People v. Gomez CA4/2

Opinion

Filed 6/4/26 P. v. Gomez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E085752

v. (Super.Ct.No. SWF1600506)

ANDY MARAS GOMEZ, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. John M. Monterosso,

Judge. Affirmed in part; reversed in part with directions.

Laura Vavakin, under appointment by the Court of Appeal, for Defendant and

Appellant.

Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney

General, Arlene A. Sevidal, Assistant Attorney General, Steve Oetting and Eric Tran,

Deputy Attorneys General, for Plaintiff and Respondent.

1 INTRODUCTION

Andy Gomez appeals from an order resentencing him under Penal Code section

1172.75.1 He argues that the court erred by (1) failing to strike his gang enhancement

under the amendments made to section 186.22 by Assembly Bill No. 333 (2021–2022

Reg. Sess.) (Assembly Bill 333) and (2) reimposing the upper term on the principal count

based on aggravating factors that had neither been admitted by him nor found true

beyond a reasonable doubt. We agree with the first contention but not the second. We

therefore vacate the admitted gang enhancement but otherwise affirm. On remand, the

prosecution shall have the opportunity to establish the enhancement under current law

either by plea or by trial, if they so desire.

BACKGROUND

In April 2016, after Gomez and two other inmates attacked another inmate in jail,

the People charged Gomez with assault by means of force likely to produce great bodily

injury (§ 245(a)(4); count 1), false imprisonment by force (§ 236; count 2), and active

participation in a criminal street gang (§ 186.22, subd. (a); count 3). As to counts 1 and

2, the People alleged that the crimes were committed for the benefit of a criminal street

gang (§ 186.22, subd. (b)(1)). The People also alleged that Gomez served two prior

prison terms (§ 667.5, subd. (b)) and suffered a prior strike conviction (§§ 667,

subd. (c), 1170.12, subd. (c)).

1 Unlabeled statutory citations refer to the Penal Code.

2 In October 2016, pursuant to a negotiated disposition, Gomez waived his right to a

preliminary hearing, pled guilty to the felony assault and false imprisonment charges

(counts 1 and 2), and admitted the gang enhancement attached to the felony assault

charge. Gomez also admitted that he served two prior prison terms and had a prior strike

conviction. In exchange, the prosecution dismissed the gang participation charge (count

3) and the gang enhancement to the false imprisonment charge. The trial court sentenced

Gomez to the stipulated term of 15 years four months in prison, which included the upper

term of four years for the felony assault, doubled to eight years under the three strikes

law, plus four years for the gang enhancement and two years for the three prior prison

term enhancements.

In 2022, Gomez became eligible for resentencing pursuant to section 1172.75. At

a resentencing hearing in August 2023, the trial court struck the two now-invalid prior

prison term enhancements and found good cause to grant Gomez’s unopposed request for

a continuance under section 1050. Gomez’s continued resentencing hearing took place in

January 2025. As relevant here, Gomez asked the trial court to reduce his sentence on the

felony assault to the middle or low term and strike the gang enhancement because the

amendments to section 186.22 made by Assembly Bill 333 applied retroactively to his

case.

After acknowledging that it had already struck the two one-year prior prison term

enhancements, the court imposed the remainder of Gomez’s sentence as it had originally

been imposed—including the upper term for the felony assault and the four-year term for

the gang enhancement—resulting in a sentence of 13 years four months in prison. When

3 reimposing the gang enhancement, the court stated that it would “once again, impose the

four-year term” because it did “not have discretion to relitigate the facts underlying the

gang enhancement.” The court reimposed the upper term for the felony assault based on

several aggravating circumstances. (See Cal. Rules of Ct., rule 4.421 (“Rule 4.421”).)

Regarding the felony assault, the court found that the attack was “vicious” and the victim

was “vulnerable.” (Rule 4.421(a)(1), (3).) Regarding Gomez, the court found that he had

an extensive criminal record, violated parole multiple times, was convicted for an offense

in another county after his incarceration for the current offenses, and declined to be

interviewed by probation and failed to show remorse for the current offenses. (Rule

4.421(b)(2), (b)(4), (c).)

Gomez filed a timely notice of appeal.

