Filed 7/15/26 In re Bell CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re F089456
JAJUAN ROBERT BELL, (Kern Super. Ct. Nos. BF123070A,
HC17932A)
on Habeas Corpus.
ORIGINAL PROCEEDINGS; application for writ of habeas corpus.
Jajuan Robert Bell, in pro. per., and Meredith Fahn, under appointment by the
Court of Appeal, for Petitioner.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Kimberley A. Donohue, Assistant Attorney General, Eric L. Christoffersen and
Jeffrey A. White, Deputy Attorneys General, for Respondent.
-ooOoo-
Petitioner Jajuan Robert Bell and his codefendants at trial used assault weapons to
rob a casino and several of its patrons. Later, petitioner and his codefendants conspired
to rob the casino again but were caught and arrested. Petitioner was convicted of well
over a dozen crimes in connection with these incidents.
Petitioner has appealed his convictions three times. He now claims in a petition
for habeas corpus that prior appellate counsel was ineffective for failing to raise
Assembly Bill No. 333 (2021–2022 Reg. Sess.) (Assembly Bill No. 333) to challenge his
gang convictions and enhancements. The Attorney General argues the claim was
untimely, but otherwise concedes its merits. Petitioner’s gang convictions and
enhancements are vacated, and the matter is remanded for a possible retrial and a full
resentencing.1
STATEMENT OF THE CASE2
Appellate History
In petitioner’s first appeal, we reversed his conviction for conspiracy to commit
assault with a deadly weapon for insufficient evidence.3 (People v. Bell (2015) 241
1 Because this disposition is based on ineffective assistance of counsel, we are
required to notify the State Bar pursuant to Business and Professions Code section
6086.7, subdivision (a)(2), for investigation of the appropriateness of initiating
disciplinary action against appellate counsel in People v. Bell, case No. F081937. (Cal.
Rules of Court, rule 10.1017.) We shall do so upon issuance of the remittitur in this case.
(See In re Jones (1996) 13 Cal.4th 552, 589, fn. 9; In re Sixto (1989) 48 Cal.3d 1247,
1265, fn. 3; People v. Pangan (2013) 213 Cal.App.4th 574, 584, fn. 10.)
2 We incorporate by reference the factual summaries from petitioner’s prior
appeals.
3 We have taken judicial notice of the appellate records in petitioner’s prior
appeals before this court in cases Nos. F064909, F074656, and F081937.
Petitioner also requests that we take judicial notice of (1) this court’s complete
decision filed December 7, 2022, in People v. Lewis, case No. F082553; (2) this court’s
nonpublished decision filed May 8, 2024, in People v. Lewis, case No. F086295;
(3) appellant’s opening brief and this court’s nonpublished decision filed June 29, 2023,
in People v. Williams, case No. F084882; (4) appellant’s opening brief and this court’s
2.
Cal.App.4th 315, 359–362 (Bell I).) We also conditionally reversed the judgment
because the trial court applied an incorrect standard for determining whether petitioner’s
plea of once in jeopardy could be resolved by a court rather than a jury. (See ibid.) We
permitted that, on remand, the prosecution could move to strike petitioner’s plea of once
in jeopardy. (Id. at p. 361.) If the court granted such a motion, it would reinstate
petitioner’s convictions (except as to the count of conspiracy to commit assault with a
deadly weapon). (Ibid.)
On remand, the prosecution did move to strike petitioner’s jeopardy plea. After
limited discovery and a hearing at which the court accepted testimony, the court granted
the prosecution’s motion to strike. (People v. Bell (2020) 47 Cal.App.5th 153, 161
(Bell II).) The court resentenced petitioner to a total term of 73 years eight months.
(Ibid.) Petitioner again appealed.
In Bell II, we affirmed the court’s granting of the prosecution’s motion to strike,
but remanded for the court to consider how it would like to exercise the discretion
granted by two newly enacted laws: Senate Bill No. 620 (2017–2018 Reg. Sess.) and
Senate Bill No. 1393 (2017–2018 Reg. Sess.). (Bell II, supra, 47 Cal.App.5th at p. 200.)
