Opinion
D080869
09-12-2023
In re K.B., a Person Coming Under the Juvenile Court Law. v. K.B., Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent,
Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD255762, Carlos O. Armour, Judge.
Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
IRION, J.
This is the third appeal in this case. In the first appeal, we affirmed in part and reversed in part the judgment against defendant K.B. and remanded the matter with directions that the trial court consider any Penal Code section 1170.95 petition filed by K.B. and exercise its discretion under then newly amended section 12022.53 to strike or dismiss any or all of his firearm enhancements. (People v. Bell (Apr. 17, 2019, D072748 [nonpub. opn.] (Bell I).) In resentencing K.B. on remand after Bell I, the trial court denied his section 1170.95 petition, declined to strike or dismiss any of his section 12022.53 enhancements, and reimposed its original sentence.
All statutory references are to the Penal Code unless otherwise specified.
In the second appeal, we affirmed in part and reversed in part the judgment against K.B. to the extent it imposed enhancements under former section 186.22 and remanded the matter with directions that the trial court conduct a new trial on any subsequent section 186.22 allegations filed by the People under then newly amended section 186.22 and, if none were filed, to conduct a new resentencing hearing without the imposition of any section 186.22 enhancements. (People v. Bell (Feb. 28, 2022, D078794) [nonpub. opn.] (Bell II).) On remand after Bell II, the People elected to not file any section 186.22 allegations under amended section 186.22 and the court then reimposed K.B.'s original sentence, except it omitted the section 186.22 enhancements.
In this third appeal, K.B. contends in his appellant's opening brief that the trial court prejudicially erred on remand after Bell II by: (1) not providing him with a full resentencing hearing as directed by Bell II's disposition; (2) not applying then newly amended section 1170, subdivision (b) in resentencing him; (3) not applying newly enacted section 1385, subdivision (c) in resentencing him; (4) denying his motion for new trial based on then newly amended section 1109; (5) not considering amended section 1109 in resentencing him; and (6) failing to calculate and award to him custody credits in resentencing him. In his supplemental opening brief, K.B. also contends that amendments to Welfare and Institutions Code section 707 (hereafter section 707), effective January 1, 2023 (during the pendency of the instant appeal), retroactively apply to his nonfinal judgment, requiring conditional reversal of the judgment with remand to the juvenile court for a hearing on any request filed by the People for transfer of his case to criminal court in compliance with amended section 707's provisions.
As explained below, we conclude that the trial court erred by: (1) not conducting a full resentencing hearing after our remand in Bell II; (2) not applying amended section 1170, subdivision (b) and newly enacted section 1385, subdivision (c) in resentencing K.B.; and (3) failing to calculate and award to him custody credits in resentencing him. Assuming that amended section 1109 applied retroactively to K.B.'s nonfinal judgment, we further conclude that the court's failure to apply amended section 1109 in resentencing him was harmless error. Finally, we agree with K.B. that newly amended section 707 applies retroactively to his nonfinal judgment, requiring conditional reversal of the judgment with remand to the juvenile court for a hearing on any transfer request filed by the People in compliance with amended section 707's provisions. On remand, if the juvenile court finds that K.B. is amenable to rehabilitation under its jurisdiction within the meaning of amended section 707, it shall treat K.B.'s convictions as juvenile adjudications and order an appropriate disposition. If, however, the juvenile court finds there is clear and convincing evidence that K.B. is not amenable to rehabilitation under the juvenile court system within the meaning of amended section 707, the court shall transfer the case to criminal court, which shall then conduct a full resentencing hearing in accordance with our opinion and directions.
FACTUAL AND PROCEDURAL BACKGROUND
As discussed in Bell I, supra, D072748, K.B. and Marlon Thomas committed two armed robberies, the second of which resulted in Thomas's death when a security guard shot him. In 2016, a criminal court jury convicted K.B. of first degree murder (§§ 187, subd. (a), 189), attempted murder (§§ 187, subd. (a), 664), and two counts of armed robbery (§ 211). The jury also found true allegations that the attempted murder was deliberate and premeditated (§ 189), that in committing the attempted murder and robberies K.B. personally discharged a firearm (§ 12022.53, subds. (c), (d)), and that he committed the offenses for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)). The trial court sentenced K.B. to an indeterminate term of 65 years to life in prison and a concurrent determinate term of 33 years in prison. In Bell I, we affirmed his convictions, but reversed his sentence and remanded the matter with directions that the trial court consider any section 1170.95 petition filed by K.B. and exercise its new discretion to strike any or all of the section 12022.53 enhancements. (Bell I, supra, D072748.)
For a more complete description of K.B.'s offenses and the underlying criminal proceedings against him, refer to our opinion in Bell I, supra, D072748.
After the remittitur issued in Bell I, supra, D072748, K.B. filed a petition with the trial court seeking relief under section 1170.95 and a motion to strike the section 12022.53 enhancements. On April 9, 2021, the court conducted a resentencing hearing and denied both the section 1170.95 petition and motion to strike the section 12022.53 enhancements. The court then reimposed the sentence it had originally imposed.
On appeal in Bell II, we affirmed the trial court's denial of K.B.'s section 1170.95 petition and reimposition of section 12022.53 enhancements, but reversed K.B.'s section 186.22 enhancements because then newly amended section 186.22 applied retroactively to his nonfinal judgment. (Bell II, supra, D078794.) We remanded the matter with directions that the trial court either: (1) conduct a new trial on any subsequent allegations filed by the People under amended section 186.22 and a resentencing hearing based on any findings made thereon; or (2) if the People elected to not file any subsequent allegations under amended section 186.22, conduct a resentencing hearing without the imposition of any section 186.22 enhancements. (Bell II, supra, D078794.)
On August 22, 2022, after the remittitur issued in Bell II, supra, D078794, the trial court conducted a resentencing hearing. The People elected to not retry the section 186.22 allegations and moved to dismiss those allegations. The court dismissed the section 186.22 allegations and proceeded to sentence K.B. The court reduced the sentence on K.B.'s conviction of attempted murder on count 2 (§§ 187, subd. (a), 664) based on its dismissal of the related section 186.22 allegation and then reimposed the remainder of the original sentence for a total indeterminate term of 57 years to life in prison and a concurrent determinate term of 26 years. K.B. appealed the judgment.
On January 10, 2023, K.B. filed a request that we take judicial notice of the appellate records, briefs, and opinions in Bell I and Bell II. On January 27, we issued an order stating that we would consider that request for judicial notice concurrently with this appeal. We now grant the request and take judicial notice of the appellate records, briefs, and opinions in Bell I and Bell II. (Evid. Code, §§ 452, subd. (d)(1), 459, subd. (a); Cal. Rules of Court, rule 8.147.)
