Filed 7/22/24 P. v. Harris CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent,

v.

B RYAN HARRIS

,
Defendant and Appellant. B 32 3462

( Los Angeles County Super. Ct. No. B A 436057 )

APPEAL from a judgment of the Superior Court of Los Angeles County, Roger Ito

, Judge. Reversed with directions

. Karyn H. Bucur , 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 , Assistant Attorney General, Stacy S. Schwartz and Colleen M. Tiedemann

, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________2 A jury convicted Bryan Harris of second degree robbery and of attempting to dissuade a witness and found true gang allegations . The trial court imposed a sentence that included a
five

- year prior under Penal Code 1 section 667, subdivision (a) , a 10

- year term for a gang enhancement, and an upper term for robbery . Harris appealed, and this d ivision vacated his sentence
and remanded for reconsideration of his sentence based on then

r ecently enacted Senate Bill No. 1393, which gave trial courts
discretion to strike five

- year priors. On remand, the trial court
declined to strike the five

- year prior. Harris appeals again, contending that the trial court abused its discretion by declini ng to strike the prior , that the true findings on the gang allegations should be stricken under Assembly Bill No. 333 (Assembly Bill 333)

, and that he should be resentenced under Senate Bill
No. 567 (Senate Bill 567) . We reverse with directions

. BACKGROUND

I. The underlying crime 2

“ On April 19, 2015, Isiah Mack was working at a medical marijuana dispensary as an armed security guard. Before letting customers enter, Mack verified they had identification and a doctor’s recommendation. That evening, Harris went to the

1 All further statutory references are to the Penal Code.

2 T he factual background is from the Court of Appeal opinion affirming with directions Harris’s judgment of conviction, People v. Harris (Nov. 6, 2019, B285260) [nonpub. opn.]. We take judicial notice of that opinion and of the record . (Evid. Code, §§ 451, subd. (a), 452, subd. (a).)3

dispensary by himself and, as he had the appropriate documentation, Mack let him in. “Less than an hour later, Harris returned with Dharmen Prasad. Having just seen Harris’s documentation, Mack again
let him in. But when Mack asked Pr asad for his documents, Prasad pointed a gun at Mack and asked, ‘What are you doing in the hood with a Blood and burner?’ Prasad took Mack’s gun from its holster and threatened to shoot him. For his part, Harris patted Mack down but also convinced Prasad not to shoot Mack. Prasad left with Mack’s gun while Harris looked on. When Mack assured Harris that he had no ill will towards him, Harris agreed and left. A few days later, Harris called Mack and told him that if he did not testify he would get his gu n back. [ 3 ] “The People’s gang expert testified that Harris and Prasad are Rolling 20’s gang members, and the dispensary is in the gang’s territory. Based on a hypothetical modeled on the facts of the case, the expert opined that such a robbery would be committed for the benefit of and in association with a gang and such an attempt to dissuade a witness would also benefit the gang.” ( People v. Harris

, supra , B285260.)

II. Verdict and sentence
A jury found Harris guilty of second degree robbery with a

tr ue finding that a principal used a firearm (§§ 211, 12022.53, subds. (b) & (e)(1); count 1) and of attempting to dissuade a witness (§ 136.1, subd. (a)(2); count 2). The jury found true gang allegations as to both counts (§ 186.22, subd. (b)(1)(C)).

“ [ 3 ] Mack used the word testify even though no proceeding had yet been initiated.4 On Se ptember 20, 2017, the trial court sentenced Harris to the upper term of five years on count 1, doubled to 10 years based on a prior strike, and to a consecutive two years, doubled to four years on count 2. The trial court also imposed a consecutive 10

yea rs (§ 186.22, subd. (b)(1)(C)) and five years (§ 667,
subd. (a)(1)). The trial court selected the high term on count 1 because Harris had “an increasing and poor performance on probation.”

