Filed 6/30/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A162472
v.
RAFAEL CAMPBELL, (Alameda County
Super. Ct. No. 164869D)
Defendant and Appellant.
THE PEOPLE,
Plaintiff and Respondent,
A162488
v.
ANTHONY B. PRICE, (Alameda County
Super. Ct. No. 164869B)
Defendant and Appellant.
THE PEOPLE,
Plaintiff and Respondent,
A162623
v.
STEPHON ANTHONY, (Alameda County
Super. Ct. No. 164869A)
Defendant and Appellant.
THE PEOPLE,
Plaintiff and Respondent,
A163277
v.
SAMUEL FLOWERS, (Alameda County
Super. Ct. No. 164869C)
Defendant and Appellant.
1
Appellants, who were jointly convicted of murder in connection with a
gang-related shooting, appeal from a decision by the trial court denying them
resentencing relief under Penal Code1 section 1172.62 from their first degree
murder convictions. They contend the trial court erred in relying on the
jury’s intent to kill findings in connection with two special circumstances to
conclude as a matter of law they are not eligible for relief. We agree with the
People that the trial court was entitled to consider the finding but, based on a
recent decision by our high court, conclude that the intent to kill finding does
not preclude relief as a matter of law. Because the trial court must consider
the trial evidence and assess the strength and credibility of the evidence,
section 1172.6 requires that it issue an order to show cause and conduct an
evidentiary hearing. We remand the section 1172.6 proceedings for that
purpose.
Appellant Anthony drove the car in which Appellants fled from police
after they shot and killed the brother of a rival gang member. Two
bystanders were hit and killed during the ensuing vehicle chase; this resulted
in two second degree murder convictions for each of the Appellants. The trial
court granted relief under section 1172.6 to three Appellants (Price, Campbell
and Flowers) from these two second degree murder convictions.3 These three
1All further statutory references are to the Penal Code except as
otherwise indicated.
2 Section 1172.6 (former section 1170.95) provides persons convicted of
murder prior to the 2019 amendments to the murder statutes to seek relief
from such convictions in the trial court if they could not be convicted of
murder under the current murder statutes. (See section 1172.6; Stats. 2018,
ch. 1015, §4.)
3 For someone other than the actual killer to be liable for a murder
under the new statutes, he must have either aided and abetted a first degree
2
Appellants argue the trial court did not go far enough and should also have
granted them relief from their convictions under Vehicle Code section 2800.3
arising out of the same two bystander killings. They also contend that, after
granting them relief on the second degree murder convictions, the trial court
erred by failing to explicitly strike the multiple-murder special circumstance
found true by the jury as to each of them. Finally, these three Appellants
seek resentencing on the Vehicle Code convictions based on recent legislation
constraining sentencing decisions about whether and when to impose upper,
middle and lower terms of imprisonment. We agree in part and disagree in
part with the contentions of these three Appellants. We remand for the trial
court to strike the multiple murder special circumstance as to these three
Appellants. We affirm the trial court’s denial of relief under section 1172.6
for the Vehicle Code convictions, but we remand for resentencing based on an
amendment to section 1170, subdivision (b), that could affect the sentences
imposed for those convictions.
All Appellants also seek, from this court directly, retroactive relief from
the verdicts imposing a gang-related gun enhancement and a gang-murder
special circumstance on each of them. They seek retroactive application of an
ameliorative change in the law governing gang-related crimes that the
Legislature adopted between the time of the trial court proceedings and the
filing of these appeals. The People argue that the change in law was not a
murder with intent to kill or been a major participant in certain specified
crimes and acted with reckless indifference to human life. (§ 189, subd. (e).)
Anthony did not seek relief from the second degree murder convictions,
presumably because as the driver of the vehicle he was the actual killer of the
two bystanders. Under section 189, a person who, as a participant in a first
degree premeditated murder, is the actual killer of another person may be
guilty of murder for the latter killing, even if unintentional. (See § 189,
subds. (a), (e).)
3
valid amendment to the gang-murder special circumstance. We disagree
based on the reasoning of two of our sister courts, which we adopt, and we
therefore reverse the gang-murder special circumstance. The People also
contend the instruction on the pre-amendment gang statute was harmless
error as to the gang-related gun enhancement found by the jury. We disagree
and reverse the enhancement as well. We also reverse the 25-years-to-life
sentences resulting from the enhancement and the life without parole
sentences resulting from the gang-murder special circumstance. We remand
the gang enhancement and gang special circumstance for retrial at the option
of the People or, if the People choose not to retry Appellants on the gang
enhancement and gang special circumstance, for resentencing without them.
Finally, these appeals also challenge the trial court’s decision, on
remand under a recent statute providing it with discretion to strike
enhancements and prior strikes, declining to strike either the enhancements
or the prior strikes. We conclude the trial court did not abuse its discretion
in declining to strike the enhancements and the prior strikes.
BACKGROUND
A. Trial and Direct Appeal
In 2013, after a 39-day trial, a jury found Appellants4 Stephon
Anthony, Rafael Campbell, Samuel Flowers and Anthony B. Price guilty of
the first degree murder of Charles Davis, after Anthony drove them into the
territory of a rival gang in Berkeley and Flowers used a semi-automatic
assault rifle to fire 17 bullets at the brother of a member of the rival gang.
There was evidence that the killing was motivated by the desire to retaliate
4 For clarity, we refer to Appellants as such throughout this opinion
whether we are discussing the trial, the original appeal or the remand and
resentencing proceedings.
4
against the Berkeley gang Appellants believed had murdered Ngo Nguyen, a
member of the Oakland gang to which Appellants belonged. The jury found
true an enhancement for gang-related use of a firearm by a principal. The
jury also found Appellants guilty of two counts each of vehicular evasion of a
police officer causing death and two counts each of second degree murder,
both based on the killings of a pedestrian (Ross) and the driver of a car
(Perea), who were killed in a collision in which Anthony drove Appellants in a
high-speed vehicle chase seeking to evade police after the shooting.
As to the first degree murder count, the jury also found true as to each
Appellant two special circumstance allegations: first, that he intentionally
killed the victim while he was an active participant in a criminal street gang
and the murder was carried out to further the activities of the gang (§190.2,
subd. (a)(22)), and second, that he intended to kill Davis and committed
multiple murders in this case (id., subd. (a)(3)). Two of the Appellants
waived a jury trial on allegations that they had prior felony convictions, and
the trial court found the allegations true.
On direct appeal, this court affirmed the convictions. In our opinion,
we addressed, among other things, Appellants’ claim of Chiu error5 and held
any error in the instruction on natural and probable consequences in
connection with Appellants’ first degree murder convictions was harmless
beyond a reasonable doubt. (People v. Anthony, 32 Cal.App.5th 1102, 1142-
5 People v. Chiu (2014) 59 Cal.4th 155) (Chiu). In Chiu, the court held
that an aider and abettor may not be held liable for first degree murder
under a natural and probable consequences theory, that is, for aiding and
abetting some other offense, the natural and probable consequence of which
was murder. Subsequently, the Legislature codified that holding and went
beyond it to eliminate the natural and probable consequences doctrine as a
basis for any degree of murder and limiting the application of the felony
murder doctrine. (People v. Lewis (2021) 11 Cal. 5th 952, 957 (Lewis).)
5
1146 (Anthony I).) We remanded the case for the trial court to exercise the
discretion newly conferred on it by legislation enacted after the trial to strike
or dismiss consecutive 25-years-to-life sentences imposed on all Appellants
for a gang-related principal’s use of a firearm (see Stats. 2017, ch. 682;
§12022.53, subd. (h)) and, with respect to Price and Campbell, to strike
additional consecutive five-year enhancements for prior serious felony
convictions. (See Stats. 2018, ch. 1013, §§ 1-2, amending §§ 667, subd. (a)
and 1385, subd. (b).)
B. Remand and Resentencing
While the remand was pending, each of the Appellants sought
resentencing under section 1172.6 [previously section 1170.95], asserting that
a complaint was filed against him that allowed the prosecution to proceed
under a theory of murder under the natural and probable consequences
doctrine or other theory under which malice is imputed to a person based
solely on that person’s participation in a crime; that he was convicted of
murder following a trial; and that he could not presently be convicted of
murder because of changes to sections 188 or 189 made effective January 1,
2019.
In April 2021, the Honorable Thomas M. Reardon, who had presided
over Appellants’ 2013 trial, heard the section 1172.6 petitions of Anthony,
Price and Campbell together with our directive on remand that the court
exercise its discretion whether to strike the gun and prior serious felony
enhancements. The court heard Flowers’s petition in August, having
continued the hearing at his counsel’s request.
As to the remand, the court declined to strike either the gang-related
gun use enhancement or the prior serious felony conviction enhancements.
Explaining its exercise of discretion, the court stated that the evidence “was
6
overwhelming” that Flowers was the shooter and Anthony, Price and
Campbell were not. However, the latter was “not of any moment” because
the gang-related gun use enhancement applied “vicariously” to each
Appellant [with footnote if needed saying using “appellant” vs “petitioner” for
clarity] where any principal in a gang offense personally and intentionally
discharged a firearm proximately causing great bodily injury or death. (See
§ 12022.53, subds. (d), (e)(1)(A); § 186.22, subd. (b)). Further, this was not a
situation, the court observed, in which these three co-defendants had been
convicted of the enhancement “simply because they were from the same
neighborhood as Mr. Flowers” or were “members of the same street gang.”
Rather, “It goes far beyond that: Their presence at the time of the shooting
itself, the fact that more than one of them was armed at the time, the fact
that it was obvious that substantial planning went on evidenced by the
telephone communications that went on in the days leading up to the killing
of Mr. Davis after the death of the other gentleman, Mr. Ngo . . . .” This was
“more than just a technical violation” of the enhancement statute but was “a
classic case for its applicability particularly in a murder case.” For these
reasons, the court declined to strike either the 25-year gang-related gun use
enhancement as to Anthony, Campbell and Price or the five-year
enhancements for prior serious felony convictions as to Price and Campbell.
(§ 667, subd. (a)(1).) The court subsequently declined to strike the gang-
related gun use enhancement as to Flowers as well.
Before ruling on the section 1172.6 petitions, Judge Reardon had
appointed counsel to represent each of the Appellants. Counsel filed such
7
petitions on behalf of each of the four Appellants,6 and a deputy district
attorney filed a response for the People.
Counsel for the People conceded that under the change in the murder
statutes, Price, Campbell and Flowers were entitled to relief from their
convictions of second degree murder as to victims Ross and Perea, who were
struck and killed during the high speed chase, because they were not the
actual killers of those two victims and there was no evidence that they had
intended to kill those victims. The court accepted the People’s concessions,
vacated the second degree murder convictions as to Price, Campbell and
Flowers and resentenced them on the separate counts for vehicular evasion
causing death.
Anthony did not seek relief from the second degree murder charges
against him, and the People made no such concession as to him because, as
the driver of the car, he was “therefore the direct perpetrator of the murders.”
Thus, he had not been convicted based on a theory of vicarious liability or
aiding and abetting but on a finding that he acted with implied malice
(conscious disregard for life) in causing Ross’s and Perea’s deaths.
As to Appellants’ first degree murder convictions, the trial court denied
relief without issuing an order to show cause or holding an evidentiary
hearing. It recognized that at the first stage of a section 1172.6 hearing,
where it had not issued an order to show cause and was determining whether
petitioners had established a prima facie case sufficient to require it to issue
one, it “should not engage . . . in fact finding, credibility determination, things
like that, but—and so all sorts of things one might do at a broader
6 Price filed a petition on his own behalf at about the same time
counsel was appointed for him, which the trial court denied without prejudice
to counsel filing a petition on his behalf, which that counsel then did.
8
evidentiary hearing” but that “if the merits of the petition[] are foreclosed as
a matter of law by the—particularly the findings of the jury . . . , that would
seem to be a different situation . . . .” “If the petition is legally foreclosed by
the findings of the jury, the Court can resolve the petition on that basis.”
Although the California Supreme Court issued its decision in People v.
Lewis, supra, 11 Cal.5th 952 two months after the trial court made these
observations, the trial court’s comments accurately presaged the high court’s
holding in Lewis that, at the prima facie stage, trial courts should not reject
petitioners’ allegations on credibility grounds or engage in weighing of
evidence or factfinding. (Id. at pp. 971-972.) The trial court also predicted
Lewis’s holding that trial courts may consider documents in the record of
conviction, such as the jury’s findings of fact, where relevant to whether a
petitioner has established a prima facie case, including whether the
petitioner could not presently be convicted of first or second degree murder
because of changes to the murder statute. (Id. at pp. 970-972 & fn. 6.)
