Filed 6/18/24 (unmodified opn. attached)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

In re A.M., a Person Coming 

Under the Juvenile Court Law.

2d Juv. No. B329999

(Super. Ct. No. 2009024052)

(Ventura County)

THE PEOPLE,

 Plaintiff and Respondent,

v.

A.M.,

 Defendant and Appellant.

ORDER MODIFYING 

OPINION AND DENYING 

REHEARING

[NO CHANGE IN 

JUDGMENT]

THE COURT:

It is ordered the opinion filed herein on May 31, 2024, be 

modified as follows:

1. On page 3, third sentence of the third full paragraph, 

the word “physically” is inserted between the words “to” and 

“confront” so that the sentence reads:

As the youngest member of his gang, A.M. believed 

he had a duty to physically confront S.S.
2

2. On page 3, fourth full paragraph, the second sentence 

beginning “S.S. arrived” is deleted and replaced with the 

following sentence: 

S.S. was already there.

There is no change in the judgment.

Respondent’s petition for rehearing is denied.

 GILBERT, P. J. BALTODANO, J. 
Filed 5/31/24 (unmodified opinion)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

In re A.M., a Person Coming 

Under the Juvenile Court Law.

2d Juv. No. B329999

(Super. Ct. No. 2009024052)

(Ventura County)

THE PEOPLE,

 Plaintiff and Respondent,

v.

A.M.,

 Defendant and Appellant.

When a court vacates a sentence, the judgment in that case 

becomes nonfinal for purposes of retroactively applying

ameliorative laws. (People v. Padilla (2022) 13 Cal.5th 152, 

161-162 (Padilla); see In re Estrada (1965) 63 Cal.2d 740 

(Estrada).) Applying that principle here, we conclude that a 

judgment becomes nonfinal when a minor defendant sentenced as 

an adult prior to the electorate’s passage of Proposition 57 (Prop. 

57) subsequently has their sentence conditionally reversed on 

habeas corpus. Such a defendant is entitled to the benefit of 

ameliorative laws enacted since the imposition of their original 
2

sentence. Here, that includes Senate Bill No. 1391 (2017-2018 

Reg. Sess.) (Senate Bill 1391), which amended Prop. 57 to

prohibit the transfer of 14- and 15-year-olds to adult criminal 

court, and Assembly Bill No. 333 (2021-2022 Reg. Sess.)

(Assembly Bill 333), which amended various provisions of Penal

Code1 section 186.22.

In 2013, A.M. was tried as an adult for murdering a rival 

gang member when he was 14 years old. A jury convicted him of 

first degree murder (§§ 187, subd. (a), 189, subd. (a)), and found

true allegations that he personally used a deadly weapon and 

committed his crime for the benefit of a criminal street gang 

(§§ 12022, subd. (b)(1), 186.22, subd. (b)(1)). It also found true a 

gang-murder special circumstance allegation (§ 190.2, subd. 

(a)(22)). The trial court sentenced him to 26 years to life in state 

prison.

Eight years later, the superior court conditionally reversed 

the judgment and ordered the juvenile court to conduct a transfer 

hearing pursuant to Prop. 57. The juvenile court conducted the 

hearing, granted the district attorney’s motion to transfer A.M.’s 

case to criminal court, and reinstated the judgment. 

In his opening brief, A.M. contended his case should not 

have been transferred because he was 14 years old when he 

committed his crime. After briefing was complete, we asked the 

parties to discuss whether Assembly Bill 333 applies to this case. 

In response to our request, A.M. contended Assembly Bill 333

1 Unlabeled statutory references are to the Penal Code.
3

requires striking the gang-murder special circumstance.2 We 

agree with both of A.M.’s contentions.

FACTUAL AND PROCEDURAL HISTORY

The murder of S.S.

A.M. was born in 1994 to a single mother and absentee 

father. His stepfather abused him emotionally and physically, 

beginning when he was five or six years old. When A.M. was 

eight, he began taking psychotropic medications to treat his 

mental health disorders. Despite these challenges, A.M. was 

regarded as a “sweet” and “loving” child. 