III. Postjudgment proceeding s Harris appealed the judgment of con viction. While his appeal was pending, Senate Bill No. 1393 bec a me effective , and it gave courts discretion to strike or to dismiss five

- year prior s imposed under section 667, sub division (a)(1). This d ivision
vacated Harris’s sentence and remanded for resentencing so that
the trial court could exercise its discretion under the new law. ( People v. Harris

, supra , B285260.)
At the September 14, 2020 remand hearing

, the trial court
declined to exercise i ts discretion to strike the five

- year prior. Harris did not appeal that order and instead filed a m otion for resentencing , asking, among other things, for reconsideration of
the September 14, 2020 order

. The motion was not heard until August 26, 2022, by which time Harris had retained a new attorney who had filed an amended motion. T he trial court denied the resentencing motion , finding it had no jurisdiction to hear it

. Harris timely appealed from the August 26, 2022 order, and, as we discuss later, suc cessfully obtained relief from default from failing to appeal the September 14, 2020 order.5 DISCUSSION

I. The t rial court did not abuse its sentencing discretion by not striking or dismissing the five

- year prior

Harris contends that the trial court a buse d its discretion by refusing to strike or to dismiss the five

- year prior

. We disagree. When Harris was sentenced in 2017, a trial court had no discretion to strike a section 667, subdivision (a) enhancement.
But Senate Bill No. 1393 (2017

– 2018 Reg. Sess.) became effective January 1, 2019 . It amended sections 667, subdivision (a), and 1385, subdivision (b), to give a sentencing court discretion to
strike or to dismiss a prior serious felony conviction for sentencing purposes. (Stats. 2018, ch. 1013, §§ 1

– 2.)
W e review a court ’ s decision to deny a motion to strike a
five

- year prior serious f elony enhancement for an abuse of
discretion. ( People v. Brugman (2021) 62 Cal.App.5th 608, 637

– 638 .) The party attacking the sentence has the burden of showing that the sentencing decision was irrational or arbitrary,
and absent such a showing, we will presume that the trial court acted to achieve legitimate sentencing goals. ( People v. Carmony (2004) 33 Cal.4th 367, 376

– 377.) Further, we will not reverse a sentencing decision merely because reasonable people might disagree. ( Id. at p. 377.) Here, Harris argues the trial court’s refusal to strike the
five

- year prior was based on a mistake of fact regarding the proximity in time between the current and prior offenses, and, accordingly, the ruling was an abuse of discretion. T h e current offense s occurred in 2015, and Harris had a prior conviction for a 2011 robbery. Yet , during the September 14, 2020 resentencing hearing, the prosecutor mistakenly said the offenses occurred one year apart, rather than four years.6 A review of the entirety of th e hearing, however, does not show that the trial court adopted this mistake of fact. Rather, at the hearing’s outset, t he trial court said it had reviewed the record of conviction and trial transcripts

, and the trial court acknowledged that Harris had diss uaded his accomplice from
further violence

. Reiterating that it had read the defense motion, record of conviction, and Harris’s criminal history “in particular,”

t he trial court said that given its review and “ the proximity of
time between his criminal hi story and of this particular event, I am not inclined to utilize any authority” under Senate Bill
No. 1393. Harris’s original sentence was “fair and just

, ” albeit “harsh.” Yet, Harris ’s “history and involvement ” s howed that imposing the five

- year prior was appropriate.
D efense counsel responded that the enhancement should be dismissed because of the evidence surrounding Harris’s
involvement in the crime , presumably referring to Harris’s attempt to dissuade his accomplice from further viol ence . The prosecutor then said

, “I heard the court saying the fact that his priors from 2014 and the crime he committed was in 2015, so almost within a year the crime was committed. I think that’s the
main issue I have. It’s the same or similar conduct. ” The trial court concluded by repeating that it was declining to exercise its discretion “given the circumstances in particular

— not this case so much as the proximity of time to a prior conviction for a very, very similar type of offense.” Harris’s posit ive intervention during the robbery did not excuse that he had engaged in similar conduct that “was a close proximity in
time.” The trial court assured Harris that it had read the trial transcript and “saw what you did or did not do.”7 Nothing in this coll oquy shows that the trial court based its ruling on a mistaken belief that only a year separated Harris’s current and prior offenses. First, the prosecutor made the misstatement, not the trial court. Second, t he trial court said it was denying the motion based on its review of the record and the proximity of the current crimes to Harris’s prior criminal history before the prosecutor misstated that Harris’s prior offense was from 2014 (instead of 2011). Stated otherwise, the trial court had already made i ts ruling before the prosecutor made the
misstatement. Third, the trial court repeatedly said it had reviewed the record, including Harris’s criminal history . That record states the correct date of the prior conviction, 2011.
Therefore

, the record affi rmatively shows that the trial court knew that the prior robbery conviction was in 2011. But even if
the record did not contain this affirmative showing, we would presume that the trial court was aware of the relevant factors
absent Harris’s failure to establish otherwise. ( See P eople v.
Pearson (2019) 38 Cal.App.5th 112, 117 [we presume court
considered relevant factors].) We therefore conclude that Harris has not shown the trial court abused its discretion by refusing to
strike the five

- year prior.

