Filed 6/21/24 P. v. Welch CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

JEMAR DEWAYNE WELCH,

Defendant and Appellant.

 B328175

 (Los Angeles County

 Super. Ct. No. NA099773)

APPEAL from a judgment of the Superior Court. 

Richard M. Goul, Judge. Affirmed in part, reversed in part, and 

remanded with directions.

Stanley Dale Radtke, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Steven E. Mercer and Thomas C. 

Hsieh, Deputy Attorneys General, for Plaintiff and Respondent. 

___________
2

This is Jemar Dewayne Welch’s third appeal. In his first 

appeal, we affirmed his conviction of second degree murder but 

remanded to allow the trial court to exercise its sentencing 

discretion under Penal Code section 12022.53, subdivision (h),1 to 

strike the firearm enhancement the court had imposed. On 

remand, Welch was represented by counsel at the resentencing 

hearing, but Welch was not present. The trial court again 

imposed the firearm enhancement, and Welch appealed. 

In his second appeal, we found the trial court erred in 

resentencing Welch without him being present. We instructed 

the trial court to order a supplemental probation report and to

hold a new resentencing hearing at which it would take into 

account all relevant factors, including Welch’s postjudgment 

conduct, in exercising its discretion whether to strike or impose a 

lesser firearm enhancement. Following another resentencing 

hearing at which Welch was present (but without ordering a 

supplemental probation report), the trial court again imposed the 

firearm enhancement. 

In this appeal, Welch argues the trial court erred in failing 

to strike the firearm enhancement or impose a lesser

enhancement. In supplemental briefing, Welch argues that 

under Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Assembly 

Bill 333), the elements for the gang enhancement have not been 

met, and further, the failure to bifurcate trial of the gang 

enhancement requires reversal of the murder conviction and 

gang enhancement. We conclude the trial court did not abuse its 

discretion in imposing the original firearm enhancement. 

However, we agree with Welch that the true finding on the gang 

1 Further statutory references are to the Penal Code. 
3

enhancement allegation must be reversed. As to bifurcation of 

the trial of the gang enhancement, the Supreme Court recently 

held in People v. Burgos (June 3, 2024, S274743) __ Cal.5th ___ 

[2024 Cal. Lexis 3060] that the requirement in section 1109 that 

the gang enhancement be separately tried is not retroactive. 

We reverse the true finding on the gang enhancement 

allegation and remand to allow the People an opportunity to retry 

the gang enhancement. If the People elect not to retry the gang 

enhancement, the current sentence will remain in place, as well 

as the abstract of judgment, because the court never imposed a 

sentence on the enhancement.

FACTUAL AND PROCEDURAL BACKGROUND

A. Welch’s Conviction of Second Degree Murder and His 

Appeal

According to the testimony at trial, Welch and Alexander 

Johnson were members of rival gangs: Welch was a member of 

the Insane Crips, and Johnson was a member of the Rollin’ 20s.

The two had previously encountered each other. In the first 

incident, Johnson overheard a conversation between Welch and 

Ronnisha Garcia in which Welch told Garcia, “Don’t let me find 

out you hanging out with these bum niggas.” Johnson later 

confronted Welch, saying, “Rollin’ Crip. Who you calling a bumass nigga?” Welch responded “What the fuck?” and identified 

himself as “Baby Insane.” In the second incident, Johnson 

approached Welch at a government building and said, “20 Crips.” 

Welch laughed at him. (People v. Welch (Oct. 9, 2018, B281532) 

[nonpub. opn.] (Welch I).)
4

On the afternoon of the shooting, Johnson was standing on 

the sidewalk with four other individuals. Welch drove up and 

dropped off his friend, a fellow member of the Insane Crips. 

Johnson left his group to go home at the same time that Welch 

began to back up his car. Welch hit Johnson with the rear of his 

car. Johnson tapped Welch’s car with his hand, walked around to 

the driver’s side, told Welch to get out of the car, and said he 

needed a “fade,” meaning a fight. Johnson walked to the middle 

of the street and waited for Welch to get out of the car. According 

to witnesses to the shooting, Johnson did not reach for a gun.

2 

Welch jumped out of the car, reached for a gun, and shot Johnson 

twice, killing him. (Welch I, supra, B281532.)

3 

The jury convicted Welch of second degree murder (§ 187, 

subd. (a)) and found true the special allegations that the murder 

was committed for the benefit of a criminal street gang (§ 186.22, 

subd. (b)(1)(C)) and Welch personally used and personally and 

intentionally discharged a firearm causing death (§ 12022.53, 

subds. (b), (c), & (d)). (Welch I, supra, B281532.) The trial court 

2 Welch testified that he saw Johnson reach into his 

backpack and start to pull out a gun, and Welch shot Johnson in 

self-defense. 

