People v. Boukes CA4/2

Opinion

Filed 8/18/26 P. v. Boukes CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E086080 v. (Super.Ct.No. BAF1600917)

NOY ESTUL BOUKES, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Joshlyn R. Pulliam, Judge. Affirmed with directions.

Marilee Marshall for Defendant and Appellant.

Rob Bonta, Attorney General, Charles C. Ragland and Arlene Sevidal, Assistant Attorneys General, Stephanie H. Chow and Elana Miller, Deputy Attorneys General, for Plaintiff and Respondent.

In our first opinion in this case, we affirmed defendant and appellant Noy Estul Boukes’s conviction and sentence to life without the possibility of parole for first degree 1 murder and the jury’s true findings on a gang special circumstance and gang enhancement allegations, but remanded for the trial court to exercise its sentencing discretion on the gang enhancements associated with two counts. We also reversed and remanded for the trial court to strike three prior prison term enhancements that had been rendered invalid by a superseding amendment to former section 667.5 of the Penal Code made by Senate Bill No. 136 (2019-2020 Reg. Sess.).1 On remand, the trial court imposed the gang enhancements but struck the punishment for them, and struck the prior prison term enhancements as directed in our remittitur.

Subsequently, the Legislature enacted Assembly Bill No. 333 (2021-2022 Reg.

Sess.) and amended the gang enhancement (§ 186.22) and, by definition, the gang special circumstance statute (§ 190, subd. (a)(22)), to require, inter alia, evidence that the collective benefit to the gang of the underlying offense was more than reputational (§ 186.22, subd. (g)). In addition, the legislature enacted section 1172.75, which retroactively applied the amendment to section 667.5 and provided for full resentencing to a defendant whose judgment includes an invalid prior prison term enhancement.

On appeal from the sentence imposed on remand from our first opinion, we found the amendments made by Assembly Bill No. 333 applied to defendant and reversed the gang special circumstance and gang enhancements for lack of substantial evidence and remanded either for retrial or for the trial court to strike the findings and resentence defendant. The prosecutor elected not to retry the gang special circumstance and gang 1 All undesignated statutory references are to the Penal Code.

2 enhancements, and the trial court resentenced defendant under the three strikes law.

Because the court had already stricken the prior prison term enhancements after the first appeal, it found defendant was ineligible for full resentencing under section 1172.75.

In this appeal, defendant argues he was eligible for resentencing under section 1172.75, regardless of whether the prior prison term enhancements had already been stricken. Defendant also argues, and the People concede, that under People v. Fletcher (2025) 18 Cal.5th 576 (Fletcher) the trial court must consider whether one of his strike priors is no longer supported by substantial evidence after the amendments made by Assembly Bill No. 333. We conclude defendant was not eligible for full resentencing under section 1172.75, but agree defendant is entitled to a remand for the trial court to determine whether his strike prior is valid under current law. If the court determines the strike prior is no longer valid under current law, the trial court must strike the allegation and fully resentence defendant at that time.

I.

PROCEDURAL BACKGROUND2

“A jury found defendant guilty of the first degree murder of victim 1 (. . .§ 187, subd. (a); count 1), threatening victim 2 (§ 422; count 2), and falsely imprisoning victim 2 (§ 236; count 3). The jury also found true allegations that defendant intentionally 2 The underlying facts of the offenses are irrelevant to the legal issues presented here. By order dated September 22, 2025, we granted defendant’s request for judicial notice of our two prior opinions in this case: People v. Boukes (E072973, Dec. 4, 2020) [nonpub. opn.] (Boukes I) and People v. Boukes (2022) 83 Cal.App.5th 937 (Boukes II). (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)

3 murdered victim 1 while he was an active member of a criminal street gang (§ 190.2, subd. (a)(22)) (special circumstance finding); that he personally discharged a firearm during the commission of the murder, proximately causing great bodily injury or death (former § 12022.53, subd. (d); Stats. 2018, ch. 423, § 114; § 1192.7, subd. (c)(8)); and that the offenses in counts 2 and 3 were committed for the benefit of, at the direction of, or in association with a criminal street gang (former § 186.22, subd. (b)(1)(A); Stats.

