offenses.’” (Rodriguez, supra, at p. 822.) At the time of defendant’s trial,
“‘pattern of criminal activity’” meant “the commission of, attempted commission of,
conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of
two or more of the following offenses, provided at least one of these offenses occurred
after the effective date of this chapter and the last of those offenses occurred within three
years after a prior offense, and the offenses were committed on separate occasions, or by
two or more persons .…” (§ 186.22, former subd. (e).) Under this former definition, the
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prosecution only had to prove that those associated with a gang had committed at least
two offenses from a list of predicate crimes on separate occasions within three years of
one another. (Ibid.; see People v. Sek (2022) 74 Cal.App.5th 657, 665.) It was
unnecessary to prove the predicate offenses were gang related. (§ 186.22, former
subd. (e); Rodriguez, supra, at p. 822.)
The amended statute made several changes to the definition and limited type of
predicate offenses sufficient to prove the gang enhancement. “First, the predicate
offenses now must have been committed by two or more ‘members’ of the gang (as
opposed to any persons). (§ 186.22, subd. (e)(1).) Second, the predicate offenses must
be proven to have ‘commonly benefited a criminal street gang.’ (Ibid., italics added.)
Third, the last predicate offense must have occurred within three years of the date of the
currently charged offense. (Ibid.) Fourth, the list of qualifying predicate offenses has
been reduced. (Ibid.) And fifth, the currently charged offense no longer counts as a
predicate offense. (§ 186.22, subd. (e)(2).)” (People v. E.H. (2022) 75 Cal.App.5th 467,
477–478.) Most notably, the new element that the predicate offenses “commonly
benefited a criminal street gang” requires that “the common benefit of the offense is more
than reputational .…” (§ 186.22, subd. (e)(1).) A new subdivision (g) was also added to
section 186.22, specifying that “[e]xamples of a common benefit that are more than
reputational may include, but are not limited to, financial gain or motivation, retaliation,
targeting a perceived or actual gang rival, or intimidation or silencing of a potential
current or previous witness or informant.”
ii. Analysis
The parties agree, as do we, that Assembly Bill 333’s amendments to
section 186.22 apply retroactively to this case, which is not yet final on appeal. Since the
amendments to section 186.22 increase the threshold for conviction of a section 186.22
enhancement, defendant—whose judgement of conviction is not yet final—is entitled to
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the benefit of these changes to the law. (People v. Ramos (2022) 77 Cal.App.5th 1116,
1127 (Ramos).)
However, the parties disagree about the effects of these changes. Defendant
argues that although “the prosecution provided officer testimony to establish two charges
of unlawful firearm possession as predicate offenses but no evidence, other than an
officer’s opinion, established beyond a doubt that the predicate crimes were actually
done for the benefit of the Sure̴̴̴ñ̴̴̴ os, nor what that benefit would be.” The People argue
the “jury would have found the gang enhancements to be true even under [Assembly
Bill] 333’s more stringent new requirements” and any deficiency in the jury instructions
was harmless beyond a reasonable doubt. We agree with defendant and conclude the
changes made by Assembly Bill 333 to section 186.22 undermined the jury’s true
findings on the gang enhancement allegations.
Here, the jury was not allowed to consider whether the evidence presented at trial
was sufficient to prove a “‘pattern of criminal activity’” under the amended law. As
noted above, the revised definition of “‘pattern of criminal activity’” increased the
threshold of proof for the predicate offenses necessary for the gang enhancement.
(§ 186.22, subd. (e)(1).) This included the notable new requirement of a common benefit
to the gang derived from the predicate offenses, and that the benefit be more than
reputational (§ 186.22, subd. (e)(1) [“‘pattern of criminal gang activity’ means … the
offenses commonly benefited a criminal street gang, and the common benefit of the
offense is more than reputational”].)
