Opinion
B312311
08-30-2022
THE PEOPLE, Plaintiff and Respondent, v. JOHN MICHAEL PIEPOLI II, Defendant and Appellant.
Mary K. McComb, State Public Defender, Jennifer Hansen and Loretta Johnson, Deputy State Public Defenders, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Michael Johnsen, Scott A. Taryle and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. GA088733, Ronald S. Coen, Judge. Affirmed in part, vacated in part, and remanded with directions.
Mary K. McComb, State Public Defender, Jennifer Hansen and Loretta Johnson, Deputy State Public Defenders, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Michael Johnsen, Scott A. Taryle and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST, ACTING P.J.
In 2014, a jury convicted defendant and appellant John Michael Piepoli II (appellant) of special circumstance felony murder, attempted robbery, and conspiracy to commit robbery. The jury also found true gang and gang-related firearm enhancement allegations under Penal Code sections 186.22, subdivision (b)(1), and 12022.53, subdivisions (b), (c), (d), and (e)(1). The trial court sentenced appellant to life without the possibility of parole (LWOP), plus an additional 25 years to life.
All further statutory references are to the Penal Code unless otherwise indicated.
In appellant's first appeal, we found that there was insufficient evidence that appellant was a major participant in the robbery or acted with reckless indifference to human life. (People v. Piepoli (Nov. 29, 2016, B260138) [nonpub. opn.], at p. 20 (Piepoli I).) We vacated the special circumstance true finding as to the murder and the associated LWOP sentence. (Piepoli I, supra, at p. 28.) On remand, the trial court resentenced appellant to an aggregate term of 50 years to life, which we affirmed. (People v. Piepoli (June 11, 2019, B289309) [nonpub. opn.], at pp. 2-3 (Piepoli II).)
In 2020, appellant filed a petition for resentencing pursuant to former section 1170.95 (now § 1172.6). The trial court granted the petition, vacated appellant's murder conviction, and set the matter for resentencing on the remaining counts. In 2021, the court resentenced appellant to serve 23 years in state prison, which included a 20-year gang-related firearm enhancement (§ 12022.53, subds. (c) &(e)(1)). This appeal ensued.
Effective June 30, 2022, section 1170.95 was renumbered section 1172.6, with no change in text (Stats. 2022, ch. 58, § 10).
Appellant contends that the trial court abused its discretion when it imposed the 20-year gang-related firearm enhancement. He also argues that several laws enacted after he was resentenced, including Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Assembly Bill 333), apply to him retroactively. As relevant here, Assembly Bill 333 amended section 186.22, requiring the People to prove additional elements that were not previously required for a gang enhancement under section 186.22, subdivision (b)(1), and a gang-related firearm enhancement under section 12022.53, subdivision (e)(1).
We conclude that "the vacatur of [appellant's] sentence made the judgment in his case nonfinal[]" (People v. Padilla (2022) 13 Cal.5th 152, 161 (Padilla)); therefore, Assembly Bill 333's changes to section 186.22 apply retroactively to his case. Because the evidence adduced at appellant's 2014 trial is insufficient to support the gang and gang-related firearm enhancements under the law as amended by Assembly Bill 333, we vacate the jury's true findings on those enhancements, vacate appellant's sentence, and remand for further proceedings.
On remand, the People may elect to retry the enhancement allegations under the law as amended by Assembly Bill 333. If the People do not retry the enhancements, or at the conclusion of a retrial, the trial court shall conduct a full resentencing at which it shall exercise its discretion in light of the changes brought by Assembly Bill No. 518 (2021-2022 Reg. Sess.) (Assembly Bill 518), Assembly Bill No. 124 (2021-2022 Reg. Sess.) (Assembly Bill 124), and Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567).
We otherwise affirm the judgment.
BACKGROUND
I. Facts
A. Robbery and shooting
"On the afternoon of January 15, 2013, 21-year-old Zane Goldstein (Zane) took his older brother Zachary Goldstein (Zachary) with him to sell marijuana to a new buyer. When they conducted drug deals, Zane would drive his Jeep while Zachary rode in the backseat. The buyer would join Zachary in the back. After the buyer handed the money to Zane, Zachary would provide the marijuana.