II. Harris is entitled to the benefit of ameliorative laws

Harris contends that the true findings on the gang
alle gations must be vacated due to changes in the law effected by Assembly Bill 333 and that he is entitled to resentencing under
Senate Bill 567. Before addressing the merits of Assembly Bill 333 and Senate Bill 567, we first explain why they are properly
be fore us.8

A. Harris’s conviction is not final

As we have said , when Harris appealed his judgment of conviction, this d ivision vacated his sentence and remanded the
matter so that the trial court could consider whether to strike or
to dismiss the five

- year prior based on Senate Bill No. 1393. ( People v. Harris

, supra , B285260.) At the September 14, 2020 remand hearing , t he trial court declined to exercise its discretion
to strike the five

- year prior. Harris did not appeal that order. Instead, Harris obtained new counsel who, on January 12, 2021, filed a motion for resentencing, asking, among other things,
for reconsidera tion of the September 14, 2020 order. This motion was in part based on counsel’s belief that Harris was unrepresented at the September 14, 2020 hearing. At the January 22, 2021 hearing on the motion for resentencing, the trial court informed the parties that its September 14, 2020
minute order contained a clerical error: it did not state that counsel had represented Harris at the hearing. But t he trial
court continue d the motion so that counsel could obtain a transcript of the September 14, 2020 hearing to verify that Harris was represented at it

. 4 The motion was continued multiple times. At one continuance hearing in May 2022, the trial court reminded counsel that the limited purpose of the remittitur was to consider
the five

- year prior, so if “you w ant to file additional motions
because he is

— his case is potentially not yet final because of the remittitur, then you’re welcome to do so. You may have proper

4 The trial court denied the motion to the extent it raised any Romero issue, finding it lack ed jurisdiction to consider that issue based on the limited nature of the remand order.9

grounds for the court’s use of additional discretion, but that is something that you can file n ow.” The motion was finally heard on August 26, 2022, by which time Harris had retained a new attorney who that month had filed an amended motion for (1) resentencing on remand, (2) reconsideration of resentencing on remand, (3) mitigation of
the sentence under section 1385, (4) recall and resentencing under section 1170.03, and (5) reduction of the felony to a
misdemeanor. T he amended motion did not raise Assembly Bill
333 or Senate Bill 5 67, both of which had become effective on January 1, 2022. At the hearing, t he trial court detailed the history of the motion, stating that it had calendared the motion
for reconsideration because it mistakenly thought Harris was unrepresented at the September 14, 2020 hearing. Having
determined there was no issue a bou t Harris’s representation at
th e September 14, 2020 hearing, the trial court said it did not
believe it “ at this juncture has additional jurisdiction.” The trial court therefore denied the motion, finding it lacked jurisdiction to
hear it.
Harris filed a timely notice of appeal from the August 26,
2022 order. Harris’s appellate counsel then filed in this court an application for relief from default and to consolidate a constructively filed notice of appeal from the September 14, 2020 order with the August 26, 2022 order. In his declaration supporting the appli cation, Harris stated he could not remember his trial counsel advising him of his right to appeal the September 14, 2020 order, but Harris had wanted to pursue his appellate and any other rights regarding that order. We directed the Attorney General to re spond to the application. The Attorney General responded that it did not oppose Harris’s application.10

We granted Harris’s application, deemed any notice of appeal from the September 14, 2020 order denying resentencing filed as of October 31, 2023, and co nsolidated that appeal with the appeal from the August 26, 2022 order. (See generally In re Benoit (1973) 10 Cal.3d 72.) In his opening brief on appeal

, Harris argued that the true finding s on the gang allegation s should be reversed based on Assembly Bill 333, which became effective in January 2022. Harris also filed a supplemental brief asking for remand under Senate Bill 567, which became effective that same date. Because Harris’s trial counsel never raised Assembly Bill
333 below (or Senate Bill 567)

, even though it had been in effect for eight months by the time of the August 26, 2022 hearing, we directed the parties to address whether that failure constituted a forfeiture on appeal.
In his supplemental brief, Harris argue d that no forfeiture
occurred because he did not have a “meaningful opportunity” to raise Assembly Bill 333

