Filed 7/25/22 In re Alexis A. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

,

THE COURT*

APPEAL from a judgment of the Superior Court of Merced County. Mark V. Bacciarini, Judge.

Deanna L. Lopas, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Catherine Chatman and Erin Doering, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Pursuant to the terms of a plea bargain, appellant, Alexis A., admitted an assault with a firearm charge and to the commission of that offense for the benefit of, at the direction of, or in association with a criminal street gang, with a maximum confinement time of nine years. Appellant claims entitlement to relief under Assembly Bill No. 333 (Assembly Bill 333), which amended Penal Code section 186.22[1] to increase the evidentiary burden necessary to prove the alleged gang enhancement which he admitted. The parties agree that Assembly Bill 333 is retroactive under In re Estrada (1965) 63 Cal.2d 740 (Estrada) and that it applies in this case because appellant’s case is not final. They disagree on remedy.

Appellant requests vacatur of the imposed judgment and remand for further proceedings to allow the People the opportunity to prove the applicability of the section 186.22 enhancement and, if not proven, to strike any corresponding punishment. The People’s main concern is that remand is required to afford the prosecutor the opportunity to withdraw from the plea bargain.

As we explain, by retroactive application of Assembly Bill 333, certain terms of the plea agreement are no longer authorized by law. We therefore reverse the judgment and remand for further proceedings consistent with this opinion.

STATEMENT OF THE FACTS[2]

On March 22, 2021, officers were dispatched in response to a shooting. The officers located a male, Marcus M., in a front yard. He had sustained at least one gunshot wound and was airlifted to the hospital. Marcus M. told officers he was on his way to appellant’s residence when he was shot.

Witnesses reported hearing multiple gunshots and seeing a green Nissan fleeing the area. Four people were observed coming from appellant’s house. One witness told officers she saw a dark-colored vehicle parked in front of appellant’s house with the rear passenger door open. The witness described three people fighting and then hearing gunshots.

Appellant was contacted just north of the house shortly after the shooting. He was with an individual, Jose P., at the time.

An investigation determined that Christian Bracamontes was driving the green Nissan and was parked in the block where the shooting occurred. Bracamontes admitted to picking up two other individuals while on the way to a friend’s house. He inferred the friend’s house belonged to appellant, but he refused to provide any names. Further investigation revealed that Bracamontes, Jacob Apodaca, Jose P., and Marcus M. were all acquainted and that Apodaca, Jose P. and Marcus M. were passengers in the green Nissan on the day of the shooting.

Apodaca sustained a gunshot wound and was dropped off at the hospital by Bracamontes, before being contacted by police. Marcus M. was also shot but was unable to get back into the Nissan. When interviewed, Apodaca denied being a gang member, but expressed his belief that the shooting was gang related.

A few days later, officers interviewed Benjamin M., who stated that, on the day of the shooting, a green vehicle occupied by five subjects approached him several times as he was walking. The occupants initially asked him to lift his shirt to show if he was armed. He did and displayed his firearm. The second time, the rear passenger, identified as appellant, was holding a firearm and asked Benjamin M. if he was “North or South.” Benjamin M. replied “North,” and Apodaca replied, “Alright, you got nothing to worry about.” During the third encounter, Apodaca exited the vehicle and offered Benjamin M. a beer. When Benjamin M. accepted, Apodaca demanded that he relinquish his firearm. When he refused to do so, Benjamin M. and Apodaca wrestled. During the scuffle, appellant shot at Benjamin M., who fired back. Benjamin M. told officers he was a Livas Norte Criminal Street Gang dropout.

Benjamin M. identified appellant and Apodaca from a photo line-up, and identified the fifth subject as Marcelino L. Marcelino L. subsequently admitted being in the green Nissan at the time of the shooting.

Video surveillance from the Marcus M. residence on the day of the shooting showed Bracamontes park the green Nissan on the side of Marcus M.’s house before leaving with Apodaca and Marcus M.

Appellant was contacted and interviewed on March 31, 2021. He told officers Apodaca offered Benjamin M. a beer. Appellant admitted having had a firearm, but said he passed it to someone else in the vehicle. During a search of appellant’s house, officers located several taggings and “[g]ang-related items.” They also collected a sweater with a bullet hole that appellant stated he had been wearing during the shooting. Appellant denied any gang affiliation and probation was unable to validate him as an active gang member.

