Filed 8/18/26 P. v. Boukes CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E086080
v. (Super.Ct.No. BAF1600917)
NOY ESTUL BOUKES, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Joshlyn R. Pulliam,
Judge. Affirmed with directions.
Marilee Marshall for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland and Arlene Sevidal, Assistant
Attorneys General, Stephanie H. Chow and Elana Miller, Deputy Attorneys General, for
Plaintiff and Respondent.
In our first opinion in this case, we affirmed defendant and appellant Noy Estul
Boukes’s conviction and sentence to life without the possibility of parole for first degree
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murder and the jury’s true findings on a gang special circumstance and gang
enhancement allegations, but remanded for the trial court to exercise its sentencing
discretion on the gang enhancements associated with two counts. We also reversed and
remanded for the trial court to strike three prior prison term enhancements that had been
rendered invalid by a superseding amendment to former section 667.5 of the Penal Code
made by Senate Bill No. 136 (2019-2020 Reg. Sess.).1 On remand, the trial court
imposed the gang enhancements but struck the punishment for them, and struck the prior
prison term enhancements as directed in our remittitur.
Subsequently, the Legislature enacted Assembly Bill No. 333 (2021-2022 Reg.
Sess.) and amended the gang enhancement (§ 186.22) and, by definition, the gang special
circumstance statute (§ 190, subd. (a)(22)), to require, inter alia, evidence that the
collective benefit to the gang of the underlying offense was more than reputational
(§ 186.22, subd. (g)). In addition, the legislature enacted section 1172.75, which
retroactively applied the amendment to section 667.5 and provided for full resentencing
to a defendant whose judgment includes an invalid prior prison term enhancement.
On appeal from the sentence imposed on remand from our first opinion, we found
the amendments made by Assembly Bill No. 333 applied to defendant and reversed the
gang special circumstance and gang enhancements for lack of substantial evidence and
remanded either for retrial or for the trial court to strike the findings and resentence
defendant. The prosecutor elected not to retry the gang special circumstance and gang
1 All undesignated statutory references are to the Penal Code.
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enhancements, and the trial court resentenced defendant under the three strikes law.
Because the court had already stricken the prior prison term enhancements after the first
appeal, it found defendant was ineligible for full resentencing under section 1172.75.
In this appeal, defendant argues he was eligible for resentencing under section
1172.75, regardless of whether the prior prison term enhancements had already been
stricken. Defendant also argues, and the People concede, that under People v. Fletcher
(2025) 18 Cal.5th 576 (Fletcher) the trial court must consider whether one of his strike
priors is no longer supported by substantial evidence after the amendments made by
Assembly Bill No. 333. We conclude defendant was not eligible for full resentencing
under section 1172.75, but agree defendant is entitled to a remand for the trial court to
determine whether his strike prior is valid under current law. If the court determines the
strike prior is no longer valid under current law, the trial court must strike the allegation
and fully resentence defendant at that time.
I.
PROCEDURAL BACKGROUND2
“A jury found defendant guilty of the first degree murder of victim 1 (. . .§ 187,
subd. (a); count 1), threatening victim 2 (§ 422; count 2), and falsely imprisoning victim
2 (§ 236; count 3). The jury also found true allegations that defendant intentionally
2 The underlying facts of the offenses are irrelevant to the legal issues presented
here. By order dated September 22, 2025, we granted defendant’s request for judicial
notice of our two prior opinions in this case: People v. Boukes (E072973, Dec. 4, 2020)
[nonpub. opn.] (Boukes I) and People v. Boukes (2022) 83 Cal.App.5th 937 (Boukes II).
(Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
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murdered victim 1 while he was an active member of a criminal street gang (§ 190.2,
subd. (a)(22)) (special circumstance finding); that he personally discharged a firearm
during the commission of the murder, proximately causing great bodily injury or death
(former § 12022.53, subd. (d); Stats. 2018, ch. 423, § 114; § 1192.7, subd. (c)(8)); and
that the offenses in counts 2 and 3 were committed for the benefit of, at the direction of,
or in association with a criminal street gang (former § 186.22, subd. (b)(1)(A); Stats.
