Opinion
H050651
04-09-2024
THE PEOPLE, Plaintiff and Respondent, v. JOSE JESUS TORRES, Defendant and Appellant.
NOT TO BE PUBLISHED
(Santa Clara County Super. Ct. No. C1076422)
LIE, J.
In 2016, appellant Jose Jesus Torres was convicted of first degree murder with several gang-related enhancements and a special circumstance. In 2021, on Torres's direct appeal, we reversed the judgment and remanded the matter for resentencing, given a combination of sentencing errors and new ameliorative sentencing legislation (Sen. Bill No. 620 (2017-2018 Reg. Sess.)). On remand, the trial court struck a stayed gang enhancement (Pen. Code § 186.22, subd. (b)(1)(C)) but declined to exercise its new discretion to strike the gang firearm enhancement subjecting Torres to an additional term of 25 years to life (§ 12022.53, subds. (d), (e)(1)). On appeal, Torres argues that the trial court erred by declining to consider his entitlement to relief under still newer legislation, Assembly Bill No. 333 (2021-2022 Reg. Sess.), which amended the gang statute. We agree and reverse the judgment.
Undesignated statutory references are to the Penal Code.
Torres also filed a petition for writ of habeas corpus that this court ordered considered with the appeal. We have disposed of the habeas petition by separate order filed this day. (See Cal. Rules of Court, rule 8.387(b)(2)(B).)
I. BACKGROUND
A. The Trial and Verdict
At trial, the prosecution presented evidence that in 2010, Torres and his codefendant Carlos Ruizpaz, both members of Sureño street gangs, killed Jose Vega Calderon: Ruizpaz shot Calderon and Torres stabbed him.
The jury convicted Torres of first degree murder (§ 187) and found true a gang enhancement (§ 186.22, subd. (b)(1)(C)), a gang-murder special circumstance (§ 190.2, subd. (a)(22)), a gang firearm enhancement (§ 12022.53, subds. (d), (e)(1)), and an enhancement for personal use of a deadly weapon (§ 12022, subd. (b)(1)). The trial court sentenced Torres to life without the possibility of parole for the murder, consecutive to 25 years to life for the gang firearm enhancement, and imposed and stayed a one-year enhancement for personal use of a deadly weapon and a 10-year gang enhancement.
The jury was instructed on the gang firearm enhancement under section 12022.53, subdivision (e)(1). Section 12022.53, subdivision (d) on its face applies only to one who personally discharged a firearm. But section 12022.53, subdivision (e)(1) extends the enhancement to "any person who is a principal in the commission of an offense"-not limited to those who personally used a firearm-if it is found true that the person violated section 186.22, subdivision (b). Torres's liability for the gang firearm enhancement thus hinges on his violation of section 186.22, subdivision (b).
B. Torres's Direct Appeal
Torres appealed his convictions, and in June 2021, this court reversed the judgment and remanded for a "limited purpose." We directed the trial court to strike the 10-year gang enhancement (§ 186.22, subd. (b)(1)(C)), reduce the restitution fine (§ 1202.4, subd. (b)), and consider its new discretion under section 1385 (§ 12022.53, subd. (h), as amended by Sen. Bill No. 620 (eff. Jan. 1, 2018)) to strike the firearm enhancement of 25 years to life (§ 12022.53, subd. (d)). We specified, "If the trial court strikes . . . the firearm enhancement[], it shall resentence the defendant[] accordingly. If the trial court declines to strike the firearm enhancement[], the trial court will reinstate the original sentence[] subject to the above modifications."
C. The Resentencing
A few months after this court reversed Torres's judgment, the Legislature approved Assembly Bill No. 333, which amended section 186.22's definition of a criminal street gang and, by extension, multiple sentencing provisions incorporating section 186.22 by reference. Following the January 1, 2022 effective date of those amendments and before the resentencing hearing, Torres filed a brief arguing that Assembly Bill No. 333 was retroactive to his case because his judgment was not yet final. The People argued that applying Assembly Bill No. 333 to Torres's case would exceed the scope of this court's limited remand.