On remand from Bell II, the court declined to strike petitioner’s prior serious
felony enhancement under Penal Code section 667, subdivision (a), but decided not to
“impos[e]” the firearm enhancements (Pen. Code, § 12022.53, subds. (b), (e)(1)) as to
counts 2, 3, and 4. The court stated, “I think it’s fair to say that [petitioner] was the
leader and the planner and the executor of the crimes. It is also fair to say that the jury
did not find that [petitioner] was personally armed at the time. The sentence for
[petitioner] is quite long and I believe to be appropriate given the actions and the
nonpublished decision filed August 16, 2024, in People v. Williams, case No. F087269;
(5) the amended abstract of judgment filed December 17, 2024, in People v. Williams,
Kern County Superior Court case No. BF123070B; and (6) the motion to recall the
remittitur filed June 11, 2024, and order on that motion filed June 21, 2024, in People v.
Lopez-Ortuno, case No. F084970. We grant this unopposed request.
3.
charges.” After pronouncing sentence, the court reiterated, “This sentence is long. It is
well deserved. It is commensurate with the actions of the [petitioner]. It does not put the
public in jeopardy and I believe it is appropriate.”
The court’s sentencing decisions effected a 10-year reduction from petitioner’s
prior sentence, resulting in an aggregate prison term of 63 years eight months. Petitioner
appealed again, and we affirmed the judgment. (People v. Bell (Apr. 28, 2022, F081937)
[nonpub. opn.] (Bell III).)
Present Proceedings
On March 11, 2025, petitioner filed a petition for writ of habeas corpus in this
court. He raised multiple issues, including that appellate counsel in Bell III was
ineffective for failing to challenge his gang-related convictions and enhancements under
newly enacted Assembly Bill No. 333. In an informal response, the Attorney General
contended this claim was untimely. Nonetheless, the Attorney General acknowledged
petitioner’s argument concerning Assembly Bill No. 333 “appears to have merit” and that
appellate counsel “should have … raised” it on direct appeal. Consequently, the Attorney
General conceded that “this Court should vacate the gang convictions and strike the gang
enhancements, remand the matter, and order that the prosecution be afforded an
opportunity to retry the substantive gang crimes, the crime of carrying a loaded firearm in
public by a gang member, the gang enhancements, and gang firearm enhancements, to
meet its evidentiary burden under Assembly Bill No. 333.”
On October 2, 2025, this court issued an order denying petitioner’s claims, except
for the claim of ineffective assistance of appellate counsel regarding Assembly Bill
No. 333. We further explained that we “intend[ed], in [our] discretion, to consider the
merits of petitioner’s ineffective assistance of appellate counsel claim despite the
procedural deficiencies alleged by the Attorney General.”
In response, the Attorney General again signaled agreement “that absent the
application of any procedural bars, this Court should vacate the gang convictions and
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strike the gang enhancements, remand the matter, and order that the prosecution be
afforded an opportunity to retry the substantive gang crimes, the crime of carrying a
loaded firearm in public by a gang member, the gang enhancements, and gang firearm
enhancements, to meet its evidentiary burden under Assembly Bill No. 333.”
Petitioner filed a traverse and attached a declaration from his prior appellate
counsel. Counsel stated that, at the time, he consciously declined to raise Assembly Bill
No. 333 on direct appeal after conducting research on the issue. However, he
acknowledged in the declaration that “there is an argument that ameliorative changes in
the elements of an offense, as here, may be raised in a direct appeal of a non-final
judgment.”
Having previously indicated that we would consider the merits in spite of the
untimeliness claim, we now accept the Attorney General’s concession on the underlying
merits. Accordingly, we will vacate the gang-related convictions and enhancements, and
remand the matter for the prosecution to decide whether to retry them.