3 We grant the People’s request to take judicial notice of the 

record in Welch I, supra, B281532. (Evid. Code, §§ 452, subd. (d), 

459.) We deny Welch’s request for judicial notice of our prior 

opinions in Welch’s first two appeals because his request is made 

in a footnote to his supplemental brief and not in a separate 

motion. (See Cal. Rules of Court, rule 8.252(a) [“To obtain 

judicial notice by a reviewing court . . . a party must serve and 

file a separate motion with a proposed order”].) However, we 

consider the prior appeals for purposes of explaining the 

background of this appeal.
5

sentenced Welch to 15 years to life in prison for the murder, plus 

a consecutive term of 25 years to life for use of the firearm 

pursuant to section 12022.53, subdivision (d). The court orally 

stayed the gang enhancement.4 (Ibid.) 

In Welch’s first appeal, we affirmed his conviction but 

remanded for resentencing, concluding Senate Bill No. 620 (2017-

2018 Reg. Sess.), which gave the trial court new discretion to 

strike a firearm enhancement under section 12022.53, 

subdivision (h), applied retroactively.5 (Welch I, supra, B281532.) 

B. The Trial Court’s First Resentencing Hearing

The trial court held a resentencing hearing on 

September 21, 2020. Welch’s appointed attorney was present, 

but Welch was not. At the outset of the hearing, the court 

inquired of Welch’s attorney, “[W]e are here for the Franklin

setting[6] and sentencing on the weapon. And what would you 

4 At sentencing, the trial court asked the prosecutor if the 

gang enhancement should be imposed, and the prosecutor 

responded that the enhancement “has no effect.” The abstract of 

judgment does not reflect imposition (or a stay) of the gang 

enhancement.

5 Judge Richard Romero presided over the trial and 

sentenced Welch. Because Judge Romero was no longer serving 

as a Los Angeles Superior Court judge at the time we remanded 

in Welch I for resentencing, Judge Richard M. Goul presided over 

the resentencing hearings.

6 In People v. Franklin (2016) 63 Cal.4th 261, 284 (Franklin) 

the Supreme Court held a youth offender must have a “sufficient 

opportunity to make a record of information relevant to his 

eventual youth offender parole hearing.” At this parole hearing, 
6

like to do?” Welch’s attorney responded, “Well, the sentencing on 

the weapon, we can do that kind of whenever you want to do that. 

[¶]. . .[¶] It doesn’t matter to me when we do it.” 

After a brief discussion about scheduling of the Franklin

hearing (and no argument about the firearm enhancement), the 

trial court explained as to resentencing, “First off, as far as the 

remittitur on the sentencing, the court, having reviewed the file 

and transcripts that were available, does exercise its discretion in 

imposing the weapons enhancement as imposed at the time of 

sentencing. That resolves that issue as far as the court’s 

remittitur.” The prosecutor then inquired, “so to be clear, the 

gun allegation remains?” The court confirmed, “Yes. The 

allegation remains. The court exercises its discretion in imposing 

it, yes.” 

Welch appealed, and we again reversed. We concluded 

Welch had a constitutional and statutory right to be present at 

the resentencing hearing and the error was prejudicial. We 

further concluded the trial court failed to consider Welch’s 

postjudgment conduct and that “[a]bsent information about 

Welch’s conduct in prison, we cannot tell whether this conduct 

and any other information Welch could have presented would 

have swayed the trial court to strike the firearm enhancement.” 

(People v. Welch (Aug. 16, 2021, B309147) [nonpub. opn.] 

(Welch II).) We remanded the matter to the trial court for Welch 

to attend the resentencing hearing, and we instructed the trial 

the Parole Board “shall give great weight to the diminished 

culpability of youth as compared to adults, the hallmark features 

of youth, and any subsequent growth and increased maturity of 

the prisoner in accordance with relevant case law.” (§ 4801,

subd. (c).) 
7

court to order a supplemental probation report so that it could

consider all relevant sentencing factors, including postjudgment 

conduct, before determining whether to strike the firearm 

enhancement or impose a lesser enhancement. 

C. The Trial Court’s Second Resentencing Hearing

On January 12, 2023 the trial court held a second

resentencing hearing. Welch, who was present at the hearing,

submitted a sentencing memorandum asking the trial court to 

strike (not reduce) his firearm enhancement. Welch argued in 

his brief that the crime had been committed during his youth

(when he was 21 years old),7 and he “has been a model prisoner, 

during the pendency of his trial, and since he left this courthouse 

and began serving his time.” Welch pointed out that his security 

level placement score dropped from an initial classification score

of 72 to its current level of 19,8 and he attached copies of 

numerous commendations, work supervisor reports, certificates 

7 Welch’s sentencing memorandum incorrectly stated he was 

19 years old at the time of the crime, but he was born in early 

July 1993, and he committed the offense in late July 2014.