2017, ch. 561, § 178).” (Boukes II, supra, 83 Cal.App.5th at p. 938, fn. omitted.)

Separately, defendant admitted to having served three prior prison terms within the meaning of former section 667.5, subdivision (b), and to having suffered two strike convictions. The trial court sentenced defendant to state prison for life without the possibility of parole (LWOP) for his conviction for special circumstance murder; an indeterminate term of 25 years to life for the firearm use enhancement and, under the three strikes law, consecutive terms of 25 years to life for each of his convictions on counts 2 and 3, for a total indeterminate term of LWOP plus 75 years to life. Last, the court sentenced him to state prison for the determinate term of three years for his admission to having served three prior prison terms. (Boukes I, supra, E072973.)

In his first appeal, defendant argued, inter alia, the gang special circumstance and gang enhancements found true by the jury were not supported by substantial evidence and the three one-year prior prison term enhancements were no longer valid and had to be stricken. We affirmed the gang special circumstance and gang enhancements and remanded for the trial to exercise its discretion to either sentence defendant for the gang 4 enhancements on counts 2 and 3, strike the punishment for the enhancements, or strike the enhancements altogether. However, we agreed with defendant (and accepted the People’s concession) that he was entitled to the retroactive benefit of an ameliorative amendment to section 667.5 made by Senate Bill No. 136 (2019-2020 Reg. Sess.), which rendered invalid all one-year prior prison term enhancements except for priors served for sexually violent offenses. Therefore, we directed the trial court to strike the prior prison term enhancements. (Boukes I, supra, E072973.)

During an April 7, 2021, hearing on remand the trial court imposed the gang enhancements on counts 2 and 3 but struck the punishment for them. (Boukes II, supra, 83 Cal.App.5th at p. 943.) With respect to the three prior prison term enhancements, the trial court struck them “as no longer authorized by law.”

Effective January 1, 2022, the Legislature enacted former section 1171.1 (Stats.

2021, ch. 728, § 3), later renumbered without substantive change as section 1172.75, effective June 30, 2022 (Stats. 2022, ch. 58, § 12), which retroactively applies the ameliorative changes made to section 667.5 by Senate Bill No. 136 and invalidates all prior prison term enhancements imposed for non-sexually violent offenses. (§ 1172.75, subd. (a).) As explained further, post, that statute also provides that a defendant is entitled to full resentencing if the trial court finds the “current judgment” includes an invalid prior prison term enhancement. (Id., subds. (c), (d).)

In our September 29, 2022, opinion in defendant’s second appeal, we held the gang special circumstance and gang enhancements were no longer supported by 5 substantial evidence due to intervening changes made by Assembly Bill No. 333.

Therefore, we reversed and remanded for a retrial on the allegations or for resentencing.

(Boukes II, supra, 83 Cal.App.5th at pp. 939, 943-944.)

On remand, the prosecutor declined to retry the gang special circumstance and gang enhancements. At a resentencing hearing conducted by a different judge on May 8, 2025, the prosecutor informed the court that the three one-year prior prison term enhancements had already been stricken.3 Because the enhancements had been stricken “before the change in the law,” the court stated, “I don’t believe that would entitle Mr.

Boukes to a full resentencing under 1172.75.” Therefore, the court indicated its intention to resentence defendant “based on the remittitur,” and not under section 1172.75 because “you don’t qualify for resentencing under that statute.” The court struck the gang special circumstance and gang enhancement findings as directed in our prior opinion but denied defendant’s request to dismiss the two strike conviction allegations pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). The court resentenced defendant on count 1 under the three strikes law to 75 years to life; reduced the firearm use enhancement for count 1 and sentenced him to a consecutive term of 10 years; and sentenced defendant to a consecutive term of 25 years to life for count 2 and to the concurrent middle term of two years for count 3, for a total indeterminate term of 110 years to life.