The trial court declined to consider the applicability of Assembly Bill No. 333, finding that Torres's judgment was "remanded for the limited purpose of addressing the gun enhancement as well as, of course, striking the gang enhancement in this case and possibly resentencing." The trial court resentenced Torres to life without the possibility of parole consecutive to 25 years to life, struck the gang enhancement, and reduced the restitution fine. The trial court exercised its discretion not to strike the firearm enhancement after concluding that "striking the enhancement would endanger public safety." The trial court, however, struck the one-year enhancement for personal use of a deadly weapon (§ 12022, subd. (b)(1)) under section 1385.
II. DISCUSSION
A. Assembly Bill No. 333
Maintaining that his judgment was not yet final as of his resentencing, Torres argues that the trial court erred by declining to consider the ameliorative effects of Assembly Bill No. 333. We agree that Assembly Bill No. 333 is ameliorative legislation that applies to cases not yet final and that remand is required.
1. Overview of Assembly Bill No. 333
Assembly Bill No. 333, which became effective January 1, 2022, made several changes to gang enhancements under section 186.22. It "narrowed the definition of a 'criminal street gang' to require that any gang be an 'ongoing, organized association or group of three or more persons' "; it requires that the pattern of criminal activity foundational to a criminal street gang "have been 'collectively engage[d] in' by members of the gang"; it also imposed further requirements limiting the offenses on which a pattern of criminal gang activity could be predicated; and it required that "for an offense to have commonly benefitted a street gang, . . . any 'common benefit' be 'more than reputational.'" (People v. Tran (2022) 13 Cal.5th 1169, 1206 (Tran).) Section 186.22, subdivision (g) specifies that "[e]xamples of a common benefit that are more than reputational may include, but are not limited to, financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a potential current or previous witness or informant."
Assembly Bill No. 333 also altered the firearm enhancement and the special circumstance allegations found true here, as the relevant statutes expressly incorporate section 186.22 in their provisions. (See People v. Lopez (2021) 73 Cal.App.5th 327, 346-347, disapproved of on another point as stated in People v. Clark (2024) 15 Cal.5th 743, 764, fn. 8 (Clark).) The firearm enhancement under section 12022.53, subdivisions (d) and (e)(1)(A) mandates an additional sentence of 25 years to life in prison for a person who is a principal in an offense involving the discharge of a firearm causing death or great bodily injury and who was convicted of a felony committed for the gang's benefit as set forth under section 186.22, subdivision (b). And as enacted by Proposition 21, the Gang Violence and Juvenile Crime Prevention Act of 1998 (see People v. Shabazz (2006) 38 Cal.4th 55, 65), the gang-murder special circumstance allegation under section 190.2, subdivision (a)(22) forecloses the possibility of parole if a defendant guilty of first degree murder intentionally killed the victim "while the defendant was an active participant in a criminal street gang, as defined in subdivision (f) of [s]ection 186.22, and the murder was carried out to further the activities of the criminal street gang."
In People v. Rojas (2023) 15 Cal.5th 561, the California Supreme Court held that applying the definition of a "criminal street gang" as amended by Assembly Bill No. 333 to the gang-murder special circumstance is not unconstitutional. (Rojas, supra, 15 Cal.5th at p. 580.) The Attorney General initially argued that applying Assembly Bill No. 333 to the gang-murder special circumstance would be unconstitutional but withdrew this argument in light of Rojas.
