People v. Serna CA5

Opinion

Filed 9/15/26 P. v. Serna CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE, F089312 Plaintiff and Respondent, (Super. Ct. No. BF117571A) v. JOSE LUIS SERNA, OPINION Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Kern County. Andrew Kendall, Judge. Allan E, Junker, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Kimberley A. Donohue, Assistant Attorney General, Ian Whitney and Tyrone Sandoval, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo- INTRODUCTION Defendant Jose Luis Serna appeals from a resentencing determination under Penal Code section 1172.75 (all undesignated statutory references are to the Penal Code unless indicated otherwise). Found guilty by a jury of attempted premeditated murder (§§ 187, subd. (a), 189, subd. (a), 664), assault with a firearm (§ 245, subd. (b)), and possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), defendant was originally sentenced in 2008 to a term of 12 years determinate, plus a consecutive term of 55 years to life.1 At a resentencing hearing in January 2025 pursuant to section 1172.75, the trial court declined to consider whether Assembly Bill No. 333 (2021–2022 Reg. Sess.) (Assembly Bill 333) applied retroactively. On count 1 for attempted premeditated murder, the court imposed a sentence of seven years to life (§§ 187, subd. (a), 664, subd. (a), 3046, subd. (a)(1)), doubled to 14 years to life for a prior serious or violent felony conviction under section 667, subdivision (e)(1), and imposed a firearm enhancement under section 12022.53, subdivision (d) (section 12022.53(d)). The court struck the stayed enhancement under section 667.5, former subdivision (b) (section 667.5(b)), and dismissed under section 1385 a prior serious felony enhancement under section 667, subdivision (a) (section 667(a)) and a gang enhancement under section 186.22, subdivision (b)(1) (section 186.22(b)(1)). In addition, the trial court redesignated as a misdemeanor the conviction for possession of methamphetamine on count 4, and imposed 180 days of jail time. Further, the trial court reimposed an upper term sentence on count 2 for assault with a firearm, and reimposed the upper term for a personal-use firearm enhancement under section 12022.5, subdivision (a) (section 12022.5(a)). The court struck the prior prison term enhancement under 1 We granted defendant’s request for judicial notice of the record of appeal in his prior appeal, People v. Serna, case No. F055794 (nonpub. opn.) (Serna).

2. section 667.5(b), and dismissed the prior serious felony enhancement under section 667(a). The court then stayed the sentence on count 2 under section 654. The aggregate sentence imposed was 39 years to life.2 Defendant argues the trial court erred by imposing the firearm enhancement under section 12022.53(d), which the People concede. Relatedly, defendant argues the trial court was prohibited from imposing a gang-related vicarious firearm enhancement under section 12022.53(d) and section 12022.53, subdivision (e)(1) (12022.53(e)(1)), because it is dependent on the section 186.22(b)(1) gang enhancement that requires reversal under Assembly Bill 333. Defendant also maintains the trial court erred under the Sixth Amendment by reimposing the upper term sentences on count 2 and the attached section 12022.5(a) firearm enhancement because none of the aggravating circumstances were found true beyond a reasonable doubt by a jury, nor were they admitted by defendant. For the reasons set forth below, we conclude the section 12022.53(d) firearm enhancement was unlawfully imposed, and the trial court erred in declining to retroactively apply Assembly Bill 333, resulting in a sentencing decision that was not fully informed. Due to these changed circumstances, and to allow the trial court to exercise fully informed sentencing discretion, a full resentencing is required. In light of the need for resentencing, we do not reach defendant’s claim of error regarding the upper term sentences on count 2.

2 The trial court also imposed various fines and ancillary costs, ordered defendant to pay victim restitution, and awarded custody credits that are not relevant to the issues on appeal.

