People v. Chavez CA2/2

Filed 11/9/26 P. v. Chavez CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO THE PEOPLE, B338962 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. NA092359) v. DANIEL CHAVEZ, Defendant and Appellant. APPEAL from an order of the Superior Court of Los Angeles County. Judith L. Meyer, Judge. Reversed and remanded with directions. Diane E. Berley, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Julie A. Harris and Kenneth C. Byrne, Deputy Attorneys General, for Plaintiff and Respondent. ________________________________  Daniel Chavez was convicted of attempted premeditated murder, assault with a firearm, robbery, and three counts of assault with a semiautomatic firearm. The jury found true the allegation that he committed the attempted murder for the benefit of a criminal street gang. Prior prison term and firearm enhancements were also found true. This division affirmed appellant’s conviction in 2015 but remanded the matter for clarification of appellant’s sentence. (People v. Chavez (Sept. 3, 2015, B257515) [nonpub. opn.].) In 2022, appellant was identified as potentially eligible for recall and resentencing under Penal Code section 1172.75.1 After briefing and a hearing, the trial court struck appellant’s three section 667.5, subdivision (b) one-year enhancements but denied any further relief. Appellant argues on appeal that the trial court erred by failing to vacate the gang enhancement, and by not resentencing him to the middle term on one assault with a semiautomatic firearm count and a corresponding firearm enhancement. We conclude that the trial court committed reversible error in considering the scope of required resentencing, and we accordingly reverse. BACKGROUND In May 2012, appellant, a member of the Westside Wilmas street gang, approached a stranger at a church carnival, placed him in a headlock, asked him where he was from, and shot him through the neck before the victim could answer. The victim lived. A few days later, appellant pulled out and cocked a semiautomatic pistol while in a store, gestured the pistol at two customers, and aimed it at the sales clerk while demanding money. The clerk emptied the register and gave the cash to appellant. Appellant was apprehended soon after from a nearby house. A jury convicted appellant of all charged offenses and found all enhancements true. In 2014, the trial court imposed a sentence of 72 1 Undesignated statutory references are to the Penal Code. 2 years and 8 months to life in prison, consisting of the following: 15 years to life on attempted premeditated murder (§§ 664, 187, subd. (a)) plus an additional 25 years to life for the firearm enhancement (§ 12022.53, subd. (d)); an upper term of 9 years for assault with a semiautomatic firearm (§ 245, subd. (b)) plus an upper term of 10 years for personal use of an assault weapon (§ 12022.5, subd. (b)); consecutive sentences of 2 years each for two subordinate assault counts (§ 245, subd. (b), one-third the middle term) plus 3 years and 4 months for each of two personal use of an assault weapon enhancements (§ 12022.5, subd. (b), one-third the upper term); and three 1-year prior prison term enhancements (§ 667.5, subd. (b)). An assault with a firearm count (§ 245, subd. (a)(2)) and a robbery count (§ 211) were stayed under section 654. Following remand for clarification of the sentence, the trial court in December 2015 imposed a total sentence of 68 years and 8 months to life in prison. The sentence remained the same as previously imposed, except that the two previous subordinate personal use of an assault weapon enhancements (§ 12022.5, subd. (b)) were reduced to 1 year and 4 months each (§ 12022.5, subd. (a), one third the middle term). After appellant was identified as a person potentially eligible for relief under section 1172.75, he filed a petition for recall and resentencing. The People filed opposition, arguing that appellant was only entitled to the striking of the three one-year prior prison term enhancements. The trial court heard the matter on July 1, 2024. In reviewing appellant’s sentence, the trial court noted that there was a gang allegation for the first count of attempted murder. The trial court continued, however, that “that gang allegation punishment was never imposed.” The trial court then struck the three one-year prior prison term enhancements and left the remainder of the sentence intact. The subsequent minute order stated that the trial court “recall[ed]” appellant’s sentence and “resentenced” him. The order further 3 reflected the striking of the one-year enhancements and stated that the gang enhancement on the first count was stayed. The newly amended abstract of judgment likewise listed a stayed gang enhancement on the first count, and a total sentence of 65 years and 8 months to life in prison. Appellant filed a timely notice of appeal. DISCUSSION “Prior to January 1, 2020, section 667.5, subdivision (b) required trial courts to impose a one-year sentence enhancement for each true finding on an allegation the defendant had served a separate prior prison term and had not remained free of custody for at least five years. (Former § 667.5, subd. (b).) Effective January 1, 2020, Senate Bill No. 136 (2019–2020 Reg. Sess.) (Senate Bill 136) (Stats. 2019, ch. 590) amended section 667.5 by limiting the prior prison term enhancement to only prior terms for sexually violent offenses.” (People v. Burgess (2022) 86 Cal.App.5th 375, 379–380.) This change was made retroactive by Senate Bill No. 483 (2021–2022 Reg. Sess.), which added former section 1171.1 to the Penal Code (Stats. 