On remand for resentencing, trial court did not have jurisdiction to readjudicate defendant’s gang enhancement based on Assembly Bill No. 333’s amendments to Penal Code section 186.22. Lopez was convicted of murder and other offenses with gang and other enhancements. In his direct appeal, the court modified the sentence and reversed conditionally, remanding with directions to consider striking several of Lopez’s enhancements. In October 2022, the trial court struck some of the enhancements. On appeal from the resentencing, Lopez challenged the resentencing court’s refusal to apply changes to the Penal Code. He argued that under section 186.22 (as amended by AB 333, effective 1/1/2022) there was insufficient evidence to support the gang enhancement to one count. Held: Affirmed. AB 333 changed the definition of criminal street gang and added elements required to prove the substantive offense and enhancement. Although the Court of Appeal accepted that Lopez was fully entitled to the ameliorative benefits of AB 333 on remand after analyzing relevant case law, the court concluded “those benefits consisted of the redefinition of a gang enhancement, which was irrelevant to anything the trial court had jurisdiction to do.” (Emphasis in original.) On remand, the trial court was only reinvested with jurisdiction to resentence Lopez; his conviction had been affirmed. “Even assuming that, under [AB 333], there was insufficient evidence to support the gang enhancement . . . , there was nothing the trial court could or should have done about it.” (Declining to follow People v. Salgado (2022) 82 Cal.App.5th 376.) [Editor’s Note: The dissent would fully apply the ameliorative changes to the gang statute because Lopez’s case is still on direct appeal and never became final. The majority bases its reasoning on cases where a final judgment has been reopened in postjudgment proceedings. A criminal case does not become final in part, i.e., the sentence.]

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/E080032.PDF