DISCUSSION

Section 1172.75 rendered legally invalid any prior prison term enhancement

imposed before January 1, 2020 (unless the enhancement was imposed for a prior

sexually violent conviction), and it created a resentencing procedure for defendants who

are currently serving sentences that include such an enhancement. (§ 1172.75, subds.

(a)–(c).) Section 1172.75, subdivision (c), requires a court to strike any now-invalid prior

prison term enhancement and recall the defendant’s sentence. Section 1172.75,

subdivision (d), provides instructions for resentencing. Among other things, the

provision requires the court to resentence the defendant under current law, including any

“changes in law that reduce sentences.” (§ 1172.75, subd. (d)(2).)

4 On appeal, Gomez argues that the trial court failed to properly apply two such

changes when resentencing him. First, he argues that the current version of section

186.22 required the court to strike the gang enhancement for insufficient evidence.

Second, he contends that the current version of section 1170 prohibited the court from

imposing an upper term sentence without stipulated or jury findings on aggravating

factors.

A. Standard of Review

We review a trial court’s sentencing decisions for abuse of discretion. (People v.

Knowles (2024) 105 Cal.App.5th 757, 765.) A court abuses its discretion when it acts

arbitrarily and capriciously, relies on improper matters, or is unaware of the scope of its

discretion such that it does not exercise its discretion at all. (Id. at p. 765.) We

independently review questions of statutory interpretation implicated by the trial court’s

decisions. (People v. Mathis (2025) 111 Cal.App.5th 359, 366 (Mathis).)

B. Gang Enhancement

Enacted in 1988, the California Street Terrorism Enforcement and Prevention Act

((STEP Act); § 186.20 et seq.) created a sentencing enhancement for a felony committed

“ ‘for the benefit of, at the direction of, or in association with any criminal street gang.’ ”

(People v. Valencia (2021) 11 Cal.5th 818, 828–829, quoting former § 186.22, subd.

(b)(1).) Effective January 1, 2022, Assembly Bill 333 made several changes to the law

governing the gang enhancement. (Stats. 2021, ch. 699, § 3.)

First, Assembly Bill 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

5 persons.” (§ 186.22, subd. (f).) Second, it changed the requirement that a gang’s

members “individually or collectively engage in” a pattern of criminal activity to now

require that any such pattern be “collectively engage[d] in” by members of the gang.

(§ 186.22, subd. (f).) Third, it narrowed the definition of a “ ‘pattern of criminal gang

activity’ ” by requiring that (1) the last offense used to show a pattern of criminal gang

activity occurred within three years of the date of the currently charged offense; (2) the

pattern offenses were committed by two or more gang “members,” as opposed to just

“persons”; (3) the pattern offenses commonly benefitted a criminal street gang; and

(4) none of the pattern offenses is the same as the currently charged offense. (§ 186.22,

subds. (e)(1), (2).) Finally, Assembly Bill 333 narrowed what it means for an offense to

have commonly benefitted a street gang, requiring that any “common benefit” be “more

than reputational.” (§ 186.22, subd. (g).) Examples of “a common benefit that are more

than reputational,” under the amended provision, “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.)

The parties correctly agree that Assembly Bill 333’s amendments to section

186.22 apply retroactively to Gomez’s case because they are ameliorative changes and

Gomez’s case became nonfinal when the court vacated and recalled his sentence

under section 1172.75. (People v. Tran (2022) 13 Cal.5th 1169, 1206-1207; People v.

Padilla (2022) 13 Cal.5th 152, 163; People v. Lopez (2025) 17 Cal.5th 388, 396–

400.) The parties’ dispute concerns the proper remedy for the court’s failure to apply the

new law at Gomez’s resentencing. Gomez argues that the enhancement must be vacated

6 because his plea admissions were legally insufficient to support the enhancement under

current law. He argues that the proper remedy is vacatur and remand to the trial court to

give the People an opportunity to try the enhancement under the amended version of

section 186.22. The People argue that it would be improper for us to vacate the

enhancement on appeal because “[t]he limited record in this case does not allow for a

determination concerning whether the gang enhancement remains legally sufficient in

light of AB 333’s amendments, and any such attempt would be highly speculative.”

According to the People, we should remand the matter to the trial court to determine

whether to strike the enhancement. We agree with Gomez.