3 Defendant did not move for resentencing under section 1172.75, orally or in writing. Instead, the discussion of section 1172.75 was triggered by the prosecutor’s mistaken captioning of his sentencing brief.

6 Defendant appealed.

II.

DISCUSSION

A. Defendant Is Not Eligible For Resentencing Under Section 1172.75.

Defendant contends the trial court erred by not fully resentencing him pursuant to section 1172.75 on remand from our last opinion. Although he concedes his three prior prison term enhancements had already been stricken well before his resentencing, defendant argues his sentence was not final and he was entitled to the retroactive benefits of section 1172.75. The question before this court is not whether section 1172.75 applies retroactively. The statute itself answers that question. (§ 1172.75, subd. (a).) The more salient question for us is whether the defendant met the criteria under that statute for full resentencing. We must answer that question in the negative.

“Before 2019, Penal Code section 667.5, subdivision (b) (section 667.5(b))

instructed trial courts to ‘impose a one-year term for each prior separate prison term or county jail term’ served for a felony, with an exception not applicable here for a five-year period of freedom from custody and felony offenses. (Stats. 1976, ch. 1139, § 268, p. 5138, as amended by Stats. 2011, ch. 15, § 442; see People v. Langston (2004) 33 Cal.4th 1237, 1241.)” (People v. Rhodius (2025) 17 Cal.5th 1050, 1054 (Rhodius).)

“In 2019, in an effort to reduce the societal and fiscal burdens of incarceration, the Legislature passed Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill No. 136), which amended section 667.5(b) to eliminate prior-prison-term enhancements for all 7 prior crimes except for ‘sexually violent offense[s] as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code.’ (Stats. 2019, ch. 590, § 1.) In 2021, Senate Bill No. 483 (2021-2022 Reg. Sess.) made this change retroactive. It enacted Penal Code section 1171.1 (Stats. 2021, ch. 728, §§ 1, 3), later renumbered without substantive change as Penal Code section 1172.75 (section 1172.75) (Stats. 2022, ch. 58, § 12), which declares: ‘Any sentence enhancement that was imposed prior to January 1, 2020, pursuant to subdivision (b) of Section 667.5, except for any enhancement imposed for a prior conviction for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code is legally invalid.’ (§ 1172.75, subd. (a) (section 1172.75(a)).)” (Rhodius, supra, 17 Cal.5th at p. 1054.)

“A defendant serving a term for a judgment that includes a now-invalid enhancement is entitled to resentencing. (§ 1172.75, subds. (a), (c).) To facilitate the process, the statute directs California’s Department of Corrections and Rehabilitation (CDCR) to ‘identify those persons in their custody currently serving a term for a judgment that includes an enhancement described in subdivision (a).’ (Id., subd. (b).)

Upon receiving that information, the sentencing court must ‘review the judgment and verify that the current judgment includes a sentencing enhancement described in subdivision (a).’ (Id., subd. (c).) ‘If the court determines that the current judgment includes an enhancement described in subdivision (a), the court shall recall the sentence and resentence the defendant.’ (Ibid.)” (Rhodius, supra, 17 Cal.5th at p. 1055.) “In other words, a prior-prison-term enhancement ‘imposed’ before 2020 is now invalid, and 8 any prisoner whose judgment includes such an enhancement is entitled to resentencing under section 1172.75.” (Id. at p. 1058.)

In Rhodius, our Supreme Court held “section 1172.75 entitles a defendant to resentencing if the underlying judgment includes a prior-prison-term enhancement that was imposed before January 1, 2020, regardless of whether the enhancement was then executed or instead stayed.” (17 Cal.5th at p. 1054.) More recently, our Supreme Court expanded on Rhodius and held a defendant is entitled to full resentencing under section 1172.75 if the judgment includes a now-invalid prior prison term enhancement that had been imposed but the punishment had been stricken. (People v. Espino (2026) 20 Cal.5th 57, 66.) So far, our Supreme Court has not addressed the question posed in his case: is a defendant eligible for resentencing under section 1172.75 if the trial court had previously imposed a now-invalid prior prison term enhancement, but the court has already struck the enhancement itself and not merely struck the punishment for the true finding. (See Rhodius, at p. 1066, fn. 2 [declining to address “the application of section 1172.75 where prior-prison-term enhancements were stricken”]; Espino at p. 61, fn. 1 [“As that question is not at issue in this case, we do not address it.”].)

