Filed 8/17/26 P. v. Owens CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B348161
(Super. Ct. No. 1410576)
Plaintiff and Appellant, (Santa Barbara County)
v.
CHARLES ALONZO OWENS,
Defendant and Respondent.
This is a People’s appeal from the trial court’s order
granting respondent’s motion for a new trial as to the gang-
murder special circumstance and gang enhancement allegations
from his 2013 jury trial based on changes to Penal Code1 section
186.22 following the enactment of Assembly Bill No. 333 (2021-
2022 Reg. Sess.) (AB 333). The People contend the trial court
misunderstood the proof required to maintain the gang special
circumstance and allegations and any instructional error arising
from the change in the law was harmless beyond a reasonable
1 All further statutory references are to the Penal Code.
doubt. (Chapman v. California (1967) 386 U.S. 18.) Respondent
contends the trial court properly found the Chapman standard
was not satisfied and thus correctly granted the motion for a new
trial. We affirm.
Procedural Background2
In July 2013, in a first amended information, the People
charged respondent with counts 1 through 6, as follows: murder
(§ 187, subd. (a), count 1), with the special circumstance that the
murder was committed to further the activities of respondent’s
criminal street gang (§ 190.2, subd. (a)(22)), a special allegation
that the murder was committed for the benefit of a criminal
street gang (§ 186.22, subd. (b)(1)), a special allegation that
respondent personally and intentionally discharged a firearm
causing death (§ 12022.53, subd. (d)), a principal discharged a
firearm causing death (§ 12022.53, subd. (e)), and respondent
suffered two prior felony convictions resulting in prison sentences
(§ 667.5, subd. (b)); corporal injury to a spouse or cohabitant (§
273.5, subd. (a), count 2); attempted forcible oral copulation (§§
664/288A, subd. (c)(2), count 3); sodomy by use of force (§ 286,
subd. (c)(2), count 4); forcible rape (§ 261, subd. (a)(2), count 5);
and dissuading a witness by force or threat (§ 136.1, subd. (c)(1),
count 6), with the special allegation that the crime was
committed to benefit a criminal street gang (§ 186.22, subd.
(b)(4)). Counts 2 through 6 involved the same victim,
respondent’s former girlfriend.
In November 2013, following an 11-day trial, the jury found
respondent guilty of all six counts and found true each special
2 We granted appellant’s request for judicial notice of the
record on respondent’s direct appeal in People v. Owens (Sept. 16,
2015, B253680) [nonpub. opn.] (Owens).
2
circumstance and allegation. Respondent admitted the two
prison prior enhancements. (§ 667.5, subd. (b).)
In December 2013, the trial court sentenced respondent to
life without the possibility of parole for first degree special
circumstance murder (§§ 187, subd. (a), 190.2, subd. (a)(22), count
1), plus an indeterminate term of 25 years to life for the firearm
enhancement (§ 12022.53, subd. (d)); a determinate term of four
years (§ 273.5, subd. (a), count 2); a consecutive determinate term
of one year (§§ 664/288A, subd. (c)(2), count 3); a consecutive
determinate term of eight years (§ 286, subd. (c)(2), count 4); a
consecutive determinate term of eight years (§ 261, count 5); and
an indeterminate term of seven years to life (§§ 131.1, subd. (c),
186.22, subd. (b)(4), count 6). The trial court stayed the section
12022.53, subdivision (e) enhancement. The resulting total
sentence was a determinate term of 23 years, followed by an
indeterminate term of 32 years to life, followed by an
indeterminate term of life without the possibility of parole.
In an unpublished opinion, we reversed the gang
enhancement finding as to count 6 and remanded the matter to
the trial court for resentencing, but otherwise affirmed
respondent’s conviction. (Owens, supra, B253680.) The trial
court resentenced respondent to a consecutive determinate term
of three years on count 6, but his sentence otherwise remained
the same.
Section 1172.75 Resentencing Proceedings
In April 2023, after respondent became eligible for
resentencing pursuant to section 1172.75, the trial court set the
matter for a hearing and appointed counsel. In January 2024,
after multiple continuances, counsel filed a motion for an order
vacating respondent’s convictions and granting a new trial on the
3
basis that his sentence would become nonfinal upon recall and
resentencing. (§ 1172.75.) Counsel argued that AB 333’s changes
to section 186.22 applied, which mandated a new trial. The
People filed an opposition. After considering briefing and hearing
argument, the trial court denied the motion.
