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

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent,

v.

JEMAR DEWAYNE WELCH,

Defendant and Appellant. B328175

(Los Angeles County Super. Ct. No. N A099773 )

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. M ercer 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, W elch was represented by counsel at the resentencing hearing , but Welch was not present . T he tria l 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 wh ich Welch was present (but without ordering a supplemental probation report) , the trial court again impose d 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 C ode.

### 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 s eparately tried is not retroactive

. W e reverse the true finding on the gang enhancement allegation and remand to allow the People an opportunity to retry the gang enhancemen t

. If the People elect not to retry the gang enhancement, the current sentence w ill 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 tri al, 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 bum

ass 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 O n the afternoon o f 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. Wel ch 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 w alked to the middle
of the street and waited f or Welch to get out of the car. According

to witness es 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 firea rm 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 h is supplemental brief and not in a separate motion. (See Cal. Rules of Court, rule 8.252(a) [“T o 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 12022.5 3, 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 Suprem e 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 r esponded, “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 disc retion 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 condu ct 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 determi ning whether to strike the firearm
enhancement or impose a lesser enhancement

.

C. The Trial Court’s Second Resentencing Hearing
O n 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 hi s 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 20 1 4.

8 “The classification of felon inmates shall include the classification sco re 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 rep orts. The first report was prepared by Pfifer Investigations and Sentencing
Services. Th e report provided a summary of the crime and included background information on Welch ’s childhood. Welch “had little contact” with his biological father while growin g up , and h is 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 beca use 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 low

income housing, and some of Welch’s re latives sold drugs. Gang

related 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 poin ted 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 self

defense.
The second Franklin mitigation report was prepared by
Dr. Car l 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 curr ent age of 29, he “is now psychologically mature, and his behavioral record reflects wh at 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 recor d but the youth offender parole records as well

. ”
The court acknowledged it was required to consider Welch’s post

sentencing conduct, and the court stated it was “satisfied that [Welch ’s counsel ] has presented evidence of postconviction
conduct which woul d 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 senten cing 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 appeal ed.

### 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)

. W e review the court’s sentencing decision in declining to strike the fire arm 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.5 th

11 2, 116 ( Pearson ) [same]; see People v. Carmony (2004)
33 Cal.4 th 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 f

ailure to o rder a s upplemental p robation r eport

w as h armless e rror 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.4 th 979, 982; accord, In re Candace P. (1994)

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

### 11

the d etermin ation 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,
35 2 , fn. 15 [“[t]he trial court’s failure to secure a current probation report is wai ved 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, th e 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

, s upra , 70 Cal.App.4th at p p

. 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 r easonably 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 i s 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

. ”].) A ll of the information that w ould 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

sup plemental probation report would have included any
additional information relevant to the trial court ’s sentencing
d ecision . And, as discussed, after considering the information submitted by Welch, the court found Welch’s postconviction
conduct w as a miti gating factor. ( Cf. People v. Yanaga (2020)
58 Cal.App.5 th 619 , 62 8 [ reversing trial court order on remand for resentencing declining to strike firearm enhancement where

court did not consider post conviction conduct] .)

### 13 2. The t rial c ourt p roperly c onsidered t he r elevant f actors i n d etermining w hether t o s trike t he f irearm

e nhancement
U nder 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

t his subdivision applies to any resentencing that may occur pursuant to any other law. ” ( See Pearson

, supra , 38 Cal.App.5 th

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
wh ether 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. Yan a ga , 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 sente ncing ’

. . . 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 c ourt 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 o utside 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, a nd 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 Peop le v. Henson (1991)

231 C al.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 sust ain 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 a ny lesse r 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 discreti on 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 s ection 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 ordinar y

. ” ] ; see People v.
Scott , supra , 9 Cal.4th at p. 350 [“ the c ourt 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 enhanc e 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 consider ed factors th at 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 [ “ V iolence is not an element of murder

. ” ]

. ) Specifically, the trial

court found the “crime involved great violence”; Welch “was
armed with or use d 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.”
T hese are all proper factors for the trial court to have considered (Cal. Rules of Court, rule s 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 [ a bsent a show ing 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 in to account in making it s 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 enhanceme nt, 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. Theref ore, 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 ’”].) Furth er, 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 ha s 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, 120 6 ( Tran ) ; see Sek , at

p. 665.)

### 19 2. Welch i s e ntitled to t he a meliorative b enefits 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, reversa l 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, th e 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 secti on 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 o f 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,
S2834 74 , 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 ameli orative 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.5 th 152, a criminal judgment can be bifurcated such that a portion of the judg ment may be deemed final while other portions of the judgment are
considered non

- final. In Padilla

, the Supreme C ourt considered
the retroactive effect of Proposition 57, t he 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.5 th 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 adj udication 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.5 th at p. 1140, review granted [“ W e 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. A pp. 5 th 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 r equires reversal of t he g ang

e nhancement finding Welch argues, the People concede, and we agree the
evidence at trial failed to establish that the alleged predicate offenses provide d more than a reputational common benefit to the gang

, as required under amended section 186.22,
subdivision (e)(1). At tri al, 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 s tory 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 [“ A ppellant is enti tled 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 h ave a n o pportunity to

r etry t he g ang e nhancement a gainst 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

rem edy 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 all egations 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 a ffected 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 f

ailure to b ifurcate d oes n ot require

r eversal of Welch’s m urder c onviction 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 requeste d 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 [“Pu rsuant 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 failur e 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 i n People v. Burgos , supra , __ Cal.5th ___ [2024 Cal. Lexis 3060 ] that section 1109 is not
retroactive. T he c ourt reasoned there was no indication in the

### 25

legislative history that the L egislature “considered the iss ue of
retroactiv ity at all,” instead focusing on the narrowing of the gang enhancement statute. ( Id

. at p p

. 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

n ot 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 l esser or no punishment. Instead, section 1109 reflects a prophylactic

proce d ural rule that modifies the s equence 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

. I f the People elect not to retry Welch on the gang enhancement, the trial court
shall reins tate the sentence (without the gang enhancement)

. In all other respects, the judgment is affirmed.

FEUER, J.
We c oncur:

MARTINEZ, P. J.

SEGAL, J.