People v. Madrigal CA2/6

Opinion

Filed 9/14/26 P. v. Madrigal CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B347031 (Super. Ct. No. 2013023115) Plaintiff and Respondent, (Ventura County)

v.

ANTONIO MADRIGAL,

Defendant and Appellant.

Antonio Madrigal appeals following his resentencing on remand pursuant to Penal Code section 1172.75.1 He contends the trial court erred by denying relief beyond striking his prior prison enhancements under section 667.5. He argues the court should have granted his request to retry his case, in part, under section 186.22 as amended by Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 699, §§ 3, 4) (AB 333). We agree and will remand for a full resentencing.

1 Undesignated statutory references are to the Penal Code. PROCEDURAL BACKGROUND Appellant coordinated the attack of another inmate while incarcerated at a Ventura County jail in July of 2013. A jury convicted appellant of active participation in a criminal street gang (§ 186.22, subd. (a); count 1), assault by force likely to produce great bodily injury (§ 245, subd. (a)(4); count 2), and conspiracy to commit assault by force likely to produce great bodily injury (§ 182, subd. (a)(1); count 3). The jury also found true two criminal street gang allegations. (§ 186.22, subd. (b)(1).) In a bifurcated proceeding, appellant admitted five strike priors (§ 667, subd. (e)(2)), a serious felony prior (id., subd. (a)(1)), and two prior prison commitments (§ 667.5, subd. (b)). In 2014, the trial court sentenced appellant to prison for 25 years to life plus a determinate term of 10 years, which included a one-year term for the prison prior enhancement on count 2. The prison prior on count 3 was stayed. We affirmed the judgment. (People v. Madrigal (Oct. 8, 2015, B254702) [nonpub. opn.]; People v. Madrigal (Jan. 12, 2017, B254702) [nonpub. opn.].) First Resentencing and Appeal In 2022, the California Department of Corrections and Rehabilitation (CDCR) referred appellant as potentially eligible for resentencing pursuant to Senate Bill 483. (Stats. 2021, ch. 728, § 3.) The trial court denied the petition for resentencing. It concluded appellant was ineligible because he was not currently serving a sentence based on a section 667.5, subdivision (b) enhancement. We reversed and remanded the case with directions to strike the enhancement and resentence appellant pursuant to section 1172.75. (People v. Madrigal (Nov. 18, 2024, B333969) [nonpub. opn.].)