The People contend the “jury would have found the gang enhancements to be true
even under [Assembly Bill] 333’s more stringent new requirements” and any deficiency
in the jury instructions was harmless beyond a reasonable doubt. Specifically, they argue
“[a]t trial, the evidence showed that the last offense used to show a pattern of criminal
gang activity occurred within three years of the date that the currently charged offense,
the offenses were committed on separate occasions or by two or more gang members, and
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they commonly benefited a criminal street gang, and the common benefit was more than
reputational.” However, “in order 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.” (People v. Sek, supra, 74 Cal.App.5th at
p. 668.) For example, in People v. Merritt (2017) 2 Cal.5th 819, the trial court omitted
the elements of robbery from the jury instructions, but the court held the error was
harmless because the only contested issue at trial was the identity of the defendant. (Id.
at p. 832.) “[The d]efendant knew what the elements of robbery were, and he had the
opportunity to present any evidence he wished on the subject. ‘[W]here a reviewing
court concludes beyond a reasonable doubt that the omitted element was uncontested and
supported by overwhelming evidence, such that the jury verdict would have been the
same absent the error, the erroneous instruction is properly found to be harmless.’”
(Ibid., quoting Neder v. United States (1999) 527 U.S. 1, 17.) Moreover, in People v.
Vinson (2011) 193 Cal.App.4th 1190, the court affirmed the defendant’s conviction for
petty theft with a prior theft conviction even though the law had changed after trial to
require the proof of three prior convictions, rather than one. (Id. at p. 1200.) The
defendant conceded he suffered two prior convictions, and his attorney stipulated at trial
to a third conviction. Thus, there was no dispute as to whether the new element had been
proved beyond a reasonable doubt. (Ibid.)
Here, the basis of the jury’s verdict is unclear and disputed. Officer Garcia
testified about several ways in which crime, the underlying offenses, or the use of a
firearm could benefit a criminal street gang, but some of the evidence was reputational.
On redirect examination, the prosecutor asked Officer Garcia, “Committing crimes in a
gang like the [ESB], which are then a part of this Sure̴̴̴ñ̴̴̴ o organization, does that affect
one’s status in the gang?” and Officer Garcia responded:
“If anything, it benefits them, committing certain crimes. By doing
so they gain not only respect but bragging rights. And more than anything
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it just shows their loyalty and their commitment to the gang. And they are
showing that they will do anything for the gang and will ultimately sacrifice
their freedom for the gang.”
Additionally, during closing argument, the prosecutor argued:
“Robberies enhance their status within the community. They discourage
people from coming forward and reporting the crimes. They intimidate the
community. They gain power and status for the gang member itself and the
gang itself. That is the benefit that the gang receives from committing
these crimes.”
Although there was evidence of benefits to the gang that went beyond reputational, we
cannot rule out the possibility the jury relied on the reputational benefit to the gang as its
basis for finding the enhancements true. As our Supreme Court has articulated, “‘The
beyond-a-reasonable-doubt standard of Chapman “requir[es] the beneficiary of a
[federal] constitutional error to prove beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained.” [Citation.] “To say that an
error did not contribute to the verdict is … to find that error unimportant in relation to
everything else the jury considered on the issue in question, as revealed in the record.”
[Citation.] Thus, the focus is what the jury actually decided and whether the error might
have tainted its decision. That is to say, the issue is “whether the … verdict actually
rendered in this trial was surely unattributable to the error.” [Citation.]’” (People v.
Pearson (2013) 56 Cal.4th 393, 463.) Because we cannot say the jury did not rely on the
reputational benefits as a basis for finding the gang enhancements true, we conclude the
instructional error was not harmless under the Chapman standard.
