Filed 5/6/22 P. v. Crockett CA2/3

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Elden Fox, Judge. Affirmed in part, reversed in part and remanded for further proceedings.

Christopher Nalls and Nancy L. Tetreault, 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, Colleen M. Tiedemann and Idan Ivri, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

A jury convicted defendant and appellant Willie Crockett of multiple counts of attempted murder, robbery and attempted robbery, assault with a firearm, shooting at an inhabited dwelling, and possession of a firearm by a felon, with gang and firearm enhancements. Crockett appealed, contending: (1) there was insufficient evidence to support certain of the gang enhancements; (2) the trial court erred by admitting expert gang testimony in violation of state law and his confrontation rights (People v. Sanchez (2016) 63 Cal.4th 665); (3) one of the premeditated attempted murder convictions was not supported by sufficient evidence of premeditation; and (4) the matter had to be remanded to allow the trial court to exercise its discretion to strike or dismiss the firearm enhancements pursuant to then-recent amendments to Penal Code section 12022.53.[1] This court affirmed the judgment of conviction in 2018, but remanded for correction of a sentencing error and to allow the court to exercise its discretion to strike or dismiss the firearm enhancements.

The California Supreme Court granted review and, after passage of Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437), transferred the matter back to us. We vacated our 2018 opinion and again affirmed the judgment, vacated the sentence, and remanded for the court’s exercise of its sentencing discretion. The Supreme Court again granted review. It has now transferred the matter back to us a second time for reconsideration in light of Senate Bill No. 775 (2021–2022 Reg. Sess.) (Senate Bill 775). Additionally, appellant has briefed the impact on his case of another new legislative enactment, Assembly Bill No. 333 (2021–2022 Reg. Sess.) (Assembly Bill 333).

We conclude that, as to one of the premeditated attempted murder charges, instruction on the natural and probable consequences doctrine was improper under Senate Bills 1437 and 775, and we reverse that count, which may be retried on remand. We also conclude that certain changes made by Assembly Bill 333 apply retroactively to this case and require reversal of the section 186.22 gang enhancements, which also may be retried. Accordingly, we affirm in part, reverse in part, and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts

a. Robbery of Wachovia Bank (counts 1–3)

On April 30, 2009, Crockett entered a Los Angeles branch of Wachovia Bank. He approached Samir A., a bank teller, and presented a note announcing that a robbery was in progress and that he had a bomb. As Samir gathered money, Crockett proceeded to Christina M., the teller next to Samir, and demanded money from her. Crockett also handed the note to a third teller, Anthony C. All three tellers gave Crockett cash containing dye packs.

Shortly after Crockett left the bank, a bank employee saw a plume of red smoke consistent with a dye pack exploding. Los Angeles Police Department (LAPD) officers later found some items stained with red dye in an alley near the bank. Crockett’s fingerprints and handwriting were found on the robbery note. Samir and Anthony identified Crockett as the robber from six-pack photographic lineups.

b. Pawnshop robbery and shooting (counts 4–9, 11)

On June 9, 2009, Jan S., Jose C., Jose R., and Robert H. were working at the Long Beach Pawn Shop. Crockett entered the store, approached Jan, and said he wanted to buy a ring for his girlfriend. Jan referred Crockett to Robert, who was in charge of selling jewelry. Robert was armed with a handgun because there had been two prior attempted robberies at the store.

When Robert offered to assist him, Crockett yelled out “Now,” pulled a handgun from his waistband, and announced a robbery. A second gunman ran into the store and jumped over the counter. When Crockett aimed his gun at Jan, Robert shot at him; Robert believed he had hit Crockett in the leg. The second gunman jumped back over the counter and started crawling toward the front door with Crockett. A third man at the front door then started shooting into the store. Robert was wounded by a gunshot to the face, but he was not sure which of the three perpetrators had shot him.

Long Beach Police Detective Donald Collier testified that blood recovered from the sidewalk outside the pawnshop was matched to a man named Baleegh Brown. From the surveillance videotape, Detective Collier identified Brown as the second robber to enter the pawnshop. Detective Collier testified that, based on his review of a surveillance videotape of the incident, Crockett fired his gun into a display case immediately after Robert shot him. A gun similar to or the same as the one Crockett held during the robbery was recovered at the scene; it was jammed.

Detective Collier was not able immediately to identify Crockett, but ultimately found a photograph on Myspace of a man wearing the same orange suit Crockett had worn during the robbery. All four of the pawnshop employees, as well as a customer, Tracy W., identified Crockett from photo arrays as one of the perpetrators.

On the day of the attempted pawnshop robbery, Detective Collier contacted local hospitals to see if any of them had treated a patient for gunshot wounds; none had.

c. July 1, 2009 attempted murders of peace officers and related crimes during Crockett’s arrest (counts 12, 15, 16, 19, 22, 23, 26, 27)

Crockett was a member of the Black P Stone (BPS) gang. LAPD Detective Cedric Washington, who was familiar with the gang, was able to trace Crockett to an apartment 187 in a building located on Martin Luther King Junior Boulevard, and obtained a search warrant for the apartment.

