Must any of defendant’s sentencing enhancements be vacated due to recent statutory changes requiring that the offenses necessary to establish a ” ‘pattern of criminal gang activity’ . . . commonly benefited a criminal street gang, and the common benefit from the offense is more than reputational” (Pen. Code, § 186.22, subd. (e)(1), as amended by Stats. 2021, ch. 699, § 3)? A request for an order directing publication of the opinion was denied.

Held:

Assembly Bill No. 333 (2021–2022 Reg. Sess.) (Assembly Bill 333), effective January 1, 2022, amended the substantive offense of active participation “in a criminal street gang” as well as the sentencing enhancement available for a felony committed “for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members.” (Stats. 2021, ch. 699, § 3; Pen Code, § 186.22, subds. (a), (b)(1).) Among other changes, Assembly Bill 333 now requires that, in order to demonstrate a pattern of criminal gang activity for the purpose of establishing a criminal street gang, the prosecution must prove that the two predicate offenses “commonly benefited a criminal street gang, and the common benefit from the offenses is more than reputational.” (§ 186.22, subd. (e)(1).)

Defendant Robert Cooper was convicted of first degree murder (§ 187, subd. (a)) with gang (§ 186.22, subd. (b)(1)(C)) and firearm enhancements (§§ 186.22, subd. (b), 12022.53, subds. (b)–(e)), and a prior strike conviction (§§ 667, subds. (b)– (i), 1170.12, subds. (a)–(d)). We granted review in this case to determine whether any of Cooper’s sentencing enhancements must be vacated due to this recent statutory change to section 186.22. The parties as well as the Court of Appeal below all agree that Cooper’s jury was instructed under the prior law, that the new requirements in section 186.22 apply retroactively to Cooper’s case on appeal under In re Estrada (1965) 63 Cal.2d 740, and that the prejudice from the instructional error is assessed under Chapman v. California (1967) 386 U.S. 18 (Chapman). (See People v. Tran (2022) 13 Cal.5th 1169, 1207 [the rule of Estrada applies to Assem. Bill 333’s changes to § 186.22 and any instructional error resulting from the change in law is assessed under Chapman].) Applying the Chapman standard, we hold that the failure to instruct that the alleged predicate offenses must have “commonly benefited” the gang in a “more than reputational” manner (§ 186.22, subd. (e)(1)) was not harmless beyond a reasonable doubt. Here, the record contains evidence that could rationally lead to a contrary finding regarding whether the gang as a whole (as opposed to the predicate offenders themselves) benefited from the offenses in a nonreputational manner. We reverse Cooper’s gang enhancement, as well as the firearm enhancement that is contingent upon the gang enhancement, and remand the case to the Court of Appeal with instructions to remand the case to the superior court for any retrial of the same.

(Footnotes omitted.) This case was decided 5/25/2023.