2. Retroactivity of Assembly Bill No. 333 and the Estrada Rule
Under In re Estrada (1965) 63 Cal.2d 740 (Estrada), absent" 'a contrary indication of legislative intent, . . . legislation that ameliorates punishment . . . applies to all cases that are not yet final as of [its] effective date.'" (Tran, supra, 13 Cal.5th at pp. 1206-1207.) As the Attorney General concedes, Assembly Bill No. 333 applies retroactively to cases not yet final on appeal as of its effective date. (Tran, at p. 1207.) The Attorney General argues, however, that Torres's convictions and enhancements became final before the ameliorative legislation took effect-upon this court's remittitur following his first appeal.
But a judgment does not become final until"' "the judgment of conviction was rendered, the availability of appeal exhausted, and the time for petition for certiorari ha[s] elapsed." '" (People v. Padilla (2022) 13 Cal.5th 152, 162 (Padilla).) A probationer for whom imposition of sentence was suspended, for example, is entitled to the benefit of legislation ameliorating the maximum sentence on direct review of a later probation revocation. (People v. McKenzie (2020) 9 Cal.5th 40, 43 (McKenzie).) Even where the court's imposition of sentence gives rise to a final judgment for the purposes of appealability, a defendant remains entitled to the Estrada presumption of retroactivity when the order for execution of the sentence on revocation of probation is not yet final. (People v. Esquivel (2021) 11 Cal.5th 671, 679-680 (Esquivel).)
We see no exception to the Estrada presumption here: The sentence previously imposed was reversed on appeal, the remittitur expressly called for the trial court to reconsider its sentence under other ameliorative legislation retroactive under the Estrada rule, and the Legislature has meanwhile further ameliorated the applicable sentencing statutes. The California Supreme Court has observed that" 'the terms "judgment" and" 'sentence'" are generally considered "synonymous." '" (Esquivel, supra, 11 Cal.5th at p. 678; McKenzie, supra, 9 Cal.5th at p. 46.) And "Estrada referred not only to the finality of the judgment of conviction, but also to the finality of the' "case[]"' or' "prosecution[]." '" (Esquivel, at p. 678; McKenzie, at p. 46.) Even assuming the finality of Torres's murder conviction, the case or prosecution itself was not final, in that the matter had been remanded for resentencing. Thus, under the Estrada rule, Assembly Bill No. 333 applies to his case.
3. Estrada and the Limits of the Trial Court's Jurisdiction on Remand
Whether a remand solely to correct sentencing issues limits the trial court's jurisdiction to consider the effects of Assembly Bill No. 333 is an issue separate from the finality of Torres's judgment, and it is one that has divided the Courts of Appeal and is pending before the California Supreme Court. (See People v. Lopez (2023) 93 Cal.App.5th 1110 (Lopez), review granted Nov. 15, 2023, S281488; People v. Mitchell (2023) 97 Cal.App.5th 1127 (Mitchell), review granted Feb. 21, 2024, S283474.)
When granting review in Lopez, the California Supreme Court limited the issue to be briefed and argued as follows: "Is defendant entitled to retroactive application of Assembly Bill No. 333 (2021-2022 Reg. Sess.) where he appeals for a second time after his judgment was conditionally reversed and the Court of Appeal issued a limited remand to the trial court to address sentencing issues?"
We conclude that the limited remand here did not preclude application of Assembly Bill No. 333's ameliorative changes to Torres's case.
In Lopez, the Fourth District conditionally reversed the judgment with directions to consider striking the defendant's prior serious felony conviction enhancement and firearm enhancements. (Lopez, supra, 93 Cal.App.5th at p. 1113, review granted.) On appeal following the trial court's imposition of sentence, the defendant argued that he was entitled to the ameliorative benefits of Assembly Bill No. 333, which had become effective by the date of the resentencing hearing. (Lopez, at p. 113, review granted.) A divided panel from the Fourth District agreed that Assembly Bill No. 333 retroactively applied to the defendant but concluded that the limited nature of its remand on direct appeal meant that the trial court was revested with jurisdiction only as defined by the remittitur. (Lopez, at p. 1119, review granted.) Thus, Lopez concluded that despite the retroactivity of Assembly Bill No. 333, the trial court "had no jurisdiction to readjudicate the gang enhancements" in that case. (Lopez, at p. 1120, review granted.)
