Full Opinion

Filed 10/23/26 P. v. Hagar CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT THE PEOPLE, B345631 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. KA087094-01) v. JOSEPH TOLIVER HAGAR, Defendant and Appellant. APPEAL from a judgment of the Superior Court of Los Angeles County, Jacqueline Lewis, Judge. Reversed with directions. Brad J. Poore, 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, Stephanie C. Brenan and Melanie Dorian, Deputy Attorneys General, for Plaintiff and Respondent. _________________________ INTRODUCTION We find this matter appropriate for disposition by a memorandum opinion in accordance with the California Standards of Judicial Administration, section 8.1. (See People v. Garcia (2002) 97 Cal.App.4th 847, 850–855 [use of memorandum opinions].) Both parties have filed requests for judicial notice. Both requests are granted. On November 2, 2009, a jury convicted appellant Joseph Hagar of willful, deliberate, and premeditated attempted murder in violation of Penal Code1 sections 187, subdivision (a), and 664 (count 1) and shooting at an occupied vehicle in violation of section 246 (count 2). In committing the offense, Hagar rode his bicycle to the passenger side of a van driven by the victim who was with her two daughters. He asked the victim where she was from and she named a rival gang. Hagar then yelled a gang name and shot the victim three times, injuring her kidney and spine. The jury also found true as to both counts gang enhancements within the meaning of section 186.22, subdivision (b)(1)(C) and firearm enhancements within the meaning of section 12022.53, subdivisions (b), (c), and (d). On December 8, 2009, the trial court found true the basis for the prior prison terms. Hagar was sentenced to 15 years to life on the attempted murder charge with the gang-related true finding, plus a consecutive term of 25 years to life for the firearm enhancement under section 12022.53, subdivision (d). The court ordered a restitution fine of $1,000 pursuant to section 1202.4, subdivision (b) and restitution in the amount of $314. The court 1 Undesignated statutory references are to the Penal Code. 2 imposed an additional consecutive two years for two prior prison terms within the meaning of section 667.5, subdivision (b). The aggregate sentence of imprisonment was 42 years to life. The court struck the firearm allegations under section 12022.53, subdivisions (b) and (c). The sentence imposed on count 2 was stayed. We affirmed the judgment. (People v. Hagar (Nov. 19, 2010, B220983) [nonpub. opn.].) On January 24, 2023, Hagar filed a motion for recall of sentence and resentencing pursuant to section 1172.75 based on the now-invalid two years imposed for the prior prison terms. On July 5, 2023, he submitted a sentencing memorandum which included letters of support, numerous certificates of achievement while incarcerated, photographs of family and friends, and examples of his artwork. He also submitted under seal a statement in mitigation. The People filed an opposition to which Hagar filed a reply. At the resentencing hearing on March 5, 2025, Hagar asked the court to reduce his sentence to 15 years to life. The People did not oppose this request. The trial court recognized Hagar was entitled to a full resentencing. It struck the two prior prison terms and declined to otherwise change the original sentence. It declined to strike the firearm enhancement in the interests of justice. As to the gang enhancement, the court stated, “[T]he court has no obligations under the gang enhancements to re-do anything.” Hagar timely appealed. DISCUSSION Hagar raises several issues, which the People concede. We agree with and accept the People’s concessions. 3 A. The Standard of Review is Abuse of Discretion Effective January 1, 2020, one-year enhancements under section 667.5 are limited to prior prison terms served for sexually violent offenses; enhancements based on prior prison terms served for other offenses are legally invalid. (§ 667.5, subd. (b); Stats. 