DISCUSSION
Law
“In 2021, the Legislature amended [Penal Code] section 186.22 with the passage
of Assembly Bill No. 333 … , enacting the STEP Forward Act of 2021. (Stats. 2021,
ch. 699, § 1.) Among other things, Assembly Bill [No.] 333 changed the elements of
gang offenses and enhancements by narrowing the definitions of ‘criminal street gang,’
‘pattern of criminal activity,’ and ‘what it means for an offense to have commonly
benefitted a street gang.’ ” (People v. Fletcher (2025) 18 Cal.5th 576, 583.) Our
Supreme Court has held that “Assembly Bill [No.] 333 is ameliorative legislation that
applies to nonfinal judgments under the rule of In re Estrada (1965) 63 Cal.2d 740.”
(Ibid.)
Assembly Bill No. 333 requires that “ ‘predicate offenses “were committed on
separate occasions or by two or more members, the offenses commonly benefited a
5.
criminal street gang, and the common benefit of the offenses is more than reputational.”
[Citation.]’ [Citation.] ‘In addition, the currently charged offense cannot be used as a
predicate offense under the amendments’ made by Assembly Bill [No.] 333. [Citation.]”
(People v. Vasquez (2022) 74 Cal.App.5th 1021, 1032.)
Petitioner claims prior appellate counsel was ineffective for failing to raise
Assembly Bill No. 333 to challenge his gang convictions and enhancements. “To
establish an ineffective assistance of counsel claim, a defendant must show: (1) counsel’s
performance fell below an objective standard of reasonableness under prevailing
professional norms; and (2) this resulted in prejudice to the defendant.” (People v.
Lepere (2023) 91 Cal.App.5th 727, 738.)
Analysis
At trial, one of the predicate offenses offered to establish the pertinent criminal
street gang (i.e., the Mona Park Compton Crips) was a car dealership robbery. When
asked if that crime was committed for the benefit of, or in the furtherance of, or
association with the gang, the prosecution’s gang expert opined, “I don’t think that that
offense was committed for the benefit of the gang, and that wasn’t prosecuted in that
fashion.” He later stated he had not analyzed the issue and therefore, “couldn’t conclude
that it was for the benefit of the gang.” As the Attorney General concedes, the evidence
adduced at trial was therefore insufficient to qualify the crime as a predicate offense
under Assembly Bill No. 333. Indeed, we held as much with regard to petitioner’s
codefendants, who did raise the issue on appeal. (People v. Williams (June 29, 2023,
F084882) [nonpub. opn.]; People v. Lewis (2022) 86 Cal.App.5th 34; id. (Dec. 7, 2022,
F082553) [nonpub. opn.].)
Because a criminal street gang was not established under the subsequent
requirements of Assembly Bill No. 333, the gang convictions and enhancements would
have been vacated if properly challenged on direct appeal. Appellate counsel’s failure to
raise the issue was therefore prejudicial to petitioner. Accordingly, we direct that the
6.
substantive gang crimes, the crime of carrying a loaded firearm in public by a gang
member, the gang enhancements, and gang firearm enhancements be vacated, and that
the prosecution be allowed to retry them on remand,4 if desired.5
DISPOSITION
The matter is remanded to the trial court with directions to vacate petitioner’s gang
convictions and enhancements, to determine whether the prosecution will elect retrial, to
conduct a retrial if so elected, and to fully resentence petitioner. The order to show cause
previously issued in this matter is discharged.
DETJEN, Acting P. J.
WE CONCUR:
MEEHAN, J.
SNAUFFER, J.
4 “ ‘ “Because we do not reverse based on the insufficiency of the evidence
required to prove a violation of the statute as it read at the time of trial, the double
jeopardy clause of the Constitution will not bar a retrial. [Citations.]” ’ ” (People v.
Salgado (2022) 82 Cal.App.5th 376, 380–381, italics added.)
5 In the traverse, petitioner asks that we expressly direct the court to apply specific
statutes at resentencing that became effective after his initial sentencing. We will not
resolve the retroactivity or nonretroactivity of the various sentencing statutes in the first
instance, and without input from the People. The parties are free to raise the retroactivity
or nonretroactivity of any statutes that may arguably apply at resentencing.
7.