8 “The classification of felon inmates shall include the 

classification score system as established. A lower placement 

score indicates lesser security control needs and a higher 

placement score indicates greater security control needs.” (Cal.

Code Regs., tit. 15, § 3375, subd. (d)); see Cal. Code Regs., tit. 15, 

§ 3375.1, subd. (a) [“Except as provided in section 3375.2, each 

inmate shall be assigned to a facility with a security level which 

corresponds to the following placement score ranges: (1) An 

inmate with a placement score of 0 through 18 shall be placed in

a Level I facility. (2) An inmate with a placement score of 19 

through 27 shall be placed in a Level II facility . . .”].)
8

of completion, special recognition awards, and school transcripts 

from Cuesta College showing that he took two classes in the Fall 

of 2019 and two classes in the Summer of 2020. Welch argued 

this evidence showed “a pattern of hard work, adherence to rules, 

a desire to rehabilitate oneself, [and] an ongoing education that 

allow a productive life after parole.” 

Welch also submitted two Franklin mitigation reports. The 

first report was prepared by Pfifer Investigations and Sentencing 

Services. The report provided a summary of the crime and 

included background information on Welch’s childhood. Welch 

“had little contact” with his biological father while growing up,

and his mother, who had five children with five different fathers, 

was absent and uninvolved in his upbringing. Further, there 

were “extended periods of time when [Welch] and his siblings had 

to live with other people because their mom was in jail or had 

been evicted due to the rent not being paid.” In addition, Welch’s 

family relied on public assistance, they lived in subsidized lowincome housing, and some of Welch’s relatives sold drugs. Gangrelated incidents became a “daily occurrence” in the Long Beach 

area where Welch grew up, and his brother had been shot twice, 

once in a gang-related incident and another during a routine 

police traffic stop. The report also pointed out that Welch 

previously had been singled out by the police, and, at the time of 

the incident, Welch was living with his sister and trying to obtain

financial aid to attend a local community college. Finally, the 

report explained that Welch believed that he shot Johnson in selfdefense. 

The second Franklin mitigation report was prepared by 

Dr. Carl E. Osborn, a forensic psychologist. The report set forth

Welch’s background, including how he fell into gang life. The 
9

report provided details of the crime, including how Welch viewed 

“his actions during his committing offense as the result of 

legitimate self-defense.” The report explained that neuroscience 

has shown there is incomplete brain maturation until at least the 

age of 25, and at Welch’s current age of 29, he “is now 

psychologically mature, and his behavioral record reflects what

would currently be expected of an inmate whose antisocial 

behavior is limited to adolescence.” Further, Welch “does stand a 

good chance of yet becoming a productive, contributing citizen by 

the time he is considered for parole.”

At the hearing, the trial court indicated it had “read the 

extensive motion filed by the defense counsel as well as the 

attachments which include not only the Department of 

Corrections record but the youth offender parole records as well.” 

The court acknowledged it was required to consider Welch’s postsentencing conduct, and the court stated it was “satisfied that 

[Welch’s counsel] has presented evidence of postconviction 

conduct which would potentially be a mitigating factor.” 

Nevertheless, the trial court declined to strike the firearm 

enhancement or to impose a lesser enhancement, explaining that

in “considering the other factors which the original court was 

allowed to consider in sentencing the defendant,” the offense 

“involved great violence, great bodily harm, threat of great bodily 

harm or other acts disclosing a high degree of cruelty, 

viciousness, or callousness.” In addition, Welch “was armed with 

or used a weapon [and] the victim . . . was vulnerable in that he 

was alone, unarmed, unaware.” Welch again appealed. 
10

DISCUSSION

A. The Trial Court Did Not Abuse Its Discretion in Declining 

To Strike the Firearm Enhancement or Impose a Lesser 

Firearm Enhancement

Welch contends the trial court erred in failing to order a 

supplemental probation report and abused its discretion in 

imposing the original firearm enhancement under 

section 12022.53, subdivision (d). We review the court’s

sentencing decision in declining to strike the firearm 

enhancement or impose a lesser enhancement for an abuse of 

discretion. (People v. Flores (2021) 63 Cal.App.5th 368, 376 [“We 

review the denial of a motion to dismiss an enhancement for 

abuse of discretion.”]; People v. Pearson (2019) 38 Cal.App.5th

112, 116 (Pearson) [same]; see People v. Carmony (2004) 

33 Cal.4th 367, 377 [“a trial court does not abuse its discretion 

unless its decision is so irrational or arbitrary that no reasonable 

person could agree with it”].) The trial court’s error in refusing to 

order a supplemental probation report was harmless, and the 

court did not abuse its discretion in sentencing Welch.