That began to change when A.M. turned 10. He ran away 

from home and was exposed to gang culture. When he was 12, he 

joined a local gang. He eventually came to view the gang as his 

surrogate family, and started to commit petty offenses for them. 

In April 2009, A.M. (age 14) and two fellow gang members 

went to a party. Sixteen-year-old S.S., a rival gang member, was 

also at the party. As the youngest member of his gang, A.M. 

believed he had a duty to confront S.S. But he left without doing 

so. 

A.M. then went to a second party. S.S. arrived a short time 

later. The two began to exchange blows. The fight escalated, and 

A.M. stabbed S.S. multiple times. A.M. then ran away and called 

his mother to pick him up from the side of a road. S.S. died from 

his wounds. 

The district attorney charged A.M. as an adult with the 

murder of S.S. At trial, a gang expert testified that younger gang 

members like A.M. would do “all they can to bolster their 

2 A.M. also contends Assembly Bill 333 requires striking 

the gang enhancement, but the record reflects that the trial court 

did so at sentencing. 
4

reputation[s].” The expert further testified that a murder like 

the one A.M. committed would “benefit the gang . . . because it’s 

instilling that fear and intimidation” and earning him “status 

and respect.” The prosecutor relied on this testimony in his 

closing argument, suggesting that the “fear” created by A.M.’s 

offense would “increase [his alleged gang’s] reputation” and “earn 

[it] more respect.” The jury was not instructed that it needed to 

find a benefit to A.M.’s alleged gang that was anything more than 

reputational to render true findings on the gang allegation and

gang-murder special circumstance allegation. It was told that 

the predicate offenses allegedly establishing the gang’s pattern of 

criminal activity “need not be gang related.” 

The jury convicted A.M. of first degree murder, found true 

allegations that he used a deadly weapon and committed the 

murder for the benefit of a criminal street gang, and found true 

the gang-murder special circumstance allegation. The trial court 

struck the gang enhancement and sentenced A.M. to 25 years to 

life on the murder3 plus one year for the use of a deadly weapon. 

It also ordered him to register as a gang offender. (See § 186.30.) 

We affirmed the judgment on appeal. Our Supreme Court 

denied review on October 12, 2016. A.M. did not file a petition for 

writ of certiorari with the U.S. Supreme Court, and the matter 

became final on January 10, 2017. (See People v. Vieira (2005) 35 

Cal.4th 264, 306 [judgment becomes final when time to file 

petition for writ of certiorari has elapsed]; U.S. Supreme Ct. 

3 The court stated its belief that, despite the jury’s true 

finding on the gang-murder special circumstance, sentencing 

A.M. to life in state prison without the possibility of parole was 

not permitted given his age when he committed murder. (Citing 

People v. Demirdjian (2006) 144 Cal.App.4th 10, 17.)
5

Rules, rule 13 [petition for writ of certiorari must be filed within 

90 days of entry of judgment in state court of last resort].)

Prop. 57 and its amendments

On November 8, 2016, the electorate passed Prop. 57, 

which took effect the next day. (People v. Superior Court (Lara) 

(2018) 4 Cal.5th 299, 304 (Lara).) As adopted, Prop. 57 

prohibited trying a minor as an adult without “ ‘a judicial 

determination . . . that [they were] unfit to be dealt with under 

juvenile court law.’ ” (Lara, at p. 305.) It allowed prosecutors to 

request the transfer of only two categories of minors to criminal 

court: 16- and 17-year-olds alleged to have committed felonies, 

and 14- and 15-year-olds alleged to have committed specified 

serious or violent felonies. (Voter Information Guide, Gen. Elec. 

(Nov. 8, 2016) text of Prop. 57, § 4.2.) Transfer requests would be 

granted “ ‘only after a juvenile court judge conduct[ed] a transfer 

hearing to consider . . . factors such as the minor’s maturity, 

degree of criminal sophistication, [and] prior delinquent history, 

and whether the minor [could] be rehabilitated.’ ” (Lara, at p. 