In January 2025, respondent filed a motion requesting that
the trial court reconsider its order denying respondent’s request
based on the California Supreme Court’s recent decision in People
v. Lopez (2025) 17 Cal.5th 388 (Lopez), which addressed the
retroactive application of AB 333 to nonfinal judgments pursuant
to In re Estrada (1965) 63 Cal.2d 740. The People filed an
opposition. After reconsidering its ruling, the trial court found
AB 333 applied retroactively to respondent’s judgment. It
granted respondent’s motion for a new trial and reversed all gang
enhancement findings, including the gang-murder special
circumstance finding (thereby vacating the life without
possibility of parole term). In a 39-page written ruling the trial
court explained that after “a thorough examination of the trial
and appellate court records,” it could not “say with confidence
that the jury’s gang findings were unaffected by the instructional
error/omission engendered by [AB] 333.” The trial court
concluded that the proper remedy was to allow the prosecutor an
opportunity to retry the affected charges, enhancements, and
special circumstances.
4
Factual Background3
The Shooting
On the night of June 11, 2007, Michael Spradling, a former
member of Westside VLP, was found in an alleyway in Lompoc.
He had been shot in the chest, groin, and forehead. He was taken
to the hospital where he died two days later. Spradling’s death
was a cold case until 2011 when a renewed investigation linked
the shooting to respondent.
Gang Testimony
In 2007, the Six Deuce Brims/Bloods gang and the Crips
gang were embroiled in a “war” with Westside VLP, a rival gang.
The “war” involved back and forth shootings and stabbings.
During this war, it was understood that gang members were to
shoot their enemy if they saw them on sight in the street.
Firearms were in limited supply. In 2007, respondent was a
member of the Six Deuce Brims/Blood gang.
Gang expert, Detective Scott Casey, testified about gang
life generally and the importance of having a good reputation.
He explained that it “pretty much means everything.” Detective
Casey described how gang members obtained a good reputation
by “putting in work.” He explained that gang members are
“always striving to elevate their status, and they do that by
getting respect, which is done by the type of crimes and violence
they commit.” Typically, more violence means more respect
because it instills fear in rivals. Detective Casey explained that if
a VLP gang member shot a Blood gang member, the consequence
3 A detailed recitation of the underlying facts may be found
in our prior opinion. (Owens, supra, B253680.)
5
would be retaliation by the Brims on VLP. If the Brims/Blood
members did nothing, they would be seen as weak.
The jury also heard witness testimony from Sergeant
Agustin Arias, who started the cold-case investigation into
Spradling’s death, as well as former gang associates Anthony
Best, Lawrence Faulkner, and Labarron Reynolds.
Predicate Offenses
Detective Casey testified that the primary activities of the
Brims/Blood gang included, “murder, attempt[ed] murder,
assault with a deadly weapon, sales of base cocaine, gang
member in possession of a firearm, felon in possession of a
firearm, [and] witness intimidation.”
Detective Casey identified seven predicate offenses, but
only two survived AB 333’s amendments. The first was
respondent’s own conviction for carrying a concealed firearm
while being an active member of the Six Deuce Brims gang and a
felon who is prohibited from possessing a firearm. (§12025,
subds. (a)(2), (b)(3), (b)(4).) Certified court documents reflected
respondent’s conviction and admission to that crime.
The second remaining predicate offense involved five Brims
gang members who were all convicted of assault with force likely
to commit great bodily injury (§ 245, subd. (a)(1)) and being active
participants in a criminal street gang (§ 186.22, subd. (a)). In
that case, the individuals were in a vehicle, fired a shot at
someone, then fled the area. No other evidence regarding the
predicate offenses was admitted.
Discussion
The People contend the trial court erred in granting
respondent’s motion for new trial because the evidence at trial
demonstrated, beyond a reasonable doubt, that the jury would
6
have rendered the same verdict absent the instructional error
created by the passage of AB 333.