“However, the People are not foreclosed from retrying [the defendant] on the gang
enhancement upon remand under the new requirements of amended section 186.22. Put
differently, ‘“[b]ecause we do not reverse based on the insufficiency of the evidence
required to prove a violation of the statute as it read at the time of trial, the double
jeopardy clause of the Constitution will not bar a retrial.”’ (People v. Sek, supra, 74
Cal.App.5th at p. 669; accord, People v. Figueroa (1993) 20 Cal.App.4th 65, 72 [‘Where,
22.
as here, evidence is not introduced at trial because the law at that time would have
rendered it irrelevant, the remand to prove that element is proper and the reviewing court
does not treat the issue as one of sufficiency of the evidence’]; see People v. Eagle (2016)
246 Cal.App.4th 275, 280 [‘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’].)” (Ramos, supra, 77 Cal.App.5th at p. 1128.)
B. Section 1109
Defendant also contends newly enacted section 1109 should apply retroactively to
his case and, therefore, requires reversal of his underlying conviction for second degree
robbery. He asserts the new statute, which in part, requires bifurcation of the trial on the
gang enhancement(s) from the trial on the underlying charge(s) upon a defendant’s
request, entitles him to a reversal and retrial of his underlying conviction. The People
deny section 1109 should apply retroactively because it is a procedural rather than a
substantive change in the law and that Ramos was incorrectly decided. However, as
Ramos stated, “Assembly Bill 333 expressly reflects the Legislature’s belief ‘[t]he mere
specter of gang enhancements pressures defendants to accept unfavorable plea deals
rather than risk a trial filled with prejudicial evidence and a substantially longer
sentence.’ [Citation.] [Therefore], it is apparent from the face of the legislation that it is
aimed at mitigating wrongful punishment resulting from the admission of prejudicial and
harmful gang evidence; thus, the Estrada[12] presumption is implicated.” (Ramos, supra,
77 Cal.App.5th at p. 1131, fn. omitted.) We see no reason to deviate from Ramos’s
holding, and thus conclude section 1109 applies retroactively to this case.
Irrespective, the People contend defendant is not entitled to reversal of his
conviction because he was not prejudiced by the failure to bifurcate the gang
12 In re Estrada (1965) 63 Cal.2d 740, 745 (it is presumed that when the Legislature
amends a statute to lessen punishment, it “must have intended that the new statute imposing the
23.
enhancement. We conclude defendant is not entitled to reversal of his conviction for
second degree robbery because he was not harmed by the failure to bifurcate the trial.
Accordingly, we affirm his conviction.
i. Applicable Law
“Pursuant to section 1109, subdivision (a), upon a defendant’s request, a case in
which a gang enhancement is charged under section 186.22, subdivision (b) or (d) must
be tried in separate phases. Section 1109, subdivision (b) provides that ‘[i]f a defendant
is charged with a violation of subdivision (a) of Section 186.22, this count shall be tried
separately from all other counts that do not otherwise require gang evidence as an
element of the crime. This charge may be tried in the same proceeding with an allegation
of an enhancement under subdivision (b) or (d) of Section 186.22.’” (Ramos, supra, 77
Cal.App.5th at p. 1129.)
Section 1109 was added because:
“(e) California courts have long recognized how prejudicial gang
evidence is. (See, e.g., People v. Williams (1997) 16 Cal.4th 153, 193.)
Studies suggest that allowing a jury to hear the kind of evidence that
supports a gang enhancement before it has decided whether the defendant is
guilty or not may lead to wrongful convictions. [Citations.] The mere
specter of gang enhancements pressures defendants to accept unfavorable
plea deals rather than risk a trial filled with prejudicial evidence and a
substantially longer sentence.
“(f) Bifurcation of trials where gang evidence is alleged can help
reduce its harmful and prejudicial impact.” (Stats. 2021, ch. 669, § 2,
subds. (e), (f).)
ii. Analysis
Defendants’ right to bifurcation under section 1109 is purely statutory. (Ramos,
supra, 77 Cal.App.5th at pp. 1131–1133 [concluding § 1109 error was harmless under
People v. Watson (1956) 46 Cal.2d 818, 836 (Watson)].) “‘Typically, a defendant who
new lighter penalty now deemed to be sufficient should apply to every case to which it
constitutionally could apply”).
