Trial court erred by denying defendants’ Penal Code section 1172.6 petitions at the prima facie stage based on the jury’s intent to kill findings in the special circumstances verdicts. Anthony, Campbell, Flowers, and Price were convicted of first degree murder and other offenses based on evidence Anthony drove the group into rival gang territory and Flowers used an assault rifle to kill the brother of a rival gang member. While their case was on remand from the Court of Appeal, each defendant filed a petition for resentencing under section 1172.6. As to defendants’ first degree murder convictions, the trial court denied relief at the prima facie stage, finding defendants were ineligible for relief as a matter of law because the jury determined the defendants had the intent to kill the victim based on the true verdicts on the two special circumstances (murder to benefit a street gang and multiple murders). The defendants challenged this finding on appeal. Held: Denial of section 1172.6 petition reversed and case remanded for evidentiary hearing. In the context of a harmless error analysis, the California Supreme Court recently concluded a jury’s gang-killing special-circumstance verdict finding of “intent to kill” did not “necessarily establish all of the elements of directly aiding and abetting first degree murder.” (In re Lopez (2023) 14 Cal.5th 562, 588.) Applying the reasoning of In re Lopez, the Court of Appeal concluded that the trial court erred in ruling that the special circumstance findings of intent to kill rendered defendants ineligible for section 1172.6 relief as a matter of law. More was required for the trial court to find the defendants guilty of first degree murder and the trial court must conduct an evidentiary hearing to assess the evidence. [Editor’s Note: The Court of Appeal also concluded that Assembly Bill No. 333’s amendment to Penal Code section 186.22 did not preclude consideration of the jury’s findings in the gang-murder special circumstance that defendants intended to kill. The changes made to section 186.22 do not detract from the jury’s express findings that each defendant intended to kill the victim.]

Defendants were not entitled to relief under section 1172.6 from their convictions for evading a police officer and causing death. Each defendant had also been found guilty of two counts of second degree murder and two counts of vehicular evasion of a police officer causing death (Veh. Code, § 2800.3(b)). The offenses were based on evidence that Anthony drove the defendants in a high-speed vehicle chase seeking to evade police after the shooting and killed a pedestrian and the driver of a car in a collision. During the section 1172.6 proceedings, the trial court vacated the second degree murder convictions as to Price, Campbell, and Flowers and resentenced them on the counts for vehicular evasion causing death. On appeal, they argued they were also entitled to relief under section 1172.6 from their convictions under section 2800.3(b). The Court of Appeal disagreed. Section 1172.6 provides resentencing relief for defendants convicted of murder, attempted murder, and manslaughter; it does not expressly provide relief to a person convicted under 2800.3. Section 1172.6 requires proof that the petitioner could not presently be convicted of murder or attempted murder because of changes to Penal Code section 188 or 189. Nothing in the amendments to those two statutes changed section 2800.3, which is not denominated as “murder.” Additionally, section 2800.3’s elements are not the same as the elements of murder and the punishments are not the same. [Editor’s Notes: (1) The trial court imposed an upper term sentence for one of the section 2800.3 counts before Senate Bill No. 567 amended Penal Code section 1170(b). The Court of Appeal concluded it was appropriate to remand for a full resentencing for Price, Campbell, and Flowers based on SB 567. (2) After the trial court vacated the second degree murder convictions, it failed to strike the multiple-murder special-circumstance finding as to Price, Campbell, and Flowers. The Court of Appeal agreed with defendants a remand was appropriate for the trial court to explicitly strike the multiple-murder special circumstance.]

The Court of Appeal also concluded:

• AB 333’s amendments apply retroactively to the gang-related gun use enhancement (Pen. Code, § 12022.53(e)) and the gang-murder special circumstance (Pen. Code, § 190.2(a)(22)). The omission of the elements added by AB 333 from the instructions on the enhancement and the special circumstance was not harmless beyond a reasonable doubt. On remand, the People will have the option to retry the enhancement and special circumstance.
• AB 333 did not unconstitutionally amend Proposition 21, which enacted the gang-murder special circumstance. The court reviewed a split of authority in the Courts of Appeal on this issue, which is currently on review in the California Supreme Court in People v. Rojas (2022) 80 Cal.App.5th 542, review granted 10/19/2022 (S275835/F080361).
• The Court of Appeal’s determination in the prior direct appeal that the Chiu error was harmless beyond a reasonable doubt did not fall within the law of the case doctrine.
• The trial court did not abuse its discretion when it refused to dismiss the prior serious felony enhancements (Pen. Code, § 667(a)) on remand.