Filed 7/6/26 P. v. Arrellano 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
THE PEOPLE,
F089217
Plaintiff and Respondent,
(Super. Ct. No. BF200172A)
v.
ERICK DANIEL ARRELLANO, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Charles R.
Brehmer, Judge.
William J. Capriola, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Kimberley A. Donohue, Assistant Attorney General, Christopher J. Rench and
Anna J. Benham Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Hill, P. J., Detjen, J. and Harrell, J.
Defendant Erick Daniel Arrellano contends on appeal that the trial court’s true
findings on three of the four strike priors and three of the four prior serious felony
enhancements must be vacated and the matter remanded to the trial court for any retrial
of these allegations because there is insufficient evidence to support the court’s finding
that defendant’s 2016 convictions qualify as serious or violent felonies for purposes of
the strike priors and prior serious felony enhancements under the 2022 amendments to
section 186.22 enacted by Assembly Bill No. 333 (2021–2022 Reg. Sess.) (Assembly
Bill 333) (Stats. 2021, ch. 699, § 3)). The People agree, as do we. We vacate the trial
court’s true findings on three of the four strike priors and three of the four prior serious
felony enhancements and remand the matter to the trial court for any retrial of this
finding.1
PROCEDURAL SUMMARY
On October 3, 2024, the Kern County District Attorney filed an amended
information charging defendant with attempted carjacking (Pen. Code, § 664, 215,
subd. (a);2 count 1); assault by means of force likely to produce great bodily injury
(§ 245, subd. (a)(4); count 2); assault with a deadly weapon (§ 245, subd. (a)(1); count 3);
false imprisonment by violence (§ 236; count 4); attempting to drive or take a vehicle
without consent (§ 664, Veh. Code, § 10851, subd. (a); count 5); misdemeanor battery
(§ 243, subd. (a); count 6); misdemeanor brandishing a deadly weapon (§ 417,
subd. (a)(1); count 7); misdemeanor tampering with a vehicle or its contents (Veh. Code,
§ 10852; count 8); and misdemeanor resisting a peace officer (§ 148, subd. (a)(1);
count 9). It was further alleged defendant suffered four prior serious felony convictions,
that were charged as both four prior serious felony enhancements (§ 667, subd. (a)(1))
and four strike priors (§§ 667, subds. (b)–(i), (e)–(j), 1170.12, subds. (a)–(e)). The
1 Whether resentencing is required will depend on the result of any retrial.
2 All further statutory references are to the Penal Code, unless otherwise noted.
2.
information also alleged multiple aggravating factors under the California Rules of Court,
rule 4.421.3
On October 14, 2024, defendant pled not guilty to all counts and denied the prior
strikes and enhancement allegations.
On December 10, 2024, the trial court granted defendant’s motion to bifurcate the
strike prior and enhancement allegations.
On December 17, 2024, a jury found defendant guilty on counts 2 through 9. The
jury found defendant not guilty on count 1. The same day, in a bifurcated proceeding, the
trial court found true the four prior serious felony conviction allegations.
On January 21, 2025, the trial court sentenced defendant to a total term of 25 years
to life in state prison, as follows: on count 3 (assault with a deadly weapon), 25 years to
life, pursuant to the “Three Strikes” law; and on count 9, 364 days in county jail,
concurrent. The court exercised its discretion and struck the prior serious felony
enhancements. Punishment on counts 2 and 4 through 8 was imposed and stayed under
section 654.
On January 21, 2025, defendant filed a timely notice of appeal.
FACTUAL SUMMARY4
On July 1, 2024, at approximately 3:30 a.m., Moises A. was warming up his car
outside his apartment complex when he saw defendant with a light, tampering with his
neighbor’s parked vehicle parked two parking spots from his. Defendant told Moises it
was his car, but Moises knew it was his neighbor’s and told defendant that was “BS.”
Defendant then began walking towards Moises. Moises told defendant to leave and that
he had a gun in his car. Defendant then rushed towards Moises and began punching and
3 All further rules references are to the California Rules of Court.
4 As the facts of the underlying offenses are not at issue in defendant’s appeal, we
only briefly summarize them here.