Charges, Admission and Commitment

A Welfare and Institutions Code section 602 petition filed April 2, 2021, alleged appellant committed an assault with a firearm (§§ 245, subd. (a)(2)), attempted second degree robbery (§ 211), and active gang participation (§ 186.22, subd. (a)). It was further alleged that, during the commission of the assault, appellant personally inflicted great bodily injury (§ 12022.7, subd. (a)) and personally used a firearm (§ 12022.5, subd. (a)). Pursuant to the terms of a plea bargain, appellant admitted the assault charge and to the commission of the offense for the benefit of, at the direction of, or in association with a criminal street gang (§ 188.22, subd. (b)(1)(B)), as orally amended, with a maximum confinement time of nine years. The remaining charges and enhancements were dismissed in light of the admission. Appellant was adjudged a ward of the court and ordered committed to the Department of Juvenile Facilities for eight years, the midterm of three years for the assault and the five-year prescribed term for the gang enhancement.

DISCUSSION

A defendant who commits a felony “for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members” is subject to increased punishment upon conviction. (§ 186.22, subd. (b)(1).) As noted above, appellant’s sentence included an enhancement under this provision.

After the court imposed sentence and while his appeal was pending, the Legislature enacted Assembly Bill 333, which amended section 186.22 to impose new substantive and procedural requirements for gang allegations. Most notably, the law defined “to benefit, promote, further, or assist” as “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).)

In addition, the law created a stricter requirement for proof of “a pattern of criminal gang activity,” which is necessary to prove that the group with which the defendant is associated is indeed a criminal street gang. (See § 186.22, subd. (f).) Previously, the prosecution needed to prove only that those associated with the gang had committed at least two offenses from a list of predicate crimes on separate occasions within three years of one another. (See former § 186.22, subd. (e).) Under the newly amended law, the offense with which the defendant is currently charged cannot be used as one of the two predicate offenses. (§ 186.22, subd. (e)(2).) In addition, both predicate offenses must have been committed “within three years of the date the current offense is alleged to have been committed,” by gang “members,” and must have been for the “common[ ] benefit[ ] [of] a criminal street gang.” (§ 186.22, subd. (e)(1).)

As the parties agree, appellant is entitled to the benefits of Assembly Bill 333. We agree that appellant 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 (2021) 73 Cal.App.5th 327, 344) or modifies the elements of a penalty enhancement (People v. Roberts (1994) 24 Cal.App.4th 1462, 1465). Assembly Bill 333 changed the elements of the gang enhancement in a way that potentially favors appellant, and nothing in the legislation rebuts the Estrada inference of retroactivity. The relevant amendments to section 186.22 therefore apply retroactively to appellant’s case, which is not yet final. (See People v. Rodriguez (2022) 75 Cal.App.5th 816, 819; People v. E.H. (2022) 75 Cal.App.5th 467, 478; People v. Delgado (2022) 74 Cal.App.5th 1067, 1087; Lopez, supra, at pp. 343-344.)

For cases in which active gang participation and gang enhancements have been found true by jury and Assembly Bill 333 found applicable, the remedy has been to reverse the conviction and vacate the enhancements, and to allow the People to retry them. (See, e.g., People v. Rodriguez, supra, 75 Cal.App.5th at p. 824.) But here we have a negotiated plea and the remedy is somewhat different.[3]

Some plea agreements, like the one in this case, “specify the punishment to be imposed as a condition of the plea.” (People v. Brown (1986) 177 Cal.App.3d 537, 548.) Such conditions are authorized by section 1192.5. (People v. Stamps (2020) 9 Cal.5th 685, 700 (Stamps); Brown, supra, at p. 548.) The specified sentence is an “integral part” of the agreement, i.e., a material term of the contract. (People v. Panizzon (1996) 13 Cal.4th 68, 73, 77-78, 86; see People v. Segura (2008) 44 Cal.4th 921, 935 & fn. 10 [specified period of incarceration “clearly was a material term” of the parties’ agreement].)

“ ‘Both the accused and the People are entitled to the benefit of the plea bargain.’ ” (People v. Woods (2017) 12 Cal.App.5th 623, 630.) Appellant has received the benefit of his bargain and has also demonstrated the applicability of Assembly Bill 333, which invalidates a material term of the plea agreement. Neither Estrada nor Assembly Bill 333 dictate the appropriate remedy. “The Estrada rule only answers the question of whether an amended statute should be applied retroactively. It does not answer the question of how that statute should be applied.” (Stamps, supra, 9 Cal.5th at p. 700.)