The trial court has broad discretion in ruling on a new trial
motion, and its decision will be disturbed only for clear abuse of
that discretion. (People v. Ault (2004) 33 Cal.4th 1250, 1260
(Ault).) The People recognize this general rule, but contend
independent review “seems more fitting” given that the court
below was not the original trial judge and based its review on a
cold transcript and exhibits.
Presumptions on appeal are in favor of the order, and the
appellate court does not independently redetermine the question
whether an error was prejudicial. As our Supreme Court
explained in Ault, “the trial court’s order granting a new trial will
not be disturbed if fairly debatable, even if a reviewing court
itself, addressing the issues de novo, would not have found a basis
for reversal.” (Ault, supra, 33 Cal.4th at pp. 1262-1263, italics
added.) We will review the trial court’s order for abuse of
discretion.
Assembly Bill No. 333
In 2021, the Legislature passed AB 333, which became
effective January 1, 2022. (Stats. 2021, ch. 699.) The new
legislation made several changes to the definition of section
186.22 gang enhancements. “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,’ [AB] 333
requires that any such pattern have been ‘collectively engage[d]
7
in’ by members of the gang. (§ 186.22, subd. (f), italics added.)
Third, [AB] 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 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, [AB] 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 (Tran).) Examples
may include “financial gain or motivation, retaliation, targeting a
perceived or actual gang rival, or intimidation or silencing of a
potential . . . witness or informant.” (§ 186.22, subd. (g).)
“Although [AB] 333 does not expressly address the gang-
murder special circumstance set forth in section 190.2,
subdivision (a)(22), the latter statute defines ‘criminal street
gang’ by express cross-reference to section 186.22, subdivision
(f).” (People v. Hin (2025) 17 Cal.5th 401, 461 (Hin).) The same
is true for a firearm enhancement alleged pursuant to section
12022.53, subdivision (e)(1). (See, e.g., People v. Cooper (2023) 14
Cal.5th 735, 746 (Cooper).)
Harmless Error Standard
“When a substantive change occurs in the elements of an
offense and the jury is not instructed as to the proper elements,
the omission implicates the defendant’s right to a jury trial under
the Sixth Amendment, and reversal is required unless ‘it appears
8
beyond a reasonable doubt’ that the jury verdict would have been
the same in the absence of the error.” (Tran, supra, 13 Cal.5th at
p. 1207, quoting People v. Flood (1998) 18 Cal.4th 470, 504.)
To prove harmless error under the Chapman standard, “it
is not enough to show that substantial or strong evidence existed
to support a conviction under the correct instructions.” (People v.
Sek (2022) 74 Cal.App.5th 657, 668.) Rather, the question is
“ ‘ “whether the record contains evidence that could rationally
lead to a contrary finding with respect to the omitted element.” ’ ”
(People v. Lamb (2024) 16 Cal.5th 400, 449 (Lamb), quoting
People v. Mil (2012) 53 Cal.4th 400, 417.)
The People acknowledge that AB 333’s changes apply
retroactively to respondent’s now nonfinal judgment (see Lopez,
supra, 17 Cal.5th at p. 392), meaning that the jury was
incorrectly instructed on the elements for both the gang-murder
special circumstance (§ 190.2, subd. (a)(22)) and the gang special
allegations (§ 186.22, subd. (b)). However, the People contend the
instructional error was harmless because there was
“overwhelming evidence” to support respondent’s conviction
under current law.
The trial court rejected this argument based on the
standards articulated and applied in three recent California
Supreme Court decisions, which examined Chapman and its
applicability in the wake of AB 333. (See Cooper, supra, 14
Cal.5th at pp. 739, 746; Lamb, supra, 16 Cal.5th at pp. 448-449;
Hin, supra, 17 Cal.5th at pp. 462-463.)
People v. Cooper
In Cooper, the defendant was convicted of first degree
murder, and the jury found true a gang enhancement under
former section 186.22. (Cooper, supra, 14 Cal.5th at pp. 738,
9
740.) The predicate offenses were a robbery and the sale of
narcotics. (Id. at pp. 740-741.)
