People v. White CA3

Filed 8/13/25 P. v. White CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento) ----

THE PEOPLE, C101268

Plaintiff and Respondent, (Super. Ct. No. 17FE008801)

v.

DEVON ANTHONY WHITE,

Defendant and Appellant.

In 2018, defendant Devon Anthony White pleaded guilty to the negligent discharge of a gun. He also admitted the allegations that he committed the crime for the benefit of a criminal street gang and that he had prior felony convictions. Pursuant to a plea agreement, the trial court sentenced defendant to 15 years in state prison. In 2023, the trial court resentenced defendant pursuant to Penal Code1 section 1172.75 because his original sentence included an enhancement under section 667.5, subdivision (b). The trial court struck that enhancement but otherwise left

1 Further undesignated statutory references are to the Penal Code.

1

his sentence unchanged. On appeal, defendant argues his counsel was ineffective by not arguing his gang enhancement conviction (§ 186.22) should be vacated because the law changed in the interim to include an additional element he did not admit. Defendant alternatively asks us to remand the case to the trial court for further proceedings on this issue. The People concede defendant’s counsel was ineffective and ask that the case be remanded for further proceedings. We agree the case should be remanded. BACKGROUND In this case, the amended felony complaint charged defendant with driving a vehicle with the intent to evade peace officers (Veh. Code, § 2800.2, subd. (a)), discharging a firearm in a negligent manner (§ 246.3), being a felon in possession of a firearm (§ 29800, subd. (a)(1)), and carrying a loaded gun in a car in a public place (§ 25850, subd. (a)). The complaint further alleged defendant committed these offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)) and defendant had prior convictions (§§ 667, subds. (a), (b)-(i), 667.5, subd. (b), & 1170.12). Pursuant to a plea agreement, defendant pleaded no contest to negligent discharge of a firearm and admitted he had prior strike convictions under sections 667, subdivisions (a), (b) through (i), 1170.12 and 667.5, subdivision (b). As relevant here, the factual basis for the plea was as follows: “defendant did willfully and unlawfully discharge a firearm in a grossly negligent manner which could have resulted in injury or death to a person. [¶] Furthermore, defendant . . . committed the above offense for the benefit of, at the direction of, in association with a criminal street gang, to wit, GMob and Guttah, . . . with the specific intent to promote, further, and assist in criminal conduct by gang members, pursuant to [section] 186.22[, subdivision ](b)(1).” In 2018, section 186.22 contained no requirement the benefit to the gang had to be “more than reputational.” (Former § 186.22; Stats 2017, ch. 561, § 179.) By virtue of Assembly Bill No. 333 (2020-2021 Reg. Sess.) (Assembly Bill 333) effective in 2022, section 186.22, subdivision (g) includes that requirement.