The trial court did not weigh evidence, make credibility determinations
or engage in factfinding of the kind Lewis held should not occur without an
evidentiary hearing. It did, however, consider the record to determine
whether the petitions were “foreclosed as a matter of law.” Specifically, it
consulted findings the jury necessarily made in issuing the true verdicts on
the two special circumstances (murder to benefit a street gang and multiple
murders)—that Appellants intended to kill Davis. The jury made
“individualized determinations that these gentlemen had an actual intent to
kill.” Given these verdicts and the jury’s finding “that each of these
gentleman [sic] beyond a reasonable doubt had the intent to kill Mr. Davis,”
the court concluded, Appellants “will never be able to show” that they were
9
“entitled to relief” and “as a matter of law” could not “make a prima facie
case.”
The court in essence reiterated this analysis when ruling on the
Flowers petition in August 2021, after the Supreme Court issued the Lewis
decision. “The procedural posture is that there’s a petition, I look to the facial
sufficiency of the petition and I can take judicial notice of certain court
records, which I believe includes the information and the verdict forms. But
I’m not sure I can consider the evidence.” The court concluded that the jury’s
finding beyond a reasonable doubt that each of the Appellants intended to
kill Davis demonstrates “that the jury did not use [the] natural and probable
consequences doctrine to get to murder.”
C. The Current Appeal
On appeal from the trial court’s resentencing decisions, each Appellant
raises challenges to a number of aspects of the trial court’s rulings, and
complicating matters further, joins in some of the challenges raised by the
other Appellants. Most significantly, all Appellants challenge the trial
court’s denial of resentencing on their first degree murder convictions,
claiming among other things that the jury’s verdicts on the gang-related
killing and multiple-murder special circumstances, and specifically, the
findings reflected by those verdicts that Appellants intended to kill, do not
demonstrate as a matter of law that they are guilty of first degree murder for
the shooting death of Charles Davis.
Appellants contend that Assembly Bill No. 333 (2021–2022 Reg. Sess.)
(Assembly Bill 333) which amended the definition of “criminal street gang”
while their current appeals were pending, requires that the jury’s finding
true the special circumstance for intentionally killing a victim while
defendant was an active participant in a criminal street gang and in
10
furtherance of the activities of the gang (§ 190.2, subd. (a)(22)) must be
stricken along with the sentence of life without parole imposed based on that
finding. For similar reasons, Appellants challenge the gang-related gun use
enhancement that added a 25-year-to-life consecutive term to their sentences
under section 12022.53, subdivision (h), on the grounds Assembly Bill 333
retroactively applies to heighten the showing required for certain elements of
the enhancement and further contend it only applies to malice murder.
Price, joined by Campbell, contends the Vehicle Code section 2800.3
homicide convictions, which after striking three of the Appellants’ second
degree murder convictions the court resentenced them, must be vacated
because they are based on the natural and probable consequences doctrine.
Appellants raise a plethora of other claimed abuses of discretion in the
trial court’s handling of the remand issues and claimed errors in its decision
on the resentencing petitions, each of which we will address below.
DISCUSSION
A. Appellants’ Claims of Error in Resentencing Under
Section 1172.6
1. The Trial Court Erred in Deciding at the Prima Facie
Stage That the Intent to Kill Findings by the Jury
Precluded Relief from the First Degree Murder
Conviction As a Matter of Law and Remand Is Necessary.
Appellants challenge the trial court’s denial, in connection with their
resentencing petitions under section 1172.6, of their request that it vacate
their convictions for the first degree murder of Davis. They claim the court
erred in placing dispositive weight on the jury’s findings, in connection with
the gang and multiple-murder special-circumstances verdicts, that
Appellants each intended to kill Davis. First, they argue the gang special
circumstances findings can no longer be considered at all because of the
11
enactment of Assembly Bill 333, which narrowed the definitions of “criminal
street gang” and “pattern of criminal gang activity” that are cross-referenced
in the gang-related gun use special circumstance statute. (See §§ 190.2,
subd. (a)(22) [special circumstance provision incorporating §186.22, subd. (f)];
Stats. 2021, ch. 699, § 3 [186.22 subds. (e)(1)&(2), (f), (g)].)
Second, Appellants also argue the jury’s findings that each Appellant
intended to kill Davis do not as a matter of law establish the elements of
aiding and abetting first degree murder. Specifically, the intent to kill
finding does not establish as a matter of law that the Appellants who did not
shoot Davis “performed act[s] which ‘aided or encouraged the commission of
the murder.’ ” To determine whether there was such aiding and abetting,
Appellants posit, the court would have to look at the evidence, and making
findings based on evidence involves weighing and balancing that should not
occur at the prima facie stage but only at an evidentiary hearing held after
issuance of an order to show cause. (See Lewis, supra, 11 Cal.5th at pp. 971-
972 [“In reviewing any part of the record of conviction at this preliminary
juncture, a trial court should not engage in ‘factfinding involving the
weighing of evidence or the exercise of discretion’ ”]; People v. Duchine (2021)
60 Cal.App.5th 798, 815 [“[T]he time for weighing and balancing and making
findings on the ultimate issues arises at the evidentiary hearing stage rather
than the prima facie stage, at least where the record is not dispositive on the
factual issues”].)
The People disagree with both arguments. As to the first, they contend
that Assembly Bill 333 did not effectively amend the gang-murder special
circumstance because the latter was adopted by initiative and established
limited criteria not met by Assembly Bill 333 for amendment by the
12
Legislature and, in the alternative, instruction under the prior version of the
gang law was harmless beyond a reasonable doubt.
As to the second, they quote the jury verdicts finding each Appellant
“ ‘intentionally killed CHARLES DAVIS while the defendant was an active
participant in NSO gang,[7] . . . and . . . the murder was carried out to further
the activities of the criminal street gang.’ ” These findings, coupled with the
instruction that to find the special circumstance true, it had to decide
whether any defendant who was not the actual killer acted with intent to kill,
the People argue, indicate the jury found defendants acted with express
malice, that is, “ ‘a deliberate intention to unlawfully take away the life of a
fellow creature.’ ” The intent to kill findings in both the gang-murder special
circumstance and the multiple-murder special circumstance, they further
argue, “established, as a matter of law, that Appellants possessed the
requisite malice to disqualify them from relief.”
a. Assembly Bill 333’s Amendment of Section 186.22 Did
Not Vitiate or Preclude Consideration of the Jury’s
Findings That Appellants Intended to Kill.
We agree with the People that Appellants’ first argument lacks merit,
albeit not for the reasons argued by the People. Rather, we reject appellants’
assumption that an amendment—assuming it retroactively applied to the
gang-murder special circumstance and requires reversal and remand of the
verdict on the special circumstance—precludes the trial court from
considering findings the jury expressly made in that verdict on a factual issue
the amendment did not affect.
7 The initials “NSO” refer to a gang known as “North Side Oakland,”
which operated out of the northern part of Oakland, California and had a
number of subsets, monikers and symbols. (Anthony I, supra, 32 Cal.App.5th
at pp. 1106, 1126, 1132-1133.)
13
By way of background, the gang-murder special circumstance is set
forth in section 190.2, subdivision (22), and has three basic elements. The
defendant (1) must have “ ‘intentionally killed the victim,’ ” (2) while he was
“ ‘an active participant in a criminal street gang, as defined in subdivision (f)
of section 186.22,’ ” and (3) in order “ ‘to further the activities of the criminal
street gang.’ ” (People v. Montano (2022) 80 Cal.App.5th 82, 109, 112.)
Section 186.22, which is expressly incorporated in section 190.2,
subdivision (22), was amended by Assembly Bill 333 in 2021, and the
amendments took effect in January 2022, after the trial court ruled on
Appellants’ section 1172.6 petitions. (Stats. 2021, ch. 699, § 3.) The
amendments revised the definition of “criminal street gang” and limited the
meaning of the phrase “pattern of criminal gang activity,”8 affecting the
second and third elements of the gang-murder special circumstance. (See
ibid., amending § 186.22, subds. (e), (f).) It also added a definition of the
phrase “to benefit, promote, further, or assist,” affecting the third element of
the special circumstance. (Stats. 2021, ch. 699, § 3, amending § 186.22,
subd. (g).) However, the changes wrought by the amendments to
section 186.22 did not affect the “intent to kill” element of the special
circumstance on which the jury was instructed and found to be true as to all
Appellants in this case.
As we shall explain, the other changes to section 186.22 may affect the
viability of the special circumstance verdicts here. But they do not detract
from the jury’s express findings, in connection with both the gang-related-
8 The phrase “pattern of criminal gang activity” is used in the
definition of “criminal street gang,” and thus the amendment that limited the
meaning of that phrase implicated the same two elements as the change in
the definition of “criminal street gang” itself.
14
murder special circumstance and the multiple-murder special circumstance,
that each of the Appellants intended to kill Davis. Appellants cite no
authority, nor are we aware of any, holding that a finding expressly made by
a jury cannot be considered in a resentencing proceeding under
section 1172.6 if the crime, enhancement or special circumstance regarding
which it was made is invalidated for reasons wholly unrelated to that
finding.9
b. The Jury’s Findings That Appellants Intended to Kill
Davis Do Not As a Matter of Law Establish They Are
Ineligible for Relief Under Section 1172.6 and Thus an
Evidentiary Hearing Was Required.
Appellants’ second argument, on the other hand, is viable, especially in
view of a new case law development. Earlier this year, our high court
addressed the effect of a gang special circumstances finding on harmless
error analysis as applied to invalid theory error. (In re Lopez (2023)
14 Cal.5th 562.) The court reviewed a decision reversing a trial court’s grant
of habeas corpus to a petitioner who had been convicted of first degree
murder. (Id. at p. 567.) As in this case, the jury had been instructed on both
valid (premeditated murder and aiding and abetting premeditated murder)
and invalid (natural and probable consequences) theories. (Id. at pp. 576-
578.) The appellate court had held the jury’s true finding on the gang-
murder special circumstance rendered the instruction on the natural and
probable consequences theory harmless beyond a reasonable doubt. (Id. at
pp. 567-568.)
9 While our high court has not addressed the precise issue before us, it
has rejected the suggestion that petitioners in resentencing proceedings
under section 1172.6 are free to relitigate adverse factual findings previously
made by the jury under a valid instruction. (See People v. Strong (2022)
13 Cal.5th 698, 714-715.)
15
The Supreme Court reversed, holding the jury’s gang-killing special-
circumstance verdict finding of “intent to kill” did not “necessarily establish
all of the elements of directly aiding and abetting first degree murder. Thus,
it does not in and of itself show the jury made the necessary findings for a
valid theory.” (In re Lopez, supra, 14 Cal.5th at p. 588, italics added; see also
People v. Pacheco (2022) 76 Cal.App.5th 118, 127-128, review granted
May 18, 2022, S274102.)10 However, the court further opined that this did
not “end the harmlessness inquiry” because “ ‘the reviewing court [was] not
limited to a review of the verdict itself.’ ” (In re Lopez, at p. 588.) It could
also consider the evidence admitted at trial. If it determined beyond a
reasonable doubt, based on the jury’s actual verdict and the evidence at trial,
that any rational juror would have made the additional findings
(premeditation and aiding and abetting), the error would be harmless
because natural and probable consequences instruction “made no difference.”
(Id. at p. 589.) The court remanded the case to the Court of Appeal to
reconsider the harmless error issue. (Id. at p. 590.)
10 “Aiders and abettors may still be convicted of first degree
premeditated murder based on direct aiding and abetting principles.
[Citation.] Under those principles, the prosecution must show that the
defendant aided or encouraged the commission of the murder with knowledge
of the unlawful purpose of the perpetrator and with the intent or purpose of
committing, encouraging, or facilitating its commission. [Citation.] Because
the mental state component—consisting of intent and knowledge—extends to
the entire crime, it preserves the distinction between assisting the predicate
crime of second degree murder and assisting the greater offense of first
degree premeditated murder. [Citation.] An aider and abettor who
knowingly and intentionally assists a confederate to kill someone could be
found to have acted willfully, deliberately, and with premeditation, having
formed his own culpable intent. Such an aider and abettor, then, acts with
the mens rea required for first degree murder.” (Chiu, supra, 59 Cal.4th at
pp. 166-167.)