In People v. Tang (2025) 109 Cal.App.5th 1003 (Tang), the trial found true an allegation that the defendant had suffered a prior prison term as defined in former section 667.5, subdivision (b), and at sentencing the court imposed but stayed the enhancement, not just the punishment. (Tang, at p. 1006.) On direct appeal, the appellate court affirmed the judgment but, applying the decision in People v. Jones (1993) 5 Cal.4th 9 1142, 1153, ruled the trial court had erred by staying the enhancement and modified the judgment to strike the enhancement entirely. (Tang, at p. 1006.) After the Legislature amended former section 667.5 to invalidate prior prison term enhancements for non- sexually violent offenses and made that amendment retroactive in section 1172.75, the defendant petitioned the trial court for a full resentencing. (Tang, at p. 1006.) The trial court denied the petition, finding the appellate court had already “‘ordered the prison priors stricken,’” and “‘with no current imposed prison prior . . . there is no basis for the exercise of jurisdiction under the retroactive application of [Senate Bill No.] 483.’”

(Tang, at p. 1007.)

On appeal, the defendant argued the trial court had erred by ruling he was ineligible for resentencing under section 1172.75 because that statute “affords relief to all defendants whose sentences include a prior prison term enhancement, whether the enhancement was executed, stayed, or stricken.” (Tang, supra, 109 Cal.App.5th at p. 1007.) The appellate court agreed with the People that “that a stricken enhancement cannot be a ‘sentence enhancement that was imposed’ under section 1172.75, subdivision (a).” (Ibid.)

The appellate court noted that, at the time of its decision, other courts were divided on the question of whether section 1172.75 applied to prior prison terms that had been “imposed and executed, imposed and stayed, or imposed and punishment struck,” but none had addressed the scenario where “the enhancement itself” had been stricken from the judgment. (Tang, supra, 109 Cal.App.5th at pp. 1007-1008.) Addressing that 10 question, the court noted, “It would be anomalous to conclude that an enhancement was both imposed by and stricken from the judgment.” (Id. at p. 1008, italics added.)

Another panel of the same court had already ruled that, if a trial court concludes a defendant’s judgment contains a now-invalid prior prison term enhancement that had been imposed but stayed, the court is required to strike it. (Ibid., citing People v. Saldana (2023) 97 Cal.App.5th 1270, 1278.) “Here, the enhancement has already been stricken.

It would make little sense to provide ‘all relief (full resentencing)’ when no relief on the enhancement requiring full resentencing (striking the invalid enhancements) is necessary or possible.” (Tang, at p. 1008, quoting Saldana, at p. 1278.) Therefore, the court held a prior prison term enhancement that had previously been stricken in its entirety has not been “imposed” for purposes of section 1172.75, subdivision (a), and affirmed the denial of the motion for resentencing. (Tang, at pp. 1010-1011.)

To repeat, in our first opinion we held the amendments to former section 667.5 applied retroactively to the defendant and we reversed in part and directed the trial court to strike all three of the prior prison term enhancements that had been previously imposed and executed. (Boukes I, supra, E072973.) On remand, the trial court complied with this court’s remittitur and struck the enhancements in their entirely because they were “no longer authorized by law.” When the matter was returned to the trial court for resentencing after our second opinion, the trial court and the parties agreed the enhancements had already been stricken in their entirety.

11 We are persuaded by the reasoning in Tang that, regardless of whether a trial court had previously imposed a prior prison term enhancement, it is no longer “imposed” for purposes of section 1172.75, subdivision (a) if the enhancement has already been stricken in its entirety. (Tang, supra, 109 Cal.App.5th at pp. 1007, 1010.) Likewise, we conclude defendant was not eligible for resentencing under section 1172.75 because, at the time of his resentencing, his “current judgment” did not “include[]” an invalid prior prison term enhancement. (§ 1172.75, subd. (c); see Rhodius, supra, 17 Cal.5th at p. 1058.)