"At around 2:00 p.m., Zane drove to an apartment complex near the corner of Holliston Avenue and Maple Street in Pasadena, California. Kevin Cabrera (Cabrera) came out to the curb and directed Zane to park in an empty space in the carport. Zachary thought this seemed strange, but Cabrera said the neighbors were nosy. Peter Parra (Parra) sat crouched in the bushes. Zane pulled in and kept the Jeep's engine running. Cabrera got into the backseat with Zachary. At that point, Raymond Conchas (Conchas) came out from behind the front tire of the adjacent parked car. Conchas was holding a short, sawed- off shotgun aimed at Zane's window. Conchas said, 'Don't move or I'll blast you.' Zane immediately put the car in reverse and backed out of the driveway.
"Zane drove a couple blocks, then stopped the car. He and Zachary screamed at Cabrera to get out of the car. Cabrera said, 'Where is the weed at?' and 'If you don't give me the weed, do you want your homie to get blasted[?]' Zachary tried to push Cabrera out of the car but Cabrera fought back, holding onto the driver's seat. Eventually, Cabrera was pushed out. A tan sedan then pulled up next to Zane's driver's side window. A shot was fired at Zane by someone in the other car. Zane died at the hospital from a gunshot wound to the head." (Piepoli I, supra, B260138, at p. 3.)
B. Police investigation
"Pasadena Police Officer David Duran searched Zane's Jeep after the shooting. A canister containing approximately one ounce of marijuana was found inside a bag. Two cell phones were also recovered. One belonged to Zane and the other belonged to Conchas. Officer Duran knew Conchas from previous contacts.
"An examination of the text messages and phone log on Conchas's phone revealed how the drug deal was set up. Two days before the murder, on January 13, 2013, at 1:42 p.m., Conchas's phone received a text message from 'White John' saying, '710-0431, . . . a white boy that sells weed. He lives near Connels [Restaurant].' Conchas texted back, 'What's his name and tell him I know who?' White John responded, 'Zane. You know Rafa.' Conchas responded, 'Rafa from where,' and White John responded, 'He lives on Buckeye.'
"The phone number for the contact 'White John' was appellant's cell phone." (Piepoli I, supra, B260138, at p. 4, fn. 5.)
"On the day of the murder, January 15, 2013, there was a two-minute phone call from Conchas to White John at 11:48 a.m. Conchas called White John again at 12:48 p.m. for 30 seconds. Conchas then texted Zane saying, 'What's up my boy? This is Rafa. Homie Chris, how much for the half?' Zane responded, '150.' Between 12:20 p.m. and 1:46 p.m. Conchas and Zane negotiated further on a price and Zane agreed to sell one ounce of marijuana for $290. They also agreed on the location for the sale.
"At 2:06 p.m., Zane texted Conchas that he had arrived at the location and was waiting outside in his Jeep. Meanwhile, at 2:02, 2:10 and 2:39 p.m. there were missed calls from White John's phone to Conchas. At 2:11 p.m., White John texted Conchas saying, 'What's good?'" (Piepoli I, supra, B260138, at pp. 3-4.)
C. Appellant's interviews
"At 5:30 a.m., the day after the murder, Pasadena Homicide Detectives William Broghamer, Keith Gomez and Grant Curry went to interview 19-year-old appellant at his father's house. All three officers wore suits and were armed. Detective Broghamer wore a recording device and the recorded interview was played for the jury. The interview lasted about an hour. Appellant told the detectives that his friend Michael Pena was using his phone to text Conchas who was going to try to 'take weed' from Zane. The plan was for Conchas to call Zane and reference 'Rafa,' an associate known to Zane. When the buyer got into the car he would bully Zane, maybe with a knife, to take the marijuana. Appellant said the plan was to 'take advantage of the guy,' because he would not call the police to report that his marijuana had been stolen.
"Following the interview in the house, appellant agreed to show the detectives where Michael Pena lived. After driving around to two locations without finding the house, appellant admitted that his friend's name was Ward Lacey (Lacey), not Michael Pena.
"It appears that later the same day, appellant agreed to wear a microphone and speak with Lacey at a park. Afterward, Lacey was arrested. Lacey, Conchas, Cabrera and Parra were all charged as codefendants with appellant. Conchas, Cabrera and Parra were tried separately from appellant." (Piepoli I, supra, B260138, at p. 5, fn. 6.)
