Opinion
H049694
05-18-2023
THE PEOPLE, Plaintiff and Respondent, v. DIEGO ROSAS MORALES, Defendant and Appellant.
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. Nos. C2010145 & C2106199
Before Greenwood, P. J., Grover, J., and Danner, J.
Defendant Diego Rosas Morales appeals from the judgment imposed after his no contest pleas in two cases. The Attorney General concedes we should remand the matter under recently-enacted Assembly Bill No. 333 (2021-2022 Reg. Sess.). We reverse the judgment and remand for resentencing.
We have omitted the facts of the offenses because they are not relevant to the analysis and disposition of this appeal.
On May 4, 2021, in case No. C2010145, Morales entered a no contest plea under a plea agreement to assault on a police officer with a deadly weapon (Pen. Code, § 245, subd. (c); count 1), reckless driving while evading a police officer (Veh. Code, § 2800.2, subd. (a); count 3), and possession for sale of cocaine (Health &Saf. Code, § 11351; count 6). On August 13, 2021, in case No. C2106199, Morales pleaded no contest pursuant to a plea agreement to assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4); count 1), and he admitted a gang allegation (§ 186.22, subd. (b)(1)(A)).
Undesignated statutory references are to the Penal Code.
On January 13, 2022, the court sentenced Morales to an aggregate term of four years. For case No. C2010145, the court sentenced Morales to three years on count 1 and two years each on counts 3 and 6, to be served concurrently to count 1. In case No. C2106199, the court sentenced Morales to a one-year term on count 1, to be served consecutively to the sentence imposed in case No. C2010145, and it struck the punishment for the gang enhancement.
Morales timely appealed.
II. Discussion
Morales argues, and the Attorney General concedes, that we should vacate the gang enhancement and remand the matter under recently-enacted Assembly Bill No. 333. The concession is well taken.
Section 186.22 enhances the punishment of a person convicted of an enumerated felony committed "for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members." (§ 186.22, subd. (b)(1), (4).) Three of the changes made by Assembly Bill No. 333 narrowed the scope of section 186.22. First, all references to "benefit, promote, further, or assist" have been narrowed to require that "the common benefit is more than reputational," and the amended statute provides that "[e]xamples of a common benefit that are more than reputational . . . 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, subds. (e)(1), (g), italics added.) The statute did not previously contain that limitation. Second, the definition of "criminal street gang" has been narrowed to require that the group's "members collectively engage in, or have engaged in, a pattern of criminal gang activity." (§ 186.22, subd. (f), italics added.) The definition previously could be satisfied by individual, rather than collective, activity. Third, the definition of a "pattern of criminal gang activity," which is part of the definition of a criminal street gang, has been narrowed to preclude the use of "[t]he currently charged offense . . . to establish the pattern of criminal gang activity." (§ 186.22, subd. (e)(2).) Under the previous version of the statute, the current offense could be used to establish the pattern.
The parties agree that the Assembly Bill No. 333 amendments to section 186.22 apply retroactively to Morales's case. (People v. Rodriguez (2022) 75 Cal.App.5th 816, 822.) The parties also agree, as do we, that the appropriate remedy is to remand the matter to the trial court.
Morales also argues in his opening brief that he is entitled to a modification of the plea agreement if upon remand the prosecutor is unable to provide additional evidence that meets the newly-established requirements of the gang enhancement. Morales additionally contends that the prosecution should not be allowed to withdraw from the plea agreement under those circumstances because that would "undermine the Legislature's goal in enacting Assembly Bill 333." The Attorney General argues that it should be permitted to withdraw from the plea agreement upon remand, citing People v. Stamps (2020) 9 Cal.5th 685.
We decline to reach this issue for the first time on appeal as the issue is best developed in the trial court. On remand, the trial court may consider the parties' arguments and determine, in the first instance, whether it is appropriate to allow the prosecution to withdraw from the plea agreement. (See People v. Ramirez (2002) 79 Cal.App.5th 48, 64, fn. 4, review granted Aug. 17, 2002, S275341.) The parties are not precluded from raising this issue in a subsequent appeal, once the record has been developed in the trial court.
III. Disposition
The judgment is reversed and the admission on the gang allegation under Penal Code section 186.22 is vacated. The matter is remanded for further proceedings consistent with this opinion.