16
The In re Lopez court’s holdings—first, that a jury’s gang-murder
special circumstance finding does “not in and of itself show the jury made the
necessary findings” to support conviction for aiding and abetting first degree
murder; and second, that the appellate court was required look beyond the
verdict to the evidence at trial (see In re Lopez, supra, 14 Cal.5th at pp. 588-
589, italics added)—have a bearing here, even though the procedural aspects
of resentencing are different from harmless error analysis on habeas (or
direct) review of a conviction.11 An appellate court’s assessment on direct
appeal of whether an instruction on a now invalid theory was harmless
beyond a reasonable doubt is substantively similar to the question a trial
court faces in a section 1172.6 hearing whether such instruction made no
difference in the outcome of the case. The court’s prescription for how to
answer that question in the first context sheds light on the second as well.
In re Lopez ’s holding that a finding of intent to kill is not alone
sufficient to establish Lopez was guilty of first degree murder leads us to
conclude that the trial court erred in ruling that the special circumstance
findings of intent to kill rendered Appellants ineligible for section 1172.6
relief as a matter of law. In other words, the verdicts alone do not
conclusively establish that Appellants could be convicted of first degree
murder under a valid murder theory such as premeditated murder or aiding
and abetting or conspiracy to commit premeditated murder.
11 Currently pending before the court is a case with a procedural
posture closer to this one, People v. Curiel, review granted December 14,
2021, S272238, which presents the question whether a jury’s true finding on
a gang-murder special circumstance (§ 190.2, subd. (a)(22)) precludes a
petitioner from making a prima facie showing of eligibility for resentencing
under section 1172.6. The case has been fully briefed, but oral argument has
not been scheduled.
17
In re Lopez’s further holding that resort must be had to the evidence at
trial to answer that question also implicates the procedural error Appellants
claim the trial court committed. At the prima facie stage of a section 1172.6
proceeding, a trial court may not reject the petitioner’s allegations “ ‘on
credibility grounds’ ” or engage in “ ‘factfinding involving the weighing of
evidence or the exercise of discretion.’ ” (Lewis, supra, 11 Cal.5th at pp. 971-
972.) Thus, more is required for the trial court to conclude that the jury’s
finding that Appellants intended to kill shows they committed first degree
murder. The court must consider not only the instructions and the verdicts
but also the evidence. Unless the undisputed evidence at trial is conclusive
on the issue, the trial court must conduct a hearing at which the prosecution
will bear the burden of proof and new evidence may be presented by either
side. (Ibid.; § 1172.6, subd. (d)(3).)
The trial court here appears to have ruled that, as a matter of law, the
special circumstance findings of intent to kill precluded appellants from
eligibility for relief under section 1172.6. Under In re Lopez, however, more
is required, namely, evidence establishing beyond a reasonable doubt that
the appellants premeditated and deliberated in deciding to kill a rival gang
member or relative of such member whom they might come upon as they
entered the rival gang’s territory, and evidence establishing, beyond a
reasonable doubt, that the Appellants who did not shoot the victim aided
and abetted the Appellant who did. We do not mean to suggest that such
evidence is necessarily lacking. However, for the trial court to assess
whether the weight of the evidence supporting the elements of aiding and
abetting first degree murder is so strong as to support a conclusion that
Appellants are guilty of first degree murder beyond a reasonable doubt, the
statute requires it to issue an order to show cause and conduct an
18
evidentiary hearing and allow either party to present additional evidence.
(§ 1172.6, subds. (c), (d)(3).)
c. Contrary to the People’s Alternative Argument, Our Holding
that the Chiu Error Was Harmless Beyond a Reasonable
Doubt Is Not Law of the Case That Precluded Appellants
from Establishing a Prima Facie Showing.
The People argue, in the alternative, that, although the trial court did
not rely on in it, our determination that the Chiu error was harmless beyond
a reasonable doubt was “a proper basis for denying relief at the prima facie
stage.” The People contend that our decision falls within the law of the case
doctrine and must therefore be adhered to by the trial court and this court in
proceedings subsequent to it.
We are not persuaded. As the People concede, the doctrine applies
“when a court decides a legal issue” and binds the courts going forward in the
same case “ ‘as to questions of law (though not as to questions of fact).’ ”
(Italics added.) “Under the law of the case doctrine, when an appellate court
‘ “states in its opinion a principle or rule of law necessary to the decision, that
principle or rule becomes the law of the case and must be adhered to
throughout [the case’s] subsequent progress, both in the lower court and upon
subsequent appeal . . . .” ’ [Citation.] Absent an applicable exception, the
doctrine ‘requir[es] both trial and appellate courts to follow the rules laid
down upon a former appeal whether such rules are right or wrong.’
[Citation.] As its name suggests, the doctrine applies only to an appellate
court’s decision on a question of law; it does not apply to questions of fact.
[Citation.]” (People v. Barragan (2004) 32 Cal.4th 236, 246.)12
12 People v. Barragan states that a court’s determination that the
evidence is insufficient to justify a finding or judgment is necessarily a
decision on a question of law. But sufficiency of the evidence analysis is
19
The People assume, without discussion, that a decision that error is
harmless is necessarily a legal, not factual determination. Failing to discuss
that assumption, they likewise provide no authority supporting it.
It seems to us that harmless error analysis is not always a purely legal
issue and indeed, more often than not, involves a review of the trial evidence
and the inferences that logically flow from it. In determining whether error
is harmless, appellate courts typically assess the weight of the evidence.
(People v. Aranda (2012) 55 Cal.4th 342, 367 [“[T]he harmless error inquiry
for the erroneous omission of instruction on one or more elements of a crime
focuses primarily on the weight of the evidence adduced at trial”]; People v.
Aledamat (2019) 8 Cal.5th 1, 17 (conc. & dis. opn. of Cuellar, J.) [“[C]ourts
performing harmless error review . . . must weigh how an error affected the
proceedings without displacing the jury as finder of fact,” italics added]; see
People v. Doolin (2009) 45 Cal.4th 390, 449 [any error in admitting
population frequency statistics for DNA was “harmless in light of the other
weighty evidence of defendant’s guilt,” italics added]; People v. Villasenor
(2015) 242 Cal.App.4th 42, 70 [“ ‘confessions carry “extreme probative
weight,” [and] the admission of an unlawfully obtained confession rarely is
harmless error,’ ” second italics added].) Harmless error analysis under
Chapman v. California (1967) 386 U.S. 18 (Chapman) entails “ ‘examining
the entire cause, including the evidence, and considering all relevant
circumstances’ ” to determine whether, beyond a reasonable doubt, the error
did not contribute to the verdict. (In re Ferrell (2023) 14 Cal.5th 593, 602.)
“ ‘[I]f “ ‘[n]o reasonable jury’ ” would have found in favor of the defendant on
distinct from harmless error analysis, and even determinations of sufficiency
of the evidence are not treated as law of the case in all instances. (See, e.g.,
People v. Cooper (2007) 149 Cal.App.4th 500, 525-526.)
20
the’ valid theory, ‘given the jury’s actual verdict and the state of the evidence,
the error may be found harmless beyond a reasonable doubt.’ (In re Lopez
[, supra, 14 Cal.5th at p. 580], quoting Aledamat, at p. 15; accord, Neder v.
United States (1999) 527 U.S. 1, 19 [‘[A] court, in typical appellate-court
fashion, asks whether the record contains evidence that could rationally lead
to a contrary finding with respect to the omitted element’].)” ’ ” (In re Ferrell
at p. 603.)
In analyzing the harmless error question on direct appeal in this case,
we did not reach a conclusion as a matter of law based on the instructions
and verdict alone. Rather, we assessed and considered the weight of the
evidence in concluding beyond a reasonable doubt that the jury’s verdicts of
first degree murder were based on a theory of conspiracy to commit murder
or aiding and abetting first degree murder rather than a theory of natural
and probable consequences. We observed that, given the evidence, there
could be no question that “Flowers, who the evidence plainly indicated was
the shooter,”13 acted with intent to kill when he “fir[ed] a barrage of bullets at
Charles.”14 (Anthony I, supra, 32 Cal.App.5th at p. 1146.) Further, we
explained that “[t]he jury’s findings that Anthony, Price and Campbell, none
13 An eyewitness to the shooting identified Flowers as the shooter, told
police he was wearing a “Rastafarian” hat with distinctive coloring and
identified the same hat at the police station, after police found it in Anthony’s
Cadillac. (Anthony I, supra, 32 Cal.App.5th at pp. 1109-1110, 1112.) Non-
blood DNA from the hat was compatible with Flowers and incompatible with
the other Appellants.
14 The forensic pathologist who performed the autopsy testified
Charles’s death was caused by “multiple gunshot wounds from head to foot,”
“police recovered 17 shell casings of a caliber that was common for an AK-47
assault rifle,” and an eyewitness who went to help the victim of the shooting
testified that the victim’s head had many gunshot wounds and the face was
“blown off.” (Anthony I, supra, 32 Cal.App.5th at pp. 1110-1111.)
21
of whom was proven to be the actual killer, intended to kill Charles strongly
suggest[ed] that its first degree murder verdicts for each of them were based
on its conclusion that each aided and abetted or conspired to murder Charles,
not merely to assault him.” (Id. at p. 1145.) We rejected the “[d]efendants’
argument that the jury’s ‘intent to kill’ finding was consistent with second
degree murder,” because it was contrary to the “overwhelming evidence.” (Id.
at p. 1146.) Specifically, we opined that “[e]very aspect of [Appellants’]
conduct indicates they acted with willfullness, deliberation and
premeditation to murder Charles [Davis].” (Id. at p. 1145.) The
circumstances indicated “they were intent upon murder when they drove
together into Berkeley, and were intent upon murdering Charles specifically
when they came upon him because of his familial relationship to reputed
Berkeley gang member Jermaine [Davis]. Their actions show[ed] planning,
motive and a preexisting intent to kill,[15] rather than unconsidered,
impulsive actions. Accordingly, the prosecutor emphasized a first degree
murder theory in his closing argument to the jury, such as when he asserted,
15 The murder was carried out three weeks after the murder of Ngo
Nguyen, who was Anthony’s best friend and a fellow gang member, and the
attempted murders of Ngo’s brother and of Anthony himself. (Anthony I,
supra, 32 Cal.App.5th at pp. 1114-1115, 1126-1127, 1142.) Anthony told
police shortly after Ngo’s murder that he suspected the perpetrators were
members of a rival gang in Berkeley. (Ibid.) When Anthony and Price were
arrested on the day of the murder after their cohorts had fled the scene (see
id. at p. 1112) , police found several photographs of Ngo and a funeral flyer
for Ngo with photos of him displaying gang signs in Anthony’s car. (Id. at
pp. 1113, 1134.) During the period between the two killings, Anthony, Price
and Flowers, whose cell phones were found in Anthony’s car and on Price’s
person when Anthony and Price were apprehended, were in almost constant
contact with each other, calling and texting. (Id. at pp. 1112-1113, 1141-
1142, 1146.)
22
‘This was an ambush and an execution. Plain and simple.’ ” (Id. at p. 1145;
see id. at p. 1143.) “[I]t would have been nonsensical,” we opined, “for the
jury to conclude that, while Flowers acted with premeditation and
deliberation in committing the murder, he was aided and abetted, or in a
conspiracy, with three defendants who did not form the intent to kill until the
murder occurred. The jury would have had to conclude that Flowers
concealed his own murderous intent from Anthony, Price and Campbell as
they drove into the heart of the Berkeley gang’s territory until the moment
Flowers killed Charles, and that each of the three decided on the spur of the
moment to aid and abet, or conspire, with Flowers to murder Charles. This
despite Flowers’s near constant cell phone communications with both
Anthony and Price in the days leading up to the murder, and defendants’
travel together to the rival Berkeley gang’s territory heavily armed[16] and
with masks.” (Id. at p. 1146; see id. at pp. 1109, 1112-1113, 1141.)
In short, our harmless error analysis and our conclusion that the Chiu
error was harmless beyond a reasonable doubt because rational jurors could
not have found intent to kill on the part of defendants without finding
premeditated murder was heavily fact- and evidence-based. The People have
failed to persuade us that our ruling falls within the law of the case doctrine.
Additionally, the requirement under section 1172.6 that the court must
allow the parties to present additional evidence is itself a reason that law of
the case does not apply here. What the Legislature intended trial judges
would decide in holding evidentiary hearings under section 1172.6 is a review
16 Police found a loaded semiautomatic pistol in plain sight on the
floorboard of the driver’s seat of Anthony’s Cadillac and two semiautomatic
assault rifles on the right front passenger-side floorboard, one of which was
loaded. (Anthony I, supra, 32 Cal.App.5th at p. 1113.)
23
of a decidedly factual nature. “The question is whether the petitioner
committed murder under a still-valid theory, and that is a factual question.
