Filed 7/29/26 P. v. Feliz CA5
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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F089267
Plaintiff and Respondent,
(Super. Ct. No. BF148574B)
v.
ALFRED CARL FELIZ, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. John W. Lua,
Judge.
Vicki Hightower, 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
Jessica A. Eros, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
In 2015, appellant Alfred Carl Feliz was convicted by jury of participation in a
criminal street gang (Pen. Code,1 § 186.22, subd. (a)) and other crimes with gang
enhancements (§ 186.22, subd. (b)(1)) attached. In 2025, he came before the court for
recall and resentencing pursuant to section 1172.75 and now appeals from the judgment
that followed.
Appellant contends the amendments made to section 188.22 by Assembly Bill
No. 333 (2021-2022 Reg. Sess.) (Assembly Bill 333) apply retroactively to his case and
require reversal of the substantive gang offense conviction and gang enhancements.
Respondent agrees that remand for further proceedings is required.
We accept respondent’s concession that the Assembly Bill 333 amendments apply
retroactively because appellant’s judgment was not final following recall of his sentence,
reverse his gang conviction and gang enhancements, and remand for further proceedings
consistent with this opinion. Appellant’s convictions are otherwise affirmed.
PROCEDURAL BACKGROUND2
Following a jury trial, the jury convicted appellant of attempted murder (§§ 187,
subd. (a)/664; count 1); kidnapping (§ 207, subd. (a); count 2); assault with a firearm
(§ 245, subd. (a)(2); count 3); gang participation (§ 186.22, subd. (a); count 5); and
possession of a firearm by a felon (§ 29800, subd. (a)(1); count 8).
The jury also found true allegations that the attempted murder was willful,
deliberate, and premeditated, perpetrated during the commission of a kidnapping and/or
1 All further undesignated statutory references are to the Penal Code.
2 The facts underlying appellant’s convictions are set forth in this court’s opinion in
his prior appeal from the original judgment. (See People v. Feliz (Jan. 22, 2019, F071704
[nonpub. opn.].) While the present appeal was pending, we granted appellant’s request to
take judicial notice of the reporter’s transcript and this court’s opinion in the prior appeal.
We need not include a summary of the facts underlying appellant’s convictions here, as
they are not relevant to the issue raised in the present appeal, given respondent’s
concession.
2.
perpetrated by means of discharging a firearm from a motor vehicle at another person
outside of the vehicle (§ 189); appellant discharged a firearm and proximately caused
great bodily injury (§ 12022.53, subd. (d)) in the commission of counts 1 and 2; he used a
firearm (§ 12022.5, subd. (a)) and inflicted great bodily injury (§ 12022.7) in the
commission of counts 3, 5, and 8; and he committed the offenses underlying counts 1
through 3 and 8 for the benefit of, at the direction of, or in association with a criminal
street gang (§ 186.22, subd. (b)(1)).
In a bifurcated court trial, the court found true that appellant had suffered a prior
strike conviction (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)) and a prior serious
felony conviction (§ 667, subd. (a)) and had served three separate prison terms (§ 667.5,
subd. (b)).
Appellant was originally sentenced to 30 years to life, plus 25 years to life for the
firearm enhancement (§ 12022.53, subd. (d)), plus five years for the prior serious felony
enhancement (§ 667, subd. (a)), plus two years for two prior prison term enhancements
(§ 667.5, subd. (b)), on count 1. Punishment on counts 2, 3, 5, and 8 was stayed pursuant
to section 654.
Appellant appealed from the original judgment, and this court affirmed the
judgment.
On January 28, 2025, the trial court conducted a full resentencing pursuant to
section 1172.75 because appellant’s sentence included now-invalid prison prior
enhancements under section 667.5, subdivision (b). The prosecutor moved appellant’s
certified “rap sheet” into evidence. Defense counsel requested the court to consider as
circumstances in mitigation that appellant had a “commendable assignment history”
while in custody; was seeking his associate’s degree; and had participated in programing
including substance abuse recovery, life skills, and a vocational technology class.
In ruling, the court noted it presided over the jury trial and was “mindful of the
evidence that was presented, as well as the original sentence.” The court noted it was
3.
considering the factors raised by defense counsel as circumstances in mitigation, and was
also considering the following factors in aggravation as evidenced by appellant’s rap
sheet: (1) appellant’s prior convictions were numerous; (2) he was on postrelease
community supervision when the crime was committed; and (3) his prior performance on
juvenile probation, state parole, and postrelease community supervision was
unsatisfactory.3 In addition to striking the invalid prison prior enhancements, the court
further noted it was going to strike punishment for the serious felony enhancements under
section 667, subdivision (a) in light of the mitigating factors.
