Filed 6/22/26 P. v. Knight 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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,
F089047
Plaintiff and Respondent,
(Super. Ct. No. BF177850A)
v.
JONATHAN KNIGHT, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Charles R.
Brehmer, Judge.
David W. Beaudreau, 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, Amanda D. Cary and
Jeffrey A. White, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Defendant Jonathan Knight contends on appeal that the trial court’s true finding
that his 2012 Penal Code section 186.22, subdivision (a)1 conviction qualifies as a serious
* Before Snauffer, Acting P. J., DeSantos, J. and Harrell, J.
1 All further statutory references are to the Penal Code, unless otherwise noted.
or violent felony for purposes of the strike prior (§§ 667, subds. (c)–(j), 1170.12,
subds. (a)–(e)) and prior serious felony (§ 667, subd. (a)) enhancement allegations must
be vacated and the matter remanded to the trial court for any retrial of this allegation
because there is insufficient evidence to support the court’s finding 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.2 We vacate
the trial court’s true finding that defendant’s 2012 conviction qualifies as a serious or
violent felony for purposes of the strike prior and prior serious felony enhancements and
remand the matter to the trial court for any retrial of this finding.3 In all other respects,
we affirm the judgment.
PROCEDURAL SUMMARY
On September 11, 2019, the Kern County District Attorney filed a third amended
indictment charging defendant with first degree murder of K.G. (Pen. Code, § 187,
subd. (a); count 1); premeditated and deliberate attempted murder of D.V. (§ 664,187;
count 2); two counts of assault with a semiautomatic firearm (§ 245, subd. (b); counts 3
& 10); four counts of discharging a firearm at an occupied motor vehicle (§ 246;
counts 4–6 & 9); two counts of possession of a firearm by a felon (§ 29800, subd. (a)(1);
counts 7 & 11); carrying a firearm as an active member of a criminal street gang
(§ 25850, subd. (c)(3); count 8); and participating in a criminal street gang (§ 186.22,
subd. (a); count 12). As to count 1, it was further alleged that the murder was intentional
2 Alternatively, defendant contends defense counsel provided ineffective assistance
by failing to contest the prior strike and prior serious felony enhancement allegations
related to defendant’s 2012 section 186.22, subdivision (a) conviction. However, the
People argue that reversal of the true findings on defendant’s prior strike and prior
serious felony allegations and remand of the matter render the issue of whether defense
counsel provided ineffective assistance moot. Defendant concedes the issue in his reply
brief. We agree with the parties.
3 Whether resentencing is required will depend on the result of any retrial.
2.
and perpetrated by means of discharging a firearm from a motor vehicle (§ 190.2,
subd. (a)(21)), and that the murder was committed while defendant was an active
participant in a criminal street gang and carried out to further the gang’s activities
(§ 190.2, subd. (a)(22)). As to counts 1 through 7 and 9 through 11, the indictment
further alleged that defendant committed the offenses for the benefit of, at the direction
of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)). As to counts 1, 5
and 6, it further alleged that defendant personally and intentionally discharged a firearm
causing death or great bodily injury (§ 12022.53, subd. (d)). As to counts 2, 4, and 9, the
indictment further alleged he personally and intentionally discharged a firearm
(§ 12022.53, subd. (c)). As to counts 2, 3, and 10, it further alleged he personally used a
firearm (§ 12022.5, subd. (a)). As to count 3, the indictment further alleged defendant
personally inflicted great bodily injury (§ 12022.7, subd. (a)). Last, the indictment
further alleged defendant previously sustained two prior serious felony convictions
(§ 667, subd. (a)) and two prior strike convictions (§§ 667, subds. (c)–(j), 1170.12,
subds. (a)–(e)).
On September 13, 2019, defendant pled not guilty to all counts and denied the
prior strikes and enhancement allegations.
