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Name: People v. Avery
Case #: F083155
Opinion Date: 01/04/2023
Attorney: Michael C. Sampson

The Court of Appeal agreed with the parties that the appellant’s criminal street gang enhancements (Pen. Code § 186.22, subd. (b)), his substantive conviction for active participation in a criminal street gang (§ 186.22, subd. (a)), and his conviction for carrying a concealed firearm while an active participant in a criminal street gang (§ 25400, subd. (c)(3)) must be reversed pursuant to changes made to Penal Code section 186.22 by the enactment of Assembly Bill No. 333 (2021-2022 Reg. Sess.). Additionally, the evidence was insufficient to support the appellant’s firearm enhancement attached to the carrying of a concealed firearm count. Appellant did not use the firearm merely by possessing it and his actual use was inconsistent with concealment. The court held the prosecution may retry the appellant on the reversed charges and enhancements and further advised the trial court and parties to consider and apply any pertinent new laws upon resentencing.