The Legislature made this clear by explicitly holding the People to the beyond
a reasonable doubt evidentiary standard and by permitting the parties to
submit new or additional evidence at the hearing on eligibility. ( § 1170.95,
subd. (d)(3).)” (People v. Clements (2022) 75 Cal.App.5th 276, 294 [rejecting
argument that trial court must decide only whether evidence is sufficient to
support verdict].) Under In re Lopez, the trial court on remand will need to
engage in an assessment of the evidence that will almost certainly involve
assessments of the weight and credibility of evidence and possibly other
indicia bearing on whether Appellants “could not presently be convicted of
murder or attempted murder because of changes to Section 188 or 189 made
effective January 1, 2019.” (§1172.6, subd. (a)(3).) The People, who will bear
the burden of proof at the evidentiary hearing, may present new or additional
evidence, as may the appellants. (Id., subd. (d)(3).)
“[T]he law-of-the-case doctrine governs only the principles of law laid
down by an appellate court, as applicable to a retrial of fact, and it controls
the outcome on retrial only to the extent the evidence is substantially the
same.” (People v. Boyer (2006) 38 Cal.4th 412, 442, second italics added.)
Because the parties may present new evidence on remand, it is not clear that
the evidence will be substantially the same. As the court stated in Boyer,
“Our discussion of suppression issues in [People v. Boyer (1989) 48 Cal.3d 247
(Boyer I)] was based on the record then before us. Even if the law-of-the-case
doctrine makes Boyer I conclusive on the legal principles there established,
the doctrine did not foreclose new evidence on retrial indicating that the
dispositive facts are materially different than those we addressed.” (Id. at
p. 443.) The same is true here as to the section 1172.6 proceeding.
24
For the foregoing reasons, we remand the section 1172.6 proceeding to
the trial court with directions to issue an order to show cause and hold an
evidentiary hearing consistent with the requirements of that statute.
B. Effect of Amendment of the Gang Statute on Gang-Related
Gun Enhancement and Gang Special-Circumstance Verdicts
The jury found true as to all Appellants a gang-related gun
enhancement that applies to principals in the commission of a murder in
which any principal personally and intentionally discharged a firearm and
proximately caused great bodily injury or death, where the offense was 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. (§§ 12022.53 subds. (a)(1), (d), (e)(1), former § 186.22,
subd. (b)(1); see Stats. 2011, ch. 361, §§ 1, 2.)
Section 12022.53, subdivision (d), provides that, “[n]otwithstanding any
other law, a person who, in the commission of a felony specified in
subdivision (a), Section 246, or subdivision (c) or (d) of Section 26100,
personally and intentionally discharges a firearm and proximately causes
great bodily injury . . . or death, to a person other than an accomplice, shall
be punished by an additional and consecutive term of imprisonment in the
state prison for 25 years to life.” Section 12022.53, subdivision (e)(1), states
that, “[t]he enhancements provided in this section shall apply to any person
who is a principal in the commission of an offense if both of the following are
pled and proved: [¶] (A) The person violated subdivision (b) of Section 186.22
[person convicted of felony for the benefit of, at the direction of, or in
association with a criminal street gang with specific intent to promote,
further, or assist in criminal conduct by gang members]. [¶] (B) Any principal
in the offense committed any act specified in subdivision (b), (c), or (d) [in
commission of a felony, personally uses a firearm, personally and
25
intentionally discharges a firearm, or personally uses and intentionally
discharges a firearm proximately causing great bodily injury or death].” The
enhanced punishment imposed under section 12022.53, subdivision (d) is “an
additional and consecutive term of imprisonment in the state prison for 25
years to life.” (§ 12022.53, subd. (d).)
As to each Appellant, the jury also found true the allegations
supporting two special circumstances set forth in section 190.2, one of which
was that he “intentionally killed the victim while [he] was an active
participant in a criminal street gang, as defined in subdivision (f) of
Section 188.22, and that the murder was carried out to further the activities
of the criminal street gang.” (§ 190.2, subd. (a)(22).) Section 190.2,
subdivision (a)(2), prescribes a penalty of “death or imprisonment in the state
prison for life without the possibility of parole if” the jury finds that special
circumstance true.
Appellants contend that Assembly Bill 333, which amended the statute
defining certain terms that are incorporated into these sections, applies
retroactively to their cases and requires a reversal and remand for retrial on
the enhancement and special circumstance.
As the People concede, the amendments Assembly Bill 333 made apply
retroactively to the gang-related gun use enhancement under
section 12022.53, subdivision (e), because the legislation is ameliorative and
the judgments against Appellants were not final when the new legislation
took effect. (People v. Tran (2022) 13 Cal.5th 1169, 1206-1207 (Tran)
[changes to gang enhancement under Assembly Bill 333 are retroactive to
non-final cases]; People v. Lee (2022) 81 Cal.App.5th 232, 237 (Lee), review
granted Oct. 19, 2022, S275449; People v. E.H. (2022) 75 Cal.App.5th 467,
478; People v. Lopez (2021) 73 Cal.App.5th 327, 343-344.) The People also
26
acknowledge that the amendments in substance impose a higher threshold of
proof for elements of the gang participation gun enhancement and the gang
special circumstance.
However, the People argue that the amendments cannot be applied to
the gang special circumstance because the special circumstance statute was
adopted through an initiative measure that provided it could only be
amended by the Legislature with a two-thirds vote of the Senate and
Assembly. Further, the People argue that any error in instructing the jury
on the gang-related gun-use enhancement as it existed before the adoption of
Assembly Bill 333 was harmless beyond a reasonable doubt. To analyze
these issues, some background is required.
The amendments wrought by Assembly Bill 333 impose additional
elements on both the gang-related gun enhancement and the gang-murder
special circumstance that were beyond those required at the time of
Appellants’ trial. Relevant here are the following changes. “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
persons.’ (§ 186.22, subd. (f), italics added.)[17] Second, whereas
section 186.22, former subdivision (f), required only that a gang’s members
‘individually or collectively engage in’ a pattern of criminal activity in order
17 Previously, that definition referred to “an ongoing organization,
association or group of three or more persons . . . .” (See Legis. Counsel’s
Dig., 2021 California Assembly Bill 333, Stats.2021, ch. 699, Summary Dig.,
p. 2, italics added.) The current definition is “an ongoing, organized
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 subdivision (e), having a common name or
common identifying sign or symbol, and whose members collectively engage
in, or have engaged in, a pattern of criminal gang activity.” (§ 186.22,
subd. (f), italics added.)
27
to constitute a ‘criminal street gang,’ Assembly Bill 333 requires that any
such pattern have been ‘collectively engage[d] in’ by members of the gang.
(§ 186.22, subd. (f), italics added.) Third, Assembly Bill 333 also narrowed
the definition of a ‘pattern of criminal activity” by requiring that (1) the last
offense used to show a pattern of criminal gang activity occurred within
[three years of the prior offense[18] and] within three years of the date that
the currently charged offense is alleged to have been committed; (2) the
offenses were committed by two or more gang ‘members,’ as opposed to just
‘persons’; (3) the offenses commonly benefitted a criminal street gang; and (4)
the offenses establishing a pattern of gang activity must be ones other than
the currently charged offense. (§ 186.22, subd. (e)(1), (2).)[19] Fourth,
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).)”20 (Tran, supra, 13 Cal.5th at p. 1206,
italics added in part.) “Examples 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
18 See § 186.22, subd. (e)(1).
19 The bill also “remove[d] looting, felony vandalism, and specified
personal identity fraud violations from the crimes that define a pattern of
criminal gang activity.” (Stats. 2021, ch. 699 [second paragraph of Legis.
Counsel’s Dig.].)
20 An additional change that is not the subject of Appellants’
arguments is that “Assembly Bill 333 added section 1109, which requires, if
requested by the defendant, a gang enhancement charge to be tried
separately from all other counts that do not otherwise require gang evidence
as an element of the crime. If the proceedings are bifurcated, the truth of the
gang enhancement may be determined only after a trier of fact finds the
defendant guilty of the underlying offense.” (Tran, supra, 13 Cal.5th at
p. 1206.)
28
silencing of a potential current or previous witness or informant.” (§ 186.22,
subd. (g).)
As to the gang-related gun enhancement imposed in this case under
section 12022.53, subdivision (e), on Appellants who did not personally
discharge the firearm, the amendments affect the element requiring that the
person violated subdivision (b) of section 186.22. A person violates that
subdivision if he or she is “convicted of a 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).) Also implicated in the enhancement are (1) the changes
to the definitions of “criminal street gang” and “pattern of criminal gang
activity.” In order for NSO to have met the definition of a criminal street
gang, the gang had to be organized, its members had to have engaged in
criminal gang activity collectively rather than individually, the last predicate
offense had to occur within three years of 2009, and all predicate offenses had
to be among those listed in the amended statute, have been committed by two
or more members and have commonly benefited the gang in a way that was
more than reputational. (§ 186.22, subds. (f), (e)(1).)
The gang-murder special circumstance, section 190.2,
subdivision (a)(22), is also affected by Assembly Bill 333 because, as we have
indicated, it requires that Appellants have intentionally killed the victim
while they were active participants in a criminal street gang. Section 190.2,
subdivision (a)(22), incorporates by reference the definition of criminal street
gang in subdivision (f) of section 186.22, which has been amended to require
collective activity and a proximity of criminal offenses. A “criminal street
gang” in section 186.22, subdivision (f), has long been defined as having
members who engage in a “pattern of criminal gang activity,” as that phrase
29
is defined in section 186.22, subdivision (e). Assembly Bill 333 amended
section 186.22 to narrow the meaning of both of those phrases. And the
requirement of section 190.2 that the murder have been carried out to
“further the activities of the criminal street gang” is affected by the addition
to section 186.22 of a definition of that phrase to require a common benefit
that is “more than reputational,” such as “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.” (§ 186.22,
subd. (g).)
1. Assembly Bill 333 Validly Amended Proposition 21.
The People’s argument that Assembly Bill 333 amended the gang-
murder special circumstance in a way that was not permitted by
Proposition 21, the initiative measure that enacted the gang-murder special
circumstance, has been considered by panels in two other districts. A panel
in the Second District held the bill did not violate the constitutional
prohibition on legislative amendment of a statute adopted by initiative. (See
Lee, supra, 81 Cal.App.5th at pp. 240-245.) A panel in the Fifth District
followed Lee in holding the gang conspiracy statute, which like the gang-
murder special circumstance was also enacted by Proposition 21, was not
unconstitutionally amended by Assembly Bill 333. (People v. Lopez (2022)
82 Cal.App.5th 1, 14-25 (Lopez), review den. Nov. 9, 2022.) On the other
hand, a decision by a different panel of the Fifth Circuit held that Assembly
Bill 333 did not validly amend the gang-murder special circumstance and
that the changes to the definitions of “criminal street gang” and “pattern of
gang criminal activity” in section 186.22, subdivisions (e) and (f), cannot be
applied (retroactively or prospectively) to the special circumstance. (People v.
Rojas (2022) 80 Cal.App.5th 542, 553-558 (Rojas), review granted Oct. 19,
2022, S275835.) Our high court granted review in Rojas to decide whether
30
Assembly Bill 333 unconstitutionally amended Proposition 21, if applied to
the gang-murder special circumstance. (518 P.3d 278 [2022 Cal. LEXIS
6346].) On the same day, it granted review in Lee and deferred further action
pending its disposition of Rojas.21 (518 P.3d 279 [2022 Cal. LEXIS 6359].)
The court denied review in Lopez.
As explained by Justice Pena of the Fifth District in Lopez,
“Section 190[, subdivision] (a)(22) was enacted as part of Proposition 21, an
initiative measure approved by the electorate in the March 2000 primary
election. [Citation.] Section 190.2[, subdivision] (a)(22) makes first degree
murder a capital crime if ‘[t]he defendant intentionally killed the victim while
the defendant was an active participant in a criminal street gang, as defined
in subdivision (f) of Section 186.22, and the murder was carried out to further
the activities of the criminal street gang.’ ” (Lopez, supra, 82 Cal.App.5th at
p. 14.)
In Lee, supra, 81 Cal.App.5th 232, Division Four of the Second District
concluded Assembly Bill 333 did not unconstitutionally amend section 190.2,
subdivision (a)(22). (Lee, at p. 245.) Further, it held “ ‘that the term
“criminal street gang” as incorporated in the gang-murder special-
circumstance statute was “intended to conform at all times” and “remain
permanently parallel” to section 186.22.’ ” (Lopez, supra, 82 Cal.App.5th at
p. 15 [discussing Lee].) In Lopez, Justice Pena, joined by Justices Franson
and Smith, followed Lee and added to its analysis in holding that the criminal
street gang conspiracy provision (section 182.5), was not unconstitutionally
amended by Assembly Bill 333. (Lopez, at pp. 14-25.)