On July 1, 2009, police observed Crockett and others in apartment 187. Detective Washington went to the location and confirmed Crockett’s presence; several known BPS members, including Christopher Singh, J.B. Jennings, and Richard Bennett were also seen in the apartment. When a SWAT unit arrived at the scene, Crockett ran outside onto a patio, noticed the police presence, and ran back inside, where he was seen peering out from the apartment windows. Members of the SWAT unit had already started to enter the apartment building, but after learning that the operation had been compromised, they stopped in front of a fire door leading to the hallway where apartment 187 was located. Detective Washington testified: “mmediately after Crockett went inside, I heard several . . . gunshots going off from a rifle. Very distinguishable sound of an AK47.” Two minutes later, Crockett ran out of apartment 187 and into the hallway where the police were waiting. Crockett was unarmed; he was tackled and arrested.

An LAPD criminalist testified that the gunshots fired from apartment 187 had gone through an adjoining wall to apartment 189; two bullets were found embedded in a second wall separating apartment 189 from the apartment building hallway. Inside apartment 187, police found several loaded weapons: an AK47, a shotgun, and a .38-caliber revolver. They also found a bottle of lidocaine, a bandage in an open packet, two bottles of Neosporin, scissors, gloves, gauze, iodine, bottles of hydrogen peroxide, latex gloves, and a medical dressing. Detective Collier, who was present at Crockett’s arrest, characterized these as “a lot of medical items . . . that could be used to cleanse or care for a wound.” As noted, [i]ante, Detective Collier had checked with hospitals on the day of the pawnshop robbery for reports of gunshot victims, but he had not learned of any. X-rays taken in November 2011 disclosed two bullets lodged in Crockett’s pelvis. Medical testimony indicated that such a wound would not necessarily require hospital treatment.

d. Gang expert’s testimony

LAPD Detective Phil Rodriguez testified as an expert about BPS. He described BPS as one of the largest African-American gangs in the country, with 950 to 1,000 members in Los Angeles, and about 15,000 members nationwide. He explained that the gang was roughly divided into two main cliques: the Jungles clique and the Bities clique. The gang’s primary activities included robbery, assault with deadly weapons, narcotics trafficking, murder, attempted murder, carjacking, and rape.

Detective Rodriguez testified that Crockett was known as “Janky” or “Corn Nut.” Tattoos on Crockett’s neck and torso signified his gang membership and that he was “part of an inner [clique] within the Jungles” clique known as “the Stevely Crew.” The Stevely Crew was “known for getting money by any means necessary, commonly bank robberies and street robberies.”

Detective Rodriguez believed Crockett to be an active BPS member because Crockett “was observed . . . frequenting with other gang members. He was frequenting gang locations with gang tattoos, self-admitted to gang officers, and was arrested for gang crimes.” Rodriguez identified Baleegh Brown and Keshawn Tyrell as the other men shown in the video of the pawnshop robbery.

Presented with a set of hypothetical questions based on the facts of this case, Detective Rodriguez testified that the attempted pawnshop robbery and the shooting at apartment 187 would have inured to the benefit of both the BPS gang and the individual participants: “The effect would be people in the gang would know who are actively doing these takeover robberies. . . . [¶] And part of the recognition you get is how you’re taken into custody. How violent you were. Did you lead them on a pursuit? Did you fight with officers? Did you shoot it out with officers? That is all taken into account as far as gang members and your status in the gang. That’s a big factor in being a gang member.”

A gang member who shoots at police who are trying to serve a search warrant increases his reputation, since it shows “you didn’t go down easy. And younger gang members and even older gang members, they take pride in that. It glorifies—a lot of these pursuits and shootings are on the news broadcast, so . . . you know what gang may be attached to that specific location. [¶] A lot of the gang members who resist when they’re taken into custody, they are glorified. When I say glorified . . . for example, Mr. Crockett. I monitor social media. They are constantly—on his birthday they are requesting for Free Janky Stone, Real, True BPS. They’re glorified.”

Detective Rodriguez testified that violent resistance to a warrant also helps the gang: “Part of it is the recruitment. Young gang members want to be part of . . . one of the bigger and violent gangs. Part of it is money. The larger the territory you own . . . for example, Crenshaw. You’ve got narcotics trafficking, robberies, burglaries, and not many people are going to confront BPS.”

e. Defense evidence

The defense rested without putting on any evidence.

2. Procedural background

a. Verdicts and sentencing

The jury convicted Crockett of three counts of robbery, with gang enhancements, arising out of the Wachovia Bank robbery (§§ 211, 186.22, subd. (b)); one count of premeditated attempted murder, one count of assault with a semiautomatic firearm, and four counts of attempted robbery, with firearm use and gang enhancements, arising out of the pawnshop attempted robbery (§§ 664, 187, subd. (a), 245, subd. (b), 211, 12022.5, 12022.53, 186.22, subd. (b)); and three counts of attempted premeditated murder of a peace officer, one count of shooting at an inhabited dwelling, and three counts of assault on a peace officer with a semiautomatic firearm, with firearm use and gang enhancements, arising out of the July 1, 2009 shooting incident (§§ 664, 187, 246, 245, subd. (d)(2), 12022.5, 12022.53, 186.22, subd. (b)).[2]

The trial court sentenced Crockett to a total prison term of 238 years 8 months to life. That sentence did not include any time relating to the jury’s true findings on the gang enhancements.

b. Prior appeals

Crockett appealed, raising contentions of evidentiary insufficiency, improper admission of evidence, and instructional error, and requesting remand to allow the trial court to exercise its discretion to strike or dismiss the firearm enhancements pursuant to then-recent amendments made by Senate Bill No. 620 (2017–2018 Reg. Sess.) (Senate Bill 620). We affirmed the judgment of conviction, but remanded for correction of sentencing errors and to allow the trial court to exercise its discretion under Senate Bill 620. (People v. Crockett (Feb. 16, 2018, B267614) [nonpub. opn.].)