"Appellant then agreed to go with the detectives to the police station, where Detective Broghamer interviewed him again. The recorded interview, which began at 8:38 a.m., was played for the jury. Appellant began by stating, 'I'm done with this lying bullshit . . . I'm ready to get to it.' Appellant stated that he knew Conchas because appellant went to school with Conchas's sister Ruby. Conchas is part of the Northside Pasadena gang and controls the drug sales in northern Pasadena. Anyone who sells marijuana in his territory gets 'taxed.' Ruby told appellant about a month earlier that Zane 'had an encounter' with Conchas because Zane refused to pay taxes. According to Ruby, Conchas told Zane, '[N]ext time I see you it's not going to be pretty.'
"Lacey used appellant's phone to text Conchas about stealing Zane's marijuana. Lacey had bought drugs from Zane before. Lacey had a mutual friend with Conchas, and gave Conchas Zane's number in exchange for a cut of the stolen marijuana. Appellant was also hoping to get some of the marijuana. After Conchas obtained Zane's information, Conchas 'took control.' Lacey told appellant that Conchas said, 'I'm going to have one of my friends get in the car and basically kind of punk him for his weed and say hey, man, give me - give me the fucking dope.' Conchas said if Zane did not provide the weed, then Conchas was going to pull a knife out and say, 'Hey, give it to me.' Nothing was ever said about bringing a gun or shooting Zane.
"Twenty minutes into the interview, Detective Broghamer stopped the recording and left the room. The recording was started again at an unknown time during the conversation, and lasted another 12 minutes. Appellant became emotional and said that he and Lacey provided Zane's contact information to Conchas because Conchas threatened to shoot appellant and his family if he did not. Appellant said that he had been in Conchas's car when Conchas made the threat, and Conchas set a gun down between the two front seats as he spoke. Appellant said he was in fear of Conchas because 'I know he has guns and I know he has people.'" (Piepoli I, supra, B260138, at pp. 4-6.)
D. Gang evidence
"Pasadena Police Officer David Garcia testified as an expert on the Hispanic gang known as the Northside Pasadena gang. The gang has allegiance to the Mexican Mafia and claims the territory where the shooting occurred. Neither appellant nor Lacey are members of the gang. However, Conchas, Cabrera and Parra are all gang members with multiple gang tattoos. Conchas's gang moniker is 'Little Duke' and his father goes by 'Big Duke.'
"A tax is a fee that gang members charge for selling narcotics in the gang's territory. Hypothetically, there could be two consequences for someone acting as a 'traveling marijuana salesman' in gang territory without permission. The first consequence could be a 'soft candy green light,' which is a form of discipline where one is physically assaulted by the gang for failing to pay taxes or breaking a gang rule. The second option is a 'hard candy green light,' which is basically a 'death sentence.' A gang member is ordered to kill someone who did something to the gang, crossed the gang or snitched. In Officer Garcia's opinion, a hypothetical mirroring the facts of this case sounded like a 'classic . . . dope rip,' where gang members lure a person to an area and then try to steal the person's narcotics because the person does not have permission to sell in that area. Gang members cannot show weakness when the victim tries to get away. It is not uncommon for gang members to solicit nongang members for information." (Piepoli I, supra, B260138, at p. 6.)
Officer Garcia testified regarding two predicate offenses. In the first, Adrian Steven Valdovinos (Valdovinos) was convicted of being a felon in possession of a firearm. In the second, Gabriel Ramirez (Ramirez) was convicted of assault with a deadly weapon. Officer Garcia opined that Valdovinos and Ramirez were members of the Northside Pasadena gang when they committed those crimes.