DISCUSSION
I
Amended Section 707 Applies Retroactively to K.B.'s Nonfinal Judgment, Requiring Conditional Reversal and Remand for a Transfer Hearing in the Juvenile Court
In his supplemental appellant's opening brief, K.B. contends that amendments to section 707, effective January 1, 2023, apply retroactively to his nonfinal judgment and require conditional reversal of the judgment and remand to the juvenile court for a transfer hearing in accordance with the provisions of amended section 707. We agree.
A
As discussed in Bell I, supra, D072748, the provisions of Proposition 57, passed by California voters in November 2016, require prosecutors to commence an action against a juvenile in juvenile court and, if they wish to try a juvenile as an adult, they must request a transfer hearing in the juvenile court to determine whether the matter should remain in the juvenile court or be transferred to adult criminal court. (People v. Lara (2018) 4 Cal.5th 299, 303 (Lara).) Proposition 57 amended section 707, subdivision (a), to provide at that time:
"(1) In any case in which a minor is alleged to be a person described in [Welfare and Institutions Code] Section 602 by reason of the violation, when he or she was 16 years of age or older, of any felony criminal statute, or of an offense listed in subdivision (b) when he or she was 14 or 15 years of age, the district attorney or other appropriate prosecuting officer may make a motion to transfer the minor from juvenile court to a court of criminal jurisdiction. The motion must be made prior to the attachment of jeopardy. Upon such motion, the juvenile court shall order the probation officer to submit a report on the behavioral patterns and social history of the minor. The report shall include any written or oral statement offered by the victim pursuant to [Welfare and Institutions Code] Section 656.2. [¶] . . .
"(3) Following submission and consideration of the report, and of any other relevant evidence that the petitioner or the minor may wish to submit, the juvenile court shall decide whether the minor should be transferred to a court of criminal jurisdiction. In making its decision, the court shall consider the criteria specified in subparagraphs (A) to (E), inclusive. If the court orders a transfer of jurisdiction, the court shall recite the basis for its decision in an order entered upon the minutes....
"(A)(i) The degree of criminal sophistication exhibited by the minor. [¶] . . .
"(B)(i) Whether the minor can be rehabilitated prior to the expiration of the juvenile court's jurisdiction. [¶] . . .
"(C)(i) The minor's previous delinquent history. [¶] . . .
"(D)(i) Success of previous attempts by the juvenile court to rehabilitate the minor. [¶] . . .
"(E)(i) The circumstances and gravity of the offense alleged in the petition to have been committed by the minor. [¶] . . ." (Former § 707, subd. (a).)
In Lara, the California Supreme Court held that Proposition 57's provisions apply retroactively to "all juveniles charged directly in adult court whose judgment was not final at the time it was enacted." (Lara, supra, 4 Cal.5th at p. 304.) In Bell I, we concluded that Proposition 57's provisions applied retroactively to K.B.'s nonfinal judgment under Lara's holding, but that the trial court's failure to refer his case to the juvenile court for a transfer hearing in compliance with then amended section 707 was harmless because the trial court, in effect, provided him with the substantial equivalent of a transfer hearing under amended section 707 and therefore it was not reasonably probable he would have obtained a more favorable result had the trial court referred his case to the juvenile court. (Bell I, supra, D072748.)
B
However, since Bell I, section 707 has again been amended. One court recently stated: "Effective January 1, 2023, the Legislature amended section 707, adding the following language: 'In order to find that the minor should be transferred to a court of criminal jurisdiction, the court shall find by clear and convincing evidence that the minor is not amenable to rehabilitation while under the jurisdiction of the juvenile court.'" (In re S.S. (2023) 89 Cal.App.5th 1277, 1284 (S.S.), citing § 707, subd. (a)(3); see Stats. 2022, ch. 330, § 1.) The court in In re E.P. (2023) 89 Cal.App.5th 409 (E.P.) described amended section 707, stating:
"The amendment changes section 707 in a number of ways.
"First, in the previous version of section 707, the prosecution's burden was by a preponderance of the evidence. Under the amendment the prosecution's burden is increased to clear and convincing evidence.
"Second, under the previous version whether the minor is amenable to rehabilitation while under the jurisdiction of the juvenile court was one of five factors for the court to consider in determining whether the case should be transferred to criminal court. The amendment states [amenability to rehabilitation] as the ultimate question for the court to decide. Nevertheless, in deciding that question, the amendment requires the court to consider the same five factors listed in the previous version.
"Finally, the previous version required that if the juvenile court orders a transfer, it shall recite the basis for its decision in the order. The amended statute requires the court to not only recite the basis for its decision, but also the reasons supporting the court's finding that the minor is not amenable to rehabilitation while under the jurisdiction of the juvenile court." (E.P., supra, 89 Cal.App.5th at p. 416.)
In sum, newly amended section 707 both: (1) raises the prosecution's standard of proof from a preponderance of the evidence to clear and convincing evidence; and (2) requires the juvenile court to make a specific finding regarding amenability to rehabilitation and cite the basis and supporting reasons for a finding of lack of amenability. (§ 707, subd. (a); see, also, S.S., supra, 89 Cal.App.5th at p. 1284; E.P., supra, 89 Cal.App.5th at p. 416.)
Because K.B.'s judgment is not final pending appeal, we conclude, as K.B. argues and the People concede, that the newly enacted amendments to section 707, as discussed in S.S. and E.P., apply retroactively to K.B.'s case pursuant to the rule of retroactivity under In re Estrada (1965) 63 Cal.2d 740, 747-748. (S.S., supra, 89 Cal.App.5th at p. 1289; E.P., supra, 89 Cal.App.5th at p. 416.) In general, the presumption of retroactivity of statutory amendments that reduce possible punishment applies to any proceeding which, at the time of that supervening legislation, has not yet reached final disposition in the highest court authorized to review it. (People v. McKenzie (2020) 9 Cal.5th 40, 45 (McKenzie).) In Lara, the court concluded that Proposition 57's prior amendments to section 707 applied retroactively to appellant's case because they effectively reduced his possible punishment, stating: "The possibility of being treated as a juvenile in juvenile court-where rehabilitation is the goal-rather than being tried and sentenced as an adult can result in dramatically different and more lenient treatment." (Lara, supra, 4 Cal.5th at p. 303.)
C
Given the retroactive application of the provisions of newly amended section 707, K.B. argues that we should conditionally reverse his convictions and remand his case to the juvenile court for a transfer hearing in compliance with amended section 707. The People, however, assert that no conditional reversal or remand to the juvenile court is required because K.B. was previously given the substantial equivalent of a transfer hearing under former section 707, as we concluded in Bell I, and K.B. has not shown it is reasonably probable he would obtain a more favorable result if his case were remanded to the juvenile court for a transfer hearing in compliance with newly amended section 707.