1. The failure to order a supplemental probation report 

was harmless error

Generally, “[w]hen an appellate court’s reversal is 

accompanied by directions requiring specific proceedings on 

remand, those directions are binding on the trial court and must 

be followed. Any material variance from the directions is 

unauthorized and void.” (Butler v. Superior Court (2002) 

104 Cal.App.4th 979, 982; accord, In re Candace P. (1994) 

24 Cal.App.4th 1128, 1131 [“The correct analysis, we believe, is 
11

the determination whether an apparent variance in the trial 

court’s execution of the appellate ruling is ‘material.’”].)

In Welch II, we instructed the trial court to “order a 

supplemental probation report and consider relevant sentencing 

factors, including postjudgment circumstances” before deciding 

whether to strike the firearm enhancement or impose a lesser

enhancement. (Welch II, supra, B309147.) It is undisputed that 

the trial court failed to comply with our instruction to order a 

supplemental probation report. However, the error was not 

prejudicial. 

As an initial matter, Welch forfeited his challenge to the 

trial court resentencing him without first obtaining a 

supplemental probation report by his failure to object at the 

January 12, 2023 hearing. (People v. Scott (1994) 9 Cal.4th 331, 

352, fn. 15 [“[t]he trial court’s failure to secure a current 

probation report is waived on appeal by the failure to object”]; 

People v. Johnson (1999) 70 Cal.App.4th 1429, 1433 [“defendant 

has waived his right to object to the absence of a supplemental 

report by failing to do so in the trial court”].)9 

Even if Welch had not forfeited the issue, the trial court’s 

failure to obtain and review a supplemental probation report was 

harmless under People v. Watson (1956) 46 Cal.2d 818, 834-836).

9 In 1996 the Legislature enacted section 1203, 

subdivision (b)(4), which provides that for defendants eligible for 

probation, the requirement of a probation report cannot be 

waived without a written stipulation of counsel or oral waiver in 

open court, with the court’s consent. That section does not apply 

here because Welch was not eligible for probation. (See People v. 

Johnson, supra, 70 Cal.App.4th at pp. 1431-1432.)
12

(See People v. Dobbins (2005) 127 Cal.App.4th 176, 182 [“We 

perceive no federal constitutional right to a supplemental 

probation report. Because the alleged error implicates only 

California statutory law, review is governed by the Watson

harmless error standard.”].) Under Watson, a “defendant must 

show it is reasonably probable a more favorable result would 

have been obtained absent the error. . . . Prejudice under Watson

‘must necessarily be based upon reasonable probabilities rather 

than upon mere possibilities.’” (People v. Mena (2012) 54 Cal.4th 

146, 162.) 

Welch does not identify any prejudice that resulted from 

the trial court’s failure to order a supplemental probation report. 

The purpose of the supplemental probation report is to provide 

the trial court with information necessary for its exercise of 

discretion. (People v. Tatlis (1991) 230 Cal.App.3d 1266, 1273

[“The report presents information in a cohesive fashion, 

facilitating the task of weighing newly revealed mitigating 

factors in the balance.”].) All of the information that would have 

been included in the supplemental probation report was provided 

by Welch in his sentencing memorandum and the two Franklin

mitigation reports that Welch submitted to the trial court before 

the resentencing hearing. Welch has not shown that a

supplemental probation report would have included any 

additional information relevant to the trial court’s sentencing 

decision. And, as discussed, after considering the information 

submitted by Welch, the court found Welch’s postconviction 

conduct was a mitigating factor. (Cf. People v. Yanaga (2020) 

58 Cal.App.5th 619, 628 [reversing trial court order on remand 

for resentencing declining to strike firearm enhancement where 

court did not consider postconviction conduct].)
13

2. The trial court properly considered the relevant 

factors in determining whether to strike the firearm 

enhancement

Under section 12022.53, subdivision (h), the trial “court 

may, in the interest of justice pursuant to Section 1385 and at the 

time of sentencing, strike or dismiss an enhancement otherwise 

required to be imposed by this section. The authority provided by 

this subdivision applies to any resentencing that may occur 

pursuant to any other law.” (See Pearson, supra, 38 Cal.App.5th

at p. 116 [“Senate Bill No. 620 . . . which added section 12022.53, 

subdivision (h), gave the trial court discretion . . . ‘[to] strike or 

dismiss an enhancement otherwise required to be imposed by this 

section’”].) If the trial court determines that a section 12022.53, 

subdivision (d), enhancement should be struck or dismissed 

under section 12022.53, subdivision (h), the court may impose a 

lesser statutory enhancement. (See People v. Tirado (2022) 

12 Cal.5th 688, 692, 700; People v. Morrison (2019) 

34 Cal.App.5th 217, 222.) 

The factors a trial court must consider in determining 

whether to strike a firearm enhancement in the interest of justice 

“are the same factors the trial court must consider when handing 

down a sentence in the first instance.” (Pearson, supra, 

38 Cal.App.5th at p. 117, citing Cal. Rules of Court, rules 4.410, 

4.421, & 4.423.) These factors include whether “‘[t]he crime 

involved great violence, . . . threat of great bodily harm, or other 

acts disclosing a high degree of cruelty, viciousness, or 

callousness’” and whether “‘[t]he defendant has engaged in 

violent conduct that indicates a serious danger to society.’”