3.
kicking him until Moises was on the ground. Moises told defendant to stop and told him
he had a bad back, but defendant continued to attack him. Defendant then produced a
pocketknife, opened it, and threw it at Moises while he lay on the ground, but it missed
him and landed on the ground nearby.
Defendant then ran over to Moises’s car that was still parked and running near
them and got into the driver’s seat. Moises followed him and got on top of him in the
driver’s seat, where they wrestled. While wrestling in the driver’s seat as defendant tried
to put his car in gear, Moises was able to remove the keys from the ignition and put them
in his pocket. Defendant then placed Moises in a headlock causing him pain, but Moises
grabbed defendant’s testicles until defendant released him from the headlock. Moises
then got out of his car and closed the driver’s side door while defendant was still inside,
and he and a neighbor who had arrived kept defendant inside the car until the police
arrived.
DISCUSSION
Defendant contends the trial court’s true findings on three of the four strike priors
and three of the four prior serious felony enhancements must be vacated and the matter
remanded to the court for any retrial of these allegations, because there is insufficient
evidence to support the finding defendant’s three 2016 convictions qualify as serious or
violent felonies for purposes of three of the four strike priors and three of the four prior
serious felony enhancements under the 2022 amendments to section 186.22 enacted by
Assembly Bill 333. The People agree, as do we.
A. Background
The information charged defendant with nine counts. It was further alleged that he
suffered four prior convictions within the meaning of the Three Strikes law (§§ 667,
subds. (b)–(i), (e)–(j), 1170.12, subds. (a)–(e)). The prior convictions were also alleged
as prior serious felony enhancements (§ 667, subd. (a)(1)), also known as “nickel priors.”
4.
Three of the strike prior convictions were alleged to have been suffered in a single
2016 “at-bat” in Kern County case No. BF162809A: (1) driving a vehicle in the opposite
direction of traffic while evading a peace officer (Veh. Code, § 2800.4) committed for the
benefit of a criminal street gang (§ 186.22, subd. (b)(1)); (2) recklessly evading a peace
officer (Veh. Code, § 2800.2) committed for the benefit of a criminal street gang
(§ 186.22, subd. (b)(1)); and (3) obstructing an executive officer (§ 69) committed for the
benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The fourth alleged strike prior
was a 2010 conviction in Kern County case No. BF133282A for first degree burglary
(§ 460, subd. (a)).
On December 17, 2024, during the bifurcated proceedings on the prior conviction
allegations, the prosecution submitted a mugshot of defendant (exhibit 11) and a prior
conviction packet (exhibit 12). The only evidence offered to prove the three 2016
convictions was an abstract of judgment showing defendant was convicted on
November 18, 2016, by plea in case No. BF162809A on count 1 of driving a vehicle in
the opposite direction of traffic while evading a peace officer (Veh. Code, § 2800.4) with
a gang enhancement (§ 186.22, subd. (b)(1)); on count 2 of recklessly evading a peace
officer (Veh. Code, § 2800.2) with a gang enhancement (§ 186.22, subdivision (b)(1));
and on count 4 of obstructing a peace officer (§ 69) with a gang enhancement (§ 186.22,
subd. (b)(1)). The court found true all prior conviction allegations.
Prior to the sentencing hearing, defense counsel submitted a “Statement in
Mitigation,” arguing that Assembly Bill 333’s 2022 amendments to section 186.22
applied retroactively to defendant’s 2016 convictions to change the status of his 2016
convictions so that they no longer qualified as serious felonies and strikes. Defense
counsel argued that when a court determines whether a prior felony constitutes a strike, it
must apply the law in existence at the time the current offense was committed, and that
his current offenses were committed in 2024 but his conviction for those offenses was not
yet final. Accordingly, defense counsel contended that the determination of whether the
5.
three 2016 convictions constituted strikes or serious felonies required proof that the
offenses constituted gang-related offenses under the current, more stringent requirements
of section 186.22, as amended by Assembly Bill 333.
On January 21, 2025, at the sentencing hearing, the trial court rejected defendant’s
argument and sentenced defendant pursuant to the Three Strikes law to 25 years to life in
state prison.