II. Procedural History
A. Trial and original sentencing
In 2014, a jury convicted appellant of first degree murder (§ 187, subd. (a); count 1), attempted second degree robbery (§§ 664, 211; count 2), and conspiracy to commit robbery (§ 182, subd. (a)(1); count 3). As to count 1, the jury found true the special circumstance allegation that the murder was committed while appellant was engaged in the commission of the robbery. (§ 190.2, subd. (a)(17).) As to counts 1, 2, and 3, the jury found true allegations that a principal used a firearm (§ 12022.53, subds. (b) &(e)(1)), that a principal intentionally discharged a firearm (§ 12022.53, subds. (b) &(e)(1)), that a principal intentionally discharged a firearm which proximately caused death (§ 12022.53, subds. (d) &(e)(1)), and that the crimes were committed for gang purposes (§ 186.22, subd. (b)(1)).
Prior to sentencing, the trial court dismissed the gang- related firearm enhancements attached to count 3 on the ground that conspiracy is not an enumerated crime to which they apply. (See § 12022.53, subd. (a)(1)-(18) [listing felonies to which the firearm enhancement statute applies].)
On count 1, the trial court sentenced appellant to LWOP, plus an additional 25 years to life for the gang-related firearm enhancement (§ 12022.53, subd. (d) &(e)(1)). The court imposed stayed sentences on counts 2 and 3, pursuant to section 654.
B. Piepoli I
In appellant's first appeal, we concluded that under the factors set forth in People v. Banks (2015) 61 Cal.4th 788, the evidence was insufficient to support the true finding on the special circumstance that the murder was committed while appellant was engaged in the commission of a robbery (§ 190.2, subd. (a)(17)). (Piepoli I, supra, B260138, at pp. 2, 15-20.) We found insufficient evidence that appellant was a major participant in the robbery or acted with reckless indifference to human life. (Id. at p. 20.) As we explained, "appellant did not plan the crime, did not supply any weapons, was unaware that lethal force would be used, was not present at the scene, and was unaware that the victim had been shot." (Ibid.)
Accordingly, we vacated appellant's LWOP sentence and remanded for resentencing on count 1. (Piepoli I, supra, B260138, at pp. 20, 28.) We affirmed the judgment in all other respects. (Id. at p. 28.)
C. First resentencing
On remand in 2018, the trial court resentenced appellant to an aggregate term of 50 years to life on count 1, comprised of 25 years to life for the murder plus a consecutive 25 years to life for the gang-related firearm enhancement (§ 12022.53, subds. (d) &(e)(1)). Sentences on counts 2 and 3 were imposed but stayed.
D. Piepoli II
Appellant appealed from his resentencing, and we affirmed. (Piepoli II, supra, B289309, at pp. 2-3.) The remittitur issued on August 16, 2019, and the judgment became final.
E. Former section 1170.95 petition
On July 16, 2020, appellant filed a petition for resentencing pursuant to former section 1170.95. Based on our finding in Piepoli I that appellant was not a major participant in the underlying felony who acted with reckless indifference to human life, on July 20, 2020, the trial court vacated appellant's murder conviction pursuant to former section 1170.95, subdivision (d)(2).
In relevant part, former section 1170.95, subdivision (d)(2) (now § 1172.6, subd. (d)(2)), provides: "If there was a prior finding by a court or jury that the petitioner did not act with reckless indifference to human life or was not a major participant in the felony, the court shall vacate the petitioner's conviction and resentence the petitioner."
F. Second resentencing
On March 8, 2021, the assigned deputy district attorney filed a declaration stating that the Los Angeles County District Attorney's Office and appellant's defense counsel agreed that appellant should be resentenced to a determinate term of 13 years, comprised of the high term of three years on count 2 plus an additional and consecutive term of 10 years pursuant to section 12022.53, subdivision (b).
At the resentencing hearing held on March 9, 2021, the trial court found good cause to strike the 25-year-to-life gang-related firearm enhancement (§ 12022.53, subds. (d) &(e)(1)), on the grounds that appellant "did well in prison" and "ha[d] a lesser form of culpability as compared to the people that were present at the crime scene ...." Not finding good cause to strike the 20- year gang-related firearm enhancement (§ 12022.53, subds. (c) &(e)(1)), the trial court rejected the disposition agreed upon by the Los Angeles County District Attorney's Office and defense counsel. The court explained that it was not "a rubber stamp for the D.A." and that striking the 20-year enhancement "would not be in the interest of justice." The court noted that appellant was "part of the planning activity for a robbery that went tragically wrong, he knew the dangerous prospects of the people that were present at the crime scene, as they stated that they were dangerous people and that the gang was dangerous." The court also considered appellant's juvenile criminal history.