2017, ch. 561, § 178).” (Boukes II, supra, 83 Cal.App.5th at p. 938, fn. omitted.)
Separately, defendant admitted to having served three prior prison terms within the
meaning of former section 667.5, subdivision (b), and to having suffered two strike
convictions. The trial court sentenced defendant to state prison for life without the
possibility of parole (LWOP) for his conviction for special circumstance murder; an
indeterminate term of 25 years to life for the firearm use enhancement and, under the
three strikes law, consecutive terms of 25 years to life for each of his convictions on
counts 2 and 3, for a total indeterminate term of LWOP plus 75 years to life. Last, the
court sentenced him to state prison for the determinate term of three years for his
admission to having served three prior prison terms. (Boukes I, supra, E072973.)
In his first appeal, defendant argued, inter alia, the gang special circumstance and
gang enhancements found true by the jury were not supported by substantial evidence
and the three one-year prior prison term enhancements were no longer valid and had to be
stricken. We affirmed the gang special circumstance and gang enhancements and
remanded for the trial to exercise its discretion to either sentence defendant for the gang
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enhancements on counts 2 and 3, strike the punishment for the enhancements, or strike
the enhancements altogether. However, we agreed with defendant (and accepted the
People’s concession) that he was entitled to the retroactive benefit of an ameliorative
amendment to section 667.5 made by Senate Bill No. 136 (2019-2020 Reg. Sess.), which
rendered invalid all one-year prior prison term enhancements except for priors served for
sexually violent offenses. Therefore, we directed the trial court to strike the prior prison
term enhancements. (Boukes I, supra, E072973.)
During an April 7, 2021, hearing on remand the trial court imposed the gang
enhancements on counts 2 and 3 but struck the punishment for them. (Boukes II, supra,
83 Cal.App.5th at p. 943.) With respect to the three prior prison term enhancements, the
trial court struck them “as no longer authorized by law.”
Effective January 1, 2022, the Legislature enacted former section 1171.1 (Stats.
2021, ch. 728, § 3), later renumbered without substantive change as section 1172.75,
effective June 30, 2022 (Stats. 2022, ch. 58, § 12), which retroactively applies the
ameliorative changes made to section 667.5 by Senate Bill No. 136 and invalidates all
prior prison term enhancements imposed for non-sexually violent offenses. (§ 1172.75,
subd. (a).) As explained further, post, that statute also provides that a defendant is
entitled to full resentencing if the trial court finds the “current judgment” includes an
invalid prior prison term enhancement. (Id., subds. (c), (d).)
In our September 29, 2022, opinion in defendant’s second appeal, we held the
gang special circumstance and gang enhancements were no longer supported by
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substantial evidence due to intervening changes made by Assembly Bill No. 333.
Therefore, we reversed and remanded for a retrial on the allegations or for resentencing.
(Boukes II, supra, 83 Cal.App.5th at pp. 939, 943-944.)
On remand, the prosecutor declined to retry the gang special circumstance and
gang enhancements. At a resentencing hearing conducted by a different judge on May 8,
2025, the prosecutor informed the court that the three one-year prior prison term
enhancements had already been stricken.3 Because the enhancements had been stricken
“before the change in the law,” the court stated, “I don’t believe that would entitle Mr.
Boukes to a full resentencing under 1172.75.” Therefore, the court indicated its intention
to resentence defendant “based on the remittitur,” and not under section 1172.75 because
“you don’t qualify for resentencing under that statute.” The court struck the gang special
circumstance and gang enhancement findings as directed in our prior opinion but denied
defendant’s request to dismiss the two strike conviction allegations pursuant to People v.
Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). The court resentenced
defendant on count 1 under the three strikes law to 75 years to life; reduced the firearm
use enhancement for count 1 and sentenced him to a consecutive term of 10 years; and
sentenced defendant to a consecutive term of 25 years to life for count 2 and to the
concurrent middle term of two years for count 3, for a total indeterminate term of 110
years to life.
3 Defendant did not move for resentencing under section 1172.75, orally or in
writing. Instead, the discussion of section 1172.75 was triggered by the prosecutor’s
mistaken captioning of his sentencing brief.