On September 11, 2024, the trial court granted defendant’s motion to bifurcate the
gang enhancement allegations (§ 186.22, subd. (b)(1)), the gang offense charged in
count 12 (§ 186.22, subd. (a), and the two prior serious felony convictions (§ 667,
subd. (a)) and two prior strike convictions (§§ 667, subds. (c)–(j), 1170.12, subds. (a)–
(e)) allegations.
On October 18 and 21, 2024, a jury found defendant guilty on counts 1 through 11
and found true all the special circumstances and enhancements. On October 21, 2024,
the prosecution dismissed the firearm enhancements alleged as to counts 1, 2, 4 through 6
and 9 and the section 12022.5, subdivision (a) enhancement alleged as to count 1. The
same day, in a bifurcated proceeding, defendant pled no contest to count 12 and admitted
3.
the section 186.22 enhancements. Defendant also admitted he suffered two prior
convictions underlying the two prior serious felony convictions (§ 667, subd. (a)) and two
prior strike convictions (§§ 667, subds. (c)–(j), 1170.12, subds. (a)–(e)) enhancement
allegations. The trial court accepted defendant’s factual admissions and found true the
two prior serious felony convictions (§ 667, subd. (a)) and two prior strike convictions
(§§ 667, subds. (c)–(j), 1170.12, subds. (a)–(e)) enhancements.
On November 19, 2024, the trial court denied defendant’s request for probation
and sentenced him to a total term of life without parole (LWOP), plus 373 years to life,
plus 10 years, as follows: on count 1 (special circumstance murder), the indeterminate
term of LWOP, plus 25 years to life for the firearm enhancement (§ 12022.53, subd. (d))
plus 10 years total (five years for each) for the two prior serious felony conviction
enhancements (§ 667, subd. (a)); on count 4, the indeterminate term of 111 years to life,
pursuant to the “Three Strikes” law, consecutive; on count 6, 126 years to life, pursuant
to the Three Strikes law, consecutive; and on count 9, 111 years to life, pursuant to the
Three Strikes law, consecutive. Punishment on the remaining counts was imposed and
stayed under section 654.
On December 11, 2024, defendant filed a timely notice of appeal.
FACTUAL SUMMARY4
February 23, 2017 Shooting Incident
On February 23, 2017, members of the West Side Crips gang, including defendant,
confronted and argued with members of a rival gang, the East Side Crips, at a shopping
mall.
Later that night, defendant and another West Side Crips gang member were
driving around, searching for East Side Crips gang members, when they saw a vehicle
4 As the facts of the underlying offenses are not at issue in defendant’s appeal, we
only briefly summarize them from the probation report.
4.
being driven by one of them. Defendant fired several gunshots into the vehicle. The
bullets defendant fired struck two children in the backseat of the vehicle, killing
five-year-old K.G., and injuring his brother, seven-year-old D.V.5
August 17, 2019 Shooting Incident
On the evening of August 17, 2019, defendant was at a party at a residence with
other West Side Crips gang members when another subject gave defendant a firearm.
Later that night, a vehicle drove past the residence and defendant used the firearm to fire
several gunshots at the passing vehicle.
On August 19, 2019, Bakersfield Police Department officers contacted defendant
during a traffic stop. Defendant was taken into custody during the stop.
DISCUSSION
Defendant contends the trial court’s true finding that his 2012 conviction qualifies
as a serious or violent felony for purposes of the strike prior (§§ 667, subds. (c)–(j),
1170.12, subds. (a)–(e)) and prior serious felony (§ 667, subd. (a)) enhancements must be
vacated and the matter remanded to the trial court for any retrial of these allegations and
subsequent resentencing, if necessary, because there is insufficient evidence to support
the finding under the 2022 amendments to section 186.22 enacted by Assembly Bill 333.6
The People agree, as do we.
5 The third amended indictment identifies the victim in count 2 as D.V., while the
probation report identifies the victim as B.G.