21 The court also granted and deferred action in Lee on an issue not
raised here pending disposition of People v. Burgos (2022) 77 Cal.App.5th
550, review granted July 13, 2022, S274743.
31
The analyses in these cases have two key components. First, the courts
conclude that section 186.22 was not a product of Proposition 21, at least not
the provisions relevant here. Rather, it was enacted in 1987 as part of the
Street Terrorism Enforcement and Prevention or STEP Act. (Lee, supra,
81 Cal.App.5th at p. 242; Lopez, supra, 82 Cal.App.5th at p. 16.) By the time
Proposition 21 was adopted some nine years later, section 186.22 had been
amended many times. (Lopez, at pp. 16-17.) Proposition 21 reenacted
section 186.22 without significant substantive change to the definitions of
“pattern of criminal gang activity” or “criminal street gang” previously set
forth in section 186.22. (Lopez, at pp. 19-21.)
As Justice Pena points out, “ ‘the parts of an amended statute that are
copied without change are considered to have been part of the law all along
and thus cannot be considered to be among the initiative’s statutory
provisions.’ ” (Lopez, supra, 82 Cal.App.5th at pp. 19-21, quoting People v.
Superior Court (Ferraro) (2020 51 Cal.App.5th 896, 915 and citing County of
San Diego v. Commission on State Mandates (2018) 6 Cal.5th 196, 209-210
and Gov. Code, § 9605 [portions of statute not altered when statute is
amended are not considered as having been repealed and reenacted but as
having been the law from the time when they were enacted; new provisions
are considered to be enacted at time of amendment].) The changes wrought
by Assembly Bill 333 affected provisions that either pre-existed
Proposition 21, and therefore were the law “all along,” or that were added by
legislative amendments after Proposition 21 was enacted. (Lopez, at pp. 16-
17, 20-21.) As such, the Legislature was free to amend those provisions
because they are not considered to be part of the initiative measure. (County
of San Diego, at pp. 209-210.)
32
Of course, the special circumstance provision, section 190.2,
subdivision (a)(22), and the gang conspiracy section, were enacted by
Assembly Bill 333. The courts in both Lee and Lopez addressed whether
Proposition 21’s references to section 186.22 in the special circumstance and
gang conspiracy provisions reflected an intent to incorporate that section as
of a specific point in time or to incorporate it as amended by the Legislature
from time to time. In a somewhat simplified nutshell (we will not repeat
their entire analyses here), both the Lee and Lopez courts explained that
under In re Jovan B. (1993) 6 Cal.4th 801 and its progeny, the high court
rejected a formulaic approach and held that “where the words of an
incorporating statute do not make clear whether it contemplates only a time-
specific incorporation, ‘the determining factor will be . . . legislative
intent . . . ’ ” (Jovan B., at p. 816; accord, Lopez, supra, 82 Cal.App.5th at
p. 23; Lee, supra, 81 Cal.App.5th at pp. 240-241.)
The courts in Lee and Lopez began by considering the language of the
initiative provisions that incorporated section 186.2222 and then construed
22 Section 182.5 provides, “Notwithstanding subdivisions (a) or (b) of
Section 182, any person who actively participates in any criminal street gang,
as defined in subdivision (f) of Section 186.22, with knowledge that its
members engage in or have engaged in a pattern of criminal gang activity, as
defined in subdivision (e) of Section 186.22, and who willfully promotes,
furthers, assists, or benefits from any felonious criminal conduct by members
of that gang is guilty of conspiracy to commit that felony and may be
punished as specified in subdivision (a) of Section 182.” (Italics added.)
Section 190.2 provides in relevant part, “The penalty for a defendant
who is found guilty of murder in the first degree is death or imprisonment in
the state prison for life without the possibility of parole if one or more of the
following special circumstances has been found under Section 190.4 to be
true: . . . (22) The defendant intentionally killed the victim while the
defendant was an active participant in a criminal street gang, as defined in
33
those sections in the context of the initiative measure as a whole. (Lopez,
supra, 82 Cal.App.5th at pp. 23-25; Lee, supra, 81 Cal.App.5th at pp. 241-
242.)
Neither the incorporation language in the gang-murder special-
circumstance provision, section 190.2, subdivision (a)(22), adopted by
section 11 of Proposition 21 (Lee, supra, 81 Cal.App.5th at p. 241) and in
section 182.5, nor that in the gang conspiracy provision at issue in Lopez
(Lopez, supra, 82 Cal.App.5th at pp. 23-24) contained any indication of a
time-specific intent—that is, language regarding whether the Legislature
intended to incorporate section 186.22 as a statute with the terms it
contained frozen in time as they were when Proposition 21 was enacted. (See
Lee, at p. 243; Lopez, at p. 23 [“The text of section 182.5 is not immediately
helpful because its incorporation by reference of section 186.22,
subdivisions (e) and (f) does not alone establish a time-specific intent”].)
Looking more broadly at Proposition 21 as a whole, the courts observed
that other provisions of that initiative measure, by contrast, contained a clear
indication of intent to restrict reference to the terms of other statutes in a
time-specific way. (Lee, supra, 81 Cal.App.5th at p. 243; Lopez, supra,
82 Cal.App.5th at p. 24.)23 “By using time-specific language in [those
subdivision (f) of Section 186.2, and the murder was carried out to further the
activities of the criminal street gang.” (Italics added.)
23Section 14 of Proposition 21 “added section 667.1 to the Penal Code
to read: ‘Notwithstanding subdivision (h) of Section 667, for all offenses
committed on or after the effective date of this act, all references to existing
statutes in subdivisions (c) to (g), inclusive, of Section 667, are to those
statutes as they existed on the effective date of this act, including amendments
made to those statutes by this act.’ ” (Lopez, supra, 82 Cal.App.5th at p. 24,
italics added; Lee, supra, 81 Cal.App.5th at p. 243.) Identical language was
used in section 16 of the initiative measure, which added section 1170.125 to
the Penal Code. (Lopez, at p.24; Lee at p. 243.)
34
provisions of Proposition 21], the voters ‘change[d] the lock-in’ date for
determining the existence of qualifying offenses (such as violent or serious
felonies) under the Three Strikes Law.’ ” (Lopez, at p. 24.) From this, it was
apparent that, “In enacting Proposition 21, the electorate clearly knew how to
express the intent to freeze a statutory definition.” (Lee at pp. 242-243.)
“Given the express time-specific incorporations in [other sections] of
Proposition 21, we may safely assume that had the voters also intended
section 11 of Proposition 21 to make a time-specific incorporation of
section 186.22, subdivision (f), they would ‘have said so in readily understood
terms.’ [Citation.] But there is no such language. There is simply no basis to
believe that the voters understood they were precluding future amendments
of subdivision (f) of section 186.22 as referred to in the gang-murder special
circumstance, while permitting such future amendments for section 186.22
itself.” (Lee, at p. 243; accord, Lopez, at pp. 24-25.)
We find Lee and Lopez persuasive. We cannot say the same about
Rojas. In that case, Justice Poochigan, in an opinion for two justices that
drew a dissent from a third, focused on two broad propositions: “A legislative
enactment amends an initiative if it ‘prohibits what the initiative authorizes,
or authorizes what the initiative prohibits’ ” and “A legislative enactment
also amends an initiative ‘by taking away from it.’ ” (Rojas, supra,
80 Cal.App.5th at p. 553.) Reasoning that Assembly Bill 333 had the effect of
reducing the scope of murders punishable under section 11 of Proposition 21
(§ 190.2, subdivision (a)(22))—by requiring collective and not just individual
engagement in a pattern of racketeering activity, eliminating looting and
felony vandalism from the list of crimes contained in section 186.22 and
requiring that the last offense have been committed within three years of the
current offense—“ ‘takes away’ from the scope of conduct that Proposition 21
35
made punishable under section 190.2” and “is an amendment” that failed to
meet the two thirds vote requirement of that proposition. (Rojas, at pp. 554-
555.)
The Rojas majority failed to grapple with the observation in Lee and
Lopez that section 186.22, to which changes were later made by
Assembly Bill 333, was not initially adopted by voters in Proposition 21 and
that the changes made by Assembly Bill 333 to the definitions of “criminal
street gang” and “pattern of criminal gang activity” affected only provisions
that predated Proposition 21 and were not changed by the proposition. (See
Rojas, supra, 80 Cal.App.5th at pp. 554-555.) Further, the Rojas majority
makes no effort to ascertain the intent behind the voters’ cross-reference to
section 186.22 in the gang-murder special circumstance (§ 190.2), specifically,
whether voters intended that the incorporation of section 186.22 would be to
the statute as frozen in time when Proposition 21 was enacted.
Rojas also rejects the reasoning of People v. Superior Court (Gooden)
(2019) 42 Cal.App.5th 270, 281 that a ballot measure establishing the
punishment for a crime is not invalidly amended by legislation that changes
the elements of the crime. (Rojas, 80 Cal.App.5th at pp. 555-557.) Gooden
held Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437), which
changed the mens rea requirements for the offense of murder, was not an
invalid amendment of Proposition 7, a voter initiative that increased the
punishments for murder. (Gooden, at pp. 278, 280-286.) Rojas disagreed
that Senate Bill 1437, which changed some of the elements of murder,
addressed a subject distinct from an initiative that increased the
punishments for murder. (Rojas, at pp. 555-557.) Gooden and its progeny
have been followed by every court that has issued a published opinion on
36
whether Senate Bill 1437 invalidly amended Proposition 7.24 Lee found
Gooden’s analysis pertinent to the issue here. (See Lee, supra,
81 Cal.App.5th at p. 244.) We agree and adopt its reasoning.
Finally, the interpretation adopted by Rojas would mean the phrases
“criminal street gang” and “pattern of criminal gang activity” each have
multiple meanings, one for purposes of the special circumstance, and another
for purposes of the gang-related gun enhancement in section 12022.53,
subdivision (e)(1), the offense of active participation in a criminal street gang
in section 186.22, subdivision (a), the offense of felony committed for the
benefit of a gang in section 186.22, subdivision (b), and the public offenses
committed for the benefit of a criminal street gang in section 186.22,
subdivision (d). Not only would this result in confusion for any jury faced
with both a gang-murder special circumstances and gang-related offenses
and enhancements, but it could result in defendants being “found not to
qualify for the lesser gang sentence enhancements, but nonetheless found to
qualify for capital punishment.” (Lee, supra, 81 Cal.App.5th at p. 242 &
fn. 36.) As stated in Lee,“[i]t is difficult to discern a rational reason for such
an anomalous choice, and we find no basis to conclude the electorate made
it.” (Id. at p. 242.)
24 This includes other Fourth District panels (People v. Cruz (2020)
46 Cal.App.5th 740, 747; People v. Prado (2020) 49 Cal.App.5th 480, 492;
People v. Solis (2020) 46 Cal.App.5th 762, 775-780; People v. Johns (2020)
50 Cal.App.5th 46,60-66; People v. Lippert (2019) 53 Cal.App.5th 304, 312-
314); and panels from the Second (People v. Bucio (2020) 48 Cal.App.5th 300,
308-312; People v. Smith (2020) 49 Cal.App.5th 85, 91-92; People v. Lopez
(2020) 51 Cal.App.5th 589, 596-603); Third (People v. Superior Court
(Ferraro) (2020) 51 Cal.App.5th 896, 908-914; People v. Lombardo (2020)
54 Cal.App.5th 553, 560); Fifth (People v. Nash (2020) 52 Cal.App.5th 1041,
1053, 1058-1067); and Sixth (People v. Alaybue (2020) 51 Cal.App.5th 207,
210, 214-217).
37
In short, like the courts in Lee and Lopez, we reject the People’s
argument that Assembly Bill 333’s changes to the definitions of “criminal
street gang” and “pattern of criminal gang activity” are invalid amendments
of Proposition 21. Therefore, the gang-murder special-circumstance findings
as to Appellants cannot be affirmed on that basis.
2. The Instructions on the Gang-Related Gun Enhancement
and Gang-Murder Special Circumstance Were Not
Harmless Beyond a Reasonable Doubt.
The People acknowledge that the standard for prejudice resulting from
the omission of the elements added by Assembly Bill 333 from the
instructions on the gang enhancement is the constitutional standard under
Chapman v. California, supra, 386 U.S. 18. We agree. “When a substantive
change occurs in the elements of an offense and the jury is not instructed as
to the proper elements, the omission implicates the defendant’s right to a jury
trial under the Sixth Amendment, and reversal is required unless ‘it appears
beyond a reasonable doubt’ that the jury verdict would have been the same in
the absence of the error.” (Tran, supra, 13 Cal.4th at p. 1207.) The People
argue this strict standard is met because “the prosecution presented evidence
to satisfy [Assembly Bill] 333’s requirements beyond a reasonable doubt,
including evidence that both the charged and predicate crimes were
committed for a reason beyond the reputational benefit to the gang.”