(Pearson, at p. 117; see People v. Stanley (1984) 161 Cal.App.3d 

144, 150 [“The scope of information a sentencing court may 
14

consider is very broad, and includes the circumstances 

surrounding the crime and facts relating to the defendant which 

are not directly connected to commission of the crime for which 

he is being sentenced.”].) 

The trial court may also consider a defendant’s 

postconviction conduct while in prison. (People v. Yanaga, supra,

58 Cal.App.5th at p. 627; see Dix v. Superior Court (1991) 

53 Cal.3d 442, 460 [“[I]t is well settled that when a case is 

remanded for resentencing after an appeal, the defendant is 

entitled to ‘all the normal rights and procedures available at his 

original sentencing’ . . . including consideration of any pertinent 

circumstances which have arisen since the prior sentence was 

imposed.”].) “[U]nless the record affirmatively reflects 

otherwise,” the trial court is “deemed to have” considered all of 

the enumerated factors. (Cal. Rules of Court, rule 4.409.)

Welch contends the trial court did not understand that it 

could exercise its discretion to impose a lesser firearm

enhancement. However, the prosecutor advised the court at the

resentencing hearing that “the court does have the option to 

replace the 12022.53, [subdivision] (d) with a [subdivision] (c) or a 

[subdivision] (b) [enhancement] . . . if [it] thinks that 

appropriate.” Although the court did not specifically address the 

lesser firearm enhancements, we presume it was aware of its 

discretion to impose a lesser enhancement, especially in light of 

the prosecutor’s acknowledgment.10 (People v. Morrison, supra,

10 In People v. McDavid (April 29, 2024, S275940) 15 Cal.5th

1015, 1021, the Supreme Court held that a trial court may 

impose a lesser included uncharged enhancement outside of 

section 12022.53 (for example, section 12022.5). This holding 
15

34 Cal.App.5th at p. 225 [concluding trial court may impose 

lesser section 12022.53 enhancement, and therefore, “after the 

publication of our decision today, the usual presumption that a 

sentencing court correctly applied the law will apply and will 

ordinarily prevent remand where the record is silent as to the 

scope of a court’s discretion”]; see People v. Henson (1991) 

231 Cal.App.3d 172, 182 [“the lower court’s mere silence as to 

whether or not it was engaging in an exercise of discretion is 

insufficient to sustain appellant’s burden of proof”].) 

Welch also argues the trial court improperly relied on 

factors that are present in every murder, including great violence 

and bodily harm, being armed with a weapon, and that the crime 

posed a risk to the general public. Rather, he asserts, something 

more than the ordinary factors present in every murder is 

required in order to find an aggravating factor, citing People v. 

Moreno (1982) 128 Cal.App.3d 103, 110 [“The essence of 

‘aggravation’ relates to the effect of a particular fact in making 

does not impact our decision because, as Welch acknowledges, the 

“record reflects that the sentencing court . . . would not have 

exercised discretion” to impose any lesser uncharged 

enhancement. (See People v. Belmontes (1983) 34 Cal.3d 335, 

348, fn. 8 [stating with respect to sentencing under section 

1170.1, “[t]he petition may also be summarily denied if the record 

reflects that the sentencing court clearly indicated that it would 

not have exercised discretion to sentence . . . even if it had been 

aware that it had such discretion”]; see also People v. Superior 

Court (Romero) (1996) 13 Cal.4th 497, 530, fn. 13.) We assume 

that if the trial court declined to impose a 10- or 20-year firearm 

enhancement under section 12022.53, subdivision (b) or (c), it 

would not have exercised its discretion to impose a three-, four-, 

or 10-year enhancement under section 12022.5, subdivision (a). 
16

the offense distinctively worse than the ordinary.”]; see People v. 

Scott, supra, 9 Cal.4th at p. 350 [“the court generally cannot use 

a single fact both to aggravate the base term and to impose an 

enhancement, nor may it use a fact constituting an element of the 

offense either to aggravate or to enhance a sentence”]; Cal. Rules 

of Court, rule 4.420(h) [“A fact that is an element of the crime on 

which punishment is being imposed may not be used to impose a 

particular term.”]. But in imposing the firearm enhancement,

the trial court considered factors that were not present in murder 

cases generally, including the use of a weapon to commit the 

murder, great violence, the vulnerability of the unarmed victim, 

and risk to the public, which are not elements of the crime.