2021, ch. 728, § 3), later renumbered as section 1172.75 (Stats. 2022, ch. 58, § 12). “A defendant serving a term for a judgment that includes a now- invalid enhancement is entitled to resentencing. (§ 1172.75, subds. (a), (c).)” (People v. Rhodius (2025) 17 Cal.5th 1050, 1055.) “By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly ‘invalid’ enhancements.” (People v. Monroe (2022) 85 Cal.App.5th 393, 402 (Monroe).) “Section 1172.75, subdivision (d) sets forth detailed instructions for resentencing once a sentence has been recalled” (Rhodius, at p. 1055), including that “ ‘[r]esentencing . . . shall result in a lesser sentence than the one originally imposed as a result of the elimination of the repealed enhancement, unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety’ ” (§ 1172.75, subd. (d)(1)), and that the court must “ ‘apply the sentencing 4 rules of the Judicial Council’ as well as ‘any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing’ ” (id., subd. (d)(2)). I. Street gang enhancement Appellant’s primary contention on appeal is that the trial court erred in its consideration of the street gang enhancement with respect to the first count of attempted premeditated murder. He contends the amendments made to section 186.22 by Assembly Bill No. 333 (2021– 2022 Reg. Sess., ch. 699, § 4) (Assembly Bill 333) apply retroactively to his case and require reversal of the gang enhancement. A. Assembly Bill 333 Assembly Bill 333, effective January 1, 2022, made numerous changes to the law on gang enhancements: “First, 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.’ (§ 186.22, subd. (f), italics added.) Second, whereas section 186.22, former subdivision (f) required only that a gang’s members ‘individually or collectively engage in’ a pattern of criminal activity in order to constitute a ‘criminal street gang,’ Assembly Bill 333 requires that any such pattern have been ‘collectively engage[d] in’ by members of the gang. (§ 186.22, subd. (f), italics added.) Third, Assembly Bill 333 also narrowed the definition of a ‘pattern of criminal activity’ by requiring that (1) the last offense used to show a pattern of criminal gang activity occurred within three years of the date that the currently charged offense is alleged to have been committed; (2) the offenses were committed by two or more gang ‘members,’ as opposed to just ‘persons’; (3) the offenses commonly benefitted a criminal street gang; and (4) the offenses establishing a pattern of gang activity must be ones other than the currently charged offense. (§ 186.22, subd. (e)(1), (2).) Fourth, Assembly Bill 333 narrowed what it means for an offense to have commonly benefitted a street gang, requiring that any ‘common benefit’ 5 be ‘more than reputational.’ (§ 186.22, subd. (g).)” (People v. Tran (2022) 13 Cal.5th 1169, 1206 (Tran).) Additionally, to prove collective engagement, the prosecution must show “a nexus between the individual predicate offenses and the gang as an organized, collective enterprise.” (People v. Clark (2024) 15 Cal.5th 743, 749.) Assembly Bill 333’s “substantive changes apply retroactively to all nonfinal cases under [In re Estrada (1965) 63 Cal.2d 740, 745].” (People v. Lopez (2025) 17 Cal.5th 388, 394 (Lopez).) As respondent concedes, because the section 1172.75 proceedings rendered appellant’s sentence nonfinal, Assembly Bill 333 applies retroactively here. When appellant’s sentence was recalled, “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.” (People v. Padilla (2022) 13 Cal.5th 152, 161– 162.) B. Consideration of the gang enhancement As noted, at the hearing on appellant’s resentencing petition, the trial court observed that a gang enhancement was found true with respect to the first count, but stated that the “gang allegation punishment was never imposed.” Apparently believing that the gang enhancement was originally ordered stayed, the trial court listed the enhancement as stayed in the 2024 amended abstract of judgment, while keeping the sentence on the first count the same. The trial court’s belief was incorrect, as explained by the People in their briefing. The typical sentence for attempted premeditated murder is life in prison, which carries a minimum parole eligibility date of seven years. (§ 664, subd. (a); § 3046, subd. (a)(1); People v. Jefferson (1999) 21 Cal.4th 86, 96.) At the original sentencing hearing, however, the trial court did not impose a typical life sentence. Instead, the court stated: “for violation of Penal Code section 664/187, the crime of attempted willful, deliberate, premeditated murder, as set forth in count 1 of the information, and the jury having found Penal Code 6 section 186.22(b)(1)(C) gang enhancement allegation to be true, the defendant is sentenced to 15 years to life.” This sentence was correct, as section 186.22, subdivision (b)(5) establishes a minimum sentence of 15 years to life for the commission of attempted premeditated murder while in violation of the gang enhancement statute. (People v. Rodriguez (2019) 40 Cal.App.5th 194, 201; People v. Arauz (2012) 210 Cal.App.4th 1394, 1404.) Thus, although the original abstract of judgment should have more clearly referenced the gang enhancement, the sentence of 15 years to life properly reflected appellant’s conviction for attempted premeditated murder with