Our Supreme Court granted review and deferred further action pending disposition of People v. Mateo (S232674). Mateo presented the question of whether, to convict an aider and abettor of attempted willful, deliberate, and premeditated murder under the natural and probable consequences doctrine, a premeditated attempt to murder had to have been a natural and probable consequence of the target offense. Thereafter, the Legislature enacted Senate Bill 1437, which, effective January 1, 2019, amended the law governing application of the natural and probable consequences doctrine as it related to murder. The Supreme Court then transferred this matter back to us with directions to vacate our 2018 opinion and reconsider the cause in light of Senate Bill 1437.

We did so, and again affirmed the judgment but remanded for resentencing. In accordance with the law in effect at the time, we concluded that Senate Bill 1437 did not apply to attempted murder, and did not apply retroactively to nonfinal judgments on direct appeal. We again rejected Crockett’s contentions of evidentiary error, insufficiency of the evidence, and instructional error. (People v. Crockett (Dec. 12, 2019, B267614) [nonpub. opn.].)

On March 11, 2020, our Supreme Court again granted review pending resolution of People v. Lopez, S258175.[3] While the appeal was pending, the Legislature enacted Senate Bill 775 and Assembly Bill 333, both effective January 1, 2022. On December 22, 2021, the Supreme Court transferred the matter back to us with directions to vacate our 2019 decision and reconsider the cause in light of Senate Bill 775. We have vacated our 2019 opinion, and have considered supplemental briefing from the parties, including regarding the effect of Assembly Bill 333 on Crockett’s convictions. (See Cal. Rules of Court, rule 8.200(b)(2).)

DISCUSSION

1. Instruction on the natural and probable consequences doctrine requires reversal of count 4

Crockett contends that under Senate Bills 1437 and 775, instruction on the natural and probable consequences doctrine on count 4, the attempted murder of Robert H. during the pawnshop incident, was error and requires reversal of that count. We are compelled to agree.

a. Senate Bills 1437 and 775

Senate Bill 1437 limited accomplice liability under the felony-murder rule and eliminated the natural and probable consequences doctrine as it relates to murder. (People v. Lewis (2021) 11 Cal.5th 952, 957, 959; People v. Gentile (2020) 10 Cal.5th 830, 842–843.) To achieve these goals, Senate Bill 1437 added section 189, subdivision (e) (limiting application of the felony-murder rule) and section 188, subdivision (a)(3) (stating that “[m]alice shall not be imputed to a person based solely on his or her participation in a crime.”) As amended, section 188 “bars a conviction for first or second degree murder under a natural and probable consequences theory.” (Gentile, at p. 846.) Senate Bill 1437 also added section 1170.95, which created a procedure whereby persons convicted of murder under a now-invalid felony-murder or natural and probable consequences theory may petition for vacation of their convictions and resentencing.

After trial and this court’s previous opinions in this case, Senate Bill 775 changed the law in several respects. Two are relevant here. First, Senate Bill 775 added subdivision (g) to section 1170.95. That subdivision provides, “A person convicted of murder, attempted murder, or manslaughter whose conviction is not final may challenge on direct appeal the validity of that conviction based on the changes made to Sections 188 and 189 by Senate Bill 1437.” Subdivision (g) supersedes Gentile’s holding that Senate Bill 1437’s ameliorative provisions do not apply on direct appeal (see People v. Gentile, supra, 10 Cal.5th at p. 839), and allows Crockett to challenge the validity of his conviction under the amended law in this appeal. (See People v. Hola (April 11, 2022, C087459) ___Cal.App.5th ___ [2022 Cal.App.Lexis 303, *9–*10]; People v. Glukhoy (April 18, 2022, C084169) __ Cal.App.5th __ [2022 Cal.App.Lexis 322, *11].)

Second, Senate Bill 775 expanded Senate Bill 1437 to reach attempted murder. As originally enacted, section 1170.95’s express language encompassed only murder, not attempted murder or manslaughter. Accordingly, prior to enactment of Senate Bill 775, California appellate courts concluded that section 1170.95 did not extend to convictions for those offenses. (See People v. Flores (2020) 44 Cal.App.5th 985, 993–994.) Senate Bill 775 amended section 1170.95 to expressly encompass attempted murder and manslaughter. (§ 1170.95, subd. (a); see also subd. (d)(1); People v. Porter (2022) 73 Cal.App.5th 644, 651–652; People v. Coley (Mar. 23, 2022, A159927) __ Cal.App.5th __ [2022 Cal.App.Lexis 319, *5]; Stats. 2021 ch. 551, § 1 [Senate Bill 775 clarifies “that persons who were convicted of attempted murder or manslaughter under a theory of felony murder and the natural and probable consequences doctrine are permitted the same relief as those persons convicted of murder under the same theories.”].) Thus, “Senate Bill 775 eliminates the natural and probable consequences doctrine as a basis to prove an accomplice committed attempted murder.” (People v. Sanchez (2022) 75 Cal.App.5th 191, 196.)