2019, ch. 590, § 1.) Those defendants whose sentences include now-invalid prior prison term enhancements are entitled to recall of their sentences and full resentencing. (§ 1172.75, subds. (b), (c); People v. Burgess (2022) 86 Cal.App.5th 375, 380.) At resentencing, the court must apply the sentencing rules of the Judicial Council and apply 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. (§ 1172.75, subd. (d)(2).) We review a trial court’s resentencing decision under section 1172.75 for abuse of discretion, which asks whether the court’s ruling falls within the bounds of reason. (People v. Garcia (2024) 101 Cal.App.5th 848, 857.) B. The Gang Enhancement Must Be Vacated under Assembly Bill No. 333 Effective January 2022, Assembly Bill No. 333 (2021–2022 Reg. Sess.) (Assembly Bill 333) made significant changes to the elements of the section 186.22 gang enhancement and those changes apply to all non-final judgments. (People v. Tran (2022) 13 Cal.5th 1169, 1206–1207.) When Hagar was resentenced pursuant to section 1172.75, he was entitled to the benefits of Assembly Bill 333 because his judgment became nonfinal. (Ibid.) Incorrectly, the trial court determined that it was not obligated to take any action under Assembly Bill 333 in resentencing Hagar. 4 Both parties agree, as do we, that the evidence at trial was insufficient to satisfy the new narrower requirements of Assembly Bill 333, that is, the evidence failed to show that the gang members “ ‘ “collectively . . . engaged in a pattern of criminal gang activity” ’ ” or that the predicate offense “ ‘ “commonly benefited” ’ ” the gang in ways that were “ ‘ “more than reputational. ” ’ ” (People v. Clark (2024) 15 Cal.5th 743, 749, 752.) The testimony therefore fell short of establishing the organizational nexus between the predicate offenses and the gang and its goals, as required by the current version of section 186.22. (Clark, at p. 762; People v Fletcher (2025) 18 Cal.5th 576, 583.) As a result, we vacate the true findings on the gang enhancement and remand the matter for resentencing, and to permit the People to retry the gang enhancement if they choose to do so. (People v. Lamb (2024) 16 Cal.5th 400, 456.) We note that the gang enhancement was used to sentence and resentence Hagar to a mandatory minimum sentence of 15 years to life on the two convictions pursuant to section 186.22, subdivision (b)(4)(B). Citing People v. Mancebo (2002) 27 Cal.4th 735, 743, and People v. Anderson (2020) 9 Cal.5th 946, 964, Hagar contends the mandatory minimum enhancement should never have been imposed, either initially or upon resentencing, because he received no notice that the People intended to pursue it. The enhancement was not pled in the information. Because we have vacated the gang enhancement and ordered Hagar to be resentenced, we conclude the issue is moot. If the People intend to pursue the mandatory minimum should the gang enhancement be proven upon remand, they are aware of their notice and charging obligations. 5 C. The Restitution Fine under Section 1202.4 Must be Vacated The trial court imposed a $1,000 restitution fine under section 1202.4. A restitution fine pursuant to section 1202.4 is paid into a statewide pool to compensate crime victims. (§ 1202.4, subds. (a)(3), (b), (c) & (e).) Effective January 1, 2025, a section 1202.4 fine is “unenforceable” after ten years and any portion of a judgment imposing that fine is “vacated” at that time. Section 1465.9, subdivision (d) provides: “Upon the expiration of 10 years after the date of imposition of a restitution fine pursuant to section 1202.4, the balance, including any collection fees, shall be unenforceable and uncollectible and any portion of a judgment imposing those fines shall be vacated.” (§ 1465.9, subd. (d); Stats. 2024, ch. 805, § 1 (Assem. Bill No. 1186 (2024–2025 Reg. Sess.), eff. Jan. 1, 2025).) The fine here was initially imposed in 2009 and in 2019, the balance became uncollectible under section 1465.9 and that portion of the judgment became void by operation of law. The unpaid balance of the judgment is vacated. (People v. Greeley (2021) 70 Cal.App.5th 609, 626–627; People v. Lopez-Vinck (2021) 68 Cal.App.5th 945, 953.) D. Calculation of Custody Credits Must Be Corrected The parties agree that Hagar is entitled to a total of 5,755 actual days of custody credit. We agree as well. The trial court appeared to calculate 5,566 days. The trial court shall transmit a corrected abstract of judgment to the California Department of Corrections and Rehabilitation reflecting the correct actual custody credit calculation. 6 DISPOSITION The judgment is reversed and the matter is remanded for retrial of the gang allegations, if the People so elect, and resentencing. The trial court is directed to vacate the restitution fine, to correct the calculation of actual custody credits, and to send a corrected abstract of judgment to the California Department of Corrections and Rehabilitation. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS STRATTON, P. J. We concur: WILEY, J. SCHERB, J. 7