The court pronounced judgment as follows: as to count 1, 30 years to life, plus
25 years to life (§ 12022.53, subd. (d)). The court imposed and stayed punishment on the
remaining counts and enhancements pursuant to section 654. Neither the parties nor the
court made mention of Assembly Bill 333.
DISCUSSION
I. Assembly Bill 333
In 2022, Assembly Bill 333 went into effect and made the following changes to
the law on gang offenses and enhancements: “First, [Assembly Bill 333] 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 section 186.22, former 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 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
3 The trial court considered the same aggravating circumstances at appellant’s
original sentencing in imposing the upper term of imprisonment on counts 2, 3, 5, and 8.
At resentencing, the trial court again imposed upper terms of imprisonment on counts 2,
3, 5, and 8 before staying punishment pursuant to section 654.
4.
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 offenses commonly benefitted a criminal
street gang; and (4) the offenses establishing a pattern of gang activity must be 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).)” (People v. Tran (2022) 13 Cal.5th 1169, 1206.) Additionally, to prove
collective engagement under amended section 186.22, subdivision (f), the prosecution
must show “a nexus between the individual predicate offenses and the gang as an
organized, collective enterprise.” (People v. Clark (2024) 15 Cal.5th 743, 749.)
II. Retroactivity
The parties agree, as do we, that Assembly Bill 333’s amendments apply
retroactively to appellant’s case, as the judgment became nonfinal when he returned to
the trial court under section 1172.75 for recall and resentencing.
“Assembly Bill 333 added new elements to the substantive offense and
enhancements in [section 186.22], and [thus] its substantive changes apply retroactively
to all nonfinal cases under Estrada[4].” (People v. Lopez (2025) 17 Cal.5th 388, 394
(Lopez), citing People v. Tran, supra, 13 Cal.5th at p. 1207.)
In Lopez, our high court found the superior court had jurisdiction to provide relief
under Assembly Bill 333 after the case was conditionally reversed and remanded by the
Court of Appeal to correct a sentencing error (Lopez, supra, 17 Cal.5th at p. 400), and the
parties agree the same reasoning applies here. The Lopez court explained that “when any
4 In re Estrada (1965) 63 Cal.2d 740.
5.
aspect of a case is on appeal from sentencing, the ‘case’ or ‘prosecution’ has not been
reduced to final judgment for Estrada purposes.” (Id. at p. 397.)
Here, section 1172.75 required the trial court to “recall the sentence and
resentence” appellant. (§ 1172.75, subd. (c).) The court was to “apply the sentencing
rules of the Judicial Council and apply any other changes in law that reduce sentences or
provide for judicial discretion so as to eliminate disparity of sentences and to promote
uniformity of sentencing.” (Id., subd. (d)(2).) As such, appellant’s judgment became
nonfinal for Estrada purposes, and the court should have addressed amendments made by
Assembly Bill 333. (See Lopez, supra, 17 Cal.5th at p. 400; see also People v. Salgado
(2022) 82 Cal.App.5th 376, 380–381 [defendant entitled to benefit of Assembly Bill 333
because his judgment was no longer final following recall and resentencing under § 1170,
subd. (d)].)
III. Analysis and Remedy
The jury’s findings on the gang allegations in 2015 were made prior to the
amendments to section 186.22 and without the benefit of jury instructions on the
elements added by Assembly Bill 333. Respondent concedes the record does not disclose
the error was harmless beyond a reasonable doubt and that remand is required. (See
People v. Cooper (2023) 14 Cal.5th 735, 742.) We accept respondent’s concession.
The parties also agree, as do we, that upon remand the prosecution must be given
an opportunity to establish the elements of the substantive gang offense charged in
count 5 and the gang enhancements on counts 1 through 3 and 8 pursuant to amended
section 186.22. Following any proceeding to establish those elements or if the
prosecution chooses to forego its opportunity to comply with Assembly Bill 333, the trial
court must conduct a full resentencing. (People v. Sek (2022) 74 Cal.App.5th 657, 669–
670.)
6.
DISPOSITION
The sentence is vacated. The gang conviction (§ 186.22, subd. (a); count 5) and
true findings on the gang enhancements (§ 186.22, subd. (b)(1); counts 1, 2, 3 & 8) are
reversed. The matter is remanded to the trial court for resentencing. Upon remand, the
prosecution may elect to retry, under current law, the gang conviction and/or gang
enhancements. In all other respects, appellant’s convictions are affirmed.
DE SANTOS, J.
WE CONCUR:
FRANSON, Acting P. J.
HARRELL, J.
7.