As we discussed in Bell I, the trial court conducted a section 1170.17, subdivision (c) fitness hearing in June 2017, applied the five criteria set forth in section 1170.17, subdivision (b)(2), and found that the prosecution had met its burden to prove, by a preponderance of the evidence, that K.B. was not a fit and proper subject to be dealt with under juvenile court law. (Bell I, supra, D072748, at pp. 12-15, 19.) In so doing, we concluded the court erred by not applying former section 707 retroactively to K.B.'s case and remanding the case to the juvenile court for a transfer hearing under former section 707, but concluded that error was harmless because K.B. received a hearing that was substantially equivalent to a transfer hearing under former section 707. (Bell I, supra, D072748, at pp. 22-23.)
Contrary to the People's assertion, our conclusion in Bell I that K.B. received a hearing substantially equivalent to a transfer hearing under former section 707 does not refute K.B.'s argument that it is reasonably probable he would receive a more favorable result if his case were remanded to a juvenile court to consider any transfer request filed by the People under newly amended section 707. As the People note, we apply the harmless error standard of People v. Watson (1956) 46 Cal.2d 818, 836 (Watson) to nonstructural state law error. (See, e.g., People v. Gonzalez (2018) 5 Cal.5th 186, 195.) Assuming the failure to comply with amended section 707 would constitute, at most, nonstructural state law error, we conclude, based on our review of the record, that K.B. has carried his burden on appeal to show under the Watson standard that it is reasonably probable he would receive a more favorable result if his case is remanded to the juvenile court for a transfer hearing under amended section 707 than the result he received at the June 2017 fitness hearing under section 1170.17, subdivision (c). Under the Watson standard, a reasonable probability "does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility" that the outcome would have been more favorable to the defendant absent the error. (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 715 (College Hospital Inc.).) Alternatively stated, there is a reasonable probability of a more favorable outcome under the Watson standard if there is at least such an equal balance of reasonable probabilities as to leave the appellate court in serious doubt as to whether the error affected the outcome. (People v. Mower (2002) 28 Cal.4th 457, 484 (Mower).)
Applying the Watson standard for harmless error to the record in this case, we conclude that there is a reasonable chance, more than an abstract possibility, that K.B. would receive a more favorable outcome (i.e., denial of transfer) if a juvenile court were to conduct a transfer hearing under amended section 707 than he received at the June 2017 fitness hearing. (College Hospital Inc., supra, 8 Cal.4th at p. 715.) First, the increase in the People's burden of proof under amended section 707 will likely have an impact on a juvenile court's weighing of the evidence at a transfer hearing. Whereas, at the June 2017 fitness hearing, the People had the burden to prove K.B. was unfit for treatment in the juvenile court system by only a preponderance of the evidence, the People under amended section 707 have the burden to prove that K.B. is not amenable for rehabilitation under the juvenile court's jurisdiction by clear and convincing evidence. (See, § 707, subd. (a)(3); S.S., supra, 89 Cal.App.5th at p. 1284; E.P., supra, 89 Cal.App.5th at p. 416.) The preponderance of the evidence standard requires a finding only that a fact is more probable than not, while the clear and convincing evidence standard" 'requires a finding of high probability.' [Citation.]" (Conservatorship of O.B. (2020) 9 Cal.5th 989, 998, citing In re Angelia P. (1981) 28 Cal.3d 908, 919.) To meet the clear and convincing evidence standard of proof, the evidence must be so clear as to leave no substantial doubt and must be sufficiently strong to command the unhesitating assent of every reasonable mind. (In re V.L. (2020) 54 Cal.App.5th 147, 154 (V.L.).)
Second, as discussed above, amended section 707 changed the ultimate question the juvenile court must decide from whether a minor should be transferred to criminal court considering the five criteria under section 707 to, instead, amenability to rehabilitation under the juvenile court's jurisdiction on consideration of those five criteria. (§ 707, subd. (a)(3); see, also, S.S., supra, 89 Cal.App.5th at p. 1284; E.P., supra, 89 Cal.App.5th at p. 416.) Although amenability to rehabilitation remains as one of the five criteria a juvenile court must consider in deciding a transfer request, amended section 707 alters the focus of the court's decision making so that it now must view the evidence and consider the five criteria through the lens of, and make an ultimate determination regarding, a minor's amenability to rehabilitation under the juvenile court's jurisdiction. (See, S.S., at p. 1288.)
Given the evidence admitted at K.B.'s June 2017 fitness hearing, we conclude for purposes of determining prejudice that there is a reasonable chance that a juvenile court, on consideration of that evidence, could have a substantial doubt whether the People have carried their burden to prove that K.B. is not amenable to rehabilitation under its jurisdiction. (Cf. V.L., supra, 54 Cal.App.5th at p. 154 [describing clear and convincing evidence standard].)
In particular, based on amended section 707, which changed the burden of proof and standard for transfer, our review of the testimony of Dr. Farma and Michael Farmer and other evidence admitted at the June 2017 hearing, and possible new or updated evidence regarding K.B.'s amenability to rehabilitation that may be submitted at a transfer hearing on remand, we conclude that there is a reasonable chance that a juvenile court could deny a request filed by the People on remand to transfer K.B.'s case to criminal court. (College Hospital Inc., supra, 8 Cal.4th at p. 715.) We rely, in part, on Dr. Farma's and Michael Farmer's testimony regarding DJJ, its programs, and K.B.'s eligibility for DJJ commitment in concluding there would be prejudicial error if amended section 707 were not retroactively applied, despite DJJ's recent closure. Beginning July 1, 2021, the responsibility for all juvenile wards shifted from DJJ to county governments. (Welf. &Inst. Code, § 736.5, subd. (a); Stats. 2020, ch. 337 (S.B. 823), § 30; Stats. 2021, ch. 18 (S.B. 92), § 10; see, e.g., In re T.O. (2022) 84 Cal.App.5th 252, 262; In re Miguel C. (2021) 69 Cal.App.5th 899, 907.) Welfare and Institutions Code section 736.5, subdivision (e) provides: "The Division of Juvenile Justice [D]J] within the Department of Corrections and Rehabilitation shall close on June 30, 2023." Accordingly, if after remand to the juvenile court the People file a request to transfer K.B. to criminal court pursuant to amended section 707, the juvenile court should consider, inter alia, any new evidence submitted by the parties regarding the availability of rehabilitation programs then offered by San Diego County (e.g., by its probation department) for juveniles under the jurisdiction of the juvenile court and their effect on its ultimate determination of K.B.'s amenability to rehabilitation under its jurisdiction. (Cf. Dix v. Superior Court (1991) 53 Cal.3d 442, 460 (Dix) ["when a case is remanded for resentencing after an appeal, the defendant is entitled to 'all the normal rights and procedures available at his original sentencing' [citations], including consideration of any pertinent circumstances which have arisen since the prior sentence was imposed' "].)