24.
has established error under state law must demonstrate there is a reasonable probability
that in the absence of the error he or she would have obtained a more favorable result.’”
(People v. Anzalone (2013) 56 Cal.4th 545, 553; accord People v. Epps (2001) 25 Cal.4th
19, 29 [where the error “is purely one of state law, the Watson harmless error test
applies”].)
Here, the evidence of defendant’s guilt supporting his robbery conviction was
strong. Alfredo testified defendant pulled out a firearm, pointed it at his stomach, and
demanded he hand over his money and cell phone, which he subsequently did. Later on,
officers located defendant and found him with $75 and two cell phones, one of which was
identified by Alfredo as belonging to him. Alfredo identified defendant both on scene
and in court as the individual who pointed the gun at him and demanded his property.
Subsequently, officers located a firearm in a side yard of the residence, which Alfredo
later identified as appearing as similar to the one used during the robbery. Defendant was
also observed in photographs with a firearm and high-capacity magazine, similar to the
firearm located at the robbery scene.
Additionally, some of the gang evidence was relevant to motive. (People v.
Samaniego (2009) 172 Cal.App.4th 1148, 1167 [“evidence related to gang membership is
not insulated from the general rule that all relevant evidence is admissible if it is relevant
to a material issue in the case other than character, is not more prejudicial than probative,
and is not cumulative”].) It was relevant for the jury to hear that gang members commit
robberies because it “forc[es] others to give up their money and their property, in turn
they can use that money to … pay their hood taxes” and “[t]hey can use it to pay for other
gang members’ bail when they get arrested.” Further, because robbery is a violent crime
it has a “negative effect on the community” in that it keeps others from reporting bad
behavior going forward. However, any potential prejudice from the gang evidence was
mitigated when the trial court provided the jury with a limiting instruction regarding its
consideration of the gang evidence, which we presume it followed. (See People v.
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Pearson, supra, 56 Cal.4th at p. 414 [“We presume that jurors understand and follow the
court’s instructions.”].) Accordingly, we conclude defendant was not prejudiced by the
failure to bifurcate the gang enhancement allegations. (See People v. Hernandez (2004)
33 Cal.4th 1040, 1051 [“Any evidence admitted solely to prove the gang enhancement
was not so minimally probative on the charged offense, and so inflammatory in
comparison, that it threatened to sway the jury to convict regardless of defendants’ actual
guilt.”].) Therefore, we affirm defendant’s conviction for second degree robbery. (See
People v. E.H., supra, 75 Cal.App.5th at p. 480 [failure to bifurcate was harmless under
Watson standard in light of “‘overwhelming’” evidence in support of robbery
convictions, stating “[e]ven if section 1109 applied retroactively to this case—an issue
we need not and do not decide here—E.H. cannot show it is ‘reasonably probable’ he
would have obtained a more favorable result if his trial had been bifurcated”].)
IV. Defendant is Entitled to Resentencing
In supplemental briefing, defendant contends newly enacted Senate Bill 567 and
Assembly Bill 124 apply retroactively to his case, and he is entitled to the benefits of
newly amended section 1170. The People agree defendant is entitled to the benefit of the
recent amendments and, thus, remand is required. We accept the People’s concession,
vacate defendant’s sentence, and remand for resentencing.
Prior to Senate Bill 567, section 1170, subdivision (b), provided as follows:
“When a judgment of imprisonment is to be imposed and the statute
specifies three possible terms, the choice of the appropriate term shall rest
within the sound discretion of the court. At least four days prior to the time
set for imposition of judgment, either party or the victim, or the family of
the victim if the victim is deceased, may submit a statement in aggravation
or mitigation. In determining the appropriate term, the court may consider
the record in the case, the probation officer’s report, other reports, including
reports received pursuant to Section 1203.03, and statements in aggravation
or mitigation submitted by the prosecution, the defendant, or the victim, or
the family of the victim if the victim is deceased, and any further evidence
introduced at the sentencing hearing. The court shall select the term which,
in the court’s discretion, best serves the interests of justice. The court shall
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set forth on the record the reasons for imposing the term selected and the
court may not impose an upper term by using the fact of any enhancement
upon which sentence is imposed under any provision of law. A term of
imprisonment shall not be specified if imposition of sentence is
suspended.” (§ 1170, former subd. (b).)