The dissent in Lopez, however, argued that the "[t]he majority's invocation of the limited 'jurisdiction' the trial court had on remand [citation] confuses the ordinary acts that a trial court is authorized to take with its fundamental jurisdiction over a case." (Lopez, supra, 93 Cal.App.5th at p. 1123 (dis. opn. of Raphael, J.), review granted.) "Fundamental jurisdiction is, at its core, authority over both the subject matter and the parties." (People v. Chavez (2018) 4 Cal.5th 771, 780 (Chavez).) The majority in Lopez applied the general principle that "[i]n an appeal following a limited remand, the scope of the issues before the [appellate] court is determined by the remand order." (People v. Murphy (2001) 88 Cal.App.4th 392, 396-397; see also Lopez, at p. 1119, review granted.) "Following appellate affirmance of a trial court judgment and issuance of a remittitur, 'the trial court is revested with jurisdiction of the case, but only to carry out the judgment as ordered by the appellate court.'" (People v. Picklesimer (2010) 48 Cal.4th 330, 337.)
Here, by reversing the judgment and remanding the matter to the trial court we revested the trial court with authority over both the subject matter (the criminal prosecution) and the parties, within the scope of the remittitur. (See Chavez, supra, 4 Cal.5th at p. 780 [a trial court may act in excess of its jurisdiction if it acts in excess of "constraints placed on it by statutes, the Constitution, or common law"]; see also Hanna v. City of Los Angeles (1989) 212 Cal.App.3d 363, 376 [trial court acts in excess of jurisdiction when it considered issues not directed by remand from appellate court], overruled on a different point as recognized in City of Los Angeles v. Superior Court (1997) 57 Cal.App.4th 1506, 1516, fn. 4.) The issue, as framed by Lopez, is the scope of our remittitur.
Recently, the Fifth District in Mitchell disagreed with the majority's reasoning in Lopez and concluded that a defendant whose sentence was vacated for the limited purpose of resentencing was entitled to the retroactive application of Assembly Bill No. 333. In Mitchell, the Fifth District had rejected the defendant's challenges to his convictions and sentence, which included gang enhancements and a conviction under section 186.22, subdivision (a), but reversed the sentence after concluding that a firearm enhancement had been improperly imposed. (Mitchell, supra, 97 Cal.App.5th at pp. 1129, 1130-1131, review granted.) The scope of the remittitur did not encompass Assembly Bill No. 333, which took effect while the defendant was awaiting resentencing on remand. But on appeal from the sentence imposed on remand, Mitchell concluded that the defendant's sentence had yet to become final, so the Estrada presumption of retroactivity applied. (Mitchell, at pp. 1140-1141, review granted.)
Lopez and Mitchell turn on divergent views of the trial court's jurisdiction on remand when the Legislature has not chosen to limit its ameliorative enactments to prospective application. The majority in Lopez essentially concluded that the appellate court's election to issue directions on remand rather than an unqualified reversal based on sentencing error effectively foreclosed the new legislation from reaching that particular nonfinal judgment. (See Lopez, supra, 93 Cal.App.5th at pp. 1119-1120, review granted.) Without authority for such a proposition from our high court, we respectfully follow Mitchell's view that Estrada applies even if the appellate court's directions do not forecast ameliorative changes in the law.