Under In re Estrada (1965) 63 Cal.2d 740, we assume that, absent contrary evidence, an amendment reducing punishment for a crime applies retroactively to all nonfinal judgments. (Id. at pp. 745–746; see People v. Brown (2012) 54 Cal.4th 314, 323; People v. Garcia (2018) 28 Cal.App.5th 961, 973.) Such is the case with Senate Bill 775. (People v. Montes (2021) 71 Cal.App.5th 1001, 1006–1007; People v. Porter, supra, 73 Cal.App.5th at p. 652.) For retroactivity purposes, a judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed. (People v. Vieira (2005) 35 Cal.4th 264, 306.) Crockett’s direct appeal was not final when Senate Bill 775 took effect, and therefore the amendments apply retroactively to him.

b. The instruction was not harmless beyond a reasonable doubt

In accordance with the law in effect at the time, Crockett’s jury was instructed, as to count 4, that he could be found guilty of murder under three different theories: as the actual perpetrator (CALJIC Nos. 3.00, 8.66); as a direct aider and abettor (CALJIC No. 3.01); and under the natural and probable consequences doctrine (CALJIC No. 3.02). As to the latter theory, the jury was instructed, in pertinent part: “One who aids and abets another in the commission of a crime or crimes is not only guilty of that crime or those crimes, but is also guilty of any other crime committed by a principal which is a natural and probable consequence of the crimes originally aided and abetted. [¶] In order to find the defendant guilty of the crime of Attempted Murder as charged in Count[ ] 4 under this theory, you must be satisfied beyond a reasonable doubt that: [¶] 1. The crime or crimes of Attempted Robbery were committed; [¶] 2. That the defendant aided and abetted that crime; [¶] 3. That a co-principal in that crime or crimes committed the crime of Attempted Murder; and [¶] 4. The crime of Attempted Murder as charged in Count[ ] 4 was a natural and probable consequence of the commission of the crimes of Attempted Robbery as charged in Counts 6, 7, 8, and 9 and Assault With a Semiautomatic Firearm as charged in Count 5. [¶] In determining whether a consequence is ‘natural and probable,’ you must apply an objective test, based not on what the defendant actually intended, but on what a person of reasonable and ordinary prudence would have expected likely to occur. The issue is to be decided in light of all of the circumstances surrounding the incident. A ‘natural’ consequence is one which is within the normal range of outcomes that may be reasonably expected to occur if nothing unusual has intervened. ‘Probable’ means likely to happen.”

As our discussion of Senate Bills 1437 and 775 makes clear, instruction on the natural and probable consequences doctrine was improper under the amended law. We turn, then to the question of prejudice.

“When a trial court instructs the jury on alternative theories of guilt and at least one of those theories is legally erroneous at the time it was given, we normally assess whether the error was harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18, 24.” (People v. Gentile, supra, 10 Cal.5th at p. 851; People v. Aledamat (2019) 8 Cal.5th 1, 3 (Aledamat).) We “must reverse the conviction unless, after examining the entire cause, including the evidence, and considering all relevant circumstances, [we] determine[ ] the error was harmless beyond a reasonable doubt.” (Aledamat, at p. 3.)

In Aledamat, our Supreme Court “rejected a more demanding standard of review . . . that would have required the court to examine the verdict and the record and to find evidence in the record to support a determination, beyond a reasonable doubt, that the jury actually relied on the valid, not the invalid, theory.” (People v. Thompkins (2020) 50 Cal.App.5th 365, 399; see People v. Glukhoy, supra, __ Cal.App.5th at p. __ [2022 Cal.App.Lexis at p. *26]; People v. Stringer (2019) 41 Cal.App.5th 974, 984.) Aledamat concluded, “no higher standard of review applies to alternative-theory error than applies to other misdescriptions of the elements. The same beyond a reasonable doubt standard applies to all such misdescriptions, including alternative-theory error.” (Aledamat, supra, 8 Cal.5th at p. 9.) “It is enough if we can say, beyond a reasonable doubt, the legally inadequate theory did not contribute to the verdict.” (Thompkins, at p. 399.)

Aledamat suggested various nonexclusive methods of evaluating prejudice. “An examination of the actual verdict may be sufficient to demonstrate harmlessness, but it is not necessary.” (Aledamat, supra, 8 Cal.5th at p. 13.) The reviewing court may examine “what the jury necessarily did find” and consider “whether it would be impossible, on the evidence, for the jury to find that without also finding the missing fact as well.” (Id. at p. 15, citing California v. Roy (1996) 519 U.S. 2, 7, (conc. opn. of Scalia, J.).) Circumstances that may factor into the prejudice calculus include the parties’ arguments, questions posed by the jury, and the instructions as a whole. (Id. at pp. 12, 13–14; People v. Baratang (2020) 56 Cal.App.5th 252, 263.) Alternative-theory error is also harmless where, “based on evidence that is overwhelming and uncontroverted,” the reviewing court is “convinced on appeal, beyond a reasonable doubt, that ‘ “the jury verdict would have been the same absent the error.” ’ [Citation.]” (People v. Thompkins, supra, 50 Cal.App.5th at p. 401, citing People v. Merritt (2017) 2 Cal.5th 819, 832.)