3. BACKGROUND I. Factual Background We draw the following facts from our original opinion in defendant’s direct appeal only to supply factual context. (See Serna, supra, F055794.) Close to midnight on January 7, 2006, Peter Gutierrez was shot three times in his lower right leg. Just prior to the shooting, Gutierrez had been praying at a church outside Arvin. Outside the church, while straddling his bike, Gutierrez was putting on his gloves and cap when defendant came up to him and asked Gutierrez if he was “‘strapped,’” a term meaning armed with a firearm. Gutierrez, who knew defendant as “‘Wicho,’” lied and said he was. Defendant then called someone on his cell phone and asked the person to come to the church. Gutierrez “‘knew it was time to get out of there’” and tried to leave. But appellant grabbed Gutierrez’s bicycle and tried to pull it away from Gutierrez. Gutierrez heard footsteps and saw someone approaching. As Gutierrez ran, defendant yelled at the other person to “‘blast’” Gutierrez. Gutierrez saw the shooter, whom he identified as “‘Tomas,’” fire two shots at him with a pistol. He heard four shots and then “‘they just all came.’” Gutierrez was struck in his right leg as he tried to run. He was able to crawl to a nearby house where the occupant called 911. Gutierrez was taken to the hospital, and eventually had a total of 24 surgeries on his leg due to the gunshots, and he continued to suffer chronic leg pain. A witness who lived across the street from the church heard a volley of gunshots, a pause, and then another volley. Another neighbor overheard defendant tell her husband that he and Gutierrez got into a fight, that Tommy Vasquez arrived, and that defendant told Vasquez to “‘blast’” Gutierrez. Defendant stepped back and Vasquez fired at Gutierrez. After four or five shots, defendant took the gun from Vasquez and emptied the magazine at Gutierrez. Defendant then gave the gun back to Vasquez and told him to send it to the Los Angeles area. Defendant said he was trying to kill Gutierrez, but it was 4. too foggy to see well. According to this neighbor, Vasquez was being recruited into the Arvina 13 criminal street gang. Defendant was arrested a week after the shooting and was overheard by an officer tell another inmate that “‘I’” or “‘we’” “‘shot him below the waist and I don’t know how they got me for murder.’” When booked, defendant had 0.12 grams of methamphetamine in his wallet. At trial, an officer testified as a criminal street gang expert, and opined that defendant was an active member of the Arvina 13 criminal street gang, and that the instant offense was committed for the benefit of the gang. Defendant was charged with attempted premeditated murder (§§ 187, subd. (a), 189, subd. (a), 664; count 1) assault with a firearm (§ 245, subd. (b); count 2), mayhem (§ 203; count 3), and possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 4). Multiple enhancements were alleged, including a vicarious gang- related firearm enhancement as to count 1 (§ 12022.53(d) & (e)(1)); a personal firearm use enhancement as to count 2 (§ 12022.5(a)); a great bodily injury (GBI) enhancement (§ 12022.7, subd. (a)) and a prior serious felony enhancement (§ 667(a)) on counts 1 and 2; and a prison prior enhancement (§ 667.5(b)) and a gang enhancement under section 186.22(b)(1) as to counts 1 through 3. The information also alleged defendant had suffered a prior serious or violent felony conviction (a strike) within the meaning of the “Three Strikes” law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)). The jury found defendant guilty of attempted premeditated murder (§§ 187, subd. (a), 189, subd. (a), 664; count 1); assault with a firearm (§ 245, subd. (b); count 2); and possession of a methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 4). As to count 1, the jury found true a gang enhancement (§ 186.22(b)(1)); and a gang- related vicarious firearm enhancement (§ 12022.53(d), (e)(1)). As to count 2, the jury found true a gang enhancement (§ 186.22(b)(1)); and a personal-use firearm enhancement (§ 12022.5(a)). In a bifurcated proceeding, the trial court found true that defendant suffered a prior strike for purpose of the Three Strikes law and for purposes of the prior 5. serious felony enhancements (§ 667(a)), and that he had served a prior prison term (§ 667.5(b)). Count 3 for mayhem was dismissed in the interests of justice on the prosecutor’s motion. The trial court sentenced appellant to a determinate term of 12 years, plus a consecutive term of 55 years to life as follows. On count 1, the trial court imposed a sentence of 30 years to life for the attempted premeditated murder (§§ 189, subd. (a), 664, subd. (a)): the seven-year-to-life sentence (§ 3046) was enhanced to 15 years to life for the gang enhancement (§ 186.22, subd. (b)(5)), and doubled for the prior strike (§ 667, subd. (e)(1)), plus 25 years to life for the gang-related vicarious firearm enhancement (§ 12022.53(d), (e)(1)), plus five years for the prior serious felony (§ 667(a)). The court stayed punishment on the GBI enhancement under section 12022.7 and the prison prior enhancement (§ 667.5(b)). On count 2, the court imposed the upper term of nine years (§ 245, subd. (b)), doubled to 18 years for the prior strike, plus an additional five years for the gang enhancement (§ 186.22(b)(1)), plus three years for the GBI enhancement (§ 12022.7, subd. (a)), plus five years for the prior serious felony enhancement (§ 667(a)), plus 10 years for the firearm enhancement (§ 12022.5(a)), but the court stayed the sentences under section 654. On count 4, the court imposed the upper term of three years (Health & Saf. Code, § 11377, subd. (a)), doubled to six years for the prior strike (§ 667, subd. (e)(1)), plus one year for the prison prior enhancement (§ 667.5(b)), consecutive to the term imposed on count 1. On direct appeal, a panel of this court struck the two sentences for GBI enhancements on counts 1 and 2 because, although charged, the jury was never given a verdict form for these GBI enhancements, nor were findings on those enhancements read into the record when the verdict was read; the jury did not find those allegations true. (Serna, supra, F055794.)