B. Law
Under the Three Strikes law, defendants previously convicted of serious or violent
felonies are subject to increased prison terms: if a defendant has one prior conviction for
a serious or violent felony, the defendant’s term of imprisonment is doubled (§ 1170.12,
subd. (c)(1)), and if a defendant has two or more such strike priors, the defendant may
receive life imprisonment (id., subd. (c)(2)). The Three Strikes law defines “serious or
violent” felony to include any offense defined as a serious felony under section 1192.7,
subdivision (a). (§ 1170.12, subd. (b)(1).) Section 1192.7 defines “serious felony” to
include, among other things, “any felony offense, which would also constitute a felony
violation of Section 186.22.” (§ 1192.7, subd. (c)(28).)
Section 186.22, subdivision (a) makes it unlawful to “actively participate[] in a
criminal street gang with knowledge that its members engage in, or have engaged in, a
pattern of criminal gang activity, and [to] willfully promote[], further[], or assist[] in
felonious criminal conduct by members of that gang.” (Id., subd. (a).) Section 186.22,
subdivision (b) provides for enhancements if a person commits a felony for the benefit of
such a gang. (Id., subd. (b).) Section 186.22 also defines the terms “criminal street
gang” and “pattern of criminal gang activity” as well as benefitting a gang. (Id.,
subds. (e), (f) & (g).) In 2012, the California Supreme Court held in People v. Rodriguez
(2012) 55 Cal.4th 1125 that the third element of a section 186.22, subdivision (a) offense,
that the defendant must have willfully promoted, furthered, or assisted in felonious
criminal conduct by members of that gang, is only satisfied if a gang member commits
6.
felonious criminal conduct with at least one fellow gang member. (Rodriguez, at
p. 1132.)
In 2020, the court in People v. Strike (2020) 45 Cal.App.5th 143 (Strike) held that
the Rodriguez opinion’s “change in the interpretation of section 186.22[, subdivision] (a)
rendered a pre-Rodriguez conviction inconclusive on its face as to whether it qualified as a
strike.” (Strike, at p. 150.) To prove the strike, “the prosecution could not simply rely on
the fact defendant had suffered a conviction for violating section 186.22[, subdivision] (a).
The prosecution had to prove defendant admitted all of the elements of the offense as
explained by Rodriguez, including that he committed a felony offense with another
member of his gang.” (Ibid.)
Following Strike, the Legislature passed Assembly Bill 333, which amended
section 186.22. (Stats. 2021, ch. 699, § 3.) Effective January 1, 2022, this legislation
“narrowed the definition of a ‘criminal street gang,’ ” “the definition of a ‘pattern of
criminal activity,’ ” and “what it means for an offense to have commonly benefitted a
street gang.” (People v. Tran (2022) 13 Cal.5th 1169, 1206 (Tran).) “First, it narrowed
the definition of a ‘criminal street gang’ to require that any gang be an ‘ongoing,
organized association or group of three or more persons.’ (§ 186.22, subd. (f), italics
added.) Second, whereas former section 186.22, subdivision (f), required only that a
gang’s members ‘individually or collectively engage in a pattern of criminal activity in
order to constitute a ‘criminal street gang,’ Assembly Bill 333 requires that any such
pattern that have been ‘collectively engage[d] in’ by members of the gang. (§ 186.22,
subd. (f), italics added.) Third, Assembly Bill 333 also narrowed the definition of a
‘pattern of criminal activity’ by requiring that (1) the last offense used to show a pattern
of criminal gang activity occurred within three years of the date that the currently charged
offense is alleged to have been committed; (2) the offenses were committed by two or
more gang ‘members,’ as opposed to just ‘persons’; (3) the offense commonly benefitted
a criminal street gang’ and (4) the offenses establishing a pattern of gang activity must be
7.
ones other than the currently charged offense. (§ 186.22, subd. (e)(1)(2).) Fourth,
Assembly Bill 333 narrowed what it means for an offense to have commonly benefitted a
street gang, requiring that any ‘common benefit’ be ‘more than reputational.’ (§ 186.22,
subd. (g).)” (Ibid.) Moreover, because these changes are ameliorative in nature, they
apply to nonfinal judgments on appeal. (Tran, at pp. 1206–1207.)