Because the failure to retroactively apply amended section 707 to K.B.'s nonfinal judgment would be prejudicial to him, we conclude that the judgment must be conditionally reversed and his case remanded to the juvenile court with directions to conduct a hearing in compliance with amended section 707 on any request filed by the People to transfer his case to criminal court no later than 90 days after the remittitur is issued. We express no opinion on how the juvenile court on remand should decide any request filed by the People to transfer K.B.'s case to criminal court after a hearing in compliance with amended section 707. If the juvenile court after the transfer hearing denies that request, then K.B.'s criminal convictions and enhancements will be deemed juvenile adjudications as of that date and the court shall then conduct a dispositional hearing within its usual timeframe. If the juvenile court after the transfer hearing grants that request, then the case shall be transferred to the criminal court for further proceedings consistent with this opinion and as directed in the disposition of this case.
Because any transfer hearing under amended section 707 will occur after September 1, 2023, the juvenile court shall also comply with California Rules of Court, rule 5.770, regarding the conduct of transfer hearings under amended section 707, which rule became effective on September 1, 2023.
II
Full Resentencing Hearing Was Required on Remand after Bell II
K.B. contends, and the People concede, that the trial court erred by not conducting a full resentencing hearing after the remittitur issued in Bell II. Although we conditionally reverse the judgment and remand the case to the juvenile court for a transfer hearing under amended section 707 as discussed above, we must address this contention and give guidance to the criminal court in the event the juvenile court on remand transfers K.B.'s case to criminal court.
A
After the remittitur was issued in Bell II, the trial court apparently believed that its resentencing discretion was limited to merely subtracting the section 186.22 enhancements and then reimposing the remainder of K.B.'s original sentence. At the July 14, 2022 hearing, the court stated: "[T]he appellate court sent the case back to the trial court to address the issue of the gang allegation." It further stated: "I believe that I am limited to the direction which has been given to this Court by the appellate court on remittitur, and that basically directed the Court to resolve the issue of the [section] 186.22 enhancement, and only that." At the August 22, 2022 hearing, the court stated: "The Court receives the case back on a remittitur, which specifically designates the parameter of the Court's jurisdiction to modify the judgment. And I have done so. I cannot go outside that record. [¶] . . . I'm also not prepared to go outside the record of the remittitur and modify the judgment any further." Given its interpretation of the remittitur, the court denied K.B.'s request, inter alia, that the court retry the substantive counts in light of amended section 186.22 and consider newly amended sections 1385 and 1170, subdivision (b) in resentencing him.
B
By interpreting the Bell II remittitur as precluding it from addressing any issues other than the section 186.22 enhancements, the trial court erred. Our Supreme Court stated: "[W]hen part of a sentence is stricken on review, on remand for resentencing 'a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.' [Citation.]" (People v. Buycks (2018) 5 Cal.5th 857, 893 (Buycks), citing People v. Navarro (2007) 40 Cal.4th 668, 681.) That court subsequently stated: "[T]he full resentencing rule allows a court to revisit all prior sentencing decisions when resentencing a defendant." (People v. Valenzuela (2019) 7 Cal.5th 415, 425.) "[W]hen a case is remanded for resentencing after an appeal, the defendant is entitled to 'all the normal rights and procedures available at his original sentencing' [citations], including consideration of any pertinent circumstances which have arisen since the prior sentence was imposed [citation]." (Dix, supra, 53 Cal.3d at p. 460.) Accordingly, under the full resentencing rule, "[w]hen a case is remanded for resentencing by an appellate court, the trial court is entitled to consider the entire sentencing scheme. Not limited to merely striking illegal portions, the trial court may reconsider all sentencing choices." (People v. Hill (1986) 185 Cal.App.3d 831, 834 (Hill).)
Here, the record, as quoted above, shows that the trial court believed its authority on resentencing K.B. after the remittitur in Bell II was limited to striking any section 186.22 enhancements and then merely reimposing the remainder of his original sentence. The court stated: "I believe that I am limited . . . by the appellate court on remittitur, and that basically directed the Court to resolve the issue of the [section] 186.22 enhancement, and only that." (Italics added.) It further stated that our remittitur: "specifically designates the parameter of the Court's jurisdiction to modify the judgment....[¶] . . . I'm also not prepared to go outside the record of the remittitur and modify the judgment any further." (Italics added.) In so interpreting our disposition in Bell II, the court erred and failed to understand the full scope of its discretion on resentencing K.B.
Our disposition in Bell II directed the trial court on remittitur to "conduct a resentencing hearing without the imposition of any section 186.22 enhancements" in the event the People did not elect to file any subsequent allegations under then newly amended section 186.22. (Bell II, supra, D078794.) Because the People thereafter elected not to file such section 186.22 allegations, our Bell II disposition required the trial court to conduct a resentencing hearing without any section 186.22 enhancements. However, our Bell II disposition did not, either expressly or implicitly, limit the scope of the trial court's discretion in resentencing K.B. Accordingly, under the full resentencing rule discussed above, the trial court was required to conduct a full resentencing as to all counts after striking the section 186.22 enhancements and, in so doing, exercise its sentencing discretion in light of any changed circumstances. (Buycks, supra, 5 Cal.5th at p. 893.) Specifically, on remand for resentencing after Bell II, the trial court was required to consider the entire sentencing scheme and, in so doing, empowered to reconsider all prior sentencing choices after striking the section 186.22 enhancements. (Hill, supra, 185 Cal.App.3d at p. 834.)
Because the trial court misunderstood the scope of its resentencing discretion on remand after Bell II, we conclude that if, after remand of this case to the juvenile court, the juvenile court transfers K.B.'s case to the criminal court after a hearing under amended section 707, the criminal court shall then conduct a full resentencing hearing and, in so doing, exercise its sentencing discretion in light of any changed circumstances, including any changes in relevant laws since his original sentencing that apply retroactively to his nonfinal judgment. People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 (Gutierrez), stated that when a trial court is unaware of the scope of its discretion on remand for resentencing, "the appropriate remedy is to remand for resentencing unless the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion.' [Citation.]" Here, based on our review of the record, there is no clear indication that the trial court would have imposed the same sentence on resentencing K.B. after remand in Bell II if it had been aware of the full scope of its sentencing discretion. Accordingly, we conditionally reverse the trial court's sentence imposed on August 22, 2022 and remand to the juvenile court for a transfer hearing under amended section 707 and, in the event the juvenile court transfers K.B.'s case to the criminal court, the criminal court shall conduct a full resentencing hearing in light of then current circumstances, including any changes in relevant law that apply retroactively to his nonfinal judgment (e.g., amended §§ 1170, subd. (b) and 1385, as discussed below).