The trial court resentenced appellant to serve 23 years in state prison, comprised of the high term of three years for the attempted robbery in count 2 plus a consecutive 20-year gang-related firearm enhancement (§ 12022.53, subds. (c) &(e)(1)). On count 2, the court imposed but stayed an additional 10-year gang-related firearm enhancement (§ 12022.53, subds. (b) &(e)(1)), and an additional five-year gang enhancement (§ 186.22, subd. (b)(1)). As to count 3, the trial court imposed but stayed under section 654 the high term of five years for conspiracy to commit robbery and a five-year gang enhancement (§ 186.22, subd. (b)(1)).
G. Current appeal
Appellant timely appealed from his second resentencing.
DISCUSSION
I. Assembly Bill 333's Amendments to Section 186.22 Apply Retroactively to Appellant's Case
A. Standard of review
We review de novo issues of retroactivity and the application of law to undisputed facts. (Martinez v. Brownco Construction Co. (2013) 56 Cal.4th 1014, 1018 [application of law to undisputed facts]; In re David C. (2020) 53 Cal.App.5th 514, 519 [retroactivity].)
B. Relevant law
1. Section 186.22, subdivision (b)(1)
Section 186.22, subdivision (b)(1), is a gang enhancement, mandating additional punishment for "a person who is convicted of a felony committed 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, . . ."
2. Section 12022.53, subdivisions (b)-(e)(1)
"[S]ection 12022.53 establishes a tiered system of sentencing enhancements for specified felonies involving firearms." (People v. Tirado (2022) 12 Cal.5th 688, 692 (Tirado).) It "provides for escalating punishments depending on how the firearm is used." (People v. Lopez (2021) 73 Cal.App.5th 327, 347 (Lopez).)
"Section 12022.53(b) mandates the imposition of a 10-year enhancement for personal use of a firearm in the commission of one of those felonies; section 12022.53(c) mandates the imposition of a 20-year enhancement for personal and intentional discharge of a firearm; and section 12022.53(d) provides for a 25-year[]-to life enhancement for personal and intentional discharge of a firearm causing great bodily injury or death to a person other than an accomplice." (Tirado, supra, 12 Cal.5th at p. 695.)
"While these subdivisions provide punishment for offenders who personally use a firearm during the commission of their crimes, the penalties may also be imposed on any person who is a principal in the offense under certain gang-related circumstances[.]" (Lopez, supra, 73 Cal.App.5th at p. 347.) For the firearm enhancements to apply vicariously, the prosecution must plead and prove that the defendant violated section 186.22, subdivision (b), and that "[a]ny principal in the offense committed any act specified in [section 12022.53,] subdivision (b), (c), or (d)." (§ 12022.53, subd. (e)(1)(A)-(B), italics added; see also People v. Anderson (2020) 9 Cal.5th 946, 953; Lopez, supra, at p. 347.)
3. Assembly Bill 333
i. Amendments to section 186.22
Effective January 1, 2022, Assembly Bill 333 "amended section 186.22 by modifying the definitions of 'pattern of criminal activity' and 'criminal street gang,' and it clarified what is required to show an offense 'benefit[s], promote[s], further[s], or assist[s]' a criminal street gang." (People v. Perez (2022) 78 Cal.App.5th 192, 206 (Perez), review granted, Aug. 17, 2022, S275090.) "'[P]ursuant to the new legislation, imposition of a gang enhancement requires proof of the following additional requirements with respect to predicate offenses: (1) the offenses must have "commonly benefited a criminal street gang" where the "common benefit . . . is more than reputational"; (2) the last predicate offense must have occurred within three years of the date of the currently charged offense; (3) the predicate offenses must be committed on separate occasions or by two or more gang members, as opposed to persons; and (4) the charged offense cannot be used as a predicate offense.' [Citation.]" (Ibid.)
Assembly Bill 333 also added section 1109, which requires a gang enhancement charged under section 186.22, subdivision (b) or (d), to be tried separately from the underlying offense, if requested by the defense. (§ 1109, subd. (a).)