305; see also Welf. & Inst. Code, § 707, subd. (a)(3) [listing

transfer factors].)

The Legislature later enacted several statutes to amend 

and implement Prop. 57’s provisions. For example, effective 

January 1, 2019, Senate Bill 1391 bars a juvenile court from 

transferring a 14- or 15-year-old to adult criminal court, 

regardless of the crime they allegedly committed.4 (Stats. 2018, 

4 Senate Bill 1391 includes an exception for a 14- or 15-

year-old not apprehended before the termination of the juvenile 

court’s jurisdiction. (See Welf. & Inst. Code, § 707, subd. (a)(2).) 

That exception is not relevant here because A.M. has been in 

custody since he was 14 years old.
6

ch. 1012, § 1; see Welf. & Inst. Code, § 707, subd. (a)(1); see also 

O.G. v. Superior Court (2021) 11 Cal.5th 82, 87 (O.G.) [Sen. Bill

1391 was a permissible amendment to Prop. 57].) Effective 

January 1, 2022, Assembly Bill No. 624 (2021-2022 Reg. Sess.) 

(Assembly Bill 624) permits a minor to challenge a transfer 

decision on direct appeal. (Stats. 2021, ch. 195, § 1; see Welf. & 

Inst. Code, § 801.) And effective January 1, 2023, Assembly Bill 

No. 2361 (2021-2022 Reg. Sess.) (Assembly Bill 2361) requires 

that transfer decisions be supported by clear and convincing 

evidence. (Stats. 2022, ch. 330, § 1; see Welf. & Inst. Code, § 707, 

subd. (a)(3).)

Proceedings below

In 2021, A.M. moved this court to recall the remittitur in 

his underlying case, contending he was entitled to relief under 

Prop. 57 and its amendments, including Senate Bill 1391. The 

Attorney General conceded that Prop. 57 applied to A.M.’s case. 

We declined to recall the remittitur, however, and instead elected 

to treat A.M.’s motion as a petition for writ of habeas corpus. We 

issued an order to show cause, returnable in the superior court, 

for the Department of Corrections and Rehabilitation (CDCR) to 

demonstrate “why relief should not be granted on the ground that 

[A.M.] is entitled to a [transfer] hearing under Welfare and 

Institutions Code section 707, subdivision (a).” 

After a hearing on the order to show cause, the superior 

court conditionally reversed A.M.’s conviction and sentence and 

referred the matter to the juvenile court for a transfer hearing. 

A.M. argued that Senate Bill 1391 deprived the juvenile court of 

“any residual authority” to transfer his case to criminal court 

because he was 14 when he murdered S.S. The juvenile court 

declined to apply Senate Bill 1391, stating that doing so would be 
7

“contrary to what was specifically ordered” in the order to show 

cause. It also believed A.M.’s case was “final” and “should be 

treated as a continuing writ of habeas corpus for the sole purpose 

of conducting a transfer hearing.” 

A.M. petitioned this court for a writ of mandate, requesting 

that we direct the juvenile court to apply Senate Bill 1391 and 

deny the district attorney’s motion to transfer his case to criminal 

court. We denied the petition “without prejudice to [A.M.’s] right 

to seek relief following the transfer hearing” under Welfare and 

Institutions Code section 801. The district attorney conceded 

that this provision would provide A.M. with an “adequate 

appellate remedy” after his transfer hearing. 

At the transfer hearing, the district attorney argued the 

juvenile court should apply the law in effect on January 10, 2017, 

the date A.M.’s case became final on direct appeal. The court 

accepted the district attorney’s argument in part, concluding that 

Senate Bill 1391 did not apply: “[O]bviously we’re going forward 

with the transfer hearing.” But it rejected the district attorney’s 

argument regarding Assembly Bill 2361, ruling that the standard 

of proof at the transfer hearing would be clear and convincing 

evidence. It held the hearing, applied that standard, and granted 

the district attorney’s motion to transfer A.M.’s case to criminal 

court. 