III
Amended Section 1170, Subdivision (b) Applies Retroactively
K.B. contends, and the People concede, that amendments to section 1170, subdivision (b), effective January 1, 2022, apply retroactively to his nonfinal judgment and therefore we conclude, in the event the juvenile court on remand transfers his case to the criminal court after a hearing under amended section 707, the criminal court must consider amended section 1170, subdivision (b) in conducting its full resentencing hearing.
A
Effective January 1, 2022, section 1170, subdivision (b) was amended to make the lower term presumptively appropriate in specified circumstances. (§ 1170, subd. (b)(6); see, e.g., People v. Gerson (2022) 80 Cal.App.5th 1067, 1095 (Gerson); People v. Banner (2022) 77 Cal.App.5th 226, 240 (Banner).) Amended section 1170, subdivision (b) provides in part:
"(6) Notwithstanding paragraph (1), and unless the court finds that the aggravating circumstances outweigh the mitigating circumstances that imposition of the lower term would be contrary to the interests of justice, the court shall order imposition of the lower term if any of the following was a contributing factor in the commission of the offense:
"(A) The person has experienced psychological, physical, or childhood trauma, including but not limited to, abuse, neglect, exploitation, or sexual violence.
"(B) The person is a youth, or was a youth as defined under subdivision (b) of Section 1016.7 [i.e., person under 26 years of age] at the time of the commission of the offense. [¶] . . ."
As amended section 1170, subdivision (b)(6) provides, even where its presumption for imposition of the lower term applies, a trial court may nevertheless impose a higher sentence if it finds "the aggravating circumstances outweigh the mitigating circumstances [so] that imposition of the lower term would be contrary to the interests of justice." (§ 1170, subd. (b)(6).) Furthermore, even where that presumption does not apply, the trial court retains discretion to impose the lower term. (§ 1170, subd. (b)(7) ["Paragraph (6) does not preclude the court from imposing the lower term even if there is no evidence of those circumstances listed in paragraph (6) present."]; see, Gerson, supra, 80 Cal.App.5th at p. 1095.)
B
In Gerson, we concluded that amended section 1170, subdivision (b) applies retroactively to nonfinal cases on direct appeal. (Gerson, supra, 80 Cal.App.5th at p. 1095, citing Banner, supra, 77 Cal.App.5th at p. 240; see also, People v. Flores (2022) 73 Cal.App.5th 1032, 1039 [amended § 1170, subd. (b) applies retroactively to nonfinal judgments on appeal].) We agree. Absent evidence to the contrary, we presume the Legislature intended amendments to statutes that possibly reduce punishment for a crime to apply to all judgments that are not final on the effective dates of those amendments. (See, e.g., McKenzie, supra, 9 Cal.5th at p. 45; Lara, supra, 4 Cal.5th at pp. 307-308; In re Estrada, supra, 63 Cal.2d at pp. 744-746.) Because K.B. was under 26 years of age at the time of the instant offenses and other circumstances specified in amended section 1170, subdivision (b)(6) may apply, we conclude, as K.B. argues and the People concede, that the trial court erred by not applying amended section 1170, subdivision (b) at his resentencing hearing on August 22, 2022 (which hearing was held almost eight months after the effective date of the amendments to section 1170, subd. (b)). Therefore, in the event the juvenile court on remand transfers K.B.'s case to the criminal court after a hearing under amended section 707, the criminal court shall, in conducting the full resentencing hearing discussed in Section II above, consider any evidence submitted by the parties regarding the circumstances specified in amended section 1170, subdivision (b) and apply that amended statute in exercising its sentencing discretion. By so directing, we do not express any opinion on how the trial court should exercise its discretion at the full resentencing hearing.
As discussed in Section II above, the trial court erred by not conducting a full resentencing hearing at the August 22, 2022 hearing and limiting its action to merely striking the section 186.22 enhancements. In so doing, the court erred by denying K.B.'s request that it apply amended section 1170, subdivision (b) at his resentencing hearing, stating that it "[was] not prepared to go outside the record of the remittitur and modify the judgment any further."
IV
Amended Section 1385 Applies Retroactively
K.B. contends, and the People concede, that amendments to section 1385, effective January 1, 2022, apply retroactively to his nonfinal judgment and therefore we conclude, in the event the juvenile court on remand transfers his case to the criminal court after a hearing under amended section 707, the criminal court must consider amended section 1385 in conducting its full resentencing hearing.
A
Effective January 1, 2022, section 1385 was amended to add new subdivision (c), which now provides in part:
Additional minor amendments were made to section 1385, effective June 30, 2022. (Stats. 2022, ch. 58, § 15.) Our quotation and discussion of amended section 1385 includes those amendments.
"(1) Notwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute.
"(2) In exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in subparagraphs (A) to (I) are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety. 'Endanger public safety' means there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others. [¶] . . . [¶] . . .
"(B) Multiple enhancements are alleged in a single case. In this instance, all enhancements beyond a single enhancement shall be dismissed.
"(C) The application of an enhancement could result in a sentence of over 20 years. In this instance, the enhancement shall be dismissed. [¶] . . .
"(E) The current offense is connected to prior victimization or childhood trauma. [¶] . . .
"(G) The defendant was a juvenile when they committed the current offense or any prior offenses, including criminal convictions and juvenile adjudications, that trigger the enhancement or enhancements applied in the current case. [¶] . . ."
In his appellant's opening brief, K.B. cites four mitigating circumstances listed in amended section 1385 (i.e., § 1385, subd. (c)(2)(B), (C), (E) & (G)), as being arguably applicable to his resentencing. On any resentencing in criminal court, the court shall permit K.B. to present evidence and argument regarding the existence of any or all of the mitigating circumstances listed in amended section 1385, subdivision (c).
New section 1385, subdivision (c)(4) provides: "The circumstances listed in paragraph (2) are not exclusive and the court maintains authority to dismiss or strike an enhancement in accordance with subdivision (a)." Also, new section 1385, subdivision (c)(7) provides: "This subdivision shall apply to all sentencings occurring after January 1, 2022."