We must determine the appropriate remedy. In doing so, we find helpful the recent case from this court, People v. Barton (2020) 52 Cal.App.5th 1145 (Barton), in which the defendant was charged with five drug offenses and it was alleged she had suffered two prior convictions under section 11379 and had served a prior prison term. The defendant pled guilty to two drug offenses and admitted the prior conviction allegations in exchange for the dismissal of the remaining charges and a fixed sentence of eight years, eight months, which included six years for the prior convictions. (Barton, supra, at p. 1151.) While the case was pending in the California Supreme Court (after her appeal was dismissed on a waiver of defendant’s trial rights), Assembly Bill 180 passed which eliminated the enhancement provisions “upon which the bulk of defendant’s sentence was based (§ 11370.2, subd. (c); Stats. 2017, ch. 677, § 1).” (Barton, supra, at pp. 1151-1152.)

The defendant in Barton argued that the trial court should vacate the unauthorized enhancements, which would reduce her sentence by six years and leave the remainder of the plea agreement intact. (Barton, supra, 52 Cal.App.5th at p. 1155.) The People argued that the trial court should strike the invalid enhancements and conduct a full resentencing on the two counts the defendant pled to “under the normal rules of felony sentencing.” (Id. at p. 1156.) This court found that the full resentencing rule did not apply because the parties’ plea agreement specified the punishment to be imposed. (Ibid.)

Taking guidance from Stamps, this court in Barton examined the legislative history of Senate Bill 180, and found no intent on the part of the Legislature to overturn existing law “regarding a court’s lack of authority to unilaterally modify a plea agreement.” (Barton, supra, 52 Cal.App.5th at p. 1159, quoting Stamps, supra, 9 Cal.5th at p. 702.) In conclusion, Barton found that, since Senate Bill 180 applied retroactively to the sentence upon which the defendant’s plea was conditioned was now unauthorized, the plea agreement was now unenforceable and the trial court could not approve it in its current form. (Barton, supra, 52 Cal.App.5th at p. 1159, citing In re Williams (2000) 83 Cal.App.4th 936, 945 [“the trial court cannot approve a plea bargain that calls for an unlawful sentence”].) We therefore reversed and remanded for further proceedings consistent with our opinion, stating:

“Whether by withdrawal of its prior approval or the granting of a withdrawal/rescission request by one or both of the parties, the trial court ‘ “ ‘must restore the parties to the status quo ante.’ ” ’ (Stamps, supra, 9 Cal.5th at p. 707; see People v. Aragon (1992) 11 Cal.App.4th 749, 756-757.) [‘When a guilty plea is invalidated the parties are generally restored to the positions they occupied before the plea bargain was entered’].) The parties may then enter into a new plea agreement, which will be subject to the trial court’s approval, or they may proceed to trial on the reinstated charges.” (Barton, supra, at p. 1159.)

The legislative history of Assembly Bill 333 states that the gang enhancements statutes prior to the current amendments, “criminalize[d] entire neighborhoods historically impacted by poverty, racial inequality, and mass incarceration as they punish people based on their cultural identity, who they know, and where they live”; that being designated as a gang member “impacts a person’s criminal legal system contact from start to finish”; and there have been no empirical studies produced “showing that gang enhancements meaningfully reduce crime or violence.” (Stats. 2021, ch. 699, § 2.) Similar to the legislation addressed in Barton, we find no intent on the part of the Legislature in Assembly Bill 333 to overturn a court’s lack of authority to unilaterally modify a plea agreement. Thus, we will restore the parties to the status quo ante. The parties can modify the agreement to eliminate the provisions involving section 186.22, subdivision (b)(1), but the trial court is not obligated to approve the agreement as so modified. The parties can also renegotiate the agreement, subject to the trial court’s approval, or they can proceed to trial on reinstated charges.

DISPOSITION

The judgment is reversed and the cause is remanded for further proceedings consistent with this opinion.

* Before Franson, Acting P. J., Smith, J. and Snauffer, J.

[1] All further statutory references are to the Penal Code unless otherwise stated.

[2] The facts are taken from the amended probation officer’s social study report.

[3] We reject the People’s claim that the plea at issue was an “open plea.” “An open plea is ‘a plea unconditioned upon receipt of a particular sentence or other exercise of the court’s power.’” (People v. Conerly (2009) 176 Cal.App.4th 240, 245, fn. 1, quoting People v. Hoffard (1995) 10 Cal.4th 1170, 1181; accord Liang v. Superior Court (2002) 100 Cal.App.4th 1047, 1056 [open plea is made without any promises to defendant].) Here, appellant was promised a specific term with dismissal of remaining counts in exchange for his admission to one count and one enhancement.