DISCUSSION

Senate Bill 1391

A.M. contends the juvenile court erred when it declined to 

apply the provisions of Senate Bill 1391 and granted the district 

attorney’s motion to transfer his case to criminal court. We 

agree.
8

Effective January 1, 2019, Senate Bill 1391 bars 

prosecutors from requesting the “transfer of 14- and 15-year-olds 

from juvenile court to criminal court.” (People v. Superior Court

(Alexander C.) (2019) 34 Cal.App.5th 994, 998.) The provisions of 

Senate Bill 1391 apply regardless of whether the minor’s case is 

before the juvenile court after the statute’s effective date (see, 

e.g., B.M. v. Superior Court (2019) 40 Cal.App.5th 742, 746-747) 

or the case was not yet final on appeal when Senate Bill 1391 

took effect (see, e.g., People v. Superior Court (I.R.) (2019) 38 

Cal.App.5th 383, 392-393 (I.R.)). The Attorney General concedes 

as much. And as we explain below, we conclude that Senate Bill

1391 also applies where, as here, a case is before the juvenile 

court because the minor is granted relief on collateral review. 

We review questions of retroactivity de novo. (In re David

C. (2020) 53 Cal.App.5th 514, 519.) Our Supreme Court recently 

explained the relevant principles: Under Estrada, supra, 63 

Cal.2d 740, “new laws that mitigate punishment . . . are 

presumed to apply to cases charged before the law’s enactment 

but not yet final.” (Padilla, supra, 13 Cal.5th at p. 160.) “[T]he 

range of judgments affected by Estrada is delimited by 

constitutional constraints; as [the court] said in Estrada itself, a 

law lessening punishment is understood to apply ‘to every case to 

which it constitutionally could apply.’ ” (Id. at pp. 160-161.) 

Thus “any restrictions on [the Legislature’s] power [to intervene 

in judicial decisionmaking] would attach at ‘the conclusion of a 

criminal proceeding as a whole’—i.e., when ‘ “the last word of the 

judicial department with regard to a particular case or 

controversy” ’ has issued.” (Id. at p. 161.) 

“Consistent with this view, [the Supreme Court has] 

approved laws that alter indisputably final cases when they 
9

create new rules or procedures by which a defendant may seek 

relief.” (Padilla, supra, 13 Cal.5th at p. 161.) The Padilla 

defendant, for example, “was sentenced to life imprisonment 

without the possibility of parole before the United States 

Supreme Court held . . . that such a sentence is unconstitutional 

when imposed on a juvenile unless the court has considered 

whether the sentence is appropriate in light of the minor’s age 

and potential for rehabilitation.” (Ibid.) But “[a]fter petitioning 

for habeas corpus relief on that basis, his sentence was vacated, a 

new term was imposed, and then that sentence was vacated too.” 

(Ibid.) That rendered his case nonfinal: “When Padilla’s sentence 

was vacated, the trial court regained the jurisdiction and duty to 

consider what punishment was appropriate for him, and Padilla 

regained the right to appeal whatever new sentence was 

imposed.” (Id. at pp. 161-162, italics added.) That appeal must 

be deemed “part of direct review of a nonfinal judgment, not 

collateral review of a final judgment.” (Id. at p. 163.) 

Applying those principles here entitles A.M. to the 

ameliorative benefit of Senate Bill 1391’s provisions. Because 

A.M.’s judgment was not final on November 9, 2016, Prop. 57 

retroactively applies to his case. (See Lara, supra, 4 Cal.5th at p. 

309.) The superior court was therefore required to conditionally 

reverse his conviction and sentence on habeas corpus. (See id. at 

pp. 310, 313.) It did so and referred his case to the juvenile court 

for a transfer hearing. Once that occurred, A.M.’s case became 

nonfinal (Padilla, supra, 13 Cal.5th at pp. 161-162; see also 

People v. Lopez (2023) 93 Cal.App.5th 1110, 1119-1120 [case 

becomes nonfinal following conditional reversal], review granted 

Nov. 15, 2023, S281488 (Lopez)), and Senate Bill 1391 applied

(I.R., supra, 38 Cal.App.5th at pp. 392-393). 
10

As he did in Padilla, “the Attorney General . . . asks us to 

distinguish . . . between cases that are nonfinal because the 

defendant is undergoing retrial or resentencing and those in a 

newly coined procedural stance—cases ‘not yet final on initial 

review.’ ” (Padilla, supra, 13 Cal.5th at p. 162.) We cannot do so. 

(Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 

455.) As the Supreme Court explained when it rejected the 

Attorney General’s request in Padilla, “Estrada made no such 

distinction.” (Padilla, at p. 162.) “The Estrada presumption 

stems from [the] understanding that when the Legislature 

determines a lesser punishment is appropriate for a particular 

offense or class of people, it generally does not wish the previous, 

greater punishment—which it now deems ‘too severe’—to apply 

going forward.” (Ibid.) “We presume the Legislature intends the 

reduced penalty to be used instead in all cases in which there is 

no judgment or a nonfinal one, and in which it is constitutionally 

permissible for the new law to control.” (Ibid.) That includes a 

case that “is nonfinal because the defendant’s sentence has been 

vacated rather than because the initial review of the sentence has 

not yet concluded.” (Ibid.) 

Our sister courts have applied these principles in analogous 

scenarios involving previously final judgments. For example, in 

People v. Hwang (2021) 60 Cal.App.5th 358, our colleagues in 

Division 5 of this district held that Prop. 57 and Senate Bill 1391 

retroactively applied in a case rendered nonfinal because the 

defendant’s sentence was recalled pursuant to a recommendation 

from CDCR. (Hwang, at pp. 364-366.) Relying on Hwang, a 

panel of Division 7 held that Prop. 57 and Senate Bill 1391 

applied in a case rendered nonfinal upon the granting of a 

resentencing petition. (People v. Ramirez (2021) 71 Cal.App.5th 
11

970, 996-1000.) The Fourth District also reached the same 

conclusion, holding that the granting of a resentencing petition 

renders a case nonfinal, requiring the application of Prop. 57 and 

Senate Bill 1391. (People v. Keel (2022) 84 Cal.App.5th 546, 563-

565.) 

The Attorney General’s attempts to distinguish Padilla are 

not persuasive. He claims that unlike Padilla, no court has 

vacated A.M.’s pre-Prop. 57 conviction or sentence. The Attorney 

General is mistaken: In response to our order to show cause, the 

superior court conditionally reversed A.M.’s conviction and 

sentence. 

The Attorney General also argues that unlike the vacatur 

in Padilla, the conditional reversal here did not disturb A.M.’s 

conviction or sentence so as to render his case nonfinal. But 

Padilla itself involved a conditional reversal. (See People v.

Padilla (2020) 50 Cal.App.5th 244, 256, review granted Aug. 26, 

2020, S263375, aff’d. (2022) 13 Cal.5th 152.) So have cases 

retroactively applying Senate Bill 1391. (See, e.g., People v. 

Superior Court (T.D.) (2019) 38 Cal.App.5th 360, 365, 378.) It is 

with a conditional affirmance, not a conditional reversal, that a 

judgment remains in place pending further proceedings.5 (In re 

J.K. (2022) 83 Cal.App.5th 498, 508.)

People v. Hargis (2019) 33 Cal.App.5th 199, on which the 

Attorney General relies, does not demand a contrary conclusion. 

The Hargis court did not consider whether a conditional reversal 

operates as a reversal that renders a case nonfinal, the issue 

5 We respectfully disagree with the dicta in Andrew M. v.

Superior Court (2020) 43 Cal.App.5th 1116 suggesting otherwise. 

(See id. at p. 1126 [conditional reversal for transfer hearing does 

not “disturb the verdict or vacate the sentence”].)
12

relevant to this appeal. “ ‘ “[C]ases are not authority for 

propositions not considered.” ’ ” (People v. Gray (2023) 15 Cal.5th 

152, 169, fn. 5.) Moreover, the Hargis court presumed that a 

defendant’s case that was final before an ameliorative statute 

took effect would remain final thereafter. (Hargis, at p. 209.) 