. That is, the trial court lacked jurisdiction to consider th e new law and therefore it would have
been futile for him to raise it. Harris thus points out that section
1172.1 ( former section 1170, subd ivision (d)(1)) allows a sentence
to be recalled within 120 days of sentencing , here, 120 days from September 14, 2020 . The mere filing of a motion within 120 days is insufficient; rather, any motion must be filed and ruled on
wit hin 120 days. ( See People v. C h lad (1992) 6 Cal.App.4th 1719,
17 24

– 1725 .) While Harris did file his motion for reconsideration within 120 days of the sentencing hearing, the trial court did not
rule on it or recall the sentence within 120 days of September 14,
2020. A ccordingly, the trial court had no jurisdiction to11

resentence Harris, as the trial court ultimately found at the August 26, 2022 hearing. The People , however, appear to suggest that the trial

court ’s invit ation to Harris’s counsel at a hearing in May 2022 to “file additional motions because he is

— his case is potentially not yet final because of the remittitur” preserved its jurisdiction. Notwithstanding the trial court’s invitation

, it could not confer jurisdiction where none existed. (See generally People v. Hampton (2019) 41 Cal.App.5th 840, 848 [court has no authority to confer jurisdiction upon itself where none exists]; People v. Berg (2019) 34 Cal.App.5th 856, 876 [trial court’s inherent powers end with the loss of jurisdiction] ; Jackson v. Superior
Court (2010) 189 Cal.App.4th 1051, 1067 [loss of jurisdiction for purposes of reconsideration occurs when the order becomes final and binding].) The People next argue that , in any event, counsel’s failure
to raise Assembly Bill 333 an d Senate Bill 567 did not prejudice
him because those new laws are inapplicable to Harris

. That is,

t hose laws apply retroactively to cases not final when the laws
beca m e effective o n January 1, 2022. ( People v. Tran (2022) 13 Cal.5th 1169, 1206

– 1207 [substantive amendments to § 186.22 retroactive] ; People v. Flores (2022) 73 Cal.App.5th 1032, 1038

– 1039 [ Sen. Bill 567 retroactive to nonfinal convictions on appeal ] .) The People thus assert that Harris’s judgment became final when
the remittitur issued in January 2020 , which was years before
the new laws became effective

. Our California Supreme Court recently addressed when criminal convictions are final for purposes of applying retroactive
laws in People v. Padilla (2022) 13 Cal.5th 152 ( Padilla ). In
Padilla , a juvenile was convicted of crimes and sentenced in adult12

court. ( Id. at p. 159.) Over 10 years after his conviction had
become final , he successfully petitioned for a writ of habeas corpus after the law was amended regarding juvenile sentencing

. ( Id. at pp. 170

– 171 (dis. opn. of Corrigan, J.). ) The trial court vacated Padilla’s sentence, reconsidered it in light of the new law, and reimposed the same sentence. The Court of Appeal again
vacated the sentence and remanded based on another new law regarding juvenile sentencing. ( Id. at p. 159.) Weeks after the Court of Appeal’s decision

, Proposition 57 passed, provid ing that a ju venile c an be tried in adult court only after a transfer
hearin g

. ( Id. at p. 159. ) T he trial court , however, did not hold a transfer hearing and again imposed the same sentence on
Padilla. ( Ibid. ) Padilla , at page 160
, held that the conviction was

not final because the sentence had been vacated when t he
defendant successfully petition ed for habeas relief. The People interpret Padilla to hold that where an appellate court remands for a limited purpose, such as resentencing, any future litigation is “narr owed to the subject matter of the remand.” T o support this interpretation, t he People rely on People v. Lopez (2023) 93 Cal.App.5th 1110

, review granted November 15, 2023, S281488 . In that case, the appellate

cour t conditionally reversed the judgment on direct appeal and remanded with the direction to the trial court to consider striking various enhancements. ( Id. at p. 1113.) At a remand hearing in 2022, the trial court struck an enhancement but refused to consider Assembly Bill 333, which had passed earlier that year. ( Lopez , at p. 1115.) Lopez , at page 1120, found that Assembly Bill 333 applied to the defendant on remand , but t he trial court had no jurisdiction to relitigate the gang enhancements. In reaching this conclusion, Lopez cited language in Padilla that the right13

and remedy it was recognizing did not allow the defendant to
raise claims unrelated to his sentence and tha t whatever “potential that hearing may have for reducing his punishment (the nonfinal part of his judgment), it does not authorize or constitute relitigation of guilt.” ( Padilla

