People v. Owens CA2/6

Opinion

Filed 8/17/26 P. v. Owens CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B348161 (Super. Ct. No. 1410576) Plaintiff and Appellant, (Santa Barbara County)

v.

CHARLES ALONZO OWENS,

Defendant and Respondent.

This is a People’s appeal from the trial court’s order granting respondent’s motion for a new trial as to the gang- murder special circumstance and gang enhancement allegations from his 2013 jury trial based on changes to Penal Code1 section 186.22 following the enactment of Assembly Bill No. 333 (2021- 2022 Reg. Sess.) (AB 333). The People contend the trial court misunderstood the proof required to maintain the gang special circumstance and allegations and any instructional error arising from the change in the law was harmless beyond a reasonable 1 All further statutory references are to the Penal Code. doubt. (Chapman v. California (1967) 386 U.S. 18.) Respondent contends the trial court properly found the Chapman standard was not satisfied and thus correctly granted the motion for a new trial. We affirm. Procedural Background2 In July 2013, in a first amended information, the People charged respondent with counts 1 through 6, as follows: murder (§ 187, subd. (a), count 1), with the special circumstance that the murder was committed to further the activities of respondent’s criminal street gang (§ 190.2, subd. (a)(22)), a special allegation that the murder was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), a special allegation that respondent personally and intentionally discharged a firearm causing death (§ 12022.53, subd. (d)), a principal discharged a firearm causing death (§ 12022.53, subd. (e)), and respondent suffered two prior felony convictions resulting in prison sentences (§ 667.5, subd. (b)); corporal injury to a spouse or cohabitant (§ 273.5, subd. (a), count 2); attempted forcible oral copulation (§§ 664/288A, subd. (c)(2), count 3); sodomy by use of force (§ 286, subd. (c)(2), count 4); forcible rape (§ 261, subd. (a)(2), count 5); and dissuading a witness by force or threat (§ 136.1, subd. (c)(1), count 6), with the special allegation that the crime was committed to benefit a criminal street gang (§ 186.22, subd. (b)(4)). Counts 2 through 6 involved the same victim, respondent’s former girlfriend. In November 2013, following an 11-day trial, the jury found respondent guilty of all six counts and found true each special 2 We granted appellant’s request for judicial notice of the record on respondent’s direct appeal in People v. Owens (Sept. 16, 2015, B253680) [nonpub. opn.] (Owens).

2 circumstance and allegation. Respondent admitted the two prison prior enhancements. (§ 667.5, subd. (b).) In December 2013, the trial court sentenced respondent to life without the possibility of parole for first degree special circumstance murder (§§ 187, subd. (a), 190.2, subd. (a)(22), count 1), plus an indeterminate term of 25 years to life for the firearm enhancement (§ 12022.53, subd. (d)); a determinate term of four years (§ 273.5, subd. (a), count 2); a consecutive determinate term of one year (§§ 664/288A, subd. (c)(2), count 3); a consecutive determinate term of eight years (§ 286, subd. (c)(2), count 4); a consecutive determinate term of eight years (§ 261, count 5); and an indeterminate term of seven years to life (§§ 131.1, subd. (c), 186.22, subd. (b)(4), count 6). The trial court stayed the section 12022.53, subdivision (e) enhancement. The resulting total sentence was a determinate term of 23 years, followed by an indeterminate term of 32 years to life, followed by an indeterminate term of life without the possibility of parole. In an unpublished opinion, we reversed the gang enhancement finding as to count 6 and remanded the matter to the trial court for resentencing, but otherwise affirmed respondent’s conviction. (Owens, supra, B253680.) The trial court resentenced respondent to a consecutive determinate term of three years on count 6, but his sentence otherwise remained the same. Section 1172.75 Resentencing Proceedings In April 2023, after respondent became eligible for resentencing pursuant to section 1172.75, the trial court set the matter for a hearing and appointed counsel. In January 2024, after multiple continuances, counsel filed a motion for an order vacating respondent’s convictions and granting a new trial on the 3 basis that his sentence would become nonfinal upon recall and resentencing. (§ 1172.75.) Counsel argued that AB 333’s changes to section 186.22 applied, which mandated a new trial. The People filed an opposition. After considering briefing and hearing argument, the trial court denied the motion. In January 2025, respondent filed a motion requesting that the trial court reconsider its order denying respondent’s request based on the California Supreme Court’s recent decision in People v. Lopez (2025) 17 Cal.5th 388 (Lopez), which addressed the retroactive application of AB 333 to nonfinal judgments pursuant to In re Estrada (1965) 63 Cal.2d 740. The People filed an opposition. After reconsidering its ruling, the trial court found AB 333 applied retroactively to respondent’s judgment. It granted respondent’s motion for a new trial and reversed all gang enhancement findings, including the gang-murder special circumstance finding (thereby vacating the life without possibility of parole term). In a 39-page written ruling the trial court explained that after “a thorough examination of the trial and appellate court records,” it could not “say with confidence that the jury’s gang findings were unaffected by the instructional error/omission engendered by [AB] 333.” The trial court concluded that the proper remedy was to allow the prosecutor an opportunity to retry the affected charges, enhancements, and special circumstances.