That presumption has been undermined by Padilla. (See 

Padilla, supra, 13 Cal.5th at pp. 163-166 [rejecting bright-line 

rule that “ ‘a case has either become final on direct appeal or it 

has not’ ”].)

Alternatively, the Attorney General argues that applying 

Senate Bill 1391 during the proceedings below would have been 

beyond the scope of our order to show cause. The juvenile court 

also relied on this argument when it declined to apply Senate Bill

1391. But we ordered CDCR to show cause as to why A.M. was 

not entitled to a transfer hearing pursuant to Welfare and 

Institutions Code section 707, subdivision (a). That subdivision 

incorporates the provisions of Senate Bill 1391 specifying that 

transfer hearings may be held only for minors who commit their 

crimes when age 16 or older. (Welf. & Inst. Code, § 707, subd. 

(a)(1).) And while our order to show cause did not refer to Senate 

Bill 1391’s age limitations, applying it here is consistent with the 

purpose of those hearings: to determine whether juvenile 

defendants like A.M. may be transferred to criminal court. (O.G., 

supra, 11 Cal.5th at pp. 96-97, 100-102.) It is also consistent 

with Padilla, which noted that applying Prop. 57 to nonfinal 

cases permits relitigating punishment without relitigating guilt. 

(Padilla, supra, 13 Cal.5th at pp. 169-170.)

The Attorney General’s position that Senate Bill 1391 does 

not apply here is also rife with inconsistencies. For example, he 

concedes the order transferring A.M.’s case to criminal court is 
13

appealable pursuant to Welfare and Institutions Code section 

801. He also states that the juvenile court “prudently applied” 

the standard of clear and convincing evidence when it conducted 

the transfer hearing. But Assembly Bill 624, which added section 

801 to the Welfare and Institutions Code, and Assembly Bill

2361, which set the evidentiary standard to apply at transfer 

hearings, both took effect after Senate Bill 1391. The Attorney 

General does not explain why these statutes should apply here 

but Senate Bill 1391 should not.

Consistent with Padilla, we conclude that A.M.’s case will 

become final only “when ‘the criminal proceeding as a whole’ has 

ended [citation] and ‘the courts can no longer provide a remedy to 

a defendant on direct review.’ ” (Padilla, supra, 13 Cal.5th at 

p. 161.) Here, when the judgment was conditionally reversed,

A.M.’s case became nonfinal. Prop. 57, as amended by Senate 

Bill 1391, therefore applies.6

Assembly Bill 333

A.M. contends Assembly Bill 333 requires us to strike the 

true finding on the gang-murder special circumstance tied to his 

murder conviction. The Attorney General counters that 

Assembly Bill 333 does not apply here, either because A.M.’s case 

was already final when the bill took effect or because A.M. was 

not sentenced pursuant to section 190.2. In our view, A.M. has 

the better argument.

Effective January 1, 2022, Assembly Bill 333 amended 

several of section 186.22’s provisions. These amendments, as 

incorporated into the gang-murder special circumstance, 

6 Given our conclusion, we do not resolve whether clear and 

convincing evidence supported the juvenile court’s decision to 

transfer the case to criminal court. 
14

retroactively apply to cases that are not yet final. (People v.

Rojas (2023) 15 Cal.5th 561, 580 (Rojas).) As set forth above, 

once the superior court conditionally reversed the judgment in 

A.M.’s case, his case was nonfinal. Assembly Bill 333’s 

amendments to the special circumstance therefore applied. 

(Lopez, supra, 93 Cal.App.5th at p. 1120, review granted; see also 

People v. Trent (2023) 96 Cal.App.5th 33, 44 [Assem. Bill 333

applies during § 1172.6 resentencing], review granted Dec. 20,

2023, S282644 (Trent); People v. Salgado (2022) 82 Cal.App.5th 

376, 380-381 [Assem. Bill 333 applies during § 1172.1

resentencing].)