We cannot say the instruction was harmless here. To prove Crockett was guilty of attempted murder as either the perpetrator or as a direct aider and abettor, the People were required to prove he had the intent to kill Robert H. (People v. Perez (2010) 50 Cal.4th 222, 229; People v. Nguyen (2015) 61 Cal.4th 1015, 1054.)

Examination of the verdicts themselves does not establish that the jury determined Crockett had the intent to kill and discounted the natural and probable consequences theory. The jury found Crockett personally used a firearm. But it was not asked to, and did not find, that Crockett personally and intentionally discharged a firearm; instead, it found “the defendant and/or a principal personally and intentionally discharged a firearm.” As the prosecutor acknowledged, personal use does not require that the gun be discharged. It is possible that the jury made the finding it did without necessarily finding Crocket had the intent to kill. (See Aledamat, supra, 8 Cal.5th at pp. 14–15.) Thus, we cannot infer from the verdict itself that the natural and probable consequences instruction was harmless.

Nor can we say, as in Merritt, that the evidence was uncontroverted and overwhelming. In Merritt, the trial court neglected to instruct on most of the elements of robbery. (Merritt, supra, 2 Cal.5th at p. 823.) Our Supreme Court found this serious error harmless under the Chapman standard. (Merritt, at p. 822.) The defendant’s defense was “solely that he was not the perpetrator.” (Ibid.) He conceded that the actual perpetrator, “whoever he was, was guilty of robbery, i.e., that all of the elements of robbery were present.” (Ibid.) “Because of this concession and other circumstances, the error, serious though it was, was harmless beyond a reasonable doubt.” (Ibid.) The evidence in Merritt that the robberies occurred was overwhelming and uncontroverted: both victims provided unchallenged testimony that they were robbed, and the crimes were caught on videotape. (Id. at p. 832.) “The jury resolved the only contested issue in the prosecution’s favor when it found defendant was the perpetrator.” (Ibid.)

Here, in contrast, the key issue of intent to kill was neither conceded nor overwhelmingly shown by the evidence. As to the pawnshop offenses, the defense focused primarily on a mistaken identity argument. However, counsel never conceded that the perpetrator alleged to be Crockett had the intent to kill. Instead, counsel argued, “there’s no showing that anybody had the specific intent to kill . . . .” When questioning Detective Collier, defense counsel elicited that Collier did not see a muzzle flash from Crockett’s gun on the videotape. The prosecutor stated at one point, “We have evidence that gun was what we call stovepiped [jammed] but that a shot may have gone off. We don’t know.” Later, he argued that the video showed Crockett fired a shot after Robert shot him: “We know the defendant’s gun discharged . . . .” But even assuming Crockett did fire his gun, he did so only after being shot, suggesting his action might have been reflexive and done without the intent to kill. Detective Collier described the events shown on the video as chaotic, and thought that at least one of the shooters was engaging in “panic fire. Spray and pray. Shoot and see what happens.”

A prosecutor’s arguments that the natural and probable consequences doctrine supports a finding of guilt may also demonstrate prejudicial error. (See People v. Baratang, supra, 56 Cal.App.5th at p. 264 [prejudicial error has been found where a prosecutor argues the legally invalid theory at length]; People v. Powell (2021) 63 Cal.App.5th 689, 715 [“Courts look to the prosecutor’s argument as a relevant circumstance in determining whether instructional error is harmless”]; In re Rayford (2020) 50 Cal.App.5th 754, 783.) Here—correctly at the time—the prosecutor argued the natural and probable consequences theory was an alternate, separate way the jury could render a guilty verdict. (Contrast Aledamat, supra, 8 Cal.5th at pp. 13–14 [under instructions given and parties’ arguments, it was unlikely jury would have believed there were two ways it could find a box cutter to have been a deadly weapon].) The prosecutor here urged: “You have another concept called aiding and [a]betting. What does aiding and abetting mean? Aiding and abetting basically means you get three guys together who are committing a crime. Everyone has their part in it. Everyone’s helping everyone else with the intent of we’re going to do a robbery. When you have that, anything that is natural and probable, and that’s your call. If something is a natural and probable consequence, then everyone is guilty for that. You don’t get lucky because your gun jammed or you weren’t the one that shot. [¶] So if three people go to do a robbery and during the robbery everyone knows everyone’s got guns and someone shoots someone or someone kills someone, it’s your call, but I’m going to tell you it is natural and probable. There is no way. You can’t sit there and go, God, I never thought in the world that my buddy would actually pull a gun out or that he would actually shoot or that he’d hurt someone. [¶] So in this case you have assault with a semiautomatic firearm and attempted willful, deliberate and premediated murder. Whether you think it was the defendant that did it or the guy at the door that did it, it does not matter.” This argument not only stressed the natural and probable consequences doctrine; it also merged aiding and abetting principles with it, suggesting Crocket was guilty as an aider and abettor as long as the natural and probable consequences doctrine applied.