In 2016, when Gomez admitted that he committed the felony assault “for the

benefit of, or at the direction of, or in association with a criminal street gang with the

specific intent to promote, further and assist in any criminal conduct by gang members,”

the elements of the gang enhancement were different from what the statute requires now.

Because of those differences, Gomez’s admission did not establish that his gang satisfies

the current definition of a “criminal street gang” (§ 186.22, subd. (d)); that his gang

engaged in a “ ‘pattern of criminal gang activity’ ” (§ 186.22, subd. (e)(1), (2)), or

whether his actions during the felony assault were for the “common benefit” of his gang

(§ 186.22, subd. (g)). As a result, the admission is legally insufficient to support the

enhancement under current law.

Citing People v. Stamps (2020) 9 Cal.5th 685 (Stamps), the People argue that if we

conclude that Gomez’s admission was legally insufficient, then they should be permitted

to withdraw from the plea agreement on remand. But Stamps does not support

7 withdrawal. In that case, our Supreme Court held that a trial court may not modify a plea

agreement because “ ‘[a] plea agreement is, in essence, a contract between the defendant

and the prosecutor to which the court consents to be bound.’ ” (Id. at p. 701; § 1192.5,

subd. (b).) But, as our Supreme Court explained in Doe v. Harris (2013) 57 Cal.4th 64

(Doe), “the terms of the plea agreement can be affected by changes in the law” (id. at

pp. 73-74). “By implementing such changes, the trial court is not altering the terms of

the plea bargain.” (People v. Harrell (2023) 95 Cal.App.5th 161, 168.) Thus, under Doe,

Gomez’s plea agreement is deemed to incorporate the Legislature’s subsequent

enactment of Assembly Bill 333. Consequently, requiring the “parties’ compliance with

changes [to section 186.22] made retroactive to [Gomez] does not violate the terms of the

plea agreement.” (Doe, at p. 73.)

“We therefore conclude that the gang-related enhancement findings must be

vacated and the matter remanded to give the People the opportunity to prove the

applicability of the enhancements under the amendments to section 186.22.” (People v.

Lopez (2021) 73 Cal.App.5th 327, 346.)

C. Upper Term

Gomez contends that the trial court violated section 1170, subdivision (b)(2), and

the Fifth, Sixth, and Fourteenth Amendments by reimposing the upper four-year term for

his felony assault conviction based on aggravating factors that were neither pleaded nor

proven beyond a reasonable doubt. The People respond that Gomez’s challenge is moot

because of the remand for further proceedings on the gang enhancement and that, in any

event, the court’s reimposition of the upper term was proper. Gomez contends his

8 challenge is not moot because this issue will arise on remand. We need not decide

whether the issue is moot because, even if it were, we would exercise our discretion to

address its merits in the interest of clarity and to prevent future disputes. (Vernon v. State

of California (2004) 116 Cal.App.4th 114, 121.) On the merits, we agree with the People

that reimposition of the upper term was proper.

Effective January 1, 2022, Senate Bill No. 567 amended section 1170,

subdivision (b), to make the middle term the presumptive determinate sentence. (People

v. Lynch (2024) 16 Cal.5th 730, 742 (Lynch).) Section 1170, subdivision (b)(2), permits

imposing the upper 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.”

As noted, section 1172.75, subdivision (d)(2), requires the trial court to apply any

“changes in law that reduce sentences” during a resentencing proceeding under its

provisions. However, section 1172.75, subdivision (d)(4), states: “Unless the court

originally imposed the upper term, the court may not impose a sentence exceeding the

middle term unless there are circumstances in aggravation that justify the imposition of a

term of imprisonment exceeding the middle term, and those facts 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.” (Italics added.)

Our appellate courts have addressed the meaning of that italicized first clause and

the interplay between section 1170, subdivision (b)(2), and section 1172.75, subdivisions

9 (d)(2) and (d)(4). With the exception of People v. Gonzalez (2024) 107 Cal.App.5th

312 (Gonzalez), all of the published appellate decisions have interpreted the italicized

first clause of section 1172.75, subdivision (d)(4), as providing an exception to the

second clause’s fact-finding requirement for defendants who were originally sentenced to

the upper term. (See, e.g., People v. Brannon-Thompson (2024) 104 Cal.App.5th 455,

466-467 (Brannon-Thompson); Mathis, supra, 111 Cal.App.5th at pp. 371-374.)