, supra , 13 Cal.5th at

pp. 169

– 170.) Lopez

, at page 1119 , interpreted this la nguage to mean that “when an appellate court confirms a judgment as to guilt, reverses it as to the sentence, and orders a limited remand for resentencing,” the lower court may act only within the express jurisdictional limits as stated in the remittitur. The court therefore concluded that although the defendant’s conviction was nonfinal and Assembly Bill 333 applied, the trial court had no jurisdiction to readjudicate the gang enhancements. ( Lopez , at

p. 1120.) People v. Mitchell ( 2023) 97 Cal.App.5th 1 127, review granted February 21, 2024, S283474 ( Mitchell )

, disagreed with Lopez ’s interpretation of Padilla

. Mitchell , at page 1130,
involved a similar scenario as in Lopez : vacatur of the defendant’s sentence on appeal and remand for resentencing because an enhancement had been improperly imposed. Mitchell

, at page 1139, noted that “judgment” and “sentence” are synonymous in criminal cases , so there “is no judgment of
convic tion without a sentence. ” Because Mitchell’ s sentence was still being adjudicated when Assembly Bill 333 took effect, his criminal judgment never became final and he was entitled to the benefit of that new law. ( Mitchell , at p. 1140 ; accord People v.
Tre nt (2024) 96 Cal.App.5th 33, review granted Dec. 20, 2023,
S282644 [vacatur of conviction under § 1172.6 renders conviction not final for purposes of Assem. Bill 333; People v. Salgado (2022) 82 Cal.App.5th 376 , 380 [resentencing under former § 1170,14

subd. (d) rendered judgment no longer final]; People v. Keel (2022) 84 Cal.App.5th 546, 551 [Prop. 57 and Sen. Bill No. 1391 applied to resentencing after vacatur of conviction]; People v. Ramirez (2021) 71 Cal.App.5th 970, 996 [same]. ) We agree with Mitchell

. Where a criminal sentence has been vacated on direct appeal and remanded for resentencing, the
conviction is not final and the judgment is reopened for the purpose of retroactive ameliorative laws . Here, this d ivision issued a decision in 2019 vacating H arris’s sentence and remanding for the trial court to consider whether to strike the
five

- year prior. ( People v. Harris

, supra , B285260 .) The trial court held a resentencing hearing on September 14, 2020

, declining to resentence him. Harris did not then appeal that order . He instead filed a motion for resentencing , which was not heard and denied until August 2022 . Harris appealed that order and also asked us to relieve him from default for not having timely appealed the September 14, 2020 order. We granted that relief, which the People did not oppose , and deemed a constructive notice of appeal from the September 14, 2020 order to be timely filed. By virtue of that relief, Harris’s conviction was not final as of January 2022,
when Assembly Bill 333 and Senate Bill 567 became effective

. (See Mitchell

, supra , 97 Cal.App.5th at pp. 1137, 1140 [test for finality is whether criminal prosecution or proceeding concluded before ameliorative legislation too k e ffect].) Therefore, notwithstanding the trial court’s correct conclusion that it lacked jurisdiction to resentence Harris, his judgment is no longer final
and he is entitled to the benefits of those laws , as we next explain

.15

B. Assembly Bill 333
Harris’s j ury found g ang allegation s true under section 186.22, and his sentence included a 10

- year term under that enhancement. Thereafter, Assembly Bill 333 became effective on January 1, 2022 (see Stats. 2021, ch. 699), and it substant ively changed the law on ga ng 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.’ (§ 186.22, subd. (f), italics added.) Second, whereas section 186.22, forme r 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).) [¶] Finally, Assembly Bill 333 added section 1109, which requires, if requested by the defendant, a gang enhancement charge to be tried separately from all other cou nts that do not16

otherwise require gang evidence as an element of the crime. If the proceedings are bifurcated, the truth of the gang enhancement may be determined only after a trier of fact finds the defendant guilty of the underlying offense.” ( People v . Tran (2022) 13 Cal.5th 1169, 1206 ( Tran ).)
T he substantive amendments to section 186.22 apply retroactively to cases not final when Assembly Bill 333 became effective, but the bifurcation proceeding in newly added section
1109 is not retroactive. ( People v. Burgos (2024) 16 Cal.5th 1 .) Although Har ris has failed on appeal to address in what ways the new statutory requirements of section 186.22 were not
met, 5 the evidence, at a minimum, did not establish that the predicate and underlying offenses provided more than a reputational benefit to the Roll ing 20’s gang. ( § 186.22,
subds. (e)(1) & (g) .) Rather, Officer John Thompson testified as a gang expert for the People. Based on his prior contacts with Harris and Harris’s admission that he was a Rolling 20’s gang member, the officer opined that Harri s is a Rolling 20’s gang
member