6. After defendant sought resentencing under section 1172.75, counsel was appointed, and the matter was referred for a supplemental probation report. A resentencing hearing was set and ultimately held on January 24, 2025. II. Resentencing Hearing The resentencing hearing under section 1172.75 was held one day after the California Supreme Court issued its decision in People v. Lopez (2025) 17 Cal.5th 388 (Lopez). The trial court asked the parties whether defendant’s judgment was rendered nonfinal under Lopez once his sentence was recalled under section 1172.75 to strike the now-invalid prison prior enhancements. Defense counsel argued that once the sentence was recalled, defendant became entitled to a full resentencing, which would include retroactive application of ameliorative changes in the law such as under Assembly Bill 333. The People argued Lopez had no application to a section 1172.75 resentencing. But even if Lopez did apply, the People asserted the court would first need to determine whether the jury found true all the elements of the section 186.22(b)(1) gang enhancement as amended under Assembly Bill 333, and the People declined to concede the gang enhancement as found by the jury originally would not be found true under the amended requirements. The People further argued that even if the gang enhancement would not be found true under the amendments to section 186.22, the remedy would be to reverse the verdict on the enhancement, and to permit retrial of the gang enhancement. The trial court then questioned whether, notwithstanding application of Assembly Bill 333, the court had discretion to strike the gang enhancement under section 1385, subdivision (c) (section 1385(c)). The People argued only the prison prior enhancements under section 667.5(b) should be stricken, but otherwise, the original sentence should be reimposed. The People requested that the trial court strike the gang enhancement under Assembly Bill 333, rather than section 1385(c), so that the prosecution would have an 7. opportunity to retry that enhancement, but the court indicated it was “not going to reach that issue at today’s hearing .…” The court then found in mitigation that defendant’s prison record had numerous laudatory entries regarding his performance while incarcerated with the Department of Corrections and Rehabilitation (CDCR). For purposes of section 1385(c), the court found there were mitigating circumstances of multiple enhancements (§ 1385(c)(2)(B)); the application of which could result in a sentence over 20 years (§ 1385(c)(2)(C)); and the enhancements were based on a conviction that was over 10 years old (§ 1385(c)(2)(H)). In aggravation, the court found that defendant’s prior convictions were numerous; he had served a prior prison term; he had engaged in violent behavior that indicated a serious danger to society; and his performance on probation and parole had been unsatisfactory. The court declined to strike the prior strike under section 1385, subdivision (a). As for count 1, the court observed there were multiple enhancements and, pursuant to section 1385(c)(2), the court dismissed the section 186.22(b)(1) gang enhancement on count 1. The court also dismissed the section 667(a) prior serious felony enhancement, and the prior prison term enhancement under section 667.5(b). The court declined to dismiss the firearm enhancement under section 12022.53 because, given the facts of the offense, there was “a risk to public safety in striking that particular enhancement.” As a result, the court imposed the following sentence on count 1: 14 years to life for the attempted murder, plus 25 years to life under section 12022.53(d). On count 4, the court reduced the charge to a misdemeanor, struck the section 667.5(b) enhancement, and imposed 180 days of custody time. On count 2, the court sentenced defendant to the upper term of nine years (Health & Saf. Code, § 11377, subd. (a); Pen. Code, § 1170, subd. (h)), doubled to 18 years for the prior strike (§ 667, subd. (e)(1)), plus 10 years for the firearm enhancement under section 12022.5(a); the court dismissed the gang enhancement under section 186.22(b)(1)