We do not read Padilla as supporting the limits the Attorney General argues constrained the trial court's authority to apply new legislation upon resentencing. In Padilla, the California Supreme Court held that a defendant whose sentence had been vacated was entitled to retroactive application of Proposition 57's provision for a transfer hearing in juvenile court but noted that "the right and remedy we recognize today does not allow [the defendant] to raise claims unrelated to his sentence." (Padilla, supra, 13 Cal.5th at pp. 169.) Specifically, "[w]hatever potential that hearing may have for reducing his punishment (the nonfinal part of his judgment), it does not authorize or constitute a relitigation of guilt." (Id. at p. 170, italics added.) The Attorney General points to this language as precluding Torres from relitigating the jury's true findings on his sentencing enhancements. But even if we assume without deciding that only Torres's sentence was nonfinal and that his underlying murder conviction was final, the amelioration sought under Assembly Bill No. 333 relates exclusively to the sentencing enhancements here-the gang firearm enhancement and the gang-murder special circumstance. As noted, Padilla observed that the punishment was "the nonfinal part of [Padilla's] judgment," and Assembly Bill No. 333 would affect only Torres's punishment. (Padilla, at p. 170.)
Indeed, Padilla observed that "once a court has determined that a defendant is entitled to resentencing, the result is vacatur of the original sentence, whereupon the trial court may impose any appropriate sentence." (Padilla, supra, 13 Cal.5th at p. 163.) Until the defendant's new sentence was imposed, "there was no final judgment to attack because his prior sentence had been vacated." (Ibid.) Padilla thus rejected the idea that there was a distinction between "cases that are nonfinal because the defendant is undergoing retrial or resentencing and those in a newly coined procedural stance-cases 'not yet final on initial review.'" (Id. at p. 162.) Padilla observed that Estrada itself made no such distinction. (Ibid.)
In Esquivel, the California Supreme Court acknowledged "at least a potential constitutional restraint (i) on the Legislature's power to intervene in judicial decisionmaking or (ii) on the judiciary's power to affect matters that were no longer pending" but reasoned that "any constraint on the Legislature's power to affect 'final' criminal judgments would appear to arise from the conclusion of a criminal proceeding as a whole." (Esquivel, supra, 11 Cal.5th at p. 678.) The high court accordingly concluded "the constitutional concerns underlying Estrada's rationale comport with our focus on the end of the criminal prosecution or proceeding." (Ibid.) Because the criminal proceeding as a whole has not yet concluded here, there appears to be no constitutional restraint on applying the ameliorative effects of the new legislation.
Despite the limits imposed by our remand directions, we unambiguously remanded the matter for resentencing, and the trial court struck a part of Torres's sentence on remand. "[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.'" (See People v. Buycks (2018) 5 Cal.5th 857, 893 (Buycks).) Thus, the trial court on resentencing was entitled to consider all factors that affect Torres's sentence, which would include the impacts of Assembly Bill No. 333 on Torres's case. For example, in People v. Ramirez (2019) 35 Cal.App.5th 55 (Ramirez), the defendants' case was reversed and remanded on direct appeal for the trial court to resentence the defendants and to reconsider the matter in light of People v. Gutierrez (2014) 58 Cal.4th 1354, which required a sentencing court to consider youth-related factors. (Ramirez, at p. 61.) Following the remand, the Legislature enacted Proposition 57, and the defendants filed a motion requesting a transfer hearing, which was granted. (Ramirez, at p. 59.) On appeal, the district attorney argued that the transfer order exceeded the trial court's jurisdiction on remand. (Id. at p. 64.) The Ramirez court rejected this argument, concluding that per the court's remittitur for resentencing, "the trial court had jurisdiction to consider any and all factors that would affect sentencing," which would encompass the benefits provided by Proposition 57. (Ramirez, at p. 64.)
The Attorney General makes no argument that the trial court lacked jurisdiction at resentencing to strike the personal use firearm enhancement (§ 12022, subd. (b)(1)) that it had originally only stayed. To be sure, our prior remand contemplated that the trial court, if it declined to strike the firearm enhancement, would reimpose the original sentence subject to the modifications set forth in our disposition. Even so, we instructed the trial court to, at minimum, strike one aspect of Torres's sentence (the gang enhancement) and determine whether to strike another (the gang firearm enhancement).