This conclusion does not conflict with Padilla’s statement 

that applying Prop. 57 to nonfinal cases does not permit 

relitigating guilt. As the Trent court explained, the statement in 

Padilla was “intended to allay concerns that the defendant in 

that case would request a new adjudication of his guilt in the 

juvenile court itself.” (Trent, supra, 96 Cal.App.5th at p. 43, 

review granted.) It was not, as the Attorney General argued, 

“intended to divorce the court’s retroactivity analysis from 

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.” (Ibid.) Such 

an approach would not be “consistent with the ‘full resentencing 

rule,’ ” which “ ‘allows a court to revisit all prior sentencing 

decisions when resentencing a defendant.’ ” (Id. at p. 44.) A 

judgment “cannot be partially final and partially nonfinal.” 

(Lopez, supra, 93 Cal.App.5th at p. 1117, review granted [citing 

Padilla, supra, 13 Cal.5th at pp. 160-161]; accord People v.

Mitchell (2023) 97 Cal.App.5th 1127, 1140-1141, review granted 

Feb. 21, 2024, S283474.)
15

We further disagree with the Attorney General’s argument

that A.M. is not entitled to relief because the trial court did not

sentence him pursuant to section 190.2. Even though the trial

court did not sentence A.M. pursuant to this section, A.M. would

still have the stigma of committing a gang-related murder on his

record—despite prosecutors’ failure to meet Assembly Bill 333’s

stricter requirements. It would also require him to register as a

gang offender—again, despite the lack of Assembly Bill 333’s

required findings. (§ 186.30, subd. (b)(3); see also § 190.2, subd.

(a)(22) [borrowing definitions from § 186.22]; In re J.V. (2010) 181 

Cal.App.4th 909, 912 [§ 186.30 borrows definitions from 

§ 186.22].) Legislative enactments can retroactively negate such

collateral consequences. (See, e.g., People v. Buycks (2018) 5 

Cal.5th 857, 878-879.) And the Legislature clearly indicated its 

desire to do so here. (See Stats. 2021, ch. 699, § 2, subd. (b) 

[noting negative impacts of being designated a gang member].)

Where, as here, Assembly Bill 333 applies retroactively to a 

jury’s gang-murder special circumstance finding, we review for 

harmless error pursuant to Chapman v. California (1967) 386 

U.S. 18. (People v. Sek (2022) 74 Cal.App.5th 657, 668.) Under 

Chapman, vacating the jury’s finding is “required unless ‘it 

appears beyond a reasonable doubt’ that the [finding] would have 

been the same” under current law. (People v. Tran (2022) 13 

Cal.5th 1169, 1207.) If “there is any reasonable possibility that 

the error might have contributed to the” finding, vacatur is 

required. (People v. Lewis (2006) 139 Cal.App.4th 874, 887.) 

Vacatur is required here. The gang-murder special 

circumstance applies if a juvenile “intentionally killed the victim 

while [they were] an active participant in a criminal street gang, 

as defined in subdivision (f) of [s]ection 186.22, and the murder 
16

was carried out to further the activities of the criminal street

gang.” (§ 190.2, subd. (a)(22).) Subdivision (f) of section 186.22 

defines a “criminal street gang” as a group that engages in a 

“pattern of criminal gang activity.” Since 2022, subdivision (e) of 

that section has defined “pattern of criminal gang activity” as 

committing offenses that benefit a gang in a way that is “more 

than reputational.” (Italics added.)

At trial, the gang expert did not testify that the murder 

A.M. committed benefited his gang in any way that was more 

than reputational. The jury similarly was not instructed that it 

needed to conclude that the murder benefited A.M.’s gang in a 

way that was more than reputational to render a true finding on 

the gang-murder special circumstance. To the contrary, the jury 

was instructed that any predicate offenses “need not be gang 

related”—something the prosecutor reiterated in his closing 

argument. We thus conclude the evidence was insufficient to 

sustain the special circumstance. (People v. Vasquez (2022) 74 

Cal.App.5th 1021, 1032-1033.) It must be vacated, and the 

accompanying gang registration requirement must be stricken. 