4 Factual Background3 The Shooting On the night of June 11, 2007, Michael Spradling, a former member of Westside VLP, was found in an alleyway in Lompoc. He had been shot in the chest, groin, and forehead. He was taken to the hospital where he died two days later. Spradling’s death was a cold case until 2011 when a renewed investigation linked the shooting to respondent. Gang Testimony In 2007, the Six Deuce Brims/Bloods gang and the Crips gang were embroiled in a “war” with Westside VLP, a rival gang. The “war” involved back and forth shootings and stabbings. During this war, it was understood that gang members were to shoot their enemy if they saw them on sight in the street. Firearms were in limited supply. In 2007, respondent was a member of the Six Deuce Brims/Blood gang. Gang expert, Detective Scott Casey, testified about gang life generally and the importance of having a good reputation. He explained that it “pretty much means everything.” Detective Casey described how gang members obtained a good reputation by “putting in work.” He explained that gang members are “always striving to elevate their status, and they do that by getting respect, which is done by the type of crimes and violence they commit.” Typically, more violence means more respect because it instills fear in rivals. Detective Casey explained that if a VLP gang member shot a Blood gang member, the consequence 3 A detailed recitation of the underlying facts may be found in our prior opinion. (Owens, supra, B253680.)

5 would be retaliation by the Brims on VLP. If the Brims/Blood members did nothing, they would be seen as weak. The jury also heard witness testimony from Sergeant Agustin Arias, who started the cold-case investigation into Spradling’s death, as well as former gang associates Anthony Best, Lawrence Faulkner, and Labarron Reynolds. Predicate Offenses Detective Casey testified that the primary activities of the Brims/Blood gang included, “murder, attempt[ed] murder, assault with a deadly weapon, sales of base cocaine, gang member in possession of a firearm, felon in possession of a firearm, [and] witness intimidation.” Detective Casey identified seven predicate offenses, but only two survived AB 333’s amendments. The first was respondent’s own conviction for carrying a concealed firearm while being an active member of the Six Deuce Brims gang and a felon who is prohibited from possessing a firearm. (§12025, subds. (a)(2), (b)(3), (b)(4).) Certified court documents reflected respondent’s conviction and admission to that crime. The second remaining predicate offense involved five Brims gang members who were all convicted of assault with force likely to commit great bodily injury (§ 245, subd. (a)(1)) and being active participants in a criminal street gang (§ 186.22, subd. (a)). In that case, the individuals were in a vehicle, fired a shot at someone, then fled the area. No other evidence regarding the predicate offenses was admitted. Discussion The People contend the trial court erred in granting respondent’s motion for new trial because the evidence at trial demonstrated, beyond a reasonable doubt, that the jury would 6 have rendered the same verdict absent the instructional error created by the passage of AB 333. The trial court has broad discretion in ruling on a new trial motion, and its decision will be disturbed only for clear abuse of that discretion. (People v. Ault (2004) 33 Cal.4th 1250, 1260 (Ault).) The People recognize this general rule, but contend independent review “seems more fitting” given that the court below was not the original trial judge and based its review on a cold transcript and exhibits. Presumptions on appeal are in favor of the order, and the appellate court does not independently redetermine the question whether an error was prejudicial. As our Supreme Court explained in Ault, “the trial court’s order granting a new trial will not be disturbed if fairly debatable, even if a reviewing court itself, addressing the issues de novo, would not have found a basis for reversal.” (Ault, supra, 33 Cal.4th at pp. 1262-1263, italics added.) We will review the trial court’s order for abuse of discretion. Assembly Bill No. 333 In 2021, the Legislature passed AB 333, which became effective January 1, 2022. (Stats. 2021, ch. 699.) The new legislation made several changes to the definition of section 186.22 gang enhancements. “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,’ [AB] 333 requires that any such pattern have been ‘collectively engage[d]