"Assembly Bill 333's changes to section 186.22 affect not only the gang enhancement allegations under that statute but other statutes that expressly incorporate provisions of section 186.22[,]" such as the vicarious liability firearm enhancement under section 12022.53, subdivision (e)(1). (Lopez, supra, 73 Cal.App.5th at p. 346; see also People v. Lisea (2013) 213 Cal.App.4th 408, 416 ["the section 12022.53(e)(1) enhancement . . . incorporat[es] the criminal street gang finding of section 186.22, subdivision (b) as a required element"].)
ii. Retroactivity
As a general rule, "unless expressly . . . declared[,]" new criminal laws apply only prospectively (§ 3; see also People v. Brown (2012) 54 Cal.4th 314, 319), and "do not govern prosecutions initiated before the law went into effect. [Citation.]" (Padilla, supra, 13 Cal.5th at p. 160.) The California Supreme Court has "recognized an exception to this rule for new laws that mitigate punishment; in [In re Estrada (1965) 63 Cal.2d 740 (Estrada)], [it] held that such laws are presumed to apply to cases charged before the law's enactment but not yet final. [Citation.]" (Padilla, supra, at p. 160.) The Estrada "retroactivity rule extends to all 'nonfinal judgments[]'" (Padilla, supra, at p. 158),including judgments that were once final but are subsequently rendered nonfinal when a sentence is vacated and a new sentenced is imposed (see id. at pp. 161-163).
"[A] judgment becomes final '"where the judgment of conviction was rendered, the availability of appeal exhausted, and the time for petition for certiorari ha[s] elapsed."' [Citations.]" (Padilla, supra, 13 Cal.5th at p. 162.)
Statutes-including enhancement statutes-that redefine to a defendant's benefit conduct subject to criminal sanctions are considered ameliorative for the purpose of the Estrada rule and apply retroactively to nonfinal convictions. (Tapia v. Superior Court (1991) 53 Cal.3d 282, 301 [reasoning of Estrada "applied . . . to statutes which redefine, to the benefit of defendants, conduct subject to criminal sanctions"]; Lopez, supra, 73 Cal.App.5th at p. 344 [Estrada rule "applies when an enhancement has been amended to redefine to an appellant's benefit the conduct subject to the enhancement"].)
Because Assembly Bill 333's amendments to section 186.22 "increased the threshold for conviction under the gang enhancement statute" (People v. Ramirez (2022) 79 Cal.App.5th 48, 64 (Ramirez), review granted, Aug. 17, 2022, S275341), a defendant whose conviction is not yet final is entitled to the retroactive application of those amendments (ibid.; People v. Delgado (2022) 74 Cal.App.5th 1067, 1087; People v. Ramos (2022) 77 Cal.App.5th 1116, 1126-1127; People v. Sek (2022) 74 Cal.App.5th 657, 666-667 (Sek); Lopez, supra, 73 Cal.App.5th at pp. 343-344).
Because appellant does not contend that section 1109 applies to him, we need not address whether Assembly Bill 333's addition of that provision is retroactive. We note that appellate courts are split on the issue. (E.g., compare People v. Montano (2022) 80 Cal.App.5th 82, 105-108 [retroactive]; People v. Burgos (2022) 77 Cal.App.5th 550, 566-568, review granted, July 13, 2022, S274743 [retroactive] with Ramirez, supra, 79 Cal.App.5th at pp. 64-65 [not retroactive]; Perez, supra, 78 Cal.App.5th at p. 207 [not retroactive].)
C. Analysis
The parties do not dispute that Assembly Bill 333's amendments to section 186.22 are ameliorative for the purpose of the Estrada rule. Rather, in arguing that appellant is not entitled to the retroactive application of those amendments, the People contend in its respondent's brief that the Estrada rule should not apply to judgments, like appellant's, that become final prior to the new legislation but are later "'reopened.'" The California Supreme Court recently rejected this position in Padilla, supra, 13 Cal.5th 152. We are compelled to do the same. (Loshonkohl v. Kinder (2003) 109 Cal.App.4th 510, 517 ["As an intermediate appellate court we are bound by decisions of our Supreme Court and we must follow the reasoning found therein"].)