8. and the prior serious felony enhancement (§ 667(a)). The sentence imposed on count 2 was then stayed under section 654. DISCUSSION Defendant claims the section 12022.53(d) firearm enhancement was not legally imposed and must be stricken, and he argues the upper terms imposed on count 2 and the attached firearm enhancement constitutes a Sixth Amendment violation because they were imposed based on aggravating circumstances not found true beyond a reasonable doubt by a jury, or admitted by defendant. I. Section 1172.75 Resentencing Before the Legislature enacted Senate Bill No. 136 (2019–2020 Reg. Sess.) (Senate Bill 136) in 2019, 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 appliable here for a five-year period of freedom from custody and felony offenses.” (People v. Rhodius (2025) 17 Cal.5th 1050, 1054.) Senate Bill 136 amended section 667.5(b) to eliminate prior prison term enhancements for all 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.) This change was made retroactive under Senate Bill No. 483 (2021–2022 Reg. Sess.), and, what is now section 1172.75 was enacted. Under section 1172.75, “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.” (Id., subd. (a).) Where a defendant is serving a term for a judgment that includes a now-invalid enhancement, the defendant is entitled to resentencing. (§ 1172.75, subds. (a), (c).) The statute directs CDCR to “identify those persons in their custody currently serving a term for a judgment that includes an enhancement described in subdivision (a) .…” (Id., 9. subd. (b).) Once that information is received by the sentencing court, it 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.) Once a sentence has been recalled, section 1172.75, subdivision (d), provides instructions for resentencing. Resentencing “shall” result in a lesser sentence than the one originally imposed as a result of the elimination of the repealed enhancement, “unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety.” (Id., subd. (d)(1).) The sentencing court is required to “apply the sentencing rules of the Judicial Council and apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and promote uniformity of sentencing.” (Id., subd. (d)(2).) In conducting the resentencing, the “court may consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendant’s risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice.” (§ 1172.75, subd. (d)(3).) Additionally, “Unless the court originally imposed the upper term, the court may not impose a sentence exceeding the middle term unless there are circumstances in aggravation that justify the imposition of a term of imprisonment exceeding the middle term, and those facts have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.” (§ 1172.75, subd. (d)(4).)

10. II. Firearm Enhancement Under Section 12022.53(d) Defendant argues the section 12022.53(d) enhancement imposed was not pleaded or proven. Additionally, the section 12022.53(d) and (e)(1) vicarious gang-related firearm enhancement that was pled and proven as to count 1 was dependent on a properly pled and proven gang enhancement under section 186.22(b)(1), which the trial court dismissed. Defendant contends that because the gang enhancement was originally found true before the passage of Assembly Bill 333, the jury’s gang enhancement finding is no longer viable upon retroactive application of Assembly Bill 333 and cannot support the vicarious gang-related firearm enhancement the jury found true under section 12022.53(d) and (e)(1). According to defendant, Assembly Bill 333 required the trial court to reverse the verdict on the gang enhancement and strike the firearm enhancement. The People concede imposition of the section 12022.53(d) firearm enhancement was erroneous. The People note the trial court imposed a section 12022.53(d) enhancement at resentencing because the gang enhancement, on which the section 12022.53(d), (e)(1) vicarious gang-related firearm enhancement depended, had been dismissed. The People maintain that because the jury did not find that defendant personally and intentionally discharged a firearm proximately causing GBI or death to a nonaccomplice for purposes of section 12022.53(d), that firearm enhancement could not be imposed. The People do not respond to defendant’s argument regarding the application of Assembly Bill 333. A. Enhancement Under Section 12022.53(d) Was Not Pled or Proven Section 12022.53(d) provides, “Notwithstanding any other law, a person who, in the commission of a felony specified in subdivision (a), Section 246, or subdivision (c) or (d) of Section 26100, personally and intentionally discharges a firearm and proximately causes [GBI], as defined in Section 12022.7, or death, to a person other than an 11. accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life.” Section 12022.53(e)(1) provides, “The enhancements provided in this section shall apply to any person who is a principal in the commission of an offense if both of the following are pled and proved: [¶] (A) The person violated subdivision (b) of Section 186.22. [¶] (B) Any principal in the offense committed any act specified in subdivision (b), (c), or (d).” In other words, a firearm enhancement under section 12022.53 (e)(1) imposes “vicarious liability” for another’s personal use of a firearm “on aiders and abettors who commit crimes in participation [with] a criminal street gang.” (People v. Garcia (2002) 28 Cal.4th 1166, 1171.) Here, the vicarious gang-related firearm enhancement under section 12022.53(d) and (e)(1) was alleged as to count 1.3 The jury found that enhancement true, but it made no finding defendant personally and intentionally discharged a firearm during the commission of the offense proximately causing GBI or death to a nonaccomplice as required under section 12022.53(d). The firearm enhancement alleged in the information and found true by the jury pertained solely to section 12022.53(d) and (e)(1). Consistently, the verdict form reflects the jury found true the vicarious gang-related 3 The information alleged as follows: “IT IS FURTHER ALLEGED THAT [DEFENDANT] WAS A PRINCIPAL IN THE FOREGOING OFFENSE, AND, IN THE COMMISSION OF THE OFFENSE, AT LEAST ONE PRINCIPAL INTENTIONALLY AND PERSONALLY DISCHARGED AND PERSONALLY USED A FIREARM, AND PROXIMATELY CAUSED GREAT BODILY INJURY OR DEATH, TO A PERSON OTHER THAN AN ACCOMPLICE, WITHIN THE MEANING OF PENAL CODE SECTION 12022.53(D) AND (E)(1).”