the gang enhancement. (See People v. Mesa (1975) 14 Cal.3d 466, 471 [oral pronouncement of sentence controls over abstract of judgment].) The most recent amended abstract of judgment continues to list this 15 years to life sentence, while incorrectly stating that the gang enhancement was stayed. Based on its incorrect assumption that the gang enhancement was stayed, the trial court never considered the imposed gang enhancement in light of Assembly Bill 333’s substantive changes. The failure to do so was erroneous. (See Lopez, supra, 17 Cal.5th at p. 394.) C. Appellant did not forfeit the argument While respondent acknowledges that the trial court erred in its consideration of the gang enhancement, respondent contends that appellant forfeited any challenge to the gang enhancement by failing to properly brief the issue on appeal. We reject this assertion. Respondent argues that, in claiming error, appellant should have recited the expert gang testimony presented at his 2014 trial and analyzed whether it still holds up in light of Assembly Bill 333. Appellant raised a more fundamental issue in his opening brief, however: that the trial court failed to even consider the gang enhancement under Assembly Bill 333. The trial court at the 2024 hearing did not analyze the sufficiency of the evidence because it mistakenly believed that no gang enhancement was imposed. Since 7 this basic error alone could justify reversal, any failure on the part of appellant to address the gang evidence in the opening brief does not result in forfeiture. Regardless, appellant does analyze the gang evidence in his reply brief, while explaining why it was not addressed earlier—because the record on appeal did not include the complete trial record, which was only received by counsel after the opening brief was due. Under these circumstances, a finding of forfeiture is unwarranted. D. The error is not harmless Respondent further contends that trial court error pertaining to the gang enhancement is in any case harmless because, even under the more stringent standards of Assembly Bill 333, sufficient evidence was presented at the 2014 trial to support continued imposition of the enhancement. 1. Applicable standard We review this contention under the Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824] (Chapman) harmless error standard. (People v. Cooper (2023) 14 Cal.5th 735, 738, 742–746 [applying Chapman in concluding that inadequate consideration of Assembly Bill 333 was not harmless beyond a reasonable doubt]; see also Tran, supra, 13 Cal.5th at p. 1207 [accord].) “By requiring proof for a gang enhancement that the benefit to the gang was more than reputational, Assembly Bill No. 333 essentially adds a new element to the enhancement. When jury instructions are deficient for omitting an element of an offense, they implicate the defendant’s federal constitutional rights, and we review for harmless error under the strict standard of [Chapman, supra].” (People v. Sek (2022) 74 Cal.App.5th 657, 668 (Sek).) 2. Gang evidence The gang evidence presented at the 2014 trial included the following: Los Angeles Police Officer Robert Hargrove testified as the prosecution’s gang expert. He described criminal street gangs as 8 groups of three or more people whose members share a unifying sign, symbol, or word and collectively or individually engage in a pattern of criminal conduct, and stated that gangs use violence within their territory to instill fear and command respect, which discourages community members from cooperating with police. Officer Hargrove had investigated many crimes involving the Westside Wilmas, a long-established and large gang in the Wilmington neighborhood of Los Angeles. Officer Hargrove authenticated certified records of conviction for two Westside Wilmas members, one convicted in October 2013 of murder and robbery committed in 2011, and the second convicted in February 2013 of murder, robbery, and assault committed in 2011. According to Hargrove, in gang culture, the question, “Where are you from?” is both a threat and a challenge, directed at someone believed to be a rival gang member or otherwise a threat to the gang. Officer Hargrove believed that appellant was a Westside Wilmas member based on several factors, including appellant’s prior admissions to him and other officers during street contacts, as well as his gang tattoos. Hargrove opined that the attempted murder was committed for the benefit of the gang because it occurred in gang territory, it happened in a public place, and appellant challenged the victim with “Where are you from?” In Hargrove’s view, the violent act increased the gang’s control over the community and warned the public that people on the wrong side of the gang could get hurt. 3. Analysis The jury’s finding on the gang allegation in 2014 was made prior to the changes to section 186.22 and without the benefit of jury instructions on the elements added by Assembly Bill 333. “With the relevant aspects of Assembly Bill 333 applying retroactively, this disconnect with the law as it has since been amended constitutes error affecting . . . the true findings as to the gang enhancements.” (People v. Aguirre (2025) 18 Cal.5th 629, 715 (Aguirre).) Under Chapman, if 9 “ ‘there is any reasonable possibility that the error might have contributed to the’ finding, vacatur is required.” (In re A.M. (2024) 102 Cal.App.5th 557, 570.) It is apparent that the gang evidence presented at appellant’s trial