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Defendant appealed.
II.
DISCUSSION
A. Defendant Is Not Eligible For Resentencing Under Section 1172.75.
Defendant contends the trial court erred by not fully resentencing him pursuant to
section 1172.75 on remand from our last opinion. Although he concedes his three prior
prison term enhancements had already been stricken well before his resentencing,
defendant argues his sentence was not final and he was entitled to the retroactive benefits
of section 1172.75. The question before this court is not whether section 1172.75 applies
retroactively. The statute itself answers that question. (§ 1172.75, subd. (a).) The more
salient question for us is whether the defendant met the criteria under that statute for full
resentencing. We must answer that question in the negative.
“Before 2019, Penal Code section 667.5, subdivision (b) (section 667.5(b))
instructed trial courts to ‘impose a one-year term for each prior separate prison term or
county jail term’ served for a felony, with an exception not applicable here for a five-year
period of freedom from custody and felony offenses. (Stats. 1976, ch. 1139, § 268,
p. 5138, as amended by Stats. 2011, ch. 15, § 442; see People v. Langston (2004) 33
Cal.4th 1237, 1241.)” (People v. Rhodius (2025) 17 Cal.5th 1050, 1054 (Rhodius).)
“In 2019, in an effort to reduce the societal and fiscal burdens of incarceration, the
Legislature passed Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill No. 136),
which amended section 667.5(b) to eliminate prior-prison-term enhancements for all
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prior crimes except for ‘sexually violent offense[s] as defined in subdivision (b) of
Section 6600 of the Welfare and Institutions Code.’ (Stats. 2019, ch. 590, § 1.) In 2021,
Senate Bill No. 483 (2021-2022 Reg. Sess.) made this change retroactive. It enacted
Penal Code section 1171.1 (Stats. 2021, ch. 728, §§ 1, 3), later renumbered without
substantive change as Penal Code section 1172.75 (section 1172.75) (Stats. 2022, ch. 58,
§ 12), which declares: ‘Any sentence enhancement that was imposed prior to January 1,
2020, pursuant to subdivision (b) of Section 667.5, except for any enhancement imposed
for a prior conviction for a sexually violent offense as defined in subdivision (b) of
Section 6600 of the Welfare and Institutions Code is legally invalid.’ (§ 1172.75,
subd. (a) (section 1172.75(a)).)” (Rhodius, supra, 17 Cal.5th at p. 1054.)
“A defendant serving a term for a judgment that includes a now-invalid
enhancement is entitled to resentencing. (§ 1172.75, subds. (a), (c).) To facilitate the
process, the statute directs California’s Department of Corrections and Rehabilitation
(CDCR) to ‘identify those persons in their custody currently serving a term for a
judgment that includes an enhancement described in subdivision (a).’ (Id., subd. (b).)
Upon receiving that information, the sentencing court must ‘review the judgment and
verify that the current judgment includes a sentencing enhancement described in
subdivision (a).’ (Id., subd. (c).) ‘If the court determines that the current judgment
includes an enhancement described in subdivision (a), the court shall recall the sentence
and resentence the defendant.’ (Ibid.)” (Rhodius, supra, 17 Cal.5th at p. 1055.) “In
other words, a prior-prison-term enhancement ‘imposed’ before 2020 is now invalid, and
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any prisoner whose judgment includes such an enhancement is entitled to resentencing
under section 1172.75.” (Id. at p. 1058.)
In Rhodius, our Supreme Court held “section 1172.75 entitles a defendant to
resentencing if the underlying judgment includes a prior-prison-term enhancement that
was imposed before January 1, 2020, regardless of whether the enhancement was then
executed or instead stayed.” (17 Cal.5th at p. 1054.) More recently, our Supreme Court
expanded on Rhodius and held a defendant is entitled to full resentencing under section
1172.75 if the judgment includes a now-invalid prior prison term enhancement that had
been imposed but the punishment had been stricken. (People v. Espino (2026) 20 Cal.5th
57, 66.) So far, our Supreme Court has not addressed the question posed in his case: is a
defendant eligible for resentencing under section 1172.75 if the trial court had previously
imposed a now-invalid prior prison term enhancement, but the court has already struck
the enhancement itself and not merely struck the punishment for the true finding. (See
Rhodius, at p. 1066, fn. 2 [declining to address “the application of section 1172.75 where
prior-prison-term enhancements were stricken”]; Espino at p. 61, fn. 1 [“As that question
is not at issue in this case, we do not address it.”].)
