People v. E.H., 75 Cal.App.5th 467

When 15, E.H. participated in a series of armed robberies (six robbery counts) alongside co‑defendant A.T.; victims later identified E.H. in photo lineups and at trial.
Police stopped the suspect truck, recovered weapons and stolen property; a stolen tablet continued recording and captured members saying E.H.’s first name; officers found E.H. hiding with a victim’s phone.
Jury convicted E.H. of six robberies, true findings that the crimes were for the benefit of a criminal street gang (§ 186.22(b)), and active gang participation (§ 186.22(a)); multiple firearm enhancements were also found.
The trial court sentenced E.H. to a lengthy term; after Proposition 57 the court recalled the sentence and transferred the matter to juvenile court; E.H. reinstated his appeal as a juvenile adjudication.
On appeal E.H. challenged (1) the use of CALCRIM No. 315’s eyewitness‑certainty factor as a due process violation and (2) whether recently enacted Assembly Bill 333 (amending § 186.22) requires reversal of the gang conviction/enhancements.
The Court of Appeal affirmed the CALCRIM No. 315 ruling (relying on People v. Lemcke) but reversed the gang participation conviction and gang enhancements and remanded to juvenile court for possible retrial under Assembly Bill 333; robbery convictions otherwise affirmed.

Issue	Plaintiff's Argument (People)	Defendant's Argument (E.H.)	Held
Whether CALCRIM No. 315’s eyewitness‑certainty factor violates due process	Instruction was proper and any objection was forfeited; certainty factor could help defendant where identifications were uncertain	Certainty factor is misleading given empirical weak correlation between certainty and accuracy and thus violates due process	Affirmed: Court follows People v. Lemcke — no due process violation; any error harmless given strong independent evidence
Whether Assembly Bill 333’s amendments to § 186.22 require reversal of gang conviction and enhancements	Jury verdict is supported by evidence and errors are harmless	AB 333 adds new elements (collective commission of predicates, predicates by members, more‑than‑reputational benefit) that were not tried; therefore convictions must be reversed	Reversed true findings on active gang participation and gang enhancements; remanded to juvenile court to allow People to retry under AB 333 or for juvenile court to impose new disposition
Whether failure to bifurcate under new § 1109 requires reversal of robbery convictions	Bifurcation not required retroactively or error harmless because evidence of robberies was overwhelming	Trial should have been bifurcated as to gang to avoid prejudice	Affirmed robberies: even if § 1109 applied, any error was harmless under Watson given overwhelming evidence of robberies

People v. Lemcke, 11 Cal.5th 644 (Cal. 2021) (CALCRIM No. 315’s certainty factor does not violate due process)
People v. Sanchez, 63 Cal.4th 411 (Cal. 2016) (discusses forfeiture of instructional objections and eyewitness ID issues)
People v. Superior Court (Lara), 4 Cal.5th 299 (Cal. 2018) (procedure for recalling sentence and transferring juveniles after Prop. 57)
Chapman v. California, 386 U.S. 18 (U.S. 1967) (harmless‑beyond‑a‑reasonable‑doubt standard for constitutional instructional errors)
Sullivan v. Louisiana, 508 U.S. 275 (U.S. 1993) (examines whether an erroneous instruction rendered verdicts unreliable)
Tapia v. Superior Court, 53 Cal.3d 282 (Cal. 1991) (retroactivity of ameliorative criminal law changes)
In re Estrada, 63 Cal.2d 744 (Cal. 1965) (ameliorative statute benefits apply to nonfinal judgments)