People v. Smith CA4/2

Opinion

Filed 6/9/22 P. v. Smith CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 In a prior unpublished opinion,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.

1 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.

Sess.) (Assembly Bill 333) (Stats. 2021, ch. 699), which amended the gang enhancement

statute (Pen. Code, § 186.22, subd. (b)(1); undesignated statutory references are to this

code).

The People argue that Assembly Bill 333 does not apply retroactively because

Smith’s convictions became final when we previously affirmed them. The People

nevertheless concede, and the parties agree, that if we conclude that Smith’s judgment of

conviction was not final when Assembly Bill 333 became effective, then the amendments

apply retroactively to Smith’s case and we should vacate the true findings on the gang

enhancements. We conclude that Smith’s judgment of conviction was not final when

Assembly Bill 333 became effective, so Assembly Bill 333 applies to his case. We

concur with the parties that the proper remedy is to vacate the true findings on the gang

enhancements and to remand for further proceedings.

BACKGROUND

We describe only those facts relevant to the issues in this appeal concerning the

gang enhancement allegations under section 186.22, subdivision (b)(1). Smith and

codefendant Donovan Gardner were charged with the following offenses: first degree

burglary with a person present (§ 459; count 1), felony evasion of law enforcement (Veh.

Code., § 2800.2, subd. (a); count 2), assault of a law enforcement officer (§ 245, subd.

2 (c); count 3), and active participation in a criminal street gang (§ 186.22, subd. (a); count

4). For the first three offenses, Smith and Gardner were charged with committing the

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

with the intent to promote, further, or assist in criminal conduct. (§ 186.22, subd. (b)(1).)

Detective Dustin Wilf testified as an expert on the Pasadena Denver Lanes, which

he testified is a gang. Wilf opined that Smith was an associate and likely a member of

the Pasadena Denver Lanes and that Gardner was a member.

The prosecutor presented Wilf with a hypothetical mirroring the underlying facts

in this case. Wilf opined that in committing the underlying burglary and evading law

enforcement officers, Smith and Gardner were “acting with intent to further, promote, or

assist criminal conduct by Pasadena Denver Lanes gang members.” Wilf explained that

committing the crimes bolstered the reputation of the gang and the members themselves.

Wilf further explained that when two gang members commit a crime together, it benefits

the gang by bolstering its reputation. According to Wilf, reputation is “very important”

in gang culture. A gang with a “stronger reputation” is less likely to be attacked by

rivals.

In addition, Wilf opined that the underlying burglary benefitted the Pasadena

Denver Lanes by allowing the gang to profit from the proceeds of the burglary. Wilf also

opined that successful evasion of law enforcement benefitted the gang because two gang

members would remain on the street, which would allow them to commit more crimes, to

generate more revenue, and to intimidate others.

3 With respect to the substantive gang offense under section 186.22, subdivision (a),

the jury was instructed with former CALCRIM No. 1400. The jury also was instructed

with former CALCRIM No. 1401 as to the gang enhancements under section 186.22,

subdivision (b)(1). The jury was instructed that a criminal street gang is an ongoing

organization of three or more persons whose members individually or collectively engage

in, or have engaged in, a pattern of criminal gang activity. The jury was instructed that,

in determining what constitutes a pattern of criminal gang activity, the jury could

consider any of the underlying crimes of which the jury found Smith guilty.

A jury convicted Smith of first degree burglary with a person present and felony

evasion of law enforcement. For both of those offenses, the jury also found true the gang

enhancement allegations. The jury found Smith not guilty of assaulting a law

enforcement officer and of the substantive gang offense. Smith was sentenced to 24

years and four months in prison.

We affirmed Smith’s convictions but remanded for resentencing. We directed the

trial court to strike a one-year prior prison term enhancement under section 667.5,

subdivision (b), and to exercise its discretion to impose or strike the gang enhancement

associated with the evasion count. The trial court had improperly stayed the sentence for

that enhancement. On remand, the trial court imposed a one-year term for the gang

enhancement and sentenced Smith to 20 years and four months in prison.

4 DISCUSSION

A. Assembly Bill 333

Under section 186.22, subdivision (b)(1), a defendant who commits an enumerated

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

with the specific intent to promote, further, or assist in criminal conduct by gang

members” (§ 186.22, subd. (b)(1)) “is subject to increased punishment upon conviction”

(People v. Sek (2022) 74 Cal.App.5th 657, 664 (Sek)).

Assembly Bill 333 became effective on January 1, 2022, and made numerous

changes to section 186.22 (People v. E.H. (2022) 75 Cal.App.5th 467, 477 (E.H.)). The

law previously “defined a ‘criminal street gang,’ as ‘any ongoing organization,

association, or group of three or more persons . . . whose members individually or

collectively engage in, or have engaged in, a pattern of criminal gang activity.’ (Former

§ 186.22, subd. (f), italics added.) Assembly Bill 333 narrowed the definition to ‘an

ongoing, organized association or group of three or more persons . . . whose members

collectively engage in, or have engaged in, a pattern of criminal gang activity.’ (Assem.

Bill 333, § 3, revised § 186.22, subd. (f), italics added.)” (Ibid.)

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.

5 (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

6 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,

7 “‘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

8 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

9 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.

10 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.