Therefore, the trial court correctly declined to resentence defendant under section 1172.75.

B. The Trial Court Must Consider Whether One of Defendant’s Strike Priors Is Invalid Under Assembly Bill No. 333.

Defendant contends that, pursuant to Fletcher, supra, 18 Cal.5th 576, he is entitled to a remand for the trial court to determine whether one of his strike priors satisfies the current requirements of the gang statute, and for the court to “invalidate” the prior. The People concede defendant is entitled to a remand for the trial court to determine whether the strike prior is valid under current law. We agree with the concession and so order.

The first amended information alleged defendant suffered a serious prior felony conviction on October 16, 2012, for the substantive gang offense in violation of former Penal Code section 186.22, subdivision (a).4 Just before sentencing, defendant admitted to having suffered that prior conviction and admitted it qualified as a “prior strike.”

4 On our own motion, we now take judicial notice of the record in case No. E072973. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)

12 (Boukes I, supra, E072973.) In defendant’s Romero motion filed after his second appeal, however, defense counsel stated the available police reports indicated defendant was the passenger of a stolen vehicle and, after a brief police pursuit that ended in a minor traffic accident, defendant was arrested, charged and convicted of violating Vehicle Code section 10851 with a true finding on a gang enhancement under former Penal Code section 186.22, subdivision (b).

As noted, ante, Assembly Bill No. 333 amended section 186.22 to provide, among other things, that an offense committed on behalf of a gang may support a substantive gang offense, gang enhancement, or, by definition, a gang special circumstance finding, only if “the common benefit [to members of a gang] is more than reputational.”

(§ 186.22, subd. (g).) In our prior opinion, we concluded the amendment applied retroactively to defendant; the record did not contain substantial evidence of a more than reputational benefit to the gang to support the gang special circumstance and gang enhancements; and we reversed and remanded for retrial on those allegations or for resentencing. (Boukes II, supra, 83 Cal.App.5th at pp. 939, 943-944; see People v. Tran (2022) 13 Cal.5th 1169, 1206-1207 [holding Assembly Bill No. 333 applies retroactively to cases pending on appeal].)

Since then, our Supreme Court in Fletcher held that, “where a defendant has suffered a conviction under the prior version of section 186.22, Assembly Bill [No.] 333 applies to the determination of whether the conviction qualifies as a prior serious felony conviction under subdivision (c)(28) of section 1192.7 for purposes of the Three Strikes 13 law and prior serious felony enhancements.” (Fletcher, supra, 18 Cal.5th at p. 583.) If the record contains “no indication that [the defendant’s prior] conviction was obtained under Assembly Bill [No.] 333’s more stringent requirements,” and the evidence used to prove the existence of the strike prior “do[es] not alone prove the elements of the alleged prior serious felony and strike prior enhancements beyond a reasonable doubt,” the remedy is to provide the People an opportunity to retry the strike allegation under the current law. (Id. at p. 607.) And, if the People elect not to retry the strike prior or fail to prove beyond a reasonable doubt that it satisfies the requirements of Assembly Bill No.

333, the trial court must dismiss the allegation and conduct a full resentencing. (See People v. Buycks (2018) 5 Cal.5th 857, 893.)

Pursuant to the People’s concession, we remand for the trial court to determine whether the strike prior defendant admitted (whether it was for the substantive gang offense or for a separate offense with a gang enhancement) remains valid under current law.

III.

DISPOSITION

The judgment is affirmed. The matter is remanded for the trial court to determine from the record whether defendant’s strike prior is valid under Assembly Bill No. 333. If the court determines the record does not prove the strike prior satisfies the requirements of that bill, the People shall be given the opportunity to retry the allegation. And, if the People elect not to retry the allegation or are unable to establish the truth of the allegation 14 under current law, the trial court shall dismiss the allegation and fully resentence defendant.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER J.

We concur:

RAMIREZ P. J.

CODRINGTON J.