Specifically, they argue that, as we observed on direct appeal, the
“admissible evidence that [Appellants] were NSO gang members who
traveled together, heavily armed and with masks, into the heart of their rival
Berkeley gang’s territory, there in broad daylight executed Charles Davis, the
brother of a suspected Berkeley gang member, and did so to retaliate for
what they thought was that gang’s killing of one of their own NSO gang
members a few weeks earlier” was “overwhelming.” (Anthony I, supra,
38
32 Cal.App.5th at p. 1107; see also id. at pp. 1141-1142.) We agree that the
admissible evidence overwhelmingly shows retaliation as the motive for
Appellants’ murder of Davis and meets the Chapman standard as to that
amended element of the gang statute. However, as we shall discuss,
reasonable doubt exists as to whether all other elements necessary to prove
the gang enhancement and gang-murder special circumstance, as
subsequently amended by Assembly Bill 333, were established by the
evidence presented at the 2013 trial of this case.
For example, the People contend, “There was evidence of at least four
predicate offenses, committed on separate occasions, the most recent of which
was less than three years prior to the charged offenses,” and that two of those
offenses were committed by two or more gang members. Further, they
contend that the gang expert, John Cunnie, testified that these offenses not
only increased the reputation of the NGO gang but were a source of income to
the gang and, in the case of illegal gun possession, enabled gang members to
protect themselves from rival gangs.
The evidence may have been sufficient to show predicate offenses that
met the new standards for a pattern of criminal gang activity. But the
Chapman standard requires more than sufficient evidence. (People v. Sek
(2022) 74 Cal.App.5th 657, 668 (Sek).)25 And the People do not address the
25 Appellants contend Cunnie’s testimony about the pattern of criminal
gang activity was not sufficient to meet the new requirements because the
jury was instructed it could consider the current offense as a predicate act,
focused on enhancing the gang’s reputation as the common benefit of the
offenses and included as predicate acts offenses committed by individual gang
members. We need not resolve whether the testimony at the 2013 trial was
sufficient to meet the new standards because on remand, if they choose to
retry the gang enhancement, the People and Appellants will have the
opportunity to proffer additional evidence that Assembly Bill 333 has made
newly relevant. (Sek, supra, 74 Cal.App.5th at pp. 669-670.)
39
possible impact on the jury of the instructions (no longer correct) that, in
determining whether a pattern of criminal activity had been proved, “[t]he
crimes, if any, that establish a pattern of criminal activity, need not be gang-
related” and that if it found a defendant guilty of a crime in this case it could
consider that crime as one of the predicate acts.
Further, the jury was instructed on the definition of criminal street
gang as it existed under the former section 186.22, subdivision (f), as an
“ongoing organization, association, or group of three or more persons,
whether formal or informal,” rather than under the amended version, which
requires an “ongoing, organized association, or group of three or more
persons, whether formal or informal.” While the parties cite no case law
addressing the difference between the two, Appellants point to the legislative
findings made in Assembly Bill 333, which shed some light on the meaning of
“organized.” Specifically, the Legislature found that “[t]he social networks of
residents in neighborhoods targeted for gang suppression are often
mischaracterized as gangs despite their lack of basic organizational
requirements such as leadership, meetings, hierarchical decisionmaking, and
a clear distinction between members and nonmembers.” (Stats. 2021, ch. 699,
§ 2 (d)(8), italics added.) From this we glean that something between a
“social network” of neighborhood residents and a “formal” organization with
all of the above-mentioned characteristics is required. Without any
instruction on the new definitional language, the jury’s finding that there
was a criminal street gang here does not unequivocally mean it would have
made the finding if instructed with the current definition.26
26 Appellants point to Cunnie’s testimony that NSO was an “informal
gang” without all the formal characteristics as some criminal gangs, like
Nuestra Familia, that operate in prison. However, the new definition
retained the prior modifying language “formal or informal” and thus does not
40
Finally, complicating the assessment of prejudice here is the fact that
the trial of this case took place before People v. Sanchez (2016) 63 Cal.4th 665
was decided, and therefore, not surprisingly, on direct review we identified
aspects of Cunnie’s testimony that did not meet the standards established in
that case. (Anthony I, supra, 32 Cal.App.5th at pp. 1140-1141.) We found the
Sanchez error harmless in the context of the then current law (Anthony I, at
pp. 1141-1142), but that does not mean we can now conclude that, coupled
with the instructional error created by the amendment of section 186.22, it
was harmless beyond a reasonable doubt.
We agree with Appellants that “when a change in the law makes
evidence relevant which was not relevant at the time of trial,” “the defense
did not have notice of what the elements were or a motive to introduce
evidence related to those elements.” The same, of course, is true for the
People. For these reasons, the proper remedy for the instructional error
regarding the elements of the gang-related gun enhancement and the gang
special circumstance here, as Appellants acknowledge, is a reversal and
remand of the enhancement and special circumstance, for retrial at the
option of the People. (See Lee, supra, 81 Cal.App.5th at pp. 239, 246; Lopez,
supra, 82 Cal.App.5th at p. 14; Sek, supra, 74 Cal.App.5th at pp. 669-670
[reversing gang-related gun enhancement and remanding for new trial where
evidence was not introduced at trial because law at time would have rendered
it irrelevant].)
require that the gang be a “formal” one. (See footnote 17, ante, p. 27.)
Especially in light of this, we are not persuaded that the characteristics
Cunnie attributed to the prison gangs he described as “formal,” such as
bylaws and established procedures for activities, are required under the new
law.
41
C. The Trial Court Did Not Abuse Its Discretion in Refusing, on
Remand, to Dismiss the Prior Serious Felony Enhancements.
Appellants contend that the trial court abused its discretion in
declining to strike the gang-related gun enhancements on remand from the
direct appeal. We remanded for the trial court to exercise the discretion
conferred on it by new legislation to strike or dismiss the consecutive 25-
years-to-life sentences imposed for a gang-related principal’s use of a firearm.
(Anthony I, supra, 32 Cal.App.5th at p. 1158.) Specifically, section 12022.53,
subdivision (h), now provides, “The court may, in the interest of justice
pursuant to Section 1385 and at the time of sentencing, strike or dismiss an
enhancement otherwise required to be imposed by this section. The authority
provided by this subdivision applies to any resentencing that may occur
pursuant to any other law.”
We need not address Appellants’ arguments that the court abused its
discretion in declining to strike the gang-related gun enhancements.27
Having reversed those enhancements and remanded for possible retrial, the
issue whether the court should have stricken enhancements that were based
on the law as it existed prior to the amendment of the gang statute is moot.
If the Appellants are retried and convicted on the gang-related gun
enhancements under the amended statute, they will be resentenced and may
address whether to strike any enhancements imposed after retrial based on
the record at the time of resentencing. (People v. Yanaga (2020)
58 Cal.App.5th 619, 625-628.)
27 This includes Appellants’ argument that the court erred in not
ordering new probation reports at the time of resentencing and the People’s
responsive arguments that Appellants forfeited the argument and in any
event have failed to show prejudice.
42
At the original sentencing, the trial court imposed consecutive five-year
sentences for Price and Campbell under section 667, subdivision (a), because
they each had a prior serious felony conviction. On direct appeal, we
remanded the case to the trial court to allow it to exercise its discretion to
strike the consecutive five-year consecutive sentences it had imposed on Price
and Campbell under section 667, subdivision (a), because at the time
Appellants were originally sentenced the court was required to impose these
sentences and under former section 1385, subdivision (b), lacked any
discretion to strike those enhancements. (People v. Garcia (2018)
28 Cal.App.5th 961, 971.) Between the time of trial, however, and the
decision on direct appeal, the Governor had signed Senate Bill No. 1393
(2017-2018 Reg. Sess.) which, effective January 1, 2019, amended
sections 667, subdivision (a), and 1385, subdivision (b), to allow a sentencing
court to exercise its discretion to strike or dismiss a prior serious felony
conviction for sentencing purposes. (Stats. 2018, ch. 1013, §§ 1–2.) We
agreed with Price, Campbell and the People that the change in the law
applied retroactively under In re Estrada (1965) 63 Cal.2d 740. (See Garcia,
at pp. 971-973.) Thus, we remanded for that purpose. On remand, the trial
court declined to strike the five-year enhancements for prior serious felony
convictions, and Price and Campbell now contend that was an abuse of
discretion.
“Case law and legislative history indicate that courts ‘must evaluate
the nature of the offense and the offender in deciding whether to strike a
nickel prior [i.e., a five-year enhancement for a prior serious felony].’ ([People
v.] Shaw [(2020) 56 Cal.App.5th 582,] 586.) As with our review of a decision
on a motion to strike a prior strike, ‘[w]e review a court’s decision to deny a
motion to strike a five-year prior serious felony enhancement for an abuse of
43
discretion.’ (Id. at p. 5877.)” (People v. Brugman (2021) 62 Cal.App.5th 608,
637-638.)
“A trial court’s refusal to strike a prior strike is an abuse of discretion
only in limited circumstances. Examples are where the trial court was
unaware of its discretion to dismiss; where the court considered
impermissible factors; or where the sentencing norms established by the
Three Strikes law produce an arbitrary or patently absurd result. It is not
enough to show reasonable people might disagree about whether to strike a
prior conviction. There is no abuse of discretion unless the trial court’s
decision is so irrational or arbitrary that no reasonable person could agree
with it.” (People v. Edwards (2022) 76 Cal.App.5th 523, 528.)
“The trial court is not required to state reasons for declining to exercise
its discretion to strike a strike. We presume the trial court has considered all
relevant factors in the absence of an affirmative record to the contrary. When
the record is silent as to the trial court’s reasons for declining to strike a prior
strike, we presume the court correctly applied the law. Only in an
extraordinary case—where the relevant factors manifestly support the
striking of a prior conviction and no reasonable minds could differ—would the
failure to strike be an abuse of discretion.” (People v. Edwards, supra,
76 Cal.App.5th at p. 529.)
Price and Campbell contend the trial court mistakenly relied on the
belief that it had previously denied a Romero motion28 to dismiss a strike at
28 In People v. Superior Court (Romero) (1996) 13 Cal.4th 497
(Romero), our Supreme Court addressed “whether a court may, on its own
motion, strike prior felony conviction allegations in cases arising under the
law known as ‘Three Strikes and You’re Out.’ (§ 667, subds. (b)–(i), added by
Stats. 1994, ch. 12, § 1, eff. Mar. 7, 1994; see also § 1170.12, added by
initiative, Gen. Elec. (Nov. 8, 1994) [Proposition 184].)” (Id. at p. 504.) The
court held that the Three Strikes statute did not withdraw the courts’
44
the original sentencing hearing and said it was declining to strike the five-
year enhancement “for the same reason it denied [A]ppellant’s Romero
motion to dismiss his ‘strike’ at the original sentencing hearing.” Counsel
misstates the record.
Counsel for Campbell stated she believed trial counsel for Campbell
had filed a Romero motion at the time of the original sentencing and that the
court had denied it. She sought to incorporate that earlier motion by
reference. The trial court appears to have accepted her representation but,
contrary to Price and Campbell’s current argument, did not purport to
incorporate or otherwise rely on any prior Romero ruling or decision.
Rather, the court observed, “[T]his is not a question of striking the
prior for Romero purposes because that is not why this was sent back to me
because that was done. The Court had that authority at the time of
sentencing. It was denied. This is a separate, quite related authority the
Court has to strike or not the five-year enhancement, but on the same
representations and presentation you are submitting?” After Campbell’s
counsel submitted, the court denied the request to strike the five-year
enhancement, stating, “To me, again, a classic situation for the imposition of
the enhancement, and it doesn’t seem any—that the interest of justice do not
dictate that enhancements should be stricken as to either gentlemen . . . .”29
statutory power to dismiss in furtherance of justice under section 1385.
(Ibid.) Prior to Romero, the Court of Appeal had upheld the provision in
section 1385 that previously deprived courts of discretion to strike prior
serious felony allegations for purposes of the five-year enhancement imposed
by section 667, subdivision (a). (Romero, at p. 516.)