was insufficient to meet Assembly Bill 333’s expanded requirements. For example, the expert testimony did not satisfy section 186.22, subdivision (e)(1)’s standards for showing predicate offenses. In testifying as to an October 2013 conviction for murder and robbery and a separate February 2013 conviction of murder, robbery, and assault, Officer Hargrove did not speak to whether the offenses involved two or more gang members, whether the offenses commonly benefited the gang, or whether the benefit was more than reputational. Officer Hargrove likewise did not testify as to whether the attempted murder committed by appellant provided a common benefit to the gang that was “more than reputational.” (§ 186.22, subd. (g).) Hargrove opined that the crime increased the gang’s control over the community and served as a warning to the public, which are largely reputational benefits. The testimony did not clearly describe the sort of non-reputational common benefit provided for in the statute: “Examples of a common benefit that are more than reputational may include, but are not limited to, financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a potential current or previous witness or informant.” (Ibid.) Based on the evidence that was presented, a rational fact finder could have found that the prosecution did not prove beyond a reasonable doubt qualifying predicate offenses or that appellant’s offense provided a common benefit to the gang that was more than reputational. Because the absence of findings made under the new standard was not harmless, we must reverse the true finding on the gang enhancement. (See Aguirre, supra, 18 Cal.5th at p. 717.) The People argue in their briefing that, in the event of reversal on the gang enhancement, the matter should be remanded with 10 directions that the prosecution be permitted to retry the enhancement and meet its burden of proof pursuant to Assembly Bill 333’s new requirements. This position is correct. (See Sek, supra, 74 Cal.App.5th at pp. 669–670 [allowing for retrial of gang enhancement upon remand]; People v. Lopez (2021) 73 Cal.App.5th 327, 346 [accord].) Regardless of the outcome, appellant is entitled to full resentencing on remand. (Monroe, supra, 85 Cal.App.5th at p. 402.) II. Imposition of upper term For conviction on the fourth count, for assault with a semiautomatic firearm, appellant received an upper term sentence of 9 years (§ 245, subd. (b)) plus an upper term of 10 years for personal use of an assault weapon (§ 12022.5, subd. (b)). Appellant contends that the trial court erred in ruling on his resentencing petition by failing to reduce these to middle terms. Senate Bill No. 567 (2021–2022 Reg. Sess., ch. 731, § 1.3) (Senate Bill 567) amended section 1170 to prohibit sentencing courts from imposing the upper term unless aggravating factors are tried and found true by a jury or the court in a court trial, or by stipulation. (Pen. Code, § 1170, subd. (b).) The resentencing court in 2024 did not address the effect of this change in the law in maintaining the originally imposed upper terms on count 4. On the other hand, section 1172.75, subdivision (d)(4) states: “Unless the court originally imposed the upper term, the court may not impose a sentence exceeding the middle term unless there are circumstances in aggravation that justify the imposition of a term of imprisonment exceeding the middle term, and those facts 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.” The trial court likewise did not consider this statutory language at the resentencing hearing. Respondent contends that appellant has forfeited any argument on the issue because his counsel affirmatively withdrew the claim at the hearing. While in most cases this claim of forfeiture would be 11 correct, here it is moot. That is because, upon remand, appellant is entitled to a full resentencing hearing. (See Monroe, supra, 85 Cal.App.5th at p. 402; see also People v. Esquivias (2026) 20 Cal.5th 734, 754 [“when a court is initially required to reexamine a petitioner’s original sentence, the full resentencing rule entitles the court ‘to rethink the entire sentence to achieve its original and presumably unchanged goal’ ”].) Appellant therefore may properly raise the issue at the resentencing hearing following remand. We note that an issue similar to the one presented here is currently pending before our Supreme Court. In People v. Eaton (Apr. 15, 2025, S289903), the court will resolve the following issue: “May a trial court reimpose a previously imposed upper term sentence under Penal Code section 1172.75, subdivision (d)(4) where the facts underlying one or more aggravating circumstances were neither stipulated to by the defendant nor found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial (cf. Pen. Code, § 1170, subd. (b)(2); id., § 1172.75, subd. (d)(2))?” That case—which is fully briefed and is likely to be decided by the Supreme Court before any further trial court hearings in this matter—should provide the trial court with guidance. 12  DISPOSITION The trial court’s resentencing order issued on July 1, 2024, is vacated and the matter is remanded to the trial court for a full resentencing hearing under Penal Code section 1172.75. The finding on the gang enhancement (Pen. Code, § 186.22, subd. (b)(1); count 1) is reversed. The prosecution may elect to retry the gang enhancement under current law. NOT TO BE PUBLISHED. LUI, P. J. We concur: CHAVEZ, J. GOORVITCH, J. 13