K.B. argues, and the People concede, that amended section 1385 applies retroactively to K.B.'s nonfinal judgment and the trial court erred by not applying it at his August 22, 2022 resentencing. We agree. First, section 1385, subdivision (c)(7) expressly provides that the provisions of section 1385, subdivision (c) "shall apply to all sentencings occurring after January 1, 2022." Therefore, the trial court was required to apply amended section 1385 at the August 22, 2022 resentencing. Second, as discussed in Section III above, absent evidence to the contrary, we presume the Legislature intended amendments to statutes that possibly reduce punishment for a crime to apply to all judgments that are not final on the effective dates of those amendments. (See, e.g., McKenzie, supra, 9 Cal.5th at p. 45; Lara, supra, 4 Cal.5th at pp. 307-308; In re Estrada, supra, 63 Cal.2d at pp. 744-746.) Here, because amended section 1385 could reduce punishment for a crime, it applies to all judgments that are not final as of January 1, 2022, its effective date. (See, e.g., People v. Sek (2022) 74 Cal.App.5th 657, 674 [amended § 1385 applies to resentencing on remand which will occur after January 1, 2022].) Because amended section 1385 applied retroactively to K.B.'s nonfinal judgment as of his August 22, 2022 resentencing, the trial court erred by denying his request to apply it on his resentencing.
As discussed in Section II above, the trial court erred by not conducting a full resentencing hearing at the August 22, 2022 hearing and limiting its action to merely striking the section 186.22 enhancements. In so doing, the court erred by denying K.B.'s request that it apply amended section 1385 at his resentencing hearing.
Because the trial court did not understand its discretion under amended section 1385 at the August 22, 2022 resentencing hearing, it did not exercise its "informed discretion" on resentencing K.B, which generally would require remand for a new and full resentencing hearing. (Cf. Gerson, supra, 80 Cal.App.5th at p. 1096; Gutierrez, supra, 58 Cal.4th at p. 1391.) However, as discussed above, such a full resentencing hearing shall be held only if the juvenile court on remand transfers K.B.'s case to the criminal court after a hearing under amended section 707. In the event the juvenile court on remand transfers K.B.'s case to the criminal court after a hearing under amended section 707, the criminal court shall, in conducting the full resentencing hearing discussed in Section II above, consider any evidence and arguments submitted by the parties regarding the mitigating circumstances listed in amended section 1385, subdivision (c) and apply that amended statute in exercising its sentencing discretion. By so directing, we do not express any opinion on how the trial court should exercise its discretion at the full resentencing hearing.
V
Failure to Apply Amended Section 1109 Was Harmless Error
K.B. contends that the trial court prejudicially erred by denying his motion for new trial at his August 22, 2022 resentencing, which motion argued amendments to section 1109, effective January 1, 2022, applied retroactively to his nonfinal judgment and required reversal of his nonfinal judgment. The People argue that amended section 1109 did not apply retroactively to K.B.'s nonfinal judgment and, in any event, any error by the court in not applying amended section 1109 was harmless.
A
Effective January 1, 2022, section 1109 was amended to provide in relevant part:
"(a) If requested by the defense, a case in which a gang enhancement is charged under subdivision (b) or (d) of Section 186.22 shall be tried in separate phases as follows: [¶] (1) The question of the defendant's guilt of the underlying offense shall be first determined. [¶] (2) If the defendant is found guilty of the underlying offense and there is an allegation of an enhancement under subdivision (b) or (d) of Section 186.22, there shall be further proceedings to the trier of fact on the question of the truth of the enhancement." (§ 1109, subd. (a).)
As our Supreme Court recently noted, case law is currently split on the question of whether amended section 1109 applies retroactively to judgments that are not yet final. (People v. Tran (2022) 13 Cal.5th 1169, 1208 (Tran), citing People v. Burgos (2022) 77 Cal.App.5th 550, 566-567, review granted July 13, 2022, S274743; People v. Ramos (2022) 77 Cal.App.5th 1116, 1131; People v. Ramirez (2022) 79 Cal.App.5th 48, 65, review granted Aug. 17, 2022, S275341.) Tran declined to resolve that split of authority because it concluded any error in failing to bifurcate the trial in that case under amended section 1109 was harmless as to the defendant's guilt verdicts and penalty judgment. (Tran, at p. 1208.) The issue of whether amended section 1109 applies retroactively to nonfinal judgments is currently pending before that court in Burgos, supra, 77 Cal.App.5th 550 (review granted July 13, 2022, S274743). Nevertheless, we need not decide the question of amended section 1109's retroactive application because, as discussed below, we conclude that any error by the trial court in not bifurcating the trial of the section 186.22 allegations in this case was harmless error.
B
At the July 14, 2022 hearing, K.B. requested that the trial court consider "[u]nder AB 333 [amending section 1109], whether there should be a retrial in the substantive offenses." Likewise, at the August 22, 2022 hearing, K.B. requested that the court consider that amended section 1109 "applies to not only the [section] 186.22 sentencing enhancement but should apply to-in a sense, to retrying the substantive counts as well." However, the court rejected his request, stating that it "[was] not prepared to go outside the record of the remittitur and modify the judgment any further."
C
For purposes of our disposition of the instant contention, we assume that K.B.'s requests at the July 14, 2022 and August 22, 2022 hearings were, in effect, a motion for new trial based on the ground that amended section 1109 applied retroactively to his nonfinal judgment. We further assume, contrary to the People's assertion, that our disposition and remittitur in Bell II did not preclude the trial court from considering such a motion for new trial at K.B.'s resentencing and that his motion based on amended section 1109 could properly be raised at that point in the proceedings. Finally, although, as noted above, the issue is currently pending before the Supreme Court, we assume arguendo that the trial court erred by concluding amended section 1109 did not apply retroactively to K.B.'s nonfinal judgment. Based on those assumptions, we nevertheless conclude that the trial court's assumed error in not applying amended section 1109 retroactively to K.B.'s nonfinal judgment was harmless under the Watson standard of prejudice.