6 On January 8, 2026, defendant moved our court to grant his “Motion to Augment
the Record on Appeal with [] or—Alternatively—to Take Judicial Notice of” exhibit
Nos. 97 (abstract of judgment in case No. BF140779A) and 99 (information in case
No. BF140779A). Our court deferred consideration of defendant’s motion pending
consideration of the appeal on the merits. However, as the People concede, the court’s
finding must be reversed and the matter remanded for any retrial. Accordingly, we need
not take judicial notice of the requested documents as they are irrelevant to resolving the
issue on appeal.
5.
A. Background
The third amended indictment charged defendant with 12 counts stemming from
the February 23, 2017 and August 17, 2019 incidents. As to all counts, it was alleged
that defendant suffered two strike prior convictions (§§ 667, subds. (c)–(j), 1170.12,
subds. (a)–(e)) and two prior serious felony convictions (§ 667, subd. (a)).
On October 15, 2024, for purposes of the two charges of possession of a firearm
by a felon (§ 29800, subd. (a)(1); counts 7 & 11), defendant admitted he “was convicted
of a felony offense before February 23, 2017.”
On October 21, 2024, after the jury found defendant guilty on the underlying
offenses, defense counsel indicated that defendant intended to plead no contest to the
bifurcated section 186.22, subdivision (a) charge (count 12) and planned to admit the
gang enhancement allegations (§ 186.22).
The trial court then discussed the strike prior and prior serious felony allegations,
along with several of the gang issues.
The court stated,
“It’s my understanding that [defendant would] be entering pleas of
no contest to the bifurcated portion of the trial under North Carolina v.
Alford[7] as follows:
“In regard to Counts 1 through 7 and 9, 10, and 11, admitting the
enhancement under [] Section 186.22[, subdivision] (b)(1).
“As to Count 8, admitting the gang portion under (c)(3), and as to
Count 12, pleading no contest to Penal Code Section 186.22[,
subdivision] (a).
“The portion that was bifurcated to the Court has to do with two
[section] 667[, subdivision] (e) allegations one from on or about January
27, 2011 in [case No.] BM134283B and one on or about July 3, 2012 in
[case No.] BF140779A. Those same cases are alleged in regard to the
[section] 667[, subdivision] (a) allegations. So there’s two
7 The plea was entered pursuant to North Carolina v. Alford (1970) 400 U.S. 25.
6.
[section] 667[, subdivision] (e) [allegations], [and] two [section] 667[,
subdivision] (a) [allegations].
“It’s my understanding the defendant already admitted suffering
those convictions in both of those cases, which would be applicable to
[sections] 667[, subdivision] (a) and 667[, subdivision] (e), which means
evidence would no longer be submitted in this case, and there would be no
second portion for the jury to determine or subsequently for the Court to
determine.”
The parties and defendant then confirmed the court correctly understood the plea.
Defendant also affirmed his willingness to waive “each and every one” of the rights listed
in the “Waiver of Rights form,” including the “right to require that the prior conviction(s)
and enhancement(s) alleged against [defendant] must be proven.” The following
colloquy occurred:
“THE COURT: As to the alleged prior conviction in
[case No.] BF134238B, which is the [section] 460[, subdivision ](a)
of the Penal Code, do you admit?
“DEFENDANT: I admit.
“THE COURT: As to [case No.] BF140779A, do you admit?
“DEFENDANT: I admit.
“THE COURT: Counsel join?
“DEFENSE COUNSEL: So join.”
The trial court accepted defendant’s admission that he sustained the two prior
convictions and his waiver of rights, stating,
“I’ll accept the admission, find, in total, you’ve made a
knowing, intelligent, voluntary waiver of your rights, understanding
the consequences.
“In regard to the allegations, I don’t believe there’s any
further ones outstanding.
“[¶] … [¶]
“So the Court is accepting this plea. We’ll not have a part
two to the trial, and we do not need to. To the extent that there
7.
needs to be a finding under [sections] 667[, subdivision] (e) and
667[, subdivision ](a), both of those allegations, I am finding that
that has been proven beyond a reasonable doubt in light of the
defendant’s plea to those prior convictions.”
