I. FACTUAL AND PROCEDURAL BACKGROUND

A witness testified that a person he saw earlier dressed the same as defendant shot

and killed the victim. A second witness told an officer he saw defendant and another

man shoot the victim seven times.4

By interlineated felony information, the People charged defendant with murder

(§ 187, subd. (a), count 1) and being a felon in possession of a firearm (former § 29800,

count 2). The People additionally alleged that defendant personally and intentionally

discharged a firearm in his commission of the murder (former § 12022.53, subd. (d));

committed the murder for the benefit of, at the direction of, or in association with a

criminal street gang (former § 186.22, subd. (b)(1)(C)); had suffered a prior serious

felony conviction (former § 667, subd. (a)); and had suffered a prior strike conviction

(former §§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1)).

A jury found defendant not guilty of first degree murder but guilty of second

degree murder (§ 187, count 1) and being a felon in possession of a firearm (former

§ 29800, count 2). The jury additionally found true allegations that defendant personally

and intentionally discharged a firearm in his commission of the murder (former

§ 12022.53, subd. (d)) and committed the murder for the benefit of, at the direction of, or

in association with a criminal street gang (former § 186.22, subd. (b)(1)(C)). The court

thereafter found true allegations that defendant suffered from a prior serious felony

4 We will recite additional facts when discussing the issues raised by defendant. 4 conviction (former § 667, subd. (a)) and a prior strike conviction (former §§ 667,

subds. (c), (e)(1), 1170.12, subd. (c)(1)).

The court sentenced defendant to an aggregate term of imprisonment of 60 years

to life, including 25 years to life on the former section 12022.53, subdivision (d)

enhancement. The court later recalled the sentence, struck the prior serious felony

conviction enhancement, and resentenced defendant to 55 years to life, including the

25 years to life on the former section 12022.53, subdivision (d) enhancement.

II. DISCUSSION

A. The Former Section 12022.53, Subdivision (d) Enhancement.

Defendant contends the former section 12022.53, subdivision (d) enhancement

must be reversed and the matter remanded because the court misunderstood the scope of

its sentencing discretion. We agree.

At the original sentencing hearing, defense counsel argued the court should use its

discretionary power to strike the firearm enhancement. The court asked whether, “if I

were so inclined, rather than . . . just entirely strike the gun enhancement, could I impose

a 20-year enhancement that’s not a life sentence on top of the murder?” Defense counsel

responded that it could impose a section 12022.5 enhancement. The court asked, “Why

would I have to go to an uncharged enhancement? Couldn’t I go to a lesser included, if it

is indeed a lesser included, in other words, the same statue, but a different subdivision?

Instead of (d), (b)?” Defense counsel responded that it could.

The court noted, “I will say that the evidence, if believed by the jury, does support

the verdict . . . .” “If the jury believed the People’s evidence that [defendant] is 5 responsible, which they apparently did, if the jury believed that he personally,

intentionally discharged a firearm, causing at least great bodily injury, they showed

mercy and leniency” by finding defendant guilty of second degree murder rather than

first degree murder.

The People observed, “First in turn, the question was asked: Does the Court have

the power to find a [section] 12022.53[, subdivision] (c) in lieu of the jury finding

[section] 12022.53[, subdivision] (b) as a necessarily lesser included charge, if you will,

to the allegation which was found true? I don’t believe there’s any authority to do that,

Your Honor, because that’s a specific requirement and it has to be a necessarily related

charge that, I think, both counsel and I have to agree to it for the Court to consider in that

regard.”

Prior to sentencing defendant, the court stated, “I do not see myself as having the

authority to say, ‘Look the statute says you can impose the enhancement or you can

completely get rid of it. I’m going to pick something in the middle ground.’ ” “For

instance, in this case, if memory serves me, the People didn’t charge [section] 12022.53[,

subdivision] (c) or [section] 12022.53[, subdivision] (b). They only charged [section]

12022.53[, subdivision] (d). The jury found [section] 12022.53[, subdivision] (d), but I

would say . . . if I felt I had the discretion . . . and authority to do so, I would be on the

fence about whether I would . . . .” “If I had that discretion, that would be a difficult call,

and I don’t know.”

6 “When being sentenced, a defendant is entitled to decisions made by a court

exercising informed discretion. [Citation.] A court acting while unaware of the scope of

its discretion is understood to have abused it.” (Tirado, supra, 12 Cal.5th at p. 694.)

“When an accusatory pleading alleges and the jury finds true the facts supporting a

section 12022.53(d) enhancement, and the court determines that the section 12022.53(d)

enhancement should be struck or dismissed under section 12022.53(h), the court may,

under section 12022.53(j), impose an enhancement under section 12022.53(b) or (c).”

(Tirado, supra, 12 Cal.5th at p. 700.) “The prosecution cannot control the court’s

authority to select from the legislatively authorized sentencing options. [Citation.] Here,

the Legislature has permitted courts to impose the penalties under section 12022.53(b),

(c), or (d) so long as the existence of facts required by the relevant subdivision has been

alleged and found true.” (Id. at p. 702.)

