Opinion
S273134
05-25-2023
PEOPLE v. COOPER (ROBERT)
B304490 Second Appellate District, Div. 6
Opinion filed: Judgment reversed
For the above reasons, we reverse the Court of Appeal's affirmance of Cooper's gang enhancement.11 Since the firearm enhancement alleged under section 12022.53, subdivision (e)(1), is contingent on a true finding on the gang enhancement under section 186.22, we reverse the Court of Appeal's affirmance of that firearm enhancement as well, and remand the case to the Court of Appeal with instructions to remand the case to the superior court for any retrial of the same. (See Lopez, supra, 73 Cal.App.5th at pp. 346-348; 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” ].)
Majority Opinion by Groban, J
-- joined by Guerrero, C. J., Corrigan, Liu, Kruger, Jenkins, and Evans, JJ.