As amended effective January 1, 2022, section 1170, subdivision (b), provides in
relevant part, “When a judgment of imprisonment is to be imposed and the statute
specifies three possible terms, the court shall, in its sound discretion, order imposition of
a sentence not to exceed the middle term .…” (Id., subd. (b)(1).) “The court may impose
a sentence exceeding the middle term only when there are circumstances in aggravation
of the crime that justify the imposition of a term … exceeding the middle term, and the
facts underlying those circumstances have been stipulated to by the defendant, or have
been found true beyond a reasonable doubt at trial by the jury or by the judge in a court
trial .…” (Id., subd (b)(2).)
Further, Assembly Bill 124 sets a presumption the trial court will impose the lower
term under enumerated circumstances, such as where an offender’s childhood trauma or
youth were contributing factors in the offense. The legislation added subdivision (b)(6)
to section 1170 and states:
“(6) Notwithstanding paragraph (1), and unless the court finds that
the aggravating circumstances outweigh the mitigating circumstances that
imposition of the lower term would be contrary to the interests of justice,
the court shall order imposition of the lower term if any of the following
was a contributing factor in the commission of the offense:
“(A) The person has experienced psychological, physical, or
childhood trauma, including, but not limited to, abuse, neglect, exploitation,
or sexual violence.
“(B) The person is a youth, or was a youth as defined under
subdivision (b) of Section 1016.7 at the time of the commission of the
offense.
“(C) Prior to the instant offense, or at the time of the commission
of the offense, the person is or was a victim of intimate partner violence or
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human trafficking.” (§ 1170, subd. (b)(6); Stats. 2021, ch. 695, § 5.1, eff.
Jan. 1, 2022.)
Section 1016.7, subdivision (b), states, “A ‘youth’ for purposes of this section includes
any person under 26 years of age on the date the offense was committed.”
As this case is not yet final, defendant is entitled to the retroactive application of
section 1170, as amended by Senate Bill 567 and Assembly Bill 124 because the
amendments are ameliorative, and nothing indicates the Legislature intended the
amendments to apply solely prospectively. (People v. Flores (2022) 73 Cal.App.5th
1032, 1038–1039.)
Here, because defendant was 21 years old at the time of the offense, it is possible
his age “was a contributing factor in the commission of the offense” that may require
imposition of the lower term. (§ 1170, subd. (b)(6).) We do not address the merits of
defendant’s claim regarding the application of Senate Bill 567 to his sentence in light of
our decision remand is necessary under Assembly Bill 124. (People v. Valenzuela (2019)
7 Cal.5th 415, 424–425 [“[T]he full resentencing rule allows a court to revisit all prior
sentencing decisions when resentencing a defendant.”]; accord, People v. Buycks (2018)
5 Cal.5th 857, 893 [“‘the full resentencing rule’”].)
DISPOSITION
Defendant’s sentence is vacated and this matter is remanded for resentencing
consistent with this opinion. Pursuant to Assembly Bill 333, we dismiss the gang
enhancements (§ 186.22, subd. (b)(1)) as to all counts, but conclude the People are not
foreclosed from retrying defendant on these enhancements on remand. Thereafter, the
trial court is directed to file an amended and corrected abstract of judgment and transmit
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copies thereof to the appropriate authorities. In all other respects, the judgment is
affirmed.
MEEHAN, J.
WE CONCUR:
LEVY, Acting P. J.
FRANSON, J.
29.