According to the court in Brannon-Thompson, the provision unambiguously states that

section 1170, subdivision (b)(2)’s fact-finding requirement applies only if the

resentencing court is imposing the upper term for the first time. (Brannon-Thompson, at

pp. 466–467.) Brannon-Thompson concluded that section 1172.75, subdivision

(d)(4), permits the resentencing court to reimpose an upper term sentence even if a

factfinder never found an aggravating factor beyond a reasonable doubt. (Brannon-

Thompson, at p. 458.)

Gonzalez, supra, 107 Cal.App.5th 312, acknowledged the reasonableness

of Brannon-Thompson’s interpretation but concluded that the first clause “simply

restrict[s] the scope of defendants eligible to receive the upper term at resentencing to

those who previously received the upper term, instead of creating a condition or

exception independently justifying the imposition of the upper term.” (Gonzalez, at

p. 329, italics omitted.) Gonzalez based its interpretation on its concern that allowing

reimposition of upper terms without meeting section 1170, subdivision (b)’s new fact-

finding requirement could violate the Sixth Amendment protections set out in Apprendi v.

New Jersey (2000) 530 U.S. 466 (Apprendi). (Gonzalez, at pp. 329–330.)

10 In Mathis, the court agreed with Brannon-Thompson’s statutory interpretation and

concluded that Gonzalez’s constitutional concern was misplaced. (Mathis,

supra, 111 Cal.App.5th at pp. 373–374.) Mathis explained that, in 2007, the Legislature

amended section 1170, subdivision (b) to conform with Apprendi by granting trial courts

“ ‘broad discretion’ ” to choose between the lower, middle, and upper terms. (Id. at

p. 371, citing § 1170, former subd. (b), enacted by Sen. Bill No. 40 (2007-2008 Reg.

Sess.); Stats. 2007, ch. 3, § 2, eff. Mar. 30, 2007.) That sentencing scheme, which was in

effect when the defendant in Mathis was originally sentenced—and when Gomez was

originally sentenced—was one that “ ‘ “everyone agrees” ’ ” raised no Sixth Amendment

concerns. (Lynch, supra, 16 Cal.5th at p. 747.) Thus, where, as here, the defendant’s

original upper-term sentence was imposed after that amendment, the sentence already

complied with Apprendi and the reimposition of that term at a section 1172.75

resentencing does not generate new constitutional concerns. Observing that “the

Legislature is . . . free to ‘write statutes that provide for a different or more limited form

of retroactivity, or for no retroactivity at all,’ ” Mathis concluded that the Legislature

intended section 1172.75, subdivision (d)(4), to provide a limited form of retroactivity for

defendants with already-imposed, proper upper-term sentences. (Mathis, at p. 374,

citing People v. Padilla (2022) 13 Cal.5th 152, 162-163.)

Gomez urges us to follow Gonzales and conclude that the trial court erred by

reimposing the upper term at his resentencing, and the People contend that Brannon-

Thompson and Mathis were correctly decided. The Supreme Court has granted review to

resolve this split in authority. (See People v. Eaton (March 14, 2025, C096853) [nonpub.

11 opn.], review granted May 14, 2025, S289903.) Until then, we find the reasoning in

Brannon-Thompson and Mathis more persuasive and decline Gomez’s request to

follow Gonzalez. We therefore reject his challenge to the court’s reimposition of the

upper term on the felony assault count.2

DISPOSITION

Gomez’s admission that he committed count 1 for the benefit of a criminal street

gang (§ 186.22, subd. (b)(1)) and the associated sentence are vacated. On remand, the

People may seek to prove the gang enhancement under current law either by trial or by

plea. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS J. We concur:

McKINSTER Acting P. J.

MENETREZ J.

2 Like Gomez’s Sixth Amendment challenge, his challenges under the Fifth and Fourteenth Amendments depend on a conclusion that Brannon-Thompson’s interpretation of section 1172.75, subdivision (d)(4), violates Apprendi. Because we agree with Brannon-Thompson’s interpretation and discern no Apprendi issues with the reimposition of the upper term sentence, we reject those additional constitutional claims.