11 

(See § 189, subd. (a) [use of a weapon is not an element of first 

degree murder]; People v. Dixie (1979) 98 Cal.App.3d 852, 856 

[“Violence is not an element of murder.”].) Specifically, the trial 

court found the “crime involved great violence”; Welch “was 

armed with or used a weapon”; “the victim . . . was vulnerable in 

that he was alone, unarmed, [and] unaware”; and “the shooting 

was done . . . upon a street in a residential area [and] posed a risk 

to the general public.” 

These are all proper factors for the trial court to have 

considered (Cal. Rules of Court, rules 4.420 & 4.421), and Welch 

has not shown the court’s decision to impose the firearm 

enhancement was either arbitrary or capricious. (Pearson, supra, 

38 Cal.App.5th at p. 116 [absent a showing that the trial court’s 

11 Welch also questions whether the trial court considered his 

youth and immaturity. However, we assume the court, in 

acknowledging it had reviewed the two Franklin mitigation 

reports submitted by Welch’s counsel, took Welch’s youth into 

account in making its sentencing decision. 
17

“‘“‘sentencing decision was irrational or arbitrary,’”’” we presume 

the trial court “‘“‘acted to achieve legitimate sentencing 

objectives’”’”]; see People v. Carmony, supra, 33 Cal.4th at p. 379

[“the Court of Appeal in this case . . . did not conclude that the 

trial court relied on improper factors in refusing to strike. 

Rather, it simply disagreed with the court’s weighing of these 

factors. And in doing so, it erred”].)12

B. The True Finding on the Gang Enhancement Must Be

Reversed in Light of Assembly Bill 333

In his supplemental brief Welch argues that Assembly 

Bill 333 applies retroactively and requires reversal of both his 

murder conviction and the gang enhancement. We agree as to 

the gang enhancement, but not the murder conviction.

12 Welch argues in his reply brief that the trial court abused 

its discretion in not considering the Racial Justice Act (§ 745). 

Welch forfeited this issue by failing to raise it in the trial court or 

in his opening brief. Therefore, we do not consider it. (People v. 

Adams (1990) 216 Cal.App.3d 1431, 1441, fn. 2, italics omitted 

[“‘points raised in the reply brief for the first time will not be 

considered, unless good reason is shown for failure to present 

them before’”].) Further, any claim that the sentence violates the 

Racial Justice Act may be raised postjudgment by way of a 

petition for writ of habeas corpus. (§ 1473, subd. (e) 

[“Notwithstanding any other law, a writ of habeas corpus may 

also be prosecuted after judgment has been entered based on 

evidence that a criminal conviction or sentence was sought, 

obtained, or imposed in violation of subdivision (a) of 

Section 745”].) 
18

1. Assembly Bill 333

Effective January 1, 2022, Assembly Bill 333 “impose[d] 

new substantive and procedural requirements for gang 

allegations.” (People v. Sek (2022) 74 Cal.App.5th 657, 665 (Sek).)

“Assembly Bill 333 made the following changes to the law on 

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.’

[Citation.] 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. [Citation.] 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. [Citation.] 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.’”

(People v. Tran (2022) 13 Cal.5th 1169, 1206 (Tran); see Sek, at 

p. 665.)
19

2. Welch is entitled to the ameliorative benefits 

of Assembly Bill 333

Assembly Bill 333 became effective following our remand in 

Welch II. Welch contends that because his judgment was not yet 

final when the amendments to section 186.22 became effective, 

he is entitled to the ameliorative benefits of Assembly Bill 333, 

including reversal of the gang enhancement, and, assuming trial 

of the gang enhancement should have been bifurcated, reversal of 

the murder conviction. The People respond that Welch’s murder 

conviction and gang enhancement finding became final when the 

remittitur in Welch I was issued on January 29, 2019 because we 

remanded for the limited purpose of resentencing, and thus, the 

ameliorative benefits of Assembly Bill 333 do not apply. Welch 

has the better argument.

In In re Estrada (1965) 63 Cal.2d 740, the Supreme Court 

held that statutory amendments that reduce the punishment for 

an offense apply retroactively to a defendant whose judgment is 

not yet final, absent a contrary legislative intent. (Id. at p. 745; 

see People v. Superior Court (Lara) (2018) 4 Cal.5th 299 

[discussing Estrada and its progeny].) Assembly Bill 333’s 

changes to the elements necessary to prove a section 186.22 gang 

enhancement apply retroactively under Estrada. (Tran, supra, 

13 Cal.5th at pp. 1206-1207; People v. E.H. (2022) 75 Cal.App.5th 

467, 478 [“Assembly Bill 333’s substantive changes apply 

retroactively to all cases . . . in which the judgment of conviction 

is not yet final because the changes ‘redefine, to the benefit of 

defendants, conduct subject to criminal sanctions’”].) 