29 A further indication that the court understood the issue before it
was distinct from any Romero motion is its statement the outset of the
hearing explaining, “The sentences were all affirmed with the exception that
between the original sentencing and 2013 and the issuance of the opinion on
45
The reference to “again” was plainly to the court’s statement two pages prior
in the transcript stating, with respect to the gang-related gun enhancement,
that “this is indeed . . . a classic case for [the] applicability [of the vicarious
gang gun enhancement applicable to any principal],” reciting the evidence
indicating the three non-shooters, Anthony, Price and Campbell, were
present at the time of the shooting, more than one of them was armed at the
time, and there was “substantial planning” as indicated by the timing of the
killing of Davis soon after the death of their fellow gang member, Ngo,
coupled with the numerous telephone conversations in the days leading up to
the killing of Davis.
In short, Price and Campbell have failed to demonstrate that the trial
court abused its discretion in declining to dismiss their prior strike
convictions.
D. Price and Campbell Waived and Forfeited the Argument
That the Trial Court Should Have Obtained Supplemental
Probation Reports.
Price and Campbell also contend the trial court erred by failing to
obtain an updated probation report so it could consider whatever such a
report may have shown about their conduct since the trial. The People argue
that Price and Campbell waived the argument because they failed to request
appeal the law changed as to whether the Court had discretion or not to
strike a gun use enhancements under [section] 12022.53 and to strike serious
felony five-year priors under [section] 667[, subdivision] (a). Prior to the
changing of the law and at the time of the original sentencing, the Court had
no such discretion. That discretion has now been granted to the Court
because these gentlemen’s appeals were not final. It applied retroactively to
them, and so the court of appeal sent it back for me to exercise my discretion
on those issues.”
46
that the trial court obtain an updated probation report, citing People v.
Franco (2014) 232 Cal.App.4th 831 (Franco).
In Franco, the court held that the failure, by a defendant who was not
eligible for probation, to request a supplemental probation report or object to
proceeding without one resulted in “waiver of a supplemental report in the
trial court and forfeiture of the right to object to the absence of such a report
on appeal.” (Franco, supra, 232 Cal.App.4th at p. 834.) This is so, the court
held, “even where, for instance, the issue before the sentencing court was
whether to exercise discretion to dismiss a strike under section 1385 and
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.” (Ibid.) By statute
and by rule, the court must request a presentence investigation report only
where the defendant is eligible for probation or “a report is needed to assist
the court with other sentencing issues, including the determination of the
proper amount of restitution fine.” (Cal. Rules of Court, rule 4.411,
subd. (a)(1)(B); § 1203, subds. (b) & (g).) It must request a supplemental
report “if a significant period of time has passed since the original report was
prepared.” (Cal. Rules of Court, rule 4.411, subd. (a)(2).) The courts have
held that a supplemental report is necessary only in the circumstances in
which a report is required in the first instance, i.e., when the defendant is
eligible for probation or a report is necessary to assist the court with other
sentencing issues such as the amount of a restitution fine. (People v. Johnson
(1999) 70 Cal.App.4th 1429, 1431-1432.) Since their prior strike convictions
rendered Price and Campbell ineligible for probation (see People v. Superior
Court (Roam) (1998) 69 Cal.App.4th 1220, 1229), the court was not required
to obtain a supplemental report in this case. Certainly, the court had
discretion to order supplemental reports, but neither Price nor Campbell
requested that it do so.
47
Finally, Price and Campbell argue that Franco and People v. Johnson
were not decided in the context of resentencing under section 1176.2 [former
section 1170.95]. That is true. However, they fail to explain why cases
holding the failure to request a report or to object to the absence of one
constitutes a waiver and forfeiture of any error should not apply in the
context of a resentencing proceeding under section 1176.2. To be sure, a
supplemental report may be helpful in that context, just as it may be where
the trial judge is deciding whether to dismiss a strike or strike an
enhancement. Yet in the latter case, waiver and forfeiture doctrines apply.30
We note that the waiver and forfeiture in this instance may be of little
consequence since we are remanding both for further proceedings in
connection with section 1172.6 and for a retrial at the option of the People on
the gang-related special circumstance and enhancement. Either or both of
these proceedings may result in additional sentencing proceedings, and in
that context, Appellants will not be barred from requesting supplemental
probation reports at that time.
E. The Second Degree Murder Convictions Having Properly
Been Stricken Under Senate Bill 1437 for Campbell, Price
and Flowers, the Multiple-Murder Special Circumstance
Must Necessarily Be Stricken as to Those Appellants.
Price, Campbell and Flowers, none of whom was driving the car during
the escape attempt in which the driver and pedestrian were killed, argue the
court failed to strike the multiple-murder special circumstance after it
30 Nor is there any merit in Price and Campbell’s argument that failing
to request such a report amounted to ineffective assistance of counsel.
Counsel for Price and Campbell may well have determined that supplemental
probation reports would not have benefited their clients. Price and Campbell
do not assert that their post-conviction conduct was such that it could have
made a difference in the trial court’s resentencing decisions.
48
vacated the second degree murder convictions for those killings. The People
agree that “once the court vacated counts 2 and 3, the multiple-murder
special-circumstance finding also had to be vacated” as to Price and
Campbell.31 The People concede that the trial court did not explicitly do so
although they point out that the abstracts of judgment do not reflect that (or
the gang-related) special circumstance finding. We agree that a remand is
appropriate for the trial court to explicitly strike the multiple-murder special
circumstance as to Price, Campbell and Flowers. Further, the life without
parole sentences for these Appellants must likewise be vacated until and
unless the People retry the gang-related special circumstance allegations and
the jury, based on instructions under the amended statute, again finds them
true.
F. Appellants Price, Campbell and Flowers Are Not Entitled to
Relief Under Section 1172.6 from Their Convictions for
Evading a Peace Officer and Causing Death.
Appellants Price, Campbell and Flowers contend that they were
entitled to relief under section 1172.6 from their convictions of evading a
police officer proximately causing death under Vehicle Code section 2800.3,
subdivision (b), as to which the trial court lifted the stay after vacating the
second degree murder convictions. The arguments are difficult to follow, but
these Appellants appear to argue that these convictions were, in essence,
murder convictions that were based on the same facts and natural and
Flowers filed his joinder in the other Appellants’ arguments after
31
the People filed their respondent’s brief. We assume that because the
evidence indisputably showed that Anthony was driving the Cadillac when it
caused the collisions that killed Ross and Perea, the People would agree that
Flowers is similarly situated to Price and Campbell with respect to the
deaths of those two individuals and, as such, is entitled to the same relief.
49
probable consequences theory as the second degree murder convictions and
thus did not require personal intent to kill.
The People contend that section 1172.6 provides resentencing relief for
defendants convicted of murder, attempted murder and manslaughter but
not for violations of Vehicle Code section 2800.3, subdivision (b).
Section 1172.6, the People argue, requires proof that the petitioner could not
presently be convicted of murder or attempted murder because of changes to
sections 188 or 189, which does not apply because nothing in the
amendments to those two statutes changed Vehicle Code section 2800.3.
We agree with the People and find Appellants’ arguments meritless.
Vehicle Code section 2800.3 is not denominated “murder,” but rather, is
entitled “Death or serious bodily injury proximately caused by flight from
pursuing peace officer . . . .” (Veh. Code, § 2800.3.) Nor are its elements the
same as the elements of murder. Under the law as amended, murder
requires either an intentional killing, with express or implied malice (or, not
relevant here, acting with reckless indifference to human life and as a major
participant, aiding and abetting in the commission of certain felonies that
result in death). The elements of the crime of flight from pursuing officer
proximately causing death under Vehicle Code section 2800.3 are willful
flight or attempt to elude a peace officer proximately causing death. More
specifically, as the jury was instructed in this case, to find a defendant guilty
of that crime, the People had to prove that a peace officer was pursuing the
defendant and the defendant was driving a vehicle,32 intended to evade the
peace officer, while driving willfully fled from or tried to elude the pursuing
32Anthony was indisputably the driver, and the other Appellants
presumably were found guilty on an aiding and abetting or conspiracy theory,
which none of them has argued is impermissible.
50
officer, and in doing so caused the death of someone else. Further, the jury
was instructed it had to find that there was a lighted red lamp visible from
the front of the peace officer’s vehicle, the defendant saw or should have seen
the lamp, the officer’s vehicle was sounding a siren as reasonably necessary,
the officer’s vehicle was distinctively marked and the officer was wearing a
distinctive uniform. (See CALCRIM No. 2180.) Finally, the punishment for
murder and evading a peace officer causing death are not the same.
Second degree murder is punishable by “imprisonment in the state prison for
a term of 15 years to life” (§190, subd. (a)); evading a peace officer causing
death is punishable by imprisonment in the state prison for a determinate
term of 4, 6 or 10 years. (Veh. Code, § 2800.3, subd. (b).)
Finally, section 1172.6 does not expressly provide relief to persons
convicted under Vehicle Code section 2800.3. To be entitled to relief, a
petitioner must show three things: (1) a complaint, information or
indictment that allowed the prosecution to proceed under a theory of felony
murder or murder under the natural and probable consequences doctrine or
other theory under which malice is imputed to a person based solely on that
person’s participation in a crime, or attempted murder under the natural and
probable consequences doctrine; (2) he was convicted after trial or accepted a
plea of murder, attempted murder or manslaughter; and (3) he could not
presently be convicted of those crimes because of changes to sections 188 or
189 made effective January 1, 2019, or in 2021 when the Legislature
amended section 1172.6.33 (§1172.6, subd.(a)(1)–(3).) Nothing in Senate
33 In 2021, the Legislature added attempted murder and manslaughter
to the crimes for which a defendant, charged with murder under a natural
and probable consequences theory, could obtain relief. (See Stats. 2021,
51
Bill 1437 or the subsequent amendments to the murder statutes changed the
elements of, or the punishment for, a violation of Vehicle Code section 2800.3.
Appellants’ contention that they are entitled to relief from the
conviction for that offense, which is less serious than murder and, unlike
murder, does not now and did not ever require a finding of malice
aforethought, is not supported by the language or history of Senate Bill 1437.
Nor do Appellants argue, much less cite any authority indicating that, in
eliminating the natural and probable consequences doctrine as a basis for
attempted murder or manslaughter liability in 2021, the Legislature
intended to eliminate that doctrine or for other crimes involving homicide.34
Appellants do not contend that the 2021 amendment encompassed Vehicle
Code section 2800.3.
For the foregoing reasons, we reject Price, Campbell and Flowers’s
argument that they were entitled to relief from their section 2800.3
convictions under section 1172.6.
ch. 551.) It also renumbered former section 1170.95 to 1172.6. (Stats. 2022,
ch. 58, § 10.)
34 We note that the elements of causing death while attempting to
evade a peace officer set forth above are not only different from those of
murder but are also different from the elements of attempted murder and
those of manslaughter. (Compare Veh. Code, § 2800.3 with People v. Smith
(2005) 37 Cal.4th 733, 739 [elements of attempted murder] and § 192
[manslaughter].)
52
G. Price and Campbell’s Arguments That a New Sentencing
Hearing Is Required Because the Trial Court Failed to State
the Reasons for Sentencing Them to an Upper Term on
Count 4 and a Consecutive Term on Count 5 Were Forfeited;
Resentencing Is Nonetheless Required Because of Recently
Enacted Ameliorative Sentencing Legislation.
Price and Campbell argue that the sentences imposed by the trial court
for the Count 4 and Count 5 violations of Vehicle Code Section 2800.3 must
be reversed and remanded because the court failed to state reasons for
imposing the aggravated 10-year term on Count 4 and the consecutive
sentence for Count 5. Flowers joins in these arguments.
The People contend that Appellants forfeited these issues by failing to
object below. The People also contend that any error was harmless because it
is not reasonably probable that a result more favorable to Appellants would
have been reached in the absence of the error. As to Count 4, the People
point out that at the original sentencing, the court imposed (and then stayed)
the aggravated term and stated as reasons that: the victims were vulnerable;
each Appellant engaged in a pattern of violent conduct and is a serious
danger to society; their prior convictions are numerous and of increasing
seriousness; they previously served a term in prison; they were on probation
or parole at the time of the offense; their performance on probation or parole
was unsatisfactory; and these aggravating circumstances outweighed those in
mitigation. As to the consecutive sentence on Count 5, the People contend
any error was harmless because there was no reasonable probability of a
different sentence on remand, as Counts 4 and 5 involved the deaths of two
separate victims, in addition to the victim of the first degree murder, and the
court stated at the original sentencing that it was imposing consecutive
sentences on counts 1, 2 and 3 due to the “three separate
victims . . . and . . . separate acts of violence.”