In People v. Tang (2025) 109 Cal.App.5th 1003 (Tang), the trial found true an
allegation that the defendant had suffered a prior prison term as defined in former section
667.5, subdivision (b), and at sentencing the court imposed but stayed the enhancement,
not just the punishment. (Tang, at p. 1006.) On direct appeal, the appellate court
affirmed the judgment but, applying the decision in People v. Jones (1993) 5 Cal.4th
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1142, 1153, ruled the trial court had erred by staying the enhancement and modified the
judgment to strike the enhancement entirely. (Tang, at p. 1006.) After the Legislature
amended former section 667.5 to invalidate prior prison term enhancements for non-
sexually violent offenses and made that amendment retroactive in section 1172.75, the
defendant petitioned the trial court for a full resentencing. (Tang, at p. 1006.) The trial
court denied the petition, finding the appellate court had already “‘ordered the prison
priors stricken,’” and “‘with no current imposed prison prior . . . there is no basis for the
exercise of jurisdiction under the retroactive application of [Senate Bill No.] 483.’”
(Tang, at p. 1007.)
On appeal, the defendant argued the trial court had erred by ruling he was
ineligible for resentencing under section 1172.75 because that statute “affords relief to all
defendants whose sentences include a prior prison term enhancement, whether the
enhancement was executed, stayed, or stricken.” (Tang, supra, 109 Cal.App.5th at
p. 1007.) The appellate court agreed with the People that “that a stricken enhancement
cannot be a ‘sentence enhancement that was imposed’ under section 1172.75, subdivision
(a).” (Ibid.)
The appellate court noted that, at the time of its decision, other courts were divided
on the question of whether section 1172.75 applied to prior prison terms that had been
“imposed and executed, imposed and stayed, or imposed and punishment struck,” but
none had addressed the scenario where “the enhancement itself” had been stricken from
the judgment. (Tang, supra, 109 Cal.App.5th at pp. 1007-1008.) Addressing that
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question, the court noted, “It would be anomalous to conclude that an enhancement was
both imposed by and stricken from the judgment.” (Id. at p. 1008, italics added.)
Another panel of the same court had already ruled that, if a trial court concludes a
defendant’s judgment contains a now-invalid prior prison term enhancement that had
been imposed but stayed, the court is required to strike it. (Ibid., citing People v. Saldana
(2023) 97 Cal.App.5th 1270, 1278.) “Here, the enhancement has already been stricken.
It would make little sense to provide ‘all relief (full resentencing)’ when no relief on the
enhancement requiring full resentencing (striking the invalid enhancements) is necessary
or possible.” (Tang, at p. 1008, quoting Saldana, at p. 1278.) Therefore, the court held a
prior prison term enhancement that had previously been stricken in its entirety has not
been “imposed” for purposes of section 1172.75, subdivision (a), and affirmed the denial
of the motion for resentencing. (Tang, at pp. 1010-1011.)
To repeat, in our first opinion we held the amendments to former section 667.5
applied retroactively to the defendant and we reversed in part and directed the trial court
to strike all three of the prior prison term enhancements that had been previously imposed
and executed. (Boukes I, supra, E072973.) On remand, the trial court complied with this
court’s remittitur and struck the enhancements in their entirely because they were “no
longer authorized by law.” When the matter was returned to the trial court for
resentencing after our second opinion, the trial court and the parties agreed the
enhancements had already been stricken in their entirety.
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We are persuaded by the reasoning in Tang that, regardless of whether a trial court
had previously imposed a prior prison term enhancement, it is no longer “imposed” for
purposes of section 1172.75, subdivision (a) if the enhancement has already been stricken
in its entirety. (Tang, supra, 109 Cal.App.5th at pp. 1007, 1010.) Likewise, we conclude
defendant was not eligible for resentencing under section 1172.75 because, at the time of
his resentencing, his “current judgment” did not “include[]” an invalid prior prison term
enhancement. (§ 1172.75, subd. (c); see Rhodius, supra, 17 Cal.5th at p. 1058.)