The Courts of Appeal are divided as to whether Assembly 

Bill 333 retroactively applies when a case is remanded on a 

limited issue not involving a gang enhancement. In People v. 
20

Lopez (2023) 93 Cal.App.5th 1110 (Lopez), review granted 

Nov. 15, 2023, S281488,13 Division Two of the Fourth District 

concluded that after the Court of Appeal affirmed the convictions 

but remanded for the trial court to consider whether to strike the 

defendant’s prior serious felony conviction and firearm 

enhancements, on remand the trial court lacked jurisdiction to 

consider application of Assembly Bill 333 because the defendant’s 

convictions were final and the remand was only for resentencing. 

(Id. at p. 1119.) 

By contrast, the Fifth District in People v. Mitchell (2023) 

97 Cal.App.5th 1127 (Mitchell), review granted Feb. 21, 2024, 

S283474, disagreed with Lopez and concluded that because the 

defendant had not been resentenced when Assembly Bill 333 took 

effect, the defendant’s “criminal judgment never became final, 

. . . [and the court] must presume the Legislature intended for 

this ameliorative enactment to apply as broadly as is 

constitutionally permissible.” (Id. at p. 1140.) Thus, the court 

concluded, “we reject [the People’s] assertion that the issue of 

[defendant’s] guilt is final even though the validity of appellant’s 

sentence is still being adjudicated.” (Id. at pp. 1140-1141.) 

We agree with Mitchell that “[t]he cutoff point for 

application of ameliorative amendments is the date when the 

entire case or prosecution is reduced to a final judgment.” 

13 The Supreme Court in Lopez, review granted November 15, 

2023, S281488, will decide the following question: “Is defendant 

entitled to retroactive application of Assembly Bill No. 333 (2021-

2022 Reg. Sess.) where he appeals for a second time after his 

judgment was conditionally reversed and the Court of Appeal 

issued a limited remand to the trial court to address sentencing 

issues?”
21

(Mitchell, supra, 97 Cal.App.5th at p. 1139, review granted; see 

Tran, supra, 13 Cal.5th at pp. 1206-1207 [“Estrada ‘stand[s] for 

the proposition that (i) in the absence of a contrary indication of 

legislative intent, (ii) legislation that ameliorates punishment (iii) 

applies to all cases that are not yet final as of the legislation’s 

effective date.’”].) 

Moreover, we disagree with the People’s contention that 

under People v. Padilla (2022) 13 Cal.5th 152, a criminal 

judgment can be bifurcated such that a portion of the judgment 

may be deemed final while other portions of the judgment are 

considered non-final. In Padilla, the Supreme Court considered 

the retroactive effect of Proposition 57, the Public Safety and 

Rehabilitation Act of 2016 (Cal. Const., art. I, § 32), which 

reformed the process by which criminal cases may be filed 

against juveniles in criminal courts. In holding that 

Proposition 57 applied retroactively to a sentence vacated by a 

habeas corpus proceeding, the Supreme Court observed in the 

final paragraph of the opinion, as pointed out by the People here, 

that “the right and remedy we recognize today does not allow [the 

petitioner] to raise claims unrelated to his sentence,” and 

therefore, “[w]hatever potential [the transfer hearing provided 

under Proposition 57] may have for reducing [the petitioner’s] 

punishment (the nonfinal part of his judgment), it does not 

authorize or constitute relitigation of guilt.” (Padilla, at p. 170.) 

As the Court of Appeal explained in People v. Trent (2023) 

96 Cal.App.5th 33, 43, review granted Dec. 20, 2023, S282644, 

however, “the final paragraph of Padilla was intended to allay 

concerns that the defendant in that case would request a new 

adjudication of his guilt in the juvenile court itself and was not 

intended to divorce the court’s retroactivity analysis from 
22

instances in which the retroactive relief would result in a more 

favorable sentence because the underlying change required 

reversal of a count of conviction for possible retrial.” (See 

Mitchell, supra, 97 Cal.App.5th at p. 1140, review granted [“We 

do not read Padilla as creating bifurcated judgments in the 

manner respondent now advocates—especially for a criminal 

matter, such as this one, that never had its sentence reduced to a 

final judgment.”].) 

Accordingly, Welch was entitled to the ameliorative 

benefits of Assembly Bill 333 because his case had not yet been 

reduced to a final judgment. (See People v. Salgado (2022) 

82 Cal.App.5th 376, 380 [“The Attorney General, however, argues 

Assembly Bill 333 does not apply in this case because Salgado’s 

conviction and enhancements findings were final long before the 

enactment of Assembly Bill 333. We are not persuaded. [¶] The 

California Supreme Court has recently held that ‘once a court has 

determined that a defendant is entitled to resentencing, the 

result is vacatur of the original sentence, whereupon the trial 

court may impose any appropriate sentence.’ [Citation.] 

Accordingly, when Salgado was resentenced under former 

section 1170, subdivision (d), his criminal judgment was ‘no 

longer final’”].)