Although Padilla was issued after this appeal was fully briefed, both parties anticipated that the forthcoming decision in that case would dictate the outcome of this appeal. Thus, following the issuance of Padilla, we asked the parties whether they would accept our disposition-to vacate the true findings on the gang and gang-related firearm enhancements, vacate the sentence, and remand the case for further proceedings. Both parties indicated their acceptance.
The defendant in Padilla, supra, 13 Cal.5th 152 was 16 years old when he murdered his mother and conspired to kill his stepfather. (Id. at p. 159.) He was tried as an adult and sentenced to LWOP. (Ibid.) His sentence was subsequently vacated twice based on intervening United States Supreme Court precedent concerning juvenile LWOP sentences. (Ibid.) About two weeks after his sentence was vacated for the second time, California voters approved Proposition 57 (Padilla, supra, at p. 159), which "amended the law governing the punishment of juvenile offenses in adult criminal court by requiring hearings to determine whether the offenses should instead be heard in juvenile court" (id. at p. 158). In People v. Superior Court (Lara) (2018) 4 Cal.5th 299, the California Supreme Court "held that 'Estrada's inference of retroactivity applies' to the proposition's juvenile provisions, . . . [Citation.]" (Padilla, supra, at p. 158.)
The question before the California Supreme Court in Padilla was whether Proposition 57 applied retroactively to defendant after his original sentence, which had become final, was vacated in a habeas corpus proceeding. (Padilla, supra, 13 Cal.5th at pp. 158, 163.) The Supreme Court held that it did apply (id. at p. 158), reasoning that "[w]hen Padilla's sentence was vacated, the trial court regained the jurisdiction and duty to consider what punishment was appropriate for him, and Padilla regained the right to appeal whatever new sentence was imposed" (id. at pp. 161-162). The judgment in his case had "thus became nonfinal," and there was "no 'constitutional obstacle' to applying the Estrada presumption to his case. [Citation.]" (Padilla, supra, at p. 162.) The Supreme Court rejected the Attorney General's argument that "cases that are nonfinal because the defendant is undergoing retrial or resentencing" should be distinguished from "cases 'not yet final on initial review[,]'" with Estrada applying only to the latter. (Padilla, supra, at p. 162.)
Padilla involved resentencing following a successful petition for writ of habeas corpus, but we see no reason why its reasoning does not apply with equal force here, where appellant's sentence was vacated following a successful former section 1170.95 petition. (Cf. People v. Salgado (July 26, 2022, G060656) __Cal.App.5th__ [2022 Cal.App.Lexis 709, at pp. *2, *5-*6] [applying Padilla to conclude that following a recall and resentencing under former § 1170, subd. (d), the criminal judgment was no longer final and the defendant was entitled to the benefit of Assembly Bill 333].)
The judgment in appellant's case became final in 2019, but when the trial court granted appellant's former section 1170.95 petition in 2020, the court vacated appellant's murder conviction and, thus, his sentence. As in Padilla, "[w]hen [appellant]'s sentence was vacated, the trial court regained the jurisdiction and duty to consider what punishment was appropriate for him, and [appellant] regained the right to appeal whatever new sentence was imposed. His judgment thus became nonfinal, and it remains nonfinal in its present posture ...." (Padilla, supra, 13 Cal.5th at pp. 161-162.) Given that Estrada's "retroactivity rule extends to all 'nonfinal judgments[]'" (Padilla, supra, at p. 158, italics added), Assembly Bill 333's ameliorative changes to section 186.22 apply to appellant's nonfinal judgment.
Pursuant to Assembly Bill 333, the imposition of a gang enhancement under section 186.22 now requires proof "that the benefit to the gang was more than reputational," which "essentially adds a new element to the enhancement." (Sek, supra, 74 Cal.App.5th at p. 668.) As the parties agree, the evidence adduced at appellant's trial was insufficient to establish that the predicate crimes benefitted the gang beyond enhancing its reputation. Accordingly, we must vacate the true findings on the gang enhancements under section 186.22, subdivision (b)(1), as well as the true findings on the gang-related firearm enhancements under section 12022.53, subdivisions (b), (c), (d), and (e)(1). (People v. Lee (2022) 81 Cal.App.5th 232, 239240; Perez, supra, 78 Cal.App.5th at p. 206, fn. 11; Ramirez, supra, 79 Cal.App.5th at p. 64.)