The gang expert testified that both offenses were among
the gang's primary activities but did not testify how they
benefited the gang. (Cooper, supra, 14 Cal.5th at p. 741.) On
appeal, the Attorney General argued that “crimes that have an
inherent financial benefit and that are identified as the gang's
primary activities qualify as a common benefit to the gang that is
‘more than reputational’ under [AB] 333.” (Id. at p. 743.)
The Supreme Court disagreed, explaining that “robbery
and narcotics sales ‘may of course be committed by gang
members only for personal gain (which, relatedly, may benefit the
gang only reputationally).’ ” (Cooper, supra, 14 Cal.5th at p. 743.)
Thus, “the question of whether an offense is within the gang’s
primary activities is distinct from the question of whether a
particular offense has ‘commonly benefited a criminal street
gang.’ [Citation.] A jury determination regarding the gang’s
primary activities merely constitutes a conclusion about the types
of activities in which a gang typically engages, whereas the
question about a common benefit asks about how the specific
predicate offense actually benefited the gang.” (Ibid., italics
added.)
People v. Lamb
In Lamb, the defendant was convicted of various crimes,
including first degree murder after shooting a member of his own
gang in the back of the head. (Lamb, supra, 16 Cal.5th at pp.
408-409.) The jury found true a gang-murder special
circumstance allegation (§ 190.2, subd. (a)(22)) and the gang
enhancement allegations (§ 186.22) for all charges except street
terrorism. (Lamb, at p. 409.)
10
The Supreme Court reversed the gang findings based on
AB 333. It concluded that “although there was an abundance of
gang evidence presented to the jury, and each predicate offense
had a gang enhancement under a prior version of section 186.22,
the record [did] not sufficiently disclose the circumstances
surrounding the predicate offenses or how any specific predicate
offense actually benefited the gang. Thus, a rational juror could
have reasonably concluded that any common benefit was not
more than reputational.” (Lamb, supra, 16 Cal.5th at p. 445.)
People v. Hin
In Hin, the defendant was convicted of several crimes with
gang-related allegations, including first degree murder. (Hin,
supra, 17 Cal.5th at pp. 418-419, 460.) The gang expert testified
that the types of crimes alleged as predicate offenses (i.e., drug
sales, burglary, and the murder of a rival gang member) could
have offered both reputational and nonreputational benefits to a
gang. (Id. at p. 463.) The Supreme Court observed, however,
that the gang expert did not offer any testimony as to whether
the specific alleged predicate offenses benefited the gang as a
whole, and the record was otherwise silent as to the
circumstances of those two predicate offenses. The Court
concluded that “the evidence does not show that either crime was
committed for the benefit of the gang rather than for personal
gain.” (Ibid.)
Instructional Error Requires Reversal
Here, in a thorough and detailed opinion, the trial court
found that “[d]espite ample gang evidence presented at trial and
the inferences a jury could have drawn therefrom about any
nonreputational gang benefit, the absence of specific evidence as
to the two predicate offenses, coupled with other errors from the
11
record, suggest the jury could well have found the common
benefit of the two predicate offenses was reputational, meaning
. . . any instructional omission cannot be deemed harmless
beyond a reasonable doubt under Chapman.”
The People contend the trial court’s decision
“misapprehends the Chapman analysis in applying AB 333 to the
predicates by deciding that just because there was some evidence
of a reputational benefit to the gang from the predicates, the
predicates do not survive the new requirements.” We disagree.
The trial court properly focused its analysis on “whether
the instructional omission spawned by [AB] 333, involving failure
to instruct on the meaning of ‘pattern of criminal gang activity,’
and specifically whether any instructional omission (informing
the jury that a predicate offense must benefit the gang beyond
reputation) was harmless beyond a reasonable doubt . . . .”
(Italics added.)
At the outset, the trial court noted that the prosecutor
begins the “Chapman odyssey” from an “unusually difficult
position” given that the jurors in this case were permitted to
consider currently charged offenses (i.e., murder and dissuading
a witness), as well as three other predicate offenses that did not
survive AB 333’s changes, “all in association with the showing a
‘pattern of criminal gang activity.’ ” As the Court in Lamb
observed, “This makes it more difficult to conclude ‘beyond a
reasonable doubt that the error complained of did not contribute
to the verdict obtained.’ ” (Lamb, supra, 16 Cal.5th at pp. 454-
455.)