Because Assembly Bill No. 333 was not yet law at the time of Torres's direct appeal, we had no reason to consider it in fashioning the directions on remand; these directions therefore should not be read as constraining application of the Estrada rule. In People v. Hargis (2019) 33 Cal.App.5th 199 (Hargis), for example, the Court of Appeal affirmed the defendant's judgment, "expressly including the sentence," but remanded the matter for the limited purpose of a determination as to whether the defendant was afforded sufficient opportunity to make a record of information relevant to his eventual youthful offender parole hearing in light of People v. Franklin (2016) 63 Cal.4th 261. (Hargis, at p. 202.) Before the hearing that was set in accordance with the Court of Appeal's remittitur, the Legislature enacted Proposition 57. (Hargis, at pp. 202-203.) The defendant filed a motion to have his case remanded to the juvenile court pursuant to Proposition 57, but the trial court ruled it had no jurisdiction to consider the motion. (Hargis, at p. 203.) On appeal, the Fifth District held that its limited remand on direct appeal was not a "a straightjacket for the trial court" and held that the court on remand could properly "hear a motion on an issue that could not have been raised on defendant's prior appeal, and which concerned a change in the law that altered the court's authority to adjudicate defendant's case in criminal (adult) court in the first instance." (Hargis, at p. 199.) As in Hargis, we had no opportunity to address Assembly Bill No. 333 at the time of Torres's direct appeal. Nor do we believe that our prior remand necessarily informs our determination as to whether the ameliorative changes in the law apply to Torres's case. Nothing in Estrada or Padilla suggests that presumptive retroactive application to nonfinal judgments should turn on the appellate court's clairvoyance about ameliorative legislation to come.
Hargis, however, also concluded prePadilla that Senate Bill No. 620 (2017- 2018 Reg. Sess.) did not apply to the defendant's sentence, which had been affirmed in a prior appeal. (Hargis, supra, 33 Cal.App.5th at pp. 208-211.) Hargis accordingly held that although the defendant's "case was not final" when Proposition 57 went into effect, his conviction and sentence were. (Hargis, at p. 210, italics added.) But the high court's later holding in Padilla that a case is not final until the" 'criminal proceeding as a whole'" has ended (Padilla, supra, 13 Cal.5th at p. 161) undermines Hargis's contrary reasoning. And here, unlike the first appeal in Hargis, we reversed and expressly remanded the matter back to the trial court for resentencing.
Our decision here is in accord with other analogous situations where courts have retroactively applied Assembly Bill No. 333 in cases where statutory changes provided for resentencing despite otherwise final judgments. In People v. Trent (2023) 96 Cal.App.5th 33, 43-44, review granted December 20, 2023, S282644, the grant of a petition for resentencing under section 1172.6 vacated the defendant's murder conviction, and the judgment was no longer final for purposes of Estrada retroactivity, entitling the defendant to the benefit of the amendments to section 186.22. (See Trent, at pp. 43-44.) Likewise in People v. Salgado (2022) 82 Cal.App.5th 376, the recall of a sentence under former section 1170, subdivision (d)(1) rendered the judgment no longer final, and Assembly Bill No. 333 retroactively applied. (See Salgado, at pp. 380-381.)
Because we reversed the judgment and remanded the matter for resentencing, Torres's case was not yet final. Under Estrada, he is entitled to the retroactive application of Assembly Bill No. 333. (Mitchell, supra, 97 Cal.App.5th at pp. 1142- 1143; see Padilla, supra, 13 Cal.5th at pp. 162-163.)
4. Prejudice
Having found that Assembly Bill No. 333 retroactively applies to Torres's case, we must vacate the gang firearm enhancement and the gang murder special circumstance unless" 'it appears beyond a reasonable doubt' that the jury [findings] would have been the same" if instructed in accordance with currently applicable law. (Tran, supra, 13 Cal.5th at p. 1207; People v. Mil (2012) 53 Cal.4th 400, 409 [omission of element of charged offense subject to review under Chapman v. California (1967) 386 U.S. 18].)The Attorney General makes no attempt to meet his burden under Chapman of demonstrating that failure to apply Assembly Bill No. 333 could be harmless here, nor could he on this record.