After the enactment of Assembly Bill 333, the Courts of Appeal were split on
whether it applies to a sentencing court’s determination of whether a defendant’s
conviction under the prior section 186.22 qualifies as a serious felony for purposes of
prior serious felony enhancements and the Three Strikes law. (People v. Fletcher (2025)
18 Cal.5th 576, 583 (Fletcher).)
On August 25, 2025, in Fletcher, supra, 18 Cal. 5th 576, our Supreme Court
resolved the split after noting the relevant statutes are not “paragons of clarity,” and held
that “where a defendant has suffered a conviction under the prior version of
section 186.22, Assembly Bill 333 applies to the determination of whether the conviction
qualifies as a prior serious felony conviction under subdivision (c)(28) of section 1192.7
for purposes of the Three Strikes law and prior serious felony enhancements.” (Id. at
p. 583.) Accordingly, whether a prior conviction was for an offense that constitutes “a
felony violation of Section 186.22” is determined by applying the current version of
section 186.22. (Fletcher, at p. 607.)
On appeal, a reviewing court must “examine the record in the light most favorable
to the judgment to ascertain whether it is supported by substantial evidence. In other
words, [the reviewing court] determine[s] whether a rational trier of fact could have
found the prosecution sustained its burden of proving the elements of the sentence
enhancement beyond a reasonable doubt.” (People v. Miles (2008) 43 Cal.4th 1074,
1083; accord, People v. Delgado (2008) 43 Cal.4th 1059, 1067.) “The People must prove
all elements of an alleged sentence enhancement beyond a reasonable doubt. [Citations.]
Where … the mere fact of conviction under a particular statute does not prove the offense
8.
was a serious felony, otherwise admissible evidence from the entire record of the
conviction may be examined to resolve the issue.” (Miles, at p. 1082.) The inquiry
concerning whether a prior conviction qualifies as a serious felony “is a determination
regarding the nature or basis of the defendant’s prior conviction—specifically, whether
that conviction qualified as a conviction of a serious felony.” (People v. McGee (2006)
38 Cal.4th 682, 706.) “[I]f the prior conviction was for an offense that can be committed
in multiple ways, and the record of the conviction does not disclose how the offense was
committed, a court must presume the conviction was for the least serious form of the
offense. [Citations.] In such a case, if the statute under which the prior conviction
occurred could be violated in a way that does not qualify for the alleged enhancement, the
evidence is thus insufficient, and the People have failed in their burden.” (Delgado,
at p. 1065, superseded by statute on another ground, as stated in People v. Frahs (2018)
27 Cal.App.5th 784, 795)
C. Analysis
We agree with the parties that the evidence here is insufficient to support the trial
court’s findings that defendant’s three 2016 convictions qualified as prior serious felony
convictions for purposes of three of the four strike priors and three of the four prior
serious felony enhancements under the 2022 amendments to section 186.22 enacted by
Assembly Bill 333, because once defendant admitted the three 2016 convictions, no
further evidence was presented to prove the truth of the allegation that the prior
convictions qualified as serious felonies. As no further evidence was presented, there is
no evidence as to the nature of the three 2016 convictions and whether they followed a
jury verdict or a guilty or no contest plea, and they do not meet the current evidentiary
requirements of section 186.22.
Here, the proceedings on the prior strike allegations and prior serious felony
enhancement allegations occurred on December 17, 2024, seven months prior to the
California Supreme Court’s opinion in Fletcher, which was issued on August 25, 2025.
9.
(See Fletcher, supra, 18 Cal.5th 576.) As stated above, Fletcher held that Assembly
Bill 333 applies to the determination of whether a conviction qualifies as a prior serious
felony conviction under subdivision (c)(28) of section 1192.7 for purposes of the Three
Strikes law and prior serious felony enhancements. (Fletcher, at p. 583.)
