Filed 9/14/26 P. v. Madrigal CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B347031
(Super. Ct. No. 2013023115)
Plaintiff and Respondent, (Ventura County)
v.
ANTONIO MADRIGAL,
Defendant and Appellant.
Antonio Madrigal appeals following his resentencing on
remand pursuant to Penal Code section 1172.75.1 He contends
the trial court erred by denying relief beyond striking his prior
prison enhancements under section 667.5. He argues the court
should have granted his request to retry his case, in part, under
section 186.22 as amended by Assembly Bill No. 333 (2021-2022
Reg. Sess.) (Stats. 2021, ch. 699, §§ 3, 4) (AB 333). We agree and
will remand for a full resentencing.
1 Undesignated statutory references are to the Penal Code.
PROCEDURAL BACKGROUND
Appellant coordinated the attack of another inmate while
incarcerated at a Ventura County jail in July of 2013. A jury
convicted appellant of active participation in a criminal street
gang (§ 186.22, subd. (a); count 1), assault by force likely to
produce great bodily injury (§ 245, subd. (a)(4); count 2), and
conspiracy to commit assault by force likely to produce great
bodily injury (§ 182, subd. (a)(1); count 3). The jury also found
true two criminal street gang allegations. (§ 186.22, subd. (b)(1).)
In a bifurcated proceeding, appellant admitted five strike priors
(§ 667, subd. (e)(2)), a serious felony prior (id., subd. (a)(1)), and
two prior prison commitments (§ 667.5, subd. (b)). In 2014, the
trial court sentenced appellant to prison for 25 years to life plus a
determinate term of 10 years, which included a one-year term for
the prison prior enhancement on count 2. The prison prior on
count 3 was stayed. We affirmed the judgment. (People v.
Madrigal (Oct. 8, 2015, B254702) [nonpub. opn.]; People v.
Madrigal (Jan. 12, 2017, B254702) [nonpub. opn.].)
First Resentencing and Appeal
In 2022, the California Department of Corrections and
Rehabilitation (CDCR) referred appellant as potentially eligible
for resentencing pursuant to Senate Bill 483. (Stats. 2021, ch.
728, § 3.) The trial court denied the petition for resentencing. It
concluded appellant was ineligible because he was not currently
serving a sentence based on a section 667.5, subdivision (b)
enhancement. We reversed and remanded the case with
directions to strike the enhancement and resentence appellant
pursuant to section 1172.75. (People v. Madrigal (Nov. 18, 2024,
B333969) [nonpub. opn.].)
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Resentencing on Remand
On remand, the People initially told the court they would
retry count 1 and the gang enhancements on counts 2 and 3. For
reasons not stated in the record, this did not occur. The court
held a resentencing hearing instead. The People conceded the
court should strike the section 667.5, subdivision (b)
enhancements but argued that striking any other enhancements
was not required under section 1385 because doing so “would not
be in the furtherance of justice” and “would endanger public
safety.” Appellant’s counsel argued AB 333 rendered judgment
non-final, entitling him to a new trial “at least as to the gang
allegation and arguably as to the entire case.”
The court acknowledged it had “full discretion to reconsider
all aspects of the sentence previously imposed” but believed “the
previous sentence was appropriate and just in its gravity.” It
struck the section 667.5, subdivision (b) enhancements. This
reduced appellant’s aggregate determinate term from ten years to
nine years. The court then reimposed the indeterminate term of
25 years to life “in light of [appellant’s] three strikes . . . .” It
stated appellant “ha[d] made his record well in terms of any
issues preserved for appeal in terms of any right to a new trial.”
DISCUSSION
AB 333’s Amendment of Section 186.22
Appellant contends the trial court erred when it sentenced
him based upon his active participation in a criminal street gang
conviction (count 1) and the gang enhancements on the assault
and conspiracy convictions (counts 2 and 3). He argues the trial
court’s recalling of his sentence under section 1172.75 rendered
judgment non-final and entitled him to retrial under AB 333’s
ameliorative amendments to section 186.22. Respondent
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concedes the amendments apply retroactively but asserts any
error is harmless under Chapman v. California (1967) 386 U.S.
18 [17 L.Ed.2d 705] (Chapman) because “there is overwhelming
evidence showing the requirements of AB 333 have been
satisfied.” We agree with appellant and will reverse.
AB 333 modified the law on gang crimes and enhancements
in several ways. As relevant here, it amended section 186.22 to
increase the evidentiary burden to prove the crime of active
participation in a criminal street gang (§ 186.22, subd. (a)) and a
gang enhancement (id., subd. (b)) by requiring the charged
offense and any predicate offenses benefit the gang in a way that
“is more than reputational.” (Id., subds. (e)(1) & (g).) It amended
the definition of a “‘pattern of criminal gang activity’”—an
element of proving the crime of active participation as well as a
gang enhancement—to mean two or more predicate offenses, the
last of which “occurred . . . within three years of the date the
current offense is alleged to have been committed . . . .” (Id.,
subd. (e)(1).) It also precluded using the currently charged
offense to establish a pattern. (Id., subd. (e)(2).) Proving
predicate offenses under section 186.22, subdivision (b) now
requires showing “a connection between the predicate offenses
and the organizational structure, primary activities, or common
goals and principles of the gang.” (People v. Clark (2024) 15
Cal.5th 743, 749.)