In his opening brief, Torres argues that the jury's true finding as to the gang enhancement (§ 186.22, subd. (b)(1)(C)) should also be vacated. But it appears that the trial court struck the enhancement in its entirety, not only the additional punishment. (People v. Flores (2021) 63 Cal.App.5th 368, 383 [if only the additional punishment for an enhancement is stricken, the fact of the enhancement will remain on record but the enhancement cannot be used to add punishment in the current case].) The gang enhancement is not reflected in Torres's abstract of judgment, and the clerk's minutes reflect that the enhancement was stricken per our remittitur.
To begin, there is little evidence from which the jury could have inferred that the gang's pattern of criminal gang activity was "collectively engage[d] in" by its members. (§ 186.22, subd. (f).) The California Supreme Court recently held in Clark that "collective engagement" requires an organizational nexus between the predicate offenses and the gang's organizational structure, "meaning its manner of governance; its primary activities; or its common goals and principles." (Clark, supra, 15 Cal.5th at p. 762.) Of three of the still-valid predicate offenses (two other predicates, felony vandalism and evidence of the charged offense, are no longer valid under current law), there was little testimony connecting the predicate offenses to the gang's organizational structure. A.O., the getaway driver in this case, testified that he sold drugs and would give some proceeds to the gang, but his testimony that he also stole cars as a gang member shed little light on the thefts and the gang's organizational nexus. The gang expert at trial only generally testified that "[c]ars are a valuable commodity" to a gang and that sometimes gang members will steal one. Even assuming a jury could infer an organizational nexus from the car thefts, we cannot conclude that this jury did so, when it was specifically instructed that "[t]he crimes, if any, that establish a pattern of criminal gang activity need not be gang related."
And even assuming that Torres's membership in a criminal street gang is not in question, the prosecution unquestionably relied upon reputational benefit under former section 186.22. The prosecution's gang expert opined that attacking a man in public by shooting and stabbing him would "further[] the objective to gang power, respect, control, and place[] fear into the hearts of the community." Presented with a hypothetical tracking the facts of this case, the expert opined both that the murder would have been a "retaliatory act" and also that it would have bolstered the power and reputation of the perpetrators' gang. To be sure, retaliation is a common benefit that is more than reputational under section 186.22, subdivision (g), but on this record, we cannot rule out the jury's reliance on the reputational benefit the prosecution expert opined the gang would realize from a murder like this one.
Accordingly, we cannot conclude beyond a reasonable doubt that the jury's findings would have been the same in the absence of the error. (Tran, supra, 13 Cal.5th at p. 1207.) Thus, we must vacate the gang firearm enhancement and the gang-murder special circumstance and remand the matter for a possible retrial on those issues.
B. Sentencing Errors
We need not address Torres's remaining claims as to the propriety of the parole revocation fine, criminal justice administration fee, and custody credits as stated in the abstract of judgment: As we are vacating the gang-related enhancements and gang-murder special circumstance, Torres will be entitled to a "full resentencing." (Buycks, supra, 5 Cal.5th at p. 893.) At the time of resentencing, the trial court will be required to prepare a new abstract of judgment and Torres may raise or renew his arguments about fines, fees, and custody credits at that time. (Ibid.)
III. DISPOSITION
The gang firearm enhancement (§ 12022.53, subds. (d), (e)(1)) and the gang-murder special circumstance (§ 190.2, subd. (a)(22)) are vacated and the matter is remanded for further proceedings. On remand, the prosecutor will have the opportunity to retry the gang firearm enhancement and the gang-murder special circumstance.
WE CONCUR: GROVER, ACTING P. J., BROMBERG, J.