Opinion
A165744
08-25-2023
THE PEOPLE, Plaintiff and Respondent, v. COBY JEROME PHILLIPS, Defendant and Appellant.
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No.05-150124-6
WE CONCUR: HUMES, P. J. BANKE, J.MARGULIES, J.
This is the second appeal in this case. In the first appeal, we affirmed defendant's convictions for first degree murder, dissuading a witness, and possession of weapons in custody, and remanded to the trial court for resentencing. Defendant now appeals from the resentencing, arguing that gang enhancements on each of his convictions must be reversed in light of the changes made to California's criminal street gang laws by Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Assembly Bill 333). We agree with defendant that the true findings on his gang enhancements must be reversed. We remand the matter to give the prosecution the option to retry the enhancements.
I. FACTUAL AND PROCEDURAL BACKGROUND
On November 14, 2016, a jury convicted defendant Coby Jerome Phillips of first degree murder, two counts related to dissuading a witness, and three counts of custodial possession of a weapon. The jury also made true findings on gang enhancements pursuant to Penal Code section 186.22 for each count. The trial court sentenced defendant to 80 years to life consecutive to a determinate term of 25 years. Defendant appealed his convictions, and we remanded the case for resentencing.
All statutory references are to the Penal Code.
On May 13, 2022, the trial court resentenced defendant to a term of 14 years consecutive to 75 years to life in state prison. The sentence was comprised of a term of 25 years to life on count one, the murder, doubled based on a prior strike conviction, plus a consecutive 25 years to life for a firearm enhancement. The court imposed a concurrent two-year term for count two, dissuading a witness, doubled to four years for the prior strike conviction, plus one year for the gang enhancement. The court stayed the sentence on count three, conspiring to dissuade a witness. For the three counts of custodial possession of a weapon, counts five, six, and seven, the court imposed three consecutive two-year terms with a one-year gang enhancement attached to each. Defendant timely appealed.
II. DISCUSSION
Defendant argues the true findings on his gang enhancements must be reversed based on Assembly Bill 333's amendments to section 186.22 that made significant changes to the law on gang enhancements. The jury in this case found true the gang enhancements on all counts, but defendant contends the record lacks sufficient evidence of every element necessary to the prosecution's gang enhancements under the amended statute. Specifically, as to his convictions for dissuading a witness and custodial possession of weapons, he argues that no predicate offenses occurred within three years of the alleged current offense. As to all counts, he contends the evidence of the predicate offenses admitted does not show a benefit to the gang that was more than reputational, nor does it show that the gang members collectively engaged in a pattern of criminal gang activity under Assembly Bill 333's amendments. Additionally, defendant argues that the jury instructions at trial for the gang enhancements are now incorrect under the new law and failure to instruct on the correct elements violated his constitutional rights.
We begin with a summary of the changes made to section 186.22 by Assembly Bill 333. Section 186.22 criminalizes active participation in a "criminal street gang," and enhances the punishment for certain crimes committed "for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members." (§ 186.22, subds. (a), (b)(1); People v. Tran (2022) 13 Cal.5th 1169, 1205-1206 (Tran).) Effective January 1, 2022, Assembly Bill 333 changed section 186.22 in several important respects. (Stats. 2021, ch. 699, § 3.) "First, it narrowed the definition of a 'criminal street gang' to require that any gang be an 'ongoing, organized association or group of three or more persons.' (§ 186.22, subd. (f), italics added.) Second, whereas section 186.22, former subdivision (f) required only that a gang's members 'individually or collectively engage in' a pattern of criminal activity in order to constitute a 'criminal street gang,' Assembly Bill 333 requires that any such pattern have been 'collectively engage[d] in' by members of the gang. (§ 186.22, subd. (f), italics added.) Third, Assembly Bill 333 also narrowed the definition of a 'pattern of criminal [gang] activity' by requiring that (1) the last offense used to show a pattern of criminal gang activity occurred within three years of the date that the currently charged offense is alleged to have been committed; (2) the offenses were committed by two or more gang 'members,' as opposed to just 'persons'; (3) the offenses commonly benefitted a criminal street gang; and (4) the offenses establishing a pattern of gang activity must be ones other than the currently charged offense. (§ 186.22, subd. (e)(1), (2).) Fourth, Assembly Bill 333 narrowed what it means for an offense to have commonly benefitted a street gang, requiring that any 'common benefit' be 'more than reputational.' (§ 186.22, subd. (g).)" (Tran, at p. 1206.)
As an initial matter, we agree with defendant that Assembly Bill 333 applies retroactively here as his judgment of conviction is not yet final. (See Tran, supra, 13 Cal.5th at pp. 1206-1207.) Under the principles enunciated in In re Estrada (1965) 63 Cal.2d 740, Assembly Bill 333's amendments to section 186.22 apply retroactively to defendants whose convictions are not yet final. (Estrada, at p. 744 [defendants with nonfinal judgments are entitled to the "ameliorating benefits" of an amended statute]; Tran, at pp. 1206-1207.) The Attorney General appropriately concedes.
The Attorney General also agrees, as do we, that the gang enhancements must be reversed in light of Assembly Bill 333.
First, as to counts two, three, five, six, and seven, there is no evidence that the predicate offenses occurred more than three years before those offenses were committed, which directly contradicts the new requirement that the last of the predicate offenses must have occurred within three years after a prior offense. (§ 186.22, subd. (e)(1).) Second, under section 186.22, as amended, to prove a" 'pattern of criminal gang activity,'" the prosecution must prove at least two enumerated predicate offenses commonly benefitted the gang in a way that is more than reputational. (§ 186.22, subd. (e)(1).) The evidence in the record is insufficient as to all counts, including count one, for us to conclude the jury would have found that the offenses by the gang members were committed for the common benefit of the gang or benefitted the gang in a way that was more than reputational. (See People v. Cooper (2023) 14 Cal.5th 735, 744 ["Based upon the record, a jury could have reasonably concluded that the predicate offenses at issue were committed for personal gain alone."].)
Finally, defendant argues that the findings on the gang enhancements must be remanded for possible retrial because the jury was not instructed according to the new law. We agree that the changes to the definitions of "criminal street gang" and "a pattern of criminal gang activity" in Assembly Bill 333 added new elements to section 186.22, on which the jury was not instructed, implicating defendant's right to a jury trial under the Sixth Amendment. (Tran, supra, 13 Cal.5th at pp. 1206-1207.) Accordingly, we must reverse unless it appears beyond a reasonable doubt that the error did not contribute to the verdict. (Id. at p. 1207.) On this record, given the absence of evidence of at least two predicate crimes that commonly benefitted the gang, or that the common benefit to the gang from those predicate offenses was more than reputational, we cannot conclude beyond a reasonable doubt that the instructional error did not contribute to the jury's verdicts. (See People v. Cooper, supra, 14 Cal.5th at p. 746; Tran, at p. 1207 [reversing gang enhancements where jury was not presented with evidence gang members collectively engaged in pattern of criminal gang activity].)
Because we agree with the parties that the true findings on the gang enhancements must be reversed as a result of the changes made by Assembly Bill 333, we need not address defendant's ineffective assistance claim.
III. DISPOSITION
We reverse the true findings on all of the gang enhancements and remand the matter to provide the prosecution the opportunity to retry the enhancements under section 186.22, as amended by Assembly Bill 333.