California Court of Appeal Jun 9, 2022 No. E077287Unpublished
Filed 6/9/22 P. v. Smith CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E077287
v. (Super.Ct.No. FWV1503902)
JAMES A. SMITH, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Ingrid Adamson
Uhler, Judge. Vacated in part and remanded with directions.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Arlene A. Sevidal and
Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
This is defendant James Smith’s second appeal. In a prior unpublished opinion,
we affirmed Smith’s convictions and remanded the matter for resentencing. (People v.
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Smith (Apr. 15, 2020, E070717) [nonpub. opn.].) On appeal from Smith’s new sentence,
his appointed counsel filed a brief raising no issues, but we requested supplemental
briefing about the effect of recently enacted Assembly Bill No. 333 (2021-2022 Reg.
Assembly Bill 333 also altered the definition of “‘pattern of criminal gang
activity’” in the statute. (E.H., supra, 75 Cal.App.5th at p. 477; § 186.22, subd. (e)(1) &
(2).) The prosecution previously “needed to prove ‘only that those associated with the
gang had committed at least two offenses from a list of predicate crimes on separate
occasions within three years of one another.’” (E.H., at p. 477; Former § 186.22, subd.
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(e)(1).) Assembly Bill 333 made the following changes to that definition: (1) “the
predicate offenses now must have been committed by two or more ‘members’ of the gang
(as opposed to any persons)” (E.H., at p. 477; § 186.22, subd. (e)(1)); (2) “the predicate
offenses must be proven to have ‘commonly benefited a criminal street gang’” (E.H., at
p. 477; § 186.22, subd. (e)(1)), and the common benefit must be “more than reputational”
(§ 186.22, subd. (e)(1)); (3) “the last predicate offense must have occurred within three
years of the date of the currently charged offense” (E.H., at p. 477; § 186.22, subd.
(e)(1)); (4) “the list of qualifying predicate offenses has been reduced” (E.H., at pp. 477-
478; § 186.22, subd. (e)(1)); and (5) “the currently charged offense no longer counts as a
predicate offense” (E.H., at p. 478; § 186.22, subd. (e)(2)).
Assembly Bill 333 further amended the statute so that it now defines “to benefit,
promote, further, or assist” as meaning “to provide a common benefit to members of a
gang where the common benefit is more than reputational.” (§ 186.22, subd. (g).) The
statute identifies some “[e]xample’s of a common benefit that are more than
reputational,” which “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.” (Ibid.)
In addition to these substantive changes to section 186.22, Assembly Bill 333
added section 1109, under which a defendant charged with a gang enhancement under
section 186.22, subdivision (b), “may request a bifurcated trial, in which the defendant is
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first tried for the underlying offense, and only upon conviction is tried for any gang
enhancements. (§ 1109, subd. (a).)” (Sek, supra, 74 Cal.App.5th at p. 665.)
B. Retroactivity
The parties agree, as do we, that under In re Estrada (1965) 63 Cal.2d 740, 744
(Estrada), Assembly Bill 333 applies retroactively to defendants whose judgments of
conviction were not final when Assembly Bill 333 became effective. (E.H., supra, 75
Cal.App.5th at p. 478.) However, the People argue that Smith’s convictions, including
the true findings on the two gang enhancements, were final when Assembly Bill 333
became effective, because we affirmed those convictions on direct appeal and remanded
the matter to the trial court for resentencing only. We are not persuaded.
Under Estrada, supra, 63 Cal.2d 740, absent legislative intent to the contrary, we
presume that the Legislature intended ameliorative changes to the criminal law to apply
to all criminal cases not yet final on appeal. (Id. at pp. 744-746; People v. Nasalga
(1996) 12 Cal.4th 784, 796.) The Estrada rule applies to ameliorative statutes
“governing penalty enhancements.” (Nasalga, supra, at p. 792.)
In Estrada, the Supreme Court explained that for purposes of retroactivity “[t]he
key date is the date of final judgment.” (Estrada, supra, 63 Cal.2d at p. 744; People v.
Esquivel (2021) 11 Cal.5th 671, 676.) An ameliorative statute applies retroactively to a
case if it “becomes effective prior to the date the judgment of conviction becomes final.”
(Estrada, at p. 744.) For purposes of determining retroactivity of an ameliorative statute,
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“‘judgment is not final until the time for petitioning for a writ of certiorari in the United
States Supreme Court has passed.’” (People v. Vieira (2005) 35 Cal.4th 264, 306.)