On November 19, 2024, at the sentencing hearing, the trial court sentenced
defendant as a third strike offender pursuant to the Three Strikes law to a total term of
“[LWOP], plus 25 years to life, plus 111 years to life, plus 126 years to life, plus
111 years to life, plus 10 years,” for the two prior serious felony enhancements based on
the 2012 section 186.22, subdivision (a) conviction.
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,
8.
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
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 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 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,’
9.
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).)”
(Ibid.) Moreover, because these changes are ameliorative in nature, they apply to nonfinal
judgments on appeal. (Id. 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
10.
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
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.) “[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.)
C. Analysis
We agree with the parties that the evidence here is insufficient to support the trial
court’s finding that defendant’s 2012 conviction qualifies as a serious or violent felony
for purposes of the strike prior and prior serious felony enhancements under the 2022
amendments to section 186.22 enacted by Assembly Bill 333, because once he admitted
the 2012 conviction, no further evidence was presented to prove the truth of the
allegation that the prior conviction qualifies as a serious felony. Accordingly, there is no
evidence as to the nature of the 2012 conviction and whether it followed a jury verdict or
a guilty or no contest plea.
Here, the proceedings on the prior strike and prior serious felony allegations
occurred on October 21, 2024, 10 months prior to the California Supreme Court’s
opinion in Fletcher, which was issued on August 25, 2025. (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.)
11.
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 that 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 were the abstracts of judgment, which merely
showed the offenses and gang enhancements. (Id. at p. 607.) Accordingly, the Supreme
Court vacated the strike prior findings in Fletcher and directed the Court of Appeal to
remand with instructions to retry the gang allegations under Assembly Bill 333’s
amendments to section 186.22. (Fletcher, at p. 608.)
As the parties note, once defendant admitted the 2012 conviction for a violation of
section 186.22, subdivision (a), no further evidence was presented here regarding that
12.
conviction. The prosecution represented to the trial court during pretrial motions that, in
the 2012 proceeding, defendant pleaded guilty or no contest to the section 186.22,
subdivision (a) charge. However, there was no evidence presented to the trial court
proving defendant’s 2012 conviction followed a guilty or no contest plea. Before
sentencing, the trial court received a probation report indicating the 2012 conviction
involved a single section 186.22, subdivision (a) count accompanied by a single prior
strike allegation. The record also includes trial testimony from two police officers,
admitted for the purpose of proving defendant’s personal knowledge of his gang’s
primary activities, concerning prior criminal conduct committed by defendant in
February 2012 that he was seen fleeing the scene of a gunshot, that he admitted firing one
round from a firearm to get a group of people to stop fighting and that he admitted he was
a felon prohibited from possessing a firearm, but the prosecution presented no evidence
establishing that the February 2012 conduct was related to the July 2012 section 186.22,
subdivision (a) conviction or that the officers’ testimony formed the factual basis for the
2012 conviction.
As Assembly Bill 333’s amendments to section 186.22, subdivision (a) apply to
the trial court’s finding on defendant’s 2012 conviction pursuant to Fletcher, defendant’s
admission that the 2012 conviction qualified as a serious or violent felony pursuant to
section 186.22, subdivision (a) cannot be construed to have been knowingly and/or
intelligently made. Accordingly, the evidence is insufficient to support the trial court’s
true finding that his 2012 conviction qualifies as a serious or violent felony for purposes
of the strike prior (§§ 667, subds. (c)–(j), 1170.12, subds. (a)–(e)) and prior serious felony
(§ 667, subd. (a)) enhancements 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.
13.
DISPOSITION
The trial court’s true finding that defendant’s 2012 conviction qualifies as a
serious or violent felony pursuant to section 186.22, subdivision (a) for purposes of the
strike prior (§§ 667, subds. (c)–(j), 1170.12, subds. (a)–(e)) and prior serious felony
(§ 667, subd. (a)) allegations is vacated and the matter remanded to the trial court for any
retrial of these allegations, and if required, any resentencing. In all other respects, the
judgment is affirmed.
14.