Tellingly, it appears likely the jury did rely on the natural and probable consequences theory to find the attempted murder was premediated. The prosecutor argued, “you don’t necessarily need to decide that the defendant had willful, deliberate, premeditated. You can also go with the other guy at the door. . . . Natural and probable consequences.” In closing, the prosecutor argued: “Now, one area that I do want to comment on is the attempted murder. . . . When you look at the defendant getting shot, turning around and then shooting [Robert], I’m going to concede, I don’t know that that is willful, deliberate and premeditated. Definitely attempt murder. You can ask a five-year-old when you point a gun from five feet away and you pull the trigger, there’s only one reason for that. Is it willful, deliberate and premeditated? I don’t know. I don’t know. That’s a jury call. [¶] You don’t need it, though, because, again, on the aiding and abetting I told you about, it’s the guy at the door. And you can watch him on the video, and you see him just watching. And he pulls a gun out and he takes a second and he looks, and if it’s not willful, deliberate, premeditated the first time, a number of shots where he keeps shooting. [¶] . . . As long as you think the guy at the door had it, that’s enough. So I’m going to concede that part, that Willie Crocket, the defendant, did not—or leave it to you.”

In fact, despite the prosecutor’s candor, the jury did find that the attempted murder of Robert was willful, deliberate, and premeditated, strongly suggesting it relied on the natural and probable consequences doctrine to do so. And that being so, we are hard pressed to say that its finding of intent to kill was not likewise based on the doctrine.

Accordingly, we cannot say use of the instruction here was harmless beyond a reasonable doubt. However, the parties do not argue, and we do not believe, that the evidence was insufficient to support the attempted murder verdict in count 4. On remand, therefore, the People must be given a chance to retry the count. (See People v. Hola (2022) __ Cal.App.5th __ [2022 Cal.App.Lexis 303, p. *3, *12–*20].)

2. The gang enhancements

Crockett argues that recent amendments to section 186.22, the gang enhancement statute, require reversal of the gang enhancements in his case. We agree.

1. Assembly Bill 333

“Section 186.22 provides for enhanced punishment when a defendant is convicted of an enumerated 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 any criminal conduct by gang members.’ ” (People v. Delgado (2022) 74 Cal.App.5th 1067, 1085; People v. Lopez (2021) 73 Cal.App.5th 327, 344; § 186.22, subd. (b)(1).) One of the elements necessary to prove a section 186.22, subdivision (b)(1) gang enhancement is that the group alleged to be a gang has engaged in a “pattern of criminal gang activity.” (§ 186.22, subd. (f).) When the instant matter was tried, “pattern of criminal gang activity” was defined as the “ ‘commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more [enumerated] offenses, provided at least one of these offenses occurred after the effective date of [the enacting legislation] and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons . . . .’ ” (People v. Valencia (2021) 11 Cal.5th 818, 829; former § 186.22, subd. (e).) These prior offenses have come to be known as “predicate offenses.” (Valencia, at p. 826.)

Assembly Bill 333, which took effect on January 1, 2022, made significant amendments to section 186.22. The legislation redefined “pattern of criminal gang activity” in five respects, as follows. (1) Previously, the predicate offenses had to have been committed, or convictions had to have occurred, within three years of each other. Now, additionally, the last offense must have occurred within three years of the date the current offense is alleged to have been committed. (§ 186.22, subd. (e)(1).) (2) The amended law expressly states that the predicate crimes must have been committed by “members,” not simply “persons,” as formerly stated. (Ibid.) In contrast to the former law, the predicates must have been gang-related. (People v. Rodriguez (2022) 75 Cal.App.5th 816, 822–823.) (3) The amendments impose a new requirement that the predicate offenses “commonly benefited a criminal street gang, and the common benefit of the offense is more than reputational.” (§ 186.22, subd. (e)(1); Rodriguez, at pp. 822–823.) (4) Looting, felony vandalism, felony theft of an access card or account, and other identity fraud crimes no longer qualify as predicates, while other offenses (kidnapping, mayhem, torture, and felony extortion) now do so qualify. (§ 186.22, subd. (e)(1).) (5) The currently charged offense may not be used to establish the pattern of criminal gang activity. (Id. at subd. (e)(2); see People v. Lopez, supra, 73 Cal.App.5th at p. 345.)

Assembly Bill 333 also modified the definition of “criminal street gang.” Previously, section 186.22 stated that a criminal street gang was “any ongoing organization, association, or group” of three or more persons, whether formal or informal. That language has been changed to “an ongoing, organized association or group of three or more persons, whether formal or informal.” (§ 186.22, subd. (f), italics added; see People v. Delgado, supra, 74 Cal.App.5th at p. 1086; People v. Lopez, supra, 73 Cal.App.5th at p. 344.) The previous definition required that the gang’s “members individually or collectively engage in, or have engaged in,” the pattern of criminal gang activity. (Former § 186.22, subd. (f), italics added). Now, the word “individually” has been excised and the gang’s members must “collectively” engage in, or have engaged in, the pattern of criminal gang activity. (§ 186.22, subd. (f).) The amendment also added a new subdivision that clarifies what it means to benefit the gang: “As used in this chapter, to benefit, promote, further or assist means to provide a common benefit to members of a gang where the common benefit is more than reputational. 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.” (§ 186.22, subd. (g).)[4]

b. Assembly Bill 333 requires reversal of the gang enhancements

Crockett contends Assembly Bill 333’s amendments to section 186.22 apply retroactively to his case and require reversal because his jury was not instructed in accordance with the new law. We agree reversal of the gang enhancements is required.