2 Resentencing on Remand On remand, the People initially told the court they would retry count 1 and the gang enhancements on counts 2 and 3. For reasons not stated in the record, this did not occur. The court held a resentencing hearing instead. The People conceded the court should strike the section 667.5, subdivision (b) enhancements but argued that striking any other enhancements was not required under section 1385 because doing so “would not be in the furtherance of justice” and “would endanger public safety.” Appellant’s counsel argued AB 333 rendered judgment non-final, entitling him to a new trial “at least as to the gang allegation and arguably as to the entire case.” The court acknowledged it had “full discretion to reconsider all aspects of the sentence previously imposed” but believed “the previous sentence was appropriate and just in its gravity.” It struck the section 667.5, subdivision (b) enhancements. This reduced appellant’s aggregate determinate term from ten years to nine years. The court then reimposed the indeterminate term of 25 years to life “in light of [appellant’s] three strikes . . . .” It stated appellant “ha[d] made his record well in terms of any issues preserved for appeal in terms of any right to a new trial.” DISCUSSION AB 333’s Amendment of Section 186.22 Appellant contends the trial court erred when it sentenced him based upon his active participation in a criminal street gang conviction (count 1) and the gang enhancements on the assault and conspiracy convictions (counts 2 and 3). He argues the trial court’s recalling of his sentence under section 1172.75 rendered judgment non-final and entitled him to retrial under AB 333’s ameliorative amendments to section 186.22. Respondent 3 concedes the amendments apply retroactively but asserts any error is harmless under Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705] (Chapman) because “there is overwhelming evidence showing the requirements of AB 333 have been satisfied.” We agree with appellant and will reverse. AB 333 modified the law on gang crimes and enhancements in several ways. As relevant here, it amended section 186.22 to increase the evidentiary burden to prove the crime of active participation in a criminal street gang (§ 186.22, subd. (a)) and a gang enhancement (id., subd. (b)) by requiring the charged offense and any predicate offenses benefit the gang in a way that “is more than reputational.” (Id., subds. (e)(1) & (g).) It amended the definition of a “‘pattern of criminal gang activity’”—an element of proving the crime of active participation as well as a gang enhancement—to mean two or more predicate offenses, the last of which “occurred . . . within three years of the date the current offense is alleged to have been committed . . . .” (Id., subd. (e)(1).) It also precluded using the currently charged offense to establish a pattern. (Id., subd. (e)(2).) Proving predicate offenses under section 186.22, subdivision (b) now requires showing “a connection between the predicate offenses and the organizational structure, primary activities, or common goals and principles of the gang.” (People v. Clark (2024) 15 Cal.5th 743, 749.) The jury convicted appellant under the prior version of section 186.22. “With the relevant aspects of [AB 333] applying retroactively, this disconnect with the law as it has since been amended constitutes error affecting defendant’s conviction for active participation in a criminal street gang and the true findings as to the gang enhancements . . . .” (People v. Aguirre 4 (2025) 18 Cal.5th 629, 715 (Aguirre).) “Under Chapman, vacating the jury’s finding is ‘required unless “it appears beyond a reasonable doubt” that the [finding] would have been the same’ under current law.” (In re A.M. (2024) 102 Cal.App.5th 557, 570, quoting People v. Tran (2022) 13 Cal.5th 1169, 1207.) “If ‘there is any reasonable possibility that the error might have contributed to the’ finding, vacatur is required.” (Ibid., quoting People v. Lewis (2006) 139 Cal.App.4th 874, 887.) The People introduced evidence of four predicate offenses at appellant’s original trial to prove the crime and enhancements under the prior statute. Respondent concedes two of these occurred outside of the three-year window for predicate offenses under the amended definition of “a pattern of criminal gang activity.” This leaves only two applicable predicates here: (1) a February 2012 conviction following the assault of a correctional officer at a California Youth Authority facility; and (2) a November 2012 conviction following the assault of an inmate by two purported Sureño gang members at a Ventura County jail. The People’s gang expert provided detailed hearsay testimony about these crimes. Appellant agreed to admit this testimony as the basis of the expert’s opinion, not for its truth, and the People agreed to prove the predicate offenses through certified records of conviction. The court instructed jurors accordingly. The certified records for the February 2012 assault include a felony disposition statement signed and filed by defendant Carlos Portillo on May 31, 2012. Portillo pleaded no contest to one felony count of assault on a police officer. He admitted a gang allegation and one prior strike. The felony complaint forms the factual basis of his plea. The certified records for the November 2012 assaults include felony disposition statements 5 signed and filed by defendants Elias Dunn and Arturo Gonzalez. Like Portillo, both Dunn and Gonzalez admitted gang allegations and prior strikes. The disposition statements list preliminary hearing transcripts, police reports, and probation reports as the factual basis of their pleas but these documents are not included in the record on appeal for this case or for appellant’s direct appeal. We cannot say the jury would have found appellant guilty of active participation in a criminal street gang, or found true the special allegations, beyond a reasonable doubt under the new law based on these records. The felony disposition statements contain mostly boilerplate provisions detailing the defendant’s waiver of rights and agreed sentence. None of the records describe the crimes committed other than identifying the statutes used to charge them. Each defendant admitted gang allegations but did so under pre-amendment section 186.22. The records provide little information from which the jury could infer the predicate offenses benefitted a gang in a way that was “more than reputational,” much less connect the offenses to “the organizational structure, primary activities, or common goals and principles of the gang.” ( See, People v. Lamb (2024) 16 Cal.5th 400, 454 [absence of evidence how predicate offenses actually benefitted the gang cannot preclude finding that the benefit was merely reputational].) Respondent highlights evidence at trial that appellant was a “shot caller” who coordinated the July 2013 jail attack “for the benefit of, at the direction of, or in association with” the Sureño prison gang. This evidence is not relevant here. The amended statute prohibits prosecutors from using a defendant’s current offense “to establish the pattern of gang activity.” (§ 186.22, 6 subd. (e)(2).) Respondent’s res judicata and law of the case arguments are likewise misplaced because the prior findings of fact and law were made under the pre-amendment statute. Appellant does not seek to relitigate those findings—he seeks new findings under new laws pursuant to section 1172.75. Other Contentions Appellant’s assault and conspiracy convictions qualified as serious felonies under the Three Strikes law only because the jury found the special gang allegations true under pre- amendment section 186.22. He contends his indeterminate prison term and serious felony enhancement will become unauthorized punishments upon reversal of these findings and must be vacated without regard to the risk of danger assessments required under section 1170.126, subdivision (f). The point is both moot and academic. Appellant will receive a full resentencing on remand. We decline to advise the trial court about its future application of the sentencing laws. (See People v. Slayton (2001) 26 Cal.4th 1076, 1084 [“As a general rule, we do not issue advisory opinions indicating ‘“what the law would be upon a hypothetical state of facts.”’”].) Appellant also lists custody credit miscalculations, improper restitution fines, and other errors in the abstract of judgment. Respondent concedes a new abstract of judgment is required. The parties will have the opportunity to propose corrections to the abstract upon remand. DISPOSITION Appellant’s conviction for active participation in a street gang and the true findings on the gang enhancements on counts 2 and 3 are reversed. The People may seek to try the gang charge and enhancements under amended section 186.22. Following any trial, or if none occurs, the trial court will conduct a full 7 resentencing under section 1172.75. Judgment is otherwise affirmed. NOT TO BE PUBLISHED.

CODY, P. J.

We concur:

YEGAN, J.

BALTODANO, J.

8 David R. Worley, Judge Superior Court County of Ventura ______________________________ Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and Michael J. Wise, Deputy Attorney General, for Plaintiff and Respondent.