Here, because the court in Tirado clarified the discretion of the sentencing court to

impose a lesser enhancement under section 12022.53, subdivisions (b) or (c), the matter

must be reversed and remanded to the court to determine whether to exercise such

discretion. Moreover, any misunderstanding in the scope of the court’s discretionary

authority cannot be deemed harmless here because the court raised the issue of its own

accord and expressed that if it had such discretion, it might impose a lesser enhancement.

7 B. The Former Section 186.22, Subdivision (b)(1)(C) Enhancement

Defendant contends the jury’s true finding on the gang enhancement attached to

count 1 must be reversed because the court instructed the jury with the requirements for

finding the gang enhancement true under former section 186.22, subdivision (b)(1)(C).

Specifically, defendant maintains that Assembly Bill No. 333 prohibits the use of the

currently charged crime to provide the pattern of gang activity; “[r]emoves the

prosecution’s ability to prove a criminal street gang by showing that the members

‘individually or collectively’ engage in, or have engaged in, a pattern of criminal gang

activity, requiring instead that it prove that the pattern is committed “collectively”;5 and

“the predicate offenses were committed to benefit the criminal street gang in a manner

that is more than reputational.”

An officer testified that “West Drive” is “a turf-based gang in Desert Hot Springs.

It stands for West Drive Locos.” Defendant had tattoos on his back reading “West

Drive” and “DHS” to signify he is from the West Drive Locos gang (WDL). The officer

filled out a gang identification card on defendant in 2007, during which time defendant

was walking through gang territory, affiliating with gang members, and wearing gang

apparel. Defendant’s prior probation officer testified defendant was a member of WDL.

5 We note that this court has recently held that under amended section 186.22 (Stats. 2021, ch. 699, § 3), “a pattern of criminal gang activity may be established by (1) two gang members who separately committed crimes on different occasions, or (2) two gang members who committed a crime together on a single occasion.” (People v. Clark (2022) 81 Cal.App.5th 133, 145-146.) 8 The People’s gang expert testified that defendant was an active member and participant

of WDL.

The gang expert testified that the primary activities of WDL included committing

murders, robberies, thefts, and sales of narcotics. On August 15, 2014, a member of

WDL was convicted of attempted murder and a substantive criminal street gang offense

committed on October 31, 2013. On November 18, 2016, another member of WDL was

convicted of manslaughter with an attached gang enhancement for an offense committed

on January 28, 2014. Yet another member of WDL was convicted of assault with a

deadly weapon for an offense occurring on May 3, 2015.

When posed a hypothetical based on the facts of the instant case, the People’s

gang expert testified the offenses were gang-related because two gang members “were

actively participating and assisting each other and associating with each other at the time

the incident . . . occurred . . . .” “Both had an active role, which furthers the gang’s

reputation and benefits the gang, because now the reputation of the West Drive Locos is

to instill fear and intimidation throughout the community, which is accomplished by this

murder, and . . . that fear and intimidation also causes people not to be witnesses and

come forward and talk to law enforcement.”

“Assembly Bill 333’s substantive changes apply retroactively to all cases—like

[defendant]’s—in which the judgment of conviction is not yet final because the changes

‘redefine, to the benefit of defendants, conduct subject to criminal sanctions.’” (People v.

E.H. (2022) 75 Cal.App.5th 467, 478; accord People v. Clark, supra, 81 Cal.App.5th 133,

144, fn. 11.) “Assembly Bill 333 [now] requires the prosecution to prove the benefit the 9 gang derives from the predicate and current offenses is ‘more than reputational.’

[Citation.] New section 186.22, subdivision (g), provides, ‘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.’” (E.H., at p. 478.)

“Because Assembly Bill 333 essentially adds new elements to the substantive

offense and enhancements in section 186.22 . . . the prejudice standard articulated in

Chapman v. California (1967) 386 U.S. 18 . . . applies. [Citation.] Under that standard,

the absence of instruction on the amended version of section 186.22 requires reversal

unless ‘it appears beyond a reasonable doubt that the error did not contribute to th[e]

jury’s verdict.’” (People v. E.H., supra, 75 Cal.App.5th at p. 479.)

Here, the People did not adduce any evidence of the benefit WDL derived from

the predicate offenses, let alone that it was more than just reputational. Thus, the gang

enhancement must be reversed, and the matter remanded to give the People the

opportunity to retry it. (People v. E.H., supra, 75 Cal.App.5th at p. 480 [“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.”].)

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III. DISPOSITION

We reverse the former section 12022.53, subdivision (d) enhancement and remand

the matter to the sentencing court to determine whether to exercise its discretion to impose

a lesser enhancement. We reverse the former section 186.22, subdivision (b)(1)(C) gang

enhancement and remand the matter for the trial court to provide the People an

opportunity to retry it under the law as amended by Assembly Bill No. 333; if the People

elect not to retry the enhancement, the trial court is directed to strike it. In all other

respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER Acting P. J. We concur:

FIELDS

J.

MENETREZ

J.

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