Preliminarily, we address and reject the People’s argument that we may not consider the effect of Assembly Bill 333, because it was not encompassed in the Supreme Court’s transfer order. California Rules of Court, rule 8.200 (b)(2), expressly states that “Supplemental briefs must be limited to matters arising after the previous Court of Appeal decision in the cause, unless the presiding justice permits briefing on other matters.” (Italics added.) The effect of Assembly Bill 333 could not have been raised earlier in this appeal as the legislation only took effect this year. More to the point, although this matter is several years old due to repeated transfers to consider new legislation, there is at present no extant appellate decision in the case; our prior opinions have been vacated. In his original briefing, Crockett contended that the evidence was insufficient to support the gang enhancements and that the trial court prejudicially erred by admitting gang expert testimony in violation of California law and People v. Sanchez, supra, 63 Cal.4th 665. It is unclear how this court could rule on these contentions at this juncture without considering current law. Crawford v. Workers’ Comp. Appeals Bd. (1989) 213 Cal.App.3d 156, cited by the People, is not to the contrary. Without doubt, application of Assembly Bill 333 is one of the “issues presented.” (See id. at p. 163.)[5]

Crockett is entitled to the ameliorative benefits of the amendments to section 186.22. Assembly Bill 333 does not directly reduce punishment for a gang enhancement, but the Estrada rule also applies where “an enhancement has been amended to redefine to an appellant’s benefit the conduct subject to the enhancement” (People v. Lopez, supra, 73 Cal.App.5th at p. 344), or modifies the elements of a penalty enhancement (People v. Roberts (1994) 24 Cal.App.4th 1462, 1466). Assembly Bill 333 changed the elements of the gang enhancement in a way that potentially favors Crockett, and nothing in the legislation rebuts the Estrada inference of retroactivity. The relevant amendments to section 186.22 therefore apply retroactively to Crockett’s case, which is not yet final. (See People v. Rodriguez, supra, 75 Cal.App.5th at p. 819; People v. E.H. (2022) 75 Cal.App.5th 467, 478; People v. Delgado, supra, 74 Cal.App.5th at p. 1087; People v. Lopez, supra, 73 Cal.App.5th at pp. 343–344.)

The jury was not instructed on all of the elements required under amended section 186.22 when this case was tried in 2017. Crocket focuses on two. First, he argues that under the amended law, the predicates now must be shown to have commonly benefited the gang in a way that is more than reputational. (§ 186.22, subd. (e)(1).) Second, Crockett argues the defendant must have intended, in the charged offense, to provide a common benefit to gang members in a way that was more than reputational. (§ 186.22, subds. (b)(1), (g).) Because these requirements did not exist at the time of trial, the jury was not instructed upon them.

The People provided evidence of two predicate offenses. In the first, Detective Rodriguez testified that BPS gang member Glamalier Escobar was convicted in Los Angeles County Superior Court case No. BA351453 of assault on a peace officer, with a gang allegation. In that case, Detective Rodriguez was assisting detectives in a homicide investigation. The officers attempted to conduct a traffic stop of Escobar, but he led them on a high speed pursuit. When the officers pinned his vehicle behind an apartment complex, Escobar rammed his vehicle into the officers’ vehicle. The officers had apparently exited their vehicle, and Escobar attempted to run them over.

For the second predicate, the People introduced evidence that BPS gang member Brandon Lamar Jones was convicted of 16 or 17 counts of assault with a deadly weapon, as well as one count of robbery. Detective Rodriguez explained that he “assisted Lancaster sheriffs with a crime that Mr. Jones committed in the Palmdale area where he had attended a gang party, was upset that the owner of the party was playing rival Crip gang music, asked him to turn it down or turn it off. They did not want to. He shot at 18 people or 17 people in the party. [¶] At that time, he fled from the party, and while fleeing, he robbed somebody in the front yard of that residence.” Rodriguez assisted with the investigation.

Crockett argues that the instructions did not inform the jury it had to find the predicate offenses benefited the gang in a way that was more than reputational, as now required by section 186.22, subdivision (e)(1). Because the instructions eliminated an element, he asserts, we must determine whether the omission was harmless beyond a reasonable doubt. (See People v. Merritt, supra, 2 Cal.5th at pp. 824–825, 831; People v. E.H., supra, 75 Cal.App.5th at p. 479; People v. Delgado, supra, 74 Cal.App.5th at p. 1090.)

The People argue that the instructional omission was harmless beyond a reasonable doubt because the jury would have found the enhancements true even under Assembly Bill 333’s more stringent requirements. We disagree. We cannot say the jury would have found the predicate crimes commonly benefited the gang in a way that was more than reputational, especially where it was never instructed it had to do so and there was no specific testimony or argument on this point. Contrary to the People’s argument, there was not overwhelming evidence on the issue.

As to the Escobar predicate, the most obvious benefit to Escobar would have been his escape, had he succeeded in thwarting police. The primary benefit of this result would have been to Escobar himself, not to the gang as a whole. Certainly, based on other testimony from the gang expert, the jury could have inferred that refusing to cooperate with and attacking police bolstered Escobar’s reputation in the gang. But under Assembly Bill 333, this reputational benefit alone does not suffice. The People argue that Escobar’s escape would have benefited the gang as a whole because keeping gang members from being arrested “allows the gang members to continue working for the gang and ensures they are not enticed to cooperate with police or prosecutors.” In the absence of instruction, argument, or specific testimony on the point, we cannot determine beyond a reasonable doubt that the jury would have adopted this somewhat attenuated view.