(Rojas, supra, 15 Cal.5th at p. 580.)

DISPOSITION

The order granting the district attorney’s motion to 

transfer A.M.’s case to criminal court, entered June 6, 2023, is 

reversed, and the matter is remanded to the juvenile court with 

directions to enter a new order denying the district attorney’s 

motion. 

The true finding on the gang-murder special circumstance 

is vacated, and the requirement for A.M. to register as a gang 

offender is stricken. Prosecutors have the option of retrying the 

special circumstance and meeting the new burden of proof under 
17

Assembly Bill 333. 

After the hearing on the gang-murder special circumstance, 

if any, the juvenile court shall hold a dispositional hearing. It 

shall treat A.M.’s murder conviction as a juvenile adjudication 

and impose an appropriate disposition.

CERTIFIED FOR PUBLICATION.

BALTODANO, J.

I concur:

GILBERT, P. J.
YEGAN, J., Dissenting: 

I respectfully dissent. The result reached by the majority

opinion stretches the concept of “true reversal” to “conditional 

reversal.” I have two observations before a legal analysis. First, 

this is a serious gang related stabbing where the victim is dead 

because of appellant’s decision and his physical assault upon the 

victim. Even though appellant was fourteen years old, it is 

presumed that he knew what he was doing. Most, if not all

fourteen-year-olds, should know that it is unlawful and wrong to 

repeatedly stab a person to death with a knife. The jury found 

appellant guilty of this serious offense and the sentencing judge 

appreciated the gravity of the situation. Second, appellant has

been in prison for fifteen years and is eligible for release on 

parole. He will be released on a parole if and when the Board 

thinks he is ready for release. This should be his only potential 

remedy. 

The majority equate the “conditional reversal” with a “true 

reversal.” This results in a potential “get-out-of-jail-free” card. 

Sentencing is serious and solemn business. It is not a game and 

the courts should, at least, attempt to, honor the sanctity of a 

final judgement. To now undo the verdict and sentence may be 

truly unproductive. Appellant is 29 years old now and the time 

is long passed when he can be “treated” as a juvenile. This is the 

real problem created by the four-to-three opinion in People v.

Padilla (2022) 15 Cal.5th 152. If the majority opinion is correct, 

the only theoretical remedy for the People is Welfare & 

Institutions Code section 1800. (In re Gary W. (1971) 5 Cal.3d. 

296.) 

A “conditional reversal” is, obviously, not a reversal else the 

word, “conditional” would not be included in the superior court’s 
2

order. Let us use a modicum of common sense: The superior 

court, by ordering a transfer hearing, was only looking for a way 

to allow the juvenile court to consider the merits of keeping 

appellant in the juvenile system. It did not reverse the 

conviction. It did not vacate the sentence. And it did not believe 

that it was rendering the earlier judgment “not final.” We 

should not stretch the Padilla holding beyond its express limits.

But, the majority opinion, essentially, erases the word, 

“conditional” and thus, appellant gets the benefit of the 

ameliorative law which, in reality, vacates the jury verdict and 

the judgment of 15 years ago because even though it was final 

for fifteen years, it is not now “final.” I see no principled way to 

agree with this analysis. The majority opinion result seems 

forced so that this appellant may be treated with leniency. The 

record does not allow me to conclude that appellant is entitled to 

leniency. 

CERTIFIED FOR PUBLICATION.

YEGAN, J. 
Ferdinand Inumerable, Judge

Superior Court County of Ventura

______________________________

Latham & Watkins, Nima H. Mohebbi, Sebastien Wadier, 

Max A. Shapiro, Erica Peña, Tatum P. Rosenfeld, Mikaela W. 

Gilbert-Lurie and Melissa Arbus Sherry for Defendant and 

Appellant.

Jonathan Grossman, Steven Torres and Mi Kim for Pacific 

Juvenile Defender Center as Amicus Curiae on behalf of 

Defendant and Appellant. 

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

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Scott A. Taryle and David E. Madeo, Deputy 

Attorneys General, for Plaintiff and Respondent.