. 6 T he underlying crime occurred in the gang territory of
the Rolling 20’s , whose primary activities are murder, assault with a deadly weapon, “business robberies, street robbery,” narcotics sales, vandalism, loitering, tre spassing, firearm

5 Appellate counsel’s failure to address this issue could constitute a forfeiture on appeal. ( See generally City of Santa Maria v. Adam (2012) 211 Cal.App.4th 266, 28 6

– 287 ; Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 52.) However, we address the merits because the issue affects Harris’s substantial rights. (§ 1259.)

6 The expert also testified that Prasad is a Rolling 20’s gang member.17

possession, thefts, and burglary. 7 The expert further testified that gang members commit crimes in their own territory to “instill fear within that community.” Committing a crime such as the one here “benefits the gang by showing their power and status within the community and intimidating fear into the community by h aving . . . that gun.” This testimony established merely that Harris’s crimes furthered his gang’s reputation by instilling fear in the community. The expert officer did not testify that some other
benefit accrued to the gang other than this vague, reputa tional

one. Th is evidence was therefore insufficient to support the true findings on the gang allegations. ( S ee, e.g., People v. E.H. (2022) 75 Cal.App.5th 467, 479

– 480 [court could not rule out possibility jury relied on reputational benefit as basis fo r true finding even though there was evidence of financial benefit].) Where, as here, the jury was not presented with any theory
as to how th e crime s benefit t ed the gang beyond a reputational benefit, reversal of the true finding s on the gang allegation s is required. ( Tran

, supra , 13 Cal.5th at p. 1207 .) The “ 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. E.H.

, supra , 75 Cal.App.5th at p. 480.) 8

7 Loitering, v andalism , and trespassing are not qualifying predicate offense s

. ( § 186.22, subd. (e)(1).)

8 Harris has not raised any issue regarding section 1109 and, in any event, the section is not retroactive. ( People v. Burgos

, supra , 16 Cal.5th at p. 29

. )18

C. Harris may raise Senate Bill 567 on remand
When Harris was originally sentenced in 2017, the trial
court had discretion under the determinate sentencing law to select among the upper, middle, and lower terms. (See generally People v. Dunn (2022) 81 Cal.App.5th 394, 402 , review granted Oct. 12, 2022, S275655 .) The trial court here exercised its discretion to imp ose the upper term on count 1 based on its finding that Harris had performed poorly on probation. Ef fective January 1, 2022, Senate Bill 567 (2021

– 2022 Reg. Sess.) amended section 1170 to make the middle term the presumptive term. A trial court thus may now impose the upper term only “when there are circumstances in aggravation of the crime” that justify imposing a term of imprisonment exceeding the middle term, and the defendant has stipulated to the facts underlying
those circumstances or those facts ha ve been found true beyond a reasonable doubt at trial by the trier of fact. (§ 1170, subd. (b)(2); see generally People v. Lopez (2022) 78 Cal.App.5th 459, 464

– 465.) However, the trial court may consider the defendant’s prior
convictions based on certifi ed records of conviction to determine the sentence to impose without submitting the prior convictions to the jury. (§ 1170, subd. (b)(3).) Senate Bill 567 applies to defendants whose judgments
were not final when the law went into effect. ( People v. Dunn

, supra , 81 Cal.App.5th at pp. 402

– 403.) As we have said, Harris’s
conviction was not final when the law went into effect. Therefore, the trial court may consider Senate Bill 567 at the time of any resentencing. 9

9 Be cause we are remanding for a possible retrial of the gang allegation s or resentencing, we decline to consider whether any

error in not considering Senate Bill 567 was harmless.19 DISPOSITION

The true finding s on the Penal Code section 186.22 gang allegation s are reversed with the direction to the trial court to give the prosecution an opportunity to retry the gang allegations against Harris under amended section 186.22. I f the People elect

not t o retry th ose allegation s , the trial court shall resentence Harris. NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS

EDMON, P. J.

We concur:

EGERTON , J.

ADAMS

, J.