98 Cal.App.5th 350
Cal. Ct. App.2023Background
- Four defendants (Anthony, Campbell, Flowers, Price) were convicted in a gang-related killing: first‑degree murder (death of Charles Davis), gang‑related gun enhancement (25‑to‑life), gang‑murder and multiple‑murder special circumstances, plus vehicular evasion deaths (two bystanders) and related convictions.
- On direct appeal this court affirmed convictions but remanded for the trial court to consider newly conferred discretion to strike certain enhancements and prior‑serious convictions.
- Each appellant filed a Penal Code §1172.6 resentencing petition (seeking relief under Senate Bill 1437); the trial court denied relief at the prima facie stage, relying on jury findings in the gang and multiple‑murder special circumstances that each defendant had the intent to kill.
- The trial court granted §1172.6 relief (based on prosecutor concession) vacating second‑degree murder convictions for three defendants as to the two bystander deaths and resentenced them on Vehicle Code §2800.3 counts; it refused to strike the gang gun enhancement or the prior serious‑felony ("nickel") enhancements.
- While appeals were pending, the Legislature enacted Assembly Bill 333 (narrowing the gang statutes) and Senate Bill 567 (changing sentencing triad rules); appellants challenged (1) the §1172.6 prima facie denial, (2) retroactive application of AB 333 to the gang enhancement and gang‑murder special circumstance, and (3) denial of strikes/remission on remand.
Issues
| Issue | People’s Argument | Appellants’ Argument | Held |
|---|---|---|---|
| 1) Whether jury intent‑to‑kill special‑circumstance verdicts conclusively preclude §1172.6 relief at the prima facie stage | The jury findings show express malice/intent to kill and thus foreclose eligibility as a matter of law | The intent‑to‑kill finding is only one element; the court may not weigh evidence at prima facie and must hold an evidentiary hearing before denying relief | Reversed: intent‑to‑kill findings do not by themselves bar §1172.6 relief; remand for order to show cause and evidentiary hearing required (Lewis, In re Lopez, Curiel principles) |
| 2) Whether Assembly Bill 333’s amendments to §186.22 apply retroactively to invalidate the gang‑gun enhancement (§12022.53) and gang‑murder special circumstance (§190.2(a)(22)) and whether instructional error was harmless | AB 333 cannot validly amend the initiative‑enacted special‑circumstance (or, alternatively, any instructional error was harmless) | AB 333 is ameliorative and applies retroactively; trial lacked necessary proof under the new elements | Reversed enhancement and special circumstance; AB 333 applies; instructional omissions were not harmless beyond a reasonable doubt; remand for retrial on those allegations (People may retry or the court will resentence without them) |
| 3) Whether §1172.6 relief extends to vehicular evasion causing death (Veh. Code §2800.3) | §1172.6 relief is limited to murder/attempted murder/manslaughter; Veh. Code §2800.3 is a distinct crime not altered by SB 1437 | The VC convictions were functionally murder/NPC‑based and should be vacated with the vacated second‑degree murder counts | Denial of §1172.6 relief for Veh. Code §2800.3 convictions affirmed: §1172.6 does not reach that statute; separate elements and punishment apply |
| 4) Whether the trial court abused discretion in refusing to strike gun enhancements/prior strikes and whether resentencing is required under SB 567 | Court properly exercised discretion; prior determinations and facts supported refusal | Court should have struck enhancements/prior strikes and obtain supplemental reports; sentencing errors require remand | Court did not abuse discretion in declining to strike prior strikes/enhancements (but refusing to rule on now‑reversed gang enhancements is moot); resentencing remanded under SB 567 for Vehicle Code sentences because §1170(b) changes may affect upper/middle/lower term choices |
Key Cases Cited
- In re Lopez, 14 Cal.5th 562 (Cal. 2023) (an intent‑to‑kill special‑circumstance verdict alone does not necessarily establish all elements of direct aiding‑and‑abetting first‑degree murder; appellate review may consider trial evidence)
- People v. Lewis, 11 Cal.5th 952 (Cal. 2021) (limits on using record of conviction at prima facie stage; trial court should not engage in credibility determinations before an evidentiary hearing)
- People v. Tran, 13 Cal.5th 1169 (Cal. 2022) (Assembly Bill 333’s amendments to the gang statutes are ameliorative and apply to nonfinal cases)
- People v. Sanchez, 63 Cal.4th 665 (Cal. 2016) (limits on expert gang testimony foundational requirements)
- In re Ferrell, 14 Cal.5th 593 (Cal. 2023) (harmless‑error framework and review of entire record)
- People v. Anthony, 32 Cal.App.5th 1102 (Cal. Ct. App. 2019) (direct appeal decision describing the evidence, jury findings, and remand for exercise of sentencing discretion)