7 in’ by members of the gang. (§ 186.22, subd. (f), italics added.) Third, [AB] 333 also narrowed the definition of a ‘pattern of criminal 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, [AB] 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).).” (People v. Tran (2022) 13 Cal.5th 1169, 1206 (Tran).) Examples may include “financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a potential . . . witness or informant.” (§ 186.22, subd. (g).) “Although [AB] 333 does not expressly address the gang- murder special circumstance set forth in section 190.2, subdivision (a)(22), the latter statute defines ‘criminal street gang’ by express cross-reference to section 186.22, subdivision (f).” (People v. Hin (2025) 17 Cal.5th 401, 461 (Hin).) The same is true for a firearm enhancement alleged pursuant to section 12022.53, subdivision (e)(1). (See, e.g., People v. Cooper (2023) 14 Cal.5th 735, 746 (Cooper).) Harmless Error Standard “When a substantive change occurs in the elements of an offense and the jury is not instructed as to the proper elements, the omission implicates the defendant’s right to a jury trial under the Sixth Amendment, and reversal is required unless ‘it appears 8 beyond a reasonable doubt’ that the jury verdict would have been the same in the absence of the error.” (Tran, supra, 13 Cal.5th at p. 1207, quoting People v. Flood (1998) 18 Cal.4th 470, 504.) To prove harmless error under the Chapman standard, “it is not enough to show that substantial or strong evidence existed to support a conviction under the correct instructions.” (People v. Sek (2022) 74 Cal.App.5th 657, 668.) Rather, the question is “ ‘ “whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element.” ’ ” (People v. Lamb (2024) 16 Cal.5th 400, 449 (Lamb), quoting People v. Mil (2012) 53 Cal.4th 400, 417.) The People acknowledge that AB 333’s changes apply retroactively to respondent’s now nonfinal judgment (see Lopez, supra, 17 Cal.5th at p. 392), meaning that the jury was incorrectly instructed on the elements for both the gang-murder special circumstance (§ 190.2, subd. (a)(22)) and the gang special allegations (§ 186.22, subd. (b)). However, the People contend the instructional error was harmless because there was “overwhelming evidence” to support respondent’s conviction under current law. The trial court rejected this argument based on the standards articulated and applied in three recent California Supreme Court decisions, which examined Chapman and its applicability in the wake of AB 333. (See Cooper, supra, 14 Cal.5th at pp. 739, 746; Lamb, supra, 16 Cal.5th at pp. 448-449; Hin, supra, 17 Cal.5th at pp. 462-463.) People v. Cooper In Cooper, the defendant was convicted of first degree murder, and the jury found true a gang enhancement under former section 186.22. (Cooper, supra, 14 Cal.5th at pp. 738, 9 740.) The predicate offenses were a robbery and the sale of narcotics. (Id. at pp. 740-741.) The gang expert testified that both offenses were among the gang's primary activities but did not testify how they benefited the gang. (Cooper, supra, 14 Cal.5th at p. 741.) On appeal, the Attorney General argued that “crimes that have an inherent financial benefit and that are identified as the gang's primary activities qualify as a common benefit to the gang that is ‘more than reputational’ under [AB] 333.” (Id. at p. 743.) The Supreme Court disagreed, explaining that “robbery and narcotics sales ‘may of course be committed by gang members only for personal gain (which, relatedly, may benefit the gang only reputationally).’ ” (Cooper, supra, 14 Cal.5th at p. 743.) Thus, “the question of whether an offense is within the gang’s primary activities is distinct from the question of whether a particular offense has ‘commonly benefited a criminal street gang.’ [Citation.] A jury determination regarding the gang’s primary activities merely constitutes a conclusion about the types of activities in which a gang typically engages, whereas the question about a common benefit asks about how the specific predicate offense actually benefited the gang.” (Ibid., italics added.) People v. Lamb In Lamb, the defendant was convicted of various crimes, including first degree murder after shooting a member of his own gang in the back of the head. (Lamb, supra, 16 Cal.5th at pp. 408-409.) The jury found true a gang-murder special circumstance allegation (§ 190.2, subd. (a)(22)) and the gang enhancement allegations (§ 186.22) for all charges except street terrorism. (Lamb, at p. 409.)