Therefore, the trial court correctly declined to resentence defendant under section
1172.75.
B. The Trial Court Must Consider Whether One of Defendant’s Strike Priors
Is Invalid Under Assembly Bill No. 333.
Defendant contends that, pursuant to Fletcher, supra, 18 Cal.5th 576, he is entitled
to a remand for the trial court to determine whether one of his strike priors satisfies the
current requirements of the gang statute, and for the court to “invalidate” the prior. The
People concede defendant is entitled to a remand for the trial court to determine whether
the strike prior is valid under current law. We agree with the concession and so order.
The first amended information alleged defendant suffered a serious prior felony
conviction on October 16, 2012, for the substantive gang offense in violation of former
Penal Code section 186.22, subdivision (a).4 Just before sentencing, defendant admitted
to having suffered that prior conviction and admitted it qualified as a “prior strike.”
4 On our own motion, we now take judicial notice of the record in case
No. E072973. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
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(Boukes I, supra, E072973.) In defendant’s Romero motion filed after his second appeal,
however, defense counsel stated the available police reports indicated defendant was the
passenger of a stolen vehicle and, after a brief police pursuit that ended in a minor traffic
accident, defendant was arrested, charged and convicted of violating Vehicle Code section
10851 with a true finding on a gang enhancement under former Penal Code section
186.22, subdivision (b).
As noted, ante, Assembly Bill No. 333 amended section 186.22 to provide, among
other things, that an offense committed on behalf of a gang may support a substantive
gang offense, gang enhancement, or, by definition, a gang special circumstance finding,
only if “the common benefit [to members of a gang] is more than reputational.”
(§ 186.22, subd. (g).) In our prior opinion, we concluded the amendment applied
retroactively to defendant; the record did not contain substantial evidence of a more than
reputational benefit to the gang to support the gang special circumstance and gang
enhancements; and we reversed and remanded for retrial on those allegations or for
resentencing. (Boukes II, supra, 83 Cal.App.5th at pp. 939, 943-944; see People v. Tran
(2022) 13 Cal.5th 1169, 1206-1207 [holding Assembly Bill No. 333 applies retroactively
to cases pending on appeal].)
Since then, our Supreme Court in Fletcher held that, “where a defendant has
suffered a conviction under the prior version of section 186.22, Assembly Bill [No.] 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
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law and prior serious felony enhancements.” (Fletcher, supra, 18 Cal.5th at p. 583.) If
the record contains “no indication that [the defendant’s prior] conviction was obtained
under Assembly Bill [No.] 333’s more stringent requirements,” and the evidence used to
prove the existence of the strike prior “do[es] not alone prove the elements of the alleged
prior serious felony and strike prior enhancements beyond a reasonable doubt,” the
remedy is to provide the People an opportunity to retry the strike allegation under the
current law. (Id. at p. 607.) And, if the People elect not to retry the strike prior or fail to
prove beyond a reasonable doubt that it satisfies the requirements of Assembly Bill No.
333, the trial court must dismiss the allegation and conduct a full resentencing. (See
People v. Buycks (2018) 5 Cal.5th 857, 893.)
Pursuant to the People’s concession, we remand for the trial court to determine
whether the strike prior defendant admitted (whether it was for the substantive gang
offense or for a separate offense with a gang enhancement) remains valid under current
law.
III.
DISPOSITION
The judgment is affirmed. The matter is remanded for the trial court to determine
from the record whether defendant’s strike prior is valid under Assembly Bill No. 333. If
the court determines the record does not prove the strike prior satisfies the requirements
of that bill, the People shall be given the opportunity to retry the allegation. And, if the
People elect not to retry the allegation or are unable to establish the truth of the allegation
14
under current law, the trial court shall dismiss the allegation and fully resentence
defendant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
We concur:
RAMIREZ
P. J.
CODRINGTON
J.
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