The jury convicted appellant under the prior version of
section 186.22. “With the relevant aspects of [AB 333] applying
retroactively, this disconnect with the law as it has since been
amended constitutes error affecting defendant’s conviction for
active participation in a criminal street gang and the true
findings as to the gang enhancements . . . .” (People v. Aguirre
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(2025) 18 Cal.5th 629, 715 (Aguirre).) “Under Chapman, vacating
the jury’s finding is ‘required unless “it appears beyond a
reasonable doubt” that the [finding] would have been the same’
under current law.” (In re A.M. (2024) 102 Cal.App.5th 557, 570,
quoting People v. Tran (2022) 13 Cal.5th 1169, 1207.) “If ‘there is
any reasonable possibility that the error might have contributed
to the’ finding, vacatur is required.” (Ibid., quoting People v.
Lewis (2006) 139 Cal.App.4th 874, 887.)
The People introduced evidence of four predicate offenses at
appellant’s original trial to prove the crime and enhancements
under the prior statute. Respondent concedes two of these
occurred outside of the three-year window for predicate offenses
under the amended definition of “a pattern of criminal gang
activity.” This leaves only two applicable predicates here: (1) a
February 2012 conviction following the assault of a correctional
officer at a California Youth Authority facility; and (2) a
November 2012 conviction following the assault of an inmate by
two purported Sureño gang members at a Ventura County jail.
The People’s gang expert provided detailed hearsay testimony
about these crimes. Appellant agreed to admit this testimony as
the basis of the expert’s opinion, not for its truth, and the People
agreed to prove the predicate offenses through certified records of
conviction. The court instructed jurors accordingly.
The certified records for the February 2012 assault include
a felony disposition statement signed and filed by defendant
Carlos Portillo on May 31, 2012. Portillo pleaded no contest to
one felony count of assault on a police officer. He admitted a
gang allegation and one prior strike. The felony complaint forms
the factual basis of his plea. The certified records for the
November 2012 assaults include felony disposition statements
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signed and filed by defendants Elias Dunn and Arturo Gonzalez.
Like Portillo, both Dunn and Gonzalez admitted gang allegations
and prior strikes. The disposition statements list preliminary
hearing transcripts, police reports, and probation reports as the
factual basis of their pleas but these documents are not included
in the record on appeal for this case or for appellant’s direct
appeal.
We cannot say the jury would have found appellant guilty
of active participation in a criminal street gang, or found true the
special allegations, beyond a reasonable doubt under the new law
based on these records. The felony disposition statements
contain mostly boilerplate provisions detailing the defendant’s
waiver of rights and agreed sentence. None of the records
describe the crimes committed other than identifying the statutes
used to charge them. Each defendant admitted gang allegations
but did so under pre-amendment section 186.22. The records
provide little information from which the jury could infer the
predicate offenses benefitted a gang in a way that was “more
than reputational,” much less connect the offenses to “the
organizational structure, primary activities, or common goals and
principles of the gang.” ( See, People v. Lamb (2024) 16 Cal.5th
400, 454 [absence of evidence how predicate offenses actually
benefitted the gang cannot preclude finding that the benefit was
merely reputational].)
Respondent highlights evidence at trial that appellant was
a “shot caller” who coordinated the July 2013 jail attack “for the
benefit of, at the direction of, or in association with” the Sureño
prison gang. This evidence is not relevant here. The amended
statute prohibits prosecutors from using a defendant’s current
offense “to establish the pattern of gang activity.” (§ 186.22,
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subd. (e)(2).) Respondent’s res judicata and law of the case
arguments are likewise misplaced because the prior findings of
fact and law were made under the pre-amendment statute.
Appellant does not seek to relitigate those findings—he seeks
new findings under new laws pursuant to section 1172.75.
Other Contentions
Appellant’s assault and conspiracy convictions qualified as
serious felonies under the Three Strikes law only because the
jury found the special gang allegations true under pre-
amendment section 186.22. He contends his indeterminate
prison term and serious felony enhancement will become
unauthorized punishments upon reversal of these findings and
must be vacated without regard to the risk of danger assessments
required under section 1170.126, subdivision (f). The point is
both moot and academic. Appellant will receive a full
resentencing on remand. We decline to advise the trial court
about its future application of the sentencing laws. (See People v.
Slayton (2001) 26 Cal.4th 1076, 1084 [“As a general rule, we do
not issue advisory opinions indicating ‘“what the law would be
upon a hypothetical state of facts.”’”].)
Appellant also lists custody credit miscalculations,
improper restitution fines, and other errors in the abstract of
judgment. Respondent concedes a new abstract of judgment is
required. The parties will have the opportunity to propose
corrections to the abstract upon remand.
DISPOSITION
Appellant’s conviction for active participation in a street
gang and the true findings on the gang enhancements on counts
2 and 3 are reversed. The People may seek to try the gang charge
and enhancements under amended section 186.22. Following any
trial, or if none occurs, the trial court will conduct a full
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resentencing under section 1172.75. Judgment is otherwise
affirmed.
NOT TO BE PUBLISHED.
CODY, P. J.
We concur:
YEGAN, J.
BALTODANO, J.
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David R. Worley, Judge
Superior Court County of Ventura
______________________________
Sylvia W. Beckham, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Steven D. Matthews, Supervising
Deputy Attorney General, and Michael J. Wise, Deputy Attorney
General, for Plaintiff and Respondent.
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