In Fletcher, the codefendants were both convicted of various felonies, including
active participation in a criminal street gang, and the trial court subsequently found true
that both defendants had a 2015 conviction for unlawful possession of a firearm with an
enhancement under section 186.22 because the offense was committed for the benefit of a
criminal street gang. (Fletcher, supra, 18 Cal.5th at p. 584.) As a result, the trial court
found the prior convictions qualified as serious felonies under the Three Strikes law and
section 667, subdivision (a), and doubled the defendants’ sentences. (Fletcher, at p. 584.)
Assembly Bill 333 went into effect while both defendants’ cases were on appeal.
(Fletcher, at p. 585.) Each defendant alleged on appeal that there was insufficient
evidence to show that the prior conviction qualified as a serious felony, given the changes
enacted by Assembly Bill 333. (Fletcher, at p. 585) The California Supreme Court
agreed and held that the changes to section 186.22 applied to prior strike and serious
felony allegations. (Fletcher, at pp. 587, 600–607.) The Supreme Court interpreted
section 1192.7, subdivision (c)(28) to “employ[] the present conditional tense in naming
‘any felony offense, which would also constitute a felony violation of Section 186.22,’ ”
and that, because the statute did not reference “any felony offense, which also constituted
a felony violation of Section 186.22’ or ‘any felony offense, which also was a felony
violation of Section 186.22,’ ” the statute appeared to implicate current law. (Fletcher, at
pp. 601–602.) It also concluded that there was insufficient evidence that the defendants’
convictions were “obtained under Assembly Bill 333’s more stringent requirements”
because the only evidence presented was the abstracts of judgment, which merely showed
the offenses and gang enhancements. (Fletcher, at p. 607.) Accordingly, the Supreme
Court vacated the strike prior findings in Fletcher and directed the Court of Appeal to
10.
remand with instructions to retry the gang allegations under Assembly Bill No. 333’s
amendments to section 186.22. (Fletcher, at p. 608.)
As in Fletcher, defendant here was convicted in 2016 of three felonies that did not
qualify as serious felonies on their own, but all had attendant gang enhancements under
section 186.22, subdivision (b)(1). Further, also as in Fletcher, the only evidence
presented was an abstract of judgment showing only the bare fact of each conviction with
the attendant gang enhancements, “provid[ing] no information regarding the evidence
used to obtain these convictions or [defendant’s] underlying conduct.” (Fletcher, supra,
18 Cal.5th at p. 606.) Accordingly, as in Fletcher, the record does not show that
defendant’s three 2016 convictions were obtained under the more stringent evidentiary
requirements of Assembly Bill 333’s amendments to section 186.22, as the gang
enhancements attached to the three 2016 convictions were based on defendant’s
admissions to the elements of section 186.22 as they existed when he entered his plea in
that case. At that time, the prosecution was not required to prove, and defendant did not
admit, the current evidentiary requirements of section 186.22, as amended by Assembly
Bill 333.
As Assembly Bill 333’s amendments to section 186.22, subdivision (a) apply to
the trial court’s findings on defendant’s three 2016 convictions pursuant to Fletcher,
defendant’s admission that the 2016 convictions qualified as serious or violent felonies
pursuant to section 186.22, subdivision (b)(1) cannot be construed to have been
knowingly and/or intelligently made. Accordingly, the evidence is insufficient to support
the trial court’s true findings that his three 2016 convictions qualify as serious or violent
felonies for purposes of three of the four strike priors (§§ 667, subds. (a)–(i), 1170.12,
subds. (a)–(e)) and three of the four prior serious felony enhancements (§ 667, subd. (a))
under the 2022 amendments to section 186.22 enacted by Assembly Bill 333. We vacate
the finding and remand the matter for any retrial of these allegations. Whether
resentencing is required will depend on the result of any retrial.
11.
DISPOSITION
The trial court’s true findings that defendant’s three 2016 convictions qualify as
serious or violent felonies pursuant to section 186.22, subdivision (b)(1) for purposes of
three of the four strike priors (§§ 667, subds. (c)–(j), 1170.12, subds. (a)–(e)) and three of
the four prior serious felony enhancements (§ 667, subd. (a)) must be vacated and the
matter remanded to the trial court for any retrial of these allegations, and if required, any
resentencing.
12.