12. firearm enhancement under section 12022.53(e)(1), and not the personal and intentional discharge firearm enhancement under section 12022.53(d).4 We agree with the parties that the firearm enhancement under section 12022.53(d) could not be lawfully imposed—that enhancement was not alleged, and the jury did not make a finding that defendant “personally and intentionally” discharged a firearm in the commission of the attempted murder “proximately caus[ing GBI] … or death” as required under section 12022.53(d). This is fatal to imposition of a firearm enhancement under section 12022.53(d). Although the trial court may have intended to impose the vicarious gang-related firearm enhancement as charged and found true by the jury under section 12022.53(d) and (e)(1), that is not the enhancement the trial court actually imposed during the oral pronouncement of judgment. Moreover, even if the court had intended to impose the section 12022.53(d), (e)(1) enhancement, the People concede that once the gang enhancement was dismissed under section 1385(c), the section 12022.53(d), (e)(1) vicarious gang-related firearm enhancement was no longer viable. The section 12022.53(d) firearm enhancement must be stricken. B. Assembly Bill 333 Applies Retroactively In addition, as defendant points out, there is an interrelated issue regarding whether the jury’s gang enhancement finding requires reversal under retroactive application of Assembly Bill 333. The trial court declined to rule on whether Assembly Bill 333 applied retroactively to a section 1172.75 resentencing and, thus, did not consider what effect it would have on the jury’s section 186.22(b)(1) gang enhancement finding, and foreclosed the People from any opportunity to retry the gang enhancement. Instead, the trial court elected to dismiss the section 186.22(b)(1) gang enhancement 4 We note the jury was instructed on a firearm enhancement under section 12022.53(d) alone for purposes of count 1, but the jury’s verdict forms show it was never asked to find that defendant personally and intentionally discharged a firearm within the meaning of section 12022.53(d), and the nongang-related firearm enhancement under section 12022.53(d) was not charged as to count 1.