10 The Supreme Court reversed the gang findings based on AB 333. It concluded that “although there was an abundance of gang evidence presented to the jury, and each predicate offense had a gang enhancement under a prior version of section 186.22, the record [did] not sufficiently disclose the circumstances surrounding the predicate offenses or how any specific predicate offense actually benefited the gang. Thus, a rational juror could have reasonably concluded that any common benefit was not more than reputational.” (Lamb, supra, 16 Cal.5th at p. 445.) People v. Hin In Hin, the defendant was convicted of several crimes with gang-related allegations, including first degree murder. (Hin, supra, 17 Cal.5th at pp. 418-419, 460.) The gang expert testified that the types of crimes alleged as predicate offenses (i.e., drug sales, burglary, and the murder of a rival gang member) could have offered both reputational and nonreputational benefits to a gang. (Id. at p. 463.) The Supreme Court observed, however, that the gang expert did not offer any testimony as to whether the specific alleged predicate offenses benefited the gang as a whole, and the record was otherwise silent as to the circumstances of those two predicate offenses. The Court concluded that “the evidence does not show that either crime was committed for the benefit of the gang rather than for personal gain.” (Ibid.) Instructional Error Requires Reversal Here, in a thorough and detailed opinion, the trial court found that “[d]espite ample gang evidence presented at trial and the inferences a jury could have drawn therefrom about any nonreputational gang benefit, the absence of specific evidence as to the two predicate offenses, coupled with other errors from the 11 record, suggest the jury could well have found the common benefit of the two predicate offenses was reputational, meaning . . . any instructional omission cannot be deemed harmless beyond a reasonable doubt under Chapman.” The People contend the trial court’s decision “misapprehends the Chapman analysis in applying AB 333 to the predicates by deciding that just because there was some evidence of a reputational benefit to the gang from the predicates, the predicates do not survive the new requirements.” We disagree. The trial court properly focused its analysis on “whether the instructional omission spawned by [AB] 333, involving failure to instruct on the meaning of ‘pattern of criminal gang activity,’ and specifically whether any instructional omission (informing the jury that a predicate offense must benefit the gang beyond reputation) was harmless beyond a reasonable doubt . . . .” (Italics added.) At the outset, the trial court noted that the prosecutor begins the “Chapman odyssey” from an “unusually difficult position” given that the jurors in this case were permitted to consider currently charged offenses (i.e., murder and dissuading a witness), as well as three other predicate offenses that did not survive AB 333’s changes, “all in association with the showing a ‘pattern of criminal gang activity.’ ” As the Court in Lamb observed, “This makes it more difficult to conclude ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ ” (Lamb, supra, 16 Cal.5th at pp. 454- 455.) The People contend two of the predicate offenses offered at trial (i.e., respondent’s own conviction for carrying a concealed firearm and the assault with a deadly weapon violation)