The People argue that our remand for the limited purpose of resentencing on
Smith’s initial appeal did not “impact the finality of [Smith’s] convictions and true
findings for the associated gang enhancements,” so his convictions were final for
purposes of Estrada, supra, 63 Cal.2d 740 when Assembly Bill 333 became effective
after the trial court resentenced Smith. This argument fails. It is foreclosed by the
Supreme Court’s recent decision in People v. Padilla (May 26, 2022, S263375) __
Cal.5th __ [2022 Cal.Lexis 2916] (Padilla). There, the Attorney General conceded that
the vacatur of the defendant’s sentence on habeas corpus rendered the judgment nonfinal,
and our Supreme Court agreed. (Id. at p. [8].) The court explained that a criminal “case
is final when ‘the criminal proceeding as a whole’ has ended [citation] and ‘the courts
can no longer provide a remedy to a defendant on direct review’ [citation].” (Ibid.) The
court concluded that the defendant’s case was nonfinal under Estrada because the
defendant was appealing from a new sentence imposed after the original sentence was
vacated. (Id. at pp. [8]-9.) The court rejected the Attorney General’s argument that for
Estrada purposes there exists a distinction “between cases that are nonfinal because the
defendant is undergoing retrial or resentencing and those in a newly coined procedural
stance—cases ‘not yet final on initial review.’” (Id. at p. [9].)
The People’s argument that Assembly Bill 333 does not apply here because it “is
not a sentencing bill” and does not “involve sentencing issues” is also foreclosed by
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Padilla. Padilla did not involve a sentencing issue but instead concerned applicability of
Proposition 57’s requirement that minors can be tried and sentenced in criminal court
only after a juvenile transfer hearing has been conducted. (Padilla, supra, 2022
Cal.Lexis 2916, at p. [4].)
For all of these reasons, we conclude that Smith’s judgment of conviction is not
final, and Assembly Bill 333 applies retroactively to his nonfinal judgment of conviction.
C. Smith’s Gang Enhancements
The People concede that if we conclude that Smith’s judgment of conviction is not
final, then reversal is required because the jury instructions allowed the jury to make
findings on grounds that are no longer permissible and did not require the jury to find
some of the elements that are now necessary. The People also concede that the error was
prejudicial. We agree.
To determine whether reversal is required in this case, we apply the harmlessness
standard articulated in Chapman v. California (1967) 386 U.S. 18, 24. (E.H., supra, 75
Cal.App.5th at p. 479; Sek, supra, 74 Cal.App.5th at p. 668.) Under that standard,
reversal is required unless it appears beyond a reasonable doubt that the failure to require
proof of the new elements for the enhancements at Smith’s trial did not contribute to the
true findings on the gang enhancements. (E.H., at p. 479.)
Here, we cannot conclude that allowing the jury to make findings on grounds that
are no longer permissible and failing to require proof of additional elements that are now
necessary was harmless beyond a reasonable doubt. First, the jury was not instructed that
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in order to find that the offenses were committed for the benefit of, at the direction of, or
in association with a criminal street gang the jury had to find that the benefit was more
than reputational, as is now required. (§ 186.22, subd. (g).) Moreover, Wilf opined that
the offenses benefitted Pasadena Denver Lanes in part because they bolstered the gang’s
reputation. In light of that testimony, regardless of the other nonreputational ways in
which Wilf testified that the offenses benefitted the gang, “we cannot rule out the
possibility that the jury relied on reputational benefit to the gang as its basis for finding
the enhancements true.” (Sek, supra, 74 Cal.App.5th at p. 669.) Second, the jury was
instructed that if it found Smith guilty of any of the underlying offenses, it could rely on
those offenses to establish the pattern of criminal gang activity necessary to find that the
Pasadena Denver Lanes constituted a criminal street gang. The prosecutor emphasized
that point in closing argument. The statute no longer allows the charged offenses to be
used for that purpose. (§ 186.22, subd. (e)(2).)
The proper remedy under these circumstances—when “newly required elements
were ‘never tried’ to the jury” (E.H., supra, 75 Cal.App.5th at p. 480) and the jury was
allowed to make findings on grounds that are no longer permissible—“is to remand and
give the People an opportunity to retry the affected charges” (ibid.). We therefore vacate
the true findings on the enhancements under section 186.22, subdivision (b)(1), and
remand to the trial court for further proceedings consistent with this opinion. We need
not and do not address the additional questions concerning the abstract of judgment and
custody credits on which we also requested supplemental briefing.
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DISPOSITION
We vacate the true findings on the gang enhancements under section 186.22,
subdivision (b)(1)(A) and (C). We remand to the trial court to give the People the
opportunity to retry the enhancements under the new law as amended by Assembly Bill
333, and to conduct further proceedings as appropriate.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ J.
We concur:
SLOUGH Acting P. J. FIELDS J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that Assembly Bill 333 applies retroactively to the defendant's nonfinal judgment, requiring the vacatur of gang enhancement findings because the jury was not instructed on the new statutory elements.
Issues
Whether Assembly Bill 333 applies retroactively to a defendant whose conviction was affirmed on appeal but whose case was remanded for resentencing.
Whether the failure to instruct the jury on the amended elements of the gang enhancement statute was prejudicial error.
Disposition. vacated in part and remanded
Quotations verified verbatim against the opinion
“Smith’s judgment of conviction was not final when Assembly Bill 333 became effective, so Assembly Bill 333 applies to his case.”