The second predicate likewise fails to show a common benefit to the gang. Shooting at persons at a party because a rival gang’s music was being played might increase the shooter’s reputation as a violent individual who does not tolerate anything to do with rival gangs. But this goes only to his reputation and does not confer on the gang as a whole a non-reputational benefit. The People argue that the amended statute gives, as an example of non-reputational benefits, financial gain (§ 186.22, subd. (g)); the main purpose of a robbery is to steal valuable items; the benefit to the gang in the associated robbery was “obvious and self-evident”; and the instructional omission was harmless. As the People point out, the gang expert testified that funds gleaned from robberies are used to promote “hood days, gang funerals and also gang functions.” In his experience, it was possible that such funds would be kept for the individual gang member’s use, but usually they were used for the entire gang. But there was no evidence of what was taken in the robbery, its value, or whether it was shared with other gang members or was retained by Jones for his own use. Again, we cannot say the instructional omission was harmless beyond a reasonable doubt. (See People v. Rodriguez, supra, 75 Cal.App.5th at pp. 822–823; People v. E.H. supra, 75 Cal.App.5th at p. 479; People v. Sek (2022) 74 Cal.App.5th 657, 668–669 [“to prove harmless error under the Chapman standard, it is not enough to show that substantial or strong evidence existed to support a conviction under the correct instructions”].)

Given the foregoing, the true findings on the gang enhancements must be reversed and the matter remanded to allow the prosecution the option of retrying the enhancements and establishing all elements required by Assembly Bill 333.[6] “The proper remedy for this type of failure of proof—where newly required elements were ‘never tried’ to the jury—is to remand and give the People an opportunity to retry the affected charges.” (People v. E.H., supra, 75 Cal.App.5th at p. 480; see People v. Delgado, supra, 74 Cal.App.5th at p. 1091; People v. Figueroa (1993) 20 Cal.App.4th 65, 71–72 & fn. 2.) Also, firearm allegations under section 12022.53, subdivision (e)(1), which are dependent on the true findings on the gang allegations, are also reversed as to counts 4 through 9.

3. Resentencing on remand

Crockett’s sentence included time imposed for the section 12022.53 firearm enhancements. When the trial court sentenced Crockett in October 2015, imposition of a section 12022.53 firearm enhancement was mandatory and the trial court lacked discretion to strike it. (See People v. Franklin (2016) 63 Cal.4th 261, 273.) Effective January 1, 2018, the Legislature amended section 12022.53, subdivision (h) to give trial courts authority to strike section 12022.53 firearm enhancements in the interest of justice. Crockett contended, in his original appeal, that this legislation applied to his non-final case, which had to be remanded to allow the trial court to exercise its discretion to strike the firearm enhancements. (See, e.g., People v. Watts (2018) 22 Cal.App.5th 102, 119.) In our prior opinions, we agreed and remanded for resentencing. As we are now reversing the gang enhancements and vacating Crockett’s sentence, resentencing will be required either upon remand, should the People opt not to retry count 4 and/or the gang enhancements, or after any retrial. At that time, the trial court may exercise its sentencing discretion in regard to the firearm enhancements. We express no opinion about how the court’s discretion should be exercised.

DISPOSITION

The gang enhancements, the firearm enhancements as to counts 4 through 9, and the jury’s verdict on count 4 for attempted murder, are reversed and Crockett’s sentence is ordered vacated. The matter is remanded for the trial court to provide the People with an opportunity to retry count 4 and the section 186.22, subdivision (b) gang enhancements under the law as amended by Senate Bills 1437 and 775, and Assembly Bill 333. At the conclusion of any such retrial, or on remand if the People elect not to conduct such a retrial, the court is directed to conduct a full resentencing of appellant, including in accordance with amended section 12022.53, subdivision (h). In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EDMON, P. J.

We concur:

LAVIN, J.

EGERTON, J.

[1] All further undesignated statutory references are to the Penal Code.

[2] The trial court dismissed (at the prosecution’s request) two additional convictions for possession of a firearm by a felon (former § 12021) and a prior serious felony conviction allegation (§ 1170.12).

[3] In Lopez, the Court was considering whether (1) Senate Bill 1437 applied to attempted murder; and (2) to convict an aider and abettor of attempted willful, deliberate and premeditated murder under the natural and probable consequences doctrine, a premeditated attempt to murder had to have been a natural and probable consequence of the target offense, i.e., whether People v. Favor (2012) 54 Cal.4th 868, should be reconsidered.

[4] Assembly Bill 333 also enacted new section 1109. That section provides, inter alia, that if requested by the defense, a charged section 186.22, subdivisions (b) or (d) enhancement “shall be tried in separate phases,” with the question of guilt of the underlying offense to be determined first and the truth of the gang enhancement tried thereafter. (§ 1109, subd. (a).) Due to the procedural posture of this case, section 1109 has no application here, and we need not decide whether it would apply retroactively to nonfinal cases.

[5] In light of our conclusion that the gang enhancements must be reversed, Crockett’s earlier contentions regarding the gang enhancements are moot.

[6] Because reversal of the gang enhancements and remand for their potential retrial is required, we need not decide whether any of the other new elements of section 186.22 were, or were not, met and whether other aspects of the instruction given were erroneous.