53
In his reply brief, Price adds an argument that “[r]egardless of the
failure-to-state-reasons error, [Senate Bill No.] 567 is independently
retroactive under [People v.] Jones [(2022) 79 Cal.App.5th 37, 44-46 (Jones)]
and [People v.] Flores [(2022) 73 Cal.App.5th 1032, 1039] and requires
remand for new and full section 1170.95 and A139352 sentencing hearings.”
We agree with the People that Appellants forfeited their claims of error
concerning the trial court’s failure to state reasons for imposing an upper
term on Count 4 and a consecutive term on Count 5 by failing to raise the
issue in the trial court.35 (People v. Scott (1994) 9 Cal.4th 331, 353, 356.)
However, the argument raised in Price’s reply brief regarding Senate Bill
No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567) was neither forfeited nor
waived because that legislation was enacted well after completion of the trial
court proceedings that are the subject of this appeal and after Price’s and
Flowers’s opening briefs were filed. (See Jones, supra, 79 Cal.App.5th at
p. 44, fn. 11 [Sen. Bill 567 was signed by Governor on October 8, 2021].) We
therefore turn to that argument.
Senate Bill 567, which took effect on January 1, 2022, “amended
section 1170, subdivision (b), to specify that, when a sentencing court chooses
a term from a statutory triad, the chosen term shall not exceed the middle
term, unless the facts supporting the aggravating circumstances are (1)
established by the defendant’s stipulation to them, (2) proven to a jury (or to
a court, if jury is waived) beyond a reasonable doubt, or (3) based on prior
35 Price and Campbell also contend that the court erred because
consecutive sentencing was not mandatory under section 667,
subdivision (c)(6), because the Count 4 and Count 5 convictions occurred on
the same occasion and arose from the same set of operative facts. We reject
this argument because, as the People point out, Appellants cite no evidence
indicating the trial court thought consecutive sentences were mandatory
under that provision rather than discretionary.
54
convictions evidenced by a certified record of conviction. (Stats. 2021, ch. 731,
§§ 1.3, 3(c), adding § 1170, subd. (b)(1)–(3), by amendment.)” (Jones, supra,
79 Cal.App.5th at p. 44.) “Senate Bill 567 also added a provision that
requires the court to impose the low term if the defendant’s psychological,
physical, or childhood trauma was a contributing factor in the commission of
the offense, ‘unless the court finds that the aggravating circumstances
outweigh the mitigating circumstances [so] that imposition of the lower term
would be contrary to the interests of justice.’ (Stats. 2021, ch. 731, §§ 1.3,
3(c), adding § 1170, subd. (b)(6), by amendment.)” (Ibid.) Here, it does not
appear that all of the aggravating factors listed by the trial court for
imposing the upper term sentence on Count 4 meet the requirements of
section 1170, subdivision (b), or that the court would necessarily impose the
same sentence if it relied only on those aggravating factors that are now
permitted under that section. Nor is it clear whether Appellants had the
opportunity to present to the sentencing court information about the factors
in subdivision (b)(6) of section 1170 about psychological, physical, or
childhood trauma being contributing factors in the commission of the offense.
For that reason, a remand for full resentencing as to Price, Campbell and
Flowers is appropriate. (Jones, at p. 46, citing People v. Buycks (2018)
5 Cal.5th 857, 893; People v. Flores, supra, 73 Cal. App. 5th at pp. 1038-
1039.)
H. Price’s Argument That the Trial Court Erred When It Denied
Appellant’s Section 1172.6 Petition Without Prejudice After
Appointing Counsel to Represent Him Fails Because He Has
Not Established Any Prejudice.
Price (joined by Anthony and Flowers) contends the trial court exceeded
its statutory jurisdiction in denying the form petition he filed on his own
behalf without prejudice after it appointed counsel to represent him and
stated that counsel would be responsible for filing any petition under
55
section 1170.95. He further contends that the court violated his right to due
process because he was not provided notice or an opportunity to be heard
regarding the court’s intent to do so.
As Appellant acknowledges, counsel subsequently filed a petition for
resentencing on Price’s behalf accompanied by a declaration of counsel.
According to Appellant, however, that petition was “defective on its face
because it did not include a declaration by [A]ppellant—the petitioner.” A
declaration such as the one Price executed under penalty of perjury is
“necessarily part of the prima facie stage and is evidence in support of the
mandatory prerequisite [that] ‘[t]he petitioner could not be convicted of first
or second degree murder because of changes to Section 188 or 189 . . .
(§1170.95, subd. (a)(3)), while counsel’s ‘information and belief’ declaration
has no such legal effect.” Because counsel’s declaration failed to satisfy the
prerequisites for relief, Appellant maintains, the court should have denied it
without prejudice and its “ruling denying prima facie section 1170.95 relief is
void.”
The People contend, and we agree, that Price has shown no prejudice
from the claimed error because counsel filed the new petition and the trial
court “considered and denied [it] on the merits.” Price is, therefore, “in the
same position as he would have been if the court had ruled on his original
petition.”36 Our review of the record confirms the People’s assertion that the
court treated counsel’s declaration as true as to all statutory elements,
“notwithstanding the absence of the required declaration by Price, and
proceeded to determine whether Price established a prima facie case for
The People also argue that the record provided by Price does not
36
show that he received no notice of the court’s intended action or that his
counsel ever objected to the dismissal of his petition.
56
relief. The People did not object to the lack of a personal declaration.”
Indeed, the court did not indicate there were any missing elements in
petitioners’ prima facie showing but instead held the record of conviction,
including the instructions and verdicts, as a matter of law precluded relief.
Therefore, any error was harmless.37
I. Price’s and Campbell’s Arguments About Claimed Errors in
the Abstracts of Judgment Regarding Calculation of Custody
Credits, Administrative Fees and Clerical Errors Are Moot.
Price and Campbell contend that the trial court erred by failing to
ascertain and order custody credits and delete unpaid administrative fees
and that there are clerical errors in the abstracts of judgment. The People
agree that there is an error in the abstract of judgment for Price, in regard to
custody credits, and as to Price, Campbell and Flowers that, in light of new
legislation (§ 1465.9, subd. (a); Stats. 2020, ch. 92, § 62) their imposed
probation investigation fees of $250 must be vacated.
We need not address these arguments at this juncture because, as to
Price, Campbell and Flowers, we are remanding the matter for full
resentencing. Appellants may raise any arguments pertaining to sentencing
at that time.
Price also contends he received ineffective assistance of counsel at the
resentencing proceedings. We have addressed all of the claimed failures he
attributes to his resentencing counsel and our rulings on those matters
render the ineffective assistance of counsel claim moot, because, as to each,
we have found no error or have granted relief on the merits. (See Part E
37 The issue is also moot in light of our remand for an evidentiary
hearing under section 1172.6. We presume the People will not object on
remand to the hearsay nature of counsel’s petition and that if they do,
counsel will resubmit Appellants’ in propria persona petitions or new
petitions signed by Appellants under penalty of perjury.
57
(dismissal of multiple-murder special circumstance); Part D (new probation
report); Part G (statements of reasons for Count 4 upper term sentence and
Count 5 consecutive sentence); Part B (abuse of or failure to exercise
discretion before imposing consecutive 25-years-to-life enhancement under
section 12022.53); Part C (abuse of or failure to exercise discretion before
sentencing Appellant to five-year section 667, subdivision (a) enhancement);
and Part H (failure to independently determine custody credits).)38
J. We Need Not Address Flowers’s Arguments About the
Verdicts and Trial Record Because We Are Remanding the
Section 1172.6 Proceeding for an Evidentiary Hearing.
Flowers’s brief on appeal is primarily a joinder in the other Appellants’
arguments. He makes two new points, although he fails to explain their
impact on the issues presented here. The first is that the jury did not
explicitly find that he was the shooter. The second is that the prosecutor
repeatedly referred during closing argument to the natural and probable
consequences theory and that this rendered the instruction on that theory
prejudicial.
We agree that the instructions and verdicts on the special
circumstances did not require the jury to make an explicit finding as to which
of the Appellants shot and killed Davis. Specifically, it was instructed, based
on CALCRIM No. 702, that “[i]n order to prove these special circumstances
[gang murder and multiple murder] for a defendant who is not the actual
killer but who is guilty of first degree murder as an aider and abettor or
conspirator, the People must prove the defendant acted with the intent to
38 We need not address and therefore express no view regarding Price’s
claim that his counsel in the resentencing and remand proceedings was
ineffective.
58
kill39 and that “[t]he People do not have to prove that the actual killer acted
with the intent to kill in order for these special circumstances to be true.”
Given this instruction, the jury’s finding on the special circumstances as to
any particular Appellant, including Flowers, meant either that he intended to
kill Davis or that he was the actual killer.
Flowers may, on remand, argue that the evidence does not show he was
the actual killer and/or that it does not show he acted with intent to kill. As
indicated by our opinion on direct appeal, the trial record will make such
arguments challenging, but he is not foreclosed from arguing the point and
presenting any additional evidence pertinent to it.
As to the argument about the effect of the closing arguments, again,
Flowers and the other Appellants may make such arguments again in the
evidentiary hearing, at which they can discuss the trial evidence, any new
evidence and the record of conviction, including but not limited to the effect of
the jury instructions and counsels’ closing arguments. Such arguments are
relevant but not necessarily dispositive of the resentencing issues. (Cf. In re
Lopez, supra, 14 Cal.5th 562, 590 [prosecutor’s mere reliance on invalid
theory will not overcome strong showing of harmlessness based on review of
entire cause, including evidence, and consideration of all relevant
circumstances].)
In short, Flowers’s arguments, while providing support for the
argument that an evidentiary hearing should be conducted under
section 1172.6, do not mandate that relief from the first degree murder
conviction be granted. Rather, it will be for the trial court, based on the
record before it, including any new evidence presented at the evidentiary
39The jury was also instructed that the People had to prove beyond a
reasonable doubt that the defendant acted with intent to kill.
59
hearing and the arguments made by counsel at that time, to determine
“whether [appellants] committed murder under a still-valid theory.” (People
v. Clements, supra, 75 Cal.App.5th 276, 294.)
DISPOSITION
The trial court’s denial of relief from Appellants’ first degree murder
conviction under section 1172.6 is reversed and that matter is remanded with
directions to issue an order to show cause and hold an evidentiary hearing.
The trial court shall determine, based on that hearing, whether Appellants
are entitled to relief from their convictions of first degree murder for the
killing of Charles Davis, and nothing in this opinion is intended to suggest
what the trial court’s determination should be.
The People have not challenged the trial court’s decision to grant relief
under section 1172.6 to Appellants Campbell, Flowers and Price on their
convictions of second degree murder for the killings of Ross and Perea.
Consistent with the trial court’s grant of relief overturning those convictions
and a lack of clarity on the disposition of the multiple-murder special
circumstance under section 190.2, subdivision (3), we remand the matter to
the trial court to strike that special circumstance as to Appellants Campbell,
Flowers and Price.
We also affirm the trial court’s denial of resentencing relief under
section 1172.6 to Campbell, Flowers and Price on their convictions under
Vehicle Code section 2800.3. However, we remand the sentencing on those
convictions for reconsideration in light of the recent changes to section 1170,
subdivision (b), effected by the enactment of Senate Bill 567.
We reverse the gang-murder special circumstances and gang
enhancements based on the recent amendments to section 186.22 in light of
our holding that those amendments are retroactively applicable to
60
Appellants. On remand, the People shall have the option to retry Appellants
on the gang-related special circumstance (section 190.2, subdivision (a)(22))
and the gang gun enhancement (section 12022.53, subdivision (h)). If they
choose not to do so, the court shall resentence Appellants accordingly.
In all other respects, the trial court’s rulings are affirmed.
61
STEWART, P.J.
We concur.
MILLER, J.
MARKMAN, J. *
People v. Campbell (A162472); People v. Price (A162488); People v. Anthony
(A162623); People v. Flowers (A163277)
* Judge of the Alameda Superior Court assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
62
Trial Court:Alameda County Superior Court
Trial Judge: Hon. Thomas M. Reardon
Counsel:
Audrey R. Chavez, under appointment by the Court of Appeal, for Defendant
and Appellant Rafael Campbell.
Waldemar D. Halka, under appointment by the Court of Appeal, for
Defendant and Appellant Anthony Price.
Cliff Gardner and Brooke Acevedo, under appointment by the Court of
Appeal, for Defendant and Appellant Stephon Anthony.
Barry Morris, under appointment by the Court of Appeal, for Defendant and
Appellant Samuel Flowers
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Jeffrey M. Laurence, Assistant Attorney General, Seth K. Schalit
and Bridget Billeter, Deputy Attorneys General, for Plaintiff and
Respondent.
63