The People contend two of the predicate offenses offered at
trial (i.e., respondent’s own conviction for carrying a concealed
firearm and the assault with a deadly weapon violation)
12
established a pattern of criminal gang activity that commonly
benefited the gang in more than just reputation. The People
emphasize that respondent’s gang was involved in an ongoing
“war” with rival VLP, which began in 2005—before either of the
predicate offenses occurred. There were shootings and stabbings
back and forth. Guns were in short supply and in demand for
retaliation. It was understood that gang members were to shoot
rivals on sight. Failure to do so would be seen as weak.
While all that may be true, the record is silent as to how
the predicate offenses specifically benefited the gang in a more
than reputational way. As the trial court explained, “not one of
the five witnesses ever tied the two 2007 predicate crimes to any
nonreputational benefit, and there is no evidence, either from the
certified court records or otherwise, about how each of these two
crimes benefit the Brims in a nonreputational manner.” In any
event, “a rational juror could have concluded that the[] two
predicate offenses ‘were committed for personal gain alone.’ ”
(Hin, supra, 17 Cal.5th at p.463; Cooper, supra, 14 Cal.5th at p.
744.)
And while it is also possible that the jury could infer an
extra-reputational benefit to the gang, our Supreme Court has
rejected such an inference-based approach in assessing harmless
error in this context. (See Lamb, supra, 16 Cal.5th at pp. 452-453
[“Although the Attorney General repeatedly argues that the jury
could infer an extra-reputational benefit, he does not argue that
the jury would have been unable to infer the opposite”]; Cooper,
supra, 14 Cal.5th at p. 743 & fn. 7 [whether the jury could draw a
reasonable inference that the predicate offenses commonly
benefited the gang is “not the proper standard”].)
13
The instructional error was further compounded by other
changes in the law that would affect the jury’s determination. As
the trial court observed, the jury in this case was expressly
instructed that the predicate offenses need not be gang related.
“This instruction directly contradicts [AB] 333’s new requirement
that the predicate offenses ‘commonly benefited [the] criminal
street gang, and the common benefit from the offenses is more
than reputational.’ ” (Cooper, supra, 14 Cal.5th at p. 744; accord,
Lamb, supra, 16 Cal.5th at p. 454.)
There was also no evidence to show a connection or nexus
between the predicate offenses and the organizational structure
of the gang to prove collective engagement. (See People v. Clark
(2024) 15 Cal.5th 743, 749 [organizational nexus requirement
satisfied by showing connection between predicate offense and
organizational structure, primary activities, or common goals and
principles of the gang].) As the trial court observed here,
Detective Casey did not describe the hierarchical structure of the
gang. There was no evidence that the predicate offenses were
ordered by higher ranking gang members. And there was no
evidence to “link” the predicate offenses to an “ ‘organized effort’ ”
by the gang. Accordingly, the instructional error was prejudicial
under Chapman.
Finally, we note that the People argue here, as they did
below, that the charged murder meets and exceeds the
requirements of AB 333. However, as the trial court explained in
its ruling, while this point was certainly relevant at the time of
trial given that the charge of murder was used as one of the
seven predicate offenses, it has “limited utility” for current
purposes.
14
Based on the foregoing, the trial court properly found the
instructional error was not harmless beyond a reasonable doubt
under Chapman. As such, its determination to grant
respondent’s new trial motion on the gang findings was not an
abuse of discretion.
Disposition
The trial court’s order is affirmed.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
CODY, P. J.
McKAIG, J.*
* Superior Court of Ventura County, Ronda McKaig, Judge. (Assigned by the Chief
Justice pursuant to art. VI, § 6 of the Cal. Const.)
15
Von Deroian, Judge
Superior Court County of Santa Barbara
_____________________________
John T. Savrnoch, District Attorney, Marguerite Clipper
Charles, Snr. Deputy District Attorney, for Plaintiff and
Appellant.
Jennifer Peabody, Executive Director, Ava Wallace, Staff
Attorney, under appointment by the Court of Appeal, for
Defendant and Respondent.