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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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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 This opinion has not been certified for publication or ordered published for 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.

BRYAN HARRIS,

Defendant and Appellant.

B323462

(Los Angeles County

Super. Ct. No. BA436057)

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 Code1section 667, subdivision (a), a 

10-year term for a gang enhancement, and an upper term for 

robbery. Harris appealed, and this division vacated his sentence 

and remanded for reconsideration of his sentence based on thenrecently 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 declining 

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 crime2

“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 The 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 Prasad 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 gun 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 

true 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 September 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 

years (§ 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 proceedings

Harris appealed the judgment of conviction. While his 

appeal was pending, Senate Bill No. 1393 became effective, and it 

gave courts discretion to strike or to dismiss five-year priors 

imposed under section 667, subdivision (a)(1). This division 

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 its discretion to strike the five-year prior. 

Harris did not appeal that order and instead filed a motion 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. The 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, successfully obtained relief from default 

from failing to appeal the September 14, 2020 order.
5

DISCUSSION

I. The trial court did not abuse its sentencing discretion by 

not striking or dismissing the five-year prior

Harris contends that the trial court abused 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.)

We review a court’s decision to deny a motion to strike a 

five-year prior serious felony 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. The current 

offenses 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 the hearing, however, does not 

show that the trial court adopted this mistake of fact. Rather, at 

the hearing’s outset, the trial court said it had reviewed the 

record of conviction and trial transcripts, and the trial court 

acknowledged that Harris had dissuaded his accomplice from 

further violence. Reiterating that it had read the defense motion, 

record of conviction, and Harris’s criminal history “in particular,” 

the trial court said that given its review and “the proximity of 

time between his criminal history 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” showed that 

imposing the five-year prior was appropriate.

Defense 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 violence. 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 

positive 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 colloquy 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, the 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 its 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 affirmatively 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 People 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 

allegations 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 

before us.
8

A. Harris’s conviction is not final

As we have said, when Harris appealed his judgment of 

conviction, this division 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, the 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 reconsideration 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 the trial 

court continued 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 want 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 lacked 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 now.”

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. The amended motion did not raise Assembly Bill 

333 or Senate Bill 567, both of which had become effective on 

January 1, 2022. At the hearing, the 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 about Harris’s representation at 

the 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 application, 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 respond 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 consolidated 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 

findings on the gang allegations 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 argued 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 the 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, subdivision (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

within 120 days. (See People v. Chlad (1992) 6 Cal.App.4th 1719, 

1724–1725.) 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. Accordingly, the trial court had no jurisdiction to 
11

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 invitation 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 and Senate Bill 567 did not prejudice 

him because those new laws are inapplicable to Harris. That is, 

those laws apply retroactively to cases not final when the laws 

became effective on 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 adult 
12

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, providing that

a juvenile can be tried in adult court only after a transfer 

hearing. (Id. at p. 159.) The 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 the

defendant successfully petitioned 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 “narrowed to the subject 

matter of the remand.” To support this interpretation, the People 

rely on People v. Lopez (2023) 93 Cal.App.5th 1110, review 

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

court 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 the trial court had 

no jurisdiction to relitigate the gang enhancements. In reaching 

this conclusion, Lopez cited language in Padilla that the right 
13

and remedy it was recognizing did not allow the defendant to 

raise claims unrelated to his sentence and that 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 language 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 1127, 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 

conviction 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. 

Trent (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 division 

issued a decision in 2019 vacating Harris’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 took effect].) 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 jury found gang allegations 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 substantively

changed 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.’ (§ 186.22, subd. (f), italics 

added.) Second, whereas section 186.22, former subdivision (f) 

required only that a gang’s members ‘individually or collectively 

engage in’ a pattern of criminal activity in order to constitute a 

‘criminal street gang,’ Assembly Bill 333 requires that any such 

pattern have been ‘collectively engage[d] in’ by members of the 

gang. (§ 186.22, subd. (f), italics added.) Third, Assembly Bill 

333 also narrowed the definition of a ‘pattern of criminal activity’ 

by requiring that (1) the last offense used to show a pattern of 

criminal gang activity occurred within three years of the date 

that the currently charged offense is alleged to have been 

committed; (2) the offenses were committed by two or more gang 

‘members,’ as opposed to just ‘persons’; (3) the offenses commonly 

benefitted a criminal street gang; and (4) the offenses 

establishing a pattern of gang activity must be ones other than 

the currently charged offense. (§ 186.22, subd. (e)(1), (2).) 

Fourth, Assembly Bill 333 narrowed what it means for an offense 

to have commonly benefitted a street gang, requiring that any 

‘common benefit’ be ‘more than reputational.’ (§ 186.22, subd. 

(g).) [¶] 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 counts that do not 
16

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).)

The 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 Harris has failed on appeal to address in what 

ways the new statutory requirements of section 186.22 were not 

met,5the evidence, at a minimum, did not establish that the 

predicate and underlying offenses provided more than a 

reputational benefit to the Rolling 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 Harris is a Rolling 20’s gang 

member.

6

 The 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, trespassing, 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, 286–287; 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 having . . . 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, reputational 

one. This evidence was therefore insufficient to support the true 

findings on the gang allegations. (See, 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 for true finding even 

though there was evidence of financial benefit].)

Where, as here, the jury was not presented with any theory 

as to how the crimes benefitted the gang beyond a reputational

benefit, reversal of the true findings on the gang allegations 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, vandalism, and trespassing are not qualifying 

predicate offenses. (§ 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 impose the upper term on count 1 based on its 

finding that Harris had performed poorly on probation. Effective 

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 have 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 certified 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 Because we are remanding for a possible retrial of the gang 

allegations or resentencing, we decline to consider whether any 

error in not considering Senate Bill 567 was harmless. 
19

DISPOSITION

The true findings on the Penal Code section 186.22 gang 

allegations 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. If the People elect 

not to retry those allegations, the trial court shall resentence 

Harris.

NOT TO BE PUBLISHED IN THE OFFICIAL 

REPORTS

EDMON, P. J.

We concur:

EGERTON, J.

ADAMS, J.