In its respondent's brief, the People concede that if Assembly Bill 333 applies to appellant's case, "the evidence presented at appellant's pre-Assembly Bill 333 trial was insufficient to establish the new 'pattern of criminal gang activity' element [of section 186.22], because no evidence showed the predicate crimes benefitted the gang beyond enhancing the gang's reputation."
"'Because we do not reverse based on the insufficiency of the evidence required to prove a violation of the statute as it read at the time of trial, the double jeopardy clause of the Constitution will not bar a retrial. [Citations.] "'Where, as here, evidence is not introduced at trial because the law at that time would have rendered it irrelevant, the remand to prove that element is proper and the reviewing court does not treat the issue as one of sufficiency of the evidence.' [Citation.]" [Citation.]' [Citations.]" (Sek, supra, 74 Cal.App.5th at pp. 669-670.) Thus, on remand, the People may retry appellant on the gang and gang-related firearm enhancements under the law as amended by Assembly Bill 333.
II. Appellant's Other Arguments Are Moot
Vacating the gang and gang-related firearm enhancements renders moot appellant's arguments that the trial court abused its discretion when it imposed a 20-year firearm enhancement (§ 12022.53, subds. (c) &(e)(1)), and that Assembly Bill 518,Assembly Bill 124, and Senate Bill 567 apply to his sentence.
Effective January 1, 2022, "Assembly Bill No. 518 amended . . . section 654 to remove the requirement that a court impose the longest sentence when a defendant is convicted of more than one offense arising from the same conduct, such that a court now has discretion to select a longer or shorter sentence when . . . section 654 applies. [Citation.]" (People v. Lopez (2022) 78 Cal.App.5th 459, 468.)
Also effective January 1, 2022, Assembly Bill 124 and Senate Bill 567 made changes to section 1170 regarding determinate sentencing. (See People v. Jones (2022) 79 Cal.App.5th 37, 44, fn. 11 (Jones).) As relevant here, now, when three possible terms of imprisonment can be imposed for a crime, the trial court may only impose the high term "when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term, and the facts underlying those circumstances have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial." (§ 1170, subd. (b)(2).) Additionally, "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 is required to impose the lower term if one of several factors "was a contributing factor in the commission of the offense[.]" (§ 1170, subd. (b)(6).) These contributing factors include "experienc[ing] psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence"
On remand, if the People decide not to retry the enhancements, or at the conclusion of such a retrial, appellant will be entitled to a full resentencing. (People v. Buycks (2018) 5 Cal.5th 857, 893 ["when 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[]'"].) During resentencing, the trial court shall exercise its discretion in light of the changes brought by Assembly Bill 518, Assembly Bill 124, and Senate Bill 567, and may "revisit all prior sentencing decisions when resentencing" appellant (People v. Valenzuela (2019) 7 Cal.5th 415, 424-425). The court has a "duty . . . to ensure that all components of [a] sentence are authorized by the law and the facts at the time any new sentence is imposed." (People v. Walker (2021) 67 Cal.App.5th 198, 206). (§ 1170, subd. (b)(6)(A)) and being under 26 years of age at the time of the commission of the offense (§§ 1016.7, subd. (b), 1170, subd. (b)(6)(B)).
Assembly Bill 124, Assembly Bill 518 and Senate Bill 567 apply retroactively to nonfinal judgments. (People v. Gerson (2022) 80 Cal.App.5th 1067, 1095 [Assembly Bill 124 retroactive]; Jones, supra, 79 Cal.App.5th at p. 45 [Senate Bill 567 & Assembly Bill 518 retroactive].)
DISPOSITION
The true findings on the gang enhancements (§ 186.22, subd. (b)(1)) and gang-related firearm enhancements (§ 12022.53, subds. (b), (c), (d) &(e)(1)) are vacated. The sentence is vacated, and the case is remanded. On remand, the People may retry the enhancement allegations under the law as amended by Assembly Bill 333. If the People do not retry the enhancements, or at the conclusion of a retrial, the trial court shall conduct a full resentencing. In all other respects, the judgment is affirmed.
We concur: CHAVEZ J., HOFFSTADT J.