In Tran, the Supreme Court avoided the question of whether amended section 1109 applies retroactively to nonfinal judgments by concluding any error in not applying amended section 1109 was harmless regarding the defendant's guilt verdicts in the circumstances of that case. (Tran, supra, 13 Cal.5th at p. 1208.) Regarding the applicable standard for prejudicial error, the court first rejected the defendant's assertion that the failure to bifurcate the trial of section 186.22 allegations was structural error, which would require reversal per se. (Tran, at p. 1208.) Second, the court rejected the defendant's assertion that the standard for federal constitutional error under Chapman v. California (1987) 386 U.S. 18 (Chapman) applied when reviewing the defendant's guilty verdicts in that case. (Tran, at p. 1209.) In so doing, the court discussed the evidence presented by the prosecution at his trial and concluded that the admission of gang evidence did not make his trial fundamentally unfair so as to violate his due process rights. (Ibid.) Tran then concluded that the Watson standard of prejudice for state law error applied and, applying that standard, concluded that the defendant had failed to carry his burden on appeal to demonstrate prejudicial error as to his guilt verdicts. (Tran, at p. 1210.) In support of its conclusion, Tran stated in part:
"[A]part from describing the general risk of prejudice that may result from the admission of gang evidence, Tran does not explain how the exclusion of gang evidence in this case would have been reasonably likely to change the jury's verdict of guilt as to the underlying murder. The case for guilt here was strong, with multiple witnesses testifying that Tran had told them about his involvement in the killing. In the face of this evidence, defense counsel did not dispute that Tran and Plata had committed the robbery and murder ....Given the overwhelming evidence of guilt and lack of any credible defense theory in response, it is not reasonably likely that a bifurcated trial would have changed the jury's verdict." (Tran, supra, 13 Cal.5th at pp. 1209-1210.)
Accordingly, Tran concluded amended section 1109 did not require reversal of the defendant's guilt verdicts. (Tran, supra, 13 Cal.5th at p. 1211.)
Contrary to K.B.'s assertions, we conclude that neither the structural error nor the Chapman standard for prejudicial error applies in the circumstances of his case. First, because Tran rejected the contention that the failure to bifurcate the trial of section 186.22 allegations under amended section 1109 is structural error, we are bound by that precedent and reach the same conclusion that error in failing to apply amended section 1109 is not reversible per se error. (Tran, supra, 13 Cal.5th at p. 1208; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Second, although the failure to apply amended section 1109 arguably may, in certain circumstances, result in a fundamentally unfair trial that requires the application of the Chapman standard of prejudice, we, as Tran concluded in its circumstances, conclude that the circumstances in this case do not show K.B. was denied a fundamentally unfair trial by the admission of gang evidence in proving his guilt of the charged substantive offenses. (Cf. Tran, at p. 1209.) As we explain below, contrary to K.B.'s argument, because most of the gang evidence admitted at trial was relevant to prove the substantive offenses and that limited gang evidence was not particularly inflammatory, we conclude K.B. was not denied a fundamentally fair trial in violation of his due process rights, which would require application of the Chapman standard of prejudice (i.e., reversal required unless the People show federal constitutional error was harmless beyond a reasonable doubt). (See, e.g., Chapman, supra, 386 U.S. at pp. 24, 26; People v. Partida (2005) 37 Cal.4th 428, 439.)
As in Tran, we therefore apply the Watson standard of prejudice for state law error and, in so doing, conclude that K.B. has not carried his burden on appeal to show it is reasonably probable that he would have obtained a more favorable result at trial had the trial of the section 186.22 gang allegations been bifurcated from the trial of the underlying substantive offenses as amended section 1109 now requires. (Tran, supra, 13 Cal.5th at p. 1209; Watson, supra, 46 Cal.2d at p. 836.) In particular, we conclude that the vast majority of the gang-related evidence admitted at K.B.'s trial was relevant to prove the underlying offenses and thus would have been admissible at the trial of those offenses even if the trial of the section 186.22 gang allegations had been bifurcated. Our Supreme Court has stated:
"[E]vidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of the defendant's gang affiliation-including evidence of the gang's territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like-can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime." (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.)
Here, as the People assert, most of the gang-related evidence admitted at K.B.'s trial would have been admissible as relevant to prove the underlying substantive offenses regardless of bifurcation of the trial of the section 186.22 gang allegations. For example, evidence showing K.B.'s affiliation with the Eastside Skyline Piru gang, the means of advancement within that gang, the value to the gang of instilling fear, and the status and power that gang members obtain by committing crimes was relevant to prove issues such as identity, motive, intent, and witness credibility. K.B. appears to concede that the issues of identity and intent were disputed at trial, making the probative value of the gang evidence regarding those issues of greater import.
K.B. argues that the gang evidence was not admissible as relevant to prove the issues of intent and witness credibility because the prosecutor did not cite that evidence in his closing arguments regarding the underlying offenses. However, contrary to K.B.'s argument, the prosecutor's omission of that evidence from his closing arguments on the underlying offenses does necessarily show that the evidence was inadmissible as relevant to prove those offenses. Rather, it likely shows the prosecutor relied primarily on other non-gang evidence as providing ample evidence to prove K.B.'s commission of the underlying offenses beyond a reasonable doubt. That ample non-gang evidence, in turn, supports our conclusion that any error in not bifurcating the trial of the section 186.22 allegations under amended section 1109 was harmless under the Watson standard.
Also, contrary to K.B.'s assertion, the gang evidence admitted at his trial was not uniquely designed to inflame an emotional or irrational response from jurors unrelated to K.B.'s guilt or innocence and therefore was not unduly prejudicial. (See, e.g., People v. Jones (2012) 54 Cal.4th 1, 62; People v. Doolin (2009) 45 Cal.4th 390, 439.) Comparing the egregious and violent nature of K.B.'s instant offenses, which were shown on video and described by percipient witnesses, with the gang-related evidence that was admissible as relevant to prove those offenses and the limited, and sanitized, evidence admitted to prove the predicate gang offenses, we conclude that the gang evidence admitted at K.B.'s trial was not so inflammatory that it would have caused the jury to convict him of the instant offenses regardless of his actual guilt. In particular, the limited evidence of the predicate gang offenses was not more inflammatory than the evidence admitted to prove his commission of the instant offenses (e.g., his violent armed robberies and deliberate, premeditated attempted murder). (Cf. People v. Ewoldt (1994) 7 Cal.4th 380, 405 [no undue prejudice where challenged evidence is not more inflammatory than evidence admitted regarding circumstances of charged offense].)
Furthermore, the trial court instructed the jury with CALCRIM No. 1403 that it could not consider gang evidence to find K.B. was a person of bad character or had the disposition to commit crime. Absent any showing by K.B. to the contrary, we presume the jurors followed that limiting instruction in considering the gang evidence and, as a result, any possible inflammatory impact of the gang evidence on the jurors' deliberations on the charged offenses was de minimis, if not wholly eliminated. (People v. Krebs (2019) 8 Cal.5th 265, 335.)
