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Name: People v. Trent (2023) 96 Cal.App.5th 33
Case #: C096306
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 10/03/2023

Vacatur of defendant’s murder conviction under Penal Code section 1172.6 rendered his substantive gang offense (§ 186.22(a)) nonfinal for purposes of applying Assembly Bill No. 333. In July 2020, Trent filed a petition for resentencing pursuant to former section 1170.95 (now section 1172.6), which was granted. Trent’s murder conviction was redesignated as assault with force likely to cause great bodily injury with a great bodily injury enhancement, plus a substantive gang offense. Trent appealed the trial court’s failure to retroactively apply AB 333 to the gang conviction. Held: Reversed. Effective January 1, 2022, the substantive offense of active participation in a criminal street gang, as well as the gang enhancement, were amended to add additional elements. Once Trent’s collateral attack successfully vacated his murder conviction, he was entitled to the retroactive application of ameliorative laws that benefitted him because the judgment was no longer final for purposes of Estrada retroactivity (In re Estrada (1965) 63 Cal.2d 740). He had a right to be resentenced “on any remaining counts in the same manner as if [he] had not previously been sentenced,” which included retroactive application of AB 333. [Editor’s Note: In an unpublished portion of the opinion, the inclusion of an uncharged great bodily injury enhancement in the redesignation was upheld.]