13. under section 1385(c), but the court declined to dismiss the section 12022.53 firearm enhancement. 1. Section 186.22(b)(1) and Assembly Bill 333 The California Street Terrorism Enforcement Prevention Act (STEP Act, § 186.20 et seq.) was enacted in 1988 “to eradicate ‘criminal activity by street gangs.’” (People v. Valencia (2021) 11 Cal.5th 818, 828.) Among other provisions, the STEP Act created a sentencing enhancement for a felony committed “for the benefit of, at the direction of, or in association with a criminal street gang .…” (§ 186.22(b)(1).) In enacting Assembly Bill 333, which became effective January 1, 2022, the Legislature made several changes to the laws regarding criminal street gangs. “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 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).)” (People v. Tran (2022) 13 Cal.5th 1169, 1206 (Tran).) In addition, Assembly Bill 333 “omitted certain nonviolent offenses from the list of offenses that 14. could make up a gang’s primary activities or form the requisite pattern of criminal gang activity, reducing the list of offenses from 33 to 26.” (People v. Clark (2024) 15 Cal.5th 743, 753.) As a result, “‘Assembly Bill 333 essentially adds new elements to the substantive offense and enhancements in section 186.22 .…’” (Tran, supra, 13 Cal.5th at p. 1207.) Because “[t]hese changes have the effect of ‘increas[ing] the threshold for conviction of the section 186.22 offense and the imposition of the enhancement’” (ibid.), the changes are ameliorative, and the rule of In re Estrada (1965) 63 Cal.2d 740 (Estrada) applies— i.e., the law applies to all nonfinal cases. (Tran, supra, at p. 1207.) 2. Resentencing Under Section 1172.75 Renders Judgment Nonfinal In recalling defendant’s sentence under section 1172.75 to strike the now-invalid prior prison term enhancements, defendant’s judgment was rendered nonfinal pursuant to the reasoning in Lopez. There, the court held a judgment, or a part of it, does not become final for Estrada purposes when an appellate court affirms a conviction, but sentencing issues remain pending before the superior court following remand. (Lopez, supra, 17 Cal.5th at p. 392.) During the resentencing on remand, “the benefits of supervening ameliorative legislation apply retroactively.” (Id. at p. 393.) Lopez explained that “In the criminal context, when ameliorative legislation goes into effect, we generally presume the Legislature intends the benefits of the new enactment to apply as broadly as constitutionally permissible to all nonfinal cases. (… Estrada[, supra,] 63 Cal.2d [at p.] 745 .…) The focus is on finality because ameliorative enactments can constitutionally apply to any case where the judgment is not yet final. (Ibid.) For purposes of Estrada, the test for finality is ‘whether the criminal prosecution or proceeding as a whole is complete.’ [Citation.] The meaning of finality in the Estrada context is distinct for the issue of whether a judgment is final for purposes of appealability.” (Lopez, supra, 17 Cal.5th at p. 392, quoting People v. Esquivel (2021) 11 15. Cal.5th 671, 679.) “‘In criminal actions, the terms “judgment” and “‘sentence’” are generally considered “synonymous” [citation], and there is no “judgment of conviction” without a sentence.’ [Citation.] Thus, when any aspect of a case is on appeal from sentencing, the ‘case’ or ‘prosecution’ has not been reduced to a final judgment for Estrada purposes.” (Lopez, supra, at p. 397, italics added, quoting & citing People v. McKenzie (2020) 9 Cal.5th 40, 46.) In this case, when defendant’s sentence was recalled, the judgment was reopened. (People v. Arias (2020) 52 Cal.App.5th 213, 219 [“recall of [the defendant’s] sentence effectively vacated his original sentence and commitment”].) The trial court had jurisdiction to resentence defendant, and he had the right to appeal whatever new sentence was imposed; as a result, defendant’s judgment became nonfinal for Estrada purposes. (People v. Padilla (2022) 13 Cal.5th 152, 161–162; Lopez, supra, 17 Cal.5th at p. 397.) As a result, defendant was entitled at resentencing to retroactive application of ameliorative changes in the law, including those under Assembly Bill 333. (Lopez, supra, at p. 394 [“Assembly Bill 333 added new elements to the substantive offense and enhancements in the gang statute, and its substantive changes apply retroactively to all nonfinal cases under Estrada”].) C. Failure to Apply Assembly Bill 333 By declining to make a decision about the retroactive application of Assembly Bill 333, the trial court potentially deprived the People of their opportunity to retry the gang enhancement, and the court did not adequately consider whether Assembly Bill 333 would affect the imposition of the gang-related vicarious firearm enhancement. Without considering the full effect of Assembly Bill 333, the court exercised less than fully informed sentencing discretion. (See People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 [“‘[a] court which is unaware of the scope of its discretionary powers can no more 16. exercise … “informed discretion” than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant’s record’”].) D. Full Resentencing Required While the parties agree the firearm enhancement imposed under section 12022.53(d) as to count 1 must be stricken, the People seek remand for a limited resentencing to allow the trial court to consider only whether to reimpose the section 667(a) prior serious felony enhancement on count 1. Defendant argues the application of Assembly Bill 333 requires reversal of the jury’s gang enhancement finding and, as a result, urges this court to strike both the gang and the firearm enhancement. (Defendant seeks a limited resentencing, but only with respect to count 2 on a separate issue). We agree resentencing is the proper remedy, but, for the reasons discussed below, it must be a full resentencing. (People v. Buycks (2018) 5 Cal.5th 857, 893 [“when part of a sentence is stricken on review, on remand for resentencing ‘a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances”].) As the firearm enhancement under section 12022.53(d) was not found true by the jury and was unlawfully imposed, it shall be stricken. Given this changed circumstance, resentencing is required to allow the trial court to exercise its sentencing discretion anew. “When a case is remanded for resentencing by an appellate court, the trial court is entitled to consider the entire sentencing scheme. Not limited to merely striking illegal portions, the trial court may reconsider all sentencing choices. [Citations.] This rule is justified because an aggregate prison term is not a series of separate independent terms, but one term made up of interdependent components. The invalidity of one component infects the entire scheme.” (People v. Hill (1986) 185 Cal.App.3d 831, 834; accord, People v. Buycks, supra, 5 Cal.5th at p. 893.)