3. Assembly Bill 333 requires reversal of the gang

enhancement finding

Welch argues, the People concede, and we agree the 

evidence at trial failed to establish that the alleged predicate 

offenses provided more than a reputational common benefit to 

the gang, as required under amended section 186.22, 

subdivision (e)(1). At trial, the People’s gang expert testified that 
23

“[w]hen you’re a gang member, you need to make sure your gang 

has a reputation of using violence. When you have that 

reputation, it is easier to control the streets. It is easier to 

distribute narcotics. It is easier to get away with other crimes 

because you’re not only intimidating other gang members but 

intimidating law abiding members of the community who may 

not step forward because they know your reputation, or they may 

step forward and then change their story because they’re so 

scared because of your reputation.” This evidence is insufficient 

to establish a gang enhancement under section 186.22, 

subdivision (e)(1).

Because “the retroactive application of the amendment 

impermissibly deprives defendant of [his] constitutional right to a 

jury trial on an element of the charged offense,” we reverse the 

true finding on the gang enhancement. (People v. Ramos (2016) 

244 Cal.App.4th 99, 104; see People v. Figueroa (1993) 

20 Cal.App.4th 65, 71 [“Appellant is entitled to have the jury 

decide every essential element of the crime and enhancement 

charged against him, no matter how compelling the evidence may 

be against him.”].) 

4. The People must have an opportunity to 

retry the gang enhancement against Welch

“When a statutory amendment adds an additional element 

to an offense, the prosecution must be afforded the opportunity to 

establish the additional element upon remand.” (People v. Eagle

(2016) 246 Cal.App.4th 275, 280.) Accordingly, the proper 

remedy is to remand to give the People an opportunity to retry 

the gang enhancements under current law. (Mitchell, supra, 

97 Cal.App.5th at p. 1131, review granted [“[T]he People shall 
24

have an opportunity to retry the gang charge and the gang 

enhancement allegations under the new law.”]; People v. E.H., 

supra, 75 Cal.App.5th at p. 480 [“The proper remedy for this type 

of failure of proof—where newly required elements were ‘never 

tried’ to the jury—is to remand and give the People an 

opportunity to retry the affected charges.”]; People v. Sek, supra,

74 Cal.App.5th at p. 669 [“Our decision does not bar the 

prosecution from retrying Sek on the gang enhancements upon 

remand.”].)

5. The failure to bifurcate does not require

reversal of Welch’s murder conviction

Assembly Bill 333 also added section 1109, which requires 

that the trial of a gang enhancement charged under 

section 186.22, subdivision (b), be bifurcated from and follow trial 

of the underlying offenses when requested by the defendant.

(§ 1109, subd. (a) [“If requested by the defense, a case in which a 

gang enhancement is charged under subdivision (b) or (d) of 

Section 186.22 shall be tried in separate phases.”]; People v. 

Ramos (2022) 77 Cal.App.5th 1116, 1129 [“Pursuant to 

section 1109, subdivision (a), upon a defendant’s request, a case 

in which a gang enhancement is charged under section 186.22, 

subdivision (b) or (d) must be tried in separate phases.”].)

Welch contends section 1109 is retroactive and the failure 

to bifurcate the gang enhancement constitutes structural error 

requiring reversal of his murder conviction. Although at the time 

of briefing the Courts of Appeal were divided on this question, the 

Supreme Court has now held in People v. Burgos, supra, __ 

Cal.5th ___ [2024 Cal. Lexis 3060] that section 1109 is not 

retroactive. The court reasoned there was no indication in the 
25

legislative history that the Legislature “considered the issue of 

retroactivity at all,” instead focusing on the narrowing of the 

gang enhancement statute. (Id. at pp. 20-21.) The court 

concluded the statute was therefore not retroactive under In re 

Estrada, supra, 63 Cal.2d 740, explaining, “[S]ection 1109 does 

not directly or potentially reduce the punishment for an offense. 

Nor does it change the elements of a substantive offense, defense, 

or penalty enhancement. Likewise, it does not create an 

alternative avenue for certain individuals to receive lesser or no 

punishment. Instead, section 1109 reflects a prophylactic 

procedural rule that modifies the sequence of trial proceedings.” 

(Burgos, at p. 23.) Accordingly, “in the face of the Legislature’s 

silence regarding Assembly Bill 333’s application, we conclude 

that Estrada’s inference of retroactivity applies to the 

punishment-mitigating changes to section 186.22, but not 

provisions governing the conduct of trial in section 1109.” (Id. at 

p. 36.)
26

DISPOSITION

The gang enhancement is reversed, and the matter is 

remanded with directions to allow the People an opportunity to 

retry the gang enhancement under section 186.22. If the People 

elect not to retry Welch on the gang enhancement, the trial court 

shall reinstate the sentence (without the gang enhancement). In 

all other respects, the judgment is affirmed.

FEUER, J.

We concur:

MARTINEZ, P. J.

SEGAL, J.