12 established a pattern of criminal gang activity that commonly benefited the gang in more than just reputation. The People emphasize that respondent’s gang was involved in an ongoing “war” with rival VLP, which began in 2005—before either of the predicate offenses occurred. There were shootings and stabbings back and forth. Guns were in short supply and in demand for retaliation. It was understood that gang members were to shoot rivals on sight. Failure to do so would be seen as weak. While all that may be true, the record is silent as to how the predicate offenses specifically benefited the gang in a more than reputational way. As the trial court explained, “not one of the five witnesses ever tied the two 2007 predicate crimes to any nonreputational benefit, and there is no evidence, either from the certified court records or otherwise, about how each of these two crimes benefit the Brims in a nonreputational manner.” In any event, “a rational juror could have concluded that the[] two predicate offenses ‘were committed for personal gain alone.’ ” (Hin, supra, 17 Cal.5th at p.463; Cooper, supra, 14 Cal.5th at p. 744.) And while it is also possible that the jury could infer an extra-reputational benefit to the gang, our Supreme Court has rejected such an inference-based approach in assessing harmless error in this context. (See Lamb, supra, 16 Cal.5th at pp. 452-453 [“Although the Attorney General repeatedly argues that the jury could infer an extra-reputational benefit, he does not argue that the jury would have been unable to infer the opposite”]; Cooper, supra, 14 Cal.5th at p. 743 & fn. 7 [whether the jury could draw a reasonable inference that the predicate offenses commonly benefited the gang is “not the proper standard”].)

13 The instructional error was further compounded by other changes in the law that would affect the jury’s determination. As the trial court observed, the jury in this case was expressly instructed that the predicate offenses need not be gang related. “This instruction directly contradicts [AB] 333’s new requirement that the predicate offenses ‘commonly benefited [the] criminal street gang, and the common benefit from the offenses is more than reputational.’ ” (Cooper, supra, 14 Cal.5th at p. 744; accord, Lamb, supra, 16 Cal.5th at p. 454.) There was also no evidence to show a connection or nexus between the predicate offenses and the organizational structure of the gang to prove collective engagement. (See People v. Clark (2024) 15 Cal.5th 743, 749 [organizational nexus requirement satisfied by showing connection between predicate offense and organizational structure, primary activities, or common goals and principles of the gang].) As the trial court observed here, Detective Casey did not describe the hierarchical structure of the gang. There was no evidence that the predicate offenses were ordered by higher ranking gang members. And there was no evidence to “link” the predicate offenses to an “ ‘organized effort’ ” by the gang. Accordingly, the instructional error was prejudicial under Chapman. Finally, we note that the People argue here, as they did below, that the charged murder meets and exceeds the requirements of AB 333. However, as the trial court explained in its ruling, while this point was certainly relevant at the time of trial given that the charge of murder was used as one of the seven predicate offenses, it has “limited utility” for current purposes.

14 Based on the foregoing, the trial court properly found the instructional error was not harmless beyond a reasonable doubt under Chapman. As such, its determination to grant respondent’s new trial motion on the gang findings was not an abuse of discretion. Disposition The trial court’s order is affirmed. NOT TO BE PUBLISHED.

YEGAN, J. We concur:

CODY, P. J.

McKAIG, J.* * Superior Court of Ventura County, Ronda McKaig, Judge. (Assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)

15 Von Deroian, Judge Superior Court County of Santa Barbara _____________________________ John T. Savrnoch, District Attorney, Marguerite Clipper Charles, Snr. Deputy District Attorney, for Plaintiff and Appellant. Jennifer Peabody, Executive Director, Ava Wallace, Staff Attorney, under appointment by the Court of Appeal, for Defendant and Respondent.