17. Moreover, because Assembly Bill 333 applies retroactively, the trial court must apply these changes in the law and consider, in the first instance, whether the jury’s gang enhancement finding is viable, and, if not, the People may elect to retry the enhancement5 (see People v. Sek (2022) 74 Cal.App.5th 657, 668, 669–670 [by requiring proof that benefit to gang was more than reputational, Assem. Bill 333 added a new element to the enhancement; prosecution was entitled to an opportunity to retry the gang enhancement upon remand]; see also People v. Cooper (2023) 14 Cal.5th 735, 746–747 [where newly required elements were never tried to jury, remedy is to remand and give the People an opportunity to retry affected charges]). In the absence of the gang enhancement, the gang-related vicarious firearm enhancement under section 12022.53(d), (e)(1) cannot be imposed as it is predicated on a pled and proven section 186.22(b) gang enhancement. (See, e.g., People v. Perez (2022) 78 Cal.App.5th 192, 206, fn. 11.) After applying Assembly Bill 333 and determining its effects, the trial court may reconfigure defendant’s sentence, including whether the prior serious conviction enhancement (§ 667(a)) should be dismissed on count 1. However, upon resentencing, subject to the principles articulated in People v. Henderson (1963) 60 Cal.2d 482, 495– 497 and its progeny (see, e.g., People v. Ali (1967) 66 Cal.2d 277, 281; People v. Hanson (2000) 23 Cal.4th 355, 357), the trial court may not impose a greater aggregate sentence than that imposed at the 2025 resentencing. (See People v. Trammel (2023) 97 Cal.App.5th 415, 434 [People v. Serrato (1973) 9 Cal.3d 753, 763–764, exception to Henderson “applies [only] to unauthorized sentences which were unlawfully lenient to the detriment of the People”].)

5 As Assembly Bill 333 essentially adds new elements to the enhancements under section 186.22, this implicates defendant’s jury trial right under the Sixth Amendment, and reversal of the jury’s finding on the enhancement is required unless “‘it appears 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.)

18. III. Imposition of Upper Term on Count 2 In light of the need for a full resentencing, the trial court will again consider what terms to impose on count 2 and, if not dismissed, the attached firearm enhancement. We decline to consider in advance of resentencing whether the hypothetical reimposition of an upper term is lawful under section 1172.75, subdivision (d)(4). (People v. Slayton (2001) 26 Cal.4th 1076, 1084 [courts “do not issue advisory opinions indicating ‘“what the law would be upon a hypothetical state of facts”’”].) The parties will have an opportunity to present their arguments regarding the appropriate sentence at the resentencing hearing. DISPOSITION The sentence is vacated, and the matter is remanded for a full resentencing consistent with this opinion.

MEEHAN, Acting P. J. WE CONCUR:

HARRELL, J.

GUERRA, J.

19.