In support of his argument of prejudicial error, K.B. cites various gang-related evidence that he argues would not have been admissible at the trial of the underlying offenses had the trial of the section 186.22 allegations been bifurcated. He then argues that absent admission of the gang evidence, the jury reasonably could have reached a more favorable result for him on one or more of the charged offenses. However, in so arguing, he misconstrues and/or misapplies his burden to show prejudicial error under the Watson standard. As discussed above, it is K.B.'s burden on appeal to show that it is reasonably probable he would have obtained a more favorable result had the error not occurred (i.e., there is a reasonable chance that the jury would have returned verdicts on the charged offenses that were more favorable to him). (See, Watson, supra, 46 Cal.2d at p. 836; College Hospital Inc., supra, 8 Cal.4th at p. 715; Mower, supra, 28 Cal.4th at p. 484.) By merely arguing the jury could have reached a more favorable verdict to him and, in support thereof, citing particular evidence and inferences therefrom favorable to his argument, K.B. has not carried his burden on appeal to show prejudicial error.
K.B. also argues that the gang evidence was inadmissible under amended section 1109 even if that evidence was relevant to prove the charged offenses, such as to show identity, motive, intent, and witness credibility, because amended section 1109 prohibits the admission of gang evidence unless that evidence is an "element" of the charged offense. (§ 1109, subd. (b) ["If a defendant is charged with a violation of subdivision (a) of Section 186.22, this count shall be tried separately from all other counts that do not otherwise require gang evidence as an element of the crime."].) In so arguing, K.B. misinterprets the language of amended section 1109, subdivision (b). That subdivision simply provides that a trial of a section 186.22 allegation must be tried separately from the trial of other counts that do not require gang evidence to prove their elements, such as the underlying substantive offenses in this case. Accordingly, we reject K.B.'s argument that the gang evidence admitted in this case would not be admissible under amended section 1109 at a trial on the underlying substantive offenses to prove issues, such as identity, motive, intent, and witness credibility, which are relevant to prove the elements of the charged offenses. Therefore, we conclude K.B. has not carried his burden to show the trial court's assumed error in not bifurcating the trial of the section 186.22 allegations from the trial of the underlying offenses under amended section 1109 was prejudicial under the Watson standard.
Finally, in determining whether the assumed error was prejudicial under the Watson standard, we may consider that the evidence supporting the judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, and conclude that there is no reasonable probability that the assumed error affected the result at trial. (People v. Rogers (2006) 39 Cal.4th 826, 870; People v. Breverman (1998) 19 Cal.4th 142, 177.) In Bell I, we discussed the evidence on the underlying offenses and, in particular, concluded there was substantial evidence to support K.B.'s conviction of first degree provocative act murder. (Bell I, supra, D072748, at pp. 52-57.) We need not repeat those discussions here, but simply conclude that our review of the evidence supporting K.B.'s convictions on the underlying offenses was so relatively strong, and the evidence supporting a different outcome was so comparatively weak, that there is no reasonable probability that the assumed error in not bifurcating the trial of the section 186.22 allegations affected the result at trial. (Rogers, at p. 870; Breverman, at p. 177.) In so concluding, we agree with the People's argument that their citation of certain evidence shows the relative strength of their case in proving K.B. committed the underlying offenses (e.g., evidence that K.B. sent a friend text messages that appeared to refer to a marijuana burglary, that he had recently purchased the vehicle used in one of the offenses, that he needed thousands of dollars, his statement to the owner of the smoke shop that he would kill him if he did not give him the money, his pushing the owner to the ground and pointing a gun at his head, his firing one shot that missed the owner, his pointing a gun at the marijuana dispensary security guard, his discussion with his accomplice whether they should "hot this dude," his telling both victims he was going to kill them both, his firing his gun at the security guard after the guard shot his accomplice, and, importantly, the security camera video recording of the marijuana dispensary incident). Accordingly, we conclude that K.B. has not carried his burden on appeal to show there is a reasonable probability that he would have obtained more favorable verdicts on the underlying offenses (i.e., that there is a reasonable chance that the jury would have returned verdicts on the charged offenses that were more favorable to him) had the trial of the section 186.22 gang allegations been bifurcated under amended section 1109. (Watson, supra, 46 Cal.2d at p. 836; College Hospital Inc., supra, 8 Cal.4th at p. 715; Mower, supra, 28 Cal.4th at p. 484.) Therefore, the assumed error under amended section 1109 was harmless.
VI
Consideration of Amended Section 1109 as Mitigating Circumstance at Resentencing
K.B. contends, and the People concede, that he should be allowed to argue at any full resentencing hearing on remand that the failure to bifurcate the trial of the section 186.22 allegations pursuant to amended section 1109, as discussed in Section V above, is a mitigating circumstance in the trial court's exercise of its discretion under section 1385 and other sentencing discretion. In particular, he argues that the trial court erred at his August 22, 2022 resentencing by not considering amended section 1109 in making its discretionary sentencing choices.
Although we need not, and do not, decide the question of whether the failure to bifurcate the trial of section 186.22 allegations under amended section 1109 may serve as a mitigating circumstance at sentencing, we see no reason to preclude K.B. from making that argument to the criminal court at any full resentencing after remand of this case and allow that court to decide that question in the first instance in exercising its sentencing discretion. Accordingly, in the event the juvenile court on remand transfers K.B.'s case to the criminal court after a hearing under amended section 707, the criminal court shall, in conducting the full resentencing hearing discussed in Section II above, allow K.B. to argue that the failure to bifurcate the trial of the section 186.22 allegations pursuant to amended section 1109 is a mitigating circumstance that the court should consider in the exercise of its discretion under section 1385 and other sentencing discretion.
VII
Calculation of Custody Credits on Resentencing
K.B. contends, and the People concede, that the trial court erred at his August 22, 2022 resentencing by not calculating the then-current number of custody credits to which he was entitled and awarding him those custody credits. We agree the court so erred. (See, e.g., People v. Acosta (1996) 48 Cal.App.4th 411, 427.)
Accordingly, in the event the juvenile court on remand transfers K.B.'s case to the criminal court after a hearing under amended section 707, the criminal court shall, in conducting the full resentencing hearing discussed in Section II above, calculate the then-current number of custody credits to which he is entitled and award him those custody credits. Furthermore, the court's amended abstract of judgment shall reflect the award of that current number of custody credits.
DISPOSITION
The judgment is conditionally reversed and the matter is remanded to the juvenile court with directions that it conduct a hearing in compliance with amended section 707 on any request filed by the People to transfer his case to criminal court no later than 90 days after the remittitur is issued. If the juvenile court after the transfer hearing denies that request, then K.B.'s criminal convictions and enhancements will be deemed juvenile adjudications as of that date and the court shall then conduct a dispositional hearing within its usual timeframe. If the juvenile court after the transfer hearing grants that request, then the case shall be transferred to the criminal court with directions that it conduct a full resentencing hearing consistent with this opinion.
WE CONCUR: McCONNELL, P. J. KELETY, J.